[00:00:05] Speaker 01:
uh... the first case for argument is fourteen one three five seven headwear technologies this is k f h i m p p mr franklin we've got two cases so we're doing them i guess they're scheduled to be argued separately so that's our preference your honor and depending on how the court wants you to do we could even do the other case first well why don't we keep it the way it is

[00:00:46] Speaker 04:
Thank you, Your Honor.

[00:00:46] Speaker 04:
May it please the Court, Jonathan Franklin, for the appellant here where.

[00:00:50] Speaker 04:
This is one of two cases being argued today involving related patents.

[00:00:55] Speaker 04:
While the patents are similar, their claims are different and they were litigated separately and decided separately in the PTO based on different records and different combinations of references.

[00:01:06] Speaker 04:
Nevertheless, there are at least two issues that

[00:01:09] Speaker 04:
are common to both cases, and I'd like to begin by discussing both issues in the context of the 382 patent, which is an issue in this case.

[00:01:18] Speaker 04:
First, in holding all of the claims of that patent invalid as obvious, the board erred in finding that the prior art disclosed the sufficiently rigid connector recited in Hereware's claims.

[00:01:33] Speaker 04:
Because the prior arts did not disclose that element of Hereware's claims, there was no appropriate basis for finding the patents invalid.

[00:01:43] Speaker 04:
Second, even assuming for the sake of argument that the prior art did disclose all of the elements of Hereware's claims, the board also erred in effectively discounting or discarding Hereware's evidence that one skilled in the art would not have been motivated

[00:02:01] Speaker 04:
to employ the elements in the combination to arrive at the Hereware Pact.

[00:02:07] Speaker 01:
Let me ask you, I find the reliance on the Fretz disclosure pretty persuasive.

[00:02:16] Speaker 01:
Let me just ask you as a housekeeping matter, why Fretz isn't applicable to the 1369 case?

[00:02:22] Speaker 04:
It's not applicable because it was not a reference that was cited by the re-examination requester or considered by the board.

[00:02:30] Speaker 04:
and the prior case involving the same two parties, which Judge Wallace was a member of the panel on, that established clearly the proposition that the record before the PTO is the record before this court, and you can't pick a reference out that was not cited by the re-examination requester.

[00:02:50] Speaker 04:
In fact, the re-examination statute itself, which is the prior version, 35 USC 311, makes clear that only those

[00:02:59] Speaker 04:
references that are cited and relied on by the requester are ripe for consideration in a re-exam.

[00:03:04] Speaker 04:
So yes, FRETZ is an issue in the 382 patent.

[00:03:09] Speaker 04:
It is not an issue in the 562 patent.

[00:03:13] Speaker 01:
And why isn't what the board said in its board reliance, the board's reliance on FRETZ sufficient?

[00:03:19] Speaker 04:
FRETZ is a different technology, Your Honor.

[00:03:21] Speaker 04:
It did not involve the key technology of the Hearware patent, which is a behind-the-ear

[00:03:27] Speaker 04:
is a hybrid device involving one part of it that's behind the ear, the other part that is in the canal of the ear.

[00:03:34] Speaker 04:
Fretz, all of the components, electrical components, were behind the ear, and you had a hollow sound tube that was attached to a foam, soft foam ear tip in the Fretz reference.

[00:03:47] Speaker 04:
What hearware patents require is a connector with sufficient rigidity to insert and remove an in canal component that includes a speaker.

[00:03:56] Speaker 04:
All FRETZ teaches that its tube can position a soft foam ear tip for conducting sound from a device where all of the components are behind the ear.

[00:04:08] Speaker 04:
So there's no teaching in FRETZ about any connector that would be sufficiently rigid to insert or remove an in canal device having a speaker component such as a hearer's.

[00:04:21] Speaker 04:
Also.

[00:04:22] Speaker 01:
Well, I mean, how do we know that?

[00:04:24] Speaker 01:
I mean, FRETZ does talk.

[00:04:25] Speaker 01:
FRETZ doesn't.

[00:04:26] Speaker 01:
exactly talk about what the material is for the use for the tube, but it discloses a flexible kind of material.

[00:04:36] Speaker 01:
How do we know that it's not sufficiently rigid to satisfy the claim?

[00:04:40] Speaker 04:
All we know, and again, the burden is on the board and the requester to point in the prior art to evidence in the prior art that is the element of this claim.

[00:04:53] Speaker 04:
When you say how do we know,

[00:04:55] Speaker 04:
then they had the burden of showing that frets.

[00:04:59] Speaker 01:
Well, but they do.

[00:05:00] Speaker 01:
I mean, they cite the material in frets, which talks about sufficient rigidity and the flexibility.

[00:05:06] Speaker 01:
And they cite several examples of materials that would suffice.

[00:05:10] Speaker 01:
So why isn't that sufficient?

[00:05:11] Speaker 04:
Because there's no showing in the prior art that those materials are of sufficient rigidity to insert and remove a much different device.

[00:05:21] Speaker 00:
In the blue brief, you say at page 48, at best,

[00:05:26] Speaker 00:
And now I think this is a concession.

[00:05:29] Speaker 00:
Fretz discloses a tube that is rigid enough to insert and remove a soft tip.

[00:05:34] Speaker 04:
Yes.

[00:05:35] Speaker 04:
You think that's correct, Your Honor.

[00:05:36] Speaker 04:
We're not backing away from that.

[00:05:38] Speaker 04:
But that's all Fretz discloses.

[00:05:40] Speaker 04:
Hearware has much more than that in its patent.

[00:05:43] Speaker 04:
It has the speaker component.

[00:05:44] Speaker 04:
It also has the ear mold that is formed to fit inside one's ear canal.

[00:05:50] Speaker 04:
That's very different technology from Fretz.

[00:05:52] Speaker 04:
Fretz was a different kind of technology.

[00:05:56] Speaker 04:
which was the other reference, was, in fact, an in canal device.

[00:06:01] Speaker 04:
The problem with Chenneb is the handle, which Chenneb has in its reference, is neither a connector nor part of one.

[00:06:10] Speaker 02:
So, yes, Fred has the... But the board found, to the contrary, the board found that the

[00:06:14] Speaker 02:
the handle 38 was part of the connector.

[00:06:20] Speaker 02:
And I know that you take issue with that, but why isn't there substantial evidence to support that?

[00:06:26] Speaker 04:
There's not substantial evidence, Your Honor, because the principal evidence we're relying on here is the Cheneve reference.

[00:06:32] Speaker 04:
And if one looks at the depictions and the descriptions in Cheneve, one sees that the handle, which is appropriately described as a handle and not a connector, 38, yes.

[00:06:43] Speaker 04:
is attached to the in-canal device, the in-canal component.

[00:06:48] Speaker 04:
It goes around the cable that forms the connector.

[00:06:53] Speaker 04:
But it is not the connector.

[00:06:55] Speaker 04:
And we're looking again at figures 20 and figure 3, which are reproduced in the blue brief.

[00:07:02] Speaker 04:
You can see figure 3 at page 10 of the blue brief, and you can see figure 20 at page 8.

[00:07:07] Speaker 01:
And doesn't the signal cable in figure 20 run through the handle?

[00:07:13] Speaker 04:
Through, yes.

[00:07:15] Speaker 04:
And again, I'm moving now to the description of the handle in the reference.

[00:07:19] Speaker 04:
The handle is described as serving the function of strain relief on the connector.

[00:07:26] Speaker 04:
If it were part of the connector, it couldn't relieve strain on the connector.

[00:07:31] Speaker 04:
It would be adding to the strain of the connector.

[00:07:33] Speaker 02:
Well, it depends, I suppose, on whether, if the handle is connected to

[00:07:39] Speaker 02:
the nut, what looks like a nut in figure 20, that is designated as number 48.

[00:07:46] Speaker 02:
And if that is regarded as part of the connector, then the connector and the handle can affect strain relief, because you would be pulling on the handle, and that would be part of the connector.

[00:08:02] Speaker 02:
Your argument seems to be that, well, the nut, which is at 48, is actually part of the completely in canal device.

[00:08:12] Speaker 02:
But why isn't that ambiguous as to which it is, at which point the board is entitled to conclude that it was the former, not the latter?

[00:08:22] Speaker 04:
I would say, to the extent there's any ambiguity, it works in our favor because the board has to identify, and it has the burden of proof here, it has to identify

[00:08:32] Speaker 04:
the element in the prior art.

[00:08:33] Speaker 04:
But I would also turn to page 10 of the rubric, which has figure three.

[00:08:37] Speaker 04:
Figure three is identified in Chenille as depicting the same components.

[00:08:42] Speaker 04:
And if you look at figure three, the protruding part has to be the handle.

[00:08:46] Speaker 02:
It's not marked as the handle.

[00:08:48] Speaker 04:
I don't know why it has to be the handle.

[00:08:52] Speaker 04:
The handle can't be anything other than that.

[00:08:55] Speaker 00:
Is it possible that 38 isn't a part of either the connector or the earpiece?

[00:09:01] Speaker 04:
Well, I think it's possible that it is a separate piece that attaches to the earpiece.

[00:09:06] Speaker 04:
So whether you want to call it part of the earpiece, and I think the board fixated a bit on whether it was part of the earpiece.

[00:09:13] Speaker 04:
It really doesn't matter whether it's part of the earpiece or not.

[00:09:15] Speaker 04:
Well, doesn't that create some ambiguity if it's not part of either?

[00:09:20] Speaker 04:
Well, not if it's not part of the connector, because it has to be part of the connector in order to suffice to supply the element that's here where it's placed.

[00:09:28] Speaker 04:
The prior art here, which is

[00:09:30] Speaker 04:
identified by Sinead.

[00:09:32] Speaker 04:
Writer is another example of the prior art.

[00:09:34] Speaker 04:
They used things, handle, and writer, a retrieval line that were attached to the ins and outs component as the mechanism for inserting and removing.

[00:09:42] Speaker 04:
That's what distinguishes HereWare's patent.

[00:09:45] Speaker 04:
HereWare doesn't use that.

[00:09:47] Speaker 04:
HereWare uses the connector itself.

[00:09:49] Speaker 04:
And the connector itself is of sufficient rigidity so that it can be used to insert and remove.

[00:09:55] Speaker 04:
That's a different element.

[00:09:57] Speaker 04:
That's not an element that was in the prior art.

[00:09:59] Speaker 04:
And this court, I think, is as competent as the board is to determine what Cheney discloses.

[00:10:07] Speaker 04:
And to the extent Cheney doesn't say it's a connector, then we should prevail in this case.

[00:10:14] Speaker 02:
Well, we may be competent in the sense that we're looking at the same material, but our obligation is to defer to the board's findings of fact.

[00:10:24] Speaker 02:
And as such, I'm wondering why the finding that the board clearly made, and I think we can agree on that, that the board made a finding that this 38 was part of the connector.

[00:10:35] Speaker 02:
It's not clear to me that there's any reason to think that that finding is totally at war with the diagrams, figures 20 in particular and three.

[00:10:48] Speaker 04:
I think it is.

[00:10:49] Speaker 04:
We think it is, Your Honor, at war with those.

[00:10:51] Speaker 04:
But even if it's not, again,

[00:10:54] Speaker 04:
one has to identify that these are connectors.

[00:10:57] Speaker 04:
So if one cannot discern from these depictions that they are connectors, if part of the connector, we ought to win this lab.

[00:11:05] Speaker 02:
Would you agree with me, would you not, that if 48, the nut on figure 20, I'm calling it a nut, it appears to be in a large segment that attaches to 50, the in-canal portion of the in-canal device, if that is

[00:11:23] Speaker 02:
It appears to be connected to the handle 38.

[00:11:26] Speaker 02:
And if that is deemed to be part of the connector, then 38 is part of the connector, correct?

[00:11:35] Speaker 04:
Again, I don't want to make this too true.

[00:11:38] Speaker 02:
It would be much harder.

[00:11:40] Speaker 02:
I know you don't agree with that proposition.

[00:11:43] Speaker 02:
But if the proposition is true, then the handle would be part of the connector, right?

[00:11:48] Speaker 04:
If what you're saying is true, that the handle

[00:11:52] Speaker 04:
attaches to something that is part of the connector, then we would have a hard time arguing that it's not part of the connector.

[00:11:59] Speaker 04:
I don't want to make the concession, but I think we would have a hard time doing it.

[00:12:02] Speaker 04:
But again, we don't have to.

[00:12:03] Speaker 04:
It's not part of it.

[00:12:04] Speaker 04:
The connectors are the wires that are inside there.

[00:12:08] Speaker 04:
And the patent also describes the handle as going concentrically around the wires.

[00:12:14] Speaker 04:
Around the wires.

[00:12:15] Speaker 04:
Not attached to them.

[00:12:16] Speaker 02:
Around them.

[00:12:17] Speaker 02:
But that's the way you affect the strain relief.

[00:12:21] Speaker 02:
I mean, the strain relief can be affected as long as you don't have the pulling that effectively pulls on the wire.

[00:12:29] Speaker 02:
Exactly.

[00:12:29] Speaker 02:
So if you have a device that has the wires going through it, that has a handle, and then it has a nut at the end to which the handle is attached, and all that is part of the connector, then you've got your strain relief, and you've got it all part of the connector.

[00:12:43] Speaker 04:
I'd go back again, though, Your Honor, to what is a connector?

[00:12:46] Speaker 04:
A connector is something that connects two things.

[00:12:48] Speaker 04:
connects, in this case, the in-canal component and in the Chenille's case, the other external device that's not pictured.

[00:12:55] Speaker 04:
Nothing in that nut that you're pointing to or the handle attaches to the other end.

[00:13:01] Speaker 04:
It is not part of a connector and that's the difference.

[00:13:04] Speaker 04:
The other end is not depicted in this.

[00:13:06] Speaker 04:
The other end is the external audio device that is off

[00:13:10] Speaker 04:
the picture in this case.

[00:13:12] Speaker 02:
But the nut doesn't have to connect to the other end.

[00:13:15] Speaker 02:
All it has to connect to the other end is some component of the set of components that are the connector.

[00:13:22] Speaker 02:
And the set of components can contain a handle, could contain the wires.

[00:13:27] Speaker 02:
And my submission is, could it not arguably also include the nut?

[00:13:34] Speaker 04:
The nut, though, is not something that is part of it.

[00:13:38] Speaker 04:
We're going around in circles here.

[00:13:40] Speaker 04:
I don't want to say, I don't understand what your honor is saying, but I do want to emphasize that what is being connected here are the two elements, the in canal element and the external audio element.

[00:13:49] Speaker 04:
And the only thing that's connected to the external audio element is the wires and cables 39 and 37.

[00:13:55] Speaker 04:
Those are the connectors.

[00:13:57] Speaker 04:
I think I'm into my rebuttal time.

[00:13:59] Speaker 04:
I'd like to reserve the remainder.

[00:14:15] Speaker 03:
Good morning, your honor.

[00:14:15] Speaker 03:
May it please the court?

[00:14:17] Speaker 03:
Robert Stern for Appellee Hint with me at council table.

[00:14:20] Speaker 03:
We have John Wright and Jason Eisenberg.

[00:14:22] Speaker 03:
Let's go right to it if we could.

[00:14:25] Speaker 03:
There's substantial evidence to support the board's finding.

[00:14:29] Speaker 03:
There's a very detailed decision that the board prepared.

[00:14:32] Speaker 03:
They looked at the entire administrative record.

[00:14:35] Speaker 03:
The administrative record is extensive.

[00:14:38] Speaker 03:
Substantial evidence under the APA requires that.

[00:14:42] Speaker 03:
to be found.

[00:14:43] Speaker 03:
They looked at the four declarations.

[00:14:45] Speaker 03:
We had declarations from both Inventors and Shineth, going to your point, Judge Bryson, about what the handle is.

[00:14:51] Speaker 03:
We had declarations from two technical experts.

[00:14:54] Speaker 03:
They found the declaration from Hempst, Dr. Thompson, to be more persuasive on the issues at hand.

[00:15:03] Speaker 01:
Did the board correct when, as I understand it, it refused to evaluate evidence regarding the hearing aid aesthetics, saying that it wasn't required or wasn't allowed to do that in connection with the motivation to combine?

[00:15:17] Speaker 03:
The board did look at those arguments carefully and found that the technical reasons were the reasons why the combinability was proper.

[00:15:28] Speaker 03:
They looked at the aesthetic arguments carefully, as the board's decision shows.

[00:15:33] Speaker 03:
The arguments were that the insertion and the removal of the handle 38 in Shinneb would either be unsightly or cause damage to the ears of the wearer.

[00:15:45] Speaker 03:
But the reality is that these claims are extremely broad.

[00:15:49] Speaker 03:
These claims cover an earpiece auditory device.

[00:15:52] Speaker 03:
They don't even cover a hearing aid.

[00:15:54] Speaker 03:
The claims are very broad.

[00:15:56] Speaker 03:
The critical claim limitation is this connector.

[00:16:00] Speaker 03:
which has a functional recitation of being sufficiently rigid to allow it to be inserted and removed.

[00:16:06] Speaker 03:
The fact is that the patent itself only discloses a retrieval line for insertion.

[00:16:13] Speaker 03:
The retrieval line's not even shown in the patent.

[00:16:17] Speaker 03:
It is connected to element 14.

[00:16:19] Speaker 03:
The patent teaches that the connector can be made up in the various embodiments shown of multiple components.

[00:16:26] Speaker 03:
The chin-up handle is part of wires

[00:16:29] Speaker 03:
39, the outer sheath, and the inner wire is 37.

[00:16:34] Speaker 03:
So that the board's interpretation of the reference, which is in compliance with what the central reexamination unit found, is fully supported by the record.

[00:16:44] Speaker 03:
They looked at the shit-ed patent.

[00:16:48] Speaker 00:
Let's assume that there's a problem with the aesthetics.

[00:16:52] Speaker 00:
Given that the board looked at both frets as well,

[00:16:59] Speaker 00:
Yes.

[00:17:00] Speaker 00:
The aesthetics question doesn't arise there, does it?

[00:17:03] Speaker 00:
No, it does not.

[00:17:04] Speaker 00:
So if we buy the Fretz combination argument, then we don't even get to aesthetics.

[00:17:10] Speaker 03:
That's true, Your Honor.

[00:17:11] Speaker 03:
And going back to the Fretz reference, we were told that they're entirely different technologies.

[00:17:16] Speaker 03:
Well, that's not correct.

[00:17:17] Speaker 03:
The record doesn't support that.

[00:17:19] Speaker 03:
We're talking about hearing aids.

[00:17:21] Speaker 03:
Fretz is a hearing aid.

[00:17:22] Speaker 03:
Shinneb is a hearing aid.

[00:17:25] Speaker 03:
All the references in the six combinations are hearing aids.

[00:17:29] Speaker 03:
Now the claims, as I said earlier, are very broad.

[00:17:32] Speaker 03:
It goes to an earpiece auditory device.

[00:17:34] Speaker 03:
At the very beginning of the 382 patent, it talks about how this device can be used in many other applications other than hearing aids.

[00:17:43] Speaker 03:
It can be used by security forces.

[00:17:44] Speaker 03:
It could be used by police.

[00:17:46] Speaker 03:
It could be used by news anchors.

[00:17:48] Speaker 03:
It could be used by people who just want to listen to a source of information as claim three directs us to.

[00:17:57] Speaker 03:
The fact is that they're asking this court to now narrow these claims.

[00:18:02] Speaker 03:
These claims are very broad.

[00:18:04] Speaker 03:
There is no support in the specification for what sufficiently rigid covers.

[00:18:11] Speaker 03:
Sufficiently rigid was added five years into the prosecution of this case.

[00:18:16] Speaker 03:
They couldn't get the claims allowed.

[00:18:18] Speaker 03:
We brought this up at the board when I did the oral argument.

[00:18:21] Speaker 03:
They brought this concept of sufficiently rigid in to get all these claims allowed.

[00:18:26] Speaker 03:
The reality is that sufficiently rigid is a functional term.

[00:18:31] Speaker 03:
It's nowhere defined in the specification.

[00:18:35] Speaker 03:
It was not in the original filed claims.

[00:18:38] Speaker 03:
So we don't know what sufficiently rigid is.

[00:18:40] Speaker 03:
So let's go to FRETZ for a moment.

[00:18:42] Speaker 03:
Sufficiently rigid is the tube that is used in FRETZ, the sound tube of this hearing aid that is inserted into the ear of the user.

[00:18:51] Speaker 03:
There's only three pieces that make up a hearing aid.

[00:18:55] Speaker 03:
the ear component, which has the electronics in the microphone for picking up the sound, the speaker, the receiver that fits in the ear, and the connector that connects the two together.

[00:19:09] Speaker 03:
In this claim, it only talks about physical connection.

[00:19:12] Speaker 03:
It doesn't talk about electrical connection in this claim.

[00:19:15] Speaker 03:
It's very broad.

[00:19:17] Speaker 03:
The functional teachings of the patent don't

[00:19:22] Speaker 03:
explain any reason why you couldn't use FRETZ or you couldn't use SHIP.

[00:19:27] Speaker 03:
The reality is that you need to insert and remove.

[00:19:31] Speaker 03:
Insertion is only disclosed in the patent specification with this undisclosed retrieval line that attaches to element 14.

[00:19:42] Speaker 03:
There's nothing else.

[00:19:44] Speaker 03:
In one environment, connector 20 is attached physically and electrically to element 14.

[00:19:51] Speaker 03:
So for insertion,

[00:19:52] Speaker 03:
The only thing that's disclosed is the retrieval line, which we see is the only disclosed embodiment.

[00:19:59] Speaker 03:
It has nothing to do with this physical element, this physical element for pushing or pulling in this cable that they used as the basis for sufficiently rigid.

[00:20:11] Speaker 03:
So again, I ask this court, where does sufficiently rigid begin and end in terms of claim scope?

[00:20:19] Speaker 03:
Now, we have to imply broadest reasonable interpretation in this inter-party re-exam process, as we all know.

[00:20:25] Speaker 03:
So the board was appropriate in interpreting the claims and interpreting Shinneb, interpreting Fretz, and all the other references that are before us.

[00:20:34] Speaker 03:
They also looked to the declaratory evidence in the four declarations.

[00:20:40] Speaker 03:
They looked at that very carefully.

[00:20:43] Speaker 03:
The board's decision enunciates exactly what their analysis was.

[00:20:49] Speaker 03:
So I submit to you, Your Honors, that substantial evidence is clearly satisfied with respect to each one of these six rejections of each of the claims.

[00:20:59] Speaker 02:
Can we turn to the issue that I was discussing with Mr. Franklin, the Sheneb reference and exactly what Sheneb teaches with respect to what is the connector?

[00:21:10] Speaker 02:
I understand Mr. Thompson, principally Mr. Thompson, I think, says in his declaration that

[00:21:19] Speaker 02:
Sinead's handle 38 is part of the connector.

[00:21:25] Speaker 02:
But looking at figures 20 and figure 3 of Sinead, tell me why I should conclude that that's plainly correct.

[00:21:35] Speaker 03:
Well, this is what the examiner did.

[00:21:37] Speaker 03:
Let's look at this picture and the description in Sinead.

[00:21:41] Speaker 02:
The examiner made that conclusion, so did the board.

[00:21:43] Speaker 02:
The question is, is it right?

[00:21:46] Speaker 02:
Is it a correct reading of

[00:21:48] Speaker 02:
these diagrams and the Schenep pattern, the Schenep reference in general.

[00:21:53] Speaker 03:
Well, let me start by saying that I think we've heard a lot of attorney argument today and a lot of attorney argument in the briefs on this issue from the other side.

[00:22:00] Speaker 03:
So let's take a look at this and apply common sense to what we're looking at here.

[00:22:07] Speaker 03:
First of all, the claim does not require that the entire connector be substantially sufficiently rich.

[00:22:13] Speaker 02:
I understand that.

[00:22:13] Speaker 02:
You understand that.

[00:22:14] Speaker 02:
So you've got a little chunk of it that is the handle.

[00:22:17] Speaker 02:
Correct.

[00:22:18] Speaker 02:
OK, fine.

[00:22:18] Speaker 02:
The question, though, comes down to what's the handle attached to?

[00:22:23] Speaker 02:
Is it attached to the connector, or is it attached to the completely-within canal piece?

[00:22:30] Speaker 03:
It's clearly attached to the connector, Your Honor.

[00:22:32] Speaker 02:
Tell me why that's so clear.

[00:22:35] Speaker 02:
I mean, just to assert.

[00:22:36] Speaker 02:
Sure, sure.

[00:22:37] Speaker 03:
And as you can imagine, I've spent quite a bit of time thinking about that.

[00:22:42] Speaker 03:
All right.

[00:22:42] Speaker 03:
Well, let's hear the products of this box.

[00:22:43] Speaker 03:
Let's get the distillation of that, if we can.

[00:22:46] Speaker 03:
Okay, so we have a wire.

[00:22:48] Speaker 00:
So that would be attorney argument as opposed to common sense.

[00:22:51] Speaker 03:
There you go.

[00:22:54] Speaker 03:
We have a wire 39, as the board notes.

[00:22:58] Speaker 03:
We have the internal wire 37 that are inside.

[00:23:02] Speaker 03:
They electrically connect the signal to the speaker that is in the ear button.

[00:23:11] Speaker 03:
We also have this handle concept, which is used to reinforce

[00:23:16] Speaker 03:
this cable 39 as it goes to the ear buds.

[00:23:21] Speaker 03:
That's what's used to insert and remove according to Shinob.

[00:23:26] Speaker 03:
The reality is that cable 39 is either attached right at the edge of handle 38 or it goes through the middle of handle 38 and it's attached internally.

[00:23:39] Speaker 03:
So what happens is when you push it in, you use either the outer portion 38 to push it in

[00:23:45] Speaker 03:
where you get right behind 38 and push it in.

[00:23:48] Speaker 02:
When you say push it in, are you talking about pushing in the entire complex of items that include item 50 and the receiver?

[00:24:01] Speaker 03:
Yes.

[00:24:02] Speaker 03:
You push it into the ear canal.

[00:24:04] Speaker 02:
So that brings us to the $64 question, which is whether 38 is part of 50 or whether 38 is part of the connective.

[00:24:15] Speaker 03:
38 is part of the connector.

[00:24:17] Speaker 02:
So you say.

[00:24:18] Speaker 02:
Now tell me why.

[00:24:19] Speaker 03:
Well, the reason why is because in order to provide the strain relief of the two wire 37 internal to cable 39, the strain relief is provided when you pull out, for example, the wire.

[00:24:37] Speaker 02:
Let me put it to you this way.

[00:24:38] Speaker 02:
Suppose that I were to look at this and conclude that 38 is integral

[00:24:45] Speaker 02:
with both the nut 48 and the entire within canal component 50.

[00:24:53] Speaker 02:
It's all one piece.

[00:24:54] Speaker 02:
It would still operate to effectuate strain relief for the wires because you just pulled the whole thing out.

[00:25:02] Speaker 02:
The question is, is it integral or is it not integral, right?

[00:25:04] Speaker 02:
Isn't that what we really need to know in order to determine whether this is part of a connector?

[00:25:09] Speaker 03:
No.

[00:25:09] Speaker 03:
The claim is very broad, Your Honor.

[00:25:12] Speaker 03:
It speaks in terms of

[00:25:14] Speaker 03:
function.

[00:25:16] Speaker 03:
So there's nothing in the 382 patent specification that teaches multiple components that make up the connector.

[00:25:24] Speaker 03:
There is an embodiment that shows connector 20 is attached to this plate 14, which is connected to the speaker assembly in the disclosure.

[00:25:35] Speaker 03:
And that's where this undisclosed retrieval line is.

[00:25:39] Speaker 03:
So the idea of connecting the connector physically

[00:25:43] Speaker 03:
to the speaker assembly is contemplated by the patent because their connector, as the specification clearly teaches, states at column 13, lines 49 through 59, it says, the size, shape, dimension of connector 20 shown in figure one are by way of example only as connector 20 can be of numerous sizes and shapes.

[00:26:11] Speaker 03:
elements not depicted in Figure 1 may include a Connector 20.

[00:26:16] Speaker 03:
For example, in one embodiment where Speaker Fastener 14 is part of Connector 20, Fastener 14 includes a retrieval line for aiding a user in retrieving and or inserting Unit 10 into and out of the user's ear canal.

[00:26:34] Speaker 03:
On the other hand, elements included in Figure 10-1 may be absent from Connector 20.

[00:26:40] Speaker 03:
As mentioned in at least one embodiment, Connector 20 includes Speaker 13, Fastener 14, and or Fastener 31.

[00:26:49] Speaker 03:
I would submit to you, Your Honors, that this claim talks functionally about insertion and removal.

[00:26:56] Speaker 03:
So the concept to a person of ordinary skill in the art, Handle 38, which also provides strain relief, but it's talked for insertion and removal, is clearly applicable

[00:27:09] Speaker 03:
to these claims.

[00:27:10] Speaker 03:
And beyond that, as we noted in our brief, and as we noted to the board in our oral argument, and they note in their decision, look at the numbering here.

[00:27:20] Speaker 03:
We have table 39 in the same numbering scheme as wires 37 and handle 38, whereas the speaker side has 40 and 50.

[00:27:30] Speaker 02:
So to translate to terms that I would, no, no, terms that I

[00:27:37] Speaker 02:
I was thinking along, and tell me if this is a fair synopsis of what you were just saying, is that given the breadth of the patent, it doesn't matter whether 38 is integral with the completely in the ear component, completely in canal component, or not, because it is the

[00:28:06] Speaker 02:
patent allows the receiver to be part of the connector.

[00:28:11] Speaker 02:
And therefore, even if the receiver in the Shenib reference is part of the connector, it is attached to the handle 38, that's all part of the connector.

[00:28:24] Speaker 03:
That's totally correct, Your Honor.

[00:28:26] Speaker 03:
Think about how the person is putting their hearing aid into their ear canal.

[00:28:31] Speaker 03:
They usually are older, often.

[00:28:34] Speaker 03:
They can't see their ear canal.

[00:28:36] Speaker 03:
They're fitting it in based on feel.

[00:28:41] Speaker 03:
They grab hold of this sufficiently rigid connector portion, and they push it in and they pull it out.

[00:28:48] Speaker 03:
There's no teaching in the patent that says that it wouldn't be integral.

[00:28:53] Speaker 03:
I mean, of course it has to be integral.

[00:28:54] Speaker 03:
When you pull it out, you don't want to leave the speaker in the ear.

[00:28:57] Speaker 03:
You don't want to break it off.

[00:28:59] Speaker 03:
You want the whole thing to be sufficiently rigid but integral so that you can insert it

[00:29:04] Speaker 03:
and pull it out.

[00:29:06] Speaker 03:
The concept of having a portion that is sufficiently rigid for insertion and removal is what the claim covers in an earpiece auditory device.

[00:29:16] Speaker 03:
The board got it right.

[00:29:18] Speaker 03:
The record is fully supported.

[00:29:20] Speaker 03:
It satisfies the Administrative Procedures Act.

[00:29:23] Speaker 03:
We argue that it should be fully affirmed.

[00:29:26] Speaker 03:
Thank you.

[00:29:40] Speaker 04:
Thank you, Your Honors.

[00:29:42] Speaker 04:
Judge Bryson, I'd like to follow up, if I might, on the colloquy that we had, and I think you repeated with my colleague over here.

[00:29:48] Speaker 04:
If you would turn to page 182 of the appendix, Your Honor was focusing on item 48 of the Geneva reference, which I think was described as a nut, maybe.

[00:29:59] Speaker 04:
But it actually is not.

[00:30:01] Speaker 04:
If you look at page 182 of the joint appendix, 48 is the receiver assembly.

[00:30:07] Speaker 04:
That's what it is.

[00:30:09] Speaker 04:
It is not.

[00:30:10] Speaker 04:
and not, it is the receiver assembly.

[00:30:13] Speaker 04:
So what you have here is Sinead's connector is attached to the receiver assembly, but there is no other part of it attached to the external audio device.

[00:30:24] Speaker 02:
But then if you look at the material that your opposing counsel was referencing from the patent, it does seem that the connector can include the speaker

[00:30:39] Speaker 02:
No.

[00:30:40] Speaker 02:
I'm sorry.

[00:30:41] Speaker 02:
Connector includes speaker 13.

[00:30:44] Speaker 04:
But the claims of the patent distinguish between the, Your Honor, look at the claims of the patent.

[00:30:54] Speaker 04:
The claim distinguishes between the connector and the in canal component that involves the speaker.

[00:31:01] Speaker 04:
So the connector is different from, it is something that connects the two components together.

[00:31:06] Speaker 04:
Different from the speaker?

[00:31:08] Speaker 04:
It is connected to, but it is not the same as the speaker.

[00:31:13] Speaker 02:
But that seems to counter.

[00:31:14] Speaker 02:
Tell me why that sentence that the opposing council read.

[00:31:17] Speaker 04:
Which specific sentence are you referring to?

[00:31:20] Speaker 02:
The sentence is that column 13, lines 57 through 59.

[00:31:27] Speaker 02:
Moreover, as mentioned in at least one embodiment, connector 20 includes speaker 13, fastener 14, and or fastener 31.

[00:31:38] Speaker 04:
At least one embodiment, sector 20 includes speaker 13, faster, that is one embodiment.

[00:31:46] Speaker 04:
What I would emphasize, Your Honor, though, is that the connector has two ends to it.

[00:31:50] Speaker 04:
And to the extent that one end is connected to the speaker, the other end, because it's a connector, it has to connect to the behind-the-ear component.

[00:31:58] Speaker 04:
It still must have the other end connected to the behind-the-ear component.

[00:32:03] Speaker 04:
And that's what you don't have in the Chenille reference.

[00:32:05] Speaker 04:
You have a handle that is

[00:32:07] Speaker 04:
connected to the speaker, but you have no other end that's connected to anything.

[00:32:12] Speaker 02:
I'm not sure I understand.

[00:32:15] Speaker 02:
Chenille doesn't even show the behind the ear component.

[00:32:19] Speaker 02:
It just has the wires trailing off the edge of the page.

[00:32:23] Speaker 02:
Now presumably there is some kind of electronic device at the other end of the wires, and one can assume a behind the ear component would be a natural

[00:32:32] Speaker 02:
device to have there, right?

[00:32:34] Speaker 04:
At the other end of the wires, yes, but the handle, the handle, that is what the board... No, no, the handle is only a short component.

[00:32:41] Speaker 02:
If it's a portion of the connector, it's only a short component of it.

[00:32:47] Speaker 02:
And that's alright.

[00:32:48] Speaker 02:
I think we can all agree that the handle doesn't have to be the full length of the connector, right?

[00:32:54] Speaker 04:
Yes, but it does have to be part of the connector.

[00:32:58] Speaker 04:
And in the patent,

[00:32:59] Speaker 04:
We have the connector connecting two things, and you have the one end connecting to the speaker and the other end connecting to the other, but you don't have that with the handle.

[00:33:07] Speaker 04:
I know I'm out of time, but I might also just point out, Judge Wallach, on the threats reference, while we don't have the aesthetic issue, we do have another issue on the threats reference with regard to the motivation to combine that one in terms of excess vibration that would be produced in the boarding.

[00:33:23] Speaker 04:
You did not evaluate that argument.

[00:33:26] Speaker 04:
So, while we don't have aesthetics, we do have another argument on friends.