[00:00:00] Speaker 01:
We've already discussed a lot of this.

[00:00:04] Speaker 01:
Yes, Your Honor.

[00:00:07] Speaker 03:
Thank you, Your Honor.

[00:00:12] Speaker 03:
May it please the Court.

[00:00:14] Speaker 03:
The PTO's error in holding the 562 patent are even more straightforward in our view than the errors with regards to the first case, in large part because

[00:00:25] Speaker 03:
as we discussed earlier, only one reference, Geneva, was cited either by the requester or by the board as supplying the rigid connector element.

[00:00:34] Speaker 03:
And we've already discussed why in our view that reference does not, in fact, disclose that element of the patent.

[00:00:41] Speaker 03:
And in addition, the board erred in rejecting here was evidence of aesthetics.

[00:00:48] Speaker 03:
And in this case, the board essentially said because the patent

[00:00:52] Speaker 03:
would be, because a workable device could be made, therefore it doesn't matter that the handle or chenille would be obtrusive and visually conspicuous.

[00:01:05] Speaker 01:
Just as a practical matter, you were distinguishing between the two cases in part on the basis that Fretz was cited in one and not in the other.

[00:01:13] Speaker 01:
But as a practical matter, assuming this court were to affirm the first case based on Fretz,

[00:01:21] Speaker 01:
would really render the 562 patent pretty much valueless, wouldn't it?

[00:01:26] Speaker 01:
Because in any effort to assert that patent in litigation, the threats we would have held that threats invalidates essentially the same claim.

[00:01:36] Speaker 01:
Wouldn't that render the patent invalid?

[00:01:38] Speaker 03:
I don't want to give up on that.

[00:01:41] Speaker 03:
I'm not going to say that all of them.

[00:01:42] Speaker 01:
That would be a real problem for you, wouldn't it?

[00:01:44] Speaker 03:
It could be, Your Honor, but it would be a different patent, so I don't know that collateral estoppel would apply, if that's what Your Honor is getting at.

[00:01:51] Speaker 01:
I'm really thinking more of starry decisis, not necessarily collateral estoppel.

[00:01:54] Speaker 01:
Well, even... You would have said that with respect to a patent which is very similar, that French is an invalidating reference.

[00:02:02] Speaker 01:
That would be a substantial

[00:02:05] Speaker 03:
It may be similar and again we're getting down the field here but the planes are different and in fact there's a completely in canal component in the patent, the 562, there's only an in canal component in the other patents.

[00:02:18] Speaker 01:
I don't want to keep you on this, you're right, it's not squarely before us.

[00:02:24] Speaker 03:
Right, but in terms of the aesthetics I think that the

[00:02:28] Speaker 03:
Supreme Court and KSR says that the demands of the design community and the marketplace are always relevant in determining whether or not there's a motivation to combine.

[00:02:36] Speaker 03:
So if you have clear evidence, as we had here, that the design community and the marketplace is not going to point in the direction of a device that is obtrusive and visually conspicuous.

[00:02:50] Speaker 01:
Yeah, but what is it in the claims and the patents that preclude that?

[00:02:54] Speaker 03:
The claims do not necessarily recite that.

[00:02:57] Speaker 03:
But we're talking here about the motivation of one skilled in the art to use the prior art elements in the manner suggested to come up with the invention.

[00:03:06] Speaker 03:
And this invention can be and is designed to be used as a hearing aid.

[00:03:11] Speaker 03:
The patent itself, the specification, makes clear that hybrid devices of this sort, which have a behind-the-ear component and an in-canal component, one of the main points of those devices is to be inconspicuous.

[00:03:24] Speaker 01:
But your claims are broader than just a hearing aid.

[00:03:29] Speaker 01:
Your claims are directed to a variety of devices, some of which presumably people wouldn't have any concern at all about the conspicuousness of the handle.

[00:03:39] Speaker 03:
One designing a device of the sort set forth in the invention.

[00:03:43] Speaker 03:
is always going to want, because that device can be used as a hearing aid.

[00:03:48] Speaker 01:
But your claim is covering something like a police radio system, a security system, for example, where nobody's going to care about how the speaker is.

[00:03:58] Speaker 03:
Just even in those systems, the patent itself, in the first part of the specification, makes clear that security personnel, yes, they do not want people to know that they have those devices.

[00:04:05] Speaker 01:
Well, it depends, I guess.

[00:04:07] Speaker 03:
Some actually want people to know.

[00:04:09] Speaker 03:
But let me give you an analogy.

[00:04:11] Speaker 03:
Security people are out.

[00:04:12] Speaker 03:
Let me give you an analogy then.

[00:04:14] Speaker 03:
If you have evidence in a case that, for example, a patent combination of elements would be unsafe or would produce an unsafe device and would be unsafe to make, that would be clear evidence against the motivation to combine in that way, even if the claims themselves didn't reference safety, as most claims don't.

[00:04:33] Speaker 03:
The reason is because the design community and the marketplace value those things.

[00:04:38] Speaker 03:
and one skilled in the art looking to create a device is not going to look to create an unsafe device and that applies regardless of whether the claims themselves recite safety.

[00:04:48] Speaker 03:
It is a concern of the design community and the marketplace and those are concerns that the Supreme Court and KSR said were relevant.

[00:04:57] Speaker 03:
So we have a separate reason here in addition to the lack of a sufficiently rigid connector we also have

[00:05:05] Speaker 03:
The failure to effectively evaluate or meaningfully evaluate here wears evidence on the aesthetic drawbacks and the impetus that one skilled in the art would have not, that the motivation not to combine in this way.

[00:05:19] Speaker 03:
I would also like to mention the dependent claims of the 562 patent, which are again separate issues.

[00:05:25] Speaker 03:
There are claims in the patent that require disposable elements, including disposable components that are electrical like speakers and connectors.

[00:05:35] Speaker 03:
In invalidating the patent, the board essentially reasoned that because the prior art references didn't expressly state that their components could not be disposable, that suffice to deem them as disclosing the disposable components of the earware patent.

[00:05:56] Speaker 03:
We think the board got its burden backwards there.

[00:06:00] Speaker 03:
The board had the affirmative burden to show

[00:06:03] Speaker 03:
that the elements of HereWare's patents, including the disposable elements, were present in the prior art.

[00:06:10] Speaker 03:
That burden can't be discharged by pointing to the absence of anything in the prior art saying that the components could not be disposable.

[00:06:20] Speaker 03:
We have the examiner expressly stating in the record that the prior art references didn't say that their components could be disposable.

[00:06:32] Speaker 03:
You have that on pages 1320 and 1322 of the appendix.

[00:06:37] Speaker 03:
But yet, the board then says they recite disposable components because there's nothing in the reference that says that the components can't be disposable.

[00:06:48] Speaker 03:
The board needed to point to something in the reference that said that they could be.

[00:06:52] Speaker 03:
The only thing we have is references in Chenille that said that a couple of its components, the non-electrical, the acoustic coupler, and the mold,

[00:07:02] Speaker 03:
could be disposable.

[00:07:05] Speaker 03:
One skill in the art under the court's presence would take that as an understanding that other components that are recited in Shinib like the speaker would not be disposable.

[00:07:15] Speaker 03:
So that item is also missing from the patent, that disposable element which is recited in a number of the dependent claims.

[00:07:25] Speaker 03:
We also have dependent claims that recite custom earmuffs

[00:07:32] Speaker 03:
And we had the examiner holding, finding, that Sinead teaches a way.

[00:07:37] Speaker 03:
And the only two references we're dealing with in this patent that are relevant here are Writer and Sinead, which were the combination that the board said would be apparent to one skilled New York.

[00:07:49] Speaker 03:
Sinead, the examiner said, fought away from custom ear molds.

[00:07:54] Speaker 03:
And it did so because the reference itself says in it that

[00:08:00] Speaker 03:
They could cause pain.

[00:08:02] Speaker 03:
They could cause bleeding.

[00:08:03] Speaker 03:
And the board reached a different conclusion as a matter of law saying that the Chenib reference didn't teach away because it merely expressed a preference for non-custom ear molds.

[00:08:18] Speaker 03:
With respect, we think that Chenib expressed far more than just a preference for non-custom ear molds.

[00:08:25] Speaker 03:
It affirmatively discouraged one from using them.

[00:08:28] Speaker 03:
It talked about

[00:08:29] Speaker 03:
the fact that the custom ear molds are uncomfortable, that they have potential complications due to hematoma and bleeding, that the pieces cause, quote, discomfort, irritation, or even pain, and that it is therefore desirable, quote, to eliminate the need for custom pieces.

[00:08:46] Speaker 03:
The court's standard on teaching away is whether the reference would lead one skilled in the arts in a direction divergent from the path chosen by the inventor.

[00:08:57] Speaker 03:
Here we have a reference

[00:08:59] Speaker 03:
that expressly discourages one's skills in the arts from employing custom ear molds.

[00:09:04] Speaker 03:
So that's an additional reason we urge the court to, in effect, accept the examiner's finding on this point and not the board's and hold that the dependent claims that require custom ear molds.

[00:09:18] Speaker 00:
Let me take you back to your prior argument.

[00:09:20] Speaker 00:
You're not arguing that here work acted as its own lexicon in defining the word disposal.

[00:09:28] Speaker 03:
And defining the word disposable, we're not arguing that and we're not challenging the board's construction of that term, although we did below.

[00:09:37] Speaker 03:
As replaceable.

[00:09:39] Speaker 03:
As it's removed and replaced, yes.

[00:09:42] Speaker 03:
So it was still the board's burden in this case and the repressive's burden to identify them in the prior part where it said that their components can be removed and replaced.

[00:09:54] Speaker 03:
Yes, a whole entire

[00:09:56] Speaker 03:
hearing aid could be tossed out and you get a new one, but there's nothing in the references that talk about the components being disposable.

[00:10:04] Speaker 03:
In fact, in Sineb, it only talks about a couple of its components being disposable, and those are not the electrical components, such as the speaker, which is recited in humorous claims.

[00:10:13] Speaker 03:
So there's an absence in the prior art.

[00:10:15] Speaker 03:
There's simply a missing element in the prior art, and that's the disposable element.

[00:10:19] Speaker 03:
So that's an independent basis, even if one were to

[00:10:22] Speaker 03:
not accept the connector arguments, you'd still have this argument that applies to the dependent claims in the case.

[00:10:31] Speaker 03:
I might save the remainder of my time for rebuttal.

[00:10:34] Speaker 03:
Thank you, Your Honor.

[00:10:47] Speaker 02:
Good morning, Your Honors.

[00:10:48] Speaker 02:
Robert Stern again for

[00:10:50] Speaker 02:
Appellee Hemp with me at council table again.

[00:10:53] Speaker 02:
It's John Wright and Jason Eisenberg.

[00:10:56] Speaker 02:
I'd like to go to the factual arguments that my opposing counsel seems to be making again today before this court.

[00:11:08] Speaker 02:
First of all, the motivation to combine.

[00:11:11] Speaker 02:
Again, we are dealing with claims that are very broad.

[00:11:16] Speaker 02:
They recite functional language.

[00:11:18] Speaker 02:
There's no structure that

[00:11:20] Speaker 02:
is brought into the claims through this functional language.

[00:11:23] Speaker 02:
And as we know from the 562 patent, there's many different variations of structures that perform the functions that are recited.

[00:11:33] Speaker 02:
So the motivation to combine the two references here, we need to back up and understand what happened at the patent office.

[00:11:43] Speaker 02:
There were multiple combinations presented in our reexamination request.

[00:11:48] Speaker 02:
The examiner

[00:11:49] Speaker 02:
the examiner, actually three examiners at the central re-exam unit, wrote their own rejection.

[00:11:55] Speaker 02:
So the rejection we have before us today is a composite rejection made by the PTO.

[00:12:02] Speaker 02:
So the motivation to combine here is that we have Ryder and Shinneb, and they were combined together.

[00:12:12] Speaker 02:
They are both hearing aids.

[00:12:14] Speaker 02:
And the claims, as we talked about in the earlier argument,

[00:12:19] Speaker 02:
are directed to a broader class of product, which is an earpiece auditory device.

[00:12:27] Speaker 02:
So the record doesn't include anything that would not support under APA that the motivation to combine a factual decision by the board is not supported by substantial evidence.

[00:12:44] Speaker 02:
So with regard to disposable,

[00:12:48] Speaker 02:
The board looked at this carefully and devoted, I believe, five pages of their decision, of their 50 page decision to the issue of disposable.

[00:12:59] Speaker 02:
They did the claim construction as my co-counsel, I mean, my opposing council mentioned a minute ago.

[00:13:06] Speaker 02:
They did a claim construction.

[00:13:07] Speaker 02:
They were not their own lexicographer.

[00:13:09] Speaker 02:
The idea of disposable being to remove and replace.

[00:13:14] Speaker 02:
Which they've conceded.

[00:13:15] Speaker 02:
Which they've conceded.

[00:13:18] Speaker 02:
The Shinneb patent does not discourage the concept of things being replaced or removed, nor does the writer patent talk about the fact that you couldn't remove or replace anything.

[00:13:37] Speaker 02:
So the record is silent in that regard.

[00:13:40] Speaker 02:
But we do have claims in Shinneb that point specifically to certain items that can be replaced.

[00:13:47] Speaker 02:
removed and replaced.

[00:13:49] Speaker 02:
So the board recognized that they have to look at this record from the perspective of a skilled artisan.

[00:14:02] Speaker 02:
And there was declaratory evidence in the record from Dr. Thompson, for example, that further explained the concept of disposable.

[00:14:13] Speaker 02:
We are told that there's nothing in the record to support this.

[00:14:17] Speaker 02:
There's nothing in the record to say that it can't be removed and replaced.

[00:14:23] Speaker 02:
So we have a record here that is adequately supporting what the board did in this rejection.

[00:14:33] Speaker 02:
And the person of ordinary skill in the art, as the Supreme Court has stated, is not an automaton.

[00:14:40] Speaker 02:
I mean, they apply common sense to situations.

[00:14:46] Speaker 02:
in the claims in Shinneb, this concept of remove or replace.

[00:14:50] Speaker 02:
So the board was appropriate in saying that the claim limitation was met.

[00:14:56] Speaker 02:
And again, it's a functional limitation that's extremely broad.

[00:15:01] Speaker 00:
What interests me about that argument is that it seems to me that the question is really, is Shinneb repairable or not repairable?

[00:15:14] Speaker 00:
something can be, if a part of it is contemplated to be removed and replaced, then it looks like the inventor intends to allow it to be repaired.

[00:15:26] Speaker 00:
And if it can be repaired, then those various major components would seem to be substitutable.

[00:15:34] Speaker 02:
That's correct, Your Honor.

[00:15:35] Speaker 02:
And if you think about it here, you have earwax in your ear canal, no matter how careful your personal hygiene is.

[00:15:45] Speaker 02:
The SHINNIT patent recognizes not only in its disclosure but in its claims that you have to be able to replace certain components of the earbud.

[00:15:57] Speaker 02:
So that's why it's claimed specifically because in normal use of a hearing aid you're going to have to do this.

[00:16:05] Speaker 02:
Let's not forget the hearing aid world is very well developed.

[00:16:09] Speaker 02:
There's incredible amount of prior

[00:16:12] Speaker 02:
I mean, our original re-exam request was replete with all types of prior art combinations.

[00:16:17] Speaker 02:
And again, the examiner wrote one.

[00:16:20] Speaker 02:
So this is a very crowded field.

[00:16:22] Speaker 02:
This is a very broad claim.

[00:16:24] Speaker 02:
I mean, these claims cover everything, frankly, that's in the commercial world.

[00:16:29] Speaker 02:
So the idea that you can get a patent based on disposable.

[00:16:37] Speaker 02:
With respect to the custom ear molds,

[00:16:41] Speaker 02:
We're trying to argue teach away.

[00:16:45] Speaker 02:
Custom ear molds, as the patent, as Shinab recognizes, is a concept that's been around long before this patent came along.

[00:16:56] Speaker 02:
The idea of custom ear molds is the one where you insert it in the ear and it fits the anatomical features of your ear canal.

[00:17:06] Speaker 02:
Everyone's ear canal has a different

[00:17:10] Speaker 02:
anatomical configuration.

[00:17:12] Speaker 02:
So a custom ear mold is created so that it fits closer to the contours of your particular canal.

[00:17:23] Speaker 02:
And the reason it's done is because there's many different kinds of hearing loss.

[00:17:28] Speaker 02:
Some are due to low sounds not being heard well.

[00:17:31] Speaker 02:
Some are due to high sounds not being heard well.

[00:17:34] Speaker 02:
Some are due to the fact that the hearing loss is so severe that you really

[00:17:38] Speaker 02:
have to crank it up, if you will, on that little speaker so that the person can hear anything at all.

[00:17:44] Speaker 02:
So the concept of a custom ear mold is that when you put this, as it's called, CIC element completely in canal speaker element in the ear, it conforms more to the walls of the canal.

[00:17:58] Speaker 02:
But there is no teaching or suggestion we submit, and the board found it to be the same, that

[00:18:07] Speaker 02:
Shinob discourages the use of custom ear molds.

[00:18:10] Speaker 02:
It just discusses the issues with custom ear molds.

[00:18:14] Speaker 02:
To teach away is a major finding of a reference in a very crowded art.

[00:18:22] Speaker 02:
The idea of custom ear molds not being applied to the very broad claims that are contained in the 562 patent, again,

[00:18:34] Speaker 02:
ignores the fact that the claim limitations are functional and not structural.

[00:18:39] Speaker 02:
We have to look at these claims not only from a BRI perspective, the broadest reasonable interpretation, as was used by the board appropriately in doing the re-exam review, but we also have to look at it from the practical point of view of the public.

[00:18:55] Speaker 02:
And the reality is these claims are very broad, and they cover a large slot of hearing aid technology.

[00:19:03] Speaker 02:
So the idea that custom ear molds is not obvious in these claims almost belies common sense from the perspective of the public as to what the patent system should be allowed to do.

[00:19:20] Speaker 01:
takeaway from Shannon was that it was describing an acoustic coupler that was malleable and therefore it was not a fixed custom fitted device but rather it was a device sort of like earplugs which would fit the canal when you pushed it in.

[00:19:37] Speaker 01:
Is that fair to say?

[00:19:38] Speaker 01:
That is fair to say.

[00:19:40] Speaker 01:
When it's described, when Shenov is describing custom fitting, it is describing the disadvantages of custom fitting vis-a-vis its own idea of a malleable substance, right?

[00:19:52] Speaker 01:
Correct.

[00:19:53] Speaker 01:
That's correct.

[00:19:54] Speaker 02:
But it's not teaching away.

[00:19:55] Speaker 02:
It's just saying that these are some of the problems that custom ear molds have.

[00:19:59] Speaker 01:
And why ours is better.

[00:20:01] Speaker 02:
Right.

[00:20:02] Speaker 02:
And this is always done when you're drafting patent applications.

[00:20:05] Speaker 02:
You're always trying to argue that yours is better.

[00:20:09] Speaker 02:
But that doesn't mean you're excluding it from claim scope.

[00:20:12] Speaker 02:
That doesn't mean that you're teaching away in terms of the prior art.

[00:20:16] Speaker 01:
But your argument really isn't that Shenib teaches custom use so much as it is that custom, Shenib tells us that custom fitting was around for a long time, right?

[00:20:27] Speaker 01:
That's correct.

[00:20:28] Speaker 01:
You're not relying on Shenib as teaching that particular art.

[00:20:32] Speaker 02:
Now, and one last point and then I'll stop.

[00:20:36] Speaker 02:
We hear a lot about the

[00:20:39] Speaker 02:
disadvantages of Shinneb.

[00:20:44] Speaker 02:
It supposedly causes aesthetic problems.

[00:20:49] Speaker 02:
The design community would never embrace it.

[00:20:52] Speaker 02:
Well, we know that technological compatibility is the test for combination.

[00:20:57] Speaker 02:
Combination is a factual determination of the board.

[00:21:01] Speaker 02:
And this idea that it's somehow aesthetically unpleasing or it causes damage to the ear

[00:21:09] Speaker 02:
really doesn't go to the issue of the technological compatibility.

[00:21:14] Speaker 02:
We're not talking about bodily incorporation.

[00:21:16] Speaker 02:
That's not the law.

[00:21:17] Speaker 02:
We're talking NRA MUTEP type of concept incorporation.

[00:21:22] Speaker 02:
We submit that the combination was proper.

[00:21:25] Speaker 02:
It was a factual determination of the board that should be sustained.

[00:21:30] Speaker 02:
I have no more.

[00:21:32] Speaker 02:
Thank you.

[00:21:48] Speaker 03:
Thank you, Your Honor.

[00:21:49] Speaker 03:
I'd like to turn to the dependent claims, and then I have more time to go to the independent claims.

[00:21:54] Speaker 03:
On the disposable issue, my friend here has said that the Chenneb reference said there's nothing to say in the reference that it can't be removed and replaced.

[00:22:06] Speaker 03:
Again, that is not an affirmative teaching in the art that there are disposable components.

[00:22:12] Speaker 03:
There's a reference to a couple of elements of the Chenneb that are disposable or that he says can be.

[00:22:18] Speaker 03:
But that, again, there's nothing in the record that says that one's skills in the art would understand from that that other components could be made disposable.

[00:22:28] Speaker 03:
There is nothing in the prior art cited by the board.

[00:22:31] Speaker 03:
This is the Chenneb and the writer.

[00:22:32] Speaker 03:
There's nothing in the prior art cited by the board that teaches that element.

[00:22:37] Speaker 03:
The most they can say is it doesn't prohibit it.

[00:22:42] Speaker 03:
That is different from saying that the reference teaches that element.

[00:22:47] Speaker 03:
That element is missing from the cited prior art, and it is therefore not present in the prior art that was relied on by the board, and therefore cannot serve as the basis for an obviousness determination.

[00:22:59] Speaker 03:
The fact that there's nothing in the record that says that it can't be removed and replaced does not establish affirmatively that it can be removed and replaced.

[00:23:09] Speaker 03:
That's what our patent claims require.

[00:23:12] Speaker 01:
Now, was Siemens part of the record in this case?

[00:23:16] Speaker 03:
It's not one of the references that was relied on as the combination of the board.

[00:23:24] Speaker 01:
The argument that I think, and I don't have the brief right in front of me, but I thought that the appellees were arguing that Siemens as well as Shenib taught the combination of disposable.

[00:23:41] Speaker 03:
Not in this.

[00:23:42] Speaker 03:
Not in this particular, I think there was a reference to another one that was, I believe, Posen.

[00:23:50] Speaker 03:
That was a disposable element.

[00:23:53] Speaker 01:
Simmons was cited in the 1357 case.

[00:23:56] Speaker 01:
Right.

[00:23:57] Speaker 03:
But not for the disposable.

[00:23:59] Speaker 01:
Not for the disposable.

[00:24:00] Speaker 03:
My understanding, and I have to say, I don't want to say for sure, but my understanding is not that that reference is not cited as teaching a disposable element.

[00:24:11] Speaker 03:
reference to one of the elements being taught, which is, I believe, the posing element.

[00:24:17] Speaker 03:
The posing reference was cited as teaching one of the disposable elements here.

[00:24:24] Speaker 03:
And you can find that.

[00:24:27] Speaker 03:
I can have the reference, but I do not believe that Siemens was in that.

[00:24:37] Speaker 03:
If I might turn to the custom ear mold,

[00:24:40] Speaker 03:
Again, even if the court doesn't want to go so far as to say it teaches a way, the issue is whether or not one skilled in the art would understand and would be motivated to use custom earmolds from the combination that the board asserted here.

[00:24:54] Speaker 03:
And I would take issue with my opponent when he says that they are not relying on Chenille for teaching the custom earmolds.

[00:25:03] Speaker 03:
That is, they are relying on that.

[00:25:06] Speaker 03:
It's the combination of

[00:25:08] Speaker 03:
Sinead and Ryder that is taught is teaching this patent, and Sinead is therefore a part of that reference that is used to teach the custom ear molds.

[00:25:18] Speaker 03:
In fact, Sinead doesn't teach custom ear molds.

[00:25:20] Speaker 03:
It teaches a way, but at a bare minimum.

[00:25:23] Speaker 03:
It does not motivate one skilled in the art to come up with an invention combining Ryder with Sinead that uses custom ear molds.

[00:25:33] Speaker 03:
It doesn't do that.

[00:25:35] Speaker 03:
And you can find that at page 43 of the Joint Appendix where they were relying on Shneib as teaching the custom earmolds.

[00:25:42] Speaker 03:
So again, even if the court doesn't want to go so far as to say it's a teaching away, that doesn't matter because they still need, and they meaning the board and the requester, still need to show that one skill in the art would have been motivated from the cited references, the combination of Ryder and Shneib, to use custom earmolds.

[00:26:00] Speaker 03:
And then that motivation is absent from this record.

[00:26:04] Speaker 03:
So just to recap, we think that on the independent claims, there is nothing in the prior art that discloses the sufficiently rigid connector that can be used to remove and insert the in canal component that contains the speaker.

[00:26:18] Speaker 03:
Sinead does not have that component because while it may connect to the speaker and does connect to the speaker, there is no other end of Sinead's handle that is the connector or is attached to anything

[00:26:31] Speaker 03:
that is external, which is the connector part of this patent.

[00:26:35] Speaker 03:
So for that reason and for the reasons on the independent claims, we would urge the court to reverse the board's determination in both cases.

[00:26:43] Speaker 01:
Just real quickly before you sit down, if I could bring you back to the custom issue.

[00:26:49] Speaker 01:
And I think you addressed this, but I want to make sure I understand your argument.

[00:26:55] Speaker 01:
So assume that we conclude that Chenebe

[00:27:01] Speaker 01:
Let's assume we conclude that Chenneb does not favor custom earpieces.

[00:27:09] Speaker 01:
But it says that this has been the practice for years, to use custom earpieces.

[00:27:15] Speaker 01:
Isn't it fair to say that that teaches a person of skill in the art that custom is an option that is frequently employed, and it would be something that, if combined with

[00:27:30] Speaker 01:
something else would be a permissible combination, even though Chenneb itself is not advocating the use of custom for the reasons given.

[00:27:38] Speaker 03:
I would say that Chenneb is not advocating the use of custom.

[00:27:41] Speaker 01:
That's right, but even if it's not advocating that, isn't it teaching it in the sense that it's saying, this is in the prior art, this is all over the place, this has been done for years.

[00:27:50] Speaker 03:
When I advocate something, I'd like to think that I'm teaching it.

[00:27:53] Speaker 03:
And I don't think that the reference can both advocate not using them and teach someone

[00:27:59] Speaker 03:
to use them.

[00:28:01] Speaker 03:
I think that it's clear that Sinead, and your honor describes Sinead correctly, and I think maybe we all agree that Sinead was not a custom earmold and it was teaching you not to do that.

[00:28:09] Speaker 03:
So I don't see how that can be also relied on as teaching one to use something that it is advocating that you're not.

[00:28:16] Speaker 00:
There's a difference between teaching one not to and teaching one that there's an alternative, is there not?

[00:28:23] Speaker 00:
Well, if you don't have to.

[00:28:25] Speaker 03:
It's doing both in this case.

[00:28:27] Speaker 03:
It's teaching one not to, and it's telling you not to do it also.

[00:28:32] Speaker 03:
It says that it is desirable to eliminate the need for custom air pieces.

[00:28:40] Speaker 01:
Thank you, Your Honor.