[00:00:00] Speaker 01:
All right.

[00:00:01] Speaker 01:
We have four argued cases before the court this morning.

[00:00:05] Speaker 01:
The first case is 151295, Pilgrim Services versus Stryker Corporation.

[00:00:13] Speaker 01:
I understand that, Mr. Leach, you want to save five minutes for rebuttal, is that correct?

[00:00:19] Speaker 01:
That is correct, Your Honor.

[00:00:23] Speaker 01:
Okay.

[00:00:23] Speaker 01:
You may begin.

[00:00:25] Speaker 04:
Thank you, Your Honor.

[00:00:26] Speaker 04:
May it please the Court.

[00:00:27] Speaker 04:
My name is Garrett Leach.

[00:00:28] Speaker 04:
I represent the appellant, Phil Rahm, in this particular matter.

[00:00:32] Speaker 04:
This appeal relates to obviousness under 35 U.S.C.

[00:00:35] Speaker 04:
103.

[00:00:37] Speaker 03:
And Mr. Leach, speak up.

[00:00:40] Speaker 04:
Yes, Your Honor.

[00:00:41] Speaker 04:
Sorry about that.

[00:00:43] Speaker 04:
There's no dispute that the art of issue here falls into two separate categories.

[00:00:47] Speaker 04:
You've got hospital beds on the one hand, and controller area networks or cans on the other hand.

[00:00:53] Speaker 04:
It's also no dispute that the prior art never puts those two things together.

[00:00:57] Speaker 04:
The first company ever to do so was my client, Hill Prompt.

[00:01:01] Speaker 02:
So the real issue here... But if you take the art the way you described it, hospital beds, as opposed to medical devices.

[00:01:12] Speaker 02:
If you take it as medical devices, then it had been put together, I guess.

[00:01:15] Speaker 04:
medical devices and can have been put together yet.

[00:01:18] Speaker 02:
But if you define it just as hospital beds, then I guess... Correct.

[00:01:22] Speaker 04:
And that'll be part of what I'll get into is whether or not how we define those broad categories.

[00:01:28] Speaker 04:
Because in some instances you could define a category so broad that you could pretty much incorporate whatever you want into.

[00:01:34] Speaker 04:
And we think that's kind of what happened here, unfortunately.

[00:01:37] Speaker 03:
Would the lounge seat that a lot of people have in their TV room

[00:01:43] Speaker 03:
that has an operator and it goes back and sometimes even vibrates and has all those adjustments.

[00:01:52] Speaker 03:
That's not the same art, is that what you're saying?

[00:01:55] Speaker 04:
No, what I'm saying is medical devices on a whole have a lot of different arts in them.

[00:02:02] Speaker 04:
and can be very different from a catheter to a pacemaker to a hospital bed.

[00:02:07] Speaker 03:
That's why the medical device category doesn't seem as analogous as the classic lounge chair in everybody's TV room.

[00:02:18] Speaker 04:
And here the reason that these two references were combined is because, and really the only reason that the PTAP cites to is because it says CAN was used on other medical devices, not lounge chairs or beds or anything like that, but other medical devices such as an x-ray machine, or as I said, maybe a pacemaker, a catheter.

[00:02:38] Speaker 04:
There's such a broad range of things you could call medical devices.

[00:02:41] Speaker 03:
I mean the other... How does your controller functionally differ from the controller that operates the lounge chair?

[00:02:52] Speaker 03:
Functionally differ?

[00:02:53] Speaker 04:
I don't, I guess I don't want to get into factual issues.

[00:02:56] Speaker 04:
I'm not that aware of how it uses, how it works on a lounge chair or if there are even canned networks on lounge chairs.

[00:03:03] Speaker 04:
But there are certainly different aspects to a hospital bed, such as a scale, such as the different ways the bladders raise and lower the patient that I think would be very distinct from a lounge chair.

[00:03:16] Speaker 04:
These hospital beds, and my clients are here to tell you this, are very complex devices that require a lot of different functionality for the safety of the patients.

[00:03:26] Speaker 04:
And they have to, unlike other medical devices, oftentimes they have to run on their own.

[00:03:30] Speaker 04:
There's not somebody there using it, a doctor who's working it.

[00:03:34] Speaker 04:
It's a patient laying in a bed overnight.

[00:03:36] Speaker 04:
It has to adjust if things happen.

[00:03:39] Speaker 03:
That is my other question, if I may ask it while you and I are having a little dialogue.

[00:03:45] Speaker 03:
Sure.

[00:03:46] Speaker 03:
item called a controller area network.

[00:03:50] Speaker 03:
That's a fancy description for the way you operate your bed.

[00:03:55] Speaker 03:
That doesn't go down to the doctor's office or to the nurse's station, does it?

[00:04:01] Speaker 04:
So the controller area network does have functionality that goes back and sends messages.

[00:04:06] Speaker 04:
And that's part of the unique aspect of putting it into a hospital bed that had never been done before, is before you had a situation where you could

[00:04:17] Speaker 04:
implement and do things one at a time, like you could have one button that did the feet went up and down, another button that weighed the patient.

[00:04:26] Speaker 04:
This allows there to be interaction between the various modules on the bed and be able to replace modules without having to rebuild the whole bed.

[00:04:34] Speaker 04:
So it really was a revolutionary change in hospital beds, which may not sound that revolutionary, but to people that feel in hospitals it was important.

[00:04:43] Speaker 02:
Why wouldn't

[00:04:46] Speaker 02:
go and we may be getting a little bit ahead of ourselves in peaking at the second case, but why wouldn't such a person not naturally look to a reference such as Hines, the x-ray machine, but in particular with respect to the Hines functionality of moving the table in multiple directions, the table in which the patient sets her lives.

[00:05:09] Speaker 04:
Right.

[00:05:10] Speaker 02:
That sounds very familiar, similar to me to the functionality of moving a hospital bed up and down and so forth.

[00:05:20] Speaker 04:
That is one aspect of the hospital bed.

[00:05:23] Speaker 04:
And it uses con.

[00:05:25] Speaker 04:
Hines does use con.

[00:05:28] Speaker 04:
Yes, that is one aspect of Hines and certainly

[00:05:32] Speaker 04:
If that's all that a hospital bed was, it was just moving things up and down, then I think there'd be a little bit more merit to that argument.

[00:05:39] Speaker 04:
Now, the fact of the matter is, nobody still put those two together, and despite efforts even by our opponent's striker to do so, they had to go out and get that.

[00:05:47] Speaker 02:
But that's always true in an obvious case.

[00:05:49] Speaker 02:
That is in anticipation.

[00:05:50] Speaker 02:
I mean, it's obvious that you obviously have a situation where no one's actually put them together.

[00:05:55] Speaker 02:
would have been obvious to a person to do so.

[00:05:58] Speaker 04:
Correct.

[00:05:59] Speaker 04:
Correct.

[00:05:59] Speaker 04:
And there, as I said, in a hospital bed, you've got many other modules other than just raising and lowering.

[00:06:04] Speaker 04:
I mean, you do have the articulation, which is going to be very different from the x-ray device.

[00:06:08] Speaker 04:
And really, if you look at Hines, what it was focused on was this wireless transmission.

[00:06:11] Speaker 04:
So someone looking at that reference wouldn't say,

[00:06:14] Speaker 04:
wow, I need to put CAN into a hospital bed to work on all these other functionality.

[00:06:18] Speaker 04:
They'd say maybe if I wanted to do something wireless, that would be the reason I would choose that, or I'd choose the wireless functionality.

[00:06:25] Speaker 01:
When we're talking about a motivation to combine, though, I mean, the fact that things weren't put in a hospital bed before is because nobody ever used a hospital bed to do anything other than possibly sit up.

[00:06:38] Speaker 01:
In other words, this is a new thing of having all this functionality in a hospital bed.

[00:06:43] Speaker 01:
But that doesn't necessarily mean that there wouldn't be a motivation to look

[00:06:49] Speaker 01:
to the prior art to see what systems were used to implement these new kinds of things that you want to implement in the bed.

[00:06:57] Speaker 04:
Let me just be clear.

[00:06:59] Speaker 04:
The functionality was already there.

[00:07:01] Speaker 04:
They were using old network systems to use that functionality that was less useful.

[00:07:06] Speaker 04:
And it was the invention of putting the can into the bed.

[00:07:09] Speaker 04:
So it wasn't functionality didn't come along.

[00:07:11] Speaker 04:
They said, how are we going to do this?

[00:07:12] Speaker 03:
It was already existing.

[00:07:13] Speaker 03:
The hospital beds before this.

[00:07:17] Speaker 03:
in this invention had all that functionality that this invention assumes, right?

[00:07:24] Speaker 03:
There's nothing new in terms of being able to bring the backup together.

[00:07:28] Speaker 03:
Correct.

[00:07:28] Speaker 03:
That claims do not add anything.

[00:07:29] Speaker 03:
There's nothing new about weighing the patient, although it may have been done on a scale

[00:07:35] Speaker 03:
that was not part of the bed.

[00:07:37] Speaker 03:
So what is new in Germany?

[00:07:42] Speaker 04:
It was the combination.

[00:07:43] Speaker 04:
As this Court has found, almost every invention is a combination of all things.

[00:07:47] Speaker 04:
I mean, we're not, yes, am I saying that we came up with some brand new light bulb or something?

[00:07:53] Speaker 04:
No.

[00:07:54] Speaker 04:
It certainly is a combination of two things, but it was a combination nobody had ever done and nobody had ever thought to do.

[00:08:00] Speaker 04:
And in fact,

[00:08:01] Speaker 03:
Part of what the PCAP has to do... Combination of the BED known functionality with this controller area network, but wasn't the functionality of the controller area network already known?

[00:08:16] Speaker 04:
It was for certain devices, but not for these types of devices.

[00:08:19] Speaker 04:
That's correct.

[00:08:20] Speaker 01:
But you don't dispute that it would be appropriate to conclude that a person might look at the other devices in terms of when deciding what kind of network to use?

[00:08:34] Speaker 04:
Correct.

[00:08:34] Speaker 04:
I don't dispute that they could look at that.

[00:08:36] Speaker 04:
And really, this isn't as much a motivation to combine question, in my mind, as it is would one of SkillMeR have been able to put a can onto a hospital bed?

[00:08:46] Speaker 04:
If they looked at that, would they have been able to do that?

[00:08:48] Speaker 04:
would they have been able to implement that.

[00:08:50] Speaker 04:
And that's precisely the question that the PTAB looked at in deciding this issue.

[00:08:54] Speaker 04:
This is it.

[00:08:55] Speaker 01:
So you're saying it goes to reasonable expectation of success?

[00:08:58] Speaker 04:
Correct.

[00:08:59] Speaker 04:
Yes.

[00:08:59] Speaker 04:
And whether or not, or whether they could have done it was really the question.

[00:09:04] Speaker 04:
And this is addressed in the PTAB's opinion.

[00:09:06] Speaker 04:
I think this entire appeal on this particular case comes down to these two pages of the opinion, which are A221 and 222, where they specifically set out a hypothetical person had knowledge to implement

[00:09:18] Speaker 04:
can in a hospital bed and said right off the front, the question in dispute is whether the hypothetical person would have the knowledge to implement can in a hospital bed.

[00:09:27] Speaker 04:
That's the question we're faced with here today.

[00:09:29] Speaker 04:
When they addressed that, they went through the evidence and the only evidence that they cited to was the fact that it had been done on other medical devices like an x-ray machine.

[00:09:38] Speaker 04:
They didn't have any other evidence.

[00:09:40] Speaker 04:
In fact,

[00:09:41] Speaker 04:
When pushed, and we pointed out evidence where Stryker had to use an expert to do this, they said, well, that's OK.

[00:09:48] Speaker 04:
One of Skill in the Art can go consult with experts, which we know is not the law.

[00:09:52] Speaker 04:
That's not a person of Skill in the Art.

[00:09:54] Speaker 04:
A person of Skill in the Art has the knowledge they have.

[00:09:56] Speaker 01:
Certainly, they can go retreat.

[00:09:59] Speaker 01:
I mean, at least your friend on the other side is going to argue that that's not exactly what the board said.

[00:10:04] Speaker 01:
What the board said is the fact that he consulted with the expert doesn't change what the normal level of skill in the art is, the fact that a particular person may have consulted with an expert.

[00:10:16] Speaker 01:
Because the board concluded that they did it just to save money and time, right?

[00:10:20] Speaker 04:
That's what the board concluded, which I have dispute with.

[00:10:23] Speaker 04:
That's really what it says.

[00:10:24] Speaker 04:
It was more of a marketing piece by the company.

[00:10:27] Speaker 04:
More importantly, what the board actually said was that Mr. Hayes' consultant with a design firm with can expertise

[00:10:34] Speaker 04:
and this is at the end of the quote, is a source of the hypothetical person's knowledge.

[00:10:40] Speaker 02:
You're reading at 221, 222?

[00:10:42] Speaker 02:
At the bottom of 222, your honor.

[00:10:44] Speaker 02:
Bottom of 222, thanks.

[00:10:45] Speaker 04:
Where it says, this is a source of the hypothetical person's knowledge.

[00:10:49] Speaker 04:
To me, that would be new law.

[00:10:50] Speaker 04:
You can go see an expert as a source of the hypothetical person's knowledge.

[00:10:54] Speaker 04:
You can fill in any hole in it.

[00:10:56] Speaker 04:
Really, we might as well not even have a person still in the article.

[00:10:58] Speaker 03:
You're confusing me just a little bit.

[00:11:04] Speaker 03:
I thought that the concept of obviousness asks the question, would one of ordinary skill in the art have conceived of this idea, this invention?

[00:11:18] Speaker 03:
I didn't think it asked the question, could that individual have been able to successfully implement the invention for manufacturing purposes?

[00:11:30] Speaker 04:
Am I correct?

[00:11:34] Speaker 04:
The real question though in the analysis is whether, when you look to see whether they conceived of it or could have conceived of it, would they have been able to do it?

[00:11:42] Speaker 03:
I mean, it's... Well, that's a separate question, isn't it?

[00:11:45] Speaker 03:
Would they have actually been known where to put the screwdriver and...

[00:11:49] Speaker 03:
how many fuses it would need.

[00:11:52] Speaker 03:
Isn't that a separate question?

[00:11:53] Speaker 04:
I think that's not the detail I'm looking at.

[00:11:55] Speaker 04:
I'm saying just even in general how to put these two things together.

[00:11:59] Speaker 04:
If they're unable to do that, I think that gets to the question of whether they could have conceived of it because they wouldn't think to do it if

[00:12:06] Speaker 04:
they wouldn't be able to implement it.

[00:12:07] Speaker 04:
And there must be some evidence to show you can just simply find references over here, find references over here, and that somebody would have just magically known how to do that.

[00:12:16] Speaker 04:
Now in hindsight, great, we have hospital beds.

[00:12:18] Speaker 04:
We've had them for 15 years that have can on them.

[00:12:20] Speaker 04:
But that's because our client came up with a way to do that.

[00:12:23] Speaker 04:
And now after spending all the money on prosecution, development, enforcement, we've got the PTAB without evidence coming in and saying, sorry, you don't have a patent anymore.

[00:12:31] Speaker 02:
But in terms of what the person of ordinary skill or anyone that's implementing the invention had to know how to do, we look to the claims, right?

[00:12:44] Speaker 02:
And the claims, if you look at claim one, that's as complicated as the actual Hill Rom hospital bed may be.

[00:12:52] Speaker 02:
Claim one is anything but complicated.

[00:12:54] Speaker 02:
It just says a canned system

[00:12:57] Speaker 02:
with a bed comprising a mattress having one bladder and a pressure control system which operates to inflate and deflate the bladder and a can system.

[00:13:08] Speaker 02:
So, and the dependent claims don't add too much more.

[00:13:12] Speaker 02:
So you've really just got, all you need is a person of ordinary skill could come up with using a can to inflate the bladder to move the mattress, right?

[00:13:22] Speaker 02:
And that would be enough to enable that claim.

[00:13:25] Speaker 04:
Well, and I think it's a question of enablement versus ability to put them together.

[00:13:30] Speaker 04:
Just because the claim is broad doesn't mean that someone of skill in the art would have known how to implement the two together.

[00:13:36] Speaker 02:
No, but in terms of what the person of skill in the art would have had to know how to implement, that's all they would have had to know how to implement, right?

[00:13:44] Speaker 04:
Well, they would have to go to the specification, figure out based on the disclosure and the specification how to do that implementation.

[00:13:50] Speaker 04:
But yes, they only have to know

[00:13:52] Speaker 04:
how to implement those two things as described in the claim.

[00:13:55] Speaker 04:
My point is the specification then teaches you how to do that in a hospital bed.

[00:14:00] Speaker 04:
So yes, it looks like hospital bed can put those together, but you still have to be able to do that.

[00:14:04] Speaker 04:
And even though the claim doesn't teach you per se how to do that, it's a broader claim, the specification does.

[00:14:10] Speaker 04:
I've gone, we'll pass my time.

[00:14:12] Speaker 01:
We'll restore three minutes of rebuttal and we'll give your opponent an extra two minutes.

[00:14:18] Speaker 01:
Thank you.

[00:14:18] Speaker 03:
Aren't you glad you prepared an argument for us?

[00:14:22] Speaker 03:
I am.

[00:14:28] Speaker 00:
May it please the court, Robert Sorrento on behalf of Stryker Corporation.

[00:14:33] Speaker 00:
The PTAP's rejection of all claims and reexamination of the 390 patent as obvious should be affirmed.

[00:14:40] Speaker 00:
In reaching its decision, the PTAC made factual determinations regarding the level of ordinary skill in the art, whether one of skill in the art could implement, and whether there was a reasonable expectation of success in implementing CAN on a hospital bed.

[00:14:54] Speaker 00:
Substantial evidence supports these factual findings.

[00:14:56] Speaker 00:
Before I turn to those specific findings, I'd like to kind of address some of the issues that came up during opening argument here.

[00:15:06] Speaker 00:
Hilram made the point on opening argument that the priority that existed at the time was hospital beds and CAN, medical devices with CAN.

[00:15:14] Speaker 00:
And that's somewhat imprecise in the sense that it was hospital beds with networks existed and CAN.

[00:15:23] Speaker 00:
And all of the functionality that Hilram described during the opening about the ability to control modules on the bed

[00:15:32] Speaker 00:
That was in the prior art.

[00:15:34] Speaker 00:
That came from Cummer.

[00:15:36] Speaker 00:
Cummer is one of the primary references.

[00:15:39] Speaker 00:
That's in the art already.

[00:15:41] Speaker 00:
Can is just another type of network to use on a bed.

[00:15:45] Speaker 00:
So if you think about it, Judge Bryson, you raised the issue of the claims.

[00:15:49] Speaker 00:
The claims are directed towards a hospital bed with can.

[00:15:56] Speaker 00:
What existed prior to this patent were hospital beds with networks.

[00:16:01] Speaker 02:
and medical devices across various... National slave type networks, is that basically what the prior art was?

[00:16:08] Speaker 00:
Well actually the prior art was a peer-to-peer network, I believe.

[00:16:17] Speaker 02:
Travis, which is more of an issue, I guess, in the second case.

[00:16:21] Speaker 02:
But nonetheless, it's a prior that's referenced in this case.

[00:16:25] Speaker 02:
So remind me what type of network Travis had.

[00:16:31] Speaker 00:
Travis was a peer-to-peer network.

[00:16:33] Speaker 02:
No, I didn't think so.

[00:16:35] Speaker 02:
I think that was the problem in the other case.

[00:16:37] Speaker 00:
Exactly.

[00:16:37] Speaker 02:
I'm sorry.

[00:16:38] Speaker 02:
But it had some kind of network, a master-slave type of network, right?

[00:16:42] Speaker 00:
It had functionality.

[00:16:43] Speaker 00:
Right.

[00:16:45] Speaker 00:
It had the functionality to control modules and that's what existed at the time.

[00:16:52] Speaker 00:
as the PTAP found it would have been obvious for one of skill in the art here to look to CAN and its use in other medical devices and implement it on a hospital bed.

[00:17:02] Speaker 01:
Part of my problem with your argument is and with what the board did is I think that your opponent points out pretty clearly a series of errors by the board.

[00:17:13] Speaker 01:
Like it's pretty clear the board shifted the burden in many ways and required

[00:17:21] Speaker 01:
opponent to disprove points with respect to obvious net, rather than the other way around.

[00:17:28] Speaker 01:
And I also don't see this as a simple substitution case, which the board tried to peg this into.

[00:17:36] Speaker 01:
So the question is, despite those errors, is there a way to say that the board ultimately did do a proper motivation to combine analysis?

[00:17:46] Speaker 01:
And because simply saying that because there was a network,

[00:17:51] Speaker 01:
And because CAN happens to have also been a network that was used in other things, that that's enough.

[00:17:57] Speaker 01:
I don't think that's enough for purposes of the board finding a motivation to combine.

[00:18:03] Speaker 01:
So why don't you point to me where you think the board actually found the motivation to combine.

[00:18:29] Speaker 00:
On pages A207 of the appendix through... It goes on for quite a ways.

[00:18:47] Speaker 00:
It goes through A215.

[00:18:49] Speaker 00:
That's where the board is talking about combining cummer with

[00:18:59] Speaker 00:
of Cannes publications and that's where the motivation combined.

[00:19:02] Speaker 00:
As the board found, the motivation doesn't have to come from the references themselves, it can come from the heart.

[00:19:13] Speaker 00:
And when you looked at what was available to one of skill in the arts, you had a hospital bed with the networks and you had Cannes.

[00:19:24] Speaker 00:
And in trying to address the issues of

[00:19:32] Speaker 00:
problems of what existed at the time can provide solutions to those problems.

[00:19:39] Speaker 01:
But you're trying to defend the extent to which the board relied on a simple substitution theory.

[00:19:46] Speaker 01:
And given the complexities of what's at issue here, I don't think that's enough.

[00:19:52] Speaker 01:
And so my question is, where did the board then say beyond the question of

[00:19:57] Speaker 01:
Well, there's a network here, and there's a can here, and we'll just put one on top of the other.

[00:20:02] Speaker 01:
Where did the board actually find a motivation to combine the two that would have taken the prior system, the prior art system, Kummer, with a network and combined it with the can?

[00:20:21] Speaker 00:
Well, the board looked to the declarations of Stryker, Mr.

[00:20:27] Speaker 00:
Mr. Hayes and Professor Colkin, where they outlined that implementing CAN on a hospital bed had the same types of routine design choices that one would face in implementing any network on a bed.

[00:20:47] Speaker 00:
And Judge O'Malley, I guess I would have to disagree with you that there was a shifting of the burden.

[00:20:53] Speaker 00:
I think if you look at what happened

[00:20:57] Speaker 00:
is the PTO established a prima facie case of obviousness and then this burden shifted to Hillrom to rebut that and the PTAB found that that was not persuasive.

[00:21:13] Speaker 01:
There's no burden shifting in this context anymore so let's forget about burden shifting.

[00:21:20] Speaker 01:
But the problem is that what you're saying is that the PTAB felt that there was

[00:21:28] Speaker 01:
something that would just sort of inspire someone to make a simple substitution.

[00:21:33] Speaker 01:
But then even the pages that you point to at 212, there's a lot of negative language.

[00:21:38] Speaker 01:
In other words, basically saying that Hilram didn't convince them otherwise, didn't convince them that it couldn't happen.

[00:21:45] Speaker 01:
And what I'm trying to find is where did the PTAF point to evidence saying that the prior art would indicate that it could?

[00:22:01] Speaker 03:
Before you answer that, you have to challenge the premise, don't you, that prior art has to articulate a possibility that that particular combination could be done?

[00:22:14] Speaker 00:
Yeah, the motivation to combine doesn't have to come from the references.

[00:22:17] Speaker 00:
I think that's your point.

[00:22:18] Speaker 01:
But that's my point.

[00:22:19] Speaker 01:
Where does it come from?

[00:22:23] Speaker 02:
Isn't the place where the board addresses this really at the top of 210, where the board says, as argued by Stryker, there's considerable evidence that the advantages of CAN have been recognized in the medical device industry.

[00:22:40] Speaker 02:
And then they say, well, OK, they cite Kahn's, which is this table that moves by Kahn.

[00:22:47] Speaker 02:
Which is a patient support, actually.

[00:22:48] Speaker 02:
And then they say, based on findings

[00:22:51] Speaker 02:
made by the examiner that Khan is known to have the advantages of speed, reliability, and modularity and therefore, given those circumstances, they conclude that... That's precisely right.

[00:23:03] Speaker 02:
...commands itself to the person of ordinary skill in the art.

[00:23:08] Speaker 02:
I mean, that seemed to be as close as the board got in discussing that point.

[00:23:14] Speaker 00:
Yeah, so if you look at...

[00:23:15] Speaker 00:
Where CAN had been implemented in other industries.

[00:23:20] Speaker 00:
It was implemented in an x-ray machine.

[00:23:22] Speaker 00:
It had been implemented in an endoscopy suite.

[00:23:25] Speaker 00:
Zeltwanger talks about CAN had been implemented in medical devices.

[00:23:32] Speaker 00:
Edgeburger, same thing.

[00:23:37] Speaker 00:
I think one of Skill in the Art would recognize that through these applications and other medical devices, the advantages of using CAN in a hospital bed would be appropriate.

[00:23:49] Speaker 00:
And that's where the motivation comes from.

[00:24:01] Speaker 00:
So I'd like to talk about this issue of

[00:24:05] Speaker 00:
the attribution that somehow the knowledge of the design firm is attributed to one of skill in the art.

[00:24:14] Speaker 00:
And I think it's important to look at the treatment of what happens.

[00:24:19] Speaker 00:
So when the PTAP reached its conclusion about the level of skill in the art, the PTAP, in looking at the environmental design factors, did not consider the knowledge of the third party firm in determining that level.

[00:24:35] Speaker 00:
The PTAB did not use or did not conceal the knowledge of the third party firm when determining whether the person of skill in the art could implement CAN on a bed.

[00:24:46] Speaker 00:
And this whole issue of the PTAB considering the knowledge of the third party firm came up when evaluating and rejecting an argument that Hillrahm made

[00:24:57] Speaker 00:
that Mr. Hayes couldn't do it.

[00:24:59] Speaker 00:
But the focus shouldn't be on Mr. Hayes.

[00:25:01] Speaker 00:
The focus should be on whether one of skill and the art could implement.

[00:25:06] Speaker 01:
But you'll concede that the reference to the Hayes declaration was actually a bit of a misstatement.

[00:25:12] Speaker 01:
I mean, it doesn't actually say that the reason he consulted the third party was to save time and money.

[00:25:18] Speaker 00:
He doesn't say it directly, but I think that's a reasonable conclusion to draw from it.

[00:25:22] Speaker 00:
He doesn't say, the words do not say we hired a third party firm to save time and money.

[00:25:29] Speaker 00:
I think he said that was a result of it, and I think that's a reasonable conclusion.

[00:25:33] Speaker 00:
I think the fact that design firms existed at the time shows how ubiquitous Cannes was at the time.

[00:25:40] Speaker 00:
Interestingly enough, I think what's

[00:25:44] Speaker 00:
never points out is what specific knowledge was transferred from this third party firm to Mr. Hayes or then to a hypothetical person in the art that they would have needed to implement CAN.

[00:25:58] Speaker 00:
I think the record evidence is pretty clear from the declarants from Stryker and particularly Mr. Copeman and Mr. Hayes that implementing CAN on a hospital bed faced the same kinds of routine design choices implementing any type of network on a bed.

[00:26:14] Speaker 01:
I mean isn't your point really that Mr. Hayes wasn't really used by the board as a substitute for the person of skill in the office?

[00:26:25] Speaker 00:
Was not.

[00:26:26] Speaker 00:
You used it precisely.

[00:26:27] Speaker 03:
Would you be of the view that CAN, the Controller Area Network, was in existence

[00:26:43] Speaker 03:
both in concept and in practical use, because it was certainly in use in the x-ray field, and that the hospital bed functionality was also in existence.

[00:26:56] Speaker 03:
Now, it would appear that putting those two things together is what they are standing on as their invention, and it would appear that nobody else had done that.

[00:27:11] Speaker 03:
Are you of the view that somebody could come up with a improvement, let's call it an improvement, without being able to, that might be a good market tool that might in fact have a big market, without it actually qualifying as a patent?

[00:27:35] Speaker 03:
Is that what your position is?

[00:27:38] Speaker 03:
It seems to me they come up with a pretty good improvement.

[00:27:41] Speaker 00:
I don't think what they've come up with is inventive.

[00:27:45] Speaker 00:
It's taking the use of CAN, which was used in a variety of non-medical and medical industries for a number of years for precisely the same reasons it's being used in a hospital bed, and they stuck it on a hospital bed.

[00:28:00] Speaker 03:
But that was an improvement over what had previously been available on a hospital bed.

[00:28:05] Speaker 03:
But it's not an invention.

[00:28:06] Speaker 03:
Why not?

[00:28:13] Speaker 03:
Why doesn't it qualify as an invention?

[00:28:15] Speaker 03:
That's the issue before.

[00:28:16] Speaker 03:
Exactly, because it would have been obvious.

[00:28:19] Speaker 01:
But that's my problem.

[00:28:21] Speaker 01:
If we keep coming back around, it's not an invention because it would have been obvious.

[00:28:24] Speaker 01:
It's obvious because it would have been obvious.

[00:28:25] Speaker 01:
I mean, when you say just sticking it on a hospital bed, there's nothing in the record that I can see that the board points to to show that there would have been a reasonable expectation of success with the use of pain in a hospital bed.

[00:28:42] Speaker 00:
Well, I think there's plenty of evidence in the record.

[00:28:45] Speaker 00:
First of all, Hillrom's declarants never point to any unexpected result of using CAN.

[00:28:53] Speaker 00:
The fact that CAN was implemented in an x-ray machine and an endoscopy suite in other medical devices demonstrates that it's predictable in terms of the way it works.

[00:29:07] Speaker 00:
So there is plenty of record evidence, I think, to establish that there was a reasonable expectation.

[00:29:12] Speaker 03:
You're arguing that because they were successful in doing it, they must have had a reasonable expectation.

[00:29:18] Speaker 00:
No, I think if you look very specifically at the Hispana Declaration and the Dixon Declaration, what they talked about is that it was hard to do, that it took a lot of work.

[00:29:33] Speaker 00:
That's not invention.

[00:29:35] Speaker 00:
That's just routine engineering work that happens every day.

[00:29:39] Speaker 00:
When you look at the reasonable expectation of success,

[00:29:52] Speaker 00:
multiple groups had implemented CAN in multiple medical applications.

[00:29:56] Speaker 00:
The fact that they independently, these were not all of the same group, the fact that independent groups with independent medical devices had implemented CAN and that was in the ARC and one of skill in the ARC knew that.

[00:30:11] Speaker 00:
So the fact that

[00:30:14] Speaker 00:
that has been implemented in other medical devices.

[00:30:17] Speaker 00:
There's nothing in the records that say you can't use this in a hospital bed.

[00:30:21] Speaker 00:
And there was nothing in the prior art that established that using kin in any of these other applications yielded any unpredictable results.

[00:30:36] Speaker 00:
Looks like my time is pretty close to ending.

[00:30:38] Speaker 01:
Yes.

[00:30:42] Speaker 01:
Anything more?

[00:30:43] Speaker ?:
Okay.

[00:30:54] Speaker 01:
Okay.

[00:30:54] Speaker 04:
Thank you, your honor.

[00:30:56] Speaker 04:
So the can was implemented on automobiles at the time of this prior.

[00:31:02] Speaker 04:
An automobile, I think everybody agrees, is a wheel transport.

[00:31:06] Speaker 04:
A bed is a wheel transport.

[00:31:07] Speaker 04:
Under their argument, we could have gone that route instead of the medical device route.

[00:31:10] Speaker 04:
I mean, that's the problem with this argument is the motivation combined here

[00:31:14] Speaker 04:
is just create a broad category, say somebody did it elsewhere in that broad category, therefore, we know how to do it here.

[00:31:21] Speaker 04:
I think the question was asked, where did the board find this motivation to combine?

[00:31:25] Speaker 04:
Well, the answer was from the Hayes declaration.

[00:31:27] Speaker 04:
And then there was a question whether or not he was one of Skill in the Art.

[00:31:30] Speaker 04:
It's undisputed.

[00:31:31] Speaker 04:
We raised the issue that he is more than Skill in the Art, that Hayes actually is higher level than Skill in the Art.

[00:31:37] Speaker 04:
And what did he do?

[00:31:38] Speaker 04:
He went out and hired experts to do this.

[00:31:40] Speaker 04:
And we can question whether or not he did that to save time or money.

[00:31:43] Speaker 04:
But the fact of the matter is, he went out and hired experts to do this, exactly what my client did as part of their invention.

[00:31:49] Speaker 01:
What about the portion of the record, though, that Judge Bryce incited to on page 210, where the board went through the fact that in the prior arts, there was not only use of CAN in medical devices, but there were

[00:32:06] Speaker 01:
There were several articles and other teachings that talked about how it can function and how designers can implement the technology.

[00:32:16] Speaker 04:
If you look at those articles, closer, Your Honor, what you'll see

[00:32:20] Speaker 04:
is just very cursory indications that they could be used in the medical field.

[00:32:24] Speaker 04:
Some of them even say they're still being developed for the medical field.

[00:32:28] Speaker 04:
Not one of those references mentions anything about a hospital bed or anything close to what a hospital bed would be.

[00:32:34] Speaker 04:
And so it's really the same argument that they then fall back on at page 821 and 222 when they make this conclusion that they could have combined this.

[00:32:44] Speaker 04:
And again, when you look at those two pages,

[00:32:47] Speaker 04:
The only evidence is they're all in this broad medical device category, and then since we can't find anything else, we're going to turn the tables and now have Hillrom explain to us why this would be any different on a hospital bed.

[00:33:01] Speaker 03:
Well, I thought the board had gone to KSR for guidance.

[00:33:08] Speaker 03:
on this very question.

[00:33:09] Speaker 03:
If you go back to 2007, the board set bases for combining Cummer with Cannes publications.

[00:33:19] Speaker 03:
Correct.

[00:33:20] Speaker 03:
Right?

[00:33:21] Speaker 03:
And what the board said was that they were quoting from KSR,

[00:33:28] Speaker 03:
The court held that the combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results, yes.

[00:33:38] Speaker 03:
And then KSR goes on to say, to make this determination, the court explained it will be necessary to look to interrelated teachings of multiple patents and the background knowledge possessed by a person having ordinary skill in the art

[00:33:54] Speaker 03:
all in order to determine whether there was an apparent reason to combine the known elements in the fashion claimed by the patented issue.

[00:34:03] Speaker 03:
Well, the apparent reason was this particular group, presumably of skill in the art, looked at the technology of CAN and they looked at the hospital bed and they said, well, what would happen if we plugged CAN into a hospital bed?

[00:34:22] Speaker 03:
Isn't that what KSR is really asking us?

[00:34:26] Speaker 04:
KSR, that is the law in KSR.

[00:34:29] Speaker 04:
The problem is you actually have to have evidence to show that.

[00:34:31] Speaker 04:
KSR also goes on to say, unless its actual application is beyond a person's skill in the arts ability.

[00:34:38] Speaker 04:
And it's our position that they, the PTAP had the burden to show that it was.

[00:34:44] Speaker 04:
And we, I think, presented evidence of somebody with more than skill in the arts, at Hays, who couldn't implement it.

[00:34:51] Speaker 04:
They didn't provide any evidence that someone actually could put these two things together.

[00:34:55] Speaker 04:
So while Your Honor's recitation of KSR is certainly correct and is the law that we follow, you need to do more than just simply cite the case if you're the KSR.

[00:35:05] Speaker 04:
You must point to evidence.

[00:35:06] Speaker 04:
You must point to this.

[00:35:07] Speaker 04:
They very much belittle, oh, you just stick it.

[00:35:10] Speaker 04:
I think he even says just stick it on.

[00:35:12] Speaker 04:
It's not just sticking it on.

[00:35:13] Speaker 04:
This took months.

[00:35:14] Speaker 03:
If not years.

[00:35:15] Speaker 03:
We don't review opinions.

[00:35:16] Speaker 03:
We review judgments.

[00:35:18] Speaker 03:
And that judgment was?

[00:35:20] Speaker 03:
taking all things into account.

[00:35:22] Speaker 03:
This was an obvious thing to do.

[00:35:26] Speaker 03:
So the question is on the evidence and in fact, and given our standard of review.

[00:35:34] Speaker 04:
Well, the only point I would make on that, Your Honor, I think it is slightly different with the PTAB.

[00:35:39] Speaker 04:
I know there's case law out there.

[00:35:40] Speaker 04:
I want to say it's the In-Ray Seng-Soo Lee case, which says

[00:35:46] Speaker 04:
We can't put that the board must give a reasoned decision so that this court can properly review it.

[00:35:53] Speaker 04:
And my opponent can't come in here and make new arguments to try to bolster because we didn't have an opportunity to argue that at the patent office.

[00:36:00] Speaker 04:
And if they want to try to make new rejections or come up with a basis for their decision,

[00:36:05] Speaker 04:
That's for the Patent Office to go back and do, and then we'll come back up and review that if they get it right.

[00:36:11] Speaker 04:
I see I'm well over my time, Your Honor, and I'm cutting into my own next argument, so I will be done if you're done with me.

[00:36:16] Speaker 01:
All right.

[00:36:17] Speaker 01:
Thank you, Council.