[00:00:05] Speaker 03:
The next case before the court, as counsel just referred to, is also related to Hillrom Services.

[00:00:14] Speaker 03:
It is case number 1503-05, in Ray Hill, Hillrom Services, Inc.

[00:00:22] Speaker 03:
This time, counsel, you'll be arguing against.

[00:00:30] Speaker 03:
the government so you want again to try to reserve five minutes I will try to see how that works out.

[00:00:37] Speaker 01:
Whatever the court prefers at that point would be fine.

[00:00:42] Speaker 02:
This is an ex-party case as distinct from the current IPR case.

[00:00:50] Speaker 02:
What is our standard of review in this kind of environment?

[00:00:56] Speaker 01:
I mean, for the obvious question, that's the no-vote.

[00:00:59] Speaker 01:
The underlying facts, you're going to look for substantial evidence.

[00:01:03] Speaker 01:
But again, I think because this is a review of the patent office opinion, or the PTED's opinion, that we have to at least somewhat look to their reasoning in deciding whether or not they were right or wrong.

[00:01:18] Speaker 01:
obviously this court can do it at once, but avoid putting too much of our own reasoning to try to bolster what they may or may not have done correctly, because my client didn't have an opportunity to respond to that at the time the patent was in the patent office.

[00:01:31] Speaker 01:
And one point I will make, and I think we submitted a supplemental brief on this, is this patent has since expired.

[00:01:37] Speaker 01:
So while originally the case was looked at under the broadest reasonable interpretation for clean construction, that's no longer the case.

[00:01:45] Speaker 01:
And that will come into play with one of the arguments that I make today.

[00:01:49] Speaker 01:
So I'm not going to spend a lot of time talking about motivation to combine again.

[00:01:54] Speaker 01:
I think a lot of the issues we just talked about in the prior appeal are going to be very similar in this appeal.

[00:01:59] Speaker 01:
What I'd really like to focus on in my time, unless the court would prefer to get back into some of those issues, are three critical errors, I believe, that TTAB made in this particular appeal.

[00:02:09] Speaker 01:
The first was whether or not Travis's prior art, based on the fact that my

[00:02:16] Speaker 01:
client's patent has an earlier conception date, and we believe has diligent reduction of practice.

[00:02:21] Speaker 01:
So I want to talk about that a little bit.

[00:02:23] Speaker 01:
The second thing is whether or not the Hill-Rom Manual, which is the second bed reference, in fact had a communication network in it.

[00:02:31] Speaker 01:
And that's where, when I mentioned the issue of claim construction comes into play.

[00:02:36] Speaker 01:
Even under the broadest reasonable interpretation, it's my position that

[00:02:40] Speaker 01:
a light switch or something akin to a light switch is not a communication network as described in this patent, but certainly not under the Phillips standard that we're now under would we consider a light switch to be a communications network.

[00:02:53] Speaker 01:
And then finally, I want to talk just briefly about the PTABS

[00:02:59] Speaker 01:
sole basis for finding a motivation to combine in this particular case, which was an expressed disclosure in the Heinz reference talking about greater processing speeds.

[00:03:09] Speaker 01:
And you probably saw this from our briefing, but our position there is there is no discussion of higher processing speeds.

[00:03:15] Speaker 01:
When it talks about high transmission speeds and high processing, it doesn't ever compare those to anything else.

[00:03:21] Speaker 01:
And there's certainly no indication in the record anywhere

[00:03:24] Speaker 01:
that one of skill in the art would have looked at that and said, well, that's going to be faster, or I know from reading this reference, that that's going to be faster than what's currently being used in these peer-to-peer networks that are currently in place.

[00:03:36] Speaker 01:
I'm sorry, the master-slave networks that are currently in place.

[00:03:39] Speaker 03:
Did you want to start with Travis?

[00:03:41] Speaker 01:
I do.

[00:03:42] Speaker 01:
So let's talk about that.

[00:03:44] Speaker 03:
Now these are, there are a lot of underlying factual conclusions here that we're looking at and that we're reviewing, aren't we?

[00:03:51] Speaker 01:
There are a number of, especially on the Travis issue, I would agree.

[00:03:54] Speaker 03:
Right, so there's been a real uphill battle that you've got here.

[00:03:57] Speaker 01:
They have to show substantial evidence, and I think

[00:03:59] Speaker 01:
The problem is I looked at this and tried to think of what would interest the court and what would, I guess, increase my opportunities to get a reverse.

[00:04:08] Speaker 01:
This, at first, I came to the same conclusion.

[00:04:10] Speaker 01:
This is going to be very factually intensive.

[00:04:11] Speaker 01:
Should I leave this for later?

[00:04:13] Speaker 01:
And I've convinced myself over the last few months that that's not the case.

[00:04:16] Speaker 01:
And the reason is we've got one reference for conception, and it's at A1187 through 92.

[00:04:24] Speaker 01:
that really does depict all the elements in the claim.

[00:04:28] Speaker 01:
The primary reason that the PTAB rejected that as conception is they said it lists multiple different types of communication networks.

[00:04:40] Speaker 01:
The peer-to-peer was only one type that it listed.

[00:04:46] Speaker 01:
there really wasn't a decision made to use that one.

[00:04:48] Speaker 01:
And I think the case law is fairly clear that you can come up with different ideas, and you don't even have to implement them all.

[00:04:54] Speaker 01:
But just because you have multiple ideas doesn't detract from the fact that that's still an invention.

[00:05:01] Speaker 01:
And so it's our belief that there was clearly conception.

[00:05:05] Speaker 01:
And then we go to diligent reduction of practice.

[00:05:09] Speaker 01:
We have a span of eight months where we've got over 20 documents showing, and this is from 20 years ago.

[00:05:16] Speaker 01:
Granted, it would be great to have every document we have from them, but we don't.

[00:05:20] Speaker 01:
But we have 20 documents that show a continual and very robust process of developing this very complex hospital bed.

[00:05:30] Speaker 01:
And so, for one, looking now to try to show diligent reduction of practice 20 years ago, I submit you're not going to find much better evidence than a continual process

[00:05:40] Speaker 01:
with very detailed time schedules, all the way up through, I think it's March, and I'm forgetting the year, but the March time frame, when I think it's almost conceded that the patent prosecution was every day up to the filings.

[00:05:56] Speaker 03:
Let's look at conception, because I agree with you.

[00:05:59] Speaker 03:
You've got a better argument on reduction practice.

[00:06:02] Speaker 03:
But the board made some pretty specific findings about conception.

[00:06:08] Speaker 03:
you characterize them as saying just because you had alternatives, that that meant you didn't know what you were doing or didn't really have an idea.

[00:06:15] Speaker 03:
But I don't think that's a fair characterization.

[00:06:17] Speaker 03:
I think the board said that there were so many alternatives, there were four alternatives, and there wasn't really evidence that you'd landed on anything.

[00:06:32] Speaker 03:
the examiner also specifically discounted the Morrison testimony and Morrison exhibits and didn't find them to be persuasive or credible.

[00:06:44] Speaker 03:
So I guess part of my problem is how do we overcome those conclusions?

[00:06:48] Speaker 01:
Well, on the Morrison declaration, first of all, Mr. Morrison has been a Patent Attorney at Stryker for

[00:06:55] Speaker 01:
many, many years, and knows his technology well.

[00:06:57] Speaker 01:
That said, we don't really need his testimony.

[00:07:00] Speaker 01:
I mean, the documents themselves that were attached... Yeah.

[00:07:05] Speaker 01:
Did I say striker?

[00:07:05] Speaker 01:
I did.

[00:07:06] Speaker 01:
Sorry about that.

[00:07:08] Speaker 01:
And Mr. Morrison's here, so I'm sure you're appreciating that right now.

[00:07:12] Speaker 01:
But no, the declaration in and of itself, while important to, I think, present the documents, I don't think his testimony is really necessary for what we're trying to argue.

[00:07:22] Speaker 01:
you can look at the documents themselves.

[00:07:24] Speaker 01:
And in fact, I have, for purposes of this appeal, I've really focused in on just one document that I believe shows the conception.

[00:07:32] Speaker 01:
They have other issues with the other documents we had originally planted, too, like the inventor names went on them, how do we know, you know, inventorship issues, things like that.

[00:07:41] Speaker 01:
I think for purposes of today, what I am focusing on, again, is this one document which was Exhibit 1 to the Morrison Declaration,

[00:07:48] Speaker 01:
which is signed at the top by one of the inventors.

[00:07:52] Speaker 01:
So we've got his signature on there, so he was certainly part of this.

[00:07:56] Speaker 01:
And it goes through and it has each of the different elements in here.

[00:08:01] Speaker 01:
Now, when we originally, I think, submitted the Morrison Declaration, we didn't necessarily talk about the different modules

[00:08:09] Speaker 01:
being interconnected.

[00:08:11] Speaker 01:
But if you look at the diagram, this was in our reply group, the diagrams in here, it's very clear that you've got the different modules and the nodes that are all interconnected.

[00:08:20] Speaker 01:
You've got the Echelon Distributed Control System, which is one of the four alternatives that you could have used, which is a peer-to-peer communication network.

[00:08:30] Speaker 01:
You've got on the last page of this exhibit, or the next to last page,

[00:08:35] Speaker 01:
The better articulation, we've got the high, low, the knee, the chair.

[00:08:39] Speaker 01:
So you've got the different pieces that were being run by the peer-to-peer network.

[00:08:43] Speaker 01:
So in my mind, this document is a clear showing of conception.

[00:08:50] Speaker 01:
And based on this, very shortly thereafter, we've got documents continuing on

[00:08:57] Speaker 01:
throughout the project that shows exactly what they were thinking here.

[00:09:01] Speaker 01:
And yes, it was one of four ideas.

[00:09:03] Speaker 01:
I don't dispute that.

[00:09:04] Speaker 01:
But it was a complete idea.

[00:09:06] Speaker 01:
There were four complete ideas.

[00:09:08] Speaker 01:
We could have put any of these four in there.

[00:09:09] Speaker 03:
But that's the question is how complete really were they?

[00:09:12] Speaker 03:
I mean, you're talking about one bullet point in an entire slideshow, right, that you're saying shows you that you've actually got this idea?

[00:09:20] Speaker 01:
That's for conception, yes, Your Honor.

[00:09:22] Speaker 01:
I think this shows the elements in the claim.

[00:09:25] Speaker 01:
And it's more than one slide.

[00:09:27] Speaker 01:
I think it's several slides in here that talk about the different aspects that go into the claim that's at issue.

[00:09:35] Speaker 01:
So to Your Honor's point, I, you know,

[00:09:38] Speaker 01:
primarily rest on this document so if factually we don't feel that this is substantial evidence then that that's my case but I think it is and that's our position and it's our position that I that the p-tab looking at this couldn't shouldn't look at this and say we're just going to discount that and the other problem I have is the p-tab didn't do anything the p-tab just relied on what the examiner did we didn't get any sort of review of this whatsoever I'd like you to address if you would the

[00:10:08] Speaker 04:
second alternative ground as the PTAB employed, which is Heinz plus the Hill-Rom manual, assuming that the Hill-Rom manual does not display, does not teach communication.

[00:10:25] Speaker 04:
Now you say that's a new ground of rejection.

[00:10:28] Speaker 04:
The CTO comes back and says, well, you should have filed a petition that requests reconsideration.

[00:10:35] Speaker 04:
You didn't.

[00:10:35] Speaker 04:
And your answer to that is, well,

[00:10:37] Speaker 04:
that in effect I guess you're saying that regulation is invalid.

[00:10:42] Speaker 04:
I read your cases on that.

[00:10:43] Speaker 04:
They don't seem to me to really support the proposition of the regulation saying if you want to raise that kind of an issue you have to file the following kind of paper is invalid.

[00:10:54] Speaker 04:
But let's assume that it's valid for now.

[00:10:57] Speaker 04:
What's wrong with that ground of rejection on the merits?

[00:11:01] Speaker 01:
So you're saying had

[00:11:03] Speaker 04:
This is the one that's found on the very last page of the board, page 18 of the board's opinion at 850.

[00:11:10] Speaker 04:
In other words, take the hill on that and assume that we won't treat what you call the light switch system as a communications network.

[00:11:21] Speaker 04:
And instead, pick up the communications network from Heinz, which is a PTP network.

[00:11:28] Speaker 04:
I think everybody pretty much is on the same ground on that.

[00:11:32] Speaker 04:
clients has, if not a bed, then at least something that is arguably analogous to a bed, the table that moves in multiple directions thanks to the modules.

[00:11:41] Speaker 01:
And set aside whether or not the PTAF can regulate, who can review them or not.

[00:11:46] Speaker 01:
Take that argument out of your saying as well, correct?

[00:11:48] Speaker 04:
Who can review them?

[00:11:50] Speaker 01:
So our secondary argument there was their regulation is invalid.

[00:11:53] Speaker 04:
Oh yeah, yeah, no, I'm, I mean, if you want to talk about that, you can, but I don't, I'm happy to leave that where it is.

[00:11:58] Speaker 04:
You have an uphill battle on that one.

[00:12:00] Speaker 01:
I'll leave that one where it is on the paper.

[00:12:01] Speaker 01:
So it really gets back to this question of whether or not there is evidence that shows putting these two things together.

[00:12:10] Speaker 01:
I mean, it kind of goes back to the last argument, whether there's evidence to show that putting those two things together would have been something a person of skill in the art could have done.

[00:12:19] Speaker 01:
And specifically, there's just

[00:12:24] Speaker 01:
It's kind of a burden thing again.

[00:12:25] Speaker 01:
There's no evidence that they point to.

[00:12:27] Speaker 01:
I mean, this came out obviously very late.

[00:12:30] Speaker 01:
We think it wasn't part of what was originally addressed by the examiner.

[00:12:34] Speaker 01:
But it's kind of just an afterthought.

[00:12:35] Speaker 01:
Well, we could have done this again.

[00:12:36] Speaker 01:
The PCAB certainly can invalidate patents.

[00:12:41] Speaker 01:
I've argued to them that they should invalidate patents in certain cases.

[00:12:44] Speaker 01:
But to do so, they need to have a reasoning, and they need to have a basis, and they need to show evidence.

[00:12:49] Speaker 01:
And this is just another example that I think we've seen several of in both of these cases, where the PTAP just has reached a conclusion and has said, it's obvious.

[00:13:01] Speaker 02:
But this is not a case of invalidating a patent.

[00:13:06] Speaker 02:
This is not a case of invalidating a patent.

[00:13:08] Speaker 02:
There was no patent.

[00:13:10] Speaker 02:
The question is whether the examiner was correct.

[00:13:15] Speaker 02:
This is an ex-party case.

[00:13:17] Speaker 02:
Correct.

[00:13:18] Speaker 01:
Well, no.

[00:13:18] Speaker 02:
It's a valid connection.

[00:13:20] Speaker 02:
It's on re-exam.

[00:13:22] Speaker 02:
Oh, OK.

[00:13:22] Speaker 02:
You're right.

[00:13:24] Speaker 02:
It's on re-exam.

[00:13:25] Speaker 02:
All right.

[00:13:26] Speaker 02:
Sorry.

[00:13:27] Speaker 03:
You had me somewhere.

[00:13:29] Speaker 03:
But as I understand your point on this one is that with respect to Heinz and that what you're saying is now we're looking at the manual.

[00:13:38] Speaker 03:
which doesn't talk about a communications network at all.

[00:13:41] Speaker 03:
So it's not a question of substituting one communications network for the other.

[00:13:45] Speaker 01:
You're saying you've got to basically find that... Now you're just trying to pull something out of thin air and throw it in here, even though you didn't even have a communication network.

[00:13:54] Speaker 01:
So yes, I think that's the other point is the motivation combined there is even greater.

[00:14:00] Speaker 01:
The lack of motivation combined at the end of the ability to show one, they had even more burden

[00:14:05] Speaker 01:
And again, we got nothing.

[00:14:06] Speaker 03:
But Beth, so on this argument, assume that we don't buy your argument that the regulation is invalid.

[00:14:15] Speaker 03:
At best, we would get a remand because they simply didn't point to any evidence in the record.

[00:14:21] Speaker 03:
Isn't that right?

[00:14:23] Speaker 01:
I suppose that's correct, Your Honor.

[00:14:25] Speaker 01:
Unless the court finds, based on the evidence of record, there's really no reasonable way that they could find that.

[00:14:32] Speaker 03:
Okay.

[00:14:33] Speaker 03:
Well, you're way into your vote.

[00:14:36] Speaker 03:
Again, we'll give you three minutes for rebuttal.

[00:14:39] Speaker 03:
You never got to your other point, but we'll see if the government hits it.

[00:14:44] Speaker 01:
Thank you, Your Honor.

[00:14:52] Speaker 05:
Your Honor, may I please report?

[00:14:54] Speaker 05:
I would actually like to start with this argument.

[00:14:56] Speaker 05:
that the Hill-Raw Manual and HIND, that one of skill in the art would have been motivated to combine those references, regardless of whether or not the Hill-Raw Manual has a communication network.

[00:15:06] Speaker 03:
Yeah, one of the problems I have with that argument is the point that I was just making, is why shouldn't we at least remand on this?

[00:15:13] Speaker 03:
Because the board really didn't point to any evidence.

[00:15:16] Speaker 03:
It just simply said it's there.

[00:15:17] Speaker 05:
Well, at 850, the board did.

[00:15:19] Speaker 05:
But at 850, the board found that there would have been a motivation to combine whether or not the Hill-ROM manual is deemed to have a communication network because the Hill-ROM manual bed requires user input to be adjusted.

[00:15:32] Speaker 05:
And that would have been obvious to implement the HIND network in the Hill-ROM manual for its known and expected function in controlling a medical device.

[00:15:40] Speaker 05:
And so because the Hill-ROM manual has a plurality of modules

[00:15:45] Speaker 05:
and has a bed that has a base frame and a deck, it would have been obvious to use the network that's disclosed in HINE, which also has a moveable patience table to improve those modules and to improve the communication between the modules.

[00:16:01] Speaker 03:
But we're supposed to take that one sentence and say that that gets you past a motivation to combine as well as reasonable expectation of success.

[00:16:09] Speaker 05:
Well, Your Honor, Kilram never made an argument that there was no reasonable expectation of success in this case.

[00:16:15] Speaker 05:
The only thing that Hilaran has argued is that there was no motivation to combine.

[00:16:19] Speaker 05:
And here there is substantial evidence in the record that shows that there would have been a motivation to combine the Hines peer-to-peer network with the Hilaran manual.

[00:16:29] Speaker 05:
And that's because, relying on KSR, the board and the examiner looked at the teachings in various patents and prior references and the effect of the demands that are known in the marketplace and the background knowledge of Glenis-Gilney Art.

[00:16:43] Speaker 05:
and what the board, what the examiner and the board found is that a skilled artisan would have used the disclosure in Heim, which taught, as we discussed, high processing speeds, transmission of reliable transition data, and maintaining the ability to add or delete subsystems and modules, and would have used those teachings to improve the system that's disclosed in the Hill Rock Manual.

[00:17:05] Speaker 03:
Does the claim construction issue affect that analysis?

[00:17:10] Speaker 05:
The claim construction issue does not affect that analysis.

[00:17:13] Speaker 05:
And that's also because the examiner made the point in its final office action that it was not simply relying on substitution of one communication network for another.

[00:17:23] Speaker 05:
What the examiner said in here, and it starts at 1405.

[00:17:31] Speaker 05:
And in there, the examiner explained that the rational was not limited to self-critical substitution.

[00:17:35] Speaker 05:
In particular, the examiner found that one in skill and the art would have looked to different types of communication networks that addressed similar issues as the claimed invention.

[00:17:43] Speaker 05:
And many different types of networks were in existence at the time.

[00:17:47] Speaker 05:
And the examiner also noted that adding such a network to the hospital beds that are exposed in the Hill-Rom Manual, as well as in Travis, would have been predictable.

[00:18:00] Speaker 05:
So that's another thing that the examiner pointed to.

[00:18:03] Speaker 05:
And then the other thing that the examiner pointed to at 1408 is that the 511 patent broadly claimed the peer-to-peer network.

[00:18:11] Speaker 05:
The specification does not disclose specific circuitry involved or specific programming involved, but instead the claim that that issue is very broad.

[00:18:20] Speaker 05:
So it would have been obvious to combine the peer-to-peer network that's disclosed in Hines with the adjustable bed that's disclosed in the Hill Rock Manual.

[00:18:33] Speaker 05:
It is a direct position, though, to the extent that you do not find that there was sufficient motivation to combine on that basis, that the board also properly affirmed the examiner's point of instruction of a communication network.

[00:18:48] Speaker 00:
Right.

[00:18:48] Speaker 03:
Now, don't we have a problem here with respect to timing and that the

[00:18:54] Speaker 03:
broadest reasonable interpretation wouldn't be the interpretation that applies as of today?

[00:19:00] Speaker 05:
So it is a direct physician that currently this court today is reviewing the client's instructions de novo.

[00:19:06] Speaker 05:
And what the board did at that time when the appeal was filed, the patent had not expired.

[00:19:12] Speaker 05:
And so at that time the board applied a broadest reasonable interpretation.

[00:19:16] Speaker 05:
So now it's a direct decision that the court here sitting here today must review that construction and determine whether or not it was reasonable to apply the broadest reasonable interpretation.

[00:19:25] Speaker 03:
But we repeatedly say that when we're looking at district court decisions, if something happens in the interim out of the board, we have to take that into consideration and it's a change in circumstance.

[00:19:35] Speaker 03:
Here we have a situation where the board knew full well that this patent was about to expire and that the likelihood that you would get a final judgment from this court before the patent expired was not high.

[00:19:47] Speaker 03:
So why wouldn't the board at minimum have made an alternative finding with respect to the claim construction under Phillips?

[00:19:55] Speaker 05:
Your honor, Hillrom never apprised the board that the patent was about to expire.

[00:19:59] Speaker 05:
At no point before the board did Hillrom argue that a Phillips construction should apply because the patent was going to be expired.

[00:20:05] Speaker 03:
Well, it's obvious on the face of the patent when it expires, right?

[00:20:08] Speaker 05:
Well, Hillrom had every opportunity to argue that a Phillips standard should apply.

[00:20:12] Speaker 05:
But instead, both the parties argued that a broadest reason, argued for a clean structure under the broadest reasonable interpretation.

[00:20:19] Speaker 05:
And even in its briefing before the court,

[00:20:21] Speaker 05:
the only review that Hilleran has thought is under the broadest reasonable interpretation.

[00:20:26] Speaker 03:
Well, as of that point in time, it was under the broadest reasonable interpretation, but it would not be today.

[00:20:33] Speaker 05:
To the extent the court today finds that the board claims instruction was not reasonable, then the board now could review the claim under a Phillips standard.

[00:20:45] Speaker 02:
Why don't you make the argument that

[00:20:48] Speaker 02:
The broadest reasonable construction can also be the correct construction.

[00:20:54] Speaker 05:
That is correct, Your Honor.

[00:20:55] Speaker 05:
The broadest reasonable construction here is the correct construction.

[00:20:58] Speaker 05:
Looking at the specification, so at no point does Hill-Rom specifically construe or specifically disclose any narrow interpretation of communication network.

[00:21:10] Speaker 05:
It's claimed very broadly.

[00:21:11] Speaker 05:
If you look at the Heinz patents at A17,

[00:21:20] Speaker 05:
at column one, lines 23 through 26, states in the preferred embodiment, information flow between the electronic module is primarily accomplished through the use of a twisted pair channel, although other physical protocols would be possible.

[00:21:37] Speaker 02:
I asked you why you don't make that argument, but I'm sure it's a good argument.

[00:21:40] Speaker 02:
That is to say, is it possible that the broadest reasonable construction

[00:21:49] Speaker 02:
could never be the correct construction, because it's not the single right one.

[00:22:00] Speaker 05:
It's a reasonable construction.

[00:22:01] Speaker 05:
So there may be other constructions that are also reasonable, but if the board construction is one of the reasonable constructions, then it should be... But under Phillips, we don't ask whether the construction is reasonable, we ask whether the construction is right.

[00:22:15] Speaker 05:
That's correct, Your Honor.

[00:22:17] Speaker 02:
So could a broadest reasonable construction ever be right?

[00:22:23] Speaker 05:
The broadest reasonable construction could be right.

[00:22:26] Speaker 05:
It could also encompass what a Phillips construction could be.

[00:22:30] Speaker 05:
But in this case, what the board found is that the specification and the claims at issue do not claim a communication network very broadly.

[00:22:41] Speaker 05:
And therefore, the broadest reasonable construction of the communication network here is the reasonable one because it's broadly claimed and broadly stated in the specification.

[00:22:53] Speaker 02:
But Phillips doesn't ask whether it's reasonable.

[00:22:56] Speaker 05:
The Phillips standard does not ask whether it's reasonable.

[00:22:58] Speaker 05:
The Phillips standard also looks to the claims themselves as well as the specification.

[00:23:03] Speaker 05:
And here, the claim language is very broad as well as the specification.

[00:23:07] Speaker 05:
And so therefore, it could also be the correct construction.

[00:23:10] Speaker 03:
Right, but what if we disagree with you on that?

[00:23:12] Speaker 03:
What if we believe that there are two different possible constructions here, one under Phillips, the other under BRI, and that in this case, the BRI and Phillips constructions do not actually converge?

[00:23:27] Speaker 05:
To the extent that they would not converge, what the board sitting here today would look at, what the board did below, and what the board did below was apply a BRI standard.

[00:23:37] Speaker 05:
And so it would be reasonable for the court to now look at that standard under a BRI standard to determine whether or not the court's construction was reasonable.

[00:23:47] Speaker 05:
Now, to the extent the court finds that it was not reasonable, the court can then look to a Phillips standard, because it does have de novo review.

[00:23:54] Speaker 04:
So you're saying that the fact that the patent expired after the board's decision is irrelevant to what we should be doing.

[00:24:02] Speaker 04:
That is correct, Your Honor.

[00:24:05] Speaker 05:
And also going back to the other alternative that the board found, and that alternative, the claim construction of communication networks does not even matter.

[00:24:14] Speaker 05:
And there was ample motivation to combine whether or not the Hill-Rom manual contains a communication network, to combine that reference with the Heinz reference.

[00:24:22] Speaker 02:
So in effect what we should do is determine whether the board's construction is the correct one, and not worry about the BRI issue.

[00:24:35] Speaker 05:
I think the point that I'm making is that it doesn't even matter if the claim construction is correct.

[00:24:40] Speaker 05:
Because at the end of the day, there was ample motivation to combine the disclosure of the Hill-Rom Manual with the disclosure in Hine.

[00:24:46] Speaker 04:
But to the extent that we do look at claim construction, you would advocate that we look at it through the lens of the BRI.

[00:24:53] Speaker 04:
That is correct.

[00:24:54] Speaker 04:
Not through the lens of Phillips.

[00:24:55] Speaker 05:
That is correct.

[00:24:56] Speaker 04:
And that is because you say we're reviewing a decision by the board that was predicated on the non-expired patent.

[00:25:03] Speaker 05:
That is correct, Your Honor.

[00:25:07] Speaker 05:
Now, because the board made two alternative obvious defining, the court here today need only find one in order to affirm the decision below.

[00:25:16] Speaker 05:
So to the extent that the Hill-Rom manual and the Hines reference can be combined to render the invention obvious, we could finish there.

[00:25:24] Speaker 05:
But we also, the examiner also found that the, or the board also found that Travis and the Hill-Rom manual, or Travis and Hines can be combined to render the invention obvious.

[00:25:36] Speaker 03:
Let's start with whether Travis was really prior.

[00:25:39] Speaker 03:
I have to agree with the opponent on the other side that with respect to reduction to practice, there was a ton of evidence that the board really seemed to have ignored on that point.

[00:25:52] Speaker 03:
So it's really a question of whether or not the board was correct on conception.

[00:25:56] Speaker 03:
and whether the board just gave too little credit to what it is that was understood, and they punished them too much for having alternatives in mind.

[00:26:14] Speaker 05:
Let's start with Conception.

[00:26:15] Speaker 05:
So with respect to Conception, Hillrom concedes that it really is relying on exhibit one to show Conception of the entire invention.

[00:26:22] Speaker 05:
Exhibit 1, as we discussed, discloses four alternatives that, at the time, the engineers of Hill-Rom Manual were considering.

[00:26:30] Speaker 05:
Now, one of the things that the Morrison Declaration points to, which now Hill-Rom is arguing that they don't even have to rely on the Morrison Declaration, but looking back at the Morrison Declaration, if you look at page A1177, which is page 4 of the Morrison Declaration, in the second row,

[00:26:52] Speaker 05:
Morrison states with respect to the Exhibit 1 disclosing a peer-to-peer communication network having a plurality of connection points.

[00:27:01] Speaker 05:
It states at the end of the second box states, those of ordinary field in the arc would readily recognize that a differential interface channel structure would include a plurality of connection points

[00:27:14] Speaker 05:
for the peers on the peer-to-peer network to access the channel.

[00:27:18] Speaker 05:
Now Mr. Morrison here is making a conclusory statement about what's included in the PowerPoint presentation at Exhibit 1.

[00:27:26] Speaker 05:
That information is simply not there.

[00:27:27] Speaker 05:
So to the extent that Hillrom is now not relying on the Morrison Declaration to show conception, then they haven't even shown whether or not the Exhibit 1 actually shows a peer-to-peer communication network having a morality of connection points.

[00:27:46] Speaker 05:
Also, the director finds that the board and the examiner were correct in finding that there wasn't reduction to practice here.

[00:27:54] Speaker 05:
And that's because here, Hillelom even conceded during its argument that the prosecution of the patent issue really began in March, in earnest in March of 1995.

[00:28:04] Speaker 05:
Now, if they conceived of the invention in December of 1994, what was happening from December of 1994 to March in 1995 that they waited that long to prosecute the claims at issue?

[00:28:17] Speaker 03:
Before you sit down, I want you to, why don't we turn to the motivation to combine as it relates to the primary basis of the board's clothing, because I think that that's a really important question, and I don't want you to run out of time.

[00:28:32] Speaker 03:
So let's talk about that.

[00:28:35] Speaker 03:
Where is the motivation to combine and the reasonable expectation of success?

[00:28:42] Speaker 03:
Where does the board cite to evidence with respect to those?

[00:28:46] Speaker 05:
So again, I would like to turn you to the final office section of where the examiner really examined what motivation there was to combine the Heinz reference with these hospital beds that were in the prior art.

[00:28:57] Speaker 05:
And it starts at 1405.

[00:29:05] Speaker 05:
Now first, the examiner pointed to the fact that there were different types of communication networks that addressed similar issues as the invention.

[00:29:13] Speaker 05:
And here they look at, for instance, the Heinz reference.

[00:29:17] Speaker 05:
And now what the Heinz reference discloses is that using a peer-to-peer communication network increases the speed of the data, the reliability of the data, and allows you to upgrade modules on your device.

[00:29:31] Speaker 05:
And this upgrading of modules is one of the key features that GilROM points to in its 5.11 pattern.

[00:29:38] Speaker 05:
And so the fact that if someone who had an adjustable hospital bed wanted to be able to easily upgrade the modules on their bed, they would have looked to add a peer-to-peer communication network.

[00:29:50] Speaker 05:
And the prior art taught that.

[00:29:52] Speaker 05:
And one that's still in the art would have looked at the prior art and seen that that was disclosing the art.

[00:29:58] Speaker 05:
I see that I'm almost out of time.

[00:30:00] Speaker 05:
Do you have any additional questions?

[00:30:02] Speaker 03:
Anything else?

[00:30:04] Speaker 03:
All right, thank you.

[00:30:05] Speaker 03:
Thank you.

[00:30:13] Speaker 01:
back to the last time around.

[00:30:17] Speaker 01:
So real quickly, just to be clear, both the Travis and Hill-Rom combination with Heinz, we've got

[00:30:24] Speaker 01:
alternative ways that we believe there are errors.

[00:30:26] Speaker 01:
First of all, that Travis wasn't prior art.

[00:30:29] Speaker 01:
Second, that Hill-Rom manual shouldn't have been combined because there was no substitution of a network because it didn't have a network.

[00:30:35] Speaker 01:
Alternatively, we have the whole, whether it's either of those, whether Heinz, somehow there was a teaching to combine Heinz with those two secondary references.

[00:30:45] Speaker 01:
Unlike the last case where there was absolutely no evidence, in this case they try to point out that they say Hines actually gives an express disclosure of a motivation combined.

[00:30:56] Speaker 01:
It talks about higher processing speed.

[00:30:58] Speaker 01:
I think we've made very clear in our papers that that's just inaccurate.

[00:31:01] Speaker 01:
That is incorrect.

[00:31:02] Speaker 01:
Heinz does not say that.

[00:31:04] Speaker 01:
Heinz does talk about high transmission speeds, but does not compare those speeds to any other type of application, including the application that was in the other art.

[00:31:12] Speaker 03:
There were no networks.

[00:31:13] Speaker 03:
So you're position is that they had to have a comparative analysis as opposed to just the speed might be high, as opposed to higher than an alternative network.

[00:31:23] Speaker 01:
Correct.

[00:31:23] Speaker 01:
There's nothing saying that what was in the

[00:31:26] Speaker 01:
the other reference itself wasn't high.

[00:31:28] Speaker 01:
They were networks as well, and there was no comparison whatsoever.

[00:31:31] Speaker 01:
So there's nothing that would have motivated a person looking at one piece of art to combine it with the other.

[00:31:38] Speaker 01:
That's, I think, a primary point that applies to both of the secondary references, so both combinations.

[00:31:45] Speaker 01:
It would work that way.

[00:31:49] Speaker 01:
The point on

[00:31:53] Speaker 01:
the patent expiration being irrelevant to the appeal.

[00:31:56] Speaker 01:
I think, and I didn't have the case with me, but I think this court has been pretty clear that's not the case.

[00:32:00] Speaker 01:
So I didn't have anything more on that.

[00:32:04] Speaker 01:
The only other point I wanted to make was the question on conception.

[00:32:09] Speaker 01:
And when I just heard my opponent argue, I think they're still trying to make the argument that because there were multiple options, that somehow renders this document unworkable for a conception document.

[00:32:22] Speaker 01:
The other point though, and really the only other point I heard, was if we don't use the Morrison Declaration, we don't disclose a plurality of connection points.

[00:32:32] Speaker 01:
And that's the missing piece, the big missing element from this document, exhibit one.

[00:32:37] Speaker 01:
I would point the court's attention to A1189 of that document.

[00:32:43] Speaker 01:
And in particular, and this is in our reply brief,

[00:32:47] Speaker 01:
At the bottom of that page there is, and this is in that exhibit, there's a picture, a block diagram, that shows a bunch of different modules with a plurality of connection points.

[00:32:57] Speaker 01:
So to say that this document without Mr. Morrison's testimony, and I still believe Mr. Morrison's testimony should be something that should be weighed and used by the court, but even if we didn't have that, we certainly have a picture here that shows a plurality of connection points, which is the point and the element that you were told was missing.

[00:33:16] Speaker 01:
And my time is up unless you have any further questions.

[00:33:21] Speaker 01:
Thank you very much, Your Honor.