[00:01:05] Speaker 01:
I bring three issues before the court today.

[00:01:26] Speaker 01:
As I see this case, in order for this court to affirm, it has to rule for Munchkin on all three.

[00:01:35] Speaker 01:
The first issue that I'd like to address is the third oval.

[00:01:41] Speaker 01:
The issue here is twofold.

[00:01:44] Speaker 01:
One is fair notice, and secondly, was there substantial evidence to support this?

[00:01:51] Speaker 01:
On the notice issue, I want to read one sentence to you from the trial practice guide.

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It's quoted in the blue brief at page 33.

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Any claim or issue not included in the authorization for review will not be part of the trial.

[00:02:12] Speaker 01:
The judge who wrote the opinion admitted at oral argument that this was a new subject.

[00:02:18] Speaker 01:
The lawyer, my predecessor, said this is a new issue, and he would think about it during his recess at final argument.

[00:02:26] Speaker 01:
When you come to final argument in an IPR, all the evidence is in.

[00:02:30] Speaker 01:
He doesn't have time to go get an expert declaration or develop any new evidence.

[00:02:35] Speaker 01:
The question of the third oval came out of the blue.

[00:02:38] Speaker 01:
It should not have been part of this proceeding at all.

[00:02:42] Speaker 02:
I also showed the institution for the IPR specifically pointed to these two figures, right?

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Figure three of the 465 and figure 12A of the 106 application.

[00:02:55] Speaker 01:
It did.

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And then pointed out that

[00:03:00] Speaker 02:
there were that it didn't find written description support in figure 12A and then said there were a couple different examples and then for at least those reasons, at least for those examples provided when you compare these two figures there's no written description support.

[00:03:21] Speaker 02:
Isn't that notice to let your client know that

[00:03:27] Speaker 02:
he needs to figure out a way to match up his figure three against the 106's figure 12A?

[00:03:34] Speaker 01:
Absolutely not.

[00:03:38] Speaker 01:
The institution of trial pointed to two specific things.

[00:03:41] Speaker 01:
One was slits, one was racetrack versus oval shape.

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If the appellant here, if the patent owner had to figure out every single thing that might come up later at the final argument, that would be very unfair.

[00:03:57] Speaker 01:
I think that this was an unfair surprise.

[00:04:00] Speaker 01:
I think that it is, oh, I don't want to use a harsh word.

[00:04:06] Speaker 01:
I believe that that is not a proper statement of notice of the issues as to which this trial was to proceed.

[00:04:19] Speaker 01:
If Love and Care had noticed that there was an issue as to the third oval, then

[00:04:26] Speaker 01:
love and care would have developed some evidence.

[00:04:29] Speaker 01:
They might have gotten an expert declaration to show why the utility patent application drawings justify that third oval.

[00:04:36] Speaker 01:
In our briefs, we showed you a few reasons why we think that those drawings of the parent application support the existence of the third oval, the outer oval, which to me appears to be a contour line.

[00:04:51] Speaker 02:
Can you tell us,

[00:04:54] Speaker 02:
I got a little confused.

[00:04:56] Speaker 02:
The third oval line, does it represent the base of the spout or does it represent perhaps the outer contour line of the spout tip?

[00:05:09] Speaker 02:
Which position is it that you're taking?

[00:05:14] Speaker 01:
I think first we need to agree on what we're going to call the spout because the board called the spout the whole upper part and I called the spout the part that sticks up.

[00:05:24] Speaker 01:
The part that sticks up is what the board called the drinking tip.

[00:05:27] Speaker 01:
Now, I call it the spout.

[00:05:32] Speaker 01:
If you want to call it a drinking tip, that's fine with me.

[00:05:35] Speaker 01:
What I thought in the blue brief is that that third outer oval represents the bottom of the drinking tip.

[00:05:43] Speaker 01:
Not the outside of the whole lid, but the bottom of the drinking tip.

[00:05:48] Speaker 01:
And you can see from the drawings of the parent case that it gets narrow as it comes up.

[00:05:52] Speaker 01:
And so you would expect, when you look down, that you're gonna see the inside ring for the inside.

[00:05:57] Speaker 01:
There's gonna be another oval representing where the top is.

[00:06:01] Speaker 01:
And then if you go down, it's obviously gonna be wider.

[00:06:05] Speaker 01:
And a person, a Dressen presenting design patent drawings is gonna wanna show a contour line.

[00:06:12] Speaker 01:
That's what I thought it was.

[00:06:13] Speaker 01:
Now, in the red brief, I said, oh no, I can't possibly be that.

[00:06:17] Speaker 01:
And it has to be the top.

[00:06:18] Speaker 01:
So in my gray brief, I said, well, if you insist on it being the top,

[00:06:21] Speaker 01:
I have support anyway, and I showed a diagram in the gray brief that says, here's where I can justify that third line if you even want to confine it to the top.

[00:06:31] Speaker 02:
The point is, do you understand why that's a little scary in the sense that a patent owner can sort of twist in the wind and assert various conceptions of what the meanings of the lines are in their design when accused

[00:06:50] Speaker 02:
infringers can't really know what those lines represent until the patent owner decides what those lines mean?

[00:06:58] Speaker 02:
Of course.

[00:06:59] Speaker 01:
I understand the point.

[00:07:00] Speaker 01:
And you're thinking of the nose of wax case, I imagine.

[00:07:03] Speaker 01:
And the point is that I'm discussing what could have been done at the PTAB if the appellant had noticed that there was an issue.

[00:07:13] Speaker 01:
We could have gotten expert testimony as to exactly what that line is.

[00:07:17] Speaker 01:
I'm saying we deserve a chance to have it.

[00:07:20] Speaker 01:
I'm saying there are possibilities here that were never allowed to be explored because my client didn't even know it was an issue.

[00:07:27] Speaker 01:
And I think that's very unfair.

[00:07:29] Speaker 01:
I think that is violative of the Due Process Clause and the Administrative Procedures Act.

[00:07:37] Speaker 02:
Why does Figure 12A not have that additional oval line?

[00:07:43] Speaker 02:
And it just has what appears to be a single oval or a single racetrack?

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I would imagine that it is because it is a utility patent application, not intended to show every aspect of the design with the kind of meticulous care that a design patent would have.

[00:08:06] Speaker 01:
And the question that we have on Section 120 is whether I can, not I, whether love and care can find support anywhere in the parent application.

[00:08:17] Speaker 01:
And that's another mistake made by the PTAB.

[00:08:19] Speaker 01:
The PTAB said,

[00:08:21] Speaker 01:
There's no support in figure 12A.

[00:08:24] Speaker 01:
Your Honor, that is legally insufficient.

[00:08:27] Speaker 01:
It is not true that if a specific feature is missing from one figure, that means it's missing from all the figures.

[00:08:34] Speaker 01:
The law is very clear that you can find support anywhere in the parent application.

[00:08:39] Speaker 01:
And I showed several different drawings.

[00:08:40] Speaker 01:
There are about six different drawings that show these features.

[00:08:49] Speaker 01:
I find, in my opinion, that there's substantial merit to the third oval.

[00:08:55] Speaker 01:
And moving on, the size and shape issues, the red brief never even answered our showing as to the size of the ovals.

[00:09:05] Speaker 01:
The shape issue, as set forth in the Decision Institute, was is it a racetrack or is it an oval, i.e.

[00:09:13] Speaker 01:
an egg shape.

[00:09:15] Speaker 01:
And when I blow up the figures from the parent application, I see ovals.

[00:09:19] Speaker 01:
I don't see racetracks.

[00:09:20] Speaker 01:
And by racetrack, I mean two straightaways connected by a curve at each end.

[00:09:25] Speaker 01:
And I gave you a couple of photographs from, I think one was an automobile racetrack and another was a horse racetrack.

[00:09:32] Speaker 01:
That's not what you see when you blow up the figures from the parent application.

[00:09:35] Speaker 01:
You see ovals.

[00:09:37] Speaker 01:
And as for the size of those ovals, I showed you in the blue brief a range that was covered by the parent application.

[00:09:44] Speaker 01:
And I compared it

[00:09:46] Speaker 01:
to the range that is shown in the design application, and it fits right in.

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And I would submit to you that this shows that the inventor was in possession of that shape as of the filing date of the parent application.

[00:09:59] Speaker 02:
Written description support is a question of fact, right?

[00:10:04] Speaker 01:
It is.

[00:10:04] Speaker 01:
And if you're asking about the substantial evidence test, the question here is that the substantial evidence test is subservient to the issue of law.

[00:10:14] Speaker 01:
you can say, as I mentioned before, that maybe I don't see substantial evidence for an oval looking at figure 12A.

[00:10:22] Speaker 01:
Now, I would say to you that that's wrong, but when I look at the rest of the figures, I do find that there is substantial evidence to support the appellant's position.

[00:10:30] Speaker 01:
And for the P tab to say, I failed to find substantial evidence in figure 12A to support the oval, well, okay, let's argue and say that's true.

[00:10:38] Speaker 01:
I say, that's legally insufficient.

[00:10:41] Speaker 01:
That's not enough to rule against us.

[00:10:46] Speaker 01:
On the third issue, there's a question of who had the burden.

[00:10:50] Speaker 01:
We all agree the burden approved by statute is fixed on the petitioner.

[00:10:54] Speaker 01:
Just so you know, you're near rebuttal time.

[00:10:57] Speaker 01:
I'll wrap up in seconds.

[00:10:58] Speaker 01:
It's up to you.

[00:10:59] Speaker 01:
Thank you, Judge.

[00:11:02] Speaker 01:
In the final hearing, Mr. Poplin told the PTAB that it was our burden, the appellant's burden, to show justification for the support.

[00:11:13] Speaker 01:
And remember that we have a motion pending to take judicial notice.

[00:11:16] Speaker 01:
The cases that are cited say that the burden of going forward shifts once the challenger has met its burden.

[00:11:25] Speaker 01:
I say they didn't meet their burden because they didn't produce any evidence, and therefore the burden never shifted.

[00:11:30] Speaker 01:
But even if it did shift, even if we do have that problem, the case law says, but it doesn't shift when this issue was taken up by the examiner in the original prosecution.

[00:11:41] Speaker 01:
It was.

[00:11:42] Speaker 01:
It was the very first office action.

[00:11:44] Speaker 01:
Now that wasn't in the record because this issue didn't come up until after the final hearing.

[00:11:48] Speaker 01:
So I moved to have the file history added by judicial notice.

[00:11:55] Speaker 01:
And if you look at it, it shows the first office action, the examiner said lack of Section 120 support.

[00:12:03] Speaker 01:
The applicant answered that and the examiner withdrew the rejection.

[00:12:08] Speaker 01:
That shows

[00:12:10] Speaker 01:
that this was handled already by the examiner.

[00:12:12] Speaker 01:
And the law of this court is that under those circumstances, the burden of production does not shift.

[00:12:19] Speaker 01:
It stays on the challenger throughout.

[00:12:21] Speaker 02:
What is the standard for granting an inter partes review?

[00:12:27] Speaker 01:
Reasonable likelihood of success as to at least one claim being invalid.

[00:12:31] Speaker 02:
OK.

[00:12:32] Speaker 02:
So I take that to mean that the patent board

[00:12:36] Speaker 02:
The panel that reviewed this case determined that there's a reasonable likelihood of success in rejecting these claims because the claims are not entitled to the utility application's filing date, and that's because there is a lack of written description support.

[00:12:56] Speaker 02:
Is that a clear reading of what the decision institute said and did?

[00:13:03] Speaker 01:
with the sole exception that there's only one claimant at Design Patent.

[00:13:06] Speaker 01:
Yes.

[00:13:08] Speaker 01:
But that is not a finding.

[00:13:09] Speaker 01:
That is a preliminary ruling.

[00:13:12] Speaker 01:
And even if the patent owner didn't show up, the PTAB would require the petitioner to come forward and prove its case.

[00:13:20] Speaker 01:
That's not a finding that shifts the burden.

[00:13:23] Speaker 01:
If I may preserve the rest of my time for rebuttal.

[00:13:26] Speaker 01:
Thank you.

[00:13:37] Speaker 00:
May it please the court, good morning.

[00:13:39] Speaker 00:
I'm Justin Poplin, a place for engage, here today for Munchkin.

[00:13:44] Speaker 00:
I'd like to start with the unfair surprise issue.

[00:13:48] Speaker 00:
Love and Care made a taskful decision in this case to pursue an amendment at the Patent Office and not to seriously pursue the 120 priority date of the patented issue.

[00:13:59] Speaker 00:
The specific grounds upon which the Patent Office's decision was based have been in this case since day one.

[00:14:06] Speaker 00:
I'd like to run through the history very briefly, if I might.

[00:14:10] Speaker 00:
In the petition at A41 to A43, Munchkin argued that there was no priority because of an inconsistent internal style configuration and inconsistent external style configuration.

[00:14:24] Speaker 00:
Munchkin described in detail the differences between the oval and raised back shapes.

[00:14:29] Speaker 00:
Munchkin also described the three concentric rings, and if you look at the annotated

[00:14:35] Speaker 00:
figure from the petition, I believe at A43.

[00:14:39] Speaker 00:
It points to the two inside lines as the internal configuration.

[00:14:44] Speaker 00:
From day one, that's been Munchkin's position.

[00:14:48] Speaker 02:
Did Munchkin point out the larger third oval ring?

[00:14:54] Speaker 00:
Yes, Judge.

[00:14:54] Speaker 00:
That was the external configuration.

[00:14:57] Speaker 00:
And that can also be found at A41 to A43.

[00:15:02] Speaker 00:
In the institution decision then at A97,

[00:15:05] Speaker 00:
The board found that there likely was not priority, and it said, quote, for example, and quote, for at least these reasons.

[00:15:15] Speaker 00:
And it provided two examples of why there was likely no priority.

[00:15:19] Speaker 00:
The board did not say these are the only issues of this case.

[00:15:23] Speaker 00:
Instead, the board found that the issue, or excuse me, the issue here was whether or not the claim was invalid under Section 103.

[00:15:29] Speaker 00:
120 is not a ground of rejection.

[00:15:33] Speaker 00:
120 is kind of a sub-finding in this case.

[00:15:36] Speaker 00:
But the board specifically found that there was likely no priority.

[00:15:42] Speaker 00:
Moving on, in the context of Levincare's motion to amend in their response at A131 and 132 and A140, Levincare acknowledged the size, shape, and proportions were not consistent between the 106 and the 465.

[00:15:58] Speaker 00:
And those words are taken directly from their papers, size, shape, and proportions.

[00:16:03] Speaker 00:
They then attempted to amend their drawings to match those of the parent.

[00:16:08] Speaker 00:
The proposed amended drawings are shown in context at A129.

[00:16:11] Speaker 00:
Then Love and Care's demonstrative at the board's hearing, A233, and this was originally filed as exhibit 2003 in this case, with Love and Care's reply, clearly shows three concentric rings as a tip.

[00:16:33] Speaker 00:
During oral argument at A273 to 275, Judge Fitzpatrick and Loving Care's attorney discussed the three concentric rings in the 465 as the spout tip.

[00:16:47] Speaker 00:
Then in the final decision at A7, the board found that there was no priority because of spout size, spout shape, and the inconsistent internal configuration, or the three rings.

[00:16:59] Speaker 00:
These issues have been in the case since day one.

[00:17:02] Speaker 00:
There's no surprise here.

[00:17:03] Speaker 00:
Levincare simply chose to go around with it.

[00:17:06] Speaker 02:
But Levincare's attorney at the oral hearing said it was a new issue.

[00:17:10] Speaker 00:
But Judge, it was in the petition.

[00:17:12] Speaker 00:
It's not a new issue.

[00:17:13] Speaker 00:
And the fact that the attorney at the oral hearing said it was does not make it true.

[00:17:17] Speaker 00:
This has been the case since day one.

[00:17:21] Speaker 00:
And it's very clear from, again, if we look at the petition, A41 to A43.

[00:17:26] Speaker 00:
much from day one indicated there was an inconsistent internal configuration.

[00:17:30] Speaker 02:
Did your briefing, you know, that last stage briefing before the oral hearing, identify all three of these alleged defects?

[00:17:39] Speaker 00:
I believe and more, Judge.

[00:17:41] Speaker 02:
I believe we referred back to... Maybe others, but each one of these three, in the sense that now the patent owner knows that you're going to be attacking the written description angle on a whole bunch of elements, but

[00:17:56] Speaker 02:
at least these three elements as well that the board ultimately picked up on.

[00:18:00] Speaker 00:
Yes, Judge.

[00:18:00] Speaker 00:
I believe we referred back in our briefing to all of the original issues raised in our initial petition.

[00:18:06] Speaker 00:
We did not go through those in detail again because of space limitations at the Patent Office, but we very clearly referred back to those.

[00:18:15] Speaker 00:
There was no indication that Munchkin had given up on these issues or that these were somehow not part of the case any longer.

[00:18:24] Speaker 00:
I'd like to continue to the burden issue.

[00:18:27] Speaker 00:
Power Oasis and technology licensing make it very clear that once a challenger has established a prima facie case of invalidity using a reference that predates the filing date, the patentee is then obligated to come forward with evidence and argument that it is entitled to an earlier priority date.

[00:18:45] Speaker 00:
Now the overall burden of persuasion never moves, and we clearly can see that.

[00:18:49] Speaker 00:
That's always on the petitioner, the challenger.

[00:18:54] Speaker 00:
However, that burden of going forward with evidence and arguments does go back and forth between the parties, and it goes back and forth just as much as is explained.

[00:19:03] Speaker 00:
This builds a record on which the case can ultimately be decided.

[00:19:06] Speaker 02:
I'm not sure how burden shifting really works in this particular circumstance, in these AIA proceedings, in the sense that it seems to me the board is letting the parties know that certain issues are live issues.

[00:19:22] Speaker 02:
And both parties need to focus and put their best foot forward through briefing and evidence on a respective live issue.

[00:19:31] Speaker 02:
And then the board's going to ultimately make findings on that live issue in a final written decision.

[00:19:36] Speaker 02:
And then from our perspective, it all comes down to whether there was substantial evidence in the record to support that fact finding.

[00:19:44] Speaker 02:
So I don't see it as the standard iterative process in the agency where

[00:19:50] Speaker 02:
burdens go toggle back and forth?

[00:19:54] Speaker 02:
I mean, what do you think about that?

[00:19:56] Speaker 00:
I believe it is, Judge.

[00:19:57] Speaker 00:
I believe that Judge Fitzpatrick and the board below found that it was.

[00:20:01] Speaker 00:
Now, I think that the patent owner at the board has even a leg up because these issues are raised sooner.

[00:20:09] Speaker 00:
Munchkin in his petition explained why there was no priority, which would not have been required in a court case under power oasis and technology licensing.

[00:20:18] Speaker 00:
But we do have to have a good case at the institution phase.

[00:20:23] Speaker 00:
And the board does have to determine the reasonable likelihood that we'll win.

[00:20:27] Speaker 00:
So the petitioner is going to raise these issues in detail much sooner, which provides additional information at an early date for the patent owner.

[00:20:36] Speaker 00:
But I don't think that changes the burden of producing evidence and arguments.

[00:20:40] Speaker 00:
I think that that's still safe to say.

[00:20:42] Speaker 00:
I don't see a real reason why that should be different at the board.

[00:20:46] Speaker 00:
I really see this similar to secondary considerations, where once there's a prima facie case of obviousness, the patentee must raise the issue and must also produce evidence and arguments regarding nexus.

[00:20:59] Speaker 00:
I see it to be a very similar issue.

[00:21:01] Speaker 00:
And the case that I point to there is MRC Innovations, which is a 2014 case from this court.

[00:21:11] Speaker 00:
We also disagree, Love and Karen Munchkin, on the deference issue.

[00:21:17] Speaker 00:
Now, courts will accord deference to patent office proceedings on the issue of priority date if the patent office is actually considered and addressed the issue.

[00:21:27] Speaker 00:
That deference arises because the patent office is presumed to be a government agency that properly did its job.

[00:21:34] Speaker 00:
The patent office, however, where this case came from, does not accord deference.

[00:21:39] Speaker 00:
And that couldn't be more clear from the presidential patent office case in Ray Fry.

[00:21:45] Speaker 00:
from 2010.

[00:21:45] Speaker 00:
That case was joined by Director Capos and Chief Patent Judge Michael Fleming.

[00:21:51] Speaker 00:
The Patent Office does not accord deference.

[00:21:58] Speaker 00:
Moreover, if deference somehow were afforded, which it should not be, we should also consider the patent history, the file history, so the related reexamination, the 439 patent,

[00:22:11] Speaker 00:
This was of record, and it was cited at pages 16 to 17 of the petition.

[00:22:17] Speaker 00:
There, the Patent Office found that the oval spout of the 465 is different from the racetrack spout of the 106.

[00:22:25] Speaker 00:
In fact, the later 439 patent, which had a racetrack-shaped spout, was denied priority of the 465 patent, which was found to have an oval spout.

[00:22:34] Speaker 00:
So at worst, there were two determinations and nothing for the Patent Office to have given deference to.

[00:22:40] Speaker 00:
Although, again, deference simply does not apply to patent office.

[00:22:45] Speaker 02:
What's your response to the other side's argument that the board was too narrow in its inquiry on written description by focusing only on figure 12A?

[00:22:54] Speaker 02:
And in fact, there's other parts of the 106 application that once you consult those, in addition to figure 12A, you can see and understand that there was possession of the drawings in the 465.

[00:23:12] Speaker 00:
We made the argument below, Your Honor, I believe it's entirely correct, that the 106 is all over the board and actually does not provide basis for any single embodiment.

[00:23:24] Speaker 00:
The written description in the 106 tells us that these pictures are all, the drawings are all the same product, but they're all different.

[00:23:33] Speaker 00:
We can't match them up and actually get 112 support for anything out of that apparent 106 application.

[00:23:39] Speaker 00:
And no, I don't believe that the patent office was too narrow.

[00:23:43] Speaker 00:
I believe the patent office was entirely correct to look at the drawings and say that they're very different and that 112 support cannot be found in the parent and therefore 120 priority should be denied.

[00:23:56] Speaker 00:
Looking at the ultimate determination regarding priority, this is a factual issue that's reviewed for substantial evidence.

[00:24:06] Speaker 00:
And if we look back at the case, if we look back at Loving Care's amendments and their statements along with the amendments, it's clear from that record that there's substantial evidence that supports the Patent Office's findings.

[00:24:19] Speaker 00:
Loving Care itself, again, please remember, admitted that the size, shape, and proportions were different between the two and actually attempted to amend the figures to match that of the parent.

[00:24:35] Speaker 00:
This also goes to the notice issue.

[00:24:38] Speaker 00:
There's not some outrageous burden for Love and Care to prove 112 priority.

[00:24:45] Speaker 00:
That's completely unattainable because in its context of amendment, Love and Care was able to clearly identify differences between the 106 and the patented issue and explain those differences and try to amend the drawings to match up with the parent.

[00:25:02] Speaker 00:
They simply chose not to pay attention to these differences in the context of the patent was originally issued.

[00:25:09] Speaker 00:
And this is a completely new argument and tact, and it's a different way to go about it now on appeal.

[00:25:18] Speaker 00:
If you look at the briefing, they spent just over a page addressing the original patent that's issued in all of the briefing as far as why it should have came forward.

[00:25:27] Speaker 00:
And that was largely directed to the text.

[00:25:30] Speaker 00:
The text that said it could be an oval.

[00:25:34] Speaker 00:
If that's all that's required, then every design pad should be filed claiming priority to a utility that simply defines the product in very broad terms.

[00:25:45] Speaker 00:
If all I have to do is say it can have an oval space shaped tip of any size and that provides me section 112 priority, then I'd almost have to do a utility application of that type before filing a continuation design.

[00:26:05] Speaker 00:
The judicial notice of the filed history, since there's no deference, we believe it's clearly irrelevant as well as untimely.

[00:26:14] Speaker 00:
Again, Lovencare did not bother to introduce it below.

[00:26:16] Speaker 00:
They weren't interested in priorities below for the patents issued.

[00:26:20] Speaker 00:
They're really interested in the amendments.

[00:26:26] Speaker 00:
If there are no further questions, I'd have to give the remainder of my time back.

[00:26:31] Speaker 00:
Okay.

[00:26:31] Speaker 00:
Thank you so much.

[00:26:32] Speaker 00:
Thank you.

[00:26:42] Speaker 01:
Your Honors, I don't think I'll take the rest of my time either.

[00:26:45] Speaker 01:
When I look at page 842 to 43, I don't see anything about attacking the third oval.

[00:27:00] Speaker 01:
I don't see at page 831 where love and care admitted differences.

[00:27:05] Speaker 01:
What I do see is

[00:27:08] Speaker 01:
as an assertion that the amendment was proposed to more closely align to the current case.

[00:27:15] Speaker 01:
I do not believe it is proper to go out of the record to refer to what is going on in an ongoing reexamination, as Mr. Propple has done.

[00:27:25] Speaker 01:
The case he cited in Ray Fry is not discussed in the briefs.

[00:27:30] Speaker 01:
I do not see the LNC admitted that there are differences in size, shape, and proportions.

[00:27:37] Speaker 01:
And as to the motion to amend, and much is made of that, we did not appeal that because my predecessor did not make all the necessary showings.

[00:27:47] Speaker 01:
That motion was doomed.

[00:27:51] Speaker 01:
Among other things, my predecessor did not show why it's patentable, did not put all the prior art of which it was aware in front of the board.

[00:27:59] Speaker 01:
The board could have rejected that motion on a number of grounds.

[00:28:05] Speaker 01:
To state that we devoted only one page with regard to the oval is to close your eyes to the rest of the brief.

[00:28:12] Speaker 01:
There are several pages showing the ovals blown up, and a page, I think, showing six of the figures from the parent case and showing that they're oval.

[00:28:22] Speaker 01:
It's not just relying on the textual portion of the parent case that says they're oval.

[00:28:28] Speaker 01:
I've actually showed you the drawings, and you can see that they are egg-shaped ovals, not racetracks.

[00:28:37] Speaker 01:
I believe that this court should either reverse or remand this case.

[00:28:46] Speaker 01:
Are there any questions?

[00:28:50] Speaker 01:
Then I have nothing further to say.

[00:28:53] Speaker 01:
Thank you for your attention.