[00:00:00] Speaker 01:
Our argument is 15.1.0.1.7, pro-attack versus sent-to-air technology.

[00:00:25] Speaker 00:
I reserve three minutes for rebuttal time.

[00:00:56] Speaker 00:
May it please support?

[00:00:58] Speaker 00:
The board has made several legal errors that require reversal.

[00:01:03] Speaker 00:
First, the board improperly used the 068 patent itself as a roadmap to support a combination of the Le Penant and Privas references.

[00:01:15] Speaker 00:
Second, the board's reason to combine Le Penant and Privas rests on a fact-finding that is directly contradicted by a fact-finding in a different part of the board's decision.

[00:01:27] Speaker 00:
And the third is the board's ultimate conclusion of obviousness rests on a key fact finding that has no citation in the opinion, no support in the record, and is directly contradicted by the La Pizan reference itself.

[00:01:45] Speaker 01:
On the second point you were making, it seems to me that even if that's correct that there was a contradiction in the board's opinion, it doesn't seem to me that much of a leap to say that these

[00:01:57] Speaker 01:
to prior art, a piece of prior art, a clearly analogous art, and can be debauched.

[00:02:03] Speaker 00:
Well, so the directly contradictory fact findings actually go to the specific teaching of leucidon, the leucidon reference in the board's explanation of its motivation to combine.

[00:02:15] Speaker 00:
And I would just point out to you

[00:02:19] Speaker 00:
that this is legal error because the reasons they combine must be clear in particular.

[00:02:23] Speaker 00:
What's the inconsistency?

[00:02:24] Speaker 00:
So they're interpreting the same statement in Le Pizan.

[00:02:29] Speaker 04:
Where is it?

[00:02:30] Speaker 04:
Show us.

[00:02:31] Speaker 00:
So if you look at A17 and A21 are the places where they're sent.

[00:02:41] Speaker 00:
They're discussing, there's just one sentence in Le Pizan which involves

[00:02:47] Speaker 00:
use of small drops.

[00:02:49] Speaker 00:
And the sentence in the reference says, means of diffusing very small droplets in high numbers are well suited to the volume of residential rooms and meeting rooms typically containing air volumes of between 30 and 100 cubic meters.

[00:03:03] Speaker 00:
So if you look at A-17, the board said of this statement near the top of the page, this statement does not disclose that the device of Lipizan may be used in 30 to 100 cubic meter rooms.

[00:03:18] Speaker 00:
But then if you look at A21, which is the board's explanation of reasons to combine the two reference underpinning its entire legal conclusion, in the middle of that first paragraph on A21, the board finds, we find that Lepaisant discloses treating rooms of varying volumes at least ranging between 30 and 100 cubic meters.

[00:03:40] Speaker 00:
And given the requirement that, the legal requirement that the reasons to combine be

[00:03:46] Speaker 00:
clear and particular, particularly given the deferential standard of review that is accorded the board's decisions.

[00:03:54] Speaker 00:
This contradictory finding undermines the board's reasons to combine.

[00:04:24] Speaker 00:
I will get you the page in my rebuttal time.

[00:04:48] Speaker 00:
It is very clearly explained.

[00:04:52] Speaker 00:
The contradiction.

[00:05:09] Speaker 00:
I'm sorry, so if you look at the red brief, 7 to 8.

[00:05:14] Speaker 04:
The red brief?

[00:05:17] Speaker 00:
Red brief, at 7 to 8, and it refers back to the earlier papers.

[00:05:25] Speaker 04:
But I was asking where in your brief?

[00:05:28] Speaker 00:
Oh, I'm sorry, the third high brief, gray brief, I'm sorry.

[00:05:31] Speaker 00:
If you look at the gray brief at 7 and 8,

[00:05:33] Speaker 04:
We didn't raise it in the opening.

[00:05:35] Speaker 00:
We did.

[00:05:35] Speaker 00:
We raised that, yes.

[00:05:36] Speaker 04:
Never mind.

[00:05:37] Speaker 04:
Didn't it just crack?

[00:05:38] Speaker 00:
Fifteen.

[00:05:39] Speaker 00:
Thank you.

[00:05:40] Speaker 00:
Blueberry, fifteen, sir.

[00:05:52] Speaker 01:
Okay.

[00:05:52] Speaker 01:
Now withstanding the contradiction, it's clear that not that La Pazante expresses a desire to treat news of varying volume.

[00:06:02] Speaker 01:
And if that's the case, notwithstanding the contradiction in what the board said, why isn't that enough support to combine the references?

[00:06:10] Speaker 00:
Because Lipton does not disclose the primary teaching for which the board relies upon, relies on it for, which is

[00:06:19] Speaker 01:
No, but I'm saying notwithstanding whether there was an error in what the board did, why can't we look at the references and say there's a sufficient disclosure here to satisfy the motivation to deny?

[00:06:34] Speaker 01:
Which seems pretty reasonable to me.

[00:06:38] Speaker 01:
So leaving aside what the board's reliance on.

[00:06:41] Speaker 00:
So if you were to find that look design discloses a desire to treat rooms of that volume, even if that is the case,

[00:06:48] Speaker 00:
Lupizant does not disclose multiple control schemes that can be selected by the user that dictate an airflow and a frequency.

[00:06:56] Speaker 00:
That is what's required by the plane language and by the board's instruction.

[00:07:01] Speaker 00:
And that would still be missing from Lupizant.

[00:07:05] Speaker 03:
So Lipizant, the board's obvious that the rules are- You're saying Lipizant doesn't disclose a plurality of control schemes?

[00:07:13] Speaker 00:
No, it does not.

[00:07:14] Speaker 00:
And the mistake comes, I'll point you to a couple places in the board's decision where that mistake is clear.

[00:07:19] Speaker 00:
At A15, the board concludes that Lipizant permits the inclusion of multiple pre-established programs on the device, although the user is limited to selecting one program at a time.

[00:07:33] Speaker 00:
That's the board's key misunderstanding.

[00:07:35] Speaker 00:
When I talk, you don't.

[00:07:38] Speaker 03:
Yeah, of course.

[00:07:39] Speaker 03:
Okay, thank you.

[00:07:40] Speaker 03:
Lipizan's diffusion device controls nebulization units 4A, 4B, and 4C through programming chosen by the user or by pre-established programs of various sequences, specifying flow rate sequence and so on.

[00:07:59] Speaker 03:
Lipizan's application examples within the specification describe five applications of the

[00:08:05] Speaker 03:
How is that not a plurality of schemes?

[00:08:08] Speaker 00:
Because the reference actually says those different examples, which the board mistakenly referred to as modes of operation of the device at A11.

[00:08:18] Speaker 00:
The patent specifically says those examples are different devices.

[00:08:22] Speaker 00:
What look-as-not actually describes is different types of devices that you can construct using the components that are described in look-as-not.

[00:08:30] Speaker 00:
So when the board refers to it as different modes of operation,

[00:08:33] Speaker 00:
That's incorrect.

[00:08:34] Speaker 00:
That's not what the reference says.

[00:08:37] Speaker 00:
The reference specifically says that the examples are different devices.

[00:08:41] Speaker 00:
It says that some of the components that you pointed out would not be needed in all of the devices.

[00:08:47] Speaker 00:
That in some of the devices, some of the control schemes would be pointless even.

[00:08:53] Speaker 00:
The various sequences language that the board looked at and that you just mentioned.

[00:08:57] Speaker 03:
Some of the control schemes would be pointless.

[00:09:01] Speaker 00:
That's what the reference said in some devices, because it describes the components.

[00:09:05] Speaker 03:
So that means there's more than one scheme, right?

[00:09:09] Speaker 00:
Some of the components.

[00:09:10] Speaker 00:
No, not some of the schemes.

[00:09:11] Speaker 00:
I'm sorry if I misspoke.

[00:09:13] Speaker 00:
It's exactly what you said.

[00:09:14] Speaker 00:
OK, I misspoke.

[00:09:15] Speaker 00:
Some of the components may be pointless.

[00:09:19] Speaker 00:
What the reference explains is that in a device that is built according to the reference, there can be multiple diffusion beams.

[00:09:27] Speaker 00:
There can be multiple tanks of liquid.

[00:09:29] Speaker 00:
And it operates, it's programmable because it operates by a program that dictates when those diffusion means operate.

[00:09:38] Speaker 00:
So the sequence might be spray odor one, then spray odor two, then spray odor one.

[00:09:43] Speaker 00:
Or it might be spray and then pause and then spray.

[00:09:47] Speaker 00:
That's the type of sequence that the reference is talking about.

[00:09:51] Speaker 00:
That's the various sequence.

[00:09:53] Speaker 00:
Even if that is a control scheme, it is not what is required in the board's claim construction because

[00:10:00] Speaker 00:
If that is a control scheme, the patent says it has to be programmed by the user.

[00:10:05] Speaker 00:
The user would still have to figure out what those timing and sequences are and program them.

[00:10:11] Speaker 00:
I agree with what the board found that the patent that looked it on says the user can program those sequences, but they would have to be selecting and programming the specific sequences, whereas the claim requires that a control scheme specifies both the flow rate and the timing of operations.

[00:10:29] Speaker 00:
and that that control scheme can be selected by the user.

[00:10:32] Speaker 00:
And that's really the key in the invention here, is that by selecting that one control scheme, all of the parameters are determined for the user.

[00:10:41] Speaker 00:
And in look at that.

[00:10:42] Speaker 00:
Really?

[00:10:43] Speaker 01:
I mean, I guess I'm not necessarily following this, and maybe I'm unclear on the terminology.

[00:10:48] Speaker 01:
But I thought the prosecution history reflected that the novelty of this invention was not having multiple control schemes, but it was this so-called Venturi system.

[00:10:59] Speaker 00:
Well, a Venturi has been around for a century.

[00:11:03] Speaker 00:
That's clear from the record.

[00:11:05] Speaker 00:
And it's really the combination of the Venturi together with the control scheme, together with the volume-based selection.

[00:11:13] Speaker 00:
But what the patent is really talking about is simplifying life for the user, so that when the user knows, I'm going to put this device in a room of a certain volume, a big meeting room versus a storage room, I just set the volume level.

[00:11:27] Speaker 00:
And the device had, pre-programmed, had all of the parameters for how frequently to blow the fan and how frequently to stop.

[00:11:35] Speaker 01:
So what was not in the prior art, in your view, that's novel about your invention?

[00:11:39] Speaker 00:
So what's not there is those different schemes that the user can simply select between.

[00:11:46] Speaker 00:
The schemes that set both the flow rate and the timing, as the board's construction requires, that the control schemes specify those.

[00:11:57] Speaker 01:
Isn't that pretty obvious?

[00:11:59] Speaker 01:
I mean, is it analogous art, treadmills, alarm clocks, and various things?

[00:12:03] Speaker 01:
I mean, this concept doesn't seem to be something that one has not been using for decades and decades and decades.

[00:12:09] Speaker 00:
Well, in response to that kind of an argument, the board went to the patent itself, and in some areas, and urges the court to do the same.

[00:12:17] Speaker 00:
The references here, one teaches making odor peaks.

[00:12:21] Speaker 00:
Le Pizan is about odor peaks, so that the user is surprised, woken up.

[00:12:25] Speaker 00:
Whereas Prevost talks about keeping a constant level, even if there's an air conditioning blowing, it does the math to figure out how to keep a constant level.

[00:12:33] Speaker 00:
Those are different purposes.

[00:12:34] Speaker 04:
Well, that doesn't seem to respond to the notion that different control schemes are sort of common.

[00:12:40] Speaker 00:
Well, but that's not what... The different sequences is what Laclazant describes, but they have to be programmed by the user.

[00:12:47] Speaker 00:
And the piece that's not common and not shown in any of the art is that there are multiple of those schemes that the user can select

[00:12:55] Speaker 00:
between, and that will specify both the flow rate and the timing for the user, so that unlike in La Pesante, the user doesn't have to determine those things and program them into the machine.

[00:13:07] Speaker 00:
That it's a selectable choice for the user.

[00:13:11] Speaker 01:
And that's novel?

[00:13:13] Speaker 00:
It is.

[00:13:13] Speaker 00:
Certainly the board made several legal errors here, and there's not a single thing in the board's decision to support its finding, that key finding, the fact that there can be multiple programs

[00:13:24] Speaker 00:
on that single device, they mistakenly think that it's a device that you can change the programming and make it into one type of device or another.

[00:13:32] Speaker 00:
But that's not the case.

[00:13:34] Speaker 00:
The reference is clear that it's different devices.

[00:13:36] Speaker 00:
It's describing a whole bunch of different devices that can be made.

[00:13:40] Speaker 00:
And those various sequences are simply the ons and offs of the fan, which the user can program, but in the invention, that's not the case.

[00:13:48] Speaker 00:
In the claims that's construed by the board,

[00:13:51] Speaker 00:
The control scheme has to specify those things.

[00:13:53] Speaker 00:
That's the great thing about the control scheme being there for the user.

[00:13:57] Speaker 01:
You were into your battle tile on the way to taking the other side.

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

[00:14:17] Speaker 01:
Mr. Pong?

[00:14:18] Speaker 02:
May it please the court?

[00:14:19] Speaker 02:
Joshua Pond for Appellee Sent Air.

[00:14:23] Speaker 02:
This morning and in his briefs, Your Honors, Appellant has presented a routine obviousness appeal.

[00:14:30] Speaker 01:
Yeah, but they do identify, well, they can say errors and consistencies.

[00:14:35] Speaker 01:
There are some problems with the board's opinion.

[00:14:38] Speaker 01:
So how do we get by those to affirm them?

[00:14:42] Speaker 01:
I mean, is it with our own insight into common sense?

[00:14:45] Speaker 02:
And how?

[00:14:48] Speaker 02:
No, Your Honor.

[00:14:50] Speaker 02:
Let me try to bring some perspective to the apparent inconsistencies that appellants present and show that substantial evidence does indeed support the outcome of the board and should be affirmed.

[00:15:04] Speaker 02:
Let's talk first about the language that my friend brought up first between pages A17 and A21 of the final written decision.

[00:15:15] Speaker 02:
This is related to Le Baton's disclosure of treating rooms

[00:15:19] Speaker 02:
of various volumes ranging from 30 to 100 cubic meters.

[00:15:24] Speaker 02:
Now, Appellant has presented a contradiction, or really perhaps is a tension, because these two different sections address two different arguments.

[00:15:33] Speaker 02:
At page A17, the board was addressing a single reference obviousness argument, related to La Patate alone, as a single reference.

[00:15:47] Speaker 02:
The board found that the device of Lake DeSante is not disclosed as treating various rooms of 3,100 cubic meters.

[00:15:56] Speaker 02:
We disagree, however, that is the conclusion at A17.

[00:16:01] Speaker 02:
If you turn to page A21, this is addressing the double, the two reference obviousness approach for volume-based control of the combination between Priebus and Lake DeSante.

[00:16:14] Speaker 02:
There the board clearly explained

[00:16:16] Speaker 02:
that while they previously found this passage from Les Bessants did not disclose the device of Les Bessants treating rooms of 3,100 km, therefore not a single reference to obviousness, it did indeed contemplate treating rooms of various volumes, therefore being one of the three reasons that one of ordinary skill would look to combine Les Bessants with another reference.

[00:16:42] Speaker 04:
Where does Les Bessants discuss this?

[00:16:45] Speaker 04:
What page of the record do I look to to see what was not said about this?

[00:16:50] Speaker 02:
Yes, Your Honor.

[00:16:51] Speaker 02:
Let's see.

[00:16:53] Speaker 02:
It's outlined in our brief at

[00:17:42] Speaker 01:
If you look at page five in your brief, you cite what was on 1189.

[00:17:46] Speaker 01:
Your patent is the date in the appendix that 1189.

[00:17:54] Speaker 01:
Yes, you're right.

[00:17:55] Speaker 04:
That page five of the red brief.

[00:17:58] Speaker 01:
And so the site is to 1189.

[00:18:10] Speaker 02:
Yes, it's page A, 1189 of the Joint Appendix, at column 10, lines 8 through 10.

[00:18:21] Speaker 02:
That's the disclosure of Ligson.

[00:18:23] Speaker 02:
Now, again, this is just one of the three reasons that one of the organizers would combine Ligson and Priebus.

[00:18:32] Speaker 02:
The other being the common knowledge of the influence or volume on

[00:18:37] Speaker 02:
liquid diffusion, and this is what she in such posts alluded to earlier.

[00:18:42] Speaker 02:
Dr. Gares, a Pellies expert, introduced the notion of cooking smells.

[00:18:49] Speaker 02:
Small room, the cooking smells, and a large room are going to be bigger.

[00:18:56] Speaker 02:
So, again, that I hope reconciles those two passages.

[00:19:01] Speaker 02:
I'll turn next to the second item that

[00:19:05] Speaker 02:
that Appellant's counsel addressed, which is control schemes.

[00:19:10] Speaker 02:
And here, Appellant has offered a series of theories in an effort to place the control schemes of the 068 patent somehow beyond those control schemes disclosed in Les Bessants.

[00:19:24] Speaker 02:
And the problem has been that Appellant has presented the numerous control schemes of Les Bessants as if they're somehow divided from one another.

[00:19:34] Speaker 02:
This morning, the policy council, my friend, said, referred to it as different devices.

[00:19:40] Speaker 02:
There is no such disclosure in Les Bissons.

[00:19:43] Speaker 02:
In fact, Les Bissons does have a number of embodiments.

[00:19:48] Speaker 02:
However, those embodiments are directed to the means of diffusion.

[00:19:52] Speaker 02:
At the core of our case is the Venturi diffusion of liquid.

[00:19:56] Speaker 02:
Another example is the diffusion of liquid by the use of sound waves.

[00:20:02] Speaker 02:
Those are a number of embodiments.

[00:20:04] Speaker 02:
However, Les Bessants is clear at page A1190 of the record, between lines 1115 and 1123, that when it comes to control, Les Bessants is explicit that its disclosure is applicable to all embodiments.

[00:20:25] Speaker 02:
An appellant has not presented any evidence to the contrary,

[00:20:29] Speaker 02:
somehow providing the numerous control schemes.

[00:20:33] Speaker 02:
In their reply brief, at page two, they should say, it makes little sense.

[00:20:38] Speaker 02:
That's the closest they come.

[00:20:41] Speaker 02:
Indeed, Lafesson's disclosure of control schemes is complete.

[00:20:45] Speaker 02:
The board, the starting point for the board was Lafesson's discussion of a user being able to choose its programming.

[00:20:55] Speaker 02:
And this is at the final written decision at A14.

[00:20:59] Speaker 02:
The way Leipzodont enables the choice of a program is the central processing unit 50, including a random access memory, and this is a good quote here, with parameters set up and user programming data for the performance of various sequences of diffusion, and that's a page A1190.

[00:21:24] Speaker 02:
And they then goes on to introduce its five examples that appellant counsel focused in during her argument.

[00:21:31] Speaker 02:
And it's very important to take a look at the language that prefaces those five examples.

[00:21:37] Speaker 02:
And that again is, let's see, it's on, this is A1191 at column 13, line 25 through 35.

[00:21:54] Speaker 02:
It notes that in the following examples, the described functions and cycles of examples one through five are obtained by programming managed at CPU 50.

[00:22:08] Speaker 02:
The CPU that was referred to earlier, again, you have five examples, a single CPU.

[00:22:14] Speaker 02:
The talent expert, Dr. Shedd, has admitted that example five is a control scheme and one needn't turn no further than examples one, two, three, and four

[00:22:24] Speaker 02:
and the general discussion of control schemes define a plurality of control schemes.

[00:22:31] Speaker 02:
In sum, on a plurality of control schemes, Your Honors, there's no division between the numerous disclosures of Les Passants and if there's a number of programs that are choosable by the user.

[00:22:45] Speaker 02:
I'd like to turn just briefly to volume-based control and the disclosure within

[00:22:52] Speaker 02:
I want to clarify something that Appellant's Council discussed this morning.

[00:22:58] Speaker 02:
Appellant seeks to distinguish previs on the volume-based control element by turning back to the control schemes element.

[00:23:07] Speaker 02:
As Judge Wallach noted, it is L'Appellant that disposes control schemes, and that was found by the board below.

[00:23:15] Speaker 02:
That's what's sent here.

[00:23:17] Speaker 02:
The appellee has contended all along.

[00:23:19] Speaker 02:
Indeed, Prevus's table of lookup, excuse me, the lookup table of set point values is akin to the exemplary but unclaimed table of 068's figure four, such that Aaron and the board discussed control schemes in the context of Prevus.

[00:23:39] Speaker 02:
Though this board need not find that, control schemes are in the episodes.

[00:23:48] Speaker 02:
I guess the final thing I'll just present is regarding the purposes of Les Bessant and Prevus.

[00:23:55] Speaker 02:
Again, the Palin's counsel touched on this this morning.

[00:23:59] Speaker 02:
Palin has long advanced the theory that the 068 patent and Les Bessant vary scent cycles, whereas Prevus maintains a constant scent cycle.

[00:24:12] Speaker 02:
Below, they presented this tension

[00:24:15] Speaker 02:
as somehow supporting a contention that the previous is not reasonably pertinent to the problem of the 068 and therefore not analogous art.

[00:24:25] Speaker 02:
The board disagreed below and found that the 068 patent indeed old cycles and maintains constant odor.

[00:24:33] Speaker 02:
And here they cited claim 11 of the 068 patent which claims constant odor.

[00:24:42] Speaker 02:
Under Inri Bischio, that is the proper framework of the analysis.

[00:24:46] Speaker 02:
When determining analogous art, one looks to compare the purposes of the prior art with the target patent.

[00:24:56] Speaker 02:
Now here on appeal, a patent has shifted its argument.

[00:25:00] Speaker 02:
It's still a purpose-based argument.

[00:25:02] Speaker 02:
However, they're discussing irreconcilable purposes of Lévitant and Prévis.

[00:25:07] Speaker 02:
And here again, record evidence supports that one of ordinary skill would not find

[00:25:12] Speaker 02:
varying odor and maintaining odor to be irreconcilable.

[00:25:18] Speaker 02:
Most importantly, Dr. Gares, the Pellies-Saint-Aires expert, testified twice at pages A1293 and A1829.

[00:25:31] Speaker 02:
That's a vary and maintained odor concentration is like two sides of the same coin.

[00:25:39] Speaker 02:
or to correct a felon's metaphor, land can indeed be both mountainous and flat at various points.

[00:25:48] Speaker 02:
Thus, record evidence supports that a person of ordinary skill would not find labels on a previous irreconcilable, and a felon has offered no evidence of the contrary.

[00:26:00] Speaker 02:
And I would just note as a final point that this purpose-based inquiry is indeed

[00:26:05] Speaker 02:
a factual inquiry under Graham's scope and content of the prior art.

[00:26:10] Speaker 02:
And that case, this court is held at Ingrid Blutetz, 686, F3rd, 1322.

[00:26:18] Speaker 02:
Therefore, subject to substantial evidence deference.

[00:26:24] Speaker 02:
Unless there's any further questions, I'll cede the rest of my time and just note that in conclusion, the board's factual determinations are indeed supported

[00:26:34] Speaker 02:
by substantial evidence and the challenge claims of the 068 would be obvious to one of ordinary scale in New York.

[00:26:40] Speaker 02:
We therefore ask that you affirm this final written decision of the Pat Trowell and Peel Board.

[00:26:45] Speaker 03:
Thank you.

[00:27:11] Speaker 00:
I'd like to first point out where the Lipizont reference specifically says that those examples mentioned by my colleague are devices, multiple devices, not one device with multiple modes.

[00:27:24] Speaker 00:
At A1191, specifically, again, as my colleague pointed out, pointing to the examples, introducing them, more than once the patent says, the reference says, the use of the devices

[00:27:38] Speaker 00:
contracted according to the invention will now be described by means of examples.

[00:27:43] Speaker 00:
And later, the multiple diffusers and programming here provide access to a variety of fields of use of programmed diffusion devices as will appear in the non-limit of examples given below.

[00:27:56] Speaker 00:
That's at A1191 in column 13 from about line 15 down to 35.

[00:28:02] Speaker 00:
The patent specifically says that they are different devices.

[00:28:07] Speaker 04:
Where does it say that?

[00:28:08] Speaker 04:
It refers to the... It doesn't say different devices.

[00:28:10] Speaker 00:
Well, but there's multiple devices, excuse me.

[00:28:13] Speaker 00:
Multiple devices, not multiple modes of a single device.

[00:28:17] Speaker 04:
Where is the reference to multiple devices?

[00:28:20] Speaker 00:
I was at line 19 in column 13.

[00:28:24] Speaker 00:
It says, the device is contracted according to this invention, which will now be described by means of examples.

[00:28:31] Speaker 00:
And then about line 33, the various

[00:28:34] Speaker 00:
programmed fusion devices, as will appear in the non-limited examples given below.

[00:28:40] Speaker 04:
I don't see if that says that these are necessarily separate devices.

[00:28:46] Speaker 03:
Well, and the point that Appellant made also... Especially given the preface to that, which is the multiplicity of fuses and the programming of combinations forming varied sequences.

[00:28:59] Speaker 00:
For a single device, is what the reference says.

[00:29:01] Speaker 00:
Those sequences are turning the fan on and off

[00:29:04] Speaker 00:
in one of the devices, whichever one you happen to be talking about.

[00:29:08] Speaker 00:
I see my time is just about out.

[00:29:10] Speaker 00:
I'd like to make one final point regarding another legal error that was made by the board, which is the improper use of the patent itself to find its motivation to combine.

[00:29:21] Speaker 00:
In particular, the board found, the board compared the PREVAS reference and the 068 patent and found that they have significant structural similarities.

[00:29:32] Speaker 00:
This is at A23.

[00:29:33] Speaker 00:
These structural and functional similarities would have led one of ordinary skill in the art working in the field of atomizing devices, such as those of the 068 patent, to consider similar devices, such as the fumigator of Prevot.

[00:29:47] Speaker 00:
Using the patent itself as a roadmap to combining the prior art is improper and a legal error.

[00:29:54] Speaker 00:
The board likewise erred by comparing the problem addressed in Prevot, giving a constant

[00:30:02] Speaker 00:
level with the problem in the patent itself rather than treating the obviousness inquiry properly, which is at the time of the invention, not using the patent to teach against itself, which is a legal error that should be reversed.

[00:30:18] Speaker 00:
Thank you.