[00:00:00] Speaker 01:
Case this morning, which is very appropriate just before lunch, as it deals with a condiment for ketchup, an item for squeezing a condiment such as ketchup.

[00:00:14] Speaker 01:
15-1176, Scott White vs. H.J.

[00:00:19] Speaker 01:
Hines Company.

[00:00:20] Speaker 01:
15-1176, Mr. Grady.

[00:00:30] Speaker 02:
Thank you, Your Honor.

[00:00:31] Speaker 04:
Tell us, Mr. Grady, why you haven't created a horrific weapon for Judge Moore's children to use in the backseat.

[00:00:39] Speaker 02:
Well, we're trying to make it safe for Judge Moore's children.

[00:00:41] Speaker 02:
There's a squeeze catch-up under there in front of us while they're riding back into that vehicle.

[00:00:48] Speaker 02:
So, my name's Keith Grady.

[00:00:49] Speaker 02:
I'm with the Poulsen-Hilly firm.

[00:00:51] Speaker 02:
I represent Scott White, who's an independent inventor.

[00:00:54] Speaker 02:
And we're here today on appeal from a final decision of the Patent Trial and Appeal Board in validating claims 1 through 19 of the U.S.

[00:01:05] Speaker 02:
Patent 8231026.

[00:01:06] Speaker 02:
That's Mr. White's patent.

[00:01:08] Speaker 02:
Primary issue on appeal is whether the Selfer reference, which appears at pages 32 through 37,

[00:01:16] Speaker 02:
of the joint appendix discloses a dual-function condiment container with a totally removable cup.

[00:01:25] Speaker 02:
That was the issue that the patent office found anticipation based on.

[00:01:31] Speaker 02:
They said the Selco reference anticipates that limitation and all the other limitations of the claims of the white patent.

[00:01:39] Speaker 02:
Claims 14-3.

[00:01:40] Speaker 00:
Does this case just totally boil down to whether or not the peel-off

[00:01:45] Speaker 00:
thing in Selcor is totally removable or whether there's some sort of stop or adhesive or something in the middle that will prevent the average user who's not the Hulk from pulling it all the way off.

[00:01:56] Speaker 02:
Is that what it comes down to?

[00:01:58] Speaker 02:
There's really two issues there.

[00:01:59] Speaker 02:
Number one, does Selcor contain an explicit disclosure, an express disclosure anywhere of a condiment container with a totally removable cup?

[00:02:10] Speaker 00:
Well, I mean, in figures three and four of Selker, which are on page 834 of the record, but I'm sure you're familiar with them, it shows the very same exact embodiment, right?

[00:02:21] Speaker 00:
These are not two different embodiments, being removable from one end of the container.

[00:02:26] Speaker 00:
Then it shows in figure four the same embodiment, the cover being removable from the other end of the container.

[00:02:32] Speaker 00:
Now, in both of these embodiments, it doesn't open sort of

[00:02:37] Speaker 00:
I'd say 50 percent, but that's not exactly right.

[00:02:40] Speaker 00:
You understand.

[00:02:40] Speaker 00:
In both of the embodiments, the picture shows the cover being pulled back, roughly half way, basically to the little dipped container part, my technical language.

[00:02:52] Speaker 02:
The container portion, I think, is what it's referred to itself, right?

[00:02:56] Speaker 00:
Right.

[00:02:58] Speaker 00:
Clearly, the film on top is removable or peelable from both sides.

[00:03:06] Speaker 00:
So in the absence of Selker actually disclosing anything about it not being peelable in the middle, I mean you look at the pictures, there's nothing in figure three or four that would indicate it wouldn't just peel completely off.

[00:03:23] Speaker 00:
You look at figures three and four and I assume from looking at it that it would peel completely off.

[00:03:28] Speaker 00:
That's exactly how this operates.

[00:03:30] Speaker 02:
But you look at the figures in connection with the disclosure of sulfur, correct?

[00:03:34] Speaker 02:
Throughout the disclosure of sulfur, sulfur discusses economic container where the cover is peeled back.

[00:03:42] Speaker 02:
partially from the containment portion and partially from the handle portion.

[00:03:48] Speaker 02:
And in order to function the way it's intended to function as a dual-use container, one into which food can be dipped or one from which condiment can be loaded onto the handle or knife portion and then spread on the food, the lid can't be totally removed because if it is it wouldn't function in that second mode.

[00:04:12] Speaker 00:
Certainly in the first mode where you're dipping, it would totally function.

[00:04:22] Speaker 00:
This whole packet can be used in two ways, kind of like the Heinz one.

[00:04:26] Speaker 00:
It could be used to squeeze or it could be used to dip.

[00:04:29] Speaker 00:
I might not be getting it exactly right.

[00:04:31] Speaker 00:
It's an either or.

[00:04:33] Speaker 00:
You're not going to do both.

[00:04:34] Speaker 00:
If I'm a consumer and I'm intending to dip,

[00:04:38] Speaker 00:
I can get full functionality out of the dipping process by pulling that thing completely off.

[00:04:43] Speaker 00:
It's only if I'm a consumer and I'm attending to squeeze that I don't pull the whole thing off.

[00:04:52] Speaker 02:
In silker, the narrow portion is intended to function as a handle.

[00:04:59] Speaker 02:
There's a disclosure of that in silker that the narrow portion, when it's being used for dipping food, when the cover is peeled off of the wide portion,

[00:05:11] Speaker 02:
then the user can grasp the container with the narrow handle.

[00:05:14] Speaker 00:
Oh, and you couldn't grasp because the whole top was gone.

[00:05:16] Speaker 02:
If the whole top was gone, your hand would be inside, partially, your fingers would be partially inside of that hollow trough, as it's called in Selker, and condiment can

[00:05:27] Speaker 00:
It's not a healing way to describe food delivery.

[00:05:32] Speaker 00:
But one of the things I noticed in Selker that you have pointed to in column two

[00:05:45] Speaker 00:
is that it seems like it's the user who needs to stop pulling the top off completely in order to use the product as intended, the way you've described it, which was very helpful.

[00:05:59] Speaker 00:
But it's the user that has to do it, because it actually says, I mean, to use the package assembly as a container, the user grips the base and the lid

[00:06:11] Speaker 00:
and peels the lid apart from the base towards the handle, but stopping before reaching the handle region.

[00:06:18] Speaker 00:
So that's all action taken by the user.

[00:06:21] Speaker 00:
The user, in order to operate this thing properly, has to stop peeling.

[00:06:26] Speaker 00:
I guess what I'm wondering is, do you necessarily, you've put a lot of eggs in the basket that there's got to be some stop here,

[00:06:34] Speaker 00:
Intuitively, one a skilled mayor would know, you could use a little adhesive, you could do something, there's got to be a stop, sort of a non-disclosed structural element in Selcor is what you've kind of to some extent hung your hat on.

[00:06:47] Speaker 00:
But I'm wondering, do you even need to go that far in order to prevail or is it enough in your view that because the only way to properly use this, if you don't want to dip your thumb into the food source,

[00:07:00] Speaker 00:
is to not pull it all the way off.

[00:07:03] Speaker 00:
I mean, is that standing alone enough or do I have to go with you all the way down the road and conclude that Selker also discloses an undisclosed stop?

[00:07:12] Speaker 02:
I don't think you have to go all the way with me.

[00:07:14] Speaker 02:
I think there might be a fork in the road here and we can go down one side or the other.

[00:07:19] Speaker 02:
I don't think Selker discloses anywhere in the reference.

[00:07:24] Speaker 02:
a totally removable cover.

[00:07:26] Speaker 02:
I've looked at it, I've read it.

[00:07:28] Speaker 02:
It teaches away from it.

[00:07:29] Speaker 02:
It says to use this device properly, the user has to pull it up to a certain level and stop.

[00:07:36] Speaker 02:
And then you can dip, use as a handle, or if you pull from the handle end, you can load condiments up into that handle portion and then use it as a knife to spread it on the food.

[00:07:47] Speaker 02:
So I don't think it teaches away from pulling the cover completely off.

[00:07:52] Speaker 02:
Could a user potentially pull the cover completely off?

[00:07:55] Speaker 02:
Well, now, you know, we're kind of talking about inherency and whether there's an inherent finding that SELF is totally removable.

[00:08:03] Speaker 02:
And the board didn't articulate any finding of inherency.

[00:08:08] Speaker 02:
And under the Trefrida case, which we cited in our brief and involved a similar sort of situation where the board

[00:08:16] Speaker 00:
But this is just a little piece of film, or in like the Heinz case, a little bit of aluminum foil kind of thing, right?

[00:08:26] Speaker 00:
When you say it doesn't disclose one, it's totally removable.

[00:08:31] Speaker 00:
This is totally removable in normal use.

[00:08:33] Speaker 00:
In fact, the sex cautions you in the two places stop removing at a certain point.

[00:08:42] Speaker 00:
I'm a little bit confused why it would need to inherently do anything because it seems to me the film is, on its face, totally removable.

[00:08:51] Speaker 00:
You're talking about a little film.

[00:08:54] Speaker 02:
I understand that, but it's our position that as you read that reference it teaches away from removing the tongue.

[00:09:00] Speaker 02:
It says, pull it back this far to use it as a dip portion, pull it back this far in the handle to use it for a knife or a strutting function.

[00:09:11] Speaker 02:
So we think it teaches away from totally removable cover and doesn't displace it.

[00:09:17] Speaker 02:
In the PTAB proceedings, in the Anthropologist Review, we had an alternative ground that we argued that

[00:09:25] Speaker 02:
Based on one of ordinary skill in the art, reading this reference and understanding how it was intended to function would recognize that it would necessarily have a stop or a lockup seal located in about the midpoint of figures three and four that are interposed in the appendix that we spoke about before.

[00:09:46] Speaker 02:
We have declarations from Mr. Dunn.

[00:09:49] Speaker 00:
That felt like reading a structural limitation into Selker that I don't see there at all.

[00:09:56] Speaker 00:
The fact that when a skill in the art would know how to do it, would know it could be done, that it could be done easily and routinely is different from whether or not that's present in Selker, isn't it?

[00:10:10] Speaker 02:
I don't think it is.

[00:10:13] Speaker 02:
I think what Mr. Morrow and Mr. Dunn said was reading the Selca reference and looking at what's disclosed in the Selca reference and the way it's intended to be used.

[00:10:26] Speaker 02:
You partially feel bad in each direction.

[00:10:29] Speaker 02:
then one ordinary skill in the art would understand that it's necessary to have a stopping point in about the middle of the condiment container.

[00:10:39] Speaker 00:
Except the picture doesn't show anything like that and in fact cuts against you.

[00:10:44] Speaker 00:
When you look at figures three and four, not only is there not a stopping point, but the film doesn't actually make contact there in the center with the lower portion

[00:10:54] Speaker 00:
of 102 or whatever you want to say, that middle portion right there in figure four where it's peeled back to the top film isn't at all in contact.

[00:11:06] Speaker 00:
So this isn't a matter of like lunchables, right?

[00:11:08] Speaker 00:
Where you've got the four separate compartments and the film in the center, the crosshair that separates the four compartments is actually adhered a little bit because it comes in direct contact with the structure underneath.

[00:11:22] Speaker 00:
You know what I'm talking about, right?

[00:11:23] Speaker 00:
And so this picture doesn't show that the film ever comes in contact with.

[00:11:27] Speaker 00:
So how could there be a stop?

[00:11:28] Speaker 00:
Your expert talked about adhesives or other things.

[00:11:32] Speaker 00:
But look, it actually shows the food substance in there going all the way through.

[00:11:39] Speaker 00:
Is the adhesive in the middle of the food substance in this picture?

[00:11:42] Speaker 00:
I mean, you see why I'm having some problems with the idea that...

[00:11:47] Speaker 01:
I think Chuck Wallach has a question before time elapses.

[00:11:55] Speaker 05:
Under secondary considerations, you argue copying.

[00:11:58] Speaker 05:
In order to make that argument, Mr. White has to present evidence of Heinz's efforts to replicate a specific product.

[00:12:07] Speaker 05:
Where in the record is that specific product?

[00:12:09] Speaker 02:
Joint appendix pages 325 to 340 is the presentation that Mr. White made to Heinz at the meeting.

[00:12:17] Speaker 05:
What's the specific product that they're copying?

[00:12:20] Speaker 02:
Well, the specific, Mr. White hasn't produced a specific product.

[00:12:25] Speaker 02:
He disclosed his own.

[00:12:26] Speaker 05:
But you have to have one in order to copy.

[00:12:28] Speaker 02:
Well, I think you can copy a prototype or you can copy something that's disclosed in a meeting.

[00:12:33] Speaker 02:
It doesn't have to be a tangible product.

[00:12:36] Speaker 02:
And what Mr. White disclosed to Hines was a dual-function condiment container with a totally removable cover.

[00:12:44] Speaker 02:
And it appears that 325 to 340 is intended.

[00:12:50] Speaker 02:
In that presentation, he disclosed from Figure 3 of the patent and the description of how the cover would be totally removable and how the reference would operate or how the device would operate.

[00:13:04] Speaker 01:
Brady, you're into your rebuttal time, which I assume you want to save.

[00:13:10] Speaker 01:
So we will hear from Mr. Pedrick.

[00:13:18] Speaker 00:
We let him catch us up on his own.

[00:13:19] Speaker 00:
Yes.

[00:13:20] Speaker 00:
Good morning, Your Honor.

[00:13:24] Speaker 06:
I'm Bronco Puget on behalf of Heinz and the Green, Blue, and the Bernstein firm.

[00:13:30] Speaker 06:
We believe that the Board got it right.

[00:13:32] Speaker 06:
And I'd like to go to Judge Moore's comments on the adhesive.

[00:13:37] Speaker 06:
I think it's very instructive if you also take a look at the 026 pattern, particularly at column four.

[00:13:46] Speaker 00:
And you talk about... Which one is the 026?

[00:13:49] Speaker 00:
This is in anticipation.

[00:13:50] Speaker 06:
Yes.

[00:13:52] Speaker 06:
Anticipation of claims 14 through 18.

[00:13:55] Speaker 06:
Patent suit.

[00:13:57] Speaker 00:
Okay.

[00:13:59] Speaker 00:
That's all right.

[00:13:59] Speaker 00:
I thought you were taking me to another piece of prior art and I was confused.

[00:14:02] Speaker 00:
I'm sorry.

[00:14:03] Speaker 06:
No.

[00:14:03] Speaker 06:
And as far as that goes, the obvious misrejection to the remaining claims has not been otherwise been disputed, as your Honor said, but I noted earlier.

[00:14:11] Speaker 00:
Okay.

[00:14:12] Speaker 00:
So the patent suit, where do you want to take us?

[00:14:14] Speaker 06:
A 29, column 4.

[00:14:20] Speaker 06:
And by way of background, both Selkirk and the 026 containers, they are constructed the same way.

[00:14:26] Speaker 06:
Not only do they function the same way, they are constructed the same way.

[00:14:30] Speaker 06:
You have a base, you have a lid, and they're adhered with adhesive.

[00:14:34] Speaker 06:
And in particular, I'd like you to take a look, I think it's line 26, where it says the covers of the 026 patent are attached to a top portion of the lip, that being of the base, with an adhesive also suitable for use in the food industry.

[00:14:49] Speaker 06:
That is allegedly and admittedly a completely, totally removable cover in the 026.

[00:14:56] Speaker 06:
And if I can now ask your honors to turn to Selfer.

[00:15:01] Speaker 06:
And paragraph 18, let's see, at A37.

[00:15:12] Speaker 06:
And I'll go ahead and read it.

[00:15:13] Speaker 06:
It's the latter part of the paragraph here.

[00:15:17] Speaker 06:
where it says the package assembly 100 is formed when the base 102 is sealed with the lid 104 using a conventional adhesive 112 deposited on the flange, I'm sorry, applied to either the exterior circumferential flange or the lid.

[00:15:35] Speaker 06:
A consumable product is then placed in the containment region.

[00:15:40] Speaker 06:
As Judge Moore was noting,

[00:15:42] Speaker 06:
there is no disclosure at the stop.

[00:15:44] Speaker 06:
There's no disclosure of anything that would inhibit, prevent, or otherwise get in the way of totally removing the top of stuff.

[00:15:51] Speaker 00:
I understand your argument that there is nothing that would get in the way of totally removing this top, but the patent counsels in two different places that users should absolutely not do that because it won't work.

[00:16:07] Speaker 00:
How is that not

[00:16:09] Speaker 00:
presumptively showing that total removal is not contemplated, but would render the product and issue in this patent inoperable, and as such, we shouldn't read this as an anticipatory reference if used in a way that would only render it inoperable.

[00:16:26] Speaker 06:
Well, first off, this priority is good for all it teaches, but second off... But it teaches you not to pull the whole top off.

[00:16:33] Speaker 00:
Not to.

[00:16:34] Speaker 00:
Absolutely not to.

[00:16:34] Speaker 00:
It says it in two places.

[00:16:36] Speaker 06:
Your honor, you are correct.

[00:16:38] Speaker 06:
However, what we're missing here is the fact that if you want to dip, there's going to be condiment that works its way not only in the deep end of sulfur but into this trough or the shallow end.

[00:16:48] Speaker 06:
And if you truly want all your condiment, you know, that last bit of tasty ketchup, you're going to pull that off so you can get your french fry in there and get the last bit of condiment.

[00:16:57] Speaker 06:
The argument isn't that Selker would not work, it's that it would work less efficiently without a stop.

[00:17:03] Speaker 00:
It says that if you're going to dip, you want to be able to hold on to the other part and use it like a handle.

[00:17:09] Speaker 00:
That's the disclosure in Selker is to use it like a handle.

[00:17:13] Speaker 00:
Well, it's not, I mean, I guess technically it's still a handle, even my thumbs in the ketchup, but it feels like that's pretty clearly what's not intended in Selker because it expressly says so.

[00:17:24] Speaker 00:
So I don't,

[00:17:26] Speaker 00:
I mean, the fact that it could be removed and that maybe somebody would be motivated to remove it all is different from whether this reference teaches removing it all.

[00:17:35] Speaker 06:
I think what we're missing here is it doesn't say you always have to use it for a handle because if you're actually going to be spreading, you'll be removing the top and squeezing condiment into that trough that's otherwise the handle.

[00:17:49] Speaker 06:
So you can certainly hold the container in your hand as such.

[00:17:53] Speaker 00:
There's no disclosure in self care of that.

[00:17:56] Speaker 06:
Of squeezing?

[00:17:57] Speaker 00:
Of holding it in your hand.

[00:17:59] Speaker 00:
There's no disclosure in Selcor of doing it that way.

[00:18:01] Speaker 00:
There's no disclosure in Selcor of total removal.

[00:18:03] Speaker 00:
What you see in Selcor is two admonishments not to totally remove and two reasons why.

[00:18:09] Speaker 00:
In one instance it's the handle portion and in the other instance it's before reaching the containment region.

[00:18:14] Speaker 00:
There's two ways to use this product in disclosure in Selcor, kind of like the two ways to use the Heinz product.

[00:18:23] Speaker 00:
And it tells you in either way, do not remove this total top, the total top.

[00:18:27] Speaker 00:
So the fact that it's possible to remove the total top doesn't mean that it discloses removing the total top.

[00:18:34] Speaker 06:
Well, I think that you can look at just the use of these containers in general and look, for instance, at the 026.

[00:18:40] Speaker 00:
But wouldn't that be obviousness?

[00:18:42] Speaker 00:
not anticipation if you're going to look to the use of these containers in general as opposed to what is expressly taught by the one reference that's here for anticipation.

[00:18:50] Speaker 06:
If we get to the concept that there must be a stop, every teaching of Selker... I don't think there must be a stop.

[00:18:58] Speaker 00:
I mean, come on, you got that much from the last set of questions.

[00:19:01] Speaker 00:
My problem is I don't care whether there's a stop.

[00:19:03] Speaker 00:
I don't have to go that way because Selker

[00:19:06] Speaker 00:
doesn't ever disclose a totally removable top.

[00:19:09] Speaker 00:
And in order to make it a totally removable top, you'd have to go against the express teachings of Selkirk two places not to totally remove the top.

[00:19:17] Speaker 00:
So I'm finding it hard to agree with you that this reference standing alone anticipates.

[00:19:23] Speaker 06:
I'd like to direct your honors to figures two and five of Selkirk, which show the container without the top.

[00:19:36] Speaker 00:
Did the board make any fact findings about figure 2 and 5 along these lines?

[00:19:45] Speaker 00:
say that this shows that the top is totally removable or anything?

[00:19:49] Speaker 06:
They did not expressly address figures two and five, but I think it's one of the underlying aspects of the board's conclusion that there is nothing in Selcor that would teach a stop and that contrary to a stop, Selcor just relies on the user to determine how far this user would like to peel the top.

[00:20:11] Speaker 00:
Well, no, it doesn't allow the user to determine how far.

[00:20:14] Speaker 00:
It tells you precisely where the user needs to stop peeling the top.

[00:20:19] Speaker 00:
Precisely.

[00:20:19] Speaker 00:
Stop before reaching the handle region.

[00:20:22] Speaker 00:
Stop before reaching the containment region.

[00:20:24] Speaker 00:
So it's not like just relying on the user.

[00:20:26] Speaker 00:
I mean, I made that little joke about the Incredible Hulk earlier, but I kind of meant it, right?

[00:20:30] Speaker 00:
Even the Incredible Hulk could come along and, no matter how much adhesive's in there, pull it all off.

[00:20:35] Speaker 00:
The fact that it could be done, that it's possible for someone to do, doesn't mean this reference teaches

[00:20:40] Speaker 00:
the average skilled artisan to do that?

[00:20:43] Speaker 06:
Your Honor, I would think that it does in the sense that figures two and five show an unsealed container.

[00:20:51] Speaker 06:
If it's an unsealed container, by definition, it would have to be sealed prior to that.

[00:20:57] Speaker 00:
No, why?

[00:20:58] Speaker 00:
Why isn't it prior to being sealed?

[00:21:00] Speaker 00:
It's an unsealed container, a container that is not yet sealed.

[00:21:04] Speaker 06:
Interestingly enough, and we're talking about the construction of Selfer in paragraph 18,

[00:21:10] Speaker 06:
they don't talk about an unassembled container and assembles container this is how you assemble it.

[00:21:16] Speaker 06:
It talks about how you put the adhesive on the flange and adhere the top.

[00:21:22] Speaker 00:
I'm confused.

[00:21:24] Speaker 00:
I don't understand how what you just said is responsive to whether or not figure 2 and figure 5 prove that this is a container whose top has been removed as opposed to a container who has not yet had a top installed on it since this is a

[00:21:40] Speaker 00:
structural invention, and you've got to show it from all the angles.

[00:21:45] Speaker 00:
I mean, a top-down view lets the container top a see-through.

[00:21:48] Speaker 00:
A top-down view seems to be a logical way to show it.

[00:21:51] Speaker 00:
It says it's unsealed.

[00:21:52] Speaker 00:
If board made fact findings in your favor, this would probably be a better case for you.

[00:21:57] Speaker 06:
I understand.

[00:21:58] Speaker 00:
They didn't make any fact findings along those lines.

[00:22:00] Speaker 00:
And so aren't you asking me to do that now?

[00:22:02] Speaker 00:
What a prior reference discloses is a question of fact.

[00:22:05] Speaker 00:
Now you're asking me to interpret what those figures mean in the first instance.

[00:22:09] Speaker 06:
What we're asking this panel to do is to uphold the board and find that there is no teaching of the stop and no teaching in self-hurt that would prevent the top from being totally removable.

[00:22:22] Speaker 00:
See, that doesn't make sense.

[00:22:24] Speaker 00:
Suppose the reference was to a chair with four legs.

[00:22:28] Speaker 00:
Would you be arguing to me there's no teaching in there not to break off one of those legs and make this damn thing a stool?

[00:22:34] Speaker 00:
I mean, that can't be the way we do this.

[00:22:36] Speaker 06:
What we're doing here though is we're missing the force of the trees if you will.

[00:22:41] Speaker 06:
The 026 claims are product claims.

[00:22:45] Speaker 06:
The structure of sulfur and the structure of the 026 are the same.

[00:22:48] Speaker 06:
This is the screener case where function can't be used to distinguish from structural product projections.

[00:23:00] Speaker 00:
Okay, I didn't follow that, but it seems important.

[00:23:02] Speaker 06:
Try again.

[00:23:03] Speaker 06:
Well, you had a oil can as the prior art, and you had the popcorn can.

[00:23:09] Speaker 06:
The arguments there was we were patented over because the oil can is not suitable for popcorn.

[00:23:18] Speaker 06:
This court said no.

[00:23:21] Speaker 06:
Functionality does not get you past structural rejection.

[00:23:25] Speaker 06:
the structures are the same, the structures operate the same.

[00:23:28] Speaker 06:
That is anticipation.

[00:23:29] Speaker 06:
The fact that there's a functional aspect out there is irrelevant to what we're talking about.

[00:23:40] Speaker 00:
But the claims recite a totally removable lid, right?

[00:23:46] Speaker 00:
Don't they?

[00:23:46] Speaker 00:
Totally removable container?

[00:23:48] Speaker 00:
I don't remember what the term is.

[00:23:50] Speaker 06:
It says it's totally removable, but Council for White is arguing that sulfur couldn't function in a way for spreading, thus it could not anticipate the O2-6.

[00:24:04] Speaker 06:
That is screener.

[00:24:06] Speaker 06:
We are teaching sulfur is a structure.

[00:24:09] Speaker 06:
It is a container, it has a lid, it's covered with adhesive, and then you can tear it off.

[00:24:15] Speaker 06:
Whether or not the cell phone could operate as it is talked about is irrelevant because it's a structure and it anticipates based upon the structure.

[00:24:27] Speaker 00:
How is that different from my crazy stool example?

[00:24:31] Speaker 06:
Could you please repeat that?

[00:24:32] Speaker 06:
I remember the question but.

[00:24:36] Speaker 00:
I mean my crazy example was a prior reference to schools is a chair

[00:24:41] Speaker 00:
And if you argued to me today, well, wait a minute, the user could break off one of those legs and make it a stool.

[00:24:46] Speaker 00:
It could happen, it's true, but it doesn't disclose a stool.

[00:24:52] Speaker 06:
Right, but if there were pictures and common sense dictated, we have an expert that is unrefined.

[00:24:59] Speaker 00:
You're a ketchup expert.

[00:25:01] Speaker 06:
No, condiments expert, Mr. Wagner.

[00:25:06] Speaker 06:
He says reading self or one still in the art and understanding that there is only one adhesive that you would understand that the top is totally removable.

[00:25:16] Speaker 06:
He also has talked about the fact that it functions the same way as the 026 as you noted earlier.

[00:25:22] Speaker 06:
If you want to squeeze, you have to tear it off the shallow end, the narrow end, and you can squeeze out.

[00:25:28] Speaker 06:
If you want to dip, you tear it from the other end.

[00:25:31] Speaker 06:
And so that being the case, if you want to dip and you want that last bit of ketchup, you are capable of taking it off and dipping it in there.

[00:25:40] Speaker 06:
And I don't believe that the patent has to expressly say that you could hold the condiment container in your hand if you wanted to get the last bit of condiment.

[00:25:48] Speaker 06:
Because it doesn't take a PhD in ketchup to know that you could hold it other than with just a handle.

[00:25:56] Speaker 06:
Because nowhere in sulfur does it say you must hold it just as a handle.

[00:26:03] Speaker 06:
I hope I answered those questions.

[00:26:08] Speaker 06:
Would anyone else have a question?

[00:26:12] Speaker 01:
If there's nothing further.

[00:26:13] Speaker 06:
I would just like to point out that I don't want you to spread yourself too thin.

[00:26:23] Speaker 06:
The one thing in particular is white experts, when they juxtapose container figures three and four and try to infer a stop, and I believe that, I'll just show you the exact site.

[00:27:02] Speaker 06:
Yeah, okay.

[00:27:03] Speaker 06:
Figures three or four, the whites experts turn three and four to each other and have a small space that they call where the stop would stay.

[00:27:14] Speaker 06:
And under the Hoekerson case, unless the spec says expressly that these figures are to scale

[00:27:23] Speaker 06:
that there is some relative relationship between them.

[00:27:28] Speaker 06:
They're nothing but representative.

[00:27:29] Speaker 06:
And so it is complete error and improper to take figures and then try to infer sizing and features that just aren't there.

[00:27:38] Speaker 06:
Essentially, what Mike has done here is fabricated a feature in the prior art to then try to distinguish over it.

[00:27:47] Speaker 06:
I mean, it's merely a straw man, Your Honors.

[00:27:49] Speaker 06:
And thank you for your time.

[00:27:51] Speaker 01:
I guess we're going to stop here.

[00:27:55] Speaker 01:
Mr. Grady has a little more than two minutes for rebuttal.

[00:28:00] Speaker 02:
Yes, thank you.

[00:28:01] Speaker 02:
I'd like to address figures two and five of Selker.

[00:28:05] Speaker 02:
It's clear from the Selker reference that figures two and five show, they show a top view in figure two of the unsealed container and figure five shows a top view of the unsealed container showing us the rated edge.

[00:28:19] Speaker 02:
What Selker means by that, this is what the sealed container looks like before the seal is applied.

[00:28:26] Speaker 02:
If that's in paragraph 13 of SELFAR and 836 in paragraph 16 of SELFAR also on page 836 of the 20th context, figure 3 by contrast is discussed right in paragraph 14 of SELFAR on page 836 and it says... Well, to be clear, you just said something that I think went too far.

[00:28:48] Speaker 00:
You said paragraph 13 and 16 show that it's before the seal is applied.

[00:28:54] Speaker 00:
That's correct.

[00:28:54] Speaker 00:
I don't see them saying that.

[00:28:55] Speaker 00:
I see them saying

[00:28:58] Speaker 00:
Paragraph 13 says figure 2 is a top view of the unsealed container.

[00:29:03] Speaker 00:
Isn't it possible for the container to be unsealed by having pulled the top off?

[00:29:07] Speaker 02:
It's not, Your Honor, because the purpose of figure 2 is to show a top view prior to application of the seal.

[00:29:14] Speaker 00:
Why prior?

[00:29:15] Speaker 00:
That's the part that I'm not getting, the prior, the top.

[00:29:17] Speaker 02:
Sure, and if you look at figure 3, the description of figure 3, it says

[00:29:22] Speaker 02:
It's a side view of a filled container with the seal removed from the containment portion.

[00:29:27] Speaker 02:
So when Selker talks about removing a seal, it uses the word remove.

[00:29:32] Speaker 02:
When it talks about the unsealed container in Figures 2 and 5, it's just showing a perspective view of that.

[00:29:39] Speaker 02:
It's talking about the container without the seal.

[00:29:41] Speaker 02:
There's also a discussion in the text at Paragraph 18 of Selker describing... So your argument would be if Figure 3 would have

[00:29:52] Speaker 00:
Figure two and figure five would have used the word removed rather than unsealed if they meant something where the same thing.

[00:30:01] Speaker 02:
Correct.

[00:30:01] Speaker 02:
With the seal removed.

[00:30:02] Speaker 00:
Because they used removed elsewhere.

[00:30:04] Speaker 02:
That's correct.

[00:30:04] Speaker 02:
Where they were detecting a portion of the seal being removed.

[00:30:09] Speaker 02:
I have 18 seconds left and so I'd like to refer you to page 253 of the appendix for discussion of where Mr. Dunn talks about how

[00:30:20] Speaker 02:
a heat sealed stock should be created by increasing the temperature on a typical adhesive and the type of typical adhesive that's used in this.

[00:30:32] Speaker 02:
Thank you for your time today and we respectfully request that you reverse the board's decision.

[00:30:37] Speaker 01:
Thank you, Mr. Grady.

[00:30:38] Speaker 01:
We'll take the case under advisement and that concludes this morning's arguments.

[00:30:43] Speaker 03:
All rise.

[00:30:56] Speaker 02:
The Honorable Court is adjourned until tomorrow morning, 10 a.m.