[00:00:00] Speaker 01:
Morning is 151616 Bridgeport fittings versus Arlington Industries.

[00:00:06] Speaker 01:
Mr. Ungerman, whenever you're ready.

[00:00:14] Speaker 03:
May it please the court.

[00:00:17] Speaker 03:
The board in this case stated that it's positive issue as does Hamilton, the prior art,

[00:00:24] Speaker 03:
disclose or render obvious the claimed relationship between the ends of the fingers and the core.

[00:00:35] Speaker 03:
The claim actually says, the end of the fingers of the second core engage the shoulder of the first core.

[00:00:42] Speaker 02:
So you didn't put in any declaration from an expert as to why it would have been obvious to modify Hamilton, right?

[00:00:51] Speaker 02:
No, Your Honor, we didn't.

[00:00:53] Speaker 02:
Don't you think that that's sort of helpful in these cases?

[00:00:57] Speaker 03:
Well, so we'll get to it.

[00:00:59] Speaker 03:
But the board actually found that modification of Hamilton would be obvious.

[00:01:05] Speaker 03:
It said that the cores or the grooves on the cores can be reversed.

[00:01:10] Speaker 03:
It's nothing more than common sense.

[00:01:14] Speaker 03:
And so without a declaration, the experts at the patent office were

[00:01:20] Speaker 03:
were able to ascertain that certain things would be obvious to them.

[00:01:24] Speaker 01:
Right, but they didn't find that a two-step modification of Hamilton would be obvious, correct?

[00:01:29] Speaker 03:
All right, so which is why I'm going back to the claim language.

[00:01:34] Speaker 01:
First, I want to understand how your second modification that you're proposing for the first time on appeal isn't waived.

[00:01:43] Speaker 03:
This is not a second modification and not something that we proposed for the first time on appeal.

[00:01:51] Speaker 03:
Opposing counsel objected to one of the figures in our brief that was not used beneath.

[00:01:59] Speaker 03:
It was a, we'll call it demonstrative for illustration purposes in the brief.

[00:02:07] Speaker 03:
But I'm not referring to that.

[00:02:10] Speaker 03:
I'm not arguing that point.

[00:02:12] Speaker 03:
And the underlying issue of obviousness.

[00:02:17] Speaker 01:
Well, then that's a little, I mean, I'm a little concerned about that because you put in a figure in your brief that showed a different modification than the one that the board had found in order to try to create a shoulder, correct?

[00:02:34] Speaker 03:
No, Your Honor, that's not what it was.

[00:02:37] Speaker 03:
In fact, that modification pretty clearly didn't have the tightly fitting abutment.

[00:02:45] Speaker 03:
And it wasn't that we were proposing that that figure would have been obvious.

[00:02:51] Speaker 03:
It was trying to show that the conclusion that was reached doesn't make sense in light of

[00:03:00] Speaker 03:
the things that could be changed and in light of the claim construction that applied.

[00:03:05] Speaker 03:
Are you talking about the figure on page 43?

[00:03:11] Speaker 03:
I believe that's it, yes, your honor.

[00:03:13] Speaker 03:
I mean, that's totally inoperable, right?

[00:03:16] Speaker 03:
Absolutely.

[00:03:18] Speaker 03:
You could never build that device.

[00:03:20] Speaker 03:
The idea was that was meant to show the board construed

[00:03:29] Speaker 03:
the term end as the furthest point or boundary.

[00:03:33] Speaker 03:
And that was supposed to show a point as the end.

[00:03:41] Speaker 03:
But what I'd sort of like to talk about is what the claims do say and what the board actually did address in this case, which is they found that

[00:03:53] Speaker 01:
I just want to completely understand.

[00:03:55] Speaker 01:
This is all very strange to me.

[00:03:57] Speaker 01:
So you're saying we should just ignore this figure on page 43?

[00:04:00] Speaker 03:
You can, because it doesn't support, it's not required for any of the arguments that, any of the arguments even that are made in the brief.

[00:04:08] Speaker 01:
You're saying you couldn't have made this, and that this wouldn't have been obvious.

[00:04:13] Speaker 01:
This wouldn't work, and it wouldn't have been obvious.

[00:04:15] Speaker 03:
It is to illustrate something that could be within the scope of the claims, but nobody would make this.

[00:04:23] Speaker 01:
Then why is it in your brief?

[00:04:25] Speaker 03:
To illustrate what could be within the scope of the claims was the point.

[00:04:30] Speaker 03:
The construction of the term end was for this point a boundary and shoulder.

[00:04:35] Speaker 03:
And this was a finger with an end and a core with a shoulder.

[00:04:42] Speaker 03:
So in hindsight, I shouldn't have gone anywhere near that to make that argument, because it's just distracting from really what

[00:04:52] Speaker 03:
what the case is about.

[00:04:56] Speaker 03:
And I apologize for that.

[00:05:02] Speaker 03:
The board, I think, incorrectly concluded that the ends of the fingers do not engage the shoulder of the first corps.

[00:05:12] Speaker 03:
The ends of the finger engage the shoulder at the edge of the end.

[00:05:19] Speaker 03:
The interior edge touches the shoulder.

[00:05:22] Speaker 03:
And we know it touches because it's a snug fit.

[00:05:26] Speaker 03:
And that's all that's required for engagement.

[00:05:32] Speaker 03:
Once the board found that Hamilton doesn't disclose, though, they completely dropped the ball.

[00:05:42] Speaker 03:
Because what happened was that they framed the issue, does Hamilton disclose or render obvious the relationship?

[00:05:53] Speaker 03:
They said, Amberloom doesn't disclose.

[00:05:55] Speaker 03:
Disclose what?

[00:05:57] Speaker 03:
A shoulder.

[00:05:58] Speaker 03:
Disclose the end of the fingers abutting the shoulder.

[00:06:03] Speaker 03:
Doesn't disclose the relationship between what is in the claims.

[00:06:09] Speaker 03:
So once they found it doesn't disclose, they never even talked about, hey, is this obvious?

[00:06:16] Speaker 03:
They told us that was the issue.

[00:06:17] Speaker 03:
And then they went on to say, and by the way,

[00:06:21] Speaker 03:
We don't have to address these other arguments about obviousness, but we agree with Mr. Ungerman that it would be obvious to reverse the grinding of the cores.

[00:06:34] Speaker 03:
And the reason why it would be obvious is the same reason why they should have found that the claims were obvious, because the invention of Hamilton and the invention of the Arlington patent are identical.

[00:06:51] Speaker 03:
They are intended to create a molded part that has no flash by using core pieces that fit tightly together.

[00:07:03] Speaker 03:
If you look at the Arlington patent, you look at the summary of the invention, they don't mention once in the summary end of the fingers.

[00:07:11] Speaker 02:
How come the board's decision is not supported by substantial evidence when you presented no evidence at all on the issue of obviousness?

[00:07:22] Speaker 03:
Well, there is evidence.

[00:07:24] Speaker 03:
The evidence is in the prior art.

[00:07:27] Speaker 03:
And the board was able to look at the prior art and conclude that modifications were obvious and should have used that same reasoning on the basis of the evidence, the prior art of record, to reach the same conclusion regarding the claim language.

[00:07:52] Speaker 03:
But the problem with the board's decision was, one of the problems is, they never got to obviousness.

[00:07:59] Speaker 03:
They simply concluded, and their analysis is on page 12 of A12, it is less than a page long.

[00:08:09] Speaker 03:
And they have this idea that the ends are open to the mold cavity, and then it's where they stop.

[00:08:20] Speaker 03:
They don't even put in a conclusion that it's obvious.

[00:08:23] Speaker 03:
They say, we affirm.

[00:08:25] Speaker 01:
Well, wait.

[00:08:26] Speaker 01:
But it was based on the whole discussion regarding Hamilton that occurred earlier.

[00:08:33] Speaker 01:
I mean, you really can't say that the page where they're essentially summarizing things is all they did.

[00:08:40] Speaker 03:
So they described Hamilton earlier on.

[00:08:45] Speaker 03:
They said what they felt Hamilton showed.

[00:08:50] Speaker 03:
Then they talked about claim construction.

[00:08:53] Speaker 03:
And then they said, Hamilton doesn't disclose the relationship between the shoulder and the core.

[00:09:00] Speaker 01:
And that's partially because they rejected your definition of end portion, correct?

[00:09:13] Speaker 03:
They came up with their own construction.

[00:09:16] Speaker 01:
Well, I mean, I don't understand how you could even

[00:09:20] Speaker 01:
claim that end portion and end are one and the same when the claim exactly says extending from the end of the first core towards the base portion.

[00:09:33] Speaker 01:
And in that case, you've got an end portion that extends from the end.

[00:09:37] Speaker 01:
By definition, they're different.

[00:09:39] Speaker 03:
All right, so if we're talking about claim construction of end and end portion, the board here went on a hunting expedition to come up with this theory that

[00:09:51] Speaker 03:
that the patent consistently uses end in one way and end portion in another way.

[00:09:58] Speaker 01:
What do you mean a hunting expedition?

[00:10:00] Speaker 01:
They looked at the specification.

[00:10:03] Speaker 01:
They looked at the language of the claims.

[00:10:05] Speaker 01:
I mean, that's what they're supposed to do, right?

[00:10:07] Speaker 01:
Right.

[00:10:07] Speaker 03:
But nobody presented that strategy to them.

[00:10:11] Speaker 03:
In fact, before the board, I was the only one who presented a claim construction.

[00:10:15] Speaker 03:
The examiner didn't present a claim construction, and Arlington didn't present a claim construction.

[00:10:21] Speaker 03:
So the board went and came up with this idea end is different from end portion.

[00:10:27] Speaker 03:
But the specification itself is not at all consistent.

[00:10:31] Speaker 03:
Specification refers to that same end 70 also as an end portion 70.

[00:10:38] Speaker 03:
And they refer to other things as ends and end portion.

[00:10:44] Speaker 03:
So my view is that under the broadest reasonable interpretation, the board

[00:10:50] Speaker 03:
should not have read that limitation in from the spec, read it in even though it was inconsistent.

[00:10:57] Speaker 01:
70 is the lens-shaped end.

[00:11:01] Speaker 03:
Right.

[00:11:03] Speaker 03:
That's the only end for those fingers is that element 70.

[00:11:09] Speaker 03:
And that was one of my points.

[00:11:10] Speaker 03:
They called a lens-shaped end.

[00:11:12] Speaker 03:
They also called an end portion 70 in the specification.

[00:11:17] Speaker 03:
Show me where that is.

[00:11:22] Speaker 03:
I will.

[00:11:33] Speaker 03:
If Your Honor wouldn't mind, I can find it and point to it on rebuttal.

[00:11:39] Speaker 01:
OK.

[00:11:41] Speaker 01:
But that's pretty important.

[00:11:42] Speaker 01:
You don't know where it is?

[00:11:46] Speaker 03:
Honestly, I don't have my notes that have that site in it in front of me.

[00:11:51] Speaker 03:
I have it.

[00:11:52] Speaker 03:
It's here.

[00:11:52] Speaker 03:
And I'll point you to it.

[00:11:54] Speaker 03:
Thank you.

[00:11:57] Speaker 01:
Well, you're into your rebuttal.

[00:11:59] Speaker 01:
Do you want to save the rest of it so we can proceed then?

[00:12:04] Speaker 01:
You're done, right?

[00:12:05] Speaker 03:
Yes.

[00:12:05] Speaker 02:
I'd like to reserve the balance of my time.

[00:12:07] Speaker 02:
Thank you.

[00:12:18] Speaker 00:
May I please the court?

[00:12:19] Speaker 00:
Catherine Clune on behalf of the FLE Arlington Industries.

[00:12:24] Speaker 00:
The board's findings should be affirmed because they are clearly based on the broadest reasonable interpretation of the disputed term end and the factual findings underlying their obviousness determination that Hamilton does not render Arlington's patents obvious based on the lack of the shoulder end engagement are supported by substantial evidence in the record.

[00:12:47] Speaker 01:
Let me ask you this question.

[00:12:48] Speaker 01:
Do you think in this case that the broadest reasonable interpretation is actually different than the Phillips interpretation?

[00:12:56] Speaker 00:
That's a very good question, Your Honor.

[00:12:57] Speaker 00:
I don't think so, actually.

[00:13:00] Speaker 00:
I think in a court of law, we would actually get the exact same instruction in this because of the fact that broadest reasonable interpretation still has to be in light of the specification.

[00:13:09] Speaker 00:
It still is looking at the claims.

[00:13:12] Speaker 00:
But you also look at the dictionary definition, which Bridgeport fails to mention, that actually

[00:13:17] Speaker 00:
The board actually relied on Bridgeport's own dictionary definition that they submitted, and it's actually 100% consistent with that.

[00:13:24] Speaker 00:
So the fact is that the broadest definition of end in this particular coring system is the same as what would be really the claim construction as well.

[00:13:34] Speaker 00:
Because the claims, the patent basically differentiates always between the end and the end portion consistently through the claims, the figures,

[00:13:44] Speaker 00:
and how the product actually works.

[00:13:48] Speaker 00:
As Your Honor asked, they always refer to the 70 as the lens-shaped end.

[00:13:54] Speaker 00:
And that is the only portion that actually engages the shoulder, which is how the claims describe it.

[00:14:00] Speaker 00:
So Bridgeport's request to basically conflate the term end portion with end

[00:14:07] Speaker 00:
Not only does that not make sense based on how the invention is described, because of the fact that the first core's shoulder is basically created by the grooves terminating in the shoulder.

[00:14:19] Speaker 00:
So it's basically an abutment, although not required by the claims that it has to be an abutment.

[00:14:23] Speaker 00:
But it does terminate in the shoulder.

[00:14:26] Speaker 00:
The end of the fingers of the second core have to engage it.

[00:14:30] Speaker 00:
And the difference between Arlington's and Hamilton's

[00:14:33] Speaker 00:
inventions is so significant because of the fact that Arlington's invention requires that engagement for its flash free.

[00:14:39] Speaker 00:
And in fact, in the 538, every claim requires that there's a gap-free engagement.

[00:14:44] Speaker 00:
On the other hand, Hamilton requires that there's always a sliding fit, because their three cavities have to be in moving sliding arrangement.

[00:14:54] Speaker 00:
They couldn't be more different with respect to the fact that they don't have any ends engaging any shoulders, because it wouldn't

[00:15:02] Speaker 00:
actually work.

[00:15:04] Speaker 00:
So with respect to Bridgeport, I believe, points to one section in the patent where it looks like there might be a typo where they're saying 58, the end portion 58 intersects with 70, and they don't actually engage at all.

[00:15:21] Speaker 00:
So let me get this site again.

[00:15:25] Speaker 00:
What column is it on?

[00:15:30] Speaker 01:
Minus 66.

[00:15:31] Speaker 00:
I just wanted to address that because that's the first time that I've heard them actually make that argument, your honor, so I just wanted to respond to that.

[00:15:48] Speaker 01:
So what column are we in?

[00:15:49] Speaker 00:
We're in column 4, A72 of the 886.

[00:15:52] Speaker 00:
I'm sorry, sir, do you mind?

[00:16:00] Speaker 00:
66 through 67.

[00:16:00] Speaker 00:
They say 66.

[00:16:01] Speaker 00:
The cores 50 and 52 are connected in such a manner that the end portions, 58 and 70, of each core 50 and 52, respectfully, are in contact with each other and there are no gaps between the joined portions of the first core and the second core.

[00:16:19] Speaker 00:
They are actually, it's clearly it must be a typo because they never actually engage whatsoever with 50 and 52.

[00:16:28] Speaker 00:
So I think that's,

[00:16:30] Speaker 00:
That's the only aspect that we've ever seen.

[00:16:32] Speaker 00:
In every other aspect, the end is always referred to as 70.

[00:16:36] Speaker 00:
It's always referred to as the furthest tip or boundary point, both on the first court and the second court, which is what's so important here, is that they actually use end very consistently as always the furthest point or boundary as the board construed.

[00:16:49] Speaker 02:
Is there no shoulder in Hamilton?

[00:16:51] Speaker 00:
There is absolutely no shoulder in Hamilton.

[00:16:53] Speaker 00:
Exactly, Your Honor.

[00:16:54] Speaker 02:
So does it really make a difference what the end and end point are?

[00:16:58] Speaker 00:
Well, I think it does, yes, your honor.

[00:17:00] Speaker 00:
I mean, they don't have an end because, of course, Bridgeport's arguing that the shoulder is 37.

[00:17:04] Speaker 00:
And what the board found with respect to the shoulder, they said even if surface area 37 could be a shoulder, it does not engage any end.

[00:17:14] Speaker 00:
But they also say it doesn't actually meet the structural requirements of a shoulder.

[00:17:18] Speaker 00:
So even if maybe, even if Hamilton thought it was a shoulder, that it wouldn't meet Arlington's requirement of the

[00:17:25] Speaker 00:
of the shoulder because the shoulder has to be specifically between the tubular end portion as well and terminating in the shoulder and between the narrow end portion.

[00:17:35] Speaker 00:
Again, nothing that Bridgeport's, that Hamilton for example would have disclosed.

[00:17:41] Speaker 00:
Again, because it wouldn't have worked.

[00:17:43] Speaker 00:
Now it's interesting that Bridgeport now is throwing out this new modification that they actually spent a portion of their brief on because

[00:17:52] Speaker 00:
That, as you mentioned, not only does it wouldn't work, but it goes against, of course, the essential principle of operation of Hamilton, which is why these two inventions are so completely different.

[00:18:03] Speaker 00:
So the factual findings of the board are clearly supported by the substantial evidence in the record.

[00:18:10] Speaker 00:
And both the board actually and the examiner found the same thing, that the shoulder was not

[00:18:15] Speaker 00:
disclosed in Hamilton, and therefore, Harlington's patents cannot be rendered obvious by Hamilton.

[00:18:21] Speaker 00:
And that's the only reference in dispute.

[00:18:25] Speaker 00:
So for those reasons, if the court doesn't have any further questions, we would request the board's decision to be affirmed.

[00:18:33] Speaker 00:
Thank you.

[00:18:34] Speaker 00:
Thank you.

[00:18:48] Speaker 03:
Thank you, Your Honors.

[00:18:50] Speaker 03:
Council did point out the location in the specification that refers to end portions 70, which is the same element as the end 70.

[00:19:01] Speaker 03:
Council did mention one thing in her argument that I'd like to address.

[00:19:05] Speaker 03:
She said all of the claims of the 538 require a gap-free connection.

[00:19:13] Speaker 03:
There's one independent claim in the 538.

[00:19:16] Speaker 03:
The other patent has two independent claims, and it doesn't require in the claim a gap-free connection.

[00:19:25] Speaker 03:
But what I want to go back to is the inexplicable manner that the court or the board found that there was no disclosure

[00:19:41] Speaker 03:
never addressed renders obvious.

[00:19:44] Speaker 03:
They acknowledge renders obvious is important and they never addressed it.

[00:19:50] Speaker 03:
We think that if they had addressed it, they should have, were compelled to find that it was obvious because really the invention, as I said, is these cores need to fit tightly together to avoid having material invade between the cores and create flash.

[00:20:09] Speaker 03:
That's exactly the invention in Hamilton.

[00:20:11] Speaker 03:
That's exactly what Hamilton addresses.

[00:20:14] Speaker 03:
That's the only thing that is set forth in the summary of the invention.

[00:20:19] Speaker 03:
And this idea of end engaging shoulder is really no more than a design choice.

[00:20:27] Speaker 03:
The board found that changing this grinding by moving the grooves around would have been obvious just for the same reasons, moving the

[00:20:38] Speaker 03:
creating a definitive end and shoulder engagement across the entire surface of the end, which is what their preferred embodiment shows, would have been the same obvious alteration in grinding.

[00:20:56] Speaker 03:
The board seemed to feel like the preferred embodiment of Arlington

[00:21:05] Speaker 03:
shows the entire end abutting the shoulder.

[00:21:09] Speaker 03:
No part of the end does not abut the shoulder.

[00:21:13] Speaker 03:
And it seemed like that's the direction they went in when they said, look, the end in Hamilton is open to the mold cavity.

[00:21:22] Speaker 03:
That doesn't detract from the fact that the edge of the end of Hamilton engages.

[00:21:30] Speaker 02:
So if you have any questions.

[00:21:32] Speaker 02:
Thank you.

[00:21:32] Speaker 02:
Thank you.