[00:00:02] Speaker 05: Our first case today is 2015-2062 CSP Technologies versus Clarion Corporation. [00:00:13] Speaker 05: Is it Abramick? [00:00:15] Speaker 05: Abramick. [00:00:16] Speaker 05: Abramick. [00:00:16] Speaker 05: Mr. Abramick, please proceed. [00:00:17] Speaker 03: Thank you. [00:00:29] Speaker 03: May it please the court. [00:00:31] Speaker 03: The patented issue in this appeal relates to moisture proof plastic vials. [00:00:36] Speaker 03: And there are two grounds at issue. [00:00:38] Speaker 03: The first is anticipation based on the heckle reference. [00:00:41] Speaker 03: The second is obviousness based on the Wheeler reference. [00:00:45] Speaker 03: Now the question before the court is the same with respect to both grounds. [00:00:48] Speaker 03: And that is whether each reference discloses the element of claim seven in the challenge patent. [00:00:55] Speaker 03: And that element is a flexible lip seal that is deflected when the vial is in the closed position. [00:01:02] Speaker 03: And so I'd like to first turn to the ground based on Heckel. [00:01:07] Speaker 03: Heckel incorporates another patent, the Abrams patent. [00:01:10] Speaker 03: I will refer to them both as the Heckel patent collectively. [00:01:14] Speaker 03: In Heckel, there is no express disclosure of a deflected lip seal. [00:01:18] Speaker 03: There's no description in Heckel of a lip seal that's deflected in the closed position. [00:01:23] Speaker 03: And there's no depiction of a lyle where a lip seal member is deflected in the closed position. [00:01:29] Speaker 03: So what we're dealing with is an issue of inherency. [00:01:32] Speaker 03: And when we look at the board's opinion on inherency with respect to HECL, we see that the single critical piece of evidence that the board relies on to support its conclusion is that the upper ridge of the vial in HECL is greater than the gap in the cap that that ridge has to fit into. [00:01:53] Speaker 03: But we need to look a little bit closer at the dimensions that we're talking about. [00:01:58] Speaker 03: Because the numbers relied upon by the board come from various portions of the Abrams patent that give numbers for various components of the vial. [00:02:08] Speaker 03: And when you do the math, you come up with an annular ridge that is almost 40% greater than the gap in the cap that it has to fit into. [00:02:18] Speaker 03: And that makes absolutely no common sense. [00:02:22] Speaker 03: If I were to ask you to shove a baseball into a shot glass, we know [00:02:27] Speaker 03: that one of two things is going to happen. [00:02:28] Speaker 01: The shot glass typically doesn't bend. [00:02:32] Speaker 01: And I thought the whole point isn't that the piece coming down does bend, and precisely because what's going into it is too big to fit in without bending, it necessarily bends. [00:02:46] Speaker 03: Sure. [00:02:47] Speaker 03: And so when we're just talking about that piece that extends down from the cap, the patent does indicate that that may be a flexible material. [00:02:56] Speaker 03: That upper ridge has to fit in with the gap. [00:02:59] Speaker 03: So that's what we're talking about. [00:03:01] Speaker 03: When we're talking about the 40% figure makes absolutely no sense. [00:03:04] Speaker 02: But your expert testified that that lip is flexible. [00:03:08] Speaker 03: The expert testified that that lip probably is flexible, but that doesn't necessarily mean that that lip is necessarily deflected when you finally close that vial. [00:03:19] Speaker 03: And to illustrate this point, I think this is where the dimensions become an acute problem. [00:03:24] Speaker 02: But for it to deflect and bend, then it necessarily must be bigger than the gap itself. [00:03:31] Speaker 03: Not necessarily, Your Honor, because when that upper ridge is going in at an angle, and you can see how the vial closes, and there's an illustration at page 12 and 13 of the red brief, that there's an angle. [00:03:44] Speaker 03: And because of that angle, you're going to have some interference necessarily [00:03:48] Speaker 03: with the flexible lip seal member as you're closing. [00:03:51] Speaker 03: But ultimately, when that vial is closed, there is no deflection. [00:03:55] Speaker 03: At least in the reference, there is no disclosure of a deflected lip seal. [00:03:59] Speaker 03: And I think that this problem is highlighted acutely at a certain portion of the Abrams patent. [00:04:05] Speaker 03: And we can find this in column 8, and that's in the appendix at page 705. [00:04:12] Speaker 03: And this describes the annular ridge, and it says, one, [00:04:16] Speaker 03: The annular ridge fits. [00:04:18] Speaker 01: Where in column 8 are you reading from? [00:04:21] Speaker 03: Lines 35 through 40. [00:04:22] Speaker ?: Thank you. [00:04:24] Speaker 03: So it says after the seal has been guided within the vial, the annular ridge fits within the gap. [00:04:30] Speaker 03: So that whole ridge has to fit into the gap. [00:04:33] Speaker 03: The next portion says it's adjacent the wall section. [00:04:37] Speaker 03: That means that the top of the ridge is up against the bottom of the cap. [00:04:42] Speaker 03: So not only does that ridge have to fit into that gap, [00:04:45] Speaker 03: It has to fit all the way in. [00:04:47] Speaker 03: There's no way that could happen if it's 40% bigger than the gap. [00:04:52] Speaker 05: He's saying 40%, but it's 37%. [00:04:53] Speaker 03: It's 37%. [00:04:55] Speaker 03: You are correct, Your Honor. [00:04:56] Speaker 05: I mean, a 10% difference between what you're saying and what the actual percentage is seems like a statistically significant amount. [00:05:01] Speaker 03: You're correct, Your Honor. [00:05:02] Speaker 03: It is 37%. [00:05:03] Speaker 03: And I think in the briefing, the parties have said almost 40%. [00:05:08] Speaker 03: And I think the other side has acknowledged that. [00:05:10] Speaker 03: But I'll agree that it's 37%. [00:05:15] Speaker 03: The other important feature portion of that patent, if you look at that same section that we're talking about, where it says the angled surface nests against the angled surface of the annular ridge. [00:05:31] Speaker 03: What that's talking about is there is an angled surface on the calf. [00:05:36] Speaker 03: And there is also an angled surface on the ridge. [00:05:39] Speaker 03: And those two portions nest together when the vial is closed. [00:05:45] Speaker 03: And again, there is no way that would happen. [00:05:48] Speaker 03: And this is illustrated. [00:05:49] Speaker 03: These features are illustrated at pages 12 and 13 of the red brief. [00:05:54] Speaker 03: What that passage means is that that gap in the cap is contoured to fit perfectly around that ridge. [00:06:03] Speaker 03: There is no way that you can reconcile that 37% difference with the disclosure in the patent. [00:06:12] Speaker 03: The only way that you can even begin to try to reconcile those numbers is to start playing with those numbers and say, well, what if we had a different size annular ridge? [00:06:23] Speaker 03: But once you start playing with those numbers, you have entered the world of inherency. [00:06:28] Speaker 03: Possibilities are probabilities. [00:06:30] Speaker 03: There's just no disclosure. [00:06:32] Speaker 02: Isn't the key question here whether the lip seal would deflect and not whether it would work? [00:06:41] Speaker 03: Not necessarily just whether it would deflect. [00:06:46] Speaker 03: Not necessarily just that it would deflect, but that it's deflected in the closed position. [00:06:51] Speaker 03: And so with the dimensions given in the Abrams patent, there is no way that when you finally close that vial that you're going to have a workable vial. [00:07:01] Speaker 03: And the claims call for a workable vial. [00:07:05] Speaker 01: Isn't what you just said [00:07:07] Speaker 01: Doesn't that mean that what is shown with those dimensions, shown, I include the words, not just figure five, not just the figures. [00:07:17] Speaker 01: Sure. [00:07:19] Speaker 01: That is the annular ridge, is that what we're talking about? [00:07:22] Speaker 03: The annular ridge is the top of the vial of the lip seal member. [00:07:25] Speaker 01: The lip seal, given those measurements, cannot be anything but deflected when there is a closed position. [00:07:34] Speaker 03: I'm sorry, I didn't understand the first part of your question. [00:07:37] Speaker 03: How do you reconcile the two? [00:07:39] Speaker 01: Once you have the dimensions, that lip seal must be deflected in the closed position. [00:07:47] Speaker 01: Isn't that right? [00:07:48] Speaker 01: Because there's a 37% difference in the horizontal. [00:07:55] Speaker 03: The vial must be broken when it's in the closed position. [00:07:58] Speaker 03: That's the only reasonable conclusion. [00:08:01] Speaker 03: If you look at the figure that we have on page, I believe, 15, we demonstrate [00:08:06] Speaker 00: Why is that the only reasonable conclusion, assuming the lip seal is flexible enough? [00:08:12] Speaker 03: Because that upper ridge, we're talking about rigid plastic components. [00:08:18] Speaker 03: We're not talking about compressible foam. [00:08:21] Speaker 03: And I think the key thing to realize is from that portion of Abrams that talks about that. [00:08:27] Speaker 01: Conclude that and then maybe kind of get the details wrong your expert Talked about polypropylene as the lip seal Composition and the the Abrams says well you could also use polyethylene and as I understand it polypropylene is far more brittle than polyethylene so [00:08:51] Speaker 01: Why could the board not conclude that the polyethylene is flexible enough that this description teaches with those dimensions? [00:09:01] Speaker 01: If you're going to stuff that the annular ridge in there, the lip seal is just going to be bent when the thing is closed. [00:09:10] Speaker 03: Because there is just no evidence, and it defies absolute logic for us to think that that big of a ridge is going to fit all the way [00:09:21] Speaker 03: to the top of that gap. [00:09:24] Speaker 05: It just defies all common sense. [00:09:26] Speaker 05: That's just a tiny argument. [00:09:27] Speaker 05: You have no evidence on that point. [00:09:29] Speaker 05: Your expert testified polypropylene. [00:09:31] Speaker 05: It was polyethylene. [00:09:32] Speaker 05: Your expert testified a straight down closure. [00:09:34] Speaker 05: It was an angled closure. [00:09:36] Speaker 05: Each of those things would increase the flexibility of the circumference, the diameter of the part that you're sticking the lid into. [00:09:45] Speaker 05: I mean, I don't understand. [00:09:47] Speaker 05: This is a substantial evidence review. [00:09:50] Speaker 05: You are, it's like smoke and mirrors here today. [00:09:52] Speaker 05: You went from 37% to almost 40% in your brief and today it was 40% you dropped the word almost. [00:09:58] Speaker 05: Then you're telling us there's no difference today between polypropylene and polyethylene. [00:10:02] Speaker 05: There's no testimony in the record that there's no difference and the board made fact findings on all of this. [00:10:07] Speaker 05: I feel like your argument is a lot of smoke and mirrors and yet there is substantial evidence for the things that the board found that you just want us to ignore. [00:10:15] Speaker 03: We're not suggesting there's no difference between polyethylene and polypropylene. [00:10:19] Speaker 03: What we're talking about with that is the evidence that we put forth, the finite element analysis that our experts put forth, that if you had a vial with these proportions, they would break. [00:10:28] Speaker 05: But I think the problem is... [00:10:32] Speaker 05: out of a different material, and you used a different style of closure than is articulated in the heckle pack. [00:10:38] Speaker 05: And then it would break. [00:10:39] Speaker 05: That's what your expert testified. [00:10:40] Speaker 05: And the board said, that's not the right material. [00:10:42] Speaker 05: That's not the right closure. [00:10:44] Speaker 05: And today, for the first time in your briefs, you're arguing to us that it wouldn't have mattered. [00:10:48] Speaker 05: Your expert didn't say that. [00:10:51] Speaker 03: I think the main point, Your Honor, is that we never even should have gotten to the point where we needed to submit evidence that a vile with those proportions [00:11:01] Speaker 03: would work and close based on a common sense. [00:11:05] Speaker 03: And I think the problem was is that if there was some issue with that evidence, the party with the burden should have come forward and showed that a vile, the party with the burden on inherency to show that there necessarily would be deflection in the closed position, had every opportunity to come forward with evidence, with the controls that they say would work. [00:11:25] Speaker 02: The requirement that there be deflection in the closed position doesn't go to operability. [00:11:31] Speaker 02: It doesn't go to that the ridge has to fit tightly within the gap. [00:11:36] Speaker 02: Being wedged, the board found that being wedged in that gap was enough, because you've already satisfied the limitation of a deflection in a closed position. [00:11:46] Speaker 03: Sure. [00:11:46] Speaker 03: And I think the issue here is that, yeah, the conclusion was, and this comes from the expert of Apple Ease, is that you're going to be wedged into that gap. [00:11:55] Speaker 03: But there is no way that you can wedge into that gap all the way. [00:11:59] Speaker 03: to the top of that file. [00:12:00] Speaker 02: It doesn't have to be wedged all the way. [00:12:02] Speaker 02: That's not what we're looking at. [00:12:03] Speaker 02: We're looking at whether the ridge deflects in a closed position. [00:12:08] Speaker 03: And when it's in the closed position, according to the vial in Abrams, it does go all the way to the top. [00:12:14] Speaker 01: Can I just ask you about that? [00:12:15] Speaker 01: Where's the specific reference in Abrams that says, if this is the edge and this is the cap, that the top of the edge has to touch the underside of the cap? [00:12:25] Speaker 03: And that's column 8, lines 35 through 40, Your Honor, that we just went through. [00:12:29] Speaker 03: I would like to briefly turn to the ground based on Wheeler, because I see the single piece of evidence that was relied on by the board. [00:12:41] Speaker 03: There is no express disclosure in Wheeler of deflection. [00:12:44] Speaker 03: The container, figure 7, was the only piece of evidence. [00:12:48] Speaker 03: Figure 7 in Wheeler was the only piece of evidence relied on by the board to show an inherent disclosure of deflection. [00:12:55] Speaker 03: That vial in figure seven does not have a container that's closed down, that's closed. [00:13:02] Speaker 03: The cap is sitting on top of the vial. [00:13:05] Speaker 03: And the way that appellees say there's deflection is they draw a line straight from the drawing up to the top of the vial. [00:13:12] Speaker 03: We demonstrated in our brief that that drawing is not to scale. [00:13:17] Speaker 03: If you overlay one side of the wall onto the other side of the wall in that drawing, they're not symmetrical. [00:13:24] Speaker 03: And they're off by a fraction of a millimeter. [00:13:27] Speaker 03: And if you look at the line that's drawn up to that ridge by Apolize, that interference is a fraction of a millimeter. [00:13:36] Speaker 03: The margin of error in the drawing swallows up the entire rationale for the board in finding that there would be deflection. [00:13:44] Speaker 03: That figure is not reliable to show the relative positioning. [00:13:49] Speaker 03: Thank you, Your Honors. [00:13:51] Speaker 05: I'll save the rest of your time for a rebuttal. [00:13:53] Speaker 05: Mr. Sullivan? [00:14:09] Speaker 04: Please, the court. [00:14:11] Speaker 04: I just want to address first, there's been a couple questions asked about where in A rooms the lip of the container has to meet the top. [00:14:21] Speaker 04: The very top of the wedges. [00:14:23] Speaker 01: The underside of the lid. [00:14:24] Speaker 04: Right. [00:14:25] Speaker 04: And we pointed to column 8. [00:14:26] Speaker 04: I think it was lines 35 through 40. [00:14:29] Speaker 04: Right. [00:14:30] Speaker 04: And I think what's being referenced there is actually wall section 85. [00:14:34] Speaker 04: Wall section 85. [00:14:35] Speaker 01: There was also reference to the second section. [00:14:38] Speaker 01: This is the next sentence. [00:14:41] Speaker 04: There is. [00:14:41] Speaker 04: There is. [00:14:42] Speaker 01: So I think... Does the underside of the lid have a number in figure 5? [00:14:47] Speaker 01: Yeah. [00:14:47] Speaker 04: And that's what I was going to get at. [00:14:49] Speaker 04: 85 is actually the wall. [00:14:51] Speaker 04: It's the side of the cap. [00:14:53] Speaker 04: It's not the top of the cap. [00:14:56] Speaker 04: So if you look at 87 as the angled side of that wall, and 85 is the straight part. [00:15:01] Speaker 04: That's what was being referred there as the wall section. [00:15:04] Speaker 01: So if I understand your point, and this is why I asked about it, it does seem fairly critical. [00:15:09] Speaker 01: If Abrams does not require that the top of the edge actually [00:15:18] Speaker 01: contact and remain in contact in a closed position with the underside of the lid, then it's suddenly a lot easier to imagine the thing closing as you lift a little space but sealed up with the deflected lip seal. [00:15:34] Speaker 04: Exactly. [00:15:36] Speaker 04: That is correct. [00:15:38] Speaker 04: So I think here there is substantial evidence supporting [00:15:44] Speaker 04: the board's finding. [00:15:45] Speaker 01: What do you do with the nest and fit language? [00:15:47] Speaker 01: Those two words seem at least pretty suggestive of something like what Mr... Sure. [00:15:57] Speaker 04: Well, the nesting is referring again to that angled surface 87. [00:16:03] Speaker 04: It's not referring to anything with respect to the lip seal member, which is on the inside. [00:16:07] Speaker 04: It's referring to the angled surface 87 on the outside. [00:16:10] Speaker 04: Again, along with that wall 85. [00:16:13] Speaker 04: That's on the side of the, we call it the skirt of the cap or the lid. [00:16:18] Speaker 04: So that's where the nesting comes from. [00:16:19] Speaker 04: The board, again, addressed that issue at length, as well as the fits within issue. [00:16:25] Speaker 04: Again, the fits within issue, there was evidence in the record that you can have it wider. [00:16:30] Speaker 01: You can stuff it in there. [00:16:31] Speaker 01: You can stuff it in there, but it still fits within. [00:16:34] Speaker 01: I mean, fit is not what I would expect the word to be used in a shoe store. [00:16:40] Speaker 01: They were saying, you know, give me a size five shoe or something. [00:16:43] Speaker 04: Well, it could be tight. [00:16:44] Speaker 04: That's true. [00:16:45] Speaker 04: But we want tightness here. [00:16:47] Speaker 04: That's what's going to help you form that seal. [00:16:49] Speaker 04: And you are going to overshoot on that lip of the top of the container to make sure that it does deflect. [00:16:55] Speaker 04: That cantilever, that very thin and long, has a specific structure on that lip seal member. [00:17:00] Speaker 04: And it's there so that it does deflect and then it forms a seal. [00:17:04] Speaker 04: You need that tightness. [00:17:05] Speaker 04: If it was too loose, it wouldn't form a seal. [00:17:10] Speaker 04: So you're right, it is a tight fit, but it's still a fit nonetheless. [00:17:13] Speaker 02: So as long as there's deflection, then a seal is formed? [00:17:17] Speaker 04: Correct. [00:17:19] Speaker 04: Correct. [00:17:19] Speaker 04: You want that deflection. [00:17:22] Speaker 04: The patent actually says through the polyethylene material that's used for the more resilient, softer material that's used for that cap, the design of, it's not just about dimensions here, the design of the lip seal member being long and thin and cantilevered [00:17:38] Speaker 04: That is promoting and focusing on this deflection. [00:17:41] Speaker 04: You want that deflection. [00:17:42] Speaker 04: That's what that design is teaching there in the reference. [00:17:45] Speaker 04: So it's not just the dimensions. [00:17:46] Speaker 04: Dimensions are important. [00:17:48] Speaker 04: But it's also the material used. [00:17:50] Speaker 04: It's the design of the lip seal member. [00:17:52] Speaker 04: That's what's causing that seal. [00:17:55] Speaker 01: But what do you say about the argument from the other side that there was some jumping back and forth here between [00:18:03] Speaker 01: Anticipation by express disclosure and anticipation by inherency, and this is really neither one of them because there's no express reference to deflection and no real inherency set of findings was made. [00:18:18] Speaker 04: It's a good question. [00:18:21] Speaker 04: We never argued, so Clarence never argued, inherency in front of the board. [00:18:25] Speaker 04: That wasn't our position. [00:18:26] Speaker 04: Our position was that this was an express teaching. [00:18:29] Speaker 04: You always bring anticipation. [00:18:31] Speaker 04: My understanding is that. [00:18:32] Speaker 04: It's always taken and viewed as understood by one skilled in the art. [00:18:38] Speaker 04: When you construe claims, you take it as how one of our skilled in the art would understand those claims. [00:18:43] Speaker 04: It's the same thing when you look at a piece of prior art for purposes of anticipation. [00:18:47] Speaker 04: It's how one of our skilled in the art would understand that reference. [00:18:51] Speaker 04: I think that's black letter law, actually. [00:18:53] Speaker 04: So our position was that when you take into account the materials, the designs, the dimensions, everything that's taught by this reference, [00:19:02] Speaker 04: And the same applies for Wheeler as well here. [00:19:05] Speaker 04: Everything is taught by these references. [00:19:06] Speaker 04: This is how one of ordinary and skilled would understand what this reference teaches. [00:19:10] Speaker 04: And it teaches a deflection in the closed position. [00:19:14] Speaker 04: I think CSP argued down below they tried to make some inherency arguments. [00:19:19] Speaker 04: And the board rejected that. [00:19:20] Speaker 04: They didn't find their inherency arguments were persuasive. [00:19:23] Speaker 04: They found our arguments were persuasive, that one of our unskilling art would understand these references, taught each of the limitations of the claims. [00:19:32] Speaker 04: So I don't think it's an inherent case. [00:19:37] Speaker 04: You don't interpret the prior art in a vacuum. [00:19:40] Speaker 04: You have to interpret that reference as what it teaches the one abhorrent skill in the art. [00:19:50] Speaker 04: One of the other issues raised by Appellant here is the shifting of the burden. [00:19:54] Speaker 04: I just wanted to address that briefly. [00:19:57] Speaker 04: I don't think there was any shifting of the burden here in this case by the board. [00:20:02] Speaker 04: The board reminded me twice during the hearing of the statutory duty that they had, and the clarion had the burden here as the petitioner in the IPR. [00:20:12] Speaker 04: They had the burden to prove by proponents of the evidence that the prior are disclosed each and every limitation of the claims. [00:20:19] Speaker 02: They did that twice in their- But there's a statute of the regulation that placed any type of requirement on a patent owner to issue any type of argument or evidence in support of [00:20:33] Speaker 04: You know this gets a little bit It's not no This gets into a little bit you can make this this issue complicated by looking at shifting a burden of production as opposed to burden of persuasion But I think what happened here was we met that burden initial burden of production and [00:20:54] Speaker 02: We established a case of unpatentability of these claims. [00:21:07] Speaker 04: Well, I don't know if it's a statutory requirement, Your Honor, but [00:21:11] Speaker 04: Certainly, you want to look at what their arguments are. [00:21:13] Speaker 04: You need to consider what the other side's arguments are. [00:21:16] Speaker 02: You need to look at what the private patent owners are saying. [00:21:20] Speaker 02: Isn't the PTO the one that should be making those arguments or looking at the arguments that the petitioner put forward and deciding as to their validity or their strength? [00:21:31] Speaker 04: Yes, yes. [00:21:32] Speaker 04: The board does look at what evidence the petitioner supplies, but also looks at the evidence from the patent holder. [00:21:37] Speaker 02: When did the board speak in terms of a prima facie case and then looking towards the patent holder to refute the evidence that you put forward? [00:21:46] Speaker 04: Well, I'm not sure I understand your question, Your Honor. [00:21:51] Speaker 04: Are you saying that the board shouldn't have looked at what evidence they provided? [00:21:55] Speaker 02: I'm asking you as to what you think. [00:21:58] Speaker 04: Yeah, what I think is that the board needs to look at both sides' evidence, and then they need to make a conclusion as to whether or not the plaintiff's petitioner satisfied the burden. [00:22:08] Speaker 02: So your position is that the patent holder does have an obligation to support penability? [00:22:14] Speaker 04: I think that the board needs to look at both sides' evidence. [00:22:23] Speaker 04: They can't just ignore what the patent owner says. [00:22:25] Speaker 04: If the patent owner doesn't want to say anything, [00:22:27] Speaker 04: That's fine. [00:22:28] Speaker 04: Then there's nothing for the board to look at. [00:22:30] Speaker 04: But the board then still needs to decide if the evidence that the petitioner put forward satisfies the burden. [00:22:36] Speaker 04: And I think they did that here. [00:22:38] Speaker 04: But I think because the patent owner in this case did supply evidence, they need to look at that evidence. [00:22:45] Speaker 04: Certainly they don't want to ignore that evidence. [00:22:47] Speaker 04: Because that evidence could take our evidence outside of the preponderance. [00:22:53] Speaker 05: Do you want to address Wheeler? [00:22:54] Speaker 05: I think that's the only point you haven't hit upon. [00:22:57] Speaker 05: Wheeler differs from the Abrams reference, or Heckel Abrams, in that it doesn't disclose any dimensions. [00:23:06] Speaker 05: And you can't calculate dimensions in Wheeler the way you were able to in Heckel Abrams. [00:23:11] Speaker 05: So tell me how you get to the same point. [00:23:13] Speaker 05: Obviously, this is an obvious reference, not an anticipation reference. [00:23:17] Speaker 05: But tell me how you get to Wheeler's disclosure of deflection. [00:23:20] Speaker 04: Yeah, so Wheeler has, again, some textual language. [00:23:24] Speaker 04: So it wasn't just the drawings, but figure seven and figure eight are important. [00:23:28] Speaker 04: Wheeler has some textual language that states that, again, it's a resilient, flexible material for that cap, that it does have a sealing bead on its lip seal member. [00:23:38] Speaker 04: That's the rounded part at the end. [00:23:40] Speaker 04: Those beads are often used and are typically used for a deflection. [00:23:45] Speaker 04: They're there to promote. [00:23:46] Speaker 04: We've added some more material at the end of that lip seal member. [00:23:49] Speaker 04: Promote that interference and that deflection 20 prime 20 prime exactly and When you take into account the text here, let me grab that The text which is at In the appendix if we go to 9 to 6 [00:24:22] Speaker 04: And that's in the Wheeler 475. [00:24:24] Speaker 04: Pat, if we look at column 4, lines 27 through 31, there's a reference here which is describing what's being shown in figures 7 and 8. [00:24:36] Speaker 04: And that is, again, the fluid tightness achieved by downwardly extending integral internal flange 19 prime. [00:24:43] Speaker 04: That is the lip seal member. [00:24:45] Speaker 04: On the cap with the bead 20, that's that ceiling bead on the end. [00:24:49] Speaker 04: On the outside of its housing. [00:24:52] Speaker 04: There's another reference to the cap being made of a preferably synthetic resin such as a polyethylene that's sufficiently resilient. [00:25:01] Speaker 04: That is in column three, lines four through five. [00:25:05] Speaker 04: When you take that disclosure in combination with what's being shown in figure seven, one of Ornish's skill in the art would understand that how this product works, how it forms its seal with this resilient cap, is that the lip seal member, 19 prime, [00:25:21] Speaker 04: is going to have an interference fit. [00:25:24] Speaker 04: When it comes down and seals on top of the bottle, here, the container, one prime, on its neck, on the interior side of that, that is going to have an interference fit. [00:25:35] Speaker 04: Well, that interference fit is naturally going to cause the lip seal member to deflect inward. [00:25:40] Speaker 04: Again, that's how it forms its seal. [00:25:42] Speaker 04: And it does, again, disclose that it does have a moisture-tight seal here. [00:25:55] Speaker 04: So again, we think both of these references disclose and teach what's in Claim 7. [00:26:01] Speaker 04: Claims 1 through 6 are not being challenged on appeal by the appellant. [00:26:08] Speaker 04: We think that portion is an automatic affirmance in our mind of the board's decision. [00:26:15] Speaker 04: But we think that the board's decision should be affirmed with respect to Claim 7 as well. [00:26:19] Speaker 04: Because the prior art, there's substantial evidence in the record that the prior art discloses that element. [00:26:25] Speaker 04: that the lip seal member be deflected in the closed position by a preponderance of the evidence. [00:26:30] Speaker 06: Thank you, Mr. Sullivan. [00:26:33] Speaker 06: Thank you. [00:26:34] Speaker 06: April Mick, am I saying it right at this time? [00:26:37] Speaker 06: Yes, thank you, Your Honor. [00:26:42] Speaker 03: I'd just like to briefly address Your Honor's [00:26:44] Speaker 03: question about how we know that the top of that ridge goes to the bottom of the container. [00:26:49] Speaker 03: In Abrams. [00:26:50] Speaker 03: In Abrams, yes. [00:26:51] Speaker 03: And I think it goes back to that same portion that we were talking about. [00:26:54] Speaker 03: And the key thing, I think, to look at is the portion where it says those angled pieces of the ridge and the cap have to nest together. [00:27:03] Speaker 03: There's no way those two pieces nest together if the top of the ridge is not at the bottom of the cap. [00:27:08] Speaker 03: There's no way. [00:27:11] Speaker 03: Very briefly, on the Wheeler ground, [00:27:14] Speaker 03: I think part of the decision here turns on the law on what you can take from patent drawings. [00:27:21] Speaker 03: And we cited several cases that stand for the proposition that patent drawings, unless otherwise noted, are not to scale and cannot be relied on to define precise proportions or particular sizes. [00:27:32] Speaker 03: Appellees rely on cases that say that you can look at patent drawings when you're trying to look at relative proportions between components. [00:27:40] Speaker 03: But those cases are easily distinguishable. [00:27:42] Speaker 03: And that is because none of those cases do we have the margin of error swallowing up the basis for that relative proportion. [00:27:50] Speaker 03: And in none of those cases are we dealing with this minute precision that we need in these types of vials with all these interlocking components fitting together. [00:28:01] Speaker 01: But at this point that you're making really applies only to Wheeler. [00:28:05] Speaker 01: Wheeler, that's correct. [00:28:06] Speaker 01: Because the Abrams one was based on the dimensions in the written text. [00:28:10] Speaker 03: Correct. [00:28:10] Speaker 03: Right. [00:28:10] Speaker 03: It's what can figures show, what can figures teach? [00:28:14] Speaker 03: And we just cannot rely on figure seven to inherently disclose deflection when that vial isn't even closed and when the margin of error shows that that intersection is not a reasonable basis for the court to have formed its opinion. [00:28:28] Speaker 03: Thank you, Your Honors. [00:28:29] Speaker 05: Okay, I thank both counsel for their arguments.