[00:00:34] Speaker 02:
May I please record again?

[00:00:44] Speaker 02:
We are dealing with a 417 patent decision by the Patent and Appeal Board.

[00:00:49] Speaker 02:
There is a marked difference between the Kornberg reference and our 417 patent.

[00:00:55] Speaker 02:
Dr. Rhodes identified, very specifically, in column three of his 417 patent.

[00:01:02] Speaker 02:
patterns similar to the Kornberg records that were no different.

[00:01:08] Speaker 01:
Just to be clear, your sole argument about anticipation is the claim construction as to the cause of the tightly engaged, which you say the fluid force has to be the sole cause.

[00:01:24] Speaker 02:
Not the sole cause.

[00:01:25] Speaker 02:
It has to be the cause to tightly engage.

[00:01:29] Speaker 02:
We're not saying this is sole cause, but we cannot say it has to be too tightly engaged, which means that it can be engaged upon deployment, but it cannot be tightly engaged.

[00:01:41] Speaker 02:
So the difference between Kornberg and the other references cited in column three is that you had active fixation using hooks upon deployment.

[00:01:52] Speaker 01:
So are you agreeing that if the fluid force contributes to the tight engagement, that that's covered by the claim?

[00:01:59] Speaker 02:
The fluid flow force is what causes the tight engagement after deployment.

[00:02:07] Speaker 02:
Big difference than engaging or tightly engaging the earlier prior art references, including Kornberg.

[00:02:15] Speaker 02:
You put it in and you want it to stay.

[00:02:18] Speaker 02:
And in fact, Kornberg in 1984 was not even a stent.

[00:02:22] Speaker 02:
It was a sleeve with long parallel struts.

[00:02:25] Speaker 02:
and you wanted to get it in there and secure it and you contemplated that it would go all the way through and pierce the vessel wall like a hook.

[00:02:34] Speaker 02:
And what Kornberg said is, let's put plugs there so no fluid comes through.

[00:02:38] Speaker 01:
What I'm trying to get at is what you say the correct plane construction

[00:02:44] Speaker 01:
is and where the board want to strike.

[00:02:46] Speaker 01:
You say it doesn't have to tightly engage solely as a result of the fluid force, right?

[00:02:53] Speaker 02:
No, Your Honor.

[00:02:54] Speaker 02:
We're saying it cannot tightly engage upon deployment, which is what Kornberg and all the other art, the Chudder reference, the Lazarus reference, the Trout reference identified in column three.

[00:03:05] Speaker 02:
Dr. Rhodes says these are good patents for their intended purpose of retention.

[00:03:11] Speaker 02:
But notwithstanding, a need exists for means of ensuring good retention from migration.

[00:03:16] Speaker 02:
Because when you put something in on deployment and tightly engage it, like a nail on the wall, and the fluid flow force will cause it to tear or perforate, which will have the effect of loosening it.

[00:03:28] Speaker 02:
Dr. Rhodes said, wait a minute.

[00:03:30] Speaker 02:
We were solving a problem getting stency.

[00:03:32] Speaker 01:
So if the fluid force causes it to continue to tightly engage, that's not covering?

[00:03:40] Speaker 02:
Yes, if it is tightly engaged upon deployment, then that's not our claim.

[00:03:47] Speaker 02:
That's not our invention.

[00:03:49] Speaker 02:
What Dr. Rhodes says is the objective of his patent.

[00:03:52] Speaker 01:
So you're saying even if the fluid force causes it to continue to be tightly engaged, that's not covered?

[00:04:00] Speaker 02:
It's a fluid flow force.

[00:04:02] Speaker 02:
Yes, if it is tightly engaged on deployment, and the definition, if it goes all the way through,

[00:04:10] Speaker 02:
If it fixably secures is the language.

[00:04:13] Speaker 02:
If it fixably secures, then what Dr. Rhodes was saying, you have problems that come about.

[00:04:20] Speaker 01:
Well, suppose there's a risk that it's going to become untightly in the course of its use, and the fluid force helps to ensure that it remains tightly engaged.

[00:04:33] Speaker 01:
That's not covered?

[00:04:34] Speaker 01:
No, that is.

[00:04:34] Speaker 02:
That's his invention.

[00:04:36] Speaker 02:
His invention is,

[00:04:37] Speaker 02:
Get it in there.

[00:04:38] Speaker 02:
Let the radial forces of the blood flow.

[00:04:41] Speaker 01:
That's what Kornberg did too.

[00:04:46] Speaker 02:
Kornberg said it was a manual deployment by the physician to pull them and hook them like a fish.

[00:04:54] Speaker 02:
You pull the line, and you hook it, and you secure it.

[00:04:57] Speaker 01:
But what the board is saying that thereafter, the fluid force helps to keep it tightly engaged, right?

[00:05:03] Speaker 02:
But what we showed, and what Dr. Silver explained, and what the Molina article in 1998, which is what we think the PTAB did not appreciate, we showed the Molina article in 1998 said, wait a minute.

[00:05:16] Speaker 02:
Here's a study that in 1998 we see problems with tightly engaging it, securing it on deployment because migration will cause problems.

[00:05:26] Speaker 02:
So we should figure out a way to just put it there and let the fluid flow forces lock it in.

[00:05:33] Speaker 02:
The problem with Molina is that Dr. Rhodes came up with that five years earlier.

[00:05:39] Speaker 02:
His objective was, one of the last objectives on column three, is an anchoring means, it is the object of the invention to come up with an anchoring means that does not pose a significant risk of perforating the tissue

[00:05:52] Speaker 02:
vessel or lumen.

[00:05:54] Speaker 02:
He, because of the angle and acute angle, he did not want it to go in.

[00:05:59] Speaker 02:
But Dr. Rhodes was in the space.

[00:06:02] Speaker 02:
His 154 patent, which was earlier that we just talked about, dealt with the issue of a stent graft.

[00:06:09] Speaker 02:
And the science and the art in the late 80s and early 90s was, let's come up with stent grafts, the palmol stent, the gene turco stent.

[00:06:17] Speaker 02:
What happened is, that said, okay, we get it in place and Dr. Rhodes said, but wait a minute, we did a great thing, but we can make it better because that causes additional problems.

[00:06:27] Speaker 02:
So let me go about and try to fix those additional problems.

[00:06:31] Speaker 02:
So what we submit is what the PTAB did is they conflated the radial force of blood flow going outward that holds the stent in place with the downward flow force of blood flow.

[00:06:46] Speaker 02:
And what the 417 is replete with is, and even in the abstract, is to tightly engage under the force applied by the fluid flowing through the device.

[00:07:01] Speaker 03:
But that's what was asked at the outset.

[00:07:03] Speaker 03:
Are you arguing with plane construction that the 417

[00:07:07] Speaker 03:
requires the tightly engaged to only come from the fluid flow and not from any initial engagement.

[00:07:13] Speaker 03:
And you said no.

[00:07:15] Speaker 02:
I misspoke then, Your Honor.

[00:07:16] Speaker 02:
I apologize.

[00:07:16] Speaker 02:
I apologize, Your Honor.

[00:07:18] Speaker 02:
The fluid flow force, the tightly engaged, has to be as a result of the fluid flow force.

[00:07:26] Speaker 02:
Solely?

[00:07:30] Speaker 02:
The claim says to cause the tightly engaged up.

[00:07:33] Speaker 01:
Solely or not?

[00:07:35] Speaker 02:
I don't think it's solely at that time, but it's after.

[00:07:39] Speaker 02:
Kornberg was about active fixation on deployment by manually pulling it.

[00:07:45] Speaker 02:
And the claim language also says, fixedly secure.

[00:07:49] Speaker 04:
Well, it can't be solely, right?

[00:07:52] Speaker 04:
Because even in the disclosed embodiment, isn't it the projection?

[00:07:59] Speaker 04:
The fluid flow forces the projections, which in combination cause it to be tightly

[00:08:05] Speaker 04:
Yes.

[00:08:07] Speaker 04:
So it's not the fluid flow alone, it's the anchors plus the fluid flow.

[00:08:11] Speaker 04:
So it's not solely fluid flow.

[00:08:12] Speaker 02:
It is the structural design with the functional limitation of the whereupon clause, which is a limitation that says you do the structural design of the anchors with the leading portion and the trailing portion at an acute angle.

[00:08:27] Speaker 02:
And there will be some engagement on deployment, where it talks about burrowing.

[00:08:31] Speaker 02:
But the fluid flow force and the migratory forces

[00:08:34] Speaker 02:
cause it to move in a downward position.

[00:08:38] Speaker 02:
And as it moves downward, it locks in.

[00:08:41] Speaker 02:
Because what was happening before then, the problem was you were causing perforation.

[00:08:46] Speaker 02:
Like if you put a painting on a wall with a nail that doesn't support it, what happens to the sheetrock?

[00:08:53] Speaker 02:
It starts to come under the weight and moves.

[00:08:56] Speaker 02:
So it was fixably secure, and then it became not fixably secure.

[00:09:01] Speaker 02:
That's what Dr. Rhodes was talking about here, is we definitely want some engagement on deployment.

[00:09:07] Speaker 02:
We want radial forces acting on it.

[00:09:10] Speaker 02:
So it's not solely, I apologize, you are correct, because the radial force of the blood flow is also causing it to stay in place.

[00:09:19] Speaker 02:
But we want to take advantage of the migratory effect of the downward flow of the blood.

[00:09:27] Speaker 02:
And that downward flow, the combination of everything, is causing it, at that point in time,

[00:09:33] Speaker 02:
to fixably secure, tightly engage.

[00:09:37] Speaker 02:
And the claim says to cause.

[00:09:39] Speaker 02:
It doesn't say to help cause.

[00:09:41] Speaker 02:
It doesn't say to maintain.

[00:09:42] Speaker 02:
And if you accept the PTAB's definition, you're reading the word tightly out of the claim.

[00:09:49] Speaker 02:
Tightly is in the abstract.

[00:09:50] Speaker 02:
It's in the summary of the invention.

[00:09:52] Speaker 01:
Well, I don't understand why it's doing that.

[00:09:54] Speaker 01:
I mean, what the board is saying is, first of all, the distal end, that it is the fluid flow alone, as I understand it, which causes the engagement

[00:10:04] Speaker 01:
And with respect to the other part of it, the tight engagement is maintained as a result in part of the fluid flow.

[00:10:12] Speaker 01:
So why isn't that covered by the client?

[00:10:15] Speaker 02:
Because what Dr. Rhodes said is you have a trailing portion at an acute angle that will not penetrate or tightly engage on deployment.

[00:10:26] Speaker 02:
Remember, there's a leading portion and a trailing portion.

[00:10:29] Speaker 02:
And we're talking about the trailing portion, what happens to the trailing portion based on the fluid flow force.

[00:10:38] Speaker 02:
And it's a trailing portion that tightly engages.

[00:10:48] Speaker 02:
If Kornberg teaches to tightly engage on deployment, there's nothing left of our claim, and it becomes superfluous.

[00:10:58] Speaker 02:
our claim because Dr. Rhodes was in that space.

[00:11:01] Speaker 02:
And I believe that when you look at column three, Dr. Rhodes says, while such anchoring means are believed effective for their intended purpose, they never appear to be amenable to improvement.

[00:11:15] Speaker 02:
And then he says, here are various disclosed devices using anchoring, shutter, these others, which is no different than Kornberg.

[00:11:21] Speaker 02:
They came later in time.

[00:11:23] Speaker 02:
He said, notwithstanding, a need exists for means of ensuring good retention from migration for intraluminal grafts.

[00:11:31] Speaker 02:
He said, let me make it a little better.

[00:11:33] Speaker 02:
I can do it.

[00:11:34] Speaker 02:
He was in the art.

[00:11:35] Speaker 02:
And nothing about his 154 patent teaches or motivates the idea of combining his 154 patent with hooks, because he knew about hooks.

[00:11:46] Speaker 02:
He disclosed hooks.

[00:11:48] Speaker 02:
But he said, they're different.

[00:11:50] Speaker 02:
And it's that whereupon clause.

[00:11:52] Speaker 02:
And so the state of the art at the time has to be that it's for the issue of an inherency that the panel goes off on, that it has to be known by one of skill at the time of the invention that you tightly engage after deployment.

[00:12:07] Speaker 02:
And there's nothing in the record except our evidence that it was not known, which is confirmed by Dr. Rhodes.

[00:12:13] Speaker 02:
And if you look at his 154 disclosure and what he says about it here, with that, I'll reserve the rest of my time.

[00:12:20] Speaker 01:
OK.

[00:12:20] Speaker 01:
Thank you, Mr. Senator.

[00:12:23] Speaker 01:
Mr. Goldman.

[00:12:29] Speaker 00:
May it please the court, Kevin Goldman with my colleague Mark Fleming on behalf of the Appellees, Medtronic Inc., and Medtronic Vascular.

[00:12:36] Speaker 00:
There are three main issues I'd like to address today.

[00:12:38] Speaker 00:
First, the board's construction of the WhereCon Clause is correct.

[00:12:42] Speaker 00:
The claims, the specification, and the prosecution history all say the same thing.

[00:12:47] Speaker 00:
The device must be structurally capable of having blood flow help cause and maintain tight engagement.

[00:12:53] Speaker 00:
Second, there is substantial evidence that Kornberg discloses the whereupon clause.

[00:12:58] Speaker 00:
Kornberg's structure permits it to have blood flow apply force onto the projections, so it tightly engages the vessel wall.

[00:13:06] Speaker 00:
That's what Kornberg says, and both their expert and our expert agreed on that.

[00:13:11] Speaker 00:
Finally, we know that Kornberg inherently discloses this feature because it has the exact same structure as the endotach patent.

[00:13:18] Speaker 00:
There's no structure present in Kornberg that has to be removed to bring within the scope of the claims.

[00:13:24] Speaker 00:
There's no structure missing from Kornberg that has to be added to bring it within the scope of the claims.

[00:13:29] Speaker 04:
I thought that Kornberg thought that the projections are protected from blood flow by the resilient ring and therefore couldn't cause tight engagement.

[00:13:39] Speaker 00:
That is one option within Kornberg, Your Honor, but Kornberg says that the ring is optional and it is not necessary.

[00:13:45] Speaker 00:
And as the board found as a factual matter, what that means is that Kornberg encompasses and teaches a particular embodiment where there is no puncturing because there's no need for that ring.

[00:13:57] Speaker 04:
Just so I know, where does it say it's not necessary?

[00:14:00] Speaker 00:
That is in column six of Rhodes.

[00:14:04] Speaker 04:
No, we're talking about Kornberg's disclosure.

[00:14:07] Speaker 00:
I'm sorry, column six of Kornberg where it says that the ring is not necessary.

[00:14:12] Speaker 04:
You don't happen to remember where, by any chance?

[00:14:15] Speaker 00:
I believe it's column six.

[00:14:16] Speaker 00:
I do not have the exact line number, Your Honor.

[00:14:21] Speaker 00:
But again, what we know is that they cannot point to a structure within Thornburg that needs to be added or removed.

[00:14:28] Speaker 00:
The only alleged difference is the method of deployment.

[00:14:32] Speaker 00:
And that's not a basis for distinguishing prior art in an apparatus claim.

[00:14:38] Speaker 04:
First, on the issue of claim construction, because it's an apparatus claim... Well, why don't you pull out Kornberg and show me where, because I just skimmed column 6 and I don't see a location.

[00:14:51] Speaker 01:
6-73.

[00:14:52] Speaker 04:
Missing it.

[00:14:53] Speaker 04:
No, I have, yeah.

[00:14:54] Speaker 04:
Oh, I'm telling him.

[00:15:01] Speaker 04:
It does say it should be noted that there can be variations of this device and grafting procedures, such as using a straight tube,

[00:15:08] Speaker 04:
But I don't see where it says the ring is optional.

[00:15:14] Speaker 04:
So I'm sure you're right.

[00:15:15] Speaker 04:
I don't see it.

[00:15:17] Speaker 04:
Where do you see it?

[00:15:29] Speaker 00:
Oh, I'm sorry.

[00:15:29] Speaker 00:
It's column four, Your Honor.

[00:15:30] Speaker 00:
I apologize.

[00:15:30] Speaker 00:
It's column four, lines 14 to 16.

[00:15:32] Speaker 00:
It says that it is contemplated that a graph could be made without the resilient ring.

[00:15:41] Speaker 00:
And again, what that shows is that Kornberg teaches a device that fully matches the structure described in end of tax patent.

[00:15:52] Speaker 00:
But turning back to the issue of claim construction, because this is an apparatus claim, the whereupon clause can only refer to the physical arrangement of the device.

[00:16:02] Speaker 00:
The board recognized this and properly construed the clause to refer to the physical capability with respect to blood flow.

[00:16:09] Speaker 00:
The word whereupon appears twice in the claim and both times referring to the intended result of blood flow on the acutely angled projections.

[00:16:18] Speaker 00:
The whereupon clause does not recite a separate structure.

[00:16:21] Speaker 00:
And this was not an accident, this was by design.

[00:16:24] Speaker 00:
What the specification says is that the inventor intended to encompass within his invention any form of projections as long as they were acutely angled.

[00:16:34] Speaker 00:
And this is independent in column 9, lines 1 through 17.

[00:16:38] Speaker 00:
It specifically spells out that the particular shape of the projection doesn't matter.

[00:16:43] Speaker 00:
What matters is that it's acutely angled because that's what enables the device to tightly engage the vessel wall.

[00:16:51] Speaker 00:
And the prosecution history says the same thing.

[00:16:55] Speaker 00:
The application was rejected as anticipated by Rhodes, and the inventor added specific structural elements

[00:17:01] Speaker 00:
Reciting the leading portion the trailing portion and the trailing surface extending at an acute angle and said that it's that structural limitation that enables the tight engagement And now this leads to our next point which is that the whereupon clause does not have separate Patentable weight because it does not describe additional structural limitations it simply describes the intended effect of blood flow on the projections and

[00:17:30] Speaker 00:
And the law on this issue is clear.

[00:17:32] Speaker 00:
A statement of intended result does not have separate patentable weight.

[00:17:36] Speaker 00:
You can see this in the Texas Instruments case.

[00:17:39] Speaker 00:
There you had the claims reciting a specific structure and then used a whereby clause to describe the intended result.

[00:17:45] Speaker 03:
And what if the whereupon clause, the reading of it was that the blood flow was the only thing that could cause the tight engagement rather than

[00:17:56] Speaker 03:
it could cause a tight engagement in conjunction with something else, which I think is what the board found.

[00:18:03] Speaker 03:
So I know you disagree with that, but I mean, that seems, at least until the argument this morning, that seemed to be the heart of this case, is whether the whereupon clause was limited to the blood flow was the only thing that could cause a tight engagement.

[00:18:19] Speaker 00:
If the whereupon clause was limited to only blood flow causing tight engagement, it would exclude the preferred embodiment.

[00:18:26] Speaker 00:
And it wouldn't make sense as a matter of physics, because you can't just have blood flow alone causing anything.

[00:18:33] Speaker 03:
The way the device is... Well, with the structure.

[00:18:35] Speaker 03:
I mean, I'm not reading out the structure, but it seems like their argument was you put this in and there may be initial engagement, but it's not tight engagement.

[00:18:44] Speaker 03:
It's only the blood flow.

[00:18:46] Speaker 03:
that causes the tight engagement, and that's the only way you get tight engagement under their patent.

[00:18:51] Speaker 03:
Whereas under Kornberg, at least the board training is, you put it in, you have tight engagement already, and the blood flow keeps it tightly engaged.

[00:19:00] Speaker 00:
Two responses, Your Honor.

[00:19:01] Speaker 00:
That's actually not what the board found with respect to Kornberg.

[00:19:04] Speaker 00:
What they found with respect to Kornberg is just that the doctor's insertion can play some role in that initial engagement, but the board did not find that engagement was tight.

[00:19:12] Speaker 00:
But second, if you're having blood flow be the sole cause of tight engagement, then you're adding back in a method limitation.

[00:19:19] Speaker 00:
And that obviously can't be right with an apparatus claim.

[00:19:22] Speaker 00:
Because whether or not blood flow is the trigger that changes engagement to tight engagement will depend on the method of how it's deployed.

[00:19:31] Speaker 00:
The same device could either have a lack of tight engagement or not a lack of tight engagement, depending on the method of employment.

[00:19:37] Speaker 00:
And this goes to the nail metaphor that End Attack has brought up several times.

[00:19:41] Speaker 00:
They refer to Kornberg as if a doctor is like a carpenter hammering in a nail.

[00:19:47] Speaker 00:
But that metaphor doesn't help them.

[00:19:49] Speaker 00:
You could have a nail that gets hammered in completely by one person.

[00:19:54] Speaker 00:
Or you could have a nail that gets hammered in partially and is left loose so other forests can come in and play a separate role.

[00:20:00] Speaker 00:
The same nail, two different methods of applying it.

[00:20:04] Speaker 00:
You can't use a method of deployment to distinguish an apparatus claim.

[00:20:08] Speaker 00:
That's the only basis that End of Tech has to distinguish Kornberg here.

[00:20:16] Speaker 00:
And again, turning specifically to the issue of Kornberg, they make the point in their brief that the board only relied on one snippet of Kornberg to make this finding.

[00:20:27] Speaker 00:
But that's not correct.

[00:20:29] Speaker 00:
The board relied on multiple passages from Kornberg, on the testimony of Metronik's expert, on the testimony of End Attack's own expert, and on the Molina article that End Attack itself submitted in support of its position.

[00:20:41] Speaker 00:
So the board had ample substantial evidence to make this factual finding.

[00:20:46] Speaker 00:
And first, Kornberg itself explains that blood flow is playing a role in the engagement of the device.

[00:20:53] Speaker 00:
It specifically says that the downward flow of blood is holding the distal graft limbs in place.

[00:20:58] Speaker 00:
the board properly relied on that evidence.

[00:21:01] Speaker 00:
And in fact, response there is that the distal end is the upstream end, and it's not referring to the proximal end.

[00:21:08] Speaker 00:
But what the board found as a factual matter, and correctly so, is that it's a solid projection.

[00:21:13] Speaker 00:
It's connected.

[00:21:14] Speaker 00:
So force on the distal end is necessarily also acting on the proximal end.

[00:21:20] Speaker 00:
That's why blood flow is holding the graft in place.

[00:21:24] Speaker 00:
If it wasn't, then the blood flow would be causing the graft to move.

[00:21:27] Speaker 00:
It's only because the blood flow is pushing it more tightly into the vessel wall that the force of blood flow keeps the graft open and holds it in place.

[00:21:37] Speaker 00:
Again, this is supported by the testimony of Medtronic's expert.

[00:21:41] Speaker 00:
He explained that this is a matter of basic physics.

[00:21:44] Speaker 00:
When you have forces applied to an acutely angled projection, it necessarily and inherently pushes the force more tightly into the vessel wall.

[00:21:56] Speaker 00:
So Kornberg is structurally capable of having blood flow as tight engagement.

[00:22:00] Speaker 00:
And it's that structural capability that is the essence of the board's construction and the essence of the claim itself.

[00:22:08] Speaker 00:
An end tax expert agreed that blood flow is acting on Kornberg in this manner.

[00:22:13] Speaker 00:
He explicitly conceded that when you have Kornberg in a vessel, the fluid forces are pushing and holding on the device.

[00:22:22] Speaker 00:
That's what's described in the patent.

[00:22:25] Speaker 00:
And the Molina article confirms what our experts said and what their experts said.

[00:22:30] Speaker 00:
Acutely angled projections inherently allow blood flow to cause and maintain tight engagement.

[00:22:39] Speaker 00:
I'd like to briefly turn to the issue of obviousness.

[00:22:43] Speaker 00:
Now, Mr. Rhodes patent was originally rejected based on his prior art, Rhodes patent.

[00:22:52] Speaker 00:
And what he said was, this new patent is identical except for the anchoring means.

[00:22:58] Speaker 00:
That's it.

[00:22:59] Speaker 00:
And the anchoring means is just the acutely angled projections.

[00:23:04] Speaker 00:
You look through the pattern, it describes a few particular embodiments of acutely angled projections.

[00:23:10] Speaker 00:
It talks about the arrow-shaped projections and the wedge-shaped projections.

[00:23:14] Speaker 00:
But then it says that particular shape of the head does not matter.

[00:23:18] Speaker 00:
What matters is that the projection have an acutely angled orientation.

[00:23:23] Speaker 00:
That's it.

[00:23:24] Speaker 00:
That element is taught by Kornberg.

[00:23:29] Speaker 00:
And it's important to note that ENDOTAC did not dispute the board's factual finding that Kornberg has that acute angle projection.

[00:23:35] Speaker 00:
ENDOTAC did not dispute the board's factual finding that a person of ordinary skill would have been motivated to combine Kornberg with Rhodes.

[00:23:45] Speaker 00:
That's all that this court needs to affirm the board's obvious determination.

[00:23:49] Speaker 00:
It's plainly correct.

[00:23:53] Speaker 00:
And I'd like to turn back very briefly just to the issue of claim construction and respond to something that Mr. Souter said earlier.

[00:23:59] Speaker 00:
on the issue of whether or not blood flow force is the sole force.

[00:24:05] Speaker 00:
That was their argument below.

[00:24:06] Speaker 00:
And the reason that can't be right is a matter of physics.

[00:24:11] Speaker 00:
You can't just have blood flow alone causing anything.

[00:24:15] Speaker 00:
In the preferred embodiment, the device goes in and has to be expanded.

[00:24:20] Speaker 00:
You need other forces to be operating on the device so that it expands.

[00:24:25] Speaker 00:
And those other forces can cause that initial engagement.

[00:24:29] Speaker 00:
Any construction of the claim that requires blood flow to be the sole cause would necessarily read out the preferred embodiment.

[00:24:38] Speaker 00:
That cannot be correct.

[00:24:42] Speaker 00:
Unless the court has any further questions.

[00:24:45] Speaker 00:
Thank you, Mr. Olin.

[00:24:46] Speaker 00:
Thank you very much.

[00:24:46] Speaker 01:
Mr. Sitter.

[00:25:00] Speaker 02:
Kornberg is about manual deployment.

[00:25:05] Speaker 02:
For the prior art, that's what Dr. Rhodes talks about with his patent, his 154.

[00:25:10] Speaker 02:
And the other prior art, I invite the court to review column three of the patent.

[00:25:16] Speaker 02:
It says it all right there.

[00:25:18] Speaker 02:
We are dealing with, after deployment, does the fluid flow cause the anchor, the trailing portion, to tightly engage?

[00:25:28] Speaker 02:
It causes it and maintains

[00:25:31] Speaker 02:
On the issue of that where upon and structural, I cite the court to the Moore versus standard register that there's nothing wrong with defining structure in terms of the environment in which it is used.

[00:25:42] Speaker 02:
And the HTC versus IM's IPCOM case that distinguishes a case like IPXL where you require input from a user.

[00:25:53] Speaker 02:
We're dealing with when the claim establishes a function of the underlying environment in which it operates.

[00:26:00] Speaker 02:
Medtronic tried to argue below that it was not, where upon cause is not a limitation, and we briefed that, and I'm not sure if they're arguing it again here, but the panel did not, the PTAP did not rule on it and treated it as a limitation.

[00:26:14] Speaker 02:
I would just like to end with the Molina article in 1998, which goes to the issue of inherency.

[00:26:23] Speaker 02:
And what is known at the time of the invention, five years earlier, is the Molina article identifies a problem.

[00:26:31] Speaker 02:
And it says when it discusses its findings of late migration,

[00:26:40] Speaker 02:
It says in 1998, rather than being pushed into the aortic wall by the radial force of the stent, the hooks and barbs now engage the aortic wall when the stent graft is pulled distally by the bloodstream.

[00:26:56] Speaker 02:
The angle between the stent and its hooks and barbs is important for this action.

[00:27:01] Speaker 02:
So in 1998, Dr. Molina is saying earlier art

[00:27:06] Speaker 02:
had a problem.

[00:27:08] Speaker 02:
Let's not tightly engage, I'm paraphrasing, but let's let the stent graft pull distantly by the bloodstream.

[00:27:15] Speaker 02:
That's exactly the problem that Dr. Rhodes identified after his 154 patent, after these prior anchors were out there, the Chudder, the Kornberg, the others, and said, wait a minute,

[00:27:28] Speaker 02:
We did a great thing here medically, but it can be better.

[00:27:31] Speaker 02:
So he says in column three, we can improve upon it because once we did a great thing and put a stent graft in there with hooks, it caused problems.

[00:27:39] Speaker 02:
Now let's go about and solve those problems.

[00:27:41] Speaker 02:
And that's what the 417 set about to do.

[00:27:44] Speaker 02:
And that's why it's not obvious and why Kornberg dealt with nothing that wasn't disclosed and considered by Dr. Rhodes and the Patent Office.

[00:27:54] Speaker 02:
It was known art of using anchors.

[00:27:58] Speaker 02:
But there are problems with the way they're being used.

[00:28:01] Speaker 02:
I need to fix it.

[00:28:02] Speaker 02:
And I believe that the PTAB aired in

[00:28:07] Speaker 02:
finding inherency when there's nothing to show.

[00:28:10] Speaker 02:
In fact, the evidence shows that it was not known at the time of the invention that this problem could be remedied.

[00:28:16] Speaker 02:
And there's no evidence other than that it is speculative whether Kornberg would have helped back in 1993.

[00:28:24] Speaker 02:
So with that, we ask that the panel decision be reversed and that the patent be deemed valid.

[00:28:32] Speaker 02:
Thank you.

[00:28:33] Speaker 02:
Thank you, Mr. Senator.

[00:28:34] Speaker 02:
Thank both counsel.

[00:28:34] Speaker 02:
The case is submitted.