[00:00:00] Speaker 03: We have three cases that are scheduled before us for oral argument this morning. [00:00:16] Speaker 03: The first case, we actually have two cases that have been combined. [00:00:21] Speaker 03: So we make that four cases. [00:00:23] Speaker 03: Two cases have been consolidated for purposes of oral argument. [00:00:28] Speaker 03: So the first case is Graftek versus Laird, number 2015-1796-1797-1798. [00:00:34] Speaker 03: Mr. Dustin? [00:00:37] Speaker 03: Erin Dustin, sorry. [00:00:42] Speaker 00: Good morning, Your Honor. [00:00:45] Speaker 03: Good morning. [00:00:46] Speaker 00: May it please the Court? [00:00:47] Speaker 03: I understand you've reserved five minutes of your... You each have 20 minutes total time, and you reserved five for rebuttal, is that correct? [00:00:55] Speaker 03: That is correct. [00:00:56] Speaker 03: Okay, Counselor, you may proceed. [00:00:59] Speaker 00: We are here today to discuss three different patents and three different IPRs. [00:01:03] Speaker 00: I'd like to start with case 1796, which involves the 520 patent. [00:01:09] Speaker 00: And there we have three issues that we think we need to address. [00:01:13] Speaker 00: We think both Laird and the board fell into the hindsight trap with regard to obviousness. [00:01:19] Speaker 00: We also think there's an issue regarding the attributes of Mr. Bagot, who is Laird's declarant. [00:01:26] Speaker 00: And then we also think some missteps occurred with regard to GrafTech's evidence of commercial success. [00:01:32] Speaker 02: Ms. [00:01:32] Speaker 02: Dunstan, I want to cut, since these things are combined, I want to cut to the chase on your second set. [00:01:44] Speaker 02: And that is on 39 to 48 of your opening brief in 1797-98, [00:01:55] Speaker 02: You appear to raise several claim construction arguments that you didn't present to the PTAB. [00:02:01] Speaker 02: From what I gather, the only argument you made appears on page 1160 of JA 1797. [00:02:10] Speaker 02: And I'm going to quote you the argument. [00:02:13] Speaker 02: The disclosure of the 874 patent demonstrates that thermal shielding is protection of a portion of the device other than the heat source itself from the heat generated by a heat source. [00:02:26] Speaker 02: What do you mean by disclosure? [00:02:31] Speaker 02: Did you mean to say the specification? [00:02:34] Speaker 00: Yes, we think the specification makes very clear the distinction between shielding and dissipation. [00:02:40] Speaker 02: So disclosure, you mean the specification of the 87.10? [00:02:46] Speaker 02: Yes. [00:02:47] Speaker 02: Why haven't you waived the other claim construction arguments that appear in your opening brief in those cases? [00:02:55] Speaker 02: Where'd you raise them? [00:02:57] Speaker 00: We think we raised them. [00:03:02] Speaker 00: Can you repeat your question as to whether we waive them in our underlying patent owner response? [00:03:06] Speaker 00: Is that what you're referring to? [00:03:09] Speaker 02: Yeah. [00:03:11] Speaker 02: I'm saying that what you presented to the PTAB, yes. [00:03:16] Speaker 00: I think at the PTAB, we presented a number of arguments that support our construction. [00:03:21] Speaker 00: We pointed to the specification, the claims, and certainly the evidence from Dr. Pollum. [00:03:29] Speaker 02: Go ahead. [00:03:46] Speaker 02: Here I go. [00:03:47] Speaker 00: So as you mentioned on page 19 of our patent owner response, which is in the appeal appendix at A1160, [00:03:56] Speaker 00: We talked about, as you mentioned, the disclosure of the 874 patent. [00:04:00] Speaker 00: And we specifically cited column three, line 61 to 64, as well as column five, lines 14 to 17. [00:04:14] Speaker 00: And we also referred to the expert declaration of Dr. Cullum and paragraph 137 of that declaration. [00:04:24] Speaker 00: And I think what happened here is [00:04:28] Speaker 00: The board has confused two fundamentally different aspects of thermal management. [00:04:35] Speaker 00: There is a great distinction between thermal shielding and thermal dissipation. [00:04:39] Speaker 00: And a real world example of this could be if you happen to get a very hot cup of coffee this morning, it may have been given to you with a sleeve around it, perhaps a cardboard sleeve. [00:04:50] Speaker 00: That sleeve is designed to protect your hand from the heat that the coffee would otherwise transmit to you. [00:04:56] Speaker 00: In that capacity, the sleeve is acting as a shield. [00:04:59] Speaker 00: If, however, that sleeve were made out of copper or something that was thermally conductive, it would act as a dissipator. [00:05:06] Speaker 00: And it would want to move and get rid of that heat. [00:05:08] Speaker 00: And your hand would get extremely hot. [00:05:10] Speaker 00: And it would not help at all. [00:05:13] Speaker 00: And in that case, it would be a dissipator. [00:05:16] Speaker 00: So if we think of the cardboard sleeve acting as a shield, [00:05:21] Speaker 00: It is focused on protecting something other than the heat generated from the heat source. [00:05:27] Speaker 00: It wanted to protect your hand. [00:05:29] Speaker 00: Whereas with the copper dissipator, it would want to move the heat, and it would care about the heat from the heat source. [00:05:35] Speaker 00: So we think that fundamental distinction between the two, and they are often mutually exclusive, we think that shows why our definition, which is protection of a region of a device other than the heat source itself from heat generated by a heat source, is appropriate. [00:05:51] Speaker 00: The board's definition is simply a structure that protects against heat. [00:05:57] Speaker 00: Now, at least as of today, we appreciate that the claims must be construed in terms of their broadest reasonable construction. [00:06:04] Speaker 00: But even this court recently, on April 19, in the in-ray man-machine interface text case, mentioned how even the broadest reasonable interpretation cannot do that. [00:06:15] Speaker 03: Shielding against heat and dissipating heat, why is that not protecting against heat? [00:06:22] Speaker 00: Well, it may be, but that definition is so broad it encompasses just about everything. [00:06:29] Speaker 00: And it would remove the distinction between the two. [00:06:32] Speaker 00: And if you look, for example, at claim one or claim 11 of the 874 patent, the preamble talks about a thermal dissipation and shielding system. [00:06:41] Speaker 00: If those things meant the same thing, there would be no need for this latter part of the clause. [00:06:46] Speaker 00: And those of ordinary skill in the art appreciate that there's a tremendous difference between shielding and dissipation. [00:06:52] Speaker 00: And the credible evidence of record from Dr. Cullen walks through that in detail. [00:06:56] Speaker 00: And we think, again, the definition proposed by the board is simply too broad. [00:07:01] Speaker 00: Under that definition, a structure that protects against heat, it covers almost anything. [00:07:08] Speaker 02: Let me take you back to the record again. [00:07:10] Speaker 02: I'm looking at a page 1160 of the record in 1797. [00:07:24] Speaker 02: Unfortunately, I had your records on appeals scrambled between the two cases where you argue claim construction of thermal shielding. [00:07:46] Speaker 02: What I quoted to you appears to be the only argument you make about claim construction of thermal shielding to the PTAB. [00:07:55] Speaker 02: Are you there in the record? [00:07:57] Speaker 00: Can you repeat the A page that you're at, Your Honor? [00:07:59] Speaker 02: 1160. [00:08:00] Speaker 00: I'm there, Your Honor. [00:08:13] Speaker 02: See where it says thermal shielding? [00:08:17] Speaker 02: Yes. [00:08:19] Speaker 02: It appears to me that what I quoted to you is the core [00:08:24] Speaker 02: your only construction argument. [00:08:28] Speaker 02: The disclosure of the 874 patent demonstrates that thermal shielding, and you told me disclosure meant specification, is protection of a portion of the device other than the heat source itself from the heat generated by a heat source. [00:08:43] Speaker 02: See where I'm talking about? [00:08:44] Speaker 00: I do. [00:08:44] Speaker 02: Isn't that the core of your argument there? [00:08:46] Speaker 00: That is the core of the argument. [00:08:48] Speaker 02: OK. [00:08:51] Speaker 02: And what I'm comparing it with [00:08:53] Speaker 02: is pages 39 to 48 of your blue brief in that portion of your appeal, in which you raise a number of arguments which do not appear to have been raised to the PTAB, a number of claim construction arguments. [00:09:13] Speaker 02: And that's why I'm asking that question. [00:09:16] Speaker 02: Haven't you waived those other than the argument you made to the PTAB? [00:09:20] Speaker 00: I believe we have not waived those, Your Honor, and immediately before the sentence that you referred to, there is a reference to Exhibit 2005, paragraphs 132 to 137. [00:09:30] Speaker 00: Right. [00:09:32] Speaker 00: And in that stretch, Exhibit 2005 was the expert declaration of Dr. Cullum, and those paragraphs are found in the appendix at A1414 through A1415, and that goes through the [00:09:48] Speaker 00: the expert testimony and the reasons why we have construed thermal shielding in this manner. [00:09:55] Speaker 02: So you've incorporated that by reference? [00:09:58] Speaker 02: Absolutely. [00:09:59] Speaker 00: And Dr. Cullen walks through specific portions of the 874 patent, including the abstract aspects of the specification on column three, line 61 to 64, also column five. [00:10:14] Speaker 00: And in view of all of this, he concludes and supports the [00:10:18] Speaker 00: definition advanced by Grafak. [00:10:35] Speaker 00: Also, of course, claim construction is a legal determination. [00:10:39] Speaker 00: It's a de novo determination. [00:10:41] Speaker 00: The underlying facts are reviewed for substantial evidence. [00:10:45] Speaker 00: But we have to keep that in mind as well. [00:10:47] Speaker 03: Let's go back to what we were talking about. [00:10:50] Speaker 03: When you're talking about dissipation and shielding of heat, it seems to me that there's overlap there and that that's an inherent property of graphite. [00:11:04] Speaker 03: You seem to want to pull apart those two different functions, but isn't that the same function, dissipating heat and shielding against heat? [00:11:14] Speaker 00: No, it depends very much on the attributes of the substance, and it depends very, very much on the confirmation of the system. [00:11:21] Speaker 00: But that's an inherent attribute of graphite. [00:11:25] Speaker 00: I do not believe so, Your Honor. [00:11:27] Speaker 00: There are many, many different types of graphite. [00:11:29] Speaker 00: And these particular patents reference compressed particles of exfoliated graphite. [00:11:35] Speaker 00: So that is a subset of graphite. [00:11:37] Speaker 00: And graphite is an anisotropic material. [00:11:41] Speaker 00: It does have different conductivities and different orientations. [00:11:45] Speaker 00: But simply having a different thermal conductivity in, for example, the A direction versus the C does not mean that it will necessarily both shield and spread. [00:11:57] Speaker 00: Again, it depends on the configuration of the system. [00:11:59] Speaker 00: And that's why in both the 874 and 441 patents, it's not simply directed to the sheet of the CPEG. [00:12:07] Speaker 00: It has to be in a particular confirmation. [00:12:10] Speaker 03: So once again, why isn't dissipation and the shielding, why isn't that protection from the heat? [00:12:18] Speaker 03: If you're seeking to dissipate heat and then to shield it, and the PTAF says, well, what you're doing is you're protecting, why isn't that the correct instruction? [00:12:29] Speaker 00: Because it would literally erase the distinction between the two things. [00:12:34] Speaker 00: And as both Dr. Zwieben and Dr. Cullen were relevant to this inquiry, has talked about, [00:12:39] Speaker 00: They're basically night and day. [00:12:42] Speaker 00: If you think of, similar to the coffee cup, if you think of the space shuttle, you want to shield the heat as they re-enter the atmosphere. [00:12:53] Speaker 00: You want to protect what's inside. [00:12:54] Speaker 00: You don't care about the heat source. [00:12:56] Speaker 00: You want to protect what's in there. [00:12:59] Speaker 00: Whereas if you wanted to dissipate heat, you actually are concerned about the heat source. [00:13:03] Speaker 00: You want to take that heat in and move it. [00:13:05] Speaker 00: So completely different functions, completely different [00:13:09] Speaker 03: Focuses and I think to say simply protects against hypothetical because if I'm sitting inside the space shuttle and I have graphite on the bottom of the space shuttle and I'm entering the atmosphere of the earth Why does it matter to me if if the graphite is shielding against heat or taking it in and dispersing it away from me? [00:13:37] Speaker 00: You would need to make sure that you had not only a substance but a conformation that would block the heat, such that its through-plane conductivity was really low, that it kept the heat outside of the shuttle. [00:13:48] Speaker 00: If you had a substance in a different orientation or conformation that permitted the conductivity through the space shuttle, the heat would get inside. [00:14:00] Speaker 04: You're arguing here, I believe, that the board seemed to misunderstand the meaning of these claim terms. [00:14:07] Speaker 04: It seemed to me that the board clearly understood the difference between thermal dissipation and thermal shielding, right? [00:14:14] Speaker 04: I don't think so, because if they did, I don't... Didn't they say thermal dissipation is spreading heat from a heat source, which sounds like what dissipation is, and thermal shielding is a structure that protects against heat? [00:14:29] Speaker 04: What I'm trying to get at is what are the consequences of this error? [00:14:33] Speaker 04: I mean, does it mean that they looked at the wrong prior art? [00:14:37] Speaker 04: Assume for purposes you're right that there is a difference here that wasn't understood by someone. [00:14:45] Speaker 04: Where does it bite? [00:14:46] Speaker 00: Okay. [00:14:47] Speaker 00: Two things. [00:14:48] Speaker 00: When the board says simply a structure that protects against heat, the question is which heat? [00:14:53] Speaker 00: Where does it come from? [00:14:54] Speaker 00: What are they concerned about? [00:14:56] Speaker 04: In terms of the practical effect... What's that got to do with not perhaps understanding the distinction between shielding and dissipating? [00:15:06] Speaker 00: The practical application of that is all of the instituted bases of obviousness rely upon a core of three publications, Norley, Tseng 520, and Mercury. [00:15:17] Speaker 00: Now, because they have merged the concepts of dissipation and shielding, they have considered the Norley publication as one directed to shielding. [00:15:27] Speaker 00: And that's simply not the case. [00:15:28] Speaker 00: And you need look no further than the title, which is, quote, the development of a natural graphite heat spreader. [00:15:36] Speaker 00: Heat spreader is a synonym for dissipation. [00:15:39] Speaker 00: It has nothing to do with shielding. [00:15:42] Speaker 00: Similarly, the Seng 520 patent is directed to a dissipator or a spreader. [00:15:47] Speaker 00: But again, the board has, under this extremely broad definition, interpreted it to be basically a shield. [00:15:54] Speaker 00: And we think that is technically inaccurate. [00:15:58] Speaker 00: When you add mercury, the entire device is a shielding device. [00:16:03] Speaker 00: It happens to reference CPEG, but as used in that publication, it too is used as a dissipator or a spreader. [00:16:11] Speaker 00: So we think not only have they combined publications that they would not normally have, they have put attributes on these publications that one of ordinary skill in the art, and certainly based upon the expert testimony, simply cannot be combined to arrive at the claims of the 874 or the 441 patent. [00:16:28] Speaker 03: Can you address real quickly your argument regarding commercial success? [00:16:33] Speaker 00: Yes. [00:16:37] Speaker 00: So for the 520 patent, that's directed to thermal management systems, 874 dissipation and shielding systems. [00:16:46] Speaker 00: We relied upon evidence from Mr. Green, an expert with regard to valuation, as well as some information from GrafTech. [00:16:55] Speaker 00: And we believe that we showed commercial success by two primary things. [00:17:01] Speaker 00: Mr. Green concluded that products manufactured and sold by GrafTech that enable the use in consumer electronic products of the systems embodied by the claims are commercially successful, as are those ultimate products. [00:17:14] Speaker 04: And the board said there wasn't any specific nexus shown, correct? [00:17:18] Speaker 04: That's what they said. [00:17:19] Speaker 00: With regard to AIDS. [00:17:20] Speaker 04: Isn't that the hill you've got to climb up and conquer? [00:17:26] Speaker 04: Yes. [00:17:26] Speaker 04: What's the specific evidence of nexus to any particular device that you pointed to? [00:17:33] Speaker 00: Both experts in all three cases walked through the attributes of the claims and made sure through teardowns that particular products, such as an iPhone, a tablet, a laptop, et cetera, literally embodied or satisfied the limitations of the claims. [00:17:51] Speaker 00: And while it's not evidence, we think a demonstrative use below is the commercial success. [00:17:56] Speaker 04: Can you point to evidence that shows that the commercial success of the iPhone is tied to having this particular [00:18:02] Speaker 04: material in the iPhone? [00:18:04] Speaker 00: We think we established a prima facie case of commercial success because we showed that the GrafTech spreader shield material is commercially successful, as are the products that embody it. [00:18:14] Speaker 04: Do you think as a result of making your prima facie case the burden shifted to someone else? [00:18:19] Speaker 04: We do. [00:18:20] Speaker 00: Under the Ecolochem case, the Rambus versus Ray case, and the Damaco case, we think we made out a sufficient prima facie showing. [00:18:27] Speaker 00: That then shifts the burden to Larry. [00:18:29] Speaker 04: What's the basis for the prima facie case? [00:18:31] Speaker 04: I mean, you say, for example, I got this iPhone here and somebody bought it. [00:18:36] Speaker 04: And you're just assuming that one of the reasons why they bought it was because it doesn't get hot in your hand? [00:18:44] Speaker 00: I don't think it's an assumption. [00:18:45] Speaker 00: And we had a number of different devices. [00:18:48] Speaker 04: Who testified? [00:18:50] Speaker 04: Whose affidavit did you have that said, guess what? [00:18:53] Speaker 04: The only reason, or the main reason why I bought the iPhone is because it doesn't make my hand hot because this stuff is in it. [00:18:59] Speaker 00: We did not have evidence of that, but actually we believe that was Laird's burden. [00:19:03] Speaker 04: How do you get a prima facie case going without something to that effect? [00:19:08] Speaker 00: Well, I think two things. [00:19:09] Speaker 04: Keep in mind that... Attorney argument. [00:19:11] Speaker 04: You got to agree with me. [00:19:12] Speaker 04: Attorney argument wouldn't be enough to ground a prima facie case, right? [00:19:17] Speaker 00: Correct. [00:19:18] Speaker 00: We would need to rely upon [00:19:19] Speaker 00: the information for Mr. Green, as well as the underlying exhibits and the underlying financial data. [00:19:24] Speaker 04: So what I think the board was looking for was that data point that's beyond attorney argument, short of conclusive evidence, right? [00:19:33] Speaker 04: And was looking for that, and couldn't find it. [00:19:37] Speaker 04: And to be honest with you, that's what I'm looking for. [00:19:40] Speaker 04: And I couldn't find it. [00:19:41] Speaker 02: And they also distinguished the commercially successful products as possessing [00:19:49] Speaker 02: the GrafTech products used in those as possessing a higher thermal conductivity than that disclosed by the disputed claims of 520, right? [00:20:00] Speaker 00: Yes, thank you for bringing that up, and that's one important distinction among the three IPRs. [00:20:04] Speaker 00: In the 520 case, it appears as they completely dismissed the commercial success evidence because they thought there was an inconsistency [00:20:12] Speaker 00: of thermal conductivities between the evidence submitted and that set forth in the graph oil manual. [00:20:18] Speaker 00: On that point, the graph oil manual has a copyright date of 1987. [00:20:22] Speaker 00: As of that time, CPEG only reached a thermal in-plane conductivity of 140. [00:20:26] Speaker 00: That's all it was. [00:20:28] Speaker 03: So the way I understand your argument, and I found it very interesting if I'm correct, and that is that what the PTAB did, the nexus they were drawing or that they drew was from the prior art [00:20:41] Speaker 03: and the evidence you submitted on commercial success instead of the evidence you submitted on commercial success to the claims. [00:20:50] Speaker 03: Is that correct? [00:20:51] Speaker 00: That's correct. [00:20:52] Speaker 00: And also, with regard to commercial success, it has to be of the patented invention. [00:20:57] Speaker 00: So by definition, it must be after issuance of the 520 patent. [00:21:01] Speaker 00: So we had modern evidence regarding commercial success. [00:21:05] Speaker 00: So modern CPEG has achieved much higher in-plane thermal conductivities. [00:21:10] Speaker 00: In about 2004, 2005, we got up to 300. [00:21:13] Speaker 00: Then we moved to 450. [00:21:14] Speaker 00: Then we're as high as 600. [00:21:16] Speaker 00: So in the products that were referenced in the declaration of Mr. Kramer, that is modern conductivity. [00:21:24] Speaker 00: Somehow, someway, the board didn't appreciate the distinction in time. [00:21:30] Speaker 00: And they said, oh, well, you're saying 300 over here, but the manual says 140. [00:21:34] Speaker 00: We're not going to look at any of this, at least in the 520 case. [00:21:37] Speaker 00: In the 874 and 441 case, I think there's two things to consider. [00:21:43] Speaker 00: GraphTech does not sell end user products. [00:21:48] Speaker 00: So with regard to commercial success, we need to look at how much of this material they sell to the people who then sell to Apple, who then sell to Kindle, who then make it into the laptops. [00:21:58] Speaker 00: And I think the data is quite substantial on that. [00:22:01] Speaker 00: And this is highlighted at pages 47 through 54 of our opening brief. [00:22:06] Speaker 03: You're well into overtime. [00:22:10] Speaker 03: And I'll restore some of my time when you come back up. [00:22:13] Speaker 03: Thank you. [00:22:16] Speaker 03: Mr. Kudler? [00:22:26] Speaker 03: Could you address the issue of commercial success that we were just talking about? [00:22:30] Speaker 01: Absolutely, Your Honor. [00:22:33] Speaker 01: On the commercial success issue, [00:22:36] Speaker 03: Now, would you agree that if the PTAD drew or attempted to draw the nexus regarding objective indicia of commercial success from the evidence of the indicia to prior as opposed to from the evidence of indicia of the nexus going to the claims that that would have been there? [00:23:04] Speaker 03: No, here's what happened. [00:23:05] Speaker 01: Here's my reading of what the board did. [00:23:07] Speaker 03: But that would be error, correct? [00:23:08] Speaker 01: That would be error if they did that. [00:23:10] Speaker 01: OK. [00:23:11] Speaker 01: But it's maybe harmless error in this particular case, first of all. [00:23:14] Speaker 01: Secondly, I don't think that's what happened. [00:23:15] Speaker 03: OK. [00:23:16] Speaker 01: What happened here is when you look at the discussion of the prior art, what GraphTech stated in its patent-owner response, and it's referenced by the board in its decision at A31. [00:23:32] Speaker 01: What, what Grand Tech said was... Which decision? [00:23:35] Speaker 01: I'm sorry, that's a good point. [00:23:37] Speaker 01: It's 831 of the 1796 appeal. [00:23:48] Speaker 04: Judge Grossman's got 831. [00:23:50] Speaker 01: 831, your honor, and it's footnote seven. [00:24:00] Speaker 01: So what the board said here, and what they quoted from GraphTech's patent response is that they're talking about that the particular type of graphite in the graph foil manual, and this is the key, the italicized words from the board, and claimed in the 520 patent. [00:24:18] Speaker 01: So at this point in time, what GraphTech is saying is, hey, CPAG, which was back in 1968, was first disclosed in the Shane patent, all the way through, and what's claimed in the 520 is 140 watts per meter Kelvin. [00:24:30] Speaker 01: Then in the commercial success argument, they bring up CPEG again, and they talk about the fact that it's 500, 600, et cetera, high levels of thermal conductivity. [00:24:40] Speaker 01: Now, what was just alluded to here by my colleague was that, well, in fact, I wrote it down. [00:24:47] Speaker 01: The quote was, the board did not appreciate the distinction in time between [00:24:52] Speaker 01: the 140 stuff and what that thermal conductivity was back in the prior art and what happened in modern, what they started calling modern evidence here in this appeal. [00:25:00] Speaker 01: The reason they didn't appreciate it is because nobody told them. [00:25:04] Speaker 01: The only time this issue came up was in the oral argument. [00:25:07] Speaker 01: And this is referenced in the briefing by GravTech. [00:25:14] Speaker 01: In their appeal brief, they cite at page 50 to 51 [00:25:22] Speaker 01: Ms. [00:25:22] Speaker 01: Dunstan's testimony at the oral argument talked about how as time progresses, the process gets refined, et cetera. [00:25:28] Speaker 01: That's the only indication where this time thing came up. [00:25:32] Speaker 01: So the board is sitting there saying, CPEG has been CPEG since 1968. [00:25:36] Speaker 01: And I don't know what the graphic threshold, which we didn't talk about in the outset, I don't know what that is. [00:25:46] Speaker 01: And there's a lot of confusion. [00:25:47] Speaker 01: And the point is that the confusion was engendered in the patent on response when they said that, [00:25:52] Speaker 01: The claimed CPEG is 140, but then CPEG ends up having a higher thermal conductivity later on. [00:25:59] Speaker 01: The board was able to throw its hands up because if they wanted to prove this point, they didn't do the job that they needed to to prove the point because they didn't talk about this time distinction. [00:26:07] Speaker 01: That only came up in the oral argument at the very end of the case in that testimony by Ms. [00:26:11] Speaker 01: Dunstan. [00:26:13] Speaker 01: So I think the board was well within its right. [00:26:15] Speaker 01: It was reasonable. [00:26:16] Speaker 03: But I don't see that the claims claim any type of thermal [00:26:20] Speaker 03: conductivity. [00:26:21] Speaker 03: They have a specific number, conductivity. [00:26:25] Speaker 03: So why is thermal conductivity even relevant to this issue? [00:26:30] Speaker 03: Well, it is because... See, you're arguing the prior art as well, but the claims themselves [00:26:39] Speaker 01: don't claim a certain requirement, is it? [00:26:41] Speaker 01: No, absolutely not. [00:26:44] Speaker 01: Well, here's why this all became confusing, is because if you look at the 520 patent, which is the case I was just reading from, the 1796, GrafTech generates what we talked about in the brief as the GrafTech threshold, saying that the Inouye reference would not have been combined with graph oil because of some [00:27:04] Speaker 01: fictitious, they made it up, 500 watts per meter Kelvin threshold. [00:27:08] Speaker 01: You may remember that. [00:27:09] Speaker 01: So on the one hand, we're talking about, well, you wouldn't combine because, and that's where that quote comes from that I read, that the graph oil manual, the graphite from the graph oil manual and the graphite claimed in the 520 patent, 520 patent slash CPAC is how they describe it. [00:27:25] Speaker 01: So that's all below 500. [00:27:26] Speaker 01: But then all of a sudden we get evidence that there's CPAC above 500, 600. [00:27:30] Speaker 01: And the point was the confusion that was engendered by their argument [00:27:33] Speaker 01: The board threw its hands up and said, the threshold's illusory and not something that we are going to acknowledge. [00:27:41] Speaker 01: And your commercial success evidence is contradictory and not something we're going to acknowledge. [00:27:45] Speaker 01: That's why this came about. [00:27:47] Speaker 01: It's not in the claims. [00:27:49] Speaker 01: We don't claim it's in the claims. [00:27:50] Speaker 01: The whole issue came up because of their graph tech threshold argument that they were trying to make. [00:27:56] Speaker 01: And the confusion was borne by them. [00:27:58] Speaker 01: It was their burden to try to persuade the board that this was [00:28:03] Speaker 01: was an issue and they did a bad job of it. [00:28:09] Speaker 01: You know, going more specifically to the commercial success argument, initially, and there's some criticism about whether the board properly addressed the commercial success. [00:28:19] Speaker 01: In the board's decision, explicitly, the board said it considered all the evidence and it found that there was no nexus. [00:28:25] Speaker 01: Now, you have to realize the context of this. [00:28:27] Speaker 01: You could probably get a flavor of it because of how thick the appendices are that are before you right now. [00:28:31] Speaker 01: You know, in one case it's about 5,000 pages, in another case it's about 6,000 pages. [00:28:35] Speaker 01: In the underlying IPR, I mean the stack of paper on my desk was probably 8 or 12 inches tall of all this commercial success evidence. [00:28:42] Speaker 01: Industry praise and copying and commercial success, et cetera, et cetera. [00:28:46] Speaker 01: I mean industry praise stuff, for example. [00:28:48] Speaker 01: I'll give you an example. [00:28:49] Speaker 01: One of the industry praise arguments was a governor's award. [00:28:55] Speaker 01: All right, they had this governor's award and that's [00:28:56] Speaker 01: industry praise of these patents is what was told to us. [00:28:59] Speaker 01: Isn't the Nexus the only issue that's on appeal? [00:29:01] Speaker 01: It is. [00:29:02] Speaker 01: I'm trying to give you an example of why the board's decision is absolutely justified on that point. [00:29:09] Speaker 04: And the reason is... I understand the patentee are only challenging the Nexus only. [00:29:18] Speaker 01: That's correct. [00:29:19] Speaker 01: Under commercial success. [00:29:20] Speaker 01: Yes. [00:29:20] Speaker 01: That's right. [00:29:21] Speaker 01: That's right. [00:29:24] Speaker 01: is also challenging the sufficiency of the board's decision, and whether the board did a good enough job in explaining what are the reasons why they denied the Nexus argument. [00:29:34] Speaker 01: And what I'm trying to explain is that, for example, this industry war wasn't... I didn't see that argument in your brief. [00:29:39] Speaker 04: I didn't see you saying that even if we agreed that the board messed up on Nexus, we nonetheless affirmed because they were correct on copying and the editing. [00:29:48] Speaker 01: That's not the area. [00:29:49] Speaker 01: What I'm trying to do is give you context. [00:29:50] Speaker 01: I don't really understand why you're [00:29:52] Speaker 01: using your time to talk about. [00:29:53] Speaker 01: Well, because when we're facing this argument that the board didn't do a good enough job of explaining itself, I think it's important for you to get the context from the appendix that it is not reasonable to expect the board to go through every one of these pieces of evidence that was put before it. [00:30:08] Speaker 01: It's an insurmountable burden for the board to undertake. [00:30:11] Speaker 01: It articulated its reasons why. [00:30:14] Speaker 01: It gave us a path that allows us to understand why it denied the commercial success argument, and that's sufficient. [00:30:20] Speaker 01: So I was addressing that point. [00:30:21] Speaker 01: But looking at the three things, so they discarded everything else. [00:30:24] Speaker 01: And you're right. [00:30:24] Speaker 04: I know there's a difference between the graphile that exists as of years after the patent issued compared to the graphile that existed when the claims were being processed, right? [00:30:35] Speaker 04: I missed the very first part of that question. [00:30:37] Speaker 04: The graphile, the material had different characteristics at an earlier point in time than it did at the later point. [00:30:43] Speaker 01: That evidence is not of record, Your Honor. [00:30:45] Speaker 01: Excuse me? [00:30:46] Speaker 01: That evidence is not of record, Your Honor. [00:30:47] Speaker 01: What's of record is, you know, [00:30:51] Speaker 01: Grafoil manual, the 520 patent, the statement by GrafTech that those are basically the same thing. [00:30:57] Speaker 01: We have some later, you know, some commercial success data that talks about some other types of spreader shield, other sorts of graphite. [00:31:04] Speaker 01: But we have nothing that talks about, well, this old stuff wasn't available back then. [00:31:07] Speaker 01: It's different in some way, shape, or form from the prior art. [00:31:10] Speaker 01: That I'm not aware is available. [00:31:12] Speaker 01: All that we have, all it's cited to in the briefing in this appeal by GrafTech is that statement on page 51 [00:31:19] Speaker 01: of the brief, which, of their opening brief in the 1796 case, that says that, you know, that's Ms. [00:31:31] Speaker 01: Dunstan's testimony about how this stuff changed over time. [00:31:34] Speaker 01: There's no evidence of it that I'm aware of. [00:31:36] Speaker 01: So the rate of conductivity is not an issue? [00:31:39] Speaker 01: The range of conductivity is not an issue. [00:31:43] Speaker 01: I mean, they make it an issue relatively... The board made it an issue. [00:31:47] Speaker 01: Absolutely. [00:31:48] Speaker 03: But the board... Where in the claim then does it refer to any type of range or rate of conductivity? [00:31:55] Speaker 01: It does not. [00:31:57] Speaker 03: It does not. [00:31:58] Speaker 03: Well then how can the board say that they failed to draw a nexus between commercial success and the claim? [00:32:06] Speaker 01: What the board said was that GrafTech contradicted itself and therefore its evidence was given less weight. [00:32:12] Speaker 01: That's what the board basically found. [00:32:14] Speaker 01: They have this [00:32:15] Speaker 01: They make certain statements in one context in terms of what the graph tech threshold means. [00:32:19] Speaker 01: And they made different statements in a different context. [00:32:22] Speaker 01: And what the board said is, we're throwing our hands up here. [00:32:25] Speaker 01: We're not giving that persuasive weight because it's contradictory evidence. [00:32:31] Speaker 01: That's what the board said. [00:32:34] Speaker 01: But the bottom line is, regardless of what the board did there, when you look at what the commercial success evidence is, what is paired down to an appeal, [00:32:43] Speaker 01: are three things. [00:32:44] Speaker 01: Number one is the iPhone, Kindle sales, et cetera. [00:32:47] Speaker 01: Number two is Ross data about spreader shield. [00:32:51] Speaker 01: And number three are a series of 11 licenses. [00:32:54] Speaker 01: None of these show the required nexus. [00:32:56] Speaker 01: And the board also just generally stated that it found that there was no nexus. [00:33:01] Speaker 04: And the reason why is, and the evidence that was before it, that it's... You heard my conversation with your adversary about her view about a prima facie case of nexus? [00:33:09] Speaker 04: That's right. [00:33:10] Speaker 01: And what do you have to say about that? [00:33:12] Speaker 01: Somehow we've jumped over proving commercial success. [00:33:16] Speaker 01: So with the Crocs case, which was emphasized in the briefing, there were some other cases that were cited here today, Crocs wasn't mentioned. [00:33:21] Speaker 01: But in the Crocs case, what it says is that the burden is initially on GrafTech to show commercial success, quote unquote commercial success, and the link between that commercial success and the invention. [00:33:34] Speaker 01: Crocs says that when that's established, the burden will shift [00:33:37] Speaker 01: to the adversary to prove that maybe that commercial success is attributable to advertising or other market forces. [00:33:45] Speaker 01: Crocs doesn't wipe away the extensive jurisprudence of this court that sets forth what is required to meet that threshold of commercial success. [00:33:53] Speaker 01: Their argument begs the question of whether they've proven commercial success in the first place. [00:33:58] Speaker 01: Now, what we provided to the board, and the board stated that it considered, was a lot. [00:34:02] Speaker 01: Their stack of commercial success information was tall. [00:34:05] Speaker 04: our response to your argument is that she's misusing the concept of your adversary of a prima facie case. [00:34:11] Speaker 01: Absolutely. [00:34:13] Speaker 01: When you look at the underlying facts, you can't just throw raw numbers out and say, hey, I sold a bunch of stuff to the iPhone. [00:34:18] Speaker 02: When there's no evidence, as your honor pointed out... There's no evidence that the iPhone was sold for that reason. [00:34:23] Speaker 01: Absolutely right. [00:34:23] Speaker 01: We cited evidence, a Thompson Reuters report that shows the top patents that are embodied in the iPhone. [00:34:28] Speaker 01: There's over a thousand patents that embody the iPhone. [00:34:30] Speaker 01: It's not going to surprise you. [00:34:31] Speaker 01: This patent is nowhere to be found. [00:34:33] Speaker 01: We had an expert that testified that [00:34:34] Speaker 01: Guess what? [00:34:35] Speaker 01: No rational consumers buying the iPhone because of the graph while it's in there. [00:34:40] Speaker 01: All right? [00:34:40] Speaker 01: The raw numbers of what was sold to these various companies. [00:34:43] Speaker 04: Well, the court is at your position that the absence of evidence on Nexus is sufficient alone to undermine the secondary considerations argument. [00:34:53] Speaker 04: We don't really care what the level of conductivity may or may not have been in the product. [00:35:00] Speaker 01: I agree with that wholeheartedly, yes. [00:35:01] Speaker 01: You need to have a fundamental showing of that commercial success and the nexus. [00:35:07] Speaker 01: Both are required under this explicit test of cracks. [00:35:11] Speaker 01: You have to show both, and then if you show that, then we have the burden of coming forth and saying, hey, these are the reasons why that success that you did show is due to something else. [00:35:21] Speaker 01: What I heard my colleague suggest was that that burden shifts almost immediately. [00:35:24] Speaker 01: I get to throw some numbers on the table, and now me, as the challenger, has to go out [00:35:30] Speaker 01: and develop all the contrary evidence to just some wrong numbers. [00:35:33] Speaker 01: And that's not the law of this court. [00:35:34] Speaker 02: Well, the implicit core of their argument seems to be that the iPhone wouldn't work as promised without our product. [00:35:45] Speaker 02: But there's nothing in there that, and that's not squarely articulated, but there's also nothing I could find in the record that shows that. [00:35:54] Speaker 01: You're exactly right, Your Honor. [00:35:54] Speaker 01: And the second thing is we did provide [00:35:56] Speaker 01: Context to say that there's tens of thousands of electronic devices nowadays and there's lots and lots of heat management devices out there That's that's the key You know, I've got a few minutes left unless there's more questions I'd like to turn to the the only legal issue really in the case which is the claim construction argument from the eight seven four and four four one patents and [00:36:17] Speaker 01: I just think that what we heard earlier was a... Talk about the waiver question I asked. [00:36:22] Speaker 01: Your Honor, I raised that issue in our briefing. [00:36:24] Speaker 01: I know you did. [00:36:25] Speaker 01: And I believe that you're correct. [00:36:26] Speaker 01: I believe that, you know, we dealt with ten or fourteen lines of text in the patent response and all of a sudden ten pages shows up. [00:36:33] Speaker 01: Now, we responded to all that. [00:36:34] Speaker 01: I believe that even if they're allowed to have that in there, we responded. [00:36:36] Speaker 01: But I agree wholeheartedly that that's been waived. [00:36:40] Speaker 01: You know, I think there's an incomplete discussion of the Board's decision. [00:36:43] Speaker 01: And this discussion about how the Board somehow confused [00:36:48] Speaker 01: thermal shielding and thermal dissipation is just wrong. [00:36:50] Speaker 01: Judge Cleverger, you went through some of the claim constructions that the board came up with. [00:36:56] Speaker 01: Thermal dissipation is spreading of heat. [00:36:58] Speaker 01: Thermal dissipation is blocking of heat or protecting from heat. [00:37:02] Speaker 01: And they also talked about the fact that they defined the exact phrase from the preamble that they were pointing to, the thermal dissipation and shielding system, defining that as a system that both dissipates and shields heat. [00:37:16] Speaker 01: That's exactly what their invention does. [00:37:18] Speaker 01: simultaneously dissipates and shields heat. [00:37:22] Speaker 01: But the ironic thing is, all the prior art that we cite and all the prior art that was used to defeat their claims, it's the exact same CPEG. [00:37:30] Speaker 01: It's CPEG all the way through. [00:37:32] Speaker 04: And so there's... The inherent characteristics of the property demonstrate both characteristics. [00:37:39] Speaker 01: Absolutely correct, Your Honor. [00:37:40] Speaker 04: Not just inherently, Your Honor. [00:37:41] Speaker 04: And by the way you compose the property, you have more conductivity or more release. [00:37:47] Speaker 04: Absolutely right. [00:37:49] Speaker 04: That's right, and when you're dealing with the same product... You can build the product to satisfy which of the two directions you're trying to move the heat in. [00:37:58] Speaker 01: And that's exactly what Norley says. [00:38:00] Speaker 01: The product says the advantage of this anisotropic, and what I was going to clarify briefly in what you said was, it's not just inherently shown, it's explicitly shown. [00:38:07] Speaker 01: When the anisotropy of these products is considered, that is, it moves very fast in the A and B plane, but very slow through, [00:38:15] Speaker 01: You know, that's the shielding right there. [00:38:17] Speaker 01: We showed at page 4 and page 15 of our brief an annotated version of a figure from the 520 patent that had the sheet and the device here. [00:38:27] Speaker 01: If the heat is moving this way, by definition, it's shielding the second component above it. [00:38:30] Speaker 01: And that's exactly what the court found. [00:38:33] Speaker 01: The board found, I should say. [00:38:35] Speaker 01: But I do want to point out that even if they were correct, it's irrelevant. [00:38:39] Speaker 01: The claims themselves explicitly already require [00:38:43] Speaker 01: that you're protecting another component other than the heat source. [00:38:47] Speaker 01: Every single claim in both of these patents where this claim dispute has arisen requires either protection of the external surface or the protection of a secondary component. [00:38:57] Speaker 01: And the prior art shows that. [00:39:00] Speaker 01: In fact, what the board said was that the Noraly and 520 patent necessarily disclosed shielding, stated in another way what they articulated [00:39:10] Speaker 01: If CPEG is shielding in the electronic devices of the 874 and 441 pattern, it was shielding back in 1968 with Shane. [00:39:18] Speaker 01: It was shielding in the 520 and it was shielding in Norley. [00:39:20] Speaker 04: This is all been known. [00:39:21] Speaker 04: I'll ask you a question on the 103 analysis to give your adversary an opportunity to respond because she didn't raise it when she was up first. [00:39:29] Speaker 04: A key piece of their argument, your adversary's argument on the 441 and the 474 IPRs [00:39:37] Speaker 04: is that mercury is not analogous art. [00:39:41] Speaker 04: If we can knock mercury out, then one leg of the stool falls away on the 103 analysis. [00:39:48] Speaker 04: Tell me why you think mercury is analogous art. [00:39:51] Speaker 01: Okay. [00:39:51] Speaker 01: Mercury is a patent that is owned by the same company, the patent owner here in this case. [00:39:56] Speaker 04: I understand it's owned by the same company. [00:39:58] Speaker 01: That doesn't make it analogous art. [00:40:00] Speaker 01: Mercury also employs the exact same material, CPEG, and I think that really [00:40:06] Speaker 01: It's in a different field. [00:40:07] Speaker 01: It's in a different field. [00:40:08] Speaker 01: It's used in the industrial. [00:40:10] Speaker 01: I saw what the different fields are. [00:40:13] Speaker 01: So in the mercury patent, it's more of an industrial field. [00:40:16] Speaker 01: In fact, if you look at the patents, there's a flame underneath it. [00:40:19] Speaker 01: And what that patent does include is a piece of metal in between the flame and the graphite to protect the graphite from the flame. [00:40:30] Speaker 01: But I think counsel has the argument exactly backwards. [00:40:34] Speaker 01: If we're talking about [00:40:36] Speaker 01: graphite works in the incredible heat of an industrial application, then it's almost a teaching towards using that in the lower heat of an electronic device. [00:40:47] Speaker 04: You've got Norley saying... Maybe there's some specific property that only gets activated under the high heat. [00:40:54] Speaker 04: There is not. [00:40:55] Speaker 01: There is not. [00:40:56] Speaker 01: It's the same stuff. [00:40:58] Speaker 01: There's absolutely no property of CPEG that changes somehow under the high heat. [00:41:02] Speaker 01: It is the exact same material in Noraly in the 520 patent. [00:41:06] Speaker 01: And what the board said is, and by the way, we think shielding is shown in Noraly in 520, but just to be sure, we're going to take the teaching from Mercury, which at column four lines 42 to 46 says that CPEG is, quote, known to be a good thermal barrier. [00:41:24] Speaker 01: 51 to 54 are the same column. [00:41:26] Speaker 01: CPEG is, quote, employed in high-temperature shielding applications. [00:41:30] Speaker 01: The board said, if you don't believe that it's in Norley and 520, we think it is because of the anisotropic properties. [00:41:37] Speaker 01: But we'll pull mercury in as well and show you that this is known to shield explicitly. [00:41:43] Speaker 01: So that's why the argument's wrong. [00:41:46] Speaker 01: And this, of course, is a substantial evidence question as well. [00:41:49] Speaker 01: There's no doubt that the board had sufficient evidence to rely upon [00:41:53] Speaker 01: to find that this fact issue is decided in our client's favor. [00:42:15] Speaker 00: All right. [00:42:16] Speaker 00: With my time remaining, I'd like to clarify a few things. [00:42:20] Speaker 03: I believe it was just... I'm going to restore you back to three minutes, okay? [00:42:24] Speaker 03: Pardon? [00:42:25] Speaker 03: Three minutes? [00:42:26] Speaker 00: Three. [00:42:28] Speaker 00: Okay. [00:42:30] Speaker 00: At no point has GrafTech ever alleged that the claims of the 520 patents or any of the three patents require a particular thermal conductivity. [00:42:42] Speaker 00: I think it was just mentioned that somehow we've made an argument that CPEG was 140. [00:42:49] Speaker 00: I don't understand that argument and I would invite consideration of our patent owner response. [00:42:55] Speaker 00: I think at no point in there did we say that the claims required a particular thermal conductivity. [00:43:01] Speaker 00: I do not think that we created this confusion. [00:43:04] Speaker 00: We made very clear that when deciding obviousness, you must go back in time to before the invention. [00:43:09] Speaker 00: So we are locked in time before February 25, 2000. [00:43:12] Speaker 00: So any consideration of modern evidence is improper. [00:43:16] Speaker 00: Also, I think the board pulled in the invention itself when making the decision, and that too is improper under the case law. [00:43:25] Speaker 00: With regard to commercial success, I would like to mention a few things. [00:43:34] Speaker 00: At times, it's been indicated that the nexus has not been shown. [00:43:39] Speaker 00: I think if we look at the record, and we were faulted perhaps for having a voluminous record, but we consider it important to be thorough. [00:43:47] Speaker 00: If you look to A4619, that is a demonstrative we used at the final hearing, and it's a good snapshot, it's a good summary of the evidence of commercial success. [00:44:02] Speaker 00: It by itself is not evidence and we appreciate that. [00:44:05] Speaker 00: But it sets forth how each of the three claims, the claims of those patents are embodied in particular devices. [00:44:14] Speaker 00: And so I think the nexus has been shown because our experts have walked through, gone through the teardowns and shown that these products embody or practice the claimed invention. [00:44:25] Speaker 00: That nexus was shown. [00:44:27] Speaker 00: And we have shown [00:44:29] Speaker 04: In our brief, the numerical value of the product that... What happens if you have a product that practices a particular invention, but it is agreed by everyone that no one ever purchased the product because of that? [00:44:51] Speaker 04: So you have evidence that, yes indeed, [00:44:56] Speaker 04: The phone includes some wiring that is covered by the 003 Clevinger patent. [00:45:06] Speaker 04: But there's absolutely everyone agrees that no one ever, no commercial success of that product is in any way connected to the fact that the Clevinger patent is represented in the product. [00:45:21] Speaker 00: Well, there I think not. [00:45:24] Speaker 00: It would depend on the evidence of record. [00:45:27] Speaker 00: And I think the key is, to date, the case law indicates that to establish a prima facie case, you've got to show two things. [00:45:33] Speaker 04: Well, what is this prima facie case? [00:45:35] Speaker 04: Have you got a case you can tell me about from our jurisprudence where we talk about a prima facie case? [00:45:41] Speaker 00: Yes. [00:45:41] Speaker 00: One is the DiMacco case, which is 851, F2D, 1387. [00:45:46] Speaker 00: A second is the Akola Chem case, 227, F3D, 1361. [00:45:52] Speaker 00: And I'm looking now at page 1392. [00:45:55] Speaker 00: of the DeMacco case. [00:45:56] Speaker 00: And they say, a prima facie case of Nexus is generally made out when the patentee shows both that there is commercial success and that the thing, product, or method that is commercially successful is the invention disclosed and claimed in the patent. [00:46:11] Speaker 00: So here we've shown commercial success. [00:46:13] Speaker 00: We've shown the amount of product that GrafTech has sold. [00:46:17] Speaker 00: We've also shown the commercial success. [00:46:18] Speaker 02: Commercial success and the thing that is successful. [00:46:21] Speaker 00: Yes. [00:46:22] Speaker 00: And we have shown the success of the ultimate products, not only our material that we sell to the vendors, but the products that the vendor sells. [00:46:29] Speaker 00: We think, under the case law, that shifted the burden to Laird. [00:46:33] Speaker 00: And the DeMacco case on page 1393 says, once you've set that forth, the burden of coming forward with evidence and rebuttal shifts to the challenger. [00:46:42] Speaker 02: And basically, they say... Meet the rest of that phrase. [00:46:45] Speaker 02: The thing that is successful is [00:46:51] Speaker 00: Is the invention disclosed and claimed in the patent? [00:46:55] Speaker 02: Which is the iPhone? [00:46:57] Speaker 00: It's an iPhone. [00:46:58] Speaker 00: It's a Kindle tablet. [00:46:59] Speaker 00: It's two laptops. [00:47:00] Speaker 00: The iPhone is disclosed in the patent. [00:47:06] Speaker 02: And the answer to that is, of course, no. [00:47:08] Speaker 00: I disagree. [00:47:09] Speaker 00: We are thermal dissipation and shielding systems with a particular configuration or a thermal dissipation system, and those claims read on [00:47:19] Speaker 00: those devices are configured in such a way as to satisfy the limitations of those claims. [00:47:27] Speaker 00: So we believe once the Nexus has been established, you shift the burden and it could be due to marketing, it could be due to advertising, it could be due to all sorts of things, but they say in that case it's the challenger's burden to show that that was what was responsible. [00:47:41] Speaker 00: Now if you look at the report of Dr. Feinberg, advanced by Laird, he does not have an opinion on these issues. [00:47:48] Speaker 00: He simply took issue with what Mr. Green did. [00:47:52] Speaker 00: He didn't like his methodology or exactly how he went about it, but he admitted in his deposition that he did not have an independent opinion on this, and he did not do that analysis. [00:48:03] Speaker 00: And this is set forth with particularity in our reply at page 31. [00:48:08] Speaker 03: Could you give us your concluding thought? [00:48:11] Speaker 00: I think timing is essential when deciding these matters. [00:48:14] Speaker 00: We have to go back to before the invention. [00:48:16] Speaker 00: I think we have to let the specifications control and make sure that we don't get too divorced from the specification. [00:48:25] Speaker 00: And I think we really have to make a distinction between attorney argument and credible evidence of record.