[00:00:00] Speaker 01:
Also, in renovations, and Mr. Rosato, when you're prepared, go ahead and begin.

[00:00:11] Speaker 05:
Thank you.

[00:00:27] Speaker 05:
Thank you again, Amit.

[00:00:28] Speaker 05:
Please the court.

[00:00:30] Speaker 05:
Nice to see you again.

[00:00:35] Speaker 05:
So in this case, again dealing with spinal fusion implants, here the board's finding of unpatentability should be reversed because

[00:00:45] Speaker 05:
Well, again, starting with their two issues, I'm going to address the rationale of the combined issue first, but even assuming that these references are prior, the board here failed to provide reasons why a person of ordinary skill and the art would have combined the asserted references.

[00:01:03] Speaker 05:
The entirety of the board's reasoning is found at A11 through A13.

[00:01:09] Speaker 05:
The issue was whether a person of ordinary skill in the art would have any reason to modify the primary references, which were posterior-inserted implants or implants designed for posterior insertion, to include radio-opaque markers located in the medial plan.

[00:01:28] Speaker 02:
Are you going to abandon the accessibility of the references argument?

[00:01:33] Speaker 02:
No, Your Honor.

[00:01:34] Speaker 02:
Okay.

[00:01:35] Speaker 02:
You challenged public accessibility.

[00:01:40] Speaker 02:
during institution proceedings.

[00:01:42] Speaker 02:
But you didn't challenge it during the trial phase.

[00:01:48] Speaker 02:
How are you not barred from challenging under QOZO?

[00:01:54] Speaker 05:
Under QOZO?

[00:01:55] Speaker 05:
Yeah.

[00:01:56] Speaker 05:
Excellent question.

[00:01:58] Speaker 05:
So actually if you look at what the board said in their institution decision, we're not, one, we're not necessarily challenging that.

[00:02:07] Speaker 05:
But it only goes so far.

[00:02:08] Speaker 05:
What the board said in their institution decision, that's at A186, is that essentially the board recognized the deficiencies with the evidence that METRON, sorry, that NUVASIF was identifying their preliminary response.

[00:02:23] Speaker 05:
The board didn't disagree with that.

[00:02:24] Speaker 05:
They specifically noted the vague and general nature of that evidence and said,

[00:02:29] Speaker 05:
This is good enough to get you institution at the lower standard for institution.

[00:02:35] Speaker 01:
We understand all those facts.

[00:02:36] Speaker 01:
But then at the hearing, Judge Green said, I take it you are no longer disputing the public availability of the Telemann reference.

[00:02:44] Speaker 01:
And Mr. Nelson, a different counsel, not you, said, that is correct.

[00:02:48] Speaker 01:
We're leaving that issue aside.

[00:02:50] Speaker 01:
No longer disputing.

[00:02:52] Speaker 01:
How does that not constitute a waiver

[00:02:54] Speaker 01:
of the issue.

[00:02:55] Speaker 01:
And it was never brought up at any other point during the hearing.

[00:02:58] Speaker 01:
It's not like he said, oh, when we said not disputing, we meant not right now, we're going to dispute it later.

[00:03:02] Speaker 01:
There was never another, why would the board have reached public accessibility?

[00:03:07] Speaker 01:
Why would they need to resolve your dispute, which had been very efficiently and well laid out earlier at the petition level.

[00:03:17] Speaker 01:
But here, when it got to trial, I take it you are no longer disputing.

[00:03:20] Speaker 01:
That's correct, Your Honor.

[00:03:23] Speaker 05:
Yeah, absolutely fair question, Your Honor.

[00:03:26] Speaker 01:
You gave me a lot on that one.

[00:03:28] Speaker 01:
Go ahead.

[00:03:29] Speaker 05:
Yeah, so if you look at the whole quote, I mean, we wish he was more clear on that.

[00:03:36] Speaker 03:
You're wishing he was less clear.

[00:03:39] Speaker 05:
Well, look at the rest of his statement.

[00:03:40] Speaker 05:
He goes on to note a number of other things that he's not going to be addressing, and specifically says, I'm not abandoning those issues.

[00:03:51] Speaker 05:
So it was terribly articulated.

[00:03:53] Speaker 05:
statement but at best it's I would say at best it's ambiguous and he's not trying to expressly abandon it he's trying very inarticulately to express what he's prioritizing.

[00:04:05] Speaker 02:
Well if you went to the merits each of those references is copyrighted in 2002 or 2003 and has a 1-800 number on it aren't they inherently publicly accessible?

[00:04:20] Speaker 05:
Well I mean copyright

[00:04:22] Speaker 05:
maybe that illustrates it as fixed in a tangible medium of expression, but it doesn't address public accessibility.

[00:04:29] Speaker 05:
They may have put it in print, but this goes to the issue of scope of review.

[00:04:35] Speaker 05:
I mean, there's a reason why.

[00:04:37] Speaker 02:
But isn't there a copy on file by law with a copyright office?

[00:04:44] Speaker 05:
It doesn't say registered.

[00:04:46] Speaker 05:
It just says

[00:04:47] Speaker 05:
copyright, so there's not a registration.

[00:04:49] Speaker 05:
So there's no indication, for example, this went to the Library of Congress.

[00:04:51] Speaker 03:
Were these user manuals?

[00:04:54] Speaker 05:
Yeah, they were brochures.

[00:04:57] Speaker 05:
It was a sales brochure.

[00:04:58] Speaker 02:
And they say for reference only on them.

[00:05:00] Speaker 02:
And you make an argument that that indicates confidentiality.

[00:05:06] Speaker 02:
But why isn't it equally possible that it indicates a limitation of liability?

[00:05:13] Speaker 05:
We just don't know what it means.

[00:05:14] Speaker 05:
That's the point.

[00:05:17] Speaker 05:
I mean, well, that makes it a weak point.

[00:05:22] Speaker 05:
It was the same thing the board noted in their institution decision, which is the evidence at best is vague and general, and it meets the lower standard.

[00:05:30] Speaker 05:
But there's an indication there it doesn't meet the higher standards or problems with this.

[00:05:35] Speaker 05:
The problem in the context of this type of review are two things.

[00:05:40] Speaker 05:
One, these reviews are specifically designed to be limited to prior

[00:05:45] Speaker 05:
patents and printed publications because these proceedings are designed to encompass a use type case of what's out there in the market or what people are using.

[00:05:56] Speaker 05:
The discovery tools and the timing just doesn't comport with that type of case.

[00:06:03] Speaker 05:
But two, the rules specifically give Medtronic an opportunity, and this is what the board is signaling, to file a motion for supplemental information under Rule 42123

[00:06:14] Speaker 05:
to add information to substantiate their case.

[00:06:17] Speaker 05:
There's a timing for doing that within one month of institution.

[00:06:21] Speaker 05:
Medtronic never did that.

[00:06:22] Speaker 05:
So if you look at what the board said, they're saying, Medtronic, you get in, but it's not very good, and you bear the ultimate burden on this.

[00:06:31] Speaker 05:
Never flipped an evasive to satisfy this.

[00:06:34] Speaker 05:
So at the end of the day, Medtronic didn't do anything to correct this.

[00:06:38] Speaker 05:
And it just leaves,

[00:06:42] Speaker 05:
It leaves the issue open.

[00:06:44] Speaker 01:
If you don't mind, I'd rather you get to your motivation to combine point.

[00:06:52] Speaker 01:
And in particular, why don't you start with why isn't Dr. Yuan's testimony, which identified advantages of the particular kinds of implants and arguably the combination

[00:07:06] Speaker 01:
Why isn't that sufficient?

[00:07:08] Speaker 01:
Why couldn't the board rely on that to supplement or provide adequate support for motivation to combine, which is a question of fact that we review for substantial evidence.

[00:07:17] Speaker 01:
So I don't get to look at this de novo.

[00:07:20] Speaker 01:
So why isn't that good enough?

[00:07:21] Speaker 05:
Sure, because he's not talking about state of the art prior to the invention.

[00:07:25] Speaker 05:
He's talking about

[00:07:26] Speaker 05:
a nuvasive implant that embodies the claimed invention that arose after the filing date.

[00:07:32] Speaker 05:
And he's explaining that the markers placed in the medial plane of that nuvasive implant provided the ability to line up the middle of the implant in a lateral procedure with an anatomical reference point, the spinous process, which is basically the bony ridge down the posterior surface of your back.

[00:07:51] Speaker 05:
But in a lateral procedure, those markers allowed

[00:07:55] Speaker 05:
alignment and positioning of the lateral implant.

[00:07:59] Speaker 05:
So it doesn't work for two reasons.

[00:08:02] Speaker 05:
One, he's not talking about state of the art prior.

[00:08:06] Speaker 05:
He's talking about benefits realized.

[00:08:08] Speaker 05:
Two, the very things he's talking about don't apply to the different type of implants that are being modified.

[00:08:15] Speaker 05:
Those are posterior implants that come in from the back and go posterior to anterior.

[00:08:21] Speaker 05:
So you've got the reference, the anatomical reference point that bears, you know, no relation to the positioning of that type of implant.

[00:08:27] Speaker 03:
Can I ask you, I guess, a version of that question, but not for you on, but rather for paragraph 68 of, is that Heinz?

[00:08:40] Speaker 03:
Mm-hmm.

[00:08:40] Speaker 03:
Yeah.

[00:08:40] Speaker 03:
On page A591.

[00:08:41] Speaker 03:
Now, in the board opinion, this is again in the, I think what Mr. Mattel called,

[00:08:50] Speaker 03:
in the earlier case, the framing of the debate rather than kind of findings by itself.

[00:08:56] Speaker 03:
So I realize that may be very significant, but I'm going to try to put that aside for a minute.

[00:09:03] Speaker 03:
The board says at A9, which happens happily to be page 9 of its opinion, according to Petitioner, it would have been obvious to the ordinary artisan at the time of invention to include the radio pack

[00:09:17] Speaker 03:
markers of Pacelli in the implants of SPS or Telemann in order to provide additional information regarding location and orientation of the implant, both during surgery and after implementation.

[00:09:27] Speaker 03:
And it cites this paragraph on page A591, which is not written about later knowledge of benefit, but is actually written, is my opinion, that prior to the earliest effective date, a person of ordinary skill in the art would have considered it, blah, blah, blah, to provide additional information.

[00:09:46] Speaker 03:
Assume with me,

[00:09:47] Speaker 03:
for purposes of this question, though I know you will disagree, that that might be taken to be an agreement with that point because the board immediately goes on to say, well, Patanonna responds this, we're not persuaded by the response.

[00:10:03] Speaker 03:
I've realized that there was a bit of a jump there.

[00:10:08] Speaker 03:
On the merits.

[00:10:09] Speaker 03:
Assuming this worry finding what would be insufficient about it putting aside you on just this?

[00:10:16] Speaker 05:
Yeah, why isn't that good enough in other words?

[00:10:19] Speaker 05:
And this was a point of dispute or important point of contention by an evasive is that so vague in general in nature simply saying hey you get more information and it's common sense to want more information doesn't provide a sufficient reason why you would want a

[00:10:35] Speaker 05:
that information.

[00:10:37] Speaker 03:
Provide additional information regarding the orientation or location of an implant during surgery.

[00:10:43] Speaker 05:
What is that information?

[00:10:45] Speaker 03:
Well, you want to see where the thing is.

[00:10:50] Speaker 05:
So I want to address that in two parts.

[00:10:53] Speaker 05:
One is why standing alone isn't good enough because it doesn't say what kind of information you want when combined with the rebuttal evidence.

[00:11:00] Speaker 02:
Well, it does in the sense that it's placement in space.

[00:11:07] Speaker 05:
Right, but remember, it seems like a big deal.

[00:11:10] Speaker 05:
Yeah.

[00:11:10] Speaker 05:
And it is, but it's a big deal that's met by the fact that those implants already have radiopaque markers on them.

[00:11:17] Speaker 05:
They're just put in different places.

[00:11:19] Speaker 05:
And they're put there because those places make sense in the context of that type of implant.

[00:11:24] Speaker 03:
The other ones, they're just two?

[00:11:26] Speaker 03:
One kind of front and one distal and one proximal?

[00:11:29] Speaker 03:
Correct.

[00:11:29] Speaker 02:
And then tell them in an SVS, say, well, if you put two more in,

[00:11:36] Speaker 02:
It allows us more information about orientation in space.

[00:11:40] Speaker 05:
Well, okay, so just to correct that, SVS and Telemann have markers at the front and the back.

[00:11:47] Speaker 05:
That makes sense for... One each.

[00:11:49] Speaker 05:
One each.

[00:11:50] Speaker 05:
Okay.

[00:11:50] Speaker 05:
And that makes sense for the purpose of advancing something posterior to anterior and making sure you go far enough but not too far and you can measure where the ends of the implant are relative to the disc space.

[00:12:03] Speaker 05:
Adding markers to the middle only makes sense when it doesn't make any sense or provide any useful information in that context.

[00:12:12] Speaker 05:
It provides noise in a signal-to-noise situation.

[00:12:15] Speaker 05:
It just doesn't give you signal, in other words.

[00:12:17] Speaker 05:
So that's a rationale problem.

[00:12:19] Speaker 05:
If you can add noise, it gives you more information.

[00:12:23] Speaker 05:
There's just no reason to do it.

[00:12:25] Speaker 05:
And that actually is consistent with additional information from both experts, both of them saying,

[00:12:31] Speaker 05:
that sometimes, yes, the state of the art was you generally want as little as possible.

[00:12:36] Speaker 05:
And designers are very purposeful about where you place.

[00:12:40] Speaker 03:
As little as necessary.

[00:12:42] Speaker 05:
As little as necessary, yeah.

[00:12:45] Speaker 05:
If it's not necessary to, when there's no reason to put markers in the middle of a short stub implant, you don't do it.

[00:12:52] Speaker 05:
The only reason arises when you do what an invasive did, which is you're lengthening out an implant and designing to come in from a different

[00:13:01] Speaker 05:
to be a different implant.

[00:13:03] Speaker 05:
Then you bring in different anatomical reference points, and now you have a reason why that helps you and makes sense.

[00:13:10] Speaker 01:
You're well into your rebuttal time.

[00:13:11] Speaker 01:
Would you like to save some?

[00:13:15] Speaker 05:
Yeah, I'll save a little bit and let counsel speak.

[00:13:19] Speaker 05:
Thank you.

[00:13:24] Speaker 03:
You're going to get awfully comfortable in Medtronic shoes.

[00:13:28] Speaker 00:
Your Honor, the office only intervened in this appeal about a week ago and in its intervention notice promised not to file a brief and to be available to respond to questions.

[00:13:37] Speaker 00:
In the absence of initial questions, I would like to respond to some of the points raised by you basically.

[00:13:42] Speaker 01:
Mainly, I want to know about motivation and combined.

[00:13:44] Speaker 01:
I don't talk about public accessibility.

[00:13:46] Speaker 01:
Just drop that point.

[00:13:47] Speaker 01:
Go right to motivation and combined.

[00:13:50] Speaker 00:
The motivation and combined in this case, as Judge Toronto noted, it's stated by the board at page nine of its opinion.

[00:13:58] Speaker 00:
It effectively credits the petition's arguments.

[00:14:00] Speaker 00:
It then weighs Newvasive's responding.

[00:14:02] Speaker 03:
You might want to have emphasized more the word effectively.

[00:14:08] Speaker 00:
Effectively, yes, Your Honor.

[00:14:09] Speaker 00:
I'll underline that.

[00:14:10] Speaker 00:
The Board then goes on to consider Newvasive's counterarguments that this is vague.

[00:14:15] Speaker 00:
It doesn't provide a rational underpinning.

[00:14:17] Speaker 02:
Judge Geroniman, was that an adjective or an adverb?

[00:14:22] Speaker 00:
Whichever suits the case, Your Honor.

[00:14:24] Speaker 00:
I'm afraid I've lost the point.

[00:14:27] Speaker 01:
But, I mean, joking aside, the statement by the board on page nine is according to petitioner.

[00:14:35] Speaker 01:
It would have been obvious.

[00:14:37] Speaker 01:
And clearly that entire paragraph is an articulation, in fact, with quotes, petitioner's petition.

[00:14:43] Speaker 01:
That's not a fact-finding by the board, clearly, right?

[00:14:48] Speaker 00:
You're right.

[00:14:49] Speaker 01:
And the next paragraph is patent-owner.

[00:14:51] Speaker 01:
That's not a fact-finding.

[00:14:52] Speaker 01:
So you hinge everything on the single sentence that says, we're not persuaded by patent owner's argument.

[00:14:59] Speaker 01:
Well, I understand you're not persuaded by patent owner's argument.

[00:15:02] Speaker 01:
Does that really mean you have adopted precisely?

[00:15:05] Speaker 01:
the argument petitioner that you quoted earlier when you said it's their argument.

[00:15:10] Speaker 00:
Effectively.

[00:15:11] Speaker 00:
I get that part, but that's where I'm a little... These are adjudicative proceedings and the board is presented with arguments from both sides.

[00:15:18] Speaker 00:
It listens to one side and explains its position, then hears from the other and then makes a judgment.

[00:15:22] Speaker 01:
It should be better, instead of saying we are not persuaded by patent owner, since the burden of proof in this petition is on the petitioner, right?

[00:15:29] Speaker 01:
Patent owner doesn't have to persuade you of anything.

[00:15:31] Speaker 01:
Who has to persuade you?

[00:15:33] Speaker 00:
that the petitioner always bears the burden in these proceedings.

[00:15:36] Speaker 01:
So the petitioner has to persuade you.

[00:15:38] Speaker 01:
So to say you're not persuaded by the patent owner, can I really accept it as a given that the petitioner has therefore persuaded you?

[00:15:45] Speaker 00:
It's perhaps an elegant formulation in this case, but when all the information on those three pages is viewed in context, it's clear the board is addressing the issue of was there a motivation to combine.

[00:15:55] Speaker 00:
It's weighing the preliminary evidence.

[00:15:56] Speaker 00:
It doesn't credit the initial information in the petition because that's only partial evidence.

[00:16:00] Speaker 00:
It hasn't considered the rebuttal yet.

[00:16:02] Speaker 00:
And then it hasn't further considered the reply evidence.

[00:16:05] Speaker 00:
The board did what an adjudicator is supposed to do in these cases.

[00:16:08] Speaker 00:
It weighs the evidence from both sides and then decides if the party who bears the burden has met that burden.

[00:16:13] Speaker 01:
Where did it decide that?

[00:16:14] Speaker 01:
Where did it decide where the party who bears the burden has met the burden?

[00:16:18] Speaker 00:
There's no one sentence that states that.

[00:16:21] Speaker 00:
And many of the board's decisions, the board doesn't expressly cite the burden, but it's presumed to follow its own rules.

[00:16:27] Speaker 00:
And it's certainly aware of its own rules.

[00:16:29] Speaker 00:
And in this case, again, when everything is viewed in context, it's considering both sides' arguments and it's simply persuaded by one side rather than the other.

[00:16:36] Speaker 00:
That's what happens in an adjudicated proceeding when both sides present their evidence back and forth and the board makes its final judgment under its rules.

[00:16:44] Speaker 00:
The board was clearly apprised of a dispute over whether there's a motivation to combine.

[00:16:49] Speaker 00:
You clearly had NUVASIF coming in in its patented response and contesting whether the motivation to combine presented by petitioner was sufficiently specific, whether it presented a rationale

[00:16:59] Speaker 00:
Medtronic then came back and provided reply evidence and further elaborated on its rationale.

[00:17:07] Speaker 00:
It further explained what's meant by orientation.

[00:17:10] Speaker 00:
And I'd also refer the court back to all of this comes out of the initial reference, Bisselli.

[00:17:14] Speaker 00:
It's Bisselli that tells you that placing markers in a particular location tells you about their location and orientation both before and after the surgery.

[00:17:23] Speaker 00:
And this isn't a case where we only have radio opaque markers in the prior art

[00:17:27] Speaker 00:
at the two ends and the question is, oh, would someone have understood and been motivated to move them to the center?

[00:17:32] Speaker 00:
Bisselli itself teaches radio opaque markers at that medial location.

[00:17:39] Speaker 00:
Or it can be red.

[00:17:41] Speaker 00:
Yes, or it teaches them as an alternative embodiment.

[00:17:44] Speaker 03:
No, no, no, I want to say, it seems to me even the language of Bisselli

[00:17:48] Speaker 03:
need not have been read to teach that, but that can be.

[00:17:52] Speaker 00:
It can reasonably be understood that way.

[00:17:54] Speaker 00:
Certainly there was substantial evidence to support the board's finding.

[00:17:57] Speaker 00:
Paragraph 51 of Becelli, Becelli's been talking about these two spikes, the two spikes 24 that earlier at paragraph 44 are described as symmetrically disposed to each other across the sagittal plane.

[00:18:08] Speaker 00:
In figure two of Becelli, it clearly shows the spikes 24 at the middle.

[00:18:12] Speaker 01:
Not to beat a dead horse, but where does the board say precisely that Becelli

[00:18:19] Speaker 01:
Where is that fact-finding?

[00:18:20] Speaker 01:
Is this all captured in the we don't find petitioner persuasive sentence?

[00:18:25] Speaker 01:
Or is there actually a fact-finding somewhere in the opinion about Becelli?

[00:18:28] Speaker 01:
Because I agree with you, there is substantial evidence in Becelli for such a fact-finding.

[00:18:33] Speaker 01:
I'm just curious where the... Is it really all that one sentence?

[00:18:38] Speaker 00:
Your Honor, it's not one sentence.

[00:18:40] Speaker 00:
It's the whole two pages read in context.

[00:18:42] Speaker 01:
But where does it mention Becelli?

[00:18:43] Speaker 00:
I believe it does cite Becelli.

[00:18:47] Speaker 01:
On page 11, we do not find patent owner's argument persuasive.

[00:18:51] Speaker 01:
As petitioner notes, Becelli teaches the use of radio markers in the central regions of an implant.

[00:18:55] Speaker 00:
Yes.

[00:18:56] Speaker 01:
So that sounds like a fact-finding, right?

[00:18:58] Speaker 00:
Yes, and it cites to paragraph 51 of Becelli.

[00:19:02] Speaker 00:
That's the paragraph that talks about making the two markers to the two spikes 24 radio page.

[00:19:08] Speaker 01:
That feels good to me.

[00:19:09] Speaker 01:
That feels like a fact-finding.

[00:19:10] Speaker 01:
Very precise.

[00:19:12] Speaker 00:
And then there's the motivational question.

[00:19:16] Speaker 00:
The question of motivation to combine.

[00:19:18] Speaker 03:
Or why somebody would have gone about... There's no question... This is a fact finding that says Bisselli has this.

[00:19:30] Speaker 00:
But why would somebody have... You know, the origin of motivation begins just a paragraph earlier in Bisselli and paragraph 50 stretching across pages 750 to 51

[00:19:42] Speaker 00:
Bisselli talks about two other radiopaque markers, 47.

[00:19:45] Speaker 00:
And it notes that using radiopaque markers helps you understand the position and location of the implant, both before and after surgery.

[00:19:52] Speaker 00:
In the next paragraph, it says, you can also put the markers in the middle, but is general teaching about the value of radiopaque markers should at least carry over to the next paragraph.

[00:20:02] Speaker 00:
They're being used there for the same purpose.

[00:20:04] Speaker 00:
Ubis's only argument in response is, oh, that's too many markers, it's too confusing.

[00:20:09] Speaker 00:
But the board didn't credit that argument, it said,

[00:20:11] Speaker 00:
You know what?

[00:20:11] Speaker 00:
These spinal surgeons, we think they're smart guys.

[00:20:14] Speaker 00:
A guy of ordinary skill would have known not to use too many markers.

[00:20:17] Speaker 00:
And if markers at the ends show you position and orientation, that's what markers do generally.

[00:20:22] Speaker 00:
And markers at the middle can show you the same thing.

[00:20:25] Speaker 00:
In their reply... Do you have anything further you want to add, Mr. Patel?

[00:20:30] Speaker 01:
Thank you.

[00:20:32] Speaker 01:
That's your argument.

[00:20:33] Speaker 01:
Thank you very much.

[00:20:34] Speaker 01:
It's very helpful to have the PTO stand in in this instance when we didn't have a red brief person anymore.

[00:20:39] Speaker 01:
So thank you for doing that.

[00:20:41] Speaker 01:
You have some rebuttal time.

[00:20:44] Speaker 05:
Thank you.

[00:20:45] Speaker 05:
I'm just going to make one comment on the Becelli reference.

[00:20:50] Speaker 05:
Sorry, I'm Italian.

[00:20:50] Speaker 05:
Don't be shy.

[00:20:55] Speaker 05:
I have to pronounce it.

[00:20:58] Speaker 05:
That's not my only comment.

[00:21:00] Speaker 05:
On the teachings of Becelli,

[00:21:03] Speaker 05:
I want to make clear, so while the board may have assumed that Bocelli is teaching these markers in the medial plan, we disagree with that interpretation, obviously.

[00:21:14] Speaker 05:
The more pertinent point is the board's relying very, very heavily on Bocelli, and almost exclusively, depending on how you read their reliance on the Yuan testimony.

[00:21:26] Speaker 05:
But the rationale, according to the board's decision, comes entirely from Bocelli.

[00:21:33] Speaker 05:
Taken in that context, you would expect to see some generalized teaching about the benefits of markers in these positioning across a range of implants, but that's not a teaching that's found, and there is no fact-finding on that point.

[00:21:48] Speaker 03:
I assume for purposes of this question that the board found and could find, based on paragraph 51 of Pacelli, that Pacelli discloses making the medial spikes radial.

[00:22:04] Speaker 03:
What is left of the, what still needs to be shown or found by the board for the obviousness case?

[00:22:14] Speaker 05:
Sure.

[00:22:15] Speaker 05:
Why you would look to a horseshoe type cervical implant, if assuming your facts, your honor.

[00:22:20] Speaker 05:
Yes.

[00:22:20] Speaker 05:
Why would you, why you would look to a horseshoe shaped cervical implant that goes in one part of the spine, a bocelli, and take that same type of design or take the aspects that design applied to

[00:22:33] Speaker 05:
a different type of implant that goes in posteriorly in the lumbar region.

[00:22:39] Speaker 05:
There's no reason why.

[00:22:40] Speaker 03:
So there's still an additional need for a motivation to combine even what is, by assumption, found in Bocelli with the, this is what, SVS again?

[00:22:54] Speaker 05:
SVS and Telomon, yes.

[00:22:57] Speaker 05:
Exactly.

[00:22:57] Speaker 05:
So even if in order to assume Bocelli teaches those markers why you would take that

[00:23:03] Speaker 05:
design feature and apply to a very different type of plan.

[00:23:08] Speaker 03:
To get back to the place, I guess, at A9, page 9 of the board's decision where it is reciting the petitioner's argument based on paragraph 68 of Heinz,

[00:23:21] Speaker 03:
that's 8591, and not really using the, not in fact using the language of finding.

[00:23:29] Speaker 03:
How do we think about whether, as I think Mr. Matal suggests, we can say what they were doing here was effectively making the finding because they're saying here's what it is, you have one response to it, we're not persuaded by the response.

[00:23:48] Speaker 03:
And they should have written a sentence that we therefore credit petitioners' position.

[00:23:54] Speaker 03:
They didn't put that sentence in.

[00:23:57] Speaker 03:
Is there really a doubt about what they meant there?

[00:24:02] Speaker 05:
I think there's not a doubt that they weren't crediting that argument.

[00:24:04] Speaker 05:
They were coming back to Pacelli and saying, Pacelli, Pacelli, Pacelli.

[00:24:09] Speaker 05:
New base, if it's fine, you argue this, but there's Pacelli.

[00:24:12] Speaker 05:
And you can see this at A11 through A13, multiple instances.

[00:24:18] Speaker 05:
to address arguments that were raised, they come back to Bocelli and say, well, you argue that, but Bocelli teaches markers in the media plan.

[00:24:26] Speaker 05:
You argue confusion, but Bocelli teaches.

[00:24:29] Speaker 05:
You argue there's no reason to do this, but Bocelli teaches.

[00:24:32] Speaker 05:
So again, this comes back to what does Bocelli teach?

[00:24:35] Speaker 05:
What it doesn't have is some generalized teaching that this is a wonderful feature to apply across a wide range of different types of implants.

[00:24:43] Speaker 05:
In fact, we don't think they show it in even theirs.

[00:24:46] Speaker 01:
OK.

[00:24:46] Speaker 01:
Thank you, Mr. Rosato.