[00:00:09] Speaker 01:
I'm close to joining you.

[00:00:48] Speaker 02:
Anything you say is going to make me feel bad.

[00:00:53] Speaker 02:
This is a shampoo case.

[00:00:57] Speaker 00:
On that note, good morning, Your Honors, and may it please the Court.

[00:01:03] Speaker 00:
The core issue in this case is going to be claim construction.

[00:01:08] Speaker 00:
Procter & Gamble's 569 patent claims a novel dandruff shampoo, and it does so with great precision and great specificity.

[00:01:18] Speaker 00:
The claim specifies six components that must be present in the shampoo in specific percentage by weight ranges.

[00:01:26] Speaker 00:
But that's not all.

[00:01:28] Speaker 00:
The claims also set forth four specific properties that the composition must possess.

[00:01:33] Speaker 00:
These properties are characterized in the patent by precise index values that the composition must possess in order to meet the claim.

[00:01:43] Speaker 00:
These index values have no meaning, none, extrinsic to the 569 patent.

[00:01:48] Speaker 00:
They were coined by the inventors, and the test protocols were designed by them.

[00:01:53] Speaker 00:
And the specification contains excruciating detail, excruciating detail that the director has criticized us for, I might add, with regard to how these tests are to be conducted and how the index values are to be calculated.

[00:02:05] Speaker 00:
Now, what's the purpose of these index values?

[00:02:06] Speaker 00:
They define a sweet spot, a sweet spot that optimizes the properties of the claimed dandruff shampoo so that it kills dandruff but still leaves hair feeling clean, among several other things.

[00:02:18] Speaker 00:
The novelty and non-obviousness of this invention is the creation of this anti-dandruff shampoo that does not involve trade-offs in conditioning performance on the one hand and clean hair feel on the other and anti-dandruff performance yet again and the other properties that are set forth in the index values.

[00:02:37] Speaker 00:
Now what the board did in this case was to decide that these four specific indices were not actually required by the claims even though they are set forth right there.

[00:02:46] Speaker 00:
Instead, the board told us they are merely proxies for a shampoo, and I quote the board here at A7, proxies for a shampoo that has been optimized for corresponding beneficial shampoo properties.

[00:02:59] Speaker 00:
Now, it was based on this claim construction that the board found that the Canabo reference rendered these claims obvious.

[00:03:06] Speaker 00:
This was, in short, a legal error.

[00:03:10] Speaker 00:
This court's cases time and again tell us that an inventor's definitions have to be honored.

[00:03:15] Speaker 00:
And there's no question here that these four index values, and moreover the specific tests that are used to define them, were defined in the 569 patent using the unmistakable language of definition.

[00:03:28] Speaker 00:
You start in the abstract at A542.

[00:03:30] Speaker 00:
The four index values are, quote, defined herein.

[00:03:35] Speaker 00:
In the summary of the invention at A543 column two, the present invention relates to a shampoo composition having the four index values, quote, as defined herein.

[00:03:47] Speaker 00:
You go to the detailed description of the invention at A544 column three.

[00:03:51] Speaker 00:
More particularly, these compositions exhibit certain characteristics which are measured by four indices defined herein.

[00:03:59] Speaker 00:
In the analytical methods that are set forth at A59 at column 33, starting there,

[00:04:05] Speaker 00:
The methods to be employed, the definite article, the methods to be employed for determining the values of these indices are described in detail below.

[00:04:16] Speaker 00:
And this is followed by 11 columns of detailed descriptions of the methods.

[00:04:21] Speaker 01:
So let me tell you something I'm concerned about.

[00:04:23] Speaker 01:
Sure.

[00:04:24] Speaker 01:
You've got 11 columns that you're reading into these claims when you construe those claims.

[00:04:32] Speaker 01:
It's a lot to read into the claim constructions.

[00:04:35] Speaker 01:
I'm just wondering, are you aware of any cases where something like this has happened before?

[00:04:40] Speaker 00:
Well, Judge Stoll, I might take issue with the characterization of reading into the claims, because that's what the board said, and that's what the director is saying in this case.

[00:04:51] Speaker 00:
What we do have in the claims, though, are specific index values.

[00:04:56] Speaker 00:
Now, in a lot of cases, for example, you might take a look at the

[00:05:02] Speaker 00:
I think it's the Callaway Golf case, for example, recently decided by this court.

[00:05:07] Speaker 00:
An ASTM standard that was extrinsic to the patent was incorporated, in essence, by reference.

[00:05:15] Speaker 00:
But it was decided by the court that that was the standard that was going to be used.

[00:05:19] Speaker 00:
In the Invitrogen case, which is also cited in our briefs, the specification referred to a specific gel assay for measuring what was called RNase H activity.

[00:05:30] Speaker 00:
The court held in that case that it was that test that had to be used to define the particular value that was claimed in the claim.

[00:05:38] Speaker 01:
that the cheating against in those two cases you've got a situation where you're going to an outside test you're going you're saying okay this index value is something that's determined by this standard that's used in the industry this is a little different I don't know if it's a meaningful difference but this is a little different than you're telling us to go to specific techniques that are described in the 11 columns in the specifications so I think Judge Stohl the in vitrogen case doesn't meet

[00:06:07] Speaker 00:
your description there.

[00:06:09] Speaker 00:
I think in vitrogen the test was actually set forth in the specification itself.

[00:06:13] Speaker 00:
Callaway Golf has an external ASTM test.

[00:06:17] Speaker 00:
I was just beginning to mention the Chimi against PPG case, which is cited in our brief.

[00:06:21] Speaker 00:
There was an industrial standard called DIN 53583.

[00:06:24] Speaker 00:
That was extrinsic.

[00:06:27] Speaker 00:
Whether it's extrinsic to the patent or intrinsic, the point is that it's defined.

[00:06:32] Speaker 00:
I don't think there's a meaningful difference.

[00:06:33] Speaker 00:
I don't think there's a legal difference.

[00:06:35] Speaker 00:
In fact, quite the contrary, I think that it's probably better to set forth in detail in the patent the precise way to do the tests.

[00:06:43] Speaker 00:
And that's what these inventors did.

[00:06:44] Speaker 00:
And by the way, to the extent that it's helpful to understand what these tests are about, Judge Stolf, these tests are about comparing the composition to a control.

[00:06:55] Speaker 00:
Each of them is compared to a control.

[00:06:57] Speaker 00:
And the control is basically what was as good as existed, at least in these inventors' minds beforehand.

[00:07:03] Speaker 00:
So the idea was to come up with something that was actually better in these various categories than what existed before.

[00:07:11] Speaker 00:
Just turning back very briefly to the language of definition that's in this patent, there are no fewer than 11 specific places where it says that these index values are defined in the patent, defined herein.

[00:07:23] Speaker 00:
In cases that we've cited like AstraZeneca and Braintree Labs, both of those cases involved one reference to definition.

[00:07:33] Speaker 00:
defined below in AstraZeneca brain tree labs as used herein.

[00:07:38] Speaker 00:
That was enough for a clear lexicography in that case.

[00:07:43] Speaker 00:
Now, Judge Toll, let me go back to your concern about reading into the claim, which I think is really not what's happening here.

[00:07:49] Speaker 00:
The specification is used exactly as it's supposed to be used to define and help the person of ordinary skill understand what the four index values that are in the claims means.

[00:08:00] Speaker 00:
But I want to make a comment about what the consequences of the director's arguments and the board's holding in this case might be.

[00:08:08] Speaker 00:
Now the director in her brief acknowledges the defined herein language in the patent, but actually denies that this constitutes lexicography.

[00:08:17] Speaker 00:
Well, it's cases like AstraZeneca and Braintree.

[00:08:20] Speaker 00:
And actually, even Phillips would be a very good authority for this as well with regard to the meaningfulness of a clear definition that's set forth in the specification.

[00:08:33] Speaker 00:
This is lexicography.

[00:08:34] Speaker 00:
The director doesn't cite any cases for the proposition that this isn't.

[00:08:38] Speaker 00:
And instead, what Judge Stoll, the director, says is, well, no claim should ever be this law.

[00:08:46] Speaker 00:
This is, quite frankly, an astonishing argument.

[00:08:49] Speaker 00:
And honestly, if this compared to some of the biotechnology cases that come before this court, even if you were to incorporate all of this and say, well, this is actually part of the claim, this would be a relatively reasonably linked claim compared to some of those biotech cases.

[00:09:09] Speaker 00:
But the more important point is that this argument, which we've called an astonishing one,

[00:09:16] Speaker 00:
a very purposeful understanding of what that word means in our brief, is that it would encourage inventors to be less specific in their patents, to not specify as much in the specification.

[00:09:32] Speaker 00:
And I would have thought that Section 112 encouraged exactly the opposite.

[00:09:39] Speaker 00:
Construction, by the way, though, is not the same as incorporation.

[00:09:43] Speaker 01:
to put the details into the claim, as opposed to not having them at all in the specification?

[00:09:51] Speaker 00:
I'm not sure it would, because the criticism is that the tests are incorporated into the claim.

[00:09:58] Speaker 00:
And remember, the line from the director's brief is no claim should ever be this long.

[00:10:02] Speaker 00:
So the director's position is actually, no, we don't want it in the spec, and we don't want it in the claim either.

[00:10:10] Speaker 00:
the public what 112 says we should be giving them here.

[00:10:14] Speaker 00:
And the director's argument, to the contrary, is really just an invitation to create what is effectively a reverse Honeywell situation.

[00:10:22] Speaker 00:
We've talked about the Honeywell case.

[00:10:24] Speaker 00:
This is not an indefiniteness case, but Honeywell is.

[00:10:26] Speaker 00:
And the reason that Honeywell was indefinite was that they set forth a particular numerical limitation that had to be determined by a test, but they didn't tell what the test was.

[00:10:36] Speaker 00:
And there were at least four different tests in the prior art, which gave different results.

[00:10:41] Speaker 00:
And that's why you need to specify the tests in the patents like this.

[00:10:45] Speaker 01:
Do you think there's any variability in these tests that you have?

[00:10:48] Speaker 01:
For example, the one where you have three people who are trained to feel the ponytail in a particular way.

[00:10:54] Speaker 01:
Is there variability there in the subjective review by these lab, these people who are hired to feel the ponytail?

[00:11:02] Speaker 00:
I think it's only subjected in so far that it's dependent on human senses, which might have some variability.

[00:11:08] Speaker 00:
But again, the control really should minimize or eliminate any subjectivity or variability there, because it's just a matter of determining whether it's better than the control with regard to the particular field.

[00:11:26] Speaker 00:
wind up very quickly here, and I'll give some time back to the court.

[00:11:30] Speaker 00:
We believe that the correction of this claim construction error resolves this case.

[00:11:34] Speaker 00:
The Kenebo reference contains none of these index values, and there is no proof in the record.

[00:11:39] Speaker 00:
And the board did not find that the claims, as correctly defined, were obvious over the Kenebo reference.

[00:11:46] Speaker 00:
And the director doesn't offer any argument for affirmance or remand under our construction.

[00:11:51] Speaker 00:
And particularly so in light of the fact that this is administrative review where the actual petitioner from the IPR is no longer in the case.

[00:12:01] Speaker 00:
I think the Magnum Oil Tools case recent decision from this court may say something about the fact that there's no point in remanding at this point.

[00:12:09] Speaker 00:
The record is the record and there is a total and absolute failure of proof.

[00:12:13] Speaker 00:
of any unpatentability under the correct claim construction.

[00:12:17] Speaker 00:
I'll give the rest of my time back to the court and come back on rebuttal, unless the court has further questions.

[00:12:22] Speaker 00:
Thank you, counsel.

[00:12:23] Speaker 00:
Thank you.

[00:12:27] Speaker 02:
Thank you, your honors, and may it please the court.

[00:12:30] Speaker 02:
I have a few points.

[00:12:31] Speaker 02:
The board's construction was reasonable, and I can walk through the board's opinion how it addressed it in two ways.

[00:12:39] Speaker 02:
One, at page seven, it said, will the properties

[00:12:43] Speaker 02:
are definitely part of the claim.

[00:12:44] Speaker 02:
And those properties are in Kenebo and other prior art references as well-known properties, anti-dandruff, conditioning, comability, and anti-dandruff again.

[00:12:56] Speaker 02:
And the board also, if that wasn't enough, the board compared the earlier tests.

[00:13:02] Speaker 02:
And Procter & Gamble only challenged two of the wearing clauses as to not having

[00:13:10] Speaker 02:
a prior art companion test, and the board compared the shin and PNG's anti-dandruff test, and those tests have great commonality.

[00:13:24] Speaker 02:
They have the same dandruff organism put on an agar plate to incubate for a period of time, the same anti-dandruff agent, ZPT, skin is washed with the shampoo, the skin is then placed on the agar plate, and then the distances of death

[00:13:40] Speaker 02:
for the organism are analyzed.

[00:13:42] Speaker 02:
And the board also discussed the only other challenged wearing clause by P&G to the board, and that was the feeling clean property test.

[00:13:52] Speaker 02:
And both Kenebo and P&G do this similarly.

[00:13:58] Speaker 02:
The board said the tests were comparable.

[00:14:00] Speaker 02:
Both Kenebo and P&G use about 10 people to run their fingers through shampooed hair.

[00:14:06] Speaker 02:
These are feeling clean sensory tests done by people.

[00:14:09] Speaker 02:
Another point I'd like to make is that in vitrogen, it's very different from this situation.

[00:14:16] Speaker 02:
On page 1077 of that case, the court says that it's only looking to about 13 lines of the patent owner's specification there.

[00:14:28] Speaker 02:
And so the test there was really specific, really concrete, and a lot shorter than what we have here.

[00:14:39] Speaker 02:
matters that are subjective, for example, respectfully inviting the court's attention to page 560 of the record in column 36.

[00:14:50] Speaker 02:
Under line 30, we have something called a force-time curve.

[00:14:54] Speaker 02:
A force-time curve is generated.

[00:14:57] Speaker 02:
The sum of the integration of these force-time curves is then generated.

[00:15:03] Speaker 02:
And more subjectivity in the next column

[00:15:07] Speaker 02:
Combing forces within some range of the mean combing force, typically two standard deviations from the mean.

[00:15:13] Speaker 02:
I just have two more examples.

[00:15:15] Speaker 02:
An analog in the next column in the middle around line 25.

[00:15:19] Speaker 01:
Are you in column 38?

[00:15:21] Speaker 02:
I'm sorry.

[00:15:23] Speaker 01:
Yes.

[00:15:23] Speaker 02:
Thank you, Your Honor.

[00:15:25] Speaker 02:
In column 38 about line 23, we learn about an analog digital interface to accumulate and integrate

[00:15:36] Speaker 02:
the force time data.

[00:15:39] Speaker 02:
And about 20 lines down at line 46, we now learn about that we have to use the Fisher's least significant difference procedure.

[00:15:54] Speaker 02:
So we probably have to look to more textbooks or things like that to get to what that is, the Fisher's least significant difference procedure.

[00:16:04] Speaker 02:
So in short,

[00:16:06] Speaker 02:
What we have here are comparable property tests in the prior art, and we have very broad ranges here in the claim with no showing of criticality for any of the claimed ranges.

[00:16:24] Speaker 02:
Accordingly, the board's decision should be affirmed.

[00:16:29] Speaker 02:
Unless the court has any further questions,

[00:16:34] Speaker 02:
Thank you.

[00:16:35] Speaker 02:
Thank you, Your Honors.

[00:16:48] Speaker 00:
I think I have three points to make with regard to rebuttal here.

[00:16:52] Speaker 00:
First, my friends started with the reasonableness of this clay construction.

[00:16:59] Speaker 00:
I don't have no case from this court that says it's reasonable to say that specific claim limitations can be read out of a claim and instead substituted with something that's comparable.

[00:17:10] Speaker 00:
Secondly, I heard just at the end of my friend's argument here talking about how there was no proof, no indication.

[00:17:20] Speaker 00:
P&G only showed this, that, or the other thing.

[00:17:22] Speaker 00:
We didn't have any burdens.

[00:17:24] Speaker 00:
We were the respondent in this IPR.

[00:17:27] Speaker 00:
The failures were on the part of Unilever, which did not test the Kenebo example 10 using our rubric to prove that anything was comparable.

[00:17:42] Speaker 00:
They said it was comparable because there were some things in the prior art that are generally aimed at dandruff prevention and generally aimed at conditioning.

[00:17:52] Speaker 00:
But as we pointed out in our briefs, it's not just these four index values were available to the inventors.

[00:17:59] Speaker 00:
There were at least 46 different qualities that could have been subjected to this claim in just two references, the Hoshowski and Sorkin references.

[00:18:10] Speaker 00:
And with 46 different choices, that's a possible 70 trillion options with regard to what could have gone into the claim.

[00:18:21] Speaker 00:
It's over 70 trillion.

[00:18:22] Speaker 00:
Even if you told the inventors, well, you have to pick four, it would still be over 160,000 different options.

[00:18:29] Speaker 00:
It was the picking of these precise four, then the designing and implementation of the particular limitations that are set forth in the index values that constitute the invention.

[00:18:43] Speaker 00:
What Unilever was able to do before the PTAB was, without any testing, convince the PTAB that comparable

[00:18:50] Speaker 00:
tests, comparable finding made on the same sort of argument that is being made here, can substitute for applying the plain claim language.

[00:19:00] Speaker 00:
That's not permitted under any case that I could possibly think of.

[00:19:05] Speaker 00:
And the director and the board did not cite any for that proposition either.

[00:19:11] Speaker 00:
Finally, what I heard was that there was no showing of criticality of any of the claimed ranges.

[00:19:19] Speaker 00:
Again, if there was no showing of criticality of the ranges, that was a showing that Unilever needed to make, or they needed to show that it was not critical.

[00:19:29] Speaker 00:
The claim tells us what's critical here, because the claim is the invention.

[00:19:34] Speaker 00:
And in this case, I do not see how it is possible for the board's decision to be affirmed under broadest reasonable construction, because it's not reasonable.

[00:19:45] Speaker 00:
It reads half of the claim out.

[00:19:48] Speaker 00:
It's not possible, certainly wouldn't have been possible under the Phillips standard.

[00:19:52] Speaker 00:
And the director cites no case that suggests that comparable tests instead of the ones actually set forth in a patent can be used to prove what is in the claim.

[00:20:06] Speaker 00:
Unless the court has further questions, we'll get back 15 seconds.

[00:20:10] Speaker 00:
Thank you.

[00:20:11] Speaker 00:
Thank you, Council.