[00:00:00] Speaker 04:
2015-16-69.

[00:00:01] Speaker 04:
We'll give it to Mr. Warbeke when he is ready.

[00:00:08] Speaker 04:
All right.

[00:00:10] Speaker 02:
One moment, Your Honor.

[00:00:32] Speaker 04:
Is it Lorbiecki?

[00:00:33] Speaker 02:
Lorbiecki, Your Honor.

[00:00:36] Speaker 02:
We're merciful.

[00:00:36] Speaker 02:
We're Polish.

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If I made you pronounce it Lorbiecki, it would be difficult.

[00:00:43] Speaker 02:
May it please the court?

[00:00:47] Speaker 02:
The remedy that I seek before the court is that the court properly construe either of claim one or either properly construe claim one to include continuous motion

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or in fact allow the amendment to explicitly state continuous motion is appropriate in this case.

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The findings of the PTAB are emblematic of an incomplete job.

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And it is for that reason that I believe that remand is the appropriate way to deal with the matters raised.

[00:01:26] Speaker 04:
So you say an incomplete job.

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You've got a reference, the Rose reference, and in fact, Sites Chandler.

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Between the two of them, isn't everything there?

[00:01:41] Speaker 02:
Your Honor.

[00:01:42] Speaker 04:
Maybe the Patent Office didn't quite do it the way you'd like.

[00:01:47] Speaker 02:
No.

[00:01:48] Speaker 02:
No, Your Honor.

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I also believe that the Patent Office didn't do it the way I'd like.

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But the incompleteness is actually

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signaled to the court and to the world by the fact that the same two references are referred to both as 102 and 103.

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The law of 102 and the law of anticipation is different than the law of obviousness.

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Anticipation requires that it be found within the four corners.

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Argued in the brief is the fact that the board had the obligation

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to determine whether Chandler was entirely incorporated into Rose.

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And if it was, then that limits the teaching of Rose to Chandler.

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If that is the teaching, it is the teaching in 102.

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Therefore, a finding of obviousness is not either necessary or appropriate in this case.

[00:02:51] Speaker 01:
Why can't there be alternative grounds?

[00:02:54] Speaker 02:
alternative grounds I think well because the question is what does rose contain and it's my belief that the determination as to whether this is fully incorporated in rose means that there would be no reason to determine 103 obviousness if it is fully incorporated because all of the elements

[00:03:22] Speaker 02:
either arguably would or would not be present in Rose.

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But if the elements are stretched across both references, then what it means is it's an obviousness case.

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And there, the factual point that the petitioner's own expert was not willing to or was not able to connect the Rose and Chandler devices

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in his deposition and was not able to point out how they connected is important.

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It's a factual issue at that point and necessary.

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So the question then becomes, what's the appropriate meaning of claim one?

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And is it found completely 102 in Rose as it incorporates Chandler or

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Is it in fact 103 where the factual issue of whether a person skilled in the art, which Dr. Kagan held himself out to be, can then put the devices together in order to get a unified whole?

[00:04:38] Speaker 04:
What's your point that Rose doesn't disclose the plurality of

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The plurality of stalls, the rotating carousel, and the nature of the rotation of the carousel.

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Suddenly rotating is in rows, isn't it?

[00:04:53] Speaker 02:
Pardon me, your honor?

[00:04:54] Speaker 04:
Rotating is in rows, isn't it?

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How it rotates is important, as we've stood on the fact that intermittent.

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It's continuous?

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Exactly.

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Intermittent motion is not a species of motion.

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It is a qualification of motion.

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Motion bracketed with periods of repose.

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During the periods of repose, no motion is occurring.

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If you notice, in claim one itself, it talks about a moving, not a movable, carousel.

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I think that's important.

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Certainly, if it read the other way, it would be a different claim.

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The selection of the terms of the claim are important.

[00:05:36] Speaker 01:
In your view, because it says moving, that suggests continuous movement in and alone in itself, because moving would include something that temporarily is not moving.

[00:05:46] Speaker 02:
Exactly, Your Honor.

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Movable would include that.

[00:05:49] Speaker 01:
What about on this continuously moving?

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I mean, your own expert at A626 paragraph 35 admitted that continuously moving platforms were known in the art.

[00:06:01] Speaker 01:
Why wouldn't that be interchangeable anyway?

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It's well known in the art.

[00:06:08] Speaker 02:
It would not be interchangeable, Your Honor, because the Rose device required the stopping of the carousel in order to perform its work.

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And as such, it would not work on a continuous carousel.

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It's the how of Rose that's important here.

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And when given the opportunity to posit how that would work, in deposition, Dr. Kagan elected not to explain it.

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It's a factual issue of how it would work.

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But if it won't work,

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then it ought not to essentially be the basis of finding this unpatentable.

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They had the opportunity to present that evidence.

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That was the purpose of having an expert present.

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So, excuse me, patents are a property, right?

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Removing them, invalidating them, taking them out of the hands of the patent holder is something that requires the full judicial work necessary to invalidate.

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It's the position of the appellant that it hasn't occurred yet.

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As such, we should have had a clear indication.

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Is this a 102 case?

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Do we argue the 102 case?

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It's just a 103 case where the facts then become the most important determinant.

[00:07:55] Speaker 04:
At very least, Your Honor.

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The confidence of the public is involved.

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No, this is where the point about Dr. Kagan being unwilling or unable to connect the two shows that there wasn't an operating device.

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And that's important, Your Honor.

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I think that falls within the scope of the factual inquiry that the PTAB was charged with, pursued, and found an incomplete result.

[00:08:30] Speaker 04:
I have to compliment you on the pictures of the cows.

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You've all enjoyed the artistry.

[00:08:37] Speaker 02:
Well, Your Honor, I wish I could take that.

[00:08:39] Speaker 05:
I couldn't tell if they were Jersey, Guernsey, or Holstein.

[00:08:44] Speaker 02:
I'm originally from Minnesota, I could.

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Certainly you've been to the National Dairy Shrine in Wisconsin.

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Well, at least certainly I've passed through that territory, yes.

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And you'll have to recall that one of the derogatory terms that we use when Vikings fans are there is what we call our perennial opponent's cheeseheads.

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Returning, of course, to why I've come out here, the fact of the matter is that there was an obligation for the PTAB to knit all of this up.

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It's a severe issue to remove the property right that we had to exclude others from practicing the teat washer.

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It's an important technology.

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It's coming online now.

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And it's one that we believe we rightfully own.

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owned to the exclusion of the other party involved here, DeLaval.

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These are two of the biggest dairy equipment manufacturers in the world, neither of them located here.

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The fact of the matter is that this is important to both.

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It's the only reason we're here today.

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And so it's an important property right.

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If we are going to lose that important property right,

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It better be on a full record in order to preserve the confidence that one has.

[00:10:22] Speaker 02:
Our position is that there is nothing in the patent that speaks to anything but continuous motion.

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Every place that it is referred to within the patent, it specifically disclaims any other type of motion in the specification.

[00:10:42] Speaker 05:
Does Stahl's passing by impose any particular condition or constraint on how and when?

[00:10:51] Speaker 02:
I think, Your Honor, that what it does do is it shows a consistent intent of the drafter to speak of a continuous motion.

[00:11:00] Speaker 02:
Stahl's passing by obviously means that something is moving.

[00:11:04] Speaker 02:
Stalls can't pass by if the carousel is stationary.

[00:11:07] Speaker 02:
Sure.

[00:11:08] Speaker 05:
But they can move and then stop for washing and then move or however it is done.

[00:11:13] Speaker 02:
Certainly.

[00:11:14] Speaker 02:
Certainly.

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But remember, this court decided that, in fact, in Phillips, in Microsoft versus Proxycont, that the whole

[00:11:31] Speaker 02:
of the patent must be consistent and must be read consistently.

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This is not, as the board stated, a mere embodiment, a single embodiment of a further teaching.

[00:11:44] Speaker 02:
That's kind of cheating, honestly.

[00:11:48] Speaker 02:
It's clear that in a summary of an invention, if those limitations were there, certainly

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If they were otherwise determinative of an outcome, they would have been cited against anyone trying to push the patent against an intermittent motion carousel.

[00:12:11] Speaker 04:
Correct?

[00:12:12] Speaker 04:
Mr. Lubecki, you wanted to say rebuttal?

[00:12:15] Speaker 02:
Oh, yes, Your Honor.

[00:12:16] Speaker 04:
Thank you.

[00:12:17] Speaker 02:
I appreciate the reminder.

[00:12:21] Speaker 04:
Mr. Patch.

[00:12:22] Speaker 03:
May it please the Court?

[00:12:25] Speaker 03:
Good morning, Your Honors.

[00:12:27] Speaker 03:
I'd like to address the claim construction issue first because I believe this is positive of the invalidation of the patent claims.

[00:12:42] Speaker 03:
The phrase that the board construed is stalls passing by said cleaning location.

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There's just nothing in that phrase and the plain meaning of that phrase that would require continuous motion of the

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rotating platform relative to the cleaning location.

[00:13:01] Speaker 03:
It seems to just suggest that the cleaning location is stationary and the rotating platform passes by it.

[00:13:09] Speaker 03:
We referred to a seconds hand of a watch in our brief as a way of thinking about it.

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As I was driving in this morning, it occurred to me that my motion was certainly not continuous, unfortunately.

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I did eventually

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make it from point A to point B, and in the process pass by every intermediate location.

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And that's all that the patent claim says, all that it requires.

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But I think that the conclusion is underscored by the fact that the patent in suit really is directed to the cleaning device, whereas the milking parlor with which it is used is characterized as conventional.

[00:13:51] Speaker 03:
There's no description of the mechanism for driving the

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milking parlor, there's no description in the patent of any significance for the platform to be rotating continuously.

[00:14:07] Speaker 03:
In fact there's just one mention of continuous rotation and it occurs in the context of saying the platform is rotating continuously but it's very slow and therefore the cows can get off without too much trouble.

[00:14:22] Speaker 03:
It doesn't seem to have anything, any connection, any relationship

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to the operation of the cleaning device.

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And so my colleagues contentioned that the Rose reference and Chandler somehow required an intermittent rotation in which to operate.

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It doesn't find basis in the record.

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There's no indication that in order for Rose to function an intermittently rotating

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milking parlor would be required.

[00:14:58] Speaker 01:
Is there any evidence to the contrary to support what you're saying?

[00:15:01] Speaker 01:
And if so, where would that be in the record?

[00:15:04] Speaker 03:
Well, there is, I would say, an admission against interest in the sense that at final hearing, the board queried whether a skilled artisan would be unable to modify rows as needed to work on a continuously rotating

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milking parlor and the reply was I don't know and the expert doesn't know either.

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And so that I think really arises in the context of the board's denial of Lely's motion to amend, nevertheless,

[00:15:45] Speaker 01:
Page 826, the board says something like, neither the patent nor its expert contend that it would have been beyond the ordinary scope at the time of the invention of the modified roses automated spray device, so that it could be used on a milking apparatus with a continuously rotating platform, and that gives a site.

[00:16:04] Speaker 01:
Is that the, and you might not know the answer to this, but is that the site that you're referring to?

[00:16:09] Speaker 03:
It is, it is the site that I'm referring to, and what I did was to go

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directly to the underlying site which is at 897 lines 12 through 17.

[00:16:26] Speaker 03:
So then with respect to Rose you have a cleaning device which is the same as in the patented suit and it's utilized on a rotating platform.

[00:16:37] Speaker 03:
So absent the

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Board having aired in its construction of the claim, there's really no issue with respect to the prior art rejection.

[00:16:47] Speaker 03:
These points of supposed distinction between anticipation and obviousness here are really no distinction at all, because the Chandler reference is referred to in Rose itself.

[00:17:03] Speaker 03:
So there's no question about the so-called combinability of the two references.

[00:17:09] Speaker 03:
Rose says, we're a rotating platform.

[00:17:11] Speaker 03:
We can use the one described in Chandler, which happens to be intermittent.

[00:17:16] Speaker 03:
But again, that's neither here nor there on either of the two principal issues.

[00:17:21] Speaker 03:
That is to say, the claims as they exist in the patent and the claims as Lely moved unsuccessfully to amend them.

[00:17:37] Speaker 04:
If that's it, we'll move on.

[00:17:39] Speaker 03:
I will allow the solicitor to chime in on the procedural aspects of the motion to amend practice and the board's denial of the same.

[00:17:56] Speaker 03:
I wasn't really addressed in the appellant's opening.

[00:18:00] Speaker 03:
I'm happy to address it if your honors would like, but I'm also happy to wrap up at this point.

[00:18:07] Speaker 04:
Thank you, Ms.

[00:18:08] Speaker 04:
Patsch.

[00:18:10] Speaker 04:
Ms.

[00:18:10] Speaker 04:
Schoenfeld, we've granted the Patent Office five minutes to address its concerns with procedure here.

[00:18:17] Speaker 00:
Yes.

[00:18:19] Speaker 00:
Thank you.

[00:18:21] Speaker 00:
May it please the court.

[00:18:24] Speaker 00:
As a moving party, Lally had the burden to demonstrate by the preponderance of the evidence that the substitute claims were patentable.

[00:18:32] Speaker 00:
As the board found, the CLAIM 11 represented a combination of known commonly used milking apparatuses with the ROSES automated spray device.

[00:18:46] Speaker 00:
The evidence that one of ordinary skill in the art would know about this combination was in the patent itself, which admits that the continuous rotating platform is conventional.

[00:18:59] Speaker 00:
the expert testimony which was referenced earlier that their own experts said that the continuous platform was conventional and then with the Rose automated spray device.

[00:19:10] Speaker 00:
No evidence was presented that the combination would have been beyond one of ordinary scale in the art and as we discussed earlier in fact when Judge Wood of the PTAB questioned Lally's counsel about if it would have been beyond the

[00:19:26] Speaker 00:
the ordinary skill of the art to combine the conventional rotating device with the automated spray device, he said he didn't know.

[00:19:34] Speaker 00:
So unless there's further questions, I'll yield the rest of my time.

[00:19:39] Speaker 04:
Thank you very much.

[00:19:41] Speaker 04:
Thank you.

[00:19:42] Speaker 04:
Mr. Lobecki has a little rebuttal time if he wishes.

[00:19:48] Speaker 02:
Yes, Your Honor.

[00:19:50] Speaker 02:
The issue about the amendment is important, I believe, to us, and that is the fact that there could be, imagine, no narrower or more narrowing type of amendment than simply to put in the express requirement that the carousel rotate continuously.

[00:20:10] Speaker 02:
The question was asked whether at the time that the motion was denied had we presented

[00:20:18] Speaker 02:
evidence that it would be admissible.

[00:20:22] Speaker 02:
We adopted at that point the preliminary statement of the patent owner as the statement of patentability because, in essence, it's an identical issue.

[00:20:35] Speaker 02:
We had already presumed continuous motion and then simply adopted.

[00:20:42] Speaker 02:
We made a point to which the director did respond about the fact that 15 pages at the time was a very scant amount to address what was necessarily a larger topic.

[00:20:56] Speaker 02:
The response was, well, wait a second.

[00:20:59] Speaker 02:
Well, after you were required to respond, the director issued quick fixes.

[00:21:05] Speaker 02:
Now, one doesn't fix what isn't broken.

[00:21:08] Speaker 02:
Therefore, these quick fixes and

[00:21:12] Speaker 02:
allowing, for instance, claims to be placed in an appendix.

[00:21:17] Speaker 02:
Essentially, workarounds for the page limit were adopted after the time that, in fact, we were required to submit.

[00:21:28] Speaker 02:
So they really weren't available to us at the time.

[00:21:33] Speaker 02:
The fact of the matter is that even if they had been, there was really no additional information to add.

[00:21:40] Speaker 02:
We had argued.

[00:21:42] Speaker 02:
in the patent owner's preliminary statement that these were admissible even over the sighted art.

[00:21:49] Speaker 02:
And that's exactly the same position that we held.

[00:21:53] Speaker 02:
So that's where that lies.

[00:21:56] Speaker 02:
I guess I'll surrender back my minute.

[00:21:59] Speaker 04:
Thank you, Your Honor.

[00:22:00] Speaker 04:
We'll take the case on revisions.