[00:00:09] Speaker 03:
We will hear argument next in number 151750, McDermott Printing Solutions against E.I.

[00:00:18] Speaker 03:
DuPont.

[00:00:19] Speaker 03:
Mr. Horvac?

[00:00:38] Speaker 00:
Yes, your honor.

[00:00:39] Speaker 00:
Good morning.

[00:00:40] Speaker 00:
May it please the court, my name's John Horvack.

[00:00:41] Speaker 00:
I'm here for McDermott.

[00:00:43] Speaker 00:
This is an appeal from the patent board.

[00:00:45] Speaker 00:
The board confirmed as patentable claims 2 to 6 and 15 and 16 of the 454 patent.

[00:00:52] Speaker 00:
We've raised four issues on appeal.

[00:00:56] Speaker 00:
Importantly, the reason the board confirmed the patentability was the inclusion of a forced cooling means in claim two and forcibly buying cooling means in claim

[00:01:08] Speaker 00:
15.

[00:01:09] Speaker 00:
We all agree that this is means plus function claiming that the corresponding structure is one of three things.

[00:01:17] Speaker 00:
Two important to this appeal.

[00:01:18] Speaker 00:
One, a simple blower or fan, which is item 356 in figure 15.

[00:01:25] Speaker 00:
The alternative is a drum with internal circulating air, which is depicted in figure 19 of the patent.

[00:01:33] Speaker 00:
Importantly, the board determined that a fan was not

[00:01:37] Speaker 00:
what was not obvious in this device, which was known to overheat thermal plates, because it also cooled the composition layer.

[00:01:48] Speaker 00:
It also held that switching from a heated drum to a cooled drum would not predictably allow thermal development.

[00:01:55] Speaker 00:
What's important about that is the claim construction issue which we've raised.

[00:02:00] Speaker 00:
Specifically, the claims allow a very wide range of allowable cooling temperatures.

[00:02:07] Speaker 00:
And that necessarily informs whether or not there was a reasonable expectation of success in adding these cooling elements.

[00:02:14] Speaker 00:
Wrongfully, we contend, the board used the prior art to restrict the broad claim language.

[00:02:22] Speaker 00:
Can you explain this to me?

[00:02:23] Speaker 03:
I think I don't know quite what to make of the sentence in their reconsideration decision that refers in the broadest reasonable interpretation

[00:02:37] Speaker 03:
sentence to prior art.

[00:02:42] Speaker 03:
Does something in, or maybe can you explain to me why, what the board said there is somehow central to its substantive analysis?

[00:02:57] Speaker 03:
I thought that if you ask, does the prior art show either of the two structures that

[00:03:06] Speaker 03:
that stand behind this means plus function claim that it didn't find that the prior art would have made any of those obvious, essentially because in the flexographic world, there was no reason to think that when you had to heat both sides, you would start cooling.

[00:03:29] Speaker 03:
So can you explain what role that somewhat odd

[00:03:32] Speaker 03:
VRI sentence plays in the analysis.

[00:03:34] Speaker 00:
I thought it was critical and not odd.

[00:03:36] Speaker 00:
I think the role is it was on rehearing that it was raised at appendix 38.

[00:03:42] Speaker 00:
We said in our rehearing petition that your conclusion about a reasonable expectation of its success not being found was wrong because you appreciate the full scope of the cooling temperatures which were allowable by the claim language.

[00:04:01] Speaker 00:
And they came back and said, well, we have considered it.

[00:04:05] Speaker 00:
And they made an explicit holding that, according to them, the broadest reasonable interpretation excludes temperatures taught by Behita and Martens.

[00:04:14] Speaker 00:
And it's that part that's wrong as a matter of law.

[00:04:17] Speaker 00:
This court's review is de novo because there's only an issue of intrinsic evidence.

[00:04:23] Speaker 00:
The claim language is not specific as to temperatures.

[00:04:26] Speaker 00:
It's broad.

[00:04:28] Speaker 00:
It says cooling simply in claim two.

[00:04:30] Speaker 00:
And there's a generic temperature TC in claim 15.

[00:04:35] Speaker 00:
That is different fundamentally from other claim language in other claims.

[00:04:40] Speaker 00:
Specifically in claim one, it talks about a temperature differential between heating the top portion of the plate and the temperature of the bottom portion of the plate, specifically at least 20F.

[00:04:52] Speaker 00:
Claim 17 has a comparable specific limitation in claim 18.

[00:04:56] Speaker 00:
goes on and talks about heating the composition layer to a specific temperature, well, excuse me, a temperature range between 40 and 200.

[00:05:04] Speaker 00:
That tells us that the broad claim language in 2 and 15 is unrestricted.

[00:05:10] Speaker 00:
If the inventor intended to restrict it, they knew how to do so, they did so in other claims.

[00:05:15] Speaker 00:
Most importantly, the broadest reasonable construction cannot be detached from the specification.

[00:05:21] Speaker 00:
The specification specific, specifically at column 24, lines 40 to

[00:05:26] Speaker 00:
43, NXA 161, where they're describing the cooling means, which is the subject of dispute, and they describe specifically that element 16 is cooled by removal of heat from the wall portion of the outer surface with the flexible substrate being cooled to a temperature lower than the composition layer.

[00:05:46] Speaker 00:
So all that's required is that the cooling temperature be lower than the heating temperature or the thermal development temperature.

[00:05:53] Speaker 00:
That is confirmed also in the Summary of Invention, column 3, lines 55 to 58.

[00:06:03] Speaker 00:
I'll note further that the patent does not describe any artificial means to cool the temperature.

[00:06:09] Speaker 00:
It's simply blowing air that's in the environment.

[00:06:14] Speaker 00:
This is a machine that has heating elements, as Your Honors know.

[00:06:18] Speaker 00:
It needs to heat the plate.

[00:06:19] Speaker 00:
It has an IR preheater.

[00:06:21] Speaker 00:
And it's simply blowing air around.

[00:06:24] Speaker 00:
It's not artificially cooling.

[00:06:27] Speaker 00:
For those reasons, the board was wrong in their judgment about the broadest reasonable interpretation in that, again, critically informed their view about reasonable expectation of success.

[00:06:38] Speaker 00:
Specifically, the Martins reference teaches us that 60 degrees C as a cooling temperature works just fine.

[00:06:46] Speaker 00:
It doesn't cause distortion.

[00:06:48] Speaker 00:
It allows appropriate thermal development.

[00:06:51] Speaker 00:
Example two is very explicit at A115 in that regard.

[00:06:56] Speaker 00:
And so in that example, they have successful development occurring with a cooling temperature of about 60 degrees C, which is less than the thermal development temperature, which is 175.

[00:07:10] Speaker 00:
So the board's conclusion about a lack of reasonable expectation of success was faulty because the claim construction was wrong.

[00:07:18] Speaker 00:
Secondly, the board erred in our judgment in concluding that a simple fan, blower 356, being pointed at a photosensitive element which was known to get too hot and distort was not an obvious solution to the problem.

[00:07:38] Speaker 00:
The ultimate question of obviousness is de novo for you.

[00:07:42] Speaker 00:
There are no disputes, material that are underlying that conclusion, specifically

[00:07:49] Speaker 00:
Martens and Behita teach the thermal apparatus and the thermal process, which it's claimed.

[00:07:55] Speaker 00:
The board itself concluded that it is common sense to cool something that is too hot at 835.

[00:08:01] Speaker 00:
It is well known that blowing air with a fan cools.

[00:08:06] Speaker 00:
That's not new at 836.

[00:08:09] Speaker 00:
The only difference between Martens and Behita in the claimed invention is this blower directing air at the photosensitive element.

[00:08:16] Speaker 00:
The level of skill was not in dispute.

[00:08:18] Speaker 03:
At A42, the board... Let me just ask a question that you'll have to translate into the specifics, but my general takeaway from the several board opinions was something like this.

[00:08:33] Speaker 03:
In this particular set of processes, what the prior art said was, the flexographic processes, put aside the photo image processes for now, said everything's supposed to be

[00:08:49] Speaker 03:
In particular, the surface that you want to start melting so that you can take the material away to create the pattern.

[00:08:59] Speaker 03:
We don't see the evidence why it would have been obvious to start cooling.

[00:09:05] Speaker 03:
In particular, the outside with the fan.

[00:09:07] Speaker 03:
That part you want to stay hot.

[00:09:09] Speaker 03:
So address that for me.

[00:09:11] Speaker 00:
So the photosensitive element was known to get too hot and distort.

[00:09:16] Speaker 00:
So first, Peterson.

[00:09:17] Speaker 00:
And the photosensitive element is the substrate or?

[00:09:20] Speaker 00:
The entire thing.

[00:09:21] Speaker 00:
The entire thing.

[00:09:22] Speaker 00:
Yes.

[00:09:22] Speaker 00:
So the substrate with the composition layer on top.

[00:09:25] Speaker 00:
And explicitly in Martin's, it teaches that fact.

[00:09:28] Speaker 00:
So it was not hindsight to believe that the entire thing could distort.

[00:09:33] Speaker 00:
Specifically at A73, column 3, lines 11 to 17, Peterson expressly warned that thermal temperatures in this machine and in this process

[00:09:45] Speaker 00:
should not distort the flexible substrate or the hardened composition layer.

[00:09:50] Speaker 00:
And so the board failed to appreciate that the art taught that both the substrate and the composition layer could be distorted.

[00:10:00] Speaker 00:
And therefore, it is obvious in common sense to blow air at both layers, with it being as much so at the top as it is at the bottom.

[00:10:12] Speaker 00:
basic conduction principles would say if you truly are just worried about the substrate, you could blow air at the top only and through conduction the heat would move from the substrate to the composition layer.

[00:10:26] Speaker 00:
So if there is not a worry about distorting both, there's still a good common sense reason to blow air at the top.

[00:10:34] Speaker 01:
The priority systems all use and rely exclusively on heating, correct?

[00:10:40] Speaker 01:
Correct.

[00:10:40] Speaker 01:
So if there's a concern about

[00:10:43] Speaker 01:
the heating causing distortion wouldn't see post obvious uh... reaction to that be just well turned down the heat a little you could do that absolutely but wouldn't that be the normal reaction and isn't it counter into isn't there some force to the argument that it's counterintuitive in a system that relies on heating not to adjust the heating but to heat and also cool at the same time right

[00:11:12] Speaker 00:
So Peterson teaches us that with multiple cycles, the element builds up heat.

[00:11:19] Speaker 00:
And so cycle two, it's hotter overall than cycle one, three, the same.

[00:11:24] Speaker 00:
And so it is common sense after the application of that intense heat to cool it so that it gets back to its more stable initial state and goes back through the thermal process so that the heat buildup is not too much.

[00:11:41] Speaker 00:
Furthermore,

[00:11:42] Speaker 00:
I believe the answer to your question lies in Leavitt.

[00:11:46] Speaker 00:
The photographic arts had the same problem.

[00:11:49] Speaker 00:
They heated both sides.

[00:11:50] Speaker 00:
The PET substrate on it was on a hot drum.

[00:11:54] Speaker 00:
It built up too much heat.

[00:11:57] Speaker 00:
It distorted.

[00:11:58] Speaker 00:
The solution was a simple one.

[00:12:00] Speaker 00:
Let's cool the drum with air-filled drum and allow us to put more heat at the top where we need it.

[00:12:09] Speaker 00:
In that art, just like this art,

[00:12:12] Speaker 00:
The heat needed to be at the composition layer, not the substrate.

[00:12:16] Speaker 00:
And so the solution is found in Leavitt.

[00:12:19] Speaker 00:
I don't disagree that you could do as your honor suggests, turn down the heat, but you could also look to the solution of Leavitt.

[00:12:27] Speaker 00:
In Leavitt, was the drum heated at all?

[00:12:29] Speaker 00:
Oh, yes.

[00:12:30] Speaker 00:
Yes, your honor.

[00:12:32] Speaker 00:
Yes, absolutely.

[00:12:34] Speaker 00:
That was the state in the progression of that art.

[00:12:38] Speaker 00:
They had a heated drum.

[00:12:40] Speaker 00:
It caused the same PET substrate problem, and they found the solution of cooling the drum while applying aggressive heat at the top.

[00:12:49] Speaker 00:
The same progression happened here, and one only needed to look to leave it for that particular solution.

[00:12:58] Speaker 00:
The other element of legal error from our perspective is that the board absolutely required a reasonable expectation of success.

[00:13:07] Speaker 00:
proof that's at A23 and reaffirmed at A39.

[00:13:11] Speaker 00:
Respectfully, that is not the law.

[00:13:14] Speaker 00:
The law does not mandate it.

[00:13:16] Speaker 00:
Your law says it's a helpful hint.

[00:13:19] Speaker 00:
It's a good insight.

[00:13:20] Speaker 00:
But when you turn insights that are helpful into absolute rules, that distorts the analysis.

[00:13:29] Speaker 00:
Here, it was obvious to leave it strong, for example,

[00:13:34] Speaker 00:
and apply it to a known problem of distorting the substrate.

[00:13:38] Speaker 00:
KSR allows that at 417.

[00:13:40] Speaker 00:
Your wire's decision, I believe, says the exact same thing.

[00:13:44] Speaker 00:
When all claim elements are known and the invention is stressed to a known problem, KSR compels a conclusion of obviousness.

[00:13:52] Speaker 00:
I'll note further that in the photographic arts, the heat needed to thermally develop those compositions

[00:14:04] Speaker 00:
was much higher.

[00:14:05] Speaker 00:
The minimum was much higher.

[00:14:06] Speaker 00:
Specifically, it was at 99 to 166 C. That was the range, a higher narrow range.

[00:14:15] Speaker 00:
In the flexographic art, Peterson teaches us at A73 that that range is 40 to 200 C. And so there should be and there would be no concern for over-cooling the flexographic element because all you needed to do is get it to 40 C.

[00:14:32] Speaker 00:
Whereas in the photographic arts, you needed to get it to 99C, and the solution worked perfectly there.

[00:14:39] Speaker 00:
An air-cooled drum protected the PET substrate from distortion, while it allowed directly heating it so that development, according to Leavitt at A49, would readily occur.

[00:14:51] Speaker 00:
The last element of error, in our view, is the obvious-to-try analysis.

[00:14:59] Speaker 00:
As Your Honors know,

[00:15:01] Speaker 00:
The board initially found that the record that the board determined that the record showed a great variety of ways to address thermal distortion.

[00:15:09] Speaker 00:
That's at 828.

[00:15:10] Speaker 00:
On rehearing when we challenged that, they reversed and changed their view.

[00:15:14] Speaker 00:
They concluded at 843.

[00:15:16] Speaker 00:
The record before us only describes three solutions, the three solutions being annealing, controlled heating, or cooling.

[00:15:24] Speaker 00:
But they didn't allow the analysis

[00:15:27] Speaker 00:
of obvious to try because they said that we did not prove that there were no other solutions in the world outside the record.

[00:15:36] Speaker 00:
And therefore, the obvious to try analysis failed.

[00:15:39] Speaker 00:
And they said the burden was appropriate under the post-KSR line of cases.

[00:15:44] Speaker 00:
Respectfully, that is wrong.

[00:15:45] Speaker 00:
And that was at A43.

[00:15:46] Speaker 00:
There is no such requirement.

[00:15:49] Speaker 00:
The requirements are twofold.

[00:15:51] Speaker 00:
Is there a design need?

[00:15:53] Speaker 03:
You've used not only your opening time, but your rebuttal time.

[00:15:56] Speaker 03:
I'll restore two minutes, but I think you should take it.

[00:16:00] Speaker 00:
I will.

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

[00:16:01] Speaker 00:
Thank you very much.

[00:16:06] Speaker 03:
Philipsi.

[00:16:07] Speaker 02:
May it please the court?

[00:16:10] Speaker 02:
A couple of corrections just to get started.

[00:16:14] Speaker 02:
There is no standard temperature at which these things are heated and at which they're cooled.

[00:16:18] Speaker 02:
It's all a function of the chemistry of the photopolymer or of the photographic layer.

[00:16:23] Speaker 02:
And so you cannot take a statement that some polymers can be developed at 40 degrees C and say that all polymers can be developed at 40 degrees C. You cannot say that the temperatures in Martens are appropriate for some other polymer, that the temperatures in Martens were appropriate for that polymer.

[00:16:40] Speaker 02:
And while we're on Martens,

[00:16:42] Speaker 02:
Martens doesn't say anything about the stability of the substrate layer, other than that he prefers to use the Batasia-treated film.

[00:16:51] Speaker 02:
The temperatures that he uses there are not described as cooling.

[00:16:55] Speaker 02:
They are described both as heated elements.

[00:16:58] Speaker 02:
And there's simply no discussion at all about whether that results in elimination of warping of the film, because in fact, he doesn't measure any kind of distortion of the film layer.

[00:17:09] Speaker 02:
The person who measures it is Batasia.

[00:17:12] Speaker 02:
And Batasia, when he uses a similar polymer under similar conditions, heated to 60 degrees or 65 on one side and a much higher temperature on the other, he showed that without the treatment of his film, you did get unacceptable distortion, even at those temperatures.

[00:17:30] Speaker 02:
Now, the fact of the matter is the essence of the argument below was that there was an expedient shown in the photographic film art

[00:17:40] Speaker 02:
for cooling the bottom of the surface.

[00:17:43] Speaker 02:
And it would have been obvious to use that in the flexographic printing plate.

[00:17:46] Speaker 02:
And we submit there are three fundamental differences between those technologies that answer a number of questions.

[00:17:52] Speaker 02:
The first of which is why the cited printing art always heated drums and heated rollers to heat both sides of the film.

[00:18:02] Speaker 02:
It answers the question of why Levitt's film approach was fundamentally incompatible with the printing plate development needs.

[00:18:09] Speaker 02:
And it also answers the question and demonstrates that the board's finding that success in combining the two could not reasonably have been predicted and that that's supported by substantial evidence.

[00:18:21] Speaker 02:
And those three differences are.

[00:18:24] Speaker 02:
The photosensitive emulsions are quite thin.

[00:18:26] Speaker 02:
There's a Udelson patent that's cited at page 13 of their opening brief.

[00:18:30] Speaker 02:
I'm sorry, quite thin, you said?

[00:18:31] Speaker 02:
Thin.

[00:18:32] Speaker 02:
The emulsions are quite thin.

[00:18:34] Speaker 02:
They cite Udelson at page 13 of their opening brief.

[00:18:36] Speaker 02:
And if you look at example 14 there,

[00:18:39] Speaker 02:
You can see that emulsion layer is three mils thick, three thousandths of an inch thick.

[00:18:43] Speaker 02:
That's about the thickness of a human hair.

[00:18:45] Speaker 02:
Whereas in the photopolymer printing art, those films are quite thick.

[00:18:51] Speaker 02:
If you look at Potasia A89, he says it can be up to three millimeters thick, which is 118 mils, or roughly 40 times the thickness of what you're dealing with in the Levitt work.

[00:19:05] Speaker 02:
Levitt specifically says twice, once in column three and once in column four, that his objective is to develop just the very top surface of that emulsion, because that's where the image is clearest.

[00:19:16] Speaker 02:
And specifically not to develop the layer further down into it.

[00:19:21] Speaker 02:
And the exact opposite is true with the photopolymer plate art.

[00:19:24] Speaker 02:
You need to develop the photopolymer plate art to a substantial distance down into the layer in order to get the relief structures that are required.

[00:19:33] Speaker 02:
And indeed, if you look at Martin's, you can see that some of those reliefs are as deep as 36 mils, 36 thousandths of an inch.

[00:19:43] Speaker 02:
And finally, the development process in chemistry is entirely different in that the photographic plate is developed entirely by a chemical reaction stimulated by heat.

[00:19:54] Speaker 02:
Whereas the photopolymer, the development requires getting the polymer layer hot

[00:20:01] Speaker 02:
keeping it hot, keeping it hot through a substantial portion of its thickness, and passing it through repeated cycles of heat and pressure between two solid layers in order to blot away a very substantial amount of its thickness.

[00:20:15] Speaker 02:
And what that leads to is that Levitt's emulsion substrate could float on a layer of cool gas.

[00:20:24] Speaker 02:
And that's what Levitt discloses in all embodiments, including the drum.

[00:20:30] Speaker 02:
The operative embodiment for Leavitt is one where the drum actually is cooled and air is coming, the drum isn't cooled, but cool air is coming out of it, and the substrate layer of the photographic film is floating on top of it.

[00:20:52] Speaker 02:
That could happen because the top surface of the emulsion could be developed by heat alone applied only to the top surface.

[00:20:59] Speaker 02:
where in contrast with the printing plate, it was uniformly taught that heating on both sides was required to get it hot and keep it hot so that it could go through those multiple processes of high pressure between those rolls.

[00:21:14] Speaker 02:
And the bottom line is that heating on both sides of the plate and then compressing repeatedly while hot between solid surfaces were viewed as necessary evils in the photopolymer art.

[00:21:26] Speaker 02:
DuPont says that Page

[00:21:28] Speaker 02:
eight of its brief that flexographic printing has been known since 1959.

[00:21:33] Speaker 02:
The Levitt publication came out in 1974, but it wasn't until 25 years later that anybody suggested using forced cooling in connection with the development of a photopolymer plate.

[00:21:45] Speaker 02:
Instead, everybody was using two heated rollers.

[00:21:50] Speaker 03:
But the problem of substrate warping or distortion was recognized, right, in the flexographic art.

[00:21:57] Speaker 02:
Absolutely recognized, and the art was repeated.

[00:22:01] Speaker 03:
And it was a problem that derived from it being too hot.

[00:22:04] Speaker 02:
Too hot at the surface that was next to something that had to be hot.

[00:22:08] Speaker 02:
That's exactly the problem.

[00:22:09] Speaker 02:
It's not so obvious how you're supposed to deal with that, and that's really what the board found.

[00:22:15] Speaker 02:
And basically, the printing art, because of that, looked elsewhere.

[00:22:20] Speaker 02:
You can see in the Peterson publication, one thing he suggests is using photopolymers that have a low melting point.

[00:22:29] Speaker 02:
He talks about using substrates that have a high melting point.

[00:22:32] Speaker 03:
What's the intuition behind saying that it's not obvious that if something is too hot, cool it down?

[00:22:41] Speaker 02:
Because it being hot was essential to the development operation.

[00:22:46] Speaker 02:
It had to be hot and stay hot, and they were so thick

[00:22:49] Speaker 02:
You couldn't just heat them from one side.

[00:22:52] Speaker 02:
You had to heat them from both sides.

[00:22:54] Speaker 02:
And so the question became that that is a necessary evil, and we deal with it other ways.

[00:23:00] Speaker 02:
We treat the film in order to enhance the stability.

[00:23:03] Speaker 02:
And that was what Patasia taught.

[00:23:05] Speaker 02:
And Martin said, yeah, I use Patasia.

[00:23:11] Speaker 02:
Basically, the essence of the board's opinion was rooted in recognizing... Let me ask the question this way.

[00:23:18] Speaker 03:
Since at least Peterson, it's recognized that there can be warping if the substrate is too hot.

[00:23:25] Speaker 03:
And are you saying that there was no suggestion, I mean that in the loosest, most general possible way, that one thing you might do in the flexographic art is to make it less hot?

[00:23:40] Speaker 03:
There was always live with it and get stuff that withstands the heat better.

[00:23:45] Speaker 03:
Was there any suggestion make it less hot?

[00:23:48] Speaker 02:
The record before us is that it was the latter.

[00:23:53] Speaker 02:
Live with it and get stuff that doesn't warp.

[00:23:57] Speaker 02:
The argument is made that, oh, Martin's was teaching using those two different temperatures in order to cool the layer and to enhance stability.

[00:24:05] Speaker 02:
Martin's doesn't say a word about that.

[00:24:09] Speaker 02:
All of these

[00:24:10] Speaker 02:
references use two different temperatures, one at the bottom to try to get the layer up close to its melting point and a hotter one at the top in order to melt what's right there at the surface, and obviously being easier to melt what's at the surface when the whole layer below it is close.

[00:24:24] Speaker 02:
That's the objective.

[00:24:26] Speaker 02:
And that was a necessary evil.

[00:24:28] Speaker 02:
And while there were cooling means described for other types of operations for 25 years before this invention, there is nothing cited in this record.

[00:24:38] Speaker 02:
that says, oh, let's just cool it, even though we know it needs to be hot.

[00:24:44] Speaker 02:
And the board found as facts that there was insufficient evidence that switching from a heated drum to a cooled drum would have predictably allowed overall development of the plate.

[00:24:54] Speaker 02:
They found as a fact that the level of skill was not so high that a person of ordinary skill in the art would have resolved these competing considerations with the heating and cooling in these disparate art areas.

[00:25:05] Speaker 02:
And they found as a fact that only hindsight knowledge of the 454 Patent Convention suggested the modifications.

[00:25:12] Speaker 02:
And those findings are supported by substantial evidence.

[00:25:17] Speaker 03:
To address what I described as the somewhat odd sentence, which I take it from your brief, you also find somewhat odd in the way you treated it.

[00:25:26] Speaker 02:
It's not a model of clarity.

[00:25:28] Speaker 03:
I kept thinking.

[00:25:32] Speaker 03:
There must be a way to put some words in there that must have been implicitly in there to make sense, but I don't see it.

[00:25:37] Speaker 02:
I think the key, if you go back, the one thing that's abundantly clear is that the opinion didn't change on rehearing.

[00:25:46] Speaker 02:
They said we didn't impose a temperature limitation originally, and we are not changing anything in the opinion.

[00:25:54] Speaker 02:
That's the conclusion at the end of rehearing.

[00:25:57] Speaker 02:
Nothing changed.

[00:25:58] Speaker 02:
And when you look back at the original decision,

[00:26:01] Speaker 02:
You see, it was an absolutely classic means plus function analysis.

[00:26:07] Speaker 02:
It's a means plus function limitation.

[00:26:09] Speaker 02:
I look at the spec to see what the disclosed means are.

[00:26:12] Speaker 02:
There were three.

[00:26:13] Speaker 02:
There was the blowing the air onto the polymer surface of the printing plate, which was absolutely counterintuitive.

[00:26:22] Speaker 02:
That was the one thing that you wanted to stay hot.

[00:26:25] Speaker 02:
There was the cooling of the liquid under the surface of the drum, and there was blowing of the air into the cavity inside the drum.

[00:26:32] Speaker 02:
And they said, those are the three means, and the claim covers those and their equivalents.

[00:26:37] Speaker 02:
The claim does not cover a temperature differential between two heated drums because the specification itself described that as embodiment A and distinguished the forced cooling in embodiment B. So that was

[00:26:53] Speaker 02:
That was fine.

[00:26:55] Speaker 02:
And then you look at what happened on rehearing.

[00:26:58] Speaker 02:
And McDermott conflated two arguments.

[00:27:01] Speaker 02:
They conflated the claim construction issue with an obviousness argument, which was that, well, the prior art tells you that success is guaranteed at 60 degrees, never mind what the polymers are, never mind what the actual temperatures ought to be.

[00:27:18] Speaker 02:
Success is guaranteed at 60.

[00:27:20] Speaker 02:
And the board dealt with that in the same paragraph and said,

[00:27:23] Speaker 02:
That's not true in an obvious sense, because you can look at Batasia, that I've been mispronouncing regularly, and I apologize.

[00:27:31] Speaker 02:
You can look at Batasia and see in his example where he took an untreated film and developed it at 60 degrees C, the amount of distortion was unacceptably high.

[00:27:41] Speaker 02:
It was over his limit of 0.03%.

[00:27:43] Speaker 02:
So you can't say just ipsy dixit that success is guaranteed at that temperature.

[00:27:49] Speaker 02:
And that was right in the same paragraph.

[00:27:52] Speaker 02:
And so then they came back and said, we're not changing anything.

[00:27:55] Speaker 02:
The claim that the applicant said he's not including temperature differential between these two layers, just as they said before.

[00:28:04] Speaker 02:
So it covers, and they came up with a language that kind of synthesized the three objects, forcing a coolant material into the area around the drum that was more or less a synthesis of the three that were disclosed.

[00:28:19] Speaker 03:
Right, but then it ends with some reference to quite specific temperatures.

[00:28:24] Speaker 02:
And then it says, if I have it correctly... Without heating the drum.

[00:28:29] Speaker 02:
Without heating the drum.

[00:28:31] Speaker 02:
Now if you stop there, that's exactly what they held before.

[00:28:35] Speaker 02:
In other words, the embodiment where the drum was heated and the roller was heated and there was a difference in temperature is not covered by the claims.

[00:28:42] Speaker 02:
It was distinguished within the patent specification itself from forced cooling.

[00:28:48] Speaker 02:
I think that's probably the way to read that because it at least comports with the prior decision, which was it covered these three things, but not two different heated drums.

[00:29:02] Speaker 02:
And the other alternative is that as McDermott had conflated the 103 argument with the claim construction, the board fell into that as well.

[00:29:16] Speaker 02:
I think the one thing that is abundantly clear from the end of the rehearing petition is that the original claim construction was not changed in rehearing.

[00:29:29] Speaker 02:
So if there are any questions, I'm happy to answer them.

[00:29:33] Speaker 02:
Otherwise, thank you very much.

[00:29:34] Speaker 02:
Thank you, Mr. Hicks.

[00:29:37] Speaker 00:
I'll try to be as brief as possible.

[00:29:40] Speaker 00:
The broadest reasonable construction that you're troubled with, I think,

[00:29:45] Speaker 00:
is a function of us coming to them after the original hearing and saying, you didn't consider the full scope of temperatures of cooling as allowed by the claim, and that's why your reasonable expectation of success binding was wrong.

[00:30:00] Speaker 00:
They came back and said, no, we're not wrong because we're cabining the temperatures to something less than what was taught by the prior art, that the fundamental

[00:30:11] Speaker 00:
flaw, an error of law.

[00:30:13] Speaker 00:
Mr. Lipsy cannot even defend it.

[00:30:16] Speaker 00:
We know that you can't construe a claim with the prior art.

[00:30:19] Speaker 00:
You can't ignore the claim language in its breadth, particularly in the broadest reasonable construction.

[00:30:23] Speaker 00:
And the spec is very clear.

[00:30:25] Speaker 00:
All that's required is the cooling temperature needs to be less than the thermal development temperature.

[00:30:31] Speaker 00:
Secondly, and in conclusion, the arguments trying to distinguish leave it full because of your recent Belden decision.

[00:30:41] Speaker 00:
The Belden decision says quite clearly that when you have distinctions that don't matter.

[00:30:48] Speaker 03:
Well, you gave three reasons why maybe those distinctions do matter.

[00:30:51] Speaker 03:
Can you address the thinness of the film and the depth to which you want to change things, and I guess the cyclic versus constant heat properties of?

[00:31:03] Speaker 00:
Yes.

[00:31:04] Speaker 00:
So there are differences in thinness.

[00:31:07] Speaker 00:
That's undisputed.

[00:31:08] Speaker 00:
But that doesn't matter to the problem of PET.

[00:31:11] Speaker 00:
distortion.

[00:31:12] Speaker 00:
It's the same substrate attached to both films, and that is what was taught by Behita and Martins to be distorting.

[00:31:20] Speaker 00:
And so whether it's a thick composition layer or a thin composition layer, it's the same film distorting under comparable temperatures, and so Leave It's solution would still apply.

[00:31:31] Speaker 00:
It doesn't matter what's on top.

[00:31:33] Speaker 00:
And that's, I believe the Belden decision says that.

[00:31:37] Speaker 00:
Furthermore, it is true that the relief needs to be

[00:31:41] Speaker 00:
for example, 23 mils or 36 mils to get down to create the relief.

[00:31:47] Speaker 00:
But multiple passes occur.

[00:31:50] Speaker 00:
For example, 10 passes can occur in martens.

[00:31:53] Speaker 00:
And therefore, if you do the division, about 3.6 mils of material needs to be removed, about the same composition as the photographic films.

[00:32:03] Speaker 00:
And so only the top layer of the flexographic film, just like the top layer of the photographic films,

[00:32:10] Speaker 00:
needs to be heated sufficient to melt it sufficiently so the blotter with pressure can remove about 3.6 mils.

[00:32:19] Speaker 00:
And so there's no difference functionally between photographic arts and flexographic arts in that context.

[00:32:26] Speaker 03:
Unless you have something to say finally, our time is running out.

[00:32:31] Speaker 00:
I would just say the repeated cycles difference that helps flexographic arts.

[00:32:36] Speaker 00:
You could run it through multiple cycles, and so cooling

[00:32:40] Speaker 00:
can be overcome or compensated by multiple cycles.

[00:32:43] Speaker 00:
There's no limit to the cycles.

[00:32:45] Speaker 00:
Thank you very much.

[00:32:45] Speaker 03:
Thank you very much.

[00:32:46] Speaker 03:
The case is submitted and the court will stand in recess.

[00:32:50] Speaker 01:
All rise.

[00:32:53] Speaker 01:
The court is adjourned from day to day.