[00:00:00] Speaker 03:
Next in number 15, 1862, Medtronic against Lifeport Sciences.

[00:00:27] Speaker 03:
Mr. Ilaqua, do I have the pronunciation right?

[00:00:30] Speaker 01:
Correct, Your Honor.

[00:00:31] Speaker 03:
Thank you.

[00:00:34] Speaker 01:
Thank you, Your Honor.

[00:00:38] Speaker 01:
May it please the Court, this appeal from the Patent Trial and Appeals Board, which I'll refer to as the board today, is not about a dispute over whether the board did a correct analysis of a prior art reference.

[00:00:52] Speaker 01:
This is about the fact that the board did not do any Graham analysis of the most relevant portion of the Ostrowski prior art reference as it relates to figures 29 to 35 of that reference in the accompanying description.

[00:01:07] Speaker 01:
Because of this most egregious example of an analytical error, the board's conclusions that the Ostrowski reference does not teach a permanent curve that's found on pages 31 and 32 of its final written decision are entitled to no deference.

[00:01:22] Speaker 01:
under this court's decision in Smith and Nephew versus Ray.

[00:01:25] Speaker 03:
Can I double check something?

[00:01:28] Speaker 03:
You rely in your brief just on how the board you say is wrong about Ostrovsky in particular about hook 206.

[00:01:40] Speaker 01:
That's correct.

[00:01:41] Speaker 03:
So in column nine of Ostrovsky at the bottom it says hook 206 is the end of 202.

[00:01:49] Speaker 03:
202 can be flexible

[00:01:52] Speaker 03:
Why does that not defeat your appeal?

[00:01:56] Speaker 03:
It's simple as that.

[00:01:57] Speaker 01:
OK.

[00:01:59] Speaker 01:
First, 202 is the strut.

[00:02:02] Speaker 03:
And it says 206 is the end of it.

[00:02:04] Speaker 01:
It doesn't say it's a separate piece.

[00:02:06] Speaker 01:
That's correct.

[00:02:07] Speaker 01:
206 is the end of the strut.

[00:02:09] Speaker 03:
So presumably made of the same material, so it can be flexible.

[00:02:14] Speaker 03:
in the absence of contrary evidence from you to say, no, notwithstanding that it's made of the same material as the flexible 202 material, it itself is not flexible.

[00:02:26] Speaker 03:
And I don't see the evidence.

[00:02:27] Speaker 01:
Well, the flexible issue, Your Honor, is what's been raised here as a flexible material is inconsistent with what the patent teaches itself and what claim 16 teaches.

[00:02:39] Speaker 01:
For example, in claim 16,

[00:02:41] Speaker 01:
of the patent, of the 662 patent, and I'll read you the section.

[00:02:51] Speaker 01:
It's an endoluminal prosthesis comprising of at least one protrusion cut out of said frame element, having a resiliently flexible bend formed therein, or in the at least one protrusion has a permanent curl.

[00:03:07] Speaker 01:
So in claim 16,

[00:03:09] Speaker 01:
The protrusion must, according to that claim, have both a resiliently flexible bend and a fixed arc curve under the board's construction.

[00:03:19] Speaker 01:
By that claim itself, if the material is flexible and cannot have a permanent curve, it's at odds with that claim.

[00:03:26] Speaker 01:
It's also at odds with what Lifeport told the board below, where I quote at A246,

[00:03:34] Speaker 01:
Figures two and three of the patent in suit have a resiliently flexible bend and also have a permanent curve.

[00:03:42] Speaker 01:
So the two are not mutually exclusive.

[00:03:44] Speaker 01:
And the fact that you have a flexible material does not preclude it from meeting the board's construction, which is a preset curve that maintains a fixed arc.

[00:03:56] Speaker 01:
You could have a flexible material that maintains a fixed arc in all configurations which is what Ostrowski actually shows.

[00:04:05] Speaker 01:
And Ostrowski also goes beyond that because in the written description it actually tells you that you can determine by the material that you select and the thickness of that material what the resilience or flexibility could be.

[00:04:18] Speaker 01:
So you could have a material where the Strut 202 would be of the same material

[00:04:22] Speaker 01:
And Ostrowski teaches that you could have it more rigid at the end if you wished it to be.

[00:04:27] Speaker 01:
But this is an apparatus claim.

[00:04:29] Speaker 01:
And in the apparatus claim, what you have to look for is structure.

[00:04:33] Speaker 02:
Isn't it the case that the term flexible bend is suggesting a flex point at one particular point at which there may be the capacity for this otherwise inflexible feature to bend?

[00:04:53] Speaker 02:
As opposed to a flexible bend being an indication that the entire structure is flexible.

[00:05:01] Speaker 02:
That was the way I understood this language that you quoted from 16.

[00:05:06] Speaker 01:
Your Honor, I don't believe that we're dealing with two different materials or two.

[00:05:12] Speaker 01:
When they're talking in claim 16 of a flexible bend and a permanent curve, we're dealing with the same materials.

[00:05:18] Speaker 01:
And these devices, whether they be filters or stents,

[00:05:21] Speaker 01:
They're all made up of the same material.

[00:05:23] Speaker 01:
They're all made up of nitinol or stainless steel or plastic.

[00:05:26] Speaker 02:
But you could have the same material and depending, for example, on thickness.

[00:05:31] Speaker 02:
or maybe even tempering of a particular portion of the strut, you could have a different behavior.

[00:05:40] Speaker 01:
That's correct.

[00:05:42] Speaker 01:
You could have it be flexible at one part, and it could be such rigid at some part that it would maintain a curve.

[00:05:49] Speaker 01:
And that's really all the claim construction calls for.

[00:05:52] Speaker 01:
And I think when looking at the claim construction, we have to ask ourselves,

[00:05:56] Speaker 01:
Is there any part in Ostrowski that doesn't meet that claim construction?

[00:06:00] Speaker 01:
Does it have a preset curve?

[00:06:02] Speaker 01:
Yes, it does.

[00:06:03] Speaker 01:
It says right in Ostrowski that it's a pre-determined curve.

[00:06:06] Speaker 01:
Does it maintain a fixed arc?

[00:06:08] Speaker 01:
In every one of those claim figures, excuse me, in every one of the figures, 29 to 35, there's six of them.

[00:06:14] Speaker 01:
It shows it in every possible configuration, and it shows the arc to be fixed and maintained.

[00:06:19] Speaker 02:
But your reference, your reliance on Ostrowski seemed to me to be entirely based on those figures.

[00:06:26] Speaker 02:
You reference a couple of points in the specification, other than the figures, as supporting your interpretation of the figures.

[00:06:34] Speaker 02:
But frankly, I read those and didn't find that they were helpful.

[00:06:37] Speaker 02:
You're really relying entirely on the fact that, as you view the figures, the arc in each of the figures is the same.

[00:06:44] Speaker 02:
Isn't that true?

[00:06:46] Speaker 01:
That's true.

[00:06:47] Speaker 01:
And the fact that there is an admission

[00:06:49] Speaker 01:
in the brief of life court that actually now agrees with us that each of those arcs or talons in each one of those figures is unchanging.

[00:06:59] Speaker 02:
Well, that may be, but that doesn't necessarily mean, it would seem to me, or at least the argument is, that they are not flexible.

[00:07:08] Speaker 02:
They simply have been depicted at points at which the arc is drawn in the same fashion.

[00:07:15] Speaker 02:
That doesn't mean that the arc can't

[00:07:17] Speaker 02:
isn't flexible or is permanent simply because we have several iterations of it which look the same.

[00:07:24] Speaker 01:
Your Honor, I understand what you're saying that because you have a flexible material, it's possible that in all of those configurations, which it shows not only does it show that it's a flexible material because it teaches that, but it also shows that it's unchanging.

[00:07:42] Speaker 01:
But what's critical here is that it shows a force of blood flowing

[00:07:47] Speaker 01:
because it's attached to the body woman.

[00:07:50] Speaker 01:
Those figures actually show it attached inside a body woman, like a vessel of an artery or a vein.

[00:07:56] Speaker 01:
So they show that, and they also show that there's a blood flow with arrow B. So having those forces on it, it still shows that the curvature has not changed.

[00:08:04] Speaker 01:
The fact that it's of a flexible material that could change if enough force were put on it, that's not really the test.

[00:08:11] Speaker 01:
The test of the claim construction is, is it a fixed arc in every configuration?

[00:08:16] Speaker 01:
So they show it here inside the catheter, outside the catheter, fully expanded, fully compressed.

[00:08:23] Speaker 01:
And they show that that is maintained in the same curvature throughout.

[00:08:27] Speaker 01:
And this is an apparatus claim.

[00:08:29] Speaker 01:
We can't read in process limitations.

[00:08:31] Speaker 01:
We can't read in how is this made or what forces external to that could be put on it.

[00:08:36] Speaker 01:
That's reading unclaimed limitations into this claim and then saying that this is exactly what Smith tells us not to do.

[00:08:43] Speaker 01:
The Smith case tells us

[00:08:46] Speaker 01:
Don't look at unclaimed limitations when you're looking at whether or not something is or is not obvious.

[00:08:52] Speaker 01:
And what's also interesting is that the board itself very recently cited HM Electronics versus 3M Innovative Services only several weeks ago for this exact proposition.

[00:09:04] Speaker 02:
Of course, as I'm sure you're familiar with,

[00:09:07] Speaker 02:
There's a fair amount of case law for the proposition that you really can't rely heavily on drawings when you get into the questions of the precision of a particular device.

[00:09:19] Speaker 02:
The drawings are naturally somewhat, well, they're just illustrative.

[00:09:24] Speaker 02:
They're not done to an engineer's precision, typically.

[00:09:29] Speaker 02:
So you're relying on drawings, but there's nothing, so far as I can see, in the specification, would you agree,

[00:09:37] Speaker 02:
give support for your interpretation of those drawings?

[00:09:39] Speaker 01:
Your Honor, I cannot agree with that, because I think... When is it in the specification that you would point to?

[00:09:44] Speaker 02:
You say, there's the point at which we show that this remains with the same arc throughout.

[00:09:53] Speaker 01:
With respect to rigidity, could you bear with me for just a moment, Your Honor?

[00:10:06] Speaker 01:
Within the specification itself, it does address the issue of two things.

[00:10:13] Speaker 01:
One, flexibility.

[00:10:14] Speaker 01:
And it says in the specification, if you're looking for flexibility or resiliency, you have to look to the type of material that you are going to use.

[00:10:24] Speaker 01:
And the interesting thing here is that in Ostrowski, it lists nitinol, stainless steel, and other biocompatible materials.

[00:10:31] Speaker 01:
In the 662 patent, it lists nitinol and stainless steel, ceramics and plastics.

[00:10:37] Speaker 01:
It lists the same body of materials.

[00:10:39] Speaker 01:
And then it says in Ostrowski, if you want to know how to set the flexibility, look at the differences in thickness of those same materials.

[00:10:49] Speaker 01:
And interestingly, in Life Court's brief to this court, it states plastic can be a flexible material, and it can also be rigid.

[00:10:57] Speaker 01:
And they agree that by changing the differences in thickness, it also changes the rigidity of that material.

[00:11:03] Speaker 01:
So there's no disagreement that changing differences in the thickness changes rigidity.

[00:11:09] Speaker 01:
That's all taught in Ostrowski.

[00:11:12] Speaker 01:
And the fact that we have an apparatus claim here, I think that the patent drawings, Your Honor, as far as my understanding of the case law is, is part of the teaching.

[00:11:24] Speaker 01:
And that this patent is looked upon just like any other publication would be.

[00:11:27] Speaker 01:
And you're looking at those drawings, and it shows it in all the different configurations.

[00:11:32] Speaker 01:
So we're not relying on just one drawing.

[00:11:34] Speaker 01:
But what's interesting is Lifeport told the board below, look at figures two and three of the 662 pack.

[00:11:40] Speaker 01:
There's only two configurations there, an open and closed configuration.

[00:11:45] Speaker 01:
There's no mention of nitinol or any other material.

[00:11:49] Speaker 01:
There's no mention of resiliency or anything other than that.

[00:11:53] Speaker 01:
And they relied on those two figures for the conclusion that it taught a permanent curve.

[00:11:59] Speaker 01:
And here, those are two static drawings.

[00:12:02] Speaker 01:
And here we have six static drawings showing the same thing, but with more detail, with blood flow, intraluminal, everything.

[00:12:11] Speaker 01:
And it's the same exact thing.

[00:12:13] Speaker 01:
So they relied on two.

[00:12:14] Speaker 01:
We had six.

[00:12:17] Speaker 01:
You are well into your rebuttal time.

[00:12:20] Speaker 01:
Thank you, Your Honor.

[00:12:20] Speaker 01:
I appreciate it.

[00:12:21] Speaker 01:
I would like to reserve the remainder of my time.

[00:12:22] Speaker 01:
Thank you.

[00:12:30] Speaker 00:
Good morning, Your Honors.

[00:12:30] Speaker 00:
May it please the Court, even though Medtronic's positions were a moving target both before the board and coming up on appeal, the board accepted Medtronic's final contentions for review.

[00:12:43] Speaker 00:
And those final contentions the board found

[00:12:45] Speaker 00:
insufficient evidence to meet their burden as a petitioner.

[00:12:49] Speaker 00:
Remember we're in an administrative context where there's a petition which is supposed to set forth the theories and the evidence and the arguments.

[00:12:57] Speaker 00:
So in short, none of Ostrovsky's protrusions or ends of the flexible struts keep a permanent curve.

[00:13:04] Speaker 00:
And that's what the evidence showed.

[00:13:07] Speaker 00:
On appeal, your honors are correct, Medtronic seems to be focusing just on

[00:13:11] Speaker 00:
end 206.

[00:13:13] Speaker 00:
And I myself was going to point Judge Bryson to the very same part.

[00:13:16] Speaker 00:
It's at A 295, column 9, line 62 to 65, the part of the Ostrovsky record that says that the struts are flexible and the ends are part of the struts.

[00:13:32] Speaker 00:
So it's a pretty simple syllogism that the ends are flexible as well.

[00:13:37] Speaker 00:
And then there's also more.

[00:13:38] Speaker 03:
Well, in the absence of evidence saying otherwise.

[00:13:45] Speaker 00:
Exactly, Judge Tronto.

[00:13:46] Speaker 00:
And the type of contrary or cautionary evidence otherwise would be exactly what you would find in the patent under review itself, such as at column six, basically the first three to five lines.

[00:14:06] Speaker 00:
talking about heat setting.

[00:14:09] Speaker 00:
Judge Bryson, I think you used the term tempering, which is probably the same thing, although I couldn't say that.

[00:14:14] Speaker 02:
Well, that's what I had in mind, even if it's wrong.

[00:14:19] Speaker 00:
But in any case, we have, back to Ostrovsky, we have column 10, lines 64 to 66, and that section underscores that the materials are elastic.

[00:14:30] Speaker 00:
They use the word elastic.

[00:14:33] Speaker 00:
So just to

[00:14:36] Speaker 00:
put on the table in front of everybody the entire record, we also have Ms.

[00:14:40] Speaker 00:
Gold's testimony.

[00:14:42] Speaker 00:
And Ms.

[00:14:42] Speaker 00:
Gold's testimony can be found at A390, paragraph 53, a superior expert actually in the field of the invention, unlike Petitioner's expert.

[00:14:55] Speaker 00:
And I bring all that up.

[00:14:56] Speaker 00:
I put all that evidence on the table in front of us, supporting the conclusion reached by the board, because this is a substantial evidence appeal.

[00:15:03] Speaker 02:
What was it that Dr. Loomis had to say on this point?

[00:15:07] Speaker 02:
Because I think I recall one of his declarations, I don't think we have in the appendix, but do you recall what it was that he had to say on this exact point?

[00:15:18] Speaker 00:
The most he said was that in the configurations depicted in figures 33 to 35, there's no depicted change in the curvature.

[00:15:29] Speaker 00:
Which, of course, for all the reasons discussed already, that doesn't get them where they need to be under the undisputed claim construction.

[00:15:37] Speaker 00:
So this is a substantial evidence appeal.

[00:15:40] Speaker 00:
It's well brief.

[00:15:41] Speaker 00:
I'm not going to use up much of the panel's time.

[00:15:44] Speaker 00:
I just want to make two points and, of course, make myself available for questioning.

[00:15:50] Speaker 00:
Point number one, in this substantial evidence appeal, there is never any acknowledgment of the existence of the expert testimony from Ms.

[00:15:58] Speaker 00:
Goldstein.

[00:15:59] Speaker 00:
no acknowledgement of the existence of the expert testimony supporting the board's decision.

[00:16:05] Speaker 00:
I, for one, do not understand how one presents a substantial evidence appeal to this court without at least coming up with some rationale for disregarding or debunking the expert testimony that does support the conclusion of the board.

[00:16:20] Speaker 00:
And then the second point that I'd like to make, and then I'll make myself available for questions and then have a seat, is and maybe address one or two things I said.

[00:16:29] Speaker 00:
But as a remedy, what Medtronic seeks is a remand on the issue of obviousness, and particularly the obviousness theory that they present to this panel today.

[00:16:41] Speaker 00:
But at oral argument before the board, they repudiated the obviousness theory they're presenting to the panel today.

[00:16:49] Speaker 03:
Are you pointing to a portion of that transcript that's in our joint appendix or no?

[00:16:56] Speaker 00:
Yes.

[00:16:56] Speaker 00:
At A229, lines four to five.

[00:17:01] Speaker 00:
in their very quick presentation of the part of Ostrovsky, the item 202, item 206 in Ostrovsky that they presented to the board, they began that discussion by saying, quote, actually we are using it, namely Ostrovsky, just to show the pointed tip.

[00:17:24] Speaker 00:
Just to show the pointed tip.

[00:17:27] Speaker 00:
That is exactly how they presented their obviousness theory

[00:17:31] Speaker 00:
in the petition, A93, B99.

[00:17:36] Speaker 03:
The next paragraph of that transcript does shift to figures 33 to 35 and number 206 and says that Ostrowski also teaches that in all those configurations, it also teaches a permanent curve.

[00:17:53] Speaker 00:
Agreed, Your Honor.

[00:17:54] Speaker 00:
They do discuss that.

[00:17:55] Speaker 00:
But once they get to that part of the discussion in the transcript,

[00:17:59] Speaker 00:
It's very much disembodied from what they presented in the claim charts in their petition, A93 to A99.

[00:18:06] Speaker 00:
And the claim charts in the petition there presuppose or make the argument that white is the reference that has the permanent curve.

[00:18:17] Speaker 00:
But by now it's pretty clear and it's undisputed on appeal that white, the portion they show as having the permanent curve, ends up lying flat or perhaps even goes a little bit regularly inward.

[00:18:28] Speaker 00:
Bottom line, it changes its curvature.

[00:18:30] Speaker 00:
So they've departed from the argument on appeal that they went into in their petition.

[00:18:37] Speaker 00:
So finally, just a quick collection of observations about what we heard during my brother's opening.

[00:18:46] Speaker 00:
I think the words he used right out of the gate were, the board did no gram analysis of the most relevant part of the reference.

[00:18:54] Speaker 00:
Well, I would commend your honor's attention back to A93 to A99.

[00:18:58] Speaker 00:
Their petition did not contain any gram analysis of the part of the reference that they are highlighting today on appeal.

[00:19:07] Speaker 00:
Incidentally, if you read the board's decision, I believe it's A31 to A32, there is, in fact, exactly the gram analysis that one would do had they raised that in their petition.

[00:19:22] Speaker 00:
which is to say the board was searching for the existence of a claim feature in the prior art.

[00:19:27] Speaker 00:
That is the scope of the prior art that the board was seeking.

[00:19:30] Speaker 00:
That is exactly the Graham analysis.

[00:19:33] Speaker 00:
The next observation from my brother, he said that every possible configuration of Ostrovsky is shown in figures 33 to 35.

[00:19:41] Speaker 00:
I would commend your honor's attention to the red brief, page 48, where we summarize the evidence, really,

[00:19:51] Speaker 00:
make the salient point that those figures do not show every possible configuration.

[00:19:58] Speaker 00:
On this point, they point to the section of the figure labeled B. They say it shows the forces of the blood flow.

[00:20:06] Speaker 00:
That's what you heard today, Your Honors, during oral argument.

[00:20:10] Speaker 00:
But contrary to what you heard, Your Honors, at column 9, line 31, B is the label for the direction of blood flow.

[00:20:19] Speaker 00:
It's not a force diagram.

[00:20:21] Speaker 00:
It's not designed to depict any sort of in vivo action of the forces of blood.

[00:20:26] Speaker 00:
It's simply a notation of what the direction of the blood flow would be.

[00:20:30] Speaker 00:
And as your honors are probably aware, blood doesn't flow with a uniform force or velocity or flux.

[00:20:37] Speaker 00:
Blood is something in the body that pumps.

[00:20:41] Speaker 00:
I think perhaps judicial notice could be taken that the heart pumps blood.

[00:20:45] Speaker 00:
And finally,

[00:20:48] Speaker 00:
The last point we heard was that Ostrovsky does suggest enough to a person of skill in the art to teach the permanent curve because it teaches that you can change the thickness of a wire or change the thickness of a piece of material.

[00:21:02] Speaker 00:
I don't dispute that.

[00:21:03] Speaker 00:
There is discussion that the thickness of the material can be customized for the chosen amount of flexibility.

[00:21:09] Speaker 00:
That is what Ostrovsky says.

[00:21:12] Speaker 00:
But the salient point to make here is that if we're still focused on

[00:21:16] Speaker 00:
figures 33 to 35, the part that they really need to be rigid to make their argument that they're making today is the very thinnest part depicted in the figure.

[00:21:31] Speaker 00:
So necessarily, if you're customizing flexibility based on the thickness of the material, their argument actually works against them and it proves the opposite of what they intend.

[00:21:43] Speaker 00:
Unless your honors have any further questions,

[00:21:46] Speaker 00:
yield to my brother.

[00:21:47] Speaker 01:
Thank you.

[00:21:59] Speaker 01:
If I could just clarify a couple of procedural things.

[00:22:01] Speaker 01:
One is that the reason that no mention was made of Ms.

[00:22:05] Speaker 01:
Gold's expert testimony was because she made no expert opinion on this issue.

[00:22:11] Speaker 01:
And if you look at her testimony at 390, you will see she didn't even reference the 206 as being flexible.

[00:22:19] Speaker 01:
She referenced 202 strut as being flexible material.

[00:22:23] Speaker 01:
But she made no analysis of 29 through 35.

[00:22:26] Speaker 01:
So it was nothing to discuss or rebut.

[00:22:30] Speaker 01:
With respect to whether or not this was in our petition, if the court would look at A70 to 71 and A92 in the original petition, we did discuss figures 34 and 33.

[00:22:41] Speaker 01:
We also incorporated this discussion in the Ostrowski and White ground.

[00:22:47] Speaker 01:
So this was in our petition right from the beginning.

[00:22:51] Speaker 03:
And so what were those citations, please?

[00:22:55] Speaker 01:
The citations for where it was in the petition would be at A70-71 and at A92.

[00:23:01] Speaker 01:
And Ms.

[00:23:02] Speaker 01:
Foltz's paragraph that was referred to at A390 does not have a full discussion of this.

[00:23:09] Speaker 01:
And there was nothing to rebut on this issue.

[00:23:11] Speaker 01:
With respect to, again, the materials that we were referring to, I think that Your Honor asked for some sites on that.

[00:23:23] Speaker 01:
And in the Ostrowski reference at A295, at column 10, line 60 to 65, they discussed the selection of materials, will determine the flexibility and resiliency.

[00:23:34] Speaker 01:
And at column 6 to 12-14 lines,

[00:23:38] Speaker 01:
At A293, it is, of course, understood that differences in thickness relative to width will affect the flexibility of the element.

[00:23:47] Speaker 01:
And what was just stated by counsel, that it needs to be rigid at that point.

[00:23:53] Speaker 01:
It does not need to be rigid.

[00:23:55] Speaker 01:
This is the whole false premise in this appeal, is that that talon does not have to be rigid.

[00:24:00] Speaker 01:
It just has to maintain a fixed curve.

[00:24:03] Speaker 01:
But the rigidity of a material that starts out as elastic or flexible

[00:24:08] Speaker 01:
as is depicted in the 662 patent as well, can take on a permanent curve in various configurations.

[00:24:17] Speaker 02:
Also, in a... I'm not sure I understood that point.

[00:24:21] Speaker 02:
Are you saying that it needs to have a particular memory?

[00:24:26] Speaker 01:
No, it doesn't have to use a memory.

[00:24:26] Speaker 02:
Or are you saying that... Well, point is to say again, if you will.

[00:24:30] Speaker 01:
What it's saying is that if we look at the definition that the

[00:24:37] Speaker 01:
has been provided to us, I don't know if I have it handy, but it's a preset curve, right, that has a fixed arc that's maintained in all of the configurations.

[00:24:49] Speaker 01:
What in Astrosky is missing?

[00:24:51] Speaker 01:
In those drawings, what is missing?

[00:24:53] Speaker 01:
There's nothing missing in that definition.

[00:24:55] Speaker 02:
No, no, no, but before that you were saying, well, that, but I didn't understand what you were saying, but that doesn't require, and then you characterized what it doesn't require.

[00:25:04] Speaker 01:
It doesn't require that

[00:25:06] Speaker 01:
this be a rigid permanent in the sense of inflexible.

[00:25:12] Speaker 01:
That I don't understand.

[00:25:14] Speaker 01:
But that's not the definition that was given by the board.

[00:25:16] Speaker 01:
The board didn't say.

[00:25:17] Speaker 02:
What is the right definition then?

[00:25:20] Speaker 02:
My understanding of a fixed curve is that it is

[00:25:24] Speaker 02:
Indeed, rigid, it's not going to change from that curve to any other shape.

[00:25:30] Speaker 02:
Are you saying that's not the correct definition, not the definition that was accepted?

[00:25:34] Speaker 01:
I don't believe that is.

[00:25:35] Speaker 01:
Well, what is then?

[00:25:36] Speaker 01:
Because the definition that was given in the claim construction just says it's a fixed arc.

[00:25:41] Speaker 01:
It doesn't say it's a fixed curve, Your Honor.

[00:25:43] Speaker 01:
A fixed arc.

[00:25:44] Speaker 01:
So the arc is fixed so that when you look at all the different configurations, there are no forces put on it that actually change it.

[00:25:52] Speaker 01:
And the reason for that, as

[00:25:53] Speaker 01:
as was stated in the 662 patent, and it's true in Ostrowski, is after it expands, you don't have to do anything with that talon, which intercepts the lumen, because it already has the curve.

[00:26:06] Speaker 01:
It's not something that you have to.

[00:26:08] Speaker 02:
And the curve is not going to change.

[00:26:09] Speaker 01:
And the curve is not changing.

[00:26:10] Speaker 02:
But I would call that to be a permanent rigid curve, wouldn't you?

[00:26:16] Speaker 01:
But the claim doesn't call for rigid.

[00:26:19] Speaker 01:
The claim itself, Your Honor, does not have

[00:26:22] Speaker 01:
a material limitation in it.

[00:26:24] Speaker 01:
This heating step, for example, is a process step.

[00:26:28] Speaker 01:
And I guess I'd like to get just in my last statement, I would like to reiterate what I'm starting out to say, which is what the board actually did wrong here.

[00:26:36] Speaker 01:
If we look at pages 31 and 32 of the board's final written opinion, then what it states there, it only has three paragraphs of analysis.

[00:26:46] Speaker 01:
The first paragraph only simply states what our contention is about Ostrowski, which is correct.

[00:26:52] Speaker 01:
But then it doesn't go on to analyze it.

[00:26:54] Speaker 01:
It jumps that step.

[00:26:55] Speaker 01:
It doesn't do a scope and content analysis of this prior art reference.

[00:26:59] Speaker 01:
It skips it.

[00:27:00] Speaker 01:
And it goes on and says, well, Dr. Loomis didn't tell us anything about a heating step to make this permanent.

[00:27:06] Speaker 01:
That's a reading into a limitation that just

[00:27:09] Speaker 01:
is a process limitation to an apparatus claim.

[00:27:12] Speaker 01:
Then it goes on to criticize Dr. Loomis because he didn't analyze all these other external forces.

[00:27:17] Speaker 01:
Can we imagine if every examiner that looks at a prior art patent.

[00:27:20] Speaker 03:
This is turning into a very long last statement.

[00:27:23] Speaker 01:
I'm sorry, Your Honor, but it would.

[00:27:26] Speaker 01:
And if every examiner had to do that type of analysis every time it looked at a publication of a patent, that's not the way prior art is analyzed.

[00:27:35] Speaker 03:
Thank you, Your Honor.

[00:27:36] Speaker 03:
Thank you.

[00:27:36] Speaker 03:
The case is submitted.