[00:00:02] Speaker 01:
The next case for argument is 15-1049, evasive versus Warsaw orthopedic.

[00:00:37] Speaker 01:
And as we've already mentioned, what we understand we're left with are the counterclaims raised by you, Mr. Donnelly.

[00:00:45] Speaker 01:
I'm sorry, Mr. Quinn.

[00:00:49] Speaker 01:
And then Ms.

[00:00:50] Speaker 01:
Lateef is coming in, sort of on short notice, to respond to those arguments.

[00:00:58] Speaker 03:
That's right, Chief Judge Brosnan.

[00:00:59] Speaker 03:
May I please the Court?

[00:01:00] Speaker 03:
John O'Quinn on behalf of Warsaw.

[00:01:03] Speaker 03:
And as the Court noted,

[00:01:05] Speaker 03:
based on the settlement between Nubase and Warsaw.

[00:01:08] Speaker 03:
Nubase's appeal has been dismissed, and the only issues that remain are those presented on what was Warsaw's cross-appeal in the 2006 and 2008 IPRs involving claims 1 through 8 and 17 through 23.

[00:01:21] Speaker 03:
The board's finding of unpatentability with respect to those claims should be reversed or at least vacated for three independent reasons.

[00:01:29] Speaker 03:
First,

[00:01:30] Speaker 03:
The board failed to address a key limitation that the implant have a length that was greater than the depth of the disc space.

[00:01:39] Speaker 03:
Second, the board fundamentally erred in its reading of the Brannigan reference and whether it can substantially span the full width of the vertebra.

[00:01:48] Speaker 03:
And third, even if you accept the board's reading with respect to Brannigan, the board failed to give reasons why a person would have been motivated to combine the asserted references

[00:01:59] Speaker 03:
in the first place.

[00:02:01] Speaker 03:
As this court recently reiterated in the cuts forth versus motive power case, quote, when the board determines that modifications and combinations of prior art render a claim to invention obvious, the board must fully explain why a person of ordinary scale in the art would find such change as obvious.

[00:02:18] Speaker 03:
And respectfully, the board failed to do so here, where you had specific techniques using specific tools, specific implants of specific requirements,

[00:02:27] Speaker 03:
But the board approached this much like a jigsaw puzzle in the way that this court rejected in the in-touch case.

[00:02:35] Speaker 03:
So let me start with the Brannigan.

[00:02:36] Speaker 02:
Well, you have a separate argument with respect to claims 17 at all.

[00:02:40] Speaker 03:
We do, Judge Bryson.

[00:02:41] Speaker 03:
That depends.

[00:02:42] Speaker 03:
We do.

[00:02:43] Speaker 03:
We have a separate argument from all of those points with respect to claims 17 through 23, and that's the idea that

[00:02:50] Speaker 03:
the Jacobson reference does not disclose elongated portions that are, quote, positioned over the adjacent vertebrae.

[00:02:58] Speaker 03:
It's just simply not there.

[00:02:59] Speaker 03:
The board's entire analysis of that issue is at page A22.

[00:03:02] Speaker 03:
It's essentially five sentences.

[00:03:05] Speaker 03:
And the board finds that Jacobson's sentence in your argument was.

[00:03:11] Speaker 03:
That may be fair, Judge Bryson.

[00:03:13] Speaker 03:
But the entirety of the board's reasoning is that Jacobson discloses the anchor wires

[00:03:19] Speaker 03:
excuse me, discloses the elongated portions with its anchor wires, but it doesn't explain how Jacobson does that.

[00:03:25] Speaker 03:
And there's one of two ways that I think that the board could have been reaching that conclusion.

[00:03:31] Speaker 03:
One is to say that those anchor wires, which are anchored in the disk capsule itself, are positioned over the adjacent vertebrae.

[00:03:38] Speaker 03:
And he basically essentially invited that

[00:03:43] Speaker 02:
Because of the geometry of the figure?

[00:03:45] Speaker 03:
Exactly, because the spine is arched or is tapered and so if you drill down through the disc capsule you would eventually hit rock bottom and so under that theory perhaps the board thought that this was positioned over.

[00:04:00] Speaker 03:
That's an unusual reading of the term positioned over and particularly where the whole point here is to create

[00:04:06] Speaker 03:
a channel for operating to be able to insert an implant.

[00:04:10] Speaker 03:
The board doesn't say that it's reading Jacobson that way, so we just don't know what the board did.

[00:04:16] Speaker 03:
And much as this court recently did in the Ariosa case, where you don't know what the board did, it's potentially based on an untenable reading of the claim, certainly not something the board adopted.

[00:04:26] Speaker 03:
A claim obstruction, that alone would be a reason to vacate and remand.

[00:04:30] Speaker 03:
It ties in, though, with another point.

[00:04:33] Speaker 03:
Jacobson, because of the way that the

[00:04:36] Speaker 03:
anchor wires work, Jacobson doesn't contemplate its process being used or its method being used with an implant.

[00:04:44] Speaker 03:
And indeed, the board conceded as much at A15.

[00:04:49] Speaker 03:
And yet, nonetheless, the board seems to assume that a person of ordinary skill in the art would have been motivated to take the method disclosed by Jacobson and apply it to large implants, including those disclosed in Brannigan.

[00:05:06] Speaker 03:
The entirety of the board's reasoning for combination of these references is at A23 and 24.

[00:05:13] Speaker 03:
And the board doesn't explain why.

[00:05:15] Speaker 03:
It does exactly what this court has said that you can't do.

[00:05:19] Speaker 03:
It does what KSR says that you can't do.

[00:05:21] Speaker 03:
It seems to assume the conclusion and then work backwards from there.

[00:05:26] Speaker 03:
The approach is much like multi-reference anticipation.

[00:05:28] Speaker 03:
It looks out.

[00:05:28] Speaker 03:
It says, this element is satisfied here.

[00:05:31] Speaker 03:
This element is met here.

[00:05:32] Speaker 03:
This element is met here.

[00:05:34] Speaker 03:
And then it offers the conclusion

[00:05:36] Speaker 03:
that a person of ordinary skill in the art would have found the results from the combination to be obvious or to yield anticipated results, expected results, without ever explaining why that would be so.

[00:05:51] Speaker 03:
Why would a person have been motivated in the first instance to try to implant, to insert an implant from the side as opposed to the traditional method from the front or from the back

[00:06:03] Speaker 03:
And of course, the invention of the 997 comes some 13 years after Jacobson's purported disclosure of a lateral process.

[00:06:13] Speaker 02:
Well, the motivation seems fairly apparent.

[00:06:17] Speaker 02:
I mean, you've got the nerves in the rear and the aorta in the front.

[00:06:24] Speaker 02:
So you're left with one approach, basically, the side.

[00:06:28] Speaker 02:
If you want to avoid complications such as that, there are other complications.

[00:06:33] Speaker 02:
such as the bowel and so forth.

[00:06:36] Speaker 02:
But certainly that would be an approach that would suggest itself in light of those considerations.

[00:06:43] Speaker 02:
And then Jacobson, in fact, went that way.

[00:06:46] Speaker 03:
Well, two points, Judge Bryson.

[00:06:48] Speaker 03:
First, you're absolutely right.

[00:06:49] Speaker 03:
That's what the 997 patent identifies as one of the motives for doing this.

[00:06:53] Speaker 03:
Another of the motives for doing this is so that you could have a larger oversized implant to have enhanced stability.

[00:06:59] Speaker 03:
But Dr. Michelson specifically does talk about the presence of the major vessels and the spinal cord and avoiding those, that's at A103 of that pattern.

[00:07:09] Speaker 03:
That's not mentioned anywhere in Jacobson.

[00:07:11] Speaker 03:
What Jacobson talks about, you can see this at A485, Jacobson talks about not having to have the intrusive surgery that requires cutting away part of the lamina, that's part of the vertebra itself, and it's avoiding that

[00:07:28] Speaker 03:
which itself could potentially cause more pain than simply removing the herniation, which is what Jacobson is focused on.

[00:07:35] Speaker 03:
Jacobson is about a disectomy, or essentially a scoop out some material, not about inserting a large implant.

[00:07:40] Speaker 03:
It doesn't talk at all about moving the major vessels or avoiding having to move the major vessels, avoiding having to work around the spinal cord.

[00:07:49] Speaker 03:
Jacobson doesn't say a word about that.

[00:07:51] Speaker 03:
And yet, nonetheless, the board seems to assume that one would be motivated to make that combination.

[00:07:57] Speaker 03:
respectfully, to take what motivated Dr. Michelson and then work backwards from that is exactly what this court in KSR said that you can't do, which is to use hindsight to retrace the path that the inventor had followed.

[00:08:11] Speaker 02:
But Dr. Michelson was not the first person to recognize that there was a problem with the spinal column and the aorta.

[00:08:23] Speaker 02:
That was known to everybody that had studied Gray's Anatomy.

[00:08:26] Speaker 03:
Well, that may be so, Judge Bryson, but Dr. Michelson was the first to come up with implants that were designed to be inserted laterally.

[00:08:40] Speaker 03:
And indeed, this court observed as much in the Warsaw versus New Basin case at page 1370 that before Dr. Michelson came along, quote, implants were inserted either from the front to the back rather than the side.

[00:08:53] Speaker 03:
So again, to work backwards some 13 years after Jacobson and say, oh, well, it would be obvious to do what Dr. Michelson did frankly seems to assume the conclusion.

[00:09:03] Speaker 03:
And again, you can look at the board's opinion.

[00:09:05] Speaker 03:
There is no analysis as to the combination.

[00:09:08] Speaker 03:
I'd like to turn back, though, for a moment on the Brantigan reference itself, because the arguments that they make hinge on the notion that Brantigan would disclose the arguments that the invasive had made.

[00:09:20] Speaker 03:
hinge on the notion that Breantigan discloses an implant that would have the requisite dimensions.

[00:09:29] Speaker 03:
There is no analysis, nothing in the board's opinion talking about the requirement that the length be greater than the depth of the disk space.

[00:09:39] Speaker 03:
You can do a search through the board's opinion for the word depth.

[00:09:42] Speaker 03:
You will find it in quoting the claims.

[00:09:47] Speaker 03:
Sure, we raised it in several places.

[00:09:49] Speaker 03:
You can find it at A1200, where we specifically reference a paragraph from Dr. Sacks' declaration, and that paragraph is at A1308-1309, and Dr. Sacks specifically in his declaration spells this issue out.

[00:10:06] Speaker 03:
It was also raised at the hearing before the board at A4809.

[00:10:12] Speaker 03:
Now, in addition to the fact that the board does not address the depth limitation at all, does not mention it in addressing the notion that Branigan could meet that limitation, the board actually makes findings that are inconsistent with that.

[00:10:28] Speaker 03:
And so, for example, at A20, the board says, well, Branigan can be inserted from any desired orientation.

[00:10:36] Speaker 03:
That necessarily means two things.

[00:10:38] Speaker 03:
Number one, it can't possibly have a length greater than the depth.

[00:10:42] Speaker 03:
Because if it could be inserted from any possible orientation, then if you were to insert it from the front or the back, it would impair the major vessels or the spinal cord.

[00:10:53] Speaker 03:
The board doesn't grapple with that inconsistency.

[00:10:56] Speaker 03:
The other thing that that means with respect to Brannigan is it means that it can't have a length that is substantially the full width, the full transverse width of the vertebra.

[00:11:07] Speaker 03:
And that's another issue.

[00:11:08] Speaker 03:
where the board's analysis falls short.

[00:11:10] Speaker 03:
We presented numerous arguments on why it is that when you read Brannigan, you cannot have something that substantially spans the full width because it is bottomed on the end plate.

[00:11:21] Speaker 03:
It is a hard, flat device with grooves in it that works by being bottomed on the end plate.

[00:11:28] Speaker 03:
The end plate does not substantially span the full width.

[00:11:32] Speaker 03:
The board instead concluded that the reason that Brannigan could meet this limitation

[00:11:37] Speaker 03:
is because of one sentence that the board quotes over and over, the quote, generally shaped and sized to conform with the disk space.

[00:11:45] Speaker 03:
And it says that at A, 16, 18, 19, and 20.

[00:11:49] Speaker 03:
And what the board did is the legal error that this court said you can't do in Pandoit versus Dennison is taking one sentence out of the reference and saying because of that one sentence that is generally sized and shaped to conform with the disk space, it must necessarily span the full transverse width.

[00:12:07] Speaker 03:
But that fails to look at what... Substantially.

[00:12:10] Speaker 03:
Substantially, which means approximately or not... Not entirely.

[00:12:15] Speaker 03:
Not entirely, that's right.

[00:12:17] Speaker 03:
But that was the entire basis of the board's reasoning.

[00:12:20] Speaker 03:
It doesn't address, it doesn't respond to the argument that it can't substantially span the width because it's seated on the end plate.

[00:12:27] Speaker 03:
It doesn't address the argument that it can't substantially span because it is seated within the disk capsule.

[00:12:34] Speaker 03:
And you can see that vividly at figure 11

[00:12:37] Speaker 03:
of the Branigan patent.

[00:12:40] Speaker 03:
And you can see that in... You have the appendix site for that.

[00:12:46] Speaker 03:
I don't have it readily.

[00:12:48] Speaker 02:
Yes.

[00:12:48] Speaker 03:
It's at 8510, and you can also find it at page 62 of the red brief.

[00:12:53] Speaker 03:
And you see that there are these fibers that remain in place at the apophysial ring that are not cut away.

[00:13:00] Speaker 03:
And therefore, it can't substantially span the full width.

[00:13:04] Speaker 02:
Well, it can't.

[00:13:06] Speaker 02:
span the full width.

[00:13:07] Speaker 02:
The question is what substantially it means in this context.

[00:13:11] Speaker 02:
And one could look at figure 11 and say, well, that's most of the width.

[00:13:16] Speaker 03:
Well, the board didn't address this issue.

[00:13:18] Speaker 03:
What the board simply said was, well, because we find that it is, quote, generally shaped in size to conform with the disk space, the one sentence from column four of Branigan, and it literally appears once in Branigan, that was the board's answer to every single argument that was made.

[00:13:35] Speaker 03:
not addressing the inconsistency that would create with the fact that you have something that is bottled on the end plate, can fit within the disc capsule, and that is grooved on the periphery in order to allow tissue in-growth.

[00:13:48] Speaker 03:
It's undisputed, that can't happen out on the apophysial ring on the extremities.

[00:13:52] Speaker 03:
Where that happens is actually on the end plate itself.

[00:13:56] Speaker 03:
I see that I am well past my time.

[00:13:58] Speaker 01:
I don't care from the government.

[00:13:59] Speaker 01:
We'll restore two minutes of your time.

[00:14:01] Speaker 03:
Thank you.

[00:14:09] Speaker 01:
Ms.

[00:14:09] Speaker 01:
Lateef.

[00:14:10] Speaker 00:
Good morning.

[00:14:10] Speaker 00:
May it please the Court?

[00:14:12] Speaker 00:
I find myself in sort of an awkward position here, because we didn't brief these issues.

[00:14:17] Speaker 00:
We intervened on the motion that was dismissed.

[00:14:19] Speaker 00:
But I did want to make myself available to answer any questions that the Court might have in defending the board's final written decision.

[00:14:28] Speaker 02:
My first question to you would be, do you adopt, or that may be an overly formal term,

[00:14:35] Speaker 02:
Do you agree with the position taken in Nubase's brief with respect to the CrossFit fields?

[00:14:43] Speaker 00:
We agree with the results of that brief.

[00:14:45] Speaker 00:
I mean, every argument we may have argued differently, but absolutely we agree in supporting the board's final decision in that the board properly found that the claims were unpatentable, yes.

[00:14:55] Speaker 02:
Could you address, before you get to the point that you're

[00:15:02] Speaker 02:
opposing counsel spent most of his time on, could you address the Claim 17 issue that I asked him about, the question of whether the positioning rods are... The anchor wires.

[00:15:18] Speaker 02:
Yes, the anchor wires are above the, are positioned above the vertebrae.

[00:15:24] Speaker 02:
I mean, let me say by way of introduction that I, it seemed an odd notion

[00:15:30] Speaker 02:
as was argued by New Basis to say that those anchor wires are above the vertebra when the only respect in which they appear to be above, at least in the figure, is the very bottom of the vertebra that's at the other end of the entire disc capsule.

[00:15:47] Speaker 00:
Right.

[00:15:50] Speaker 00:
to respond to you, if you can indulge me for a little bit, because it's kind of new to me.

[00:15:54] Speaker 00:
But I think what the board ended up saying on that was that they adopted that figure five.

[00:15:59] Speaker 00:
And when it says positioned over, positioned over doesn't have to be directly positioned over.

[00:16:05] Speaker 00:
And those wires, if you look at figure five, which is the annotated version of the A268 and the originals at A479, those wires do sit.

[00:16:15] Speaker 00:
Even if it's just above a little piece, those, that part of the vertebrae.

[00:16:20] Speaker 00:
The board at age 23 found that that figure was enough and that Warsaw didn't do anything to prove otherwise, essentially.

[00:16:29] Speaker 00:
I mean, it was a short paragraph, but they're basically saying, we adopt this annotated version, and Warsaw hasn't given us any evidence to the contrary.

[00:16:37] Speaker 00:
And so they found that claim 17 was meant by.

[00:16:39] Speaker 02:
The evidence to the contrary is that what they appear to be above is the disc

[00:16:45] Speaker 02:
I'm not sure I'm using the right terminology there, but it's the disc material as opposed to vertebral material.

[00:16:53] Speaker 00:
Well, but it's, just give me one second.

[00:16:55] Speaker 02:
As I understand it, the idea in Jacobson is that you want those pins to go into the disc material.

[00:17:06] Speaker 02:
You're not interested in clearing out the entire disc.

[00:17:11] Speaker 02:
You can operate

[00:17:13] Speaker 02:
inside the two pins.

[00:17:16] Speaker 02:
And those pins are going into the disk.

[00:17:17] Speaker 02:
They're not going all the way down into the verger at the other end, as I understand it.

[00:17:24] Speaker 02:
So it's functionally, it's performing a different role.

[00:17:26] Speaker 00:
Right.

[00:17:27] Speaker 00:
But based on the way it's claimed, the claim is pretty broad.

[00:17:32] Speaker 00:
And the claim says positioned over.

[00:17:34] Speaker 00:
And so based on the claim language that the board has to work with, it found that it agreed with the petitioner's position and that they were

[00:17:43] Speaker 00:
If you look at it, it is sort of over the end points of the vertebrae, but that is the vertebrae.

[00:17:47] Speaker 02:
So if it said position directly over, you might take a different position.

[00:17:51] Speaker 02:
Possibly.

[00:17:52] Speaker 02:
Positioned immediately over?

[00:17:54] Speaker 00:
Possibly, Your Honor.

[00:17:58] Speaker 00:
And so to the extent Your Honor would like me to address sort of some of the substantial points, I'd like to say that the board relied on more than just one sentence in Brantigan to

[00:18:11] Speaker 00:
account for all the implant size limitations.

[00:18:14] Speaker 00:
Well, it did repeatedly talk about how Brantigan discloses that it's shaped in size to conform with the disk space.

[00:18:20] Speaker 00:
It also looked at other parts of Brantigan where it talks about that the implants are dimensionally similar to non-vertebrate bodies, excuse me, and that the implants are, to quote, bottomed on the hard bone faces or end plates of adjacent vertebrae.

[00:18:36] Speaker 00:
This sort of goes to what Council Foresaw was arguing.

[00:18:40] Speaker 00:
And in addition to that, the board makes it really clear that this notion of substantial, quote, substantially spans, it talks about, it just has to mostly span.

[00:18:52] Speaker 00:
And what substantial is Warsaw's Council is trying to make an argument for, but that's just attorney argument, is the board said, even if it's a little bit not the full width, that's okay, because it's an insubstantial amount.

[00:19:06] Speaker 00:
it looked to basically shaped and sized to conform pretty much fits what the claims are arguing.

[00:19:13] Speaker 02:
What was the evidence that the problems with either approaching from the fodder or approaching from the rear prior to the invention were recognized and that lateral approaches for any purpose

[00:19:36] Speaker 02:
was lateral approach, which was recognized as a preferable approach.

[00:19:42] Speaker 02:
Other than, I guess, Jacobson, for limited purposes, that Jacobson employed that approach.

[00:19:48] Speaker 02:
But what else is there in the evidence, if any?

[00:19:51] Speaker 00:
I would turn to Jacobson.

[00:19:52] Speaker 00:
To the extent there is more than that.

[00:19:56] Speaker 02:
But Jacobson doesn't, I guess, talk about the problem with the spinal column in the aorta, right, the nerve in the aorta.

[00:20:05] Speaker 00:
Right, but this is an obvious misrejection, right?

[00:20:07] Speaker 00:
And so if you combine the references, someone could see that it would make more sense to, or not make more sense, but that it could be done laterally.

[00:20:15] Speaker 02:
It could be done, but the question ultimately is why would they have had a motivation to do it laterally?

[00:20:21] Speaker 02:
Jacobson did, but did Jacobson do it?

[00:20:24] Speaker 02:
Is there any indication that Jacobson was doing that because of the more generalized problem of the aorta and the spinal nerve?

[00:20:33] Speaker 02:
Or was it for

[00:20:35] Speaker 02:
idiosyncratic reasons associated only with Jacobson and not generalizable to disc replacement, for example.

[00:20:43] Speaker 00:
Well, so I can tell you when the board looked at the motivation to combine, they relied on the findings that the petitioner stated.

[00:20:51] Speaker 00:
And one of those was basically that you would combine these references so that the implant extends, I have to read from it to remember, longitudinally across nearly the full disc space and averaged

[00:21:04] Speaker 00:
advantageously reduce the likelihood of the implant collapsing into the soft, cancerous bone in the central region of the vertebrae.

[00:21:13] Speaker 00:
So as far as also combining Jacobson and Liu is to widen surgical access path from the initial needle in a manner that reduces trauma to the intervening tissue.

[00:21:24] Speaker 00:
So those were the board at A23, while it maybe had one sentence, it was basically pointing to those reasons of combining the references and found that they were

[00:21:33] Speaker 00:
persuasive.

[00:21:41] Speaker 00:
And so again, I thank you for being a little bit understanding in terms of my knowledge of the case, but we stand behind the board's final decision and I respectfully ask this court to affirm the board's decision.

[00:21:55] Speaker 00:
Thank you.

[00:22:26] Speaker 03:
Thank you, Chief Judge Brose.

[00:22:35] Speaker 03:
Judge Bryson, your understanding of Jacobson is correct.

[00:22:38] Speaker 03:
It's a limited patent addressing disactamies.

[00:22:41] Speaker 03:
Jacobson was focused on avoiding the lamina.

[00:22:44] Speaker 03:
It doesn't mention implants at all.

[00:22:47] Speaker 03:
And indeed, the board conceded as much at A15.

[00:22:51] Speaker 03:
And the approach to position it over

[00:22:54] Speaker 03:
uh... you're absolutely right with his position over the disk material the whole point is to create an operating channel and uh... the floor doesn't give any reasoning to why that limitation would be met here it doesn't even say that it's adopting uh... new faces reasoning although it appears to be that that uh... essentially would uh... would frankly be absurd the other thing i would note uh... that may be a little strong don't you think well i mean at that point

[00:23:23] Speaker 02:
The most natural reading might be that footage is above, is that it is above the disk material, but it is also above the respiration.

[00:23:31] Speaker 03:
And I was going to say, and at that point, it's above the operating table and above the floor and above the granite.

[00:23:40] Speaker 03:
But I think one of the things that you saw in the board's defense today is a bit of flipping the burden of proof.

[00:23:47] Speaker 03:
They say Warsaw didn't do anything to prove otherwise, but of course the burden was always on nuvasives to show that this was not happenable.

[00:23:55] Speaker 03:
Another point from the board's argument today, the board doesn't adopt wholesale nuvasives reasoning, and I think that's a telling because the board didn't do that at A23 either, and in fact there are many points within the board's decision that

[00:24:11] Speaker 03:
are actually inconsistent with what Newvasive had argued.

[00:24:15] Speaker 03:
And so what you're left with is it agrees with the conclusion, but that's just a conclusion, and that's not enough to satisfy the standards for obviousness.

[00:24:25] Speaker 03:
In terms of Branigan itself, it's a different philosophy.

[00:24:27] Speaker 03:
It says that it is bottomed on the end plate.

[00:24:31] Speaker 03:
And the boar fundamentally doesn't understand the significance of that or what it means.

[00:24:36] Speaker 03:
And if you look at the figures on page nine of the red brief,

[00:24:40] Speaker 03:
you see the distinction between the end plate and the apophysial ring.

[00:24:43] Speaker 03:
And something that is bottomed on the end plate isn't seated across the apophysial ring.

[00:24:49] Speaker 03:
And at the end of the day, the board did not say that it was reading the apophysial ring as being not substantial.

[00:24:56] Speaker 03:
It read Brannigan as actually reaching the apophysial ring.

[00:25:00] Speaker 03:
And you just can't square that with the actual disclosures in Brannigan itself fundamentally that can sit within the disk capsule

[00:25:09] Speaker 03:
and is bottomed on the inflate.

[00:25:11] Speaker 03:
I'm seated.

[00:25:12] Speaker 03:
I'm past my time.

[00:25:13] Speaker 03:
If the court has further questions.

[00:25:15] Speaker 02:
Can I ask one more question?

[00:25:18] Speaker 02:
Certainly.

[00:25:19] Speaker 02:
On that last point, specifically, the board's misreading of Bradigan, can you point me to the place in the board's opinion?

[00:25:29] Speaker 02:
You touched on this earlier, but I just want to make sure I have it, where you say that the board misread Bradigan on that point, the point you just last made.

[00:25:37] Speaker 03:
I believe it's at A20 where the board says that Brannigan would have reached the apothecial ring and you can't square that with the disclosure.

[00:25:51] Speaker 02:
Where is that specifically on A20?

[00:26:12] Speaker 03:
I believe it's in the paragraph where it says, the patent owner does not show persuasively that any such errors in Figure 11 are futile.

[00:26:18] Speaker 01:
You're on the right.

[00:26:20] Speaker 03:
I'm sorry.

[00:26:21] Speaker 01:
Oh, I see.

[00:26:22] Speaker 01:
OK, I think that's what he's talking about.

[00:26:25] Speaker 01:
Are you talking about the middle of the first paragraph?

[00:26:28] Speaker 01:
Yes, you've touched on it.

[00:26:30] Speaker 02:
OK, I don't see any reference to the Apocalypse C.O.A.

[00:26:33] Speaker 02:
Am I missing something?

[00:26:41] Speaker 03:
Judge Bryson, I don't have it at my fingertips.

[00:26:43] Speaker 03:
I know there's... Oh, I'm sorry.

[00:26:46] Speaker 03:
A-19.

[00:26:49] Speaker 03:
This is a patent that does not show persuasively that Branigan expressly teaches that the implant sits within the apotheosal ring and it goes on.

[00:26:59] Speaker 03:
And it says, we therefore agree with the petitioner that one of ordinary skill in the art

[00:27:08] Speaker 03:
would not, there's a double negative here, but would not have understood that Brannigan discloses an implant that would not extend into the disk space encompassed by the office seal ring.

[00:27:17] Speaker 03:
And that gets to the inconsistency with the notion that you have an implant that is said repeatedly.

[00:27:25] Speaker 03:
It's throughout the claims.

[00:27:26] Speaker 03:
It appears at three places on A511, 513, and 514 that sits on or is bottomed on the end plate.

[00:27:35] Speaker 03:
And those are just inconsistent.

[00:27:38] Speaker 03:
Thank you.

[00:27:39] Speaker 01:
Before we conclude, however, I guess we're sort of in an unusual situation, although we have provided for additional briefing in certain circumstances.

[00:27:46] Speaker 01:
So the panel wanted to extend to Mr. Teeth in the office to at least raise the question about whether or not he would be receptive and want to do some additional briefing in this case.

[00:28:09] Speaker 00:
If it would help the court, we'd be happy to do that, but we are okay with resting on the argument.

[00:28:16] Speaker 01:
Okay.

[00:28:17] Speaker 01:
Thank you for that.

[00:28:18] Speaker 01:
Great.

[00:28:18] Speaker 01:
Great.

[00:28:18] Speaker 01:
Thank you.

[00:28:19] Speaker 01:
We thank both counsel for the cases submitted.

[00:28:21] Speaker 01:
Thank you.