[00:00:00] Speaker 04:
Mr. Freitas.

[00:00:06] Speaker 01:
Thank you, Your Honor.

[00:00:06] Speaker 01:
May it please the Court.

[00:00:11] Speaker 01:
This Appeal presents a different issue, but also something that really goes to the heart of what must be done when obviousness issues are considered.

[00:00:23] Speaker 01:
The standard everyone knows and everyone agrees.

[00:00:26] Speaker 01:
The question is whether

[00:00:28] Speaker 01:
The challenger has carried the burden of proving that the claimed invention as a whole would have been obvious to a person having ordinary skill in the art.

[00:00:37] Speaker 01:
And the problem here is that Olympus didn't present evidence tailored to the level of ordinary skill.

[00:00:46] Speaker 02:
Even if we agree with you that, as in kinetic concepts, there is a fundamental absence of testimony from an expert with respect to what one of skill in the art would have understood,

[00:00:57] Speaker 02:
And that that's a problem.

[00:01:01] Speaker 02:
What about the board's finding that the 717 itself sort of cried out for the use of an algorithm and that therefore it would have been obvious, unlike in kinetic concepts where the two stood completely independently alone, the board found that here the patent itself said

[00:01:23] Speaker 02:
You could program it.

[00:01:25] Speaker 02:
You could use, essentially, an algorithm.

[00:01:27] Speaker 02:
Why wouldn't it make sense for one of skill and the art to look to the other art to find that algorithm?

[00:01:35] Speaker 01:
So there's a couple of sets of reasons why, Your Honor.

[00:01:38] Speaker 01:
The first one is that that process that you just described, Judge O'Malley, we think it's inconsistent with the rule of the court addressed in the Brand case and in Zirka.

[00:01:49] Speaker 01:
explaining what the role of the board is.

[00:01:51] Speaker 01:
The board evaluates evidence.

[00:01:53] Speaker 01:
It doesn't make it.

[00:01:54] Speaker 01:
And without evidence from an expert that it would have been significant to a person having ordinary skill in the art as defined, that those factors would have been relevant, we don't think there's a basis.

[00:02:07] Speaker 02:
We don't think there's any evidence.

[00:02:08] Speaker 02:
So you're saying that the board, or any trier of fact for that matter, anybody considering these issues, could not

[00:02:17] Speaker 02:
Put aside all these questions about the expert testimony and look solely at the art itself to look for the teacher.

[00:02:23] Speaker 01:
Not when the art rises above the ordinary average layperson standard.

[00:02:29] Speaker 01:
In a situation with complex technology, as we have here, and everybody agrees that it's above the average layperson standard.

[00:02:37] Speaker 01:
The finding by the board, which is what we advocated, is that a bachelor's degree and several years of industry experience is needed.

[00:02:44] Speaker 02:
Right, but you're sort of turning around the issue with kinetic concepts.

[00:02:47] Speaker 02:
There, the question was whether or not the testimony had been dumbed down enough.

[00:02:52] Speaker 02:
In other words, it wasn't clear whether someone with a lesser level of skill would have found it obvious.

[00:02:59] Speaker 02:
My question is, if you can look at the documents

[00:03:03] Speaker 02:
and somebody with even the minimal level of skill might find this obvious, wouldn't that be enough?

[00:03:13] Speaker 01:
In the hypothetical you just described, Judge O'Malley, where one could look at the art and understand from that lowest level, then yes, expert testimony wouldn't be required and the process would work.

[00:03:25] Speaker 01:
But that's the interesting thing about this case and how it differs from the others.

[00:03:29] Speaker 01:
In the other cases, the ones that they've cited, the ones we've cited, the problem had to do with what the proper standard would be.

[00:03:37] Speaker 01:
Someone was aiming high, someone was aiming low, and it would make a difference.

[00:03:41] Speaker 01:
But in the actual context of the case, sometimes it didn't.

[00:03:45] Speaker 01:
The Lytton case is an interesting one, because in Lytton, it was a summary judgment context.

[00:03:51] Speaker 01:
And what the trial judge did is said, I'm going to set the level of skill at the lowest possible level, because I think that is what is

[00:04:00] Speaker 01:
most favorable to the non-moving party, the patentee in that case.

[00:04:04] Speaker 01:
Now, in a situation like that, when the court adopts that stance and finds the patent obvious, well, it's pretty hard to say that there's going to be a problem with the level of skill.

[00:04:15] Speaker 01:
In your honor's hypothetical, what you suggested was a situation where one viewing the patent would be able to understand it with that lowest level, that average layperson standard.

[00:04:29] Speaker 01:
But those aren't the facts here.

[00:04:30] Speaker 01:
We have a finding by the board that the level of ordinary skill in the art is much higher than that, that it requires a bachelor's degree, that it requires some experience.

[00:04:40] Speaker 01:
So even though in a given case, it would be possible to simply look at the art and assess it from that stance, that's not possible under the facts of this case.

[00:04:53] Speaker 01:
The other problem there, Your Honor, with respect to

[00:04:57] Speaker 01:
the issue of simply looking at the patent and saying that there's a crying need for something.

[00:05:07] Speaker 02:
First of all, look at column five, beginning at line 14.

[00:05:13] Speaker 02:
Doesn't it say, basically, doesn't it refer to a programmed or programmable, making it adjusted

[00:05:24] Speaker 02:
So by programming it or making it programmable to automatically increase power delivered by the radio frequency power source, and then later refer to another ability to adjust the means with a program, doesn't that indicate that you would look somewhere to define what that program would be?

[00:05:47] Speaker 01:
It does suggest that there would be a program and that one would look somewhere.

[00:05:52] Speaker 01:
But without evidence, we don't know where that would be.

[00:05:54] Speaker 01:
And also, when we look at what the actual scope of the patent is, it wasn't one that absolutely called for it or that needed it.

[00:06:04] Speaker 01:
And there isn't evidence to support the idea, or even findings, to support the idea that one would have to go get it.

[00:06:11] Speaker 01:
What they did is they simply referred generically, the board that is.

[00:06:14] Speaker 01:
They referred generically to teachings.

[00:06:17] Speaker 01:
And the ones they cited certainly don't get the job done.

[00:06:20] Speaker 01:
So on the basis that the board can only be affirmed based on the fact findings that it made, those teachings, so-called teachings that they mentioned, they don't get the job done.

[00:06:32] Speaker 02:
When you say they don't get the job done, this is what they mentioned, right?

[00:06:36] Speaker 02:
The section I just read to you.

[00:06:40] Speaker 01:
I'm sorry, Your Honor.

[00:06:41] Speaker 01:
The section I just read to you, right?

[00:06:43] Speaker 01:
That's all they did is they pointed to how the device operates, the device of the 717, and they then mentioned that it uses a controller to manage power delivery.

[00:06:53] Speaker 01:
That doesn't say that the algorithm of the 546, what the combination involved, would be something that one of ordinary skill would adopt.

[00:07:03] Speaker 01:
But I submit that this line of reasoning doesn't work because they needed evidence

[00:07:11] Speaker 01:
of how this would work for a person having ordinary skill, and they didn't present it.

[00:07:16] Speaker 01:
So that's what the problem is.

[00:07:18] Speaker 02:
So your expert talked about the fact that there were algorithms known in the art at the time of the 716.

[00:07:25] Speaker 02:
Yes, Your Honor.

[00:07:27] Speaker 02:
And you're saying that those algorithms were just supposed to assume that therefore they had enough algorithms to look at?

[00:07:35] Speaker 01:
Well, Your Honor, in the context of this particular patent,

[00:07:39] Speaker 01:
The evidence shows that the 717 was perfectly effective for what it did.

[00:07:44] Speaker 01:
It didn't need to be changed.

[00:07:45] Speaker 01:
There wasn't any indication of a motivation to change it.

[00:07:49] Speaker 01:
There wasn't any indication of a reason why.

[00:07:52] Speaker 01:
What we have in effect is just hindsight.

[00:07:55] Speaker 01:
Because I don't think there was any dispute at all that the 717 was effective.

[00:08:00] Speaker 01:
That's certainly what our expert Dr. Tucker said.

[00:08:03] Speaker 01:
And I don't think we've got a chance.

[00:08:04] Speaker 02:
Effective with some algorithm.

[00:08:06] Speaker 01:
effective as it stands to do what it did.

[00:08:10] Speaker 02:
Well, he said that because there were algorithms known in the art at the time.

[00:08:16] Speaker 01:
Yes, Your Honor, but the point is not that the algorithm, and the algorithm we're describing here is a specific one they pulled out of the 546.

[00:08:26] Speaker 01:
Just any old algorithm doesn't invalidate the pattern.

[00:08:41] Speaker 04:
Do you want to save the rest of your time for rebuttal?

[00:08:45] Speaker 01:
There's just one more point I'd like to make right now, Judge Moore.

[00:08:48] Speaker 01:
And that is the various arguments that Olympus makes to try to overcome the absence of evidence, they don't work.

[00:08:56] Speaker 01:
And in particular, their reference to what Dr. Tucker says doesn't.

[00:09:00] Speaker 01:
Dr. Tucker didn't say the level of skill doesn't matter.

[00:09:04] Speaker 01:
What he said was that no matter the level of skill, he would not find the combination obvious.

[00:09:11] Speaker 01:
He did not think a person having skill at any level would find it obvious.

[00:09:16] Speaker 01:
So what he said cannot be changed or turned into what I think Olympus tries to change it to, the idea that the level of skill doesn't matter.

[00:09:26] Speaker 01:
Obviously it does, and there's a finding by the board.

[00:09:28] Speaker 01:
And I'll save the rest of my time.

[00:09:31] Speaker 04:
Ms.

[00:09:32] Speaker 04:
Fishman?

[00:09:38] Speaker 03:
Thank you, Your Honor.

[00:09:40] Speaker 03:
So first, taking up the argument of level of skill in the art.

[00:09:46] Speaker 03:
Here, just to be clear, there's never been a showing that it matters.

[00:09:51] Speaker 04:
In fact, PST's expert admitted it didn't matter.

[00:09:54] Speaker 04:
The motivation of clients would have no impact.

[00:09:56] Speaker 03:
Correct.

[00:09:57] Speaker 03:
And at bottom, PST's obviousness argument below and Dr. Tucker's testimony about obviousness

[00:10:04] Speaker 03:
was all based on the content and understanding of the 717 reference and a belief on their part that because it disclosed forming a vapor layer before avoiding a vapor layer it in essence taught away from itself.

[00:10:18] Speaker 03:
And for that reason he found no one would combine at any level because he had a different reading of the art itself.

[00:10:24] Speaker 03:
This whole business about failure to explicitly define the level of skill in the art

[00:10:30] Speaker 03:
It's immaterial.

[00:10:31] Speaker 03:
It's immaterial to the board's determination that these claims were obvious.

[00:10:35] Speaker 02:
Well, it's not immaterial to the fact that the other side's expert's testimony essentially needs to be thrown out, because it never spoke to what one skill in the art would understand at any given point in time.

[00:10:51] Speaker 03:
That's up to the fact finder to determine whether or not there's still relevance and probity to Mr. O'Dell's testimony.

[00:10:57] Speaker 03:
I assume you're talking about Mr. O'Dell's testimony because he did not offer an explicit definition of the level of skill in the art.

[00:11:04] Speaker 03:
But there is precedent for a court crediting expert testimony even where there is no explicit definition of level of skill in the art, where it's not material to the opinions that are being presented.

[00:11:15] Speaker 02:
Well, that's usually because the person was

[00:11:18] Speaker 02:
talking about a lower level of skill in the art rather than a higher level of skill, talking from the standpoint?

[00:11:25] Speaker 03:
Or it could be that the fact finder determines that what they're offering testimony on, for example, the content of the art or what it teaches, isn't impacted by the statement, whether or not somebody has a PhD or merely a bachelor's degree and two years of working experience.

[00:11:40] Speaker 03:
Here, the other point we would make is that, you know,

[00:11:44] Speaker 03:
Mr. Freitas said everybody agrees that this requires expert testimony.

[00:11:48] Speaker 03:
Everybody agrees this is above the level of a lay person.

[00:11:54] Speaker 03:
There's no such agreement or session here.

[00:11:57] Speaker 03:
We agree that it's appropriate to define the level of skill as their expert, Dr. Tucker, did.

[00:12:02] Speaker 03:
which is with a bachelor's degree and some working experience.

[00:12:05] Speaker 03:
This is not a PhD in molecular biology.

[00:12:07] Speaker 03:
It's not a PhD in electrical engineering.

[00:12:10] Speaker 03:
This is somebody who's graduated college and has been working for a while.

[00:12:13] Speaker 03:
And there's been no showing or reason to think this is different than any of the other cases that are cited in the briefs where the technology was equally accessible or equally complex, depending on how you want to characterize it.

[00:12:26] Speaker 04:
OK, can you move on to the motivation to combine?

[00:12:28] Speaker 03:
Absolutely.

[00:12:29] Speaker 03:
So on reason to combine,

[00:12:31] Speaker 03:
Because a few things, first of all, the board properly found that every limitation in claim 17, which is the only claim at issue on this appeal, is disclosed in the priority record.

[00:12:43] Speaker 03:
And to be clear, because it's a means plus function claim, every limitation and the function of the increasing means is all disclosed in the 717 reference.

[00:12:54] Speaker 03:
The only thing that's not explicitly disclosed

[00:12:57] Speaker 03:
is the algorithm by which you would increase power at a predetermined rate from the initial level.

[00:13:02] Speaker 03:
Now the 717 discloses both manual operation and automatic or digital controller.

[00:13:08] Speaker 03:
If you're going to run it with a digital controller, as your honor Judge O'Malley pointed out, it screams out for an algorithm.

[00:13:16] Speaker 03:
You cannot run it without an algorithm, and that's not a disputed point.

[00:13:21] Speaker 03:
So then the question is, is there reason to combine it with a looping algorithm?

[00:13:26] Speaker 03:
Because it's a means-plus-function claim, in order to anticipate or obviate, we need to show that one of ordinary skill in the art would have had reason to combine it with the algorithm set forth in the 527 patent itself, which was a looping algorithm, meaning you check to make sure what the power is, what the impedance is, and then you continue to... But there are lots of different ways, lots of different algorithms you could use to accomplish what is being discussed here in column five.

[00:13:50] Speaker 03:
There were numerous algorithms in the art.

[00:13:54] Speaker 03:
And Dr. Tucker, PST's expert, testified that as long as you had tested to determine the maximum power level that you don't want to get to or exceed, an ordinarily skilled artisan could program an RF generator with an algorithm or a program to increase power to predetermine the rate.

[00:14:13] Speaker 02:
So what testimony do you have that says they would particularly pick this kind of algorithm?

[00:14:18] Speaker 03:
Well, first of all, I don't think legally under KSR it's necessary that we show that it have to choose algorithm A versus algorithm B. If it's one of a number of known solutions in the art to the problem and one would have a reason to try it, that should be enough.

[00:14:39] Speaker 03:
In fact, the suggestion that

[00:14:43] Speaker 03:
But, so two points there.

[00:14:45] Speaker 03:
First, legally, where they're, citing now KSR for a moment, where there's a design need or market pressure to solve a problem and there are a finite number of identified predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp.

[00:15:02] Speaker 03:
There's testimony, these were all within the technical grasp of ordinarily skilled artisans, again, from PST's expert.

[00:15:07] Speaker 03:
In that instance, the fact that a combination was obvious to try might show that it's obvious under section 103.

[00:15:13] Speaker 03:
But more than that, to the factual question of why would they go for a looping algorithm?

[00:15:17] Speaker 03:
Why would one of skill and the art go for a looping algorithm?

[00:15:20] Speaker 03:
The whole point of US 717, the base reference for the combination, is that you identify the level of power, maximum power, so that you can apply a lower rate of power increase.

[00:15:34] Speaker 03:
The reason you do that is so that you don't

[00:15:36] Speaker 03:
hit a maximum impedance or maximum power level to form the vapor layer, which it discussed as a problem.

[00:15:43] Speaker 03:
So in that context, it makes all the sense in the world that one of skill and the art would select a feedback algorithm.

[00:15:49] Speaker 03:
That's all a looping algorithm is, a feedback algorithm where you can monitor impedance or monitor power

[00:15:56] Speaker 03:
while you're increasing your rate of power from an initial level at a predetermined rate.

[00:16:00] Speaker 03:
That's all that the 527 patent discloses.

[00:16:03] Speaker 03:
It doesn't disclose the particular rate, the initial level, any of those details.

[00:16:07] Speaker 03:
It just says, hey, you might want to check your power or your impedance

[00:16:11] Speaker 03:
to make sure you're not going too high too quickly.

[00:16:15] Speaker 03:
So again, as KSR tells us, we're not to suspend our common sense in considering the art of record and whether or not one of ordinary skill would have had a reason to try these things.

[00:16:28] Speaker 04:
The reason to try idea, I understand.

[00:16:31] Speaker 04:
One of the things that bothered me about the board's opinion when I read it is I wasn't positive, for sure.

[00:16:38] Speaker 04:
It's not crystal clear.

[00:16:40] Speaker 04:
But one of the things that concerned me was that the board may have been treating this like a decision that if two references are both within the analogous arts, namely same field of endeavor, reasonably pertinent to the same problem they're trying to solve, game over.

[00:16:58] Speaker 04:
Obviousness proven.

[00:16:59] Speaker 04:
And that's, in fact, what the patentee argued at one point to the board.

[00:17:02] Speaker 04:
And the board acknowledged that in its opinion.

[00:17:04] Speaker 04:
The patentee argues, blah, blah, blah, blah.

[00:17:06] Speaker 04:
And what it never does is say, well, we're not

[00:17:10] Speaker 04:
It never says the patentee is right, analogous arts isn't enough, and then goes on the same motivation to combine.

[00:17:18] Speaker 04:
So I guess my question to you is, I would find it very troubling if everything within the analogous arts satisfies the motion to combine test.

[00:17:29] Speaker 04:
Would you?

[00:17:30] Speaker 03:
Yes, Your Honor.

[00:17:31] Speaker 03:
And I think that what you have to appreciate is in this context, the principal argument below for non-obviousness

[00:17:38] Speaker 03:
was the teaching away argument.

[00:17:40] Speaker 03:
And the teaching away argument and the reason to combine argument are basically, in this case, mirror images of the same thing, which is the board goes into... Well, it can't... Hold on though.

[00:17:50] Speaker 04:
It can't be that if something doesn't teach away, then there's all automatically a reason to combine it either, right?

[00:17:56] Speaker 03:
That can't... That's fair enough.

[00:17:57] Speaker 03:
But here, where the seven... So the issue was, does the 717 itself suggest the combination?

[00:18:03] Speaker 03:
And if you accepted PST's argument below,

[00:18:06] Speaker 03:
which is that, no, really because the 717 discloses forming a vapor layer to determine maximum power, therefore it doesn't suggest that you would want to combine it with an algorithm to increase power at a predetermined rate.

[00:18:20] Speaker 03:
That was, again, Mr. Freitas' position up here just a moment ago, which is he says, why would you modify it?

[00:18:27] Speaker 03:
The board rejected that line of argument to say you're not modifying it or making it for a different purpose based on the fact that the 717 itself discloses that vapor layer is a problem and that their expert acknowledges the ultimate objective of it is to avoid the formation of the vapor layer.

[00:18:44] Speaker 03:
It rejects the teaching away argument.

[00:18:46] Speaker 03:
Having done that then, it is not a long jump.

[00:18:52] Speaker 04:
You don't have to even go so far as long jump.

[00:18:54] Speaker 04:
I think you're selling your argument even a little bit short,

[00:18:57] Speaker 04:
If the 717 suggests you don't want a vapor layer and the 546 articulates an algorithm that would allow you to avoid creation of a vapor layer, isn't that actually affirmative evidence?

[00:19:10] Speaker 03:
Well, so what the 546 discloses to be accurate is all it is, is it's a looping algorithm for increasing power at a predetermined rate from an initial level.

[00:19:19] Speaker 03:
It doesn't discuss vapor layers.

[00:19:22] Speaker 03:
The 717 that talks about

[00:19:24] Speaker 03:
You want to do this to avoid a vapor layer, but nobody in any patent, including the 527 patent, tells you what the values are for doing it.

[00:19:31] Speaker 03:
You have to test, form the vapor layer, figure it out, and program the algorithm.

[00:19:35] Speaker 03:
That's why the only thing that is missing from the 717 is the algorithm for increasing power at a predetermined rate.

[00:19:42] Speaker 04:
I have a really dumb question, but like how many... I understand PST's experts said people knew about the 546 and would know about that algorithm.

[00:19:50] Speaker 04:
Yes.

[00:19:50] Speaker 04:
That's done.

[00:19:52] Speaker 04:
And I also understand that there's testimony that there were a number of known possible algorithms.

[00:19:56] Speaker 04:
How big a number?

[00:19:57] Speaker 04:
Is there anything in the record?

[00:19:58] Speaker 04:
Are we talking thousands?

[00:19:59] Speaker 04:
Because you understand.

[00:20:00] Speaker 04:
in terms of there's a motivation to try, the number of options, the larger the number of options, the more concerning it becomes to me about the motivation.

[00:20:09] Speaker 03:
So there's no record of other algorithms.

[00:20:13] Speaker 04:
But there is some testimony, isn't it, that there are known algorithms, I thought.

[00:20:16] Speaker 03:
Yes.

[00:20:17] Speaker 03:
So what Dr. Tucker's point was is the algorithm's no big deal dummy was basically what he was saying.

[00:20:24] Speaker 03:
Any ordinarily skilled artisan could write the algorithm if they knew what the values were, you know, heck, they, you know, any lay, not lay person, but anybody who'd been working as an engineer could even write it.

[00:20:37] Speaker 03:
Yes, there were known algorithms, and he even said yes.

[00:20:40] Speaker 03:
Technically, it was well within the ability of one to combine the 546 algorithm with the 717 patent.

[00:20:46] Speaker 03:
But to answer your honor's question, it's not like there's exhibits listing other algorithms.

[00:20:53] Speaker 03:
And in fact, our position originally when we filed the petition was it should be anticipated because this should have been known.

[00:20:59] Speaker 03:
And the board said, no, no, no.

[00:21:00] Speaker 03:
We need an explicit disclosure.

[00:21:02] Speaker 03:
And that was the 546.

[00:21:03] Speaker 03:
It was an explicit disclosure of a looping algorithm.

[00:21:07] Speaker 03:
And that's the only algorithm that we put in the record.

[00:21:10] Speaker 00:
Ms.

[00:21:10] Speaker 00:
Fishman, I have one question.

[00:21:12] Speaker 00:
Is there any question that the board

[00:21:14] Speaker 00:
All of the claims at issue, claim 17, plus the dependent claims stand or fall on the question of whether the board correctly combined the 717 and the 546?

[00:21:26] Speaker 03:
That's correct.

[00:21:26] Speaker 03:
There were no additional arguments raised by PST about the unpatentability of the claim.

[00:21:32] Speaker 03:
So it rises and falls on the reason to combine on 717 and 546 of claim 17.

[00:21:41] Speaker 04:
Anything else, Your Honors?

[00:21:42] Speaker 04:
No, thank you very much.

[00:21:44] Speaker 04:
Okay, thank you.

[00:21:45] Speaker 04:
Mr. Freitas, a little bit of rebuttal time.

[00:21:55] Speaker 00:
Mr. Freitas, just one question.

[00:21:56] Speaker 00:
Do you do agree with Ms.

[00:21:57] Speaker 00:
Fishman, with her response to my last question?

[00:22:02] Speaker 01:
Yes, I do, Your Honor.

[00:22:05] Speaker 01:
With respect to the points that

[00:22:08] Speaker 01:
Ms.

[00:22:08] Speaker 01:
Fishman made, as she read from KSR, there is no finding that there's only a finite number of algorithms.

[00:22:15] Speaker 01:
There are no findings at all in the obvious to tri zone.

[00:22:20] Speaker 01:
So there isn't a basis for upholding what the board did on that theory.

[00:22:25] Speaker 01:
There's no common sense finding.

[00:22:27] Speaker 01:
That's not where the board went.

[00:22:29] Speaker 01:
What is being said is different.

[00:22:31] Speaker 01:
The board didn't say anything.

[00:22:33] Speaker 01:
The problem we have is like in Black and Decker.

[00:22:37] Speaker 01:
where the board said almost nothing.

[00:22:40] Speaker 01:
And this court has said that those kind of obvious determinations are not good enough.

[00:22:47] Speaker 01:
But there is still, which Olympus hasn't answered, the fundamental problem.

[00:22:55] Speaker 01:
There's no evidence that they presented.

[00:22:57] Speaker 01:
They could have very simply had Mr. O'Dell tie his testimony.

[00:23:03] Speaker 01:
to the level of skill eventually found by the board or to another level.

[00:23:08] Speaker 01:
They didn't do that.

[00:23:09] Speaker 01:
This case is not like the other cases where there are disputes about what the level of skill is, and an assessment can be made as to whether it makes a difference.

[00:23:19] Speaker 01:
In this case, it has to make a difference.

[00:23:22] Speaker 04:
Well, your expert said it doesn't make a difference.

[00:23:24] Speaker 01:
He said that as to his opinion, it doesn't make a difference.

[00:23:26] Speaker 01:
He did not say, Your Honor, that the level of skill doesn't matter at all.

[00:23:31] Speaker 01:
What he said, he was asked specific questions about what he thought.

[00:23:38] Speaker 01:
For example, A1272, would applying a higher level of skill in the art to your analysis have changed your opinion?

[00:23:48] Speaker 01:
No, I don't think so.

[00:23:50] Speaker 01:
I mean, these don't fit.

[00:23:53] Speaker 01:
The 546 doesn't fit with the 717.

[00:23:55] Speaker 01:
So the questions were tied.

[00:24:00] Speaker 01:
very specifically to his opinion and to the idea, more importantly, that it wouldn't have been obvious with a higher level of skill.

[00:24:09] Speaker 01:
He did not say that the level doesn't matter at all.

[00:24:14] Speaker 01:
And that's how this case is different.

[00:24:16] Speaker 01:
There's no evidence.

[00:24:17] Speaker 01:
Of course it matters.

[00:24:19] Speaker 01:
When there's a complete failure of proof, it always matters.

[00:24:23] Speaker 01:
And that's where we are in this case.

[00:24:26] Speaker 01:
The other points that were made about what the board might have done

[00:24:30] Speaker 01:
or what someone might have done under a different standard, under a different level of ordinary skill, those will not get the job done for Olympus because they're not supported by evidence or findings by the board.

[00:24:43] Speaker 01:
Thank you.

[00:24:45] Speaker 04:
Thank both counsel.

[00:24:47] Speaker 04:
The case is taken under submission.