[00:00:06] Speaker 03: Next case is Prime Datum versus Balder Electric, 2016, 1051. [00:00:14] Speaker 03: Mr. Lucci. [00:00:16] Speaker 02: Good morning. [00:00:17] Speaker 02: The board aired as a matter of law by failing to identify any credible reason why a person of ordinary skill who did not already have knowledge of the claim inventions would have consulted the cited publications and then combined them in the proposed manner. [00:00:32] Speaker 02: In fact, it's clear from the record of this re-examination that the examiner [00:00:36] Speaker 02: And then the board found the claimed inventions to be obvious only because they adopted Baldor's factually unsupported allegations regarding combination of the cited references. [00:00:46] Speaker 02: The board's finding of obviousness lacks substantial evidence that a person of ordinary skill who did not already know of the claimed inventions would have combined the respective teachings of them, that they would have done so in the proposed manner, and that doing so would have produced a claimed invention. [00:01:01] Speaker 00: The board made a lot of factual findings on the issue of motivation to combine. [00:01:06] Speaker 00: Which factual findings are you actually attacking? [00:01:11] Speaker 02: Well, I believe actually that there was very little on the issue of motivation to combine. [00:01:18] Speaker 02: The factual finding that I believe is germane is found at JA-15. [00:01:23] Speaker 02: The examiner's site, and I'm quoting here, [00:01:29] Speaker 02: Third full paragraph, the examiner cites ABB motor for teaching that direct drive permanent magnet motors are known and can replace traditional indirectly driven gearbox type motors in any application. [00:01:42] Speaker 00: Well, I mean, the board had a whole section in its opinion entitled Reasons to Combine, right? [00:01:55] Speaker 02: The board did, Your Honor? [00:02:01] Speaker 02: Are you referring to the right of appeal notice, perhaps? [00:02:08] Speaker 00: Well, I'm sorry. [00:02:09] Speaker 00: The board referred to those reasons to combine and said that they found all of them persuasive, correct? [00:02:16] Speaker 02: Yes. [00:02:17] Speaker 02: Then they said we would now find sufficient the arguments that were presented below by prime doubt. [00:02:22] Speaker 04: Right. [00:02:22] Speaker 04: So look at A21. [00:02:23] Speaker 04: There's a little section heading, Reasons to Combine, which says, [00:02:30] Speaker 04: What they said and what the examiner said, we basically endorse all of that. [00:02:33] Speaker 04: So you have to look through to what was in there. [00:02:36] Speaker 02: Correct. [00:02:36] Speaker 02: And what the examiner said, the reason to combine given by the examiner is found in the right of appeal notice at JA 2133. [00:02:47] Speaker 02: There's a section there, reason to combine. [00:02:51] Speaker 02: And it says, Pat Nonor argues that the reasons to combine the reference presented in the request are conclusory and unsupported. [00:02:57] Speaker 02: And they cite to our paper. [00:02:59] Speaker 02: The examiner disagrees as the request showed that the ABB motor references explicitly state that its direct drive permanent magnet motors provide efficiencies over gearbox-based indirect drive systems and can be used in any application where such indirect motors were used. [00:03:15] Speaker 02: And they cite Boudoir's request for reexamination, F31. [00:03:19] Speaker 02: So that's the section in the right of appeal notice entitled Reason to Combine. [00:03:23] Speaker 02: That was adopted by the board. [00:03:28] Speaker 02: And the error here by the board was a finding that... Why is that not enough? [00:03:38] Speaker 04: So there's something in the prior art that talks about efficiencies. [00:03:43] Speaker 02: Yes. [00:03:44] Speaker 02: Let me try to address that, Your Honor. [00:03:46] Speaker 02: The board's premise here was that persons of ordinary skill allegedly would have modified the system shown in the Smith of the Hartner references by using one of the motors found in the ABB motor brochure, and in so doing would have produced the claim of invention. [00:04:01] Speaker 02: But there's no evidence that persons of ordinary skill would have been motivated to combine the references for that reason, or that doing so would have produced the claim of invention. [00:04:09] Speaker 02: In fact, the evidence is directly the contrary. [00:04:11] Speaker 02: So let's consider the rejection. [00:04:13] Speaker 02: In entering the rejections, the board found that both Smith and Hartman disclosed systems in which a motor directly drives a fan. [00:04:20] Speaker 02: That's their finding. [00:04:22] Speaker 02: And it does so directly, rather than doing so indirectly. [00:04:28] Speaker 02: Now, as we noted in our briefing, we don't believe that there's adequate evidentiary support for the board's conclusion, but they concluded that. [00:04:34] Speaker 04: At least from the picture. [00:04:36] Speaker 02: And what the board relied upon were schematic pictures. [00:04:40] Speaker 02: diagrams that are very generic, overly generic, and don't provide adequate detail as to structures that are germane to these claims. [00:04:47] Speaker 02: But actually, an equally significant problem with the board's finding on Smith and Hartman showing direct drive systems is that that finding doesn't align with the motivation finding that I just read to you from the right of appeal notice, which was adopted by the board. [00:05:04] Speaker 02: And the reason is that the board's finding is the motivation [00:05:09] Speaker 02: talks about the alleged obviousness of replacing in an indirect system a motor that has a direct drive, taking an indirect system and putting a direct drive motor in there. [00:05:20] Speaker 00: They didn't. [00:05:20] Speaker 00: They weren't talking about using the actual motor. [00:05:23] Speaker 00: They were talking about using the teachings. [00:05:26] Speaker 00: There's an important distinction there. [00:05:30] Speaker 02: The statement in the read, Your Honor, [00:05:34] Speaker 02: that the motivation to do this is because the direct drive motor provides advantages over indirect drive systems. [00:05:43] Speaker 02: So the statement there is, is that one would take, and you find this in the board's decisions, specifically at JA15, they say this. [00:05:53] Speaker 02: They say the examer cites ABB motor for the teaching of direct drive permanent magnet motors and can replace traditional indirectly driven gearbox motors. [00:06:04] Speaker 02: There's a lack of alignment there. [00:06:05] Speaker 02: On the one hand, they're saying Smith and Cartman do disclose direct drive systems. [00:06:10] Speaker 02: On the other, they're saying the reason that someone would have modified the priority is because they would have wanted to use a direct drive motor in an indirect system. [00:06:18] Speaker 02: Well, there's a mismatch there. [00:06:20] Speaker 02: Why would someone's insight about what you could do with an indirect system be applicable to references which are alleged by the board to show direct drive systems of driving a fan? [00:06:34] Speaker 02: So there's a bit of a head-scratcher there. [00:06:37] Speaker 02: And the board appears to have gotten twisted around in its findings. [00:06:41] Speaker 02: It relied too much on the examiner, who relied too much on Baldor's allegations in its request for reexamination. [00:06:49] Speaker 02: The board's finding as the motivation, for example, cited to the right of appeal notice that I mentioned. [00:06:55] Speaker 02: The board and the examiner latched on to what Baldor said, when in fact the more careful analysis of the merits of Baldor's arguments might have led to a finding [00:07:04] Speaker 02: that wasn't such a non sequitur. [00:07:06] Speaker 02: Now, the cited page, the one that I referenced at 2133, that's the right of appeal notice. [00:07:14] Speaker 02: That cross-references Baldor's request for re-examination at page 31. [00:07:18] Speaker 02: And on that cited page in the request, Baldor mentions in a footnote that the ABB motor brochure contends that its disclosed motors can be used in any application [00:07:32] Speaker 02: in which, for example, squirrel cage motors with a gearbox normally would be used. [00:07:37] Speaker 02: But that footnote doesn't do anything to reconcile the board's findings on motivation on the one hand, and on the other hand, what Smith and Hartman teach in terms of being a directorized system. [00:07:46] Speaker 02: The ABB Motor brochure's statement about its motors can be used in any application is too generic an instance of commercial puffery to be given any weight. [00:07:56] Speaker 02: In this respect, it's important to remember that the ABB Motor brochure [00:08:00] Speaker 02: is an advertising piece prepared by Ballador's Co-Preparing ABV to increase its sales of motors and variable frequency drives. [00:08:09] Speaker 04: Can I ask you, within the same, what is it, RAN, to redirect your focus from page 2133 to a few pages earlier, 2128. [00:08:26] Speaker 04: This is page 23 of the RAN. [00:08:31] Speaker 04: which is also one of the pages that the board, in its little reasons to combine paragraph, cites and adopts. [00:08:39] Speaker 04: And that has the sentence at the bottom, 2128, at the bottom that says, it would have been obvious to replace this old indirect drive induction motor system with a permanent magnet motor direct drive system of claim 12, as shown in the references, because one of the references, ABB motor, [00:08:56] Speaker 04: expressly states that its purpose is to replace induction motors and eliminate gearboxes to improve efficiency and reduce maintenance. [00:09:05] Speaker 02: Yes, Your Honor. [00:09:06] Speaker 02: That sentence is consistent with the one I mentioned. [00:09:09] Speaker 02: It's talking about what would have been obvious to do to an indirectly driven system. [00:09:15] Speaker 04: Well, this sentence actually covers both. [00:09:18] Speaker 04: Direct indirect induction magnets. [00:09:22] Speaker 02: Your Honor, I'm just reading the beginning of that sentence. [00:09:25] Speaker 02: It would have been obvious to replace the old indirect induction motor system with a permanent magnet motor. [00:09:31] Speaker 02: I don't see anything in there that talks about replacing one type of direct drive motor with another. [00:09:40] Speaker 02: I'm just reading the sentence, Your Honor. [00:09:41] Speaker 04: Do you know what's this exhibit 9C that must be ABB motor? [00:09:46] Speaker 02: I don't, as I stand here, know what that is, Your Honor. [00:09:50] Speaker 02: But as I mentioned with respect to this ABB brochure, which is a sales piece to increase sales of the motors, there's no evidence of record indicating that those of ordinary skill would have regarded ABB's claim as anything other than a self-serving boast that should be regarded with suspicion. [00:10:06] Speaker 02: It's important on the issue of obviousness to think about the ABB motor brochure in that context. [00:10:11] Speaker 02: Imagine a person of ordinary skill in the art who didn't already know about the 028 patent. [00:10:16] Speaker 02: And they had Smith and Hartman in front of them. [00:10:19] Speaker 02: And they see that neither of those references discusses any problem with the systems that they show. [00:10:24] Speaker 02: So there's no reason, based on just Smith and Hartman, that a person of ordinary skill will be thinking of modifying them. [00:10:30] Speaker 02: Now, the allegation here by Balador and by the board is that ABB Motor would have changed all that. [00:10:36] Speaker 02: Really? [00:10:37] Speaker 02: Is it really credible, without any supporting testimony or other evidence, that a person of ordinary skill would have been so moved by a manufacturer's generic boast [00:10:46] Speaker 02: that his products can be used in any application, that a person of ordinary skill solely based on that boast would have modified the systems that Smith and Hoffman had separately touted. [00:10:56] Speaker 02: It simply isn't credible that ABB's boast would have motivated the proposed modification. [00:11:02] Speaker 02: And for at least that reason, the proposed combination of cited references lacks substantial evidence. [00:11:08] Speaker 02: I would like to reserve the remainder of my time. [00:11:12] Speaker 00: Before you sit down, I need to ask you one question. [00:11:14] Speaker 00: I don't really understand. [00:11:15] Speaker 00: the last section in your brief, or the section in your brief that probably doesn't call it objective indicia or secondary considerations, but you seem to be making that argument. [00:11:26] Speaker 00: And I never saw it below, that you ever made it below. [00:11:31] Speaker 00: So what is the point of that section? [00:11:36] Speaker 02: Which section, if you could direct me, Your Honor, to specifically your reading? [00:11:44] Speaker 00: Where's the page? [00:11:45] Speaker 02: You told me that I wrote in the brief. [00:11:50] Speaker 00: Yeah. [00:11:51] Speaker 00: Yes. [00:11:52] Speaker 00: I'm sorry. [00:11:52] Speaker 00: The blue brief. [00:11:53] Speaker 00: It's in your blue brief. [00:11:54] Speaker 00: Yes. [00:11:56] Speaker 00: Find the page. [00:12:01] Speaker 00: It's sort of a mysterious section near the end of your blue brief that seems to be arguing objective indicia, and yet I don't [00:12:11] Speaker 00: I never saw that argument presented below. [00:12:14] Speaker 02: Well, clearly, Your Honor, we would be relying upon whatever evidence is below. [00:12:19] Speaker 02: And we obviously couldn't expand the record on appeal. [00:12:23] Speaker 03: OK. [00:12:24] Speaker 03: Thank you. [00:12:24] Speaker 03: Mr. Luttrey and Mr. Hunt. [00:12:32] Speaker 01: Thank you. [00:12:32] Speaker 01: Good morning. [00:12:33] Speaker 01: May it please the court. [00:12:34] Speaker 01: Let me address the motivation to combine arguments that we've heard this morning. [00:12:38] Speaker 01: And I want to focus of the two [00:12:41] Speaker 01: perhaps primary references on Smith, which is at JA 1776. [00:12:46] Speaker 01: It's describing in its title a variable frequency drive and cooling tower. [00:12:51] Speaker 01: It's in the context of cooling tower. [00:12:53] Speaker 01: And it specifically says on this page for direct connect. [00:12:58] Speaker 01: And it says how it also it says, however, when a gearbox is used. [00:13:01] Speaker 01: So this reference Smith teaches, you can have a direct drive system or you can have a gearbox system. [00:13:08] Speaker 01: It also specifically states [00:13:10] Speaker 01: that an ACS800, this is on JA1777, is well suited for the industrial environment, and that's the drive. [00:13:20] Speaker 01: The ACS800 is specifically in the Smith reference. [00:13:25] Speaker 01: So Smith teaches a cooling tower that you can use either a motor with a direct drive or an indirect drive, and it also specifically says that the ACS800 [00:13:37] Speaker 01: Variable frequency drive is well suited for this application. [00:13:41] Speaker 00: Well. [00:13:41] Speaker 00: It says it's well suited for an industrial application Why is it that the? [00:13:47] Speaker 00: reference to cooling towers shouldn't be limiting when For using a cooling tower you have to have a particular configuration, and you have to have particular capability again if I particular configuration if you're referring to the [00:14:03] Speaker 01: weight and size arguments the prime data has made in the past, none of those are part of the claims. [00:14:09] Speaker 01: There aren't weight and size requirements in the claims themselves. [00:14:14] Speaker 01: And in fact, the ABB motor reference, the secondary motor reference, starting at JA186, even addresses some of those efficiencies on page JA189 when it says, [00:14:29] Speaker 01: to use this permanent magnet motor. [00:14:32] Speaker 01: Again, with the ACS800 drive, one of the specific things says space savings. [00:14:37] Speaker 01: So it does even motivate if your concern is space and weight. [00:14:42] Speaker 01: That is absolutely addressed in the ABB motor. [00:14:45] Speaker 03: Do you think there's general motivation to improve one's products by taking available possibilities that might do that? [00:14:54] Speaker 01: I'm sorry. [00:14:54] Speaker 01: I'm not sure I heard that. [00:14:56] Speaker 03: Do you think there's a general motivation to improve one's products by taking advantage of whatever other alternatives might exist in prior app? [00:15:10] Speaker 01: As a general statement, of course. [00:15:11] Speaker 01: I mean, I think that's true in all systems. [00:15:14] Speaker 01: We're not necessarily relying on that. [00:15:16] Speaker 03: In other words, even if the references don't say A should choose B or B should choose A. Of course. [00:15:23] Speaker 01: There has to be some motivation, agreed. [00:15:25] Speaker 01: There has to be some reason that you would look there. [00:15:28] Speaker 01: And again, that's contained well within Smith that says, first, you can have either of these two systems, direct drive or indirect. [00:15:35] Speaker 01: ABB Motor specifically says, as I think was mentioned here today, replaces gearbox or indirect systems. [00:15:44] Speaker 01: So you have a reference in Smith that says you can use either one. [00:15:48] Speaker 01: And we have a secondary reference, ABB, that says here is the motor that can go in and replace, for example, a gearbox system or can be used if you want a direct drive system. [00:15:59] Speaker 01: Prime Datum suggests that the prior art has to have some problem in the primary reference that's solved in the secondary reference that I don't think is a requirement of the law. [00:16:08] Speaker 01: There doesn't have to be a problem with the Smith [00:16:12] Speaker 01: configuration, for example, that the second reference ABB solves. [00:16:17] Speaker 01: There simply has to be a reason to combine the teachings so that you would result in the claimed invention. [00:16:23] Speaker 01: Smith says you can have a water cooling tower with a motor and gearbox or a direct drive. [00:16:30] Speaker 01: Doesn't say there's a problem with one or the other. [00:16:33] Speaker 01: If you choose a direct drive, one of ordinary skill in the art would easily go to ABB motor that says here is a direct drive system. [00:16:41] Speaker 03: Excuse me, my timer isn't running. [00:16:46] Speaker 01: Mine's not either. [00:16:47] Speaker 01: I just noticed, Your Honor. [00:16:49] Speaker 03: Shall we put you a 10? [00:16:51] Speaker 03: That is fine, Your Honor. [00:16:52] Speaker 00: I mean, this is, you have to concede, this is a bit of an odd obviousness finding, because we rarely see obviousness determination that requires reference to so many prior art references. [00:17:06] Speaker 00: I mean, this is, so you have to combine a whole bunch [00:17:10] Speaker 00: disparate pieces and parts. [00:17:12] Speaker 00: And so when you talk about motivation to combine that many things, you get further and further away from a typical obviousness analysis. [00:17:22] Speaker 01: Isn't that true? [00:17:23] Speaker 01: I certainly can't deny that the multiple references that are here is not typical. [00:17:28] Speaker 01: Although, again, the parties, and I believe the board, and I don't think it was disputed, effectively have said the ABB motor reference acts as a single reference. [00:17:35] Speaker 01: They did the same with the ACS. [00:17:37] Speaker 01: The board treated them as, I think, single references. [00:17:40] Speaker 01: And that's how it's been addressed on appeal. [00:17:42] Speaker 01: Even still, I think we have two and three in multiple references. [00:17:45] Speaker 01: And I would agree that that's not typical. [00:17:47] Speaker 01: But I don't think that that has been attacked either on appeal or at the board, that that makes it improper. [00:17:53] Speaker 01: And again, the key references, and the one that's attacked both today and in the briefing by Prime Day, the real issue is, was there a motivation to combine ABB Motor with either Smith or Hartman? [00:18:06] Speaker 01: That is really the issue that's being attacked, not whether some of these other references would there be a motivation to combine or not. [00:18:13] Speaker 01: I agree that it's not typical. [00:18:15] Speaker 00: While it was not really articulated this way, there seems to be a discussion of a long-felt need. [00:18:23] Speaker 00: It appears both in the enablement analysis and somewhat in this odd section at the end of the blue brief. [00:18:31] Speaker 00: Do you agree that there was a long-felt need for replacing [00:18:36] Speaker 01: I can't, Your Honor, and I certainly don't think that that has been developed well enough in the record to give credit that that would satisfy any long felt need evidentiary basis. [00:18:47] Speaker 01: I frankly found the last portion of the brief confusing myself. [00:18:50] Speaker 01: I think we noted that. [00:18:52] Speaker 01: But to give that credibility or the Rollins Declaration credibility to substantiate some long felt need, I think, would be a stretch. [00:19:00] Speaker 01: And I will note that most of the crime data argument [00:19:05] Speaker 01: is focused on the Rollins Declaration. [00:19:07] Speaker 01: Mr. Rollins is a named inventor. [00:19:09] Speaker 01: And what's very peculiar about that declaration, of course, is that although they use it to demonstrate both enablement and also to overcome the obviousness argument, there's no discussion in the declaration about either Smith or Hartman at all. [00:19:28] Speaker 01: It seems to me that Prime Datum says in the Rollins Declaration, this is what I, Mr. Rollins, did. [00:19:35] Speaker 01: This is what I did and the challenges I had, which speaks nothing at all to whether or not a person of ordinary skill in the art would be motivated to combine the teachings of one document, ABB Motor, with teachings of another document, Smith, or another document, Hartman. [00:19:52] Speaker 01: That's the issue that's before us. [00:19:55] Speaker 01: Is there a motivation to combine the teachings of those documents? [00:20:00] Speaker 00: Do you think that the board's findings with respect to motivation to combine [00:20:05] Speaker 00: are adequate when all they did was refer to your briefing and to some comments by the examiner? [00:20:12] Speaker 00: Don't you think they should have made their own findings? [00:20:15] Speaker 01: Well, it would certainly be more complete for us to say exactly which of those findings, perhaps. [00:20:20] Speaker 01: Although I think the conclusion, the only conclusion we can reach is they adopted all of them. [00:20:26] Speaker 01: But if there was something less than that, then they had presented them. [00:20:29] Speaker 01: Of course, it would be easier. [00:20:30] Speaker 01: But I don't think it's improper to say the arguments were made by this party here, and we agreed with those. [00:20:35] Speaker 01: positions as a shorthand. [00:20:39] Speaker 04: Did you know is that style of board opinion more common in the re-exam context than in the newly prevalent parties review context? [00:20:50] Speaker 01: I can't say from experience, Your Honor. [00:20:51] Speaker 01: I don't know. [00:20:52] Speaker 01: I think I only have a couple of minutes left. [00:20:54] Speaker 01: I would like to quickly address the enablement argument, if I may. [00:20:59] Speaker 01: I think the standard under agreement here by the parties is NRA right. [00:21:03] Speaker 01: as long as there's a reasonable explanation given by the Patent Office and the Board. [00:21:09] Speaker 01: And here we have two points. [00:21:11] Speaker 01: First, of course, we have the Rawlins Declaration, who described when he was doing his work combining a motor with a drive, he had, in his exact words, had to go through undue experimentation to find the selection of motor and drive. [00:21:27] Speaker 01: The Patent Office then also said, [00:21:29] Speaker 04: Is that precisely what he said? [00:21:31] Speaker 04: I thought he said, when I was working with a particular motor, there was undue experimentation required to figure out how to adjust that motor to make it work. [00:21:46] Speaker 04: Which all by itself wouldn't be enough, but the board went on. [00:21:49] Speaker 04: And you didn't show that working with others would have required less than that. [00:21:54] Speaker 01: Your recollection of the Rollins may be more precise than I stated. [00:21:58] Speaker 01: And you're also correct, however, Your Honor, that the board did continue and say, and we've read the 028 specification. [00:22:04] Speaker 01: And we don't see anywhere where you did describe the selection process for any particular motor or any particular drive. [00:22:13] Speaker 01: That certainly has to, in combination, satisfy the more than a centilla, the reasonable explanation burden that the patent office has to shift the burden back to prime datum. [00:22:24] Speaker 01: And I don't think there's any dispute that prime datum hasn't responded to that by trying to overcome and prove that the 028 patent does, in fact, satisfy the enablement requirement. [00:22:36] Speaker 01: Their entire tax [00:22:37] Speaker 01: is whether or not the Patent Office met the reasonable explanation standard in the first place. [00:22:42] Speaker 01: Combination of the statements of Mr. Rollins and his difficulties and the Patent Office saying it's not a Neo-2.8 patent must suffice. [00:22:53] Speaker 03: Thank you, Mr. Hunt. [00:22:54] Speaker 03: Thank you. [00:22:55] Speaker 03: Mr. Lutte, you have a little rebuttal time of one to three minutes. [00:23:04] Speaker 02: Thank you, Your Honor. [00:23:06] Speaker 02: Mr. Hunt mentioned that Smith talks about direct and indirect systems. [00:23:12] Speaker 02: That very well could be the case, and it has that. [00:23:14] Speaker 02: The problem is that the board didn't rely upon it for its disclosure of indirect. [00:23:19] Speaker 02: It relied upon it for its disclosure of direct. [00:23:23] Speaker 02: At the right of appeal notice at page 26, the board stated, the patent owner argues that the error in the rejections that include Smith were unpersuaded, at least for the reasons stated, by the examiner and requester. [00:23:36] Speaker 02: And that goes back to the right of appeal notice of 26. [00:23:40] Speaker 02: And at the right of appeal notice of 26, there's a reliance there that the examiner says Smith explicitly refers to direct connected fans. [00:23:48] Speaker 02: So whatever Smith happens to say about indirect systems, that wasn't what Ward was relying upon. [00:23:55] Speaker 02: There was mention of a general motivation to improve things that are in the art. [00:24:01] Speaker 02: That's true. [00:24:02] Speaker 02: Begs the question, how and in what way would you improve them? [00:24:06] Speaker 02: There's no indication here of what direction someone would take. [00:24:12] Speaker 02: It certainly isn't provided by the ABB Motor brochure. [00:24:16] Speaker 02: If you take a look at the board's decision, they got it sort of backwards. [00:24:19] Speaker 02: The first reference that they talk about [00:24:21] Speaker 02: is the ABB motor brochure. [00:24:22] Speaker 02: They devote four pages to that. [00:24:24] Speaker 02: That's the secondary reference in the rejection. [00:24:27] Speaker 02: They were using that as the tail and using that to wag the dog, so to speak. [00:24:32] Speaker 02: So here, there is a fair question of how would you have wanted to improve things. [00:24:38] Speaker 02: But the unanswered question is how. [00:24:40] Speaker 02: And based on the advertising puffery that's there in the ABB motor brochure and its general statement that could be used in any application, that is, in the context of substantial evidence, [00:24:50] Speaker 02: The mere centile of it is insufficient. [00:24:52] Speaker 02: That's all. [00:24:53] Speaker 03: KA 189 says the ABB system offers several valuable benefits. [00:24:59] Speaker 03: It's about five of them. [00:25:01] Speaker 02: It offers several what, Your Honor? [00:25:03] Speaker 03: Valuable benefits. [00:25:06] Speaker 02: So it still leaves open the question of how, if at all, someone reading Smith and Hartman would have modified those publications. [00:25:15] Speaker 02: Just someone saying that their motor is all for benefits is fair game to invite combination with any reference. [00:25:21] Speaker 02: And I think that would gut the law of obviousness. [00:25:25] Speaker 02: We also, in this context, there was unrebutted testimony of Mr. Rollins regarding the people wouldn't have been motivated. [00:25:35] Speaker 02: I understand the comment that there's a statement in there on enablement. [00:25:39] Speaker 02: I think Your Honor made the point that I would make. [00:25:42] Speaker 02: that the single aspect in which he had a problem, one type of motor from one manufacturer, was not adequate to support a lack of enablement rejection. [00:25:53] Speaker 02: Mr. Hunt referred to citations to the specification. [00:25:57] Speaker 02: There was no fact finding, though, about the level of skill in the art, the scope of the claims, the typical Wands factors, types of things that people would look at. [00:26:07] Speaker 02: So I see that my time is up. [00:26:09] Speaker 02: For the reasons stated, we believe that the board's decision should be reversed.