[00:00:03] Speaker 05:
Good morning, ladies and gentlemen.

[00:00:05] Speaker 05:
We have three argued cases before the court this morning, all on decisions relating to patent matters, and all as appeals from decisions of the Patent Trial and Appeal Board.

[00:00:22] Speaker 05:
The first case before the court is case number 161895, Autoliv ASP versus Hyundai Mobus.

[00:00:32] Speaker 05:
It's my understanding

[00:00:33] Speaker 05:
Mr. Archie, that you want three minutes for rebuttal, is that correct?

[00:00:38] Speaker 05:
That's right.

[00:00:39] Speaker 05:
Okay.

[00:00:40] Speaker 05:
Oh, it's achy.

[00:00:42] Speaker 05:
Achy.

[00:00:43] Speaker 05:
All right.

[00:00:44] Speaker 05:
No R. No R. All right.

[00:00:47] Speaker 05:
You may begin.

[00:00:54] Speaker 01:
Your Honors, may it please the Court, my name is Wes Ackie and I represent Appellant Autolieve ASP, Inc.

[00:00:59] Speaker 01:
With me is my colleague Keith Broyles.

[00:01:01] Speaker 01:
He will be arguing the subsequent 1896 appeal.

[00:01:05] Speaker 01:
At issue on this appeal, as well as the 1896, are patents directed to airbags, a highly sophisticated and complex technology.

[00:01:13] Speaker 01:
Hopefully no one on this panel has been in a car accident and seen firsthand how airbags operate, but if you have, you will appreciate the speed in which airbags deploy.

[00:01:21] Speaker 01:
As the experts in the IPR testified, airbags reach full deployment in a period of approximately 30 milliseconds, which as one of the experts noted is less than the blink of an eye.

[00:01:30] Speaker 01:
Because of the speed in which airbags deploy, a host of design considerations must be taken into account.

[00:01:34] Speaker 02:
In the blue brief at 24, you say,

[00:01:38] Speaker 02:
Miss Velovich even admitted that Tajima's fixed vents do not vent during obstructive deployment.

[00:01:45] Speaker 02:
And in support of that, you cited JA 1444 to 46.

[00:01:49] Speaker 02:
When I looked at that, it appeared to me that she only said, and I'm quoting this, it could be possible at 1445.

[00:01:58] Speaker 02:
I didn't find anything where she explicitly admitted that.

[00:02:02] Speaker 02:
Do you have anything in the record where she does?

[00:02:05] Speaker 01:
I think the record site that you identified is the evidence on that.

[00:02:10] Speaker 01:
Well, that's not an explicit admission.

[00:02:14] Speaker 01:
She says it could be.

[00:02:16] Speaker 01:
Could not be.

[00:02:17] Speaker 01:
That the fixed vent will not work with obstruction in Tajima?

[00:02:23] Speaker 02:
She says, you say she admitted that the

[00:02:28] Speaker 02:
Tajima's fixed vents do not vent during obstructed deployment.

[00:02:34] Speaker 01:
I think in the context of that deposition, she was acknowledging that the teaching of Tajima stated that in some circumstances, the fixed vents would not function when they encountered an obstruction.

[00:02:53] Speaker 01:
Back to the problem of the 653 patent.

[00:02:57] Speaker 05:
One of the things I have a problem with is that it seems like we're not really differentiating between these various claims.

[00:03:05] Speaker 05:
In other words, you're debating the temporary releasable feature and you or the temporary holding feature and yet the description of that feature in claim one

[00:03:24] Speaker 05:
and claim 28 is different than the description of that feature in claim 20.

[00:03:31] Speaker 05:
Am I right on that?

[00:03:34] Speaker 01:
Yes, claim 20 specifies the type of releaseable temporary holding fixture to be stitching.

[00:03:41] Speaker 01:
Whereas the other independent claims do not specify stitching, they're broader.

[00:03:46] Speaker 05:
Okay, so that would mean that the

[00:03:50] Speaker 05:
dependent claims that follow from claim 20 would also have to be narrow, correct?

[00:03:54] Speaker 01:
That's correct.

[00:03:55] Speaker 05:
And yet, you seem to be buying into this notion that this broader construction is acceptable as a representative, but it doesn't seem to me that it is.

[00:04:06] Speaker 01:
I would agree with you that it's not representative of all the claims.

[00:04:10] Speaker 01:
I would say that it's representative of the broader construction being representative of claims 1 and 35, but not claims 20 and the dependent claims that specify tax stitching or stitching.

[00:04:19] Speaker 04:
Did you argue that separately?

[00:04:21] Speaker 01:
No, I think we were focused on the independent claims that do not specify tax stitching.

[00:04:31] Speaker 04:
argue to save the stitching claims even if you lose on the other claims?

[00:04:37] Speaker 01:
No, that's not the case, Your Honor.

[00:04:39] Speaker 04:
Our position with the releasable temporary holding feature is that none of the prior art of record... Right, right, I get that, but it seems like there's some distinction in the claims between some that use a broader language and some that actually require stitching.

[00:04:53] Speaker 04:
I didn't remember reading in the blue brief that you made any distinction between the two.

[00:04:57] Speaker 04:
It seems like you're making one overall argument.

[00:05:00] Speaker 01:
I think that's correct, your honor, yes.

[00:05:02] Speaker 04:
So if we disagree with you on the proper construction and think the board was right, is there any reason for us to...

[00:05:10] Speaker 04:
look at this narrower claim?

[00:05:12] Speaker 01:
No, I think they all rise and fall together.

[00:05:15] Speaker 01:
Stitching is clearly in the prior art, so if the argument regarding whether that stitching could apply to the cushioned membrane as required by the claims, if that doesn't carry the day, then I think all the releasable temporary holding features rise and fall together.

[00:05:42] Speaker 01:
We've touched on the fixed vent and the releaseable temporary holding features.

[00:05:49] Speaker 01:
I would like to now talk about the diffuser limitation.

[00:05:52] Speaker 01:
The diffuser limitation is recited in independent claim 35 as well as dependent claims 26 and 33.

[00:05:58] Speaker 01:
The claims of the 653 patent don't just say diffuser.

[00:06:01] Speaker 01:
They recite a diffuser that is configured to provide a specific function.

[00:06:06] Speaker 01:
More specifically, those claims recite a diffuser that is configured to redirect inflation gas to a closing.

[00:06:11] Speaker 02:
Isn't your problem on diffuser that the PTAB considered, they said, considered these arguments in supporting expert testimony and determined they were unpersuasive?

[00:06:21] Speaker 02:
Really, you're asking us to reweigh the evidence.

[00:06:24] Speaker 01:
I don't think it's a reweighing of the evidence because I think if your honors look at the evidence of record for the diffuser, which for Mobus' expert comes in appendix site 756, you will see, well, there's a couple of problems.

[00:06:39] Speaker 01:
First, there's no clear motivation to combine at all.

[00:06:43] Speaker 01:
In fact, if you look at appendix 756, you will see that the entirety of the motivation to combine

[00:06:53] Speaker 01:
evidence is a single paragraph from Movis's expert that says you would combine Tajima with a new Wallinan and Penisham quote, based on the similarities between those airbag modules and because Tajima quote, would improve the airbag module.

[00:07:08] Speaker 01:
That's it.

[00:07:09] Speaker 01:
That they are similar and one would improve the other.

[00:07:11] Speaker 01:
There's no further explanations provided.

[00:07:13] Speaker 01:
So we believe this fact is very analogous to the obvious analysis that was vacated a couple of weeks ago by this court in personal web technologies.

[00:07:22] Speaker 01:
In that opinion, the court held that it was not enough to simply say that a skilled artisan, once presented with two references, would have understood that they could be combined.

[00:07:30] Speaker 01:
More analysis from the PTAB is needed, i.e.

[00:07:32] Speaker 04:
Well, wait a minute.

[00:07:33] Speaker 04:
I mean, is that case?

[00:07:35] Speaker 04:
I'm sorry.

[00:07:36] Speaker 04:
I don't actually remember the details of that case, but it sounds like from what you're reading to me that our criticism there was that PTAB made that conclusion.

[00:07:44] Speaker 04:
But here, there's an expert saying that that's enough.

[00:07:49] Speaker 04:
Isn't that different?

[00:07:52] Speaker 04:
expert testimony that the board can rely on, even if it is somewhat cursory?

[00:08:01] Speaker 01:
There may be a slight distinction there, but I think at the end of the day, there has to be some evidence of an actual motivation to combine.

[00:08:08] Speaker 04:
And why is it expert testimony that a skilled artisan would do this because of the similarities sufficient?

[00:08:19] Speaker 01:
We just don't think that rises to the level of sufficient motivation to combine.

[00:08:24] Speaker 01:
Simply saying that airbags are similar.

[00:08:26] Speaker 02:
You argue that Seymour doesn't provide a motivation because, quote Seymour, this is at 38, Seymour's airbag housing or envelope is directed to a wholly separate purpose, airbag storage.

[00:08:40] Speaker 02:
Do you have any authority supporting the proposition that a person of skill couldn't be motivated to combine references

[00:08:47] Speaker 02:
solely because of a reference's purpose?

[00:08:51] Speaker 01:
I don't see any.

[00:08:52] Speaker 01:
No, you're on and off the top of my head.

[00:08:53] Speaker 01:
I think Seymour is in reference to the releasable temporary holding feature limitation.

[00:08:58] Speaker 01:
In that situation, what the PTAB has done is take the stitching in a fabric envelope, which is not associated with the airbag module, and suggest that

[00:09:10] Speaker 01:
the use of stitching in that context would somehow motivate one of skill and the art to change these tack stitching from Walnut and Pincham.

[00:09:19] Speaker 01:
And A, there's no evidence in the record at all from Mobus' expert that one would do that.

[00:09:25] Speaker 01:
This is something that the PTAB came up on its own.

[00:09:28] Speaker 01:
The Mobus' expert did not even discuss Seymour.

[00:09:31] Speaker 01:
that evidence weighed with the auto lead expert made it very clear that one of skill in the art would not look to something like a fabric envelope in Seymour and somehow be motivated to combine the tax stitching from Wellman and Penishaw to meet the claim language.

[00:09:48] Speaker 02:
Again, do you have authority for that proposition, that purpose matters?

[00:09:56] Speaker 01:
Your Honor, I can't think of a case off the top of my head, but I will

[00:10:00] Speaker 01:
So I'm going to touch back on the diffuser limitation backing claims 35, 26, and 33.

[00:10:23] Speaker 01:
Again, a review of the factual record shows that substantial evidence does not exist to support the board's obviousness finding with respect to the diffuser limitation.

[00:10:32] Speaker 01:
First, combining the diffuser of Tejima with the airbags of a new penisham or wallanen does not result in an airbag that satisfies the diffuser limitation of the 653 patent.

[00:10:41] Speaker 01:
Every figure of the 653 patent, including Figure 1, which is shown in Appendix 48, illustrates how the diffuser is configured such that the side openings are designed to redirect the gas to the closable vents located on the sides of the airbag cushion so that the gas can rapidly exit, as required by the claims.

[00:10:58] Speaker 01:
The diffuser of the 653 patent is further equipped with a hole on top of the diffuser labeled 134.

[00:11:03] Speaker 01:
That hole is important because it allows the front of the airbag to propel forward so that the air is capable of fully inflating when there is no obstruction encountered.

[00:11:11] Speaker 01:
In Tajima, however, the diffuser openings are directed to the sidewalls of the airbag, and the closable vent is located above the rectifying crack.

[00:11:19] Speaker 02:
So are you arguing that the PTAB's constructions of diffuser are unreasonably broad?

[00:11:27] Speaker 01:
No, Your Honor.

[00:11:29] Speaker 01:
The argument is that the PTAB did not

[00:11:34] Speaker 01:
account for the full scope of the claims.

[00:11:36] Speaker 01:
I guess that is another way of saying they're too broad.

[00:11:39] Speaker 01:
They simply were reading as a diffuser in general without looking at the following language, which requires that the diffuser direct the gas to the closable vents such that it can rapidly exit.

[00:11:49] Speaker 01:
You are correct, honor.

[00:11:50] Speaker 01:
I think it's an overly broad interpretation of diffuser.

[00:11:53] Speaker 03:
Is the diffuser in your invention

[00:11:57] Speaker 03:
different in physical structure than the diffuser in Tajima?

[00:12:02] Speaker 01:
Absolutely.

[00:12:02] Speaker 01:
That's a good question.

[00:12:03] Speaker 01:
So the diffuser in Tajima is simply a, it's called a rectifying fabric.

[00:12:08] Speaker 01:
It's simply a looped over fabric that has openings only on the sides.

[00:12:13] Speaker 01:
And those sides are only directed towards the side of the airbags.

[00:12:17] Speaker 01:
our diffuser, the diffuser claimed in the 653 and illustrated in the 653, if you look at Figure 1 on Appendix 48, you'll notice that in addition to the side openings, which are directed towards the closable vents, it also has an opening on top.

[00:12:31] Speaker 01:
And that opening on top is what allows the front of the bag to propel forward so that if there's no obstruction... But yours is made of...

[00:12:39] Speaker 04:
structured or fashioned in the same way with some kind of cloth or something like that.

[00:12:43] Speaker 04:
That's generally how it's done, yes.

[00:12:45] Speaker 04:
So they're similar except yours has an opening on top instead of just to the sides.

[00:12:50] Speaker 01:
That's one aspect that it has an opening on top and then the other aspect is where the side openings of the diffuser are directed.

[00:12:58] Speaker 01:
In Tajima... Sure, I get that.

[00:12:59] Speaker 04:
I mean, it's clear that Tajima doesn't have the exact same structure as yours.

[00:13:04] Speaker 04:
Otherwise, we'd be talking about anticipation.

[00:13:06] Speaker 04:
But the real question is,

[00:13:09] Speaker 04:
can we overturn the board's finding that a person of ordinary skill would have looked at the diffuser in Shijima and the other references and redid it so that it sent the error

[00:13:21] Speaker 04:
directly to the side vents quickly?

[00:13:24] Speaker 01:
I think first there's no evidence that they would suggest that they would change the side vents so that it's directed there but even if they did even if they did it would still not meet the full scope of the claim language because what you have is a diffuser if you took the Tajima diffuser and inserted into some of the other airbags and altered the vents such that the side openings directed the gas to those vents you'd be left with a situation where the bag would never inflate because

[00:13:50] Speaker 01:
As soon as it deploys, all the air will rush immediately to the side.

[00:13:54] Speaker 01:
The inventors of the 653 patent recognize that.

[00:13:56] Speaker 01:
They recognize that you couldn't just put a diffuser like Tajima in.

[00:14:00] Speaker 01:
And so that's why you see the top opening in the diffuser of a 653 patent.

[00:14:04] Speaker 01:
That allows for the airbag to fully inflate when there is no obstruction.

[00:14:10] Speaker 01:
When the passenger's fully seatbelt buckled in and there's no obstruction, that allows the bag to go forward and the vents to close such that it replates.

[00:14:17] Speaker 01:
That's also an aspect of all these claims.

[00:14:19] Speaker 01:
The airbags have to be able to fully inflate when there is no obstruction.

[00:14:23] Speaker 01:
So if you take just the diffuser in Tajima and insert it into any of the other references, you would not have a situation where you could get full inflation without obstruction.

[00:14:34] Speaker 01:
And I'm well into my rebuttal time.

[00:14:36] Speaker 05:
Yes, we'll give you two minutes for rebuttal.

[00:14:49] Speaker 00:
Thank you, Your Honor.

[00:14:50] Speaker 00:
Paul Hughes, I represent aptly, Hyundai Mobus.

[00:14:54] Speaker 00:
Your Honor, the problem of out-of-position occupants with airbags was a well-known problem, and there were literally dozens of pieces of prior art that were targeted at solving this problem.

[00:15:05] Speaker 00:
The wrinkles that have been identified here were truly minor wrinkles that the board had a little... Could you just get directly to the diffuser limitation?

[00:15:12] Speaker 04:
I think that's certainly the one I'm having the most difficulty with.

[00:15:15] Speaker 04:
because it doesn't seem to me that the board properly took into account the different types of diffusers here.

[00:15:23] Speaker 04:
I know they're physically, structurally very similar, but they seem to have very significantly different purposes.

[00:15:30] Speaker 00:
A few responses to that, Your Honor.

[00:15:31] Speaker 00:
The first, counsel was just describing a hole, for example, at the top of the diffuser.

[00:15:36] Speaker 00:
Nothing like that is claimed in the actual language of the claim itself.

[00:15:41] Speaker 00:
There's no claim that describes

[00:15:43] Speaker 00:
any diffuser with any kind of structure, nor has there been any argument by Autoliv that there's anything from the specification that would constitute any sort of limitation that should be imported or read into the claim language.

[00:15:58] Speaker 00:
So the claim itself- What about the directing language?

[00:16:02] Speaker 00:
Sorry, the directing.

[00:16:03] Speaker 00:
Well, Your Honor, the one thing I point the court to most clearly is that at page 226 of the appendix, this was Autoliv's own position before the board.

[00:16:12] Speaker 00:
where, again, so page 226 of the appendix, before the board, AutoLiv said, quote, Tajima teaches a diffuser that directs gas to the left and the right of the airbag.

[00:16:28] Speaker 00:
directly towards the fixed vents as shown in annotated figure three below.

[00:16:33] Speaker 00:
This was a clear position that AutoLiv took before the board.

[00:16:37] Speaker 00:
The board expressly cited this passage and relied upon this as a party admission, recognizing that the diffuser in Tajima directly pointed gas towards the side vents.

[00:16:48] Speaker 00:
Certainly it was substantial evidence for the board to rely on AutoLiv's own statements to the board as finding that that was an admission.

[00:16:55] Speaker 00:
Again, that's page 226.

[00:16:57] Speaker 00:
I think it was quite clear, and the board found that at the point that Ottawa was willing to agree with that construction of Tajima, that was very strong evidence.

[00:17:05] Speaker 00:
But Judge, she's returning to your point about the different kinds of structures.

[00:17:08] Speaker 00:
Not only is there nothing in the claim language that would still limit, pointing the court to appendix page 58, this is the top of claim, or column four of the patent,

[00:17:18] Speaker 00:
The patent says very expressly that there's a broad array of diffusers.

[00:17:23] Speaker 00:
The patent says, quote, note that in other embodiments, the optional diffuser may have other shapes.

[00:17:28] Speaker 00:
For example, the diffuser may be rectangular, trapezoidal, hexagonal, round, et cetera.

[00:17:36] Speaker 00:
It may also have a portion which is round or elliptical, while other portions are angled.

[00:17:40] Speaker 00:
So far from

[00:17:42] Speaker 00:
directing that there's one specific kind of structure of the diffuser.

[00:17:46] Speaker 00:
The claims are quite broad in saying that the diffuser can have any kind of shape so long as it performs, again, according to AutoLiv, the function of ensuring that enough gas rapidly exits.

[00:17:56] Speaker 00:
Now, the board again, as I said,

[00:17:58] Speaker 00:
relied on AutoLiv's own statements that the diffuser in Tajima directly points gas to the left and the right sides of the airbag, which is precisely where the fixed vents in Tajima are located.

[00:18:09] Speaker 00:
The board further looked to the evidence, this was at Tajima paragraphs 35, 39, and 70, that the use of the diffuser in that apparatus ensured that there was sufficient venting

[00:18:21] Speaker 00:
of the inflation error such that there was, as Tajima said, remarkably smooth deployment of the airbag in circumstances where there is an obstruction.

[00:18:32] Speaker 00:
Also, there's clear evidence of motivation to make the combination.

[00:18:36] Speaker 00:
As the court pointed out, Ms.

[00:18:39] Speaker 00:
Valovitch, one of the experts at Appendix Page,

[00:18:42] Speaker 00:
756 gave very clear testimony as to why the combination would have been obvious, why it was an obvious improvement to take a diffuser apparatus, which was clearly disclosed in Tajima, and to use that in the Inui disclosure.

[00:18:56] Speaker 00:
Additionally, as the board noted, that the motivations of Inui and Tajima were the same, which was to ensure that there is a

[00:19:02] Speaker 00:
an airbag apparatus that has sufficient venting of gas in the event of an out of place occupant.

[00:19:08] Speaker 00:
Both of them use various closable vents to solve that problem, but Tajima adds the additional way of solving that problem of having a diffuser to ensure that gas is properly directed.

[00:19:17] Speaker 00:
So again, the board found that one skilled in the art who was trying to solve this problem of out of position occupants would recognize these common solutions and that the additional feature in Tajima, which was directed at solving that same problem, there was a motivation to combine that.

[00:19:32] Speaker 00:
for use into the ANUI airbag.

[00:19:36] Speaker 00:
And then finally, Dr. Helleman, AutoLiv's expert, this is at page 1788 of the appendix, notes that one of ordinary skill in the art would be fully aware of the airbag's behavior and both theoretically... What did you say?

[00:19:48] Speaker 00:
1788?

[00:19:48] Speaker 00:
Yes, your honor.

[00:19:49] Speaker 00:
Okay.

[00:19:51] Speaker 00:
Both theoretical and real-world environments and would optimize the design for predictable, reliable and consistent operations.

[00:19:57] Speaker 00:
The board relied on AutoLibs experts recognition that this was fairly straightforward technology and that one would understand how the diffuser would operate in different environments and can make that with clear predictability.

[00:20:11] Speaker 00:
So for all of those reasons, I think the board was well within substantial evidence of finding that

[00:20:15] Speaker 00:
that there was motivation to make the combination in the particular circumstances here.

[00:20:20] Speaker 00:
And again, there's simply no specific structure of the diffuser that's claimed here.

[00:20:25] Speaker 00:
Autoliv makes clear throughout their briefs that they assert that this is a functional limitation, that it has to perform the function of rapidly exiting.

[00:20:34] Speaker 00:
The board found as a matter of fact that Tajima

[00:20:37] Speaker 00:
did satisfy this.

[00:20:38] Speaker 00:
They found that because the evidence in Tajima was that the diffuser worked for its purpose, which was to direct gas directly towards the vents.

[00:20:46] Speaker 00:
And as I pointed out earlier, at appendix 226, AutoLiv conceded before the board that that's exactly what the diffuser did, which was point gas directly at the fixed vents on the sides of the Tajima device.

[00:21:03] Speaker 05:
Let me turn you to the temporary release of the holding fixture.

[00:21:06] Speaker 05:
or the temporary, releaseable temporary holding feature.

[00:21:11] Speaker 05:
I still have a problem between, and I understand that your friend on the other side may have given this away, but the whole debate here is whether this all has to be in the cushion membrane, right?

[00:21:23] Speaker 00:
That's right, Your Honor.

[00:21:24] Speaker 05:
And for instance, claim 20, I don't know how you could read it as anything other than being in the cushion membrane.

[00:21:31] Speaker 05:
I know that stitch in and of itself might have been known in the prior

[00:21:35] Speaker 05:
But that stitch necessarily has to be in the cushion membrane to do exactly what the claim is saying, right?

[00:21:41] Speaker 00:
I don't think that's correct, Your Honor.

[00:21:44] Speaker 00:
And again, I do think as you identified that stitching was not something that they were separately relying on, I think they made that quite clear that their argument rests not on stitching.

[00:21:54] Speaker 05:
Well, it's kind of hard to say you're not relying on it when it's in your claim.

[00:21:57] Speaker 05:
This is not something that's just in the written description.

[00:22:00] Speaker 00:
And so to take a step back, the question is, as Your Honor pointed out, does the stitching have to be applied directly to the fold or does it have to have the purpose of holding the folds in place?

[00:22:13] Speaker 00:
The board at AutoLiv's own invitation

[00:22:16] Speaker 00:
interpreted the claims to be as broad as possible, to hold the folds in place.

[00:22:22] Speaker 00:
In AutoLiv's initial response before the board, that's Appendix page 207 to 209, they say it needs its plain and ordinary meaning, which is broad as possible.

[00:22:29] Speaker 00:
In the institution decision, the board agreed with that.

[00:22:33] Speaker 00:
Later in its response, AutoLiv asserted that it's simply, quote, a feature in the airbag that's releasable and temporarily holds a fold of the airbag in place.

[00:22:40] Speaker 00:
That's at 286.

[00:22:42] Speaker 00:
The board adopted that in its institution decision at A10.

[00:22:47] Speaker 00:
advanced this argument throughout, I think AutoLiv has both waived and has stopped from arguing a contrary interpretation at this point, which would suggest that there needs to be something that's applied.

[00:22:56] Speaker 05:
But they never waived the argument that no matter how broadly you interpret the feature, it still has to be in the cushion membrane, right?

[00:23:05] Speaker 00:
Well, you know, I don't think they've ever made that argument as a matter of claim construction.

[00:23:09] Speaker 00:
They've articulated no reason why this court should assert that there needs to be a stitch in the fold of the claim boundary itself.

[00:23:16] Speaker 00:
And there are many other ways that one can accomplish the temporary release of a holding feature with stitching without a stitch in the fold.

[00:23:23] Speaker 00:
So for example, the Wolin device holds in place the board identified using breakaway tack stitching that isn't attached to the fold directly,

[00:23:34] Speaker 00:
but holds the whole device in place.

[00:23:36] Speaker 00:
Additionally, the envelope of C-more that the board discusses, it is an envelope mechanism where it is held together by a releasable seam.

[00:23:44] Speaker 00:
It's stitching across the seam that is broken when the device activates.

[00:23:49] Speaker 00:
I think what Claim20 requires, that is stitching requires, is that the mechanism that is released, that does the releasable temporary holding feature is stitching.

[00:23:59] Speaker 00:
Is it held together by stitching and when it releases,

[00:24:01] Speaker 00:
is it being released by the breaking of stitching?

[00:24:05] Speaker 00:
Stitch is necessarily holding the fold, right?

[00:24:07] Speaker 00:
Yes, Your Honor.

[00:24:09] Speaker 00:
It's holding the fold, but to hold the fold, the stitch doesn't have to be through the fold.

[00:24:13] Speaker 00:
That's because, for example, the Seymour device has an envelope that holds the entire, the folds together, that holds the folds in place.

[00:24:21] Speaker 00:
This is why the board's construction is so important.

[00:24:23] Speaker 00:
It seems dramatically different than what we're talking about in this patent.

[00:24:28] Speaker 00:
Well, you know, I think it's clear that from the specification elsewhere that what the reason that you need this held in place is both so the airbag stays in one place and all the parts are properly positioned during storage.

[00:24:40] Speaker 00:
Cars, you know, go through lots of bumps.

[00:24:42] Speaker 00:
They might go, you know, years and years before the airbag is actually used.

[00:24:46] Speaker 00:
So you have to make sure that the various folds and the various valves are held in place and are all in position at the point when they need to be deployed so that way the various apparatuses that are claimed can operate.

[00:24:56] Speaker 00:
And so that's the board's construction of temporary releaseable holding feature is that all of those places have to be held sufficiently in place such that when the... It seems to be taking this language completely out of the whole structure of this patent.

[00:25:11] Speaker 00:
Well, I'm not sure I see that, Your Honor.

[00:25:13] Speaker 00:
I think the board, again, this was an auto lives interpretation using the broadest reasonable interpretation says the temporary releaseable holding feature... Okay, forget about whether or not they made the wrong argument.

[00:25:24] Speaker 05:
Let's talk about what

[00:25:25] Speaker 05:
that claims actually require?

[00:25:27] Speaker 00:
Well, I think the board was correct to say what the claims are requiring is a device that makes sure that everything is held in the right place so that when the device is deployed... And in some fashion uses stitching.

[00:25:40] Speaker 00:
Yes, and in some fashion, the thing that's doing the holding needs to be stitching and the thing that breaks is stitching.

[00:25:46] Speaker 05:
All of these claims, the entirety of these claims that relate to this, all are talking about something that's occurring in the cushion membrane, right?

[00:25:56] Speaker 05:
Like all of a sudden then you're moving outside of it.

[00:25:59] Speaker 00:
Well, to be clear, your honor, in both Wolin and Pinensham, these are stitching mechanisms that are within the cushion membrane that are holding everything in place.

[00:26:08] Speaker 00:
So Pinensham and Wolin both relate to things that are directly within the cushion membrane.

[00:26:12] Speaker 00:
But it's true that many of the valves in those devices are within the cushion membrane.

[00:26:17] Speaker 00:
But what's important about the Releaseable Temporary Holding feature is not whether or not it's in the cushion membrane or not, but that the things that are in the cushion membrane are being held securely in place, such that when they need to be used,

[00:26:29] Speaker 00:
they're all in the right place.

[00:26:31] Speaker 00:
The thing that does that holding and the thing that then releases, that needs to be stitching according to Claim 20.

[00:26:36] Speaker 00:
And the board had a little problem finding that there was reason to find that in Wolin, in Pinninsham, as well as in Seymour.

[00:26:44] Speaker 00:
And my colleague on the other side admitted a few moments ago that the prior art is replete with stitching.

[00:26:49] Speaker 00:
And that's why they've said they don't have a separate argument based on stitching because stitching is found everywhere throughout the prior art that it was an easy, obvious modification to make.

[00:26:58] Speaker 00:
In addition to the explicit prior art references, for example,

[00:27:03] Speaker 00:
Ms.

[00:27:04] Speaker 00:
Balovitch, there's various testimony that stitching to hold folds was well known in the art.

[00:27:10] Speaker 00:
Some examples of this are at pages, appendix pages 746 and appendix pages 1413.

[00:27:16] Speaker 00:
And again, I think it's that recognition that stitching is so ubiquitous in the prior art is why Autoliv is making the determination not to separately rest on that stitching argument because the prior art is so clear on that point and the board was certainly within substantial evidence to make that determination.

[00:27:32] Speaker 05:
What do you read the language wherein the court is fixedly anchored to the cushion membrane in some of the dependent claims that were also found invalid?

[00:27:44] Speaker 05:
What do you read that language to require?

[00:27:47] Speaker 00:
Your Honor, you're looking at claim 20 here.

[00:27:49] Speaker 05:
Looking at claim 22?

[00:27:54] Speaker 05:
But it also appears in claim 30?

[00:27:57] Speaker 00:
Your Honor, I...

[00:27:59] Speaker 00:
I don't deny that other things are talking about being attached to the cushion membrane, but the claim limitation, as you hear, wherein the releasable temporary holding feature is stitching, I think that has a much broader understanding, which is what the board found.

[00:28:18] Speaker 00:
And again, there's been no challenge to the board's claim construction.

[00:28:21] Speaker 00:
If Autoliv had wanted to challenge the claim construction that the board made, they had the opportunity to raise a claim construction and we would have responded in kind.

[00:28:28] Speaker 00:
there's not been any challenge to the claim construction that the board found.

[00:28:33] Speaker 00:
And at the point that the claim construction has not been challenged, that's simply an argument, I think, that's been waived and not one that Autoliv can avail itself of, having not advanced the argument to this court and having taken the direct contrary position to the board below.

[00:28:48] Speaker 04:
Before you run out of time, can I ask you about the fixed debt issue?

[00:28:54] Speaker 04:
What's your support?

[00:28:55] Speaker 04:
Is Tajima the support you have for the board's substantial evidence determination, or do you have anything else?

[00:29:02] Speaker 00:
Well, Tajima is the reference on which the board relied in finding that there was a fixed vent.

[00:29:08] Speaker 00:
And about fixed vent, let me be crystal clear.

[00:29:11] Speaker 04:
I think the most important... It's not just fixed vents.

[00:29:13] Speaker 04:
It's fixed vents that vent during an obstruction.

[00:29:16] Speaker 04:
That's the issue, right?

[00:29:17] Speaker 04:
They say Tajima doesn't show them venting during an obstruction, and the board found it did.

[00:29:24] Speaker 00:
Yes, Your Honor.

[00:29:25] Speaker 00:
And most critical things, since I'm running out of time, is the board relied on paragraph 70, which says clear of the day, paragraph 70 of Tejima, that there's venting during an obstructed deployment.

[00:29:37] Speaker 04:
Can you show me where that is?

[00:29:38] Speaker 04:
Because I've read these two paragraphs a bunch of times, and there's nothing clear about either of them.

[00:29:43] Speaker 00:
I understand that, Your Honor.

[00:29:45] Speaker 04:
I mean, I know it's a translation, so that's probably part of the difficulty.

[00:29:48] Speaker 04:
But I don't read 70 and 71 together.

[00:29:52] Speaker 04:
to say that events during an obstruction.

[00:29:55] Speaker 00:
So, Your Honor, paragraph 70 says, furthermore, in the embodiment, because the gas for use in expansion can be exhausted from the protective exhaust vents 34 and 34 disposed on both the left and the right sides, which is not interfered with the windshield.

[00:30:08] Speaker 00:
And then this is where it becomes important.

[00:30:09] Speaker 00:
When there is interference with the interference object, even if the airbag expands to the left and the right, because the gas for expansion is exhausted from the protective gas exhaust vents 34 and 34,

[00:30:20] Speaker 00:
the increased pressure force of the interfering object can be prevented.

[00:30:23] Speaker 00:
The protective gas exhaust vents 34 and 34 are the fixed vents.

[00:30:29] Speaker 00:
Now 71 says that in early stage deployment there might not be sufficient venting.

[00:30:34] Speaker 00:
But that then just turns to the claim construction argument.

[00:30:37] Speaker 00:
Does there have to be continuous venting throughout?

[00:30:39] Speaker 00:
For all of the reasons we explained in our brief, there's no requirement that there needs to be continuous venting at every moment of all of those 30 or 50 microseconds or milliseconds of airbag deployment.

[00:30:50] Speaker 00:
If there's not venting in the first couple milliseconds, but there is thereafter, it meets the claim limitation.

[00:30:55] Speaker 04:
So this is what I'm not quite sure of.

[00:30:59] Speaker 04:
Is that really what this is saying or what if the obstruction is so far forward that it doesn't allow this to unfold at all?

[00:31:08] Speaker 04:
I can read this or at least it seems more likely to read this as those events never.

[00:31:15] Speaker 00:
Well, Your Honor, two things about that.

[00:31:16] Speaker 00:
First, the board I think was in substantial evidence to read that in a different way.

[00:31:23] Speaker 00:
My second point is I point the court to paragraph 39 where the court talks about the expansion.

[00:31:29] Speaker 00:
And then, sorry, my final point is the board says this is not commensurate with their own claim scope.

[00:31:34] Speaker 00:
Because if the court, for example, looks at claims, figures three and four of their patent, figures three and four of their own patent identify their structure in which there's no venting during the early first couple microseconds, but then there is venting at the later point as the airbag continues to expand.

[00:31:52] Speaker 00:
Because even if there's an obstructed deployment at the initial point, the airbag doesn't expand forward, but it does continue expanding to the sides.

[00:31:59] Speaker 00:
which again, that's described in paragraph 39 of Tajima.

[00:32:02] Speaker 00:
And when it expands to the sides, that's what ensures that there's venting that occurs.

[00:32:06] Speaker 00:
The final point about this is paragraph 71 only says that there's a lack of a gross opening, not that there's no opening at all.

[00:32:12] Speaker 00:
And all that teaches is that you need to have vents in addition to the fixed side vents, which is exactly what they themselves claim.

[00:32:19] Speaker 00:
Their fixed vents are not, they never say that they're sufficient or alone by themselves enough.

[00:32:23] Speaker 00:
They teach them in combination with other open

[00:32:26] Speaker 00:
closable vents, which is exactly what Tajima does as well.

[00:32:29] Speaker 00:
So there's just really no disconnect at all between the prior art here and what it is that they're patent claims.

[00:32:36] Speaker 00:
I'd be happy to answer any other questions you have.

[00:32:39] Speaker 05:
Okay, thank you.

[00:32:40] Speaker 00:
Thank you.

[00:32:46] Speaker 01:
Your honors, I'd like to address the releasable Tiberi holding feature limitation and then another point on the diffuser.

[00:32:53] Speaker 01:
Yes, tack stitching has been used in airbags.

[00:32:56] Speaker 01:
However, not a single reference of record or any that they could find uses tack stitching or any stitching or any other type of feature to hold the folds that are actually in the cushion membrane.

[00:33:09] Speaker 01:
Claims 1, claims 20, all the independent claims all require that they're directed to an airbag cushion that has a cushion membrane.

[00:33:17] Speaker 01:
The fold is held in place by the temporary release of a holding feature in that airbag cushion, not something outside like the fabric envelope of Seymour.

[00:33:27] Speaker 01:
And so I do believe it's a dramatic disconnect between the type of art that the board relied on to what's claimed and what's shown in the 653 pack.

[00:33:38] Speaker 01:
And again, and one other thing, with respect to the plain and ordinary meaning, we proposed a feature in the airbag, in the airbag, as an interpretation of the plain and ordinary meaning, that it's a feature in the airbag that is releasable and temporarily holds a fold in the airbag in place.

[00:33:54] Speaker 01:
Again, we didn't waive anything.

[00:33:55] Speaker 01:
We always consistently said that these claims are about something in the actual membrane cushion itself that holds the holds together.

[00:34:03] Speaker 01:
Next, with respect to the diffuser limitation, we're not trying to read anything into the claims about the specifics of the diffuser.

[00:34:13] Speaker 01:
The claims themselves require that the airbag cushion, when there is no obstruction, without obstruction, the cord extends and at least partially closes the first and second closeable vents.

[00:34:26] Speaker 01:
So the full scope of the claims require that the combination

[00:34:30] Speaker 01:
would fully inflate without obstruction.

[00:34:35] Speaker 01:
That would not be possible if you were to use the type of diffuser that Tajima teaches.

[00:34:40] Speaker 01:
You simply wouldn't have all the air would rush out of the sides and you would have no way of propelling the front of the bag forward.

[00:34:48] Speaker 01:
That is clear.

[00:34:49] Speaker 01:
And so Mr. Hughes also made a point about how the patent specification talks about, there's lots of different types of diffusers taught in the 653 patent, but if you notice, all that discussion was about the type of shape, rectangular, oval, had nothing to do with the additional hole in the front to allow for the airbag to function properly when there was no obstruction encountered.

[00:35:12] Speaker 01:
Thank you, Your Honor.

[00:35:14] Speaker 01:
Thank you.

[00:35:14] Speaker 01:
Did you find the authority I asked for?

[00:35:16] Speaker 01:
We did not in time.

[00:35:17] Speaker 01:
I apologize for that.