[00:00:00] Speaker 02:
I'm going to move the admission of two of my clerks.

[00:00:07] Speaker 02:
Will you gentlemen please stand?

[00:00:08] Speaker 02:
Judge Chen and panel.

[00:00:16] Speaker 02:
I'd like to move the admission of Matthew Forrest Tutin, who is a member of the bar and is in good standing with the highest court of Maryland.

[00:00:25] Speaker 02:
I have knowledge of his credentials and am satisfied that he possesses the necessary qualifications

[00:00:31] Speaker 02:
which I will discuss in a moment.

[00:00:34] Speaker 02:
And I'd like to move the admission of Devin Scott Sykes, who is a member of the bar and is in good standing with the highest courts of New York, District of Columbia, and Texas, as well as with the Supreme Court of the United States, the Second Circuit, and the Eastern and Southern Districts of New York and the Court of International Trade.

[00:00:57] Speaker 02:
I have knowledge of his credentials and am satisfied that he possesses

[00:01:01] Speaker 02:
the necessary qualifications.

[00:01:05] Speaker 02:
Both of these lawyers have things in common in addition to clerking for me.

[00:01:12] Speaker 02:
Both of them I've known for a long time.

[00:01:17] Speaker 02:
Mr. Tooten since I carried him around in one hand and Mr. Sykes for at least 10 years when he clerked at the Court of International Trade when I was a judge there.

[00:01:31] Speaker 02:
Each of them has substantial experience.

[00:01:37] Speaker 02:
Each of them is hardworking, bright, and have wonderful personalities.

[00:01:45] Speaker 02:
So accordingly, I move their admission.

[00:01:50] Speaker 00:
I favor both motions.

[00:01:52] Speaker 04:
Okay, based on the strength of your motion, Judge Wallach, the court grants your motion.

[00:02:04] Speaker 01:
gentlemen welcome congratulations okay we have on three argued cases today the first one is

[00:02:29] Speaker 02:
BE Aerospace versus CNB Zodiac.

[00:02:33] Speaker 02:
Are Council ready to proceed?

[00:02:37] Speaker 03:
Good morning, Your Honors.

[00:02:39] Speaker 03:
Andrei Yanku from IRL and Manila on behalf of BE Aerospace.

[00:02:44] Speaker 03:
May it please the Court.

[00:02:46] Speaker 03:
Despite what might seem at first blush as simple technology, BE's curved wall laboratory for aircraft revolutionized the airplane interiors industry.

[00:02:59] Speaker 03:
It allowed for the nesting of a laboratory with the seats in front of the laboratory in order to save space in the airplane and therefore allow for significantly more passengers or passenger room on the plane, becoming critically important technology that opened the door to a billion-dollar industry.

[00:03:24] Speaker 03:
Here is the crux of the many problems with the PTABS

[00:03:29] Speaker 03:
obviousness decision.

[00:03:31] Speaker 03:
First, there is no laboratory art in the record.

[00:03:36] Speaker 03:
It's just not there.

[00:03:38] Speaker 03:
Only the Betz code closet.

[00:03:41] Speaker 03:
Now the PTAB found that it would be obvious to put the Betz wall, such as it may be, on a laboratory.

[00:03:48] Speaker 02:
Let me ask you a housekeeping question.

[00:03:51] Speaker 02:
Sure.

[00:03:52] Speaker 02:
On page 54 of the blue brief, you say Zodiac admits

[00:03:58] Speaker 02:
and the PTAB does not question Nexus.

[00:04:02] Speaker 02:
And you cited page 22 of the appendix, but when I went to page 22, I couldn't find that.

[00:04:10] Speaker 03:
So there is a lack of a Nexus discussion in the PTAB's final written decision.

[00:04:22] Speaker 03:
The PTAB does not address the Nexus.

[00:04:27] Speaker 02:
Okay, that's your argument.

[00:04:29] Speaker 03:
Got it.

[00:04:31] Speaker 03:
It's not there.

[00:04:33] Speaker 04:
So they didn't find Nexus.

[00:04:36] Speaker 04:
We should just say that maybe they, for purposes of ultimately finding the claims unpatentable, they just, for the sake of argument, assumed Nexus?

[00:04:51] Speaker 03:
The fact of the matter is we believe that the PTAB's analysis, especially on objective indicia, is cursory, it handwaves, and it finds without significant basis that the secondary considerations are what they call moderate.

[00:05:11] Speaker 03:
They do not address nexus, and therefore, I mean, they don't say, look, the reason we don't find secondary considerations to be persuasive is because there is no nexus.

[00:05:21] Speaker 03:
The fact of the matter is there is significant nexus.

[00:05:24] Speaker 03:
This is as much nexus as we can find, really, in a case.

[00:05:30] Speaker 00:
So, specifically... You had mentioned in your brief that Zodiac admits that there's nexus.

[00:05:35] Speaker 00:
Is that with respect to all of the secondary considerations evidence or just the commercial success evidence?

[00:05:42] Speaker 03:
So, I don't know that Zodiac admits that there is no nexus.

[00:05:47] Speaker 03:
The main point is that the p-tab does not find

[00:05:51] Speaker 03:
a lack of nexus.

[00:05:53] Speaker 03:
The fact of the matter is that there is no significant challenge to the nexus prong.

[00:05:58] Speaker 02:
But you said zodiac admits in your blue brief, and that's where you cited Appendix 22.

[00:06:03] Speaker 02:
So the only explanation you've given me so far is an absence of something.

[00:06:10] Speaker 03:
There is an absence, and it's their burden on obviousness, obviously.

[00:06:14] Speaker 03:
There is an absence from their side and from the PTAP side.

[00:06:18] Speaker 03:
on nexus.

[00:06:19] Speaker 03:
And, and the statement, if, if, the statement that there is an admission, so to speak, an express admission of no nexus, that probably is an overstatement.

[00:06:28] Speaker 03:
There is, there is a lack of evidence from Zodiac or from the PTAB that there is nexus, a lack of nexus.

[00:06:38] Speaker 03:
There is no question that there is nexus here.

[00:06:41] Speaker 03:
If we look at the secondary considerations, Your Honor, you know, so, so,

[00:06:47] Speaker 03:
just as an example, they all talk about saving space on the aircraft.

[00:07:00] Speaker 03:
There is a discussion in many of them about the scalloped wall of the BE laboratory.

[00:07:08] Speaker 03:
These are the components of the pattern.

[00:07:11] Speaker 03:
It's a direct correlation between commercial success,

[00:07:15] Speaker 03:
a direct correlation between the praise, the Crystal Cabin Award that the industry awarded to the patented technology.

[00:07:25] Speaker 04:
I guess when I was looking at the Crystal Cabin Award document in the joint appendix, I didn't see that award specifically calling out the recessed wall.

[00:07:37] Speaker 04:
It seemed to be more talking about how BE has somehow successfully come up with

[00:07:43] Speaker 04:
a way through better design and plumbing to come up with a much more slimline modular golfing unit for an airplane, which is terrific, but I didn't see any discussion about, wow, they came up with a way to put a scallop in the exterior wall of the unit.

[00:08:05] Speaker 02:
I might add, I got the impression that the Crystal Cabin Award was for managing this shoehorn in an extra six seats.

[00:08:11] Speaker 03:
Well, right, right.

[00:08:12] Speaker 03:
So both are correct points, except that that's exactly what this patent does.

[00:08:17] Speaker 03:
Obviously, when the editor who wrote the blurb on the Crystal Cabin Award did not have the patent in front of it, but adding the six row, six extra seats or creating the slimline, it's exactly what this patent does.

[00:08:32] Speaker 00:
And if we... Your position is that even though the claims don't say that this allows for additional seats to be put on the plane, that that's something that should be either read into the claims or understood from claims by virtue of the features that are claimed?

[00:08:47] Speaker 00:
I mean, how do you link this idea that there's an ability to put more seats on the plane as a result of a recessed wall when it's not in fact claimed?

[00:08:58] Speaker 03:
Sure.

[00:08:58] Speaker 03:
So the wall is recessed and it is...

[00:09:03] Speaker 03:
shaped such that it conforms to the shape.

[00:09:06] Speaker 00:
But legally, how are we supposed to find a nexus when you haven't claimed the idea that there's additional seats that can be put on the plane?

[00:09:16] Speaker 03:
Because the technology, that's what it's all about.

[00:09:19] Speaker 03:
The shaping of the wall contoured such that it substantially conforms to the seat in front of it.

[00:09:28] Speaker 03:
If we read the specification, it is all about

[00:09:32] Speaker 03:
It's all about saving extra seats.

[00:09:36] Speaker 03:
That's why they are supposed to be conforming to each other.

[00:09:40] Speaker 03:
And let me point the court to the rest of the secondary consideration evidence, which is, for example, in the Wall Street Journal and other articles praising this technology that actually does call out the scallop wall.

[00:09:57] Speaker 03:
I don't believe that legally, Your Honor, there has to be

[00:10:00] Speaker 03:
the precise language in the claim that exists can be found in articles or awards down the line.

[00:10:11] Speaker 03:
What needs to be clear, though, and I think that is the case here, is that what the claims enable is the technology that has won the praise.

[00:10:24] Speaker 03:
And it is that is the exact thing.

[00:10:28] Speaker 03:
that we're talking about here.

[00:10:29] Speaker 04:
I understand why you want to keep talking about the technology.

[00:10:35] Speaker 04:
And when I think of technology, maybe you and I have competing conceptions of what that means when it comes to putting a dent in a wall.

[00:10:44] Speaker 04:
But I guess when we try to hone in on what was being praised, I saw statements in those praise documents that was praising

[00:10:56] Speaker 04:
the technology in slimming down the bathroom unit, you know, better positioning, getting space from behind the sink.

[00:11:06] Speaker 04:
And then it also mentioned, a couple of times mentioned the idea of having a recess in the exterior wall.

[00:11:12] Speaker 04:
But, and then the praise would go further and say, that would be so that those seats right in front of that wall could recline.

[00:11:22] Speaker 04:
It wasn't about

[00:11:24] Speaker 04:
adding, the recessed wall wasn't so connected, at least in those articles, to the notion of having a recessed wall.

[00:11:32] Speaker 04:
It seemed like it was just merely to allow those people to recline their seats.

[00:11:39] Speaker 03:
Really, it's all about moving the seats back so that you can get the extra seats on the plane.

[00:11:47] Speaker 03:
And I think the fiscal cabinet's Judge Wallach- Am I correct that

[00:11:51] Speaker 02:
What it does is it allows you to move the seats back and recline because of the recess.

[00:11:57] Speaker 03:
Not necessarily.

[00:11:58] Speaker 03:
Not necessarily.

[00:11:59] Speaker 03:
So on some planes, for example, it doesn't recline at all.

[00:12:01] Speaker 03:
The point of the patent, the patent in the spec doesn't talk at all about the recline, really.

[00:12:06] Speaker 03:
It's all about moving the seats back to save space.

[00:12:09] Speaker 03:
I want to go to a different point, which is that there is nothing in the record to support the PTAP's finding

[00:12:20] Speaker 03:
that it would be obvious to apply the Betz wall to a laboratory, which is the crux of the argument from Zodiac and also the finding in the final written decision.

[00:12:32] Speaker 03:
The single point that the final written decision relies on is the testimony of a litigation consult, the expert witness from the other side, Mr. Anderson, period.

[00:12:48] Speaker 03:
There is absolutely nothing in the records.

[00:12:51] Speaker 04:
What about its quoting from the Betz reference itself?

[00:12:55] Speaker 04:
The Betz reference itself says, I want to put this recess in this wall of the airplane cabin.

[00:13:03] Speaker 04:
Why?

[00:13:03] Speaker 04:
Because by doing that, I'm going to be able to provide more space in the cabin for passengers.

[00:13:10] Speaker 04:
And so therefore,

[00:13:12] Speaker 04:
I didn't see the board solely and singularly relying on, as you would call it, some paid expert.

[00:13:20] Speaker 04:
But it was actually relying on a statement from the prior art reference itself, and then concluded, well, Betz has a recessed wall in an airplane, and Betz is using it for the same purpose as the claimed invention.

[00:13:35] Speaker 04:
And so the idea is, any time you have a seat slammed up against the back

[00:13:41] Speaker 04:
of a wall in an airplane, why not do exactly what Betz did and have a recessed wall so that you can provide more space?

[00:13:51] Speaker 04:
Whether it's a galley, whether it's a closet, or even a lavatory.

[00:13:56] Speaker 03:
So two points.

[00:13:56] Speaker 02:
First of all, that's not exactly what this... Let me just point out to you in all fairness, you're in here at battle time.

[00:14:01] Speaker 02:
I know.

[00:14:01] Speaker 02:
And you won't get extra time out of me.

[00:14:04] Speaker 03:
Yep.

[00:14:04] Speaker 03:
So let me just answer Judge Chen's question and then I'll stop.

[00:14:09] Speaker 03:
So first of all, Betz says I'm putting the recess in the wall to allow for tilting.

[00:14:15] Speaker 03:
That's what it says at column two.

[00:14:17] Speaker 03:
Okay, not to move seats back or to save space, just for tilting.

[00:14:21] Speaker 03:
And that's not what the 838BE patent is about.

[00:14:25] Speaker 03:
Second point is it does say that we have the coat rack, the mechanism to lift the coats out of the way so that passengers have more room to walk behind the closet.

[00:14:39] Speaker 03:
It's a non-sequitur that more space needs to be saved on an airplane.

[00:14:45] Speaker 03:
Everybody tried to do that, right?

[00:14:47] Speaker 03:
It's a decades-old problem.

[00:14:49] Speaker 03:
It's a fixed configuration.

[00:14:50] Speaker 03:
It needs, space needs to be fixed.

[00:14:52] Speaker 03:
What is missing from Betz and all the prior art is doing that with a laboratory.

[00:14:59] Speaker 03:
There is zero indication anywhere in the prior art that anybody thought of playing around with the laboratory.

[00:15:07] Speaker 03:
curving the laboratory, slimming it down, touching it in any way until BE.

[00:15:13] Speaker 03:
And when BE did it, it really revolutionized the industry.

[00:15:17] Speaker 03:
I'll reserve the rest.

[00:15:18] Speaker 03:
Thank you, Your Honor.

[00:15:25] Speaker 05:
Good morning.

[00:15:26] Speaker 05:
I'm John Olimani here on behalf of C&D Zodiac.

[00:15:29] Speaker 05:
May it please the Court?

[00:15:32] Speaker 05:
I'd like to address a few comments.

[00:15:34] Speaker 05:
There's no dispute in this record that

[00:15:37] Speaker 05:
lavatories, enclosure units including single-space lavatories are well known in the prior art.

[00:15:44] Speaker 05:
So when you open the A3A pattern and look at the very first figure, it's a rectangle and it has a chair sitting next to it.

[00:15:54] Speaker 05:
It says prior art.

[00:15:56] Speaker 05:
So all you know from that first figure is that the rectangle with the chair is prior art and you open the specification of the A3A pattern and the A3A pattern says

[00:16:06] Speaker 05:
That's a prior arrangement of a lavatory with a flat wall next to a seat.

[00:16:13] Speaker 02:
The word lavatory... Let me ask you a housekeeping question, because I'm bothered by this kind of thing, and I always like to ask about it.

[00:16:19] Speaker 02:
On page 52 of the opening brief, you say that BE, quote, blatantly misrepresented Mr. Anderson's testimony when it stated that Mr. Anderson, quote, confirmed that Betz is not an enclosure unit, close quote.

[00:16:36] Speaker 02:
And you base your position on Mr. Anderson's statement that the upward and lower enclosures and beds form an enclosure unit.

[00:16:43] Speaker 02:
And I went to the Joint Appendix 3375 and 76, where Mr. Anderson later testified that those enclosures do not form an enclosure unit.

[00:16:56] Speaker 02:
Based on those competing statements, how can you say that B.E.

[00:16:59] Speaker 02:
blatantly misrepresented the record?

[00:17:04] Speaker 05:
In Mr. Anderson's testimony, he testified that the top of the Betz closet was an enclosure, the bottom of the Betz closet was an enclosure, that the middle portion was not an enclosure, and then he circled the entire closet, the entire Betz closet, and said that is an enclosure.

[00:17:21] Speaker 05:
And so his testimony is consistent with the Betz reference, which labels the entire enclosure as a closet.

[00:17:31] Speaker 05:
And so to say that he said that Betz was

[00:17:34] Speaker 05:
that he only said that Betz was multiple enclosures is inconsistent with his testimony.

[00:17:38] Speaker 05:
It misrepresents what he said.

[00:17:44] Speaker 05:
Let me turn to the nexus.

[00:17:50] Speaker 05:
These councils suggested that there is a nexus and that we didn't contest nexus.

[00:17:55] Speaker 05:
And that's not true.

[00:17:56] Speaker 05:
We didn't, in fact, contest nexus.

[00:17:58] Speaker 05:
Show us in the record.

[00:17:59] Speaker 05:
I will.

[00:18:00] Speaker 05:
Absolutely, Your Honor.

[00:18:02] Speaker 05:
The Crystal Cabin Award, for instance.

[00:18:04] Speaker 05:
What page is your nexus argument?

[00:18:05] Speaker 05:
Pardon me?

[00:18:06] Speaker 05:
What page is your nexus argument on?

[00:18:10] Speaker 05:
I'm pointing in the record in the appendix to 3040.

[00:18:14] Speaker 05:
I'll have to look at our brief.

[00:18:16] Speaker 00:
Did you say pages 30 through 40?

[00:18:18] Speaker 05:
3040 of the Joint Appendix.

[00:18:21] Speaker 05:
I was actually going to point to a part of the record that we relied on.

[00:18:24] Speaker 04:
That's not your petition or your petition in reply, A3040.

[00:18:31] Speaker 05:
No, I was relying on the Crystal Cabin Award that was presented, on information about the Crystal Cabin Award that was presented by BE.

[00:18:38] Speaker 02:
How is that a reflection of your position on nexus?

[00:18:44] Speaker 04:
Yeah, I'm sorry.

[00:18:46] Speaker 04:
My question was specifically, where to the board did you, C&D, argue that there was no nexus for the other side's proposed secondary consideration of this?

[00:18:59] Speaker 05:
And I'm not sure that I have a specific site to appoint.

[00:19:02] Speaker 05:
The point that we made about all the nexus, all the secondary considerations was that they reflected parts other than, things other than the scallop and the forward wall.

[00:19:13] Speaker 05:
And I don't have a site at this moment, but I will look for one.

[00:19:16] Speaker 05:
Or ask Mr. Reed if he could find one.

[00:19:18] Speaker 02:
That would be a good thing to do.

[00:19:19] Speaker 05:
Yes, Your Honor.

[00:19:23] Speaker 05:
He's pointing me to Appendix 4246.

[00:19:25] Speaker 05:
4246.

[00:19:26] Speaker 05:
Hang on a sec.

[00:19:31] Speaker 05:
That would be in the second volume.

[00:19:33] Speaker 04:
2246.

[00:19:44] Speaker 04:
What is this?

[00:19:44] Speaker 04:
This doesn't look like a brief.

[00:19:46] Speaker 05:
This is the oral argument slides that we presented to the board during oral argument.

[00:20:03] Speaker 05:
We quote here from the Microsoft Croc C-Com case in Ray Wong.

[00:20:09] Speaker 05:
So we presented to the board the argument that the patent owner fails to evidence required nexus.

[00:20:15] Speaker 05:
And if we continue, we talk about the fact that many of the evidence of secondary considerations that patent owner presented were tied to other features.

[00:20:25] Speaker 05:
We quoted the declaration of

[00:20:27] Speaker 05:
Dr. Frazier, who is a marketing expert who testified during the case, and informed the declaration.

[00:20:32] Speaker 04:
OK.

[00:20:32] Speaker 04:
Well, at this point, the board, assuming this is sufficient, these demonstratives at an oral argument is enough to preserve the argument, the board didn't make a finding on this nexus question.

[00:20:46] Speaker 04:
So we can't review or make a decision on the correctness or incorrectness of whether there's nexus for purposes of this appeal.

[00:20:57] Speaker 04:
We just have to assume it's there.

[00:20:58] Speaker 05:
I think, Your Honor, it would be fair to assume that the Board found some level of nexus between the evidence of industry praise, the Crystal Cabin Award, and the articles to which these counsel refers.

[00:21:12] Speaker 05:
I think it's fair to assume that there's some nexus there because the Board gave some weight to those references.

[00:21:19] Speaker 05:
I think it's also the board's finding, factual finding on that, which is subject to deference, obviously on a substantial evidence standard.

[00:21:26] Speaker 05:
I think it's entitled to deference because there are elements, for instance, the part of the appendix that I pointed to that show that all of that praise, industry praise, is related to things other than the scallop and the forward wall, the recess and the forward wall.

[00:21:42] Speaker 05:
So we did present the argument.

[00:21:43] Speaker 04:
I think the board, I think it's... I don't think you want to go that far and say all the praise

[00:21:48] Speaker 04:
in those praise documents relate to things that are not related to the recessed wall?

[00:21:55] Speaker 04:
Probably the safer thing to say is it's more of a mix.

[00:21:58] Speaker 04:
There's some commentary calling out the fact that the wall has been recessed, and then there's other things that are also identified for reasons for praising this new modular laboratory unit.

[00:22:12] Speaker 05:
Your Honor, I think each of the

[00:22:15] Speaker 05:
Each of the pieces of industry praise do call out features other than the recess and the forward wall, at least the ones that are cited.

[00:22:22] Speaker 05:
So the Crystal Cabin Award does.

[00:22:25] Speaker 05:
The Apex article talks about the loo being having a scalloped wall and yet not losing space inside.

[00:22:31] Speaker 05:
So I think each of them do.

[00:22:32] Speaker 05:
They talk about improved plumbing, making use behind the sink.

[00:22:36] Speaker 05:
And I'm referring to the appendix at 3763, 64, and 66, which is where these articles are reproduced.

[00:22:44] Speaker 05:
But each of them has a feature, at least some feature, recited other than the scallop wall itself.

[00:22:51] Speaker 05:
So at least for those references, I think it's fair to say there's something in there.

[00:22:55] Speaker 05:
Again, I believe it's fair, as you say.

[00:22:57] Speaker 04:
You're telling me there's no document that they submit that points to the wall as being something that's praiseworthy?

[00:23:05] Speaker 05:
No, Your Honor, I wouldn't go that far.

[00:23:07] Speaker 04:
OK, that's all I wanted to know.

[00:23:09] Speaker 05:
That's correct.

[00:23:13] Speaker 05:
I want to move to motivation combined briefly.

[00:23:16] Speaker 05:
The Betts reference, as you point out in the first paragraph, talks about the need to make more space in the cabin.

[00:23:23] Speaker 05:
So as you look at the Betts patent, the Betts patent has a closet.

[00:23:27] Speaker 05:
The very first paragraph says what you want to do is take the coat rack and move it up out of the way.

[00:23:32] Speaker 05:
I think the only fair way to look at the Betts closet is to look at it as a closet in the cabin of the aircraft, which the coats were moved out of the way so that the

[00:23:41] Speaker 05:
so that the recess could be added to the forward wall.

[00:23:44] Speaker 05:
And 40 years before the A38 patent specifies the exact same reason for doing so, and that is to make more room for passengers.

[00:23:52] Speaker 05:
And so just like the enclosure unit in the A38 patent, the Betts patent specifically discloses that you create a recess in the forward wall to allow the seat to sit closer to that enclosure unit than it otherwise would if that forward wall were flat.

[00:24:08] Speaker 05:
and still provide a room for the coast to be stored.

[00:24:10] Speaker 02:
The best lacks the additional benefit of causing claustrophobic passengers to get out of the bathroom as quickly as they possibly can.

[00:24:18] Speaker 05:
That's very true, Your Honor.

[00:24:20] Speaker 05:
Absolutely.

[00:24:22] Speaker 00:
Can you tell me in Betz where you're pointing to specifically?

[00:24:25] Speaker 00:
You're saying column one?

[00:24:27] Speaker 05:
It's the very first paragraph in Betz that I'm pointing to, Your Honor.

[00:24:46] Speaker 05:
So it's appendix 1-4, I'm sorry, 1-0-4-4.

[00:24:51] Speaker 05:
The very first paragraph says there are a number of ways to elevate a coat rack so that it will be out of the way.

[00:24:57] Speaker 05:
So you have a coat rack, it's a closet, it has a coat rack.

[00:25:02] Speaker 05:
You elevate the coat rack out of the way to provide more room for passengers.

[00:25:06] Speaker 05:
And then they show in figure, it shows in figure one what the result is, and that is a recess in the forward wall of that coat closet.

[00:25:16] Speaker 05:
In our brief at pages 15 through 17, you see the commercial embodiments of beds that were created in 1978, at least, that show the various ways that closet was built.

[00:25:28] Speaker 05:
And that is it has a, the commercial embodiment actually has a thicker center section.

[00:25:32] Speaker 05:
And so one of the skill in the art, at least by the time of 2010, when the A3A patent was filed, would know that there is, that that is one enclosure, that the wall is recessed in the middle.

[00:25:44] Speaker 05:
and then it's larger in the bottom.

[00:25:46] Speaker 05:
The overall enclosure unit is a closet.

[00:25:49] Speaker 05:
It has a function that is to store things.

[00:25:51] Speaker 05:
I think it's a typical closet one of skill and the art would understand.

[00:25:55] Speaker 05:
I think a layman would understand that closets function to store multiple things.

[00:26:00] Speaker 05:
So it's clear that Betts falls within the scope of the enclosure unit.

[00:26:04] Speaker 05:
And then the premise of the 8th grade patent again is that one of skill and the art would understand what a laboratory is, what a laboratory contains.

[00:26:14] Speaker 05:
And so there's no dispute that a lavatory is both claustrophobic and useful for certain things, and that it does include a sink, that it can't include a toilet, that it can't include lights, et cetera.

[00:26:25] Speaker 05:
There's no dispute over that.

[00:26:26] Speaker 05:
The premise of our argument, the premise of the bare core told me is that one of the skill in the art would have known that.

[00:26:32] Speaker 05:
One way in which you know that that's true is that the A3 patent provides no description whatsoever of what's inside the lavatory.

[00:26:40] Speaker 02:
How does BITS physically allow

[00:26:43] Speaker 02:
a passenger seat to be located against the forward wall of an adjacent structure?

[00:26:50] Speaker 05:
The bet's recess allows the seat to be placed further back than it would if the wall were flat.

[00:26:58] Speaker 05:
So if the wall in the bet's closet were flat, straight down from the top portion of it, the seat would have to be moved further forward.

[00:27:05] Speaker 04:
In the case of the Betts Patent... That's because the seat itself is not totally vertical erect, the seat back in an upright position.

[00:27:14] Speaker 04:
It's default position is already leaning back a little bit.

[00:27:19] Speaker 05:
That's correct, Your Honor.

[00:27:20] Speaker 05:
It's definitely not flat in a vertical plane, as the claim recites.

[00:27:24] Speaker 05:
So that's part of it.

[00:27:25] Speaker 05:
And then the other part is a design constraint for that particular aircraft, and more particularly back in that time, where seats had to be able to recline.

[00:27:34] Speaker 05:
The recess is larger.

[00:27:36] Speaker 05:
than it needs to be for the seat just to sit further back in its upright position, as it's shown in Figure 1.

[00:27:41] Speaker 05:
It also has to allow room for the seat to function, and that is to recline.

[00:27:47] Speaker 05:
I wanted to reserve no more than a minute or so for rebuttal.

[00:27:51] Speaker 05:
I'd like to touch on the client construction just briefly, if I may.

[00:27:55] Speaker 05:
The briefing, these briefings suggest that the board didn't resolve our disputes about client construction.

[00:28:02] Speaker 05:
And so we actually, there were only two disputes about client construction.

[00:28:06] Speaker 05:
The first was the substantially flat in the vertical plane.

[00:28:10] Speaker 05:
And the board resolved that dispute, finding that a seat that is leaned back, at least somewhat in the unreclined position, is not flat in the vertical plane.

[00:28:21] Speaker 05:
That was as far as they needed to go to determine that bets fell within the scope of the claim.

[00:28:25] Speaker 05:
And then they addressed the unit term.

[00:28:27] Speaker 05:
The claims all recite an element that includes enclosure unit or a lavatory stall unit.

[00:28:32] Speaker 05:
And so the board thrust the two limitations that be attempted to

[00:28:37] Speaker 05:
put on that term and that is enclosed on all sides and having one function.

[00:28:41] Speaker 05:
So the board said both of those limitations are too narrow because of the fact that in the specification enclosure unit includes a galley.

[00:28:48] Speaker 05:
And that a galley is not enclosed on all four sides, that it has multiple functions.

[00:28:53] Speaker 05:
I mean at a high level B is accurate that there is a high level function that is a galley or it is a closet.

[00:28:59] Speaker 05:
And that's true.

[00:29:01] Speaker 05:
But it's not limited to that single function.

[00:29:02] Speaker 05:
There are functions within that.

[00:29:04] Speaker 05:
Unless there are further questions, I'll reserve the last minute I have for rebuttal.

[00:29:09] Speaker 05:
Fine.

[00:29:09] Speaker 05:
Great.

[00:29:09] Speaker 05:
Thank you.

[00:29:13] Speaker 04:
I don't quite understand.

[00:29:15] Speaker 04:
Are you going to argue about your counter, your cross-appealing?

[00:29:19] Speaker 04:
Are you just resting on your brief?

[00:29:22] Speaker 05:
I'll rest on the brief unless something, unless the other side argues something about it.

[00:29:26] Speaker 05:
I don't think there's anything in touch.

[00:29:30] Speaker 03:
Well, if he's not arguing on that,

[00:29:33] Speaker 03:
then I will not either rest on our briefs as well.

[00:29:37] Speaker 03:
All right.

[00:29:38] Speaker 03:
So very quick points in my remaining time.

[00:29:40] Speaker 03:
First of all, in the claim construction, categorically wrong, at least with respect to the two terms counsel mentioned.

[00:29:50] Speaker 03:
First of all, not flat.

[00:29:52] Speaker 03:
The claims require a shape that's not flat in a vertical plane.

[00:29:56] Speaker 03:
It's the shape that's not flat, not the position, and it cannot mean the tilting.

[00:30:01] Speaker 03:
So

[00:30:02] Speaker 03:
the shape has to be contoured and not flat.

[00:30:05] Speaker 03:
The question of what is the vertical plane, it just gives us the axis where the curvature or the contour is.

[00:30:12] Speaker 03:
So if I look at a chair, such as this, for example, the question is, where is that contour, the not flat?

[00:30:20] Speaker 03:
It's this vertical plane, okay?

[00:30:22] Speaker 03:
That is what has to be contoured.

[00:30:24] Speaker 00:
Isn't the definition of a vertical plane is something that has, you know, it's perpendicular to the ground?

[00:30:31] Speaker 00:
Isn't that what a vertical plane is?

[00:30:32] Speaker 00:
That's the ordinary meaning of it, right?

[00:30:34] Speaker 03:
Well, perpendicular for the chair.

[00:30:36] Speaker 03:
So to the seat, vis-a-vis the seat.

[00:30:40] Speaker 03:
And it's not the horizontal, which is this direction.

[00:30:43] Speaker 04:
I think it was line 22 in figure 2 of the patent, which shows a line giving us all a reference point of what a vertical plane could mean.

[00:30:53] Speaker 04:
And it totally confirms what your natural commonsense instinct is, which is a line that is 90 degrees

[00:31:00] Speaker 04:
perpendicular to the floor of the plane.

[00:31:03] Speaker 03:
In that figure, in that direction.

[00:31:05] Speaker 03:
But if the seat is moved in any way or the plane takes off, the point is vis-a-vis the seat back.

[00:31:11] Speaker 03:
That's what matters.

[00:31:13] Speaker 03:
And if we look at the specification, it's pretty clear that what we're talking about is the shape

[00:31:18] Speaker 03:
that has to be not flat.

[00:31:20] Speaker 00:
The problem is, one of the problems I have and I'm struggling with is that your specification in the background talks about contoured.

[00:31:27] Speaker 01:
Yes.

[00:31:28] Speaker 00:
And uses the language contoured, but then the rest of the specification uses what I think might be a broader term.

[00:31:34] Speaker 00:
Your specification certainly doesn't equate not flat in a vertical plane with contoured, and instead it uses the words which gives the, two different words, which gives the impression anyway, or at least is equally plausible

[00:31:48] Speaker 00:
that it's using those words to mean different things.

[00:31:51] Speaker 00:
And then the broadest reasonable construction.

[00:31:54] Speaker 03:
If we look at the parallel language in the specification, it uses contoured and not flat.

[00:32:01] Speaker 03:
The phrase, the sentences are effectively the same, except that sometimes it uses contoured, sometimes it uses not flat.

[00:32:10] Speaker 00:
It uses contoured only twice, I think, at most.

[00:32:12] Speaker 03:
That's correct.

[00:32:13] Speaker 03:
And then in the claims, it uses not flat.

[00:32:16] Speaker 03:
I think it's pretty clear

[00:32:17] Speaker 03:
that that's what it means.

[00:32:19] Speaker 03:
What it cannot mean, when it says not flat, the shape, when it says the shape is not flat in a vertical plane.

[00:32:26] Speaker 03:
It doesn't say the shape.

[00:32:27] Speaker 00:
It says a portion that is substantially not flat in a vertical plane.

[00:32:31] Speaker 03:
No, the claim actually says a shape.

[00:32:33] Speaker 03:
It's multiple times.

[00:32:35] Speaker 03:
It says a shape.

[00:32:36] Speaker 00:
So having a shape.

[00:32:37] Speaker 00:
I see.

[00:32:37] Speaker 00:
I see.

[00:32:38] Speaker 00:
OK.

[00:32:39] Speaker 03:
So it's the shape.

[00:32:39] Speaker 03:
So it cannot be that... I'll let you finish your response to Judge Stoll before you wrap up.

[00:32:44] Speaker 03:
Yes.

[00:32:46] Speaker 03:
A shape that is not flat cannot include a flat shape, period, in a, in tilting out of the plane.

[00:32:55] Speaker 03:
The modi, what it modifies, the not flat, what it modifies is the shape.

[00:33:01] Speaker 03:
And it simply cannot be that it, even under the broadest reasonable interpretation, it cannot be that the, that the whole meaning is changed such that now the shape can include flat.

[00:33:18] Speaker 03:
Yes, final point.

[00:33:20] Speaker 03:
Ultimately, Your Honors, the fact that there is nothing in the record that touches on a laboratory and doing something with a laboratory until BE did it.

[00:33:35] Speaker 03:
And when BE did it, it created an entire revolution in the space.

[00:33:40] Speaker 03:
That's got to mean something.

[00:33:43] Speaker 03:
A patent that is issued on such revolutionary technology,

[00:33:47] Speaker 03:
It has to be, it has to mean something when the actual record is completely silent on the combination that is urged by the other side.

[00:34:00] Speaker 03:
Thank you.