[00:00:06] Speaker 02:
Mr. White.

[00:00:07] Speaker 00:
Yes, your honor.

[00:00:14] Speaker 00:
Good morning and may it please the court.

[00:00:17] Speaker 00:
We have raised two separate issues that we believe constitute error from the Patent Trial and Appeals Board's final written decision with respect to the 880 patent.

[00:00:27] Speaker 00:
The first issue is the board's conclusion that claims two and four of the 880 patent are not obvious in view of the McCree

[00:00:36] Speaker 00:
in Terleski prior references.

[00:00:39] Speaker 00:
Now this issue focuses on the term a pair of stationary arms.

[00:00:44] Speaker 00:
This term was originally interpreted in the institution decision as including a projection.

[00:00:50] Speaker 00:
But during the hearing, the board raised the possibility of using a different construction and ordered additional briefing on that issue.

[00:00:58] Speaker 00:
Both parties submitted additional briefing, and then in the final written decision, the board applied a new construction.

[00:01:04] Speaker 00:
The new construction of that term was a slender part of a structure, machine, or instrument projecting from a main part, axis, or fulcrum.

[00:01:16] Speaker 00:
The board also mentioned a negative limitation, suggesting that the arms must be something other than a pivot or a fastener.

[00:01:24] Speaker 00:
Now, in analyzing claims two and four under that new construction, the board said in the final decision that petitioner, that's us,

[00:01:34] Speaker 00:
does not address how McCree teaches stationary arms.

[00:01:38] Speaker 00:
That's in the appendix at page 23.

[00:01:40] Speaker 00:
They went on to say petitioner instead states that Terleski includes stationary arms.

[00:01:48] Speaker 00:
The challenge, however, relies upon McCree for that teaching.

[00:01:53] Speaker 00:
So that's where we think the board got it wrong and missed the fact that Brunswick did, in fact, address how McCree teaches stationary arms.

[00:02:02] Speaker 00:
That's in the record at page 4433 of the appendix.

[00:02:07] Speaker 01:
So what the board actually cites on page 23 are, in fact, the very passages that you, quite hopefully simplifying your argument, point to and say,

[00:02:22] Speaker 01:
Here's where we said something that we think that the board disregarded, but petitioner brief six through eight, which is a 4432 to 34 of the appendix, are exactly those pages.

[00:02:36] Speaker 01:
And when the board goes on to say petitioner states that Terleski, you do also state that at those pages.

[00:02:45] Speaker 01:
You say neither one of them.

[00:02:46] Speaker 01:
So why do we not read the board statement as

[00:02:51] Speaker 01:
tending to the point but finding your explanation insufficient so that when you read the sentence petitioner does not address and that you lowered your voice how McCree teaches raise your voice how McCree teaches sure you haven't in fact by referencing support Said what it is about pin 10 that's special from basically any pin

[00:03:18] Speaker 00:
Sure.

[00:03:19] Speaker 00:
And I didn't intend to minimize it.

[00:03:21] Speaker 00:
No, no, no.

[00:03:21] Speaker 01:
I understand the argument.

[00:03:23] Speaker 00:
So let me address that first.

[00:03:24] Speaker 00:
The first question is, how can we read the board's decision the way we read it?

[00:03:28] Speaker 00:
I think that's the only way to read it when you consider the two sentences together.

[00:03:32] Speaker 00:
When you look at the sentence that says Petitioner does not address how McCree teaches stationary arms under that construction, and then follow it up with the next sentence that says Petitioner instead states that Trulisky includes stationary arms.

[00:03:45] Speaker 00:
When you read those two together, I don't see how you can come to any other conclusion other than that they overlooked the arguments made about how McCree actually does teach that.

[00:03:54] Speaker 00:
In fact, there is a page long explanation of how McCree teaches it.

[00:03:58] Speaker 00:
And if you look at that, it lines up clearly with the new construction that the board offered.

[00:04:04] Speaker 00:
Specifically, if you consider back to the new construction, it was a slender part of a structure, machine, or instrument projecting from a main part

[00:04:13] Speaker 00:
And if you look, the pins 10 are also things that project from the main part.

[00:04:18] Speaker 00:
That's right in at 4433.

[00:04:20] Speaker 00:
It talks about the pins 10 project from the main part, which is the sidewall 12.

[00:04:25] Speaker 00:
And then they also support the arms from there.

[00:04:28] Speaker 04:
So when you line up with what was... Does McCree reference say that they support the arms expressly?

[00:04:33] Speaker 00:
I believe they do, Your Honor.

[00:04:35] Speaker 04:
Where would we find that?

[00:04:49] Speaker 00:
So this is at appendix site 379.

[00:04:53] Speaker 00:
The statement is arms H, which are the pivoting arms in McCree.

[00:04:59] Speaker 04:
What column?

[00:05:00] Speaker 00:
I'm sorry, column two, line 32 about.

[00:05:04] Speaker 00:
There's a figure two in there, and it's the sentence that's after figure two.

[00:05:08] Speaker 00:
Do you see that?

[00:05:28] Speaker 00:
Are we able to find it, Judge Moore?

[00:05:31] Speaker 00:
Okay.

[00:05:31] Speaker 00:
So on column two, lines 30, I'll call it 32, it says arms H, which are the movable arms, are pivotally supported at their upper ends by pins 10 that project outwardly from adjacent faces 12 of the reservoirs.

[00:05:49] Speaker 00:
So if you look and apply that to the construction, it lines up almost word for word with how the board construed that requirement.

[00:05:56] Speaker 00:
They project out from a main component and they support the movable arms.

[00:06:01] Speaker 00:
So I think it's crystal clear there from McCree that it actually does describe what's required under the board's new construction.

[00:06:07] Speaker 01:
And what is the sense in which essentially any pivot wouldn't do exactly that?

[00:06:14] Speaker 00:
Well, here, I think the sense is if you look, for example, at the fasteners that are described in the 880 patent that connect the two arms together,

[00:06:24] Speaker 00:
those connected to our arms together, but they don't have the additional requirement that they project out from something or attached to something more rigid.

[00:06:31] Speaker 00:
They're sort of floating in space, if you will, and connect two components together.

[00:06:36] Speaker 00:
So here you have to have something more than just a fastener, more than just a nut or bolt.

[00:06:39] Speaker 00:
This thing has to be attached to something else and project out for, and then also support.

[00:06:44] Speaker 00:
So I think it's that combination of things not only connecting, but also attaching to something rigid and supporting it that makes it different than just a run-of-the-mill fastener, Your Honor.

[00:06:56] Speaker 01:
So when the board says in its claim construction, you can't just have a pivot attached to what is after all stationary.

[00:07:07] Speaker 01:
I guess I'm struggling a little bit to understand what that could mean that didn't already just exclude what you've just described.

[00:07:18] Speaker 00:
Yeah, and I think that's the best example I've got for you is if you have just a nut and a bolt together,

[00:07:24] Speaker 00:
Those two, that is a fastener that could connect two things together.

[00:07:27] Speaker 01:
But by definition in the context here, the one thing that's being connected is stationary already.

[00:07:34] Speaker 00:
Well, here, well, you've got a stationary arm.

[00:07:39] Speaker 00:
So that's the thing that we're talking about.

[00:07:40] Speaker 00:
What is the stationary arm?

[00:07:42] Speaker 00:
It's actually connected to something else.

[00:07:43] Speaker 00:
Another point.

[00:07:45] Speaker 00:
So we're talking about what is the component that attaches the movable arm to something else?

[00:07:50] Speaker 00:
The base.

[00:07:51] Speaker 00:
So I think that's where we've got a difference is you could have a fastener like just another bolt that would not satisfy that requirement because it would not connect something to a rigid structure of a base.

[00:08:02] Speaker 00:
But here you've got the pin is attached to the base.

[00:08:05] Speaker 00:
That makes it a non-movable arm.

[00:08:07] Speaker 00:
And it also has the fastening capability as well.

[00:08:10] Speaker 00:
So it's got the dual function.

[00:08:11] Speaker 00:
And that's supported in the briefs.

[00:08:13] Speaker 00:
It's supported in Dr. Garris' declaration of the deposition.

[00:08:16] Speaker 00:
Those are all our expert sites.

[00:08:18] Speaker 00:
Those are in the brief, but the sites I can give you are the Appendix 4433, Appendix 379, as we just talked about the reference, and then Dr. Garris' declaration is Appendix 450, and his deposition is Appendix 1549.

[00:08:32] Speaker 00:
All those go through and explain the dual function of the pin in McCree that line it up exactly with what the board has required.

[00:08:40] Speaker 00:
I'm going to move to the second issue, unless anybody has additional questions on that.

[00:08:45] Speaker 00:
The second issue that we've raised relates to the board's decision that Claim 5

[00:08:49] Speaker 00:
of the 880 patent is not anticipated by suitor.

[00:08:51] Speaker 00:
So different claim.

[00:08:53] Speaker 00:
This one's got means plus function language and a different prior reference suitor that's being applied here.

[00:08:57] Speaker 00:
This issue focuses on the term means for coupling the step to the boat.

[00:09:02] Speaker 00:
So we've got the step at one end, you've got the boat at the other.

[00:09:05] Speaker 00:
The court's construction, I'm sorry, the board's construction was that that means for coupling requires at least the pair of movable arms and stationary arms.

[00:09:12] Speaker 00:
So similar but different claim language here because it's means plus function and we're applying a different prior reference.

[00:09:17] Speaker 00:
suitor uses a post to connect steps to fixed arms, which are brackets 18, on the boat.

[00:09:26] Speaker 00:
And the board found that a post is not the same as a pair of arms.

[00:09:29] Speaker 00:
So it analyzed whether the suitor structure is an equivalent structure to what's required by the means plus function interpretation.

[00:09:37] Speaker 00:
Now, in performing that analysis, the board first errored by requiring

[00:09:41] Speaker 00:
In order to be an equivalent, there must be, now those are their words, there must be insubstantially different structure.

[00:09:49] Speaker 00:
We believe, and I think the case law makes it clear, that that is only one of the three ways to prove equivalence.

[00:09:54] Speaker 00:
And I'll come back to this because there's three different ways we think we've proven it under at least one of the other ways and possibly two.

[00:10:00] Speaker 00:
The second error that we see in the board's analysis is how it focused on specific component parts rather than the overall structure as described in the Souter prior reference.

[00:10:11] Speaker 00:
So let me start with that one.

[00:10:14] Speaker 00:
The manner in which the board applied the insubstantial difference test shows that it focused improperly on individual structural components rather than the overall structure of the device as a whole.

[00:10:25] Speaker 00:
Specifically, the board said, the petitioner has failed to establish sufficiently that a single movable arm, which was the post in suitor that flips down with the steps off of it, is insubstantially different from the structure described in the 880 patent.

[00:10:40] Speaker 00:
That's at the appendix, page 27 through 28.

[00:10:43] Speaker 00:
This approach was rejected in the Odetics case, which requires a comparison of the overall structure.

[00:10:48] Speaker 01:
Can I just ask, I guess, what's off about thinking of this as saying that there is evidence, on its face plausible evidence, that when you have a horizontal step connected only to a post in the middle, there is a

[00:11:11] Speaker 01:
a material difference in wobbliness or potential wobbliness of the steps.

[00:11:17] Speaker 01:
The weld may come loose.

[00:11:20] Speaker 01:
It's substantially different from having both ends of the step attached.

[00:11:27] Speaker 01:
And if that's a substantial difference, then the whole thing is substantially different.

[00:11:31] Speaker 00:
Yeah, so I think the, excuse me, I think the problem with that is relying upon elements that are not in the claims.

[00:11:36] Speaker 00:
The claims don't require a specific location for the connections or a specific manner of connection.

[00:11:41] Speaker 00:
If you look at the claim language here and what we're dealing with are means for coupling, the board said it's movable arms and stationary arms.

[00:11:49] Speaker 00:
And if we have those in an equivalent manner, that meets it.

[00:11:53] Speaker 00:
The fact that it may attach differently is not relevant, especially when you look at the function way result test.

[00:11:59] Speaker 00:
And again, that's why we think one of the problems with the board's construction is if you limit this just to the insubstantial difference test.

[00:12:05] Speaker 02:
Well, there's no authority that you have to apply both tests.

[00:12:10] Speaker 02:
I thought it was pretty clear from the cases that you could apply either test.

[00:12:15] Speaker 00:
Well, I think the issue we have with that is we did make arguments about the function way result.

[00:12:21] Speaker 00:
That was the focus and the primary argument that we made.

[00:12:23] Speaker 00:
And if the board disregarded that, I think we're back to the same position that we started with on the first issue, is if we've got evidence in there that explains exactly how the function way results do line up and the board doesn't.

[00:12:36] Speaker 04:
The fact that the board didn't address your test, though, when it expressly said,

[00:12:40] Speaker 04:
that the post and the bracket wouldn't be enough because it would require additional structure to maintain the stability.

[00:12:46] Speaker 04:
I mean, whether they called that your way component or your result component, the fact finding is still there, whether they lined it up with the language of the test you preferred.

[00:12:57] Speaker 04:
versus the insubstantial differences test.

[00:12:59] Speaker 04:
I don't see how that changes the outcome.

[00:13:00] Speaker 00:
I think at least two different ways.

[00:13:02] Speaker 00:
First of all, that was testimony about a certain size step.

[00:13:05] Speaker 00:
So if you wanted to put a big flat step on there, like is disclosed in the 880 patent in the preferred embodiment, then the expert says you'd have to have some sort of plate on there to have additional structural rigidity or support.

[00:13:17] Speaker 00:
But the claims don't recite a specific size or shape of step.

[00:13:20] Speaker 00:
And in fact, they're broad.

[00:13:21] Speaker 00:
And the specification says any step of shape or size can be used, and clearly,

[00:13:26] Speaker 00:
The reference here discloses steps, and it's more than sufficient for its size and shape step.

[00:13:33] Speaker 00:
You also have the presumption of operability in that sense.

[00:13:35] Speaker 00:
So I think that's one reason why you don't have to focus on that.

[00:13:39] Speaker 00:
Second of all, again, you're looking at limitations that are not in the claim.

[00:13:42] Speaker 00:
It doesn't talk about having a certain stability or rigidity.

[00:13:45] Speaker 00:
So for at least both of those reasons, I think it does matter.

[00:13:48] Speaker 00:
And you can't say just because it's got one shape versus a different that that means it's a substantial difference.

[00:13:55] Speaker 04:
Following up on this and also returning to Judge Toronto's point, I think that, unless I'm mistaken, the board found that the structure is

[00:14:04] Speaker 04:
at least the pair of movable arms 20A, 20B, and the pair of stationary arms 26A and 26B.

[00:14:10] Speaker 04:
It actually included the numbers in its identification structure from the spec.

[00:14:15] Speaker 04:
So when you look at those numbers, it is clear, as Judge Trano pointed out, that those are arms located on opposite sides of the step and would produce much greater stability than a random single post stuck underneath.

[00:14:31] Speaker 04:
So why

[00:14:33] Speaker 04:
isn't all of that relevant.

[00:14:34] Speaker 04:
You say that the claim doesn't require spacing of the arms, but why don't I say yes, it does, because the board found its arms 20A and 20B, and those are located on opposite ends of the step.

[00:14:46] Speaker 00:
Sure.

[00:14:46] Speaker 00:
I think if the board had gone farther to say it's the arms 20A, 20B, 26A, 26B, attached in a certain manner, attached to the step at the outer edges, or attached in a certain location,

[00:14:59] Speaker 00:
then I think that you could.

[00:15:01] Speaker 04:
But again, we have to look at the figures to find out what they are and where they're located is clear.

[00:15:09] Speaker 00:
Sure, absolutely.

[00:15:10] Speaker 00:
But think about sort of the flip side of this for infringement purposes.

[00:15:15] Speaker 00:
If you had arms, the same type of arms 2026, when you put them close together in the middle,

[00:15:22] Speaker 00:
Would that get you out of an infringement situation because they were located in a different location?

[00:15:26] Speaker 00:
I don't think so because if you look at the claim and look at what's actually in the limitations, they don't have any requirement for the spacing or anything like that.

[00:15:34] Speaker 00:
So to try to read that in here to avoid an invalidity ruling, I think is just completely improper.

[00:15:41] Speaker 00:
You have to look at what's actually in the wording that they adopted.

[00:15:44] Speaker 00:
And I don't see any requirement or limitation as to where the arms go, how they're attached, or any type of structural rigidity that's required.

[00:15:50] Speaker 04:
Except that the description in the spec shows arms spaced apart by a reasonable difference.

[00:15:56] Speaker 04:
And everything about this patent would suggest that you want stability to that step to allow people to exit and enter the boat.

[00:16:03] Speaker 04:
And so I think that your idea that you could

[00:16:05] Speaker 04:
replace two arms space on either side of the device with a single post in the middle that might result in wobbliness.

[00:16:12] Speaker 04:
I mean, I'm just having a lot of difficulty finding that that fact-finding by the board ought to be reversed under the standard of review that we give them.

[00:16:19] Speaker 04:
In fact, I think under the NOHO standard, I'd affirm them.

[00:16:22] Speaker 00:
So I think there, again, it depends upon the size or the shape of the step.

[00:16:27] Speaker 00:
You do not have to read into this that big, flat, wide platform that's in the patent.

[00:16:32] Speaker 00:
And the steps in the prior reference are steps.

[00:16:35] Speaker 00:
They do meet the requirements.

[00:16:37] Speaker 00:
And again, there's a presumption of operability that they are more than sufficient to support those types of steps.

[00:16:42] Speaker 00:
The other thing I would say to keep in mind, too, is that there's additional components.

[00:16:46] Speaker 00:
You've got a rail and a flange that are used in the embodiment here that actually go between the two arms, the movable arms 26.

[00:16:53] Speaker 00:
And those were not included as part of the construction here.

[00:16:55] Speaker 00:
They said it was only, they said at least it included the movable and stationary arms.

[00:16:59] Speaker 00:
But they did not require that flange in the rail.

[00:17:02] Speaker 00:
So if you look in the patent, there's a flange in a rail.

[00:17:04] Speaker 00:
That type of platform, that plate that you would see is required.

[00:17:08] Speaker 00:
And that was not read into this definition here by the PTAB.

[00:17:10] Speaker 00:
So I'm over my time.

[00:17:11] Speaker 00:
I'm going to stop unless you have additional questions.

[00:17:14] Speaker 02:
That will give you two minutes for a bottle of water.

[00:17:16] Speaker 02:
Thank you, Your Honor.

[00:17:18] Speaker 02:
For Ms.

[00:17:19] Speaker 03:
Vicks.

[00:17:23] Speaker 03:
Thank you, Your Honor.

[00:17:25] Speaker 03:
On the McCrea reference, I wanted to make

[00:17:29] Speaker 03:
point if you look at the McCrea pin itself which is on the appendix at 378.

[00:17:37] Speaker 03:
That pin 10 which is attached to the arm H is utilized to fasten the movable arm pivotally to the base.

[00:17:56] Speaker 03:
If you determine that that pin

[00:17:58] Speaker 03:
is in fact a stationary arm, then you've eliminated the requirement in the claims for a stationary arm.

[00:18:06] Speaker 03:
I mean, the claims require stationary arms that are coupled to a base and movable arms that are then coupled to the stationary arms.

[00:18:17] Speaker 03:
In this scenario, the pivot pin is simply directly attaching the movable arm to the base.

[00:18:26] Speaker 03:
There is no stationary arm.

[00:18:29] Speaker 03:
And so the board's opinion that that was merely a pivot or a fastener was correct.

[00:18:39] Speaker 03:
The fact that McCrea indicates that the pin supports the movable arm doesn't make it more than a fastener or a pivot.

[00:18:51] Speaker 03:
A pivot by definition has to support the thing that is pivoting on it, a fastener

[00:18:58] Speaker 03:
by definition, has to support the thing that it's fastening.

[00:19:02] Speaker 03:
So the fact that it supports it doesn't make it more than simply a pivot or a fastener.

[00:19:09] Speaker 01:
Is there some notion, and I guess this is what I thought they might have been getting at in that page, page seven of the construction brief, that support has something to do with weight bearing and that there are certain kinds of fasteners that

[00:19:28] Speaker 01:
might merely be, it might not bear weight and this one does and therefore this one is, provides support because it's weight bearing and that's not true of all pivots and so this one is included.

[00:19:44] Speaker 01:
I realize I may be reading more into it.

[00:19:46] Speaker 03:
Right.

[00:19:48] Speaker 03:
I certainly didn't read that in any argument they presented.

[00:19:50] Speaker 03:
They didn't, the only argument they presented

[00:19:54] Speaker 03:
in evidence that this was more than a pivot fastener was the evidence that they've cited to on this page seven and it really doesn't suggest how they're indicating that it does provide something more than a pivot or fastener.

[00:20:12] Speaker 01:
Can you address the sentence on page 23 of the board's decision and in particular the sentence that comes after

[00:20:22] Speaker 01:
In that briefing, however, Petitioner does not address how.

[00:20:26] Speaker 01:
Right.

[00:20:26] Speaker 01:
Petitioner instead states, doesn't that suggest that the board actually read page seven of that cited petition brief as invoking only Terlusky and therefore didn't really quite recognize that it had something to evaluate in the larger paragraph about McCray, I think so.

[00:20:50] Speaker 03:
I think a better reading, especially when you look at page seven, since they indicate they did look at those pages of the argument.

[00:20:57] Speaker 03:
They asked for argument on the issue, and they cited to the pages that the argument appeared.

[00:21:04] Speaker 03:
They say, does not address how.

[00:21:07] Speaker 03:
And I believe that's an important point, because there are other places.

[00:21:12] Speaker 01:
I guess I want you to focus on the word instead.

[00:21:15] Speaker 03:
On the instead.

[00:21:17] Speaker 03:
The way that I interpret that is when you look at the argument as to Turlesky, there actually is an arm in Turlesky.

[00:21:26] Speaker 03:
It's not a stationary arm, but it is something beyond a pivot point.

[00:21:30] Speaker 03:
So I think when they're saying instead they're showing it in Turlesky, they're just indicating that they haven't shown how there's something other than a pivot in McCrea.

[00:21:43] Speaker 03:
Instead, they're showing something other than a pivot in Terleski, but they didn't rely on Terleski for that point in their petition.

[00:22:06] Speaker 03:
I just want to make sure I've addressed everything.

[00:22:10] Speaker 03:
I guess I would again emphasize that the petitioner is indicating that there's this dual function of the pen in McCrea.

[00:22:19] Speaker 03:
And the board did evaluate McCrea.

[00:22:25] Speaker 03:
They cited to McCrea.

[00:22:27] Speaker 03:
They evaluated evidence that the patent owner presented, including an expert declaration, Green, which is at the appendix 1986, where he indicates this is nothing more than a pivot

[00:22:39] Speaker 03:
or fastening structure, he indicated that with the patent owner response.

[00:22:47] Speaker 03:
So this was something that could have been disputed through evidence on reply and was not.

[00:23:00] Speaker 03:
Then I'd like to go on, if I could, to the arguments regarding suitor, unless you have some questions.

[00:23:11] Speaker 03:
Go ahead.

[00:23:14] Speaker 03:
They've first faulted the board for stating that the standard for structural equivalence is insubstantial differences.

[00:23:22] Speaker 03:
And as I read odetics in the cases, insubstantial differences is the standard you can determine whether or not the differences are insubstantial in a number of different ways, including with the modified rateway result test or

[00:23:38] Speaker 03:
with interchangeability or in some other way that the differences were insubstantial.

[00:23:43] Speaker 03:
But if you look at the argument and the only argument that was submitted by the petitioner was in their reply, it's at appendix 2817.

[00:23:58] Speaker 03:
They say, and again, this is the only evidence they presented on structural equivalence.

[00:24:05] Speaker 03:
Regardless, suitor structure is certainly equivalent.

[00:24:10] Speaker 03:
Structural equivalence under 112 paragraph 6 is met when the differences are insubstantial.

[00:24:17] Speaker 03:
So this is the argument that was presented in the reply.

[00:24:23] Speaker 03:
In addition, if you move on, they then say both movable arms 20A and 20B of the 880 patent and post 24 of suitor

[00:24:33] Speaker 03:
function to couple the step and then they go on and the only analysis that they provide is a comparison between the movable arms 20A and 20B and post 24.

[00:24:46] Speaker 03:
So now they're asserting that the board was incorrect in referring to insubstantial differences even though that was the standard that they also focused on and they're objecting to the board's comparison of the movable arms to the post

[00:25:03] Speaker 03:
But that's the only evidence of any sort that they presented.

[00:25:07] Speaker 03:
That's the only argument that they presented.

[00:25:10] Speaker 03:
And as to all of the evidence that the patent owner presented as to why there was a difference in the way and the result that the structure operated, they rejected them all just as he did here on the basis that those weren't relevant.

[00:25:31] Speaker 03:
but they are relevant because the issue is whether or not the structure performs the function in the same way to achieve the same result.

[00:25:43] Speaker 03:
In the testimony that we presented of Mr. Breen, he pointed out that not only is the post attached on one side of the step as opposed to two arms on either end, but that post is pivotally attached, which I think is important to understand

[00:26:01] Speaker 03:
it is not fixedly attached to the step the way that the movable arms are in the cobalt patent.

[00:26:10] Speaker 03:
And because it's pivotally attached, the step actually can flip.

[00:26:16] Speaker 03:
Like when the post goes up, the step flips all the way down to where it's just laying vertically against the side of the post.

[00:26:25] Speaker 03:
It's not extending out horizontally.

[00:26:28] Speaker 03:
When the post then flips down into the water,

[00:26:31] Speaker 03:
The step flips out, but what stops it is not the post that it's attached to.

[00:26:37] Speaker 03:
It's another post, which unfortunately it's also referred to as a post, but it's post 30, which is a separate structure that's extending under on the side of the step.

[00:26:50] Speaker 03:
That's what stops it and then holds it out vertically.

[00:26:54] Speaker 03:
It's completely separate from the vertical post.

[00:26:59] Speaker 03:
that is post-24 of Souter that they asserted was somehow equivalent.

[00:27:05] Speaker 03:
So Mr. Breen went through and said, look, it's not on the same, it's not positioned at the same place.

[00:27:12] Speaker 03:
It's fixedly attached as opposed to pivotally attached.

[00:27:17] Speaker 03:
And this results in a very different structure.

[00:27:20] Speaker 03:
They didn't indicate that those differences were not substantial.

[00:27:26] Speaker 03:
They didn't present

[00:27:27] Speaker 03:
any evidence.

[00:27:29] Speaker 03:
Contrary to that, they didn't present an expert declaration in rebuttal at all.

[00:27:35] Speaker 03:
They provided attorney argument which focuses exclusively on functional equivalence, not on structural equivalence.

[00:27:44] Speaker 03:
So they didn't dispute any of the arguments that Mr. Breen presented.

[00:27:50] Speaker 03:
Mr. Breen also then said, and it's not interchangeable.

[00:27:54] Speaker 03:
So first he addressed way and result.

[00:27:57] Speaker 03:
It's not the same way in result.

[00:27:59] Speaker 03:
And then he said it's also not interchangeable because if someone was going to interchange the single post for the two, then you would put it for stability under the center and you would need some kind of a plate.

[00:28:11] Speaker 03:
It had nothing to do with the size of the step.

[00:28:15] Speaker 03:
It just has to do with the fact that the post would not provide stability or at least from a whether or not you would

[00:28:26] Speaker 03:
decide to replace one or think one could replace the other is what he was saying was that you would need some kind of a support.

[00:28:38] Speaker 03:
The biggest issue I think here is that the Patenotter presented a lot of evidence about why there was no structural equivalence.

[00:28:47] Speaker 03:
The petitioner had the burden to present evidence and they presented none.

[00:28:52] Speaker 03:
I mean, these arguments are simply about functional equivalence and when you go over to the appendix 2818, they simply say, well, the exact manner the steps are secure is immaterial because functionally the differences are insubstantial.

[00:29:10] Speaker 03:
Well, that's not the test.

[00:29:11] Speaker 03:
It's not about functionality for way and result or for structure.

[00:29:17] Speaker 03:
It's about whether or not the structure is the same and they didn't address that.

[00:29:21] Speaker 03:
They also said it wasn't relevant if it was interchangeable.

[00:29:26] Speaker 03:
But again, it is relevant.

[00:29:28] Speaker 03:
That's one of the tests that you can show that it's substantial or insubstantial differences.

[00:29:38] Speaker 03:
I think those were the only points that I wanted to make unless you have some questions.

[00:29:47] Speaker 02:
Okay.

[00:29:47] Speaker 02:
Thank you, Ms.

[00:29:47] Speaker 02:
Schlesinger.

[00:29:48] Speaker 02:
Thank you.

[00:29:51] Speaker 02:
Mr. White, you have two minutes.

[00:29:52] Speaker 00:
Thank you.

[00:29:54] Speaker 00:
So first, on the McCree issue, McCree clearly states that the movable arms are supported by the pins.

[00:30:01] Speaker 00:
So I think that that clearly shows that the pins do more than just couple.

[00:30:05] Speaker 00:
They also support.

[00:30:05] Speaker 00:
That's directly in McCree itself.

[00:30:08] Speaker 00:
I think the instead language from the board's decision shows they just missed some of the arguments.

[00:30:14] Speaker 00:
And as we know from the Security Exchange Commission versus Chenery and applied materials,

[00:30:19] Speaker 00:
You have to evaluate the decision on what's written in the board's final written decision.

[00:30:23] Speaker 00:
We see no acknowledgement or analysis of the arguments that we made with respect to McCree.

[00:30:29] Speaker 00:
And therefore, it requires remand to address at least that issue.

[00:30:32] Speaker 00:
In terms of the claim five issue, the pseudo reference, the structures do not have to be identical.

[00:30:39] Speaker 00:
That's the whole point of the equivalence test.

[00:30:42] Speaker 00:
If the structures had to be identical, you would never get to the equivalence test.

[00:30:46] Speaker 00:
We did present arguments about the function, the way, and the result that the two compared devices work.

[00:30:52] Speaker 00:
Why is that important?

[00:30:53] Speaker 00:
Because the test is, does the device in the prior art perform the identical function?

[00:30:59] Speaker 00:
Does it do it substantially the same way to achieve substantially the same result?

[00:31:04] Speaker 00:
And the answers to those are yes.

[00:31:05] Speaker 00:
We provided evidence of that in the arguments, and we also addressed it in the briefing.

[00:31:10] Speaker 00:
So, yet if you look at the board's decision, it showed no analysis of that issue whatsoever.

[00:31:16] Speaker 00:
So again, we think it requires remand at least to distress that issue, to address those issues, and deal with the arguments and the evidence we presented.

[00:31:24] Speaker 00:
And then, and finally, on the last issue I raised before I sat down the first time, I mentioned to you the flange and the rail as being at least something to consider when you look at the drawings as you see what the movable arms 26 are attached to.

[00:31:35] Speaker 00:
The site of that is appendix page 48, and the flange is labeled 19 in the drawings, and the rail is labeled 18.

[00:31:42] Speaker 00:
So when you're looking for the support for that argument that I made to you, that's where you'll find it in the record.

[00:31:46] Speaker 00:
That's all I have.

[00:31:47] Speaker 00:
Thank you, Your Honors.