[00:00:00] Speaker 03:
Mr. Metalsky.

[00:00:21] Speaker 00:
Good morning, Your Honors.

[00:00:23] Speaker 00:
My name is Mark Mikulski.

[00:00:24] Speaker 00:
I am counsel for Hayward Industries at this matter.

[00:00:27] Speaker 00:
And again, Your Honors, this is another appeal from an inter-party's re-examination proceeding in the USPTO.

[00:00:32] Speaker 00:
Your Honors, in this appeal, we believe that the board committed several errors that require this court's reversal.

[00:00:38] Speaker 00:
And specifically, I think there are three major issues that we should discuss with you today.

[00:00:42] Speaker 00:
The first is with respect to the adopted grounds of prior art rejection that were adopted by the examiner.

[00:00:47] Speaker 00:
but were incorrectly reversed by the board, and that board's decision is not supported by substantial evidence.

[00:00:54] Speaker 00:
Secondly, I would like to talk about the Section 112 issues, but before I get to that, the three references that I will be discussing with respect to prior art, Your Honors, are the Genheimer reference, the Baldor reference, and the Caro reference.

[00:01:06] Speaker 00:
The second issue, as I started to say, is the Section 112 grounds of rejection.

[00:01:10] Speaker 00:
I would like to talk about why the board's reversal of those grounds are not supported by substantial evidence.

[00:01:15] Speaker 00:
And finally, I'd like to talk about other grounds

[00:01:17] Speaker 00:
that were raised in this appeal to the Board and an on-cross appeal, which are entirely not addressed whatsoever by the Board's opinion.

[00:01:24] Speaker 00:
I'd like to turn first to the prior art grounds, and in particular, I'd like to focus on the Genheimer grounds of rejection, which were adopted by the examiner with respect to claims 1 through 7 and 9 through 14, and why the Board's reversal of those rejections was improper.

[00:01:38] Speaker 00:
First of all, Your Honors, there are three issues here.

[00:01:41] Speaker 00:
The first is with respect to the construction of the claim term drive, and that claim construction issue only impacts the Genheimer

[00:01:47] Speaker 00:
analysis.

[00:01:48] Speaker 00:
We believe that the board improperly construed the term drive to require a variable speed drive.

[00:01:54] Speaker 03:
Okay, let's suppose you're correct about that.

[00:01:56] Speaker 03:
Yes, Your Honor.

[00:01:56] Speaker 03:
But they also said it's not an on-off switch.

[00:02:00] Speaker 03:
And does Gennheimer disclose anything other than an on-off switch?

[00:02:04] Speaker 00:
I believe it does, Your Honor, and in fact the reference talks about electromagnetic circuitry that exists within that starter 36.

[00:02:10] Speaker 03:
How is it not an on-off switch?

[00:02:12] Speaker 03:
My understanding of Gennheimer is that it's an on-off switch in the sense that

[00:02:17] Speaker 03:
it'll turn it on and off and the only difference from a traditional on-off switch is that if you have a power loss that the system will revert to the off position so that when the power goes back on it doesn't start the pump again.

[00:02:36] Speaker 00:
I think the difference there, Your Honor, is that there is a coil and that coil is under microprocessor control and the microprocessor selectively can turn the switch on and off, of course.

[00:02:45] Speaker 00:
but also maintain the application of power when it's necessary for the drive to run.

[00:02:49] Speaker 00:
So that is a function that has a temporal duration.

[00:02:52] Speaker 05:
So it's a form of a kind of relay?

[00:02:55] Speaker 05:
Correct, Your Honor.

[00:02:58] Speaker 05:
Well, why isn't that just an electronic switch?

[00:03:01] Speaker 00:
Well, I think, Your Honors, that when the examiner's construction, which says the electronics that produce the proper electrical signal, it has to be evaluated from the perspective of the device that is being powered.

[00:03:11] Speaker 00:
The proper electrical signal would be, I need to have this power applied for a particular duration for the motor to be on.

[00:03:17] Speaker 00:
And that's why we believe that that's proper and why it's taught by this reference.

[00:03:21] Speaker 05:
But Your Honors, I think also... So the key for you in terms of the word proper is the timing.

[00:03:27] Speaker 00:
Intended purpose for the motor and timing could be part of that, absolutely not.

[00:03:33] Speaker 00:
I think regardless of what the construction issue is, whether the board, whether this court adopts the board's construction or the examiner's construction,

[00:03:40] Speaker 00:
The references, the Genheimer references, teach that.

[00:03:42] Speaker 00:
The grounds of rejection that were adopted by the examiner teach that.

[00:03:45] Speaker 00:
So we've been talking about the Genheimer reference itself under the board's construction, under our construction.

[00:03:52] Speaker 00:
But under the board's construction, your honor, if this court is inclined to find that the term drive refers to something that's beyond just a switch, there is an adopted ground of rejection.

[00:04:01] Speaker 00:
And it's issue 20 that was presented to the examiner.

[00:04:05] Speaker 00:
And it specifically addressed the combination

[00:04:08] Speaker 00:
the Gennheimer reference, which the examiner agreed has everything that is taught in the claims at issue of the 587 patent, with the combination of the Carrow reference.

[00:04:17] Speaker 00:
The Carrow reference is a textbook that specifically is directed to variable frequency crimes.

[00:04:22] Speaker 00:
And in fact, it discloses an inverter type of architecture that is at issue in the 587 patent.

[00:04:28] Speaker 00:
So that was never addressed by the board in its decision.

[00:04:32] Speaker 00:
The obviousness combination of those two references was never addressed at all.

[00:04:36] Speaker 00:
And we believe that

[00:04:37] Speaker 00:
that's sufficient for this court to look at the record, to see that the examiner agreed with us that that's an obvious combination, and I agree with you, and to uphold that the claims are obvious in view of that.

[00:04:48] Speaker 00:
I'd like to turn, Your Honors, if I could, to the Baldor grounds of rejection, and that's the second portion of my presentation on the prior part.

[00:04:55] Speaker 00:
And I think there are three issues here.

[00:04:58] Speaker 00:
The issue that has been pointed to by opposing counsel is with respect to what's referred to as the torque limit mode of operation.

[00:05:04] Speaker 00:
Now, let me step back with the Baldor reference and just describe what it teaches.

[00:05:08] Speaker 00:
Baldor teaches a variable frequency drive that has the ability to detect an overcurrent condition, to shut down the motor for a predetermined period of time, and to start that motor again after that predetermined period of time has expired.

[00:05:19] Speaker 00:
That's precisely what's in the claims of the 587 patent.

[00:05:23] Speaker 00:
The opposing counsel has said, well,

[00:05:25] Speaker 00:
There is this torque limit mode, and it's disclosed on page 3-15 of the Baldor reference, and that's appendix 579, that involves an evaluation of frequency.

[00:05:36] Speaker 00:
Now, that teaching does not trump other expressed teachings of overcurrent detection, which is expressed within the reference itself.

[00:05:46] Speaker 00:
The torque limit mode is entirely optional.

[00:05:48] Speaker 00:
It is a mode of operation that can be overridden by the operator of the system.

[00:05:53] Speaker 00:
And in fact, state that in that mode, there is a predicate evaluation of frequency before there's an evaluation of current, or that frequency is a proxy for current.

[00:06:06] Speaker 00:
In fact, Your Honors, I think it's quite the opposite.

[00:06:08] Speaker 00:
It states in that mode that there can still be an overcurrent detection and trip condition that occurs.

[00:06:13] Speaker 00:
But even putting aside the torque limit mode of operations, Your Honors, there are other expressed teachings, which the examiner agreed with us, of overcurrent detection and shutdown throughout this reference.

[00:06:24] Speaker 00:
And we've repeatedly, on the record, cited to the fault condition codes F16 through F9, which are on page 4-2 of the Baldor reference, and that can be found in Appendix 592.

[00:06:36] Speaker 00:
Those are all identified by this manual.

[00:06:39] Speaker 03:
I see on page 592 these reference to these fault codes, which means turning off the pump.

[00:06:50] Speaker 03:
It says overcurrent during acceleration, overcurrent during deceleration, overcurrent while running.

[00:06:57] Speaker 03:
Why does the board say that these don't disclose an overcurrent situation?

[00:07:03] Speaker 00:
The only reason we can understand, Your Honors, is because they have latched improperly, we think, to the teachings of this torque limit mode, which is the only one that talks about frequency evaluation.

[00:07:13] Speaker 00:
And, Your Honors, I agree with you.

[00:07:14] Speaker 00:
I don't think that the board should have ruled that there's no detection of overcurrent or ineffective references.

[00:07:19] Speaker 03:
What exactly did they say about these codes that are on 572?

[00:07:24] Speaker 00:
I believe, Your Honors, they, again, they acknowledged that there is a... No, no, wait.

[00:07:31] Speaker 02:
Show us what they said about it.

[00:07:33] Speaker 00:
I don't have the citation for that.

[00:07:37] Speaker 02:
You've got to come to the bar already prepared, you know.

[00:07:40] Speaker 02:
We've spent a lot of time looking at this stuff.

[00:07:42] Speaker 02:
You need to spend time looking at it.

[00:07:43] Speaker 00:
Understood.

[00:07:45] Speaker 00:
And in fact, here's what they said with respect to the detection with Baldor.

[00:07:50] Speaker 00:
They said the requester emphatically states... Where are you?

[00:07:52] Speaker 00:
I'm looking at appendix 9, Your Honor.

[00:07:55] Speaker 00:
Requester emphatically states that nowhere does Baldor state... Wait, where?

[00:07:58] Speaker 00:
At the bottom, footnote 3.

[00:08:05] Speaker 03:
Hold on a second.

[00:08:11] Speaker 00:
All right.

[00:08:15] Speaker 00:
Continue.

[00:08:16] Speaker 00:
OK.

[00:08:17] Speaker 00:
It says here the requestor emphatically states that nowhere does Baldor state that the overcurrent faults require frequency measurements.

[00:08:23] Speaker 00:
And they state that we find such a statement troubling because Baldor very clearly states that if the motor is loaded large enough to drive the inverter to below this output frequency, the inverter will trip on an overcurrent fault.

[00:08:33] Speaker 00:
Their conclusion there was that, accordingly,

[00:08:35] Speaker 00:
It's not the actual measurement of overcurrent that produces the fault, but the proxy measurement of frequency.

[00:08:39] Speaker 00:
But there is a disconnect there, Your Honors.

[00:08:41] Speaker 00:
There's a fundamental disconnect there.

[00:08:42] Speaker 00:
Because what they have quoted with respect to this discussion of frequency is only in this optional mode of torque limit that is referred to on page 3-15 of the reference.

[00:08:55] Speaker 00:
It does not state that frequency is a proxy for the measurement of current anywhere in this reference at all.

[00:09:01] Speaker 00:
In fact, our expert.

[00:09:02] Speaker 00:
So what?

[00:09:04] Speaker 03:
Hold on.

[00:09:04] Speaker 03:
So what they're doing is saying that these fault codes, 16, 17, and 18, which refer to overcurrent, are somehow cabined by the earlier discussion about torque limits?

[00:09:25] Speaker 00:
Correct, Your Honor.

[00:09:26] Speaker 00:
I think that's exactly what they've done, and that was improper.

[00:09:29] Speaker 00:
Because in addition to what we're talking about, your honor, one of the other codes that are mentioned is bus current measurement.

[00:09:34] Speaker 00:
If you look at fault code FO3, which is also on that page, it says bus current measurement.

[00:09:40] Speaker 00:
So precisely the type of current measurement to indicate there's a measurement fault, it requires that there be an evaluation of current, a measurement of current.

[00:09:49] Speaker 00:
So I think that there's express disclosure there that teaches overcurrent detection.

[00:09:54] Speaker 00:
The other thing I would like to point out, and I would like to just jump to the 112 grounds if I could, and then we'll come back to Caro, with respect to Valder, I'm still on, is, again, there's another ground of rejection that was adopted by the examiner, Your Honors, and that's issue 23, rejection eight, where we combine the teachings of the Caro reference, which, again, Caro expressly teaches over current detection, and shut down, in combination.

[00:10:20] Speaker 00:
And that was acknowledged by the examiner in the right of appeal notice at appendix 14039.

[00:10:25] Speaker 04:
But the board didn't address that combination.

[00:10:29] Speaker 04:
Correct, your honor.

[00:10:30] Speaker 04:
So we're really not in a position to rule on that, are we?

[00:10:37] Speaker 00:
I think you can rule whether or not a combination that the examiner found is obvious is something that could be decided here in this court.

[00:10:44] Speaker 00:
Absolutely.

[00:10:45] Speaker 00:
It's entirely in the record in front of you, and it was a subject of the appeal as well.

[00:10:49] Speaker 00:
But the board's decision is what's before us, not the examiner's.

[00:10:52] Speaker 00:
Yes, Your Honor.

[00:10:54] Speaker 03:
Didn't the Board find waiver with respect to this?

[00:10:57] Speaker 00:
I don't think they did with respect to any of these arguments, Your Honor.

[00:10:59] Speaker 00:
No.

[00:11:00] Speaker 00:
None whatsoever.

[00:11:01] Speaker 00:
I would like to turn to the 112 issues, if I could, Your Honors, because I am running out of time.

[00:11:05] Speaker 00:
And we will come back to Carol if we do have some extra time.

[00:11:08] Speaker 00:
The Section 112 issues, I'd like to just point you to Figure 1, if we could, of the patent.

[00:11:11] Speaker 00:
And that's Appendix 191.

[00:11:13] Speaker 00:
And the issues are this.

[00:11:15] Speaker 00:
So claims 8 and 15 recite powering the DC bus when the drive is shut down for the predetermined period of time.

[00:11:22] Speaker 00:
So in other words, there's an application of power to the DC bus when the drives have been shut down.

[00:11:27] Speaker 00:
And we stated to the examiner, and the examiner agreed with us, that there's no express disclosure anywhere in this reference, or even inherently, that supports that limitation.

[00:11:38] Speaker 00:
Those limitations were added during inter-party re-examination by virtue of Pentair adding claims 8 and 15.

[00:11:44] Speaker 00:
And additionally, there's an argument that was raised by Pentair, Your Honors, which talks about

[00:11:49] Speaker 00:
the LED of the terminal.

[00:11:52] Speaker 00:
If we look on figure one of the patent, we see that what is identified in the specification as the DC bus is the element 48.

[00:12:00] Speaker 00:
And it interconnects a current sensor, which is element 30, and the drives 46.

[00:12:05] Speaker 00:
That is the only structure that is identified as a DC bus within this specification.

[00:12:10] Speaker 00:
And in fact, it's a high voltage DC bus.

[00:12:12] Speaker 00:
It says it's 390 volts, up to 390 volts.

[00:12:16] Speaker 00:
The board, we think, improperly concluded that by virtue of there being a teaching that there's an LEDA, which you see on Terminal 62, that somehow there must be a powered DC bus when the drives are shut down.

[00:12:27] Speaker 00:
But that's improper because the specification doesn't state that this DC bus 48, which is a high voltage DC bus, actually powers this terminal and it's LED 62.

[00:12:36] Speaker 00:
Diagrammatically, it's not even shown connected to it whatsoever, nor is there any disclosure in the reference that

[00:12:41] Speaker 00:
that that actually is powered by this DC bus.

[00:12:44] Speaker 00:
So, Your Honors, I would like to reserve whatever I have remaining for rebuttal.

[00:12:49] Speaker 00:
I think I do have two minutes at this point.

[00:12:51] Speaker 00:
Yes, two and a half minutes.

[00:12:52] Speaker 00:
Okay.

[00:12:52] Speaker 00:
Thank you, Your Honor.

[00:12:53] Speaker 03:
Thank you.

[00:12:55] Speaker 03:
Mr. Fahey again.

[00:13:00] Speaker 03:
Thank you, Your Honor.

[00:13:03] Speaker 03:
So with respect to Baldor, I don't understand where you have on 592 these fault codes that show

[00:13:11] Speaker 03:
tripping as a result of overcurrent, and the board says, oh, no, no, that's somehow limited by something that is said pages earlier in the reference on page 579.

[00:13:24] Speaker 03:
I mean, what's the basis for that?

[00:13:28] Speaker 01:
It's the only description of those fault codes, 16, 17, or 18.

[00:13:32] Speaker 01:
It's the only disclosure in Boulder.

[00:13:35] Speaker 01:
that the fault codes on their face are overcurrent fault codes.

[00:13:38] Speaker 01:
Well, they use the word overcurrent, but the description describes how they actually work, and that description, as quoted and relied on by the board, is talking about frequency.

[00:13:46] Speaker 03:
There is no disclosure.

[00:13:48] Speaker 03:
Where does paragraph 39 limit the fault codes to that situation?

[00:13:54] Speaker 01:
Well, this is what Hayward continues to try to do, is to argue that a

[00:13:57] Speaker 01:
You know, an absence of a disclosure is an affirmative disclosure.

[00:14:00] Speaker 01:
The question is, where is the disclosure?

[00:14:02] Speaker 03:
The disclosure says that there's a tripping where there's an overcurrent situation.

[00:14:06] Speaker 03:
And you look at page 591, it talks about the codes.

[00:14:10] Speaker 03:
It says typical fault display.

[00:14:11] Speaker 01:
It shows F18.

[00:14:14] Speaker 01:
But it does not disclose affirmatively that the motor gets shut down for a period of time and then restarted because of an overcurrent fault.

[00:14:24] Speaker 01:
The only disclosure is frequency, and I will point out that this whole optional mode argument... We're not talking about restarting after a period of time here.

[00:14:30] Speaker 03:
We're just talking about whether it trips on an overcurrent situation.

[00:14:33] Speaker 01:
The claim language is restarting over a period of time.

[00:14:36] Speaker 03:
But I don't understand that that is what the board found.

[00:14:39] Speaker 03:
I mean, as to other references, I guess, CARO, it talks about what the period of time is.

[00:14:48] Speaker 03:
What the board is saying is not that it doesn't restart in an appropriate period of time.

[00:14:54] Speaker 03:
It says that Baldor doesn't disclose tripping in an overcurrent situation.

[00:14:59] Speaker 01:
The only overcurrent situation... Isn't that correct?

[00:15:02] Speaker 01:
Isn't my statement correct?

[00:15:03] Speaker 01:
You're right, Your Honor.

[00:15:04] Speaker 01:
The board found that Baldor is missing, measuring current, comparing it to an upper limit, and shutting down the motor.

[00:15:14] Speaker 01:
It's an overcurrent trip.

[00:15:15] Speaker 01:
And when it describes fault codes that trip by overcurrent, that's not describing... It doesn't describe fault codes that trip by overcurrent.

[00:15:21] Speaker 01:
It describes those exact fault codes as tripping based on the output frequency.

[00:15:25] Speaker 03:
And when it talks about the current measurements... The description of a fault code means it's tripping, right?

[00:15:36] Speaker 01:
Not necessarily.

[00:15:37] Speaker 01:
Not necessarily?

[00:15:38] Speaker 01:
It could have an LED indicator come on and let you know that the temperature is too high or any number of things.

[00:15:45] Speaker 01:
that disclosure is absent from bulldozer and that's what the examiner found and again this was brought up again on the rehearing and the examiner twice rejected this argument and this whole optional torque limit mode argument was waived it is a new argument the exam or the board said it's a new argument and it is not properly before this court the court can determine whether the board's finding of waiver of this argument this on page five ninety one it says

[00:16:14] Speaker 03:
These displays may occur from normal operation and from a fault trip condition.

[00:16:18] Speaker 03:
So contrary to what you're saying, this itself on its face says they're talking about a fault trip condition.

[00:16:26] Speaker 01:
But that can mean a number of things.

[00:16:28] Speaker 01:
A fault trip can mean notifying you that there's something going on.

[00:16:31] Speaker 01:
A fault trip can mean shutting down the motor.

[00:16:34] Speaker 01:
A fault trip can mean shutting down the motor and restarting the motor.

[00:16:38] Speaker 01:
A fault trip can mean resetting and not restarting.

[00:16:41] Speaker 01:
There is no affirmative disclosure.

[00:16:43] Speaker 01:
in Baldor is the board found that you shut down the motor after an overcurrent fault.

[00:16:50] Speaker 01:
And in fact, the one fault code, fault code 20, where Baldor does disclose measuring current and comparing to an upper limit, it's doing the exact opposite.

[00:16:58] Speaker 03:
It's then allowing... It talks about, on the top of page 592, it talks about passing the U up arrow before the fault is reset.

[00:17:08] Speaker 01:
And that's resetting.

[00:17:09] Speaker 01:
Yes, Your Honor.

[00:17:09] Speaker 01:
That's resetting.

[00:17:10] Speaker 03:
That's not restartting.

[00:17:12] Speaker 03:
have tripped the motor, right?

[00:17:16] Speaker 01:
In that situation, possibly.

[00:17:18] Speaker 01:
But there's no link, there's no affirmative disclosure linking that to an overcurrent fault.

[00:17:23] Speaker 03:
Well, that's on the same page.

[00:17:24] Speaker 03:
It's talking about stopping the motor when you have one of these fault situations.

[00:17:30] Speaker 01:
But when describing the fault codes, those exact fault codes, 16, 7, 18, the only description is measuring on frequency.

[00:17:38] Speaker 03:
So frequency is... Suppose he didn't have

[00:17:42] Speaker 03:
the page 579 in this reference.

[00:17:48] Speaker 03:
Forget about that.

[00:17:48] Speaker 03:
It didn't exist.

[00:17:49] Speaker 03:
Would you agree that page 592 shows fault codes tripping the motor in an overcurrent situation?

[00:17:59] Speaker 01:
Yes.

[00:18:00] Speaker 01:
Fortunately, there is that disclosure.

[00:18:04] Speaker 01:
And that specific disclosure is, it could have said, when the current is over an upper limit, we trip.

[00:18:08] Speaker 01:
And that's fault 1617.

[00:18:10] Speaker 01:
Instead, the actual disclosure, not the absence of disclosure, but the actual disclosure says, look at faults 16, 17, and 18.

[00:18:18] Speaker 01:
It trips when the inverter is below the output frequency.

[00:18:23] Speaker 01:
There is no affirmative disclosure about tripping on an overcurrent fault.

[00:18:27] Speaker 01:
And that's what the board found.

[00:18:29] Speaker 01:
The board, again, had this issue come up to it twice, once in the rehearing, and rejected the argument.

[00:18:37] Speaker 04:
What is the relationship between frequency and current?

[00:18:41] Speaker 04:
that allows frequency to be a proxy for overcurrent?

[00:18:53] Speaker 01:
Well, the proxy language is from the board.

[00:18:55] Speaker 01:
The actual language in the disclosure is just talking about the inverter below this output frequency and the inverter trips on the overcurrent fault.

[00:19:04] Speaker 04:
So there is no disclosure of that linkage.

[00:19:08] Speaker 04:
It sounds to me that there are two things going on here, that there's frequency that's an issue and current that's an issue.

[00:19:17] Speaker 04:
And when the frequency drops below a certain level, then certain conditions present themselves where overcurrent can trigger a fault.

[00:19:27] Speaker 01:
Right.

[00:19:27] Speaker 01:
But if you're measuring current for other reasons, why wouldn't you have disclosed that in the reference?

[00:19:35] Speaker 01:
So that's a distinction that matters.

[00:19:38] Speaker 01:
and that's what the board relied upon.

[00:19:46] Speaker 01:
So turning, Your Honors, to the Genheimer reference, which was mentioned by Hayward's counsel, claim construction is a non-issue.

[00:19:56] Speaker 01:
Regardless of the claim construction, Genheimer does not teach

[00:20:00] Speaker 01:
the claimed limitation.

[00:20:02] Speaker 01:
The switch in Gennheimer, the starter in Gennheimer is not a drive under any definition Hayward's or the board's claim construction.

[00:20:12] Speaker 01:
In regarding the 112 issues, Your Honor, raised by Hayward, if you look at the board's decision, the board adopts the examiner's findings.

[00:20:29] Speaker 01:
and then describes precisely its reasoning and cites to the actual record where it says the written description support is.

[00:20:36] Speaker 01:
And that is a factual finding and that is substantial evidence.

[00:20:41] Speaker 01:
And Hayward quibbles with what it wants the disclosure to mean, what it thinks the disclosure means, but nowhere does it say that this is not substantial evidence.

[00:20:53] Speaker 01:
The board made a factual finding, adopted the examiner's reasonings,

[00:20:58] Speaker 01:
then went on to explain further its reasoning, citing to the record that is the epitome of decision that should be upheld on substantial evidence.

[00:21:10] Speaker 01:
Finally, your honor, to the Baldor and Caro combination, there is zero evidence in the record that one of skill and the art at the time of the invention would have been motivated to combine Caro with Gennheimer.

[00:21:27] Speaker 01:
Did the board say that?

[00:21:29] Speaker 01:
Pardon?

[00:21:30] Speaker 01:
Did the board say that?

[00:21:31] Speaker 01:
No, the board didn't say that.

[00:21:32] Speaker 01:
What the board said is that Gennheimer doesn't disclose all the limitations and that Caro independently doesn't disclose the limitations.

[00:21:41] Speaker 01:
And that is, you know, the obviousness analysis should look at the claim as a whole.

[00:21:45] Speaker 01:
And if the limitations aren't in the references, then they don't even need to get to the issue.

[00:21:57] Speaker 01:
But another point, Your Honor, on Balder and Caro is, again, that there's no rationale to combine, no evidence, no testimony from one of Spielnir and the rationale.

[00:22:10] Speaker 01:
And you're still missing elements.

[00:22:11] Speaker 01:
And that's what the board found, is that Balder is missing the elements we were just talking about, and Caro is missing the same elements.

[00:22:19] Speaker 01:
So even in that combination, there are elements missing.

[00:22:22] Speaker 01:
So the board's findings there.

[00:22:24] Speaker 01:
are enough for this panel to affirm.

[00:22:34] Speaker 01:
There are no other questions, Your Honor.

[00:22:37] Speaker 03:
Okay.

[00:22:38] Speaker 03:
Thank you.

[00:22:38] Speaker 03:
Thank you, Mr. Bynum.

[00:22:41] Speaker 03:
Mr. Nikolsky, you have two and a half minutes.

[00:22:50] Speaker 00:
So, Your Honor, just four quick points in response to what opposing counsel has said.

[00:22:54] Speaker 00:
I agree with Your Honors.

[00:22:55] Speaker 00:
I think that there is expressed disclosure of overcurrent detection, fault tripping, and shutdown and restart expressly within this reference.

[00:23:03] Speaker 00:
We look at Appendix 592 that Your Honor has been referring to.

[00:23:06] Speaker 00:
It says in the event of a fault trip, the drive will shut down and it will display a fault code.

[00:23:11] Speaker 00:
And in fact, those codes are identified clearly as overcurrent fault codes.

[00:23:16] Speaker 00:
Secondarily, there's no expert testimony on this issue.

[00:23:19] Speaker 00:
Yes, Your Honor.

[00:23:20] Speaker 00:
In fact, our expert, Dr. Romani, which unfortunately the board didn't even address,

[00:23:24] Speaker 00:
specifically spoke to this point and said that he believes in his review of it as a person with ordinary skill in the art that there is overcurrent detection.

[00:23:31] Speaker 02:
Absolutely.

[00:23:32] Speaker 02:
And is there expert testimony from the other side on the issue?

[00:23:34] Speaker 00:
Yes.

[00:23:35] Speaker 02:
And what did it say?

[00:23:36] Speaker 00:
It said it relied on the over frequency argument.

[00:23:39] Speaker 03:
What it did is it said that this page 592 stuff was qualified by what happened earlier in the reference.

[00:23:48] Speaker 03:
Right.

[00:23:48] Speaker 03:
He doesn't say that reading this page on its own doesn't show overcurrent.

[00:23:54] Speaker 00:
Yes, Your Honor, that's correct.

[00:23:56] Speaker 00:
And, you know, there's also disclosure, I think, of the automatic restart feature, which is clear within this reference.

[00:24:02] Speaker 00:
And for those reasons, we think that it was improper for the board to reverse the bell door grounds.

[00:24:06] Speaker 00:
I would like to very quickly talk about the new argument position that's been taken by opposing counsel with respect to torque limit.

[00:24:15] Speaker 00:
We don't think that that was a new argument.

[00:24:17] Speaker 00:
In fact, it was an argument that was raised by opposing counsel first on the appeal to the PTAB.

[00:24:22] Speaker 00:
that this torque limit mode is somehow optional.

[00:24:24] Speaker 00:
We reacted to that argument in our briefing to the board.

[00:24:28] Speaker 00:
Lastly, Your Honors, I would just like to point with respect to the 112 grounds of rejection.

[00:24:33] Speaker 00:
In fact, the examiner did agree with us that what was pointed to as this LED, and it's also referred to in the board's opinion, does not support under 112 paragraph 1 the limitations that were put in claims 8 and 15.

[00:24:47] Speaker 00:
And in fact, that can be found in the

[00:24:52] Speaker 00:
in the decision by the RAND in Appendix 14.062, where the examiner specifically says, yes, I don't see how an LED that's on a completely separate power supply could be powered by this DC bus.

[00:25:03] Speaker 00:
And we know that it's a high-voltage DC bus from the disclosure of the reference.

[00:25:07] Speaker 00:
Lastly, Your Honors, to react to what the Opposite Council has said about the obviousness, rationales, and accommodations of Balder and Caro, those were presented to the examiner extensively, and in fact,

[00:25:17] Speaker 00:
They were in our third party comments, which addressed the combination of Belvoir and Caro.

[00:25:21] Speaker 00:
That's an appendix 12085 to 12086 and adopted by the RAND in appendix 14039.

[00:25:27] Speaker 00:
Thank you, Your Honor.

[00:25:30] Speaker 00:
For our time, thank both counsel.

[00:25:31] Speaker 00:
The case is submitted.

[00:25:32] Speaker 03:
That concludes our session for this month.