[00:01:52] Speaker 05:
All rise.

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The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and this honorable court.

[00:02:07] Speaker 02:
Good morning.

[00:02:07] Speaker 02:
Please be seated.

[00:02:14] Speaker 02:
First case for argument this morning is 161511, Homeland Housewares versus Rural Court.

[00:02:24] Speaker 04:
Good morning, your honors.

[00:02:25] Speaker 04:
If it please the court, my name is Joseph Trojan.

[00:02:27] Speaker 04:
I'm counsel for appellate Oman Housewares, the maker of the Magic Bullet and Neutral Bullet.

[00:02:35] Speaker 04:
In this case, it's important to look at an overview of this patent.

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The 688 patent claims a blender that speeds up and then slows down and then speeds up and then slows down.

[00:02:52] Speaker 04:
you can look at the claim and you can attach fancy patent words to each of those steps, but that's all that's essentially claimed.

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And so in this particular case, I think that the board lost track of the forest for the trees because something as simple as that is obvious in view of the prior art.

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First we know that simply speeding up and slowing down a blender

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was manually done before there were microprocessors.

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By 2007, microprocessors had already been applied to blenders and there's already prior art references that teach the speeding up and slowing down of blenders.

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It's obvious to want to speed a blender up and slow it down because naturally the ingredients move away from the blade and you slow it down so that the ingredients can settle around the blade.

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One of the things that may have happened here is that the other side had an expert and you didn't, right?

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Correct.

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And the board placed a lot of reliance on the expert who seemed to speak in coherent detail about what was going on here in the prior art references.

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Correct.

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Isn't there a basis that the board here had given the expert testimony on the other side to reach the conclusion it reached?

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As the Supreme Court said in KSR,

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You do not suspend common sense when you're doing these claim constructions and when you're determining whether an invention is contained in the prior art.

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For example, their expert goes and says that, well, someone skilled in the art would be concerned about repeating the process.

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Because, for example, in the Kohler reference,

[00:04:43] Speaker 04:
the first two steps after the first two steps, then it repeats a separate process.

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But in the Kohler reference, the expert goes and says, well, an expert in this field would be concerned that you might over blend.

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The fact that you know that if you turn it on and off too often, you may over blend doesn't mean that one skilled in the art doesn't know

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to turn it on and off in order to let the material settle back around the blade.

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So that in itself, merely making that particular observation is one of common sense.

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And the fact that it came out of the mouth of an expert doesn't suddenly elevate that statement to save this patent.

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And in fact, in the wolf reference, there's absolutely no need at all to even get into this whole issue of whether it's obvious to repeat the steps.

[00:05:42] Speaker 02:
Let's stop right at that.

[00:05:44] Speaker 02:
Well, let me just ask you, and you can cover this maybe in what you're about to say, but the board, it seems to me, kind of dismissed Wolf because Wolf says low speed, and they thought that even though they refused to define what settling speed was, they said it's not the same thing as low speed.

[00:06:03] Speaker 02:
Is that your understanding of what the board was thinking?

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Correct.

[00:06:06] Speaker 02:
Okay, so why don't you cover why they were wrong?

[00:06:08] Speaker 04:
Correct.

[00:06:10] Speaker 04:
Wolf describes low speed as a speed in which the ingredients settle back down towards the blade.

[00:06:19] Speaker 01:
Really?

[00:06:20] Speaker 01:
Where is that?

[00:06:20] Speaker 01:
In the context of a manual operation, right?

[00:06:24] Speaker 04:
It's described in the context of a manual operation, but that's because a wolf is automating the manual operation.

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If you had a blender in the 70s,

[00:06:38] Speaker 04:
you would turn the switch back and forth on and off in order to make it blend better.

[00:06:44] Speaker 04:
Kohler is something that simply is automating that process, the microprocessor that's giving a very simple instruction, simply turn it on to high speed, turn it down to low speed.

[00:06:54] Speaker 04:
The fact that Whirlpool has gone and renamed high speed and low speed as operating speed and settling speed,

[00:07:04] Speaker 04:
doesn't make it patentable, because we need to look at what the invention is.

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The invention is simply turning on and off a blender.

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And it's nothing more than that.

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And the fact that they make an observation that, well, depending upon the ingredients that you're putting in here, you might want to have the settling speed as a different speed.

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But that's also a whole problem.

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that was never addressed, which was at the very heart.

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The board had an obligation to decide this issue of settling speed, because it's key.

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They have truly a metaphysical definition of settling speed.

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This is not a method claim.

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This is an apparatus claim.

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And under their scenario, depending upon what I put in the blender, the device could infringe, or it could not infringe, because they're saying that that speed

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is their settling speed is dependent upon what I put in there.

[00:08:04] Speaker 04:
And it's metaphysical because there's no... It's also dependent on other factors too, right?

[00:08:09] Speaker 04:
Oh, the thickness of the ingredients, the power of the motor, all these factors.

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And we're told that we're supposed to go and experiment.

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I have a fundamental problem with the idea that I'm supposed to empirically determine whether I infringe any element of any claim.

[00:08:27] Speaker 01:
Well, it could hardly get a patent on it.

[00:08:30] Speaker 01:
the idea that you should experiment to figure something out, right?

[00:08:34] Speaker 04:
That's correct.

[00:08:35] Speaker 04:
They did not get a patent on that, and yet now in defense of the patent, they're saying that the settling speed is empirically determined.

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And so that means that they're saying, well, you go and invent and figure out the optimal settling speed.

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And remember, settling is an entire process.

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It's a continuum until everything settles to the bottom.

[00:08:58] Speaker 04:
They don't mean

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Settled speed when every all the all the suspended particles have settled about the blade They're talking about a settling speed will win what 10% has been settled towards the blade 20% 50% We're not told any of this.

[00:09:16] Speaker 04:
We don't know what this with this empirical Calculation when we've reached the answer to the empirical calculation where this is this is in is asking

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that the user go and do the inventing, and it varies depending upon whether you infringe or not.

[00:09:37] Speaker 04:
It varies depending upon what you put in the blender.

[00:09:39] Speaker 04:
That cannot possibly be a correct interpretation of patent law.

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If anything is definitive, it should be the claim.

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The claim is the meets and bounds.

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We all know that.

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And so therefore, we've proposed a definition that's very simple.

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very direct, very understandable.

[00:09:57] Speaker 04:
You know whether you're infringing or not.

[00:09:59] Speaker 04:
The definition of settling speed is simply in relationship to the operating speed.

[00:10:04] Speaker 04:
It's a lower speed.

[00:10:06] Speaker 04:
You turn it on to get to the operating speed, the program turns it off to go down to a settling speed and then turns it back on.

[00:10:14] Speaker 04:
So settling speed actually is anything below the operating speed and that makes common sense because

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Settling occurs as soon as you've turned off the motor.

[00:10:25] Speaker 04:
So anything below the operating speed is a speed at which things are settling.

[00:10:32] Speaker 04:
So that's a settling speed.

[00:10:35] Speaker 04:
So the second one is anything below that.

[00:10:37] Speaker 04:
Once you define it that way, Wolf contains all the limitations.

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It has a high speed, it has a low speed, it has a high speed again and a low speed.

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When it repeats the cycle,

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It describes it in figure 25 of Woolf.

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It describes those speeds as being for different lengths of time.

[00:11:01] Speaker 04:
But that doesn't matter, because there's no limitation in the claim about how long these speeds are supposed to run.

[00:11:08] Speaker 04:
And so therefore, Woolf is a full anticipation.

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And for that reason, if the board had simply adopted it, and it sidestepped the issue.

[00:11:19] Speaker 04:
If it had adopted a proper interpretation,

[00:11:22] Speaker 04:
definitive interpretation of settling speed, it would have come to the conclusion that Wolf anticipated these claims.

[00:11:30] Speaker 04:
With respect to the Kohler reference, again, it should be applying common sense.

[00:11:40] Speaker 04:
We say Kohler is not an anticipation, but obviousness.

[00:11:44] Speaker 04:
It has the first two steps.

[00:11:46] Speaker 04:
It has a program that has an operating speed, and it has a lower settling speed.

[00:11:54] Speaker 04:
to suggest that someone skilled in the art would have gotten to that point, looked at the device and go, oh, it didn't do what I want.

[00:12:03] Speaker 04:
What should I do next?

[00:12:05] Speaker 04:
Repeat the cycle.

[00:12:07] Speaker 04:
It's just common sense.

[00:12:10] Speaker 04:
No one disputes that that kind of common sense existed before there was ever a microprocessor to put in a blender.

[00:12:16] Speaker 04:
People just did it automatically because it was the common sense thing to do.

[00:12:20] Speaker 04:
turning off and on blenders to get the ingredients back towards the blade.

[00:12:26] Speaker 04:
So whichever reference you use, whether it's anticipated or obvious, when you look at the forest for this patent, rather than focusing on the individual trees, this is not a patent that should have been issued.

[00:12:39] Speaker 04:
Maybe it could have been issued initially to Kohler in the very beginning.

[00:12:44] Speaker 04:
But it's certainly not a patent in this day and age for turning on and off a blender by

[00:12:50] Speaker 04:
by simply by a program that is deserving of a patent, and it's fully anticipated.

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And I will reserve the balance of my time.

[00:13:04] Speaker 03:
Good morning.

[00:13:04] Speaker 03:
Good morning.

[00:13:05] Speaker 03:
Richard Hynd, Morris and Forrester for Whirlpool.

[00:13:08] Speaker 01:
Please, the court.

[00:13:09] Speaker 01:
So there's no question but that the steps of this patent are known in the prior art to do this manually, right?

[00:13:19] Speaker 03:
I would agree that the independent steps of cycling the motor on and off manually were not your honor.

[00:13:26] Speaker 01:
Okay, so and Wolf disclosed automating what was done manually in the prior art, right?

[00:13:33] Speaker 03:
It disclosed automating certain of the steps.

[00:13:37] Speaker 03:
It didn't disclose the idea of

[00:13:40] Speaker 03:
dropping it to a low speed and then bouncing it back up.

[00:13:42] Speaker 01:
But it generally talks about automating what was in the prior art, and it describes the prior art steps here exactly the way the patent does, and it says automate them, right?

[00:13:55] Speaker 03:
I would disagree with that.

[00:13:56] Speaker 01:
You disagree with that?

[00:13:57] Speaker 01:
I don't disagree with that.

[00:13:57] Speaker 01:
Why do you disagree with that?

[00:13:59] Speaker 03:
It does discuss in the background section.

[00:14:01] Speaker 03:
So the only argument with respect to Wolf is 102.

[00:14:04] Speaker 03:
It's only a 102 argument.

[00:14:06] Speaker 03:
they have to demonstrate that in a single embodiment under the net money case.

[00:14:10] Speaker 01:
Try to address my specific question.

[00:14:13] Speaker 01:
You've agreed that it describes doing this manually.

[00:14:17] Speaker 01:
And my question was it tells you to automate the things that previously were done manually, right?

[00:14:23] Speaker 03:
It describes steps of the claim.

[00:14:27] Speaker 01:
Forget about steps.

[00:14:28] Speaker 01:
Just the general question.

[00:14:29] Speaker 01:
It talks about, tells you to automate

[00:14:36] Speaker 01:
things that were done manually in the previous arc, right?

[00:14:41] Speaker 03:
It does refer to automation, correct, as part of the program.

[00:14:43] Speaker 01:
Okay, so the question is whether your patent does anything more than generally describe automating what was done manually before.

[00:14:53] Speaker 01:
Correct.

[00:14:55] Speaker 01:
Okay, so how does it do that?

[00:14:57] Speaker 03:
The reason it does this, Your Honor, with respect to Wolf, focusing first on Wolf.

[00:15:01] Speaker 03:
The only issue with Wolf is whether Figure 25 discloses all of the limitations.

[00:15:06] Speaker 03:
It's the only thing they're focusing on for Wolf.

[00:15:08] Speaker 01:
Okay, so what's your definition of settling speed?

[00:15:10] Speaker 01:
If settling speed is low speed, is a reduced speed, then Wolf discloses it, right?

[00:15:18] Speaker 03:
It is not merely a reduced speed.

[00:15:20] Speaker 01:
No, but no, no, no, no.

[00:15:21] Speaker 01:
What's the answer to my question?

[00:15:23] Speaker 01:
If settling speed means a speed that is lower than the operating speed, then Wolf discloses that, right?

[00:15:30] Speaker 03:
Any speed lower, that would be correct.

[00:15:32] Speaker 01:
Yes, it would disclose it.

[00:15:33] Speaker 01:
That is correct, sir.

[00:15:35] Speaker 01:
Why is settling speed something other than a lower speed?

[00:15:39] Speaker 03:
It's something other than a lower speed because the claim refers to a predetermined settling speed for claim one that is indicative of the contents having settled around the cutter assembly, also must be greater than zero, also must be lower than the operating speed.

[00:15:53] Speaker 01:
So a construction that only focused... But how lower than the operating speed is this lower speed?

[00:15:59] Speaker 03:
Lower than the operating speed.

[00:16:00] Speaker 03:
So there's three parts of the plain language definition, just what's in the claim.

[00:16:05] Speaker 03:
The claim refers to greater than zero.

[00:16:07] Speaker 03:
It refers to lower than the operating speed.

[00:16:09] Speaker 03:
And then it also refers to that must be predetermined, settling, and must be in claim one indicative of the items in the container having settled around the cutter assembly.

[00:16:20] Speaker 03:
So it's not simply any speed lower.

[00:16:22] Speaker 01:
Yeah, but it doesn't tell you how to predetermine this.

[00:16:27] Speaker 01:
It tells you that

[00:16:29] Speaker 01:
explicitly in the specification that could vary by type of machine, by type of food, by a whole range of things.

[00:16:35] Speaker 01:
It doesn't tell you how to make the determination of what a settling speed is.

[00:16:41] Speaker 01:
And under those circumstances, how can we construe it as being anything other than a lower speed?

[00:16:47] Speaker 03:
Because to construe it as being only a lower speed would read out that entire limitation of indicative of the

[00:16:54] Speaker 03:
contents of the container having settled around the cutter assembly.

[00:16:56] Speaker 03:
What does that mean?

[00:16:57] Speaker 02:
Indicative of the items in the container having settled around the cutter assembly.

[00:17:02] Speaker 02:
I mean, if you look at the specification at column four, what it tells us is the predetermined everything are functions of the blender motor size, the cutter assembly configuration, the container size and configuration, the properties such as hardness and viscosity

[00:17:23] Speaker 02:
of the items to be processed in the blender and the like, whatever that is, those are, and are selected to optimize effectiveness in the pulsing process.

[00:17:32] Speaker 02:
How is that any clarity?

[00:17:34] Speaker 02:
I mean, your friend pointed out, how on earth are you going to know whether you're infringing or not?

[00:17:38] Speaker 02:
What is the difference between there are instances where the speed is lower and you're saying settling speed is something different than that?

[00:17:46] Speaker 02:
Well, describe to me what the difference is and how one is going to know that beforehand.

[00:17:52] Speaker 03:
I'm happy to address that.

[00:17:54] Speaker 03:
So if you look at the patent, it is discussing, for example, in this context, an ice-crushing function.

[00:18:00] Speaker 02:
Right, but you say it's not limited to ice.

[00:18:01] Speaker 03:
It's not limited to that.

[00:18:02] Speaker 03:
OK.

[00:18:02] Speaker 03:
But what you're going to do is, for the predetermined settling speed, putting aside what the construction of it is, what one of skills in the art would do, and this is what Mr. Farber discusses, you would, if you knew that it was ice, you knew the configuration of the blender, you would perform tests to determine based on what

[00:18:21] Speaker 03:
point in time it settles to arrive at the predetermined settling speed.

[00:18:24] Speaker 01:
So that sounds as though you're saying that you can get a patent that tells people to experiment and figure it out.

[00:18:31] Speaker 01:
So respectfully, if you look at the... You can't get a patent on that, right?

[00:18:35] Speaker 01:
You can't get a patent on telling people to do some research that will answer a question.

[00:18:41] Speaker 03:
If it is known to one of skill in the art as to how to... Do you agree with what I said or not?

[00:18:47] Speaker 03:
I actually, I agree that you cannot

[00:18:50] Speaker 03:
get a patent that is not enabled or doesn't describe the invention.

[00:18:54] Speaker 03:
I don't think that's the case with this patent, Your Honor.

[00:18:56] Speaker 01:
But in other words, you cannot get a patent on an instruction to figure something out.

[00:19:02] Speaker 03:
That would be correct.

[00:19:03] Speaker 03:
That would be correct.

[00:19:04] Speaker 03:
But Your Honor, respectfully, I don't think that's what we have here.

[00:19:07] Speaker 03:
The reason why we don't have here is you have the board.

[00:19:09] Speaker 03:
You also have Mr. Farber, both of whom read this patent, understood what it was seeking with respect to predetermined selling speed.

[00:19:16] Speaker 03:
They were able to figure it out.

[00:19:18] Speaker 02:
The board refused to give us a definition of settling speed.

[00:19:22] Speaker 02:
You say they figured it out and that may be right, but we can't review.

[00:19:27] Speaker 02:
They figured it out so it's okay.

[00:19:29] Speaker 02:
We need to know what they figured it out to be and they wouldn't construe it.

[00:19:35] Speaker 02:
So what are we supposed to evaluate other than they figured it out?

[00:19:39] Speaker 03:
So now bringing it back full circle to the evidence, I would disagree that they didn't actually figure it out because

[00:19:47] Speaker 03:
There is an admission that Homeland Housewares makes with respect to the construction.

[00:19:52] Speaker 03:
And they say in their brief, they recognize that implicitly, via its opinion, its final written decision, and its institution decision, it was clearly rejecting the construction that Homeland was offering.

[00:20:03] Speaker 03:
Clearly rejecting it.

[00:20:04] Speaker 03:
In fact, this is an admission, I think, at page, this is an admission, I think, at page 64 of their brief, where they say that implicitly the board rejected Homeland's construction at arriving at its decision.

[00:20:17] Speaker 03:
So we know that there was some construction here.

[00:20:19] Speaker 03:
They rejected the construction at any speed, less than the operating speed, was the construction.

[00:20:24] Speaker 02:
As between- So that means what?

[00:20:26] Speaker 02:
So what do we take away from that?

[00:20:28] Speaker 02:
We know what it isn't at any speed.

[00:20:31] Speaker 02:
So what are we left with when they've rejected that?

[00:20:36] Speaker 02:
At some speed below, but not at every speed, but we don't know at what speed?

[00:20:41] Speaker 02:
What are we to make of that?

[00:20:42] Speaker 03:
So I'm happy to address that.

[00:20:44] Speaker 03:
And by the way, the admission happens at page 42 of the opening brief.

[00:20:47] Speaker 03:
They admit that the board implicitly adopted one that rejected their construction.

[00:20:51] Speaker 03:
The only other two constructions then pending was its own construction, and that was the construction of a speed at which the cutter assembly- It's own, I'm sorry, who do you mean by it's own?

[00:20:59] Speaker 03:
I'm sorry, the board.

[00:21:01] Speaker 03:
The board's construction of a speed at which the cutter assembly has slowed enough to allow the blender contents to be processed again, or in the alternative, Whirlpool's construction, a speed greater than zero that indicates that the items have settled around the cutter assembly.

[00:21:14] Speaker 03:
As between either of those constructions,

[00:21:17] Speaker 03:
based on substantial evidence, it determined that it didn't need to figure which one of those two was out.

[00:21:22] Speaker 03:
And the reason why is it mentions this eight times in its opinion.

[00:21:25] Speaker 03:
It's a 14-page detailed decision.

[00:21:28] Speaker 03:
It says four times that the arguments that Homeland was offering were unsupported, four separate times that the evidence that Mr. Farber offered were unrebutted.

[00:21:36] Speaker 01:
But maybe if they made a mistake in the claim construction by rejecting Homeland's construction,

[00:21:43] Speaker 01:
You would lose, right?

[00:21:45] Speaker 01:
If Homeland's construction is correct, you lose.

[00:21:47] Speaker 03:
That's correct.

[00:21:48] Speaker 03:
If Homeland's construction is correct, we'll often anticipate, with respect to Figure 25.

[00:21:52] Speaker 01:
Okay, so nobody relied on any extrinsic evidence here in urging the different constructions.

[00:21:59] Speaker 01:
It's all a matter of the intrinsic evidence.

[00:22:01] Speaker 01:
Why shouldn't we construe settling speed the way Homeland did?

[00:22:06] Speaker 01:
Why isn't that the right construction?

[00:22:08] Speaker 03:
The reason why it's wrong construction is it would read out the phrase, predetermined indicative of the contents

[00:22:13] Speaker 03:
in the container settling around the cutter assembly.

[00:22:16] Speaker 03:
Meaning, you can literally excise that entire language from both claim and claim nine, and that would deal with some sort of... You want us to construe the term so it's indefinite?

[00:22:26] Speaker 03:
No, Your Honor, I'm not encouraging you at all to construe the term in a manner that would... How do you know you're infringing?

[00:22:30] Speaker 02:
How does one know whether they're infringing?

[00:22:32] Speaker 03:
If, for claim one, if one sells a blender that performs the cycle of operation, it infringes.

[00:22:41] Speaker 02:
And for, for claim nine, which is a method cycle is that, I mean, there's nothing, I mean, the, the spec tells us it's something that you figure out somewhere down the road, right?

[00:22:51] Speaker 02:
Depending on the size and the kind of foot, what you're using and the light, we don't even know what these factors are that you're supposed to consider because they say the hardness of the items to be processed.

[00:23:05] Speaker 02:
So you figure out beforehand.

[00:23:07] Speaker 02:
So if you're using it for one item,

[00:23:09] Speaker 02:
does infringe and for another item, it doesn't infringe?

[00:23:12] Speaker 03:
No, Your Honor.

[00:23:13] Speaker 03:
It is a cycle of operation and the operating speed, both the operating speed and the settling speed are both predetermined.

[00:23:20] Speaker 03:
So for claim one... So if you just use it for powder, does it infringe?

[00:23:26] Speaker 02:
It never goes to whatever a settling speed is, right?

[00:23:30] Speaker 03:
If the blender were programmed in a manner that it had the operating speed and were set for this predetermined settling speed, it would infringe claim one.

[00:23:38] Speaker 03:
Claim 9 is a method claim, which actually requires that you reduce it to the predetermined settling speed.

[00:23:44] Speaker 01:
But it doesn't tell you how to determine the settling speed.

[00:23:48] Speaker 03:
The discussion of how to determine the settling speed is discussed in the patent.

[00:23:53] Speaker 01:
And it just says, you know, you reach the settling speed when the thing is slowed down.

[00:24:01] Speaker 03:
The fact that testing is required doesn't mean that the patent's indefinite.

[00:24:05] Speaker 03:
In the Nautilus case, it's exactly what the... What factors do you use?

[00:24:08] Speaker 00:
I really am listening to the trend of this argument.

[00:24:13] Speaker 00:
How deeply on the IPR is your perception that the board tries to decide what will infringe when they also decide the questions to which they are limited in this proceeding?

[00:24:29] Speaker 03:
That's a good question, Judge Newman.

[00:24:30] Speaker 03:
I don't think that they're addressing the issue of infringement.

[00:24:32] Speaker 03:
They're also, because of their mandate, they're addressing issues relating to 102 and 103.

[00:24:37] Speaker 00:
They are addressing claim construction, but they're not addressing infringement issues as part of the, as part of their mandate, as part of the... Because in looking at the presentation through experts, what is your perception as to how much reliance the board placed on the presentation that only one side offered an expert as compared with attorney argument?

[00:25:03] Speaker 00:
Because I, I always,

[00:25:05] Speaker 00:
thought that the original plan of this procedure is that the administrative patent judges were experts and that the structure was that attorney argument did not require reinforcement by experts to go under and around and explain the record.

[00:25:29] Speaker 00:
How much reliance in your perception did the board place on this disparity

[00:25:34] Speaker 03:
I think it's both.

[00:25:35] Speaker 03:
I think they did place reliance.

[00:25:37] Speaker 03:
It's undisputed that the final Brent decision refers to uncontroverted and unrebutted several times.

[00:25:43] Speaker 03:
At the same time, it also refers to the fact that Homeland, which bore the burden, didn't carry that burden.

[00:25:48] Speaker 03:
It says four separate times that they presented positions that were unsupported.

[00:25:53] Speaker 03:
Your Honor, if I may very briefly just jump to one alternative argument basis for affirming the decision.

[00:25:59] Speaker 03:
It wasn't the only basis for rejecting Kohler and Wolf.

[00:26:04] Speaker 03:
On Kohler, there's this issue of motivation to combine.

[00:26:07] Speaker 03:
And there's no response to the argument with respect to Kohler that you wouldn't want to repeat that you're six, because it would contradict the principle of operation.

[00:26:16] Speaker 03:
So in obviousness, motivation to combine is a question of fact.

[00:26:19] Speaker 03:
That's noted in their own kinetic case.

[00:26:21] Speaker 03:
I think there's no dispute as to obviousness in Kohler that that should be affirmed.

[00:26:25] Speaker 03:
As to Wolf, resolving the issue of the claim construction isn't the only issue, because the board also addressed the issue of pulsing.

[00:26:33] Speaker 03:
whether in the background section, the references they cited, whether the manual operation that you noted disclosed pulsing.

[00:26:41] Speaker 03:
And the board held that that did not disclose pulsing.

[00:26:44] Speaker 03:
That's an independent basis for affirming.

[00:26:46] Speaker 03:
You both have the pulsing, and you also have the claim construction.

[00:26:50] Speaker 03:
They would like this to be an appeal all about claim construction, but when you read the board's decision, it was also about a failure of proof.

[00:26:57] Speaker 03:
Repeatedly, they're saying this is a failure of proof.

[00:27:00] Speaker 03:
The only issue they're raising now on appeal with respect to Figure 25 and pulsing is if you look carefully at their briefing, you'll see that they are raising a new argument in reply for the first time with respect to pulsing.

[00:27:14] Speaker 01:
You can look at their... I'm not understanding what you're saying because, you know, five minutes ago you agreed that if we adopt their claim construction, we lose.

[00:27:25] Speaker 03:
I would agree that if you adopt their claim construction that we would lose with respect to it showing

[00:27:30] Speaker 03:
figure 25, disclosing the limitations.

[00:27:33] Speaker 03:
I still think that's... Let me rescind my concession.

[00:27:37] Speaker 03:
I apologize.

[00:27:38] Speaker 03:
I apologize.

[00:27:40] Speaker 03:
There was an independent basis.

[00:27:42] Speaker 03:
The first two paragraphs of the board's decision, with respect to Wolff, explains that it wasn't disclosing pulsing, because the portions they decided to were not disclosing automation.

[00:27:52] Speaker 01:
The portions they decided to... How can it not disclose pulsing?

[00:27:58] Speaker 03:
Your Honor, it didn't disclose pulsing because what they were pointing to was a background discussion, the swanky prior reference, and also a discussion in the background section that talked about stopping the waves.

[00:28:09] Speaker 01:
The background section discloses pulsing, doesn't it?

[00:28:12] Speaker 01:
Manual pulsing, correct.

[00:28:13] Speaker 01:
Yes.

[00:28:13] Speaker 01:
So the question is, when Wolf tells you to automate what was done manually before, whether that anticipates.

[00:28:21] Speaker 01:
So you have to... So it discloses pulsing in the sense that it discloses a manual process of pulsing.

[00:28:27] Speaker 03:
It discloses a manual process of pulsing, but the claim further requires that it be an automated process of pulsing that brings it to the operating speed.

[00:28:35] Speaker 03:
And what happens in the background discussion of Wolof is you are pulsing increasingly faster and faster and faster.

[00:28:43] Speaker 03:
So what was happening with respect to Wolof is Homeland was attempting to combine two separate embodiments, the figure 25 embodiment and everything in the background section.

[00:28:52] Speaker 03:
And the board correctly noted you can't mix and match embodiments.

[00:28:56] Speaker 03:
It was a failure of proof.

[00:28:57] Speaker 03:
Then on reply for the first time, they try and adjust it purely to figure 25.

[00:29:01] Speaker 03:
That argument was waived.

[00:29:02] Speaker 03:
You're not seeing it in their petition.

[00:29:05] Speaker 03:
It appears for the first time only in their reply brief.

[00:29:08] Speaker 03:
So there's two separate bases with respect to Wolff.

[00:29:11] Speaker 02:
Thank you.

[00:29:12] Speaker 04:
Thank you.

[00:29:21] Speaker 04:
The first issue I'd like to

[00:29:22] Speaker 04:
bring up is the predetermined speed indicative of the contents settling about the cutter assembly.

[00:29:28] Speaker 04:
The other thing that's completely missing if you interpret that as part of the limitation is that it doesn't say what point have the contents settled.

[00:29:42] Speaker 04:
Contents have never settled under this claim because there's never a point at which the speed is zero.

[00:29:50] Speaker 04:
The claim specifically says

[00:29:52] Speaker 04:
The settling speed is above zero.

[00:29:56] Speaker 04:
If they literally interpret that particular limitation in the way that they're urging, you would have to turn the motor completely off, it would go to zero, and then everything settles about the cutter assembly.

[00:30:11] Speaker 04:
So that language is simply describing what the steps above are describing.

[00:30:21] Speaker 04:
It's just a description of the earlier claim limitation, what's accomplished by that.

[00:30:27] Speaker 04:
It's like a whereby clause.

[00:30:30] Speaker 04:
With respect to the failure of proof, we did not think that something as common sense as turning on and off a blender and then turning it on and off again needed extrinsic evidence to explain to the board.

[00:30:48] Speaker 04:
Their expert is not bringing in

[00:30:51] Speaker 04:
extrinsic evidence to provide some insight into the technology.

[00:30:57] Speaker 04:
The expert is trying to simply put his own spin on the intrinsic evidence.

[00:31:05] Speaker 04:
He's providing his own interpretation of intrinsic evidence, which the board is fully capable, and this court is fully capable of looking at on its own.

[00:31:16] Speaker 04:
and applying the principles of patent law to the intrinsic evidence.

[00:31:20] Speaker 01:
But your expert also inaccurately described the wolf, right, by saying that it only disclosed stopping.

[00:31:27] Speaker 01:
That's correct.

[00:31:27] Speaker 01:
Instead of reducing the speed.

[00:31:29] Speaker 04:
That's correct.

[00:31:30] Speaker 04:
The diagram clearly indicates that it's ramping up and ramping down.

[00:31:35] Speaker 04:
So it describes that process.

[00:31:38] Speaker 04:
And there's never a point at which it comes to a complete stop.

[00:31:42] Speaker 04:
It says how many seconds.

[00:31:44] Speaker 04:
you want to be at a particular speed, it doesn't say that they literally complain at a metaphysical level that it doesn't say that you must operate for those five seconds, those 20 seconds.

[00:31:58] Speaker 04:
Therefore, maybe it could have gone to zero during that time.

[00:32:01] Speaker 04:
That's pure implying something into Wolf that simply does not exist.

[00:32:06] Speaker 04:
Figure 25 clearly discloses everything there.

[00:32:11] Speaker 04:
And this whole concept of

[00:32:14] Speaker 04:
the settling speed whether the board provided a definition.

[00:32:19] Speaker 04:
Whether they excluded our definition implicitly still did not provide me with a definition that I could appeal.

[00:32:27] Speaker 04:
I had a right after placing that issue before the board front and center to have a claim construction on that term that I could then examine and determine whether it was appealable and on what basis I would appeal that claim construction.

[00:32:44] Speaker 04:
That was their obligation.

[00:32:45] Speaker 04:
The case was clear.

[00:32:48] Speaker 04:
And regardless, the whirlpool cannot simply imply some interpretation based upon the result.

[00:32:59] Speaker 04:
We are entitled to that interpretation.

[00:33:03] Speaker 04:
Thank you.