[00:00:00] Speaker 04:
Argument is 16-2747, Ignite USA versus Camelback.

[00:00:35] Speaker 04:
We're still here, that's what matters.

[00:01:08] Speaker 04:
Mr. Moylan, good morning.

[00:01:16] Speaker 00:
Good morning, may it please the court.

[00:01:17] Speaker 00:
I'd like to focus today on three points of error by the board below.

[00:01:24] Speaker 00:
First of those points of error is the board's errant construction of the term connected as set forth in the claims.

[00:01:31] Speaker 00:
Second, the board's unsupportable finding that the operating arm, which is item 52 in the Oosterling reference, which we'll refer to as Oosterling,

[00:01:38] Speaker 00:
is, quote, unquote, permanently connected.

[00:01:41] Speaker 00:
And three, the board's impermissible shifting of the burden to ignite to disprove obviousness of claim seven of the 979 patent.

[00:01:49] Speaker 00:
I'll just point out for reference that the board's findings in this case were based on anticipation and obviousness.

[00:01:59] Speaker 00:
Only one claim was based on obviousness.

[00:02:01] Speaker 00:
That was claim seven.

[00:02:02] Speaker 00:
All the other challenge claims were based on anticipation.

[00:02:06] Speaker 00:
So let's talk about the term connected first.

[00:02:08] Speaker 00:
That term is found in all challenge claims.

[00:02:11] Speaker 00:
And the claims specifically recite that the seal arm and trigger member are, quote, connected to the lit housing.

[00:02:17] Speaker 00:
The trigger member is called in claim 14, an actuator, just for the benefit of the court.

[00:02:22] Speaker 04:
And it's your argument that based on a description in a single embodiment in the specification, that's sufficient to establish your definition contrary to the board's?

[00:02:34] Speaker 00:
It's a nice position that

[00:02:35] Speaker 00:
that the patentee was clear and unequivocal in stating that when the lid assembly goes from a cleaning position, excuse me, from a use position or operable position to a cleaning position, that the components of that lid assembly are connected in a fashion such that they cannot be disassociated from the lid assembly.

[00:02:55] Speaker 00:
And the reason for that is in column four, it does talk, it does address a preferred embodiment.

[00:03:01] Speaker 00:
That's the only embodiment that's disclosed in the application

[00:03:04] Speaker 00:
as it relates to the components of the lid assembly.

[00:03:06] Speaker 03:
And it's also... So you position this so that in the range of ordinary uses, which include filling, drinking, and cleaning, that it can't be dissociated or that in those ordinary uses it would not be.

[00:03:24] Speaker 00:
Which do you mean?

[00:03:27] Speaker 00:
I would refer directly to the language in the claim, or excuse me, in the specification at column four, lines 35

[00:03:35] Speaker 00:
through 45 that says that it cannot be disassociated or misplaced from the lit assembly.

[00:03:41] Speaker 00:
That it's connected at all times is, is other language that, that it describes.

[00:03:44] Speaker 00:
And it's talking about in that section of the specification, it's talking about the lit assembly going from an operable or use is what it describes there, from an operable position to a cleaning position.

[00:03:56] Speaker 00:
That's exactly what's in the claims as well.

[00:03:58] Speaker 00:
The seal arm in the, in all the independent claims challenge claims goes from

[00:04:03] Speaker 00:
an operable position to a used position.

[00:04:05] Speaker 00:
And what we're talking about specifically as it relates to connected is the lid assembly and the components of the lid assembly.

[00:04:13] Speaker 00:
The board below pointed to the word connection as used in the patent specification.

[00:04:19] Speaker 02:
In the 406, okay, the examiner required that the claims be amended to replace

[00:04:32] Speaker 02:
and with while, because he said and doesn't mean it's always connected, right?

[00:04:40] Speaker 00:
The examiner asked for that particular substitution in the claim language.

[00:04:46] Speaker 00:
But Ignite argued just the opposite.

[00:04:49] Speaker 00:
Ignite argued that connected as used in the claims submitted to the examiner meant connected at all times and cited the exact same language that's being cited to here.

[00:05:02] Speaker 00:
Camelback's counsel would say that a stopper would apply because of that supposed examiner's amendment.

[00:05:09] Speaker 00:
But Ignite's not trying to argue a broader interpretation of something that it narrowed during the prosecution.

[00:05:15] Speaker 00:
In fact, the prosecution history shows they argued the exact same thing in prosecution that they're arguing now.

[00:05:21] Speaker 00:
The amendment that occurred in prosecution was to advance prosecution, but it did not narrow the claims.

[00:05:29] Speaker 00:
The claims were consistent.

[00:05:32] Speaker 02:
They said to the examiner in 406, we're going to change it to and, and we believe and means it's always connected.

[00:05:40] Speaker 00:
No, I don't believe they, they did not say that and is that, that, excuse me, let me back up.

[00:05:45] Speaker 00:
They argued to the examiner that yes, that, that the claims as written that include the word and, that based on the word connected alone, that that meant connected at all times.

[00:05:56] Speaker 00:
The examiner made an errant, we'll just say that the examiner was errant in his interpretation as well.

[00:06:02] Speaker 00:
and said, I want win to replace and.

[00:06:06] Speaker 00:
But just because the examiner made that finding doesn't stop Ignite from later saying, we said it's connected at all times, and the patentee was very clear and unequivocal in the patent specification that it's connected at all times.

[00:06:18] Speaker 00:
And we're now saying that it's connected at all times, consistent with what Ignite has said during the entire prosecution of this patent.

[00:06:25] Speaker 00:
So it's not an estoppel situation where

[00:06:29] Speaker 00:
the patentee is coming back later has narrowed the claim language and is now coming back later to broaden that claim language out beyond the scope of what it narrowed.

[00:06:38] Speaker 00:
It's the exact same argument that was made to the examiner is being made now.

[00:06:46] Speaker 00:
And what's more important here is that the word connected and the parties agreed to this and the board found that the word connected is subject to varying degrees.

[00:06:57] Speaker 00:
And so

[00:06:58] Speaker 00:
said, just like this Court ruled in the Kanika Court case, that if you have a term like that, you've got to look to ascertain the meaning in the specification.

[00:07:08] Speaker 00:
And indeed, if you look in the specification, it says importantly.

[00:07:11] Speaker 00:
It uses the word importantly and then refers to how the components of the lit assembly should be connected when that lit assembly goes from a used position to a cleaning position.

[00:07:23] Speaker 00:
So based on that

[00:07:25] Speaker 00:
very clear and unequivocal statement in the patent specification, the word connected should be construed to be consistent with that as it relates to those live components.

[00:07:46] Speaker 02:
We disagree with you about the construction, then anticipation goes away and I

[00:07:53] Speaker 00:
If you agree with Ignatius.

[00:07:55] Speaker 00:
We disagree with you about construction.

[00:07:59] Speaker 00:
If you disagree about construction.

[00:08:01] Speaker 00:
Yeah, you.

[00:08:03] Speaker 00:
Yes, I believe so.

[00:08:05] Speaker 00:
Yes.

[00:08:06] Speaker 03:
I'm sorry.

[00:08:07] Speaker 03:
I thought you had the argument that the hook 43, the thing's still going to fall out.

[00:08:14] Speaker 00:
It is.

[00:08:14] Speaker 00:
So the hook.

[00:08:17] Speaker 03:
Is that an argument that depends on your claim construction?

[00:08:21] Speaker 03:
I thought at least you made the assertion that you defeat anticipation even under the board's construction.

[00:08:28] Speaker 00:
Not even under the board's construction.

[00:08:30] Speaker 00:
The board's construction, if the board, if a nonpermanent connection is a proper construction, if connected is used with regard to those specific components of the lit assembly is a nonpermanent connection, then

[00:08:46] Speaker 00:
Ustraling shows a non-permanent connection at hook 42 and opening 41.

[00:08:51] Speaker 00:
The board went further though and said, well, even if we say it's a permanent connection, hook 42 and 41 is a permanent connection.

[00:09:00] Speaker 00:
And I'll turn to that now because that defies logic.

[00:09:03] Speaker 00:
You look at figure nine.

[00:09:04] Speaker 03:
Can you turn to claim seven?

[00:09:07] Speaker 00:
I sure can.

[00:09:07] Speaker 00:
Yes.

[00:09:08] Speaker 00:
Yes.

[00:09:13] Speaker 03:
So in the petition, this is one in which Dr. Slocum in his initial declaration says something that might be described as at a fairly high level of generality.

[00:09:25] Speaker 03:
People would know how to do this.

[00:09:27] Speaker 00:
Yes.

[00:09:28] Speaker 03:
And then later on reply, he says,

[00:09:32] Speaker 03:
of course here's how, and it gives a draw.

[00:09:35] Speaker 03:
And the board says I'm not going to rely on the latter thing.

[00:09:38] Speaker 03:
So I'm relying just on the generality in the first thing.

[00:09:43] Speaker 03:
That's right.

[00:09:45] Speaker 03:
I understand you say that's not, why is that wrong?

[00:09:49] Speaker 00:
Why is that wrong?

[00:09:50] Speaker 00:
Well, if you read the decision, it's very obvious that the burden of persuasion was, or the burden was placed on to ignite, to come forward with evidence to rebut.

[00:10:01] Speaker 00:
the assumption of obviousness.

[00:10:03] Speaker 00:
And the way that that's, the way that the decision can be read is that there's a double standard created here.

[00:10:08] Speaker 00:
The board says, very specifically, obviousness, or I'll paraphrase, but basically the board says it's obvious because it's obvious and we're not going to tell you why.

[00:10:18] Speaker 00:
We're going to tell you why.

[00:10:19] Speaker 00:
The reason is just because, generally speaking, you can make the change.

[00:10:22] Speaker 00:
And then it goes on to say that that particular, the technical details of

[00:10:32] Speaker 00:
of the modification that would have to be made in Neutrolene that those don't even need to be provided or are not necessary to this case.

[00:10:41] Speaker 00:
But then it goes on, and this is a double standard, it goes then on to fault Ignite for not providing technical persuasive evidence to rebut modifications that were never even defined by the Board or Ignite, or excuse me, or Camelback.

[00:10:57] Speaker 00:
For example, the Board faulted Ignite for allegedly not providing

[00:11:00] Speaker 00:
technical reasoning to explain how the undisclosed modified spring would be ineffective to pivot 90 degrees due to impact with the side of the litter opening.

[00:11:09] Speaker 00:
And on motivation, the board simply assumed that a person with a boarding skill in the art would have been motivated to alter the lever in Easterling without first determining if Campbellback's position was supported.

[00:11:20] Speaker 00:
And that turns the burden on its head.

[00:11:24] Speaker 00:
You know,

[00:11:24] Speaker 00:
Ignite provided persuasive evidence showing that the modifications that were proposed, just the broad statement of modifications that were proposed, were incorrect, and that there was no support for motivation in this case.

[00:11:38] Speaker 00:
But the court should have put the burden on Campbell back in the first instance to prove those, not just to accept blindly the conclusory allegations that were provided by Dr. Slocum and their experts.

[00:11:49] Speaker 03:
Did you file any papers subsequent to the reply declaration, the second declaration of Slocum, in which he shows the, the, the, the bended, I don't know, it's called an arm or whatever it is.

[00:12:04] Speaker 03:
Instead of the check mark, he's got something that bends and curves around so that you can't actually push the whole thing through a relatively... Yes, yes.

[00:12:13] Speaker 00:
We filed a very extensive motion to exclude those.

[00:12:17] Speaker 00:
We were not given an opportunity to file so-reply.

[00:12:19] Speaker 00:
Well, we filed a motion to exclude that evidence based on the fact that, one, it didn't comport with what he had said.

[00:12:25] Speaker 00:
He said that you can do it.

[00:12:26] Speaker 00:
OK.

[00:12:26] Speaker 03:
That sort of depends on what you think the, whether the whole checkmark or just the small piece on the T is.

[00:12:33] Speaker 03:
But put that aside, did you provide an explanation for why what he finally drew in his second declaration wouldn't, in fact, work or wouldn't work?

[00:12:45] Speaker 00:
We didn't have an opportunity to provide such evidence, but we certainly

[00:12:49] Speaker 00:
We certainly allowed, we got this in a reply brief, this 18 page declaration in a reply brief.

[00:12:54] Speaker 03:
So what steps did you do?

[00:12:56] Speaker 03:
I guess I'm asking two things.

[00:12:57] Speaker 03:
One is what steps you took and second, why wouldn't that obviously work?

[00:13:03] Speaker 00:
For a myriad of reasons.

[00:13:05] Speaker 00:
Well, would it work?

[00:13:07] Speaker 00:
That's to be disputed.

[00:13:09] Speaker 00:
Would those modifications work?

[00:13:11] Speaker 00:
But is it hindsight reconstruction is I think a larger issue and one that we pointed out to the board in our motion to exclude.

[00:13:18] Speaker 00:
The location of the spring, and without going too much into the details of exactly what was provided by Dr. Slocum, because again, the board didn't consider it.

[00:13:29] Speaker 00:
The board did not consider Dr. Slocum's expert, supplemental expert declaration.

[00:13:33] Speaker 00:
But that expert declaration started off with the assumption that, okay, can I move this to make it go to 90 degrees?

[00:13:40] Speaker 00:
That's a hindsight reconstruction.

[00:13:43] Speaker 00:
at its beginning, at its outset.

[00:13:46] Speaker 03:
The question is not... He started by saying a person of skill in the art would think about how to improve cleaning.

[00:13:54] Speaker 03:
Cleaning in dishwashers where there's water shooting around at a high speed that can move things from one place to another.

[00:14:02] Speaker 03:
And then, and therefore would be motivated to try to solve that problem in kind of the same way you did, which is get the thing out of the way.

[00:14:10] Speaker 03:
And then a person of skill in the art would

[00:14:14] Speaker 03:
He wouldn't know how to do that.

[00:14:15] Speaker 03:
Now, it would have been helpful to him had he said, in the first declaration, here's how, instead of saying, everybody would know how to do that.

[00:14:25] Speaker 00:
Well, again, the evidence was, and Dr. Slocum testified, that someone would already believe that the 30-degree angle that was provided in ustraline was sufficient for cleaning.

[00:14:37] Speaker 00:
So there would be no motivation to open it up additionally for additional cleaning to a basida.

[00:14:43] Speaker 00:
Second, he said that you would open it up to move it to 90 degrees so that it didn't accidentally close in the dishwasher.

[00:14:52] Speaker 00:
Well, that's also refuted by Eustralene.

[00:14:54] Speaker 00:
Eustralene has a specific latch mechanism on the lever that interferes fit.

[00:15:02] Speaker 00:
It's at the bottom of the V shape where the spring rises to the top that latches onto the side of the lid.

[00:15:10] Speaker 00:
And so that it doesn't accidentally move back

[00:15:13] Speaker 00:
to the operable position in a cleaning setting such as that.

[00:15:17] Speaker 00:
So again, that evidence shows that a faceta would not have been interested in moving to 90 degrees based on this idea that further opening would increase the cleanability.

[00:15:33] Speaker 00:
And even Dr. Slocum testified that if you, that the snap fit is what

[00:15:40] Speaker 00:
would dictate some of the strength of the snap fit, and this is what keeps it opening in Oosterling, would dictate whether or not that would close during cleaning, not the degree of opening in Oosterling.

[00:16:09] Speaker 01:
May it please the court.

[00:16:11] Speaker 01:
I'd like to start with where you just ended, which is the obviousness argument on claim seven.

[00:16:19] Speaker 01:
Dr. Slocum explained in his initial declaration why you would make this change, how you would make this change, and that it was simple.

[00:16:27] Speaker 01:
We're not talking about rocket science.

[00:16:29] Speaker 03:
The words how, that he explained how you would make it?

[00:16:33] Speaker 03:
You know, if I were deciding whether to use those words to describe his first declaration, I would have a lot of pause about whether those were accurate words.

[00:16:44] Speaker 01:
I don't mean to say he explained specifically how you would modify each spring.

[00:16:47] Speaker 01:
He explained that you would modify this very simple spring mechanism, which is a molded plastic flat spring.

[00:16:54] Speaker 01:
He changed it from a straight to a curved spring.

[00:16:59] Speaker 01:
That's what his subsequent drawing showed.

[00:17:03] Speaker 01:
In terms of the evidence.

[00:17:04] Speaker 03:
But the board specifically declined in footnote 11 to rely on the subsequent drug.

[00:17:11] Speaker 01:
Because the board felt and the board believed as it held that we had met our burden of proof initially.

[00:17:17] Speaker 01:
It didn't need to go there.

[00:17:19] Speaker 01:
In explaining that we had provided sufficient proof, sufficient evidence to meet the preponderance standard, the board said we don't need to consider this.

[00:17:27] Speaker 01:
I do want to point out that Ignite had an opportunity to take a second deposition of Dr. Slocum.

[00:17:33] Speaker 01:
They had an opportunity.

[00:17:34] Speaker 01:
They made motions to exclude.

[00:17:35] Speaker 03:
That was after the second declaration.

[00:17:37] Speaker 01:
After the second declaration.

[00:17:39] Speaker 01:
We got together again for a subsequent deposition.

[00:17:42] Speaker 01:
Both are included in the appendix.

[00:17:46] Speaker 01:
They made arguments to exclude.

[00:17:48] Speaker 01:
They made arguments to challenge Dr. Slocum's qualifications.

[00:17:51] Speaker 01:
Those were rejected.

[00:17:53] Speaker 01:
There was at oral argument.

[00:17:55] Speaker 01:
The transcript of the argument is here.

[00:17:57] Speaker 01:
They've had an opportunity.

[00:17:58] Speaker 01:
And then when the panel, when the board came down with its final written decision, Ignite then again went and said, you either misapprehended or ignored our evidence.

[00:18:10] Speaker 01:
And you improperly did this.

[00:18:11] Speaker 01:
And the board said, no, we didn't.

[00:18:12] Speaker 01:
We considered your evidence.

[00:18:14] Speaker 01:
We just found it unpersuasive.

[00:18:15] Speaker 01:
And the reason that the technical evidence they presented was unpersuasive, because it didn't address the

[00:18:21] Speaker 01:
kinds of changes that Dr. Slocum had described.

[00:18:25] Speaker 01:
Yes, in somewhat general terms, a change to the size or shape of the spring, they simply adjusted one factor and they set it up for failure.

[00:18:35] Speaker 01:
And Mr. Steininger could not fathom how this could be done, which is what led Dr. Slocum to provide a very detailed explanation of the steps he would take to do this.

[00:18:46] Speaker 01:
As for hindsight reconstruction, this notion, at any time we're doing this analysis,

[00:18:52] Speaker 01:
in a case like this, it's always hindsight reconstruction, because we're trying to put ourselves into the shoes of what an artisan would have known at the relevant time period, in this case, 2011.

[00:19:02] Speaker 03:
So Mr. Moreland made the point that in usurping itself,

[00:19:15] Speaker 03:
There is a mechanism, I'm not quite sure which of the figure numbers is, for preventing the high-speed water in the dishwasher from closing the cap there.

[00:19:30] Speaker 03:
So why would anybody go look for a different way of solving that problem?

[00:19:36] Speaker 03:
It's perfectly solved there.

[00:19:37] Speaker 01:
Two reason there were two problems to be solved, and I would say

[00:19:40] Speaker 01:
you improve the solution by eliminating the potential great forces of water from actually pushing through the interference flow.

[00:19:48] Speaker 01:
Remember, this is the same expert testified.

[00:19:52] Speaker 03:
Do you happen to know or have, I guess I'm looking at Figure 9, which everybody seems to be using, at least 783 of the appendix.

[00:20:02] Speaker 03:
It's Figure 9.

[00:20:06] Speaker 01:
I do have it.

[00:20:07] Speaker 03:
I think that's the figure everybody feels.

[00:20:11] Speaker 03:
So which piece of that structure prevents the water from closing?

[00:20:19] Speaker 01:
I think the assertion is that once the, my eyes are not very good, the opening at 34 where the tip at 47 hits, I think is the assertion that that provides an interference fit that would prevent

[00:20:36] Speaker 01:
once it snaps through from going back through.

[00:20:40] Speaker 01:
And the point being that this is the same, their assertion is that these interference fits are so light that you could expect 42 to fall out of 41, but not this.

[00:20:54] Speaker 01:
So if you're worried about interference fits or a fit that's designed to go back and forth, you would be interested in designing

[00:21:02] Speaker 01:
a device that would be more propped open so it would lessen the opportunity for it to push closed.

[00:21:09] Speaker 01:
Secondly, Dr. Slocum also testified in declaration that this also provided additional manual cleaning access to the lever in case, I think he used the phrase, it was extra goopy by having greater access to the insides with a wider opening.

[00:21:26] Speaker 01:
So there were two problems being solved by the larger opening.

[00:21:34] Speaker 03:
So what was the board doing saying some extremely large number of times about their evidence?

[00:21:43] Speaker 03:
We are not persuaded.

[00:21:44] Speaker 03:
We are not persuaded.

[00:21:45] Speaker 03:
We are not persuaded.

[00:21:46] Speaker 03:
I mean, isn't that just, doesn't that tempt a reviewing court to say, what are you doing?

[00:21:53] Speaker 03:
You seem to be shifting the burden of persuasion.

[00:21:56] Speaker 01:
I don't think they're shifting the burden of persuasion.

[00:21:58] Speaker 01:
They're saying, you've met our initial burden.

[00:22:00] Speaker 01:
You've said, we believe your evidence.

[00:22:03] Speaker 01:
We believe you've established it.

[00:22:04] Speaker 01:
Now, what do you say about that ignite that we should disbelieve that evidence that's been presented?

[00:22:10] Speaker 01:
So they presented evidence that the board simply found unpersuasive.

[00:22:15] Speaker 01:
And finding it unpersuasive doesn't mean they've shifted the burden of proof.

[00:22:18] Speaker 01:
It simply means that they've considered the totality of the evidence.

[00:22:21] Speaker 01:
They didn't misapprehend the evidence.

[00:22:23] Speaker 01:
And they found it either not credible or they found that it was not responsive to the point that was being made.

[00:22:32] Speaker 01:
So for instance, only adjusting one

[00:22:34] Speaker 01:
dimension and in doing so in a way that's designed to fail isn't responsive to a simple change to the shape of the spring.

[00:22:44] Speaker 01:
Dr. Slocum demonstrated that after the fact, but they didn't need to because they found that the initial response the evidence offered didn't meet the question presented.

[00:22:54] Speaker 01:
And because it didn't meet the question presented, it was unpersuasive.

[00:22:57] Speaker 01:
And because Mr. Steininger couldn't fathom a way to do this, it was unpersuasive.

[00:23:05] Speaker 01:
And it's fine to say it's unpersuasive.

[00:23:07] Speaker 01:
That's how you assess the evidence.

[00:23:09] Speaker 01:
Whether it's our evidence was persuasive, their evidence was unpersuasive, that's the phrasing.

[00:23:15] Speaker 01:
And I, you know, the board clearly held that we had met the preponderance of the evidence standard.

[00:23:21] Speaker 01:
They did so in their decision and they did so again in the denial of rehearing.

[00:23:28] Speaker 01:
And so to second-guess them and say they were holding them to a different standard I think is inappropriate here.

[00:23:33] Speaker 01:
because they said what they were doing, and they said they agreed with the reasoning and found our reasoning and evidence persuasive, and they found their reasoning and argument and evidence unpersuasive.

[00:23:44] Speaker 01:
That's what courts and fact-finders and arbiters do every day when they assess evidence.

[00:23:54] Speaker 01:
With respect to connected, I don't do this often, but the estoppel argument I think is important, because Festo deals with this argument.

[00:24:02] Speaker 01:
And it says quite clearly, and I'm reading in the Supreme Court Reporter version at 1840, it says, Estoppel arises when an amendment is made to secure the patent and the amendment narrows the patent scope.

[00:24:17] Speaker 01:
The amendment in the parent application was made to obtain the patent.

[00:24:21] Speaker 03:
It was a bar to recapturing material given away.

[00:24:34] Speaker 03:
Well, no, it was a bar specifically to recapturing it through the doctrine of equivalence.

[00:24:39] Speaker 03:
Quite a different thing.

[00:24:40] Speaker 01:
It is quite a different thing, but it's a bar to recapturing material that you've given away.

[00:24:45] Speaker 01:
And that's the broader proposition of Festa, I believe.

[00:24:50] Speaker 01:
Because that's the language that I just read is a direct quote from the Supreme Court.

[00:24:55] Speaker 03:
And what they did here is they amended... Which was not about claim construction.

[00:25:01] Speaker 03:
It was not about claim.

[00:25:02] Speaker 03:
And we have on a number of occasions...

[00:25:06] Speaker 03:
made clear for I think reasons that are pretty themselves clear that figuring out whether there was an estoppel or I guess in the claim construction context we call it a disclaimer is not quite the same

[00:25:23] Speaker 03:
question and is subject to a different standard than prosecution, history, estoppel, which you presume from having made an amendment.

[00:25:31] Speaker 03:
And one of the reasons you can presume it is that you can, in fact, go and get a new claim and a continuation application on the very same material, because at that point, it's literal infringement and not equivalence infringement.

[00:25:44] Speaker 01:
But what we're referring to here, and I want to be very clear, is the examiner said, gave them a notice of rejection based on the prior article.

[00:25:52] Speaker 01:
because they said connected and movable.

[00:25:56] Speaker 01:
And he said, if you want it to be connected while movable, you have to say connected while movable.

[00:26:01] Speaker 01:
And they did.

[00:26:02] Speaker 01:
Now, they could have chosen to stand on their prior language, their prior claim language, and appeal the rejection.

[00:26:13] Speaker 01:
We're right.

[00:26:13] Speaker 01:
You're wrong.

[00:26:15] Speaker 01:
But they didn't.

[00:26:16] Speaker 01:
They proceeded and obtained a patent on the basis

[00:26:20] Speaker 01:
of an amendment that was made in a circumstance that gives rise to an estoppel, which is just another reason why they shouldn't be permitted to come back now and argue that connected and movable means connected at all times and non-removable.

[00:26:43] Speaker 01:
I think the court pointed out earlier, but this is one embodiment.

[00:26:47] Speaker 01:
one of more than 30 cases in which they say, in an embodiment.

[00:26:52] Speaker 01:
And they describe this.

[00:26:53] Speaker 01:
But they don't use the phrase in a clear and precise way that tells you that every time we use the word connected, we mean permanent and non-removable.

[00:27:03] Speaker 01:
And there are a number of times they use connected in the patent that clearly are not permanent.

[00:27:12] Speaker 01:
And so they're asking you to adopt a claim construction

[00:27:16] Speaker 01:
That means permanent and non-removable in one case, but not in another.

[00:27:22] Speaker 01:
So for instance, the trigger member is connected to the sealant.

[00:27:27] Speaker 01:
Well, if that's a permanent connection, there could never be a cleaning position, because it would always be permanently connected.

[00:27:35] Speaker 01:
The lid is connected to the container.

[00:27:38] Speaker 01:
If that's a permanent connection, this product can't work.

[00:27:41] Speaker 01:
We need to take the lid off in order to introduce liquid to the container.

[00:27:47] Speaker 01:
The board's construction was entirely appropriate using the broadest reasonable construction standard.

[00:27:54] Speaker 01:
It encompasses all the embodiments, including the preferred embodiment.

[00:27:59] Speaker 01:
If this is their preferred embodiment, it still includes it.

[00:28:02] Speaker 01:
It doesn't exclude anything.

[00:28:05] Speaker 01:
It says it's connected.

[00:28:08] Speaker 01:
The board concluded appropriately that it includes both permanent and non-permanent connections.

[00:28:16] Speaker 01:
But even if

[00:28:18] Speaker 01:
you agree that it includes something more, there is the argument and the board specifically found that Oosterling discloses a permanent connection.

[00:28:29] Speaker 01:
There is no evidence in Oosterling that the operating arm falls out, that the trigger member falls out.

[00:28:38] Speaker 01:
The sole evidence they relied on at the board was

[00:28:42] Speaker 01:
their review, their experts review of the drawing to find based on a specification that it would slip out and fall out once it was taken off the lid.

[00:28:54] Speaker 01:
And as the court knows, that's not a proper use of the patent drawings where no dimensions are provided.

[00:29:01] Speaker 01:
And that's what they were trying to do.

[00:29:02] Speaker 01:
I see enough space so this thing will fall out.

[00:29:06] Speaker 01:
And because that was their sole basis and the board discounted that,

[00:29:12] Speaker 01:
there can be no reasonable dispute that, in fact, we have a device in Oosterling that shows the operating arm connected in the cleaning position, as shown in Figure 9.

[00:29:28] Speaker 01:
And with that, unless the court has further questions.

[00:29:30] Speaker 01:
Thank you.

[00:29:38] Speaker 00:
I'll quickly address.

[00:29:39] Speaker 00:
So we know that the

[00:29:41] Speaker 00:
The board was operating under a presumption of shifting the burden at the time that this decision was rendered.

[00:29:48] Speaker 00:
This is pre-magnum oil.

[00:29:50] Speaker 00:
And it's at a time when the PTO was saying, we are doing this.

[00:29:54] Speaker 00:
We are shifting the burden.

[00:29:56] Speaker 00:
Anecdotally, one of the board members that was on our case was on the magnum oil case.

[00:30:00] Speaker 00:
So we know that this is what they were doing.

[00:30:02] Speaker 00:
You read the decision.

[00:30:04] Speaker 00:
It's very evident that they were putting the burden on Ignite to come forward with evidence.

[00:30:09] Speaker 00:
And it's important because if you look at the evidence, if the board had actually done, had applied the burdens correctly, it would have looked at the evidence that Kimmelback had submitted and found that there was no, yes.

[00:30:22] Speaker 03:
What are you referring to, and forgive me if I'm just not remembering, but should, by pre-magnum oil statement by the PTO or the board or somebody, this is what they were doing?

[00:30:35] Speaker 00:
Yes.

[00:30:37] Speaker 00:
In Magnum Oil Tools, which came out, which was a decision by the court after the final decision was rendered in this case, the PTO was arguing for the adoption of a burden shift essentially in Magnum Oil Tools and was saying that that was the proper, that that should be proper, that shifting the burden to come to the patent owner to come forward with evidence after the institution decision is the proper mechanics for the

[00:31:04] Speaker 00:
the trial process because it simplifies it, I suppose, was the reason.

[00:31:07] Speaker 03:
But that wouldn't actually be a shift in the burden of persuasion, is it?

[00:31:11] Speaker 00:
Right.

[00:31:11] Speaker 00:
It was of the going forward.

[00:31:13] Speaker 00:
And of course, this court said, no, you don't shift any burdens in this process.

[00:31:17] Speaker 00:
But they were operating under that.

[00:31:18] Speaker 00:
That was a modus operandi, essentially.

[00:31:20] Speaker 00:
It was a mission made by the PTO.

[00:31:22] Speaker 00:
This is what we're doing.

[00:31:24] Speaker 00:
And this is before that decision came out.

[00:31:26] Speaker 00:
So we know that they had not been corrected, if you will.

[00:31:29] Speaker 00:
But again, it makes a difference because if the board had looked at the evidence, it would have come to the conclusion

[00:31:35] Speaker 00:
It's conclusory.

[00:31:36] Speaker 00:
And again, under Magnum Oil Tools, conclusory evidence wouldn't be sufficient to satisfy the burden of persuasion that is on the petitioner in this case.

[00:31:47] Speaker 00:
It looks like I'm out of time.

[00:31:48] Speaker 00:
I've got a couple of other points, but.

[00:31:50] Speaker 04:
I think we've heard it.

[00:31:52] Speaker 00:
OK.

[00:31:52] Speaker 00:
All right.

[00:31:52] Speaker 00:
Thank you.

[00:31:53] Speaker 04:
We thank both sides for taking this event.

[00:31:55] Speaker 04:
It concludes our proceedings for this morning.

[00:31:59] Speaker 04:
All rise.