[00:00:32] Speaker 02:
Okay?

[00:00:41] Speaker 03:
Hey, please record.

[00:00:55] Speaker 02:
So here, the found anticipation by Moroni and

[00:01:02] Speaker 02:
Doesn't Moroni show that it's to some extent mounted on the bone surface of the articular portion if you look at Moroni figure five, reference 120?

[00:01:28] Speaker 03:
I'm not sure what you're talking about when you say it's doesn't Moroni

[00:01:33] Speaker 03:
show is mounted on the articular surface, Your Honor.

[00:01:36] Speaker 03:
What I see in Fig 5 is that there is a shill.

[00:01:44] Speaker 02:
Part of the Form 120 there is mounted on the articular surface, isn't it?

[00:01:54] Speaker 03:
That's called a support surface in the specification, Your Honor.

[00:01:58] Speaker 03:
And besides, that's below the articular surface.

[00:02:01] Speaker 03:
which is referenced by, I believe it's 122.

[00:02:08] Speaker 02:
But didn't the board conclude that that was part of the Articular Surface?

[00:02:12] Speaker 03:
And that's wrong.

[00:02:18] Speaker 03:
That's a problem.

[00:02:20] Speaker 03:
That's a question sustained at 11.

[00:02:25] Speaker 03:
What's happened here, Your Honor, is that shell,

[00:02:31] Speaker 03:
is you've got a central portion in the upper left-hand side that engages a spacer.

[00:02:45] Speaker 03:
And the spacer is mounted on a flat resection plane, which is 16.

[00:02:55] Speaker 03:
And if you turn over to

[00:03:02] Speaker 03:
Figure 1, Your Honor, which is on appendix page 342.

[00:03:09] Speaker 03:
There is a low arcuate line 14, which is called a bony defect on the face of the humerus, and that bony defect

[00:03:29] Speaker 03:
is a part of the humerus that articulated with the glenoid cavity.

[00:03:36] Speaker 01:
So what is the impact of that?

[00:03:39] Speaker 03:
The impact of that is that this humeral implant of Moroni is still mounted on the flat resection plane, just like the tournier reference and the

[00:03:59] Speaker 03:
the stone reference.

[00:04:01] Speaker 03:
It's not mounted on the articulating surface.

[00:04:06] Speaker 02:
The board found that what's referred to in this figure as 20 and 16 on the other side are mounted on the articular surface, right?

[00:04:24] Speaker 03:
20 is the whole body of that.

[00:04:29] Speaker 03:
of that humeral implant.

[00:04:33] Speaker 02:
It's that portion.

[00:04:34] Speaker 02:
It's that end portion.

[00:04:37] Speaker 02:
Wait.

[00:04:38] Speaker 02:
It's labeled 16 on the left and may or may not be labeled 20 on the right.

[00:04:45] Speaker 02:
It's that end portion there is mounted on the articular surface, isn't it?

[00:04:52] Speaker 03:
Well, the line 34, Your Honor, and I'm looking at figure one now.

[00:04:58] Speaker 03:
on page 342, the line 34 is specifically labeled, arcuate support surface.

[00:05:10] Speaker 03:
It's not the articulating portion.

[00:05:13] Speaker 03:
The board found it was.

[00:05:15] Speaker 03:
And one of the reasons that you reverse the board is a misunderstanding of the reference.

[00:05:28] Speaker 03:
We can cite a number of cases, but I don't think that's necessary.

[00:05:35] Speaker 03:
And so if you look at figure five, the whole basic, you look at the specification.

[00:05:45] Speaker 03:
It talks about intimate contact being accomplished by this humeral implant

[00:05:57] Speaker 03:
down on the resected flat planar surface.

[00:06:09] Speaker 03:
I'm looking at paragraphs 50, 51, 52, and 53 concludes with a sentence.

[00:06:20] Speaker 03:
With the planar support surface 36 and the resected surface 18 both being planar.

[00:06:26] Speaker 03:
The resected surface 18 and the planar portion 36 provide intimate contact between the prosthesis and the hip.

[00:06:34] Speaker 03:
That's where the humeral device shown in Moroni is mounted.

[00:06:43] Speaker 01:
Even under that understanding, isn't there some part of the device, which Judge Dyck referred to as parts 20 and 16, there's some small part that overlaps there?

[00:06:56] Speaker 01:
That line that you're referring to, there's some, if you look at the same figure you're looking at, Figure 1, you still see that part of 20 and part of 16 are on that articular surface, even if you cut it off where you propose.

[00:07:14] Speaker 03:
And so, Your Honor, what I need to do is go back to the word articular.

[00:07:19] Speaker 03:
Okay.

[00:07:20] Speaker 03:
And if it doesn't articulate, it's not an articular surface.

[00:07:27] Speaker 03:
I think that's what you're asking me, isn't it?

[00:07:31] Speaker 01:
I don't think so.

[00:07:32] Speaker 01:
I think that you've cut off where the articular surface is.

[00:07:35] Speaker 01:
You've said, this is where the limit is.

[00:07:37] Speaker 01:
There's this line here.

[00:07:38] Speaker 01:
And what I see is that elements 20 and 61 cover part of that.

[00:07:47] Speaker 03:
The ball on the head of the humerus has to rotate in that plenoid cavity.

[00:07:56] Speaker 03:
And if you, I think I remember, on the Apulese brief.

[00:08:10] Speaker 03:
Yes, on page two of the Apulese brief, there's a picture.

[00:08:27] Speaker 03:
And that picture shows what the articular cartilage is.

[00:08:32] Speaker 03:
It's not way down there on the edge where the resection is occurring.

[00:08:38] Speaker 02:
Frankly, that doesn't show me that it's not.

[00:08:42] Speaker 02:
It doesn't extend that far.

[00:08:45] Speaker 03:
Then I will put it in front of you, Your Honor.

[00:08:50] Speaker 03:
Is there any evidence anywhere to show that that's the articular surface?

[00:08:56] Speaker 03:
And the answer is no.

[00:08:58] Speaker 03:
There isn't.

[00:09:04] Speaker 03:
The sum and substance to this case is the humeral implant in Moroni is not an anticipation because it sits flat on the resected surface of the urethra.

[00:09:22] Speaker 03:
And I'll answer any questions.

[00:09:27] Speaker 03:
Thank you, Mr. Max.

[00:09:38] Speaker 00:
You may please the court.

[00:09:43] Speaker 00:
As has been previously discussed with the Moroni reference, you have the hollow shell which is over the humeral bone and there is the contact both on the sides as shown in the reference.

[00:10:00] Speaker 00:
And additionally, the one thing that we have not discussed yet is the disclosure in Moroni

[00:10:05] Speaker 00:
that the resection plane can be shallow or deep.

[00:10:11] Speaker 00:
So if we look at the appendix 366, paragraph 57, there is a discussion about the resection plane varying between shallow and deep.

[00:10:24] Speaker 00:
So not only do we have this contact sort of on the sides, but there's the possibility and disclosure in Moroni that you would have contact

[00:10:35] Speaker 00:
you know, kind of in the top as well because you do have this hollow sphere shape.

[00:10:40] Speaker 00:
And Moroni additionally discloses on 365 and paragraph 20 that you can accommodate different amounts of defect.

[00:10:50] Speaker 00:
So I think the disclosure of Moroni discloses in many ways that you would have, that it is configured for cooperative engagement with the articular portion

[00:11:04] Speaker 00:
of the humeral head.

[00:11:06] Speaker 00:
And again, the articular portion, there was not in the specification any definition of that given.

[00:11:13] Speaker 00:
And if we look at the figures, if we look at 87, figure 16, I mean, all we have is a part of a sphere showing the structure of what the implant is.

[00:11:32] Speaker 00:
So there is

[00:11:33] Speaker 00:
not any further definition provided of articular that would not be met by Brony.

[00:11:39] Speaker 00:
Are there no further questions?

[00:11:43] Speaker 02:
Thank you, Ms.

[00:11:45] Speaker 02:
Schoenfeld.

[00:11:46] Speaker 02:
Mr. Beggs, anything more?

[00:12:00] Speaker 03:
Your Honor, I've got a picture of the ream that forms the articular surface.

[00:12:04] Speaker 03:
I'll turn to it in a minute.

[00:12:38] Speaker 03:
Yes, on appendix page 79.

[00:13:08] Speaker 03:
Down in the lower left-hand corner, in figure 7C, you see a cup-shaped reamer.

[00:13:17] Speaker 03:
And Chudik uses that reamer to smooth off or form the head of the humerus so that his humeral implant fits on top of it.

[00:13:34] Speaker 03:
And if you look over on page

[00:13:39] Speaker 03:
48 and look at paragraph 1118.

[00:13:49] Speaker 03:
He talks about alternatively appropriate size of the novel modular humeral reamer head is inserted and assembled until the novel humeral reamer has removed just enough bone to restore the proper humeral head dimension.

[00:14:08] Speaker 03:
That's what we're talking about is the articulating surface.

[00:14:13] Speaker 03:
Read the specification.

[00:14:15] Speaker 03:
I think that's a good paragraph to refer to.

[00:14:18] Speaker 03:
If you want to look at other passages, look at paragraph 149, 150, and over on 151.

[00:14:36] Speaker 03:
That's the articular surface.

[00:14:38] Speaker 03:
of the humeral head that's being discussed.

[00:14:41] Speaker 03:
The definition of the articular surface is not defined by how much of the head is removed in order to eliminate a defect on the humeral head of a large person or a small person.

[00:15:06] Speaker 03:
What they're removing is the

[00:15:09] Speaker 03:
articular portion so that they can fit a humeral implant on top of it.

[00:15:15] Speaker 03:
And I think there's quite a bit of description, as I've just pointed out, in the specification of what the humeral articulating surface is that we're talking about.

[00:15:30] Speaker 03:
And it's not some flat surface where the humeral has been reflected.

[00:15:38] Speaker 03:
And it's not what the Moroni patent calls as a support surface.

[00:15:43] Speaker 03:
He distinguishes between what this particular surface is and what the support surface is.

[00:15:49] Speaker 03:
And I think that's important in this case.

[00:15:55] Speaker 02:
Okay.

[00:15:55] Speaker 02:
Thank you, Mr. Baggett.

[00:15:56] Speaker 02:
Thank both Council cases submitted.

[00:15:59] Speaker 02:
That concludes our session for this morning.