[00:00:22] Speaker 04:
Tell me how to pronounce your last name.

[00:00:35] Speaker 00:
Mr. DeRay, please proceed.

[00:00:47] Speaker 00:
Good morning, Your Honors.

[00:00:48] Speaker 00:
After

[00:00:51] Speaker 00:
You know, just hearing a case where there's a lot of weighty issues involved and some very complicated issues with the forefront of patent law.

[00:00:57] Speaker 00:
As I start here, I want to give you a little bit of context for why we're here and what seems like comparatively a pretty simple issue of why we got here to this court.

[00:01:07] Speaker 00:
As a bit of background, I mean, recently one of the points of emphasis, it seems like the PTO has been emphasizing, has been that it disfavors the use of functional claim language.

[00:01:16] Speaker 00:
For example, rather than simply reciting that you have

[00:01:19] Speaker 00:
in a claim first and second components that are configured to be held together, the PTO would prefer or favor recitation that specifies the specific structural relationship of those two claim elements.

[00:01:34] Speaker 00:
This might be, for example, recitation.

[00:01:35] Speaker 04:
Just out of curiosity, if the words injection molded are structural and not purely process, how ought they to be construed?

[00:01:47] Speaker 04:
What does it mean

[00:01:49] Speaker 04:
In what ways do they help define a structural aspect?

[00:01:54] Speaker 00:
Got it.

[00:01:55] Speaker 00:
Well, I think that one thing would be that they help hold, when you have a part, first part, injection molded about another part, and I think that's one of the things that gets lost is, I think if you kind of piecemeal just look at the phrase injection molded, right?

[00:02:09] Speaker 00:
So like this claim uses the words, sorry, this claim uses the words injection molded a couple of different times.

[00:02:15] Speaker 00:
It recites, for example, first that you have an injection molded strut component,

[00:02:19] Speaker 00:
And then it recites you have an injection molded first and second arm components.

[00:02:22] Speaker 00:
We're not sitting here, we're not really looking at those.

[00:02:26] Speaker 03:
Let me just ask.

[00:02:28] Speaker 03:
I mean, I guess I took it that there are sort of two parts to the focus on this phrase, injection molded framework about.

[00:02:40] Speaker 03:
One of them is the about portion, about the Strudsen.

[00:02:42] Speaker 03:
And the other is, even before you get to that, that you have this injection molded

[00:02:49] Speaker 03:
framework.

[00:02:50] Speaker 03:
And I guess it's paragraph 140 of your spec at page 80.

[00:02:56] Speaker 03:
Here's what I'm curious about.

[00:02:59] Speaker 03:
It says once integrally formed, and second, it says integrally constructed.

[00:03:08] Speaker 03:
Might it be possible to say that even though injection molded

[00:03:14] Speaker 03:
among other things, describes a process.

[00:03:16] Speaker 03:
Here's how we got to it.

[00:03:18] Speaker 03:
That's a process that, in general and specifically here, results in a structure, namely a integral structure that's not a stitching together of what once started out as separate components.

[00:03:31] Speaker 03:
And that gives it structure.

[00:03:34] Speaker 00:
I think that's entirely right, Your Honor.

[00:03:36] Speaker 01:
So is it the same then as like unitary?

[00:03:40] Speaker 00:
So the injection molded component

[00:03:42] Speaker 00:
Sorry, the injection molded components themselves, yes.

[00:03:45] Speaker 00:
So like if you have an injection molded, the struck component and the injection molded arm components, each of those would be unitary.

[00:03:51] Speaker 00:
When you injection mold them together, so what's being recited specifically in the recitation that's kind of been emphasized and focused on in our brief and kind of the point of dispute is that language of injection molded about.

[00:04:04] Speaker 00:
And so when you're injection molding it about, it's structurally distinct and it seems clear

[00:04:11] Speaker 00:
There might be an open question about, and it might take an expert to recite exactly what's happening at a chemical level when you're doing that, exactly what the result is.

[00:04:19] Speaker 00:
But what seems clear is that there is a structural distinction over the prior art, which really just has a fabric sleeve which has a sheath in it that you then put a metal stiffener into.

[00:04:29] Speaker 01:
Can I ask you a question?

[00:04:30] Speaker 01:
Sure.

[00:04:31] Speaker 01:
So you've got injection mold and strut component.

[00:04:33] Speaker 01:
Yes.

[00:04:34] Speaker 01:
So that would be integral strut component.

[00:04:37] Speaker 01:
Injection molded first and second arm components.

[00:04:40] Speaker 01:
That means those are integral.

[00:04:41] Speaker 01:
And then when you say an elastically stretchable framework, injection molded about the strut and arm components, are you then saying that that stretchable framework is unitary, but it's molded about the other things?

[00:04:56] Speaker 00:
Yeah.

[00:04:56] Speaker 00:
I mean, there's actually a great example in the figure one of the application.

[00:05:02] Speaker 00:
It kind of illustrates this, which is on appendix

[00:05:05] Speaker 00:
85, where you can see the strut component.

[00:05:17] Speaker 00:
You can see that the strut component there, which is that middle portion of the hand.

[00:05:23] Speaker 01:
What's the number that it's designated by?

[00:05:26] Speaker 00:
It's 108, I believe.

[00:05:28] Speaker 00:
I think I might be pointing to the whole thing.

[00:05:30] Speaker 00:
I've got it right here.

[00:05:31] Speaker 01:
Because the page that you've identified, page 85, has all these numbers on it.

[00:05:36] Speaker 00:
Yes.

[00:05:36] Speaker 01:
You could identify by number which one you're... So the hinge mechanism is 108.

[00:05:41] Speaker 01:
And the strut's 112.

[00:05:43] Speaker 00:
Yes.

[00:05:44] Speaker 00:
So if you look at it, it's got that strut component is integrally, or sorry, the framework, which is the 106, is injection molded about the strut component.

[00:05:58] Speaker 00:
And one of the results of that

[00:05:59] Speaker 00:
which you can see is that actually it holds it within it.

[00:06:02] Speaker 00:
So it doesn't require some other additional fastener.

[00:06:05] Speaker 00:
It doesn't require some other additional method of fastening it.

[00:06:11] Speaker 00:
Our position is really just that that is a clear structural limitation that we have tried to call out on a good faith basis in accordance with what our disclosure shows, what our figures illustrate, saying that, look, we've got this framework that's injection molded about this strut component.

[00:06:29] Speaker 00:
We think that's different than the fabric sleeve that just has a sheet that you put metal stiffener into.

[00:06:35] Speaker 04:
I guess there's two different ways to look at this.

[00:06:40] Speaker 04:
When the word welded, for example, in Garniero was discussed as not being processed and actually imbuing structure that needed to be present, it was because welded, when you weld things together, it results in an adhesion of sorts.

[00:06:58] Speaker 04:
It bonds them together.

[00:06:59] Speaker 04:
And so you're focusing on how the injection molded about is similar in that it creates like an encapsulation that helps hold something in place.

[00:07:12] Speaker 04:
But that's really more the about language than the injection molded.

[00:07:15] Speaker 04:
Like the word welded standing alone is going to tell you two things are going to be joined.

[00:07:21] Speaker 04:
The words injection molded standing alone don't necessarily do that.

[00:07:24] Speaker 04:
I mean, I think that we're probably helping you even more than you're helping yourself in that, not that you're doing a bad job, just to be clear, but just, I mean, because we're saying, we think the words injection molded standing alone based on our discussion with you may have a structural, it may convey structural features

[00:07:49] Speaker 04:
all by themselves that have to be dealt with above and beyond just the about part.

[00:07:55] Speaker 04:
And that's another reason why it's not just a process.

[00:07:58] Speaker 00:
And that's what we tried to emphasize in the brief when we note that the examiners actually kind of acknowledged this when the examiner talked about how the injection molding itself actually holds that strut component to the framework.

[00:08:13] Speaker 00:
The examiner wasn't referring to language about the injection molded about.

[00:08:16] Speaker 00:
He was just referring to the injection molding itself.

[00:08:18] Speaker 00:
actually does some of that holding.

[00:08:20] Speaker 00:
Now, he felt that there were additional fasteners that held it just as much or more.

[00:08:24] Speaker 00:
He was actually referring to riveted fasteners.

[00:08:27] Speaker 00:
And you can look at it's at.

[00:08:30] Speaker 04:
It's number 118 and 120.

[00:08:32] Speaker 00:
Yeah, exactly.

[00:08:34] Speaker 00:
Well, it's actually there's a component riveted at 133 in figure five.

[00:08:39] Speaker 04:
They go into the spot where 118 and 120 are, right?

[00:08:42] Speaker 04:
That's where the rivets.

[00:08:44] Speaker 04:
Let's see.

[00:08:45] Speaker 04:
Hold the strut.

[00:08:46] Speaker 00:
No, actually not.

[00:08:49] Speaker 00:
That's the hinge.

[00:08:50] Speaker 00:
So that's just the hinge.

[00:08:52] Speaker 00:
It's the riveted fasteners he was referring to were actually on Figure 5, which is Appendix 89, 133 is an example of one of them.

[00:09:01] Speaker 00:
And those rivets actually connect, it's a bit confusing because those rivets actually connect a strap retaining component where it has the two slots, 134 to restrain the strap.

[00:09:11] Speaker 03:
So his argument... That's not the strut and the framework.

[00:09:14] Speaker 00:
Yeah, that's not the strut.

[00:09:15] Speaker 03:
But you have these unnumbered rivets that connect the strut to the arm, but not to the framework.

[00:09:21] Speaker 00:
Yes.

[00:09:22] Speaker 00:
So you're... Got it.

[00:09:24] Speaker 00:
I see the ones you're talking about.

[00:09:25] Speaker 00:
Yeah.

[00:09:25] Speaker 00:
Yes.

[00:09:27] Speaker 00:
So those connect the arm components, but not necessarily the strut component to the framework.

[00:09:33] Speaker 01:
If we were to agree with you that these limitations should be given weight, that they have meaning, don't we have to remand

[00:09:41] Speaker 01:
for the PTAB to consider in the first instance, you know, whether there's differences between the claims and the prior art?

[00:09:49] Speaker 00:
Yeah, I mean, I think so.

[00:09:50] Speaker 00:
And I think potentially for the examiner, I mean, that's why I started this by saying, like, you know, trying to emphasize why we're here.

[00:09:56] Speaker 00:
I mean, the struggle is just that it seems like all we wanted was for this recitation to be given some sort of patentable weight.

[00:10:04] Speaker 00:
We think there are just clear structural differences over the simple fabric.

[00:10:08] Speaker 00:
sleeve or sheath.

[00:10:09] Speaker 00:
And we actually, I mean, we won on another claim.

[00:10:13] Speaker 00:
There was additional claim that recited that it had a, that we had one on each side, a strut or this recitation on each side.

[00:10:20] Speaker 00:
The prior art only showed it on one side.

[00:10:23] Speaker 00:
We didn't want to just, I mean, we felt that that was probably just an examiner.

[00:10:26] Speaker 00:
It was a go back and it was, say, an obvious.

[00:10:28] Speaker 00:
Here too, maybe ultimately that's what will happen, but we just think that this recitation is clearly structural.

[00:10:35] Speaker 00:
We think that

[00:10:36] Speaker 00:
we would appreciate it kind of be treated as such so we can start engaging on the merits of the prior art and whether or not we actually have something that's patentable over the prior art.

[00:10:45] Speaker 00:
And that's why I started with the context of, you know, if one of the patent offices' emphasis is on, you know, as I did, they don't want functional claiming, that's kind of the opposite of what we did here.

[00:10:55] Speaker 00:
We didn't just say these two things are held together.

[00:10:59] Speaker 00:
Like, I mean, at one point the solicitor suggests that, you know, the recitation of injection molded

[00:11:04] Speaker 00:
is actually a functional limitation.

[00:11:06] Speaker 00:
But that's not what we were trying to do at all.

[00:11:08] Speaker 00:
And we were trying to recite the structure as specifically as we could by reciting that you had this framework that was injection molded about the strut and arm components of the hinge mechanism.

[00:11:21] Speaker 00:
That's what we tried to recite.

[00:11:24] Speaker 00:
We think it's a structural limitation.

[00:11:26] Speaker 00:
We think that the examiner has kind of acknowledged that it conveys a structural feature by

[00:11:32] Speaker 00:
doing some of that holding.

[00:11:33] Speaker 00:
The examiner thought that the rivets and other fasteners he referred to were actually doing more, but I don't think that changed the fact that he acknowledged that there is something structural there, that there is some holding going on.

[00:11:45] Speaker 00:
Notably, the solicitor also suggested that one of the reasons he felt that our argument wasn't persuasive was that it should be construed in a way, it should be construed against us because we could just amend and add the fasteners.

[00:11:57] Speaker 00:
But again, notably here, we're not necessarily claiming fasteners

[00:12:01] Speaker 00:
are holding for each component.

[00:12:03] Speaker 00:
The struck component is not really- You're using up your rebuttal time.

[00:12:05] Speaker 04:
You want to save it?

[00:12:06] Speaker 00:
I will save it.

[00:12:07] Speaker 00:
Thank you.

[00:12:09] Speaker 04:
Mr. Piccolo?

[00:12:19] Speaker 02:
Thank you, Your Honors, and may it please the court.

[00:12:24] Speaker 02:
This is going to take a little bit of time, because I think we have to go to a few appendix pages, and what I'm about to say will make sense.

[00:12:31] Speaker 02:
arm components, the injection molded about as the claim reads says that the injection molded framework goes about or he has arm components in the claim.

[00:12:47] Speaker 02:
That's not in the specification that Your Honor Judge Toronto pointed to initially, which I think plays a key role in this case that page 81 of the appendix that has the specification

[00:13:01] Speaker 02:
And that's the only place that injection molding is discussed.

[00:13:04] Speaker 02:
And it's discussed without specificity.

[00:13:08] Speaker 02:
It only talks about injection molding and the struts, the framework and struts, not about what the claim says.

[00:13:19] Speaker 02:
So it's really important.

[00:13:20] Speaker 02:
And we think he might be able to amend around Gilder's sleeve as claim two got around when the board decided for him on claim two.

[00:13:31] Speaker 02:
Claim 1 says that the mold, and this is in Part B of Claim 1, molded about the strut and arm components so that integrally formed cannot say enough in the specification about what's not even mentioned, the arm components.

[00:13:51] Speaker 02:
So he may be able to use more of what's in his specification, like fasteners.

[00:13:57] Speaker 02:
Later in the claim.

[00:13:59] Speaker 04:
I'm having a lot of trouble following your argument.

[00:14:02] Speaker 04:
I really don't understand what it is you're trying to convey.

[00:14:05] Speaker 02:
That the injection molded about for the framework per the claim has to go around the strut and the arm components.

[00:14:21] Speaker 02:
And his specification does not elaborate

[00:14:25] Speaker 02:
On that, his specification- This is an originally filed claim.

[00:14:30] Speaker 04:
Well, in terms- So it's considered part of the specification on the- Oh, no, he amended this.

[00:14:34] Speaker 02:
I'm sorry.

[00:14:34] Speaker 02:
No, Your Honor, he amended- This is an amendment?

[00:14:36] Speaker 02:
Yes, it is.

[00:14:37] Speaker 04:
This element was amended?

[00:14:38] Speaker 02:
Yes, Your Honor.

[00:14:39] Speaker 02:
That is at page 23 of the record, September 2012.

[00:14:45] Speaker 02:
Amendment to the claims adds this precise language.

[00:14:53] Speaker 02:
It's underlined.

[00:14:54] Speaker 01:
I have a question for you, which is even if that's true and the specification doesn't talk about what injection molded about the arms is, I thought that what we were looking at was just the phrase injection molded.

[00:15:13] Speaker 01:
Correct.

[00:15:13] Speaker 01:
And that the PTAB said injection molded is a process and therefore it doesn't have weight.

[00:15:21] Speaker 01:
And then, but you look at the specification, and I think that Judge Toronto pointed out, for example, on the very page you were looking at, at page A81, that it talks about how this, the, you know, through the injection molding, they're integrally formed, integrally constructed.

[00:15:40] Speaker 01:
And so what you're talking about is unitary, integral.

[00:15:43] Speaker 01:
That's the structural understanding of injection molded.

[00:15:49] Speaker 01:
So why does it matter?

[00:15:51] Speaker 01:
whether the specification specifically disclosed, at least for purposes of what we're considering today, which is whether injection molded has a structural meaning.

[00:16:02] Speaker 01:
Why does it matter whether the specification talks about injection molding about an arm?

[00:16:09] Speaker 02:
Thank you, Your Honor.

[00:16:10] Speaker 02:
It matters a lot because integrally formed does not say much, especially

[00:16:19] Speaker 02:
When you look at applicant Hattis, looking at figure one, which is on page three of our brief, figure one, the framework, which is the big thing, that might overlap the strut, and it doesn't overlap the arms.

[00:16:40] Speaker 02:
So his drawings do not elaborate on integrally formed, and integrally formed is a

[00:16:48] Speaker 02:
very general type phrase.

[00:16:51] Speaker 03:
Put aside generality.

[00:16:57] Speaker 03:
You've probably read a thousand times more patents than I have.

[00:17:01] Speaker 03:
I have the impression, and correct me if I'm wrong, that a phrase like integrally formed appears in patent claims and is treated as structural.

[00:17:16] Speaker 03:
So if you simply took out injection molded and plopped down in its place integral or integrally formed, there wouldn't be any real doubt that that is a structural element to be given patentable weight and then evaluated in the usual way.

[00:17:39] Speaker 03:
But is that wrong?

[00:17:44] Speaker 02:
Totally wrong, Your Honor, because for infringement.

[00:17:51] Speaker 02:
Integrally formed.

[00:17:54] Speaker 02:
Would this drawing, figure one, which looks kind of general, you have some overlap, you don't go over the arms.

[00:18:05] Speaker 02:
So is that integrally formed?

[00:18:08] Speaker 02:
Would that infringe?

[00:18:09] Speaker 02:
Or would something need to be a tighter, compact match

[00:18:15] Speaker 02:
be integrally formed and infringed.

[00:18:16] Speaker 02:
And during prosecution, he could give clarity to this.

[00:18:20] Speaker 01:
I understand what you're saying, but it seems to me the dispute is then over what meaning to give this term.

[00:18:27] Speaker 01:
And the issue we have before us seems to me to be, should this term be given any meaning at all?

[00:18:34] Speaker 02:
Well, I think the board, okay, the board considered it and it did not impart specific enough structure

[00:18:45] Speaker 02:
And what I'd like to discuss is how the rest of the claim has an arm component, another arm, a strut.

[00:18:52] Speaker 02:
They're connected.

[00:18:53] Speaker 02:
The word connected is right in the claim.

[00:18:56] Speaker 02:
So the claim has a lot of structure.

[00:18:59] Speaker 02:
And what the board was saying was, tell us, and this is really important too, I think, Your Honors, on page 154 of the record where he made his argument to the board, and this is 154.

[00:19:14] Speaker 02:
This is what the board was presented.

[00:19:22] Speaker 02:
And he says, clearly conveys structural limitations near the top of the page, similar to the use of the phrases such as welded, intermixed ground.

[00:19:38] Speaker 02:
OK.

[00:19:38] Speaker 02:
So he was relying on just the phrase as imparting

[00:19:42] Speaker 02:
what he says, even clear structure, but doesn't say that it goes around both the arms and the strut in such a manner that infringers out there would know what the structure is.

[00:19:58] Speaker 02:
And so when the Balt got this quote unquote.

[00:20:00] Speaker 04:
He says it right below there, the first sentence of the next paragraph, which is a single sentence.

[00:20:06] Speaker 04:
By the way, you can't have one sentence paragraphs, Mr. Dore.

[00:20:09] Speaker 04:
The sentence after that, that is comma Gilder's sleeve clearly fails to anticipate the structure of a framework injection, injection molding about strut and arm components.

[00:20:21] Speaker 04:
So you're right.

[00:20:21] Speaker 04:
He didn't say it's in the paragraph that you pointed to.

[00:20:24] Speaker 04:
He said it in the next one.

[00:20:25] Speaker 02:
I'm sorry, but what the structure is, does it have to cover the strut and arm components about, I think about is getting a lot of weight here.

[00:20:35] Speaker 04:
Did you guys hold these claims indefinite?

[00:20:38] Speaker 02:
No.

[00:20:39] Speaker 02:
No, you held them anticipated.

[00:20:41] Speaker 02:
Right.

[00:20:41] Speaker 02:
I'm sorry, Your Honor.

[00:20:42] Speaker 02:
In terms of added structure to overtake Gilder's sleeve, and when he did added structure, such as in claims two and nine to 13 and 16, he got around Gilder's sleeve.

[00:20:55] Speaker 04:
But why is an injection molded structure?

[00:20:57] Speaker 04:
It means a unitary piece, a piece formed of a single molding process.

[00:21:02] Speaker 04:
Why isn't that imbued with structure?

[00:21:08] Speaker 02:
Thank you, your honor.

[00:21:10] Speaker 02:
Because back to the claim language, it's the framework that is injection molded itself by itself, not with in the same process as the- I don't understand.

[00:21:27] Speaker 04:
You're still telling me, if I said the red framework, red would be an adjective modifying framework.

[00:21:34] Speaker 04:
My claim would then require red to anticipate

[00:21:38] Speaker 04:
the acute structure in gill sleeve would have to be read if that were a claim element.

[00:21:43] Speaker 04:
So why isn't injection molded an adjective describing framework?

[00:21:50] Speaker 02:
It is, but it doesn't.

[00:21:55] Speaker 04:
But it doesn't mean anything?

[00:21:57] Speaker 02:
It doesn't impart specific structure to overcome gill or sleeve.

[00:22:01] Speaker 04:
Wait, a framework could be made up of 10 different components, right?

[00:22:04] Speaker 04:
Each one joined together by hinges, screws, bolts,

[00:22:08] Speaker 04:
rivets, a framework could be 10 different pieces, correct?

[00:22:12] Speaker 04:
Yes.

[00:22:13] Speaker 04:
Or a framework could be a unitary structure, a single structure that isn't simply the compilation of a bunch of pieces joined together.

[00:22:20] Speaker 02:
And that's in Gilder's sleeve.

[00:22:22] Speaker 04:
Well then you'll find, maybe you can find that.

[00:22:24] Speaker 02:
No, his framework is unitary.

[00:22:26] Speaker 01:
It sounds like maybe you want us to say that maybe the board should have impart some meaning to this language.

[00:22:34] Speaker 01:
And but even if it had some meaning, like integral, then we should say that that error by the board was harmless because Gilder's sleeve still teaches.

[00:22:45] Speaker 02:
Absolutely, Your Honor.

[00:22:47] Speaker 02:
And what Appellant here today started talking about functional language, Gilder's sleeve meets all of that function of engulfing the hinge mechanism.

[00:23:00] Speaker 02:
So when he was trying to say function of the framework,

[00:23:04] Speaker 02:
in terms of holding the hinge mechanism.

[00:23:06] Speaker 02:
Gilder sleeve meets that function.

[00:23:08] Speaker 02:
Gilder sleeve meets the integrally formed.

[00:23:11] Speaker 04:
Here's the problem.

[00:23:12] Speaker 04:
You said, absolutely, the judge stole, and you're telling me Gilder sleeve has this.

[00:23:16] Speaker 04:
You don't want me to start making fact findings in the first instance.

[00:23:20] Speaker 02:
No, but harmless error that the board.

[00:23:23] Speaker 04:
But to say it's harmless error, I have to make a fact finding.

[00:23:26] Speaker 04:
I have to read Gilder sleeve and figure out what it teaches.

[00:23:29] Speaker 02:
Don't I?

[00:23:33] Speaker 02:
teaches what was argued that injection molded about.

[00:23:42] Speaker 02:
That's what the board said it was met.

[00:23:44] Speaker 01:
I think what Judge Moore is saying is that we are not in a place to make that kind of fact finding in the first instance.

[00:23:52] Speaker 02:
I'm sorry, Your Honor.

[00:23:53] Speaker 02:
I don't think it's a fact finding.

[00:23:54] Speaker 02:
The anticipation is a fact finding, and the substantial evidence that supports this is

[00:24:02] Speaker 01:
I was just going to say the board said this limitation has no weight, that this is a product by process claim and so we're not giving any weight to this limitation.

[00:24:12] Speaker 01:
I don't see how we can say, no, it needs some weight and we're going to go ahead and decide as a matter of fact whether there's anticipation or whether even this one limitation is satisfied by the prior.

[00:24:28] Speaker 01:
Without a concession, I don't see how we can do that.

[00:24:33] Speaker 02:
I'm going to try at least one more time.

[00:24:36] Speaker 02:
I'm sorry.

[00:24:36] Speaker 02:
But the board says, because it does not change the claimed product.

[00:24:42] Speaker 02:
So the claimed product is the framework, whether it's integrally formed, which is not in the claim, or injection molded, the product as unitary is the same product that's in Gilder's sleeve.

[00:25:00] Speaker 02:
So Gilder's sleeve has

[00:25:02] Speaker 02:
the structure of this claim.

[00:25:05] Speaker 02:
And if injection molded is the process, we know in patentability that's not given weight.

[00:25:14] Speaker 02:
Smith-Kline and Ray Thorpe, those cases say that injection molded, which he describes in his specification as a process, he says on page 81 of the record, again, he says that

[00:25:30] Speaker 02:
This is page 81, paragraphs 140 and 141, that this is a method.

[00:25:36] Speaker 02:
This is a process to do.

[00:25:39] Speaker 02:
It's right after injection molding processes.

[00:25:42] Speaker 02:
So the board was guided eminently so by this court's clear jurisprudence on product by process during patentability.

[00:25:52] Speaker 02:
Abbott versus Sandoz says that during patentability, process limitations are not given weight.

[00:25:59] Speaker 02:
defeat the structure that came before.

[00:26:01] Speaker 02:
And so Abbott, Smith-Kline cited in our brief, Henry Thorpe going back to 1985.

[00:26:10] Speaker 02:
We have a lot of longstanding case law.

[00:26:12] Speaker 02:
And he admits that this is a process that's right on page 23 of his specification, A81 of the appendix.

[00:26:21] Speaker 03:
He says the injection molded process.

[00:26:25] Speaker 03:
Just to come back to something I said here,

[00:26:28] Speaker 03:
the beginning and might have gotten lost, but this may be a process that, as this sentence says, produces a structural feature, namely integral formation.

[00:26:42] Speaker 02:
No, but I'm sorry, I would disagree, Your Honor, that there isn't integral formation because one doesn't talk about the arms.

[00:26:51] Speaker 04:
I don't understand that argument.

[00:26:53] Speaker 04:
I still don't understand it.

[00:26:55] Speaker 04:
And page 74 of the appendix talks about the arms expressly and talks about support by molding.

[00:27:01] Speaker 04:
I don't know, seems like that is a pretty clear reference to the injection molding.

[00:27:05] Speaker 04:
There's no other molding referred to anywhere in the specification.

[00:27:09] Speaker 04:
Page 74 of the appendix, right at the top, where it says the struck components may be so embedded within the material and explains that

[00:27:18] Speaker 04:
of the support by molding or otherwise forming the framework, then the very next sentence is similarly.

[00:27:24] Speaker 04:
Ah, what does similarly mean?

[00:27:26] Speaker 04:
It means referring back to the prior sentence, which talks about molded by the framework.

[00:27:31] Speaker 04:
Similarly, each of the first and second arm components may be at least partially embedded.

[00:27:36] Speaker 04:
If that's not about support by molding, and if that molding doesn't mean injection molding, I really don't know what else this patent is about.

[00:27:43] Speaker 04:
It's the only molding described anywhere in the patent.

[00:27:45] Speaker 04:
The word molding right here is tied directly to the arm components and the framework.

[00:27:49] Speaker 04:
So I just don't understand your argument, as a matter of fact, about what the specification discloses.

[00:27:55] Speaker 02:
That it's a process, and therefore it doesn't count.

[00:27:58] Speaker 02:
And as the board said, you haven't shown us as to structure how it changes the product, which is met by a gilded sleeve.

[00:28:05] Speaker 02:
Thank you, Your Honor.

[00:28:07] Speaker 04:
OK.

[00:28:07] Speaker 04:
Thank you, Mr. Bickelow.

[00:28:09] Speaker 04:
Mr. Dorey, you have your rebuttal time.

[00:28:22] Speaker 00:
I was going to start by emphasizing that the spec does actually disclose that the armed components can be embedded in the framework, but the court just pointed that out.

[00:28:34] Speaker 00:
So reemphasize that.

[00:28:35] Speaker 00:
The second thing I wanted to briefly address.

[00:28:38] Speaker 00:
He talked a little bit about infringement, or he kept talking about his concerns were driven by concerns about infringement.

[00:28:44] Speaker 00:
Obviously, I don't know that his concern is particularly relevant where, even if it was,

[00:28:50] Speaker 00:
even assuming that it was construed as a product by process limitation for the purpose of infringement analysis, obviously the limitation would still be relevant.

[00:28:58] Speaker 00:
It would still be relevant for the purpose of infringement even if it was construed as a product by process limitation.

[00:29:02] Speaker 04:
Yeah, that's the downside of product by process.

[00:29:05] Speaker 00:
Yes, exactly.

[00:29:05] Speaker 00:
You lose both ways.

[00:29:07] Speaker 00:
Yeah, exactly.

[00:29:08] Speaker 00:
So similarly, he wants to talk about case law like GreenLiant and Amgen and other ones talking about that, which again,

[00:29:16] Speaker 00:
Our position isn't that it is a product by process limitation.

[00:29:19] Speaker 00:
We just think it's a structural limitation.

[00:29:21] Speaker 00:
That's why we're citing the Gartnero.

[00:29:23] Speaker 04:
And you don't believe, therefore, that this is a product by process claim?

[00:29:27] Speaker 00:
Yes.

[00:29:27] Speaker 00:
We don't believe this is a product by process claim.

[00:29:29] Speaker 00:
We have tried to make it clear it's a structural recitation.

[00:29:33] Speaker 00:
We tried the best we could to recite a structural recitation.

[00:29:36] Speaker 00:
The point I wanted to briefly make about a citation to those cases is just that even under those cases, it's explicitly recognized that

[00:29:43] Speaker 00:
And I'm reading from GreenLiant versus Zicor 692 F3D 1261.

[00:29:50] Speaker 00:
There is an exception to this general rule of the process by which the product is made is irrelevant, as we recognize in Amgen.

[00:29:55] Speaker 00:
If the process by which a product is made imparts structural and functional differences, distinguishing the claimed product from the prior art, those differences are relevant as no evidence of anticipation.

[00:30:04] Speaker 00:
So again, we don't even think that applies.

[00:30:06] Speaker 00:
But even if it did, we would still have an argument there.

[00:30:10] Speaker 00:
Really here, we just think that

[00:30:12] Speaker 00:
It's clearly a structural limitation.

[00:30:16] Speaker 00:
The phrase injection molded, the court's exactly right, and I thank you for kind of emphasizing that you don't even have to focus on the fact that they're interpreting it piecemeal outside of the additional about language, that you can even just focus on the injection molded itself.

[00:30:32] Speaker 00:
It seems like a structural limitation.

[00:30:33] Speaker 00:
I tried to emphasize, unfortunately, this isn't a case that came from a district court where there's an extensive expert testimony, that there hasn't been a lot there.

[00:30:40] Speaker 00:
So what I tried to do was pull from

[00:30:42] Speaker 00:
something in the record that showed that the PTO was acknowledging that this was structural language.

[00:30:47] Speaker 00:
And what I found in that regard was the examiner's acknowledgement, again, I'm looking at appendix 39 with the examiner's knowledge that the fasteners hold hinge mechanisms to the framework as much as the injection molding even more, acknowledging there is some sort of structural element there or that it's accomplishing something functionally.

[00:31:07] Speaker 00:
The other, I think, relevant factual finding the examiner made is that the examiner specifically found that Gilder's sleeve does not disclose that its sleeve is injection molded, and that's from appendix 28 and 29.

[00:31:19] Speaker 00:
I think that combining those two things, it just seems clear that on the one hand, A, it's structural, the examiner's acknowledged that it's structural, and B, it's just not present in the prior art.

[00:31:31] Speaker 00:
That's really just the core of our argument.

[00:31:35] Speaker 04:
Okay, I thank both counsel.

[00:31:36] Speaker 04:
The case is taken under submission.