[00:00:00] Speaker 02:
...argued cases this morning which have been consolidated into two groups of two each.

[00:00:08] Speaker 02:
And the first group is 15-1841 and 15-842, N. Ray Nuvacev, Inc., Mr. Rosato,

[00:00:30] Speaker 04:
Thank you very much, Your Honor, and may it please the Court.

[00:00:33] Speaker 04:
There are three issues that I'm primarily going to address here.

[00:00:37] Speaker 04:
Briefly, I'll identify them.

[00:00:38] Speaker 04:
Claim construction for the term lateral transoas approach the spine.

[00:00:43] Speaker 04:
A rationale to combine for the Board's obviousness combination.

[00:00:47] Speaker 04:
And then finally, the Board's failure to properly consider nuvasives objective in issue of non-obviousness.

[00:00:54] Speaker 04:
And with the Court's permission, I'd like to start with the lateral transoas path claim construction issue.

[00:00:59] Speaker 04:
which is particularly relevant to the 767 patent here, which is one of the two patents.

[00:01:06] Speaker 02:
So here... Can I ask you, in your opening brief, you said that lateral describes a direct lateral approach, and then you seem to give that up in your reply brief.

[00:01:18] Speaker 02:
You say, that's not what we're contending.

[00:01:21] Speaker 02:
And I'm not sure what you are contending.

[00:01:23] Speaker 02:
Could you look at the figure that you have at page 42 of your opening brief?

[00:01:40] Speaker 02:
Yes.

[00:01:40] Speaker 02:
Would lateral be anything between 90 and 45 degrees?

[00:01:48] Speaker 04:
Well, lateral, Your Honor, would... This is the point here.

[00:01:54] Speaker 04:
And this is sort of the trap that the board has fallen into.

[00:01:58] Speaker 04:
Lateral is from the side of the patient.

[00:02:01] Speaker 04:
It is direct lateral.

[00:02:02] Speaker 02:
But try to answer my question.

[00:02:04] Speaker 02:
Do you agree that lateral would be within 90 to 45 degrees?

[00:02:09] Speaker 04:
As long as it's approaching from the patient's side, I'm not sure there's a particular number.

[00:02:14] Speaker 04:
What the experts have testified about is that lateral is from the side.

[00:02:20] Speaker 02:
Well, I'm trying to figure out what that means in terms of there's all sorts of testimony referring this to a clock and eight to 10.

[00:02:30] Speaker 02:
What I'm asking is lateral 90 to 45 degrees.

[00:02:35] Speaker 04:
It's certainly about the 90 degrees.

[00:02:38] Speaker 04:
I'm not sure it goes as far as 90, but to be honest, I'm not sure that's necessary to reach to exclude the open chain reference, which is the reference that's being applied here.

[00:02:49] Speaker 04:
I understand the question, and this is something the board clearly struggled with.

[00:02:53] Speaker 04:
They wanted a bright line rule in terms of where the clock stops, but that's just not the way those of ordinary skill in the art viewed this subject matter at the time.

[00:03:04] Speaker 04:
They talked about a lateral approach being from the

[00:03:06] Speaker 04:
These surgeries were referred to based on the anatomical aspect of the patient from which they approach the body, as well as some of the axis.

[00:03:14] Speaker 02:
Well, why wouldn't 90 to 45 degrees be the broadest reasonable interpretation of lateral?

[00:03:20] Speaker 04:
Even if 90 to 45 were the broadest reasonable interpretation, which again, this is a hypothetical obviously because all we need is the side of the patient, but even if that's the case,

[00:03:34] Speaker 04:
there's no indication that open chain falls within the scope of that.

[00:03:38] Speaker 02:
Well, that's puzzling to me because if you look at open chain, for example, figure eight of open chain, where do I find open chain in the

[00:04:04] Speaker 02:
There's a figure reproduced in the opening brief that I can find out for you.

[00:04:09] Speaker 02:
If you look at figure 8 on 797, and this is his preferred approach, right?

[00:04:25] Speaker 02:
Yes.

[00:04:26] Speaker 02:
And what he's talking about, the label 12,

[00:04:32] Speaker 02:
is where he's accessing the spine, right?

[00:04:35] Speaker 02:
Yes.

[00:04:36] Speaker 02:
That's the channel, right?

[00:04:38] Speaker 02:
So in his alternative approach, he moves that conduit down so that it goes through part of the sorus muscle, right?

[00:04:49] Speaker 02:
Yes.

[00:04:51] Speaker 02:
And that would seem to be within 45 degrees, isn't it?

[00:04:57] Speaker 02:
He doesn't say.

[00:04:58] Speaker 02:
I mean, he doesn't say it's a 45... But I'm just asking you from looking at it.

[00:05:02] Speaker 02:
That's within 45 degrees, isn't it, if he goes through part of the sorus muscle?

[00:05:08] Speaker 04:
If this figure were to be taken to scale, if that were moved, it would look about the 45 degree angle, but that's... I would submit that that is not the way people look at this in the art.

[00:05:21] Speaker 04:
The way people look at this in the art

[00:05:23] Speaker 04:
is looking at what type of procedure open chain is describing.

[00:05:27] Speaker 04:
They're very explicitly describing the procedure as an anterior abdominal puncture.

[00:05:32] Speaker 04:
Well, he describes it in the patent as lateral.

[00:05:35] Speaker 04:
Well, he describes, in the abstract, he's referring to approaching an anterior aspect of the body at lines, column one, lines three, seven through 40.

[00:05:44] Speaker 04:
When introducing the procedure, he's introducing it as an anterior approach to the spine, right?

[00:05:49] Speaker 02:
Surgical... Yeah, that's his preferred approach, but then

[00:05:53] Speaker 02:
He says in column six at line 27, I guess, he says, alternatively, where the patient has extensive abdominal adhesions, it may be preferred to use a lateral puncture of the abdomen.

[00:06:07] Speaker 02:
That is to get to the spine, right?

[00:06:09] Speaker 02:
The relevant question is, lateral to what?

[00:06:12] Speaker 02:
But lateral to get to the spine, right?

[00:06:15] Speaker 02:
lateral to the midline.

[00:06:17] Speaker 02:
So there's a point of reference.

[00:06:18] Speaker 02:
But he's using a lateral puncture to get to the spine.

[00:06:22] Speaker 02:
He's getting to the spine, correct.

[00:06:23] Speaker 02:
Right.

[00:06:26] Speaker 04:
But from what angle, from what aspect of the patient, and how is he getting there?

[00:06:30] Speaker 04:
Again, the open chain technique is introduced and described very explicitly as an anterior method or anterior abdominal approach.

[00:06:40] Speaker 02:
Well, except for the alternative.

[00:06:42] Speaker 04:
No, I would say that's not true, Your Honor.

[00:06:44] Speaker 04:
In that alternative, what he's saying is ideally place the puncture about the midline.

[00:06:50] Speaker 04:
The midline is, as you're no doubt aware, the imaginary plane dividing the left half of the body from the right half.

[00:06:57] Speaker 04:
So the preferred puncture is about the midline.

[00:06:59] Speaker 04:
If there's abdominal adhesions, he's saying move it to the left or right of that.

[00:07:04] Speaker 04:
In any event and under any circumstances, open chain is always placing its puncture in the anterior abdominal region.

[00:07:12] Speaker 03:
But the board never even had to address that, right?

[00:07:17] Speaker 04:
I don't believe they addressed it.

[00:07:18] Speaker 04:
They certainly didn't dispute it.

[00:07:20] Speaker 04:
They addressed it to the extent of saying, even if that's true, and then they went back to claim construction and said, your claims don't limit it to lateral.

[00:07:30] Speaker 03:
So I guess what I'm trying to understand is, even if we agreed with you that the construction that the board used was too broad, where does that leave us?

[00:07:39] Speaker 03:
Wouldn't we have to remand?

[00:07:43] Speaker 03:
there was never a full development of an alternative construction.

[00:07:49] Speaker 04:
Well, I 100% agree.

[00:07:51] Speaker 04:
A minimum remand is necessary here because this is something we mentioned in the briefing.

[00:07:56] Speaker 04:
This whole construction came up for the first time in the final decision.

[00:07:59] Speaker 04:
There was an agreed upon construction between the parties.

[00:08:02] Speaker 04:
That lateral was an approach from the side.

[00:08:04] Speaker 04:
So in that sense,

[00:08:05] Speaker 04:
the board coming up with a brand new construction on their own for the first time in Founder and Decision presents some APA and notice opportunity to respond issues.

[00:08:14] Speaker 04:
That being said, even with that construction, I agree there was at best some vague indication that they weren't disputing the characterization of Openchain.

[00:08:27] Speaker 04:
Medtronic never disputed the characterization of Openchain.

[00:08:30] Speaker 04:
The board seemed to softly

[00:08:33] Speaker 04:
you concede is one reading, but there's no clear fact finding one way or the other.

[00:08:39] Speaker 02:
Well, what's the matter with the board's construction, lateral to any degree?

[00:08:46] Speaker 04:
Because it's based on a completely irrelevant piece of evidence.

[00:08:50] Speaker 04:
Their evidence is Dr. Obenchain, New Vase's witness, testimony where he was very explicitly referring to the relative

[00:09:00] Speaker 04:
placement of his anterior abdominal puncture.

[00:09:02] Speaker 04:
What do you understand their construction to be?

[00:09:05] Speaker 04:
What do I understand it to be?

[00:09:06] Speaker 04:
Yeah.

[00:09:06] Speaker 04:
Anything lateral to the midline plan to any degree.

[00:09:11] Speaker 04:
That's what they say in both.

[00:09:13] Speaker 02:
Is that the 45 degree construction that I was asking about earlier?

[00:09:18] Speaker 04:
Under the board's construction, it would include a one degree.

[00:09:21] Speaker 04:
A one degree from the interior?

[00:09:26] Speaker 02:
Yeah.

[00:09:27] Speaker 02:
I don't understand why you're saying that.

[00:09:30] Speaker 02:
It doesn't seem to me to make sense.

[00:09:31] Speaker 02:
I agree it doesn't make sense, but... What's your evidence that that was how they're using it?

[00:09:37] Speaker 04:
Their construction says that a... Well, let me turn to the phone or decision.

[00:09:42] Speaker 04:
I think it said a... So, two places.

[00:09:46] Speaker 04:
So, A9 and 10 is where they discuss construction.

[00:09:49] Speaker 04:
A9 is where they come... Sorry, A9, they identify the agreed-upon construction of human parties, that there is a construction advanced by

[00:10:00] Speaker 04:
medtronic, and unopposed.

[00:10:03] Speaker 04:
Then they move through that and pivot to Dr. Obenchain's testimony at the top of A10, and then conclude that a lateral transsoas path to the spine, I'm reading the first full paragraph, encompasses a path to the lumbar spine which passes through any portion of the psoas muscle, regardless of the portion, degree, or extent of passage through the psoas end, this is the key part,

[00:10:30] Speaker 04:
which is lateral to any degree compared to an anterior puncture.

[00:10:35] Speaker 04:
That doesn't suggest that one degree from the anterior is lateral.

[00:10:40] Speaker 04:
Taken in context with what they say later in the decision, they switch the term anterior puncture with about the midline, very clearly in the context of claim one.

[00:10:58] Speaker 04:
Yeah, and this is at A-26, for example, right at the bottom, where they say, in contrast, as petitioner contends, as discussed above, claim one of the 7-6 patent is not limited to the particular approach used in the XLIFT procedure, but instead encompasses any SOAS traversing approach that is lateral to the midline to any degree.

[00:11:20] Speaker 02:
I don't quite understand your basis for interpreting that as saying that one degree off the

[00:11:27] Speaker 02:
interior would be lateral.

[00:11:29] Speaker 04:
One degree off the midline.

[00:11:31] Speaker 04:
They're saying lateral to the midline to any degree.

[00:11:35] Speaker 04:
What do you understand the midline to be?

[00:11:36] Speaker 04:
The midline is the imaginary plane that, it's an imaginary anatomical plane that divides the left half of the body from the right side of the body.

[00:11:45] Speaker 02:
Look at your figure 45 and just help me here.

[00:11:47] Speaker 02:
You're saying that one degree off the posterior would be lateral under their interpretation?

[00:11:55] Speaker 04:
Yes, under their interpretation, lateral to any degree relative to the midline.

[00:12:01] Speaker 04:
That's how broad the construction is.

[00:12:03] Speaker 02:
I don't read it that way, but that's on the question.

[00:12:06] Speaker 02:
I would have thought they were saying that anything between 90 and 45 was lateral to any degree.

[00:12:15] Speaker 04:
I didn't find that anywhere in the final rendition, Your Honor.

[00:12:19] Speaker 04:
The two things that I mentioned are the two very clear comments on the construction.

[00:12:24] Speaker 04:
And the one on A26 seems to be the clearest indication of what they're talking about.

[00:12:29] Speaker 04:
And the basis, and if you think back to the basis for saying this, it even further clarifies that this is precisely what they mean.

[00:12:38] Speaker 04:
Again, they're referring to Dr. Openchain's testimony about his patent, where the patent is talking about placing a puncture along the midline, and if they're scarring, moving it to the left or right of that.

[00:12:49] Speaker 00:
Okay.

[00:12:49] Speaker 00:
Can I ask what, what are the words that you use or what would like the board to adopt as a better claim construction for lateral trans, what is it?

[00:13:00] Speaker 00:
SOAS?

[00:13:01] Speaker 04:
Trans-SOAS.

[00:13:04] Speaker 04:
If the board were, if the board adopts the construction that was advanced by Medtronic and unopposed throughout the entire procedure,

[00:13:13] Speaker 04:
That is, a lateral approach is one that approaches the spine from the patient's side of the body, or the lateral aspect of the body.

[00:13:23] Speaker 04:
That is a construction that is reasonable to be the specification.

[00:13:26] Speaker 00:
So you would not build into the construction any reference to what portion of the psoas needs to be traversed?

[00:13:38] Speaker 04:
That's not necessary for the 767 patent case, certainly.

[00:13:42] Speaker 04:
The way that's conventional to refer to surgical approaches in the ART and the way it's used in the specification is to refer to a surgical procedure on the basis of the anatomical aspect of the patient from which it approaches.

[00:13:55] Speaker 04:
Anterior approaches are from the front, posterior surgical approaches are from the back, lateral or from the side.

[00:14:01] Speaker 04:
Open chains in anterior procedure, we're claiming a lateral procedure.

[00:14:05] Speaker 04:
There's no way that an anterior,

[00:14:08] Speaker 04:
things that are defined as being different.

[00:14:10] Speaker 00:
So if the board were to adopt a construction that said from the patient's side, that's what we mean by lateral, then in applying that construction to column five in OVN chain, you would explain what about that sentence that begins alternatively about why that doesn't teach that.

[00:14:38] Speaker 04:
Well, it would be the same thing as saying Judge Toronto is sitting lateral to Judge Dyke and then asserting that a lateral surgical approach should then be defined as a surgical approach lateral to Judge Dyke.

[00:14:50] Speaker 04:
That doesn't make any sense because it's a completely different context.

[00:14:54] Speaker 00:
Let me just try to explain better what I was trying to separate.

[00:14:58] Speaker 00:
Let's assume now the board said, claim construction.

[00:15:02] Speaker 00:
Lateral means from the patient's side.

[00:15:04] Speaker 00:
Okay, now we have to apply that claim construction to the prior art.

[00:15:09] Speaker 00:
I read that sentence in column five that begins alternatively in open chain and it says a lateral approach.

[00:15:16] Speaker 00:
Why is that?

[00:15:18] Speaker 00:
What would be your answer to that on the assumption you have done it yet?

[00:15:22] Speaker 04:
Yes, thank you.

[00:15:23] Speaker 04:
So my answer is this.

[00:15:25] Speaker 04:
Elsewhere throughout the entire open chain reference, they're describing the procedure as an anterior surgical approach to the spine.

[00:15:32] Speaker 04:
and I can give multiple instances.

[00:15:34] Speaker 02:
That's all true, but that's not the alternative.

[00:15:37] Speaker 02:
His preferred approach is anterior, but he says alternatively you can do it laterally.

[00:15:43] Speaker 02:
He uses the same word that your patent uses.

[00:15:46] Speaker 04:
But lateral to what?

[00:15:48] Speaker 04:
I would say the correct interpretation of the reference is in every instance, every single instance, preferred, unpreferred, medium preferred, every instance of open chain, it is an anterior approach to the spine.

[00:16:00] Speaker 03:
What you're saying is that lateral as used in your patent in the 767 is different than lateral as used by open chain in that context.

[00:16:09] Speaker 04:
Absolutely.

[00:16:10] Speaker 04:
They're different contexts and there are different points of reference.

[00:16:13] Speaker 04:
In the context of the patent and the conventional usage of the term when referring to a surgical approach, the point of reference is the anatomical aspects of the patient's body, the side of the body, the front of the body, the back of the body.

[00:16:27] Speaker 04:
In the context of open chain, their point of reference is

[00:16:31] Speaker 04:
Place the puncture here about the midline.

[00:16:34] Speaker 04:
If that's not available, move to the left or right of that.

[00:16:37] Speaker 04:
In every instance, the left or right is always an anterior approach through the abdominal wall.

[00:16:43] Speaker 04:
And that's stated expressly.

[00:16:44] Speaker 04:
It's even stated in column five talking about the abdominal approach.

[00:16:48] Speaker 02:
Even in figure eight, which is his preferred approach, it's not directly posterior or anterior, whichever it is.

[00:16:56] Speaker 02:
Posterior.

[00:16:59] Speaker 04:
It's anterior.

[00:16:59] Speaker 00:
The picture's upside down.

[00:17:02] Speaker 04:
It's still an anterior abdominal approach.

[00:17:04] Speaker 04:
Anterior abdominal does not require just a zero degree angle.

[00:17:07] Speaker 04:
It's from the front of the patient through the abdominal region.

[00:17:11] Speaker 04:
Every instance of open chain is an anterior abdominal procedure without variation.

[00:17:18] Speaker 04:
Okay.

[00:17:18] Speaker 02:
Well, you used up your time.

[00:17:21] Speaker 02:
We'll give you two minutes for rebuttal.

[00:17:24] Speaker 02:
For rebuttal?

[00:17:24] Speaker 02:
Yes.

[00:17:25] Speaker 02:
Thank you.

[00:17:32] Speaker 01:
Good morning.

[00:17:32] Speaker 01:
May it please the court?

[00:17:34] Speaker 01:
The board's construction of lateral transsoas path was a reasonable, the reasonable broadest interpretation.

[00:17:42] Speaker 03:
And it does say to any degree, you say it like you say it at 10 at 26.

[00:17:47] Speaker 01:
It does say to any degree, but I don't think the board was meeting that one degree.

[00:17:53] Speaker 01:
All the testimony was talking about

[00:17:55] Speaker 01:
degrees in bigger chunks in the seven o'clock, eight o'clock, nine o'clock.

[00:17:59] Speaker 01:
But it doesn't say that, though.

[00:18:00] Speaker 03:
You said, regardless of the portion, extent of passage façade, which is lateral to any degree as compared to an anterior posture.

[00:18:09] Speaker 01:
That's correct.

[00:18:09] Speaker 01:
And the board took that from Obenchain's testimony, talking about what lateral would mean.

[00:18:16] Speaker 01:
Lateral is anything that's basically lateral to an anterior puncture.

[00:18:20] Speaker 01:
That was his testimony.

[00:18:21] Speaker 01:
The board relied on it.

[00:18:23] Speaker 01:
It was talking about his patent.

[00:18:25] Speaker 01:
But there's nothing in the record that suggests that lumbar surgery was discussed differently.

[00:18:31] Speaker 01:
I mean, all of these are lumbar spine surgeries.

[00:18:33] Speaker 02:
I'm trying to understand, as I guess Judge O'Malley is also, what do you understand the board's claim construction to me?

[00:18:39] Speaker 02:
If you look at page 42 of the blue brief, if they meant to include 11 o'clock, that seems to me to be questionable.

[00:18:49] Speaker 02:
On the other hand, if they were saying 90 to 45,

[00:18:54] Speaker 02:
is lateral, that would seem to be a reasonable construction.

[00:18:58] Speaker 02:
But I don't think that 11 o'clock or 11.30 is a reasonable construction of lateral.

[00:19:05] Speaker 01:
I agree.

[00:19:05] Speaker 01:
So part of the construction also requires it going through the transsous muscle.

[00:19:10] Speaker 01:
And if you look again at Figure 8 of Obertrain, which is the preferred degree, that is also lateral and edegree.

[00:19:18] Speaker 03:
That's a different question.

[00:19:21] Speaker 03:
I had hip surgery, and the doctor said, I can go in laterally, I can go in anteriorly.

[00:19:26] Speaker 03:
And if he goes in this way, it might be slightly that way or slightly this way, but this is lateral.

[00:19:32] Speaker 03:
So you've got to forget about whether you've traversed the transsoas muscle, address whether it's lateral.

[00:19:42] Speaker 03:
And under this construction, it appears that it could be this way slightly one degree or the other and still

[00:19:50] Speaker 03:
under your construction be considered lateral?

[00:19:52] Speaker 01:
I have two responses to that and I think one does depend on figure eight because when the board is looking at transsous is also part of the lateral transsous and you can't be just one degree to the midline and go through the transsous.

[00:20:07] Speaker 02:
Is 1130 lateral?

[00:20:10] Speaker 01:
I would say no because I think based on all the testimony about the lateral approach that

[00:20:19] Speaker 01:
Obertrain was using was a seven o'clock, eight o'clock approach, using the clock rather than degrees.

[00:20:26] Speaker 01:
And so the evidence before the board was talking in these bigger chunks of approaches.

[00:20:33] Speaker 01:
And that is what the board was trying to get at with any degree.

[00:20:37] Speaker 01:
Any degree includes what we were talking about.

[00:20:40] Speaker 01:
What we were talking about.

[00:20:41] Speaker 03:
That wasn't what the party stipulated to as the construction, correct?

[00:20:44] Speaker 03:
And that was used throughout the proceeding, including the institution decision, right?

[00:20:49] Speaker 01:
So Metronix construction was their expert's testimony was that direct lateral was through the side of the patient, not just lateral.

[00:20:58] Speaker 01:
So I'm not sure actually if there was an agreement between the parties on what that meant.

[00:21:05] Speaker 01:
The Metronix expert limited side to direct lateral.

[00:21:10] Speaker 01:
That's not what Metronix brief said, and it's not how the board quoted it.

[00:21:14] Speaker 02:
They've given up on direct lateral now in the library.

[00:21:19] Speaker 01:
Well, I guess I'm still a little confused if they have, because there's other parts of the brief and in other appeals where they say they define lateral as direct lateral.

[00:21:30] Speaker 01:
So to the degree that they've given it up, and they don't mean direct lateral, the board's construction and to the degree they've given it up, Obertyn teaches going lateral.

[00:21:41] Speaker 01:
in the way that's not just direct lateral.

[00:21:43] Speaker 01:
The board didn't limit it.

[00:21:45] Speaker 01:
It didn't seem it was limited to direct lateral.

[00:21:47] Speaker 03:
But the lateral to any degree is something that never showed up until the final written decision, right?

[00:21:52] Speaker 01:
I believe that's correct.

[00:21:53] Speaker 01:
The board, looking to the specification, didn't find a definition of lateral in the specification.

[00:21:59] Speaker 01:
Lateral and far lateral, posterior lateral, all these different terms were used.

[00:22:04] Speaker 01:
And I think what's important is in every case where they want to be specific, they have an adjective by the lateral.

[00:22:09] Speaker 01:
When they say lateral, it means

[00:22:11] Speaker 01:
broadly lateral and that is what the Auburn chain reference teaches.

[00:22:18] Speaker 02:
I have difficulty in saying that the broadest reasonable interpretation of lateral includes anything other than 90 to 45 degrees in this example.

[00:22:28] Speaker 02:
Why am I wrong about that?

[00:22:30] Speaker 02:
It doesn't seem to me that it could include one degree

[00:22:35] Speaker 02:
off the posterior or at 11 o'clock.

[00:22:38] Speaker 02:
It includes, if you talk in clock terms, 9 to 10.30.

[00:22:45] Speaker 01:
Or, I assume, 7.30.

[00:22:47] Speaker 01:
The board didn't use those words, and I can't put those words in the board's decision, but that was what the testimony that Oberchan was giving was that when he was doing his approach, including the approach that went through the transoas, it was 7 and 8 o'clock, which

[00:23:04] Speaker 01:
is not direct lateral.

[00:23:07] Speaker 01:
It's also not just one degree off the midline.

[00:23:11] Speaker 01:
But it's pretty close to the midline.

[00:23:16] Speaker 03:
The way he was describing it is that sometimes you can't go straight in.

[00:23:20] Speaker 03:
So you have to broaden it out because you might have to bypass something or there might be some nerve or some other thing that you might hit.

[00:23:29] Speaker 03:
And so you go slightly.

[00:23:31] Speaker 03:
You move slightly.

[00:23:32] Speaker 03:
But it is not a lateral surgery, lateral approach to the patient's body.

[00:23:38] Speaker 01:
Well, his alternative approach does say that he's avoiding the abdomen and the approach is lateral.

[00:23:46] Speaker 01:
And there's no limitation on that of anterior or lateral or that it's not.

[00:23:51] Speaker 01:
I mean, I think his preferred embodiments are off the midline.

[00:23:55] Speaker 01:
And that's what figure eight shows.

[00:23:56] Speaker 03:
You take that one sentence as saying I'm avoiding the abdomen altogether.

[00:24:01] Speaker 01:
I'm not sure.

[00:24:01] Speaker 01:
It says it's a distended abdomen.

[00:24:03] Speaker 01:
You need to avoid it.

[00:24:04] Speaker 01:
And the approach is through the transsous muscle.

[00:24:07] Speaker 01:
It's a lateral approach.

[00:24:08] Speaker 01:
And the board read it as it doesn't appear to be limited to insurance.

[00:24:14] Speaker 02:
He doesn't say avoiding the abdomen.

[00:24:15] Speaker 02:
He says use a lateral puncture of the abdomen to avoid bowel perforation.

[00:24:22] Speaker 00:
Does he elsewhere talk about distended abdomen and avoiding it?

[00:24:28] Speaker 01:
Yeah.

[00:24:29] Speaker 01:
That's, I believe, it was my understanding that if there's an extended abdomen, it might be preferred to use a lateral puncture.

[00:24:35] Speaker 01:
It goes on, you know, the entry into the disc base is loud.

[00:24:39] Speaker 00:
What are you reading from?

[00:24:40] Speaker 01:
I'm reading from 801.

[00:24:42] Speaker 01:
What column?

[00:24:45] Speaker 00:
Because we may not all be using the same appendix.

[00:24:48] Speaker 01:
I'm using the 1841 appendix.

[00:24:51] Speaker 01:
So if you're using a different appendix, it will have a different site.

[00:24:56] Speaker 00:
Is this a patent with column numbers?

[00:24:58] Speaker 01:
It's a patent.

[00:25:01] Speaker 01:
It's the 962 patent, the Obertrain 962 patent.

[00:25:05] Speaker 01:
In the 1841 appendix, it's on page 801.

[00:25:09] Speaker 02:
What lines of column 6?

[00:25:11] Speaker 01:
It starts, the alternatively starts at line 27, and it goes through 32.

[00:25:17] Speaker 01:
And the last part of that, starting at 30,

[00:25:24] Speaker 01:
is talking about the entry into the disc space is lateral.

[00:25:27] Speaker 03:
Right, but Judge Dyke just read that it says it may be to use a lateral puncture of the abdomen to avoid bowel perforation.

[00:25:36] Speaker 01:
Right, and entry into the disc space is lateral.

[00:25:39] Speaker 02:
Yeah, but he's still going through the abdomen.

[00:25:43] Speaker 02:
I mean, that may be a lateral puncture, but he's going through the abdomen.

[00:25:46] Speaker 02:
If you look at his figure eight.

[00:25:49] Speaker 01:
Well, figure eight, I don't think is, I think what everyone believes is not that alternative

[00:25:53] Speaker 02:
No, that's the preferred.

[00:25:55] Speaker 02:
So he must be suggesting that it be more to the left than it is in Figure 8.

[00:26:07] Speaker 01:
Right.

[00:26:08] Speaker 01:
That would go through the transsous.

[00:26:10] Speaker 01:
And that, in his deposition testimony, was he had 7 o'clock and 8 o'clock approaches, and those approaches

[00:26:22] Speaker 01:
did go or some of them went through that would have gone through the transoas.

[00:26:25] Speaker 01:
If you look at figure eight, which is the preferred embodiment, it's got, when you're talking about lateral going through the transoas, it isn't any degree off the midline.

[00:26:35] Speaker 01:
It's got to be referring to the eight o'clock approach, which is lateral in the general

[00:26:44] Speaker 00:
Can I ask you this?

[00:26:46] Speaker 00:
Does either this OpenShine patent or the record tell us about usage, either in this patent or more generally, about the meaning of abdomen?

[00:26:59] Speaker 00:
Does the abdomen go all the way around to the sides?

[00:27:02] Speaker 01:
I'm not aware of anything in the record that answers that question.

[00:27:06] Speaker 00:
We've been talking about this because here's, I guess, what I'm focusing on.

[00:27:14] Speaker 00:
This alternatively sentence says, you're going to actually do a lateral approach through the abdomen.

[00:27:22] Speaker 00:
If the abdomen stops here, you've just excluded lateral from the side that misses the abdomen.

[00:27:31] Speaker 00:
If the abdomen goes all the way around, then you haven't.

[00:27:34] Speaker 01:
Yeah, and I don't think there's anything in the record that answers that question.

[00:27:37] Speaker 03:
Isn't the distinction here that you can enter one's body

[00:27:43] Speaker 03:
from the front, but still enter the spine somewhat laterally.

[00:27:49] Speaker 03:
That's different from entering the body laterally.

[00:27:54] Speaker 01:
It says it's a lateral approach to the disc space.

[00:27:58] Speaker 01:
I don't know how much the instruments then can curve around.

[00:28:01] Speaker 01:
It seems that everyone's sort of been accepting this as into the body.

[00:28:07] Speaker 01:
Obertain's testimony was he's doing eight o'clock on the body.

[00:28:11] Speaker 00:
These are cannulas going over each other.

[00:28:13] Speaker 00:
Not an overchain.

[00:28:15] Speaker 01:
His is minimally invasive surgery, but it's not the dilated cannulas that are claimed in the 7667 patent.

[00:28:26] Speaker 02:
It appears to be a straight line.

[00:28:29] Speaker 01:
Yeah, they look like straight lines.

[00:28:30] Speaker 01:
And overall, there's no testimony that's gone to the difference between entering the disc space laterally versus the patient laterally.

[00:28:38] Speaker 01:
They seem to be considered the same.

[00:28:43] Speaker 03:
Considered the same once I didn't get over change testimony to be saying it was the same I thought that he actually drew the distinction Let's see in his testimony.

[00:28:54] Speaker 01:
He talks about Isn't that the problem here that there is a dispute as to whether they're the same I thought I thought it was the dispute about whether because he was missing the tram that he was only going through the anterior transo as

[00:29:10] Speaker 01:
It wasn't direct lateral.

[00:29:12] Speaker 01:
He wasn't going through the main body of the psoas muscle.

[00:29:15] Speaker 01:
And therefore, the obertrain didn't teach the lateral trans psoas approach that they're claiming.

[00:29:23] Speaker 01:
I mean, they are saying their construction is not direct lateral.

[00:29:27] Speaker 01:
But I'm not sure how much more lateral their definition of coming through the side really gives them, since

[00:29:36] Speaker 01:
It seems that the metronix expert's testimony that coming in from the side, direct lateral approach, was coming in from the patient's side.

[00:29:47] Speaker 01:
So to the extent they're saying it's coming in from the side, that seems to be the direct lateral approach.

[00:29:52] Speaker 01:
To the extent they're trying to say that there's some sort of difference in lateral from the body versus lateral to the disk space, I'm not exactly sure what testimony supports that.

[00:30:03] Speaker 01:
In Obertrain's deposition, he did say that

[00:30:06] Speaker 01:
that he was coming in, he called it an anterior lateral approach, seven o'clock or eight o'clock, and that that sometimes transverse portions of the psoas muscle in that approach.

[00:30:19] Speaker 01:
And I think that's what he's talking, he's calling it anterior lateral, but there's no limitation in his patent that it's not lateral, that it's a degree of anterior, he's saying it's lateral.

[00:30:31] Speaker 01:
The board read it as not limited, I mean he didn't say any,

[00:30:35] Speaker 01:
That reference doesn't say anything but lateral.

[00:30:37] Speaker 00:
Can I ask you, do you make anything of the line in column seven, lines eight to nine?

[00:30:44] Speaker 01:
Sorry, where?

[00:30:46] Speaker 00:
Column seven, lines eight to nine, page 802, I think, of the 1841 appendix?

[00:30:52] Speaker 00:
Sorry, column seven and... Lines eight to nine?

[00:30:57] Speaker 00:
The incision is preferably made below the epigastric and hypochondriac regions of the abdomen and is preferably lateral, that is, to the right or left of the abdominal midline.

[00:31:10] Speaker 00:
Does that suggest that lateral there means anything off the midline?

[00:31:15] Speaker 01:
I mean, this wasn't relied on on the board.

[00:31:19] Speaker 01:
In this context, it once again shows, as I think all the testimony shows, is that lateral is used

[00:31:26] Speaker 01:
broadly to include any degree when seven o'clock, eight o'clock off the midline encompasses lateral.

[00:31:35] Speaker 01:
And when you want to be specific about what lateral you mean, you say something like anterior.

[00:31:41] Speaker 00:
But I wonder if that doesn't suggest that in the context of the 962, that open chine, lateral means something that might not cover

[00:31:52] Speaker 00:
be covered by what it means in the context of the 767.

[00:31:59] Speaker 00:
A question we really don't have board analysis of because it didn't say anything to confine the meaning of lateral as a matter of claim construction in the 767.

[00:32:11] Speaker 01:
Right, it didn't.

[00:32:11] Speaker 01:
It relied on Auburn Chain's testimony that it was any degree off the midline was basically lateral and there's no testimony or difference in that

[00:32:22] Speaker 01:
anyone in doing spine surgery to the lumbar spine, construed laterally, posterior laterally, and all those differently for the different approaches.

[00:32:33] Speaker 01:
I see my time is up, so if there's no more questions.

[00:32:36] Speaker 02:
Okay, thank you, Ms.

[00:32:37] Speaker 02:
Rhodes.

[00:32:39] Speaker 02:
Thank you.

[00:32:39] Speaker 02:
Mr. Rosado, you have two minutes.

[00:32:41] Speaker 02:
How many minutes do you want to give?

[00:32:49] Speaker 04:
Two.

[00:32:49] Speaker 04:
Thank you.

[00:32:49] Speaker 04:
brief and I want to directly address a few things.

[00:32:53] Speaker 04:
So, excuse me, I just want to correct a reflection of the record when it comes to a statement.

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

[00:33:01] Speaker 04:
Craven mentioned about all of the testimony suggesting that lateral is broad.

[00:33:06] Speaker 04:
I respectfully disagree with that.

[00:33:08] Speaker 04:
None of the testimony suggests that lateral approach to the spine is broad.

[00:33:13] Speaker 04:
The relevant testimony

[00:33:14] Speaker 04:
is all indicating that in the context of referring to a type of surgery, lateral means from the side, anterior means from the front, posterior is from the back.

[00:33:28] Speaker 04:
The specification, which should be the first stop in any of this analysis, divides the world into three sections, lateral, anterior, and posterior.

[00:33:38] Speaker 02:
In figure eight, even his preferred approach

[00:33:42] Speaker 02:
is not exactly a posterior or interior approach.

[00:33:50] Speaker 02:
It's an interior approach.

[00:33:52] Speaker 02:
It is an interior approach.

[00:33:54] Speaker 04:
Well, but it's off the midline, right?

[00:33:58] Speaker 04:
True.

[00:33:58] Speaker 04:
The front of the body is not limited just to the midline.

[00:34:02] Speaker 04:
As Judge O'Malley points out, there's somewhat of a cone, if you will, but there's the front of the body.

[00:34:10] Speaker 04:
This issue of where exactly the bright line, as I started the discussion with, is not necessary to resolve the issue in dispute.

[00:34:19] Speaker 04:
The issue in dispute is, does the anterior approach of open chain, wherever they place their puncture in their anterior approach, does that qualify as an approach from the side of the body?

[00:34:29] Speaker 04:
And the answer is unequivocally no.

[00:34:32] Speaker 04:
And there is no dispute anywhere in the record about open chain being an anterior approach.

[00:34:39] Speaker 04:
that says it explicitly in the reference multiple times.

[00:34:44] Speaker 04:
It's always talking about the abdominal wall.

[00:34:46] Speaker 04:
Even in the one snippet of testimony that the board relies on, he very explicitly states his context being an anterior abdominal puncture, or I think he says in the context of an abdominal puncture.

[00:35:00] Speaker 04:
So all of the testimony is indicating that nothing other than what we already know

[00:35:08] Speaker 04:
And that is in the context of use, when the term lateral is referring to a type of surgery, it's referring to the aspect of the patient the surgery approaches from.

[00:35:18] Speaker 04:
When it's referring to a point of reference.

[00:35:21] Speaker 04:
Thank you very much, Your Honor.