[00:00:00] Speaker 05:
Case for today is 2 0 1 6 dash 2 2 5 6 in Ray Walters.

[00:00:07] Speaker 05:
Mr. Terry, are you?

[00:00:14] Speaker 02:
Good morning.

[00:00:14] Speaker 02:
I'm going to call your bill, Mr. Miller.

[00:00:17] Speaker 05:
Oh, OK.

[00:00:18] Speaker 05:
Mr. Miller, go ahead.

[00:00:21] Speaker 03:
Thank you, Your Honor.

[00:00:23] Speaker 03:
Good morning.

[00:00:23] Speaker 03:
Stephen Miller for the appellate, David Walter.

[00:00:27] Speaker 03:
I'll be starting the first six minutes, Your Honor, and Ambassador Terry the second six minutes.

[00:00:32] Speaker 03:
And then we'll save three minutes for rebuttal.

[00:00:37] Speaker 03:
In this case, we're down to a 35 USC 112 rejection during reexamination by the patent examiner, that part of which was upheld at the Patent Trial and Appeals Board.

[00:00:51] Speaker 03:
The essence of the issue is our claim amendment during reexamination

[00:00:56] Speaker 03:
where we add a claim term, a block-like support structure in claim one.

[00:01:03] Speaker 03:
And it's the patent office's contention that that is not supported in the specification.

[00:01:07] Speaker 03:
It's our contention that it is supported.

[00:01:11] Speaker 04:
Well, one of the things that the board was concerned about is that you seem to use block-like

[00:01:21] Speaker 04:
in terms of the overall structure, but you also seem to be using block-like just to reference the side panels.

[00:01:28] Speaker 04:
So which is it?

[00:01:30] Speaker 03:
That's the same quandary that the Patent Trellin Appeal Board gave Mr. Terry.

[00:01:35] Speaker 03:
They are not mutually exclusive as a matter of engineering.

[00:01:39] Speaker 03:
There's a 1132 affidavit that defines a block-like structure.

[00:01:43] Speaker 03:
That term, block-like structure, as is understood in the structural arts, is anything that's an assembly of

[00:01:50] Speaker 03:
constituent parts, in other words, not a unimolded piece.

[00:01:54] Speaker 03:
Okay, that's an assembly.

[00:01:56] Speaker 03:
So anything that fulfills that is defined as a block-like structure.

[00:02:00] Speaker 03:
Okay, so, and by the way, that was never rebutted in any evidence provided by the Patent Office during reexamination.

[00:02:08] Speaker 01:
There is no evidence.

[00:02:09] Speaker 01:
Let me ask you, you're correct.

[00:02:10] Speaker 01:
This is the 1.132 declaration.

[00:02:13] Speaker 01:
Correct.

[00:02:14] Speaker 01:
And it's at 177 to 178 of the joint appendix.

[00:02:17] Speaker 01:
Right.

[00:02:18] Speaker 01:
And it 164 of the joint appendix in connection with the amendment, the applicant or the patent owner of Lino.

[00:02:27] Speaker 01:
But then,

[00:02:28] Speaker 01:
what's stated in that declaration kind of drops off or drops out of the picture because then when you read the briefs, as I read the briefs that were submitted before the board and the argument that was submitted before the board, there seems to be no reference to that declaration.

[00:02:46] Speaker 01:
It does reappear in your brief here at 13 to 15, but there seems to be no reference to it in the board proceedings.

[00:02:53] Speaker 01:
And indeed, things seem to go off on this direction of saying that

[00:02:58] Speaker 01:
each of the elements in the frame is a cuboid structure, and that meets the block-like structure.

[00:03:04] Speaker 01:
So it seemed to me that while you had this initial statement, it was never again really presented either in briefing or in the argument before the board.

[00:03:15] Speaker 03:
Well, it's an interesting question.

[00:03:17] Speaker 03:
And frankly, I do see the confusion.

[00:03:20] Speaker 03:
And that's where I think the Patent Trial and Appeal Board was confused.

[00:03:24] Speaker 01:
Well, it could be important, though, because if one takes that initial statement in the declaration, and at page 164 of the appendix, as the applicant or the patent owner acting as his lexicographer, he seems to back off from that.

[00:03:42] Speaker 03:
I understand that.

[00:03:44] Speaker 03:
We're not asserting, and that came up in the appellee's brief, we're not asserting

[00:03:50] Speaker 03:
in patent parlance that the patent owner was using his quote unquote own lexicography and defining that term.

[00:03:58] Speaker 03:
That is a term of art.

[00:03:59] Speaker 03:
And that's what the 1132 affidavit is to be understood by one skilled in the art using that term.

[00:04:05] Speaker 03:
That is a term of art.

[00:04:06] Speaker 01:
So you're not relying on that body of cases that says a patent applicant or a patent owner can act as his or her own lexicographer?

[00:04:14] Speaker 03:
No, we're not relying on that.

[00:04:15] Speaker 03:
We're not.

[00:04:16] Speaker 03:
We believe that the specification, and I'll look

[00:04:20] Speaker 03:
through that for 60 seconds with us, exactly points out that it can be used either way, and that it's consistent with the 1132 affidavit.

[00:04:29] Speaker 03:
And what was presented during the PTAB, and how, if you will, it got, it digressed, if you will, during the PTAB, and actually during the examination which followed through into the PTAB, is that the examiner, Mr. Fitzsuga, was given his amendment as a block-like structure, a block-like support structure, and then he chose

[00:04:49] Speaker 03:
not us.

[00:04:50] Speaker 03:
He chose to say take the word block and took a Merriam-Webster dictionary online to say well a block can be a cuboid structure which may or usually can be rectangular but doesn't have to be and then we

[00:05:07] Speaker 03:
as a matter of patent office rules, had to address each and every issue raised by the examiner, even though he chose to go into the etymology of the term rather than taking the whole term in and of itself as a term of art.

[00:05:19] Speaker 04:
But what term are you talking about?

[00:05:20] Speaker 04:
Because block-like structure.

[00:05:21] Speaker 04:
Because block-like support structure doesn't appear in the specification.

[00:05:24] Speaker 04:
I'm sorry?

[00:05:25] Speaker 04:
You keep saying block-like support structure, but that doesn't appear either in the specification or the decree.

[00:05:29] Speaker 03:
I would argue that, Your Honor.

[00:05:31] Speaker 04:
Pardon?

[00:05:32] Speaker 03:
Well, it does.

[00:05:34] Speaker 03:
It does if you just read a sentence

[00:05:37] Speaker 03:
in the specification, you're correct.

[00:05:39] Speaker 03:
If you take that sentence, take the glossary of the items, which is in the second column of the, of the, of the pack, the 711 pack, which has a full column of part numbers, and then take that with figure, the figures, the actual drawings, then it is.

[00:05:58] Speaker 03:
And that, and we do, that is explained, Judge Schall and by Mr. Terry and his PTAB appeal.

[00:06:05] Speaker 03:
because he was addressing, he was specifically addressing what the examiner raised.

[00:06:09] Speaker 03:
He's answering the examiner.

[00:06:10] Speaker 03:
That's why it went in that direction.

[00:06:12] Speaker 03:
It was an issue with the examiner.

[00:06:13] Speaker 01:
He was answering the examiner's lines on the dictionary.

[00:06:16] Speaker 03:
Right.

[00:06:17] Speaker 03:
That's why, that's why that's that way.

[00:06:19] Speaker 05:
Mr. Miller, you're almost into rebuttal time and I want to ask you something.

[00:06:23] Speaker 05:
I'm a little confused about how you could be both a key witness, the key witness in this case, and a lawyer in it.

[00:06:31] Speaker 05:
The model rules of ethics for lawyers say a lawyer should not act as an advocate at a trial unless the lawyer is likely to be necessary as a witness.

[00:06:40] Speaker 05:
So how is it that you have sort of feel as though you've gotten around your ethical obligation to not act as both lawyer and witness?

[00:06:48] Speaker 03:
Well, there's several issues you're on.

[00:06:50] Speaker 03:
That issue wasn't raised until the appellee briefed.

[00:06:52] Speaker 05:
I'm raising it now.

[00:06:53] Speaker 03:
Oh, that's fine.

[00:06:54] Speaker 03:
You know what?

[00:06:55] Speaker 05:
I have an obligation to be sure that you are not acting unethically in my courtroom right now.

[00:06:59] Speaker 05:
OK.

[00:07:00] Speaker 03:
It's our understanding of that rule that that is for fact witnesses, not for expert witnesses.

[00:07:05] Speaker 03:
That's our understanding.

[00:07:06] Speaker 05:
Do you have any case law or support for that?

[00:07:09] Speaker 05:
Because I don't see anything in either the rule or any of the comments that would suggest that, because I asked my clerk if that were a distinction, and she could find nothing on the point.

[00:07:17] Speaker 05:
Do you have anything to suggest that?

[00:07:18] Speaker 03:
I have nothing either way on point, Your Honor.

[00:07:20] Speaker 05:
So there are two of you here, right?

[00:07:21] Speaker 05:
Yes.

[00:07:22] Speaker 05:
Why did you have to argue?

[00:07:24] Speaker 05:
If you're the key witness in the case, and there's a rule that says people's witness and lawyer, why are you arguing?

[00:07:30] Speaker 03:
Mr. Terry was not on this court's bar until a couple of months ago.

[00:07:34] Speaker 03:
And that's why the only reason I went on initially.

[00:07:37] Speaker 03:
I was not part of the entire re-examination.

[00:07:40] Speaker 05:
OK, but he was on as of a couple of months ago.

[00:07:42] Speaker 05:
I don't know what you're doing here in this capacity as well.

[00:07:46] Speaker 03:
I can.

[00:07:47] Speaker 03:
That's why Mr. Terry is here.

[00:07:49] Speaker 05:
You've already done it.

[00:07:50] Speaker 05:
You know, so it's not like you could, the fact that I'm bringing it up and asking why you're violating a rule of ethics, and you can say, okay, well, I'll stop violating it.

[00:07:57] Speaker 05:
It doesn't just all go away.

[00:07:58] Speaker 03:
We believe it.

[00:07:59] Speaker 03:
I'm sorry.

[00:07:59] Speaker 03:
We have nothing on point either way.

[00:08:02] Speaker 05:
All right.

[00:08:02] Speaker 05:
Okay, Mr. Terry, it's your turn.

[00:08:09] Speaker 02:
May it please the court, Mark Terry, for Mr. Walter, the appellant,

[00:08:14] Speaker 02:
Judge Moore, I would like to address the question you just made, Mr. Miller.

[00:08:19] Speaker 02:
I want to make it clear on the record that Mr. Miller was not the attorney for Mr. Walter at the Patent Office.

[00:08:28] Speaker 02:
I was the attorney of record.

[00:08:30] Speaker 02:
Mr. Miller simply provided an expert affidavit, subsequent to the prosecution of that patent application.

[00:08:39] Speaker 05:
Mr. Miller is on the briefs in this appeal.

[00:08:42] Speaker 02:
That's correct.

[00:08:42] Speaker 02:
Right.

[00:08:42] Speaker 05:
Do you believe the model rules don't apply to appellate courts?

[00:08:45] Speaker 02:
Well, my understanding of the rule was that at the time that Mr. Miller made the declaration at the Patent Office, he was also the attorney for the applicant at the Patent Office, that there might be an issue there.

[00:09:01] Speaker 02:
But that wasn't the case.

[00:09:03] Speaker 02:
I was the attorney.

[00:09:04] Speaker 02:
Mr. Miller became an attorney on this case when we appealed, when we didn't get the decision we wanted at the PTAB.

[00:09:14] Speaker 05:
Mr. Miller stood here and argued in my courtroom that I should defer to his declaration under 132, and he may be argued as a lawyer, correct?

[00:09:24] Speaker 02:
That's correct.

[00:09:25] Speaker 02:
That's correct, yes.

[00:09:26] Speaker 05:
All right.

[00:09:26] Speaker 05:
Keep going.

[00:09:27] Speaker 05:
Go ahead.

[00:09:27] Speaker 05:
Why don't you move on to the merits of your case?

[00:09:29] Speaker 02:
Very well.

[00:09:29] Speaker 02:
Mr. Miller discussed our construction of the claim term.

[00:09:35] Speaker 02:
I just want to quickly move to the Epilese construction.

[00:09:43] Speaker 02:
Patent Office would like to construe the term block, which is part of the, quote, block-like support structure, which is at issue here, to mean a solid piece of material, such as rock or wood, that has flat sides and is usually square or rectangular in shape.

[00:10:01] Speaker 02:
Patent Office provides enough.

[00:10:02] Speaker 01:
I want to ask you one thing, Mr. Terry, because I don't want to interrupt you.

[00:10:05] Speaker 01:
This point, since you're now, I guess we have to view you as the attorney here.

[00:10:11] Speaker 01:
You are not advancing the argument in this case that the patent owner acted as his own lexicographer.

[00:10:19] Speaker 01:
Is that correct?

[00:10:20] Speaker 01:
That's correct, yes.

[00:10:21] Speaker 01:
Because that's what Mr. Miller said, and you abide by that.

[00:10:25] Speaker 02:
That's correct, yes.

[00:10:26] Speaker 01:
OK.

[00:10:26] Speaker 02:
Our contention is that the specification is consistent with that construction of the claim term.

[00:10:34] Speaker 01:
OK.

[00:10:34] Speaker 01:
Thank you.

[00:10:35] Speaker 01:
I just want to make sure I understood that.

[00:10:37] Speaker 01:
Go ahead.

[00:10:38] Speaker 02:
Okay, so to go back to the Patent Office's claim construction, our contention is that they provide no evidence to support that.

[00:10:49] Speaker 02:
If you take a look at the appendix, we have no idea where the patent examiner came up with that claim construction.

[00:10:58] Speaker 02:
And I challenge the Patent Office to point to somewhere in the appendix where there's some evidence to support that.

[00:11:04] Speaker 02:
The examiner states that he got it from merriam-webster.com, but doesn't provide a printout, a URL, a description of the definition as he got it from that website.

[00:11:21] Speaker 02:
That's simply not how you submit evidence at the Patent Office.

[00:11:25] Speaker 04:
I'm still back on this point that you concede that at least

[00:11:33] Speaker 04:
four of the, or six of the references, but the four of the six references that you cite us to where Blocklike appears, that those references are to the entirety of the reef structure, right?

[00:11:44] Speaker 02:
Yes, Your Honor.

[00:11:45] Speaker 04:
So, but you want us to then say that the other two references refer to something else?

[00:11:51] Speaker 02:
That's correct, Your Honor.

[00:11:52] Speaker 04:
And using the same language?

[00:11:54] Speaker 02:
That's correct.

[00:11:55] Speaker 04:
So what if we conclude that those other two could just as reasonably refer to the entire reef structure?

[00:12:01] Speaker 02:
That would be consistent with our contention, which is the fact that that language block-like structure can apply both to the overall structure and to the underlying support structure.

[00:12:13] Speaker 02:
And I would like to read that into the record, which is the fourth reference to that term, which comes from column one of the patent, which states, a block-like structure that may be constructed having a base portion.

[00:12:27] Speaker 05:
What lines are you reading from?

[00:12:29] Speaker 02:
That would be column one, lines 45 and 46.

[00:12:33] Speaker 02:
And it states block-like structure that may be constructed having a base portion to support the device.

[00:12:40] Speaker 02:
That base is part of the support structure.

[00:12:43] Speaker 02:
And that is seen in the next column, number two, at line 40.

[00:12:49] Speaker 02:
It says 22 base of 12, which

[00:12:54] Speaker 02:
which means that the base is part of the support structure 12.

[00:12:58] Speaker 02:
If we look at figure two of the patent, that clearly shows the support structure, indicated as 12.

[00:13:09] Speaker 02:
That clearly shows a pyramidal frame that acts as a support structure on which things are attached.

[00:13:19] Speaker 02:
And our contention is that that language there

[00:13:24] Speaker 02:
The block-like structure that may be constructed having a base portion indicates that that modifier, block-like structure, applies to the support structure.

[00:13:35] Speaker 05:
What's our standard review on that?

[00:13:38] Speaker 02:
Well, this is an issue of law, so it would be denoted.

[00:13:40] Speaker 05:
No, written description is an issue of law.

[00:13:42] Speaker 05:
Written description is a question of fact.

[00:13:44] Speaker 02:
OK, I thought you were referring to how we're going to construe the term.

[00:13:47] Speaker 05:
Well, written description is a question of fact, right?

[00:13:50] Speaker 02:
Correct, yes.

[00:13:50] Speaker 05:
And so what a reference discloses and how it describes it, that's a question of fact.

[00:13:54] Speaker 05:
So if I'm looking at that reference and I'm trying to understand what those sentences mean, and when column one and then what's in column two, do I, I guess that's really my question to you, is do I give deference to the PTO's decision on that, or do you think this is part of the legal question that ought to be done de novo?

[00:14:14] Speaker 02:
My time is up, so I'll simply say that I think it should be reviewed de novo.

[00:14:19] Speaker 05:
Okay.

[00:14:19] Speaker 05:
Okay.

[00:14:20] Speaker 05:
Let's hear from opposing counsel, Mr. Warwick.

[00:14:29] Speaker 00:
Good morning, Your Honor.

[00:14:30] Speaker 05:
Can you start with that last point?

[00:14:31] Speaker 05:
Do you have a view on whether or not this particular question, how I reconcile column one and column two, is part of the written description decision, which would be a question of fact, or part of a claim construction decision, which would be a question of law?

[00:14:45] Speaker 00:
So it's both.

[00:14:47] Speaker 00:
And I think on the first point where you have de novo review on construction or on indefiniteness, to the extent there aren't factual questions, it's plausibly ambiguous.

[00:14:59] Speaker 00:
Some of those terms, you could perhaps read it in a way where you say this is applying to the support structure.

[00:15:05] Speaker 00:
We feel and the board felt that the better reading of column one is that all of those references are referring to the entire reef structure, the present invention.

[00:15:14] Speaker 00:
And that present invention has sides.

[00:15:17] Speaker 00:
It has frame numbers.

[00:15:18] Speaker 05:
But that's my exact question, is what the board thought about what those references were more likely referring to, i.e., the whole structure or just the base structure.

[00:15:28] Speaker 05:
Is that a question of law or a question of fact?

[00:15:32] Speaker 05:
Do I give deference?

[00:15:32] Speaker 05:
Do I not give deference?

[00:15:34] Speaker 05:
It sounds like it's part of claim construction to me, but I just want to see what your thoughts are on that.

[00:15:40] Speaker 00:
As part parcel of the definiteness analysis,

[00:15:44] Speaker 00:
It would be de novo review, it would be part of claim construction.

[00:15:46] Speaker 00:
But in terms of the written description question, once you have determined a construction, and if you're trying to compare that to the spec and see if there is support for the claim as construed, that's definitely a factual question, substantial evidence review is appropriate.

[00:16:03] Speaker 00:
Now, I would like to talk about the indefiniteness question, because I think that the case is most easily resolved by looking to the construction that's being advanced on appeal.

[00:16:12] Speaker 00:
The council just represented this morning any assembly of discrete parts.

[00:16:17] Speaker 00:
And I believe there are two problems with that that either independently could provide an easy path for affirmance in this case.

[00:16:24] Speaker 00:
And the first one is waiver.

[00:16:28] Speaker 00:
Walter, in this case, through the proceedings with the examiner, the board, this appeal, seems to keep shifting positions.

[00:16:35] Speaker 00:
The position to the board, and Mr. Walter's attorneys were pushed on this,

[00:16:41] Speaker 00:
the position was each member, each frame member is a block-like structure.

[00:16:47] Speaker 00:
And that's at appendix 511 in the oral hearing transcript.

[00:16:51] Speaker 00:
The expert declaration seems to say that the overall support structure is block-like because each frame member is a block.

[00:17:01] Speaker 00:
Now we have this broader argument saying that the block-like structure is block-like because it's an assembly of discrete parts.

[00:17:09] Speaker 00:
So the argument being advanced on appeal is different than the one that was put advanced to the board.

[00:17:14] Speaker 00:
So we have a waiver problem.

[00:17:15] Speaker 00:
The other problem you have is that if it's simply an assembly of discrete parts, that was already a requirement of the claim.

[00:17:23] Speaker 00:
Claim one already said a support structure comprising a plurality of frame numbers.

[00:17:29] Speaker 00:
You already had discrete parts.

[00:17:31] Speaker 00:
And there's actually a first declaration that Walter doesn't mention from Mr. Miller.

[00:17:36] Speaker 00:
And that's at appendix 115.

[00:17:38] Speaker 00:
This was before block-like was added to the claim.

[00:17:41] Speaker 00:
And in that declaration, Mr. Miller says the word structure in isolation means a group of solid elements united or connected in some manner.

[00:17:52] Speaker 00:
That seems awfully similar to the construction that's being advanced on appeal by Mr. Walter, thereby giving no weight to the block-like term that was added, essentially, to overcome the prior art.

[00:18:05] Speaker 04:
I would just say that the stand- The primary concern the board had was they said that they felt like he was trying to use block like to refer to different things.

[00:18:17] Speaker 04:
Not just the support structure, but the overall REAP as well as the individual frame members.

[00:18:25] Speaker 04:
And now is it completely inappropriate to use the same term to refer to different things as long as you're clear about it?

[00:18:33] Speaker 00:
I think if you're clear about it, the board was genuinely confused, it appears especially from the transcript of the hearing, about whether Mr. Walter was saying that each frame number is block-like or the overall structure is block-like.

[00:18:46] Speaker 00:
And when pushed, Mr. Walter said, it's each piece.

[00:18:49] Speaker 00:
That's at Appendix 511.

[00:18:51] Speaker 00:
And so the board rightly in their opinion said, that's inconsistent with the claim.

[00:18:55] Speaker 00:
The claim says, as amended, a block-like support structure made of a plurality of frame numbers.

[00:19:00] Speaker 00:
What you should have drafted, perhaps,

[00:19:02] Speaker 00:
is a plurality of block-like frame numbers.

[00:19:06] Speaker 00:
And it's important that Mr. Walter had the opportunity to do so.

[00:19:10] Speaker 00:
After the 112 rejections were entered, Mr. Walter did submit an additional filing with the PTO under Rule 1.116, but he did not further amend the claims, drop the term, or provide any additional clarity.

[00:19:25] Speaker 00:
This is a term that is unclear that was added by Mr. Walter to the claim

[00:19:29] Speaker 00:
and he failed to clarify what the importance would be.

[00:19:34] Speaker 04:
And under... It strikes me that this is something that cried out for functional claiming, but they didn't do it.

[00:19:43] Speaker 00:
Functional claiming in terms of how the structure was built?

[00:19:46] Speaker 04:
Yeah, in other words, they could say a means for, and they could, for creating this reef, and then they could define the structure with the frame members.

[00:19:59] Speaker 04:
And then they would be limited to what's in the specification, but at least they would have the right to everything that's in the specification, regardless of whether it's a term of art.

[00:20:09] Speaker 00:
That's correct, Your Honor.

[00:20:11] Speaker 00:
They did not do that.

[00:20:13] Speaker 00:
So it's the PTO's position that the examiner correctly entered rejection under this court's precedent in Packard, which allows whenever there is language that is ambiguous, vague, incoherent, opaque, or otherwise unclear, the examiner entered the rejection.

[00:20:28] Speaker 00:
Mr. Walter was given the opportunity to clarify.

[00:20:31] Speaker 00:
He did not.

[00:20:32] Speaker 00:
That's why the board affirmed.

[00:20:34] Speaker 00:
And we would ask that this court do the same.

[00:20:37] Speaker 00:
Unless your honors have any other questions?

[00:20:40] Speaker 05:
No.

[00:20:40] Speaker 05:
Thank you, Mr. Lark.

[00:20:43] Speaker 05:
Mr. Miller, you have a little bit of rebuttal time.

[00:20:52] Speaker 02:
To clarify, neither side has

[00:20:59] Speaker 02:
But both sides are in agreement that the term block-like support structure can be used to describe the overall structure.

[00:21:05] Speaker 02:
But it seems that we disagree on whether or not that term can be used to describe the underlying components.

[00:21:14] Speaker 02:
What opposing counsel, I'd like to restate something opposing counsel just stated, which is what they should have drafted was, quote, block-like frame members.

[00:21:27] Speaker 02:
That indicates that opposing council is okay with using the term block-like to describe components of the overall structure.

[00:21:37] Speaker 02:
Because the frame members are part of the support structure, and that is seen on line 41 of column two of the patent, which states 24 frame member of 12, and of course 12 is a support structure.

[00:21:54] Speaker 02:
And that indicates that we actually do have an agreement that the term block-like support structure can be used to describe the underlying component that comprises the overall structure.

[00:22:08] Speaker 01:
I'm not sure, Mr., I seem to recall somewhere in the brief, in the solicitor's brief, maybe I'm incorrect on this, that while the solicitor posited that X and Y could have been done, it was not conceding

[00:22:23] Speaker 01:
that that would have rendered the subject matter patentable?

[00:22:30] Speaker 01:
Or would have solved the indefiniteness and written description requirements?

[00:22:35] Speaker 01:
I mean, I just wanted to say that I'm not sure there's agreement on that.

[00:22:41] Speaker 02:
I was solely referring to a statement that the opposing council made a minute ago.

[00:22:47] Speaker 01:
Yeah, I understood council was sort of picking up on something that was in the brief, but go ahead That's all I have okay.

[00:22:56] Speaker 05:
Thank you both counsel the case is taken under submission