[00:00:13] Speaker 05:
The next case for argument is 16-2336 in Strident, USA, versus ITC.

[00:00:29] Speaker 05:
Giving the other side some time to settle in.

[00:01:11] Speaker 05:
So now that you've had a chance to learn something about the Tucker Act, you can go forward on your case.

[00:01:16] Speaker 01:
Thank you, Your Honor.

[00:01:20] Speaker 01:
That was quite an education.

[00:01:23] Speaker 01:
So Your Honor, I'd like to reserve seven minutes before we vote.

[00:01:27] Speaker 01:
There's three points I'd like to address.

[00:01:30] Speaker 01:
Two of them are actually combined.

[00:01:31] Speaker 01:
The first is that the Commission's piece by piece analysis of the facts relating to the publication is legal error.

[00:01:37] Speaker 01:
The Commission discounted relevant evidence

[00:01:40] Speaker 01:
And they're discounting relevant evidence amounted to a denial of due process.

[00:01:45] Speaker 01:
And then finally, there's the issue of intervenors' claim construction, where they're proposing an alternative ground now of affirmance, wherein the coronal region no longer need to permit bone relapse.

[00:01:57] Speaker 01:
It was never litigated in the investigation.

[00:02:00] Speaker 01:
So there's a whole lot of defenses in validity and non-infringement that could be directed to that construction that were never heard by the ITC.

[00:02:11] Speaker 01:
So first, I'd like to say, Your Honor, that there is abundant evidence of record establishing in the Alpha Bio catalog.

[00:02:17] Speaker 01:
It was distributed by March 2003.

[00:02:19] Speaker 05:
I know.

[00:02:20] Speaker 05:
Well, you're trying to, I mean, what's otherwise the standard of review?

[00:02:24] Speaker 05:
The standard of review here, Your Honor, is de novo on legal issues and substantial evidence on... So I know your preferred route would be to establish this as a de novo review, but your de novo argument is legal error is...

[00:02:41] Speaker 05:
They considered the facts individually as opposed to the totality of circumstance.

[00:02:47] Speaker 01:
That's what they said they did, Your Honor.

[00:02:48] Speaker 02:
So what did they need to say that they didn't say that would satisfy you that they, in fact, did consider the totality of the circumstances?

[00:02:57] Speaker 01:
Well, what they should have done, respectfully, is when there were two facts, for example, sales in Israel and use of the catalog as a training device.

[00:03:09] Speaker 01:
The court looked at each one of those and said, well, they were sales, but sales in Israel don't matter, because that's not on a single year.

[00:03:16] Speaker 01:
Fair enough.

[00:03:17] Speaker 01:
But it does show sale of the product.

[00:03:19] Speaker 01:
Then they looked at the Dr. Fromish's testimony regarding use of the catalog in training classes.

[00:03:24] Speaker 01:
And they said, well, there's no specific thing that says he actually used the catalog before the critical date, May 23, 2003.

[00:03:31] Speaker 04:
But yes, by definition, any trial court judge

[00:03:37] Speaker 04:
who is walking through pieces of evidence will look at each of them individually.

[00:03:41] Speaker 04:
The question is whether or not there's enough language or diction in the overall opinion to give us comfort that they really looked at the totality of it.

[00:03:51] Speaker 04:
When they talked about giving pieces of evidence specific weight or finding certain pieces of evidence had more probative value or less probative value, doesn't that give us the comfort that they did an overall

[00:04:07] Speaker 04:
totality of the evidence analysis?

[00:04:10] Speaker 01:
It doesn't, Your Honor, because the example I was just giving you was they looked at this piece of evidence.

[00:04:14] Speaker 01:
They looked at that piece of evidence.

[00:04:16] Speaker 01:
And what they didn't consider is that there was testimony that this implant was radically new, radically different than anything anybody had ever seen, supposedly.

[00:04:25] Speaker 01:
And yet the court accepted an attorney argument from the intervener.

[00:04:30] Speaker 02:
Can you paint a picture for me?

[00:04:35] Speaker 02:
fact findings, if only considered together, would have led to the conclusion that this was a publicly available, publicly accessible catalog in March 2003.

[00:04:45] Speaker 01:
That's excellent, Your Honor, and that's exactly where I'm going.

[00:04:48] Speaker 01:
If this is a radically new implant, you are not going to begin selling it in January or February of 2003 and then not begin training your dental clinicians until after May.

[00:05:01] Speaker 01:
So clearly, this thing was

[00:05:04] Speaker 01:
I mean, the catalog was built.

[00:05:06] Speaker 01:
It was used for training.

[00:05:08] Speaker 01:
And it is a reasonable inference that if you're going to have doctors out there implanting this radically new implant in Israel, they need to be trained.

[00:05:17] Speaker 01:
And Dr. Fromovich said the catalog was used in that training.

[00:05:21] Speaker 01:
And it is the combination of those two facts that provide a sum that's greater than the parts.

[00:05:27] Speaker 02:
But we're talking about a gap between the alleged publication in March of 2003

[00:05:33] Speaker 02:
and then your critical date in May 2003.

[00:05:35] Speaker 02:
And so there's some ambiguity here over whether the training sessions could have used the catalog in that time frame.

[00:05:47] Speaker 01:
You're right.

[00:05:49] Speaker 01:
And that's why you have to look at the other facts.

[00:05:50] Speaker 01:
And that's why you keep saying this is a fidelity.

[00:05:52] Speaker 01:
So you look at Mr. Carmen's email from who is a Cohen veteran.

[00:05:57] Speaker 01:
to the in-house council at the intervenor, saying this was a publication between December 2002, which was when the Update Journal was first submitted, and March 2003, when the catalog was presented at the International Dental Show in Cologne, Germany.

[00:06:13] Speaker 01:
So we know that there's a guy who says it was a publication, and it was published, and he's talking about specifically for purposes of prior art.

[00:06:23] Speaker 01:
He says, as you know, and this is an appendix

[00:06:26] Speaker 01:
2843.

[00:06:27] Speaker 01:
As I wrote you before, the attached publications, of which one was a catalog and the other was the update journal, are an early version of the SPI implant, which were published by AlphaBio in December 2002 and March 2003.

[00:06:40] Speaker 01:
Why were they an early version implant?

[00:06:42] Speaker 01:
They were the early version because they did not have the palm cone or the palm tree core that's described in Figure 6 of the 977 patent.

[00:06:53] Speaker 01:
So in fact, those early implants were exactly like

[00:06:56] Speaker 01:
what was being sold.

[00:06:58] Speaker 04:
These are all factual disputes.

[00:07:01] Speaker 04:
These are all factual disputes.

[00:07:02] Speaker 04:
You are debating the factual findings made by the NTC.

[00:07:06] Speaker 04:
What language do you find where they said, we conclude that each piece of evidence has to stand on its own and be enough?

[00:07:13] Speaker 04:
I don't see that in the opinion.

[00:07:15] Speaker 04:
I don't read that in the opinion.

[00:07:16] Speaker 01:
Your Honor, where I see that is when I read through their analysis, as I gave you, for example, they look at the publication, they say,

[00:07:23] Speaker 01:
Well, Dr. Fromovich acknowledges that he prepared it for the 2003 Cologne trip, but he just can't remember.

[00:07:31] Speaker 04:
Well, how else do you walk through pieces of evidence?

[00:07:35] Speaker 04:
In other words, for them, what they did was to say, each piece of evidence has shortcomings in and of itself, and then collectively, they don't have sufficient weight or probative value to convince me that the record is sufficient to show that it was publicly available.

[00:07:52] Speaker 04:
I can't even fathom any other way to walk through your pieces of evidence.

[00:07:57] Speaker 01:
Your Honor, I understand that.

[00:07:58] Speaker 01:
But what they're not doing is making any connections between them.

[00:08:00] Speaker 01:
So they look at Mr. Carmen's email, and they say, well, he didn't understand the Publication Act.

[00:08:06] Speaker 01:
And that was another piece of evidence when they submitted the IDS to the PTO.

[00:08:13] Speaker 01:
And they said, the catalog should be considered as prior art before the critical date.

[00:08:18] Speaker 01:
And now there are some dispute between the parties, oh, well,

[00:08:22] Speaker 01:
And I would say the commission sort of implies this ironclad rule that's in an IDS.

[00:08:27] Speaker 01:
It can never constitute an admission.

[00:08:29] Speaker 01:
And they cite Abbott, which says, mere listing is not enough to constitute a proper argument.

[00:08:34] Speaker 01:
And then they look at RescueNet, where the court specifically said, no evidence of public availability was provided for manuals and questions.

[00:08:41] Speaker 01:
But there are cases from this court, like Golden Bridge, Tech versus Apple, and 758 Fed 3rd, 1362, and 1366, 2014.

[00:08:52] Speaker 01:
Ekian versus Home Depot, Inc., 1004, 5th, 3rd, 1299, at 1303, 1304, where this court has held, well, you can say things in an IDS that constitute express admissions.

[00:09:05] Speaker 01:
That was in the context of limiting claim scope.

[00:09:07] Speaker 01:
But this ironclad rule that no matter how expressly you say something in IDS, it doesn't matter.

[00:09:11] Speaker 02:
Something that you can say in an IDS can limit claim scope.

[00:09:16] Speaker 02:
Yes.

[00:09:18] Speaker 02:
Are you saying in those cases someone filed an IDS listing, and then in addition to filing the listing, they provided some commentary on the prior art that was presented in the IDS list?

[00:09:30] Speaker 02:
Yes, sir.

[00:09:30] Speaker 02:
And then those commentaries were used as a means for limiting the claim scope?

[00:09:36] Speaker 01:
That's correct.

[00:09:36] Speaker 01:
That's what the etching in it is.

[00:09:38] Speaker 02:
OK.

[00:09:38] Speaker 02:
Well, that's not quite the same thing as admitting that references listed on an IDS are in fact prior art.

[00:09:49] Speaker 02:
in the same way as, say, the background section of your patent, where you say, here are the following interesting things in the prior art, and here's our great contribution over that.

[00:10:00] Speaker 01:
Sure, Your Honor, but when you list something in an IDS, if you do not know what the date is, then you put unknown or circa 2003.

[00:10:10] Speaker 01:
If they had circa 2003, we wouldn't be having this argument.

[00:10:13] Speaker 01:
But they specifically said, for purposes of prosecution, whatever that means,

[00:10:19] Speaker 01:
This should be considered as published.

[00:10:22] Speaker 02:
And that's the key point when you said whatever that means.

[00:10:26] Speaker 02:
Because the question, the way I understand the ITC reaching a conclusion is there's some ambiguity in the listing in the IDS when you say, for purposes of this examination, consider this published before May 2003.

[00:10:45] Speaker 02:
You're right.

[00:10:46] Speaker 02:
There's probably one way of reading that as saying,

[00:10:49] Speaker 02:
we admit that this is prior art, and we admit that this was published and publicly available before May 2003.

[00:10:56] Speaker 02:
On the other hand, there's another way to read that same language as, for purposes of this examination, assume that this was published before May 2003.

[00:11:08] Speaker 02:
In other words, I want you, Mr. Examiner, to look at this reference.

[00:11:14] Speaker 02:
I'm not sure if it's prior art, but for purposes of examination, assume that it is.

[00:11:19] Speaker 02:
That's another way to read that entry.

[00:11:21] Speaker 02:
So why is that so unreasonable to conclude?

[00:11:26] Speaker 01:
Well, Your Honor, for the same reason that's described in ECCI and Home Depot, which is that prosecution history has a public notice function.

[00:11:33] Speaker 01:
And when you say something there, you want to be bound by it.

[00:11:37] Speaker 01:
And to say, for purposes of prosecution, if for the purposes of prosecution it wasn't there for determining patentability, then why in heaven's name was it there?

[00:11:46] Speaker 01:
That just doesn't make sense.

[00:11:47] Speaker 04:
Again, now we're back to a clear error argument, right?

[00:11:50] Speaker 04:
You're saying they clearly erred in not attributing absolute admission to that.

[00:11:58] Speaker 01:
You could characterize it that way, Your Honor.

[00:12:00] Speaker 01:
I do believe it was clear error.

[00:12:03] Speaker 01:
I believe it was error in the legal analysis, because you have all of these facts.

[00:12:07] Speaker 01:
And there's many of them.

[00:12:08] Speaker 01:
And yet each one, individually, they don't connect them.

[00:12:11] Speaker 01:
They look at each one in isolation.

[00:12:14] Speaker 01:
As I say, in isolation, they weigh them in isolation.

[00:12:16] Speaker 01:
They say, well, sales on Israel, nah, it's not on sale.

[00:12:19] Speaker 01:
It's not a problem.

[00:12:20] Speaker 01:
And they look at the IDS where it says consider prior, and then they don't.

[00:12:25] Speaker 01:
And then they says the inventor's email saying this was published, and it wasn't.

[00:12:30] Speaker 01:
And then you also have of record the Mercer letter that went to the Israeli Patent Office that said this was on sale.

[00:12:38] Speaker 01:
I'm sorry, it was not on sale, but the catalog was a publication.

[00:12:42] Speaker 01:
As a matter of fact, this catalog, which is Appendix 2761,

[00:12:46] Speaker 01:
came from that company.

[00:12:48] Speaker 01:
And interestingly enough, this pair of catalog was never produced during discovery by the interveners.

[00:12:55] Speaker 01:
We had to go to a third party to get it.

[00:12:57] Speaker 05:
Before we run out of time here, let me just ask you a kind of process question.

[00:13:02] Speaker 05:
We've had some information, some documentation with regard to the PTAB appeal in this patent.

[00:13:11] Speaker 05:
What is your view in terms of the impact, let's say hypothetically,

[00:13:15] Speaker 05:
we were to affirm what the ITC did here.

[00:13:19] Speaker 05:
What, if any, impact would that have in your view on the subsequent case, which I understand is on appeal somewhere here or somewhere in the process?

[00:13:27] Speaker 01:
Well, I would think that under blonde tongue, if the patent is subsequently held invalid by yourselves, because this will be coming to you in the IPR, then the LAO goes away.

[00:13:39] Speaker 01:
So whatever is decided here may ultimately not matter.

[00:13:43] Speaker 01:
Well, just to let you know, I wasn't trying to waste your time.

[00:13:47] Speaker 01:
I actually asked that this case be postponed.

[00:13:50] Speaker 05:
No, I appreciate that.

[00:13:51] Speaker 05:
But there's something happening now in terms of, is there an order outstanding that's being effectuated?

[00:13:58] Speaker 01:
Not really, Your Honor.

[00:14:00] Speaker 01:
Now, here's where you might get angry.

[00:14:01] Speaker 01:
The limited exclusion order, we're not contesting it.

[00:14:05] Speaker 01:
It's there.

[00:14:06] Speaker 01:
The respondents stopped shipping the infringing product, allegedly infringing product, into the country back in

[00:14:14] Speaker 01:
December 2014.

[00:14:15] Speaker 01:
So we actually suggested to the commission that we'd be happy to just leave the LAO in place until the two cases can be synced up.

[00:14:26] Speaker 01:
Because you're right.

[00:14:28] Speaker 01:
In the IPR, we actually found that catalog.

[00:14:32] Speaker 01:
We found the guy who went there and picked it up.

[00:14:34] Speaker 04:
Well, we don't want to jump on that one.

[00:14:36] Speaker 04:
The IPR had a totally different record and a totally different burden of different standard of proof.

[00:14:43] Speaker 01:
It has a lower standard of proof, yes.

[00:14:45] Speaker 04:
Right.

[00:14:47] Speaker 05:
Well, I'm not going to get mad at you, but what you said begs the question of why we're here.

[00:14:53] Speaker 05:
I mean, if you say that what you're appealing here, the judgment here, is of no consequence to anyone, why are we here?

[00:14:59] Speaker 01:
Well, I didn't quite say that you're correct.

[00:15:02] Speaker 01:
Well, it might have been at the time we appealed, but if you're familiar with the oil energy case, which says IPRs may or may not be constitutional, at least that's the suggestion

[00:15:12] Speaker 01:
the chatter amongst the community now that the Supreme Court is going to assert on that, it may turn out that it becomes very important to be in front of you now to have the ALJs or have the Commission's decision overturned.

[00:15:26] Speaker 04:
But it's also true that even if that comes to pass, that ITC's decision would not be binding on any future district court proceeding and you could present whatever record you presented at the IPR there.

[00:15:39] Speaker 01:
I agree with you.

[00:15:40] Speaker 05:
That's true.

[00:15:41] Speaker 05:
Can I reserve some time?

[00:15:43] Speaker 05:
Yeah, we'll restore two minutes of rebuttal.

[00:15:45] Speaker 05:
Thank you.

[00:15:46] Speaker 05:
Thank you.

[00:15:48] Speaker 05:
All right, you're splitting your time, Ms.

[00:15:50] Speaker 05:
Valentine, and your government ITC attorney.

[00:15:54] Speaker 03:
Yes, Your Honor.

[00:15:55] Speaker 03:
Good morning, ma'am.

[00:15:56] Speaker 02:
Could we lead with the chief's question, the last question?

[00:16:00] Speaker 02:
Is it your understanding that if, hypothetically, we were to affirm this, there would be nothing precluding the appellant here from pursuing its

[00:16:12] Speaker 02:
defense of the IPR decision in the upcoming Federal Circuit Appeal?

[00:16:18] Speaker 03:
So the Commission's opinion and this Court has held in Texas instruments that Commission is administering a trade statute.

[00:16:25] Speaker 03:
Our decisions on validity are strictly for the purposes of our investigations.

[00:16:29] Speaker 03:
We have no preclusive effect on any other district court or the PTO as far as how they would invalidate a court

[00:16:37] Speaker 03:
Um, as of the laws right now, only district courts are through courts and PTO.

[00:16:41] Speaker 05:
Well, that's true of you, but we're talking about an instance if we were hypothetically to affirm what you did.

[00:16:46] Speaker 05:
So we, uh, that too, I assume your answer would be that that too would have no preclusive.

[00:16:50] Speaker 03:
Correct.

[00:16:50] Speaker 03:
And I believe, I believe it's sexual judgments as well, but the court said even in affirming a commission finding of invalidity, that still is limited to, certainly it would be persuasive, but it's limited to, uh, the commission's investigation.

[00:17:04] Speaker 05:
Correct.

[00:17:05] Speaker 05:
Moving on to the case, what is your understanding of what the commission said about the IDS?

[00:17:13] Speaker 05:
You heard your friend's argument with respect to whether that is clear error.

[00:17:17] Speaker 05:
Did they say stridently or strongly or by implication that this stuff is absolutely irrelevant, or how far did they go?

[00:17:25] Speaker 03:
For the information disclosure statement?

[00:17:29] Speaker 03:
Yes.

[00:17:29] Speaker 03:
insurance argument is that the statement was an admission, and the commission found, as Judge Chin was questioning, that it's ambiguous.

[00:17:38] Speaker 03:
The question of public accessibility is the question the commission had to answer.

[00:17:43] Speaker 03:
And all of its analysis of the evidence was through that lens.

[00:17:47] Speaker 03:
The question of whether or not the IDS answered that, the commission found was of little weight.

[00:17:54] Speaker 03:
Incidentally, even the PTO founded of little weight in its final written decision and did not consider it an admission under its own rules.

[00:18:01] Speaker 03:
So there is nothing in that statement for the commission to latch onto to say.

[00:18:06] Speaker 05:
Well, even if it's not an admission, does that mean necessarily that they can't consider it as a factor or some evidence?

[00:18:13] Speaker 03:
Yes, Your Honor, certainly.

[00:18:14] Speaker 03:
But the question is how much weight is in the commission to give it.

[00:18:18] Speaker 03:
The real problem instrument has with the commission's analysis

[00:18:22] Speaker 03:
is that it came to a conclusion that instrument did alike.

[00:18:25] Speaker 03:
The commission, however, exhaustively looked at all the evidence that instrument presented.

[00:18:30] Speaker 02:
Well, I guess the other side's argument is, OK, maybe none of these individual pieces are a dead ringer for establishing that this is a printed publication.

[00:18:41] Speaker 02:
Nevertheless, each little piece is at least circumstantial evidence of something.

[00:18:46] Speaker 02:
It's a little bit probative to help us move down the field a little bit

[00:18:51] Speaker 02:
to get closer and closer to a conclusion that this is, in fact, a printed publication.

[00:18:57] Speaker 02:
And ultimately, where there's a lot of smoke, there's fire.

[00:19:01] Speaker 02:
And so that was the analysis that was actually missing here, in that although none of these pieces of evidence maybe build the entire house, each one is a brick.

[00:19:13] Speaker 02:
And then when you put all the bricks together, voila, there's a house.

[00:19:17] Speaker 03:
Your Honor, that is an issue of argument.

[00:19:21] Speaker 03:
is the analysis that the commission looked at.

[00:19:23] Speaker 03:
The problem is that there weren't enough books to reach the clear and convincing evidence threshold.

[00:19:28] Speaker 04:
And that is what the commission did.

[00:19:29] Speaker 04:
Are you laying down, do you think, a hard and fast rule that says circumstantial evidence could never meet the clear and convincing?

[00:19:37] Speaker 03:
Oh, certainly not, Your Honor.

[00:19:38] Speaker 03:
Certainly not.

[00:19:39] Speaker 03:
The problem here is, instrument had a burden of proof of clear and convincing evidence.

[00:19:44] Speaker 03:
And in looking at the evidence through the lens of whether or not the document was, the catalog was publicly accessible as the critical date,

[00:19:50] Speaker 03:
It did not reach that threshold.

[00:19:52] Speaker 03:
That was the commission's conclusion.

[00:19:54] Speaker 03:
And substantial evidence supports the commission's finding.

[00:19:56] Speaker 04:
So what's your response to the fact that it looks like the commission just walked through each piece of evidence and found each piece of evidence not enough standing on its own?

[00:20:04] Speaker 04:
Do you think that there's enough language in there for us to be satisfied that the commission really looked at the totality of the bricks?

[00:20:12] Speaker 03:
So, Your Honor, the commission did not use the magic language.

[00:20:17] Speaker 03:
Perhaps that instrument would have preferred

[00:20:20] Speaker 03:
in looking at all the evidence as a whole.

[00:20:22] Speaker 03:
But certainly, it cannot accuse the commission of ignoring any of the evidence.

[00:20:26] Speaker 03:
And as Your Honor pointed out, it looked at it and said, OK, this has maybe a little appropriate value.

[00:20:31] Speaker 03:
This is no appropriate value.

[00:20:32] Speaker 03:
And then, if the conclusion stated, based on the evidence, the incident didn't satisfy its burden of proof.

[00:20:40] Speaker 03:
I don't believe the commission was required to do anything more explicit than that.

[00:20:47] Speaker 03:
Your Honor, is there any further questions?

[00:20:50] Speaker 05:
Okay, thank you.

[00:21:05] Speaker 00:
May it please the court?

[00:21:07] Speaker 00:
Sheila Swarup, Kenobi Martins, Council for the Novel Biocare Interveners.

[00:21:11] Speaker 02:
Can I ask you just the estoppel argument that I was asking your co-counsel over there?

[00:21:18] Speaker 02:
Is it your understanding that if we were to hypothetically affirm the ITC decision here, there's still nothing stopping the other side from continuing to defend and pursue the invalidation decision of the patent in the IPR?

[00:21:37] Speaker 00:
Your Honor, our understanding is the same as that of the ITCs, is that petitioners or appellants would be free to pursue their IPR arguments.

[00:21:46] Speaker 00:
The ITC proceeding may be persuasive as to the PTAB, but we don't believe there would be any preclusive effect with regard to affirming a Section 337 violation with regard to this patent.

[00:21:55] Speaker 04:
And that's the same with respect to any proceeding that might occur in the district court?

[00:22:00] Speaker 00:
That's our understanding.

[00:22:01] Speaker 00:
That's correct, Your Honor.

[00:22:04] Speaker 00:
Appellants during his argument had mentioned some evidence that he believed that the Commission did not properly consider.

[00:22:11] Speaker 00:
He mentioned sales of the SPI implant.

[00:22:13] Speaker 00:
We believe there's substantial evidence that the Commission did find that there was no evidence that any sales occurred in the U.S., first of all, and then secondly before the critical date.

[00:22:23] Speaker 00:
The only evidence in the record, which was at Joint Appendix Site 3908 and 3909, was that there were sales

[00:22:30] Speaker 00:
beginning in 2003, but again, no particular date prior to May 2003.

[00:22:36] Speaker 00:
Council also mentioned training sessions and the suggestion that should be drawn that some house training sessions occurred before the critical date, but again, the commission did have facts in the records, specifically joint appendix site 4332, in which Dr. Fromovich testified that there may be some delay between the time that clinicians were identified in training courses actually occurred.

[00:23:01] Speaker 00:
Council also mentioned that this SPI implant was a very radical new implant, and of course training would be occurring with regard to this implant.

[00:23:11] Speaker 00:
Joint Appendix Site 4333 is testimony from Dr. Framovich explaining that because it was such a new implant, he wouldn't necessarily be training practitioners on that implant, but would start with other implants, again, undermining any suggestion that training was occurring somehow before May 2003, when there's certainly no evidence in the record

[00:23:31] Speaker 00:
suggest that such training.

[00:23:32] Speaker 04:
And despite an opportunity to do it, they never followed up on that questioning of Dr. Frohm.

[00:23:38] Speaker 00:
That's correct, Your Honor.

[00:23:39] Speaker 00:
The inventors, the four inventors on the 977 patent were available to appellants to depose and to present testimony from.

[00:23:46] Speaker 00:
No such testimony was presented from either those inventors or from anyone else that may have attended a training course as to when that may have occurred and what was shown in any such course.

[00:23:58] Speaker 04:
Kate, do you want to address your alternative argument?

[00:24:02] Speaker 00:
Yes, Your Honor, and the alternative is, it is an alternative argument in the sense that if there is a finding that the Commission's findings regarding lack of public accessibility are not supported by substantial evidence, Nobel has proposed a modified construction of the term coronal region having an infestacomical shape.

[00:24:20] Speaker 00:
And that's a modified construction we're proposing.

[00:24:23] Speaker 00:
We believe that within the grammatical structure of this claim,

[00:24:27] Speaker 00:
the term having a frustocomical shape is not meant to be a property or something that's included within the coronal region, but rather is a characteristic of the coronal region.

[00:24:37] Speaker 00:
It's an adjectival phrase, similar to other phrases with this cord is construed, for example, in Shire v. Watson, in our lipophilic matrix.

[00:24:46] Speaker 00:
We view this particular claim phrase as being adjectival and modifying the term.

[00:24:53] Speaker 02:
a frustoconical-shaped coronal region?

[00:24:57] Speaker 00:
That's correct, Your Honor.

[00:24:58] Speaker 02:
But it doesn't say that.

[00:25:00] Speaker 02:
It says a coronal region having a frustoconical shape.

[00:25:04] Speaker 00:
That's correct.

[00:25:04] Speaker 00:
And we believe within the grammatical structure in there, there's been other cases, the Cacace District Court case that we cited, where the term having a curvilinear profile was determined to be a modifier of the surface limitation of that claim.

[00:25:19] Speaker 00:
So we believe in the context of the claim and the context of the specification

[00:25:23] Speaker 00:
where the description is that this taper of the region must be of sufficient size to allow bone to elastically expand over the region.

[00:25:31] Speaker 00:
But the term coronal region having a frustoconical shape is meant to refer to a particular shape of the region.

[00:25:38] Speaker 04:
Now, when you argue that as what you call an alternative ground for a firmance, I mean, even if we did disagree with that construction and agreed with yours, wouldn't that still have to be remanded?

[00:25:53] Speaker 00:
Well, Your Honor, we believe when we briefed this that the construction we proposed for the ITC had the adjectival phrase and also had a component that it permits bone to relapse upon insertion of the implant.

[00:26:06] Speaker 00:
During the proceedings below, there was really no dispute that the accused products and the domestic industry products, in fact, had a coronal region with the crestocomical shape.

[00:26:14] Speaker 00:
So we believe there's sufficient evidence in the record, even under a modified claim construction, for this court to affirm the Section 337 violation

[00:26:22] Speaker 00:
under our modified proposal.

[00:26:27] Speaker 02:
Even though it's a fact finding, you're saying there was no argument, or that the other side essentially conceded the fact?

[00:26:33] Speaker 00:
There was no dispute that the accused products and the domestic industry products, in fact, had a coronal region that was entirely frustoclinically shaped.

[00:26:41] Speaker 00:
And the prior art that was asserted, the catalog implant there, did not have a coronal region with an entirely frustoclinical shape.

[00:26:52] Speaker 04:
But they argue that, I mean, but their argument in response to you is that it would still anticipate.

[00:26:59] Speaker 04:
So I mean, I still think there's a factual debate.

[00:27:02] Speaker 00:
Well, with regard to the record below, the appellants did not take the position that the SPI implant had a coronal region that was entirely frustoclinical.

[00:27:11] Speaker 00:
And that's joint appendix site 5827 is where they presented their invalidity charts.

[00:27:18] Speaker 00:
The chart being shown was just the top.

[00:27:20] Speaker 04:
So your argument is that they waived their ability to make that argument here?

[00:27:26] Speaker 00:
Well, our argument is that there's sufficient facts in the record, should the client construction be applied for the client to find no ability based on the SQI implant and also infringement in the finding of domestic industry based on the current record.

[00:27:43] Speaker 05:
OK.

[00:27:44] Speaker 05:
Thank you.

[00:27:44] Speaker 00:
Thank you.

[00:27:52] Speaker 01:
I'll try to be very quick, Your Honor.

[00:27:55] Speaker 01:
Specifically, what the commission said is neither respondents nor the investigative staff assert that the patentees characterized the 2003 alpha biotech catalog as prior art during the prosecution of 977.

[00:28:08] Speaker 01:
For example, by specifically identifying the catalog as prior writing application response to an examiner's rejection.

[00:28:13] Speaker 01:
So they clearly looked at it in IDS.

[00:28:15] Speaker 01:
They said it's in IDS.

[00:28:16] Speaker 01:
We don't have to consider it.

[00:28:17] Speaker 01:
That's an appendix at 42.

[00:28:19] Speaker 01:
That's the commission decision.

[00:28:20] Speaker 01:
The other thing, Your Honor, is that the further we get from the evidence, the more abstract the analysis became, and the less successful the appellants were, unfortunately.

[00:28:28] Speaker 01:
When we started at the ITC, we had the investigative staff on board that the patent rally was invalid, it was unenforceable.

[00:28:36] Speaker 01:
When A.L.J.

[00:28:37] Speaker 01:
Shaw got done, he said, okay, well, it's unenforceable, but it's invalid.

[00:28:41] Speaker 01:
And now we've gotten to the point where, by this analysis methodology, now nothing... Yeah, but we're supposed to review the ITC's decision, not...

[00:28:49] Speaker 01:
Understood.

[00:28:49] Speaker 01:
So with respect to the claim construction, there is extensive analysis in the opinion.

[00:28:59] Speaker 01:
And I think that is at 14 to 21.

[00:29:03] Speaker 01:
So they spent a lot of time considering this question about whether coronal region that includes a frustoconical shape that permits bone to relapse upon implant insertion, how to deal with that.

[00:29:16] Speaker 01:
And what they did, they basically agreed with the LJ, the respondents, the staff, and said it means partly or entirely.

[00:29:23] Speaker 01:
And your honor, respectfully, I don't mean to raise a fact that you're here, but I don't believe that we ever conceded that under that construction, which was never before us and that we never litigated, where you just have a wholly frustoconical region, but without the implant part or without the bone relapse part, we never actually, I don't think we said anything that said yes.

[00:29:45] Speaker 01:
We agree that infringes.

[00:29:47] Speaker 01:
Because in fact, if you look at the claim, it says, and this is raising non-infringement invalidity questions.

[00:29:53] Speaker 01:
If you look at the claim, it says comprising a coronal region and apical region.

[00:29:57] Speaker 01:
It doesn't say there can't be a middle in the middle, another piece in between the coronal and apical regions.

[00:30:02] Speaker 01:
That just happens to be a cylinder.

[00:30:05] Speaker 01:
And therefore, two things.

[00:30:08] Speaker 01:
You could still have, and then second, so that's an invalidity, invalidity position is still there, even with that amended claim, which I don't believe you should do.

[00:30:18] Speaker 01:
And then secondly, with respect to infringement, if you look at the appendix, you will see that it is not.

[00:30:25] Speaker 01:
If we're going to say having a frosted conical region is now closed, and now that term is closed and it has to have a frosted conical region,

[00:30:32] Speaker 01:
We don't have a closed, we don't have a purely frosted conical reading.

[00:30:38] Speaker 01:
Because if you look in the appendix, we've got a bunch of grooves that take up most of the surface.

[00:30:43] Speaker 01:
So I think it's now a fact question.

[00:30:44] Speaker 01:
Well, if it's closed and having means closed, then can I now have all these other things in there, including all these certain frontal grooves that make it very much not a frosted conical surface?

[00:30:54] Speaker 01:
So Your Honor, I would respectfully submit that if you have any consideration to reopen a record or consider that amended

[00:31:01] Speaker 05:
claim restructuring, you send it back to them.

[00:31:06] Speaker 05:
Thank you.