[00:00:00] Speaker 03:
Whenever you're ready.

[00:00:05] Speaker ?:
Thank you.

[00:00:05] Speaker 03:
Good morning, Your Honors.

[00:00:06] Speaker 03:
Ron Ford is for Intermentor.

[00:00:09] Speaker ?:
Hello.

[00:00:11] Speaker 03:
The board's decision in this case should be, on obviousness, should be overturned and reversed, because the board failed to make factual finding based on actual evidence, and then based upon those factual findings, articulate a reason as to why a person of ordinary skill in the art would, in fact,

[00:00:29] Speaker 03:
make the changes to the Dell reference if the board concluded that they would.

[00:00:33] Speaker 03:
In fact, the board's conclusions, factual findings in this case.

[00:00:37] Speaker 01:
Can I just clear up a little housekeeping thing?

[00:00:38] Speaker 01:
And that is, you're giving up your arguments related to the purported lack of jurisdiction in the institute, the IPR.

[00:00:48] Speaker 03:
In view of the click-to-call case, we are, for the purposes of this argument.

[00:00:53] Speaker 03:
What the board did here was make up reasons out of whole cloth

[00:00:57] Speaker 03:
as to why a person of ordinary skill in the art would make the changes to the Dell reference based upon swear that the board wanted to make.

[00:01:04] Speaker 03:
In fact, they ignored the only evidence in the record of a person of ordinary skill in the art, which was the declaration of Dr. Erdman.

[00:01:11] Speaker 03:
And finally, the board erred in not giving sufficient evidentiary weight to the evidence of secondary considerations, that is, commercial success, because as a matter of law, they failed to give the proper... You argue in the blue brief

[00:01:26] Speaker 01:
that one of Dell's principles of operation is that it's only for general multipurpose use as a cart.

[00:01:36] Speaker 01:
Where do you find support for that?

[00:01:38] Speaker 03:
In the background section of Dell, Your Honor, it says the purpose of Dell is to transport a variety of diagnostic equipment.

[00:01:47] Speaker 03:
It says computers, laptops, and other diagnostic equipment.

[00:01:50] Speaker 03:
So the purpose of Dell is to be able to put whatever type of equipment that you want

[00:01:54] Speaker 03:
for the court's reference I have on the demonstrative here, the Dell reference, next to the SWIR reference.

[00:02:01] Speaker 03:
And in the background it says, it's not just for computers.

[00:02:04] Speaker 03:
It's for computers, laptops, and other diagnostic equipment.

[00:02:08] Speaker 03:
It's near the bottom of the background section here.

[00:02:11] Speaker 02:
OK, so you're, and therefore what?

[00:02:13] Speaker 03:
Well, and therefore to make all of the changes.

[00:02:16] Speaker 03:
That's one of the reasons why a person with an ordinary skill in the art

[00:02:20] Speaker 03:
Push away from making these changes because it would transform the Dell ref the Dell car into a dedicated computer car By the time you know it, but if it's something's general purpose, it can be used for lots of things, right?

[00:02:33] Speaker 03:
It can your honor But if the purpose in the market is to sell a car that you can put a lot of different things on top and move it around

[00:02:40] Speaker 03:
Why would a person want to buy one that's dedicated to a computer use?

[00:02:44] Speaker 03:
That is to put a keyboard underneath, a monitor attached to it, which would make it, by definition, far more expensive.

[00:02:51] Speaker 03:
If it's a general purpose computer for moving around different types of diagnostic equipment, you wouldn't want all of the extra built-in permanently mounted keyboards, monitors, et cetera.

[00:03:04] Speaker 03:
That's the purpose of the argument.

[00:03:05] Speaker 03:
It pushes a person with early skill away from making those changes.

[00:03:09] Speaker 03:
But while that is important to this argument, it's not the primary focus.

[00:03:15] Speaker 03:
The primary focus is that the board failed to look at any evidence to support its findings as to why you would make these changes.

[00:03:23] Speaker 03:
They made it about a whole cloth.

[00:03:26] Speaker 01:
Well, is the PTAB not allowed to adopt arguments made in the petitioner's brief if it finds them compelling?

[00:03:33] Speaker 03:
Your Honor, attorney argument is not evidence.

[00:03:36] Speaker 03:
They have to come up with a reason why a person of ordinary skill in the art would make these changes.

[00:03:42] Speaker 01:
Well, they say the stated reasons to combine the relied upon prior art teachings ellipses are sufficient.

[00:03:52] Speaker 01:
And the cited evidence supports the reasoning.

[00:03:56] Speaker 03:
And then they go on and don't cite any evidence, Your Honor.

[00:03:59] Speaker 03:
I can't find any evidence that they support, that supports those findings.

[00:04:03] Speaker 03:
It's only attorney argument.

[00:04:06] Speaker 03:
Where is the evidence?

[00:04:07] Speaker 03:
The only evidence before the board in this case was the references themselves and the declaration of Dr. Erdmann.

[00:04:16] Speaker 03:
The board declined to rely upon the declaration of Dr. Schlesinger, which is an expert because he's not a person of ordinary skill in the art.

[00:04:26] Speaker 03:
Under the Sundance case, the board couldn't rely upon him.

[00:04:30] Speaker 03:
He may be an expert in nanotechnology, but he's not an expert by his own admission.

[00:04:35] Speaker 03:
is what a person of ordinary skill in the art is.

[00:04:39] Speaker 03:
To give opinions about mechanical systems, he doesn't qualify.

[00:04:43] Speaker 03:
So the only evidence is these two references in Dr. Erdmann's testimony.

[00:04:49] Speaker 03:
Okay, you can't find a motivation or a reason why a person of ordinary skill in the art would make these changes from these references.

[00:04:57] Speaker 03:
And Dr. Erdman says the contrary.

[00:04:59] Speaker 03:
He says, you wouldn't make these changes.

[00:05:02] Speaker 03:
You wouldn't make the changes to Dell that the board wants to make.

[00:05:05] Speaker 03:
But let's look specifically at what the board actually wanted to do, even though they didn't have any evidence to do it.

[00:05:12] Speaker 03:
There's five steps that the board had to go through to come up with the claimed invention.

[00:05:18] Speaker 03:
They started with Dell.

[00:05:20] Speaker 03:
And the first thing they said is, well, let's move the bracket for holding a power supply from SWIR, which is 220,

[00:05:27] Speaker 03:
over to Dell and move the power supply out of compartment 100 into the new bracket that they just located on the Dell car.

[00:05:39] Speaker 01:
On Planner prior, on claim 108, your argument is that the combination of elements doesn't disclose a power unit directly underneath the vertical beam.

[00:05:53] Speaker 01:
Are you suggesting that the claim limitation requires the entire power unit to be directly underneath the vertical beam?

[00:06:01] Speaker 03:
We are not.

[00:06:02] Speaker 01:
We are contending that the claim limitation... Do you disagree with the PTABS finding that at least part of it is found under the beam as shown in Planner?

[00:06:09] Speaker 03:
We do.

[00:06:09] Speaker 03:
If you look at Planner, it's a

[00:06:13] Speaker 03:
The power supplies are the two batteries that are on the outside of the beam.

[00:06:18] Speaker 03:
They're not underneath the beam at all.

[00:06:20] Speaker 03:
And the only evidence in the record of that is from a person of learning skill in the art is Dr. Erdman, who says exactly what I just said.

[00:06:32] Speaker 03:
Okay, so back to this combination.

[00:06:35] Speaker 03:
After moving the power supply in Dell from its existing location,

[00:06:40] Speaker 03:
to a new bracket that is installed at the base.

[00:06:44] Speaker 03:
Then they move a computer into the vacated bracket 100 in Dell, and then they add a keyboard, and then they add a monitor.

[00:06:52] Speaker 03:
Now, the question is why?

[00:06:55] Speaker 03:
Why does a person of ordinary skill in the art do all of these changes?

[00:06:59] Speaker 03:
That's the question, and that's where the evidence is lacking, right?

[00:07:02] Speaker 03:
Because remember, what did the board say the reasons would be?

[00:07:07] Speaker 03:
The board said,

[00:07:08] Speaker 03:
Well, the first reason you would move a bracket from SWIR or- Can you tell us where you're reading from in the board's opinion?

[00:07:14] Speaker 03:
I can, actually.

[00:07:15] Speaker 03:
Appendix 0018 is the board's opinion as to the reasons why they make these changes, spans between 0018 and 0019.

[00:07:29] Speaker 03:
And I'll just get, remember there's two appeals here, but I'm just giving you, they're essentially identical opinions.

[00:07:33] Speaker 03:
I'm giving you the appendix from one of the opinions.

[00:07:37] Speaker 03:
First reason is,

[00:07:38] Speaker 03:
Well, if you move the bracket from SWIR over to Dell on the base, and then you move the power supply from its home in Dell already to this new bracket, you would make room to put a computer there.

[00:07:50] Speaker 03:
Okay, but why?

[00:07:53] Speaker 03:
That's pure hindsight.

[00:07:55] Speaker 03:
The only reason you would want to make room to put a computer there is if you looked at the claims of the, you know, the claims at issue and said, well, I need to get a computer there.

[00:08:04] Speaker 03:
Let's make a space for it.

[00:08:06] Speaker 03:
Neither Dell nor Square shows a computer underneath of the work surface in the spot.

[00:08:10] Speaker 03:
So why does a person with a skill in the art do that?

[00:08:13] Speaker 03:
There's no reason.

[00:08:14] Speaker 03:
There's no evidence.

[00:08:16] Speaker 03:
There's nothing.

[00:08:17] Speaker 03:
The only thing in the record is Dr. Erdman saying, you wouldn't do that because you get no extra benefit from putting that bracket from Square on the base of Dell.

[00:08:24] Speaker 03:
The board ignored that and substituted their own opinion for that of a person with a skill in the art.

[00:08:29] Speaker 03:
That is Dr. Erdman.

[00:08:33] Speaker 03:
That's the linchpin of the argument, because if you don't move the power supply from where it's located in Dell to a new location on the base, the rest of the argument falls apart.

[00:08:46] Speaker 03:
But let's look at some of the other reasons.

[00:08:49] Speaker 03:
They said, well, if you move the power supply to the new location on Dell, you can, quote, power could be provided to the computing device.

[00:08:58] Speaker 03:
Power can already be provided to the computer in place in Dell as it stands.

[00:09:02] Speaker 03:
That's the whole purpose of a power supply.

[00:09:05] Speaker 03:
There's no reason to move it to supply power to the computer.

[00:09:08] Speaker 03:
The next reason they gave.

[00:09:11] Speaker 03:
A power cord could be easily and safely run along the floor to a power outlet for recharging the battery supply.

[00:09:17] Speaker 03:
Where does that come from?

[00:09:18] Speaker 03:
That's made up out of whole cloth.

[00:09:20] Speaker 03:
But it's not even supported by the facts of this case.

[00:09:23] Speaker 03:
Because in Dell, at

[00:09:25] Speaker 03:
Appendix 670, column 3, lines 36 to 40, Dell actually says that the power core, as it exists, is run through the bottom of the case at number 116.

[00:09:36] Speaker 03:
It goes right to the floor already.

[00:09:39] Speaker 03:
So why move the power supply for that reason?

[00:09:42] Speaker 03:
It doesn't make sense.

[00:09:44] Speaker 03:
And finally, the final reason is that the board gives, which they copied from Innovate's Brave, is, well,

[00:09:53] Speaker 03:
If you have the battery low on the car, it provides a better stability, lower center of gravity.

[00:09:59] Speaker 03:
Well, where does that come from?

[00:10:01] Speaker 03:
OK, number one, there's no evidence anywhere that stability in Dell was going to be a problem anyways.

[00:10:07] Speaker 03:
Second, if you look at where the power supply is already in Dell, as compared to where the bracket from Square would be, if you put it over on the base of Dell and move it, they're essentially at the same height already.

[00:10:20] Speaker 03:
There's very little difference.

[00:10:21] Speaker 03:
I mean, inches, maybe.

[00:10:24] Speaker 03:
So why would a person of ordinary skill and the art go through the effort to modify Dell when the benefits are already there?

[00:10:32] Speaker 03:
In fact, if you wanted the power supply lower in Dell, Dell moves up and down.

[00:10:37] Speaker 03:
If you wanted a lower center of gravity when you were going to move it, you would lower the whole system so the battery was as low as possible on the system.

[00:10:46] Speaker 03:
There's no reason the board didn't find, didn't, you know, they copied Erdmann's arguments, ignored Erdmann's testimony,

[00:10:53] Speaker 03:
and didn't cite any evidence that actually supported their reasons for making these conclusions.

[00:10:59] Speaker 03:
That's the problem.

[00:11:00] Speaker 03:
And if you're following an invasive decision, that is a major problem for the board.

[00:11:07] Speaker 03:
That is not allowed.

[00:11:08] Speaker 03:
At best, they relied upon common sense with no evidence whatsoever to support their decision.

[00:11:19] Speaker 03:
Further, the board failed to give

[00:11:22] Speaker 03:
is we'll have to wait to the evidence of on secondary considerations primarily commercial success if you look at the commercial success in this case it's starting they had a reason for not placing extraordinary weight on it which is that included the licenses were for multiple patents and therefore there was no nexus established that was one reason they said there's no there's no nexus established okay in the first response to that is they should have presumed

[00:11:53] Speaker 03:
There's a presumption of nexus where it's established that the patents cover the product, which we established here.

[00:12:00] Speaker 03:
There's a nexus that's presumed they didn't give us that presumption.

[00:12:05] Speaker 03:
Second of all, there are multiple patents that cover these products, but they're all from the same family.

[00:12:12] Speaker 03:
These patents are system patents.

[00:12:14] Speaker 03:
They claim the entire system as a configuration, as an assembly.

[00:12:18] Speaker 03:
This is not a situation where you have one product covered by, say, multiple patents that each patent addresses a different aspect of the product, like a cell phone or what have you.

[00:12:29] Speaker 03:
All of the patents that cover these products are from the exact same family, stemming from the same specification.

[00:12:36] Speaker 03:
And so under those circumstances, there is a nexus.

[00:12:42] Speaker 03:
What are your cases to support that?

[00:12:44] Speaker 03:
We couldn't find a case to support that, but we couldn't find a case to not support it as well.

[00:12:50] Speaker 03:
The only cases relied upon by Innovate for that point are ones where there are different patents that cover the same product from different families.

[00:12:59] Speaker 03:
They're not related patents.

[00:13:02] Speaker 03:
But if they're related patents and they cover a system, we believe the presumption should apply.

[00:13:07] Speaker 02:
You're into your rebuttal, so why don't we save the remainder and I'll hear from the other side.

[00:13:12] Speaker 02:
Thank you.

[00:13:20] Speaker 02:
We're going to run the clock at 11.

[00:13:22] Speaker 02:
There's divided time here between two of you, right?

[00:13:25] Speaker 00:
Yes, Your Honor, but in view of Mr. Forbus's comment that he was not going to argue the real party and interest issue.

[00:13:33] Speaker 02:
Then we're just hearing from you then.

[00:13:35] Speaker 00:
OK, start the clock at 15.

[00:13:37] Speaker 00:
Unless someone on the panel has questions about that issue.

[00:13:42] Speaker 00:
Your Honor, this is not a case of first impression.

[00:13:47] Speaker 00:
This is an appeal where the only issue is

[00:13:49] Speaker 00:
Did the board have substantial evidence to support its findings?

[00:13:54] Speaker 02:
For what's the evidence on motivation?

[00:13:56] Speaker 00:
The evidence on motivation is similar.

[00:13:59] Speaker 00:
First of all, it's in Dr. Schlesinger's declaration.

[00:14:03] Speaker 00:
Dr. Schlesinger's declaration was not stricken by the board.

[00:14:07] Speaker 00:
They just determined that they did not need to rely on it and denied the motion to strike it as moot.

[00:14:12] Speaker 00:
It is in the record.

[00:14:13] Speaker 00:
Dr. Schlesinger has a PhD in physics.

[00:14:18] Speaker 00:
He's head of the Department of Engineering.

[00:14:19] Speaker 02:
Wait a minute.

[00:14:20] Speaker 02:
But we're here talking about the board's opinion.

[00:14:22] Speaker 02:
So why don't we talk about what the board relied on.

[00:14:24] Speaker 00:
What the board relied on was the combination of Dell and SWIR.

[00:14:29] Speaker 00:
And the motivation lies in the fact that the patents in suit show a desktop PC computer system.

[00:14:39] Speaker 00:
The Dell patent shows a laptop.

[00:14:43] Speaker 00:
If one wants to use a PC instead of a laptop, one has to make some changes in the structure in order to accommodate all of the peripherals that go in a PC system.

[00:14:55] Speaker 00:
So all that one needs to do in making the system available for a PC is to make a few minor changes.

[00:15:04] Speaker 00:
And that would involve simply, if I may use Mr. Forbes' diagram, taking

[00:15:13] Speaker 00:
this bracket on the bottom and moving it over to the chassis on the Dell system and then taking what is shown in dotted lines, it's not part of the invention, an interruptible power supply which is in this compartment and moving it down to that bracket.

[00:15:38] Speaker 00:
That's all one needs to do in order to make the system compatible.

[00:15:42] Speaker 00:
Yes, if you use a PC instead of a laptop, you then need to have a keyboard because a laptop doesn't have one.

[00:15:49] Speaker 00:
So the Allen patent adds that you can just have a removable keyboard that slides under, and you have a keyboard.

[00:15:56] Speaker 00:
So now you have the same system.

[00:16:00] Speaker 00:
You have this compartment that moves up and down that's part of the Dell system, and it's empty because you've moved the power supply to the bracket on the bottom.

[00:16:09] Speaker 01:
Here's a concern I have.

[00:16:12] Speaker 01:
You argue that we can rely on your expert testimony.

[00:16:16] Speaker 01:
Yes, Your Honor.

[00:16:17] Speaker 01:
But even if the evidence was uncontroverted, how can we rely on it when we have ample case law saying that the PTAB has to articulate reasons for its decisions?

[00:16:30] Speaker 01:
And we base our decisions on the PTAB's analysis.

[00:16:37] Speaker 01:
Surely you agree that for an obviousness review,

[00:16:41] Speaker 01:
We don't find fact in the first instance.

[00:16:43] Speaker 01:
Of course.

[00:16:45] Speaker 00:
I agree with you, Your Honor.

[00:16:46] Speaker 00:
So where is it?

[00:16:47] Speaker 00:
Because the arguments that were made by Dr. Schlesinger in his declaration were, in fact, the same arguments presented by the board in its opinion.

[00:16:56] Speaker 00:
They just didn't cite Dr. Schlesinger in order to avoid the motion that the passed.

[00:17:03] Speaker 02:
So show us what you're referring to in terms of what the board said.

[00:17:07] Speaker 02:
About Dr. Schlesinger?

[00:17:08] Speaker 02:
Yeah.

[00:17:10] Speaker 02:
Well, you're saying they essentially relied on what he said without accrediting.

[00:17:15] Speaker 00:
The argument that they relied upon was the argument stated by the appendix at page appendix 47 in one of the opinions.

[00:17:40] Speaker 00:
And that section, which is a description of taking del and square and combining them, in fact, tracks what Dr. Schlesinger said in his declaration.

[00:17:50] Speaker 00:
And of course, it also appears in the IPR petition, because our petition was based on the declaration.

[00:18:00] Speaker 00:
So what they said is, yes, they quoted our petition as saying it, but the information came from Dr. Schlesinger.

[00:18:12] Speaker 00:
The motivation was simply to take a system designed for a laptop and make it available for use as a personal computer system.

[00:18:25] Speaker 00:
It didn't change the structure to any significant extent except by moving the bracket over.

[00:18:31] Speaker 00:
It wasn't just common sense as the petitioner claims here.

[00:18:42] Speaker 00:
Information was supported.

[00:18:44] Speaker 00:
There was a rationale.

[00:18:45] Speaker 00:
It was laid out in detail.

[00:18:49] Speaker 00:
It was not controverted by any evidence.

[00:18:54] Speaker 00:
In fact, InterMetro relies upon the testimony of Dr. Erdman, which the board itself found not to be credible in at least one instance.

[00:19:05] Speaker 00:
So that evidence is not the only evidence of record.

[00:19:09] Speaker 00:
Counsel argued that,

[00:19:12] Speaker 00:
The conversion that was proposed would make Dell limited in some way or another.

[00:19:19] Speaker 00:
But the Dell patent specifically said it's for use in a medical environment.

[00:19:23] Speaker 00:
It doesn't limit it in any way.

[00:19:25] Speaker 00:
Moreover, the patents in suit are limited, not limited, they are used primarily for a medical environment.

[00:19:33] Speaker 00:
But there is nothing in the claims of the patents in suit which require any medical environment.

[00:19:37] Speaker 00:
It just talks about a mobile cart

[00:19:40] Speaker 00:
And all of these are mobile carts.

[00:19:55] Speaker 00:
On the question of commercial success, your honor asked where the Nexus is.

[00:20:04] Speaker 00:
This is a case where the patent owner filed

[00:20:08] Speaker 00:
whole series of applications, they have about seven patents with overlapping claims that are all very, very similar.

[00:20:15] Speaker 00:
They have hundreds of claims.

[00:20:17] Speaker 00:
In fact, in one re-exam, they put in well over 100 additional claims.

[00:20:22] Speaker 00:
Claiming all of the elements here in various combinations.

[00:20:27] Speaker 00:
They have A, B, C, and D in one claim, A, B, C, and E in one claim, A, B, C, D, and E in another claim.

[00:20:33] Speaker 00:
They all overlap each other.

[00:20:37] Speaker 00:
It's a situation where what they've done is they aggregated a bunch of features that were already in prior art devices and combined them to make a mobile cart.

[00:20:48] Speaker 00:
There was no evidence, in addition to the lack of Nexus, there was no evidence to support their declaration which purported to put in commercial success evidence.

[00:21:00] Speaker 00:
The affiant was an officer of Intermetro, but he could not possibly have any idea

[00:21:07] Speaker 00:
of the sales of all the competitors or the size of the market because he cited nothing.

[00:21:11] Speaker 00:
He had no reports from anyone.

[00:21:14] Speaker 00:
He had no information at all.

[00:21:15] Speaker 00:
He just made an estimate.

[00:21:17] Speaker 00:
And he said the market is very large and everything is covered by our patents.

[00:21:30] Speaker 00:
In their brief, Intermetro claims that their claims are not limited.

[00:21:36] Speaker 00:
in any way, they're just broad.

[00:21:38] Speaker 00:
And they include all of these elements.

[00:21:41] Speaker 00:
But there's nothing in the claims which said that all these elements can't be removeably used in the system and taken out and swapped whenever it is necessary.

[00:21:51] Speaker 00:
They are not in there by any permanent method.

[00:22:00] Speaker 00:
The bottom line here, Your Honors, is that

[00:22:06] Speaker 00:
Dell, hence we're, disclose all of the elements of the patented claims.

[00:22:16] Speaker 00:
Dell has a desktop surface that can be used to write on.

[00:22:23] Speaker 00:
There's nothing in the claims about how much surface needs to be written on.

[00:22:27] Speaker 00:
It has a display screen that sticks up.

[00:22:30] Speaker 00:
It has a place where you could put a computer.

[00:22:32] Speaker 00:
It has a place where you could put a power supply.

[00:22:36] Speaker 00:
It has a chassis.

[00:22:37] Speaker 00:
It has a desktop surface, which could be lowered or raised to fit the user's height.

[00:22:47] Speaker 00:
The only things that it lacks are the components necessary to run a desktop system rather than a laptop system.

[00:22:56] Speaker 00:
And those can be supplied by SWIR, which shows

[00:23:00] Speaker 00:
a bracket down on the chassis and the base, which is just screwed on there.

[00:23:06] Speaker 00:
And that could be put on the same almost exact base on Dell, and the computer counsel put into that space.

[00:23:17] Speaker 01:
What about the planar discussion I had with your opposing counsel?

[00:23:21] Speaker 00:
Yes, Your Honor.

[00:23:23] Speaker 00:
The planar patent shows

[00:23:27] Speaker 00:
a housing that circumscribes the entire pole near the base.

[00:23:33] Speaker 00:
And in that housing, which is the power supply, there are some batteries that can be moved in or out.

[00:23:42] Speaker 00:
That is at the lower end.

[00:23:44] Speaker 00:
It doesn't have to be exactly underneath it.

[00:23:47] Speaker 00:
It surrounds the whole base.

[00:23:48] Speaker 00:
And we believe that the pole actually goes into that housing.

[00:23:57] Speaker 00:
Dr. Ertman testified about that.

[00:24:06] Speaker 00:
He said that it wouldn't work that way.

[00:24:09] Speaker 00:
And that's where the board said his testimony was not credible.

[00:24:13] Speaker 00:
The use of a power supply down at the lower end would have been obvious.

[00:24:21] Speaker 00:
Their own inventor, Mr. Flemming, testified, and this is in the record,

[00:24:27] Speaker 00:
Mr. Fleming said where we should put the battery, which is the power supply, and he said this is mechanical engineering 101.

[00:24:37] Speaker 00:
It would have to be in the base because it's probably a lead acid battery and it's heavy.

[00:24:41] Speaker 00:
It's like a car battery, right?

[00:24:43] Speaker 00:
So it would be in the base.

[00:24:45] Speaker 00:
So there was nothing non-obvious about putting this heavy battery down at the bottom.

[00:24:51] Speaker 00:
It would still serve as its counterbalancing function.

[00:24:55] Speaker 00:
It would still be out of the way.

[00:24:57] Speaker 00:
And it would disclose the elements of claim 108.

[00:25:01] Speaker 00:
Any further questions?

[00:25:06] Speaker 00:
No.

[00:25:06] Speaker 00:
Thank you.

[00:25:06] Speaker 00:
Thank you, Your Honor.

[00:25:15] Speaker 03:
Your Honor, the key question in this case is, where is the evidence on the issue of why the person of ordinary skill in the art would have made these changes?

[00:25:25] Speaker 03:
Your honor's asked my opposing counsel where that evidence was.

[00:25:30] Speaker 03:
He pointed to Dr. Schlesinger, and that was it.

[00:25:33] Speaker 03:
There's been a lot of discussion about what you could do, what you might do, what was available.

[00:25:40] Speaker 03:
But the question is, where's the evidence of why?

[00:25:42] Speaker 03:
And he pointed to Dr. Schlesinger, and that was it.

[00:25:45] Speaker 03:
Dr. Schlesinger was not relied upon by the board, and for good reason.

[00:25:49] Speaker 03:
Dr. Schlesinger is a physics professor.

[00:25:51] Speaker 03:
He's an expert in nanotechnology.

[00:25:55] Speaker 03:
and optical devices, but by his own admission, he doesn't meet the test of a person of ordinary skill in the art.

[00:26:01] Speaker 03:
And therefore, under the Sundance case and many others, he's not qualified to testify, and that's why the board didn't rely upon him.

[00:26:10] Speaker 03:
And even if the board did rely upon Dr. Schlesinger, if you read his declaration carefully, he doesn't say why a person of ordinary skill in the art would do these things.

[00:26:18] Speaker 03:
He says, just like opposing counsel did,

[00:26:21] Speaker 03:
They could have done these things, they might have done these things, but he doesn't give reasons why they would have.

[00:26:27] Speaker 03:
And as we went through before, the reasons that the board adopted on a whole cloth from opposing counsel's brief, they don't make sense.

[00:26:36] Speaker 03:
Last point I want to make on the issue of secondary considerations.

[00:26:41] Speaker 03:
This is an invention that has had tremendous commercial success.

[00:26:45] Speaker 03:
Every major competitor of Intermetro has licensed this patent family, except for Innovate,

[00:26:52] Speaker 03:
In any given year, between our client, Intermetro, and all the licensees, they sell about $150 million worth of these products.

[00:27:02] Speaker 03:
That's tremendous commercial success, and it goes to the issue of obviousness.

[00:27:06] Speaker 03:
Thank you.

[00:27:06] Speaker 03:
Thank you.

[00:27:07] Speaker 03:
We thank both sides, and the case is submitted.