[00:00:00] Speaker 00:
016-1636 LMK technology versus BLD services.

[00:00:06] Speaker 00:
Mr. Hardy, please proceed.

[00:00:16] Speaker 02:
May it please the court.

[00:00:18] Speaker 02:
Patent trial appeal board heard its legal determinations of obviousness based upon rationales that were not supported by substantial evidence.

[00:00:26] Speaker 02:
This is a

[00:00:28] Speaker 02:
unique case I would submit.

[00:00:29] Speaker 02:
Why?

[00:00:30] Speaker 02:
Because all of the prior art is the inventor's own work.

[00:00:35] Speaker 02:
Larry Keist, a recognized innovation leader in the field, the prior art references applied tell and are part of the invention story.

[00:00:45] Speaker 02:
They show the evolution of the technology.

[00:00:47] Speaker 02:
Mr. Keist testified as to the prior art reference the board relied upon, and that testimony was not challenged.

[00:00:55] Speaker 02:
No cross-examination.

[00:00:57] Speaker 02:
It stands unrebutted.

[00:00:58] Speaker 02:
And so what we have is a significant body of real-world evidence that is important to this appeal for a couple of reasons.

[00:01:09] Speaker 02:
First of all, much of it takes the form of what is fair to say are nontraditional forms of secondary considerations, objective evidence to show non-obviousness.

[00:01:20] Speaker 05:
Whether it be- What does that mean, nontraditional forms of secondary consideration evidence?

[00:01:26] Speaker 02:
Certainly, Graham versus Deer has given us a list of various secondary considerations, not intended to be exclusive.

[00:01:36] Speaker 02:
In the KSR case, the Supreme Court told us it's a very expansive and flexible approach.

[00:01:41] Speaker 02:
We know from the Leo Farma case, for example, lapse of time coupled with a non-recognition of the problem in the art.

[00:01:49] Speaker 02:
Those are what I would submit an example of a non-traditional form.

[00:01:55] Speaker 02:
We have, based on the record evidence, a industry standard based upon the Keist 118, which Mr. Keist deviated from.

[00:02:04] Speaker 02:
We also have the lapse of time, just as in Leo Farma.

[00:02:08] Speaker 00:
Well, doesn't lapse of time require recognition of a problem that people are working to solve?

[00:02:14] Speaker 00:
Isn't that sort of, I mean, if lapse of time were enough, then would Graham versus John Deere have articulated long-felt need and all these other things?

[00:02:23] Speaker 00:
kind of, they talk about time and Graham versus John Deere.

[00:02:26] Speaker 00:
So I'm just not, I'm just not sure the passage of time standing alone gets you anything at all.

[00:02:32] Speaker 02:
I agree.

[00:02:32] Speaker 02:
Your honor, the passage of time alone does, does not get you there.

[00:02:37] Speaker 02:
And that's why this court in Nike, I believe clarified Leo Farma to say that it's the lapse of time coupled with non-recognition of the problem in the art.

[00:02:49] Speaker 03:
What's the logic, just the simple, ordinary.

[00:02:52] Speaker 03:
logic explaining why, I understand the logic why lapse of time with recognition of the problem tends to suggest that people, ordinary skilled artisans couldn't figure out how to solve it and therefore non-obviousness.

[00:03:07] Speaker 03:
What's the logic whereby lapse of time plus non-recognition of the problem tends to support a conclusion of non-obviousness in very common sense terms?

[00:03:17] Speaker 02:
I would submit Judge Toronto that the logic is

[00:03:20] Speaker 02:
that is, in oftentimes the cases, part of the invention can reside in recognizing what the problem is.

[00:03:28] Speaker 02:
And so when you couple those two together, when you have this long period where people skilled in the art are not aware of, are not appreciating, have not recognized that problem, that is where the lapse of time analysis differs from the traditional

[00:03:49] Speaker 02:
long felt need secondary indicia that we have for grain versus deer.

[00:03:56] Speaker 02:
And that dovetails into this case where you have the inventor 13 years after the Keist 597 chemical grouting approach, and then four years after the Keist 118 water containment approach, then moves away from that industry standard.

[00:04:15] Speaker 02:
And the only record evidence.

[00:04:17] Speaker 00:
You've been going for several minutes, and it just occurred to me that the clock had never started.

[00:04:22] Speaker 00:
So why don't we put the clock at 12 minutes?

[00:04:24] Speaker 00:
I think that should be about right.

[00:04:28] Speaker 05:
Did you raise a secondary considerations argument to the board?

[00:04:32] Speaker 02:
We framed it.

[00:04:33] Speaker 02:
And if so, where would that be in the record?

[00:04:36] Speaker 02:
If you look, Your Honor, it was raised

[00:04:41] Speaker 02:
If you look at pages 23 to 31 of our reply brief, we spell out where it was raised to the board and from the get-go.

[00:04:51] Speaker 02:
Where in the joint appendix can I see that?

[00:04:59] Speaker 02:
I know the citations are provided there.

[00:05:22] Speaker 02:
For example, we would submit the evolution of technology and... Start with a page number for JA.

[00:05:30] Speaker 02:
Appendix 143 to 144, explain how Mr. Keist's present inventions departed from his previous work.

[00:05:38] Speaker 02:
Appendix what?

[00:05:40] Speaker 02:
143 to 144 and at 156.

[00:05:41] Speaker 02:
143 to 144, okay.

[00:05:51] Speaker 02:
156 talks about how his inventions departed from his previous work.

[00:06:01] Speaker 04:
What document is this?

[00:06:02] Speaker 04:
143, 144, 156.

[00:06:12] Speaker 04:
Oh, preliminary response by patent owner.

[00:06:14] Speaker 02:
Yeah, so we're talking about the progression from the giga week there.

[00:06:17] Speaker 02:
And then it goes, as far as the actual patent owner's response,

[00:06:22] Speaker 02:
We stress that full appreciation for that claim.

[00:06:26] Speaker 03:
Again, a page 273.

[00:06:27] Speaker 02:
We really want to look at it.

[00:06:30] Speaker 02:
Appendix page 273 in the appendix, which refers to the patent owner's response.

[00:06:36] Speaker 05:
Is this under the heading technology background?

[00:06:38] Speaker 05:
Yes, it is.

[00:06:40] Speaker 05:
Is that the argument section, or does your argument section begin at 8297?

[00:06:43] Speaker 02:
Well, the argument section starts later.

[00:06:54] Speaker 05:
I'm just trying to figure out to what extent was the board on notice that it was obligated to evaluate and consider a secondary considerations argument in your briefing.

[00:07:05] Speaker 02:
Well, consistent throughout, Your Honor, we argued as indicators for why the board's rationales were deficient were the real world factors, like moving away from the industry standard and the fact that

[00:07:23] Speaker 02:
This case is unique, and it is the inventor's own work.

[00:07:25] Speaker 02:
That is in the actual argument section itself, where we discuss the fact of if anyone, if this truly was an obvious variation of the Keist 118 to take this discrete hydrophilic band and move it to the juncture, then Mr. Keist, more than anyone else, would have had the motivation, would have done that much earlier than he did.

[00:07:50] Speaker 02:
That's another consideration that bears upon that ultimate legal question of obviousness.

[00:07:56] Speaker 02:
If I turn to the rationales themselves, the board offered two rationales, both not supported by substantial evidence.

[00:08:07] Speaker 03:
Please remind me of something.

[00:08:10] Speaker 03:
Is there something either in the patent claims or in the board's

[00:08:18] Speaker 03:
construction of the patent claims that tells us what we're dealing with here is to use your language moving the bands to the the elbow or Do the claims cover?

[00:08:36] Speaker 02:
Keeping the outside bands and adding one at the elbow The claims are directed your honor just to the elbow to that pipe juncture which you're referring to as the elbow

[00:08:49] Speaker 02:
to provide a discrete hydrophilic band there, which happens to act as a multi-directional water stop.

[00:08:56] Speaker 03:
So the claims cover a situation where you're putting, as I think the expression was, a belt on top of the suspenders, which sometimes is a good idea.

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

[00:09:09] Speaker 02:
It's an open, and it's a comprising claim.

[00:09:12] Speaker 05:
So the patent covers your second embodiment that's illustrated in Figure 6, which shows

[00:09:18] Speaker 05:
gasket at the juncture, but then a second band further up the lateral pipeline, right?

[00:09:25] Speaker 02:
Because it is an open claim, Your Honor, yes, other gaskets could be placed.

[00:09:31] Speaker 02:
But it would be there is no reason to do that.

[00:09:37] Speaker 05:
And because this now... Why does the patent disclose the second embodiment?

[00:09:45] Speaker 05:
Just curious.

[00:09:46] Speaker 05:
Why is there a second

[00:09:48] Speaker 05:
illustration where there's a gasket right there at the juncture and there's a second band further up the lateral pipeline at just about the same location as you see in Keys 1118.

[00:10:01] Speaker 02:
The reason, Your Honor, is because the water, where the focus is here is in the water entering at the juncture and into the main pipe, the main sewer pipe.

[00:10:14] Speaker 02:
The water is not going to be

[00:10:16] Speaker 02:
traveling up.

[00:10:17] Speaker 02:
It's going to follow the path of least resistance.

[00:10:20] Speaker 02:
Also important to note is that numeral 60, which as you say is a carryover, is a nowhere described in the written description.

[00:10:31] Speaker 02:
And so I think Petitioner and the board read too much into the fact that there happens to be another band.

[00:10:37] Speaker 05:
And there is... Well, the inventor went out of his way to create another illustration and another figure, figure six.

[00:10:46] Speaker 05:
And is there any other distinction in Figure 6 from the other figures aside from that band?

[00:10:53] Speaker 02:
Figure 6, I believe, Your Honor, shows the lateral liner as it has been inverted into the lateral pipe.

[00:11:01] Speaker 03:
So does Figure 3.

[00:11:04] Speaker 02:
As does Figure 3.

[00:11:06] Speaker 02:
But I think where you're going is the board, in trying to bolster its increased ceiling rationale, considered

[00:11:16] Speaker 02:
simply adding this other hydrophilic bay end, but it would have served no useful purpose.

[00:11:22] Speaker 02:
It would have been superfluous.

[00:11:25] Speaker 02:
Why?

[00:11:25] Speaker 02:
Because the Keist 118 water containment approach is premised upon that tea liner being watertight.

[00:11:35] Speaker 02:
And there was no recognition in the art that the tea liner was not always watertight and it could leak.

[00:11:43] Speaker 02:
Furthermore, your honor,

[00:11:45] Speaker 02:
Unpredictability here really belies any expectation of success about adding a discrete hydrophilic band around the juncture or the elbow, as you say.

[00:11:57] Speaker 02:
We're talking about a highly specialized field.

[00:12:00] Speaker 02:
Everything is done underground with the robots.

[00:12:02] Speaker 02:
And where water comes in, where it travels, is very unpredictable and it's variable.

[00:12:07] Speaker 02:
If you've ever had a problem with a leaky basement, you know the unpredictability.

[00:12:12] Speaker 05:
the inventive step, the non-obviousness?

[00:12:15] Speaker 05:
Why is it not obvious to place this sealant material at the very location where the leak is?

[00:12:25] Speaker 05:
Why not put the band-aid where the wound is?

[00:12:28] Speaker 05:
And the reason, Your Honor, is first, we have to start... You have a prior art reference, Keist 663, that did just that, with a different material, but nevertheless,

[00:12:41] Speaker 05:
did a direct treatment on where the cracks are.

[00:12:45] Speaker 02:
But what KEYS 663 used, first of all, a fundamentally different type of lining technique.

[00:12:53] Speaker 02:
And what the board did here, I submit, was a very superficial analysis of those references.

[00:12:59] Speaker 02:
Yes, the KEYS 663 talks about hydrophilic.

[00:13:04] Speaker 02:
It talks about gasket.

[00:13:06] Speaker 02:
That's where the similarities stop.

[00:13:08] Speaker 02:
Our brief, we talk about the significant difference in hydrophilic chemical grouting.

[00:13:13] Speaker 02:
The gasket in 663, it was a piece of, it was a sponge, just like you'd have in your kitchen.

[00:13:19] Speaker 02:
Soaks up a liquid hydrophilic material when it's compressed, it disperses into the cracks, crevices, voids.

[00:13:26] Speaker 02:
It is thought to be hydrophilic chemical grouting.

[00:13:28] Speaker 02:
It's thought to be tailor-made for that junction.

[00:13:31] Speaker 02:
Why?

[00:13:31] Speaker 02:
Because it goes and disperses into all the different areas.

[00:13:34] Speaker 02:
The reason that it's not a,

[00:13:39] Speaker 02:
obvious inventive step here is because the starting point is Keist 118.

[00:13:45] Speaker 02:
And Keist 118 already took care of the damaged pipe juncture with the cured in place tea liner.

[00:13:53] Speaker 02:
And then what you're left with is the water flow that may get into that annulus and go off the ends of the tea liner.

[00:14:03] Speaker 02:
But 118 addressed that with this water containment approach.

[00:14:06] Speaker 02:
But what's important

[00:14:08] Speaker 02:
In terms of the fundamental distinctions between the two Keist references that the board did not appreciate is those hydrophilic bands in Keist 118 are very different than chemical grouting.

[00:14:19] Speaker 02:
It's not a liquid.

[00:14:20] Speaker 02:
It's a discrete band.

[00:14:21] Speaker 02:
It's not flowable.

[00:14:24] Speaker 02:
And in fact, 118 teaches a way from putting... Mr. Hardy, you're well into your rebuttal time.

[00:14:32] Speaker 00:
Do you want to save the remainder?

[00:14:34] Speaker 02:
I'll follow up on the last point, if I could.

[00:14:36] Speaker 02:
The 118 actually teaches away from putting that hydrophilic discrete band around the juncture because it teaches very clearly, please review, I would submit figures five and six, show how those bands are to be placed on opposite sides of the damage pipe, not in, at, or on.

[00:14:57] Speaker 00:
Thank you, Mr. Chambers.

[00:15:09] Speaker 01:
Hey, Police the Court.

[00:15:11] Speaker 01:
I'm Scott Chambers.

[00:15:12] Speaker 01:
I'm here with Dr. Patka.

[00:15:14] Speaker 01:
We're here representing DLD.

[00:15:16] Speaker 01:
I'd like to make three points today.

[00:15:18] Speaker 01:
The first is that all of the limitations in the challenge patent are found in the 118 patent except placement of hydrophilic material or a hydrophilic gasket at a known weak junction between the lateral and the main pipe.

[00:15:31] Speaker 01:
The second point is the 597

[00:15:33] Speaker 01:
teaches the value of putting a hydrophobic material or hydrophilic gasket at that known weak junction between the lateral and the main pipe.

[00:15:41] Speaker 01:
And the board only used the 597 to point out that this was a known weak position and they were going to put a gasket there.

[00:15:49] Speaker 01:
Finally, expert testimony indicates that engineers were well aware of the leakage of the main lateral line repair.

[00:15:57] Speaker 01:
And that's covered in our brief, but it's also in the appendix.

[00:16:02] Speaker 01:
1966 to 67 from the deposition of Mr. Fletcher.

[00:16:08] Speaker 01:
It's also in the declaration of Mr. Fletcher at 18.

[00:16:12] Speaker 01:
And all parties indicate that you would put a camera in this to inspect the pipe before you would do the repair.

[00:16:22] Speaker 01:
And you would inspect the pipe even up to a year later to see if the repair was holding.

[00:16:29] Speaker 01:
and the parties indicate that you would be able to tell if there was a leak from a camera.

[00:16:34] Speaker 01:
So you would expect that this was known.

[00:16:36] Speaker 01:
The only evidence that they provided that this was something unknown, that leakage was unknown, were the self-serving declaration of the inventor, the declaration of their expert, as well as the San Paolo report.

[00:16:52] Speaker 01:
This was in front of the board.

[00:16:53] Speaker 01:
The board looked at it.

[00:16:55] Speaker 01:
The board did not give

[00:16:58] Speaker 01:
very much weight to the San Paolo report, because there were, I believe, 188 different very leaky junctions.

[00:17:09] Speaker 01:
They fixed 150 of them.

[00:17:11] Speaker 01:
And it cut down to the amount of leakage by no more than 60%.

[00:17:17] Speaker 01:
So you really couldn't tell how much leakage was going on.

[00:17:20] Speaker 01:
So there's really no evidence in the record that there was leakage.

[00:17:24] Speaker 01:
Simply looking at Figure 6,

[00:17:28] Speaker 01:
of the Pattinson suit and figure three in the 118 shows the great similarity.

[00:17:35] Speaker 05:
Now, is your theory of the rejection moving one of the bands in 118 from somewhere away from the juncture or is it keeping those bands exactly where they are and then going ahead and installing a third one at the junction?

[00:17:57] Speaker 01:
Your Honor, we think that either one of those, the board said it was irrelevant whether you were removing it or not.

[00:18:04] Speaker 01:
And when you look at the 118, the 118 puts those bands on each end of the lateral.

[00:18:12] Speaker 01:
In the patents in suit, most of those don't even require a complete band.

[00:18:17] Speaker 01:
So you're not really necessarily having to move those, but given the fact that

[00:18:26] Speaker 01:
there was a T-liner that without those bands was known to leak.

[00:18:31] Speaker 01:
I would think that you would put those bands in and then you would put that additional protection up there.

[00:18:36] Speaker 01:
Keep in mind that the whole purpose for this CIPP, the Cured in Place Pipe, basically a pipe within a pipe, is so you don't have to dig it up.

[00:18:46] Speaker 01:
You want to make sure that you're not going to have to dig it up because these are going to be 6 to 15 feet underground and that's going to be expensive.

[00:18:54] Speaker 01:
It's very cost effective to just put a little bit of paste around where the juncture is going to be.

[00:19:03] Speaker 01:
And this is something that was well known in the field, according to the expert, and something that you would naturally expect individuals to do.

[00:19:17] Speaker 03:
Can I just ask about, there's one passage of, I guess it's the Campbell Declaration.

[00:19:24] Speaker 03:
Yes.

[00:19:25] Speaker 03:
and I'm looking particularly at appendix 2076 and 2077, paragraph 51, I guess, in particular, which seems to make a point.

[00:19:37] Speaker 03:
I'm not sure LMK has really stressed this, though mentioned it in passing, that it would be surprising to think that the paste or the band would stick to the defective surface.

[00:19:53] Speaker 03:
That's why you put it on

[00:19:55] Speaker 03:
the uninterrupted or undisrupted, or whatever his phrase was, surface.

[00:20:00] Speaker 03:
So you wouldn't actually expect when you start with, is it the 118, the 118 with the bands on nice clean surfaces that are going to make a good seal, that you would think, oh, go put it on the splotchy surface where it's just not going to adhere very well.

[00:20:18] Speaker 03:
Which would be different if you have grout that's going to infuse and fill it up.

[00:20:24] Speaker 01:
Your Honor, if you had a situation where it was pulled in place, you may well be able to make that argument.

[00:20:33] Speaker 01:
But when it's inverted, you can put it right there where it's going to flip out.

[00:20:38] Speaker 01:
Now, the important point to keep in mind is that one of the reasons they may not have made that argument is because they have a patent on file at the Patent and Trademark Office where they do exactly that.

[00:20:51] Speaker 01:
Now, that's cited, I believe, in our foot

[00:20:54] Speaker 01:
footnote 0.8, they've since indicated in that patent that this particular material could be a sponge with liquid grout put into it, just like in the 597.

[00:21:10] Speaker 01:
Now, this was not part of the case.

[00:21:15] Speaker 01:
We found it.

[00:21:16] Speaker 01:
We put it in the brief.

[00:21:17] Speaker 01:
There's no indication that they brought

[00:21:20] Speaker 01:
attention to the examiner that this was something that the board had already made a ruling on.

[00:21:26] Speaker 01:
But there's a good reason that this wouldn't be an issue.

[00:21:32] Speaker 01:
Now, if it was true that you couldn't pull it into place, then that particular patent must not be enabled.

[00:21:39] Speaker 01:
But no matter what, one of skill in the art trying to do a belt and suspenders approach would put some of this material there, even if you were going to pull it in place.

[00:21:50] Speaker 01:
And the reason is you don't want to have to dig this thing up once you get it done.

[00:21:54] Speaker 01:
So you pull it in place.

[00:21:56] Speaker 01:
And if some of it gets smeared off, at least there will be some.

[00:22:00] Speaker 01:
Keep in mind that it's not going to pull all of it off.

[00:22:05] Speaker 01:
You've got this thing laying there for the pole in place.

[00:22:09] Speaker 01:
You're pulling it along.

[00:22:10] Speaker 03:
Well, let me just focus on at least what's in my mind.

[00:22:14] Speaker 03:
I read that paragraph 51 to say,

[00:22:18] Speaker 03:
and maybe I'm saying it now more strongly than it says, you wouldn't put the sticky part of a band-aid on the sore.

[00:22:27] Speaker 03:
It won't stick.

[00:22:29] Speaker 03:
You put the sticky part on the good skin.

[00:22:33] Speaker 03:
So why would you put the sticky part on the splotchy T-juncture?

[00:22:39] Speaker 01:
The idea was not that it wouldn't stick, but that it would be scraped off during the pulling.

[00:22:45] Speaker 01:
Now if you think about a tube,

[00:22:48] Speaker 01:
and you're pulling this thing through, you're going to pull it through, and gravity's going to take care of keeping it down.

[00:22:54] Speaker 01:
Then when you inflate it or when you pull it up, you're going to have this thing match.

[00:23:00] Speaker 01:
It's not going to get scraped off.

[00:23:02] Speaker 01:
That was not part of the briefing.

[00:23:04] Speaker 01:
And part of that was because during the deposition, we went into that issue, went into the fact that, well, if it was going to be scraped off, why do they have this particular

[00:23:15] Speaker 01:
You know, why is there a particular patent that has this?

[00:23:19] Speaker 01:
So I don't think that we would expect it to be getting scraped off, especially since we now have a patent that does exactly that.

[00:23:29] Speaker 05:
I'm wondering if the response is also in part, you're having some of the sealant material covering the crack, maybe the little corroded area, but then you also have sealant area on both sides of that crack to ensure that

[00:23:45] Speaker 05:
the water, it's staying adhered to the juncture so that you can make sure water's not coming out through the sides of that crack.

[00:23:56] Speaker 01:
That's absolutely correct, Your Honor, because when you have this paste put on, you pull it into place, and then you inflate it, you're basically squeezing the paste up to take care of any non-uniformity.

[00:24:10] Speaker 01:
So that even if

[00:24:11] Speaker 01:
It was only a partial, or even if some got scraped off, you would still be doing something of value here.

[00:24:18] Speaker 01:
You'd still be getting it to be a better approach so that you wouldn't have to dig it up.

[00:24:25] Speaker 00:
Mr. Chambers, Mr. Hardy began his argument with objective evidence suggesting that the board erred in failing to consider the objective evidence that they introduced.

[00:24:35] Speaker 00:
Can you respond to that?

[00:24:37] Speaker 01:
Your Honor, the objective evidence

[00:24:41] Speaker 01:
that they suggest is that there was long felt need, but yet they also suggest that nobody knew about this.

[00:24:48] Speaker 01:
Well, four years is what the Leo Pharma case said.

[00:24:54] Speaker 01:
Well, I'm sorry.

[00:24:55] Speaker 01:
There were four years separation between the filing of the 118 and the filing of the Pattinson suit.

[00:25:05] Speaker 01:
Four years is not a long time.

[00:25:07] Speaker 01:
We don't know when conception really occurred.

[00:25:10] Speaker 01:
In some cases, when you're given an application, it might take a little while to get filed.

[00:25:16] Speaker 01:
So the first is that it's four years or less.

[00:25:20] Speaker 01:
In Leo Farma, that was 10 years.

[00:25:23] Speaker 01:
The court said this could be one consideration.

[00:25:28] Speaker 01:
Didn't say that was the whole consideration.

[00:25:31] Speaker 01:
And this was rejected, the idea of the distance in time later on in the Nike case when

[00:25:38] Speaker 01:
The board said that without a long-felt need, I'm sorry, the court said without a long-felt need that this was not relevant.

[00:25:47] Speaker 01:
Now, in terms of that, one, we dispute the fact that nobody knew about this, but we also dispute the fact that four years is that long because we believe people were doing it.

[00:26:00] Speaker 01:
We believe that this was something that was obvious and that you would naturally put this material on.

[00:26:09] Speaker 01:
What people were doing in the field is not part of a proceeding before the Patent and Trademark Office.

[00:26:15] Speaker 01:
But it's certainly true that four years is not considered.

[00:26:19] Speaker 01:
It would be new law to assume that four years was the creation of a new standard for a dish of offices.

[00:26:27] Speaker 00:
He didn't mention it in today's argument, but what about the award, Chicago Innovation Award?

[00:26:32] Speaker 00:
I'm sure I'm getting the name wrong, but there was an award that the

[00:26:36] Speaker 00:
Did they allege the commercial embodiment of this patent won?

[00:26:41] Speaker 01:
Well, first of all, Your Honor, it's misleading.

[00:26:44] Speaker 01:
It's not an industry award.

[00:26:46] Speaker 01:
And most importantly, it's not commensurate in scope with the claims.

[00:26:49] Speaker 01:
For evidence of commercial success, you're going to want to have something commensurate with the claims.

[00:26:57] Speaker 01:
Well, that award was for something with... You probably ought to tie yourself to the podium.

[00:27:03] Speaker 01:
Sorry.

[00:27:04] Speaker 01:
That was something that was...

[00:27:09] Speaker 01:
something that had a flange in addition to the gasket.

[00:27:14] Speaker 01:
The board specifically did not institute this IPR proceeding on those claims that required a flange along with the gasket.

[00:27:25] Speaker 01:
So that those claims.

[00:27:27] Speaker 00:
Was there any fact finding or acknowledgement by the board or recognition that this doesn't constitute evidence objective in this show of non-obviousness because it's not commensurate in scope?

[00:27:40] Speaker 01:
Your honor, we pointed out that it wasn't commensurate in scope.

[00:27:45] Speaker 01:
Was it even raised to the poor?

[00:27:48] Speaker 01:
I would say that it was not raised except in the briefing by the parties that an industry award had been given.

[00:27:58] Speaker 01:
And then once it was pointed out that it wasn't an industry award, it was something that was done

[00:28:09] Speaker 01:
by a group of people just talking about this particular product in the location that it was at.

[00:28:19] Speaker 01:
In other words, it wasn't a bunch of people saying, well, we really have a lot of interesting things.

[00:28:26] Speaker 01:
And one of the great new things that we have is this particular item.

[00:28:31] Speaker 01:
There was no evidence of how much money was being spent.

[00:28:34] Speaker 01:
There was no evidence that would really be required to show that this was

[00:28:38] Speaker 01:
some sort of commercial success.

[00:28:41] Speaker 01:
Without that evidence, why does the board have to have to proceed?

[00:28:45] Speaker 00:
Well, we've repeatedly held that the board can't ignore objective indicia in its analysis, and here they didn't speak to it.

[00:28:57] Speaker 00:
So is it at least or possibly a failure to articulate findings of fact and conclusions of law on their part?

[00:29:04] Speaker 01:
Your Honor, I would say that it's a failure on the side of

[00:29:08] Speaker 01:
the patent owner to bring that fully to the fore so that the board can see it.

[00:29:15] Speaker 01:
That it should not be the job of the board to guess when somebody is saying commercial success, especially when it's not commensurate in scope with the claims and where it's not really an industry award.

[00:29:28] Speaker 01:
I don't believe it would be good policy to have the board have to guess and read between the lines.

[00:29:35] Speaker 01:
If an applicant wants to

[00:29:38] Speaker 01:
give a reason, they should articulate it.

[00:29:41] Speaker 01:
And I don't believe that this was well articulated in terms of the scope of this award.

[00:29:47] Speaker 00:
I understand.

[00:29:47] Speaker 00:
Is there anything in the last few seconds?

[00:29:49] Speaker 00:
Are you good?

[00:29:51] Speaker 01:
Your Honor, we'll rest on this testimony as well.

[00:29:55] Speaker 00:
Very good.

[00:29:56] Speaker 00:
OK, thank you, Mr. Chambers.

[00:29:57] Speaker 00:
Mr. Hardy?

[00:30:01] Speaker 02:
Thank you, Your Honors.

[00:30:05] Speaker 02:
With respect to the Campbell testimony that one of his ordinary skill in the art would not have an expectation of success is exactly the distinction between the Keist 118 and the 563.

[00:30:19] Speaker 02:
The chemical grouting, that's why it has been used at the pipe juncture because of its properties that it disperses.

[00:30:27] Speaker 02:
The fact that you have these discrete hydrophilic bands, the 118 specifically teaches that you do not

[00:30:33] Speaker 02:
put those at the damaged area, figures five and six of the 118 show and teach that you put those on the outside where they can actually create a seal against the Hope's pipe and connect it.

[00:30:46] Speaker 02:
So there would be no motivation to now take those discrete hydrophilic bands and move them to the pipe joint where the damage actually is occurring.

[00:30:59] Speaker 05:
Well, I think in one of the board decisions, the board said,

[00:31:04] Speaker 05:
among other things, there are no guarantees in life, especially when it comes to repairing sewer pipes.

[00:31:11] Speaker 05:
So why not go ahead and give a little help to the juncture where there's a problem, where the cracks are?

[00:31:21] Speaker 02:
Well, Your Honor, there are no guarantees in life.

[00:31:24] Speaker 02:
But if there was a belt and suspenders approach here, it would have been to go ahead, take the bands of the 118, and put in a chemical grout ring.

[00:31:34] Speaker 02:
if that's what you wanted to do, because that is where hydrophilic grouting was known to be successful.

[00:31:41] Speaker 02:
There was no suggestion to take a material that has a fundamentally different property, different applications, a swell-solid-tight material, and move it to the juncture.

[00:31:52] Speaker 02:
And I would like to bring to the Court's attention that the superficial analysis and failure to appreciate the differences between the chemical grouting of 597

[00:32:03] Speaker 02:
in Keist 118 was made crystal clear when the board stated the following.

[00:32:12] Speaker 02:
Appendix 30, the board stated that, excuse me, Appendix 27, the relevant difference between the two techniques in Keist 597 and Keist 118 is the location of the gaskets.

[00:32:30] Speaker 02:
That failed to account

[00:32:31] Speaker 02:
for the many differences that have been discussed that were unrefuted in the record between hydrophilic chemical grouting on the one hand and use of those swell seal gaskets that were only known to contain water on opposite sides of the damage pipe.

[00:32:46] Speaker 00:
Thank you, Mr. Hardy.

[00:32:47] Speaker 00:
I thank both counsel.

[00:32:48] Speaker 00:
The case is taken under submission.