[00:00:03] Speaker ?:
You hit a bunch, too.

[00:00:09] Speaker 02:
Yeah, I know.

[00:00:11] Speaker 02:
That distracts me.

[00:00:13] Speaker 02:
It nicked me off.

[00:00:45] Speaker 00:
This appeal can be decided based on three points, none of which is disputed.

[00:01:09] Speaker 00:
First, there are two prior art references, each of which discloses all claim elements but one.

[00:01:15] Speaker 00:
The 928 application discloses everything but rotation.

[00:01:18] Speaker 00:
MTOS discloses everything but mechanically linked handles.

[00:01:22] Speaker 00:
Second, in each case, the missing element is disclosed by the other reference.

[00:01:26] Speaker 00:
MTOS has rotation.

[00:01:28] Speaker 00:
The 928 has mechanically linked handles.

[00:01:31] Speaker 00:
And third, the evidence of motivation for both combinations is uncontroverted.

[00:01:36] Speaker 00:
As for adding rotation from MTOS to the 928, it's admitted that long before the Barry patents,

[00:01:42] Speaker 00:
Doctors knew the importance of derotating vertebrae and were motivated to do it.

[00:01:46] Speaker 00:
And as for linking the handles of mTOS, neither Barry nor the board has ever denied that it is a basic mechanical principle well within the knowledge of a skilled artisan.

[00:01:56] Speaker 00:
And it's motivated by the incentive to make it easier to move the vertebrae together, which surgeons were already doing with their hands.

[00:02:03] Speaker 00:
Connecting the handles together with a simple mechanical link lets the surgeon do it more evenly, reduces the risk of damage,

[00:02:10] Speaker 00:
frees up one hand for other purposes, and notably, the board never found otherwise.

[00:02:15] Speaker 03:
We submit that the board may... I'm sorry, the board never found that those benefits, if somebody had thought of it, wouldn't have existed, but did the board... The question of whether somebody, a regular old person of ordinary skill in the arts,

[00:02:29] Speaker 03:
would have seen the benefits and been motivated to do it is a factual question and the board did not find in your favor on that.

[00:02:37] Speaker 00:
The board made no finding on that Judge Toronto and that we submit is the legal error in the board's analysis.

[00:02:42] Speaker 00:
The board stopped its findings once it determined that MTOS itself did not disclose a mechanical linkage.

[00:02:50] Speaker 00:
That was a legal error because this isn't an anticipation case.

[00:02:54] Speaker 00:
It should have gone on to consider whether a skilled artisan would have been

[00:02:57] Speaker 00:
motivated to take the mechanical linkage undisputedly disclosed in the 928, which was well within the capability of a person of ordinary skill, and simply applied it to the procedure in MTOS because it was application of a known technique to a piece of prior art ready for the improvement in the language of KSR.

[00:03:17] Speaker 00:
There's no question that MTOS has multiple handles connected to multiple pedicle screws.

[00:03:21] Speaker 00:
The board found on page 35

[00:03:23] Speaker 00:
The only element missing is to, quote, connect the ends of the extensions or handles together, close quote.

[00:03:29] Speaker 00:
And there was plenty of evidence, and it's not disputed, that the 928 expressly discloses just such a physical structure.

[00:03:36] Speaker 00:
Dr. Linke said it's a basic concept of mechanical connection.

[00:03:40] Speaker 00:
And neither Barry nor the board ever denied that, nor could they have.

[00:03:44] Speaker 00:
It's clear that taking multiple switches or handles and connecting them with a bar so that they can be moved all at once is something well known.

[00:03:51] Speaker 00:
It's common in household circuit breakers and other applications.

[00:03:55] Speaker 00:
And there is no finding, Judge Toronto, to your question to suggest that that was somehow inventive.

[00:04:01] Speaker 00:
and that a person of ordinary skill in the art, someone with a medical degree and years of experience in designing fixation devices, would not have thought of that and used it for the obvious benefits that it provided.

[00:04:13] Speaker 00:
Notably, Barry's own expert, Dr. Yasser, himself admitted that he, in his own practice, had moved more than one handle at the same time.

[00:04:22] Speaker 00:
He admitted that the prior art, including the Sook reference, discloses distributing the rotational torque among several pedicles to help prevent breakage.

[00:04:30] Speaker 00:
And he admits that it's predictable that if you connect the D rotators, they're naturally going to move together.

[00:04:35] Speaker 00:
It's an ordinary principle of mechanical physics.

[00:04:37] Speaker 00:
So to achieve the many predictable benefits of simultaneous rotation of vertebrae, the artisan would obviously be motivated to combine the physical structure, the feature in the 928 application that connects multiple engagement members with the individual engagement members already disclosed in MTOS.

[00:04:54] Speaker 00:
That on its own is enough.

[00:04:55] Speaker 00:
And I haven't even mentioned the evidence of our expert, Dr. Lenke, who spelled this out

[00:04:59] Speaker 00:
in even greater detail in his declaration on 1511 of the appendix, where he talks about the benefits of further facilitating simultaneous movement of vertebrae using fewer hands, using less force, and safely distributing the force.

[00:05:14] Speaker 02:
Which reference teaches the single action simultaneous application of force, the manipulative force?

[00:05:23] Speaker 00:
The 928 application.

[00:05:26] Speaker 00:
has multiple posts that simultaneously compress and distract.

[00:05:31] Speaker 02:
It has two knobs, right?

[00:05:33] Speaker 00:
It has two knobs, and it has transverse connections across the multiple engagement members.

[00:05:39] Speaker 02:
I guess my question about that one is you have to use both knobs in order to get all of the members activated, right?

[00:05:48] Speaker 00:
So now we're talking about the alternative obviousness combination, right?

[00:05:52] Speaker 00:
Taking the 928 and combining it with rotation from MTOS.

[00:05:56] Speaker 00:
I can turn to that if your honor wishes.

[00:05:58] Speaker 00:
I just wanted to conclude the point about the first and we think the clearest combination, which is taking the rotation which is already in MTOS.

[00:06:09] Speaker 00:
Every element of the claimed method is there.

[00:06:12] Speaker 00:
And all you're doing is adding a bar to move them together simultaneously.

[00:06:16] Speaker 00:
And the bar or the linkage

[00:06:18] Speaker 00:
comes from the 928.

[00:06:18] Speaker 00:
That's the only feature you need to have.

[00:06:21] Speaker 02:
So the fact that in the 928, a knob can, what is it, the knob is moving one of the members, right?

[00:06:32] Speaker 00:
The feature that can be combined is not limited to the knob.

[00:06:36] Speaker 00:
You can combine the physical linkage, so the threaded rod that ties them all together, and the skilled artisan can use that.

[00:06:44] Speaker 02:
Right, but I'm just trying to remember how the 928 operates.

[00:06:46] Speaker 02:
There's one knob

[00:06:48] Speaker 02:
There are three, I don't know what to call them, pegs.

[00:06:51] Speaker 00:
Yeah, posts or engagement numbers.

[00:06:54] Speaker 02:
And one knob moves one post on the end of the three, and then the other knob moves the other end post, right?

[00:07:06] Speaker 02:
So I guess what I'm trying to think is I don't where in

[00:07:13] Speaker 02:
the 928, is there a single action that's moving more than one post simultaneously?

[00:07:19] Speaker 00:
So in paragraph 36, which is on 1800 of the appendix, the 928 discloses that when a knob is turned, guide tubes 102 and 104 will be moved closer together, resulting in compression, or will also be pushed apart, resulting in distraction.

[00:07:36] Speaker 02:
And when they're being moved together or pushed apart, it's really one post that's moving

[00:07:44] Speaker 02:
And the other one is the center one just stays stationary the whole time.

[00:07:48] Speaker 00:
Is that right?

[00:07:49] Speaker 00:
When turning one knob, it moves them apart by holding one and then moving them.

[00:07:54] Speaker 00:
But you're talking about moving vertebrae in order to treat a spinal deformity.

[00:07:59] Speaker 00:
It also separately discloses in paragraph 55 the situation of a treatment of spondylolisthesis, where there would be perpendicular pressure applied downward or upward in order to treat that.

[00:08:11] Speaker 02:
That's the paragraph that the board did

[00:08:14] Speaker 02:
pretty exhaustive treatment in analyzing your argument about whether that was going to be causing some form of derotation, right?

[00:08:24] Speaker 02:
And it concluded that no, it doesn't.

[00:08:27] Speaker 00:
Well, what they specifically said was it does appear to disclose pressing downward or upward from the posterior of the patient.

[00:08:35] Speaker 00:
They did not controvert what is the basic physical principle, that if you're pressing down on one side of something, the other side is going to come up.

[00:08:43] Speaker 00:
And if you pull up on it, the other side's going to go down.

[00:08:45] Speaker 00:
But that's not rotation.

[00:08:48] Speaker 00:
That is rotation, Your Honor.

[00:08:49] Speaker 00:
That's absolutely rotation.

[00:08:52] Speaker 00:
You're rotating the vertebrae about the spine.

[00:08:54] Speaker 00:
This is very clearly illustrated in the video, regardless of whether we consider it prior art or not.

[00:08:59] Speaker 00:
If you look at the end of part three of the video, the surgeon very clearly, when they talk about derotation forces, pulls up on the screw, and you see this side of the vertebrae go up, the other one goes down.

[00:09:10] Speaker 00:
And then at the beginning of part four,

[00:09:11] Speaker 00:
The surgeon pushes down on the screw and this side goes down and that one goes up.

[00:09:15] Speaker 00:
That is rotation.

[00:09:17] Speaker 02:
Before we lose you and you have to sit down, if we were inclined to affirm the finding of patentability or no preponderance of evidence that they're unpatentable, do we have to reach the publication issue?

[00:09:37] Speaker 02:
Because I'm trying to figure out to what extent is there

[00:09:40] Speaker 02:
some kind of daylight and disclosure between the video and slides versus M-TOS?

[00:09:47] Speaker 00:
It goes to the point we've been discussing, Judge Chen, which is simultaneous rotation.

[00:09:51] Speaker 00:
If Your Honor thinks that simultaneous rotation was not somehow disclosed or evident from the knowledge of one of skill in the art, from the 928 and M-TOS, the video most assuredly shows simultaneous rotation.

[00:10:07] Speaker 00:
And you see that at the beginning of part seven of the video.

[00:10:09] Speaker 00:
The surgeon's left hand grasps two of the derotators simultaneously.

[00:10:14] Speaker 00:
The right hand is pushing down on the rib hump, and they're turned at the same time.

[00:10:18] Speaker 00:
So to the extent, Your Honor is uncomfortable with finding that the skilled artisan would have combined MTOS and the 928 to produce simultaneous rotation using the same mechanical link, which is not just the knob.

[00:10:32] Speaker 00:
You can press on the knob, obviously.

[00:10:33] Speaker 00:
You can also press on the mechanical linkage, and that will achieve simultaneous rotation by moving them together.

[00:10:39] Speaker 00:
If the court's not satisfied with that, then the video very clearly shows signs of exhortation.

[00:10:43] Speaker 02:
So then to the legal issue of whether the video and the slide are in fact printed publications, it appears that the board felt like your side just didn't do enough to explain why these various meetings with, you know, or at least it appears that the board believed that these were all rather small closed meetings

[00:11:08] Speaker 02:
that didn't have enough of an indicia that they were open and free and that the people there would be inclined to share whatever they learned in these closed meetings.

[00:11:24] Speaker 02:
Why isn't that determination or finding support by substantial evidence?

[00:11:29] Speaker 00:
On the legal issue, these disseminations were

[00:11:34] Speaker 00:
eminently broader than the disseminations in which this court has found them to be enough, like Garrett or MIT or enhanced security research.

[00:11:42] Speaker 00:
In MIT, the paper was only given out to six people.

[00:11:46] Speaker 00:
Here, it was given out to dozens of people with no restriction on dissemination, and the board never found otherwise.

[00:11:52] Speaker 03:
So one of the differences, I think, but I remember the cases, is that it is at least fair to read all the previous cases about

[00:12:04] Speaker 03:
small numbers of recipients of an actual distribution as speaking of distribution to ordinary skilled artisans.

[00:12:14] Speaker 03:
And I took it that the reason that a board thought this case wasn't covered by that was that you had a much more select group.

[00:12:26] Speaker 03:
Is that a legal error?

[00:12:28] Speaker 03:
If the video and the slides were handed out

[00:12:34] Speaker 03:
to 50 super experts, not mere ordinary artisans, would that as a legal matter mean that it wasn't a publication?

[00:12:46] Speaker 00:
I think it's a legal error and a factual error.

[00:12:48] Speaker 00:
It's a factual error because the board conflated all these different meetings together, whereas only one of them was a meeting of the Spinal Deformity Study Group

[00:12:57] Speaker 03:
On that factual point, what is your evidence that the Colorado and St.

[00:13:03] Speaker 03:
Louis meetings were more open than the Scottsdale meeting?

[00:13:08] Speaker 00:
Ms.

[00:13:08] Speaker 00:
Owens' declaration, she's the one who organized those meetings, presents them as medical education courses.

[00:13:14] Speaker 00:
I can find it, Your Honor.

[00:13:23] Speaker 00:
I can find it on rebuttal if I can't get it now.

[00:13:26] Speaker 00:
Ms.

[00:13:27] Speaker 00:
Owens makes very clear that she's the one who organizes the medical education conferences.

[00:13:31] Speaker 00:
Whereas Mr. Poley, David Poley, separately testified, he organizes the SDSG conferences.

[00:13:37] Speaker 00:
And all the statements about who was invited to the SDSG are covered by Mr. Poley's declaration.

[00:13:42] Speaker 00:
Ms.

[00:13:43] Speaker 00:
Owens is separate.

[00:13:44] Speaker 00:
On the legal point, I don't think this court has ever said... Why isn't that an issue of fact?

[00:13:49] Speaker 01:
for us rather than what is the legal aspect of that discussion?

[00:13:54] Speaker 00:
Coming to that Judge Plager.

[00:13:55] Speaker 00:
So the legal problem is simply, and this is why I don't think it matters which conference we're talking about.

[00:14:02] Speaker 00:
I don't think this court has ever said that disclosure in order to amount to a dissemination of a prior reference needs to be to someone who meets the baseline level of ordinary skill in the art.

[00:14:14] Speaker 00:
As long as the people who get it

[00:14:16] Speaker 00:
have ordinary skill in the art or more, and have no restriction on disseminating it, which is the situation here.

[00:14:24] Speaker 00:
Because the person of ordinary skill is a hypothetical construct.

[00:14:27] Speaker 00:
It doesn't actually exist.

[00:14:28] Speaker 00:
It's not as though someone needs to go out and find a person who exactly meets the specifications of the ordinary skill and say, here's this document that I want to make available to you.

[00:14:40] Speaker 00:
As long as it's made to the interested public who will be interested in the subject matter,

[00:14:46] Speaker 00:
It doesn't matter whether they are the baseline level of ordinary skill or a higher level of ordinary skill, which is why this issue has never been broached in any of the cases this court has talked about.

[00:14:55] Speaker 00:
In MIT, the court didn't say, well, the six people who received it were the absolute baseline of ordinary skill.

[00:15:01] Speaker 00:
It just mattered that they weren't ordinary lay members of the public who wouldn't have absorbed or cared about the content.

[00:15:06] Speaker 00:
Here the people who received it were all spinal surgeons and had no restriction on their ability to disseminate.

[00:15:12] Speaker 00:
That said,

[00:15:13] Speaker 00:
I think this court does not necessarily need to reach this because the combination of MTOS, which discloses everything, with the simple mechanical linkage between multiple posts, keep holding them together so that they can be moved simultaneously in order to free up a surgeon's hand and distribute the force to avoid damage and deformation.

[00:15:33] Speaker 00:
Again, evidence nowhere rebutted by Dr. Barry and certainly not disbelieved by the board.

[00:15:38] Speaker 00:
is a sufficient basis to reverse and direct entry of judgment of unpatentability for all the claims.

[00:15:44] Speaker 00:
Unless the court has further questions, I reserve the balance of my time.

[00:15:48] Speaker 03:
You'll get three, which is even more.

[00:15:57] Speaker 04:
May it please the court?

[00:15:59] Speaker 04:
Good morning.

[00:15:59] Speaker 04:
I'm John O'Mahoney here on behalf of Dr. Mark Barry.

[00:16:02] Speaker 04:
Let me take the arguments in reverse and talk a little bit about the slides.

[00:16:07] Speaker 04:
So the argument before the board was only presented in the reply to petitioners' petition.

[00:16:15] Speaker 04:
It's at Appendix 1268.

[00:16:16] Speaker 04:
And what they said was that here the unwritten testimony establishes the video and slides were in fact disseminated.

[00:16:23] Speaker 04:
And they provide a string site of a bunch of different places in the record.

[00:16:26] Speaker 04:
But that's the only evidence the board saw.

[00:16:27] Speaker 04:
So a lot of the arguments that you're hearing are different than what the board heard.

[00:16:31] Speaker 02:
Well, in their petition, they pointed out that these were all

[00:16:36] Speaker 02:
presented at three different meetings across America to several different spinal surgeons.

[00:16:43] Speaker 02:
And so I think they made at least some prima facie level of a case that that's why they were prior art references, because they were disseminated.

[00:16:55] Speaker 02:
They were literally handed out to several dozen spinal surgeons across America.

[00:17:03] Speaker 04:
Judge, can I disagree?

[00:17:04] Speaker 04:
Exhibit 1003 was the only exhibit they presented with the petition.

[00:17:08] Speaker 04:
The other two binders were presented with as supplemental evidence in response to our objections to their petition.

[00:17:14] Speaker 04:
So they did make statements, but without the supporting evidence.

[00:17:18] Speaker 04:
I also point out that the St.

[00:17:19] Speaker 04:
Louis meeting, I realized this when I looked at the reply, the gray brief at page 22,

[00:17:24] Speaker 04:
Saleless meeting was in fact an SDSG meeting.

[00:17:26] Speaker 04:
It was also limited to that small group, but the board made that finding at the decision.

[00:17:32] Speaker 02:
That's hard for me to tell whether the board actually made that fact finding.

[00:17:37] Speaker 02:
I mean, the other side was pointing to deposition testimony from polling as well as declaration evidence saying, look, there were three meetings, but there are two categories of meetings.

[00:17:49] Speaker 02:
There's two buckets of meetings.

[00:17:52] Speaker 02:
study group where there is some elite members of the field that are exchanging information and commenting on each other's information and so maybe that looks more like a closed peer group peer review kind of get together and that was organized by Mr. Poling.

[00:18:10] Speaker 02:
Then there's the second category which is appeared to be organized by the logistics coordinator of you know

[00:18:19] Speaker 02:
medicine education meetings which is Ashley Owens and she's saying that's a different thing where these are not study group meetings and there were dozens of spinal surgeons that were invited to these and it's not clear to me at all that the board considered this argument that these were two different buckets of meetings and then explained why

[00:18:46] Speaker 02:
It wasn't satisfied that by Medtronic's arguments and statements and declarations and depositions that those were not studied group meetings and so therefore have to be considered differently than perhaps the more closed members-only study group meeting.

[00:19:02] Speaker 04:
I would disagree with that.

[00:19:03] Speaker 04:
The board did look at the evidence underlying it.

[00:19:06] Speaker 04:
Some of the evidence, for instance, that Medtronic cites the proposition that these different buckets

[00:19:11] Speaker 04:
They were prepared differently, as for instance, Mr. Poley's testimony at appendix 4153 and 4154.

[00:19:18] Speaker 04:
All he's saying there is how he prepared the binders.

[00:19:21] Speaker 04:
It says nothing about who attended the group.

[00:19:24] Speaker 04:
What the board found is the electronic did not come forth with enough evidence to show who attended the group and how one of ordinary skill in the art with reasonable diligence or exercising reasonable diligence would have access to these.

[00:19:34] Speaker 04:
So the board went through exhaustively and looked at that.

[00:19:38] Speaker 04:
The other point

[00:19:39] Speaker 03:
In the buckets argument is that- Is this undisputed?

[00:19:43] Speaker 03:
What did the board find, if anything, about whether the recipients of the slide video at Scottsdale were under any restriction about what they could do with it?

[00:19:55] Speaker 04:
So the board made findings about the spinal deformity study group.

[00:20:01] Speaker 04:
The Scottsdale program and the St.

[00:20:02] Speaker 04:
Louis program are both spinal study deformity groups.

[00:20:06] Speaker 03:
Did it make a finding about whether there was a restriction or even an expectation of non-sharing with anybody that the members would care to do when they got home?

[00:20:19] Speaker 04:
They made a finding that the members of that were limited to this selected group and that there's no evidence in the record that it was distributed to anyone else or available to anyone else.

[00:20:30] Speaker 04:
So why is a legal matter should that matter?

[00:20:33] Speaker 04:
I don't think it should.

[00:20:35] Speaker 04:
I don't think

[00:20:37] Speaker 04:
I think the board reached the factual findings based on what it had.

[00:20:40] Speaker 04:
It just simply did not have enough information.

[00:20:42] Speaker 04:
I don't think there's a legal error.

[00:20:44] Speaker 04:
The board looked at everything it did and tried to ascertain whether one of Skill in the Arc could, with reasonable diligence, access the video on the slides and found that they didn't have enough evidence to support that.

[00:20:54] Speaker 02:
Well, I guess I'm confused by a few different things.

[00:20:57] Speaker 02:
One appears to be the idea that the board might have latched onto that in the study group, we had, say, the top 20 spinal surgeons of America.

[00:21:07] Speaker 02:
And they were the ones that were going to this meeting and learning about new and interesting things.

[00:21:14] Speaker 02:
Why wouldn't one of ordinary skill in the art who wants to learn more about any techniques in spinal surgery want to try to consult one of the top 20 spinal surgeons of America to see if they had any information about the latest techniques?

[00:21:31] Speaker 02:
That seems almost like the most common source that you would go to.

[00:21:36] Speaker 02:
And lo and behold, these 20 surgeons, in fact, had CDs and slides of Dr. Lenke's latest technique.

[00:21:46] Speaker 04:
And Judge, what you're saying sounds perfectly reasonable.

[00:21:48] Speaker 04:
It makes perfect sense.

[00:21:49] Speaker 04:
The problem is there's no evidence in the record to support that.

[00:21:51] Speaker 04:
And so the board did not have that.

[00:21:53] Speaker 04:
Medtronic did not provide that.

[00:21:55] Speaker 04:
There's no testimony from a surgeon saying, I'm just a run-of-the-mill surgeon, and these are the people to whom I would look.

[00:22:00] Speaker 02:
I understand that, but I'm trying to understand what the board keyed off on, ultimately, in concluding that this wasn't a printed publication.

[00:22:09] Speaker 02:
And if the pivot point is that, well, these were the Hall of Fame Spinal Surgeons of America only, and so therefore that's not enough.

[00:22:25] Speaker 02:
I don't know if that's correct, if there was no attached expectation of confidentiality in whatever was being discussed in such a meeting.

[00:22:40] Speaker 02:
And I think that's the concern.

[00:22:43] Speaker 04:
And I understand that concern, and all I can say is that the board looked at all the evidence before it and reached a conclusion.

[00:22:50] Speaker 04:
I don't know what else they would have looked at.

[00:22:52] Speaker 04:
I understand it's possible that physicians could have accessed that information.

[00:22:56] Speaker 02:
Well, they could have talked about, was there a reasonable expectation of confidentiality in the materials that were distributed in Scottsdale, in St.

[00:23:05] Speaker 02:
Louis, and in Colorado Springs?

[00:23:08] Speaker 02:
We have Dr. Lenke, who has said in one declaration, there was no restriction on the people that received the materials in Colorado,

[00:23:20] Speaker 02:
or in St.

[00:23:20] Speaker 02:
Louis.

[00:23:22] Speaker 02:
And then they also, on that side, argue that those were not study group meetings.

[00:23:26] Speaker 02:
Those were broader medical education meetings where, you know, spinal surgeons registered for that.

[00:23:34] Speaker 02:
And it totals up to 75 different spinal surgeons that were not within the study group.

[00:23:40] Speaker 02:
That's something that I didn't see the board actually confront and address.

[00:23:45] Speaker 04:
And the second point is not correct, because the St.

[00:23:47] Speaker 04:
Louis meeting was, in fact, an SDSG meeting.

[00:23:49] Speaker 04:
Well, Colorado.

[00:23:50] Speaker 03:
Sorry?

[00:23:51] Speaker 03:
Isn't Colorado the one that I don't think you mentioned that yet?

[00:23:54] Speaker 04:
I'm sorry, Your Honor.

[00:23:55] Speaker 04:
Yes, the Colorado one is the one that we're discussing.

[00:23:58] Speaker 01:
If we look at this as a question of fact, were these two items, the video and the slides, were they publicly available?

[00:24:11] Speaker 01:
Our question then is a substantial evidence in the record to support the board's conclusion.

[00:24:21] Speaker 01:
Would Medtronic have a burden to show that they were publicly available?

[00:24:28] Speaker 04:
Yes, it's Medtronic's burden throughout the proceeding to show that the claims are unpatentable and including the burden to present sufficient evidence to show that they were publicly available and so were priority.

[00:24:37] Speaker 01:
So in the absence of evidence that they were publicly available, how do we end up with treating this board's fact finding?

[00:24:49] Speaker 04:
So you affirm the board's fact finding based on substantial evidence?

[00:24:52] Speaker 04:
You looked at the evidence they had and reached a conclusion based on that evidence?

[00:24:55] Speaker 02:
Hypothetically, if there was one meeting, the Colorado meeting, and there were 51 attendees, and then six of the 51 received a copy of the video,

[00:25:08] Speaker 02:
Would that be a printed publication?

[00:25:12] Speaker 04:
I think it depends on what the underlying evidence is about whether that was available.

[00:25:15] Speaker 02:
Because that's the facts of MIT.

[00:25:18] Speaker 04:
Right.

[00:25:18] Speaker 04:
But there are other facts of MIT, I believe, although I don't have to memorize about how that was potentially available.

[00:25:24] Speaker 02:
It's a very short opinion.

[00:25:25] Speaker 02:
It says 50 to 500 attendees of a conference and six people walked away with the paper.

[00:25:30] Speaker 02:
And that was good enough to be a printed publication.

[00:25:32] Speaker 04:
But the evidence in our record is different in that you were limiting the participation in the meetings.

[00:25:37] Speaker 04:
I think that's why it's different.

[00:25:39] Speaker 03:
Well, again, that, I guess, gets back to my question.

[00:25:42] Speaker 03:
I'm still not really sure why that should matter.

[00:25:46] Speaker 03:
If the 20 top spinal surgeons had the information and they were under no restriction about what to do with it, why does that not, as a matter of law, establish that it is publicly accessible?

[00:26:04] Speaker 04:
Because we don't know.

[00:26:06] Speaker 03:
Unless you had evidence, for example, that said, no, no,

[00:26:09] Speaker 03:
You don't know spinal surgeons.

[00:26:10] Speaker 03:
They never tell anybody what they have recently learned, because they'll lose business.

[00:26:16] Speaker 04:
I don't know.

[00:26:17] Speaker 04:
The reason, I think, is because there's no evidence in the record that it was available outside that small group.

[00:26:22] Speaker 04:
I'd also say that Dr. Linke treated it.

[00:26:26] Speaker 03:
I guess I'm going to ask this one more time.

[00:26:30] Speaker 03:
Why is that small group not enough?

[00:26:33] Speaker 01:
Why is that not public?

[00:26:35] Speaker 04:
Because none of them are skilled in the art.

[00:26:37] Speaker 04:
They are extraordinarily skilled.

[00:26:39] Speaker 04:
So you don't have a person of ordinary skill in the art as Dr. Leakey defined it.

[00:26:42] Speaker 02:
So if it was 20 ordinary, ordinary spinal surgeons, that would be okay?

[00:26:50] Speaker 04:
I think potentially, yeah, depending on the facts, it could be, yes.

[00:26:56] Speaker 04:
I'd like to move briefly, if I may, to a couple of other issues.

[00:26:59] Speaker 04:
Judge Chen, you asked about the handles in the 928 device.

[00:27:04] Speaker 04:
Yeah.

[00:27:04] Speaker 04:
928 application.

[00:27:05] Speaker 04:
The board made a specific finding that in order to move

[00:27:08] Speaker 04:
multiple vertebrae, you'd have to move two of the handles, as you suggested.

[00:27:12] Speaker 04:
So you twist one handle, it moves one vertebrae in relation to the other.

[00:27:16] Speaker 04:
You move a second handle, it moves the other one.

[00:27:20] Speaker 04:
I think that's important because one of the things that Metronik has done is they've separated the claim into snippets and then tried to show how the snippets of the claim are shown in various prior references.

[00:27:29] Speaker 04:
But what the claim requires is that a handle means that's linked to multiple screw engagement members is manipulated, is pushed,

[00:27:36] Speaker 04:
such that it rotates multiple vertebrae simultaneously to ameliorate or achieve an amelioration of a spinal column deviation.

[00:27:45] Speaker 04:
So you have to push the handle or the handles to rotate the spine and then achieve essentially a fix to the spinal.

[00:27:53] Speaker 04:
So it's important to recognize that the 928 doesn't show that.

[00:27:56] Speaker 04:
The evidence of record that talks about spondylolisthesis and whether or not there's a rotational component to spondylolisthesis shows that, and I don't think this is disputed,

[00:28:04] Speaker 04:
Spondylolisthesis is a slippage of one vertebrae forward.

[00:28:09] Speaker 04:
And so the board said when you reduce that, if you try to pull it back, and they credited Dr. Yasser's testimony, they said there's no significant or meaningful rotation of the spine to do that.

[00:28:20] Speaker 04:
They made a factual finding that you're not rotating the spine.

[00:28:24] Speaker 04:
The reason meaningful makes a difference is because you're not rotating the spine to achieve the amelioration of the spinal condition.

[00:28:30] Speaker 04:
But even if you assume the Medtronic was correct, that any rotation whatsoever that was involved in amelioration of the condition somehow met the claim limitation, it's still not clear from the record how reducing one vertebrate back to the location it was at would set a claim element that requires manipulating a handle means in order to rotate multiple vertebrates to ameliorate the spinal condition.

[00:28:52] Speaker 04:
That's why the board focused on incidental.

[00:28:55] Speaker 04:
And that's why it makes a difference in the board's finding.

[00:28:58] Speaker 04:
And then finally, I'll say, I think, well, not quite finally, if I may, on the MTOS connection, we made the argument in the red brief at 46 that Dr. Linky never explained how one would change the MTOS based on the teachers of 928.

[00:29:14] Speaker 04:
We argued that if one of us still never picked up the 928, they wouldn't rotate with it because it's small and for all those various reasons the board found.

[00:29:21] Speaker 04:
But we also said Dr. Linky never explained himself.

[00:29:24] Speaker 04:
In the gray brief, Metronik characterized that as astounding.

[00:29:29] Speaker 04:
Excuse me.

[00:29:30] Speaker 04:
Mouth dry.

[00:29:31] Speaker 04:
Astounding.

[00:29:32] Speaker 04:
And they point to paragraph 87 of Linkey's declaration.

[00:29:36] Speaker 04:
And there's a lot of ellipses in that quote because they're pulling little parts of the quote out.

[00:29:40] Speaker 04:
But I'll note in paragraph 53, that's in appendix 1478, Linkey says the 928 device and the NMTOS device are interchangeable.

[00:29:50] Speaker 04:
In light of that, I don't know why you'd modify either one of the devices if they're interchangeable.

[00:29:54] Speaker 04:
And then the paragraph that they refer to, paragraph 87, at appendix 1510 through 1511, there's four sentences there.

[00:30:01] Speaker 04:
He begins by saying, it would have been obvious to modify the device shown in the video, the slides, the EMTAS chapter, and SUC, such that the individual handles were linked together in view of the teachings of the 928, the 568, and the 349.

[00:30:14] Speaker 04:
He continues to say, the link give the handles by some mechanical means,

[00:30:19] Speaker 04:
to ensure the same type of movement would have been a simple and obvious modification in view of the express teachings of the 349, the 928 by itself or as modified by the 568 or the 568 by itself to link the handles.

[00:30:31] Speaker 04:
This is a simple application of the well-known use of handles and mechanical linking of handles in similar extensions or other mechanical items to further facilitate their movement

[00:30:43] Speaker 04:
using fewer hands, less force, more safely distributing that force, or more evenly applying that force, et cetera.

[00:30:50] Speaker 03:
Do I take it your point is that the board simply was not required to credit what I think you just tried to convey by reading as a fairly complicated story?

[00:31:01] Speaker 04:
I think it's not only complicated, but it doesn't explain anything.

[00:31:04] Speaker 04:
It just recites all the different prior in the record in a big grab bag.

[00:31:08] Speaker 04:
But I guess the point is,

[00:31:11] Speaker 02:
I guess linking these different posts together was known, and they were out of 928, so why wouldn't it be obvious to do that, and then to get the result of being able to move these different things at the same time?

[00:31:31] Speaker 02:
One more time, may I answer?

[00:31:32] Speaker 02:
Yeah.

[00:31:32] Speaker 04:
Yeah.

[00:31:33] Speaker 04:
So there are metronome pulling together, but they're different ideas.

[00:31:38] Speaker 04:
One is you've got the 928 device.

[00:31:40] Speaker 04:
So why would one of Skill in the Art, looking at this device, that by the text of the application says it's small, they're moving away from larger devices.

[00:31:49] Speaker 02:
But you see the brackets right there in the figure.

[00:31:52] Speaker 04:
Right.

[00:31:52] Speaker 04:
And so why would you use that device over in the other one, those linkages?

[00:31:55] Speaker 04:
One of Skill in the Art is unlikely to do that.

[00:31:58] Speaker 04:
There's no explanation in Linkey's declaration for why that would happen.

[00:32:02] Speaker 04:
So you move to the MTOS device, and you look for a reason, some sort of rationale, why would you link them together?

[00:32:10] Speaker 04:
And if you could do it, is there an expectation of success?

[00:32:13] Speaker 04:
How would you do it?

[00:32:14] Speaker 04:
Some sort of rationale for what you're trying to accomplish.

[00:32:17] Speaker 04:
There's simply nothing in the record that supports that.

[00:32:19] Speaker 04:
The board was right to credit Dr. Yassir and not credit Dr. Lenke.

[00:32:22] Speaker 04:
And they're finding that this was not obvious and the claims are valid.

[00:32:28] Speaker 04:
If that's all, thank you, Your Honor.

[00:32:29] Speaker 04:
Thank you.

[00:32:33] Speaker 03:
Mr. Fleming, three minutes.

[00:32:37] Speaker 00:
Thank you, Judge Sharonto.

[00:32:39] Speaker 00:
Taking the last point first.

[00:32:41] Speaker 00:
It's not as though the board looked at the information, the declaration of Dr. Lenke that Mr. Alemanni just read and said, we find this not credible, or that there's some evidence on the other side that says that somehow linking these posts and MTOS together would have been beyond the skill of an ordinary skilled artisan.

[00:32:59] Speaker 00:
There's no discussion of it at all.

[00:33:00] Speaker 00:
That's the fundamental problem.

[00:33:02] Speaker 00:
They stopped once they decided that MTOS itself did not disclose a linkage and did not consider

[00:33:08] Speaker 00:
There's no finding either way.

[00:33:09] Speaker 00:
I'm not challenging a finding of the board because there wasn't one.

[00:33:11] Speaker 00:
There's a conclusory statement that one wouldn't have modified MTOS by adding a simple linkage as disclosed in the 928, but they don't explain it.

[00:33:20] Speaker 03:
I know that you don't have much time.

[00:33:22] Speaker 03:
I'd like you to switch back to this troublesome publication issue.

[00:33:26] Speaker 03:
How are we to think about the hypothetical of one meeting, 20 top spinal surgeons,

[00:33:34] Speaker 03:
They're not told not to do anything with what they take away from the meeting.

[00:33:41] Speaker 03:
And that's all we know.

[00:33:43] Speaker 03:
And we don't know anything in the record about whether spinal surgeons, top spinal surgeons would, if asked by a mere ordinary person, say, oh, here, share this or not.

[00:33:55] Speaker 00:
I don't think this court has ever suggested, and certainly no case has been cited suggesting that that matters.

[00:34:00] Speaker 00:
As long as the reference has been disseminated,

[00:34:03] Speaker 00:
to the interested public, to people who are most interested in the subject matter.

[00:34:08] Speaker 01:
Isn't there some expectation that the interested public can locate that source and share it without having to get somebody's permission?

[00:34:20] Speaker 01:
Isn't that the assumption?

[00:34:22] Speaker 01:
In order for it to be public, doesn't it have to be available to anyone who would like to locate it and read it or learn from it?

[00:34:30] Speaker 00:
I would agree with that, Judge Plager, with the proviso that they have to exercise reasonable diligence, and I don't think this court has ever said that dissemination is refuted by the fact that you have to get it from someone else.

[00:34:41] Speaker 00:
For instance, in Garrett, it was distributed to six commercial companies without restriction on what they did with it.

[00:34:48] Speaker 00:
In enhanced security research, the only way to get it was to request it from one or two companies.

[00:34:54] Speaker 00:
Now here, you could have gotten it from Medtronic.

[00:34:57] Speaker 03:
So at least as I understood Judge Plager's question, which is maybe just a version of a question that I've had in my mind, I thought you needed to say to disagree with Judge Plager about the requirement that any old ordinary artisan would be able to get it through reasonable diligence.

[00:35:14] Speaker 03:
I thought your position is when you have 20 top spinal surgeons, they have it.

[00:35:21] Speaker 03:
They can do anything they want with it, but they're not going to share it at all.

[00:35:26] Speaker 03:
that that's still a publication.

[00:35:28] Speaker 00:
I think it would be.

[00:35:29] Speaker 03:
So that the ordinary artisan couldn't get it.

[00:35:32] Speaker 00:
No, I think an ordinary artisan, I mean in this case the record is the ordinary artisan, anyone could get it from the attendees of the conference and also they could get it by asking for it from Medtronic.

[00:35:44] Speaker 00:
That's possible but there's no evidence that happened.

[00:35:46] Speaker 00:
It doesn't need to have happened as long as it's available.

[00:35:49] Speaker 00:
It needs to be disseminated in a way that makes it available to someone of ordinary skill.

[00:35:54] Speaker 01:
But you don't actually have to point... What was the evidence that was available beyond the people in the room?

[00:36:00] Speaker 00:
Well, the people in the room, themselves, it doesn't have to be available to everybody of ordinary skill in the art.

[00:36:07] Speaker 00:
It just has to be made available to a significant portion of the interested public.

[00:36:11] Speaker 00:
That's the court's decision in Cooper Cameron.

[00:36:13] Speaker 00:
And these people qualify

[00:36:15] Speaker 00:
Just as the recipients in MIT qualified, there were only six of them.

[00:36:19] Speaker 00:
Also, Dr. Yasser, Barry's expert in this matter, admitted on 3762 that it wasn't unusual to get this information from device companies themselves about new devices and instruments.

[00:36:30] Speaker 00:
This information could have been gotten directly from someone at Medtronic.

[00:36:33] Speaker 00:
So even a taking, which I agree, Judge Toronto, we don't need to agree with Judge Plager's position.

[00:36:38] Speaker 00:
But even if that is the court's view of what is required, it was satisfied here.

[00:36:42] Speaker 02:
Here's my concern.

[00:36:45] Speaker 02:
I don't think the board ever reached the question of whether there was some expectation of confidentiality in any of the three meetings.

[00:36:52] Speaker 02:
But right now, it doesn't appear from the record that I've looked at that the ball has moved one way or the other on that.

[00:37:02] Speaker 02:
Was there an expectation of confidentiality, or was there not?

[00:37:07] Speaker 02:
And so there's a silence on that.

[00:37:13] Speaker 02:
That's a piece of information I think that would be very helpful for the fact finder to know.

[00:37:17] Speaker 02:
But there isn't it.

[00:37:18] Speaker 02:
We know that you're saying that there was no legal restriction on the people of St.

[00:37:24] Speaker 02:
Louis and Colorado.

[00:37:27] Speaker 02:
But that doesn't quite answer the question of why there was possibly still an expectation of keeping everything private.

[00:37:37] Speaker 02:
I think that's the court.

[00:37:39] Speaker 02:
The distinction between a legal restriction versus just a more cultural expectation of keeping things closed.

[00:37:46] Speaker 00:
I think this court has said on various occasions that the approach to public availability of prior references is broad because the policy is we don't want someone to be able to get a patent on something that's already in the public domain.

[00:38:00] Speaker 00:
And as long as something is disseminated to a group of people who are interested in the subject matter,

[00:38:06] Speaker 00:
Unless there's some reason to think that there was a restriction on their ability to do it, then that is a dissemination for purposes of public availability.

[00:38:15] Speaker 00:
Otherwise, you would have situations where there was a dissemination to many more people, as happened in MIT or in Garrett.

[00:38:22] Speaker 00:
And simply because no one said, well, there was a specific statement made at this conference that you should feel free to share everything you say, that all of a sudden that could be withdrawn from the public domain of one of skill in the art

[00:38:35] Speaker 00:
simply because there hadn't been some specific statement.

[00:38:38] Speaker 01:
For the record, a question is not a position.

[00:38:41] Speaker 00:
It's only a question.

[00:38:42] Speaker 00:
You're quite right, Judge Plager.

[00:38:43] Speaker 00:
If I misspoke, I apologize.

[00:38:45] Speaker 00:
I meant the premise inherent in your question.

[00:38:48] Speaker 00:
I certainly didn't need to suggest Your Honor had prejudged the issue.

[00:38:51] Speaker 00:
Thank you for your correction.

[00:38:53] Speaker 03:
Thank you.

[00:38:54] Speaker 00:
And the case is submitted.

[00:38:55] Speaker 00:
Thanks to all counsel.

[00:38:56] Speaker 00:
Thank you, Your Honor.