[00:00:02] Speaker 04: The United States Court of Appeals for the Federal Circuit is now open and in session. [00:00:07] Speaker 04: God save the United States and its honorable court. [00:00:15] Speaker 01: Good afternoon, ladies and gentlemen. [00:00:16] Speaker 01: Please be seated. [00:00:21] Speaker 01: We're very pleased to be here at Cardozo Law School, and we appreciate being invited. [00:00:27] Speaker 01: We are here because [00:00:32] Speaker 01: We are a national court. [00:00:34] Speaker 01: We have a specific jurisdiction. [00:00:36] Speaker 01: But because we're national, our statute entitles us and even encourages us to sit around the country. [00:00:46] Speaker 01: And we do that once a month. [00:00:50] Speaker 01: And so we are sitting here in New York at several law schools and at several courts. [00:00:56] Speaker 01: And we're very pleased to be here at Cardozo. [00:01:02] Speaker 01: As you know, your school bears a distinguished name. [00:01:06] Speaker 01: Justice Cardozo was a great judge. [00:01:11] Speaker 01: Your school is also distinguished by the fact that my daughter got her law degree here, and I gave a talk here maybe 20 years ago. [00:01:20] Speaker 01: I don't remember what the topic was, but it probably was the thoughts of a new judge. [00:01:26] Speaker 01: In any event, we will proceed with our arguments. [00:01:32] Speaker 01: We have four oral arguments today. [00:01:34] Speaker 01: Three of them are patent cases, which is a little unusual. [00:01:40] Speaker 01: Two from a district court and one from the Patent Office. [00:01:43] Speaker 01: We also have a case from the Court of Federal Claims involving a vaccine plaintiff. [00:01:51] Speaker 01: So let us proceed without further comment. [00:01:56] Speaker 01: Our first case is Pavo Solutions versus Kingston Technology. [00:02:01] Speaker 01: 2016-2209, Mr. Phillips. [00:02:06] Speaker 00: Thank you, Your Honor, and may it please the Court. [00:02:09] Speaker 00: I would like to address four topics, the interpretation of on and formed on, the failure of Kingston's obviousness case in light of the correct interpretation of those terms, the testimony of Mr. Bruce Pearman, and fourth, Kingston's waiver of its cross-appeal arguments. [00:02:26] Speaker 00: First, regarding the interpretation of odd, [00:02:29] Speaker 00: The board misinterpreted on for at least three reasons. [00:02:33] Speaker 00: Number one, the context of the surrounding claim language is very important. [00:02:37] Speaker 00: We're not talking about the term on in the abstract. [00:02:40] Speaker 00: We are talking about whether a hinge protuberance on the side of the case must be attached to the case. [00:02:47] Speaker 00: And the answer is yes, according to basic physics. [00:02:50] Speaker 02: So there is fundamental agreement that both sides believe that the two terms mean the same thing. [00:02:59] Speaker 02: Right? [00:02:59] Speaker 02: Correct, Your Honor. [00:03:00] Speaker 02: And both sides believe that the board erred by splitting the baby and saying one means one thing and the other means another. [00:03:07] Speaker 02: Correct, Your Honor. [00:03:07] Speaker 02: So the question is, which one of you is right? [00:03:11] Speaker 02: Not whether they're synonymous, but which one is the correct one based on the way you all believe the case should be resolved, correct? [00:03:21] Speaker 02: Correct. [00:03:22] Speaker 02: All right. [00:03:23] Speaker 02: So what is it? [00:03:24] Speaker 02: Where in the specification can you point us to anything [00:03:28] Speaker 02: that establishes that on and formed on have to be limited in the way that you describe? [00:03:35] Speaker 00: Well, the patent shows in all embodiments that the hinge protuberance is attached to the case. [00:03:42] Speaker 00: And the invention simply would not work if the hinge protuberance were somehow loose, unattached to the case. [00:03:49] Speaker 00: I'm not even sure what that would look like, but it wouldn't work. [00:03:52] Speaker 05: Couldn't it be a rotating axle? [00:03:56] Speaker 05: an actual rotating axle that comes through the two sides and the case is attached to the two ends of the axle, but nothing is attached to the cover. [00:04:12] Speaker 05: The cover is attached to the two ends of the axle, but not to the case. [00:04:16] Speaker 05: So it just spins. [00:04:18] Speaker 00: In your honor, you're describing the mats of a prior art. [00:04:21] Speaker 00: So why wouldn't it work? [00:04:24] Speaker 00: Matsumaya and the situation you've described does not have a hinge protuberance on the case. [00:04:31] Speaker 00: It's not a hinge protuberance on the case. [00:04:33] Speaker 00: It's not attached. [00:04:34] Speaker 05: It's a completely different design. [00:04:38] Speaker 05: as part of your contention for why it has to be attached that it wouldn't work if it weren't attached in it, I guess it seems to me that the rotating axle would work, so that the it doesn't work argument, I'm not quite sure what to make of it. [00:04:56] Speaker 00: Well that's a completely different design that is not contemplated by this patent. [00:05:00] Speaker 00: It's not described in this patent. [00:05:03] Speaker 00: One ordinary skill in the art would not be enabled to [00:05:07] Speaker 00: come up with an axle-based design based on the teachings of this patent. [00:05:11] Speaker 00: This patent is very specific about a particular hinge design that uses a protuberance on the case. [00:05:18] Speaker 00: That is what makes this invention so neat and why it has become a prevalent device. [00:05:27] Speaker 00: In one hand, you can rotate the cover around the case. [00:05:32] Speaker 00: It's simple. [00:05:33] Speaker 00: It's elegant. [00:05:34] Speaker 00: It's compact. [00:05:35] Speaker 00: It's a completely different principle of operation and design than an old-school traditional axle-based hinge. [00:05:43] Speaker 02: You're not claiming that there's any kind of actual lexicography in the patent, are you? [00:05:49] Speaker 00: That's right. [00:05:49] Speaker 00: The patent doesn't define what the term on or formed on means because it doesn't have to. [00:05:54] Speaker 00: Every time it talks about the hinge protuberance being on the case, it is an attached hinge protuberance. [00:06:01] Speaker 00: redundant to say it's attached. [00:06:02] Speaker 00: That was understood. [00:06:03] Speaker 00: That's what this invention is. [00:06:08] Speaker 00: Next point I'd like to make is that the proper claim interpretation standard here is the broadest reasonable interpretation. [00:06:15] Speaker 00: But that is not a license to take the broadest possible interpretation that you may find in any dictionary. [00:06:23] Speaker 00: It must be the broadest reasonable interpretation in light of the specification and is understood by one of ordinary skill in the art. [00:06:30] Speaker 00: And we were reminded of that very recently in the Inray Smith International case. [00:06:38] Speaker 05: Tell me about claim eight. [00:06:40] Speaker 05: What is it in claim eight that would require attachment of the sort that you are urging? [00:06:50] Speaker 00: So claim eight is different, Your Honor. [00:06:52] Speaker 00: Claim eight does not refer to a hinge protuberance. [00:06:55] Speaker 05: It refers to a hinge, doesn't it? [00:06:57] Speaker 00: It just says a hinge. [00:06:58] Speaker 00: It's being hinged to the case. [00:06:59] Speaker 00: It says the covers hinge to the case. [00:07:01] Speaker 05: I guess my line of thinking is claymate presumably reflects some concept of the invention covered by the speck. [00:07:12] Speaker 05: And yet, claymate is a hard one to find a notion of attachment in, which suggests that maybe the speck is not so limited. [00:07:21] Speaker 00: There is no notion of attachment recited in claymate. [00:07:24] Speaker 00: It is different in that respect. [00:07:26] Speaker 00: For every other independent claim, as well as dependent claims 11 and 12, the claim language says hinge protuberance on a side of the case. [00:07:36] Speaker 00: And that's where the claim interpretation issue comes into play, the meaning of on and formed on. [00:07:42] Speaker 00: It does not directly implicate claim eight. [00:07:45] Speaker 00: The one issue in this appeal that does implicate claim eight is the testimony of Bruce Pearman. [00:07:51] Speaker 00: He explained that at the time of the invention, [00:07:55] Speaker 00: the conventional thinking was we must completely cover USB terminals because the speed of data transmission across USB terminals had just dramatically increased 40-fold so that the one bit was encoded on a harsh portion of a signal that lasts half a billionth of a second. [00:08:13] Speaker 05: So cleanliness was particularly important? [00:08:15] Speaker 00: It was critically important, and that was the conventional thinking of the time, and that's reflected in prior art like Matsumaya and Wu. [00:08:24] Speaker 00: And he testified that one skilled in the art with this understanding would have completely covered a USB terminal. [00:08:32] Speaker 00: And that, in effect, is like a teaching way, not for the references itself. [00:08:36] Speaker 00: But one skilled in the art with that understanding would not have made the modifications to the prior art that Kingston proposed. [00:08:43] Speaker 00: And that issue is not addressed by Kingston in its briefing. [00:08:48] Speaker 00: And it requires reversal for all claims. [00:08:53] Speaker 02: part of the purpose of your own patent to keep it clean? [00:08:57] Speaker 02: Isn't that one of the features that you say makes this patent distinct? [00:09:04] Speaker 00: The cover, surprisingly, according to this invention, does an adequate job of protecting the terminals, but that was quite unexpected because the cover does not completely cover the terminals, but it's good enough. [00:09:21] Speaker 00: And like I said, it's compact it could be handled in one hand. [00:09:25] Speaker 00: It's elegant. [00:09:26] Speaker 00: It's simple easy to manufacture So it was a surprising result it was a it was a turn away from the conventional thinking So when the claims terms on and formed on are correctly interpreted in this patent then [00:09:48] Speaker 00: the obviousness contentions just don't have merit. [00:09:51] Speaker 00: But to try to salvage its case, Kingston tries to change its obviousness case. [00:09:57] Speaker 00: In its IPR petition, it argued that Matsumaya's axle is a hinge protuberance. [00:10:04] Speaker 00: And that's what we had a trial about. [00:10:07] Speaker 00: Later in the middle of the IPR, Kingston said, well, it would have been obvious to change Matsumaya's hinge design [00:10:14] Speaker 00: to make it use snap hinges instead, which are essentially hinge protuberances like the patent claims. [00:10:21] Speaker 00: And the board did not let Kingston shift grounds like that, and neither should you, because that is not the obviousness case that was put forward in the petition. [00:10:33] Speaker 00: And Kingston's argument in this regard depends upon an admission from Dr. Visser, which he did not make. [00:10:44] Speaker 00: Dr. Professor Visser was asked to draw what it would look like if you put a snap hinge on Matsumaya. [00:10:51] Speaker 00: And that is what is shown on page 4436 of the joint appendix. [00:10:56] Speaker 00: But he explained that that is what the drawing shows is not what is obvious, but what it would look like based upon hindsight. [00:11:05] Speaker 00: He said he could not have come up with that drawing had he not first been exposed to the 5-4-4 pattern. [00:11:14] Speaker 00: And finally, I do want to address the issue of waiver. [00:11:20] Speaker 00: In its notice of cross-appeal, Kingston said that it was appealing from claims 4, 5, and 13. [00:11:30] Speaker 00: The claims were that the board found to be patentable because the Kindig reference was non-analogous art. [00:11:38] Speaker 00: But yet, when they wrote their brief, everything in their cross-appeal was about claims 1, 7, and 24. [00:11:44] Speaker 00: and the interpretation of formed on. [00:11:46] Speaker 00: So this is a shift, and it's a violation. [00:11:50] Speaker 05: Say that again. [00:11:52] Speaker 05: The notice of appeals specified particular, notice of cross-appeal specified particular claims, what were they? [00:11:59] Speaker 00: Correct. [00:12:00] Speaker 00: 4, 5, and 13, and whether or not the kindig reference is analogous art. [00:12:05] Speaker 00: That is not the issue that was briefed in the cross-appeal, of course. [00:12:10] Speaker 00: And my final point here is that there is a rule on point. [00:12:14] Speaker 00: It's 37 CFR 90.2 A32. [00:12:18] Speaker 00: And it requires that a notice of appeal or cross-appeal in this type of appeal must specify the issues with enough information to allow the director to decide whether to intervene. [00:12:30] Speaker 00: And that did not happen here. [00:12:31] Speaker 00: It's a clear rule. [00:12:33] Speaker 00: It's an important rule to give the PTO solicitor an opportunity to intervene. [00:12:39] Speaker 00: and for your honors to have the benefit of the PTO's thoughts in appropriate issues. [00:12:46] Speaker 00: And it was clearly violated here. [00:12:49] Speaker 00: So for that reason, I would ask your honors not to entertain the arguments about formed on and claims 1724 and their dependent claims. [00:12:58] Speaker 00: Unless there are further questions, I'd like to reserve the rest of my time for rebuttal. [00:13:02] Speaker 01: We will do that, Mr. Phillips, Mr. Hoffman. [00:13:05] Speaker 01: Thank you. [00:13:14] Speaker 04: May it please the court, David Hoffman for Kingston, the appellee, and cross-appellant. [00:13:20] Speaker 04: Mr. Phillips addressed issues both from their original appeal as well as our cross-appeal, so with the original, addressed it the same way. [00:13:30] Speaker 04: I think this really both in the way Mr. Phillips is arguing and the way that the PTAB addressed it is a classic case of reading in an embodiment from the specification into the claims, and that's particularly [00:13:44] Speaker 04: the wrong answer when you're dealing with the PTAB where the standard is broadest reasonable construction. [00:13:52] Speaker 02: With respect to the process point, was it a problem for the PTAB not to construe on until its final written decision without providing the parties any opportunity to respond to that? [00:14:06] Speaker 04: I think it's okay, Your Honor. [00:14:07] Speaker 04: The underlying issues were debated by the parties and [00:14:12] Speaker 04: The meaning of on needed to be addressed in rendering a decision since it was disputed. [00:14:16] Speaker 04: And the parties had full opportunity at the hearing to address and argue the meaning of on. [00:14:22] Speaker 02: But do you agree with your friend on the other side that the PTAB did err in not seeing these two terms as synonymous? [00:14:32] Speaker 04: Yes, we do, Your Honor. [00:14:33] Speaker 04: We believe that, as we said in our briefing, that they should have the same meaning. [00:14:38] Speaker 04: which is their broadest reasonable interpretation. [00:14:40] Speaker 04: There's nothing in the specification that would limit that interpretation. [00:14:45] Speaker 04: And for example, we're starting with on. [00:14:48] Speaker 04: And on a side of, if I place my pen on the side of the podium, it does not mean that my pen is bonded or built as part of the podium. [00:14:58] Speaker 04: I don't think anybody would take that to be the broadest reasonable construction, a requirement to glue or build together. [00:15:06] Speaker 04: Similarly with formed on. [00:15:08] Speaker 04: And while different wording is used, importantly, there's no claim differentiation here. [00:15:11] Speaker 04: It's two ways to essentially say the same thing, like computer and computer system, or inside and put inside. [00:15:19] Speaker 02: Is there anything affirmative that you point to in the specification to show that this axle type format was encompassed within the meaning of the claims? [00:15:32] Speaker 04: Yes, Your Honor, in various places. [00:15:33] Speaker 04: But importantly, the burden here is to restrict. [00:15:37] Speaker 02: What are the various places? [00:15:38] Speaker 04: Yes, Your Honor. [00:15:39] Speaker 04: Well, it's the choice of the language. [00:15:42] Speaker 04: The specification says very clearly that it may be formed integrally. [00:15:46] Speaker 04: That's permissive language. [00:15:48] Speaker 04: And importantly there, it's the use of the word integrally there. [00:15:51] Speaker 04: The patentee knew exactly how to define an embodiment. [00:15:56] Speaker 05: where the protuberance- I'm sorry, but forming integrally is only one way of making the two things stick together, right? [00:16:03] Speaker 05: When we do it in a mold, a single mold, forming it integrally, and the other is glue or something like glue, or welding or something like that. [00:16:13] Speaker 04: There are two example ways in which you could take a protuberance and make it attached or integral. [00:16:22] Speaker 04: But clearly, I think what's important is that the patentee knew how to describe those, knew how to say, we're forming this integrally or we're gluing it. [00:16:30] Speaker 04: And yet when it came to the claims, and I think your honor points out, they drafted the claims broader. [00:16:35] Speaker 04: Claim eight doesn't have any requirement for attachment. [00:16:37] Speaker 05: Well, they claim they drafted some claims one way and some claims another way. [00:16:43] Speaker 05: And what the board said was, because we [00:16:47] Speaker 05: are not prepared to find in the spec a particular limitation to attachment, something that's favorable to you. [00:16:58] Speaker 05: We're going to start at least with the words of the claim, which actually have somewhat different connotations in breadth on the side of something positional rather than something more and formed on really doesn't sound like [00:17:17] Speaker 05: just positional, you wouldn't be using the word formed, it's something else. [00:17:22] Speaker 05: So it reached two different conclusions about the broadest reasonable interpretation of the two different phrases. [00:17:30] Speaker 04: Yes, sir. [00:17:30] Speaker 04: Two points to that. [00:17:31] Speaker 04: I would say that the broadest reasonable interpretation of formed on doesn't have that connotation. [00:17:36] Speaker 04: For example, a thunderstorm formed on the east side of the city doesn't require there be an attachment between the storm and the city. [00:17:46] Speaker 04: It may not be the most common. [00:17:48] Speaker 01: Well, context is everything, isn't it? [00:17:51] Speaker 01: It is, Your Honor, and I think that's when we go to the... Thunderstorm forming is not the same thing as a hinge. [00:17:58] Speaker 04: Your Honor, I agree, and so I think we go to the specification and look for an inconsistency with not having attachment or not having glue. [00:18:07] Speaker 04: And what you see is that something could be placed on top or have contact with and be formed on. [00:18:12] Speaker 04: There's no requirement in the specification that in order for something to be formed on, [00:18:16] Speaker 04: or for the invention to work, it needs to be bonded or integrally formed. [00:18:21] Speaker 04: And I think if this was the advantage and sort of the game-changing part of the invention that my colleague says, there would be description in the specification that described the importance of having the protuberance glued on or bonded or formed integrally with the case. [00:18:39] Speaker 04: And yet that's never there, it's simply one of [00:18:42] Speaker 04: You know, two examples, and there's another example where they don't use anything like this. [00:18:45] Speaker 05: Just to repeat, I think the board agreed with you to this extent. [00:18:50] Speaker 05: The spec doesn't limit it that way. [00:18:52] Speaker 05: And it said, we agree. [00:18:54] Speaker 05: It doesn't limit it that way. [00:18:55] Speaker 05: And different claims capture the narrower embodiment, let's call it. [00:19:01] Speaker 05: And some other claims, the mirror on the side of, are broader than that. [00:19:08] Speaker 05: But it goes claim by claim. [00:19:11] Speaker 05: I think because the words are in fact a little bit different. [00:19:14] Speaker 04: They are, Your Honor. [00:19:14] Speaker 04: I think the difference, the disagreement with the board is that if these had been dependent claims off of one another, there'd be an argument that you stagger them in that way or formed on needs to be narrower than on. [00:19:26] Speaker 04: But in this case, since the patent owner didn't choose to make that distinction and didn't choose to distinguish the two, it's two different ways, we believe, of saying the same thing, which is perfectly acceptable when you can do that. [00:19:38] Speaker 04: The patent chooses their language. [00:19:41] Speaker 04: And so you start at the same place, at the broadest interpretation, and then you look to the specification to see if there is disclaimer, to see if there is definition, or to see if there is something inconsistent with the broadest regional interpretation. [00:19:54] Speaker 04: And if there isn't, that's the construction that should be used, even if it leads to a situation where two different phrases in different claims may be construed to have the same meaning. [00:20:05] Speaker 02: As I read your petition, you pretty much put all your eggs in this basket that the construction for the two should be the same, and that it should encompass this axle that is disclosed in Matsumiya, correct? [00:20:20] Speaker 04: To be clear, Your Honor, our original petition certainly made the assertion that Matsumiya isn't limited to an axle. [00:20:27] Speaker 04: That an axle is one way. [00:20:29] Speaker 02: Well, your point was that Matsumiya discloses the axle [00:20:34] Speaker 02: And that that's enough, assuming on and formed on would cover the axon. [00:20:39] Speaker 04: Yes, Your Honor. [00:20:40] Speaker 02: So how can you argue now to us the point that the board refused to let you argue because you didn't raise it to reply, that Matsumoto should be altered in a combination with other prior art to then read on the claims? [00:21:02] Speaker 04: And again, this is the only thing that needs to be reached if the construction of the board holds. [00:21:06] Speaker 04: If the construction changes, then we believe Matsumiya obviously has no issue there with the board's decision. [00:21:13] Speaker 04: Because we asserted obviousness. [00:21:15] Speaker 04: And at the time we provided the petition, there was no construction in play yet. [00:21:20] Speaker 04: We obviously provided one, the board provided one. [00:21:23] Speaker 04: And then in response to that, given that we had asserted obviousness and that [00:21:27] Speaker 04: one of skill in the art would understand there to be a petuberance there. [00:21:30] Speaker 02: Well, the word obviousness doesn't encompass every single thing. [00:21:33] Speaker 02: I mean, the board's rules are very strict. [00:21:35] Speaker 02: You have to lay out in your petition every single ground upon which you're asserting obviousness. [00:21:41] Speaker 04: And I think that we did, Your Honor, in asserting that there's obviousness and that this limitation would be understood by one of skill in the art to be in the reference. [00:21:50] Speaker 04: All we did in follow on once we received the instructions. [00:21:52] Speaker 02: But you didn't suggest any combination of references in your petition. [00:21:57] Speaker 04: And we're still not suggesting a combination of references for this. [00:22:01] Speaker 04: There's always been a combination. [00:22:02] Speaker 04: The original petition was Matsumita in view of dung. [00:22:06] Speaker 04: That was the grounds on which the board found obviousness. [00:22:10] Speaker 04: The issue that Mr. Phillips was raising was an assertion that we had somehow waved the axle, if that's the way that the board construed the art, to be [00:22:24] Speaker 04: equivalent or obvious as a hinge protuberance, if it requires this attachment. [00:22:31] Speaker 04: And I don't think that we did. [00:22:32] Speaker 04: I think we identified very particularly that it was obviousness being relied on for this limitation. [00:22:40] Speaker 03: Does the axle in Motsumiya rotate? [00:22:45] Speaker 03: I believe it does, Your Honor, if it's an axle embodiment. [00:22:48] Speaker 03: What's that? [00:22:48] Speaker 03: If it's an axle. [00:22:49] Speaker 05: Again, our expert testified that. [00:22:51] Speaker 05: And I don't know if this is relevant, [00:22:54] Speaker 05: It seems to me one can have an axle in which the wheels spin around, but the axle doesn't itself rotate, or one can have an axle in which my two hands are attached to it and the whole thing rotates, since that's how you get the outside things. [00:23:09] Speaker 05: My hand's rotating by rotating the axle. [00:23:11] Speaker 05: Does Matsumaya cover both of those? [00:23:13] Speaker 05: One of those? [00:23:14] Speaker 04: I think it was both of them, Your Honor. [00:23:15] Speaker 04: It's not specific in the exact way it's implemented, and in fact, our expert testified that it could cover, we call it, [00:23:21] Speaker 04: posts on the end don't even go all the way through, which is exactly what the board ended up construing, formed on to mean. [00:23:32] Speaker 02: What's your response to the issue of the waiver of your cross-appeal arguments? [00:23:36] Speaker 02: I mean, your friend is right that you cite a claim in your cross-appeal notice that you never even brief, and yet you then brief your issues with respect to other claims that were not included in the notice. [00:23:49] Speaker 04: Happy to, Your Honor. [00:23:50] Speaker 04: I mean, to be clear, [00:23:51] Speaker 04: In our notice, we identified that it was an appeal from all underlying orders, decisions, and rulings of the court. [00:24:00] Speaker 04: So we did identify the claims and identifying the orders, which is a very fixed number of claims. [00:24:06] Speaker 04: And I think there's no dispute within the parties that we've satisfied the docketing and the notice requirements for this court. [00:24:13] Speaker 04: So the only issue really becomes whether or not we satisfied them in Guard Tribunal 90.2. [00:24:19] Speaker 04: And that's obviously a PTAB rule or PTO rule that specifies that they want sufficient information. [00:24:24] Speaker 02: And we noted in our brief... Well, you obviously didn't appeal from all underlying orders and rules. [00:24:30] Speaker 02: I mean, you wanted the obviousness determination to stand on whatever grounds, correct? [00:24:35] Speaker 04: Yes, Your Honor. [00:24:36] Speaker 04: So it is broad in that sense, Your Honor. [00:24:40] Speaker 04: But it does cover all of the assertions that went against us. [00:24:46] Speaker 01: Mr. Hoffman, you want to say some time for rebutting on the cross appeal? [00:24:53] Speaker 04: Yes, Your Honor. [00:24:53] Speaker 04: I'll reserve the remainder of my time. [00:24:55] Speaker 04: Thank you. [00:24:55] Speaker 01: Mr. Phillips. [00:25:05] Speaker 00: I'll be brief. [00:25:06] Speaker 00: I want to make three points. [00:25:08] Speaker 00: The first is, I think what Judge Laurie said about context being important is very important in this case. [00:25:16] Speaker 00: When Kingston's counsel talks about a pen on the table, or as he did at the oral hearing before the board, or he said, Mr. Lawrence is on my right, but he's not attached to me. [00:25:31] Speaker 00: Those are statements about meanings of the word on in totally different contexts from this patent. [00:25:38] Speaker 00: There's nothing in this patent that is so broad and abstract. [00:25:42] Speaker 00: In this patent, we're talking about a hinge protuberance [00:25:46] Speaker 00: on the side of the case to perform the function that is described and in every embodiment it is fixably attached to the case. [00:25:56] Speaker 00: That's the way the invention works. [00:25:59] Speaker 00: There's really no other way for it to work based upon what is described in the patent. [00:26:04] Speaker 00: The second point I'd like to address is the permissive language in the specification. [00:26:10] Speaker 00: The specification says that the hinge protuberance may be integrally formed on the case [00:26:16] Speaker 00: or it may be adhered on the case. [00:26:18] Speaker 00: Either way, it is attached fixedly to the case. [00:26:22] Speaker 00: There is nothing in the form of permissive language in this patent that could possibly mean that the hinge protuberance is not attached to the case. [00:26:35] Speaker 00: And then the final point I would like to address is that in Matsumaya, the board found that the axle in Matsumaya [00:26:46] Speaker 00: is not attached to the case. [00:26:49] Speaker 00: They found that it's a traditional free spinning axle, and that was the basis for the decision that the formed on claims are not obvious in view of Matsumaya. [00:27:00] Speaker 02: And am I correct that the board specifically rejected the alternative argument? [00:27:06] Speaker 02: Because it wasn't raised in the petition? [00:27:08] Speaker 00: Absolutely, Your Honor, and so should you. [00:27:12] Speaker 00: Unless there are other questions, that's all I have. [00:27:15] Speaker 01: Thank you, Mr. Phillips. [00:27:16] Speaker 01: Mr. Hoffman has a few minutes directed only to the cross appeal. [00:27:24] Speaker 04: Yes, Your Honor. [00:27:25] Speaker 04: I'll keep it brief. [00:27:28] Speaker 04: Context is important, but context shouldn't allow an embodiment from the specification to be read into the claims. [00:27:35] Speaker 04: If proceeding down that route, what you end up with is like here, a situation where what our two permissive embodiments become [00:27:44] Speaker 04: the scope of the claims. [00:27:45] Speaker 04: And I think it's important to note that there is another embodiment, which presumably practices the invention that's described, where the hinge design is different, where the hinges are swapped, where there is no protuberance on the case. [00:27:57] Speaker 04: And that's specifically identified as an embodiment. [00:28:00] Speaker 04: And then, I think as I noted, if the concept is important and this is a significant part of the invention, then we would see that in the specification. [00:28:08] Speaker 04: We'd see a description of this hinge design being [00:28:12] Speaker 04: the fundamental important part of the invention. [00:28:14] Speaker 04: And what we see really is the invention is the idea of attaching the cover to the case. [00:28:20] Speaker 04: And so it can't get lost. [00:28:21] Speaker 04: The particular hinge design is not the inventive part of this invention. [00:28:27] Speaker 04: And again, the choice to use broad language makes perfect sense because the inventors at the time didn't want someone merely using one of a variety of commonly known hinge types to sort of get around their invention, which was [00:28:40] Speaker 04: the general idea of an attached cover. [00:28:47] Speaker 04: That's all I have. [00:28:48] Speaker 04: There are no questions for me. [00:28:50] Speaker 01: Thank you. [00:28:50] Speaker 01: Mr. Hoffman will take the case under advisement.