[00:00:48] Speaker 01: Mr. Kundu, you're reserving seven minutes of rebuttal. [00:00:52] Speaker 01: Is that correct? [00:00:54] Speaker 01: Yes, Your Honor. [00:00:54] Speaker 01: And Mr. Needham, you're going to argue first for eight minutes. [00:00:59] Speaker 01: And you're dividing your time with Mr. Sandow for seven minutes. [00:01:03] Speaker 01: Is that right? [00:01:04] Speaker 01: OK. [00:01:05] Speaker 01: Mr. Kundu, you may proceed. [00:01:15] Speaker 03: Good morning, Your Honors. [00:01:17] Speaker 03: The fundamental error below was a failure to properly take account of the full disclosure of the 320 patent, whose written description shows possession of a container adapted to hold brewing material. [00:01:29] Speaker 03: Specifically, the commission's determination was based on a restricted definition of pod, even though that word is defined more broadly in the summary of the invention. [00:01:39] Speaker 03: So although the patent's background sections does say that pods are typically flat, disc-shaped paper packets containing coffee, [00:01:48] Speaker 03: the summary of the invention defines POD more broadly. [00:01:51] Speaker 01: It specifically says... Even there, and wherever POD is used, it seems to me that what we're talking about is some sort of a pouch or a paper pouch with coffee in it and that the pouch acts as a filter. [00:02:07] Speaker 01: Is that correct? [00:02:09] Speaker 03: Your Honor, we would disagree with that. [00:02:12] Speaker 03: Certainly, as POD has been defined, [00:02:15] Speaker 03: and the supporting evidence. [00:02:17] Speaker 03: Pod is a very broad description. [00:02:18] Speaker 01: Do you disagree that the specification describes a pod in this manner, or are you saying you would want it to have a different type of description? [00:02:32] Speaker 03: Well, certainly, Your Honor, there are embodiments, and there are descriptions of a pod in the specification that are applied to this data. [00:02:39] Speaker 01: So back to my question, wherever the specification uses the word pod, it's talking about a [00:02:45] Speaker 01: filter or a paper capsule with coffee in it, and that the paper acts as a filter. [00:02:53] Speaker 03: Your Honor, that's where we would disagree, based on the definition of the term as used in the summary of the invention section. [00:03:01] Speaker 03: So the term here is pod adapter assembly. [00:03:07] Speaker 03: And so the broad meaning of pod comes into play because [00:03:11] Speaker 03: the broad meaning is a package containing a water permeable material containing coffee. [00:03:18] Speaker 03: So POD modifies the adapter assembly and the record evidence when a person of ordinary skill in the art reads that definition, they would know that there are a multitude of water permeable materials that can be used. [00:03:32] Speaker 03: So POD adapter assembly conveys to a person of ordinary skill a container that can use the paper packet [00:03:41] Speaker 03: a filter cup, an integrated filter, and so on, nylon filter, and so on. [00:03:47] Speaker 03: So it's that broad definition of pod that's in the invention that differs from the definition in the background, which gives the specification a broader scope. [00:03:59] Speaker 01: Well, I see three different definitions in the specification for pod. [00:04:04] Speaker 01: The first one in the background section, it calls it a small flattened [00:04:08] Speaker 01: disc-shaped filter package of beverage extract. [00:04:13] Speaker 01: Second one is that pods are typically somewhat flattened disc-shaped filter packets containing coffee. [00:04:19] Speaker 01: And then the third is where it says should not be limited to, and it could be a little bit broader than this, but we're looking at basically a package formed of water permeable material and containing an amount of coffee and other beverage they're in. [00:04:37] Speaker 01: Now, based on those three, [00:04:39] Speaker 01: explanations. [00:04:40] Speaker 01: That's why I say that it seems to me that the specification when it refers to a pot is talking about a capsule, paper or filter on it containing coffee. [00:04:52] Speaker 01: How do you jump from that to an adapter that doesn't have coffee in it and doesn't have a paper filter? [00:05:02] Speaker 03: So, Your Honor, let me step back and say [00:05:08] Speaker 03: The definition and the specification doesn't refer to flat and dish shaped paper packets, which are part of the two other definitions you talked about, which come from the background. [00:05:19] Speaker 03: And so in the background, there are problems discussed in the prior art. [00:05:25] Speaker 03: One of which is that cured machines, these single serve brewers, are limited to, because of the configurations of their brewing chambers, they're limited to [00:05:36] Speaker 03: these cup-shaped cartridges, which is K-cup. [00:05:41] Speaker 03: And so that's a problem contemplated in the invention. [00:05:45] Speaker 03: And certainly, we're not denying that. [00:05:47] Speaker 03: In the specification, there are embodiments that talk about using a paper packet in a container. [00:05:54] Speaker 03: However, when it comes to written description, that's not the full scope of the specification. [00:06:00] Speaker 03: What I mean by that is [00:06:01] Speaker 03: we're talking about a pod adapter assembly, pod is always gonna be governed by that broader definition, because it's from the summary, not the background. [00:06:09] Speaker 03: And so there are embodiments, figure one, one A, figure two, figures three A and three B, especially I think it's three B, that don't show a paper packet, they show a container, [00:06:26] Speaker 03: that avoids the needle. [00:06:29] Speaker 03: And I would also add. [00:06:29] Speaker 04: Is it fair to say that there's nothing in the spec that shows an example of a pod that's anything other than a prepackaged unit that's holding coffee grounds where the package is water permeable? [00:06:47] Speaker 03: Your Honor, in terms of the disclosures in the embodiments, I would say when it comes to a pod, [00:06:53] Speaker 03: it's shown that way. [00:06:54] Speaker 03: When it comes to a pod adapter assembly, it's not shown that way. [00:06:58] Speaker 03: And so the narrowness of- Where is it not shown that way? [00:07:02] Speaker 03: I would say figure 1A, Your Honor. [00:07:05] Speaker 04: Figure 1A, there's no pod in there. [00:07:08] Speaker 03: Right. [00:07:08] Speaker 03: That shows a pod adapter assembly, Your Honor. [00:07:12] Speaker 03: Figure 3B has also- let me make sure it's either 3A or 3B. [00:07:17] Speaker 04: I guess what I'm concerned about is I still don't know exactly what your definition [00:07:23] Speaker 04: What your articulation of what a pod is, as one of ordinary skill in the art would read this patent, all I can tell from your position is it's something broader than a package that's water permeable holding coffee grounds. [00:07:40] Speaker 04: I mean, what is your actual articulation? [00:07:44] Speaker 04: Is it a filter? [00:07:46] Speaker 04: Any filter element is a pod? [00:07:49] Speaker 03: No, Your Honor. [00:07:50] Speaker 04: OK, what is it then? [00:07:51] Speaker 03: It's a package. [00:07:52] Speaker 03: It's a package containing water permeable material, inside of which is some broom material. [00:08:02] Speaker 03: So under that broader definition of pod, a K-cup would qualify. [00:08:07] Speaker 03: K-cups are pods. [00:08:08] Speaker 04: And that's a problem I have, because the whole purpose of the invention is to not have to use K-cups. [00:08:15] Speaker 04: The whole purpose is to be able to use something called pods [00:08:20] Speaker 04: instead of K-cups in a K-cup brewer. [00:08:22] Speaker 04: So right there, right out of the box, I can't think of the word pod as being so broad that it also encompasses K-cups. [00:08:31] Speaker 04: It has to be something other than K-cups. [00:08:34] Speaker 03: Well, Your Honor, the record evidence certainly showed the Kirchner reference, for example, was a coffee and tea pod. [00:08:42] Speaker 03: It had a rigid structure. [00:08:43] Speaker 03: It was more akin to a K-cup. [00:08:47] Speaker 03: What the term is, is pod adapter assembly. [00:08:51] Speaker 04: So pods... Right, you're trying to adapt a K-cup brewer so that you can make coffee with pods. [00:09:00] Speaker 04: And so now I know right there that whatever a pod is, it's not a K-cup. [00:09:06] Speaker 03: Your Honor, our position is that the pod adapter assembly, because the adapter assembly is modified by pod, that that's something I can use in a K-cup. [00:09:14] Speaker 03: that's not a cake up, because a problem in the background is that the curing machines are inherently limited to cake ups. [00:09:20] Speaker 01: Well, did Mr. Rivera, during prosecution, he describe, he said that the pod adapter assembly describes a pod adapter which compacts a pod to improve brewing. [00:09:35] Speaker 01: So here he's using the pod adapter with a pod in it. [00:09:42] Speaker 03: Your Honor, we're definitely not denying that there are embodiments that have that. [00:09:47] Speaker 03: Our issue is that the spec was not limited to those embodiments. [00:09:52] Speaker 03: So for example, again, figures 1a, figures 3, there's no tamper there. [00:09:57] Speaker 01: But those are embodiments in D. It seems like everything in the specification that deals with the pot assembly talks about accepting a pot. [00:10:08] Speaker 01: And that's your problem, right? [00:10:10] Speaker 03: Well, Your Honor, we would also [00:10:12] Speaker 03: disagree with that. [00:10:13] Speaker 03: So for example, the protrusions 330 in figures 3A and 3B. [00:10:18] Speaker 03: While those are in figures 3A and 3B, the specification makes clear that those are preferred but not required. [00:10:25] Speaker 03: And that's a position that the commission is taking that that's evidence that every embodiment must take a paper packet. [00:10:34] Speaker 03: So our position certainly based on, I mean, I would also add that the problem is [00:10:41] Speaker 03: There's two definitions in the background, and then there's a different definition in the summary of the invention. [00:10:47] Speaker 03: And so what's happening, I believe the decision below, equated the two definitions. [00:10:53] Speaker 03: And so there wasn't record evidence for that equating of those two definitions. [00:10:59] Speaker 03: In fact, under the broader definition, that's what brought in the broader pod adapter assembly. [00:11:07] Speaker 03: The claim term is a container adapted to all brewing material. [00:11:11] Speaker 03: It's not a primitive, it's not an uncertain claim term. [00:11:14] Speaker 03: In fact, the record evidence found that all these different water permeable materials, not only were they well known, but they had been well known for 20 plus years before the time of the redemption. [00:11:29] Speaker 03: And that being said, that was also true for the meaning of pot. [00:11:33] Speaker 03: So the definition, the ITC, [00:11:38] Speaker 03: would presume that two different definitions, ones from the background and ones from the specification, are the same, but textually they're different. [00:11:50] Speaker 03: And then in the context of how a person with an ordinary skill in the art would read the broader definition, that had a meaning to a person with an ordinary skill in 2007. [00:12:00] Speaker 03: And there was plenty of record evidence showing that, yes. [00:12:03] Speaker 01: Do you have an expert that testified correct, Dr. Howell? [00:12:06] Speaker 01: that the use of a separate pod is required. [00:12:08] Speaker 01: He said otherwise, the invention's not going to work because you're going to have coffee that's going to clog up the hole or the bottom of the assembly. [00:12:20] Speaker 01: So isn't that substantial evidence? [00:12:24] Speaker 03: Your Honor, it's not substantial evidence. [00:12:26] Speaker 03: And we submit that Dr. Howell applied the backgrounds definition of pod. [00:12:31] Speaker 03: So that's the flattened disk shape. [00:12:33] Speaker 03: It's very explicit. [00:12:35] Speaker 03: Appendix 2192. [00:12:37] Speaker 03: That's the definition he's applying. [00:12:41] Speaker 03: And we would also state that, I believe Dr. Howell testified, but certainly it's in the intervener's brief, that the embodiments don't work if you don't use, they say, a pod or a filter. [00:12:56] Speaker 03: And we agree with that. [00:12:57] Speaker 03: Yes. [00:12:58] Speaker 03: So what that tells you is, of course, the embodiments aren't limited to a flattened disk-shaped [00:13:04] Speaker 03: paper packet, but you could use a filter. [00:13:06] Speaker 03: Well, if you could use a filter, then why couldn't you use the other known filtration types that are encompassed within the definition of water permeable in the summary of the invention? [00:13:17] Speaker 05: Is there any embodiment that shows the use of a filter integrated into the cartridge? [00:13:24] Speaker 05: There's not a specific embodiment that shows that. [00:13:26] Speaker 03: The only embodiments that are shown use separate pods. [00:13:30] Speaker 03: The embodiments shown, Your Honor, [00:13:33] Speaker 03: according to the record evidence. [00:13:36] Speaker 03: And it's the same figures I'm pointing out because there are figures that show a pod inside the capsule. [00:13:41] Speaker 03: There's no question about that. [00:13:42] Speaker 03: But there are also figures that show that the capsule, there's no filter in there. [00:13:48] Speaker 03: There's no pod in there. [00:13:50] Speaker 03: And so what you would know from the person of ordinary skill is, yeah, I could put a filter in there. [00:13:54] Speaker 03: I don't need to put a pod in that design. [00:13:56] Speaker 03: I could also put in a metal mesh filter across the passageway. [00:13:59] Speaker 05: So you're talking about that figure 1A, which just shows an incomplete embodiment because it doesn't show the coffee in it. [00:14:10] Speaker 03: Your Honor, so that's where I go back to the argument. [00:14:15] Speaker 05: Yes, a person of ordinary skill in the art would know you have to put coffee in this thing, but the rest of the disclosure would make it perfectly clear that you do so by putting a pot in there. [00:14:26] Speaker 03: Well, Your Honor, I'd go back then to one of the explicit purposes behind this invention, which is column one lines 39 to 41. [00:14:36] Speaker 03: The problem with Keurig machines is that they're inherently limited to K-cups. [00:14:39] Speaker 03: That's the problem. [00:14:40] Speaker 03: And so what exhibit, excuse me, figures 1a, 2, 3b are showing is here's how I can make, here's my pod adapter that I can put into a Keurig machine. [00:14:50] Speaker 03: What kind of filter do you want to use? [00:14:53] Speaker 03: The multitude that have been known for decades. [00:14:56] Speaker 03: Solofill in their breed. [00:14:58] Speaker 05: Well, we wouldn't be here if the specification said that, but it doesn't. [00:15:03] Speaker 05: Well, Your Honor. [00:15:04] Speaker 05: It doesn't say you use the multitude of filters that have been used for decades. [00:15:08] Speaker 03: And, Your Honor, that's where we come in with the definition of pod, which just says we're a water-permeable material containing coffee. [00:15:14] Speaker 03: So the water-permeable material. [00:15:17] Speaker 04: I thought it says a package formed of water-permeable material. [00:15:22] Speaker 03: That's correct, Your Honor. [00:15:23] Speaker 04: OK. [00:15:24] Speaker 03: So it would be a package. [00:15:25] Speaker 03: These pod adapter assemblies, you have the container. [00:15:27] Speaker 01: You kind of want the coffee to be compacted, too, correct? [00:15:30] Speaker 03: Not necessarily, Your Honor. [00:15:32] Speaker 03: Like I said, figures 1A, 2, 3B, there's no tamper there. [00:15:36] Speaker 01: No, but I look at figure 1A, and it seems to me that one skilled in art will look at that and say, OK, I understand that. [00:15:43] Speaker 01: All I need to do now is to put a pod in there, and I'm ready to go. [00:15:48] Speaker 03: That's one possibility, Your Honor. [00:15:50] Speaker 03: It's not the only one. [00:15:52] Speaker 03: And the record evidence said, [00:15:53] Speaker 03: based on the definition of pod. [00:15:55] Speaker 03: If the specification, I would say this, if the specification were limited to the definition of the background, then you would have had that definition in the summary of the invention. [00:16:06] Speaker 03: The idea is, what we can't forget, is that there are two different definitions. [00:16:10] Speaker 03: So the ITC and Solofill are trying to say that they're the same, but there's no record evidence to support that. [00:16:16] Speaker 03: So what you have is the ITC saying, well, this invention is [00:16:21] Speaker 03: a container that contains the pod of the background. [00:16:24] Speaker 03: But Tronzo made clear that the background is inapplicable to the written description analysis. [00:16:30] Speaker 03: It's what the invention actually describes that written description involved. [00:16:35] Speaker 01: OK, let's hear it from Mr. Needham now. [00:16:45] Speaker 02: May it please the court. [00:16:47] Speaker 02: No harm talks about pod like it's a claim instruction issue. [00:16:50] Speaker 02: but the pod is in the specification, not the claims. [00:16:53] Speaker 02: The relevant standard is whether substantial evidence supports the Commission's written description determination. [00:16:58] Speaker 02: And the record provides that substantial evidence. [00:17:01] Speaker 02: Both experts agreed that the claim container adapted the whole brewing material needs some sort of filter to function. [00:17:07] Speaker 02: And both experts agree that the invention that's actually described in the 320 patent does not disclose such a filter. [00:17:15] Speaker 02: Mr. Phillips, arms expert on appendix 712 to 721. [00:17:19] Speaker 02: He goes through each figure and he says, none of these figures disclose a filter. [00:17:23] Speaker 02: And that includes 1A, 2, and 3B that we just referred to. [00:17:30] Speaker 01: What about the definition that's in the patent in column one, first paragraph. [00:17:36] Speaker 01: It says, as used herein, the term pod is a broad. [00:17:40] Speaker 01: So it's seeking to broaden the term. [00:17:42] Speaker 01: is a broad term and shall have its ordinary meaning and shall include but not be limited to, and then it goes on to describe a pot. [00:17:50] Speaker 01: Wouldn't that, if I read that and I go back to figure 1a and I say, okay, I know I can put a pot in there, but I'm not limited to that. [00:18:01] Speaker 01: I can also just drop in a paper napkin and pour coffee in there and I'm good to go. [00:18:09] Speaker 02: There's no depiction of any such filter anywhere in the patent, but POD means the same thing throughout the entire 320 patent. [00:18:18] Speaker 01: For one skill in the art, a filter is a filter. [00:18:22] Speaker 01: You know you can filter through a napkin or a steel mesh or other things. [00:18:29] Speaker 01: It doesn't have to be a POD, does it? [00:18:31] Speaker 01: It does have to be a pod, because that's the only form of filtration. [00:18:34] Speaker 01: But you're talking about the definitions in the patent. [00:18:38] Speaker 01: It says it's not limited to, shall include, but it's not limited to a pod. [00:18:44] Speaker 02: Well, the written description is based on what's actually disclosed in the four corners of the patent. [00:18:49] Speaker 02: And a pod is disclosed in the patent. [00:18:51] Speaker 02: And a pod, a package formed of water permeable material, which is really just a synonym for a filter package, is also disclosed. [00:19:00] Speaker 02: There's no suggestion of any sort that any other filter could be used in any of these inventions. [00:19:07] Speaker 02: And that's consistent with the specifications use of pod as a filter package throughout the entire patent. [00:19:13] Speaker 02: The tamping mechanisms compress the pod with the spring. [00:19:16] Speaker 02: The figures 3A, 4, and 5 depict the flexible filter package. [00:19:20] Speaker 02: And the three incorporated pod brewing patents all use pod to refer to paper filter packages. [00:19:25] Speaker 02: However, that definition says that pod has its ordinary meaning. [00:19:29] Speaker 02: And logically, since we've already given two meanings of pods, it's saying simply that this is the pod that we're talking about. [00:19:36] Speaker 02: And moreover, pod having two different meanings doesn't make any sense in the context of this pattern. [00:19:41] Speaker 02: The invention is adapting a prior art cartridge brewer to brew a prior art pod. [00:19:46] Speaker 02: So when this embodiment describes adapting and tamping pods, we're talking about adapting and tamping those prior art pods that are described in the background. [00:19:54] Speaker 02: So this is different from Tronzo. [00:19:56] Speaker 02: The invention is supposed to be used with the prior R, and that's the prior pods that are these filter packages. [00:20:06] Speaker 02: Now, even if this court agrees with Arm's erroneous view of pod, these claims still lack written description. [00:20:13] Speaker 02: Under Lockwood, the specification has to disclose all the limitations of the claimed invention, and it can't just render the claimed invention obvious. [00:20:20] Speaker 02: Now here, Arm acknowledges that the claimed invention [00:20:24] Speaker 02: requires a filter and acknowledges that none of the embodiments disclose a filter. [00:20:29] Speaker 02: Now Arm tries to bridge that gap by stating that a person of ordinary skill would know that types of filters exist and would know that they could pick those filters and use those and add them to the embodiments to make the claimed invention. [00:20:41] Speaker 02: But that's exactly what Lockwood prohibits. [00:20:43] Speaker 02: So even under Arm's broad view of pod, a person of ordinary skill could only arrive at the claimed invention [00:20:50] Speaker 02: by using outside prior art to substantially modify the disclosed embodiment. [00:20:55] Speaker 02: And that shows that the specification itself doesn't actually disclose the claimed invention. [00:21:00] Speaker 01: So what happens if you use the invention, the invention as disclosed, use it without a pot? [00:21:08] Speaker 01: And would it work? [00:21:10] Speaker 02: No, it would not, Your Honor. [00:21:11] Speaker 02: If you just poured coffee directly into it, as Dr. Hawley testified, it would just fall through the device and end up in whatever you were trying to brew it. [00:21:20] Speaker 02: And when Arm talks about Kirchner and the K-cup can be a pod, these things don't fit at all. [00:21:26] Speaker 02: Like the K-cup already works in a Keurig Brewer, so it's inconceivable what a pod adapter would even be if a K-cup is a pod. [00:21:37] Speaker 02: Now in the brief Arm pointed out that the commission cited some materials subject to emotion in limine. [00:21:42] Speaker 02: I apologize for that. [00:21:44] Speaker 02: The parties failed to redact the commission record to reflect that ruling, but it's a harmless error. [00:21:49] Speaker 02: It's only a single witness statement response, and every site to it has at least one parallel citation. [00:21:54] Speaker 02: The commission opinion didn't even rely on that material. [00:21:56] Speaker 02: So there's still substantial evidence. [00:22:05] Speaker 02: And I've talked a lot about the third problem in the patent. [00:22:08] Speaker 02: There isn't a third problem in the patent. [00:22:10] Speaker 02: There are two problems in the patent. [00:22:11] Speaker 02: That cartridge brewers like the Keurig can't brew pods, and that these pods can't [00:22:19] Speaker 01: that pots don't taste good when you brew them. [00:22:23] Speaker 01: Look at figure 1A. [00:22:25] Speaker 01: Why wouldn't somebody skilled in the art look at that and say, well, if I pour the coffee grinds in there, they're going to fall through that little hole at the bottom. [00:22:36] Speaker 01: How about if I put a napkin in there and then put the coffee grinds? [00:22:43] Speaker 02: The problem with that is that's not disclosed in the patent. [00:22:45] Speaker 02: Along the lines of Lockwood, that's actually- But that would work. [00:22:49] Speaker 02: Don't you think? [00:22:50] Speaker 02: I think it would work, but that's not disclosed in the pad. [00:22:54] Speaker 02: So it goes along the lines of Lockwood, that this is essentially an invitation to substantially modify this invention to come up with a completely different invention, but the written description is based on the four corners of the actual specification. [00:23:09] Speaker 02: Finally, one last thing on Solofill's economic prong argument. [00:23:14] Speaker 02: For Motorola mobility, ARM can satisfy the economic prong through [00:23:18] Speaker 02: investments in a significant component. [00:23:20] Speaker 02: The article here is a combination of the ARM capsule and Curry Brewer. [00:23:24] Speaker 02: The ARM capsule is a significant component of that combination, so ARM can rely on its investments just in that capsule. [00:23:34] Speaker 02: If there are no questions, I have nothing to further. [00:23:36] Speaker 01: No, thank you very much. [00:23:45] Speaker 01: Mr. Sandow? [00:23:47] Speaker 00: Good morning. [00:23:47] Speaker 00: You may please the court. [00:23:48] Speaker 00: I'm Lawrence Sandel on behalf of Intervenor Solofill. [00:23:52] Speaker 00: With my allotted time, I plan to first address a written description requirement, but from a slightly different angle than the commission took. [00:23:59] Speaker 00: And then I will touch on two of our alternative grounds for affirmance. [00:24:02] Speaker 00: The uncontested evidence evincing Solofill's reasonable good faith belief of non-infringement. [00:24:08] Speaker 00: And then with respect to the economic prong of the domestic industry requirement, the purely legal questions of if and how Motorola Mobility applies to an article [00:24:17] Speaker 00: that's comprised of multiple distinct products. [00:24:21] Speaker 04: If we affirm on the written description in validity ground, then your cross-appeal is moot. [00:24:26] Speaker 00: Is that right? [00:24:28] Speaker 00: It's not technically a cross-appeal, but that is correct. [00:24:31] Speaker 00: The other grounds are moot if you affirm on the written description ground. [00:24:35] Speaker 00: So Asharp acknowledges, the commission's ruling must stand if this court recognizes that the written description determination is supported by more than a mere centile of evidence. [00:24:45] Speaker 00: The term at issue is, [00:24:47] Speaker 00: container adapted to hold brewing material. [00:24:51] Speaker 00: And this is a broad limitation that was not in the original claims. [00:24:54] Speaker 00: Arm sought and received a plain-meaning construction for this term, and under that plain-meaning, it did not require a separate pod, and it encompassed containers with integrated filters, like Solofill's products, that could accommodate loose coffee. [00:25:09] Speaker 00: The disclosure is ambiguously and comprehensively directed toward holding brewing material [00:25:15] Speaker 00: in a pod separate from the claimed container. [00:25:19] Speaker 00: Indeed, the evidence is overwhelming that the disclosure plainly does not disclose, suggest, or even contemplate an adapter that works with loose coffee, that is, without a separate pod, as is claimed. [00:25:31] Speaker 01: So it's undisputed that every single embodiment. [00:25:34] Speaker 01: So I'm asking the same question. [00:25:35] Speaker 01: Under Frideret, why would that not work with loose coffee? [00:25:39] Speaker 00: Well, because it would for a number of reasons. [00:25:42] Speaker 00: One, the coffee would fall through. [00:25:44] Speaker 00: It may ruin the drink by the coffee going to the drink and it may fall. [00:25:47] Speaker 01: Okay, so you put a napkin there. [00:25:50] Speaker 01: And I say this because I actually did this in a hotel room a long time ago. [00:25:55] Speaker 01: I understand your work. [00:25:57] Speaker 00: I think there are two keys. [00:26:01] Speaker 00: I certainly believe your honor. [00:26:02] Speaker 00: Well, there are two keys to this. [00:26:06] Speaker 00: The first thing is even by putting a napkin in there, that is a separate filter. [00:26:11] Speaker 00: It's not an integrated filter within that. [00:26:13] Speaker 00: within the receptacle itself. [00:26:15] Speaker 00: It's something that's separate. [00:26:17] Speaker 00: And the second thing that I'll point out is that this is something that just was not suggested by the specification. [00:26:22] Speaker 00: So even if it works, there's no evidence in the record whatsoever that this was something that the inventor contemplated. [00:26:29] Speaker 00: There's nothing in the four corners of the patent that suggests that the inventor contemplated this. [00:26:33] Speaker 00: So as your honors have noticed, there's not a single embodiment in the patent where a pod is not separate from the pod adapter or pod assembly. [00:26:43] Speaker 00: And also, it's undisputed that the patent does not disclose an integrated filter, even in its discussion of the prior ARP. [00:26:52] Speaker 00: And all the experts agreed on this. [00:26:54] Speaker 00: In fact, ARP's expert was asked, and this is on page 721 of the appendix, line 11, said, but nowhere in the 320 patent is there a suggestion to use an integrated filter media or integrated filter mesh in a pod adapter assembly. [00:27:11] Speaker 00: Is there? [00:27:11] Speaker 00: And the answer was, to the best of my knowledge, the patent is silent on that option. [00:27:18] Speaker 00: And then in the context of the patent, where a pod is referenced, it is always separate from the receptor. [00:27:24] Speaker 00: So the four corners of the patent, even as interpreted by Arm's own expert, provide no suggestion whatsoever that a pod could possibly be co-extensive with the pod assembly. [00:27:35] Speaker 00: Indeed, both Solifo and the commission pointed out the deficiencies with Arm's interpretation of figure 3a, [00:27:41] Speaker 00: as well as the dissent in the commission in our briefs. [00:27:46] Speaker 00: And the arm's response was absolutely silent on that. [00:27:50] Speaker 00: So while Solofill agrees with the commission's analysis, this court need not finally parse what is and what is not a pod or a cartridge in the context of the patent or in the art generally to affirm this finding of invalidity. [00:28:03] Speaker 00: The outcome of the written description question is the same under all of the very similar definitions of pod that the PET specification recites. [00:28:11] Speaker 00: All that matters is that the pod is separate from the pod assembly that holds it. [00:28:16] Speaker 00: Stated another way, a pod adapter assembly that can operate without a separate pod or filter, for example, a receptacle with an integrated filter, is materially different than the disclosed convention, which always requires a separate pod. [00:28:39] Speaker 00: So in a footnote, and Arm mentioned it here today, Arm argued that the fact that the disclosed invention would not work with a separate pod or separate filter somehow supports the description. [00:28:50] Speaker 00: But the fact that disclosed invention might be usable with a separate filter, as Your Honor discussed, does not mean that it was disclosed to use a filter, and let alone the integrated filter that Arm attempts to import into the specification through its expert. [00:29:07] Speaker 00: So the substantial evidence exists to support the commission's determination that the asserted claims are invalid for failure to meet the written description requirement. [00:29:17] Speaker 00: As alternative ground for firmance, Solofill challenges the commission's determination that it did not have a reasonable good faith belief in non-infringement. [00:29:24] Speaker 00: And on this issue, the record lacks substantial evidence because there is absolutely no evidence in the record to contradict the unchallenged testimony of Mr. Vu, Solofill's executive. [00:29:34] Speaker 00: The reasonableness and good faith of Mr. Vu's beliefs [00:29:37] Speaker 00: was demonstrated by Solofill's assertion of corresponding non-infringement defenses. [00:29:43] Speaker 00: So one of these defenses considered the lack of a passageway in Solofill's product. [00:29:48] Speaker 00: And that defense may be best understood with reference to figures 1b and 2 of the 320 patent. [00:29:53] Speaker 00: And those are on appendix pages 244 and 246. [00:29:57] Speaker 00: And figure 2 identifies the passageway 212. [00:30:00] Speaker 00: So in accordance with the patent, the brewed coffee flows through this narrow passageway. [00:30:05] Speaker 00: But in the Solofill products, by contrast, brewed coffee flows through large metal meshes on the sides and the bottom of the cup. [00:30:13] Speaker 00: And this good faith infringement position was that Solofill's integrated filter would not be understood as a passageway in the parlance of the patent. [00:30:22] Speaker 00: And the reasonableness of this argument was further confirmed from another district court's adoption of an effectively identical claim construction, which led to summary judgment in that related case. [00:30:33] Speaker 00: Moreover, by declining to cross-examine Mr. Vu, Arm elected not to develop any evidence that might undermine his good faith. [00:30:41] Speaker 00: And Arm cannot dispense with probing the veracity of Mr. Vu's beliefs on cross-examination and then presume that he did not know what he was talking about. [00:30:52] Speaker 00: I see that my time's almost up. [00:30:53] Speaker 00: I have a few comments on the domestic industry issue, if I may. [00:30:56] Speaker 00: Go ahead and conclude. [00:30:59] Speaker 00: Conclude with the domestic industry, or just conclude? [00:31:01] Speaker 00: Just conclude. [00:31:02] Speaker 00: OK, no problem. [00:31:02] Speaker 00: Well, thank you, Your Honor. [00:31:03] Speaker 00: In conclusion, we respectfully request that the court affirm the decision. [00:31:08] Speaker 01: OK, thank you. [00:31:09] Speaker 01: Thank you very much. [00:31:12] Speaker 01: Mr. Condu, we'll restore you to three minutes. [00:31:17] Speaker 03: Your Honor, just a few points. [00:31:20] Speaker 03: It's solo fills queries page 24 that talks about how you could use what they say a pod or a filter. [00:31:28] Speaker 03: And as your honor recognized, yes, if you're looking at figure 1A, you would recognize that, yes, green material would fall out, so I need to put a filter there. [00:31:36] Speaker 03: Certainly a person with ordinary skill, how that person's been defined, would understand that as well. [00:31:40] Speaker 03: Now, Solofill's counsel talked about an integrated filter as if it was some kind of revolution. [00:31:46] Speaker 03: Integrated filters existed in pod adapters as early as 2004. [00:31:50] Speaker 03: So there's a receptacle with an integrated filter that's one of the myriad [00:31:54] Speaker 03: filtration types that fall within the scope of a wide permeable material disclosed in the 320 pattern. [00:32:01] Speaker 03: Again, this isn't some primitive and uncertain technology. [00:32:04] Speaker 03: We were talking about a container adapted to whole brewing material. [00:32:08] Speaker 01: Secondly... It's just that the specification, when it talks about pot, it does it in a consistent manner in different places. [00:32:18] Speaker 01: And it just seems to me that, from what you were just arguing, [00:32:24] Speaker 01: that different types of filters existed in the industry, in the art at the time, that you could have very easily written the specification in a way so that we wouldn't be here. [00:32:40] Speaker 01: But it's not written that way. [00:32:42] Speaker 03: Certainly, Your Honor, I can understand that point. [00:32:46] Speaker 03: But what I will say again is, if these things were known, and we're not talking about a primitive and uncertain technology, [00:32:54] Speaker 03: I say if, but it's in the record evidence that they were. [00:32:58] Speaker 03: If I have a definition of pot that says it's a broad term, it includes but not limited to a package of water permeable material, then under this court's precedent, a person of ordinary skill reading that would understand, okay, yes, here's all the things that are known, I understand, I can use that. [00:33:18] Speaker 03: So there isn't a requirement that if something is well known, and if I read a portion of the specification [00:33:23] Speaker 03: that brings back that knowledge. [00:33:25] Speaker 03: There isn't a requirement that says why have to spell out every detail. [00:33:28] Speaker 03: That's the Faulkner case. [00:33:30] Speaker 03: And so, yes, I understand, and Commissioner Keeven-Descent recognized, certainly there are a lot of embodiments and a lot of discussion on a pod being a separate paper packet. [00:33:42] Speaker 03: However, the issue is, is the written description broader than that? [00:33:47] Speaker 03: And our answer is yes. [00:33:49] Speaker 03: And I think a fundamental reason why is [00:33:53] Speaker 03: The background definition is what it was, and it talks about the background. [00:33:57] Speaker 03: There's a summary of the invention section. [00:33:59] Speaker 01: You argue that because of the words, but not limited to. [00:34:04] Speaker 01: If it hadn't been for that, you wouldn't have an argument. [00:34:07] Speaker 01: You're resting on those three words, but not be limited to. [00:34:12] Speaker 01: And you want to really broaden these claims in a big manner. [00:34:18] Speaker 03: Well, Your Honor, I would say that it's also my time's up, but if I may. [00:34:22] Speaker 01: Yeah, you can answer my question. [00:34:26] Speaker 03: The flattened-dish shaped, flattened-dish shaped paper packet. [00:34:31] Speaker 03: That's not part of the definition. [00:34:34] Speaker 03: The clause following, but not limited to, says a package of water-permeable material. [00:34:38] Speaker 03: It doesn't say anything about the flattened-dish shaped paper packet. [00:34:42] Speaker 01: OK, thank you very much. [00:34:43] Speaker 01: We thank all the parties for the arguments today and the standing recess. [00:35:03] Speaker 00: The honorable court is adjourned until tomorrow morning at 10 a.m.