[00:00:00] Speaker ?: BANG [00:00:44] Speaker 05: Okay, our third case this morning is number 16, 1748, Titex International versus Precision Fabrics Group. [00:00:53] Speaker 05: Mrs. Zelliga, is that how you pronounce it? [00:00:55] Speaker ?: Yes. [00:00:56] Speaker 00: May it please the court? [00:00:57] Speaker 00: This case addresses what weight the PTAB has to give during an IPR to a decision that its predecessor court, the BPAI, gave during patent prosecution. [00:01:10] Speaker 00: It's our position that the PTAB, when it is deciding an IPR, it cannot disregard the prior findings that basically the same body made during prosecution. [00:01:24] Speaker 00: Some level of deference... What's the impact? [00:01:26] Speaker 06: I mean, it was kind of surprising that you didn't even acknowledge this in your blue brief, but what's the impact of the fact that the appeal was reopened? [00:01:35] Speaker 00: Well, the fact that the appeal wasn't reopened. [00:01:39] Speaker 00: What happened was an RCE was filed. [00:01:42] Speaker 00: So an RCE means that the patent owner is going to explore another option. [00:01:52] Speaker 00: So the way that the appellate system works at the board level is that if the patentee is not satisfied, [00:02:03] Speaker 00: with the examiner's rejections, it can appeal, and it appeals to the board. [00:02:07] Speaker 00: The board issues a decision. [00:02:09] Speaker 00: At that point, there are only three options that the patent owner has if it gets an adverse decision. [00:02:15] Speaker 00: It can ask for reconsideration, it can go to the district court, or it can appeal to this court. [00:02:21] Speaker 00: So what the patentee did in this case is it did not do any of those three things. [00:02:27] Speaker 00: Instead, it filed for a RCE, which means I'm going to continue prosecution. [00:02:33] Speaker 00: And I'm going to continue prosecution does not mean that there is no weight given to that administrative decision by the board. [00:02:41] Speaker 00: Instead, what you see in the MPEP and what's accepted is that the patent owner would not have been able to make that same argument. [00:02:51] Speaker 00: The board's decision is a final decision. [00:02:55] Speaker 00: And because the board's decision is a final decision, that's why Titex was relying on it in its appeal. [00:03:01] Speaker 05: But it's not a collateral estoppel, right? [00:03:03] Speaker 00: Well, there has been some cases that are trying to determine whether it's a collateral estoppel or whether there's some kind of issue of an administrative estoppel, or whether this is really the... Well, it's not an adversarial proceeding. [00:03:21] Speaker 05: It seems to me difficult to contend that it's a collateral estoppel. [00:03:26] Speaker 00: Well, actually, the elements of collateral estoppel are met here. [00:03:29] Speaker 00: So this was a fair and it's not saying that it has to be an adversarial position. [00:03:35] Speaker 00: You know, the fifth element of Claude Oestoppel instead is that the decision has to be, that the decision had to have been litigated fully and fairly. [00:03:48] Speaker 05: Well, I mean, the problem I have with the argument on both sides is there's a whole series of cases, application of Craig and subsequent cases which deal [00:03:58] Speaker 05: with this issue, which you don't address in your brief. [00:04:02] Speaker 05: And I'm not going to get into them now, but it seems to me you've got a very hard argument that it's collateral estoppel. [00:04:13] Speaker 05: But go ahead. [00:04:15] Speaker 00: OK. [00:04:15] Speaker 00: If it's not collateral estoppel, then the question is, does that mean that the board's final decision on the exact same issue does not have any weight? [00:04:28] Speaker 06: But the problem is, is they were looking at it under different standards. [00:04:31] Speaker 06: I mean, when you're talking about the, you know, the board's other proceedings, other than IPRs, what you're talking about are where there are different presumptions and different burdens. [00:04:43] Speaker 06: And there, there was a presumption as it related to inherency that the board was allowed to rely upon because the examiner is not in a position to basically be putting evidence on. [00:04:54] Speaker 06: Those presumptions don't apply. [00:04:57] Speaker 06: in IPR proceeding. [00:04:59] Speaker 06: And we addressed that in Par Farmer. [00:05:01] Speaker 00: Yes. [00:05:02] Speaker 00: But when the board makes a final decision in a prosecution case, it is making a decision that is based on a preponderance of the evidence. [00:05:13] Speaker 00: That's the standard it's supposed to make when it makes an obvious determination. [00:05:16] Speaker 03: But it's not a final decision. [00:05:18] Speaker 00: It is a final decision. [00:05:19] Speaker 00: It was not appealed. [00:05:20] Speaker 00: There was no ask of reconsideration. [00:05:24] Speaker 00: And it was not brought to this court's decision. [00:05:26] Speaker 03: So at page five. [00:05:27] Speaker 03: of your reply rate when you say, an RCE withdraws the finality, and you emphasize finality, of prosecution, not the actual decision and reasoning made by the BPAI? [00:05:39] Speaker 03: Yes. [00:05:39] Speaker 03: What exactly do you mean when you say it withdraws the finality? [00:05:44] Speaker 00: It withdraws that particular issue that was being raised by the examiner and that the board decided. [00:05:51] Speaker 00: So here, the rule made two decisions, too. [00:05:53] Speaker 00: It did not just rely on the presumption of inherency that the examiner was discussing below. [00:05:58] Speaker 00: Instead, it said the patent specification teaches fabrics that already have a TPP value greater than 4.5 that are conventional. [00:06:09] Speaker 03: You're not answering my question. [00:06:11] Speaker 00: I'm sorry, Judge Wallace. [00:06:13] Speaker 03: What did you mean when you said it withdraws and emphasized the word finality, and yet you're telling me it's final? [00:06:22] Speaker 00: The finality of prosecution is different. [00:06:27] Speaker 00: OK. [00:06:27] Speaker 00: So let's look at page 5. [00:06:32] Speaker 05: You mean it's final as to this issue, but it's not final as to the prosecution. [00:06:37] Speaker 00: Exactly. [00:06:38] Speaker 00: Exactly. [00:06:38] Speaker 00: So this issue is decided. [00:06:40] Speaker 00: You can't go down this route anymore. [00:06:43] Speaker 00: Instead, you have to take a new route. [00:06:45] Speaker 00: And that's exactly what the patent owner did here. [00:06:48] Speaker 00: After that final decision that said TPP is obvious, [00:06:52] Speaker 00: What the patent owner then did is they filed a continuation, and then they prosecuted claims that were narrower, and those claims were to a specific type of nonwoven fabric, rather than the general genus of nonwoven fabrics. [00:07:08] Speaker 05: Why didn't you put on evidence in this proceeding as to the TPP of this particular fabric? [00:07:14] Speaker 05: It seems to be fairly easy, and you may well be right that there's an obviousness here. [00:07:20] Speaker 05: But why didn't you put on the evidence? [00:07:23] Speaker 00: Well, here, there actually was evidence based on the different fabrics that the patent owner put into evidence during prosecution. [00:07:33] Speaker 00: But the reason that we didn't put that other information in there is because where does it stop? [00:07:39] Speaker 00: In other words, we have to show that this is a natural consequence throughout the entire scope of the claims. [00:07:45] Speaker 00: So if we just provide empirical evidence, how can we [00:07:49] Speaker 00: really honestly prove that negative. [00:07:52] Speaker 00: The most important part, though, is that we should be able to rely on the prosecution history. [00:07:57] Speaker 00: This is a public opinion, and that public opinion addressed the same issue here. [00:08:02] Speaker 03: It's your position repeatedly in the blueberry that the decision on appeal is precedential. [00:08:08] Speaker 03: Is that correct? [00:08:10] Speaker 03: It's binding, entitled to deference. [00:08:12] Speaker 03: Yes. [00:08:12] Speaker 03: You say that repeatedly. [00:08:13] Speaker 03: Yes. [00:08:14] Speaker 03: But the PTO has a procedure for making decisions precedential. [00:08:19] Speaker 03: This isn't marked that way. [00:08:21] Speaker 00: It is still a final judgment in that area. [00:08:24] Speaker 00: I don't understand what your question is. [00:08:26] Speaker 03: You don't understand what presidential means? [00:08:28] Speaker 00: No, I understand what presidential means. [00:08:31] Speaker 00: What I don't understand is why this final decision in this particular case should not apply to the same IPR. [00:08:38] Speaker 00: I understand what presidential would mean. [00:08:39] Speaker 00: It would mean that it can apply to everybody. [00:08:41] Speaker 00: But here we're asking, does it apply in the exact same pattern? [00:08:45] Speaker 06: But what you're really asking us to do is to take this presumption [00:08:49] Speaker 06: as it relates to inherency and to import it into the IPR despite cases that we have decided that say you can't do that. [00:08:58] Speaker 06: You cannot use a presumption in an IPR proceeding. [00:09:01] Speaker 06: It's one thing in an examination proceeding because of the respective abilities of the examiner and the patent applicant. [00:09:10] Speaker 06: It's quite another to do it in an IPR. [00:09:13] Speaker 06: And we've said you can't. [00:09:14] Speaker 06: So I don't know how, I mean, even if it is a final decision, it doesn't matter. [00:09:19] Speaker 06: Because it's not the same issue, it's not based on the same predicate. [00:09:25] Speaker 00: Well, I disagree. [00:09:27] Speaker 00: And the reason I disagree is because we're not trying to rely on a presumption of inherency here. [00:09:31] Speaker 00: We are relying on a finding by the board. [00:09:35] Speaker 06: The finding is predicated on a presumption of inherency. [00:09:38] Speaker 00: It's not only predicated on a presumption of inherency. [00:09:41] Speaker 00: in pages three and four of that decision, it specifically says that conventional fabrics have TPP values over 4.5. [00:09:50] Speaker 00: So it would be obvious for perseverance. [00:09:52] Speaker 06: But there was no evidence in the record of that fact except the presumption. [00:09:56] Speaker 00: No, no, there was evidence. [00:09:58] Speaker 00: There was evidence of what conventional fabrics have, and that conventional fabrics, as admitted by the patent owner in the specification, have thermal properties that are above 4.5. [00:10:09] Speaker 00: We're trying to rely on what the board said. [00:10:11] Speaker 00: The board said TPP is obvious. [00:10:14] Speaker 05: The examiner relied on the presumption. [00:10:17] Speaker 05: The board relied both on the presumption and this other evidence that you're talking about. [00:10:22] Speaker 00: Yes. [00:10:22] Speaker 00: It made two different rationales for its finding. [00:10:27] Speaker 00: The other thing to consider about the board's decision was that the examiner explained why it was using that presumption of inherency. [00:10:39] Speaker 00: It said, and this is a common sense point, the same fabric cannot have different thermal properties. [00:10:46] Speaker 05: Here... Yeah, but where's the evidence that any fabric had a 4.5 that was within the scope of the original claims? [00:10:59] Speaker 05: Is that the alternative board finding that you're talking about? [00:11:02] Speaker 05: I didn't see them saying that the particular fabric within the scope of the claims had a 4.5 or better rating. [00:11:09] Speaker 00: The particular fabric within the scope of the claims, there is only one submission by the patent owner of a TPP. [00:11:17] Speaker 00: And that was supposed to cover the entire realm of the claims, all the entire scope of the claims. [00:11:23] Speaker 00: But what the patent itself discloses is that traditional woven fabrics have a TPP value over 4.5. [00:11:36] Speaker 05: So just because nonwoven, which shouldn't be. [00:11:39] Speaker 05: But that's not nonwoven. [00:11:40] Speaker 05: We're dealing with nonwoven. [00:11:41] Speaker 00: No, no, no. [00:11:42] Speaker 00: But nonwoven is naturally inclined to have a lower TPP value. [00:11:46] Speaker 05: Where's the evidence of that? [00:11:48] Speaker 00: It is in the patent specification letter. [00:12:18] Speaker 00: So there is currently a need for a lightweight... Where are you reading from? [00:12:24] Speaker 00: So that is appendix page 26 and we're in column 54. [00:12:30] Speaker 00: 54? [00:12:31] Speaker 04: 4 you mean. [00:12:35] Speaker 00: Sorry? [00:12:35] Speaker 04: Column 4. [00:12:37] Speaker 00: Column 3. [00:12:38] Speaker 04: Column 3. [00:12:39] Speaker 04: 54. [00:12:41] Speaker 00: Line 54. [00:12:42] Speaker 00: So this is discussing the background of the invention, and it notes that there's currently a need for lightweight, low-cost fabrics that provide a high degree of protection from heat. [00:12:53] Speaker 05: Yeah, but where does it say that conventional fabrics have a 4.5 rating and that nonwoven fabrics would [00:13:02] Speaker 05: have an even higher rating, which is, I thought, what you were saying. [00:13:05] Speaker 00: No, no, no. [00:13:06] Speaker 00: The argument is that non-woven fabrics would not have as high of a rating as woven fabrics. [00:13:11] Speaker 00: Woven fabrics. [00:13:11] Speaker 05: Where does it say that? [00:13:15] Speaker 00: Your Honor, I'll have to find it exactly in the specification when I'm reading it, when I'm listening to the appellate argument. [00:13:26] Speaker 05: You want to save the rest of your time here? [00:13:27] Speaker 00: Yes, I'll save the rest of my time. [00:13:29] Speaker ?: Thank you. [00:13:43] Speaker 05: Ms. [00:13:43] Speaker 05: Borchers? [00:13:44] Speaker 01: Good morning. [00:13:44] Speaker 01: May it please the court? [00:13:50] Speaker 01: I'm going to start exactly with the point or question that Judge O'Malley raised, that a presumption cannot be used in an IPR, that this court has opinions that say that that can't be so. [00:14:03] Speaker 05: Yeah, but it's true, isn't it, that the board in the original proceeding alternatively relied on material [00:14:12] Speaker 05: I guess in the specification to show that the 4.5 standard was met. [00:14:22] Speaker 01: What the BPAI decision it did was there were a different set of claims pending at that time because... Yeah, I understand, but it didn't exclusively rely on the presumption, right? [00:14:35] Speaker 06: I believe it did exclusively rely on the presumption. [00:14:38] Speaker 06: At the bottom of page 3 of that opinion, Appendix 2203, [00:14:42] Speaker 06: The BKI said, the references are silent regarding contact thermal protective performance value for the disclosed heat transfer resistant fabrics. [00:14:52] Speaker 06: But then said, but the specification discloses that conventional fabrics have a 4.5. [00:14:59] Speaker 06: And then it says, appellants make no argument that the fabrics of either reference have a value of less than 4.5, nor have they made the argument that it would have been not obvious for one of ordinary skill in the art [00:15:11] Speaker 06: to make a flame retardant intermescence fabric having the claim to value. [00:15:16] Speaker 06: So what does that mean? [00:15:20] Speaker 01: Yes, Your Honor. [00:15:23] Speaker 01: So during the IPR, patent owner PFG did argue and presented evidence to the board that the conventional fabrics that are mentioned in the patent are woven fabrics of a different structure than what was cleaned. [00:15:39] Speaker 01: And the board in its decision [00:15:40] Speaker 01: recognized and acknowledged that argument that it was made. [00:15:46] Speaker 01: And on page, appendix page 10 of the PTAP's decision, the board recognized that patent owner argued that the suggestion in the appeal decision that prior art fabrics suggested the thermal protective performance of the claims is misplaced. [00:16:08] Speaker 01: because the conventional fabrics described in the 639 patent were woven fabrics with different constructions from the claims of the 639 patent. [00:16:19] Speaker 06: So what is the impact of not having made that argument during the prosecution or the appeal from the denial? [00:16:32] Speaker 01: The impact [00:16:34] Speaker 01: For the claims that issued that were being challenged in the IPR, I believe there's no preclusive effect, no estoppel theory, no preclusive theory that renders the PTAB having to follow that BPI decision. [00:16:49] Speaker 01: And that is because the claims that were pending at the time during prosecution of that decision were different claims. [00:16:56] Speaker 01: They were missing four limitations that ended up in the issued claims. [00:17:00] Speaker 01: also the prior art that was being considered at the time. [00:17:03] Speaker 05: Well, that may be true, but to the extent that the TPP is a limitation, that was involved then and involved now, right? [00:17:13] Speaker 01: It was. [00:17:13] Speaker 05: However, what all of the examiner... And TPP is the only issue here as to non-obviousness, right? [00:17:21] Speaker 01: Correct. [00:17:25] Speaker 01: What the examiner and the board found, as you were just reading, was that [00:17:30] Speaker 01: If we go back to the BPI's decision, the BPI and the examiner were considering two specific references, the HORSEC reference and the MERCH reference, and it was premised on the examiner and the BPI finding that the [00:17:58] Speaker 01: structure of the fabric that would result from a combination of those two references would match, would be the same as the structure that was in the claims at that time. [00:18:09] Speaker 01: And based on that, the BPAI and the examiner were saying that it would be reasonable to presume that the TPP would necessarily follow from that. [00:18:20] Speaker 01: And what's fundamentally different in the IPR is that that presumption can't apply to the claims that [00:18:28] Speaker 01: existed during the IPR because those claims were different and with four additional elements that didn't exist at the time of this decision. [00:18:37] Speaker 06: So it would impact the structure of the fabric? [00:18:42] Speaker 01: Yes, there was a finding by the PTAB that the limitation of TPP is a limitation on what fabrics fall within the scope of the claim and that there was no evidence put on by the petitioner Titex [00:18:56] Speaker 01: that the structure of the three different references that were being considered in the IPR, Radwanski, Rowan, and Merch, not these two. [00:19:04] Speaker 05: But the fabric that's being claimed here was within the scope of the earlier claim, right? [00:19:17] Speaker 01: The earlier claims did not have the limitations of... No, no, no. [00:19:21] Speaker 05: But to answer my question, is it the fabric that [00:19:24] Speaker 05: is involved here in this claim is the same as fabric that was within the scope of the earlier claims? [00:19:40] Speaker 01: That may be, Your Honor. [00:19:41] Speaker 01: I think I'd actually have to think about that a little bit harder, and I apologize for not being able to give a straight yes or no on that. [00:19:49] Speaker 01: The limitations that were added later were [00:19:54] Speaker 01: the percent of add-on of finish that gets put on the fabric, limiting the fabric to just a stitch bonded fabric as opposed to the wide list of possible non-moving fabrics at the other time, which included things like sponge bonded, needle punched, et cetera. [00:20:11] Speaker 01: And also the content of the flame retardant, the compounds in the flame retardant finish, and that the [00:20:24] Speaker 01: fabric would have polyester fibers in addition to cellulosic. [00:20:28] Speaker 01: Those are all the limitations that were added. [00:20:30] Speaker 01: And the reason why they're so important is because when the claims were amended to add all of that, that is when the examiner no longer made an inherency rejection. [00:20:41] Speaker 01: And an inherence rejection never occurred after that point in time in prosecution, after prosecution was reopened. [00:20:49] Speaker 01: And the examiner found that those were non-obvious [00:20:53] Speaker 01: choices because the fabrics of the claims that issued are used as thermal barriers. [00:21:02] Speaker 01: But stitch bonding creates holes in the fabric. [00:21:05] Speaker 01: There's actually literally holes in it that you could see with your naked eye. [00:21:09] Speaker 01: And the polyester fibers melt and can enlarge those holes. [00:21:16] Speaker 01: And so the examiner had agreed in subsequent prosecution after this decision [00:21:22] Speaker 01: that the applicants appeared to have a strong case for non-obviousness because there were unexpected results that you would not expect the fabric in the claims that ultimately issued to act as a thermal barrier. [00:21:34] Speaker 01: And it was as a result of those amendments that the inherency rejection never appeared again in the prosecution. [00:21:45] Speaker 01: So after the BPAI decision, there were actually three more. [00:21:49] Speaker 06: What's the response that if we [00:21:51] Speaker 06: your argument that you've got a 112 problem? [00:21:56] Speaker 01: A few things on the 112 argument. [00:22:01] Speaker 01: So the first is that this is a completely new issue on appeal. [00:22:05] Speaker 01: It's untimely and the precedent of this court is that new issues that weren't presented below should not be considered on appeal. [00:22:13] Speaker 01: And then second is the fact that non-enablement is not an issue. [00:22:17] Speaker 01: that is raised in IPRs. [00:22:19] Speaker 01: IPRs are limited to anticipation and obviousness. [00:22:23] Speaker 06: Well, I get that. [00:22:23] Speaker 06: I mean, we can't find enablement in the first instance or lack of enablement. [00:22:28] Speaker 06: We can't even send it back and saying consider enablement. [00:22:30] Speaker 06: But as a practical matter, why isn't the fact that you might have an enablement problem if we buy your underlying argument indicative of the fact that maybe your underlying argument isn't as strong as it should be? [00:22:45] Speaker 01: With due respect, I disagree that there's an enablement issue. [00:22:48] Speaker 01: The patent is presumed valid and presumed enabled. [00:22:53] Speaker 01: That issue wasn't presented below, and so there's not a full record there, of course, from PFG, the patent on her side, to show or to rebut any type of non-enablement argument. [00:23:05] Speaker 01: We believe that it is enabled, but that is not properly an issue here. [00:23:10] Speaker 01: And there's not going to be full and complete evidence in the record below in the IPR because that wasn't an issue that was presented in the IPR. [00:23:28] Speaker 01: Returning to the non-precedential effect of the BPI decision, TYTEX has framed that issue as [00:23:37] Speaker 01: a legal error that's subject to de novo review, and we disagree with that. [00:23:41] Speaker 01: We believe that the correct standard should actually be whether the findings, the PTAMP's findings, were subject to substantial evidence because that whole determination is based on a factual evaluation. [00:23:56] Speaker 01: Inherency in this court has opinions that establish that the presumption of inherency is a fact-specific question and that [00:24:07] Speaker 01: The PTEP correctly recognized that TYTEX to prevail in the IPR on the inherency issue was required to establish that the TPP was inherent in the prior art and had to do that with factual evidence and TYTEX chose not to do that. [00:24:25] Speaker 01: TYTEX chose to rely solely on the BPAI decision and not to put in any evidence of what fabric results from the combination of the three prior art references or that [00:24:37] Speaker 01: the TPP would inherently result from that combination. [00:24:43] Speaker 01: The board also, the PTAB also, correctly found that the burden should not have shifted to the patent to show that the TPP element was not inherent. [00:24:58] Speaker 01: This court has addressed that issue as well in Magnum Oil and has said that unlike in patent prosecution, [00:25:05] Speaker 01: where burden shifting framework does make sense because the examiner is not in a position to put forward evidence, the burden shifting makes sense there. [00:25:16] Speaker 01: But then in IPR, burden shifting is not warranted. [00:25:20] Speaker 03: Talk about your opponent's attempts to distinguish magnum. [00:25:24] Speaker 01: Yes. [00:25:25] Speaker 01: They attempt to distinguish magnum by saying that it doesn't mention inherent obviousness as opposed to just straight obviousness issues. [00:25:34] Speaker 01: And magnum oil wismet applies to both situations. [00:25:39] Speaker 01: There's no reason to treat it differently for inherent obviousness as compared to obviousness. [00:25:45] Speaker 05: And that is what they say is that the original BPAI decision did not just rely on the presumption, but alternatively it relied on evidence in the record showing that these fabrics wouldn't meet the TPP limit. [00:26:05] Speaker 01: The only evidence in the record that they pointed to in their briefing in here today and during oral argument is this argument about the statement in the patent about conventional fabrics. [00:26:17] Speaker 05: And the BPAI, the first time around, said there's evidence that conventional fabrics have this TPP rating and that it wouldn't be hard for somebody to figure out how to do that with respect to this list of fabrics that were in the claim. [00:26:35] Speaker 01: And that evidence was rebutted below by PFG by pointing out that the conventional fabrics were woven, not non-woven. [00:26:43] Speaker 01: There's a vast difference between the two and that this invention is something completely different. [00:26:49] Speaker 01: It's a single layer of stitch bonded fabric that is very different that wouldn't be expected to be able to have a TP value of the woven fabrics because it is a single layer as opposed to a laminate or much thicker. [00:27:04] Speaker 01: and it has the holes in it, and it would not be expected to act as a thermal barrier. [00:27:10] Speaker 01: All of that evidence was submitted to the IPR and rebutted at that point. [00:27:15] Speaker 05: The PTAB found in its decision that fundamentally... Yeah, but they're saying the same issue was in the first proceeding because the fabric that's now within the claims was within the claims that were before the BPAI the first time around. [00:27:35] Speaker 05: And you don't agree. [00:27:40] Speaker 01: I respectfully disagree with that because the claims were so different than what the issued claims were. [00:27:46] Speaker 01: The structure is different. [00:27:48] Speaker 01: And for inherency, the inherency case law says that in order for that presumption to exist, there has to be the structure of the fabric from the claims would need to match the structure of the prior art references. [00:28:05] Speaker 01: the structure that there's no showing of that in the IPR. [00:28:09] Speaker 01: There's no showing that these combination of references in the IPR would result in the same structures in the claims. [00:28:17] Speaker 01: In fact, PFG was the only one who put evidence in on that. [00:28:21] Speaker 01: And that's acknowledged in the PTEP's decision that PFG submitted evidence to show that what would result. [00:28:28] Speaker 05: I thought she said earlier that you didn't know whether the same fabric was within the original claim. [00:28:35] Speaker 01: Because I had never thought of it in those terms, that's not an issue that was briefed in that way. [00:28:42] Speaker 01: It's not even an issue that was raised by TYTEX stated that way. [00:28:47] Speaker 01: And so having thought it through it a little bit more as I'm standing here doing the argument, I don't agree with that, that it's the same for the reasons that I stated it. [00:28:59] Speaker 05: OK. [00:28:59] Speaker 05: All right. [00:28:59] Speaker 05: Thank you. [00:28:59] Speaker 05: We're out of time. [00:29:00] Speaker 05: Thank you. [00:29:08] Speaker 00: I was mistaken that the position that a non-woven fabric would be expected to have a lower TPP value was in the patent. [00:29:21] Speaker 00: Instead, the patent itself was originally drawn to all manner of creation of the fabric. [00:29:27] Speaker 00: As we just heard the appellee admit, though, is that according to their own declarations, they thought [00:29:37] Speaker 00: that a non-woven stitch-bonded fabric, like what's claimed here, would not have that same TPP value, that it would not be able to have that higher TPP value. [00:29:50] Speaker 06: So I wanted to... Let me ask you something. [00:29:52] Speaker 06: If we take your argument to its logical extreme and say that in IPRs, the PTAB is always bound by what the BPAI decision was, [00:30:01] Speaker 06: There are thousands and thousands of BPII decisions that found claims to be non-obvious or non-anticipated. [00:30:09] Speaker 06: Those claims ultimately issue, and now they're subject to IPRs. [00:30:13] Speaker 06: Wouldn't we essentially be saying that the whole purpose of the IPR statute gets wiped out? [00:30:20] Speaker 06: Because once the claim, except for those few claims, that issue without any appeal. [00:30:26] Speaker 00: No, I don't think that that would be the conclusion here. [00:30:28] Speaker 00: It is a very odd issue. [00:30:31] Speaker 00: that we're looking at. [00:30:33] Speaker 00: We're not saying that the board's decision renders the current claims obvious at all. [00:30:39] Speaker 00: We're looking at one finding that the board made. [00:30:42] Speaker 06: Right, but there's lots and lots and lots of board findings that go the other way. [00:30:46] Speaker 06: And would we say that the PTAB then can't invalidate an issued patent if the BPAI ever made a finding of non-obviousness? [00:30:55] Speaker 00: If the BPAI made a decision on non-obviousness, [00:30:59] Speaker 00: then under administrative law, what the PTAB should do is show that there was a change in the law, or that they were wrong, that they were actually wrong. [00:31:10] Speaker 00: Instead, the PTAB is the same board that is looking at these patents during prosecution, and now they're looking at these patents. [00:31:15] Speaker 06: Well, you're saying they couldn't even say they were actually wrong. [00:31:18] Speaker 06: Your argument is they'd have to be bound. [00:31:20] Speaker 00: No, they have to give deference. [00:31:22] Speaker 00: Now, an administrative body can change its mind. [00:31:25] Speaker 00: But in order to change its mind, it has to articulate a reason, and that reason has to be very good. [00:31:31] Speaker 00: People are supposed to be able to rely on the public record. [00:31:36] Speaker 00: I see my time's nearly up. [00:31:37] Speaker 00: Do you have any other questions? [00:31:38] Speaker 05: I don't think so. [00:31:39] Speaker 05: Thank you. [00:31:40] Speaker 05: Thank you. [00:31:40] Speaker 05: Thank both counsel. [00:31:41] Speaker 05: The case is submitted.