[00:00:00] Speaker 02:
Again, Your Honors, and may it please the Court.

[00:00:03] Speaker 02:
I'd like to move past the factual questions in this appeal, whether there is substantial evidence or not substantial evidence, and get just to the final decision for my first comments, the final legal conclusion of obviousness.

[00:00:16] Speaker 02:
This was a single reference obviousness case, where supposedly LAL was the reference providing a motivation, at least, to modify leasing, the primary reference, to

[00:00:29] Speaker 02:
practice the claimed invention.

[00:00:30] Speaker 02:
And the supposed modification of leasing was going to be that we would extend that front passenger side airbag into the backseat to protect the rear passengers.

[00:00:41] Speaker 02:
The problem with the district court, with the PTAP's decision, is that that was a flawed analysis of the entire record.

[00:00:49] Speaker 02:
There was no evidence in leasing, in LAO, even from the expert testimony advanced by the petitioner, that one would have

[00:00:58] Speaker 02:
would have extended that airbag from the front passenger side to the rear passenger side.

[00:01:06] Speaker 02:
Now the case law from this court, as Your Honors are fully aware, says that when you have a single reference obviousness case, and the proposal or the theory is that one would have modified it to add a missing structural limitation, this court's law says, analyzing KSR and the whole bit, says that you have to have documentary evidence, you have to have

[00:01:28] Speaker 02:
something in the prior art which shows the desirability of that change.

[00:01:34] Speaker 02:
And I can cite to you the here, here, the K slash S, Hereway, I think.

[00:01:41] Speaker 02:
The Hereway case, the Urbansky case.

[00:01:44] Speaker 02:
Those say that we take special care.

[00:01:46] Speaker 03:
I don't know.

[00:01:47] Speaker 03:
I'm not clear on what you're saying.

[00:01:49] Speaker 03:
We don't need a specific suggestion motivation to combine, right?

[00:01:53] Speaker 03:
Wasn't that what KSR was all about, that you don't need an express statement of that?

[00:02:00] Speaker 03:
Or are you saying that you do need an express statement in the prior art?

[00:02:05] Speaker 02:
I disagree slightly.

[00:02:06] Speaker 02:
KSR says you need evidence of a reason to combine.

[00:02:11] Speaker 02:
And so this has come out in the federal circuit.

[00:02:13] Speaker 04:
But the PSR also says that you can take into account the practicalities of what you're looking at, what a procedure's looking at.

[00:02:21] Speaker 02:
That's right.

[00:02:21] Speaker 02:
You can take into account common sense when, and Hereway actually clarifies it in this court, when you have a combination proposed where all the claim limitations are actually there.

[00:02:36] Speaker 02:
It's a different world entirely under this court's precedent.

[00:02:40] Speaker 02:
When you have a single reference theory and your theory of obviousness is that someone's going to take a structural claim limitation and tack it on top of what's not there in the single reference, there we have strict scrutiny.

[00:02:57] Speaker 02:
Not those words, but we have a searching inquiry.

[00:02:59] Speaker 02:
That is the words from the case law.

[00:03:00] Speaker 02:
a searching inquiry of whether the record contains the documentary evidence.

[00:03:05] Speaker 04:
Doesn't the reference in KSR to common sense go to where there's a gap in the prior art references?

[00:03:11] Speaker 04:
And it simply takes common sense for a proceeding to look at that and say, OK, this is what I need to do, and I'll combine here.

[00:03:20] Speaker 02:
Absolutely true.

[00:03:21] Speaker 02:
In the case of a proposed combination where all the claim limitations are already disclosed, not true in the case of

[00:03:30] Speaker 02:
a proposed obviousness theory where you have a single reference and it's entirely missing the claim limitation.

[00:03:38] Speaker 02:
I'm not standing here telling you that it's missing the claim limitation.

[00:03:41] Speaker 02:
I'm talking about the leasing reference.

[00:03:44] Speaker 02:
My brother will have to address that because in his own petition at page 222 of the record, they acknowledge that the leasing prior art does not disclose an airbag, a single airbag extending from the front side

[00:04:00] Speaker 02:
to the rear side.

[00:04:02] Speaker 02:
So the record here does not go so far even as to say that... But that's what the prior Lao discloses, correct?

[00:04:11] Speaker 02:
The Lao prior art.

[00:04:12] Speaker 02:
We actually, in one aspect of our argument, we have no problem with combining Lao with leasing, because when you do that, the intuitive thing to do is to put Lao's structure into the combination.

[00:04:25] Speaker 02:
But Lao's structure is a second arabat.

[00:04:28] Speaker 02:
It's a second airbag.

[00:04:29] Speaker 02:
It doesn't even come from the ceiling.

[00:04:30] Speaker 02:
It comes from the side.

[00:04:32] Speaker 02:
If you can imagine, you'd be sitting in the car and the window would be at one level.

[00:04:37] Speaker 02:
Below the window level, the Lao airbag would sort of pop out right next to you on the side, below the window level.

[00:04:46] Speaker 02:
That's Lao.

[00:04:47] Speaker 02:
That's a separate airbag.

[00:04:48] Speaker 02:
So there's not any suggestion in Lao, in leasing, or even in the expert testimony.

[00:04:55] Speaker 02:
advanced by my brother.

[00:04:56] Speaker 03:
A Lao is the rear airbag, right?

[00:04:59] Speaker 02:
I didn't hear him say that.

[00:05:00] Speaker 03:
Lao is the rear.

[00:05:01] Speaker 03:
The rear, correct.

[00:05:03] Speaker 03:
So if you take an airbag in the front, rolled in the sides, and you have prior art that has an airbag in the rear, why not combine those two to have one airbag that covers the front and the rear?

[00:05:15] Speaker 02:
There's nothing in the record suggesting that someone of skill in the art would have made that combination, Your Honor.

[00:05:21] Speaker 02:
You just have to have

[00:05:22] Speaker 02:
We have to have a record support.

[00:05:24] Speaker 04:
Why isn't that a common sense combination?

[00:05:27] Speaker 02:
If it were a common sense combination, the Hereway case says we have to have documentary evidence in the record.

[00:05:34] Speaker 02:
We simply don't.

[00:05:35] Speaker 02:
In fact, I urge your honors to look at page 713 of the record.

[00:05:40] Speaker 02:
That's the page that contains the only paragraph.

[00:05:42] Speaker 04:
But why aren't the prior art references that evidence that you say is lacking?

[00:05:48] Speaker 02:
I'm sorry, Your Honor.

[00:05:49] Speaker 04:
Why is it that the two prior references here are not that evidence that you say is lacking?

[00:05:55] Speaker 04:
I mean, you do have an airbag in the front.

[00:05:58] Speaker 04:
You have one in the rear.

[00:05:59] Speaker 04:
There's a gap there.

[00:06:01] Speaker 04:
Why is it that a posita can't come and just use common sense to say, I'm going to extend this airbag in the front to the back?

[00:06:09] Speaker 02:
If there were evidence of common sense, this would be a different case.

[00:06:11] Speaker 02:
There is no evidence.

[00:06:12] Speaker 02:
There's no documentary or even testimonial evidence.

[00:06:16] Speaker 04:
Common sense is based on the education and experience of a placida.

[00:06:20] Speaker 04:
And it's a factual finding, which the court makes.

[00:06:22] Speaker 04:
And the court made it in this case.

[00:06:24] Speaker 02:
Your Honor, if I may answer the question this way and ask it in the reverse, why wouldn't somebody put Laos technology in the combination with leasing?

[00:06:34] Speaker 02:
It's the magnetic pull, the gravitational pull of a skilled artisan

[00:06:38] Speaker 02:
would be to take the ostensibly working and fully functioning disclosure of law and actually combine it with the disclosure of leasing.

[00:06:46] Speaker 03:
Whether they do or don't or can or can't has nothing to do with this case.

[00:06:50] Speaker 03:
Just because there's an alternative combination they could have done doesn't mean that this one should be allowable.

[00:06:58] Speaker 03:
What is the case you've referenced now two times?

[00:07:01] Speaker 02:
Right.

[00:07:01] Speaker 02:
That's right.

[00:07:02] Speaker 03:
The Hereaway case.

[00:07:03] Speaker 02:
It was about hearing aids.

[00:07:05] Speaker 03:
I can't hear you.

[00:07:06] Speaker 02:
What's the name of the case?

[00:07:07] Speaker 02:
It's exact style.

[00:07:08] Speaker 02:
There's a subsequent case that called it Hear Way, but its exact style is K slash S, H-I-M-P-P.

[00:07:15] Speaker 03:
Oh, OK.

[00:07:16] Speaker 02:
All right.

[00:07:16] Speaker 02:
OK.

[00:07:17] Speaker 02:
And that was the hearing aid case.

[00:07:18] Speaker 02:
So if you can picture a hearing aid with multiple electronic modules, one of them is in the back of the ear, another is in the inner ear, the issue there was

[00:07:30] Speaker 02:
The claim had a requirement of a multiple prong electrical connector.

[00:07:35] Speaker 02:
So the common sense that was supposedly found by the Inter partes re-examination examiner and then affirmed by the board was that it would have been common sense, because everybody knows that electrical connectors can have multiple plugs, it would have been common sense to, say, use a multiple plug for that electrical connector.

[00:07:56] Speaker 02:
And this court was absolutely emphatic.

[00:07:59] Speaker 02:
that if you're going to go in that direction with a single reference modification theory, you have to have documentary evidence that existed in the world.

[00:08:09] Speaker 02:
You can't just use your judicial common sense.

[00:08:12] Speaker 02:
You can't use your hindsight common sense in the year 2018.

[00:08:15] Speaker 02:
There must be documentary evidence.

[00:08:19] Speaker 02:
So the type of thing that we don't see here is, for example,

[00:08:23] Speaker 02:
you know, a doctoral thesis deposited at the Library of the University of Michigan, you know, where they do a lot of automotive research.

[00:08:30] Speaker 02:
You don't see a doctoral thesis popping out of nowhere saying, hey, let's make these airbags encroach into the other passenger compartment.

[00:08:39] Speaker 02:
Nothing like that exists on the record.

[00:08:41] Speaker 02:
We have the conclusory testimony of the expert.

[00:08:45] Speaker 02:
The only thing he ever really says on this point is he says it would have been obvious.

[00:08:50] Speaker 02:
I mean, he puts the word obvious

[00:08:52] Speaker 02:
In the only, if you call it, probative sentence in his paragraph 58 on page 713, that's the definition of a conclusory expert opinion.

[00:09:02] Speaker 02:
What he never says, even in his testimony, when he's trying to, I suppose he's trying to support the case, he never says that one would have extended, he never even says it's common sense, by the way, that one would have extended Leesing's front side airbag rearward into the rear passenger compartment.

[00:09:19] Speaker 02:
And by the way, the claim limitation we're talking about actually has the word extending, the word extending.

[00:09:24] Speaker 02:
That's very important.

[00:09:26] Speaker 02:
I apologize.

[00:09:27] Speaker 04:
The board did credit the testimony of Dr. Prasad when he said that Lau itself discloses to protect occupants in the rear seats.

[00:09:37] Speaker 02:
That's correct.

[00:09:37] Speaker 02:
We don't debate that.

[00:09:40] Speaker 02:
But what that means is there's a magnetic pull to the skilled artisan to go put Lau's technology, if you're going to do anything with accommodation.

[00:09:47] Speaker 02:
put Lao's technology in the rear seat.

[00:09:50] Speaker 02:
Well, a person with skill in the art would see how Lao does it and would practice Lao.

[00:09:55] Speaker 02:
And that involves putting a second airbag that reaches backward from below the window line that inflates backwards on the side.

[00:10:05] Speaker 03:
But what if we're just using a portion of Lao, and that portion of Lao is that we've got a rear airbag.

[00:10:11] Speaker 03:
Can't you do that?

[00:10:12] Speaker 02:
This is why the legal conclusion of obviousness is flawed.

[00:10:16] Speaker 02:
That leads you to a second airbag.

[00:10:18] Speaker 02:
And I haven't said this clearly enough.

[00:10:20] Speaker 02:
I apologize.

[00:10:22] Speaker 02:
The claim requires a single side to current airbag.

[00:10:25] Speaker 03:
Yeah, but can't we conclude, whether it's common sense or whatever, that if you've got two references and one has a front airbag and one has a rear airbag, that you would be motivated to modify it into one airbag that covers the front and the back, right?

[00:10:40] Speaker 02:
I don't think there is such a notion of common sense.

[00:10:44] Speaker 02:
These are technological designs where you have to accommodate many factors in the engineering, in the safety engineering, especially of a car.

[00:10:54] Speaker 03:
Well, that goes to another aspect of obviousness, right?

[00:10:58] Speaker 03:
How difficult it would be to modify the references to achieve the results, right?

[00:11:04] Speaker 02:
Absolutely.

[00:11:04] Speaker 03:
Kind of a different inquiry.

[00:11:06] Speaker 03:
And isn't that a substantial evidence review?

[00:11:09] Speaker 03:
And isn't that one note where we'd have to defer to the board?

[00:11:11] Speaker 02:
Well, I would concede that a reasonable expectation of success analysis receives the deferential review.

[00:11:19] Speaker 02:
And I'm not debating that that standard review is deferential and substantial evidence.

[00:11:24] Speaker 02:
But here, the ultimate legal conclusion of obviousness must be rationally based.

[00:11:28] Speaker 02:
There's no reasoning for why the skilled artisan would have done this change, this modification,

[00:11:35] Speaker 02:
this alteration to leasing, where there's no record support that there is any person of skill in the arc who would have extended an airbag into another seating area.

[00:11:46] Speaker 02:
I see I'm ending my rebuttal time.

[00:11:47] Speaker 03:
Thank you.

[00:11:48] Speaker 03:
We'll hear from the other side.

[00:12:04] Speaker 01:
May it please the court.

[00:12:06] Speaker 01:
I'd like to address one thing my colleague said about the single reference obviousness versus two references.

[00:12:15] Speaker 01:
The board quite clearly in their decision, in their final written decision on page 15, and it's in the appendix 15, clearly articulates that the petitioner was relying on, is relying on, a combination of the two references.

[00:12:30] Speaker 01:
And so it's not a single reference obviousness,

[00:12:33] Speaker 01:
So one of the fundamental positions that the patent owner is taking here is just misapplied.

[00:12:42] Speaker 01:
What the board did find was that there was evidence to modify lysing to extend the airbag into the rear seat.

[00:12:54] Speaker 01:
And the reason for doing that was the pretty straightforward reason to protect

[00:13:02] Speaker 01:
rear seat occupants.

[00:13:04] Speaker 03:
And the board... But this is an odd kind of combination case, right?

[00:13:08] Speaker 03:
Because it's not one where you just take reference A and reference B and put them together, right?

[00:13:12] Speaker 01:
That's correct.

[00:13:13] Speaker 03:
I mean, it could just as easily been a single reference saying you've got a front-air bag.

[00:13:19] Speaker 03:
It's obvious to extend it to the back, right?

[00:13:23] Speaker 01:
One could think that it is a reference that gets extended into

[00:13:30] Speaker 01:
I'm sorry, an airbag that gets extended into the rear.

[00:13:33] Speaker 01:
But what we're looking at with licensing is the sum total of all the claims.

[00:13:40] Speaker 01:
Now, we're focusing primarily on that disputed limitation of whether or not a single airbag extends to the rear.

[00:13:47] Speaker 01:
But what licensing and LAO address are all the different limitations of the claim.

[00:13:53] Speaker 01:
And that's why the whole missing element thesis that they have is

[00:13:58] Speaker 01:
is incorrect, because there is a single airbag.

[00:14:02] Speaker 01:
The single airbag, as the board described and did their careful analysis, said that that single airbag could be extended into the rear.

[00:14:10] Speaker 01:
And the reason why it could be extended is that protection of the rear seat occupant.

[00:14:19] Speaker 01:
And that fundamentally, I think, is the job the board had to do, and they did it.

[00:14:26] Speaker 01:
patent owner can complain about the result, about the combination, whether or not the more, in their view, logical combination would be a combination of Lao and lysing would be two airbags, one in the front, one in the rear.

[00:14:41] Speaker 01:
But that's not what the board considered.

[00:14:43] Speaker 01:
That's not what our position was.

[00:14:44] Speaker 01:
And what the board credited our expert testimony with was that one could extend lysing all the way back to the rear, and that that itself

[00:14:54] Speaker 03:
So all we're drawing from the reference of Lao is the fact of a rear airbag.

[00:15:02] Speaker 01:
That is one of the things that we're getting from Lao.

[00:15:06] Speaker 01:
Lao has a single inflator.

[00:15:09] Speaker 01:
Lao has kind of the setup.

[00:15:11] Speaker 01:
It's protecting both the front and the rear.

[00:15:13] Speaker 01:
So the main thing we're getting from Lao is that teaching of the protection of the rear seat.

[00:15:19] Speaker 01:
That is correct, Your Honor, but I don't want to kind of isolate

[00:15:23] Speaker 01:
what Lao is teaching because what it's teaching is so much more about the use of airbags and protection.

[00:15:31] Speaker 01:
It's the reason why, and it's the reason why my colleague is not changing, is not kind of saying that the references can't be combined.

[00:15:38] Speaker 01:
They clearly can be combined.

[00:15:40] Speaker 01:
And what their challenge is that they want to have a different combination than the board considered.

[00:15:46] Speaker 01:
They want to have a different combination than the board ultimately decided and say that

[00:15:50] Speaker 03:
So where is the motivation to do the combination?

[00:15:56] Speaker 01:
Where is the motivation?

[00:15:58] Speaker 01:
It's on page 713 of the appendix and it is in paragraph 58 of the expert report, which is page 738.

[00:16:08] Speaker 01:
There's also expert testimony with regard to the motivation to combine and

[00:16:17] Speaker 01:
And there I would also point you to Appendix 1384 to 1386, where Dr. Prasad addressed all the issues that the patent owner raised in their patent owner response.

[00:16:32] Speaker 01:
The combination of the references, the reasonable expectation of success, the testing that would be required.

[00:16:39] Speaker 01:
All of those things that the patent owner identified in the patent owner preliminary response

[00:16:44] Speaker 01:
are things that are expert addressed.

[00:16:48] Speaker 01:
There's also kind of expert testimony and deposition, because what Dr. Prasad, being a declarant, was subjected to a deposition to cross-examination to challenge his position.

[00:17:03] Speaker 01:
And throughout his deposition, he talked about the testing that would be required and all the things, the indicia of a reasonable expectation of success that someone skilled in the art would have.

[00:17:13] Speaker 01:
And I think it's important to recognize that the board credited Dr. Prasad's testimony with regard to that combination.

[00:17:22] Speaker 01:
And that testimony was subject to cross-examination.

[00:17:35] Speaker 01:
I think if the panel has any questions, I'd be happy to answer them.

[00:17:41] Speaker 01:
But if not, I will see the rest of my time.

[00:17:54] Speaker 00:
Thank you.

[00:17:54] Speaker 00:
OK.

[00:17:54] Speaker 00:
Let me tell you what is disturbing me, really, about this case.

[00:17:59] Speaker 00:
And I was just taking another look.

[00:18:02] Speaker 00:
I can foresee, not know anything about these mechanics, that the design, the mechanical, can you hear me all right?

[00:18:10] Speaker 02:
I think so, yes.

[00:18:11] Speaker 02:
Thank you.

[00:18:11] Speaker 00:
I don't know if this, maybe that helps.

[00:18:16] Speaker 00:
Oops.

[00:18:16] Speaker 00:
Does this help?

[00:18:17] Speaker 02:
Much, very much.

[00:18:18] Speaker 02:
Thank you.

[00:18:18] Speaker 00:
That the mechanical implementation of this expanded structure, where an impact at one point might actually have a consequence over the entire side of the vehicle or whatever it is, that there would be details in the implementation that might

[00:18:41] Speaker 00:
provide an easier solution, but it looks to me, again, taking a quick look at the claims, as if the claims, oh, really are broadly directed without a few extra words, but still without changing the concept, the broad concept of an entire curtain-side airbag, front and back, without additional limitations that might add some

[00:19:11] Speaker 00:
consequence of unobviousness?

[00:19:16] Speaker 02:
There are additional limitations about single inflator, but essentially what we're focusing... They're not substantive as far as I could tell.

[00:19:23] Speaker 00:
That's my question rather than... Okay.

[00:19:26] Speaker 02:
What we're focusing today is indeed on the part of the claim, which says you have a single airbag that extends across multiple side compartments.

[00:19:35] Speaker 02:
It's a single side curtain airbag for two passenger rows.

[00:19:39] Speaker 02:
That's correct.

[00:19:41] Speaker 02:
Uh, if I may, uh, I hope that answers your question, your honor.

[00:19:45] Speaker 02:
If I may turn to what I just heard from, from my brother here, uh, he indicated that the record showed the testimony relied on by the board was that the airbag could be extended.

[00:19:57] Speaker 02:
Uh, I mean, could be extended if we go to, uh, this court's case law could have done or could extend is never the law.

[00:20:07] Speaker 02:
It's would have.

[00:20:09] Speaker 02:
That's the legal standard that supports a motivation to combine or a suggestion to change or modify.

[00:20:16] Speaker 02:
It's would have, not could have.

[00:20:19] Speaker 02:
And one other important point about the case law that we have to put on the table here is that that motivation or suggestion has to lead to the claimed invention.

[00:20:30] Speaker 02:
It has to suggest and achieve the claimed invention.

[00:20:35] Speaker 02:
And that's kinetic concepts in all the cases

[00:20:38] Speaker 02:
after that, such as nuvasive.

[00:20:40] Speaker 02:
So in one final point before I step away, it's that there were, in fact, undisputed reasons why one would not have approached leasing to make the modification suggested by the petitioner.

[00:20:55] Speaker 02:
And there were many reasons, but these particular ones I'm going to mention were undisputed.

[00:21:01] Speaker 02:
By 1995, frontal airbags that come

[00:21:05] Speaker 02:
to the passenger from the very front were required.

[00:21:09] Speaker 02:
If you put a frontal airbag into the leasing prior art, it's got a torso airbag coming from the ceiling and the side airbag that's connected to that torso airbag.

[00:21:19] Speaker 02:
An out of position occupant would have been subjected to what I'm going to call a one-two punch

[00:21:25] Speaker 02:
And at 1725 to 1726, we have our expert explaining that crashes are often concatenated events.

[00:21:32] Speaker 04:
So does the combination of the two airbags into one airbag eliminate that risk that you're talking about?

[00:21:38] Speaker 02:
It would exacerbate it, because the expert testimony was that one would require an even more powerful inflator to accommodate the expansion, supposedly, that's going to happen to make this single airbag even bigger to go to the rear seat.

[00:21:54] Speaker 02:
So the one-two punch would be exacerbated, and if you can imagine, a severe spinal injury or death will unnecessarily occur, and I say unnecessarily because the skilled artisan would run away screaming from a reference like leasing.

[00:22:09] Speaker 02:
One final point, if I may, I see I'm beyond my time, but I'll finish very quickly.

[00:22:15] Speaker 02:
1728, children who are out of position can have their heads and spines crushed.

[00:22:21] Speaker 02:
by the leasing technology for the reason not to go there.

[00:22:24] Speaker 02:
So therefore, the legal conclusion of obviousness was wrong, Your Honors.

[00:22:29] Speaker 02:
We respectfully request that this court reverse the board.

[00:22:32] Speaker 03:
Thank you.

[00:22:33] Speaker 03:
We think outside the case is submitted.

[00:22:34] Speaker 03:
That concludes our proceedings for this morning.