[00:00:48] Speaker 00:
The next case is Kurt Joa, Incorporated vs. Pharmacamica Data, SBA, 2018-12-97.

[00:01:01] Speaker 00:
Mr. Krumholtz.

[00:01:03] Speaker 02:
Thank you, Your Honor.

[00:01:06] Speaker 02:
We go from digital media to diapers.

[00:01:16] Speaker 02:
The decision of the Patent Trial and Appeal Board must be reversed.

[00:01:22] Speaker 02:
The prior art clearly taught the invention of the 761 Patent.

[00:01:27] Speaker 02:
The Coslet reference disclosed an aperture in the elastomeric material through which the first and second non-woven material layers bond to each other.

[00:01:37] Speaker 02:
The Kielpikowski reference expressly disclosed the non-woven facing sheets directly, autogenously bonding to each other.

[00:01:45] Speaker 02:
where autogenous means the same material is bonded to the same material.

[00:01:50] Speaker 00:
Of course, what a reference teaches is a fact question.

[00:01:54] Speaker 00:
We have a reference to the PTO on fact questions, and the PTO found otherwise on both of those points.

[00:02:01] Speaker 02:
And I don't argue with you, Your Honor, but I do note that the plain meaning of the term autogenous is the same material being bound to the same material, and that when the PTO

[00:02:13] Speaker 02:
created a brand new definition for the termitogenous out of thin air.

[00:02:18] Speaker 02:
It provided no reference in its opinion as to why that term was being interpreted in any way different than its plain and ordinary meaning.

[00:02:28] Speaker 02:
And that is clear error because there is no evidence to support that change in that term.

[00:02:33] Speaker 02:
That term was used in our petition.

[00:02:38] Speaker 02:
It was used in our oral argument

[00:02:42] Speaker 02:
to properly indicate that the non-woven material was bonded directly to the non-woven material through the opening as laid out in Kilpikowski and it was never ever objected to in that context.

[00:02:56] Speaker 04:
Let me see if I can understand what you're saying.

[00:02:58] Speaker 04:
The COSLA reference doesn't explicitly disclose the aperture feature, correct?

[00:03:08] Speaker 04:
What you're saying is that since COSLA used the same process,

[00:03:12] Speaker 04:
necessarily resulted in these apertures?

[00:03:16] Speaker 02:
It necessarily results in that.

[00:03:17] Speaker 02:
But also, I would point out to you, at appendix 475, the claim of Coslet, which is the European reference, expressly says that its invention is a laminated fabric comprising first and second non-woven webs or apertured films of inelastic material ultrasonically bonded to each other at space-depart intervals through holes in an elastomeric web

[00:03:42] Speaker 02:
sandwiched there between.

[00:03:44] Speaker 02:
So it has an elastomeric web there.

[00:03:47] Speaker 02:
And the second claim says the laminated fabric claimed in claim one wherein the elastomeric web is a scrim.

[00:03:53] Speaker 02:
So it distinguishes the scrim, which has the openings in it, and makes the elastomeric web have openings in it, which is a film.

[00:04:04] Speaker 02:
And in fact, the Coslet reference.

[00:04:07] Speaker 04:
OK, well, the problem is the Coslet reference doesn't

[00:04:11] Speaker 04:
explicitly on the face of it say this.

[00:04:15] Speaker 04:
And we've got to defer to the to the board's interpretation of Coslin.

[00:04:22] Speaker 04:
So I'd like you to turn to Kielpiakowski.

[00:04:26] Speaker 04:
Absolutely.

[00:04:27] Speaker 04:
Which does seem to be explicit.

[00:04:31] Speaker 02:
It is explicit, Your Honor.

[00:04:33] Speaker 02:
And that's at appendix 493.

[00:04:36] Speaker 02:
Excuse me.

[00:04:39] Speaker 02:
The weather.

[00:04:44] Speaker 02:
Kielpikowski teaches the non-woven facing sheets to be directly autogenously bonded to one another.

[00:04:51] Speaker 02:
Autogenous bonds are the same material bonded to the same material, as I previously stated.

[00:04:57] Speaker 02:
The board and the appellee supplied no evidence for contrary meaning.

[00:05:03] Speaker 02:
Where on 493 are you looking at?

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Excuse me.

[00:05:10] Speaker 04:
We've got excerpts.

[00:05:12] Speaker 02:
Yeah.

[00:05:13] Speaker 04:
Line 17, right?

[00:05:15] Speaker 02:
Yeah.

[00:05:16] Speaker 02:
If you read right there, it says, a method for making such breathable cloth-like elastic non-woven laminar fabric comprises the steps of sandwiching a liquid impermeable non-self-adhering elastomeric film or non-woven carrier sheets 110 between at least a pair of non-woven facing sheets 112, 114,

[00:05:40] Speaker 02:
and bonding the facing sheets together by autogenous bonds shown by the arrows 118, such as ultrasonically or thermally generated bonds through the carrier sheet 112 at spaced apart sites 116, thereby forming breathable apertures 120 through the carrier sheet, which laminate the carrier sheet and the facing sheets together at the spaced apart sites 116.

[00:06:04] Speaker 02:
Now 118, unfortunately we don't have the drawings in this specific appendix, but it is in the opinion

[00:06:11] Speaker 02:
If you go to the opinion at Appendix 29, and I apologize for bouncing around, Your Honors, but as you can see, those figures at Appendix 29, Figures 16, 17, and 18 are from Kielpikowski, and you see the Arrow 118 going all the way through the opening, and that's where the autogenous bond is that bonds the two facing nonwoven sheets together.

[00:06:43] Speaker 02:
So Kilpikowsky expressly notes that bonding these two sheets must be done autogenously.

[00:06:53] Speaker 02:
That means the same material bonded to the same material.

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And Kilpikowsky also notes that, and I would go to appendix 493 again at column 10, lines 28 through 54, that if you bond the elastomeric film by means of definition that was

[00:07:12] Speaker 02:
that was chosen by the Patent, Trial, and Appeal Board.

[00:07:15] Speaker 02:
If you did that, what would happen would be there'd be a problem because the elasticity of the material and the stretch would be hurt.

[00:07:24] Speaker 02:
The idea of Kilpakowsky, just like the idea in the 761 patent, is to allow these materials to stretch.

[00:07:33] Speaker 04:
So what did the board say about the disclosure of Kilpakowsky in column 10 as

[00:07:42] Speaker 04:
not disclosing the invention here.

[00:07:45] Speaker 04:
What did they say about that?

[00:07:47] Speaker 02:
Well, when we got to that portion of the appendix at 29, excuse me, of the appendix that we just previously read from the Kielpikowski specification, what the board said was that that disclosure was ambiguous regarding the specific layers being autogenously bonded.

[00:08:11] Speaker 02:
They specifically said, although the petitioner's reading of the sentence.

[00:08:14] Speaker 02:
Where are you reading from?

[00:08:15] Speaker 02:
I'm sorry.

[00:08:15] Speaker 02:
I'm reading from the opinion at Appendix 33, Your Honor.

[00:08:18] Speaker 02:
I apologize.

[00:08:19] Speaker 02:
I should have said that right away.

[00:08:21] Speaker 02:
33?

[00:08:23] Speaker 02:
Yes.

[00:08:24] Speaker 02:
It's Appendix 33, which is page 33 of the decision.

[00:08:28] Speaker 02:
Although petitioners' reading of the sentence is one possible interpretation, this sentence could just as easily be read as teaching that the facing sheets 112 and 114 are each autogenously bonded with the carrier sheet.

[00:08:39] Speaker 02:
That is exactly the opposite of what the term motogenous plainly means.

[00:08:43] Speaker 00:
The next sentence is the second reading more closely corresponds to the disclosure in the figures.

[00:08:49] Speaker 00:
So they're making a judgment there.

[00:08:52] Speaker 00:
Don't we have to defer to that?

[00:08:53] Speaker 02:
You do not have to defer to a judgment that is clearly wrong and clearly uses a redefinition of a term from its plain meaning to a meaning that it doesn't have, where that meaning is not supported by evidence,

[00:09:07] Speaker 02:
of the record or a reasoning by the panel to demonstrate why that term should be given any different meaning.

[00:09:16] Speaker 04:
Well, what is the second reading that they are referring to here?

[00:09:20] Speaker 04:
They say the second reading can just be easily read as teaching the facing sheets 112 and 114.

[00:09:25] Speaker 04:
Those are the carrier sheets.

[00:09:27] Speaker 04:
Those are the two outer sheets, right?

[00:09:30] Speaker 02:
Right.

[00:09:30] Speaker 04:
They're saying that the facing sheets could be... Each are autonomously bonded with carrier

[00:09:37] Speaker 04:
The carrier sheet they're saying is the stretchable material.

[00:09:41] Speaker 04:
Yeah, I understand that, but the carrier sheet is the stretchable material?

[00:09:44] Speaker 02:
Yeah.

[00:09:51] Speaker 04:
But isn't 110 the palastomeric material?

[00:09:56] Speaker 02:
Yeah, they say, well, if you read the paragraph above, Your Honor, it says that

[00:10:06] Speaker 02:
It's the sandwiching of a liquid, impermeable, and non-self-adhering elastomeric film or nonwoven carrier sheet 110 between at least a pair of nonwoven sheets 112 and 114, and bonding the facing sheets 114 together by autogenous bonds.

[00:10:24] Speaker 02:
The whole phrase and purpose there is to bond the facing sheets

[00:10:28] Speaker 02:
together by autogenous bonds.

[00:10:30] Speaker 02:
That's the same material being bonded to the same.

[00:10:32] Speaker 04:
I'm still trying to understand what the board is saying and what this alternative interpretation is.

[00:10:38] Speaker 04:
I mean 110 is not the carrier sheet, right?

[00:10:45] Speaker 02:
Well, I think what they're pointing back to is in that prior paragraph.

[00:10:53] Speaker 04:
Where it says elastomeric film or non-woven carrier sheet.

[00:11:01] Speaker 04:
So 112 and 114 are the facing sheets.

[00:11:06] Speaker 04:
Which are bonded to each other.

[00:11:09] Speaker 04:
So what are they saying?

[00:11:10] Speaker 04:
That maybe this just shows bonding one carrier sheet to the elastomeric material?

[00:11:16] Speaker 04:
I'm not sure that I understand what they're saying.

[00:11:18] Speaker 02:
I think what they're trying to say, and I agree, Judge, what the board's analysis is not clear.

[00:11:25] Speaker 02:
What they're trying to say is that the facing sheets

[00:11:30] Speaker 02:
112 and 114 are being bonded together by means of the elastomeric material.

[00:11:37] Speaker 02:
That is to say, this sort of indirect bonding is what they're trying to say there.

[00:11:42] Speaker 02:
What I'm saying is that's not what it says, because first it uses the word autogenous, meaning it has to be the same material bonded to the same material.

[00:11:52] Speaker 02:
But it also expressly says that the facing sheets are bonded together.

[00:11:59] Speaker 02:
It doesn't say that all three layers are bonded together.

[00:12:02] Speaker 02:
So where the board came up with this, I agree.

[00:12:05] Speaker 02:
It's confusing because it's not what is being said in Kielpikowski.

[00:12:11] Speaker 02:
And did I answer your question, Judge, first of all?

[00:12:15] Speaker 02:
Because I was going to move on to another point, if I may.

[00:12:19] Speaker 02:
Oh, you can move on.

[00:12:23] Speaker 02:
I guess I should move on.

[00:12:25] Speaker 02:
Should I move on?

[00:12:26] Speaker 02:
Yeah.

[00:12:27] Speaker 02:
Oh, OK.

[00:12:27] Speaker 02:
I'm sorry.

[00:12:29] Speaker 02:
The other point I wanted to bring up was the claim construction of through the aperture being limited by the board to just the direct contact of the facing sheets.

[00:12:41] Speaker 02:
Now, I think Kilpikowsky still anticipates even under that limited claim construction.

[00:12:47] Speaker 02:
But it's my position that that claim construction through the aperture should have allowed for both direct and indirect bonding.

[00:12:55] Speaker 02:
And they divorced themselves from the specification

[00:12:58] Speaker 02:
when they made their claim construction on Through the Aperture, because they relied upon the patent owner's expert, specifically his figures one and two, which are shown at appendix page 15 as an embodiment of the claim one of the invention.

[00:13:19] Speaker 02:
The problem is that he testified that these figures were not based upon the specification

[00:13:27] Speaker 02:
of the 761 patent.

[00:13:30] Speaker 02:
They were his mind picture.

[00:13:32] Speaker 02:
And that was his word, his mind picture.

[00:13:37] Speaker 02:
And he based it on just reading the claim.

[00:13:40] Speaker 02:
And you can see that from his testimony at appendix pages 2593 through 2594.

[00:13:46] Speaker 00:
Counsel, you wanted to save some rebuttal time.

[00:13:49] Speaker 00:
You were well into it.

[00:13:51] Speaker 02:
You will save.

[00:13:52] Speaker 02:
I will save what I can, Your Honor.

[00:13:55] Speaker 02:
Thank you so much.

[00:13:56] Speaker 00:
We'll hold it for you.

[00:13:59] Speaker 01:
May it please the court.

[00:14:21] Speaker 01:
I am Pete Pappas, counsel for the patent owner and appellee.

[00:14:26] Speaker 01:
I would like to

[00:14:27] Speaker 01:
acknowledge my colleagues Carissa Blythe and Ann Foote with me here today.

[00:14:33] Speaker 04:
There are at least... So look at Kielpiakowsky, which on its face and content seems to explicitly describe the invention here.

[00:14:43] Speaker 04:
And the board has said, no, there's an alternative interpretation of Kielpiakowsky.

[00:14:51] Speaker 04:
Help me understand what the alternative interpretation is and why that

[00:14:56] Speaker 04:
an alternative interpretation is not the invention here.

[00:15:02] Speaker 01:
Yes, Your Honor.

[00:15:03] Speaker 01:
The interpretation of Kielpikowski is that it discloses a three-layer laminate with the two bondable outer layers bonded to each other by means of or through the middle layer, which will be the stretchable plaster.

[00:15:24] Speaker 01:
And it shows an architecture, right?

[00:15:26] Speaker 01:
It does talk about and show apertures, but it does not describe or show bonding through the apertures.

[00:15:43] Speaker 03:
But isn't that what that word means autogenously?

[00:15:48] Speaker 01:
Autogenously means that materials are bonded together without the addition of

[00:15:56] Speaker 01:
another material like an adhesive.

[00:15:59] Speaker 01:
And the term autogenous is not so limited as to the bonding of two materials directly to each other, but can include in this circumstance, for example, with Kielbakowski, bonding of the three materials to each other.

[00:16:20] Speaker 03:
What's your record evidence for that?

[00:16:22] Speaker 01:
We have, in addition to

[00:16:25] Speaker 01:
What's shown in Kielbakowski, that interpretation is consistent with what you see in Kielbakowski.

[00:16:30] Speaker 03:
Well, I don't see Kielbakowski explaining that one way or another.

[00:16:35] Speaker 01:
I'm referring to the drawings, Your Honor, but also in the record, patent owner's expert, John Blevins, with 30 years experience in... Where is that?

[00:16:46] Speaker 01:
With... Just a moment.

[00:16:50] Speaker 01:
So in the appendix pages 1929,

[00:16:56] Speaker 01:
Paragraph 79, for example... 1829?

[00:17:02] Speaker 01:
1929.

[00:17:02] Speaker 01:
Yes, 1929.

[00:17:08] Speaker 01:
Mr. Don Blevins' declaration does describe what Kilbrickowski discloses, which is the bonding of the two outer layers, if you will,

[00:17:24] Speaker 01:
with or through or by means of the middle elastomeric layer.

[00:17:29] Speaker 04:
But I thought that under the board's own claim construction that you could have a bonding of the three layers at a point within the arperture even as long as around that bonding site there is a space which has a hole in the elastomeric layer.

[00:17:54] Speaker 04:
What the board is, is my statement correct that they, they, they, they say that they say that that's one of the embodiments that I don't believe that's exactly what they said that you can have an aperture and you can have a bond of all three layers in the middle of the aperture.

[00:18:12] Speaker 04:
Right.

[00:18:15] Speaker 04:
Oh, what, what they found was that you can just tell me if I'm right or wrong.

[00:18:18] Speaker 04:
Am I wrong?

[00:18:20] Speaker 04:
Am I right?

[00:18:23] Speaker 01:
Well, you could come up with, I mean, that is a possible bond that could be made with ultrasonic bonding, yes.

[00:18:30] Speaker 04:
OK, so there's nothing wrong with having a bond that includes the middle layer as long as there's an aperture outside that bonding site, right?

[00:18:42] Speaker 01:
Well, for purposes of the claim in question here,

[00:18:50] Speaker 01:
whether there is, in addition to what's in the claim, that type of structure present.

[00:18:56] Speaker 01:
That certainly is possible, but in terms of relevance to the claim, there's anticipation.

[00:19:02] Speaker 04:
Why doesn't Kofiakowsky, even under the board's interpretation, show that?

[00:19:09] Speaker 04:
It has a bonding site which has all three layers, but it also says there's an aperture, right?

[00:19:16] Speaker 04:
Yes.

[00:19:18] Speaker 04:
What's the matter with that as an anticipatory reference under that claim construction which permits a bond of all three layers in the middle of the aperture?

[00:19:28] Speaker 01:
Well, what the claim interpretation does require of the claim that there be bonding of the two outer layers directly to each other within or at the aperture.

[00:19:43] Speaker 01:
And that's what's in the claim.

[00:19:46] Speaker 01:
but not disclosed.

[00:19:47] Speaker 04:
You can't have a bonding that includes both three layers at the middle of the aperture?

[00:19:57] Speaker 01:
You can't.

[00:19:58] Speaker 01:
You can't, right?

[00:20:00] Speaker 01:
You could with ultrasonic bonding, but in terms of anticipating the claim, it has to anticipate what is actually in the interpreted claim, which is to have the two outer layers

[00:20:15] Speaker 01:
bonded directly to each other within or at the aperture and the board expressly states that you know that does not include bonding the two outer layers through the middle layer.

[00:20:37] Speaker 01:
Though in its interpretation the board said both of those things that

[00:20:41] Speaker 01:
bonding through the aperture meant bonding the two layers directly to each other within or at the aperture, and that it also does not mean the two layers bond to each other through the elastic force.

[00:20:56] Speaker 04:
If you read the reference in column 10 of Kielke-Buchowski, it's saying anything else.

[00:21:03] Speaker 04:
It says, such that the ultrasonically or thermally generated bonds through the carrier sheet space depart sites

[00:21:11] Speaker 04:
therefore forming breathable apertures through the carrier sheet, through the carrier sheet, which laminate the carrier and facing sheets together at the spaced apart sites.

[00:21:24] Speaker 04:
Doesn't that talk about bonding the two outer layers?

[00:21:30] Speaker 01:
No, Your Honor, it does not.

[00:21:31] Speaker 01:
It doesn't talk about bonding the two outer layers through the aperture, or within or at the aperture, as expressedly required

[00:21:41] Speaker 01:
by the claims of the 761 patent.

[00:21:45] Speaker 01:
It simply discloses that there are apertures in this structure and that the layers are bonded together.

[00:21:55] Speaker 01:
It does not disclose the structure or the method described in the claims of the 761 patent where the ultrasonic bonding creates the aperture and then bonds the two outer layers through

[00:22:10] Speaker 01:
or within or at the aperture.

[00:22:14] Speaker 01:
That is not disclosed expressly or inherently.

[00:22:18] Speaker 01:
And there's substantial evidence in the record of that, including the testimony of John Blevins in his analysis, which determined lack of anticipation.

[00:22:32] Speaker 01:
Did the board rely on that testimony?

[00:22:35] Speaker 01:
Yes, Your Honor, the board did rely on that testimony.

[00:22:40] Speaker 01:
and also expressly found Mr. Blevins to be credible in particular.

[00:22:47] Speaker 00:
I guess that's at the bottom of appendix 33.

[00:22:49] Speaker 00:
Mr. Blevins' testimony.

[00:23:05] Speaker 00:
And then, page 44.

[00:23:11] Speaker 00:
Certainly a close question.

[00:23:17] Speaker 01:
Yes, Your Honor.

[00:23:17] Speaker 01:
I couldn't quite hear.

[00:23:18] Speaker 01:
Say again, please.

[00:23:19] Speaker 00:
Certainly a close question, and I see that they do credit Blevins' testimony.

[00:23:26] Speaker 01:
Yes, Your Honor.

[00:23:27] Speaker 01:
Mr. Blevins' testimony is credited, and it's also quite substantial on this point.

[00:23:38] Speaker 01:
I think, you know, and for the question of anticipation, of course, it is a substantial evidence issue.

[00:23:46] Speaker 01:
And Mr. Blevins' testimony in combination with what is shown and described in Kielpikowski, I think, does provide at least substantial evidence for the board's lack of anticipation finding.

[00:24:01] Speaker 01:
And, you know, furthermore, with regard to Kielpikowski,

[00:24:09] Speaker 01:
Uh, in addition to lacking any express, uh, disclosure, um, it also, uh, fails, uh, to present information where the method, uh, in resulting product sensitive on patent claims would necessarily follow.

[00:24:23] Speaker 01:
Um, Mr. Blevins, uh, testimony in that is also quite extensive.

[00:24:27] Speaker 01:
Uh, and, um, with regard to, uh, autogenous, um, if I may, um, substantively, as we discussed,

[00:24:38] Speaker 01:
Autogenous, it does not carry the narrow definition that's presented by the appellant, but as I described earlier, certainly encompasses and would be consistent with the disclosure and figures of Kilpikowski to include bonding of the three components to one another, as is consistent with Kilpikowski and Mr. Blevins' testimony.

[00:25:05] Speaker 01:
Mr. Blevins did testify

[00:25:07] Speaker 01:
with regard to the disclosure of Kielpikowski and described Kielpikowski as disclosing, bonding the two outer layers through the middle elastomeric layer, very consistent with a definition of autogenous.

[00:25:32] Speaker 01:
Also with regard to autogenous, we would note that

[00:25:36] Speaker 01:
argument was not presented by appellant until oral hearing with the board, which was untimely as well.

[00:25:49] Speaker 01:
The board did consider that and made a finding on that supported by substantial evidence of lack of anticipation, but also the evidence that appellant cites to, which is a dictionary.com definition, was not presented

[00:26:06] Speaker 01:
below was only presented for the first time in the appeal documents before the school.

[00:26:12] Speaker 00:
You define autogenous as not requiring a separate glue.

[00:26:19] Speaker 00:
They bonded together themselves.

[00:26:21] Speaker 01:
Yes.

[00:26:22] Speaker 01:
Autogenous means that the materials bonded to themselves and there is not the addition of another material, for example, and adhesive.

[00:26:31] Speaker 01:
And that's consistent.

[00:26:32] Speaker 04:
So it would exclude having the elastomeric layer in between.

[00:26:36] Speaker 01:
In the context of Kilpikowski, which that is the fundamental structure here, three layers, two outer layers and a middle elastomeric layer, the reference shows those three being bonded together.

[00:26:50] Speaker 01:
But you're not answering my question.

[00:26:52] Speaker 04:
Photogenous means in this context that the two outer layers would be bonded together without the elastomeric layer in between.

[00:27:04] Speaker 01:
Your Honor,

[00:27:05] Speaker 01:
Patner would say, no, that's not what it means with regard to Kielbacowski.

[00:27:12] Speaker 04:
Are you using autogenous in a different sense in Kielbacowski?

[00:27:18] Speaker 01:
Yes, because autogenous means that the materials are bonded to each other without an additional material.

[00:27:25] Speaker 01:
The three materials present and shown as bonded to each other in Kielbacowski are the three layers bonded to each other without the addition of

[00:27:33] Speaker 01:
another material such as an adhesive.

[00:27:36] Speaker 01:
So the disclosure of Kilbrickowski itself also consistent with the testimony of John Blevins.

[00:27:44] Speaker 04:
So where it says to bonding the facing sheets together by autogenous bonds, you're construing that as meaning that it can be bonded together by the elastomeric material?

[00:27:56] Speaker 01:
Yes, in the context of this structure.

[00:27:59] Speaker 04:
I'm not sure why.

[00:28:01] Speaker 04:
Why would it have a different meaning than usual?

[00:28:05] Speaker 01:
Well, I wouldn't say that the usual meaning is just that the two materials are bonded to each other.

[00:28:12] Speaker 01:
It's that materials are bonded to each other without the addition of additional materials.

[00:28:19] Speaker 01:
Here, the three fundamental materials are these three materials.

[00:28:23] Speaker 04:
The additional material is the elastomeric layer.

[00:28:28] Speaker 01:
In this case, when you look at Kielbakowski and its disclosure or lack thereof, Kielbakowski simply shows the materials being bonded, those three materials being bonded to each other.

[00:28:43] Speaker 01:
It does not show or disclose the two materials being bonded to each other within the aperture.

[00:28:49] Speaker 01:
And so the claim does not merely require holes and then the two outer layers.

[00:28:58] Speaker 01:
bonded to each other, it requires that the ultrasonic bonding create the aperture and then bond the two outer layers directly to each other within the aperture.

[00:29:11] Speaker 00:
I see the word autogenous does not appear in claim one.

[00:29:19] Speaker 00:
Or am I missing it?

[00:29:21] Speaker 01:
It does not appear where, Your Honor?

[00:29:22] Speaker 01:
In claim one.

[00:29:24] Speaker 01:
Of the 761 patent?

[00:29:26] Speaker 01:
Yes.

[00:29:27] Speaker 01:
Correct.

[00:29:27] Speaker 01:
Autogenous does not appear.

[00:29:29] Speaker 01:
But it does describe the two outer layers of material being bonded to each other within the aperture, directly to each other in the aperture.

[00:29:40] Speaker 00:
Thank you, counsel.

[00:29:42] Speaker 00:
Mr. Holts has some rebuttal time.

[00:29:46] Speaker 01:
Yes, your honor.

[00:29:47] Speaker 01:
Thank you.

[00:29:47] Speaker 01:
And again, we would ask for the board's decision.

[00:29:50] Speaker 00:
I understand.

[00:29:53] Speaker 02:
I'll be very quick.

[00:29:57] Speaker 02:
that my learned friend on the other side here conceded that autogenous materials are materials without the addition of another material, bonding without the addition of another material.

[00:30:12] Speaker 02:
The Kielpikowski reference expressly defines that the non-woven materials are the same materials, the elastic materials a different material.

[00:30:21] Speaker 02:
It says that the facing sheets, the non-woven facing sheets are bonded directly to each other through

[00:30:27] Speaker 02:
the elastic material, so there's this direct bonding.

[00:30:30] Speaker 02:
And Your Honor, you are correct.

[00:30:33] Speaker 02:
The claim of the 761 patent does not use the word autogenous.

[00:30:36] Speaker 02:
And that means that its breadth is such that it should not be limited simply to a direct non-woven to non-woven bonding, but should include bonding that includes layers such as the elastomeric layer.

[00:30:50] Speaker 02:
And Kilpikowski clearly anticipated that claim.

[00:30:53] Speaker 02:
The panel decision was wrong.

[00:30:55] Speaker 02:
and we respectfully request that the PTAB decision be reversed.

[00:31:00] Speaker 00:
Thank you very much.