[00:00:23] Speaker 03:
Our next case is number 181134, Goodson Holdings versus Tideflex Corporation.

[00:00:57] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:01:01] Speaker 04:
I think the easiest way to categorize this case is to conceive, as I did in the brief, of a highway, carrying trucks with hazardous materials.

[00:01:11] Speaker 04:
One option for dealing with the danger posed by those trucks is to create additional lanes, hoping to disperse the traffic and thereby lessen the probability of a wreck causing damage to the road or other vehicles.

[00:01:27] Speaker 04:
That is the approach which was taken by the prior art.

[00:01:31] Speaker 04:
A different approach is to get the hazardous trucks off of the highway completely, putting them on an express separate lane, which is not without abilities to change lanes back into the main highway.

[00:01:47] Speaker 04:
That is the approach which was taken by Goodson in his patents.

[00:01:52] Speaker 04:
In electrical terms,

[00:01:56] Speaker 04:
The highway of adding lanes dissipates, spreads out a charge.

[00:02:01] Speaker 04:
An express separate lane diverges.

[00:02:04] Speaker 03:
I don't think your analogy here is going to carry today.

[00:02:09] Speaker 03:
Let's talk about the specifics of the prior art here.

[00:02:12] Speaker 03:
And what's your contention is that there can't be of this conduit wire, that it can't be touching

[00:02:26] Speaker 03:
or in close proximity to the tomb here?

[00:02:35] Speaker 03:
Is that your contention?

[00:02:37] Speaker 04:
Yes, your honor, because that would render the conductive layer of yamani or arioki or the conductive materials of yamani as to be not parallel and not a shunt and not direct.

[00:02:54] Speaker 04:
So that is the problem.

[00:02:55] Speaker 04:
Doesn't the prior art show close proximity?

[00:02:59] Speaker 04:
The prior art does show proximity.

[00:03:01] Speaker 04:
That is exactly our position.

[00:03:03] Speaker 04:
In fact, not just proximity, but for example, in the Yomini patent, it expressly provides element five in the diagrams, a connector, a conductive connector.

[00:03:13] Speaker 03:
Okay, but doesn't your own specification show close proximity in an alternative embodiment?

[00:03:20] Speaker 04:
No, Your Honor, it does not.

[00:03:21] Speaker 04:
It is a direct

[00:03:23] Speaker 04:
Separate is parallel.

[00:03:25] Speaker 04:
The claims themselves say keeping the electricity off of the stainless tubing.

[00:03:30] Speaker 04:
It uses the word shunt.

[00:03:33] Speaker 04:
I mean, in every way I can conceive, it is not electrically proximate.

[00:03:39] Speaker 04:
It is not conductive.

[00:03:41] Speaker 02:
I think what your argument here is, and I don't mean to be redundant, but it's argumentative.

[00:03:49] Speaker 02:
And I say that because your argument is inconsistent with the claims.

[00:03:55] Speaker 02:
The claims don't provide for what you're saying.

[00:03:57] Speaker 02:
The claims seem to me to provide that even with the invention, even with the wire there, that the wire is not going to carry all the charge.

[00:04:07] Speaker 02:
The charge is still going to go to the conduit, even though it's minimal.

[00:04:12] Speaker 02:
But you're still going to have some charge on the conduit.

[00:04:16] Speaker 02:
At least that's what the claims say.

[00:04:18] Speaker 04:
Your Honor, I would respectfully disagree for two reasons.

[00:04:22] Speaker 04:
One is the fact the word shunt, the fact that the claims say that tubing doesn't carry electricity, rather it's carried by the conductive means, the word parallel, the word direct.

[00:04:35] Speaker 04:
All of those drive the conclusion that they are not conducting.

[00:04:39] Speaker 02:
You agreed to a construction of conductive means that means

[00:04:44] Speaker 02:
that appears to me to say both direct and indirect, meaning that the electrical contact can continue to exist with the invention in place.

[00:04:55] Speaker 04:
Well, Your Honor, that's the second response to your question earlier.

[00:04:58] Speaker 02:
That drives this argument here.

[00:05:00] Speaker 04:
Well, Your Honor, I think we have to step back to electrical engineering and realize when you have two potential paths and one conductor is, for example, the conductive means is not of zero resistance.

[00:05:15] Speaker 04:
And likewise, the stainless steel tubing is not of infinite resistance.

[00:05:22] Speaker 04:
So, electrically speaking, if you've got a charge applied at either end, connectors, there's certainly going to be some amount.

[00:05:31] Speaker 04:
And as Dr. Alcove explained in his declaration, recognition of that is in no way a concession that the electrical charge

[00:05:41] Speaker 04:
that causes damage is still going along the tubing.

[00:05:44] Speaker 04:
It is simply, in the claim of Goodson, a shunt without a contention.

[00:05:50] Speaker 03:
But your specification on column three beginning about line 29, or I'm sorry, 33 or 34, says the majority of the current is carried by the conductive wire rather than the CSST.

[00:06:10] Speaker 03:
So that suggests that some, perhaps close to a majority, could be carried by the tubing.

[00:06:18] Speaker 04:
Well, Your Honor, respectfully, I would commend to the court to consider the appendices, pages 306 through 311.

[00:06:25] Speaker 04:
But answer my question about this reference in column three.

[00:06:29] Speaker 04:
Your Honor, those pages address that reference.

[00:06:32] Speaker 04:
And the explanation is that that is simply a recognition.

[00:06:36] Speaker 04:
If you have two elements,

[00:06:40] Speaker 04:
Unless one is infinite and the other is zero resistance, there will be some de minimis current on the smaller one.

[00:06:46] Speaker 03:
It doesn't say de minimis.

[00:06:47] Speaker 03:
It says a majority is carried by the wire, which suggests that a substantial amount could be carried by the tubing.

[00:06:54] Speaker 04:
Well, Your Honor, if you look at the claims themselves, it says the current is carried by the conductor rather than the tubing, the stainless tubing.

[00:07:03] Speaker 04:
And also the limits claim so as to prevent damage

[00:07:07] Speaker 04:
And if you do not isolate these, it does not prevent damage.

[00:07:11] Speaker 02:
So let's say 48% is carried by the conduit, and 52% is carried by the wire.

[00:07:22] Speaker 02:
How can that be a shunt?

[00:07:24] Speaker 02:
Your honor, I would submit that's not a shunt.

[00:07:26] Speaker 04:
Well, it's not.

[00:07:26] Speaker 04:
No, I agree.

[00:07:27] Speaker 04:
No, I mean, what happens in the real world is that the CSST, the stainless tubing, will be carrying less than 99%.

[00:07:34] Speaker 02:
So then are you conceding that

[00:07:36] Speaker 02:
that the invention is not a shunt, does not shunt the power?

[00:07:41] Speaker 04:
No, Your Honor, it certainly is a shunt.

[00:07:43] Speaker 04:
What I am conceding is that in the world you will have some amount.

[00:07:47] Speaker 02:
The specification allows for the material or the pipe itself, the conduit pipe, and the wire to carry charge.

[00:07:56] Speaker 04:
Well, Your Honor, you have to, one, read it in connection with the limitation, which says the current is carried by the conductive matter, not the stainless steel tubing.

[00:08:05] Speaker 04:
So in looking at that sentence from the specification, we should not lose sight of the limitation.

[00:08:10] Speaker 02:
Do you disagree with Judge Dyck's question that the conduit can carry a substantial amount of the charge?

[00:08:18] Speaker 02:
Maybe not the majority, or above that, 48, 52?

[00:08:21] Speaker 04:
Well, Your Honor, I do not believe I agree that they could carry a substantial portion, Your Honor.

[00:08:28] Speaker 04:
given the conductivity of copper aluminum versus stainless.

[00:08:33] Speaker 04:
Is it 25-75%?

[00:08:34] Speaker 04:
Oh, no, Your Honor.

[00:08:35] Speaker 04:
We're talking literally just 99% versus one.

[00:08:38] Speaker 04:
This is not a matter of close or division or... Where do we get to 99 versus 1% from the specifications?

[00:08:46] Speaker 04:
Well, Your Honor, if you... One, again, if you look at the limitation, it says it's carried.

[00:08:50] Speaker 04:
Second, if you look at the type of material, the conductivity of the conducting means has to be better or greater

[00:08:56] Speaker 04:
than the conductivity of the CSST.

[00:08:59] Speaker 04:
If you use the word shunt, it connotes that.

[00:09:02] Speaker 04:
All of the words that are used in direct.

[00:09:05] Speaker 04:
The only way that you get to the conclusion that the panel or the board made was to disregard those concepts.

[00:09:13] Speaker 04:
And clearly, Goodson is breaking with the prior art by saying that there is no communication between this conductive member and the stainless steel tubie.

[00:09:25] Speaker 04:
In Rivest, you had a conductive layer that was distinguished by the examiner.

[00:09:30] Speaker 04:
In Yamine, you have conductive members with this element five that connect them electronically.

[00:09:36] Speaker 04:
And in Oke, you have the layer.

[00:09:40] Speaker 01:
Doesn't Yamine also teach an embodiment where there's an insulating layer between the tubing and the conductor?

[00:09:47] Speaker 04:
Actually, when using the insulator, it either says use the item five to pierce between the two so you have an electrical connection or place the member actually on the interface of the insulating layer so that the conductive member is touching the CSST.

[00:10:03] Speaker 04:
It expressly requires some kind of electrical connection between the conductive member and the CSST.

[00:10:10] Speaker 04:
Likewise, you have the same.

[00:10:11] Speaker 04:
Where is that in Yamane?

[00:10:14] Speaker 04:
Your Honor, in Yamane,

[00:10:16] Speaker 04:
If you look at paragraphs, it's the appendix 32-20.

[00:10:21] Speaker 04:
If you examine paragraphs 22 and 24, this talks about the conductive members and embodiments.

[00:10:29] Speaker 04:
Or if you look at paragraph 35, you will find the discussion regarding the conductor touching the tubing directly.

[00:10:37] Speaker 01:
If you could just show me a sentence, that'd be great.

[00:10:40] Speaker 04:
Yes, Your Honor.

[00:10:54] Speaker 04:
Your Honor, if you're looking at the Oakey... I'm looking at Yamane.

[00:10:58] Speaker 04:
Oh, Yamane.

[00:10:59] Speaker 04:
I'm sorry, Your Honor.

[00:11:00] Speaker 04:
I thought we were talking about you.

[00:11:02] Speaker 01:
Isn't Yamane the one that talks about an insulating layer between the conductor and the tubing?

[00:11:09] Speaker 01:
The corrugated stainless steel tubing?

[00:11:13] Speaker 04:
Yes, Your Honor.

[00:11:13] Speaker 04:
And if you look at the...

[00:11:18] Speaker 04:
I mean, paragraph 35 of the Omni, that's what I was, I'm sorry, the appendix 3222.

[00:11:24] Speaker 04:
And you'll see in that paragraph, it describes the conductive members are in an indolent pattern between the insulating cover and the tube body.

[00:11:45] Speaker 04:
In other words, the conductive members

[00:11:47] Speaker 04:
and Yomini and that embodiment are interwoven between the inner surface of the insulating layer and the CSST.

[00:11:57] Speaker 04:
They're touching the tubing.

[00:11:59] Speaker 04:
So that's why I say the first three embodiments, there's actually a structure and then in this one, the fourth embodiment, you don't have a structure because the conductive members are actually touching.

[00:12:12] Speaker 03:
You keep saying

[00:12:13] Speaker 03:
in your brief that the prior art failed miserably.

[00:12:17] Speaker 03:
I don't see any site for that.

[00:12:18] Speaker 03:
What's the site for?

[00:12:20] Speaker 04:
Well, Your Honor, the testing that is described in the videos, which we gave links to, are testing of products which do not use this shunt or separate paths.

[00:12:31] Speaker 04:
In every one of those, you'll see failures at levels far below an average life.

[00:12:36] Speaker 04:
Where is this in the record?

[00:12:40] Speaker 04:
Your Honor, Page

[00:12:44] Speaker 04:
I'm sorry, I'll have to cite you to my brief, which in turn has the link.

[00:12:49] Speaker 03:
The brief keeps saying the prior art failed miserably, but it doesn't have a site.

[00:12:55] Speaker 04:
Well, there's a reference in Dr. Ico's declaration.

[00:13:19] Speaker 04:
I would refer you to Appendix 286.

[00:13:21] Speaker 04:
286?

[00:13:21] Speaker 04:
Yes, Your Honor.

[00:13:23] Speaker 04:
Your Honor, I also want to address... Where does it say that on 286?

[00:13:34] Speaker 04:
I'm sorry, I don't have that appendix with me, Your Honor.

[00:13:36] Speaker 04:
You don't have the appendix with you?

[00:13:38] Speaker 04:
Your Honor, I don't have all 500 pages printed out, no, Your Honor.

[00:13:41] Speaker 03:
That is Dr. Alcove's, Icove's... This volume that you submitted to the court, you didn't bring that with you?

[00:13:46] Speaker 03:
I have it on my laptop, yes, Your Honor.

[00:13:49] Speaker 03:
Well, so where is this on page 286?

[00:13:51] Speaker 03:
Yes, Your Honor.

[00:14:02] Speaker 04:
When I'm finding that, Your Honor, I also want to address very quickly the constitutional challenge to the IPR process.

[00:14:09] Speaker 04:
I acknowledge that... Oh, thank you.

[00:14:12] Speaker 04:
Council has favored me with that page.

[00:14:17] Speaker 03:
You should bring your appendix with you and hard copy.

[00:14:20] Speaker 03:
Yes, Your Honor.

[00:14:20] Speaker 03:
Thank you.

[00:14:25] Speaker 04:
Your Honor, on pages 285 and 286, paragraphs 35, 36, and 7, reference the testing.

[00:14:37] Speaker 04:
This is Dr. Ico's declaration, reference the testing.

[00:14:40] Speaker 04:
Where does it say the prior art film is?

[00:14:45] Speaker 04:
Well, Your Honor,

[00:14:46] Speaker 04:
What I'm suggesting is that the testing that's mentioned demonstrates that a configuration such as the prior art fails.

[00:14:57] Speaker 04:
If you're asking me, did we put a prior art piece of embodiment in a testing lab, to my knowledge, one doesn't exist.

[00:15:04] Speaker 04:
No, we haven't acquired a piece of tubing from Tokyo Gas and put that.

[00:15:09] Speaker 04:
The argument that we made below and make now is that that testing demonstrates

[00:15:15] Speaker 01:
that a configuration such as the... Is it your position that Yamine and Oakey, they don't work for their intended purpose?

[00:15:23] Speaker 04:
Yes.

[00:15:24] Speaker 04:
They don't.

[00:15:25] Speaker 04:
Exactly.

[00:15:26] Speaker 04:
Because, again, we're going back to the language, but they're not a shunt.

[00:15:33] Speaker 03:
On the constitutional question, the arguments that you're raising now were not in your opening brief, correct?

[00:15:40] Speaker 04:
Your Honor, I would disagree.

[00:15:41] Speaker 04:
In the opening brief raised the

[00:15:44] Speaker 04:
Fifth Amendment, Seventh Amendment, and Article 3 challenge.

[00:15:47] Speaker 03:
Do you all raise the takings issue in the opening brief?

[00:15:50] Speaker 04:
Yes sir, in the Fifth Amendment.

[00:15:51] Speaker 03:
Where?

[00:16:22] Speaker 04:
Your Honor, on page 58 of the brief, we raise the due process challenge.

[00:16:31] Speaker 04:
It's our position that that encompasses the taking.

[00:16:35] Speaker 04:
And then after the oil state's case was delivered, we expanded on... But it's not a retroactivity argument, right?

[00:16:40] Speaker 04:
Well, Your Honor, I would submit that the due process argument does encompass the retroactive taking.

[00:16:48] Speaker 04:
Where do you argue retroactivity in the open?

[00:16:51] Speaker 04:
Your Honor, I would submit that's assumed in this due process challenge.

[00:16:56] Speaker 01:
So you didn't say the word retroactive in the blueprint.

[00:16:58] Speaker 01:
That is correct, Your Honor.

[00:16:58] Speaker 01:
You didn't say the word takings in the blueprint.

[00:17:00] Speaker 01:
That is correct, Your Honor.

[00:17:01] Speaker 01:
You said the word due process.

[00:17:03] Speaker 04:
Yes, that is absolutely correct, Your Honor.

[00:17:05] Speaker 01:
And then in support of your due process argument, you're claiming things like the whole structure of the IPR process is somehow biased.

[00:17:17] Speaker 04:
Your Honor, not just the structure, but the

[00:17:21] Speaker 04:
procedures used on a retroactive basis, take away the benefit of the bargain of the original application.

[00:17:28] Speaker 01:
Oh, where does it say that in the blue brief?

[00:17:30] Speaker 04:
Your Honor, in the... Blue brief.

[00:17:32] Speaker 01:
No, the blue brief, the opening brief.

[00:17:35] Speaker 04:
No, Your Honor.

[00:17:36] Speaker 04:
I concede, as I thought I did a while ago, we did not use the word retroactive with regard to the opening brief.

[00:17:43] Speaker 01:
Right.

[00:17:44] Speaker 01:
So we're investigating right now, what did you actually preserve in your opening brief?

[00:17:49] Speaker 04:
Your Honor, we've preserved the due process challenge.

[00:17:52] Speaker 04:
OK.

[00:17:53] Speaker 01:
Which is separate, as I understand it, from a takings claim based on a retroactive application of the AIA to your pre-AIA pattern.

[00:18:02] Speaker 04:
Your Honor, I think that that is encompassed with that.

[00:18:07] Speaker 04:
Your Honor, I would close by asking.

[00:18:10] Speaker 03:
OK, I think we're out of time.

[00:18:11] Speaker 03:
We'll give you two minutes for rebuttal.

[00:18:14] Speaker 03:
Yes, Your Honor.

[00:18:21] Speaker 03:
Mr. Day.

[00:18:38] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:18:42] Speaker 00:
Let me start by talking about some of the issues that you've raised, and in particular where Yamane discloses an embodiment

[00:18:50] Speaker 00:
where there is no touching, there's no direct connection between the external conductor and the tubing.

[00:18:59] Speaker 00:
So if you look in, Yamane, paragraphs 22 and 29 both talk about... What page?

[00:19:04] Speaker 00:
Sorry.

[00:19:09] Speaker 00:
These are on page Joint Appendix 3220 and 3221.

[00:19:18] Speaker 00:
At the end of paragraph 22, it says if the conductive members 4 are provided in the interior or the outer face of the insulating cover layer, however, the conductive members may be connected directly to the connecting joint.

[00:19:32] Speaker 00:
That means is that the wire, if it's in the middle of the insulating layer or on the outside of it, in one embodiment, you can connect that wire directly to the connector at the end of the tube.

[00:19:44] Speaker 00:
Then if you go to paragraph 29, it says,

[00:19:48] Speaker 00:
if the conductive member is connected that way, there's without the need for a separate conductive means.

[00:19:56] Speaker 00:
What that's saying is if you do that, you don't need this little connector five that council mentioned, that in some embodiments does connect this external wire to the tubing.

[00:20:07] Speaker 00:
So there's an explicit disclosure here of an embodiment

[00:20:12] Speaker 00:
where the external conductor does not touch the tubing.

[00:20:15] Speaker 00:
And that's exactly what the board below found.

[00:20:19] Speaker 00:
That's significant because the board correctly construed the claims and did not adopt the no touching limitation that Goodson would like to graft onto the claims.

[00:20:34] Speaker 00:
And on that basis, found that the prior art discloses all the elements of the challenged claims.

[00:20:41] Speaker 00:
But it also went on to say both Humane and Okai disclose embodiments where there is no touching, where the wire is separate from the tube body, separated by an insulating layer.

[00:20:56] Speaker 00:
Okai talks about that at Joint Appendix 3239.

[00:21:04] Speaker 03:
There is no proximity but no touching.

[00:21:07] Speaker 03:
But then that leads to the question of whether the

[00:21:11] Speaker 03:
claims here cover a close proximity embodiment.

[00:21:17] Speaker 00:
Yeah, this was raised below.

[00:21:20] Speaker 00:
There were actually three limitations that Goodson wanted to apply.

[00:21:23] Speaker 00:
One was no touching.

[00:21:24] Speaker 00:
A second was no close contact, which I think is the no close proximity.

[00:21:30] Speaker 00:
I would suggest, Your Honor, if you look at figures 6A and 6B, the two embodiments in the Goodson patents, they show

[00:21:38] Speaker 00:
certainly show touching in the figure 7B embodiment where the mesh appeared.

[00:21:44] Speaker 01:
6B?

[00:21:45] Speaker 00:
Figure 6B in- You're saying it shows touching?

[00:21:49] Speaker 00:
Yeah, it shows that the mesh is up against the tubing and the tubing appears to be protruding through the mesh.

[00:21:57] Speaker 00:
I don't, certainly if that's what it's showing, then it's touching.

[00:22:00] Speaker 01:
The board didn't make that finding, right?

[00:22:04] Speaker 00:
I think that's, the board did, I believe you're right.

[00:22:07] Speaker 00:
I believe you're right.

[00:22:08] Speaker 00:
So in addition, but what the board did find, the board noted was that the specification talks about, and this is at?

[00:22:20] Speaker 01:
Column three.

[00:22:21] Speaker 00:
Yeah, in column three, 44 through 49, where it talks about where you have an arc to the side wall.

[00:22:27] Speaker 01:
Can you break down this sentence?

[00:22:29] Speaker 01:
Because I found it vague and hard to follow, hard to track.

[00:22:33] Speaker 00:
Sure.

[00:22:33] Speaker 00:
What it's saying is.

[00:22:34] Speaker 01:
When using a mesh type shield,

[00:22:37] Speaker 01:
This is at line 39 of column 3.

[00:22:39] Speaker 01:
If the CSST or appliance connector receives an electrical charge from arcing to the sidewalls, I assume that's the sidewalls of the tube, the mesh serves as a current shunt and thus both shunts the current and causes the charge on the actual CSST or appliance connector wall to be dissipated over a larger area.

[00:23:00] Speaker 01:
So what, can you explain what this is trying to describe?

[00:23:05] Speaker 01:
What's the situation that's going on here?

[00:23:07] Speaker 00:
The situation is, in the Goodson patents, it talks about a number of different ways that lightning can impact tubing.

[00:23:13] Speaker 00:
And in one way, what you have is tubing that's close to something that becomes electrified from the lightning.

[00:23:20] Speaker 00:
And the current arcs through the air from that electrified pipe or appliance or whatever it is over to the sidewall of the tubing.

[00:23:30] Speaker 01:
Through the air.

[00:23:30] Speaker 00:
Through the air.

[00:23:31] Speaker 00:
It's an arcing from one thing to another as opposed to

[00:23:35] Speaker 00:
coming in at one end of the tubing and running through it.

[00:23:37] Speaker 00:
This is arcing over to the side wall.

[00:23:40] Speaker 00:
And what this description is talking about is when that happens, if you have a mesh, the mesh is going to divert most of the current.

[00:23:49] Speaker 00:
Goodson patents say a majority of the current.

[00:23:52] Speaker 00:
But also some of the current is going to be dispersed out, because you're using a mesh, and it will be dispersed out onto the tubing.

[00:24:00] Speaker 00:
It will be less than a majority, obviously.

[00:24:02] Speaker 00:
There's no support to suggest that it's 1% or something like that.

[00:24:06] Speaker 03:
This is the 6B embodiment?

[00:24:08] Speaker 00:
Yes, correct, Your Honor.

[00:24:09] Speaker 00:
And that's what this language is talking about, the 6B embodiment.

[00:24:13] Speaker 00:
Back to my point about close proximity.

[00:24:15] Speaker 03:
Which looks a lot like the description in YAML, right?

[00:24:18] Speaker 00:
Exactly, Your Honor.

[00:24:19] Speaker 00:
And 6A looks very much like the IMANE embodiment with the external wire.

[00:24:26] Speaker 00:
6B looks just like the OKI embodiment, where you've got

[00:24:30] Speaker 00:
a mesh surrounding the tubing.

[00:24:34] Speaker 00:
Frankly, there's no air between, there's no space between the Goodson invention, just putting a conductor on the outside of the tubing and what was already disclosed by the prior art, Imani and Okai.

[00:24:48] Speaker 00:
And that's whether you accept this no touching limitation or not.

[00:24:53] Speaker 00:
So in the end, the board rejected that, but went on to say, even if I accepted this,

[00:24:58] Speaker 00:
a no touching or a no close contact or the board said even if I accepted a no resin limitation, which would be made completely from whole cloth because there's no basis for that in the patent, the prior art discloses every limitation anyway.

[00:25:15] Speaker 00:
So under either construction before you today, the result is the same, the patents are obvious, the claims are obvious in light of the prior art.

[00:25:27] Speaker 00:
Briefly, well, let me touch on the testing evidence.

[00:25:35] Speaker 00:
There was no evidence that the PriorArt we've cited was tested and failed under any circumstances.

[00:25:41] Speaker 00:
And there's nothing in the record today about any testing of any PriorArt product.

[00:25:48] Speaker 00:
So when we get to secondary considerations and this notion that Okai and Yamane don't work,

[00:25:56] Speaker 00:
It's just lawyer argument.

[00:25:57] Speaker 00:
There's no support for that.

[00:26:00] Speaker 00:
And finally, let me just touch on the constitutional arguments.

[00:26:02] Speaker 00:
I'm not going to over-labor it, because we agree that neither takings nor retroactivity was discussed in the opening brief.

[00:26:10] Speaker 00:
I think if you got to the merits, you would reject it.

[00:26:13] Speaker 00:
The Patlex case we cite in our opposition addressed the very same issue in connection with the patent re-examination statute.

[00:26:22] Speaker 00:
and explained that that statute did not violate due process because it was applied retroactively.

[00:26:27] Speaker 00:
I think the same analysis would apply here if it hadn't been raised appropriately, but frankly, it just was not.

[00:26:36] Speaker 00:
Do you have any questions?

[00:26:39] Speaker 03:
OK.

[00:26:39] Speaker 03:
Thank you.

[00:26:39] Speaker 03:
Thank you, Your Honor.

[00:26:44] Speaker 04:
Mr. Strachan, you've got two minutes.

[00:26:45] Speaker 04:
Thank you, Your Honor.

[00:26:47] Speaker 04:
I won't repeat because anything I would say in rebuttal would be a repetition.

[00:26:51] Speaker 04:
You said it for two minutes.

[00:26:58] Speaker 04:
Thank you, Your Honor.

[00:26:59] Speaker 04:
I will not repeat what we discussed in my opening argument.

[00:27:02] Speaker 04:
That's exactly what I would say in response.

[00:27:05] Speaker 04:
It's simply a difference of what these structures entail.

[00:27:10] Speaker 04:
Likewise, I think I've said what I could on the constitutional challenge.

[00:27:14] Speaker 04:
I would like to spend just a second to ask that, of course, we ask this court to reverse and dismiss the IPR.

[00:27:21] Speaker 04:
In the alternative, we would at least ask the court to remand the matter back to the board to apply the Phillips standard for claim construction rather than the broadest reasonable interpretation.

[00:27:34] Speaker 04:
Why?

[00:27:36] Speaker 04:
Pardon?

[00:27:36] Speaker 04:
Why?

[00:27:37] Speaker 01:
Well, Your Honor, the... I thought the effective date of the new regulation that's going into effect is only for IPRs that are filed after the effective date.

[00:27:48] Speaker 04:
That is correct.

[00:27:49] Speaker 04:
And in fact, the board specifically acknowledged the question of whether to apply it retroactively and announced that they would not apply it.

[00:27:57] Speaker 04:
What I'm asking this court to do is overrule that decision and remand it for the reasons that were laid out in the briefing.

[00:28:04] Speaker 04:
The infirmities of which are many of the IPR process include a different standard for claim construction.

[00:28:14] Speaker 02:
Real quickly, what would change then?

[00:28:17] Speaker 02:
where your honor, we would submit... You conceded a very important element of the claim construction.

[00:28:22] Speaker 04:
I'm sorry?

[00:28:22] Speaker 02:
You conceded a very important element of the claim construction.

[00:28:26] Speaker 02:
What would change under the Phillips Center?

[00:28:28] Speaker 04:
Well, your honor, I'm sorry.

[00:28:29] Speaker 04:
I don't know what you mean by conceded.

[00:28:31] Speaker 04:
I don't think I conceded a claim construction.

[00:28:33] Speaker 04:
But what would change is, one, the board repeatedly said they were using a broadest claim construction.

[00:28:40] Speaker 04:
And second, I think by going to a plain and ordinary meeting, you would find the differences then

[00:28:46] Speaker 04:
that I have been urging today between what Goodson claims, again, the divergence and the dissipation, which was the approach taken by the prior art.

[00:28:57] Speaker 04:
Thank you, Your Honors.

[00:28:58] Speaker 04:
Thank you.

[00:28:59] Speaker 04:
Thank both counsel.

[00:29:00] Speaker 04:
The case is submitted.