[00:00:43] Speaker 01:
Okay, our third case this morning is number 17, 1826.

[00:00:48] Speaker 01:
Goto Denshi Corporation Limited versus Mitsubishi Cable Industries.

[00:00:53] Speaker 01:
Mr. Coddington.

[00:00:55] Speaker 03:
Good morning.

[00:00:56] Speaker 03:
May it please the court?

[00:01:00] Speaker 03:
My client, Goto Denshi, is a Japanese company that manufactures wire coils.

[00:01:07] Speaker 03:
Their 888 patent is using a square

[00:01:12] Speaker 03:
talks about in the background using a square wire so that you can increase the packing of the wires within a coil.

[00:01:19] Speaker 03:
If you use a square, you can get more wire packed in a coil than you can a round wire.

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And that's an improvement because if the packing factor increases, the performance of the coil increases, you can make smaller coils with the same power.

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But then the patent makes it very clear that ideal square wires are not good because of the sharp edges at the corners of the wire, which would cut into the insulating of the wire and therefore would short circuit the coil.

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So to overcome that problem, the eight patent specifically claims chamfered corners, which means it's got an arc

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at the edge to eliminate that squareness.

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And they claim very specific sectional area ratios, which is the ratio of the wire cross-section to a circle, or very specific circumferential ratios, which is the border around the wire relative to a circle.

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And then claims two and four recite arc-shaped chamfered

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sections which was construed as having a constant radius throughout that curve.

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Now the first issue where we think the board erred is that their conclusion of anticipation was improperly supported on ambiguous references.

[00:02:54] Speaker 01:
And that was an argument... This is because R in your view doesn't clearly mean radius?

[00:02:59] Speaker 01:
That's correct.

[00:03:01] Speaker 01:
It's unclear.

[00:03:02] Speaker 03:
And Ray Turley?

[00:03:03] Speaker 01:
Clear.

[00:03:04] Speaker 03:
I'm sorry?

[00:03:05] Speaker 03:
Why is it unclear?

[00:03:06] Speaker 03:
Because there are inconsistent teachings throughout those prior art references that support something else.

[00:03:13] Speaker 03:
But the evidence presented here was pretty clear that R means radius.

[00:03:20] Speaker 03:
That was a contention raised by their expert.

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The board agreed with that expert.

[00:03:25] Speaker 02:
But it was more than a contention.

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They actually presented evidence in that regard.

[00:03:30] Speaker 03:
Right.

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But that evidence is inconsistent with the other teachings in the art.

[00:03:35] Speaker 03:
that says R is a shape, R is a part.

[00:03:38] Speaker 04:
What about looking at Sugita, for example, which I think is one of the more difficult cases for you to rely on and say that R doesn't mean radius.

[00:03:47] Speaker 04:
What in Sugita makes you think that it's confusing or in any way ambiguous what R is, where it says the R of the corner sections is 0.02 millimeters to 0.6 millimeters and actually gives a measurement for it?

[00:04:02] Speaker 03:
Because in the other section it refers to a shape R.

[00:04:05] Speaker 03:
For example, in the Appendix 79, paragraph 3, reverse there as a shape.

[00:04:12] Speaker 03:
Radiuses are not shapes.

[00:04:13] Speaker 04:
Radiuses are... Wait, wait.

[00:04:15] Speaker 04:
I'm fucked.

[00:04:15] Speaker 04:
Where is it that you're referring to?

[00:04:17] Speaker 03:
It's in the Sagita Patent.

[00:04:19] Speaker 03:
I think it's Appendix 79.

[00:04:20] Speaker 03:
Got it.

[00:04:21] Speaker 04:
Just check the title.

[00:04:22] Speaker 03:
At paragraph 3.

[00:04:28] Speaker 04:
It says... The edge shape are of the corner sections.

[00:04:33] Speaker ?:
Mm-hmm.

[00:04:34] Speaker 04:
So what do you think R is when they get our measurement?

[00:04:37] Speaker 04:
That's our point, is that... No, but I mean, what could it possibly be besides radius when they're giving a measurement?

[00:04:46] Speaker 03:
It could be another value of a dimension.

[00:04:49] Speaker 03:
It's unclear.

[00:04:50] Speaker 04:
What would that dimension be?

[00:04:53] Speaker 03:
Our point is we don't know.

[00:04:55] Speaker 04:
But what could it be other than radius?

[00:04:57] Speaker 04:
That's my problem.

[00:04:57] Speaker 04:
You say you don't know what it is, but I'm having a hard time understanding what it could be other than radius.

[00:05:04] Speaker 03:
It could be another value that's not radius.

[00:05:10] Speaker 03:
Our point is that it's unclear.

[00:05:12] Speaker 03:
It's inconsistent.

[00:05:13] Speaker 01:
It can't be ambiguous unless there's another alternative that makes sense.

[00:05:20] Speaker 03:
Well, even if you assume that it's radius, it's then unclear that radius is constant in claims two and four.

[00:05:31] Speaker 03:
If you assume it's radius,

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then it's missing a teaching that it's constant.

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And that's a critical limitation of claims two and four.

[00:05:42] Speaker 02:
Now, our position... Do you concede here today that R means radius in view of the evidence that's been presented?

[00:05:52] Speaker 02:
No.

[00:05:54] Speaker 02:
I mean, their point was R is typically used... Your argument's ambiguous, but you don't... Where is the evidence?

[00:06:00] Speaker 02:
Where did someone come in and testify

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R is ambiguous, whereas you're arguing in the face of evidence, substantial evidence, significant substantial evidence, that R means radius.

[00:06:18] Speaker 03:
Well, the evidence is within Sagita itself.

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The evidence is the other inconsistent passages within Sagita that refer to it as a shape.

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And if you're going to take R as a radius, that doesn't consistently flow through the entire prior art reference.

[00:06:35] Speaker 02:
Take me to Segita where it says that R, as used in the pen, would mean shape.

[00:06:42] Speaker 03:
The previous passage that I was referring to at... With Judge Stone?

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Page 79, paragraph 3, where it says an R shape.

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If you put radius in there, it doesn't make any sense.

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Is there any other place in the reference where you think it refers to R shape or otherwise undermines the view that R means radius?

[00:07:04] Speaker 03:
It's that and then it's the use of our parts in other sections where if you insert radius it doesn't make sense Our point is very simple.

[00:07:13] Speaker 03:
It's that Concluding that is radius is inconsistent through the through the pattern Therefore it's unclear and then really in Ray Turley says that if the reference is ambiguous or unclear

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You can't use it to sustain an anticipation rejection.

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Now, maybe the better argument for them would have been to say that it was obvious, but that's not the ground they raised at the patent office.

[00:07:47] Speaker 03:
They said it was anticipation, and anticipation rejection has to be identical.

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The disclosure has to be clear.

[00:07:56] Speaker 01:
Did you have any expert testimony that are

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in these prior references means something other than radius?

[00:08:04] Speaker 01:
We did not.

[00:08:08] Speaker 03:
And it's not attorney argument and we're not trying to testify as an attorney, we're just, or excuse me, as an expert, it's just we're pointing out inconsistent teachings within that spec.

[00:08:20] Speaker 03:
You don't need an expert to point to inconsistencies.

[00:08:23] Speaker 02:
What we have

[00:08:24] Speaker 02:
Dr. Klopp, who testified to the other side with respect to Harada, said the use of uppercase R to denote a radius corner is consistent with other patents used by Japanese authors published prior to the priority date of the 888 patent.

[00:08:40] Speaker 02:
So here we have evidence of consistent use of R to mean radius.

[00:08:46] Speaker 03:
Well, our argument against that was, and as we pointed out in the brief, is that you have both Harada

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and Tsujita as anticipating references.

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They both use R. Neither of them cite writings.

[00:09:00] Speaker 02:
I understand your argument, but I guess what I'm trying to get to is what evidence did you present to rebut this?

[00:09:07] Speaker 02:
Our rebuttal was based on the inconsistent teachings alone.

[00:09:16] Speaker 03:
But I'd like to point out that here you have two Japanese patents as prior.

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They're made by Japanese companies.

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They both don't use the term radius, yet they both define d as diameter.

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They both use r parts.

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We just find it hard to believe that those references are clear enough to say that r is radius.

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And then the latter problem becomes, well, if you assume that it's radius, where in there is

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a clear disclosure that that R means a constant value throughout.

[00:09:58] Speaker 03:
In fact, it discloses ranges.

[00:10:02] Speaker 04:
When you say a constant value throughout, you mean a constant value throughout the arc?

[00:10:06] Speaker 03:
Throughout the arc, that's correct.

[00:10:07] Speaker 04:
So in other words, the figure itself doesn't help you to resolve that?

[00:10:13] Speaker 03:
That's correct.

[00:10:14] Speaker 04:
You think it's possible that it could have varying R throughout that arc?

[00:10:18] Speaker 03:
That's correct.

[00:10:18] Speaker 03:
In fact, it's very hard to tell in Sageta

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the way it's shown.

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I mean, it almost appears that it's not the same.

[00:10:29] Speaker 03:
It's clear in Harada that there could be lumps or some sort because they're milling the sides and you get these bulges at the corners and it shows in the figure that it's not constant.

[00:10:42] Speaker 02:
Can you address the motivation to combine the teachings of Sagita and MWSWR?

[00:10:50] Speaker 03:
Yeah, they're

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I think the problem is that the board, or what we find with the board's decision is that they're referencing motivation from using ideal square wires.

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And that's why I started out with this presentation saying that ideal square wires does provide that more power and less space.

[00:11:12] Speaker 03:
But our patent actually taught away from that.

[00:11:16] Speaker 03:
There was a problem with having ideal square wires.

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They wanted to back off the corners and not have them square so that they're rounded.

[00:11:24] Speaker 03:
That was to address that insulating problem in short circuiting.

[00:11:30] Speaker 03:
When the board was relying on the motivation to combine that, it says in the Sagita, more power, less space, Sagita there was referring to ideal square wires.

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Sagita wanted ideal square wires, whereas the claimed invention does not.

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And in fact, we said in our background, more power, less space.

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So therefore, we were making the point that they're simply parroting back in hindsight what the motivation was for ideal square wires.

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But that's not the motivation for the invention of having rounded corners.

[00:12:08] Speaker 03:
That was to prove that insulating problems.

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And also, Sagita also says that the motivation for their system was that

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They wanted to eliminate twisting of the wire as it came off of the die, which I understand that would make it harder to coil the wire.

[00:12:27] Speaker 03:
So we're contending that that was an improper motivation to combine.

[00:12:32] Speaker 04:
Are you going back to a minute on your suggestion that perhaps the R varies in the arc sections

[00:12:41] Speaker 04:
How do you respond to these sections at the end of Sugita?

[00:12:45] Speaker 04:
For example, in column seven and eight, there's an example two that refers to the R of the corner sections with 30 micrometers.

[00:12:55] Speaker 03:
Yeah, 30 microns there.

[00:12:58] Speaker 04:
Thank you, yeah, sorry, microns.

[00:13:02] Speaker 04:
Isn't that a constant value?

[00:13:03] Speaker 04:
And there's examples.

[00:13:04] Speaker 04:
There's example one that has a constant value radius.

[00:13:07] Speaker 04:
There's example two that has a constant value radius.

[00:13:10] Speaker 04:
How do you respond to that?

[00:13:11] Speaker 03:
Well, again, our argument is that the r, what are they referring to as r?

[00:13:16] Speaker 04:
I know, but you were starting, what you had said was even assuming that r is radius, there's no disclosure in this particular patent about that r staying constant.

[00:13:26] Speaker 04:
And so I'm really just trying to focus in on that part of your argument.

[00:13:30] Speaker 03:
Okay.

[00:13:31] Speaker 03:
There it doesn't address uniformity or that that r is consistent throughout the entire r.

[00:13:37] Speaker 04:
So when it gives a single value for R, you don't think that that means that it's uniform or consistent?

[00:13:42] Speaker 03:
We don't know exactly what that is referring to.

[00:13:44] Speaker 03:
And it could be a measurement taken on one spot.

[00:13:48] Speaker 03:
We don't know if the resulting wire that was coming out was uniform across the arc.

[00:13:54] Speaker 03:
So it's essentially sort of the same argument as before.

[00:13:58] Speaker 03:
It's just unclear.

[00:14:02] Speaker 01:
Should I save the rest of your time?

[00:14:04] Speaker 01:
Yes, please.

[00:14:06] Speaker 01:
Thank you, Mr. Connors.

[00:14:10] Speaker 01:
Mr. Martos.

[00:14:12] Speaker 00:
Thank you, Your Honor.

[00:14:15] Speaker 00:
Good morning.

[00:14:15] Speaker 00:
May it please the Court.

[00:14:17] Speaker 00:
Sasha Marigold is on behalf of Appellee's Mitsubishi Cable Industries and Mitsubishi Cable America.

[00:14:23] Speaker 00:
Your Honor, this appeal involves the Board's holding

[00:14:27] Speaker 00:
that all eight claims of the 888 patent are unpatentable for three distinct and independent grounds.

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First, that all the claims are anticipated by Sujita.

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Second, and separately, that all the claims were anticipated by Harada.

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And third, additionally, that all the claims would have been obvious to a person of ordinary skill in the art in view of Sujita plus MWS wire.

[00:14:52] Speaker 00:
Now, what patent owner must show is that each of these grounds

[00:14:57] Speaker 00:
either rests on a legally erroneous premise or lacks substantial evidence in the record.

[00:15:03] Speaker 00:
Patent owner cannot do that for any ground, let alone all three grounds on which the board found that the claims are unpatentable.

[00:15:11] Speaker 00:
Now, to the extent that patent owner has not waived any of its arguments and they're preserved, all those arguments really relate to pure factual issues.

[00:15:21] Speaker 00:
And this court reviews the board's resolution of such issues

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under the deferential substantial evidence standard.

[00:15:29] Speaker 00:
And the arguments that Mr. Cottington was making, even if they had evidentiary support, which he admits they do not, would not provide any basis for disturbing any of the board's findings.

[00:15:40] Speaker 00:
Because under substantial evidence, even if there are two plausible views, as long as the board adopts one view, which is supported by substantial evidence, which the board did here, there's no basis to disturb the board's findings.

[00:15:54] Speaker 00:
Now, regarding Sujita, to the extent patent owners preserved any of the arguments, the only remaining issue is whether skilled artisans would understand that Sujita's reference to R constitutes radius.

[00:16:08] Speaker 00:
This is a factual issue, and all the record evidence uniformly supports the board's finding.

[00:16:14] Speaker 00:
This includes Sujita itself, as well as the undisputed and uncontroverted expert testimony from Dr. Klopp

[00:16:22] Speaker 00:
who explained in detail why artisans would understand that R means radius in Sujita.

[00:16:29] Speaker 00:
Now, Mr. Coddington raised an argument about even if R means radius, it's unclear to him whether the disclosure in Sujita

[00:16:38] Speaker 00:
shows that there's a constant value of the radius.

[00:16:40] Speaker 00:
A couple of points on that.

[00:16:41] Speaker 00:
First, that argument was not preserved with respect to Sejita.

[00:16:44] Speaker 00:
To the extent it was only made, it was made with respect to Harada, not Sejita.

[00:16:49] Speaker 00:
Second, as Judge Stoll pointed out, paragraphs 31 and 34 both specifically identify constant values for the wire of, I believe, 30 micrometers or 3 microns.

[00:17:04] Speaker 00:
Now, the same analysis and the same outcome apply to Harada.

[00:17:08] Speaker 00:
The only issue that's been preserved there is whether our factual questions with respect to our parts and whether that means radius.

[00:17:15] Speaker 00:
And the only evidence, again, to support the board's finding is from Mitsubishi, where there's the Harada reference itself and the uncontroverted testimony of Dr. Klopp.

[00:17:30] Speaker 00:
And then finally, regarding the board's finding of obviousness, there's no dispute that the combination of Sujita and MWS wire disclosed every limitation of the claim.

[00:17:40] Speaker 00:
And the only argument that Mr. Coddington has raised today was, well, he's really saying it was hindsight to combine that by behalf of the board.

[00:17:49] Speaker 00:
And as the board found in its opinion rejecting the rehearing petition, the hindsight argument was not originally made to the board and it's hence waived.

[00:17:59] Speaker 00:
That's appendix page 35, footnote 2.

[00:18:05] Speaker 00:
So unless the court has any further questions, we will rest on our briefs and ask the judgment of the board be affirmed.

[00:18:13] Speaker 01:
Thank you, Mr. Mayor.

[00:18:20] Speaker 03:
Under the substantial evidence standard

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This court is allowed to look at evidence that detracts away from the board's decision.

[00:18:29] Speaker 03:
And that's what we're asking you to do, is to look at the inconsistent passages within the prior art.

[00:18:37] Speaker 03:
And the conclusion here should be that not that there are two plausible interpretations, it's that there's no plausible interpretation.

[00:18:48] Speaker 03:
Because you cannot come up with a definition that is consistent

[00:18:53] Speaker 03:
that can be used consistently throughout that entire sagittal pattern.

[00:18:58] Speaker 03:
Because at one time it's referring to a dimension, at other times it's referring to shapes, at other times it's referring to parts.

[00:19:07] Speaker 03:
So, I'd like the rest on that.

[00:19:09] Speaker 03:
Okay, thank you Mr. Tarjan.

[00:19:10] Speaker 01:
Thank you both counsel, the case is submitted.