[00:00:00] Speaker ?: Let's go. [00:00:52] Speaker 03: OK. [00:00:53] Speaker 03: The last case before the court today is graphic packaging versus inline packaging, case number 17-1776. [00:01:04] Speaker 03: Mr. Herman, you want four minutes for rebuttal? [00:01:10] Speaker ?: Yes, Your Honor. [00:01:11] Speaker 03: OK. [00:01:11] Speaker 03: You may begin. [00:01:12] Speaker 02: Thank you, Your Honor. [00:01:14] Speaker 02: It may please the court. [00:01:18] Speaker 02: Your Honor, I'd like to start with the final written decision. [00:01:22] Speaker 02: It's the appendix 31 and it says the patent owner asserts further that petitioners analysis is based entirely on sweeping generalizations, conclusory statements, and the impermissible use of hindsight. [00:01:36] Speaker 02: The board then said we disagree for two reasons. [00:01:40] Speaker 02: One, petitioners express claim mapping is set forth in their claim charts. [00:01:45] Speaker 02: Well, Your Honor, that's not true. [00:01:46] Speaker 02: The petitioner didn't do any claim charts. [00:01:49] Speaker 02: We pointed that out in the institution in our preliminary response. [00:01:53] Speaker 02: And the board, in their final written decision, still relies on these non-existent claim charts. [00:01:59] Speaker 02: Why is that important? [00:02:00] Speaker 02: We're not appealing the institution decision. [00:02:02] Speaker 02: But it's important because of the mistakes that the board made in their final written decision. [00:02:08] Speaker 02: And it goes to the credibility and the job that the board did in rendering these claims invalid. [00:02:16] Speaker 02: Second, it says the petitioner's rationale [00:02:19] Speaker 02: for modifying the handheld sleeve of Cato to include Cloe's microwave MEIM is supported expressly by the above citations to Cloe. [00:02:29] Speaker 02: And then it cites to the petition 20 pages of the petition, pages 9 through 29. [00:02:35] Speaker 02: Your Honor, and we're going to get to whether Cato should be combined with Cloe. [00:02:41] Speaker 02: Maybe you should get to that. [00:02:42] Speaker 00: I mean, that's the issue we're interested in. [00:02:45] Speaker 02: Sure. [00:02:47] Speaker 02: If you look further in the written decision, it says, Pat Noeder makes additional assertions concerning the differences between Cato and Clo, such as the number of sides, whether there are end panels, and the locations of disruption lines. [00:02:58] Speaker 02: And right above that, Your Honor, talks about the apertures. [00:03:02] Speaker 02: So first of all, the number of sides is important, because the only reason that Dr. Sand gave why someone would combine Cato and Clo is that she said both of them were four-sided. [00:03:12] Speaker 02: But Clo is six-sided. [00:03:13] Speaker 02: It's not four-sided. [00:03:15] Speaker 02: Everything else in her declaration about clove and why you would combine it with Kato is just very conclusory. [00:03:21] Speaker 02: It would have been obvious. [00:03:22] Speaker 02: It would have been obvious. [00:03:23] Speaker 02: And as our expert, Dr. Flores, pointed out, Kato doesn't say anything about heating food. [00:03:28] Speaker 02: It certainly doesn't say about putting it in the microwave. [00:03:30] Speaker 02: Kato takes products that have already been cooked, ready to eat is the phrase he uses, and puts them in and then allows for a consumer to not get their hands dirty and to not have things leak out. [00:03:44] Speaker 02: There's absolutely nothing about cooking in Cato. [00:03:47] Speaker 02: Clo, on the other hand, is a six-sided sleeve that discusses the MEIM. [00:03:53] Speaker 02: So in the record, there is no reason that was given, no legitimate reason. [00:03:58] Speaker 00: So Clo relates to disposable microwave reactive cooking, crisping, and browning packages for foods that produces thermal heating effect. [00:04:08] Speaker 00: So that is about microwaving, and it's got the material that allows you to do that. [00:04:12] Speaker 00: That's correct, Your Honor. [00:04:13] Speaker 00: Okay, why wouldn't they proceed and look at that and say, wow, if I put the material that's in clow and put it into this package, then I'd have something that not only I can carry food around with me, but also I can microwave it when I need to and maybe come out with good, crispy toast on occasion. [00:04:34] Speaker 02: Well, Your Honor, it could, if you remember, in the institution this is in, the petitioner argued that Cato, in view of the [00:04:42] Speaker 02: ordinary skill in the art and common knowledge should be a reason why the claim should be invalidated. [00:04:47] Speaker 02: The Patent Office declined to institute on that. [00:04:50] Speaker 02: It said, no, you've got to go combine references. [00:04:53] Speaker 02: There's no reason in the record, your honor, why you would combine Cato with Chloe or Cato with Young or Cato with Winkleman. [00:04:59] Speaker 02: Just because Chloe has MEIM in it doesn't mean that you're going to put it into a product that contains ready-to-eat food. [00:05:09] Speaker 02: There's nothing about cooking in Cato [00:05:11] Speaker 02: And so what you've done, Your Honor, what you read is basically just any MEIM I can put into Cato. [00:05:19] Speaker 02: And then you get to the dependent claims, which the board completely ignored. [00:05:23] Speaker 02: If you read the decision, they never actually addressed the dependent claims, which talk about apertures, lines of disruption, and whether there are end panels. [00:05:33] Speaker 02: And the issue, for instance, Your Honor, with apertures, right? [00:05:37] Speaker 02: Cato talks all about, [00:05:39] Speaker 02: We want to keep your hands clean. [00:05:40] Speaker 02: We don't want the liquids to come out and get your hands dirty. [00:05:43] Speaker 02: Apertures are holes in the thing. [00:05:45] Speaker 02: And so what Dr. Floros, who's a graphic packaging expert, said, when I look at this, I look at Kato, there's no way I'm going to take Klo, take MEIM, and then put it into a package that says, I don't want to have anything come out of my hands for the sanitary reasons. [00:06:06] Speaker 02: The other thing, Your Honor, is Kato is shaped differently. [00:06:09] Speaker 02: Kato is shaped kind of like the French fry box that you would get at McDonald's. [00:06:14] Speaker 02: And it allows for easy access. [00:06:17] Speaker 02: When you're trying to cook and using MEIM like you're doing in the 07-8 pattern, it's very important that you have even cooking. [00:06:26] Speaker 02: So these are, as you know, used for hot pockets. [00:06:29] Speaker 02: And you want to make sure that the entire hot pocket, the entire croissant, or whatever it is in there, is cooked evenly. [00:06:36] Speaker 02: Kato's package would not permit that. [00:06:38] Speaker 02: Kato's package is like this. [00:06:39] Speaker 02: You're going to get uneven heating. [00:06:41] Speaker 02: Kato doesn't have a bottom seam, so you're going to get scorched. [00:06:43] Speaker 02: There are many differences between Kato, which is not made for cooking, and Klo and the other references. [00:06:51] Speaker 03: So the really is... You're not arguing teaching away, though, are you? [00:06:54] Speaker 02: I'm not, Your Honor. [00:06:55] Speaker 02: I'm saying there is no motivation to combine, and there's no reason that one of ordinary skill in the art would combine Kato with Klo, Winkleman, or Young. [00:07:04] Speaker 02: Winkleman and Young, Young, and it's in our briefs, is a much different shape. [00:07:11] Speaker 02: Dr. Floros, who was not deposed in this case, which I don't want to let that go by without saying, they chose, we put in an expert declaration with many substantive reasons why you wouldn't make these combinations. [00:07:28] Speaker 02: Instead of deposing Dr. Floros, [00:07:31] Speaker 02: They chose not to on the morning of his deposition, and then they submitted a rebuttal declaration of Dr. Sand, where often, all throughout her rebuttal declaration, she says contrary to Dr. Floros' testimony. [00:07:44] Speaker 02: Well, Your Honors, this is supposed to be an adversarial proceeding. [00:07:47] Speaker 02: Why didn't they depose him and try to get admissions from him? [00:07:50] Speaker 02: We think the reason is because they didn't think they could, because his positions were so sound. [00:07:55] Speaker 02: But the fact of the matter is, he testified in his declaration [00:07:59] Speaker 02: that if you combine Cato and Young, there are seven modifications that you would need to make to come to the 07A claims. [00:08:08] Speaker 02: That is at least good testimony that you wouldn't combine the two. [00:08:13] Speaker 02: And then with Winkleman, we have in the record that the combination of Cato and Winkleman doesn't disclose all of the claim elements. [00:08:23] Speaker 03: So what's missing from those two? [00:08:25] Speaker 02: So what's missing from the combination [00:08:29] Speaker 02: of Kato and Winkleman is the free edge extending in the second direction, which, Your Honor, which I talked to before. [00:08:35] Speaker 02: That allows the 078 patent to be able to cook evenly. [00:08:39] Speaker 02: And then the substantively equal side edges of the end panels. [00:08:44] Speaker 02: And this permits the package. [00:08:47] Speaker 02: It's an on-the-go package that you can put down. [00:08:49] Speaker 02: And it permits the bottom to be sturdier. [00:08:53] Speaker 02: So those are the things that are not in Winkleman. [00:08:55] Speaker 02: So we've got CLEO, which is six-sided, not four-sided. [00:08:57] Speaker 02: We've got Young, which requires seven modifications to get to the thing. [00:09:01] Speaker 02: And then we've got Winkleman, which at least doesn't have to the thing. [00:09:04] Speaker 02: And Winkleman is a completely different package. [00:09:07] Speaker 00: The example given is a triangular pizza box. [00:09:10] Speaker 00: Counselor, these are arguments that you made to the board. [00:09:12] Speaker 00: Absolutely. [00:09:13] Speaker 00: Right? [00:09:14] Speaker 00: And the board rejected them. [00:09:15] Speaker 00: Correct. [00:09:16] Speaker 00: Where did the board err? [00:09:18] Speaker 02: Well, Your Honors, the board erred. [00:09:20] Speaker 02: In our view, the board came to a decision on obviousness. [00:09:24] Speaker 02: It was evident at the hearing. [00:09:26] Speaker 02: that they did not believe that these claims were patentable or that there was something patentable in this patent. [00:09:32] Speaker 02: And they didn't really engage in argument. [00:09:34] Speaker 02: They didn't listen to the numerous admissions that we discussed that Dr. Sand made. [00:09:40] Speaker 02: And they didn't seem to take issue with the fact that Inline didn't depose Dr. Floros. [00:09:47] Speaker 02: And then where they really erred is on the secondary considerations. [00:09:50] Speaker 02: They went through the secondary considerations. [00:09:52] Speaker 02: I think there had been a decision that had come out recently [00:09:54] Speaker 02: that said to the PTAB, hey, you've got to consider secondary considerations. [00:09:59] Speaker 02: So they did it, and they did it in a way that undermined the secondary considerations without any evidence in the record. [00:10:06] Speaker 02: So legally, Your Honor, the fact is is that the board used guesswork and speculation to undercut all of our secondary considerations. [00:10:15] Speaker 02: The secondary considerations in this case are incredibly strong. [00:10:20] Speaker 02: Hot Pockets, I'm sure you're all aware of them, but they're [00:10:23] Speaker 02: Hundreds of millions of these things sold. [00:10:25] Speaker 02: The evidence shows that the price went up, even though Nestle wanted the price to go down. [00:10:30] Speaker 03: The evidence shows that... But is it also true that the evidence showed that there were other factors that could relate to the price? [00:10:38] Speaker 02: Your Honor, I'm not aware of any other evidence that shows that there were other factors. [00:10:42] Speaker 03: Well, didn't the board point to cost of production? [00:10:46] Speaker 02: He did say that the cost of production, that is the one piece. [00:10:50] Speaker 02: But in his declaration, he was deposed on this, he said that they didn't want to do a price increase and they agreed to one. [00:10:58] Speaker 02: The increase in sales, which he says were due to the package, and we have evidence of that in the record, we have the Nestle Consumer Survey, which shows that consumers like the package. [00:11:11] Speaker 02: I mean, you don't have this in every case. [00:11:12] Speaker 02: We have a survey saying the package is driving sales of the patented sleeve. [00:11:19] Speaker 02: blatant copying, and in their briefs, Inline wants to say that this copying isn't as bad because we didn't attempt to design a route. [00:11:29] Speaker 02: That's crazy, Your Honors. [00:11:30] Speaker 02: I mean, the fact of the matter is, Nestle gave them specifications, they knew it, they copied it, and then they got caught and they got filed with a lawsuit. [00:11:38] Speaker 02: That can't be excused. [00:11:39] Speaker 02: That copying is something that is clearly a secondary consideration that's supposed to counterbalance against [00:11:48] Speaker 02: These things like Dr. Sands saying, oh, it would have been obvious to add MEIM to any packet. [00:11:55] Speaker 02: Kato is the perfect packet. [00:11:56] Speaker 02: There are differences between Kato and the 078 patent that they can't acknowledge. [00:12:04] Speaker 02: The in-reg cyclobenzaprine case says, understandable but improper type of constructing a selective version of the facts relating to the objective considerations so as to confirm its hunts [00:12:17] Speaker 02: that the asserted claims were obvious. [00:12:19] Speaker 02: If you had to ask me, Your Honor, what's the one legal thing they did? [00:12:23] Speaker 02: They decided the claims were obvious. [00:12:26] Speaker 02: And then they constructed a set of facts that permitted them to do that. [00:12:30] Speaker 02: They ignored the evidence of the record. [00:12:32] Speaker 02: They failed to identify a reason to combine any of the references. [00:12:36] Speaker 02: And then they completely undercut our secondary considerations. [00:12:39] Speaker 02: If you look at the final written decision, it says, [00:12:45] Speaker 02: The weight to be afforded this assertion is discounted heavily by many factors. [00:12:50] Speaker 02: And then when it concludes and goes through, it basically discounted completely the, let me find it please, excuse me, okay. [00:13:08] Speaker 02: It says, moderately weak evidence of commercial success. [00:13:14] Speaker 02: They based that on the fact that Jeff Voisey, our fact declarant, is an employee of Graphic Packaging. [00:13:21] Speaker 02: Your Honor, how else are we supposed to get evidence of commercial success in if we don't use a witness from Graphic to discuss the sales and the price increase and the seven-year exclusivity that Nestle gave based on our unique design? [00:13:37] Speaker 02: They said, no persuasive evidence of failures of others. [00:13:39] Speaker 02: We put in the Schiffman concepts were tried. [00:13:44] Speaker 02: Graphic made the constructs based on the Schiffman constructs that were purchased by Nestle, and they were determined by both Nestle and Graphic to not be satisfied. [00:13:55] Speaker 02: They said no persuasive evidence of long-fell need. [00:13:58] Speaker 02: This took four years. [00:14:00] Speaker 00: One of those statements, to me, are telling me that the PTAT did consider, the court did consider secondary considerations, just didn't find them persuasive. [00:14:12] Speaker 00: And we can't reweigh that. [00:14:14] Speaker 00: Right? [00:14:15] Speaker 00: These are facts or findings. [00:14:17] Speaker 02: Your Honor, there's a presumption of nexus here. [00:14:21] Speaker 02: The board found nexus. [00:14:23] Speaker 02: And then they completely discounted the secondary considerations that we had presented. [00:14:28] Speaker 02: What nexus? [00:14:28] Speaker 02: What do you mean? [00:14:30] Speaker 02: They actually found, in the decision, they said there is a nexus between the patented product and the claims of the patent. [00:14:38] Speaker 02: So they said there's a nexus. [00:14:40] Speaker 02: And then they completely discounted it when they weighed the secondary considerations against [00:14:44] Speaker 02: the weight, they said, of the obviousness. [00:14:50] Speaker 02: And so, Your Honor, no, you can't just rub or stamp that they say, we don't think there's really commercial success here, or we're going to discount it because Mr. Boise is an employee of Graphic. [00:15:00] Speaker 02: I mean, that's crazy. [00:15:02] Speaker 02: And, Your Honor, you have to look at it in the light of what they said. [00:15:05] Speaker 00: They said more than that. [00:15:06] Speaker 00: They said that they thought that that was a self-serving statement. [00:15:10] Speaker 00: Well, Your Honor, I don't understand. [00:15:11] Speaker 00: And that's a credibility-type issue. [00:15:13] Speaker 02: I'm sorry? [00:15:14] Speaker 00: That's a credibility type issue. [00:15:16] Speaker 02: Your honor, this is why you have depositions. [00:15:19] Speaker 02: There's nothing in the record that Inline can point to that undermines Mr. Voisey's credibility. [00:15:25] Speaker 02: The fact of the matter is, is even if you don't like the pricing information, there's a seven year exclusivity that Nestle granted. [00:15:34] Speaker 02: There's other people tried, at least Mr. Schiffman tried and failed. [00:15:38] Speaker 02: There's four years of when this project first started to when the [00:15:43] Speaker 02: the commercial embodiment became a reality. [00:15:45] Speaker 02: They said just without any law on their side, the board says that is not evidence of long felt need. [00:15:51] Speaker 02: In a crowded art like this, microwave technology, four years is forever. [00:15:56] Speaker 02: So... You're out of time. [00:15:58] Speaker 03: I'll give you two minutes for reflection. [00:15:59] Speaker 03: Thank you. [00:16:11] Speaker 01: May it please the court, Chad Ziegler, for inline packaging the appellee in this case. [00:16:16] Speaker 01: The board, in fact, spent about 16 pages of its opinion going through each and every piece of evidence that graphics submitted for secondary considerations. [00:16:25] Speaker 03: I want to talk to you about a few things the board said, because they were kind of absurd. [00:16:29] Speaker 03: And sometimes the best they could do is cite some CPA case. [00:16:34] Speaker 03: But first, this notion that Mr. Boise's testimony, by definition, [00:16:39] Speaker 03: is discounted because he's an employee. [00:16:44] Speaker 03: The whole question is, what did their own evidence show with respect to sales? [00:16:52] Speaker 03: And they didn't. [00:16:53] Speaker 03: So the board confuses the concept of an evidentiary principle, which says if you're an employee that goes to your credibility, and the ultimate conclusion of whether the credibility was so tainted based on the overall assessment of one's credibility [00:17:09] Speaker 03: that it should affect the weight to be given at the testimony. [00:17:12] Speaker 03: They automatically said, he's an employee, therefore no weight. [00:17:16] Speaker 03: Period. [00:17:17] Speaker 03: And over and over and over, they said the same thing. [00:17:20] Speaker 01: I don't know if it was that stark. [00:17:22] Speaker 01: They're reporting the Finnegan case for the proposition that whenever you have testimony from a witness who's testifying as to what someone else said, you need something more than that testimony. [00:17:32] Speaker 03: But the Finnegan case said when you have an inventor testifying as to inventorship. [00:17:40] Speaker 03: And the only corroboration is another witness's own testimony that you still need corroboration at some point. [00:17:47] Speaker 03: They never said that a witness who happens to be an employee by definition is not credible, and we don't give weight to what they say. [00:17:55] Speaker 03: That's a complete misunderstanding of how evidential principles work. [00:18:00] Speaker 01: Respectfully, Your Honor, I disagree slightly with that characterization insofar as what Mr. Boise was testifying to specifically [00:18:08] Speaker 01: with the testimony that was discounted was what Nestle knew, what Nestle intended, how they felt about the product when that testimony had to come from Nestle itself. [00:18:21] Speaker 01: It's an evidentiary issue. [00:18:23] Speaker 01: We moved to dismiss the evidence. [00:18:24] Speaker 01: The board allowed it in, but the board said, look, we'll consider it. [00:18:27] Speaker 01: We'll consider it in the context of your objections. [00:18:29] Speaker 01: So if Mr. Boise can't say what Nestle said. [00:18:32] Speaker 03: But they said everything that Mr. Boise said was entitled to no weight. [00:18:37] Speaker 01: Everything he said violated 701, 601, 802 of the federal civil procedure. [00:18:46] Speaker 01: The board acknowledged that it would use those rules in weighing the credibility of the testimony. [00:18:52] Speaker 01: All of it surrounded his post hoc interpretation of evidence. [00:18:57] Speaker 01: He wasn't a prescipient witness. [00:18:59] Speaker 03: They never said any of that. [00:19:01] Speaker 03: They said he was an employee ergo. [00:19:03] Speaker 03: We don't believe him. [00:19:05] Speaker 01: Right? [00:19:05] Speaker 01: In the context of that statement, [00:19:07] Speaker 03: I mean, I have to look at what the board said. [00:19:09] Speaker 01: They said, because he is an interested witness, we're going to discount his testimony somewhat. [00:19:17] Speaker 01: They said, yes. [00:19:18] Speaker 01: Citing that case that we referred to, the Finnegan case, the quotations in that case had to do with testifying to someone else's testimony. [00:19:26] Speaker 01: And what I take from that is, because Boise is talking about what Nestle said and what Nestle thought, [00:19:33] Speaker 01: that that was an appropriate objection to the testimony. [00:19:36] Speaker 03: But they never once said that. [00:19:38] Speaker 01: Well, whether or not the board articulated it artfully, that is the problem with that evidence. [00:19:44] Speaker 01: And that problem remains. [00:19:46] Speaker 01: And it was therefore appropriate for the discount. [00:19:48] Speaker 03: But they even discounted his testimony as to just the straight up numbers, like how many sales, what the sales increase was, all of that. [00:19:57] Speaker 01: As far as sales increase and sales, [00:20:00] Speaker 01: But the evidence they put in itself was admitted and weighed independently. [00:20:07] Speaker 01: They weren't looking for, for example, a trial of Mr. Boise to get it into evidence. [00:20:12] Speaker 01: They let it in. [00:20:13] Speaker 01: And we think that was done with much generosity. [00:20:19] Speaker 01: So the fact that they discounted his testimony wasn't used then to discount the specific exhibits that the board went through one by one to find [00:20:29] Speaker 01: serious issues with respect to the probity of the evidence, which is something that's absolutely entitled to do. [00:20:37] Speaker 03: Let me look at a few other things. [00:20:38] Speaker 03: Another thing they said is that you can never show failure of others when it's only one entity or person who failed. [00:20:49] Speaker 03: In other words, you have to show a ton of people tried it. [00:20:53] Speaker 03: And I have a problem with that because in the pharmaceutical context, over and over and over, [00:21:00] Speaker 03: We've found failure of others where one competitor tried something and couldn't get there, and therefore the failure of others is established. [00:21:09] Speaker 03: So why are we, and they cite some old CCPA case for this proposition, ignoring all the rest of our body of case law that says even the failure of one entity or one person is enough if that's where the interest in the product lies. [00:21:27] Speaker 01: So if we're talking about a case where, and I think Mr. Herman cited this case, where you have a serious competitor, a serious competitor in the pharmaceutical industry, I think it was, it could be Mepper's all case, he cited, where there's evidence that the competitor expended [00:21:54] Speaker 01: tens of millions of dollars in trying to design a competing drug or a drug that could be used in the stead of the one that's patented and failed to do so. [00:22:05] Speaker 01: In that instance, I agree. [00:22:07] Speaker 01: Sure, you have a competitor. [00:22:09] Speaker 01: There's evidence more than merely someone failing. [00:22:11] Speaker 01: There's evidence of the amount of money spent. [00:22:13] Speaker 01: There's the evidence of the competition. [00:22:15] Speaker 03: But the board never said that. [00:22:16] Speaker 03: The board never said, OK, sometimes you could do this. [00:22:21] Speaker 03: or ever cited a single Federal Circuit case. [00:22:24] Speaker 03: This is my problem. [00:22:25] Speaker 03: They over and over and over make up rules about what the secondary considerations mean and what you can consider. [00:22:32] Speaker 03: And then they state them as blanket rules that could be recited again in another case. [00:22:38] Speaker 03: And their statement was just plain wrong. [00:22:43] Speaker 01: In the context, though, of the statement that's made, I submit that with respect to [00:22:50] Speaker 01: But an actor like Schiff, whose work was scrutinized with respect to the board's decision and statement as to how much weight to give it, you have an individual that was working collaboratively with the parties. [00:23:05] Speaker 01: He designed some rough sketches, according to Mr. Boise's testimony, that were then used by Nestle to design packages and tests. [00:23:17] Speaker 01: There's no evidence that [00:23:19] Speaker 01: that Schiff had any further involvement. [00:23:21] Speaker 01: There's no evidence that graphic went out of its way to make these things work. [00:23:27] Speaker 01: There's got to be some contextual evidence that gives relevance to the information to give it the kind of weight you need to show that whereas there's a strong case of obviousness on one side, [00:23:45] Speaker 01: There is weight enough for secondary considerations. [00:23:48] Speaker 03: But the secondary considerations are part of the obviousness inquiry. [00:23:52] Speaker 03: It's not a question of two different sides. [00:23:54] Speaker 03: Of course. [00:23:54] Speaker 03: It's a question. [00:23:55] Speaker 03: And motivation to combine is not an additional gram factor. [00:23:59] Speaker 03: It is the ultimate question. [00:24:01] Speaker 03: And so all of these factors are to be considered before you decide that there's a motivation to combine. [00:24:06] Speaker 03: You say there's evidence that would indicate the possibility of a motivation to combine. [00:24:10] Speaker 03: But ultimately, these factors are supposed to tell you [00:24:13] Speaker 03: whether or not the motivation combined really exists. [00:24:17] Speaker 01: I don't mean to sound trite about it, but when you're writing an opinion, you have to start somewhere. [00:24:24] Speaker 01: So this board started with three Graham factors, the first three, and then wound up with secondary considerations. [00:24:30] Speaker 01: Then lastly, took all the evidence together and put them on a scale like Graham tells you to do. [00:24:35] Speaker 01: They did their job exactly right in that regard. [00:24:37] Speaker 01: And what they found was, when you look at the evidence of obviousness, for example, [00:24:41] Speaker 01: They look at the 078 patent and they see two elements well known in the art. [00:24:47] Speaker 01: Pillow box, package construct, and microwave energy interact material. [00:24:53] Speaker 01: They're being combined for the exact reason that people have been using them for years and years and years by known methods to achieve results that are absolutely expected. [00:25:04] Speaker 01: Nothing beyond what you'd expect out of the pillow box construct and its ability to hold the food product up for consumer usage. [00:25:11] Speaker 01: and MIE-AM, which has been around forever, at least as far as CLO goes, which shows that it can be used at Brown and Crisp in the microwave. [00:25:20] Speaker 01: I submit that's an exemplary case of obviousness under the KSR standard. [00:25:25] Speaker 01: And there had to have been some measure of evidence coming from GRAPHIC to show why such a combination, under those circumstances, as explicitly set forth in KSR, is going to [00:25:41] Speaker 01: is going to displace the decision in their favor. [00:25:44] Speaker 03: But even if you don't have teaching way, what about the fact, as your friend described, that if you do the combination that the board thought was so obvious, that you basically would end up with a situation where you've got holes in the product where the prior art was specifically designed to protect your hands. [00:26:04] Speaker 01: So KSR tells us that with respect to Cato, you're allowed to employ Cato [00:26:10] Speaker 01: for more than its absolute express purpose. [00:26:13] Speaker 01: So Kato is used to hold a bulky food that's across many product lines, some of which may have grease, others of which may not. [00:26:24] Speaker 01: But the point is we're taking it from that context and we're applying it in a situation to which our expert testified is fairly ideal usage as far as meeting the two needs [00:26:37] Speaker 01: expressed by the patentee in their patent. [00:26:40] Speaker 01: And that is the ability to brand it crisp on the one hand, and then an out-of-the-microwave feature that allows people to carry it around and facilitate consumption afterwards. [00:26:51] Speaker 01: And that's exactly what it's being applied for. [00:26:53] Speaker 01: It's being applied for its exact reason. [00:26:56] Speaker 01: The raison d'etre in Cato is to do exactly that. [00:27:00] Speaker 03: What about the discounting of the copying? [00:27:03] Speaker 03: I mean, there was blatant copying. [00:27:08] Speaker 01: Our evidence of the case shows that Nestle had a sole source supplier in graphic. [00:27:17] Speaker 03: And they handed it over to your client, who copied it. [00:27:20] Speaker 01: We got a specification to meet, and we met it. [00:27:26] Speaker 01: And then the patent issues. [00:27:28] Speaker 03: And below, your only argument was that, well, it can't be copying if we didn't know about the patent. [00:27:33] Speaker 01: But that's not the law. [00:27:37] Speaker 01: The law says that copying itself is equivocal. [00:27:44] Speaker 01: Again, you need some contextual evidence to give that some meaning. [00:27:49] Speaker 01: So for example, in the case... Meaning you didn't come up with it on your own. [00:27:53] Speaker 03: You copied it. [00:27:56] Speaker 01: That's one way to demonstrate that copying has probative value is to show that, yes, we were in the marketplace of the competing product, [00:28:07] Speaker 01: And we were somehow being out competed by graphic, and we decided to co-opt those features that made it better. [00:28:19] Speaker 01: And that's not the case here. [00:28:20] Speaker 01: And the case law, I think, is fairly clear. [00:28:23] Speaker 01: So for example, in- Well, you did co-opt those features that made it better. [00:28:28] Speaker 03: You copied the actual plans. [00:28:31] Speaker 01: Yes, but we copied. [00:28:34] Speaker 01: We made a product of specification, and we were agnostic about the invention. [00:28:38] Speaker 01: The invention was immaterial. [00:28:40] Speaker 03: But that doesn't matter. [00:28:41] Speaker 03: I mean, as the board found. [00:28:43] Speaker 01: It does matter. [00:28:44] Speaker 01: So for example, in the degree. [00:28:45] Speaker 03: No, the board found that didn't matter. [00:28:48] Speaker 03: The board specifically rejected your argument. [00:28:50] Speaker 01: It did. [00:28:51] Speaker 01: It gave it some weight, but it did buy the argument that there has to be more than bare copy. [00:28:57] Speaker 01: It did say that copying is equivocal. [00:28:59] Speaker 01: And it looked for evidence found in many cases where there's been some competitive activity, historical competitive activity between the parties, where the playing field got leveled through co-opting of invented features of the product. [00:29:17] Speaker 01: It's true. [00:29:18] Speaker 01: The case of Wrigley versus Cadbury, where copying was shown, the Fed Circuit placed very little weight, actually, [00:29:29] Speaker 01: on the fact that there was copying for the sole reason that the products at issue and all of the industry actors all tended to try to make the same product. [00:29:42] Speaker 01: So again, if you can show that all the decisions made with respect to our manufacture of the device and Nestle's acceptance of it could relate to business decisions such as Nestle's desire to have a second supplier, which is a [00:29:57] Speaker 01: perfectly natural business decision to have that may have nothing to do with the invention, or that we were simply meeting a specification in a market, and Nestle is a market, in which we are told that we have to make the exact same thing. [00:30:12] Speaker 01: A second source supplier makes the same thing. [00:30:16] Speaker 01: It doesn't mean that we looked to that invention, or Nestle did, and said, we need to have this copy, so that the evidence [00:30:24] Speaker 01: unless it can demonstrate that beyond the bare documents that they've shown or the arguments they've made, is equitable. [00:30:35] Speaker 01: Lastly, what's missing, and it's important, I think, particularly here when you have an imported invention where you are combining old elements for their own purposes, for the exact reason you're combining them, which is known to everyone. [00:30:53] Speaker 01: There's no unexpected results. [00:30:54] Speaker 01: These are complementary features. [00:30:56] Speaker 01: One addition doesn't hinder the operation of the other. [00:31:00] Speaker 01: The addition of one doesn't enhance the ability of the other. [00:31:04] Speaker 01: They're just this sort of complementary features. [00:31:06] Speaker 01: It's to show somehow that those known elements would not have been combined. [00:31:11] Speaker 01: And the best way to do that, and the only way to do that, I would submit, is to show historically that actual skilled artisans didn't actually make the combination when there was a long-felt need in the art. [00:31:24] Speaker 01: And in fact, the combination that the inventors had led to something unexpected. [00:31:28] Speaker 01: And here, we don't have that. [00:31:30] Speaker 01: And the classic case where that was shown, where those facts are completely absent here, is a graphic cited case of Leo Farmer products. [00:31:38] Speaker 01: In that case, you have the combination of two compounds, two known compounds that treat psoriasis, each of which had been for years administered separately. [00:31:50] Speaker 01: And the patentee demonstrated that [00:31:54] Speaker 01: for years, there's been a very long-held need to increase the efficacy and shelf life of those drugs. [00:32:02] Speaker 01: And what they did was they found that when they combined the two, unexpectedly, the combination of those two compounds, known to treat the exact same disorder, were enhanced. [00:32:15] Speaker 01: Shelf life and efficacy were enhanced. [00:32:18] Speaker 01: Facts that are absent from this case, the only evidence that they have [00:32:24] Speaker 01: as far as a long felt need is exhibit 2016, which is a document from Chef America, Nestle's predecessor, saying that they would like to have a microwave to set their sleeve with a to-go feature. [00:32:44] Speaker 01: And in that same document, Chef America immediately suggests the proper way to address it. [00:32:51] Speaker 03: Your time is up. [00:32:52] Speaker 03: I've let you go over. [00:32:59] Speaker 01: Thank you. [00:32:59] Speaker 03: Making up for the two minutes I gave him back. [00:33:01] Speaker 03: So you've got an extra two minutes, too. [00:33:05] Speaker 01: Well, I have an extra two minutes. [00:33:06] Speaker 03: No, you did. [00:33:07] Speaker 01: I gave you that. [00:33:07] Speaker 01: Oh, you did already. [00:33:08] Speaker 01: All right. [00:33:08] Speaker 01: Because I said two minutes. [00:33:08] Speaker 01: You're like, oh, you gave me an extra two minutes. [00:33:10] Speaker 02: Thank you. [00:33:12] Speaker 02: Your Honors, briefly, everything Mr. Ziegler said about secondary considerations was attorney argument. [00:33:18] Speaker 02: That's the same thing that we argued below and argued in our briefs. [00:33:21] Speaker 02: The federal rules of evidence and all those arguments is not on issue here on appeal. [00:33:26] Speaker 02: The board can weigh evidence, but it needs contrary evidence to weigh it against. [00:33:30] Speaker 02: There is not. [00:33:31] Speaker 02: It's just attorney argument. [00:33:32] Speaker 03: But even if all the secondary considerations go in your favor, that's something that is supposed to be considered in the totality of the circumstances here, and those circumstances include what all the prior art teaches. [00:33:50] Speaker 03: Correct. [00:33:52] Speaker 03: isn't in this circumstances, the totality of the circumstances sufficient when you've got the priority that does what it does. [00:33:58] Speaker 02: So first of all, Your Honor, you hit on a point about when secondary considerations are supposed to be considered in total. [00:34:06] Speaker 02: Dr. Sand did not consider secondary considerations at all. [00:34:10] Speaker 02: So she gave an opinion that there was a motivation to combine without addressing any of the secondary considerations, and that includes in her rebuttal declaration. [00:34:18] Speaker 02: So an InTouch Technologies 2014 Federal Circuit case touches directly on that. [00:34:23] Speaker 02: If the expert doesn't identify a sufficient reason to combine and doesn't even consider secondary considerations, we're going to reverse. [00:34:30] Speaker 02: And that's what we submit that you should do here. [00:34:33] Speaker 02: The combination, Your Honor, the problem of Cato, and I'm reading from Cato, Appendix 1275, it literally says problem. [00:34:41] Speaker 02: If a bulky food, such as a hamburger or a croquette, is extracted from a packaging material and is directly held, [00:34:48] Speaker 02: It is not preferable from the hygienic aspect. [00:34:52] Speaker 02: And sauces and or oil of the bulky food can be smeared onto the hands, and the hands can get dirty. [00:34:58] Speaker 02: That is the problem that Cato was trying to solve. [00:35:00] Speaker 02: The problem that the 078 patent was trying to solve was to develop a construct where you could cook the food. [00:35:08] Speaker 02: They cook the food, carry the food afterwards prepared, and then allow for easier consumption as you're eating it. [00:35:15] Speaker 02: That's not a problem that Cato identified. [00:35:16] Speaker 02: It's not a problem that Chloe identified. [00:35:18] Speaker 02: So there is no reason to combine the art. [00:35:21] Speaker 02: And then that's when you look at the secondary considerations and say, clearly, that's going to outweigh a weak motivation to combine. [00:35:29] Speaker 03: All right. [00:35:30] Speaker 03: Thank you. [00:35:30] Speaker 03: Your cases will be submitted.