[00:00:00] Speaker 03:
Beach Brands, Inc.

[00:00:02] Speaker 04:
v. For Real Foods, 18-1274.

[00:00:42] Speaker 04:
Can I ask a preliminary question?

[00:00:45] Speaker 04:
Before me?

[00:00:46] Speaker 04:
Without eating his time.

[00:00:50] Speaker 03:
You want me to get him up here first?

[00:00:52] Speaker 04:
Yeah, after they're ready.

[00:00:58] Speaker 03:
Counselor Foster.

[00:01:00] Speaker 03:
You reserve three minutes for rebuttal.

[00:01:03] Speaker 03:
Yes, Your Honor.

[00:01:04] Speaker 03:
Let's wait just a little bit until everybody gets a chance to sit down up here.

[00:01:12] Speaker 04:
Just a preliminary question while you're getting ready.

[00:01:15] Speaker 04:
The record appears to indicate that the trial involved chocolate milkshakes, and I was wondering if, uh... Why were you wondering, Your Honor?

[00:01:25] Speaker 01:
Exhibits?

[00:01:26] Speaker 01:
Is that what you're looking for?

[00:01:29] Speaker 01:
Exhibits.

[00:01:30] Speaker 01:
We didn't get to that point.

[00:01:31] Speaker 01:
The patents here are about the rinsing of them, but the district court case involves them.

[00:01:37] Speaker 01:
Your Honor, may I get in?

[00:01:38] Speaker 03:
Yes, you may start.

[00:01:39] Speaker 01:
Your Honor, may it please the Court?

[00:01:41] Speaker 01:
This appeal comes down to whether it would have been obvious to modify a known mixer having a splash shield with a nozzle for rinsing.

[00:01:49] Speaker 01:
The secondary references in this case are in the exact same field as the primary reference with the splash shield.

[00:01:55] Speaker 01:
Both Miller and Kelly are directed to rinsing components of a mixing machine.

[00:02:00] Speaker 04:
I want to just begin with the APA violation that you all led, okay?

[00:02:05] Speaker 04:
Yes, Your Honor.

[00:02:07] Speaker 04:
You say that there's an APA because the PTAB adopted a claim construction not specifically pro-offered by either party effectively, as you put it, changing theories midstream and that you didn't have an opportunity to address that.

[00:02:23] Speaker 04:
But the record, when I read the record, I don't find that.

[00:02:28] Speaker 04:
Foreal argued in its patent owner response that it favored

[00:02:33] Speaker 04:
the disputed rinse nozzle limitations, including both preposition nozzle and rinsing, quote, directed at the soiled surfaces limitation.

[00:02:45] Speaker 04:
And Hamilton Beach chose to respond in its petitioner's reply not only to the soiled surfaces aspect, only, I'm sorry, only to the soiled surfaces aspect.

[00:02:57] Speaker 04:
And counsel for Hamilton Beach discussed claim construction before the PTAB,

[00:03:02] Speaker 04:
during oral argument.

[00:03:04] Speaker 04:
So how can you argue that Hamilton Beach didn't have an opportunity to respond to a construction that Freel offered below?

[00:03:12] Speaker 01:
Your Honor, first of all, there was a structural limitation in respect to the nozzle, the orienting towards the splash shield.

[00:03:21] Speaker 01:
And in that one, Freel proposed having at least one nozzle oriented towards a soiled area of the splash shield.

[00:03:27] Speaker 01:
But then with the method step, they say again, using the nozzle as oriented towards the splash shield.

[00:03:32] Speaker 01:
I know they added the word the pre-position nozzle, but it wasn't in the original structure.

[00:03:37] Speaker 04:
But within APA, rather than merits, right, but within APA, are you arguing that it violates the APA for the PTAB to construe a claim that it didn't initially construe an institution decision?

[00:03:50] Speaker 01:
No, Your Honor, for a couple things.

[00:03:52] Speaker 01:
First, it didn't adopt one of the party's constructions.

[00:03:56] Speaker 01:
It slightly took its own construction with respect to the pre-positioned nozzle directed at the splash shield.

[00:04:03] Speaker 01:
The second thing is we'll never argue the underlying rationale for the claim construction.

[00:04:08] Speaker 01:
If you look at the final decision, the board made a distinction between positionable and oriented and how those terms should have different meanings.

[00:04:16] Speaker 01:
I have no idea what the plain meaning of those terms are.

[00:04:18] Speaker 01:
The board gave us no indication

[00:04:20] Speaker 01:
They just said, in a conclusory matter, hey, they mean the same thing based on the arguments here.

[00:04:26] Speaker 01:
They never gave us any opportunity to respond to that argument.

[00:04:30] Speaker 01:
They never provided what the plain and ordinary meaning of those terms are.

[00:04:34] Speaker 01:
I would argue positionable is moving to a specific position.

[00:04:37] Speaker 01:
Oriented is just pointing at something.

[00:04:39] Speaker 01:
I mean, those terms have different meanings.

[00:04:42] Speaker 01:
And that particular rationale, we never got an opportunity to respond to.

[00:04:45] Speaker 01:
And it's not something that the patent ever raised in the IPR.

[00:04:50] Speaker 00:
So can I ask this?

[00:04:51] Speaker 00:
I guess I was remembering that you made an APA argument which did not, in the form I understood it, bowl me over about how the adoption of the pre-positioned claim construction was procedurally inappropriate because you didn't get a chance to respond to it.

[00:05:13] Speaker 00:
And that seemed to me, I guess, not a very strong argument because

[00:05:19] Speaker 00:
as I understood, as to that, what the board did was to take exactly 50 percent of the proposed construction of the other side.

[00:05:31] Speaker 00:
If you're now saying something slightly different, I didn't take this to be an APA argument.

[00:05:37] Speaker 00:
I think that there is a concern, at least I had a concern, that when the board got around past the claim construction point to reading the prior art and figuring out what it

[00:05:49] Speaker 00:
would have made obvious to a relevant skilled artisan that the board thought that these claims required that the novel operate automatically and not by hand, and that it be in a fixed position, both of which seemed to me to be not so much a matter of late arising as to be possibly, as I take it you are arguing, simply wrong.

[00:06:18] Speaker 01:
Well, Your Honor, in our briefs, we did argue they changed kind of the story of why they had this construction based on the distinction between positional and oriented.

[00:06:27] Speaker 01:
But then we also argued extensively in the briefs how essentially they narrowed, especially under the broadest reasonable interpretation, they inappropriately narrowed the claim.

[00:06:36] Speaker 00:
But that's not an APA type you didn't give us fair notice argument, as I read your brief.

[00:06:44] Speaker 00:
as so much as these claims just do not, these, this claim, this is all about claim 21, right?

[00:06:51] Speaker 00:
That, that, am I right?

[00:06:52] Speaker 00:
This is, everybody agrees?

[00:06:54] Speaker 00:
Right.

[00:06:54] Speaker 00:
So that that claim simply does not require the nozzle to operate automatically or, indeed, to be in a fixed position.

[00:07:04] Speaker 01:
Gershengorn, we also argued it was an error of law to construe the claims, why they did.

[00:07:08] Speaker 01:
This is a claim construction that they would never get in a district court action.

[00:07:12] Speaker 01:
In fact, in the pending district court action, this isn't the claim construction.

[00:07:16] Speaker 00:
So you are, in fact, arguing that the board's reason for distinguishing Kelly and for distinguishing the asserted combination, namely that this patent, or rather, claim 21 of the patented issue is essentially about an automatic

[00:07:37] Speaker 00:
nozzle and a fixed-position nozzle that that is wrong, and once you eliminate that error, Kelly teaches it.

[00:07:45] Speaker 01:
Yes, Your Honor.

[00:07:45] Speaker 01:
We would argue that.

[00:07:46] Speaker 01:
We would also even argue under the board's claim construction, if the Court agreed with it, the combination of references still read on a pre-positioned automatic rinsing.

[00:07:55] Speaker 01:
The board used the wrong standard for obviousness.

[00:07:57] Speaker 01:
They used this bodily incorporated standard.

[00:08:00] Speaker 01:
They had said, I'm looking at the Miller reference, and it teaches

[00:08:04] Speaker 01:
manual rinsing of the splash shield, but it does teach automatic rinsing of the spindle.

[00:08:09] Speaker 01:
And the board never tried to look at whether or not one of the ordinary skill in the art would be able to modify Nielsen, which does have a splash shield.

[00:08:17] Speaker 00:
But that's not the case.

[00:08:17] Speaker 00:
Robertson.

[00:08:18] Speaker 00:
I just want to ask you, let me follow my point, and then maybe I'll walk away from it.

[00:08:24] Speaker 00:
Who cares about automatic?

[00:08:26] Speaker 00:
Really?

[00:08:27] Speaker 00:
This claim doesn't require it, does it?

[00:08:30] Speaker 00:
No, Your Honor, it does not.

[00:08:31] Speaker 00:
So why is that not?

[00:08:33] Speaker 00:
not quite alpha to omega, but alpha to something close to omega of your argument.

[00:08:39] Speaker 01:
Your Honor, it could be, because as you said, Kelly does have a splash, sorry, does have a nozzle that's oriented towards a splash shield.

[00:08:46] Speaker 01:
And again, one thing that kept happening in this case is that the board kept looking at the references individually.

[00:08:51] Speaker 01:
They never looked at what the teaching of the reference were in view of Nielsen, like how would you modify Nielsen in view of Kelly's teaching.

[00:08:58] Speaker 01:
So if you added Kelly, Kelly's nozzle to Nielsen's

[00:09:02] Speaker 01:
blender, you would have the patent.

[00:09:04] Speaker 01:
You would have a nozzle oriented towards the splash shield, and then you could rinse the splash shield with that nozzle.

[00:09:09] Speaker 01:
There's no requirement that it be automatic.

[00:09:11] Speaker 01:
There's no requirement that it be fixed.

[00:09:14] Speaker 01:
And so, Your Honor, we would agree.

[00:09:16] Speaker 01:
The only point we made in our briefs is whatever the claim construction is, even if it is fixed, we still show it with our references if you apply the correct obvious standard.

[00:09:26] Speaker 01:
But, Your Honor, we would agree with you that if it's adjustable,

[00:09:28] Speaker 01:
Kelly would be enough as far as the nozzle does show up.

[00:09:32] Speaker 04:
You argued that at 26, the Bluebird, the 661 patent does not even use the term soiled, nor does it define which portions of the claim splash shield would be soiled.

[00:09:45] Speaker 04:
What else would nozzles 34A and 34B be rinsing, other than a soiled splash shield?

[00:09:54] Speaker 01:
Well, Your Honor, well, one rinses the top, one rinses the bottom.

[00:09:58] Speaker 01:
I don't know if the top is, I don't know.

[00:10:01] Speaker 01:
It doesn't talk about how it's mixed or what exact portions are.

[00:10:05] Speaker 01:
The patent also discusses that those nozzles might not be sufficient to rinse the entire splash shield.

[00:10:10] Speaker 01:
It might have to be rotated, for example.

[00:10:12] Speaker 04:
Well, you sort of do know the exact portions because it's a premixed package, right?

[00:10:18] Speaker 01:
Your Honor, the patent talks about using

[00:10:21] Speaker 01:
nozzles just on one side, you wouldn't be able to rinse the entire splash shield without actually demonstrating it with a shake.

[00:10:27] Speaker 01:
I'm not sure we know is the entire thing covered or not, but again, the patent claim order requires that rinsing fluid be directed onto the splash shield and that there's nozzles oriented towards the splash shield.

[00:10:38] Speaker 00:
I think Judge Wallach really wanted you to bring a mixer and a milkshake.

[00:10:43] Speaker 00:
I love a good mess.

[00:10:45] Speaker 03:
All right.

[00:10:48] Speaker 03:
Before your time runs out, I do want you to

[00:10:50] Speaker 03:
as to the supplemental authority that we've been receiving prior to this argument and the click-to-call-type argument here.

[00:10:59] Speaker 03:
This is an epic.

[00:11:02] Speaker 01:
Go ahead.

[00:11:02] Speaker 01:
Yes, Your Honor.

[00:11:03] Speaker 01:
I am aware of the click-to-call case in the Bennett regulators' case.

[00:11:07] Speaker 01:
The Court has recently repealed the old Principi case, where if a case was voluntarily dismissed, that would no longer serve to bar an IPR that was filed a year after the dismissed case.

[00:11:19] Speaker 01:
Here, it's a little different circumstance.

[00:11:22] Speaker 01:
Here, there was no standing for the earlier 2014 Act.

[00:11:25] Speaker 03:
Why does that matter?

[00:11:28] Speaker 01:
Well, Your Honor, there was never any sort of claim to bring.

[00:11:31] Speaker 01:
In the other cases, there was a claim.

[00:11:33] Speaker 01:
In one case, they just dropped it on their own, the click-to-call case.

[00:11:36] Speaker 01:
The other one, there was a dismissal because of personal jurisdiction.

[00:11:41] Speaker 01:
But again, that can be waived.

[00:11:43] Speaker 03:
What if services is improperly perfected?

[00:11:48] Speaker 01:
I mean, if service was improperly perfected, I guess it's not a served complaint under the meaning of the statute.

[00:11:54] Speaker 01:
And here, because there's never was any sort of cause of action, I don't know how you can serve a complaint.

[00:11:59] Speaker 00:
In fact... Robertson Well, one of the things that was sort of strikingly, at least striking to me, missing from the very abbreviated briefing on this whole 315B issue,

[00:12:12] Speaker 00:
is the kind of exploration of background law that I think literally dozens of pages were filled with analysis in the click-to-call situation to figure out whether the language of 315b implicitly contained or did not contain an exception for a voluntary dismissal.

[00:12:38] Speaker 00:
And as far as we haven't been given anything,

[00:12:41] Speaker 00:
assertion, which maybe has an intuitive appeal, I'm not sure, about why lack of standing, whether it's Article 3 standing, whether it's you're not a patentee under 281 standing, if that's the right term, bears on the application of the quite strict service rule in 315B.

[00:13:06] Speaker 00:
Why does it bear on that?

[00:13:09] Speaker 01:
Well, Your Honor, there was no cross-appeal on this point.

[00:13:11] Speaker 00:
That's a separate question, and I think we'll talk, at least I hope to talk to your friend on the other side about that.

[00:13:18] Speaker 01:
So for purposes of appeal, we assume that the board's decision was going to apply because the patent order didn't appeal that part of it.

[00:13:25] Speaker 01:
And then the board does address it.

[00:13:27] Speaker 00:
But you are making the assertion that taking click-to-call as a given, this is different because for real, at the time it brought its 2014 suit,

[00:13:38] Speaker 00:
and apparently properly served it.

[00:13:40] Speaker 00:
There's no dispute about that.

[00:13:43] Speaker 00:
Nevertheless, that suit should be, maybe I have the years wrong, but that suit should be disregarded because, for real, could not properly have brought that suit, even though it in fact asserted this patent against you.

[00:13:57] Speaker 00:
So what law links service, propriety, and standing in the underlying complaint being served?

[00:14:06] Speaker 00:
That's my question.

[00:14:07] Speaker 00:
You haven't, you've made the assertion that they're linked, but not supplied us any legal authority at all to tell us whether that's a sound assertion.

[00:14:17] Speaker 01:
Well, Your Honor, I mean, one of the circumstances that might happen.

[00:14:20] Speaker 01:
So, for example, the way that the standing issue was discovered was 15, 16 months into this case when we served the parent corporation of Ferreel, after Ferreel told us that the documents related to the acquisition

[00:14:32] Speaker 01:
were completely unrelated to the case.

[00:14:34] Speaker 01:
We discovered these documents on the eve of the Markhamen hearing.

[00:14:38] Speaker 01:
What happened if we did file an IPR in time?

[00:14:42] Speaker 01:
We would be fighting an IPR with a party that didn't even own the patents.

[00:14:45] Speaker 01:
Would the IPR be null and void?

[00:14:48] Speaker 04:
Despite click to call, is Ohio Willowood still good law?

[00:14:54] Speaker 01:
Your Honor?

[00:14:55] Speaker 04:
I said despite click to call, Ohio Willowood is still good law, is it not?

[00:15:01] Speaker 01:
Your Honor, I didn't get a chance to brief this issue.

[00:15:03] Speaker 01:
I don't know the case.

[00:15:04] Speaker 01:
We relied on the Principi case from this Court where previously a dismissed complaint didn't count.

[00:15:11] Speaker 01:
And as you know, there's been a couple of decisions clicked a call a couple of months ago.

[00:15:14] Speaker 01:
And then a few days ago, the Bennett regulators case.

[00:15:17] Speaker 03:
So 315B refers to service of a complaint.

[00:15:22] Speaker 03:
And you've been arguing or you've been focusing.

[00:15:24] Speaker 03:
And I think that some of our cases focus on the service part.

[00:15:28] Speaker 03:
What about the complaint part?

[00:15:31] Speaker 03:
Do we look at the content of a complaint?

[00:15:35] Speaker 01:
The complaint couldn't plead a cause for patent infringement of these claims because Friel didn't own the patents at the time.

[00:15:42] Speaker 00:
I'm sorry.

[00:15:42] Speaker 00:
It did plead a cause of action for infringement of this patent, which is the wording of 315b.

[00:15:49] Speaker 00:
You have an argument that says, nevertheless, that actual pleading shouldn't count because the plaintiff making the pleading

[00:15:59] Speaker 00:
could not properly do so.

[00:16:01] Speaker 00:
And my question, I think what we've all been talking about, is how do we know that that is a, not that it was improper, but how do we know that 315 should be so interpreted to get, to look back to the propriety of the plaintiff?

[00:16:19] Speaker 01:
Well, again, I think the service of the complaint has to be proper.

[00:16:21] Speaker 01:
And if there was no cause of action, I don't know how the service of the complaint would be proper.

[00:16:25] Speaker 01:
This was a defect that could not be cured.

[00:16:27] Speaker 01:
There was no cause of action.

[00:16:28] Speaker 01:
It's a myth.

[00:16:29] Speaker 01:
They did not own the patent.

[00:16:31] Speaker 01:
I don't know how this seems to create perverse incentives where anyone can sue the patent.

[00:16:37] Speaker 03:
Is this a case in controversy constitutional issue?

[00:16:41] Speaker 01:
Your Honor, I would say it's a constitutional issue.

[00:16:45] Speaker 01:
Someone could create a bar for Hamilton Beach based on patents they don't even own, especially given the estoppel provisions of the IPR Act.

[00:16:54] Speaker 01:
Your Honor, I'm out of time.

[00:16:55] Speaker 01:
Let's shift to further questions.

[00:16:57] Speaker 03:
Okay.

[00:16:57] Speaker 03:
Well, we kept you over, so we'll restore your time when you come back up.

[00:17:03] Speaker 03:
Thank you, Your Honor.

[00:17:04] Speaker 03:
Let's hear from Counselor Chambers.

[00:17:06] Speaker 04:
Thank you, Your Honor.

[00:17:07] Speaker 04:
Let me take you to the end to start, okay?

[00:17:10] Speaker 02:
To click the call?

[00:17:11] Speaker 04:
Yeah.

[00:17:11] Speaker 04:
And particularly that question I asked about Ohio Willowwood, which requires the party asserting patent infringement must have legal title.

[00:17:22] Speaker 04:
on the day it filed the complaint, and it can't be cured retroactively, I don't think Click to Call rejects that position.

[00:17:34] Speaker 04:
Did Forreal have a legal title?

[00:17:35] Speaker 04:
And if not, how do you respond?

[00:17:38] Speaker 02:
Well, we found some case law that indicates Forreal might have had beneficial or equitable title.

[00:17:44] Speaker 02:
This was an honest mistake in preparing the merger papers as set forth in the Erica Frank declaration.

[00:17:52] Speaker 02:
And I can give you the citation to that, which is A, 876 through 877.

[00:17:58] Speaker 02:
This is supposed to be a reverse triangular merger.

[00:18:01] Speaker 02:
There was a staff attorney who didn't understand what a reverse triangular merger was.

[00:18:06] Speaker 02:
Actually, neither do I. Imagine that.

[00:18:09] Speaker 02:
Imagine that.

[00:18:10] Speaker 02:
So she prepared this document that shouldn't have been prepared, put it in a big stack, had it signed with all the other documents, and then stuffed it in a drawer.

[00:18:20] Speaker 02:
never got recorded with the patent office on the face of the patent.

[00:18:25] Speaker 02:
It says, for real, owns it.

[00:18:26] Speaker 03:
But at the time that we're looking at, Click to Call was not the owner of the patent.

[00:18:33] Speaker 02:
Well, Click to Call, of course, was not the owner of the patent.

[00:18:36] Speaker 02:
But even if you want to take the position that for real wasn't an equitable or beneficial owner, and we did find a case, by the way, that said,

[00:18:47] Speaker 02:
that the parent corporation could be added as a co-plaintiff and then ratify what its subsidiary did and then solve the problem that way.

[00:18:58] Speaker 02:
But I think the key point is click to call, which said you have an unambiguous statute that is quite clear on its face.

[00:19:10] Speaker 02:
The statute doesn't say the complaint has to be in the right court.

[00:19:14] Speaker 02:
It doesn't say anything about whether there's personal jurisdiction or not.

[00:19:18] Speaker 02:
It doesn't say anything whether it's subsequently dismissed.

[00:19:22] Speaker 02:
It doesn't say anything in the statute about whether the patent owner filed the complaint.

[00:19:29] Speaker 03:
Kennedy So the argument that there's no circumstances under which click-to-call would not apply if we have a complaint and we have service.

[00:19:38] Speaker 03:
The content and the other procedural aspects of the complaint have no meaning.

[00:19:44] Speaker 03:
And as long as the service was okay, then that has no meaning as well.

[00:19:50] Speaker 02:
How can that be?

[00:19:53] Speaker 03:
How can that be?

[00:19:55] Speaker 03:
We have a whole jurisprudence on procedure and filing a complaint and pleading the facts of a complaint.

[00:20:04] Speaker 03:
And we also have the very constitutionally-based standards on standing.

[00:20:10] Speaker 03:
If you have no standing to bring a suit,

[00:20:14] Speaker 03:
then how can you say that that is a properly served complaint?

[00:20:21] Speaker 02:
Well, then you're getting into the law of service.

[00:20:23] Speaker 02:
If you're saying you can't serve a complaint because it's defective on the merits, even if it's defective on the merits on standing, you won't know that perhaps until the end of the case.

[00:20:34] Speaker 02:
So you're going to convolute the law of service by saying that you don't know whether you have valid service.

[00:20:41] Speaker 03:
When the court looks at

[00:20:44] Speaker 03:
When the court looks at imperfect service or a standing issue, let's say three, four months down into a case, even though the complaint's been answered, and now standing comes up and it's shown that there's no standing, does that go back ab initio to the filing of the complaint, or does the lack of standing only apply at that point in time, three months into the proceeding?

[00:21:09] Speaker 02:
Well, I think you have different context there in terms of

[00:21:13] Speaker 02:
whether the court can.

[00:21:14] Speaker 03:
In other words, if there's no standing, is there a complaint?

[00:21:18] Speaker 02:
Yes, there is a complaint.

[00:21:20] Speaker 00:
But you would have to agree that under the plain-language view of 315b, you are asserting that there is a bizarre consequence, if that's in fact the correct view, of the sort that Mr. Foster pointed out.

[00:21:42] Speaker 00:
anybody wholly unrelated to the patent can file a complaint asserting against them infringement of this patent.

[00:21:53] Speaker 00:
and that starts the one-year clock.

[00:21:56] Speaker 02:
No, I would say, Your Honor, there's other mechanisms in the district court's toolbox which they have to discourage intentional, and remember, this case is not intentional, intentional abuse of process.

[00:22:09] Speaker 02:
One of those things in the district court toolbox is Rule 11 to stop recreational litigation.

[00:22:17] Speaker 04:
Can a complaint be a nullity?

[00:22:21] Speaker 02:
Again, I think you have to look at the context.

[00:22:24] Speaker 02:
In this context, no.

[00:22:26] Speaker 02:
If you have a document that, as it was here, was a professionally prepared complaint with the plaintiff being who is the owner.

[00:22:36] Speaker 02:
That was a yes or no answer.

[00:22:37] Speaker 02:
As the owner.

[00:22:38] Speaker 04:
That was a yes or no answer.

[00:22:41] Speaker 04:
Can a complaint be a nullity?

[00:22:43] Speaker 02:
I would say it depends on the context.

[00:22:45] Speaker 03:
Suppose that

[00:22:49] Speaker 03:
there's a company out in some state, and they hire another company to pose as the owner of patents, and they sue 30 defendants in that district.

[00:23:04] Speaker 03:
And do all 30 or all does that provide notice to all 30 defendants as to that particular patent?

[00:23:11] Speaker 03:
Does 315 kick in at that point?

[00:23:15] Speaker 02:
Well, it does under

[00:23:16] Speaker 02:
the way the statute is written, the way Congress chose to write the statute.

[00:23:23] Speaker 02:
And the, the, the appellant is asking you to rewrite statutes.

[00:23:30] Speaker 02:
That's what Congress does.

[00:23:32] Speaker 03:
But what I've described is, what I've described is seriously gaming the system.

[00:23:37] Speaker 03:
I mean, we, we do see cases all the time where multiple defendants are sued.

[00:23:41] Speaker 03:
Okay.

[00:23:43] Speaker 03:
Suppose someone sued multiple defendants.

[00:23:46] Speaker 03:
on a particular patent, like let's say a menu patent, and they sue all the restaurants in the area, or a bunch of them, are all of them on notice of that?

[00:23:56] Speaker 03:
And the person doesn't own the patent.

[00:23:59] Speaker 03:
The complainant does not, the plaintiff does not own the patent.

[00:24:05] Speaker 03:
Does that suffice 315B?

[00:24:08] Speaker 02:
It does under the unambiguous wording of the statute.

[00:24:12] Speaker 02:
So you have to just

[00:24:13] Speaker 02:
The statute is unambiguous.

[00:24:14] Speaker 02:
That's what Click to Call says.

[00:24:16] Speaker 02:
And so you just, if you have a simple, unambiguous statute, you just apply the, just apply the statute as it is.

[00:24:26] Speaker 02:
So they, the, it's, it's actually a good, simple rule that if you get served with the complaint.

[00:24:32] Speaker 00:
Sotomayor.

[00:24:32] Speaker 00:
Can I interrupt and just ask you about this cross-appeal question?

[00:24:36] Speaker 00:
So even if you were right that

[00:24:41] Speaker 00:
they were out of time.

[00:24:43] Speaker 00:
The most you could get out of that is not an affirmance of the rejection of their invalidity challenge, but rather, as in click-to-call, an order from us ordering dismissal of the IPR, which would have, which would be a quite different judgment in part, if only because of the quite different estoppel effects.

[00:25:07] Speaker 00:
When a judgment

[00:25:10] Speaker 00:
would be, would have to be altered and not simply affirmed, the very strong rule, which some courts call jurisdictional and the Supreme Court has repeatedly refused to say whether it's jurisdictional or not, but has said it's very, very strict, you did not file a cross-appeal here.

[00:25:29] Speaker 00:
Why should that omission in this case be overlooked?

[00:25:36] Speaker 00:
Forgiven.

[00:25:37] Speaker 02:
I looked very closely at your Aventis-Farma v. Hospira case in which this Court came very hot down very hard on filing cross-appeals because of getting extra brief and briefing time.

[00:25:52] Speaker 00:
Well, I'm sorry, filing unnecessary cross-appeals is a no-no, but filing necessary cross-appeals is a requirement.

[00:26:01] Speaker 02:
Look, the, the petition is... Can I suggest, counsel?

[00:26:06] Speaker 04:
Can I suggest that you might want to get to the merits before you entire time runs out?

[00:26:10] Speaker 02:
But I'll quickly answer a couple questions.

[00:26:13] Speaker 02:
The petition was denied and dismissed.

[00:26:16] Speaker 02:
So what we're seeking is an affirmance of the denied and dismissed.

[00:26:20] Speaker 02:
It's a dead

[00:26:21] Speaker 02:
You don't need to keep putting bullets into it by sending it back to the board.

[00:26:28] Speaker 02:
And then your point about putting 30 companies on notice, you have Rule 11 to deal with.

[00:26:33] Speaker 02:
If you are doing it intentionally and in bad faith, then you're going to be subject to sanctions with Rule 11.

[00:26:42] Speaker 03:
If you're, if you have some folks may consider that a good tradeoff.

[00:26:47] Speaker 03:
I'll take a Rule 11 sanction.

[00:26:49] Speaker 03:
And I'll put 30 companies in this particular jurisdiction.

[00:26:52] Speaker 03:
I'll put them on notice.

[00:26:54] Speaker 03:
They better run down and file their petition within a year.

[00:26:57] Speaker 02:
And as pointed out in the concurrence in Click to Call, they might get their wish and get a lot of IPR petitions filed, so that may not be such a good idea for them to do.

[00:27:08] Speaker 02:
So let's get to the merits of the case, because this was a quantum leap in blender technology.

[00:27:16] Speaker 00:
to have the first self-cleaning blender and So so what makes this blender self-cleaning under claim 21 not your blender your blender terrific You know you've made you've conquered the world with your blender because it's automatic right, but the claim 21 doesn't say that don't please don't interrupt me please Claim 21 does not say automatic correct the board seems to have relied on an assumption that

[00:27:44] Speaker 00:
that claim 21 requires an automatic nozzle.

[00:27:47] Speaker 02:
It doesn't.

[00:27:48] Speaker 02:
It's claim 21 is a method claim which is capable of automated operation.

[00:27:54] Speaker 02:
It's capable of automated operation.

[00:27:57] Speaker 00:
Where's the claim language that says that?

[00:28:00] Speaker 02:
It doesn't say the words capable of automated operation.

[00:28:03] Speaker 02:
It describes a structure and a method

[00:28:07] Speaker 02:
which allows automated operation.

[00:28:09] Speaker 02:
And this is how it does it.

[00:28:10] Speaker 02:
And this is the genius of the invention, which is not present in the prior art.

[00:28:14] Speaker 02:
So the inventor, Mr. Farrell, recognized it was all about the splash shield.

[00:28:20] Speaker 02:
So you need to do two things with the splash shield.

[00:28:23] Speaker 02:
First, you have to put it on top of the cup in a way that covers most of the top of the cup.

[00:28:29] Speaker 02:
So you limit the soiled area, you limit the area of splatter to a very small,

[00:28:36] Speaker 02:
localized area.

[00:28:37] Speaker 02:
So you've got it in a small localized area.

[00:28:40] Speaker 02:
That's the first big advance.

[00:28:44] Speaker 02:
The other big advance is to have a fixed pre-positioned nozzle pointed at that small soiled area.

[00:28:54] Speaker 02:
And so after you isolate or remove the cup with the blending, then you use that nozzle to spray the soiled area

[00:29:03] Speaker 02:
of the splash shield and clean it off.

[00:29:06] Speaker 00:
Do I understand right?

[00:29:07] Speaker 00:
You asked the board to construe the claim to require that the sprayer spray the soiled area and the board said no.

[00:29:15] Speaker 00:
And you haven't appealed that claim construction.

[00:29:17] Speaker 02:
Yeah.

[00:29:18] Speaker 00:
So why are you talking about the soiled area?

[00:29:21] Speaker 02:
I'm talking about your claim.

[00:29:22] Speaker 00:
Your claim does not require that as construed.

[00:29:26] Speaker 00:
You really got to stop that.

[00:29:31] Speaker 00:
The claim does not require

[00:29:33] Speaker 00:
require under the board's construction, which you haven't appealed, that the spray go to the soiled area?

[00:29:41] Speaker 02:
Correct.

[00:29:42] Speaker 02:
The board did not put the word soiled in.

[00:29:45] Speaker 02:
The board took a very logical and correct approach in looking at the specification, looking at the way words are used in the claims, and also some of the claim language would be superfluous if it wasn't prepositioned.

[00:30:02] Speaker 02:
I'm just explaining how the invention works to allow it to be self-inventive.

[00:30:07] Speaker 00:
Sotomayor.

[00:30:07] Speaker 00:
You understand my concern.

[00:30:08] Speaker 00:
Your machine, which has done spectacularly in the market, involves a bunch of the things that you are describing that don't appear to be in Claim 21.

[00:30:22] Speaker 02:
I'm describing how it works.

[00:30:24] Speaker 02:
You're right.

[00:30:25] Speaker 02:
Soiled is not in Claim 21.

[00:30:28] Speaker 02:
This is the genius of the invention, but it's not in Claim 21.

[00:30:33] Speaker 02:
Pre-positioned as the board correctly determined is in Claim 21.

[00:30:38] Speaker 02:
It's there because of how the claim is structured by saying first that you have this nozzle

[00:30:47] Speaker 02:
that's oriented toward the splash shield.

[00:30:50] Speaker 02:
So that's the first part.

[00:30:52] Speaker 02:
And that becomes superfluous.

[00:30:54] Speaker 03:
And you argue that oriented means fixed.

[00:30:57] Speaker 02:
Yes.

[00:30:58] Speaker 03:
Okay.

[00:30:58] Speaker 03:
And the shield, it's fixed to the shield, to clean the shield.

[00:31:03] Speaker 02:
No, it's towards the shield.

[00:31:04] Speaker 03:
Okay.

[00:31:05] Speaker 03:
Toward the shield.

[00:31:05] Speaker 03:
It's fixed so that it sprays the shield.

[00:31:08] Speaker 02:
Yes.

[00:31:09] Speaker 03:
Okay.

[00:31:10] Speaker 03:
The shield itself is movable.

[00:31:13] Speaker 03:
The shield is not fixed.

[00:31:14] Speaker 02:
The shield can go up and down in the preferred embodiment, definitely.

[00:31:20] Speaker 03:
If the nozzle is fixed and the shield is moving up and down, how is it spraying the shield?

[00:31:25] Speaker 02:
Because the shield is moving up and down when it's being blended, and then it actually goes to the down position.

[00:31:33] Speaker 02:
You take the cup out that's isolating the vessel, which actually teaches a way in Kelly.

[00:31:40] Speaker 02:
Kelly says you don't isolate the vessel.

[00:31:43] Speaker 04:
Let me interrupt you.

[00:31:45] Speaker 04:
At that point, the shield is fixed, is it not?

[00:31:48] Speaker 04:
And at that point, soiled or not, it is sprayed, am I correct?

[00:31:53] Speaker 04:
So the word soiled doesn't matter.

[00:31:55] Speaker 04:
What happens is it's sprayed every single time, whether it's splashed up or not.

[00:32:00] Speaker 02:
Very good, Your Honor.

[00:32:01] Speaker 02:
That's very good.

[00:32:02] Speaker 02:
That's very good.

[00:32:03] Speaker 02:
But it's the area that's most likely to be soiled, let's put it that way.

[00:32:08] Speaker 02:
And that's also kind of a key distinction of Kelly.

[00:32:12] Speaker 02:
Um, is Kelly's as a kitchen spring spray nozzle, all three of the references you have to manually move around to get the cleaning.

[00:32:21] Speaker 03:
Um, and the, um, you're out of time, but I'll let you conclude.

[00:32:27] Speaker 02:
Okay.

[00:32:28] Speaker 02:
Um, the commercial success is some of the most powerful and compelling evidence I've ever seen in, in a patent case.

[00:32:38] Speaker 02:
You have in the first year that this.

[00:32:42] Speaker 03:
No, I want you to conclude.

[00:32:43] Speaker 03:
You're making a new argument.

[00:32:45] Speaker 03:
I want you to conclude or time is up.

[00:32:47] Speaker 02:
Okay.

[00:32:48] Speaker 03:
It's up to you.

[00:32:49] Speaker 02:
So the board did an excellent job with this analysis.

[00:32:54] Speaker 02:
I noticed very quickly the council said the board used the wrong standard for obviousness.

[00:33:00] Speaker 02:
The board used the Graham versus John Deere standard.

[00:33:03] Speaker 03:
Okay, you're making another argument.

[00:33:05] Speaker 03:
So you may sit down.

[00:33:06] Speaker 03:
Thank you.

[00:33:09] Speaker 03:
Mr. Foster.

[00:33:11] Speaker 03:
We'll restore you back to your full three minutes.

[00:33:15] Speaker 01:
Thank you, Your Honor.

[00:33:15] Speaker 01:
I won't use the whole three.

[00:33:17] Speaker 01:
Just a couple points.

[00:33:19] Speaker 01:
There's a lot of discussion about the standing issue in this case.

[00:33:21] Speaker 01:
I'd like to note that the board actually ruled on the standing issue.

[00:33:26] Speaker 01:
It's at appendix 1267 to 71.

[00:33:29] Speaker 01:
So that determination is based on the abuse of discretion standard.

[00:33:32] Speaker 01:
The papers show that the original assignment was signed by

[00:33:37] Speaker 01:
the president of ForReal and someone on the board of Rich Corporation.

[00:33:42] Speaker 01:
So the board real there was a transfer of ownership, and there was, in fact, no standing.

[00:33:48] Speaker 01:
Again, with respect to this genius of invention, this is really what KSR was intended to address.

[00:33:57] Speaker 01:
The Nielsen reference does have that splash shield.

[00:33:59] Speaker 01:
It does confine the rinsing.

[00:34:02] Speaker 01:
And then we have Kelly and Miller.

[00:34:03] Speaker 01:
There are different solutions for rinsing devices.

[00:34:07] Speaker 01:
One of them, while Kelly can rinse from that.

[00:34:10] Speaker 03:
Kennedy What evidence did you submit that would, that to support the, the statement that a person of ordinary skill and art would have, using practical sense in the reality of the world, have made this combination?

[00:34:25] Speaker 01:
Your Honor, we used the declaration of Dr. Alex Slocum.

[00:34:29] Speaker 01:
And then if you look in our briefing, during the cross-examination, Dr. Slocum, he goes step by step how you combine the three references to arrive at an automatically rinsing blender.

[00:34:41] Speaker 01:
Because as you know, the patent owner is really pushing for this automatic construction.

[00:34:46] Speaker 01:
And during the cross-examination, he was pushing the expert on that issue.

[00:34:50] Speaker 01:
And he talked about the teachings of Kelly, more than one nozzle.

[00:34:53] Speaker 01:
Kelly teaches that you can close the rinse area.

[00:34:56] Speaker 01:
Kelly teaches a sink.

[00:34:57] Speaker 01:
And then Miller actually teaches an automatic nozzle.

[00:35:00] Speaker 04:
But your problem is that you had an expert, but the board believed the other expert.

[00:35:07] Speaker 04:
And that's a weight of fact.

[00:35:09] Speaker 01:
Actually, Your Honor, the board didn't rely on the other expert.

[00:35:12] Speaker 01:
There's no citation whatsoever to Dr. Maines.

[00:35:14] Speaker 01:
Dr. Maines only submitted a report with the preliminary response.

[00:35:18] Speaker 01:
They did not submit a report

[00:35:20] Speaker 01:
And what the board did, they said Miller teaches manual rinsing of a splash shield and left it there.

[00:35:27] Speaker 01:
This is the body of the incorporation that I was previously talking about.

[00:35:31] Speaker 01:
It's not that the references need to be physically combinable in a specific way taught.

[00:35:36] Speaker 01:
It's what do they teach one or any skill in the art?

[00:35:38] Speaker 01:
This is KSR.

[00:35:39] Speaker 01:
In KSR, it was pedals and sensors.

[00:35:41] Speaker 01:
Here it's mixing machines and nozzles.

[00:35:44] Speaker 01:
And we have two examples of rinsing components in place of a mixing machine.

[00:35:49] Speaker 01:
It just happens to be the Nielsen mixing machine has a splash shield.

[00:35:53] Speaker 01:
And then just a final point on the standing issue.

[00:35:55] Speaker 01:
I think one reason why we're not seeing any law on this point is because normally service is going to be an issue if you have standing.

[00:36:02] Speaker 01:
No one's going to challenge the service issue.

[00:36:04] Speaker 01:
So I think it's just a new area of law where this is going to be a case of first impression.

[00:36:09] Speaker 01:
We did do some research after receiving the second NOSA supplemental authority.

[00:36:14] Speaker 01:
And just the issue has been ruled upon at all, whether or not a complaint without standing can be served.

[00:36:21] Speaker 01:
Your Honor, I see that I'm out of time.

[00:36:22] Speaker 01:
And I ask the Court reverse the decision of the board and in the alternative remand for further proceedings.

[00:36:29] Speaker 03:
Okay.

[00:36:29] Speaker 03:
We thank counsel for their arguments.

[00:36:32] Speaker 03:
We will now take these cases under consideration.

[00:36:37] Speaker 03:
We're going to go back into the deliberation room for a short period of time.

[00:36:41] Speaker 03:
It will be a short period of time.

[00:36:43] Speaker 03:
And then we'll come back out and have a question-and-answer session on matters that are not related to the cases, okay?

[00:36:52] Speaker 04:
So this Court now stands in recess.

[00:37:17] Speaker 02:
It's adjourned until tomorrow morning at 10 a.m.