[00:00:02] Speaker 03:
This case for argument is 17-2263 in Rayland.

[00:00:47] Speaker 03:
We're going to let the other side go.

[00:00:53] Speaker 01:
Okay, we're ready to proceed.

[00:01:14] Speaker 01:
Good morning, Your Honors.

[00:01:16] Speaker 01:
May it please the Court.

[00:01:18] Speaker 01:
This case presents an interesting issue of how the Patent Office applies the obviousness test, which often seems like the making a dressmaker's dummy on which they can fit as pertinent prior art.

[00:01:39] Speaker 01:
In other words, tailoring the prior art

[00:01:44] Speaker 01:
in such a way that it fits into a category for pertinence.

[00:01:48] Speaker 01:
So pertinence, you're looking for the field of the prior art.

[00:01:51] Speaker 01:
In this case, the field is curtain rod finials that light up.

[00:01:57] Speaker 01:
And the prior art was a lighted finial that had an electrical cord that went down and plugged into the wall.

[00:02:06] Speaker 01:
And the first reference, the Chen reference, which we don't dispute, is pertinent art.

[00:02:13] Speaker 01:
has LED ends on a curtain rod with an electrical cord plugged into the wall.

[00:02:22] Speaker 01:
The prior art is a bicycle safety light mounted on a pole on the back of a bicycle and then also combined with a rather complex patent that seems to be focused on... Are you talking about Dean and Ducharm?

[00:02:37] Speaker 01:
Dean and Ducharm, excuse me.

[00:02:40] Speaker 01:
The Ducharme reference, which is a little confusing reference, seems to relate to theater lighting.

[00:02:46] Speaker 01:
It discloses methods of combining light of different spectra in order to achieve a predetermined lighting condition.

[00:02:54] Speaker 01:
So to get from Chen, which is unquestionably the prior art, we don't dispute it, this Charcot rod with lighted ends plugged into the wall, the

[00:03:07] Speaker 01:
a patent examiner looked to the Dean reference, the bicycle safety light, and defined the problem in such a way that it becomes, it addresses the problem that the inventors of the application were addressing.

[00:03:27] Speaker 02:
That is finding us... But the Supreme Court made very clear in KSR is that we're not supposed to just be looking to the problem that the inventors sought to solve.

[00:03:36] Speaker 02:
is that's one of the things they criticized us for.

[00:03:39] Speaker 02:
They thought we did that too often.

[00:03:42] Speaker 02:
And that what they said was there could be any number of problems that would be solved by the things that the patent actually discloses and were not supposed to be limited to just what the patentee was trying to solve.

[00:03:58] Speaker 01:
Well, the KSR was talking about the first step of the Graham test, the scoping content to the prior art.

[00:04:04] Speaker 01:
It was not talking about analogous or pertinent art, which was not a subject that was raised in the case, nor was it discussed by the court in KSR.

[00:04:14] Speaker 01:
And I think that gets to the second half of this appeal, which is on the issue of obviousness and the motivation to combine.

[00:04:23] Speaker 01:
But pertinence is in the statute.

[00:04:25] Speaker 01:
It's right there.

[00:04:26] Speaker 01:
It has to be pertinent art.

[00:04:28] Speaker 01:
A test has been devised for how to apply and how to decide what is.

[00:04:32] Speaker 03:
But the board analyzed it under that criteria.

[00:04:34] Speaker 03:
And they said it was pertinent the problem that Lynn was looking to solve.

[00:04:41] Speaker 03:
And they said, for instance, with respect to one of the references, that the inventor was trying to resolve the need for cordless power for an illuminated rod.

[00:04:51] Speaker 03:
And Dean provided the answer to that question.

[00:04:53] Speaker 03:
Why is that not consistent with our case law and what the Supreme Court is doing now?

[00:04:59] Speaker 01:
Because the problem cannot be so broadly defined.

[00:05:03] Speaker 01:
Just as in Clay, where this court decided, what is the problem with this tank that's supposed to have oil in it?

[00:05:13] Speaker 01:
And below the little hole at the bottom of the tank is the space.

[00:05:17] Speaker 01:
And they wanted to fill that up with something to get all the oil out of it.

[00:05:20] Speaker 01:
So they put some gel down there.

[00:05:22] Speaker 01:
And the prior art was sedans, which was a gel that would be injected into an underground formation where they're trying to get oil.

[00:05:31] Speaker 01:
It would fill up spaces in order to get the oil out.

[00:05:34] Speaker 01:
So that problem sounds identical, but the court here said, no, those are very different situations.

[00:05:41] Speaker 01:
If you're trying to get the last drops of oil out of a tank, that isn't the same thing as trying to

[00:05:49] Speaker 01:
get oil out of the ground.

[00:05:51] Speaker 01:
If you're trying to light curtain rods with LEDs in a way that won't exhaust their batteries in a short amount of time, you wouldn't look to a bicycle safety light that would never have thought about using an electrical cord because it couldn't.

[00:06:13] Speaker 02:
But the fact that it wouldn't have thought about using electrical cord doesn't change the fact that it

[00:06:19] Speaker 02:
had a way to provide light without an electrical cord.

[00:06:23] Speaker 01:
And this is exactly what I'm getting at, is the tendency of examiners is to create the motivation and then use that motivation as pertinence to the problem by tailoring it.

[00:06:35] Speaker 02:
But that was my whole point before about what the Supreme Court was saying in KSARP, is that you don't have to be trying to solve the patentee's problem in order to disclose a way to do it.

[00:06:50] Speaker 02:
So yes, they were never going to plug in a bicycle light, but they were able to establish that you could have a light, a lighted fixture on the bicycle without a cord.

[00:07:04] Speaker 02:
Why isn't that exactly what the patent is talking about?

[00:07:10] Speaker 01:
Well, because you're looking at the solution rather than looking at the problem.

[00:07:15] Speaker 01:
In the case, your case says,

[00:07:18] Speaker 01:
that you're looking for prior art that would have logically commended itself to the inventor in trying to reach the solution.

[00:07:27] Speaker 01:
So the question is, would a person trying to make a lighted finial look to bicycle safety lights to solve the problem?

[00:07:39] Speaker 04:
And I think as in clay, where a person in the oil industry- Is your problem that this is a bicycle as opposed to, say, a household appliance?

[00:07:49] Speaker 04:
Other than a curtain rod, suppose some form of lamp that you wanted to have freestanding away from electrical outlets that had an LED fixture at the top of a pole where the batteries were lighting the pole.

[00:08:08] Speaker 04:
That would be pertinent art, would it not?

[00:08:14] Speaker 01:
Not necessarily.

[00:08:16] Speaker 01:
Why not?

[00:08:17] Speaker 01:
That sounds awfully close to me.

[00:08:18] Speaker 01:
The issue is that these curtain rods are high up.

[00:08:21] Speaker 01:
Okay, my pole goes high up.

[00:08:26] Speaker 01:
Well, but usually you have a switch on a lamp, a pole, to turn the light off.

[00:08:30] Speaker 01:
But the curtain rods are hard to get to, to turn off.

[00:08:33] Speaker 01:
And the Chen reference, the primary reference, and the prior art mentioned in the patent, they had plugs that could be pulled out of the cord at the human lip.

[00:08:43] Speaker 01:
But at the high level, you can't get to them.

[00:08:45] Speaker 03:
And so you would define the scope of analogous art to be only curtain rods?

[00:08:52] Speaker 03:
I mean, how would you define the limits?

[00:08:55] Speaker 01:
Well, we're not in the field of endeavor, because I believe that has been conceded.

[00:08:59] Speaker 01:
We're in the problem faced by the inventor.

[00:09:02] Speaker 01:
And the problem, as it relates to the Dean reference, is what do we do about these electrical cords?

[00:09:07] Speaker 01:
And the solution that was adopted

[00:09:09] Speaker 01:
There are multiple solutions.

[00:09:11] Speaker 01:
One was to use LED lights.

[00:09:14] Speaker 01:
One was to use batteries.

[00:09:15] Speaker 01:
And then the other was to have an automatic light-sensitive switch, which would turn it off during daytime so you're not running the batteries down.

[00:09:24] Speaker 02:
So it's got to be high?

[00:09:26] Speaker 02:
Like, what if I wanted LED lights around my floorboard?

[00:09:30] Speaker 02:
I could have easily plugged them in, but I don't want plugs.

[00:09:33] Speaker 02:
So are you saying that wouldn't be pertinent?

[00:09:36] Speaker 02:
Because it's not high up?

[00:09:37] Speaker 01:
I'm saying that it wouldn't address the problem of being out of the access of the consumer and also the prior art using cords that drape down from the curtain and clash with the decor or are dangerous.

[00:09:52] Speaker 01:
That was what the prior art talked about.

[00:09:53] Speaker 01:
So in getting rid of those things, you're looking for a solution that would not logically commend itself to a bicycle safety light.

[00:10:02] Speaker 01:
which didn't really solve the problem of the short battery life anyway because that was an old patent using incandescent bulbs and had a switch which the bicycle rider would just turn on and off, you know, getting on or off the bicycle.

[00:10:16] Speaker 01:
But here you have these finials that are located up high.

[00:10:20] Speaker 01:
They're hard to reach.

[00:10:23] Speaker 01:
The LED low power consumption helps a lot, but then you add to that automatic light sensitive switch.

[00:10:30] Speaker 01:
which is found in the Ducharme restaurants.

[00:10:32] Speaker 01:
But that's not the pertinence issue that comes up with Ducharme.

[00:10:37] Speaker 01:
They used Ducharme to find that automatic light sensitive switch, which is in the independent claims.

[00:10:43] Speaker 01:
But they found something else in the dependent claims with which to combine Ducharme, which was a different light color.

[00:10:50] Speaker 01:
So they said, well, we're going to take the Chen shower curtain LED light with a cord

[00:10:59] Speaker 01:
We're going to combine it with Dean because it has batteries.

[00:11:02] Speaker 01:
And the cartridge issue is a separate issue about the obviousness analysis.

[00:11:06] Speaker 01:
But on pertinence, we're going to combine it with Dean.

[00:11:08] Speaker 01:
And then we're going to bring in Ducharme because Ducharme satisfies some dependent claims that say one of the things you can do is you can change color with LEDs.

[00:11:18] Speaker 01:
And Ducharme was brought in saying, well, that's what Ducharme does.

[00:11:22] Speaker 01:
But that's not what Ducharme does.

[00:11:23] Speaker 01:
What Ducharme does is take different spectra of light

[00:11:27] Speaker 01:
mix them in order to meet a target illumination.

[00:11:31] Speaker 01:
It uses a processor and a light sensor in order to accomplish that.

[00:11:36] Speaker 02:
So now your argument is not so much that Ducharme wouldn't have been pertinent if it did exactly what the board thought it did, but you're saying the board misunderstood Ducharme?

[00:11:49] Speaker 01:
I'm saying the board did misunderstand Ducharme.

[00:11:52] Speaker 02:
What the prior art teaches is a factual finding though, so we'd have to find that they were clearly erroneous with respect to what Ducharme taught.

[00:12:00] Speaker 01:
Well, there are two issues.

[00:12:01] Speaker 01:
One is the obviousness analysis, which I'll address in a moment, but the other is the pertinence analysis and where the board and the examiner and the patent office here

[00:12:11] Speaker 01:
do wrong is they define the problem that Ducharm was addressing, which was trying to mix different spectra of light in order to reach a target illumination in such a way that it reads on the pertinence issue of what is the problem that the inventors here are trying to address.

[00:12:31] Speaker 01:
And they say, well, Ducharm provides, they're providing LEDs that change color.

[00:12:37] Speaker 01:
Well, actually, that's not exactly the case.

[00:12:40] Speaker 01:
They're mixing

[00:12:41] Speaker 01:
LED is a different spectra in order to reach a target elimination, but they're not providing the solution to the problem or addressing the problem that the inventors here were dealing with, which was in the dependent claim, having lights that would change color according to the users, not by mixing spectra and not by the use of a processor and not by the other mechanisms.

[00:13:07] Speaker 01:
Those are the factual issues I think you're getting to, which in the obvious analysis

[00:13:11] Speaker 01:
analysis do charm, they cite to the processor and the light sensor as the mechanism by which you get to both the automatic light sensitive switch but also the change of color.

[00:13:25] Speaker 01:
But that's way beyond what the claims here are even talking about.

[00:13:32] Speaker 01:
It doesn't read on the claims at all.

[00:13:34] Speaker 01:
The claims talk about an automatic light sensitive switch.

[00:13:36] Speaker 01:
I'm switching over from pertinence into the obviousness issue.

[00:13:41] Speaker 01:
hoping to answer your question.

[00:13:44] Speaker 01:
The automatic light sensitive switch of Ducharm is, or it isn't an automatic light sensitive switch, it's a processor.

[00:13:52] Speaker 01:
It takes data from a light sensor that says, OK, here are the wavelengths of light that I'm measuring.

[00:14:03] Speaker 01:
But I'm trying to get to this other lighting condition.

[00:14:08] Speaker 01:
And so I'm going to adjust the light that I cast from my light fixture, make it brighter, make it more red, make it more blue, and then try again.

[00:14:17] Speaker 01:
And through iterations, that process, or that's how the Ducharme system reaches a target illumination.

[00:14:22] Speaker 01:
The idea being if you're making a movie one day and you have a certain lighting condition, you want to be able to come back the next day.

[00:14:28] Speaker 01:
And if the circumstances have changed, you can get the same lighting.

[00:14:32] Speaker 04:
So the processor is switching from one set of LED combinations to another.

[00:14:37] Speaker 01:
Right.

[00:14:37] Speaker 04:
But that makes it a switch, does it not?

[00:14:39] Speaker 01:
Well, it's a processor that takes data and changes.

[00:14:45] Speaker 01:
And switches.

[00:14:46] Speaker 01:
In the briefs, we have given you a definition from an electronics dictionary, which is about what a switch is, and it says it cuts something off.

[00:14:57] Speaker 01:
Shall we fight?

[00:14:58] Speaker 01:
Well, OK.

[00:14:59] Speaker 01:
Well, no, I see what you're saying.

[00:15:01] Speaker 01:
And the patent office has said this as well,

[00:15:04] Speaker 01:
the processor, sensor, and lighting fixture combination operates as a switch in the way that's claimed here.

[00:15:12] Speaker 01:
The way it's claimed here is that there is a switch between the battery and the light.

[00:15:18] Speaker 01:
That's the switch.

[00:15:20] Speaker 01:
You're well into the loop, but also... Okay, I'm sorry.

[00:15:23] Speaker 01:
Thank you for letting me know.

[00:15:32] Speaker 00:
Good morning, may it please the court.

[00:15:34] Speaker 00:
Both Dean and Ducharm are analogous to the claimed invention here.

[00:15:37] Speaker 00:
The problems faced by the inventors were not unique to illuminated curtain rods.

[00:15:43] Speaker 00:
They're electrical problems and an artisan would look to common electrical solutions like other lighting applications.

[00:15:53] Speaker 00:
The bike light in Dean would certainly logically commend itself to an inventor trying to solve the problem of providing a light without a cord.

[00:16:02] Speaker 00:
One would naturally look to lights where a cord was impracticable or undesirable, like a bike light, indeed, where you couldn't be tethered to a cord.

[00:16:14] Speaker 00:
Similarly, the LED system in DuCharm would logically commend itself to an inventor who wanted to change colors.

[00:16:23] Speaker 02:
So what's the outer boundary of pertinence?

[00:16:28] Speaker 00:
Well, I think the outer boundary of pertinence would be

[00:16:33] Speaker 00:
really looking to the logically commend itself test, right?

[00:16:37] Speaker 00:
So certainly, Your Honor's right that in KSR, and this court has said in wires to master lock that you want to, in light of KSR, interpret the scope of analogous art broadly because familiar items can have purposes beyond their primary purpose.

[00:16:53] Speaker 02:
So how broad can we go?

[00:16:55] Speaker 02:
I mean, at some point it does seem like you're getting far afield.

[00:16:59] Speaker 00:
Well, I think maybe the limit is the cases like Tennis and Circuit Check, where in Tennis, a designer of a child's toy for water balloons wouldn't even really necessarily know that balloons are used in this surgical device.

[00:17:13] Speaker 00:
You wouldn't even think that you might have something like that there.

[00:17:17] Speaker 00:
Same for Circuit Check.

[00:17:18] Speaker 00:
It's so far afield from interface boards for circuits to think about rock carvings that one wouldn't even think, oh, there might be something there.

[00:17:27] Speaker 00:
that would be helpful.

[00:17:27] Speaker 00:
So defining the exact outer boundary is difficult, but I think those cases illustrate about where the outer boundary is where even though maybe the answer might be pertinent, you would never even think that that

[00:17:42] Speaker 00:
that that type of subject matter would have something useful for you.

[00:17:45] Speaker 00:
So what's the difference with this case?

[00:17:47] Speaker 03:
I mean, I'm looking for a definition of the outer boundary, too.

[00:17:50] Speaker 03:
You started off by talking about, well, you'd look for something electrical.

[00:17:54] Speaker 03:
Is that how you would define the outer boundary?

[00:17:57] Speaker 03:
Any piece of prior art that is in the discusses anything that's electrical?

[00:18:02] Speaker 00:
I think, well, so putting it to this case, probably the outer boundary for the light without the power cord.

[00:18:13] Speaker 00:
maybe a light, a lighting, electrical, maybe electrical lighting.

[00:18:20] Speaker 00:
I think that would be the outer boundary.

[00:18:21] Speaker 04:
Maybe even household appliances and consumer goods.

[00:18:25] Speaker 04:
Is that where you were going earlier?

[00:18:28] Speaker 00:
Well, I think that would even be inner than the outer boundary.

[00:18:30] Speaker 00:
I think lighting that's much more... Do you go even farther than that?

[00:18:33] Speaker 04:
So it's something that's used in a power plant somewhere or something like that you think is sufficiently analogous?

[00:18:43] Speaker 00:
That might be too far off.

[00:18:44] Speaker 00:
It had to be something that you would think would be applicable in the household realm.

[00:18:50] Speaker 00:
So something I think we gave the example of the nuclear submarine would not be something that would be useful to solve the problem in the household realm.

[00:19:00] Speaker 00:
Would it have to absolutely be in the household realm?

[00:19:03] Speaker 00:
I don't think it would necessarily have to be in a house.

[00:19:06] Speaker 00:
Maybe a consumer good would be helpful, but an electrical item

[00:19:13] Speaker 00:
where the deals with lighting, where the invention is one that seems like it could be applicable easily to the household realm, to a consumer grilled realm, that would seem to be

[00:19:29] Speaker 00:
the outer boundary within the boundary here.

[00:19:30] Speaker 03:
There's a difference between household and consumer.

[00:19:32] Speaker 03:
Consumer in my mind is much, much broader than household.

[00:19:35] Speaker 00:
That's true.

[00:19:36] Speaker 03:
Bicycle would not come under.

[00:19:38] Speaker 03:
Is it your view that bicycle would come under the household realm?

[00:19:41] Speaker 00:
I think I meant to say consumer.

[00:19:42] Speaker 00:
I think household is within the outer boundary, but consumer, I think consumer is a bike light, and that would certainly come into the case here.

[00:19:53] Speaker 00:
In terms of where the outer boundary is,

[00:19:57] Speaker 00:
I don't know that we need to get there here because both of these references seem to be within the inner boundary.

[00:20:03] Speaker 02:
So do you view Ducharme as a consumer reference?

[00:20:09] Speaker 00:
That's probably on the borderline.

[00:20:11] Speaker 00:
Ducharme says that its lighting device, it can be used to make consumer goods more attractive.

[00:20:18] Speaker 00:
They give the examples of furniture.

[00:20:20] Speaker 00:
They give the examples of fruit and vegetables.

[00:20:22] Speaker 00:
They talk about a wide range of applications.

[00:20:25] Speaker 00:
They also talk about

[00:20:26] Speaker 00:
visual arts and talk about theater and things like that.

[00:20:30] Speaker 00:
But really, the design of a lighting component is a visual art.

[00:20:34] Speaker 00:
And the whole point of this curtain rod is to make something attractive.

[00:20:38] Speaker 00:
And you would want to, according to the inventors here, you would want to put these lighted bulbs on the end to make it more attractive.

[00:20:45] Speaker 00:
So the whole set of problems that are being discussed in DuCharm are the same type of problems and the same kind of applications

[00:20:55] Speaker 02:
What's your response to your friend on the other side when he says that the board actually misunderstood what Dusharm was teaching?

[00:21:04] Speaker 00:
Well, first of all, I think the substantial evidence supports the board's findings here, and they are factual findings.

[00:21:12] Speaker 00:
But beyond that, Dusharm is very clear that it's about changing colors of lights.

[00:21:17] Speaker 00:
It has the ability, it has extra abilities than that.

[00:21:22] Speaker 00:
It can do a lot more things than that.

[00:21:24] Speaker 00:
adjust the color of light within white light to make it a little bit, you know, have a different spectrum.

[00:21:30] Speaker 00:
But it's explicit that it, when it's talking about color lights, it refers to colored lights as not white.

[00:21:37] Speaker 00:
So there isn't really any way that the board misunderstood due charm.

[00:21:43] Speaker 00:
When it comes to the switch issue, it

[00:21:48] Speaker 00:
It is maybe a fancier switch than just a circuit, but a processor is still a switch.

[00:21:53] Speaker 00:
Just because it can do more things than a very simple circuit doesn't mean that it's not a switch.

[00:22:00] Speaker 00:
And beyond that, again, that's a factual finding that the board is entitled to substantial evidence review on.

[00:22:07] Speaker 02:
But does the processor, though, in Duchar, really control the electrical power that's supplied?

[00:22:15] Speaker 00:
Well, I think the best place to look at that is Figure 2 of Ducharm, which is on Appendix 63.

[00:22:31] Speaker 00:
And that shows power coming in to the processor and then the processor controlling the light source.

[00:22:40] Speaker 00:
And then the text of the specification as well.

[00:22:44] Speaker 00:
supports that in, for example, paragraph 32 on appendix 89, where the switch is controlling the brightness based on the power that's coming in to the switch.

[00:23:02] Speaker 02:
So we've got both the purposes and the techniques for controlling the light being different between the patent and the charm.

[00:23:13] Speaker 02:
I mean, again, we're starting to get to the outer boundaries, aren't we?

[00:23:17] Speaker 00:
Well, let's go back to even some of the narrower parts of Ducharme.

[00:23:20] Speaker 00:
If you look at the specification here, they say that one of the problems in the prior art is to change lights, you have to put on these manual filters, and then you're limited to the color of the filter.

[00:23:33] Speaker 00:
If we want to just look at exactly the problem that is stated in the prior art reference,

[00:23:38] Speaker 00:
Those are problems that the issue charm states.

[00:23:40] Speaker 00:
It criticizes, says prior art is to change colors as filters.

[00:23:44] Speaker 00:
Those are undesirable.

[00:23:45] Speaker 00:
You have to change them each time they get hot and they melt.

[00:23:48] Speaker 00:
And you can only have a color that is in the filter.

[00:23:54] Speaker 00:
So if you look even at the narrow sort of test for pertinence, art is the exact problem in the prior art reference the same as the problem that is stated in the patent.

[00:24:07] Speaker 00:
Ducharm meets that test.

[00:24:10] Speaker 00:
So even if it's a somewhat different application, to the extent that we want to use the test that this court has, I think, set as one way to meet the intervention logically commended self-test, which is the same problem and the same purpose, we have that expressly in the prior reference in Ducharm and the specification here.

[00:24:38] Speaker 00:
Well, on the obviousness case, it seems that once you get past the analogous art issue, the obviousness case is fairly fundamental.

[00:24:46] Speaker 00:
Using batteries rather than cords to power devices in this day and age would be obvious to an ordinary artisan, and that using a light-sensitive switch to adjust the brightness of lights would also be obvious in order to have greater control over the lights.

[00:25:03] Speaker 00:
Beyond that, unless the court has any more questions, we'll yield our time.

[00:25:19] Speaker 01:
Thank you.

[00:25:21] Speaker 01:
I do want to object to the patent office in this appeal here changing what the PTAB defined as the pertinence of the Ducharme reference, which was changing color.

[00:25:34] Speaker 01:
And in this appeal, they've changed that to controlling brightness, a new argument.

[00:25:43] Speaker 01:
I'm not saying that that's what's going on with Ducharme anyway.

[00:25:47] Speaker 01:
It uses LEDs, mixes the spectra, uses a constant voltage and multiple LED fixtures in order to achieve this target illumination.

[00:25:58] Speaker 01:
I don't think that you can call that sensor-processor fixture combination a switch in the way it's claimed here, which is a switch interposed between the battery and the light fixture.

[00:26:12] Speaker 01:
But I think what this case represents and why it's a good case

[00:26:17] Speaker 01:
is that it illustrates how the Patent Office tends to redefine things in terms of the solution.

[00:26:26] Speaker 01:
Or as you're, Your Honor, I think you're tending to go, which is to say, well, here are structures, here are solutions to the problem.

[00:26:34] Speaker 01:
But if you strip away the pertinence analysis and you just say, well, let's compare structures, you're getting to a 102 analysis and you're not really addressing whether the prior art is pertinent and would have logically commended.

[00:26:49] Speaker 02:
Is there a difference between with respect to a pertinence analysis when you're talking about extremely complex technology versus fairly simple technology?

[00:27:03] Speaker 01:
Well, that was the next point I wanted to address, which is where do you draw the lines?

[00:27:07] Speaker 01:
And I said, well, there are many sources of power, self-contained power, nuclear submarines, spaceships, watches.

[00:27:18] Speaker 01:
Are those pertinent art?

[00:27:20] Speaker 01:
It's a tendency, I think, of the Patent Office and this appeal here to conflate the field of the invention, the first part of the pertinence test,

[00:27:30] Speaker 01:
with the problem solved, saying, well, this is consumer products.

[00:27:33] Speaker 01:
We can just kind of say that everyone knows all that stuff, as in Circuit Check, where they said, well, it's just like keying a car.

[00:27:41] Speaker 01:
Everyone knows how to key a car, and so that makes it pertinent art.

[00:27:46] Speaker 01:
It isn't addressing the problem that the invention was seeking to solve.

[00:27:50] Speaker 01:
It's addressing this issue of, well, where do you draw the line?

[00:27:55] Speaker 01:
And here, I think the line is not even

[00:27:59] Speaker 01:
closely drawn to consumer product lighting products in the home, because they don't have the problem that the inventors were trying to confront, which were these finials that are high up and trying to get their electrical cords gone, but not let their batteries die out immediately.

[00:28:17] Speaker 03:
And your time is up.

[00:28:18] Speaker 01:
All right.

[00:28:19] Speaker 01:
Well, thank you, Your Honor.

[00:28:20] Speaker 01:
I appreciate it.

[00:28:20] Speaker 01:
Thank you.

[00:28:21] Speaker 01:
Thank you.

[00:28:21] Speaker 01:
And both sides, the cases sit there.