[00:00:39] Speaker 02: And Ray McChely? [00:00:41] Speaker 03: Russell. [00:00:42] Speaker 02: Russell. [00:00:43] Speaker 02: Yes. [00:00:44] Speaker 02: OK. [00:00:47] Speaker 02: And it's Mr. Scheidler? [00:00:49] Speaker 03: Yes, Mr. Scheidler. [00:00:50] Speaker 03: And may it please the court? [00:00:54] Speaker 03: I'm Glenn Scheidler. [00:00:55] Speaker 03: I represent Joseph Russelli and Randolph Lowe, the inventors of this application. [00:01:02] Speaker 03: I wanted to say it's a pleasure and honor to be here. [00:01:06] Speaker 03: You have a wonderful courtroom. [00:01:09] Speaker 03: We're going to talk today. [00:01:11] Speaker 03: What's that? [00:01:11] Speaker 03: We think so. [00:01:12] Speaker 03: Oh, it's fantastic. [00:01:13] Speaker 03: And it was a joy to be here, at least up to this point. [00:01:16] Speaker 03: We'll see what happens from here. [00:01:18] Speaker 03: But anyway, the present invention that we're talking about, it is a three-layer housewrap. [00:01:26] Speaker 03: It is a three-layer construction that has an outer drainage plane. [00:01:32] Speaker 03: It has a barrier layer. [00:01:34] Speaker 03: And it has a very specific low-density polyethylene fault. [00:01:39] Speaker 03: that's made by a process that gives it a superior insulating properties and allows it to be made very thin. [00:01:45] Speaker 03: So the claims define the entire thickness of this structure. [00:01:51] Speaker 03: And that's all set forth in the independent claims. [00:01:56] Speaker 02: What we're here about is the rejection. [00:01:58] Speaker 02: In the blue brief at 18 and 19, you argue that a person of skill reading Maynard, quote, would be directed to use the 15-layer example [00:02:08] Speaker 02: actually used in practice with the clothing shown in figures 1 to 2, rather than the extreme example of the two-layer construct. [00:02:16] Speaker 02: Now, we've said in, among other things, in-ray applied materials, a reference must be considered for everything that it teaches, not simply the described invention or preferred embodiment. [00:02:29] Speaker 02: How do you respond to that statement of law? [00:02:32] Speaker 02: And what evidence [00:02:34] Speaker 02: support your proposition that a person of skill would limit their reading of Maynard to the preferred embodiment? [00:02:41] Speaker 03: I don't want to say that we're limiting it to the preferred embodiment. [00:02:47] Speaker 03: Is it limited to a 15-layer structure? [00:02:49] Speaker 03: No, I don't think that it is. [00:02:51] Speaker 03: But one of ordinary skill in the art, reading this reference would not be... What's your evidence in the record that tells me that? [00:02:57] Speaker 03: Oh, let's go to page three of the reference, the Maynard reference, where it talks about [00:03:04] Speaker 03: buoyancy and thermal insulating properties can be readily varied simply by varying the numbers of layers of sheet material included in any particular article. [00:03:14] Speaker 03: In a multi-layer construction, not only does each individual layer contribute to the buoyancy and thermal insulation, but the buoyancy and thermal insulation of an article as a whole is improved by pockets of air trapped between the individual layers of the sheet material. [00:03:29] Speaker 03: So one of ordinary skill in the art, looking at this reference, [00:03:33] Speaker 03: would be led if you're trying to make, in this case, a house. [00:03:37] Speaker 02: What evidence supports that? [00:03:38] Speaker 02: Do you have an affidavit, for example, that interprets it? [00:03:42] Speaker 02: Or are you just giving me attorney argument? [00:03:45] Speaker 03: I'm reading that the evidence is in the references themselves. [00:03:51] Speaker 03: And in this example, there is no teaching of forming any article with the two-layer sheet material. [00:04:01] Speaker 02: Maynard says the essence [00:04:04] Speaker 02: I'm emphasizing that of the present invention is the use of foam-based sheet material ellipsis with at least one protective layer, which seems to indicate that the essence of Maynard is a two-layer material. [00:04:18] Speaker 02: How do you overcome that? [00:04:21] Speaker 03: I think that you're correct that the essence of that is using a two-layer structure. [00:04:26] Speaker 03: And it's using a two-layer structure having a foam layer and a protective backing layer. [00:04:31] Speaker 03: And when you utilize this teaching to form an insulating material, it teaches using multiple layers. [00:04:40] Speaker 03: It doesn't have to be 15, but it teaches using multiple layers so that you can adjust the insulating properties to where you want to get it. [00:04:49] Speaker 03: And I believe that there is simply no teaching in here whatsoever of forming anything [00:04:55] Speaker 03: out of the single sheet. [00:04:58] Speaker 03: It talks about how to make the sheet of the invention. [00:05:00] Speaker 03: And the sheet has either one protective layer or two protective layers on either side of it. [00:05:06] Speaker 03: And then it talks about how you use that to form some sort of structure. [00:05:11] Speaker 03: And in principle, it talks about making clothing. [00:05:14] Speaker 03: But it's certainly not limited to clothing. [00:05:16] Speaker 03: It talks about a number of other applications. [00:05:19] Speaker 03: And in these applications, you're going to be using a multi-layer structure. [00:05:24] Speaker 03: because that's what it teaches. [00:05:27] Speaker 03: The point of improving the thermal insulation is not only the foam, not only the expanded cells of the low-density polyethylene foam, but also the air trap in between the layers. [00:05:41] Speaker 03: The patent officer's position is to ignore those expressed teachings in that reference. [00:05:46] Speaker 03: But that's not the end of our arguments there. [00:05:51] Speaker 03: That's just in the primary reference. [00:05:53] Speaker 03: They also ignore the teachings of the secondary and third references as well. [00:05:58] Speaker 03: But in the rejection, they rely on this one layer to try to form a house wrap. [00:06:11] Speaker 03: There's no teaching of ever forming any structure with only using the single sheet of the Maynard reference. [00:06:18] Speaker 03: But regardless, they go to a secondary reference, [00:06:23] Speaker 03: add, replace the polyethylene foam of this reference with a polyethylene foam made according to a specific process, which the applicants had spelled out in our application. [00:06:37] Speaker 03: And that's the shin reference, the third reference that they use. [00:06:40] Speaker 03: They bring in the shin reference to say, this is how you would make polyethylene foam. [00:06:43] Speaker 03: We don't disagree with that concept, because this type of polyethylene, low-density polyethylene foam, is what's used in the present [00:06:53] Speaker 03: invention. [00:06:54] Speaker 03: That's what we're utilizing, gives you superior results. [00:06:57] Speaker 03: But when you read the primary reference for the low-density polyethylene foam, it expressly states that when you're forming material such as tents, sleeping bag, and blankets, you're going to use a thickness of up to five millimeters, which is about 196 mils, which is outside of the applicant's range. [00:07:19] Speaker 03: You again have to ignore the expressed teachings of that reference [00:07:23] Speaker 03: to create this combination. [00:07:24] Speaker 03: But that's, again, that's not where they go. [00:07:27] Speaker 03: Where we end our argument here, the two references that show the drainage plane. [00:07:36] Speaker 03: The drainage plane isn't shown in the primary reference. [00:07:39] Speaker 03: Drainage planes are certainly known in house wraps. [00:07:42] Speaker 03: And the two references that show that, the shepherd reference, I believe it is, and the lube [00:07:52] Speaker 03: I'm sorry, Lube-Kurt reference. [00:07:55] Speaker 03: Sorry about that. [00:07:55] Speaker 03: I have trouble with that one. [00:07:58] Speaker 03: In those two references, they teach a two- or three-layer drainage plane. [00:08:05] Speaker 03: And we're combining that with the admitted primary reference that has a backing layer for support and the low-density polyethylene foam. [00:08:15] Speaker 03: We have a two- or three-layer structure being combined with a two- or three-layer structure. [00:08:18] Speaker 03: You're not going to get a three-layer structure of the present claimed invention. [00:08:22] Speaker 03: 2 plus 2 doesn't equal 3. [00:08:25] Speaker 03: So in every combination that they're putting here, the patent office position is ignoring the express teachings of these references in trying to reconstruct the present claimed invention. [00:08:38] Speaker 03: The only thing guiding them are the applicant's claims. [00:08:45] Speaker 03: When we [00:08:49] Speaker 03: The problem gets worse when you get to the dependent claims. [00:08:53] Speaker 03: In the dependent claims, the thickness of our invention is 30 mils or 40 mils. [00:09:02] Speaker 03: It is several times smaller than what the secondary reference teaches should be the thickness of a foam layer when you're using it to construct sleeping bags, blankets, and similar equipment. [00:09:17] Speaker 02: At 30 to 31 in the blue brief, you challenge the PTAB's determination that TIE teaches the continuous layer of adhesive on the basis that TIE's residential foam sheathing or insulation panels are blocks and are not adhesive layers for use in a house rep. [00:09:36] Speaker 02: The PTAB declined to address that argument as a new argument not raised until rehearing. [00:09:42] Speaker 02: Show me where [00:09:43] Speaker 02: In the record, you presented that argument to the PTED before your request for re-hearing. [00:09:55] Speaker 03: I do not have a citation to the arguments. [00:09:59] Speaker 03: My arguments on the tie reference are still that one of ordinary skill in the art, looking at that reference, would not combine it in the way that [00:10:10] Speaker 03: would not combine this in a way to come up with the claimed invention. [00:10:13] Speaker 03: And in fact, when you look at the tie reference as well, it also teaches a panel structure, not a house wrap. [00:10:21] Speaker 03: The difference between a panel insulation and a house wrap is one is a flexible structure that's wrapped around. [00:10:27] Speaker 03: Other ones are sheets of blocks of insulation. [00:10:31] Speaker 03: But when you look at tie as well in that reference, when you're looking at this reference as a whole, it teaches having the insulation followed by a drainage plane [00:10:40] Speaker 03: followed by a barrier layer. [00:10:41] Speaker 03: The drainage plane is 40, and the barrier layer is on the outside. [00:10:47] Speaker 02: You're not answering my question. [00:10:49] Speaker 02: It's not helping you. [00:10:50] Speaker 03: I'm sorry. [00:10:51] Speaker 03: I do not have, I cannot cite my arguments from. [00:10:58] Speaker 02: Do you concede that the PTAB was correct, that it was a new argument? [00:11:03] Speaker 03: No, no, I'm sorry. [00:11:05] Speaker 03: I do not. [00:11:06] Speaker 03: We've been making consistently the same argument all the way through that one of ordinary scalene are looking at these references. [00:11:12] Speaker 03: There is no teaching or suggestion to combine them in the manner that has been set forth. [00:11:21] Speaker 03: Now, I may have articulated my arguments differently, but it is the same argument all the way through. [00:11:29] Speaker 03: You mean it's the same result? [00:11:32] Speaker 03: No, I mean it's the same argument. [00:11:33] Speaker 03: Okay. [00:11:36] Speaker 02: That's what you think? [00:11:37] Speaker 02: That's fine. [00:11:38] Speaker 02: You're under your rebuttal time. [00:11:39] Speaker 02: You can go on. [00:11:42] Speaker 03: I will reserve the rest for rebuttal. [00:11:44] Speaker 03: Thank you. [00:11:44] Speaker 03: Okay. [00:11:47] Speaker 01: May it please the court to address the Thai waiver issue that you just brought up. [00:12:01] Speaker 01: In the appeal brief, Appendix 349 was where the argument was made. [00:12:07] Speaker 01: And as you can see from that paragraph, the only tie, there was not an additional argument about tie. [00:12:14] Speaker 01: It just said that there's a combination of additional reference and talked about the thickness. [00:12:19] Speaker 01: It didn't make this sort of non-analogous argument. [00:12:23] Speaker 01: Hiroselli himself is admitting that this is a simple invention and that each of the claimed layers is taught by the prior art. [00:12:30] Speaker 01: The independent claims require a reinforcing grid for drainage, a barrier film, and a foam, and additionally claim the total thickness and a particular insulating value. [00:12:43] Speaker 01: Substantial evidence supports the board's rejections here. [00:12:45] Speaker 01: The board started with the Maynard reference, which teaches a very versatile reference that can be used for many different uses and teaches at least two layers of foam [00:12:59] Speaker 01: And actually, the evidence pointed to to say that Maynard teaches a 15-layer actually shows on 462 what my opponent pointed to says that you can vary the number of layers. [00:13:13] Speaker 01: So it's not a teaching that the preferred is 15. [00:13:17] Speaker 01: The teaching is that you can use as many layers as is necessary. [00:13:20] Speaker 00: What page of the record are you referring to? [00:13:23] Speaker 01: 462, the first paragraph, where [00:13:27] Speaker 01: My point to do the fact that said buoyancy and thermal insulating properties can readily be varied simply by varying the number of layers. [00:13:38] Speaker 01: And then additionally on that page in the one, two, three, fourth paragraph, it talks about the foam comprising any kind of foam material that has buoyant or thermally insulating properties. [00:13:51] Speaker 01: So it would be natural to use [00:13:54] Speaker 01: a similar low density polyethylene foam such as shin to arrive at the specific claimed R value. [00:14:01] Speaker 00: You're saying that the language at the top of page three shouldn't be read to understand that every embodiment you'd want to have tons of layers. [00:14:11] Speaker 00: It's simply that you could have any different number of layers depending on the desired insulation or buoyancy you're seeking to achieve. [00:14:20] Speaker 01: Correct, and the only layer that is talked, the only layers that are talked about as being sort of the heart of the invention, I think as Judge Wally pointed to before, was just the foam layer with the film. [00:14:32] Speaker 01: So you're starting with a smaller number of layers, so basically the reference is teaching somewhere between two and 15, but that you can easily change those number of layers. [00:14:43] Speaker 02: At least two. [00:14:43] Speaker 01: Right. [00:14:46] Speaker 01: Then the next reference, the Shepard reference, [00:14:49] Speaker 01: Also uses three layers of a house wrap. [00:14:51] Speaker 01: The Shepard reference has a drainage layer, a film layer, and a foam layer, and is being used just simply to teach that you would add a grid layer. [00:15:01] Speaker 01: And the same with the Altman and Tye references. [00:15:06] Speaker 01: The Altman teaches for the dependent claim that you would use that PTFE is desirable, and Tye teaches the use of adhesives. [00:15:15] Speaker 01: So going through all of those steps, there's [00:15:18] Speaker 01: clearly substantial evidence for the board's rejection. [00:15:21] Speaker 01: If there's no further questions, I'll yield remainder of my time. [00:15:25] Speaker 01: Don't seem to be. [00:15:25] Speaker 01: Thank you. [00:15:34] Speaker 03: Just a quick point for rebuttal. [00:15:36] Speaker 03: It seemed that we seemed to agree that the primary reference teaches at least two layers. [00:15:40] Speaker 03: But each, it's at least two sheets, and each sheet has two layers. [00:15:47] Speaker 03: each layer here, each sheet material has insulation and a backing layer. [00:15:53] Speaker 03: And in order to create that, the prior art specifically says, look, you can vary the number of sheets you have in each article. [00:16:03] Speaker 03: And so what you're talking about, if we agree that there are at least two of these sheets, then you have at a minimum a four-layer structure, which is [00:16:11] Speaker 03: Far different than and we haven't even added the We haven't even added the drainage plane. [00:16:18] Speaker 03: It's far different than the three layer structure of the president and Any questions matter will stand submitted. [00:16:27] Speaker 02: Thank you, and we're in recess. [00:16:29] Speaker 03: Thank you