[00:00:08] Speaker 03:
Whatever the legal outcome, Mr. McGoggle, please thank your clients for their service.

[00:00:13] Speaker 01:
I will make certain of that.

[00:00:32] Speaker 03:
Thank you.

[00:00:37] Speaker 03:
Wilkinson?

[00:00:44] Speaker 03:
Mr. Baranowski?

[00:00:46] Speaker 03:
Yes.

[00:00:46] Speaker 03:
All right, you may proceed.

[00:00:47] Speaker 02:
Thank you.

[00:00:48] Speaker 02:
May it please the court?

[00:00:50] Speaker 02:
The primary issue on this appeal is whether there is substantial evidence that the liquid dosage dispenser of the Chilko reference is reasonably pertinent to the problem with which the present invention is involved, or in other words,

[00:01:04] Speaker 02:
whether Chilcote would have logically commended itself to Mr. Wilkinson, the inventor's attention, when he was considering his problem.

[00:01:12] Speaker 03:
Actually the sole argument is that Chilcote isn't analogous prior art.

[00:01:18] Speaker 02:
Correct, and that is actually the second prong of the analogous test.

[00:01:22] Speaker 02:
The first prong of which is whether the reference, the prior art reference, is in the same field.

[00:01:28] Speaker 02:
of the invention, but the board and the PTO has admitted on page 11 of their brief that the Chilcot reference is not in the same field.

[00:01:37] Speaker 03:
So then the second prong of whether the reference is analogous is... If we conclude that substantial evidence supports the PTAB's determination that the Chilcot is analogous prior... Do you have anything else?

[00:01:54] Speaker 02:
I know if that's the conclusion and we would put forth for, I want to put forth three reasons today why that is not the proper conclusion.

[00:02:02] Speaker 02:
The first is that the board improperly defined the inventor's problem when it characterized the inventor's problem in its decision and for that reason was concluded

[00:02:15] Speaker 02:
that the Chillcoat reference was reasonably pertinent to the problem.

[00:02:21] Speaker 03:
And that was important.

[00:02:22] Speaker 03:
Let me ask you another.

[00:02:23] Speaker 03:
These are housekeeping questions, really, about how one drafts an opinion.

[00:02:28] Speaker 03:
When you address claims 15 and 16, you incorporate your arguments as to claims 1, 14, 22, 25.

[00:02:38] Speaker 03:
So do you agree that 15 and 16 rise or fall

[00:02:42] Speaker 03:
those other claims?

[00:02:44] Speaker 02:
Yes, with the same arguments.

[00:02:45] Speaker 02:
And if ChillCode is analogous reference, then they fall.

[00:02:52] Speaker 02:
If ChillCode is not analogous reference, we would contend that the rejections cannot stand and it would be non-obvious.

[00:03:00] Speaker 02:
So the first point is that the board improperly defined the problem.

[00:03:05] Speaker 02:
The second point is when the problem becomes properly defined, the problem of the inventor face in this case is very different than the problem that the Chillcoat reference face.

[00:03:18] Speaker 02:
And the third point is that the environments with which the invention operates are very different than the environments with which the Chillcoat reference operates.

[00:03:30] Speaker 02:
And so those three points I want to expand upon.

[00:03:34] Speaker 02:
The first point is

[00:03:35] Speaker 02:
that Mr. Wilkinson was faced with the problem of providing a mattress or cushion that can support the weight of a body and prevent tissue damage to that body that addressed the disadvantage of the prior art.

[00:03:47] Speaker 02:
So the disadvantage of the prior art that he saw was that prior art systems were either powered in order to reform or used a foam within the cells that required an additional element within the cells in order to create the spring force to reform.

[00:04:02] Speaker 02:
What Mr. Wilkinson decided was to try to create

[00:04:04] Speaker 02:
a spring bias in the actual outer construct of the cell itself.

[00:04:09] Speaker 02:
And so in so doing, what he did was he created a helical structure in the outer structure of the cell itself that would create the spring bias.

[00:04:18] Speaker 02:
Now, as described in the application, Mr. Wilkinson found that the helix shape was particularly beneficial within the realm of supporting the human body, quote, in controlling the stability and deflection of the fluid cell such that the fluid cell closely maintains its alignment parallel

[00:04:34] Speaker 02:
to its vertical rotational axis during compression and reformation.

[00:04:38] Speaker 02:
And that's from the patent itself of Appendix 1392.

[00:04:42] Speaker 02:
So he was coming up with this helical solution that was particular to the problem of trying to support the load of a body.

[00:04:51] Speaker 02:
And the body in the patent was defined as a patient, a person, or an animal.

[00:04:56] Speaker 02:
So we're talking about a living, breathing, moving thing that was actually being supported by the actual fluid cell.

[00:05:05] Speaker 02:
So the board, however, when improperly in our view determining that the reference was analogous, said that the problem concerns, quote, how to provide a self-inflating fluid cell having a reforming element to cause the cell to return to its expanded configuration.

[00:05:25] Speaker 02:
So there's no mention in the problem definition by the board of actually having to support a body, a significant body weight by the cell.

[00:05:34] Speaker 02:
And in fact, Chillcoat doesn't do that.

[00:05:36] Speaker 02:
Chillcoat teaches that it just is manually compressible.

[00:05:42] Speaker 02:
It's a liquid dosage dispenser that's manually compressible by hand.

[00:05:47] Speaker 02:
And so when you compress it, the dosage comes out.

[00:05:51] Speaker 02:
It's not configured to support a load or to be operating under the high pressures that a mattress fluid cell would operate.

[00:06:02] Speaker 02:
So, in so defining the problem incorrectly, the board was able to conclude improperly, in our view, that the reference was reasonably pertinent to the problem, but they defined the wrong problem, and that was their first error.

[00:06:17] Speaker 02:
And that error was also a similar error that the court found in Inri Oideker, which was a case where the prior art reference was a garment hook

[00:06:30] Speaker 02:
for hooking garments, but the invention was related to a hooking mechanism for a hose clamp to keep the hose clamp in a preassembled state.

[00:06:42] Speaker 02:
And so the board in that case defined the problem as a hooking problem and read out the whole functionality of the hose clamp.

[00:06:49] Speaker 02:
In that case, the court reversed the board's decision and said that this was a problem related to a hose clamp.

[00:06:56] Speaker 02:
Similarly, in Henry Klein as well, the court found

[00:06:59] Speaker 02:
that the USPTO on appeal erred by misdefining the problem as a compartment separation problem, and this was the... Would you agree that whether a reference is analogous art is a question of fact?

[00:07:15] Speaker 02:
Yes, it's a substantial evidence standard, correct.

[00:07:20] Speaker 02:
Okay.

[00:07:21] Speaker 03:
Most of your brief and the cases you're discussing now

[00:07:30] Speaker 03:
don't deal with support by substantial evidence.

[00:07:34] Speaker 02:
That's not correct.

[00:07:35] Speaker 02:
Henry Oedeker, Henry Klein, I will be talking about Henry Clay as well.

[00:07:39] Speaker 02:
They all are substantial evidence standards where they wear the same procedural posture where we're appealing the board's decision.

[00:07:47] Speaker 03:
What I'm saying is you're not addressing, those cases don't address whether this is supported by substantial evidence.

[00:07:54] Speaker 03:
It's a fact question.

[00:07:57] Speaker 02:
Those cases do turn on the question of fact.

[00:08:01] Speaker 02:
And the court in those cases decided that there was no substantial evidence.

[00:08:06] Speaker 03:
So it was the same standard.

[00:08:07] Speaker 03:
Let me say this.

[00:08:09] Speaker 03:
I'll make it clear.

[00:08:11] Speaker 03:
Can you identify any aspect of the PTAB's decision that is not supported by substantial evidence?

[00:08:16] Speaker 02:
I don't think any aspect of the PTAB's decision is supported by any evidence, let alone substantial evidence.

[00:08:22] Speaker 02:
So as we said, they misdefined the problem in the first place.

[00:08:26] Speaker 02:
Now let's turn to the second point.

[00:08:28] Speaker 02:
The second point being that the problems, the actual problems, which are trying to support the load of a user or of a patient is what our actual problem was, whereas in the Chilko reference, the actual problem was to be able to dispense fluid to a recalcitrant patient.

[00:08:52] Speaker 02:
So totally different problems.

[00:08:54] Speaker 00:
Well, when you're pressing the bottle, what you need or what Chilcot is describing is some kind of arrangement that when subjected to a force will compress and when the force is lifted, will return to its position.

[00:09:16] Speaker 00:
Why does it matter whether it's a

[00:09:20] Speaker 00:
a finger-created force or a gravitation force?

[00:09:25] Speaker 02:
My third point was about the environmental conditions.

[00:09:28] Speaker 02:
For example, the case of Henry Clay found that where the prior art reference was a petroleum extraction method and the actual invention was a petroleum storage invention,

[00:09:46] Speaker 02:
The court found that the differences in pressures, the differences in temperatures were differences that the two inventions were in different environments and for different purposes.

[00:09:58] Speaker 02:
So here we have the same... The reason why it matters is because the Chillcoat reference, there's no pressure that the internal cell is having to maintain

[00:10:11] Speaker 02:
when you're pressing it, it's just expelling fluid and relieving pressure.

[00:10:15] Speaker 02:
In our case, we're operating at high pressures where, at least the pressures of actually having to support the load of the body.

[00:10:21] Speaker 02:
So the pressures are totally different and the environment is totally different for another reason being the durability of our invention versus the Chill Code reference.

[00:10:35] Speaker 02:
Chill Code is described as a one-time use or a multi-use

[00:10:40] Speaker 02:
in its description.

[00:10:44] Speaker 02:
So it's basically contemplating a disposable device.

[00:10:46] Speaker 02:
In ours, our environment is not something that you can just throw away.

[00:10:50] Speaker 02:
You're sleeping on it.

[00:10:52] Speaker 02:
You can't throw away a bed every time you get up from a night's sleep.

[00:10:55] Speaker 02:
And even when you're sleeping on it, it's having to decompress and decompress multiple times.

[00:10:59] Speaker 02:
And as we described, the Helix was particularly useful at maintaining the positional geometry during those compressions and expansions.

[00:11:08] Speaker 02:
So they're totally different environments

[00:11:10] Speaker 02:
And so the question is whether the inventor would have looked to the Chilko reference, would have looked to this reference that was so out of left field, the fact that it was not trying to solve the same problem, that it was not operating under the same environmental conditions.

[00:11:33] Speaker 02:
So that's really the inquiry on whether something's analogous.

[00:11:37] Speaker 02:
It's not whether the exact structure of the helix

[00:11:40] Speaker 02:
is shown.

[00:11:40] Speaker 02:
That's not the inquiry as shown in the case law.

[00:11:47] Speaker 02:
For example, I believe it was Oidecker where the invention was relatively simple mechanically and the court found that a simple mechanical invention can still be patentable and that the Hoosiery hook was not an analogous reference because it was trying to solve a different problem.

[00:12:09] Speaker 03:
You're in your rebuttal time.

[00:12:11] Speaker 03:
Feel free to keep using it.

[00:12:13] Speaker 02:
No, I will close.

[00:12:16] Speaker 02:
Thank you.

[00:12:16] Speaker 02:
So yes, those are my two main points.

[00:12:20] Speaker 02:
Thank you.

[00:12:25] Speaker 03:
Ms.

[00:12:25] Speaker 03:
Craven.

[00:12:26] Speaker 01:
Good morning.

[00:12:27] Speaker 01:
May it please the court?

[00:12:28] Speaker 01:
Wilkinson concedes that his particular problem that he was facing, as the board found, was to provide a self-inflating fluid cell with a reforming force or spring bias.

[00:12:39] Speaker 01:
And Wilkinson just wants the scope of that particular problem then narrowed for use in a mattress or a cushion to support a human body.

[00:12:48] Speaker 01:
And that really collapses the analogous art reasonable pertinent prong of the analogous art test into Wilkinson's field of invention of mattresses and cushions.

[00:12:59] Speaker 01:
And Chilcot, it's conceivably not in the same field of invention of mattresses and cushions, but it is reasonably pertinent to the problem

[00:13:07] Speaker 01:
of providing a self-inflating fluid cell.

[00:13:11] Speaker 01:
Chilcot contemplates that one of his objectives is to provide a single cell that has a cushioning, a built-in cushioning property, and that it would reform to its original shape after an external load is removed.

[00:13:28] Speaker 03:
And the fact that... Is there any evidence in the record that shows that a person of skill

[00:13:34] Speaker 03:
would have found it obvious to employ methods for oral administration of medications to reforming mattresses?

[00:13:42] Speaker 01:
I mean, the oral administration part is not.

[00:13:44] Speaker 01:
The board found that the Chilcot support was addressing the same problem of providing a self-inflating fluid cell.

[00:13:54] Speaker 01:
And Chilcot is a fluid cell where you're pushing it and you're administrating a liquid to a patient.

[00:14:01] Speaker 01:
fluid cell in the mattress is also a fluid cell that dispenses the liquid into the reserve of the mattress when there's a support on it.

[00:14:11] Speaker 01:
So they are both, in a sense, distinct.

[00:14:14] Speaker 03:
So you get by ethicon by saying, well, that's the particular problem.

[00:14:17] Speaker 01:
That's a particular problem.

[00:14:18] Speaker 01:
And I think because Wilkinson is conceding that providing the self-inflating fluid cell is his particular problem, just wanting the particular problem narrowed to supporting a body

[00:14:30] Speaker 01:
in a mattress or cushion, that that's essentially collapsing the reasonably pertinent test into the field of invention.

[00:14:38] Speaker 01:
And I think there's also this idea that the cell has to support the body.

[00:14:42] Speaker 01:
The claim is to a self-inflating fluid cell in a system, but a single cell doesn't support a body.

[00:14:48] Speaker 01:
Just like the trink dispenser, a single cell of it couldn't support a body.

[00:14:53] Speaker 01:
It's the idea that you would put these cells in an array, and that together they would support the support of

[00:15:00] Speaker 01:
they would support the force of a body.

[00:15:02] Speaker 01:
And because the Chilcot fluid cell is supporting an external force, and then using what the examiner said was that known engineering principle of using that helical configuration to then self-inflate, that is why Chilcot is reasonably pertinent to this particular problem, as Wilkinson has defined it for the self-inflating fluid cell.

[00:15:24] Speaker 01:
So unless there's any other questions, I'll give up most of my time.

[00:15:29] Speaker 01:
Thank you so much.

[00:15:40] Speaker 02:
So just to one point, the embodiment in the specification shows nine cells, but they do have to support a human body in a matrix.

[00:15:51] Speaker 02:
And so I don't think it sounded like she was suggesting that you could just plug the Chillcoat reference into

[00:15:58] Speaker 02:
the mattress and it would work.

[00:16:01] Speaker 02:
I submit that common sense, which some of the case law talks about with respect to this standard, would tell you that if you put the chill coat liquid dosage dispenser into a mattress, it's not going to end up being a happy night for whoever's sleeping on the mattress.

[00:16:20] Speaker 02:
Other than that, I guess I'll just leave it at that.

[00:16:27] Speaker 02:
Thank you.

[00:16:28] Speaker 03:
Matter what stands in it.