[00:00:00] Speaker 03: Mr. Siviora? [00:00:01] Speaker 03: Yes, sir. [00:00:03] Speaker 03: Are you ready to proceed? [00:00:04] Speaker 03: I am, Your Honor. [00:00:04] Speaker 03: Please do. [00:00:07] Speaker 03: Thank you. [00:00:07] Speaker 03: Good morning, Your Honors. [00:00:09] Speaker 03: May it please the Court. [00:00:11] Speaker 03: As Patentee Knopf has informed the Court twice in its reply brief, in the peril of District Court proceeding involving this 670 patent, Knopf is seeking hundreds of millions of dollars in damages. [00:00:25] Speaker 03: Now, you've seen the design here. [00:00:28] Speaker 03: Piece of insulation material, a swath of it that was taken, photographed, and then a photocopy. [00:00:35] Speaker 03: PTAB board, in reviewing this, applied the wrong legal standard. [00:00:40] Speaker 03: We're here to ask you to reconsider review and reverse their determination based on the claim constructions they applied, both the second time and the third time, because they had three different claim constructions. [00:00:52] Speaker 01: Is there any SAS issue in the January 2017 IPR? [00:00:57] Speaker 01: the only instituted on seven of the nine proposed grounds. [00:01:02] Speaker 03: We hadn't briefed that issue. [00:01:03] Speaker 03: I mean, there's obviously retrospectively there would be an issue, yes, but it hadn't been at the time the decision wasn't around, so. [00:01:11] Speaker 05: You haven't asked us since that decision to send it back to the board for review on the grounds not instituted. [00:01:19] Speaker 03: We have not formally asked that, no. [00:01:23] Speaker 05: Why not? [00:01:24] Speaker 05: I mean, that decision's been out for [00:01:26] Speaker 05: at least a month, if not longer. [00:01:28] Speaker 05: We've had multiple requests from parties in other cases. [00:01:31] Speaker 05: Do you not want it sent back? [00:01:33] Speaker 03: Well, we believe on the record that it exists now, there was sufficient information for the court to reverse based on the claim construction we already had, because there were seven grounds considered. [00:01:41] Speaker 03: And based on this record, rather than go back and do this again, we feel that the record's sufficiently ample for this court to rule on this record, on the grounds that were found. [00:01:50] Speaker 02: As we sit today, you're not asking us to send it back on an SAS ground? [00:01:55] Speaker 03: No, we have not done that, Your Honor. [00:01:57] Speaker 03: But you are not. [00:01:58] Speaker 01: And we want to be clear with you. [00:02:00] Speaker 03: If the court is amenable to such an act of the request, we would make such a request. [00:02:03] Speaker 03: But we have not made one at this point. [00:02:08] Speaker 01: On page 22 of the blue brief, you make an argument that certain prior art anticipates, quote, where no verbal claim construction is needed. [00:02:19] Speaker 01: But in the very next paragraph, you state that a detailed verbal construction is needed. [00:02:27] Speaker 01: It seems like you're not contesting that the PTAP's decision to verbally construe the claims. [00:02:35] Speaker 03: We are saying that that is the appropriate way to go, but we're not sure where you're going to end up on this one. [00:02:40] Speaker 03: Either way, either no verbal construction or the verbal construction that was initially found where it says such as Brown and Cream, either of those constructions would be appropriate. [00:02:48] Speaker 03: We made both arguments in the second petition with respect to both grounds, petition number two, [00:02:57] Speaker 03: grounds one and two and grounds three and four, we argued in the first instance for the initial construction with respect to what the court had, what the board had said. [00:03:06] Speaker 03: And then with the grounds three and four, we said, no construction at all is necessary. [00:03:10] Speaker 03: Just use visual inspection, basically. [00:03:13] Speaker 03: So we made the arguments, and we want to preserve those arguments, because we think if you do look just at the construction, if you don't have a verbal construction, if you determine it's not necessary, there's sufficient evidence on this record, Professor Biden's testimony, [00:03:25] Speaker 03: and the board's findings with respect to its initial decision, in addition to the observation that one can make as an ordinary observer or as an ordinary designer, that the browning cream is present and all the other elements are present. [00:03:38] Speaker 03: So that on this record, whether you use no verbal construction or that first verbal construction or even the second verbal construction, which is including browning cream, under any of those constructions, the evidence is in the record to support a finding of anticipation and or obviousness. [00:03:56] Speaker 05: What supports the finding of those if we put this brown and cream swirl as part of the claim construction? [00:04:03] Speaker 05: In other words, their patent is limited not just to this swirl, but only swirls of this particular brown or cream, which is what I read the board is concluding. [00:04:14] Speaker 05: Is there anything that anticipates that? [00:04:16] Speaker 05: I didn't see anything in the record that looked like this. [00:04:19] Speaker 05: I saw things that were close. [00:04:21] Speaker 03: It's a question under the legal standard. [00:04:23] Speaker 03: We would say that the jam 1997, except 1004, and the jam 2000 both have the same type of swirl pattern. [00:04:34] Speaker 03: But not the color. [00:04:35] Speaker 03: Well, the board found on the fact finding that brown and cream were present. [00:04:38] Speaker 03: They said the color was there. [00:04:40] Speaker 05: Where? [00:04:41] Speaker 03: They said it in the final written decision. [00:04:44] Speaker 05: No, I don't want to see the pictures. [00:04:45] Speaker 05: These design patents are mostly about the pictures. [00:04:48] Speaker 03: Right. [00:04:49] Speaker 05: So where's a picture that has prior art that shows a brown and green slope? [00:04:55] Speaker 03: If you look at our brief, the appellant's brief at, say, page 27. [00:05:00] Speaker 05: So the patent is on the left, right? [00:05:12] Speaker 03: Patent on the left. [00:05:13] Speaker 03: That's the JM97 on the right, I believe. [00:05:16] Speaker 03: They were deemed to be virtually interchangeable, the 97. [00:05:18] Speaker 03: So if you look at the bottom right, for example, look at the right swirl going on the lowest piece of insulation there. [00:05:26] Speaker 03: You can see the swirl. [00:05:28] Speaker 03: There are findings in this record that, in fact, if you look at it. [00:05:31] Speaker 05: What did the board do with this reference that you're pointing us to? [00:05:34] Speaker 05: Did they say there's no swirl? [00:05:36] Speaker 03: What the board did was it took that language, a swirl, and it amplified it. [00:05:40] Speaker 03: It actually turned it into a much more detailed claim construction [00:05:44] Speaker 03: It added other elements, which is one of our due process elements in the final written decision. [00:05:48] Speaker 03: They added to that swirl pattern. [00:05:51] Speaker 03: They added additional aspects to it. [00:05:53] Speaker 03: They said, the claim design is embodied not in color alone, but in the interplay and contrasting nature of the distinct colors. [00:06:00] Speaker 05: And is that why they didn't find this picture to the right anticipating? [00:06:04] Speaker 03: Yes. [00:06:05] Speaker 03: They said. [00:06:06] Speaker 05: I mean, if that's the case, let's assume we don't disagree with that claim construction. [00:06:10] Speaker 05: It doesn't anticipate, does it? [00:06:12] Speaker 03: We would assume it does. [00:06:13] Speaker 05: What gets me about this? [00:06:15] Speaker 05: What's being asserted in the district court? [00:06:16] Speaker 05: What products are being infringed? [00:06:18] Speaker 05: Because if we give the board claim construction, or if we affirm it, it's a very narrow claim construction. [00:06:25] Speaker 05: It is this particular swirl pattern with this particular constellation of brown and creams. [00:06:33] Speaker 05: I mean, unless you've exactly copied this, I don't see how anything else infringes, because they [00:06:38] Speaker 05: they stuck themselves with a very narrow claim construction to get this patent held valid. [00:06:44] Speaker 05: And is it really going to matter for infringement? [00:06:48] Speaker 03: I completely agree with that, Your Honor. [00:06:49] Speaker 03: It's an extremely narrow claim construction, and that would be the outcome. [00:06:52] Speaker 03: But when you look at, the question is, how do you apply that to millions and millions of pounds of insulation? [00:06:57] Speaker 03: Can you find some subsection? [00:06:59] Speaker 03: We think it's an impossible task, but it's going to take a year or two to go through that process, which is why we filed these IPRs, because [00:07:07] Speaker 03: That construction, it's supposed to be the broadest reasonable construction here. [00:07:10] Speaker 03: It's a different standard in the district court. [00:07:12] Speaker 03: The broadest reasonable construction here is not to add these additional limitations. [00:07:16] Speaker 03: In the file wrapper, in the prosecution, and between the parties, there was no dispute that insulation material, cloud-like appearance, et cetera, the variation of swirl pattern, these general terms were appropriate descriptions and part of a claim construction. [00:07:33] Speaker 03: And then in the final written decision, after we had briefed everything and argued everything in both IPRs under that type of analysis. [00:07:40] Speaker 05: I don't understand it. [00:07:41] Speaker 05: I mean, broadest reasonable construction in these design patents seems to be something different than in the utility patents. [00:07:47] Speaker 05: Because even if we throw out their claim construction, if we have this picture, which is sometimes we don't have a claim construction at all, that picture of their patent doesn't look like what you have on the right. [00:07:59] Speaker 05: So I don't see what, even without a claim construction, why the stuff on the right would anticipate. [00:08:04] Speaker 05: Unless you get a claim construction that says what matters is only the brown and cream and not the swirl, or the swirl doesn't have to be this specific pattern, it just has to be a swirl. [00:08:14] Speaker 05: If we're looking at design patents and saying one looks like the other or doesn't, those two things don't look like each other. [00:08:20] Speaker 03: Well, with respect to that design on 27, or I think you might be looking at the reply brief on 3, which is the darker brown, we would submit that the proper construction should be verbal, [00:08:29] Speaker 03: I think you're in the blue brief, but there's a similar comparison to the darker version of it in the reply. [00:08:36] Speaker 03: Either way, a verbal construction would be appropriate here for the reason stated. [00:08:41] Speaker 05: It's not the verbal construction the board gave. [00:08:43] Speaker 03: Well, the verbal construction up to the point of the last round where the board changed its position and gave us a different one. [00:08:50] Speaker 03: At a minimum, there ought to be a remand for a slightly more accurate description. [00:08:53] Speaker 03: Well, accurate is not fair. [00:08:55] Speaker 03: I mean, it's supposed to be the broadest reasonable construction. [00:08:57] Speaker 03: Adding additional elements, like saying distinct contrasts or aggregation of brown and cream relatively, these were not issues that were argued initially. [00:09:06] Speaker 02: What element was added in the final claim instruction? [00:09:10] Speaker 02: I'd say at least two. [00:09:11] Speaker 02: That it included brown and cream, rather than such as brown and cream. [00:09:15] Speaker 03: That was the second construction. [00:09:16] Speaker 03: And the third construction, which was the final written decision, if you look at the record on appendix 1002, [00:09:23] Speaker 03: What they said was, we do not see the same distinct contrast between the colors and use as the proper claim construction requires. [00:09:33] Speaker 03: So now they're talking about, for the variation of swirl patterns, they're saying it has to have a distinct contrast between colors and use. [00:09:40] Speaker 03: That was number one. [00:09:42] Speaker 03: Then later they talk about relative area and the aggregate of brown and color in the claimed area appears roughly equal. [00:09:48] Speaker 03: They're looking to compare aggregates. [00:09:50] Speaker 03: The ordinary observer, [00:09:52] Speaker 03: who's familiar with the prior art, would not dig down at that level of detail to say, oh, I need to see how much the aggregate of brown versus cream is. [00:09:59] Speaker 03: Their own experts have said that brown is not a color that people are going to spend a lot of time looking at. [00:10:03] Speaker 03: This is ordinary building insulation. [00:10:05] Speaker 03: It's a commodity. [00:10:06] Speaker 03: And the level of detail that was added in the final written decision that we did not have a chance to address previous to that changed the nature of the analysis. [00:10:15] Speaker 03: And that was the basis for the decision. [00:10:17] Speaker 05: I don't understand why it would help you if we send it back because your picture still doesn't look like their picture. [00:10:23] Speaker 05: I know this sounds stupid, but this is what design patents are. [00:10:26] Speaker 05: They've added more detail to the claim construction and if we think that claim construction is the correct one and we send it back because you didn't have the opportunity to respond to it, they're just going to hold up this picture and say they don't look like each other. [00:10:43] Speaker 03: Well, we would submit that under the proper construction, when you read the file wrap, where the distinction was made between a variation of distinctive. [00:10:49] Speaker 05: Well, let's just assume we agree that the last claim construction that you're quibbling with is correct. [00:10:55] Speaker 05: Is there any reason to send it back for an anticipation analysis? [00:10:59] Speaker 05: None of the references you pointed me to anticipate under that third claim construction. [00:11:03] Speaker 05: Do they? [00:11:04] Speaker 03: Well, I think we certainly can make an argument they do. [00:11:06] Speaker 03: We did have an opportunity to address that. [00:11:09] Speaker 03: The board itself. [00:11:10] Speaker 05: Not the one you're showing me on page 27. [00:11:15] Speaker 03: Your view is that it does not appear. [00:11:16] Speaker 03: I think the ordinary observer looking at it in the context of the prior art, where you know that all these... I don't know. [00:11:21] Speaker 03: We're pretty ordinary. [00:11:23] Speaker 03: Well, I would say you're not ordinary. [00:11:25] Speaker 03: It looks like I'm into my time. [00:11:26] Speaker 03: I would say this, Your Honor. [00:11:28] Speaker 03: The issue is this. [00:11:29] Speaker 03: The perspective of the ordinary observer does not go to that level of detail. [00:11:33] Speaker 03: They would look at it to say, is it brown and white, brown and cream insulation? [00:11:36] Speaker 03: Does it have a swirl pattern? [00:11:37] Speaker 05: But that's asking us to overturn the claim construction. [00:11:40] Speaker 05: Yes. [00:11:40] Speaker 05: If we're not overturning the claim construction, which is what I ask you, if we agree that the board's more detailed claim construction, what you call the third one, is correct, or at least not reversible, then what anticipates in this record? [00:11:53] Speaker 03: the JM references. [00:11:55] Speaker 03: We would put in testimony for an expert to support that. [00:11:57] Speaker 01: I have to agree with Judge Hughes that in any case, it appears to me that the board has written your opponent out of district court as far as any actual claim they make of infringement. [00:12:16] Speaker 05: I mean, are they asserting it against the picture on the right of your product? [00:12:21] Speaker 05: Because if they are, you certainly don't infringe. [00:12:24] Speaker 05: I mean, you can infringe if you don't anticipate, can you? [00:12:27] Speaker 03: No. [00:12:27] Speaker 03: We would agree with that, Your Honor. [00:12:28] Speaker 03: But it's leaving it to the district court and the court proceeding and a jury to sort this out, whereas in this context, the claim construction is simply wrong. [00:12:35] Speaker 03: Well, you'll have this transcript. [00:12:37] Speaker 03: May I pardon? [00:12:37] Speaker 03: You'll have this transcript. [00:12:38] Speaker 03: We will have this transcript. [00:12:40] Speaker 03: I'd like to reserve a little bit of time. [00:12:42] Speaker 03: Thank you, Your Honor. [00:12:52] Speaker 01: Do you agree there's no SAS issue to be raised? [00:12:54] Speaker 00: Yes, Your Honor, we agree, particularly that the appellants have not raised or asked this Court to address any SAS issue and therefore it does not need to be addressed. [00:13:06] Speaker 05: Are you asserting this patent against the product on the right of page 27 of the blue-green? [00:13:11] Speaker 00: No, Your Honor, we are not. [00:13:14] Speaker 00: To Kanoff's knowledge, that's not a product we're aware of having ever been sold by the [00:13:21] Speaker 00: the appellant in this case. [00:13:22] Speaker 05: Are you asserting it against products that aren't brown and cream? [00:13:26] Speaker 00: No, Your Honor, we are not. [00:13:28] Speaker 05: How many products are brown and cream with this particular swirl from your competitors? [00:13:34] Speaker 00: Quite a few products nowadays, Your Honor. [00:13:36] Speaker 00: After Knopf came out with this design, it was pretty widely adopted by several competitors, including JM. [00:13:44] Speaker 00: To introduce myself, may I? [00:13:46] Speaker 05: Well, if it was adopted, then why didn't they give us that? [00:13:49] Speaker 05: I mean, why isn't that in the record? [00:13:51] Speaker 05: Is that not in the record about them having that particular pattern? [00:13:56] Speaker 05: I guess it post-states yours that they don't want to show that they're infringing. [00:14:01] Speaker 00: That's correct, Your Honor. [00:14:02] Speaker 00: And there is in the record, if Your Honor would like to view it at the appendix, that 4182 is the complaint in the district court. [00:14:09] Speaker 00: And I believe that as part of the appendix as well, it had several exhibits to it that show some of the infringing products in this case. [00:14:16] Speaker 00: The complaint starts at appendix 4182 and goes on for several pages and then has some appendices at the end of it. [00:14:30] Speaker 00: Yes, thank you, Your Honor. [00:14:35] Speaker 00: What Knauf would like to point out to the court today, Your Honor, is that the primary issue in this case that we think really affects all of the issues... Tell you what, Counsel, tell us where it is. [00:14:44] Speaker 01: There's an awful lot of [00:14:46] Speaker 05: I'd say there's a patent right after 4102. [00:14:48] Speaker 01: Yeah, and they appear to be in black and white, so I don't know what good that's going to do. [00:15:10] Speaker 00: Yes, Your Honor, it does appear that the exhibits here in the appendix were printed in black and white. [00:15:16] Speaker 00: So the comparison may be not very probative at this time. [00:15:21] Speaker 00: What I might point your honor to though is Appendix 4246 as an example of one of the infringing products you can see. [00:15:28] Speaker 05: It has a swirl. [00:15:29] Speaker 05: We don't know if it's brown and cream. [00:15:31] Speaker 00: Correct your honor. [00:15:32] Speaker 00: I will represent to the court it is brown and cream. [00:15:34] Speaker 05: If it's green and cream it doesn't in French, right? [00:15:36] Speaker 00: We would agree your honor. [00:15:37] Speaker 05: It has to be and it can't be [00:15:39] Speaker 05: I mean, you've confined it to this picture with some pretty narrowing claim construction at the board, so it has to be pretty close to this brown and cream, doesn't it? [00:15:50] Speaker 05: It can't be brown and white. [00:15:52] Speaker 00: Yes, Your Honor. [00:15:53] Speaker 00: And that actually leads very well into the point I was getting ready to make, which is Knopf. [00:15:56] Speaker 01: Well, I just want to add that looking at these things, none of them look like the cloud-like swirls. [00:16:03] Speaker 01: Even in black and white, I don't see anything that looks like the cloud-like swirls described by [00:16:10] Speaker 01: They're more uniform. [00:16:12] Speaker 00: Well, Your Honor, I do believe that comparison is hard to make without the benefit of the color shown in those exhibits, but ultimately, Your Honor, that is a fact question. [00:16:22] Speaker 00: It's one that the Board decided in our favor in terms of the validity issue here about several issues of anticipation were addressed during my opponent's argument. [00:16:31] Speaker 00: Those are factual questions that the Board answered here in Knopf's favor. [00:16:34] Speaker 00: And ultimately, those will be factual questions that a jury and the district court will need to answer about whether or not, on the infringement side, that JM's products are substantially the same under the infringement standard. [00:16:46] Speaker 05: Sure, but you've nailed yourself down to a very narrow claim construction. [00:16:49] Speaker 05: So uniform swirls aren't going to cut it because there are uniform swirls in the prior art. [00:16:57] Speaker 05: This is ununiform. [00:16:58] Speaker 00: Yes, Your Honor. [00:16:59] Speaker 00: Knopf accepts that the claim, as is Blackletter Design Patent Law, the claim is the photograph itself. [00:17:05] Speaker 00: We've advocated that throughout the proceeding. [00:17:07] Speaker 00: That's what the board adopted, and we agree with that. [00:17:10] Speaker 00: The board felt it helpful to verbalize that claim, and we agree with the verbalization that the board ultimately came up with. [00:17:16] Speaker 00: If we're analyzing what the elements of that claim design are, [00:17:20] Speaker 00: it's complicated to describe as the board recognized and we think that at a minimum the board's explanation of that are the appropriate elements in a verbalization of that plan your honor's what you're going to do many design patent case law in which color photographs are used to narrow construction did just the colors depicting you know i can't think of a case off-hand that had a color photograph but i think it's very common in the signed law that the [00:17:51] Speaker 00: claim it is always limited to the drawing itself. [00:17:54] Speaker 00: I mean, prime example. [00:17:56] Speaker 01: That wasn't my question. [00:17:57] Speaker 00: Yes, your honor. [00:17:58] Speaker 00: So you don't have anything. [00:17:59] Speaker 00: I don't have a specific example with a color photograph, no, your honor. [00:18:03] Speaker 05: So if we had a different colored swirl picture that's a prior art that's pretty close to this, but it just wasn't brown or cream, why wouldn't it just be obvious to use different colors? [00:18:16] Speaker 00: Yes, your honor. [00:18:16] Speaker 00: So the board did not find that reference to be present anywhere. [00:18:19] Speaker 00: But to answer your hypothetical, [00:18:21] Speaker 00: That's something that Knopf did address with its evidence. [00:18:24] Speaker 00: None of the grounds were found to meet that, but we presented evidence before the board about why that would have been non-obvious, about why there would have been no motivation, first of all, to do that. [00:18:35] Speaker 00: We presented expert testimony regarding why Brown was not seen as a [00:18:41] Speaker 00: a desirable color at the time of the invention here. [00:18:44] Speaker 00: It has since become much more popular with the ecological movement. [00:18:48] Speaker 00: Brown and green are now seen as positive colors whereas at the time they weren't. [00:18:53] Speaker 00: That's one reason and as well as just the art teaching away from that with the fact that in the prior art most companies dyed their insulation to be bright colors. [00:19:02] Speaker 00: Very common knowledge would be Owens Corning that dyes their insulation pink. [00:19:06] Speaker 00: That was kind of the standard in the art and so using this natural brown [00:19:12] Speaker 00: a swirled pattern was contrary to that wisdom. [00:19:20] Speaker 00: Ultimately, Your Honors, what we believe JM is seeking to do, what they sought to do in the IPR in here is to ask the board and now this court to go with a verbal claim construction that gets away from the photo. [00:19:38] Speaker 00: They want to go with a very basic list of elements that's very broad. [00:19:42] Speaker 00: And that ignores, that asks the board and now the court to ignore the photograph and then just look at this sterile list of elements. [00:19:50] Speaker 00: But that's inappropriate in this context, particularly with the complex photograph that we have here. [00:19:54] Speaker 00: And that's why the board's verbalization was appropriate to reference the colors in the photograph and use that as the touchstone. [00:20:02] Speaker 00: Because as this court explained in Egyptian Goddess, ultimately the photograph is always the touchstone of what the claim is, even if that claim is verbalized. [00:20:11] Speaker 00: And so the board appropriately applied that verbalization in this case. [00:20:18] Speaker 00: Going with JM's approach of taking the color out of the claim and particularly getting away from the colored photograph can result in absurd things. [00:20:26] Speaker 00: Some of the grounds that they put forward in terms of the pink insulation supposedly anticipating. [00:20:32] Speaker 00: When asked about that, their expert agreed that the claim construction he advanced and JM advanced would have covered [00:20:39] Speaker 00: piece of insulation that was green with red polka dots. [00:20:42] Speaker 00: Although he then admitted after that that was something he wouldn't have cared to have any of his peers review in a journal article. [00:20:49] Speaker 00: Well, that wouldn't meet the swirling and cloud-like limitations either. [00:20:54] Speaker 00: Well, that's correct, Your Honor, because in JM's view, again, they want to get away from the photograph, what's shown. [00:21:00] Speaker 00: And so when they list the claim elements of cloud-like appearance and swirl pattern, [00:21:04] Speaker 00: Knopf's view is those are the swirls shown in the photograph, but in JM's view, they say once you enunciate those, all insulation meets that based on the prosecution history, a statement that the examiner made in the prosecution history that certain prior references had that. [00:21:19] Speaker 00: And so in their expert's view and in JM's view, once you have insulation material, you automatically have everything except the specific colors. [00:21:26] Speaker 00: But that's not what Knopf argued, and that's not what Knopf argued against that and the board found against that, [00:21:32] Speaker 00: Those are specific elements that you have to tie to the photograph, and you have to look at the prior references individually to see if they're present and if they were distinguished. [00:21:40] Speaker 05: Can you agree that for infringement purposes, you're going to have to show all of the specific elements that you propose as part of the claim construction here too? [00:21:50] Speaker 05: Yes, correct, Your Honor. [00:21:51] Speaker 05: Are you going to go into district court now and say, oh, you don't need a claim construction. [00:21:55] Speaker 05: Let's just put up the pictures and say they're the same? [00:21:58] Speaker 00: No, Your Honor. [00:21:58] Speaker 05: I think that the, again, our- Have an expert argue, well, [00:22:02] Speaker 05: There's, they have swirls, they may not be cloud-like, but they're still swirls. [00:22:08] Speaker 05: Well, that's what worries me because I think that you're, I don't want you to... [00:22:16] Speaker 05: try to argue two different things. [00:22:18] Speaker 05: I mean, if you have bound yourself to these specific claim constructions in order to avoid invalidity finding, then you shouldn't be able to go into district court and say, we don't need verbal claim construction anymore. [00:22:30] Speaker 05: Just show up pictured. [00:22:32] Speaker 01: You agree that JM and anyone else is going to be able to say that you bound yourself to that position in the court of appeals. [00:22:39] Speaker 01: Am I not correct? [00:22:41] Speaker 00: Yes, Your Honor. [00:22:42] Speaker 00: This is the claim construction. [00:22:43] Speaker 00: This verbalization of the claim is, in our view, an appropriate way to describe what's shown in that picture. [00:22:48] Speaker 00: It's consonant. [00:22:49] Speaker 00: And you are bound by it. [00:22:50] Speaker 00: And we are bound by it, particularly when this Court affirms the Board's decision that that's the appropriate claim construction. [00:22:58] Speaker 00: Your Honor, I'd like to move over for a moment to our cross-appeal regarding the estoppel issue in the second IPR. [00:23:05] Speaker 00: And this particular, as the Court can see, [00:23:10] Speaker 00: From the timeline we presented at page 11 of our opening brief, there's two IPRs that happened here. [00:23:15] Speaker 00: And this is come up with in many of these issues. [00:23:20] Speaker 00: In the second IPR, JM advanced several grounds that were based on some of the same references from the first IPR, plus two references it alleged were new or it had recently found. [00:23:31] Speaker 00: But those two references were JM's own brochures, the brown brochure that you were looking at earlier, Your Honor. [00:23:38] Speaker 00: If we affirm that [00:23:39] Speaker 00: the board, do you care about the estoppel issue? [00:23:42] Speaker 00: No, your honor. [00:23:42] Speaker 00: If this court affirms on the merits, then we would agree that the estoppel issue is a moot point. [00:23:49] Speaker 00: But if the board does reach the estoppel issue, I'd just like to make one or two points, and that's that the error we believe from the board here was ignoring standard agency law that JM [00:24:03] Speaker 00: did in fact possess and have knowledge of these brochures all along. [00:24:07] Speaker 00: It agrees that they were in the possession of its employee. [00:24:10] Speaker 00: And that employee had those possessions, particularly this is Mr. Moda, acting within the scope of his employment. [00:24:16] Speaker 00: He testified that he saved them so he could discuss them with customers, and he was expected to do so by those at JM. [00:24:23] Speaker 00: This is on his testimony on cross-examination at appendix 3966. [00:24:27] Speaker 00: The board, however, ignored [00:24:31] Speaker 00: and refused to apply standard agency law in this case to find that JM had knowledge of those due to the knowledge of its agent, Mr. Moda. [00:24:42] Speaker 00: And we believe that was legal under Interim Committee Statute. [00:24:44] Speaker 00: The statute just says, 315 says, what could JM reasonably have raised in this proceeding? [00:24:50] Speaker 00: But the board instead myopically just focused on [00:24:53] Speaker 00: What could a hypothetical third-party searcher have found? [00:24:57] Speaker 00: Well, that's not the case here. [00:24:58] Speaker 00: This isn't a case where JM had to go off and find these references. [00:25:00] Speaker 00: They were in JM's possession, and their employee had them and knew about them. [00:25:04] Speaker 02: But there were lots of employees and lots of documents, and this particular individual was working in a different division. [00:25:14] Speaker 00: Is that right? [00:25:15] Speaker 00: We would actually disagree with that, Your Honor. [00:25:17] Speaker 00: That's something we pointed out. [00:25:18] Speaker 01: This whole division... Oh, it's a compound question with what do you disagree with. [00:25:22] Speaker 00: I'm sorry, I focused on the last part of the question about different divisions. [00:25:26] Speaker 00: Mr. Moda worked in the OEM division, as my understanding, and that is there were products involved in the lawsuit in that division. [00:25:35] Speaker 00: But the key point, though, is what Mr. Moda's job was and his job responsibilities relative to these brochures. [00:25:41] Speaker 01: You're in your reserved time, just so... Okay, thank you, Your Honor. [00:25:45] Speaker 00: Is there another part of your question, Judge, that I can answer? [00:25:49] Speaker 00: That's why I'm not sure if there's a part I hadn't answered yet. [00:25:53] Speaker 02: Well, again, the question was why you're, in effect, imputing knowledge of every employee to the parties that put together the IPR. [00:26:07] Speaker 02: And I'm not sure that's an accurate or legally proper standard. [00:26:14] Speaker 00: I see. [00:26:15] Speaker 00: Thank you for the clarification. [00:26:17] Speaker 00: I would agree that that's not an appropriate standard, but that's not what we're asking for here. [00:26:22] Speaker 00: We're not asking for the knowledge of every employee to be imputed, just the knowledge of employees who are acting within their authority and the scope of their employment. [00:26:30] Speaker 00: The things that they know about as because of their job responsibilities, those are imputed under just normal agency law that applies across the board, patent law and otherwise, to corporations. [00:26:41] Speaker 00: And that in this case, those requirements are met for Mr. Moda. [00:26:45] Speaker 00: with regard to these brochures, and so JM had knowledge of them at the time and should be a stopped. [00:26:50] Speaker 00: With that, Your Honor, I'll save the remainder of my time. [00:26:52] Speaker 00: Thank you. [00:27:07] Speaker 03: I'd like to, if I could, turn to the 103 issue, which, judges, you raised. [00:27:11] Speaker 03: Even if you disagree with our position, [00:27:14] Speaker 03: on 102 with respect to the overall appearance. [00:27:18] Speaker 03: This board already found under 103 in the final written decision in the first IPR that the sound proofing reference, which is 1008 in the second IPR and 1007 in the first IPR, possessed the attributes of the variation of a swirl pattern and a cloud-like appearance. [00:27:36] Speaker 03: At appendix 40, the board found in a final written decision using its claim construction that [00:27:44] Speaker 03: The soundproofing insulation material appears, like the claim design, to reasonably have a cloud-like appearance. [00:27:50] Speaker 04: Wait, where's the picture for that? [00:27:52] Speaker 04: I thought you said 1008, but I don't have a 1008. [00:27:56] Speaker 03: The picture for soundproofing would be in our opening brief at 51 to 52. [00:28:06] Speaker 03: And there were three photographs for soundproofing that were all called together collectively soundproofing that appear there. [00:28:12] Speaker 03: They were submitted in the initial IPR. [00:28:15] Speaker 03: They were found to be a Rosen reference. [00:28:18] Speaker 03: Let me just clarify. [00:28:19] Speaker 05: The ones on the left, are those the patent? [00:28:22] Speaker 03: Patent is, yeah. [00:28:22] Speaker 03: 670 is the action. [00:28:24] Speaker 03: That's the patent. [00:28:25] Speaker 03: And the ones where you see kind of the pinkish color and the man there with the drill, that's the soundproofing reference. [00:28:33] Speaker 03: These are reduced size. [00:28:34] Speaker 03: But they're not brown. [00:28:35] Speaker 03: The point is, as a Rosen reference, to combine with the Johns Manville 1997 and 2000 [00:28:42] Speaker 04: Which is the ones we were talking about on your opening on page 27? [00:28:47] Speaker 03: The missing element found in the first written decision with respect to this issue was there was no brown and cream. [00:28:55] Speaker 03: You haven't shown us brown and cream. [00:28:58] Speaker 03: And so in the second IPR, we put in this reference. [00:29:01] Speaker 03: It ended up being a different exhibit number, 1008. [00:29:03] Speaker 03: And we said this reference in connection with the JM brochures gives you the variation swirl pattern and the cloud-like appearance [00:29:11] Speaker 03: What you found in soundproofing already as a primary, as a Rosen reference, you already made those findings. [00:29:16] Speaker 03: And now you have Brown and Cream. [00:29:17] Speaker 03: We would submit that at least there should be remand, or there really should be reversal based on that. [00:29:22] Speaker 03: They've already made the findings in this record that they have a design that has a variation in swirl pattern, it's insulation material, and it's got a cloud-like appearance. [00:29:33] Speaker 03: And they made the finding as well that Brown and Cream is present in the GM2000. [00:29:36] Speaker 03: Put it up, counsel. [00:29:37] Speaker 03: You're out of time. [00:29:38] Speaker 01: Thank you, Ron. [00:29:41] Speaker 01: Yes, Your Honor. [00:29:45] Speaker 00: Your Honor, if I may, I'd just like to briefly make an objection to my opposing counsel's argument there on rebuttal. [00:29:53] Speaker 00: You may not. [00:29:54] Speaker 00: Thank you, Your Honor. [00:29:58] Speaker 00: With regard to the... He didn't mention your crossfield. [00:30:02] Speaker 00: That's true, he did not, Your Honor. [00:30:03] Speaker 00: There's nothing to respond to. [00:30:07] Speaker 00: May I just say, Your Honor, that if the court will entertain for just a moment, that the estoppel applies under 315 to both grounds that were raised or reasonably could have raised, grounds that weren't actually raised, including any of these combinations like my opposing counsel just came up here and advanced in his rebuttal that were not raised below. [00:30:27] Speaker 00: And the estoppel, though, however, applies to those just as well as it does the grounds that they raised. [00:30:31] Speaker 01: Thank you, Counsel. [00:30:32] Speaker 00: Thank you, Your Honor. [00:30:34] Speaker 01: The matter will stand submitted. [00:30:36] Speaker 00: Thank you.