[00:00:33] Speaker 02:
Thanks well now to your argument in the second appeal of the day.

[00:00:38] Speaker 02:
This is appeal number 17-1873, Polaris Industries, Incorporated versus Arctic Cat, Incorporated.

[00:00:47] Speaker 02:
Mr. Vandenberg, whenever you're ready.

[00:00:49] Speaker 04:
Thank you, Your Honors.

[00:00:52] Speaker 04:
Judge Rury, may it please the Court.

[00:00:56] Speaker 04:
This is one of the unusual cases where the claims of a patent were found obvious

[00:01:03] Speaker 04:
even though they recite a limitation shown nowhere in the prior art.

[00:01:10] Speaker 04:
This is the case of Polaris' 719 patent recites a vehicle, and it includes various drive and suspension components.

[00:01:19] Speaker 04:
And then it concludes with a limitation reciting a sway bar that is attached to the suspension, and then it's also attached to the frame at a location that's forward

[00:01:32] Speaker 04:
of the engine.

[00:01:34] Speaker 04:
Now, during the original prosecution, the claims were allowed over the prior art then before the examiner because of that limitation, because it wasn't shown anywhere in the prior art.

[00:01:45] Speaker 04:
Was Don Garthier in the original prosecution?

[00:01:48] Speaker 04:
It was not, but as we pointed out in our brief, there was another reference that showed essentially the same thing that they're relying on in this case for Don Garthier.

[00:01:59] Speaker 04:
The important thing is Dungathe doesn't show the missing limitation either.

[00:02:03] Speaker 04:
Obviously, Arctic and its expert had a strong motivation to try to fill that gap and find the missing limitation, and they still didn't conform with anything.

[00:02:13] Speaker 04:
So here we are on appeal with arguing about obviousness of a limitation shown nowhere in the priority.

[00:02:21] Speaker 02:
What if hypothetically there's a primary reference that teaches every single limitation of the claims except

[00:02:30] Speaker 02:
the sway bar and where the sway bar is located.

[00:02:37] Speaker 02:
But there is a motivation to have a sway bar inserted into that primary reference.

[00:02:45] Speaker 02:
And let's say there's only two locations where you would put that sway bar.

[00:02:53] Speaker 02:
Would it be obvious to attach that sway bar in either of those positions?

[00:03:00] Speaker 04:
Well, this is a situation that really courts have never addressed because we talk a lot about the limited number of options, but it's always in the context of a non-missing limitation case.

[00:03:12] Speaker 04:
In this case where you say, yeah, we're assuming it's a missing limitation.

[00:03:18] Speaker 02:
Right.

[00:03:18] Speaker 02:
I'm basically taking away from you the idea that it wouldn't be obvious or one wouldn't be motivated to add a sway bar to the primary reference.

[00:03:30] Speaker 02:
Okay, so that's in.

[00:03:32] Speaker 02:
Now we have to figure out where would one of our nearest skill in the yard attach it and locate it.

[00:03:39] Speaker 02:
And now I'm asking you what if in my hypothetical there are really only two places to put it?

[00:03:47] Speaker 02:
Why wouldn't it be that either of those two locations would be an obvious choice?

[00:03:53] Speaker 04:
Because at that point we are

[00:03:57] Speaker 04:
using our knowledge of the invention to conclude that there are only two possible places.

[00:04:03] Speaker 04:
The fact that that one isn't shown indicates that people aren't even thinking in that mindset of there's only a limited number of places.

[00:04:12] Speaker 04:
But the other thing about that, Your Honor, is that that is not our fact situation.

[00:04:17] Speaker 02:
You're pushing back on the hypothetical a little bit.

[00:04:19] Speaker 02:
Well, I was going to start pushing.

[00:04:20] Speaker 02:
The hypothetical was there are only two places.

[00:04:24] Speaker 02:
And so if there are only two places,

[00:04:27] Speaker 02:
then the question would be, wouldn't either of those two places be an obvious place to put the sway bar?

[00:04:34] Speaker 02:
In that hypothetical.

[00:04:35] Speaker 04:
Right.

[00:04:36] Speaker 04:
In that hypothetical, and I feel like I need to say incomplete hypothetical.

[00:04:39] Speaker 04:
I need more facts.

[00:04:41] Speaker 04:
But I think in that situation, if you didn't use hindsight to get to that point, then I think you'd have a pretty strong obviousness case.

[00:04:50] Speaker 04:
But our point is that you don't even get to the point of asking that sort of a question.

[00:04:55] Speaker 04:
without using hindsight.

[00:04:58] Speaker 01:
I didn't see any evidence in the record because we're not looking at secondary considerations.

[00:05:06] Speaker 01:
Is there evidence that it really was unexpected to put the sway bar in front of the engine?

[00:05:12] Speaker 04:
There was evidence, of course, of commercial success.

[00:05:15] Speaker 04:
We have not appealed on that issue.

[00:05:18] Speaker 04:
went against us, but we have really based on our appeal on the fact that they don't have prior art showing that location.

[00:05:27] Speaker 04:
There's lots of prior art.

[00:05:29] Speaker 04:
Many, many examples of sway bars in the record.

[00:05:32] Speaker 04:
Dozens in the record, probably hundreds that aren't in the record.

[00:05:36] Speaker 04:
None of them show this limitation.

[00:05:38] Speaker 04:
The fact that there's all these references showing sway bars in other locations supports our point that

[00:05:47] Speaker 04:
They were, first of all, picking and choosing just to get to Don Gathier, which still doesn't show the limitation, but that's one level of hindsight.

[00:05:57] Speaker 04:
And then even when they get to Don Gathier, they need to do more picking and choosing.

[00:06:02] Speaker 04:
Don Gathier has five embodiments.

[00:06:05] Speaker 04:
Two of them aren't even attached to the frame.

[00:06:07] Speaker 04:
And just so we all remember, the claims don't just require

[00:06:11] Speaker 04:
a location of the sway bar.

[00:06:13] Speaker 04:
They require a location of attachment of the sway bar.

[00:06:17] Speaker 02:
That's the dependent claims two, four, and six.

[00:06:19] Speaker 04:
No, I'm sorry, Your Honor.

[00:06:20] Speaker 04:
The independent claim one requires that you be coupled to the frame at a location forward of the engine.

[00:06:27] Speaker 04:
So it's not just, yeah, it's attachment, not just location.

[00:06:31] Speaker 04:
That's important because in two of Don Gauthier's embodiments, he doesn't even attach his sway bar to the frame.

[00:06:39] Speaker 04:
So again,

[00:06:39] Speaker 04:
They're picking and choosing.

[00:06:41] Speaker 04:
They know what reference they want to go to because they know the invention.

[00:06:44] Speaker 04:
And then they select the three embodiments that serve their purposes while ignoring the two that don't.

[00:06:52] Speaker 01:
But you do agree that D'Angathier does have an embodiment in which it's forward, in which the sway bar is forward?

[00:07:00] Speaker 04:
No, Your Honor, we do not.

[00:07:01] Speaker 04:
Not attached to the frame forward of the invention, sorry, forward of the engine.

[00:07:07] Speaker 01:
Your view is that because you don't know what that open space is being used for, you can't imply or understand that there could be an engine there.

[00:07:17] Speaker 04:
I think I'd say two things in response to that.

[00:07:20] Speaker 04:
One is I think reading that reference, especially the one embodiment that's got a forward running shaft, as you'd say, the engine's up front somewhere.

[00:07:28] Speaker 04:
But this point of, well, maybe you could fit an engine there, I submit your honors, first of all,

[00:07:36] Speaker 04:
We're speculating.

[00:07:37] Speaker 04:
We don't know the size of those components.

[00:07:38] Speaker 04:
There's a case law of this court that says that drawings aren't to scale.

[00:07:43] Speaker 04:
We're looking at an off-axis angle where it's tough to tell the relative locations of anything.

[00:07:48] Speaker 04:
So we're speculating when we talk about the size.

[00:07:52] Speaker 04:
But more importantly, we're asking ourselves a hindsight question.

[00:07:56] Speaker 04:
You don't ask yourself, hey, I wonder if that space right there could fit an engine.

[00:08:02] Speaker 04:
unless you already know what our invention is and you're trying to establish whether it's obvious.

[00:08:07] Speaker 04:
The obviousness analysis requires you to know nothing about the invention, pick up Don Gauthier, and just read it.

[00:08:15] Speaker 04:
And I submit to your honors that nobody, just doing that, without knowledge of our invention, would even start thinking about whether or not that space is big enough to open engine.

[00:08:26] Speaker 02:
At least doesn't Don Gauthier's figure illustrate locating the sway bar

[00:08:32] Speaker 02:
or near where the radius arms are coupled to the frame?

[00:08:37] Speaker 02:
If you look at that picture, that's what it's illustrating.

[00:08:41] Speaker 04:
Again, if you know what to look for, you can conclude that in some of the embodiments, he's attaching the radius arm and the sway bar at a location that's generally coplanar with one another.

[00:08:55] Speaker 04:
But it's only by looking at the figures and only if you know what you're looking for.

[00:08:59] Speaker 04:
Of course, they always talk about these as teachings.

[00:09:02] Speaker 04:
And this court uses the word teachings a lot in its opinions.

[00:09:06] Speaker 04:
And I'm pretty confident that whenever it's used by this court, it's used to talk about what the reference talks about.

[00:09:12] Speaker 01:
In a mechanical invention like this, where you've got a figure that shows the relative location of the components, does that figure have more of a disclosure than other kinds of inventions, maybe something where the

[00:09:29] Speaker 01:
You know, something less structural, if you will.

[00:09:32] Speaker 04:
I think we need to draw the distinction between anticipation and obviousness.

[00:09:37] Speaker 04:
We certainly would not dispute that if you're talking about anticipation, does this disclose certain features?

[00:09:43] Speaker 04:
The figures are as fair game as anything else.

[00:09:46] Speaker 04:
If it's there, it's there for anticipation purposes.

[00:09:49] Speaker 04:
But obviousness is not the same.

[00:09:52] Speaker 04:
Obviousness is we're going to do something that hasn't been done before and we're trying to decide why somebody would be motivated to do that.

[00:09:58] Speaker 04:
And at that point, there is a critical difference between the words and the pictures.

[00:10:03] Speaker 04:
Because the words tell you what's important.

[00:10:05] Speaker 04:
They tell you what to look for.

[00:10:07] Speaker 04:
The drawings don't do that.

[00:10:10] Speaker 04:
Unless you know what you're looking for, then you end up focusing on things that would never jump out at somebody.

[00:10:14] Speaker 02:
Is there a case that you know that makes this interesting distinction between 102 and 103, and text versus the figures?

[00:10:22] Speaker 04:
Your Honor, I think the closest case that has been cited on this point, who's cited by us,

[00:10:26] Speaker 04:
And it's actually the Supreme Court's diamond rubber case, more than 100 years ago.

[00:10:30] Speaker 04:
It was dealing with obviousness.

[00:10:32] Speaker 04:
They claim it wasn't.

[00:10:33] Speaker 04:
It was.

[00:10:34] Speaker 04:
And it dealt with exactly this scenario where there was nothing talked about in the reference, but the challenger was able to find in the figures.

[00:10:43] Speaker 04:
It was actually in the same pad.

[00:10:44] Speaker 04:
They were pointing to one embodiment and saying, well, look, you can see part of the invention over here.

[00:10:48] Speaker 04:
And look, you can see part of the invention over there.

[00:10:51] Speaker 04:
So if you take those two things and put it together, you end up with the claimed invention.

[00:10:55] Speaker 04:
And the Supreme Court said no.

[00:10:57] Speaker 04:
They said just essentially, and I'm paraphrasing at this point, but incidentally shown features in the drawings that are not important, aren't talked about in the specification, do not establish obviousness.

[00:11:15] Speaker 02:
You're into your rebuttal time.

[00:11:16] Speaker 02:
Do you want to save it?

[00:11:17] Speaker 02:
I do.

[00:11:18] Speaker 02:
Thank you.

[00:11:18] Speaker 02:
All right.

[00:11:21] Speaker 02:
Let's hear from Mr. Herriges.

[00:11:27] Speaker 02:
Did I pronounce that correctly?

[00:11:28] Speaker 03:
Hergis, Your Honor.

[00:11:29] Speaker 03:
Hergis.

[00:11:30] Speaker 03:
OK.

[00:11:31] Speaker 03:
You have 15 minutes.

[00:11:32] Speaker 03:
Good morning, Your Honors, and may it please the court.

[00:11:36] Speaker 03:
There is no missing limitation doctrine of the time that Polaris is advocating in this case.

[00:11:42] Speaker 03:
And any such doctrine tends to run counter to the case-by-case analysis that this court employs and that the KSR court emphasize should be undertaken in an obviousness analysis.

[00:11:54] Speaker 03:
And the cases that Polaris cites on this issue are limited to single reference obviousness cases, finding fault with decisions that fill gaps in the prior art with common sense alone, without any kind of evidence or reasoned analysis.

[00:12:11] Speaker 03:
And that's a far cry from what happened in this case.

[00:12:15] Speaker 03:
In this case, we would contend that there is no missing limitation in the sense that they're talking about it.

[00:12:22] Speaker 02:
I guess Mr. Vandenberg

[00:12:23] Speaker 02:
at least this morning, was more focused on this idea of picking and choosing out of the various different illustrations in D'Angathier to come up with the limitation of number one, having a sway bar located forward of the engine, and then number two, having the sway bar attached to the frame in a way that's

[00:12:47] Speaker 02:
still in front of the engine, but behind where the attachment of the radius arms are to the frame.

[00:12:54] Speaker 02:
And so in order to get all of that out of Dankathie, you do have to do a little hunting and cobbling together of the different figures.

[00:13:04] Speaker 02:
And given that Dankathie is silent about all of this, in his view, you're doing a bunch of

[00:13:13] Speaker 02:
hindsight hopscotch in order to get to the claimed invention.

[00:13:17] Speaker 02:
So what do you have to say about that?

[00:13:19] Speaker 03:
Well, what I have to say about that, Your Honor, is these are fact-based arguments that they made to the board.

[00:13:25] Speaker 03:
The board rejected them.

[00:13:26] Speaker 03:
Ultimately, what the board said is that what Dengathier shows is sure there are different setback points, different ways in which to connect the radius arms to the frame and the sway bar to the frame.

[00:13:39] Speaker 03:
But what that shows is that these are all known locations.

[00:13:43] Speaker 03:
and we had unknown and obvious locations for mounting a sway bar in a radius arm suspension, like the Dengathier patent, and ultimately, like the primary reference in Yokimoto, which has the same kind of suspension configuration as Dengathier.

[00:13:57] Speaker 02:
Are you saying that almost any iteration of the different figures of Dengathier is obvious?

[00:14:10] Speaker 02:
I think that's right here, Your Honor.

[00:14:13] Speaker 02:
Pick and choose all the different configurations, and they're all obvious.

[00:14:17] Speaker 02:
Maybe having a sway bar that's not connected to the frame.

[00:14:21] Speaker 02:
Maybe having it connected to the frame, but be coplanar with the connection the radius arm has to the frame.

[00:14:27] Speaker 03:
Yes, Your Honor.

[00:14:28] Speaker 03:
And I think that the number of disclosures in Vingathie is not as broad as they might have you believe.

[00:14:36] Speaker 03:
There are sway bars that are coplanar and attached to the frame, sway bars that are rearward of the attachment point.

[00:14:42] Speaker 03:
and there's a suggestion for mounting them at different spaces.

[00:14:46] Speaker 03:
So we're only dealing with three or four different kinds of disclosures within Dengathier, and I would submit that those were all known and they all had varying advantages, which our expert testified to and which the board ultimately adopted.

[00:15:00] Speaker 02:
Well, why doesn't that run into the diamond case that Mr. Vandenberg was stressing?

[00:15:09] Speaker 03:
Well, I don't think that that case stands for that proposition.

[00:15:14] Speaker 03:
And the emphasis that I heard this morning was that Dengathier doesn't textually describe any sort of benefits with these varying configurations.

[00:15:24] Speaker 03:
And I think we would take issue with that from two points.

[00:15:27] Speaker 03:
And that is, first, that Dengathier does textually describe that the benefits of being able to

[00:15:34] Speaker 03:
vary these configurations to achieve what the user might want, vary these suspension points.

[00:15:40] Speaker 01:
And the second point I would make is that KSR's... Can I ask you just, I just want to interrupt you for a minute, but does Don Gathier talk about why you would want to have that sway bar in the particular location that it has it in figure two?

[00:15:56] Speaker 03:
It does not talk specifically about why you would want that configuration.

[00:15:59] Speaker 03:
No, Your Honor.

[00:16:00] Speaker 03:
It simply says that these varying configurations can be used to reach the user's end and can be designed to accommodate whatever needs the user wants.

[00:16:08] Speaker 01:
It's just more general.

[00:16:09] Speaker 01:
It's not saying why any one specific configuration is better than the other.

[00:16:13] Speaker 03:
No, other than to say that they all provide these stability benefits that would have motivated one of skill to implement it.

[00:16:20] Speaker 01:
Okay.

[00:16:20] Speaker 01:
We're about to give the second point.

[00:16:21] Speaker 03:
Yeah, pardon your honor.

[00:16:22] Speaker 01:
You were about to give a second point.

[00:16:24] Speaker 01:
I was.

[00:16:24] Speaker 03:
My second point, your honor, is that KSR itself says that an overemphasis on the importance of explicit content of issues patents is counter to the sort of case by case and holistic obvious analysis that the court is to employ.

[00:16:41] Speaker 03:
And so I think that they are being more demanding, Clarice is being more demanding than the law requires in terms of an explicit motivation being present and written in the patent itself.

[00:16:53] Speaker 03:
The reason we don't think this is a missing limitation case, Your Honors, is that their argument rests on looking at the references individually and alone and saying, Dengathier doesn't teach a sway bar in front of an engine because it doesn't show an engine.

[00:17:09] Speaker 03:
And then Okimoto doesn't show a sway bar, and therefore neither one of those teaches the entirety of that claim.

[00:17:15] Speaker 02:
Has there ever been, in the prior art, a sway bar disclosed for the

[00:17:22] Speaker 02:
rear suspension when there's also a rear engine?

[00:17:28] Speaker 03:
Not in the record, Your Honor.

[00:17:30] Speaker 03:
What our contention before the board was, so there is no anticipatory reference here.

[00:17:35] Speaker 02:
I mean, there could be other elements that are missing from such a prior art reference, but I'm just trying to figure out right now, was this the first time that there was a rear sway bar and a rear engine?

[00:17:48] Speaker 03:
Yeah, there's no reference in the record that shows that limitation.

[00:17:52] Speaker 03:
Denny, maybe?

[00:17:54] Speaker 03:
While Denny shows the reference, it doesn't explicitly show where the engine is.

[00:17:58] Speaker 03:
I think one could read Denny to be mounted forward of that engine compartment, but it's not as clean as perhaps we would say.

[00:18:06] Speaker 03:
I have to say that it's explicitly disclosed there.

[00:18:09] Speaker 02:
Why wouldn't the most logical location of the sway bar, if it's obvious, in fact, to modify Oaken,

[00:18:17] Speaker 02:
on Okamoto with a sway bar to just have the sway bar located rear of the engine much closer along the rear axle.

[00:18:29] Speaker 02:
Well, so two points on that, your honor.

[00:18:30] Speaker 02:
I think that... Instead of stretching that sway bar and wrapping it all the way around the engine.

[00:18:37] Speaker 03:
Well, so you're not actually wrapping it around the engine.

[00:18:40] Speaker 03:
In the proposed combination, it would be a straight shot through, so you'd have... A U-shaped bar, isn't it?

[00:18:46] Speaker 03:
It is.

[00:18:47] Speaker 03:
And so it would be U-shaped on the rear as well.

[00:18:49] Speaker 03:
That's typically the way that these are implemented.

[00:18:51] Speaker 03:
There are different configurations where they're straight.

[00:18:53] Speaker 03:
That's why I'm saying it's getting wrapped around the engine.

[00:18:55] Speaker 03:
I see.

[00:18:57] Speaker 03:
Well, the reason you would want to do that, and this came up and the board addressed it, well, first things first, you could mount it rearward.

[00:19:04] Speaker 03:
And we do think that would be another obvious location.

[00:19:10] Speaker 03:
But we don't think that negates obviousness here.

[00:19:13] Speaker 03:
And there are, in fact, specific reasons you would want to keep it

[00:19:16] Speaker 03:
forward of the engine near the pivot points of the radius arm, which is where Dengathier teaches to put it.

[00:19:23] Speaker 03:
In addition to the general benefits, what that does, mounting it forward of the engine near those pivot points, that reduces the amount of strain on the sway bar as those radius arms are moving.

[00:19:37] Speaker 03:
Because as you move towards the back, there's more movement.

[00:19:40] Speaker 03:
As you're up front at the pivot point of the radius arm, there's less strain and pace

[00:19:45] Speaker 03:
placed on the sway bar.

[00:19:47] Speaker 01:
Where in the record is that rationale?

[00:19:49] Speaker 03:
Yeah, so that rationale, the opinion addresses that.

[00:19:54] Speaker 03:
At pages 28 and 30, and that's appendix 28 and 30, Dr. Davis talks about the mounting location in his opening report of paragraphs 41 and 106 and his reply report at paragraphs 10 through 12.

[00:20:09] Speaker 01:
And he doesn't cite any particular, you know, other prior art or any

[00:20:16] Speaker 01:
articles or other sources for that rationale in his expert report is just based on his experience.

[00:20:23] Speaker 01:
Is that right?

[00:20:26] Speaker 03:
That is based on his experience, and it's based on Dengathia's disclosure as well.

[00:20:29] Speaker 03:
But Dengathia mounts it forward like that, and that's the advantage that it provides.

[00:20:33] Speaker 02:
This portion of the board opinion, is this the part that's based on the theory that the Inakimoto frame is wider in the middle than it is towards the back?

[00:20:46] Speaker 03:
That was a portion of the board's analysis.

[00:20:48] Speaker 03:
And I would like to address that, Your Honor.

[00:20:50] Speaker 02:
Because there's obviously a big fight in the briefs over whether that's true or not.

[00:20:54] Speaker 02:
There's a counter-argument when you look at the figures that maybe it's actually getting narrower as you get closer to the middle.

[00:21:00] Speaker 03:
And I don't think that's right, Your Honor.

[00:21:02] Speaker 03:
And I'd back up by saying I think the board's decision was broader than just saying Enokimoto was saying alternate vehicles in general get narrower towards the back.

[00:21:12] Speaker 03:
So we would be motivated to put it towards the front.

[00:21:14] Speaker 03:
But sticking specifically with Enokimoto,

[00:21:17] Speaker 03:
If you look at figure seven, which is a rear view of that vehicle, it has down bars four, which are very narrow.

[00:21:24] Speaker 03:
So Polaris' attorney, my colleague, says that there's actually another bar, 3A, that is broader.

[00:21:32] Speaker 02:
Right.

[00:21:32] Speaker 02:
I'd like you to, since we're going to talk about this, why don't you focus on the figures that are annotated by Polaris and explain to me why

[00:21:44] Speaker 02:
They don't show what they look like they show.

[00:21:47] Speaker 03:
I will, Your Honor.

[00:21:47] Speaker 03:
The figure annotated by Polaris in their reply brief.

[00:22:00] Speaker 02:
And it's figures three and six.

[00:22:11] Speaker 03:
Yeah, so they're relying on

[00:22:13] Speaker 03:
In their reply brief, they rely on actually figure 4.

[00:22:18] Speaker 03:
And there's that down bar 3a, if your honors are there.

[00:22:28] Speaker 03:
And that down bar 3a, they say, is at the rear of the frame and is actually wider than the down portion 4, which we pointed to.

[00:22:38] Speaker 03:
But if you look at figures 1 and 2, 3a is actually

[00:22:43] Speaker 03:
quite a bit forward of the rear of the frame, and it intersects the engine and transmission.

[00:22:53] Speaker 03:
So that's why we believe that that rationale supports us.

[00:22:56] Speaker 03:
But more broadly, I think when you're looking at these two references, even if you were to put aside that bending stress argument, what you have here is Inokimoto, which has its pivot points of its suspension forward of the engine.

[00:23:12] Speaker 03:
And you have Dan Gauthier, which has the sway bar mounted at, in some cases, or very near that pivot point.

[00:23:19] Speaker 03:
One of ordinary skill who would have been motivated to implement a sway bar, which it's not disputed here that you would be motivated to do.

[00:23:27] Speaker 03:
There's disputes about where and what kind of sway bar, but a sway bar in general had known motivations to implement it.

[00:23:35] Speaker 03:
And if you do that, you would be motivated to implement the configuration

[00:23:39] Speaker 03:
that Dengathier teaches.

[00:23:40] Speaker 03:
It's the same kind of suspension.

[00:23:43] Speaker 03:
They're both for rear wheel drive vehicles, and they both facilitate that sort of low center of gravity by opening up that engine compartment and allowing one of ordinary skill to mount that engine low in the frame.

[00:23:57] Speaker 03:
So even if the bending stress argument is put to the side, there's still a motivation to maintain what Dengathier teaches rather than re-engineering it when you implement it into a gnocchi model.

[00:24:10] Speaker 03:
If Your Honors have any further questions, I'm happy to answer them, but otherwise I'll see the remainder of my time.

[00:24:31] Speaker 04:
In my opening presentation, we talked mostly about Don Gauthier, and I think the court understands our position there of picking and choosing among embodiments, and that in fact none of the embodiments actually show or teach a sway bar mounted to the frame forward of the engine.

[00:24:49] Speaker 04:
But we also need to look at what happens when you move it over to a locomotive, because the reasoning there is just as obscure based on things that they can obtain

[00:25:00] Speaker 04:
from studying the drawings, knowing what they're looking for, but that aren't actually talked about.

[00:25:05] Speaker 04:
Remember with Don Gauthier, the teaching we're trying to draw is aligning the attachment points of the radius arms and the sway bar.

[00:25:15] Speaker 04:
But that only matters if you go over to Anokomoto and say, well, Anokomoto says it's really important to have the radius arms attached forward of the engine.

[00:25:27] Speaker 04:
That's the connection they want.

[00:25:30] Speaker 04:
Well, what do you need to do to get to that?

[00:25:33] Speaker 04:
They in their briefs, they always show these figures side by side.

[00:25:36] Speaker 04:
They're not side by side.

[00:25:38] Speaker 04:
You have to go through different figures of an Okamoto.

[00:25:42] Speaker 04:
And if I could direct the court to the appendix pages, you have to start at 1155, which is figure five of an Okamoto.

[00:25:52] Speaker 04:
And you have to notice that this point 45A,

[00:25:58] Speaker 04:
where the radius arm is attached to the frame is right in that junction between two frame elements.

[00:26:05] Speaker 04:
Okay, so you gotta get that in your head.

[00:26:08] Speaker 04:
Then you have to flip back two pages, three pages to 1152, go to figure two, and say, well, you know, look, it looks like in that figure, that same frame element we were talking about, element five, is just barely forward of the engine.

[00:26:25] Speaker 04:
So from that,

[00:26:27] Speaker 04:
If I go through that exercise, I can conclude that the radius arm is attached to the frame forward of the engine.

[00:26:36] Speaker 04:
That is a hindsight analysis.

[00:26:38] Speaker 04:
Nothing in the reference tells us to do that inspection.

[00:26:42] Speaker 04:
So not only do we have picking and choosing on the Dongathier side, we also have picking and choosing on the Anokomoto side.

[00:26:53] Speaker 04:
I guess the last point I want to make, I do want to talk briefly about claims 2, 4, and 6.

[00:26:59] Speaker 04:
Because those are the ones that say, okay, now don't have these two elements aligned.

[00:27:04] Speaker 04:
Attach the sway bar in this window so that it's forward of the engine, but also rearward of the attachment point of the radius arms.

[00:27:16] Speaker 04:
And if I could direct your honor's attention to one more page from the

[00:27:21] Speaker 04:
It's actually page 54 of our brief, because we annotate figure 2 of an Okamoto.

[00:27:28] Speaker 04:
And what we show is the very narrow window.

[00:27:32] Speaker 04:
Once you've gone through that hindsight analysis, we show the very narrow window between where the radius arm is attached to the frame and the forward plane of the engine.

[00:27:42] Speaker 04:
So to meet dependent claims 2, 4, and 6, you need to be right in that window.

[00:27:47] Speaker 04:
If you slide it a little farther back, you're under the engine,

[00:27:50] Speaker 04:
If you slide it a little further forward, you don't meet that limitation of being rearward of the radius arm attachment point.

[00:27:58] Speaker 04:
There's no teaching in the prior art to put it right in that little window.

[00:28:03] Speaker 04:
It's only with hindsight that you end up putting it there.

[00:28:09] Speaker 04:
Your Honor, ultimately, obviousness is a question of law for this court to decide de novo.

[00:28:18] Speaker 04:
In a case like this where there is a missing limitation from the prior art, this court can review the prior art itself and make an ultimate decision on obviousness and should in fact reverse the board because the evidence in this case does not justify holding an invention containing a feature shown nowhere in the prior art to hold that obvious.

[00:28:40] Speaker 04:
Thank you.