[00:00:00] Speaker 03:
company 17-2502.

[00:00:01] Speaker 03:
May I proceed your honor?

[00:00:27] Speaker 02:
Yes.

[00:00:28] Speaker 02:
Mike Valake again for United Technologies.

[00:00:31] Speaker 02:
The board here committed two errors.

[00:00:34] Speaker 02:
First, taking the final written decision standing alone, there's a lack of substantial evidence to support the board's finding that claims 15 and 16 were anticipated based on inherency.

[00:00:53] Speaker 02:
That's the first error.

[00:00:54] Speaker 02:
If we move beyond the final written decision and look at the procedural history here, GE never rate.

[00:01:05] Speaker 01:
Yes.

[00:01:05] Speaker 01:
Let me just tell you what I'm thinking.

[00:01:07] Speaker 01:
And so you at least can decide how to proceed.

[00:01:17] Speaker 01:
It seems to me there's a distinct possibility that while the board

[00:01:23] Speaker 01:
indisputably referred at several places to the Inherency Standard.

[00:01:28] Speaker 01:
But that was just a labeling problem, not a substantive problem, and that what it really decided was on the basis of what we've done in Graves and R.E.G.

[00:01:41] Speaker 01:
Synthetic or whatever that was called, which is to say a person of skill in the art taking the knowledge of such a person would, upon reading what is in

[00:01:52] Speaker 01:
Is this Wendis or Willis?

[00:01:54] Speaker 01:
Is this Wendis?

[00:01:55] Speaker 02:
This is Wendis, yes.

[00:01:56] Speaker 01:
Figure four of Wendis, right.

[00:01:59] Speaker 01:
Would immediately see you've got the input number, you've got the output post-tech number.

[00:02:06] Speaker 01:
Everybody in the business knows what techs do.

[00:02:08] Speaker 01:
They make really only a small change.

[00:02:11] Speaker 01:
And therefore, when you start with a ratio of, what is it, 14.5, that's not going to drop to anything like the number five.

[00:02:20] Speaker 01:
And so this is not an inherency case.

[00:02:23] Speaker 01:
It is a case about teaching to a person of skill in the art who brings to bear the knowledge of such a person, which includes what you know about what texts do.

[00:02:36] Speaker 01:
So that this inherency business, even the board should never have used that language, but substantively, it doesn't matter.

[00:02:45] Speaker 02:
Then we need to look at the board said first,

[00:02:50] Speaker 02:
claim construction, you need to measure LPT pressure ratio prior to the inlet at the outlet.

[00:03:00] Speaker 02:
That's the proper place.

[00:03:01] Speaker 02:
Secondly, the board then said and found... The board accepted that.

[00:03:06] Speaker 02:
Right.

[00:03:06] Speaker 02:
When this does not disclose a pressure at the outlet of the LPT,

[00:03:12] Speaker 02:
And so, and that's when you look at one disfigured four, you see there's no pressure.

[00:03:17] Speaker 01:
Isn't, is this a, I sometimes I get confused with all these cases.

[00:03:20] Speaker 01:
I thought that's the one in which it used the phrase in a sense agreed to an extent with UTC's position to an extent, but then it immediately says, but here's the critical degree to which that's not true, which is what I just said.

[00:03:35] Speaker 01:
Everybody would know every relevant would know the ordinary skilled artisan.

[00:03:39] Speaker 01:
would know that techs change these pressures only just a very little bit.

[00:03:44] Speaker 02:
Well, if we've gone then beyond, you've got to measure the pressure at the outlet.

[00:03:50] Speaker 02:
And you can look at Wendy's and see there's no pressure at the outlet.

[00:03:53] Speaker 02:
Now we're in the part where what happens in the tech.

[00:03:58] Speaker 02:
And your honor mentioned the cases that they cite where this is just simply still an express

[00:04:06] Speaker 02:
disclosure, I know that the Baxter case in particular, they rely on where there was a commercial bag.

[00:04:12] Speaker 02:
And the question was, well, what would the person of ordinary skill understand that commercial bag?

[00:04:17] Speaker 01:
Baxter engraves and reg synthetic or whatever that's.

[00:04:21] Speaker 02:
But the evidence.

[00:04:23] Speaker 01:
And the reg one is interesting because that was not just those mathematical calculation or conversion.

[00:04:29] Speaker 01:
It was a conversion that drew on factual information that the person of skill in the art

[00:04:36] Speaker 01:
would have access to because it used some empirically derived numbers in the literature.

[00:04:44] Speaker 02:
It's not just changing British units to... They converted the area percentage to a weight percentage.

[00:04:55] Speaker 02:
That's something that is readily apparent on the face of the disclosure and then the question becomes what does that mean?

[00:05:03] Speaker 02:
I think here we're in a very specific

[00:05:06] Speaker 02:
part of measuring an LPT pressure ratio.

[00:05:10] Speaker 02:
And it's simple math.

[00:05:12] Speaker 02:
As we see here, you need two numbers.

[00:05:14] Speaker 02:
When you don't have that second number, that's a gap in the disclosure.

[00:05:20] Speaker 02:
And we submit that the board filled that gap with inherency.

[00:05:26] Speaker 02:
Your honor's asking about how that could still be an expressed disclosure.

[00:05:31] Speaker 02:
But then what Dr. Abbari does in kind of filling this in with respect to

[00:05:36] Speaker 02:
the tech and what the person of ordinary skill would understand.

[00:05:39] Speaker 02:
The only evidence he really offers is his statement that he's not aware of such a turbo family, which would have such a significant drop across the TC.

[00:05:52] Speaker 02:
And that's not a statement that the person of ordinary skill is looking at and express disclosure.

[00:06:00] Speaker 01:
But isn't it, isn't it a fair inference?

[00:06:03] Speaker 01:
that if this super expert, extraordinary person isn't aware of anything out there in the tech world, the TEC world, that would differ from this, it's a fair inference that an ordinary skilled person also would understand that all the techs out there have this extremely small pressure drive.

[00:06:30] Speaker 02:
Well, and I mean, at that point, we have inferences that is supporting that it's probable that the pressure there at the outlet is, and GE never really does the math.

[00:06:44] Speaker 02:
They simply say it would be slightly less after the tech.

[00:06:50] Speaker 01:
But the math is trivial.

[00:06:53] Speaker 02:
We don't know whether the math is trivial because what we simply have to go on is his statement

[00:06:58] Speaker 02:
He's not aware of a turbine exit case which has such a pressure drop.

[00:07:04] Speaker 02:
That's the sole evidence that we have to make this leap that- There's no contrary evidence, right?

[00:07:09] Speaker 02:
There is no contrary evidence which actually gets to what we think is where the board exceeded its statutory authority as well as violated the APA because we very specifically, we start with the petition under Magnum Oil here and they need to

[00:07:27] Speaker 02:
put with particularity the theory they're proceeding under in the petition.

[00:07:32] Speaker 02:
And they did so.

[00:07:33] Speaker 02:
They had three sentences actually on claims 15 and 16, two of which went to claim construction.

[00:07:39] Speaker 02:
And then they, based on that claim construction, said the LPT pressure ratio after the tech was a certain number.

[00:07:46] Speaker 02:
We responded to that based on claim construction and the fact that Wendy's did not expressly disclose.

[00:07:54] Speaker 02:
And we dropped the footnotes saying they weren't proceeding under obviousness or inherency.

[00:07:59] Speaker 02:
And importantly, Judge, we didn't put forth an expert because we didn't need an expert based on our claim construction and the fact that one just didn't disclose the pressure at the outlet.

[00:08:12] Speaker 03:
Go to appendix 14.

[00:08:15] Speaker 03:
And this is Dr. Bari.

[00:08:21] Speaker 03:
This is about Dr. Bari's testimony.

[00:08:25] Speaker 03:
And he says that the person of ordinary skill and art understands the guide vanes in the TEC to have minimal total pressure drop, that the total pressure drop across a turbine exhaust case would be on the order of only a few percent, that's less than five, and then under normal operating conditions.

[00:08:47] Speaker 03:
Then goes on to describing the TEC where there is virtually no pressure drop across the vanes.

[00:08:56] Speaker 03:
That seems to me to be substantial evidence.

[00:09:01] Speaker 03:
And why that was credited?

[00:09:05] Speaker 03:
Why shouldn't we find that to be substantial evidence?

[00:09:12] Speaker 02:
Substantial evidence to support the board's decision under an express disclosure or an inherency theory?

[00:09:20] Speaker 02:
No, just an express disclosure.

[00:09:24] Speaker 02:
At that point, what Dr. Abari is saying is we don't see the pressure at the outlet of Wendis' LPT, but based on what we understand the person with an ordinary skill would know, what happens in a TEC that it's going to be slightly less.

[00:09:45] Speaker 02:
And at that point, what Dr. Abari is doing here is he's

[00:09:52] Speaker 02:
making the case that you can infer what that pressure would be at the outlet.

[00:09:59] Speaker 02:
I mean, he's filling a gap at that point to say what the person or skill would understand.

[00:10:05] Speaker 02:
That's still, if we take the claim construction that the board got right and gives you a number that you need at the outlet, what he's really doing here is saying you can infer that number.

[00:10:21] Speaker 02:
It's our position that that's supportive, perhaps, of an obviousness theory, which she cited obviousness cases in their reply brief when they were talking about such evidence.

[00:10:35] Speaker 02:
But that's still not going to be enough to constitute expressing anticipation with the right claim construction.

[00:10:45] Speaker 02:
If I could, for a minute, get back to what happened here procedurally

[00:10:51] Speaker 02:
We didn't offer an expert at that point because we were basing this that there was no express disclosure in Wendis.

[00:11:01] Speaker 02:
And they offered in reply all of a sudden that it doesn't matter what claim construction you use and the evidence we're talking about now from Dr. Abari.

[00:11:15] Speaker 02:
And so

[00:11:17] Speaker 02:
when we argued this in front of the board.

[00:11:19] Speaker 03:
Is Dr. Bari's testimony un-rebutted?

[00:11:22] Speaker 03:
Is that what you're saying?

[00:11:23] Speaker 02:
It is, Your Honor, because we have made the tactical decision in responding in the POR that they're pursuing the express anticipation theory.

[00:11:35] Speaker 02:
We are right on claim construction.

[00:11:36] Speaker 02:
Therefore, we don't need an expert.

[00:11:40] Speaker 02:
If we would start to go

[00:11:42] Speaker 03:
to gap filling or inherency or- Doesn't the testimony alone raise a specter of an inherency theory?

[00:11:51] Speaker 02:
I think here we need to distinguish between evidence they're offering and argument they're offering.

[00:11:57] Speaker 02:
I mean, Magnum Oil is very specific that the board can't- I'm interested in evidence that they're offering.

[00:12:03] Speaker 03:
You're coming back with an attorney strategy.

[00:12:08] Speaker 03:
You made the strategic decision not to rebut.

[00:12:11] Speaker 03:
Dr. Abari's testimony.

[00:12:13] Speaker 02:
Our opportunity, in the POR, we made our strategic decision.

[00:12:18] Speaker 02:
They put forth all of this evidence in reply.

[00:12:21] Speaker 02:
At that point, procedurally, we can't offer testimony to Rabat Khan.

[00:12:26] Speaker 02:
Now, we did file a motion to strike.

[00:12:29] Speaker 02:
And we were vigilant here.

[00:12:31] Speaker 02:
And we moved to strike a certain portion of Wendis, which they had not put in the petition.

[00:12:35] Speaker 03:
You didn't move to strike Dr. Abari's?

[00:12:37] Speaker 02:
We didn't move to strike Dr. Abari's testimony here.

[00:12:41] Speaker 02:
because we never knew they perhaps were trying to fill a gap here with respect to an inherency theory.

[00:12:50] Speaker 02:
We think it's not enough for an express disclosure, but to the extent the board then in its decision was gap filling with an inherency theory, we never had any notice it would actually go to that theory.

[00:13:06] Speaker 02:
And so no, we didn't move to strike those portions of it.

[00:13:10] Speaker 02:
the reason stated, we don't think it rises.

[00:13:13] Speaker 03:
Wasn't Dr. Abari's testimony in response to the, your response to the POR petitioners response?

[00:13:25] Speaker 02:
According to GE, they're saying, based on your claim construction, we're simply responding to that.

[00:13:34] Speaker 02:
Now, they could have put that in the petition.

[00:13:37] Speaker 02:
They have every reason to believe in a

[00:13:40] Speaker 02:
case where we're going to construe LPT pressure ratio and the specification here at Joint Appendix 50, Column 4, Lines 24 through 27.

[00:13:53] Speaker 02:
It's very specific.

[00:13:54] Speaker 02:
You measure the LPT pressure ratio prior to the inlet and at the outlet.

[00:14:01] Speaker 03:
Dr. Barry was responding to the patent owner's response, correct?

[00:14:06] Speaker 02:
At that point, he was responding to the patent owner's response, yes.

[00:14:11] Speaker 02:
still doesn't allow them to take what's an express anticipation case and change it.

[00:14:17] Speaker 02:
But technically, he was responding at that point.

[00:14:24] Speaker 02:
I see I have a minute left.

[00:14:28] Speaker 03:
We have a couple of minutes, but go ahead.

[00:14:31] Speaker 02:
Any questions?

[00:14:35] Speaker 02:
You reserve three minutes of your time.

[00:14:36] Speaker 02:
Right.

[00:14:36] Speaker 02:
And I have a minute left now.

[00:14:39] Speaker 02:
And I just wanted to touch on briefly that we don't believe that this case should be remanded.

[00:14:52] Speaker 02:
In fact, we believe based on what the board did, one, they got the claim construction right, and two, if you apply that claim construction, there is no express disclosure in WENDIS at the outlet of the LPT.

[00:15:07] Speaker 02:
If we apply that,

[00:15:09] Speaker 02:
Claim construction, if we look at when this, the case they actually brought in the petition, it's clear based on the board's decision that UTC should prevail and they failed to prove express anticipation.

[00:15:39] Speaker 00:
May it please the court.

[00:15:41] Speaker 00:
Whether this is categorized as express anticipation or inherent anticipation, the fact of the matter is there is substantial unrebutted evidence in the form of Dr. Abari's testimony and in the form of the objective extrinsic evidence that he relied upon to show that with respect to a turbine exhaust case attack, there is virtually no pressure drop across such a device.

[00:16:08] Speaker 00:
That is one of UTC's own patents that Dr. Abari relied on.

[00:16:13] Speaker 00:
With respect to it being expressed in anticipation.

[00:16:17] Speaker 01:
Yeah.

[00:16:18] Speaker 01:
Can I just ask, aren't you over reading Abari's declaration to say more than it actually does?

[00:16:30] Speaker 01:
I wasn't sure that it said every turbine exhaust case

[00:16:38] Speaker 01:
Everyone necessarily has a very small pressure drop, only that in the world of techs that is out there right now, that's what that would be true.

[00:16:54] Speaker 01:
That feels like it's short of the inherency standard of necessity.

[00:17:03] Speaker 00:
I would respectfully disagree, Your Honor.

[00:17:05] Speaker 00:
I believe that what Dr. Bari said,

[00:17:08] Speaker 00:
was that there are no tax in the industry that he is aware of.

[00:17:11] Speaker 00:
And again, this is a man who is perhaps one of the foremost if not the foremost.

[00:17:16] Speaker 01:
I would stipulate that he said that in the current world, all of them have this property.

[00:17:21] Speaker 01:
Tell me why that meets the standard of inherency.

[00:17:23] Speaker 01:
And I want to keep that separate.

[00:17:25] Speaker 01:
Sure.

[00:17:27] Speaker 01:
This is not a new problem of separating inherency from anticipation with the addition of knowledge.

[00:17:35] Speaker 01:
And it may be that each of those two things is

[00:17:39] Speaker 01:
itself confined and that we ought not to allow them to slop over into each other because there's always obviousness.

[00:17:46] Speaker 01:
And if only you had pled that, you'd be able to say undisputed evidence, or at least on this record it would be undisputed, the record might in fact have been different, I don't know.

[00:17:58] Speaker 01:
But just focusing on inherency, really does inherency cover the situation where

[00:18:06] Speaker 01:
all the particular market existing implementations of something, have a certain property, doesn't this, doesn't inherency require that they have to have that property?

[00:18:19] Speaker 00:
If a party like GE comes in with the evidence that establishes, we are aware of no reference or no teaching that shows that a turbine exhaust case does not have

[00:18:36] Speaker 00:
a minimal pressure drop.

[00:18:39] Speaker 00:
At that point, it would have been incumbent on the patent owner to come in with some form of evidence that would have rebutted or cast doubt even on Dr. Avari's testimony and the objective extrinsic evidence that he relied on to support his testimony.

[00:18:58] Speaker 00:
UTC did not do that.

[00:18:59] Speaker 00:
So under a preponderance of the evidence standard, which is what we had here, the only evidence

[00:19:06] Speaker 00:
is that turbine exhaust cases have a minimal pressure drop.

[00:19:13] Speaker 00:
Therefore, with respect to this particular claim limitation, which is a very broad claim limitation, it just says pressure ratio over five.

[00:19:20] Speaker 00:
When Dr. Abari showed that it was 14.4 with the tech, it necessarily, under the evidence, is still well above five, even excluding the tech, because the only evidence

[00:19:35] Speaker 00:
is that techs have virtually no pressure drop.

[00:19:38] Speaker 01:
What is your best one or two inherency cases that allow necessity, which I think is the inherency standard, to be met by pointing to what has been marketed in the real world?

[00:19:58] Speaker 00:
Well, for example.

[00:20:00] Speaker 01:
As opposed to a conversion scientific necessity

[00:20:05] Speaker 01:
That when these two chemicals that are mentioned are mixed, this is what science tells you will always happen.

[00:20:12] Speaker 01:
But just the fact that there are 17 techs in the marketplace and everyone has this feature, that's of a different order.

[00:20:20] Speaker 01:
Where have we ever said anything to bring those into inherency?

[00:20:25] Speaker 00:
I think this court has looked at in the past on the inherency cases, it looks at the specific evidence that's in front of it and it looks with

[00:20:33] Speaker 00:
For example, it looks to the specific products or implementations that have been discussed in the evidence.

[00:20:41] Speaker 00:
The board cited the MEHL case from this court, 192 F.

[00:20:48] Speaker 00:
3rd, 1362.

[00:20:48] Speaker 00:
Is that the hair growth case?

[00:20:50] Speaker 00:
It is.

[00:20:50] Speaker 00:
It's the hair growth case.

[00:20:52] Speaker 00:
And they said specifically, and it's a good case because it shows two separate, hair growth or hair removal, it shows two separate devices

[00:21:02] Speaker 00:
One in which there was not sufficient evidence of inherency, the second of which there was.

[00:21:08] Speaker 00:
And they felt in the panel there, focused specifically on this, the one that did show inherency said it was necessarily known that a person would use the device in a vertical direction so that it met the particular claim limitation.

[00:21:23] Speaker 00:
If it wasn't used in a vertical direction, it might not have.

[00:21:27] Speaker 00:
But the board said here, all the evidence points to

[00:21:30] Speaker 00:
The only way you would use it is in the vertical direction.

[00:21:32] Speaker 00:
That was enough for inherency.

[00:21:34] Speaker 00:
They didn't, you know, the more that the panel did not look at every single hair removal device must be used in a vertical direction, for example.

[00:21:45] Speaker 00:
They looked at the specific evidence that was in front of them and I believe that would be the exact situation here under our preponderance of the evidence standard.

[00:21:54] Speaker 00:
The only evidence is that techs have virtually no pressure drop and therefore,

[00:22:00] Speaker 00:
It necessarily flows to a person wearing skill in the art reading Wendis that it would have a pressure ratio, even excluding the tech, of well above five.

[00:22:09] Speaker 00:
But fundamentally, we don't believe that this is an inherency case.

[00:22:16] Speaker 00:
The board said specifically, I agree, they cited some inherency cases.

[00:22:19] Speaker 00:
But when you look at what they said, they said specifically that the record is persuasive that Wendis can be understood by one of skill in the art performing basic technical analysis and simple math

[00:22:30] Speaker 00:
as having a pressure ratio of about 5 or greater.

[00:22:35] Speaker 00:
So the board specifically said that Wendis has a pressure ratio above 5.

[00:22:40] Speaker 00:
That's, I don't believe, inherency.

[00:22:42] Speaker 00:
That falls within the scope of express anticipation.

[00:22:47] Speaker 00:
And that is precisely what this court found in the REG synthetic case.

[00:22:56] Speaker 00:
Judge Taranto, you mentioned it exactly, correctly.

[00:23:00] Speaker 00:
It wasn't just a one-to-one conversion of the weight percentages in the prior art in that case.

[00:23:08] Speaker 00:
The claim required a weight percentage of above 75%.

[00:23:11] Speaker 00:
The prior art did not disclose weight percentages at all.

[00:23:17] Speaker 00:
And there actually needed to be reference to extrinsic evidence to show these relative response factors that could then be used

[00:23:26] Speaker 00:
to perform math, to do some conversions, to not arrive at an exact one-to-one correspondence with weight percentage, but to arrive at what this court said was a reasonable estimate.

[00:23:37] Speaker 01:
And this court there specifically said this is not an inherency case.

[00:23:40] Speaker 00:
They said explicitly that this is not an inherency issue because the challenge limitation is not missing from the prior art.

[00:23:48] Speaker 00:
It's on all fours with the facts here.

[00:23:53] Speaker 00:
The only evidence is that

[00:23:56] Speaker 00:
excluding the tech, you would still have a pressure ratio that a person of already skill in the art would understand would be well above five.

[00:24:06] Speaker 00:
What that number may be, not disclosed, but still, it would be necessarily known to a person of already skill in the art.

[00:24:12] Speaker 00:
It's expressly known to a person of already skill in the art that would be above five.

[00:24:20] Speaker 00:
With respect to the fact that this was presented in the reply brief,

[00:24:27] Speaker 00:
It would be an impossibility for a petitioner to have to anticipate and guess at every single claim construction issue that the patent owner may raise in its petition.

[00:24:40] Speaker 00:
If we had to do that, the petitions would be hundreds of pages long.

[00:24:44] Speaker 00:
And that's just simply not a practical approach to this.

[00:24:50] Speaker 01:
They came in with- Was this claim construction issue

[00:24:55] Speaker 01:
raised before the patent owner response either at the institution stage or in the institution decision.

[00:25:02] Speaker 01:
That is where the denominator was measured.

[00:25:06] Speaker 00:
It was raised only, no it was not your honor, it was only raised in their patent owner response the first time around and that was because these are dependent claims and the focus of the patent owner response was actually on the independent claim which they later disclaimed.

[00:25:23] Speaker 00:
So there's not a lot of... In the preliminary patent owner response?

[00:25:26] Speaker 00:
Correct, in the patent owner preliminary response, and then in the institution decision.

[00:25:29] Speaker 00:
The institution decision just said GE has shown that it's 14.4, that's enough to get instituted on.

[00:25:37] Speaker 00:
So they raised it in the patent owner response, came out with this claim construction that we disagree with, but nonetheless came out with it.

[00:25:45] Speaker 00:
We submitted evidence in our reply brief to show, well, even under that claim construction,

[00:25:50] Speaker 00:
It's clear that Wendy's anticipates because of all the evidence that Dr. Obari put in.

[00:25:57] Speaker 00:
This court has said in the past, for example, in the Bellman case, that that type of response to a patented response is perfectly permissible.

[00:26:08] Speaker 00:
And if there was some problem or issue with respect to Dr. Obari's reply declaration, UTC had numerous options to address it.

[00:26:18] Speaker 00:
They could have moved to strike it.

[00:26:19] Speaker 00:
which with respect to this particular... They did say they moved to strike.

[00:26:23] Speaker 03:
Did they move to strike specifically Dr. Abari's testimony?

[00:26:27] Speaker 00:
No, Your Honor, not with respect to his testimony about what a turbine exhaust case discloses.

[00:26:33] Speaker 00:
They did not.

[00:26:34] Speaker 00:
They moved to strike his testimony regarding what's called the disclosure in Wendis of the expansion ratio, which Dr. Abari said an expansion ratio is the same as a pressure ratio.

[00:26:47] Speaker 00:
because the the uh... when this actually expressly says the expansion ratio which excludes the tech is twelve point seven one it was a straight back was there any type of objection that you had advanced this is a tension in theory or any motion to strike along the lines?

[00:27:05] Speaker 00:
No your honor and they UTC did not move did they did not take Dr. Abari's declaration after he submitted the reply uh... they did not ask to submit a surreply which under

[00:27:16] Speaker 00:
the rules they could have done in which this court has authorized under Belden.

[00:27:24] Speaker 01:
Is there evidence that can be submitted with the so-reply?

[00:27:31] Speaker 00:
I don't believe there's any one way or the other that says they could not submit a so-reply declaration if they had so wanted.

[00:27:39] Speaker 00:
The fact is they made a strategic choice

[00:27:43] Speaker 00:
Stock as Mr.. Vilek said they made the strategic choice by putting a footnote in their patent owner response that says We're not addressing Inherency We believe we're just not going to address it, but that isn't their choice to make it's up to the it's up to the board to decide What's in or in or out with respect to the the actual trial and so here and the board was fully within its?

[00:28:09] Speaker 00:
Rights to rely on dr.. Avari's reply evidence and then particularly when there there was no rebuttal to it There are two Affirmed there are two alternative grounds that this court can affirm on and I wanted to touch on one is the claim construction We don't believe that the court's claim construction is correct the specification says specifically that you're supposed to make that you measure the

[00:28:36] Speaker 00:
pressure at the outlet of the low pressure turbine prior to the exhaust nozzle.

[00:28:41] Speaker 00:
That's, um, column four, lines 24 to 27.

[00:28:44] Speaker 00:
And it was undisputed that the tech is before the exhaust nozzle.

[00:28:53] Speaker 00:
Even UTC said in its patent owner response at appendix 2214 that the turbine exhaust case is prior to the exhaust nozzle.

[00:29:02] Speaker 00:
So it was perfectly reasonable.

[00:29:05] Speaker 00:
to construe the claims under a broadest reasonable interpretation such that you can measure the outlet pressure either at the tech or before the tech.

[00:29:16] Speaker 00:
And the board's construction was unnecessarily narrow because it specifically excluded the tech.

[00:29:22] Speaker 00:
If this court reverses that claim construction, then it doesn't even need to get into the issues of inherency or express because there's no dispute that if the tech is excluded,

[00:29:34] Speaker 00:
Wendis specifically expressly discloses a pressure ratio of 14.4.

[00:29:38] Speaker 00:
The last point is that the second ground is that we did submit evidence in the reply that they moved to strike that expansion ratio is the same as pressure ratio, and Wendis discloses an expansion ratio of 12.71, which is excluding the tech.

[00:29:58] Speaker 00:
The board did not rule on their motion to strike,

[00:30:02] Speaker 00:
We cited the exact page of WENDIS with respect to the low-pressure turbine for that point in our petition and therefore the board was within its rights to rely on that under this court's decision and on evasive.

[00:30:19] Speaker 00:
Any questions?

[00:30:20] Speaker 00:
Thank you, Your Honors.

[00:30:24] Speaker 02:
Mr. President, you've got three minutes.

[00:30:26] Speaker 02:
Thank you.

[00:30:28] Speaker 02:
First, and I'll try to go in order of some of the questions to GE's counsel.

[00:30:34] Speaker 02:
First, there was no definitive statement from Dr. Abari that meets the Inherency Standard.

[00:30:43] Speaker 02:
He didn't say there's no engine out there.

[00:30:46] Speaker 02:
I've looked at all the engines, and there's no engine out there that would have such a pressure drop across the TAC.

[00:30:55] Speaker 02:
decision the board render is based on inherency.

[00:30:59] Speaker 02:
There's not substantial evidence to support that because he simply said he wasn't aware of such an engine.

[00:31:06] Speaker 02:
I want to then go to, Judge, you asked GE Council specifically whether we had raised this claim construction issue at the outset, and I'm at the joint appendix 2136.

[00:31:24] Speaker 02:
uh, which is the institution decision and it states patent owner asserts that petitioner incorrectly measures the low pressure turbine exit pressure at the turbine exit case rather than at the outlet of the low pressure turbine.

[00:31:42] Speaker 02:
So we did raise this in the POPR.

[00:31:46] Speaker 02:
We did join the issue at that point that this is a claim construction case and there is no

[00:31:54] Speaker 02:
pressure at the outlet of Wendis Figure 4.

[00:31:57] Speaker 02:
The board instituted, because they said, Dr. Abari says, the outlet of the low pressure turbine is after the turbine exit case.

[00:32:08] Speaker 02:
And so then moving forward, I want to go to GE Council talked about unrebutted evidence.

[00:32:16] Speaker 02:
Well, we had our chance in the POR

[00:32:19] Speaker 02:
to submit our evidence.

[00:32:21] Speaker 02:
And when we put in that footnote that they weren't proceeding under inherency and obviousness, when GE came back with Dr. Abari's statements, that's evidence.

[00:32:31] Speaker 02:
But the question is, where does that evidence go to?

[00:32:33] Speaker 02:
Under what theory are you proceeding?

[00:32:36] Speaker 02:
And at that point, we had no notice whatsoever they were proceeding under an inherency theory.

[00:32:42] Speaker 02:
They cited obviousness cases.

[00:32:45] Speaker 02:
And there were no questions whatsoever from the board

[00:32:48] Speaker 02:
that this was an inherency case at oral argument.

[00:32:54] Speaker 02:
We think, if you look at the final written decision, that what the board did is there was a gap in Wendy's figure four, and they cited an inherency cases because they were filling that gap.

[00:33:07] Speaker 02:
I want to very briefly touch on the two points, the alternative grounds that GE's counsel raised.

[00:33:13] Speaker 02:
He mentioned claim construction.

[00:33:15] Speaker 02:
We believe it's quite clear on the spec that it should be measured

[00:33:18] Speaker 02:
at the outlet.

[00:33:19] Speaker 02:
And then he mentioned the expansion ratio, which, again, is something they could have raised in the petition.

[00:33:27] Speaker 02:
At Joint Appendix 4421, we actually had a demonstrative where the specific 12.72 they're relying on, they cited that sentence four times in the petition in Dr. Abbari's declaration.

[00:33:42] Speaker 02:
And they specifically deleted from that sentence

[00:33:46] Speaker 02:
in the opening papers, the 12.72 expansion ratio.

[00:33:50] Speaker 02:
So when they put that in the reply, we moved to strike and believe it should be stricken.

[00:33:56] Speaker 02:
The board didn't consider it for purposes of this decision.

[00:34:00] Speaker 02:
You want to conclude?

[00:34:02] Speaker 02:
I'm done, Your Honor.

[00:34:03] Speaker 02:
Thank you.

[00:34:03] Speaker 02:
Thank you very much.

[00:34:05] Speaker 03:
Thank the party for those arguments.