[00:00:05] Speaker 03:
Is the council for UVA ready to proceed?

[00:00:24] Speaker 01:
May it please the court, Joe DiPompo for the University of Virginia Pat Foundation.

[00:00:29] Speaker 01:
Your honors, the board erred in finding the echo time ratio and the flip angle ratio as lacking support in the written description support in the 182 application, because it thought that the Purdue Pharma case required the 182 application to show that those ratios are important.

[00:00:44] Speaker 01:
The test, of course, for written description is whether the inventors had possession of the ratios.

[00:00:49] Speaker 03:
How were GE's invocations of Purdue Pharma not directly responsive to your arguments in your response brace under 37 CFR 42?

[00:00:59] Speaker 03:
22B.

[00:00:59] Speaker 01:
Your Honor, in terms of why it was untimely?

[00:01:04] Speaker 03:
Yeah, you argued that it was improper to raise Purdue Pharma.

[00:01:09] Speaker 03:
You said that they had violated the PTAB.

[00:01:16] Speaker 03:
It violated the APA.

[00:01:17] Speaker 01:
We did, Your Honor.

[00:01:19] Speaker 01:
And the reason is because 37 CFR 42.22A2 requires a petition to set forth a full statement of the reasons for the relief requested

[00:01:29] Speaker 03:
But their citation was in response to your, was in reply to your response.

[00:01:35] Speaker 01:
Well, it really wasn't, Your Honor, because the rationale used by the board was because the Patent Foundation demonstrated in its response that a skilled artist can derive the full range of both of these ratios, then it was time to respond.

[00:01:50] Speaker 03:
You cited Vascaff, right?

[00:01:53] Speaker 03:
We did, Your Honor.

[00:01:53] Speaker 03:
And you argued, quote, the Federal Circuit has held that the ranges found in applicants' claims

[00:01:59] Speaker 03:
need not correspond exactly to those disclosed.

[00:02:02] Speaker 03:
And the test is whether a person of skill could derive the claim range from the disclosure.

[00:02:06] Speaker 01:
That's right.

[00:02:07] Speaker 03:
So they came back with Purdue Pharma.

[00:02:09] Speaker 01:
No, Your Honor.

[00:02:10] Speaker 01:
Responsive to that would have been, no, a proceeding cannot derive the range from the disclosure.

[00:02:16] Speaker 01:
Because, for example, it requires undue experimentation.

[00:02:19] Speaker 03:
Wasn't Purdue a similar situation?

[00:02:21] Speaker 01:
Not at all, Your Honors.

[00:02:22] Speaker 01:
Not at all.

[00:02:23] Speaker 01:
Your Honors, it was totally different.

[00:02:25] Speaker 01:
This case is dangerous because the board

[00:02:28] Speaker 01:
is imposed a test of importance that's simply not, it's not part of the written description test.

[00:02:33] Speaker 01:
The board in both final written decisions pointed out that the echo time ratio, there's a value of an effective echo time of 328 milliseconds for the claimed pulse sequence and 80 milliseconds for the 180 degree flip angle pulse sequence.

[00:02:46] Speaker 01:
That yields a ratio of 4.1.

[00:02:48] Speaker 01:
Same with the flip angle ratio.

[00:02:50] Speaker 01:
The board acknowledged that there is a disclosure in figure three

[00:02:54] Speaker 01:
of flip angles that decrease from 90 degrees to 20 degrees.

[00:02:57] Speaker 01:
That's a 22% drop.

[00:03:00] Speaker 01:
That's within the range of no more than at least approximately 1 third.

[00:03:04] Speaker 02:
But is there any disclosure of any significance to these ranges?

[00:03:09] Speaker 01:
Your Honor, that's where they went wrong.

[00:03:11] Speaker 02:
For these ratios.

[00:03:12] Speaker 01:
The question is whether a person of ordinary skill in the art would recognize that these limitations are part of the invention.

[00:03:21] Speaker 01:
There's no importance requirement.

[00:03:23] Speaker 02:
Well, a person of skill in the art could certainly do the math and come up with the ratio, but what's the significance of the ratio and what support do you have for claiming a range of that ratio?

[00:03:43] Speaker 01:
GE has never addressed, the board never addressed, GE did not address the most profound issue in this case, and that is

[00:03:50] Speaker 01:
The echo time ratio has two components.

[00:03:52] Speaker 01:
It requires that the effective echo time of the claim sequence be at least twice either the echo time or effective echo time of 180 degree flip angle pulse sequence.

[00:04:01] Speaker 01:
And of course, the board was hung up.

[00:04:03] Speaker 01:
We don't emphasize those as being part of your invention.

[00:04:06] Speaker 01:
But those limitations also require that the claim sequences produce images having substantially the same T2 weighted contrast at that ratio.

[00:04:17] Speaker 01:
The 182 application demonstrates, it shows images obtained using the 180 degree flip angle pulse sequence at the 80 millisecond echo time.

[00:04:26] Speaker 01:
And side by side it shows images at the 328 millisecond effective echo time of the claim pulse sequence.

[00:04:32] Speaker 01:
And the 182 application compares those two and says they have substantially the same T2 weighted contrast.

[00:04:41] Speaker 01:
That's the comparison.

[00:04:42] Speaker 01:
The effective echo times of the two pulse sequences.

[00:04:46] Speaker 03:
We're in the 182 application.

[00:04:48] Speaker 03:
Is the effective echo time of the allegedly invented method compared or related to that of the turbo spin echo or fast spin echo RF pulse sequence?

[00:05:01] Speaker 01:
It's not, Your Honors, but the board treated those limitations as the same.

[00:05:04] Speaker 01:
And I can point you to the citation.

[00:05:07] Speaker 01:
What the board concluded, what is compared, it's against a conventional spin echo pulse sequence.

[00:05:12] Speaker 01:
Conventional spin echo pulse sequences all use 180 degree flip angle, use flip 180 degree flip angles.

[00:05:19] Speaker 01:
Turbo spin echo and fast spin echo sequences, some of the claims require comparison to turbo spin echo, fast spin echo sequences with 180 degrees.

[00:05:27] Speaker 01:
The board pointed out both experts testified that those limitations are the same because when the effective echo time of a turbo spin echo sequence equals the echo time of a conventional

[00:05:40] Speaker 01:
They produce images having substantially the same contrast.

[00:05:43] Speaker 01:
The board recognized this, and they said we need to treat... Where are you reading?

[00:05:48] Speaker 01:
It is... I have it here, Your Honor, and they treated those... They said those should be... What's the appendix site?

[00:06:04] Speaker 01:
Yeah, I'm going to... Just so we can follow you.

[00:06:15] Speaker 01:
It's in the final written decision for the 357.

[00:06:21] Speaker 01:
Oh, here it is.

[00:06:31] Speaker 01:
It is at 19.

[00:06:44] Speaker 02:
So they treated them the same.

[00:06:46] Speaker 02:
So is there something in particular on that page that you were referring to?

[00:06:53] Speaker 02:
I just want to make sure I'm following your argument.

[00:06:55] Speaker 01:
Yes, Your Honor.

[00:06:56] Speaker 01:
On App X 19 in the first paragraph, fifth line down, both Dr. Pelk and Dr. Hennig testified that these limitations may be considered essentially the same.

[00:07:05] Speaker 01:
So they call it the echo time ratio limitation.

[00:07:09] Speaker 01:
And it cites where in the record paragraph 90 of Dr. Pelk's declaration

[00:07:15] Speaker 01:
In paragraph 47 through 48 of Dr. Henning's declarations, both experts testified those limitations can be treated the same.

[00:07:24] Speaker 03:
OK.

[00:07:24] Speaker 03:
You argue that the effective echo time should be assumed to be one half of the echo train duration.

[00:07:31] Speaker 03:
And the disclosure in the 182 application regarding lengthening echo train duration should be a proxy for the echo time ratio because, quote, the effective echo time at which the claimed pulse sequence generates images

[00:07:45] Speaker 03:
having a given contrast increases as the echo train duration increases.

[00:07:51] Speaker 03:
Where is that in the disclosure in the 182 application?

[00:07:55] Speaker 01:
Your honor, we didn't argue that it necessarily has to be one half.

[00:07:59] Speaker 01:
Now, I will say in the 182 application at APEX 672, it explains that the primary objective of the claim pulse sequence is to extend the echo train duration

[00:08:14] Speaker 01:
while obtaining images that have substantially the same T2 weighted contrast of 180 degree flip angle pulse sequence.

[00:08:37] Speaker 03:
In your preliminary response before the PTAB, you argued that the definition of effective echo time in the specification

[00:08:44] Speaker 03:
is not tied to a specific fraction of the echo train duration.

[00:08:49] Speaker 03:
Aren't you stopped from arguing a different position now?

[00:08:54] Speaker 01:
No, no, no, not at all, Your Honor.

[00:08:56] Speaker 01:
The effective echo time is merely a point in the echo train duration that will produce a certain tituated contrast for an image.

[00:09:04] Speaker 01:
It can be set anywhere.

[00:09:05] Speaker 01:
The experts testify that it can be set anywhere.

[00:09:08] Speaker 01:
That's why there's this misunderstanding.

[00:09:10] Speaker 01:
Again, it's never been addressed by GE.

[00:09:12] Speaker 01:
And even in their appeal brief, and the board certainly didn't address it, it is plainly part of the invention to have the echo train ratio because there are two aspects.

[00:09:21] Speaker 01:
You don't just look at whether 3 is 28 as compared to 80.

[00:09:26] Speaker 01:
You have to look at the other aspect which requires the images produced by those post sequences have to produce images having substantially the same T2 weighted contrast.

[00:09:36] Speaker 01:
And they are compared there.

[00:09:37] Speaker 03:
How much work would a person's skill have to do

[00:09:41] Speaker 03:
to derive the echo time ratio limitation from the 182 applications written in the description?

[00:09:47] Speaker 01:
The board never got there, Your Honor.

[00:09:49] Speaker 01:
Very simple.

[00:09:50] Speaker 01:
The board never got there because they concluded that under Purdue Pharma, since you can't glean the ratios, then whether you can derive the range is immaterial.

[00:09:58] Speaker 01:
So the board never got to whether you can derive the range.

[00:10:00] Speaker 01:
However, both experts said it's a very simple matter.

[00:10:04] Speaker 01:
The specification tells you you can adjust the various parameters, the echo train length, for example,

[00:10:09] Speaker 01:
By just increasing it or decreasing it, you can readily derive the full range of that limitation.

[00:10:14] Speaker 01:
But again, the board didn't get there.

[00:10:16] Speaker 01:
They got hung up on the ratios.

[00:10:18] Speaker 01:
And your honors, this is an important case because we point out in this respect, we point out there is the motion point case which expressly tells us that Purdue Pharma does not stand for the idea that the ratio must be important or relevant.

[00:10:34] Speaker 01:
And here's why the comparison to Purdue Pharma is wrong, your honors.

[00:10:38] Speaker 01:
In Purdue Pharma, the limitation was Cmax over C24 ratio.

[00:10:43] Speaker 01:
There was a plasma concentration ratio.

[00:10:46] Speaker 01:
It had to be greater than twice.

[00:10:49] Speaker 01:
On page 1327 of the Purdue Pharma opinion, the court stresses Cmax over C24 is not part of your invention.

[00:10:56] Speaker 01:
It's not an aspect of your invention.

[00:10:58] Speaker 01:
It has nothing to do with your invention.

[00:11:00] Speaker 01:
The language on page 1327 of Purdue Pharma

[00:11:04] Speaker 01:
It says the inventive formulations are characterized by the fact that you rapidly increase the C max.

[00:11:10] Speaker 01:
C max to C 24?

[00:11:12] Speaker 01:
There's nothing in the spec that tells us it's part of your invention.

[00:11:16] Speaker 01:
Now there were other issues too.

[00:11:17] Speaker 01:
There were examples of C max over C 24 that were greater than twice, which the limitation required in some where it was less than twice.

[00:11:24] Speaker 01:
But the problem, what's happened here, Your Honor, the board took that language saying we don't emphasize if there's no emphasis.

[00:11:31] Speaker 01:
They've created this importance requirement

[00:11:33] Speaker 01:
And it's a dangerous case.

[00:11:35] Speaker 01:
If suddenly there is now an importance requirement for the written description test, already the motion point, the board and the motion point case had to address it.

[00:11:46] Speaker 01:
And that's what the board has done here.

[00:11:48] Speaker 01:
They didn't look at whether a skilled artist thinks it's part of the ratio.

[00:11:52] Speaker 01:
They just said, oh, it's not emphasized.

[00:11:54] Speaker 01:
It's not important, 328 and 80.

[00:11:55] Speaker 01:
Nobody tells me to compare those two.

[00:11:58] Speaker 01:
Would it tell you to compare those two if you just look at the other component?

[00:12:02] Speaker 01:
of that limitation, which says, again, that the T2 weighted contrast in images produced by those pulse sequences have to be substantially the same.

[00:12:13] Speaker 01:
And the specification puts images side by side of the 328 millisecond effective echo time for the claimed pulse sequence and the 80 millisecond echo time for the 180 degree flip angle pulse sequence.

[00:12:26] Speaker 01:
It says compare them.

[00:12:28] Speaker 01:
They're substantially the same.

[00:12:29] Speaker 01:
So it's plainly part of the invention.

[00:12:31] Speaker 01:
And that's what the board missed.

[00:12:33] Speaker 01:
GE has never addressed it in their pleadings.

[00:12:36] Speaker 03:
Same with the... You're in your rebuttal time, just so you know.

[00:12:39] Speaker 01:
Okay.

[00:12:39] Speaker 01:
You can keep going.

[00:12:41] Speaker 01:
Just a quick point on the flip angle.

[00:12:42] Speaker 01:
Okay.

[00:12:44] Speaker 01:
The flip angle ratio.

[00:12:46] Speaker 01:
This 182 application makes clear they're trying to extend the echo train duration.

[00:12:51] Speaker 01:
By doing that, you get benefits.

[00:12:53] Speaker 01:
Less exposure to a patient, radiation exposure, shorter time for the MR exam.

[00:12:58] Speaker 01:
while at the same time producing images having substantially the same T2 weighted contrast is a 180 degree flip, the prior 180 degree flip angle pulse sequences.

[00:13:06] Speaker 01:
Both experts testified that to obtain the longer duration, you have to drop the flip angles significantly and substantially at the beginning of the echo train.

[00:13:17] Speaker 01:
That's what the flip angle ratio requires.

[00:13:21] Speaker 01:
A drop of no more than at least approximately one third.

[00:13:23] Speaker 01:
So you've got to drop it down significantly.

[00:13:24] Speaker 01:
There's disclosure of a drop from 90 to 20.

[00:13:27] Speaker 01:
Dr. Pell, GE's expert, testified if you reduce the flip angles early, you will have a longer echo train.

[00:13:34] Speaker 01:
So he acknowledged that.

[00:13:36] Speaker 01:
Dr. Henning explained you have to drop the flip angles early because that allows you to preserve magnetization, which will allow you to have a longer echo train duration.

[00:13:45] Speaker 01:
It's plainly part of the invention.

[00:13:46] Speaker 01:
The flip angle ratio of dropping flip angles to a value of no more than at least 1 third is also part of the invention.

[00:13:53] Speaker 01:
The board didn't address that.

[00:13:54] Speaker 01:
They just said it's not emphasized.

[00:13:56] Speaker 01:
And that is not the test under Purdue Pharma.

[00:13:58] Speaker 01:
They confuse Purdue Pharma as requiring this rule that now there's an emphasis or importance requirement.

[00:14:06] Speaker 01:
And that's dangerous, because already a different board has encountered that issue and said, wait a minute.

[00:14:12] Speaker 01:
That's not part of the written description test.

[00:14:15] Speaker 03:
We have all time left.

[00:14:17] Speaker 03:
I didn't mention to everyone, thank you for accommodating us on our rescheduling.

[00:14:23] Speaker 03:
Thank you.

[00:14:24] Speaker 03:
Absolutely.

[00:14:35] Speaker 00:
Good afternoon, Your Honors, and I'm David Pollack for General Electric.

[00:14:40] Speaker 00:
May it please the Court.

[00:14:43] Speaker 00:
This Court should affirm the Board's determination of unpatentability, because those well-reasoned decisions of the Board are compelled by this Court's written description of jurisprudence.

[00:14:54] Speaker 00:
As set forth en banc in Ariad, the Board's inquiry was, does the 182 application itself, and I quote... Let me ask you a housekeeping question.

[00:15:03] Speaker 03:
which I started with your brethren.

[00:15:08] Speaker 03:
Why wasn't Purdue, your Purdue Pharma argument, raised in your initial petitions for IPR?

[00:15:15] Speaker 03:
It would have seemed to have fit there.

[00:15:17] Speaker 00:
So a couple practical applications, Your Honor.

[00:15:20] Speaker 00:
First, the IPR petitions had a number of arguments in them, and we couldn't fully flesh out all the arguments at that time.

[00:15:28] Speaker 00:
But that's a practical matter.

[00:15:29] Speaker 00:
But as a much more important matter,

[00:15:32] Speaker 00:
The Purdue Pharma decision didn't become on point and we feel controlling authority until, as you pointed out, the foundation raised its argument, its derivability argument, in its IPR response.

[00:15:46] Speaker 00:
And in GE's reply, IPR reply, we thus raised Purdue Pharma because we thought it was dispositive of that issue.

[00:15:54] Speaker 00:
And in fact, the foundation made exactly this timeliness argument to the board in its request for rehearing.

[00:16:01] Speaker 00:
And the board replied, or the board responded, and said Purdue Pharma was cited to respond directly to arguments made by UVAPF in its Patent Owner Response.

[00:16:12] Speaker 00:
And that's at appendix 8197.

[00:16:13] Speaker 00:
Now, Your Honor, so the decisions of this court, including the Anvankarayet decision, require not only

[00:16:26] Speaker 00:
that the specification clearly allow persons of ordinary skill and the art to recognize the inventor invented what is claimed.

[00:16:32] Speaker 00:
But it also tells us not just what the written description test is, but also importantly, it tells us what the written description test is not.

[00:16:42] Speaker 00:
And it is not an obviousness test.

[00:16:45] Speaker 00:
And it is not an enablement test, which address the derivability argument.

[00:16:50] Speaker 00:
And it is not, as the foundation argues, a derivability test.

[00:16:55] Speaker 00:
In fact, Purdue Pharma says explicitly that derivability is immaterial if the limitation is not disclosed in the priority document.

[00:17:05] Speaker 00:
And finally, as this court has said many times, written description is a question of fact.

[00:17:10] Speaker 00:
And therefore, it's subject to the substantial evidence review.

[00:17:14] Speaker 00:
And let's review that evidence, because counsel for the foundation tends to overlook it.

[00:17:20] Speaker 00:
So starting with the 182 application itself, and that's in Appendix 669 to 687, even a lay examination of the 182 application confirms that the claimed ratios do not appear in HAC-VERBA or otherwise.

[00:17:36] Speaker 00:
All that is present in that application is a mere listing of or diagrams showing a multitude of parameters.

[00:17:44] Speaker 00:
As the board found in its final written decisions and also in denying the foundation's request for rehearing,

[00:17:49] Speaker 00:
there is no comparison of the claim parameters, nor identification of a ratio between them, nor disclosure that the ratios should be calculated.

[00:17:59] Speaker 00:
That should be dispositive here.

[00:18:00] Speaker 00:
And that's at appendix 21, 56, and 8196.

[00:18:03] Speaker 00:
Similarly, none of the claimed ratios of twice, one third, or 15% appears in the application

[00:18:18] Speaker 00:
nor the claimed direction from those missing limits.

[00:18:23] Speaker 00:
Now turning to the expert's interpretation of the application, GE's expert provided evidence that shows an ordinary artisan likewise would not find disclosure of the claimed ratios, the claimed limits, or the claimed directions.

[00:18:36] Speaker 00:
And that's in his expert report at appendix 389 to 397.

[00:18:40] Speaker 00:
The board's final written decisions repeatedly found GE's expert, Dr. Pelk, credible and persuasive.

[00:18:48] Speaker 00:
That appears, I think, five times in the rate of decisions, the appendix at 9, 28, 44, 63, and 64.

[00:18:57] Speaker 00:
And even the foundations expert agrees that for the two effective echo time ratios, as Your Honor pointed out, there was no disclosure at all of an effective echo time ratio for the fast spin echo sequence.

[00:19:09] Speaker 00:
And although GE's experts said that the contrast for the fast spin echo sequence and the spin echo sequence are the same,

[00:19:17] Speaker 00:
They're not the same in the claims.

[00:19:20] Speaker 00:
Disclosure of one does not provide written description for another.

[00:19:25] Speaker 00:
And the foundation's expert also admitted that there is no comparison of a variable effective echo time to the echo time for the spin echo sequence that was disclosed in figure four.

[00:19:37] Speaker 00:
And that appears in appendix 7128 and 7130.

[00:19:41] Speaker 00:
This absence of disclosure and the expert testimony confirming that absence

[00:19:47] Speaker 00:
provide substantial evidence to affirm the board's written decisions.

[00:19:54] Speaker 00:
Now, counsel of the foundation discussed Purdue Pharma.

[00:19:59] Speaker 00:
And he said that Purdue Pharma is totally different and twice described it as dangerous.

[00:20:05] Speaker 00:
But as the board appeared, or as the board repeatedly observed, the facts in the Purdue Pharma case are similar to our facts and underscore my written description is absent here.

[00:20:17] Speaker 00:
Indeed, the similarities are uncanny.

[00:20:19] Speaker 00:
Both Purdue Pharma and the dispute here today involve medical inventions with a multitude of parameters.

[00:20:25] Speaker 00:
Both of them claim ratios that compare two of those many uncompaired parameters.

[00:20:30] Speaker 00:
Both require that the ratio be within a limit.

[00:20:33] Speaker 00:
And in fact, for two of the limits in the effective echo time limits and the Cmax, the C24 limit in Purdue Pharma, that ratio is greater than two.

[00:20:46] Speaker 00:
But neither includes any discussion of two, twice, or being greater than two or twice.

[00:20:52] Speaker 00:
And both of those cases, or both the disclosures, indeed, include statements about the importance of a key feature of the invention.

[00:21:01] Speaker 00:
And it's related to the claim limitations that are missing.

[00:21:04] Speaker 00:
But it is not a key feature, because those claim limitations are not present at all or discussed.

[00:21:11] Speaker 00:
For the purposes of this issue, that's before me.

[00:21:13] Speaker 00:
Spound on that, please.

[00:21:15] Speaker 00:
So in Purdue Pharma, the key limitation was the rapid release of opioid into the bloodstream.

[00:21:27] Speaker 00:
And here in this case, the key disclosure of the invention is extending the echo train duration while maintaining the same contrast.

[00:21:38] Speaker 00:
Now, the echo train duration

[00:21:43] Speaker 00:
and the same contrast certainly are related to the effect of echo time.

[00:21:45] Speaker 00:
The effect of echo time does have some effect on the contrast, but they're not the same.

[00:21:50] Speaker 00:
And Your Honor, that brings up an important issue.

[00:21:53] Speaker 00:
I invite you to turn to the final written decision, because the board there provided a great example of these limitations being different.

[00:22:10] Speaker 00:
Where are you signed?

[00:22:12] Speaker 00:
I'm at Appendix 5, Your Honor.

[00:22:14] Speaker 00:
And it's just a reproduction of Claim 75.

[00:22:16] Speaker 00:
You can turn to the patent itself, but given my eyes, I find the reproduction and the final decision much more convenient.

[00:22:25] Speaker 00:
So at Appendix 5, they list claim, it reproduces Claim 75.

[00:22:31] Speaker 00:
And Councilman of the Foundation talked about extending the echo train duration and maintaining the same contrast as being part of the effective echo time limitation.

[00:22:40] Speaker 00:
They are not.

[00:22:42] Speaker 00:
They're related, but they certainly aren't part of the effective echo time limitation.

[00:22:46] Speaker 00:
And if you look in claim 75, the first wherein clause talks about lengthening the usable echo train duration and obtaining the desired image contrast.

[00:22:55] Speaker 00:
The second wherein clause at the bottom of appendix five talks about a T2 weighted contrast being substantially the same as the turbo spin echo contrast.

[00:23:06] Speaker 00:
Now you have to turn over to the next page, appendix six,

[00:23:10] Speaker 00:
And at the bottom of a separate wherein clause, finally we see the effective echo time being at least twice the effective echo time of the turbo spin echo or fast spin echo sequence.

[00:23:21] Speaker 00:
GE doesn't dispute that extending the echo duration is supported by this specification.

[00:23:28] Speaker 00:
It also doesn't dispute that the desired image contrast, or the image contrast being the same, are supported by this specification.

[00:23:36] Speaker 00:
They are.

[00:23:37] Speaker 00:
But importantly,

[00:23:38] Speaker 00:
The effective echo time ratio, which formed the basis of these claims, is not described anywhere in the 1A2 application.

[00:23:46] Speaker 00:
And therefore, this patent is not entitled to the priority date of the 1A2 application.

[00:23:52] Speaker 00:
And there's no dispute that if it's not entitled to the priority date, it's invalid over an article.

[00:23:57] Speaker 03:
Does the application mention at all the effective echo times of turbo spin echo or fast spin echo of RF pulse sequences?

[00:24:07] Speaker 00:
No, Your Honor, it does not.

[00:24:09] Speaker 00:
For the traditional 180-degree constant flip angle sequence, turbo spin echo sequence, it does not mention the effective echo time of that at all.

[00:24:17] Speaker 00:
It mentions the echo time of a 180-degree spin echo sequence, but the fast spin echo sequence doesn't appear anymore.

[00:24:27] Speaker 03:
Do you have any idea how much, the same question I asked your opposing counsel, how much time it would take to see how much work to derive the echo time ratio limitation?

[00:24:38] Speaker 00:
So at the time, well, first of all, no, I wasn't there in 2000.

[00:24:42] Speaker 00:
Yeah, I'm in the record.

[00:24:45] Speaker 00:
I'm also not a PhD in electrical engineering.

[00:24:48] Speaker 00:
But I don't need to be, because there's evidence in the record of how long that would take.

[00:24:54] Speaker 00:
So the inventor agreed that at the time of the 1A2 application that nobody understood

[00:25:07] Speaker 00:
how the variable flip angle sequence affected contrast.

[00:25:11] Speaker 00:
And he said that that wasn't determined until five to six years later.

[00:25:17] Speaker 00:
I'll have that record site one second.

[00:25:23] Speaker 00:
And there's also an email from the inventor that talks about if one adjusts the parameters of the sequence, and this was from about the time it was developed,

[00:25:36] Speaker 00:
that they were likely to generate bad images.

[00:25:43] Speaker 00:
I apologize.

[00:25:45] Speaker 00:
That citation is Appendix 7460, I believe.

[00:25:51] Speaker 00:
So I don't know how long it would take, but even the inventor himself didn't know how adjusting the flip angles would affect the contrast.

[00:26:01] Speaker 00:
But at least it was important.

[00:26:03] Speaker 00:
That's the enablement test.

[00:26:05] Speaker 00:
That's a different test.

[00:26:09] Speaker 00:
And as Ariad tells us, the written description test polices a different requirement of the patent, the bargain between the public and patentee.

[00:26:24] Speaker 00:
The enablement test is the one that polices the amount of experimentation.

[00:26:29] Speaker 00:
And the written description test is focused on the writing.

[00:26:33] Speaker 00:
It's not focused on what an inventor

[00:26:35] Speaker 00:
what knowledge an inventor brings to the patent.

[00:26:38] Speaker 00:
It's not focused on how long it would take an inventor to go and determine the things that are missing from the specification.

[00:26:46] Speaker 00:
It doesn't care.

[00:26:48] Speaker 00:
The written description test is part of the bargain between the public and the patentee that requires a patentee to set forth what its invention is.

[00:26:59] Speaker 00:
And here, the patentee didn't set that forth regarding the effective echo time ratios or regarding the flip angles

[00:27:05] Speaker 00:
And therefore, the patent is not entitled upon a two-priority date.

[00:27:13] Speaker 00:
Now, Your Honor, I'd like to address one more issue.

[00:27:17] Speaker 00:
Council for the Foundation said that both GE and the board made a profound mistake, that GE didn't address it and the board didn't get it.

[00:27:28] Speaker 00:
And that is the relationship between extending the effective echo time

[00:27:34] Speaker 00:
and the missing limitations.

[00:27:37] Speaker 00:
Well, GE did address it, but more important, the board addressed it in denying rehearing requested by the foundation.

[00:27:49] Speaker 00:
I point you to appendix 8195.

[00:27:53] Speaker 00:
And in response to the foundation's argument that the board overlooked that, what the board responded with was the bottom of 8195

[00:28:04] Speaker 00:
We further concluded the alleged relationship between that key feature, which is extending the effective echo time, and the echo time ratio is not described in the 182 application.

[00:28:16] Speaker 00:
And therefore, it was not sufficient to direct a skilled artisan to the recited echo time ratio limitation.

[00:28:23] Speaker 00:
The board took this on and addressed it squarely.

[00:28:29] Speaker 00:
So in conclusion, your honor,

[00:28:31] Speaker 00:
The purpose of the written description requirement is to notify the public as to the scope of the invention.

[00:28:37] Speaker 00:
This public notice function is important because as Vascath tells us, it prevents an inventor from later overreaching.

[00:28:45] Speaker 00:
And I quote, and pretending that his invention is more than what it really is.

[00:28:51] Speaker 00:
That's what the foundation is doing here.

[00:28:53] Speaker 00:
Here the board determined that the provisional application did not support the over 200 claims that issued 13 years after the one-hit-two application.

[00:29:02] Speaker 00:
To excuse its overreach, the foundation asks this court to apply not the statutory written description test, but a new and unsupported derivability test.

[00:29:12] Speaker 00:
The foundation's derivability test is divorced from the specification and instead fills any gaps in the specification with the knowledge and experiments of an ordinary artisan.

[00:29:23] Speaker 00:
That cannot be correct.

[00:29:24] Speaker 00:
As one of the board's judges observed during the hearing, I can't import, and I quote,

[00:29:31] Speaker 00:
I can't import the entire knowledge of a person of ordinary skill into every single specification.

[00:29:36] Speaker 00:
There would be no written description problems ever if I were to do that.

[00:29:40] Speaker 00:
And that's in appendix 8101.

[00:29:41] Speaker 00:
GE requested this court likewise reject the foundation's expert-based derivability test and enforce the statutory requirement for written description.

[00:29:53] Speaker 00:
GE respectfully requests affirmance of the board's final written decisions.

[00:30:12] Speaker 03:
You've got a little over a minute there.

[00:30:18] Speaker 01:
Thank you, Your Honor.

[00:30:20] Speaker 01:
Your Honor, this is legal air.

[00:30:22] Speaker 01:
This is not a substantial evidence situation.

[00:30:24] Speaker 01:
This is an instance where the board has read Purdue Pharma to graft on an importance requirement.

[00:30:29] Speaker 01:
The board said, acknowledging that the values for these ratios are disclosed, 328 and 80 and 90 and 20, those values are disclosed.

[00:30:38] Speaker 01:
It says they don't emphasize those ratios, ascribe significance to them,

[00:30:42] Speaker 01:
compare the values, or specify any relationship.

[00:30:45] Speaker 01:
That is an importance requirement.

[00:30:47] Speaker 01:
We have a subsequent IPR also with the same limitations.

[00:30:51] Speaker 01:
It's being briefed now.

[00:30:52] Speaker 01:
It's coming up.

[00:30:53] Speaker 01:
The board held those claims unpatentable under Purdue Pharma and specifically said, we read Purdue Pharma to require that the limitation be stated as important.

[00:31:03] Speaker 01:
There is a problem.

[00:31:04] Speaker 01:
That is not what Purdue Pharma stands for.

[00:31:08] Speaker 01:
In Purdue Pharma, they said you didn't emphasize the CMAX C24

[00:31:12] Speaker 01:
ratio is having anything to do with your invention.

[00:31:14] Speaker 01:
Instead, your invention is increasing the speed at which you increase to C max.

[00:31:20] Speaker 01:
It didn't impose an emphasis or importance limitation.

[00:31:24] Speaker 01:
Secondly, on the points that the echo train duration, both experts testify if you increase the duration while trying to maintain the same, I'm out of time, Your Honors.

[00:31:37] Speaker 01:
Thank you.

[00:31:37] Speaker 01:
You can say one last sentence.

[00:31:39] Speaker 01:
Your honor, increasing the duration while maintaining the same T2 weighted contrast of the images of 180 degree flip angle sequence, you necessarily increase the echo time ratio.

[00:31:50] Speaker 01:
Both experts testify to that.

[00:31:53] Speaker 03:
You were under your second sentence there.

[00:31:55] Speaker 01:
Oh, I'm sorry.

[00:31:56] Speaker 01:
I apologize, your honor.

[00:31:58] Speaker 01:
That's fine.

[00:31:58] Speaker 01:
Thank you.

[00:31:59] Speaker 01:
Excellent.

[00:31:59] Speaker 01:
Thank you.