[00:00:02] Speaker 04:
th th th th th th

[00:00:31] Speaker 03:
The next case for argument is 171295.

[00:00:36] Speaker 03:
Hey, stop talking.

[00:00:38] Speaker 04:
We'll decide to do that.

[00:00:41] Speaker 03:
We've got another case.

[00:00:42] Speaker 03:
171295, Wonderland nursery goods versus baby trend.

[00:01:13] Speaker 03:
Wow, I'd say this really is not about you.

[00:01:18] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:01:21] Speaker 00:
We move from health care to child care, I think.

[00:01:27] Speaker 00:
Let me start this morning with what I think is common ground based on the briefing.

[00:01:32] Speaker 00:
And that is that if we're unsuccessful in convincing you today that the board made unreasonable and erroneous claim interpretations,

[00:01:42] Speaker 00:
that at the very least we're entitled to a remand after the decisions in aqua products in this court's panel decision in Bosch with regard to the contingent amended claims.

[00:01:52] Speaker 03:
Are we to assume that if we do not affirm the underlying decision that the amendment issue is concluded?

[00:02:02] Speaker 00:
I think that's right because they are contingent amended claims and they are contingent on us

[00:02:08] Speaker 00:
not being able to prevail because those claims make explicit what we think is already explicit in the claims, and I'll turn to the two claim construction issues here.

[00:02:17] Speaker 00:
Turning to the merits of this appeal, the board in this case adopted two claim constructions that effectively eviscerated the invention in this case, which is a baby crib with a singular insert that can be easily assembled and disassembled.

[00:02:32] Speaker 00:
The board erred with the constructions of fabric member and enclosure member.

[00:02:37] Speaker 00:
The board erred by holding that these members could be mere component parts of an enclosure rather than the enclosure itself.

[00:02:44] Speaker 00:
But the claim language requires a unitary enclosure member because the claims by their expressed terms require that the member, in and of itself, be that which defines the area which contains a child.

[00:02:57] Speaker 00:
That can only be done by a unitary enclosure member.

[00:03:01] Speaker 00:
The point is this.

[00:03:03] Speaker 00:
A single piece of fabric that is only an incomplete part of an enclosure

[00:03:06] Speaker 00:
cannot contain a child, but that is what the claims, the specification, the drawings, particularly Figure 3, and the essential, one of the essential purposes of the invention require of the fabric and enclosure members.

[00:03:21] Speaker 00:
This Court's decisions in NTP, PPC, Proxycon, Abbott Diabetes Care, and so many others make clear that the broadest reasonable interpretation has to be consistent with the claims and consistent with the specification.

[00:03:35] Speaker 03:
What about claim 15, the argument your friend makes, that that suggests that the enclosure member doesn't necessarily include a plurality of side panels?

[00:03:47] Speaker 00:
Well, claim 15 explicitly says an enclosure member including a plurality of side panels contiguously connected to one another along edge portions and surrounding an enclosed space adapted for receiving a baby there is.

[00:04:02] Speaker 00:
It's hard for me to see how claim 15 doesn't make that just as clear as the other claims do, that the enclosure member itself has to be able to define, surround, as the term is used in claim 15, the enclosed space for receiving debate.

[00:04:15] Speaker 03:
No, but I think the argument your friend is making is you wouldn't have had to put that language in claim 15 if it were required or part of the earlier claim.

[00:04:24] Speaker 00:
But I think what you see in these claims, which have been reexamined and reissued before this IPR proceeding,

[00:04:31] Speaker 00:
is that the same concept is defined in the claims in slightly different language.

[00:04:36] Speaker 00:
There are many ways to point out that a baby crib has a unitary insert that has sides that are between the corners and that can be easily inserted and replaced, perhaps for laundering purposes.

[00:04:52] Speaker 00:
Goodness knows, I have young children.

[00:04:53] Speaker 00:
That was a big part of our younger days.

[00:04:57] Speaker 00:
Yes, Judge Newman, I'm sorry.

[00:04:58] Speaker 00:
Did you have a question?

[00:05:02] Speaker 00:
I thought you had a question.

[00:05:04] Speaker 00:
I'm sorry, Your Honor.

[00:05:05] Speaker 00:
So I think claim 15 makes the same point.

[00:05:08] Speaker 00:
And of course, claim 15 is supported by exactly the same specification that discloses a single preferred embodiment.

[00:05:15] Speaker 00:
Now, as I said, the specification itself is equally clear that the fabric member in and of itself is what defines the baby holding enclosure.

[00:05:23] Speaker 00:
You can find that at A280 column one, as well both in the middle and below when the specific

[00:05:30] Speaker 00:
invention is being described.

[00:05:34] Speaker 00:
The construction that the board offered, however, removed the enclosing requirement from these fabric and enclosure members and allowed the Wonderland claims to read on the Payson and Viana references which did not have such unitary structures.

[00:05:46] Speaker 04:
Under your view of the claim construction, would a quilt be a fabric member that met this limitation?

[00:05:55] Speaker 04:
A quilt would

[00:05:56] Speaker 04:
You know what a quilt is, I assume, a patchwork of pieces of fabric sewn together that then constitute a single fabric member.

[00:06:04] Speaker 04:
Would that satisfy, under your version of the construction, this element?

[00:06:10] Speaker 00:
I think as long as the quilt that we're talking about, Judge Moore, is one that meets the other requirements of the claim and is the surrounding portion of the crib.

[00:06:19] Speaker 00:
And it would, of course, have to be unitary and meet at one side as well.

[00:06:24] Speaker 00:
Yes, I mean, obviously, a fabric member, and of course, the later claims in this that call for the side panels talk about side panels that are contiguously connected to one another.

[00:06:34] Speaker 00:
Well, that's just saying, but that's still defining what the member is.

[00:06:38] Speaker 00:
And the member is that single unitary thing that, again, I point you to figure three.

[00:06:42] Speaker 00:
It shows the single thing that comes in and goes back out.

[00:06:46] Speaker 00:
And that makes it really easy for parents who are holding a child in one hand to get the thing out and replace it.

[00:06:54] Speaker 04:
Viano, each which have netting and connectors and things, would not be a single unitary enclosure member or single unitary fabric.

[00:07:04] Speaker 00:
That's right.

[00:07:04] Speaker 00:
Now my friends try to make a lot out of Viano, and in particular the Viano Figure 1, and they try to say that that's teaching a unitary member.

[00:07:12] Speaker 00:
So the argument's been made that even if we're right about the unitary requirement that's set forth in the claims and specification, that Viano discloses a unitary requirement.

[00:07:22] Speaker 00:
Well, that's not right, and I'll tell you why.

[00:07:24] Speaker 00:
For one, they try to read way too much into what a patent drawing is.

[00:07:28] Speaker 00:
This Court's decisions in cases such as Hawkers and Halberstadt have consistently established that patent drawings are of little value because, and I quote from the case, they do not define the precise proportions of the elements.

[00:07:41] Speaker 04:
and may not be relied upon to show particular sizes if the specification is completely silent on the issue.

[00:08:01] Speaker 04:
Do we then need to reach the aqua products thing in an abundance of caution in the event that you need to maybe amend your claims?

[00:08:08] Speaker 04:
Because when you go back, maybe there's some sort of new fact finding about Fiano.

[00:08:13] Speaker 00:
We certainly wouldn't be opposed to you saying to the board, as I think would be clear to them at this point, that their decision putting the burden on us has been vacated and is remanded if necessary.

[00:08:26] Speaker 00:
that's the main point if there is a remand that's necessary but of course we think that what we really have here is something that this court can decide as a matter of law because there's a simple well because there's a simple failure of proof

[00:08:46] Speaker 04:
that they have an alternative argument.

[00:08:49] Speaker 04:
If Bayano discloses a unitary member, even under your construction, that's a question of fact.

[00:08:57] Speaker 04:
How am I going to do that in the first instance on appeal?

[00:09:01] Speaker 00:
Well, Judge Moore, to be clear, my friends say that the board did reach this at page 171 of the appendix.

[00:09:09] Speaker 00:
And we've pointed out in our briefs that the board has offered nothing but

[00:09:13] Speaker 00:
three conclusory sentences which simply don't establish that on the face of Viano, and we also don't have to shrink from the substantial evidence standard if you had to go that far.

[00:09:25] Speaker 00:
If you go to Viano and look at the drawing, you will not see a unitary member, and it's not surprising.

[00:09:30] Speaker 04:
We say if we have to go that far, don't we?

[00:09:33] Speaker 04:
If you live on plane construction, don't we have to go that far?

[00:09:36] Speaker 04:
How can we not go that far?

[00:09:38] Speaker 04:
If they have an alternative argument,

[00:09:40] Speaker 04:
that you still have a problem, even under your construction, how can I avoid reaching that?

[00:09:46] Speaker 00:
Oh no, I don't want you to avoid reaching it.

[00:09:47] Speaker 00:
Quite the contrary, I want you to reach it, and I want you to conclude that there is not substantial evidence to support what my friends on the other side say was an alternative holding by the board at page 171.

[00:09:59] Speaker 03:
An observation with which you disagree.

[00:10:03] Speaker 00:
It is at least an observation, but it is one with which we not only disagree, but we believe that on the face of Viano,

[00:10:10] Speaker 00:
on the face of what the board offered to support that observation, there is not substantial evidence.

[00:10:16] Speaker 00:
And so it would be a failure of proof on their side.

[00:10:19] Speaker 00:
But whether we'd be happy with a remand, we'd be thrilled with a reversal.

[00:10:25] Speaker 04:
Is this the sentence that you're referring to on 171 that would be, Bayano refers to netting as a single continuous member, including an upper edge that attaches that sentence?

[00:10:35] Speaker 00:
Right.

[00:10:36] Speaker 00:
That's exactly right.

[00:10:37] Speaker 00:
And we say that you

[00:10:39] Speaker 00:
And no reasonable person would accept that citation in the Viano patent as supporting the proposition that it is said to support.

[00:10:50] Speaker 00:
If I could turn, unless the Court has further questions about the unitary enclosure, let me turn to the second construction error, which is the upright tubes issue.

[00:11:02] Speaker 00:
This is, of course, limited to claim 15 and the claims that depend on it.

[00:11:09] Speaker 00:
To still this issue to its essence, it is that the board decided that the upright tubes in claim 15 did not have to be structural components of the crib.

[00:11:18] Speaker 00:
And that allowed it to read on the flexible corner pieces that were in the bid well reference.

[00:11:26] Speaker 00:
And all of the claim combinations required bid well for the upright tubes of claim 15.

[00:11:32] Speaker 00:
And the board's decision with regard to upright tubes in claim 15 was incorrect for four reasons.

[00:11:37] Speaker 00:
First of all, claim 15 itself says that the upright tubes define corners of the baby crib.

[00:11:42] Speaker 00:
That's structural.

[00:11:43] Speaker 00:
Second, the specification, again disclosing a single embodiment, says that the bed frame structure includes four upright tubes.

[00:11:51] Speaker 00:
A person of ordinary skill would understand that the upright tubes referenced in claim 15 are the same as the upright tubes in the other claims.

[00:11:58] Speaker 00:
And in fact, that's consistent with this court's decisions that say that the same term across multiple claims should ordinarily be read consistently.

[00:12:07] Speaker 00:
That's Omega versus Raytek.

[00:12:09] Speaker 00:
And the upright tubes of claim 15, the defined corners of the baby crib in whose outer walls define an outer contour shape of the upright tube, are no less structural than the upright tubes of the claims that use the term bed frame structure.

[00:12:21] Speaker 00:
They are all structural, and the board was wrong to rule otherwise with respect to claim 15.

[00:12:26] Speaker 00:
Unless the court has further questions, I'll let my friend stand, and I'll return for rebuttal.

[00:12:30] Speaker 03:
Thank you.

[00:12:31] Speaker 00:
Thank you.

[00:12:41] Speaker 02:
Thank you, Your Honors.

[00:12:42] Speaker 02:
Good morning.

[00:12:43] Speaker 02:
As was pointed out, there are two independent reasons this court can affirm the PTAB's finding of invalidity on all claims.

[00:12:53] Speaker 02:
First is to affirm the factual findings under the substantial evidence standard on the teaching of Viano and the combination of Viano with Payson.

[00:13:03] Speaker 04:
What did the board cite in Viano as meeting this limitation?

[00:13:11] Speaker 04:
So the board adopted... Let's look on page 171 of the board's painting.

[00:13:16] Speaker 04:
That's where it is, right?

[00:13:20] Speaker 02:
Yes, the board adopted our position, citing our briefing, citing our expert.

[00:13:29] Speaker 02:
So looking at

[00:13:36] Speaker 04:
This is only on the issue of whether or not it's continuous, whether or not under their claim of instruction, Waiano discloses a single unitary enclosure member.

[00:13:51] Speaker 02:
So there are three sentences that have been cited in the briefing.

[00:13:57] Speaker 02:
Is the petitioner contends persuasively that Waiano discloses a baby crib?

[00:14:02] Speaker 03:
We're at appendix 171 now, right?

[00:14:07] Speaker 04:
Yes, so it just says, you contend persuasively it discloses a baby crib with a bed frame, including four upright posts and continuous fabric netting

[00:14:21] Speaker 04:
Connected to inner surfaces of tubular post-tennis discussed above and then it says by Anna refers to netting 32 is a single continuous member including an upper edge that attaches at 34 to annular bumper 36.

[00:14:35] Speaker 04:
Yeah, and the site there is exhibit 1020

[00:14:39] Speaker 04:
one it is going to come to like nine four very confusing looking to like nine four it's column two lines nine to fourteen what am i missing so columns two line nine to fourteen

[00:15:22] Speaker 02:
7920.

[00:15:22] Speaker 02:
7920?

[00:15:23] Speaker 04:
Yes.

[00:15:25] Speaker 03:
Just follow me with the razor.

[00:15:33] Speaker 04:
7920.

[00:15:42] Speaker 04:
OK.

[00:15:43] Speaker 04:
So what is it in 9 to 14 that tells me it's a single unitary enclosure?

[00:15:52] Speaker 02:
The PTAB was looking at the use of netting and the use of net, as opposed to a description of net sections, as they have explained in their opinion.

[00:16:06] Speaker 02:
So they did look at figure one, and they also looked at this section of the specification.

[00:16:13] Speaker 02:
They also looked at, in referring to our petition, pages 20, 32 to 40,

[00:16:21] Speaker 02:
They were citing to our expert evidence by Mr. Campbell and his finding.

[00:16:27] Speaker 04:
They weren't citing to your expert evidence.

[00:16:29] Speaker 04:
They don't cite to your expert evidence anywhere in this board opinion.

[00:16:32] Speaker 02:
Well, they do when they are talking about as discussed above and citing to our petition.

[00:16:37] Speaker 04:
When they say do contend persuasively and then they cite your petition, you now say that as a lawyer, I should interpret that as them relying upon your expert declaration.

[00:16:47] Speaker 02:
That was part of our contention, our argument in our petition was using our

[00:16:53] Speaker 02:
expert evidence.

[00:16:54] Speaker 02:
That is the evidence in the case.

[00:16:56] Speaker 04:
I've read about a million board decisions.

[00:16:58] Speaker 04:
And when they intend to rely on an expert, when they intend to go outside the confines of the document and move to the reliance on extrinsic evidence, they have always said so expressly.

[00:17:08] Speaker 04:
I've never seen a case where anyone has ever argued to me that reference to arguments made in someone's brief is the board's express adoption of something said by an expert.

[00:17:18] Speaker 04:
That's really a reach.

[00:17:20] Speaker 02:
Well, this is their decision.

[00:17:23] Speaker 02:
is adopting our argument in their citation to Viano.

[00:17:29] Speaker 02:
The other evidence that is of record can be used by this court, and that does include the Campbell Declaration.

[00:17:36] Speaker 02:
And so the evidence that was available was the Campbell declaration.

[00:17:40] Speaker 04:
So if I view the Campbell declaration as having been relied upon by the board as a basis for making this fact finding, you're telling me I can nonetheless affirm this fact finding by looking at that additional evidence that was in front of them?

[00:17:53] Speaker 02:
I'm sorry.

[00:17:54] Speaker 02:
I didn't catch the first part.

[00:17:56] Speaker 04:
If I don't interpret this opinion as relying upon the Campbell declaration, are you saying I, at the appellate court, can nonetheless do that?

[00:18:04] Speaker 02:
Can still affirm, yes.

[00:18:05] Speaker 04:
On that basis.

[00:18:06] Speaker 03:
Is the citation in the middle of the paragraph that you were referring to on Appendix 171, it cites Petition 20 and then pages 32 to 40.

[00:18:17] Speaker 03:
Is that where you're saying the petitioner itself relied on the expert testimony?

[00:18:22] Speaker 03:
Is that what we're talking about?

[00:18:23] Speaker 02:
Yes.

[00:18:24] Speaker 02:
Yes.

[00:18:24] Speaker 02:
And then beyond relying on our arguments, they went beyond that in looking at Viano.

[00:18:35] Speaker 02:
looking at the use of net and netting and describing how it is attached, the same all the way around, as well as what it is that you see in Figure 1.

[00:18:47] Speaker 02:
Now, the other side of the evidence here is that this argument that has become the critical factual dispute in this appeal, the only basis that Wonderland has for raising this issue on appeal

[00:19:04] Speaker 02:
is a single sentence that Wonderland provided in its patent owner response.

[00:19:14] Speaker 02:
Let me read that sentence.

[00:19:16] Speaker 02:
Wonderland said, it is not clear from anything in Viano that the Netting 32 is even a continuous member.

[00:19:25] Speaker 02:
That is the only thing that existed in the record prior to the hearing at the PTAB

[00:19:32] Speaker 02:
that they were contesting anything about Bayano.

[00:19:35] Speaker 02:
No details at all.

[00:19:37] Speaker 02:
No discussion of Figure 1.

[00:19:39] Speaker 02:
No discussion of the specification.

[00:19:41] Speaker 02:
That is it.

[00:19:44] Speaker 02:
So as we pointed out, we think that this issue has been waived by them, or at best for them, they have a mere skeletal argument that has no detail.

[00:19:56] Speaker 02:
And the discussion by the P tab in the decision

[00:20:00] Speaker 02:
is more than commensurate with what it is that Wonderland raised in the record.

[00:20:08] Speaker 02:
At the oral argument, you have the opinions from the majority.

[00:20:13] Speaker 02:
They addressed this question with Wonderland's counsel, looking at Figure 1.

[00:20:22] Speaker 02:
And we have in the record the transcript of looking at Figure 1 and saying, yes, you can see the lines touching.

[00:20:30] Speaker 02:
you can see that this is a continuous number.

[00:20:33] Speaker 02:
So under the substantial evidence standard, you have these judges making the factual finding, looking at Figure 1.

[00:20:43] Speaker 02:
They have the Campbell Declaration, whether you include that as a basis of their decision or not.

[00:20:48] Speaker 02:
And they went beyond that, and they looked at the specification of Ayano, looked at the discussion of the net, of the netting, that that is described as a singular member, and found

[00:21:00] Speaker 02:
a factual finding here that it is a unitary continuous member.

[00:21:05] Speaker 02:
And even under Wonderland's claim construction, that factual finding, once affirmed under the substantial evidence standard, ends this appeal, because then there is no question that all the claims are invalid under the combination of Viano and Payson.

[00:21:25] Speaker 02:
Now, I will add, they do have... I just had a curiosity.

[00:21:29] Speaker 04:
One of the arguments they make is that when you look at figure one in Viano, the mesh lines don't line up.

[00:21:36] Speaker 04:
It makes it less clear to me that it's a single continuous piece of netting when at the corners you don't have mesh that lines up with each other in the figure.

[00:21:48] Speaker 04:
What do we make of that?

[00:21:50] Speaker 02:
So when you look at Viano, it is not a single piece of fabric that you started out and it was, you know,

[00:21:58] Speaker 02:
the length of four side panels long that you wrapped all the way around.

[00:22:04] Speaker 02:
So it would be four side panels, and those four side panels are connected to each other at their edges.

[00:22:13] Speaker 02:
You can see, as you look at Figure 1, and this is the factual finding.

[00:22:16] Speaker 02:
This is not a finding that this panel, in all due respect, can reweigh under the substantial evidence standard.

[00:22:25] Speaker 02:
the majority looked at this and found that those lines, even though they were irregular-shaped coming in, they were still crossing over each other, showing that those side panels were... Where did they find that?

[00:22:41] Speaker 02:
They addressed that during the oral argument, because the first... Wait, is it in the opinion?

[00:22:46] Speaker 02:
Because I didn't see it.

[00:22:46] Speaker 04:
It is not in the opinion, but the first time that issue... So am I supposed to accept something that you represent to me from an oral argument as a board fact-finding?

[00:22:56] Speaker 02:
My point is that before the oral argument, the only thing that was raised by Wonderland, what it is, the only thing that the PTAP panel had to address based on the record was one sentence from Wonderland.

[00:23:10] Speaker 02:
It is not clear from anything in Viano that the netting 32 is even a continuous member.

[00:23:15] Speaker 04:
I don't know why that's not enough.

[00:23:17] Speaker 02:
But then what is the level?

[00:23:20] Speaker 04:
It's their obligation to say what about the prior art references is, or what about the claims is lacking in the prior art references?

[00:23:27] Speaker 04:
And they're telling you, here's our claim construction, and this is what's lacking in Bayano.

[00:23:31] Speaker 04:
That's one of the things lacking.

[00:23:32] Speaker 04:
They alleged other things as well.

[00:23:34] Speaker 04:
But I don't know what more you want.

[00:23:38] Speaker 02:
To put the PTAB panel on notice of addressing specific arguments.

[00:23:45] Speaker 04:
I don't see how the PTAB addressed this issue.

[00:23:57] Speaker 04:
I'm finding it really hard to understand how this is a single piece enclosure when the lines don't match up in the picture.

[00:24:07] Speaker 02:
So the lines don't match up because they're separate side panels, but the lines do meet at

[00:24:13] Speaker 02:
at that back post.

[00:24:14] Speaker 02:
You can see those lines meeting.

[00:24:16] Speaker 02:
And that, once again, is a factual.

[00:24:17] Speaker 04:
Again, the PTO didn't say that, in its opinion.

[00:24:20] Speaker 02:
Well, the only time they were specifically, the only time that specific issue was raised.

[00:24:27] Speaker 04:
The argument doesn't make any sense to me.

[00:24:29] Speaker 02:
I'm sorry?

[00:24:29] Speaker 04:
Not only did they not say it, but the argument doesn't make any sense to me that the lines line up.

[00:24:34] Speaker 04:
No, they don't.

[00:24:34] Speaker 04:
There are lots of places where they don't line up.

[00:24:36] Speaker 04:
I can look at the figure.

[00:24:37] Speaker 04:
This is not really complicated.

[00:24:39] Speaker 04:
I mean, there's lots of places where the lines don't line up.

[00:24:43] Speaker 04:
I don't understand.

[00:24:44] Speaker 02:
But they line up at several places going down there.

[00:24:47] Speaker 04:
They line up in some places, but it seems to me a fact-finding of that nature would not be supported by substantial evidence based on Figure 1.

[00:24:53] Speaker 04:
So unless you've got something else, I don't see how that PTO could reach that fact-finding based on that argument.

[00:25:01] Speaker 02:
Well, they reached it, and they had support.

[00:25:03] Speaker 02:
No, they didn't.

[00:25:05] Speaker 02:
Well, they did find that it was unitary.

[00:25:07] Speaker 02:
And they have, in their opinion, adopting our arguments

[00:25:11] Speaker 02:
citing to the petition where we were the only side that had expert testimony on what a person of ordinary skill in the art, how a person of ordinary skill in the art would view Viano.

[00:25:25] Speaker 02:
Wonderland had a lengthy, robust expert report, but did not have its expert opine on this issue of looking at Viano and making a determination whether it was continuous.

[00:25:37] Speaker 02:
They were completely silent on that.

[00:25:39] Speaker 02:
So the only evidence that exists in addition to Viano is the expert report.

[00:25:45] Speaker 04:
I'm really confused.

[00:25:49] Speaker 04:
I mean this is not complex technology.

[00:25:53] Speaker 04:
What in the world could your expert possibly have said about Viano when you've got two pieces that don't line up to nonetheless convince the world that they do?

[00:26:02] Speaker 04:
I mean, that sounds like a bought and paid for testimony to me, if that's what he said.

[00:26:07] Speaker 04:
I don't understand what is technical about this that would require an expert and would require, and that's probably why the PTA doesn't cite any in this opinion, because you don't need to go outside

[00:26:21] Speaker 02:
Well, and you have two PTAB judges who also found the same thing looking at it.

[00:26:27] Speaker 02:
And their thoughts, while it wasn't in the opinion, is clearly stated in the transcript, because the first time they were faced with this issue by Wonderland was during the oral argument.

[00:26:39] Speaker 02:
So there's a commensurate piece to this of Wonderland raised this at a high issue of is not clear from anything in Viano that the netting is even a continuous member.

[00:26:50] Speaker 02:
Addressing that statement, that is what the PTAB did.

[00:26:52] Speaker 02:
It adopted our arguments, and it went further, and it looked at the specification, and it talked about the net and netting being used as singular as opposed to plural members.

[00:27:03] Speaker 02:
And for example, in the OutDry case that issued after the briefing in this case, you have adoption of our arguments, you have citation to specific evidence, and you have a discussion

[00:27:19] Speaker 02:
of that evidence.

[00:27:20] Speaker 02:
And those are factual findings.

[00:27:23] Speaker 02:
And you have two PTAB judges.

[00:27:25] Speaker 02:
So you have reasonable minds who have just looked at this and made the factual determination on all of that that Viano has a unitary member.

[00:27:36] Speaker 02:
And with that factual finding, all of the claims are invalid.

[00:27:41] Speaker 04:
that their claim construction is satisfied if Biano has four separate side panels, unlike a quilt.

[00:27:51] Speaker 04:
That's why I asked him my quilt example.

[00:27:52] Speaker 04:
A quilt where lots of little pieces are strung together and then it goes all the way around.

[00:27:56] Speaker 04:
Is it your view that their claim construction would be satisfied by four separate side panels that each attach independently to the posts?

[00:28:07] Speaker 04:
but aren't something that could be taken off as a single unitary piece of fabric, for example.

[00:28:14] Speaker 02:
Not taken off as a single unitary... Or put on as a single unitary piece.

[00:28:17] Speaker 04:
Is it your view that four side walls, which just each attach to the post,

[00:28:22] Speaker 04:
meet their claim construction, because I don't think it does under their claim construction.

[00:28:26] Speaker 02:
No, no, not under their claim construction or what the PTAB panel was looking at.

[00:28:31] Speaker 04:
But isn't that your view of Ayano?

[00:28:33] Speaker 04:
I thought your view of Ayano was they meet at the posts and that each side panel is connected to the post.

[00:28:39] Speaker 02:
Each side panel is connected to each other because you see those lines crossing each other based on the use of net and netting being singular are the factual findings made by the PTAB and then in the combination

[00:28:52] Speaker 02:
The question then in Viano is there is no disclosure of how it's then attached to the vertical post.

[00:28:57] Speaker 02:
And so that, that is what really, that's what a lot of the argument was about at the PTAB and that is passed over here for the most part is then how do you attach that?

[00:29:07] Speaker 02:
Because Viano is silent and Payson provides that well-known catered connection and a person of ordinary skill in the art would

[00:29:18] Speaker 02:
And there are factual findings on this, on why it is that in making that combination, the person of skill in the art would maintain the continuous panel of Viano so that you still have that exposed to look.

[00:29:33] Speaker 02:
And they would use the catered connection of Payson so that you maintain the continuous enclosure.

[00:29:41] Speaker 02:
And there are findings by the PTAB on that that were not addressed at all by Wonderland in the briefing.

[00:29:48] Speaker 02:
And once again, those factual findings on why a person would have combined Payson and Viano in the way the PTAB found, those are all factual findings reviewed under the Substantial Evidence Standard.

[00:30:06] Speaker 02:
If I can, I know I'm out of time, but if I could talk a bit about claim construction.

[00:30:10] Speaker 03:
Just a couple brief statements, because we really are out of time.

[00:30:14] Speaker 02:
Yes, thank you, Judge Prost.

[00:30:16] Speaker 02:
So on claim construction,

[00:30:18] Speaker 02:
There is a very rich intrinsic record here that when you look at what happened during the prosecution, we have a unique insight into looking at various claim limitations that Wonderland included in claims during prosecution.

[00:30:34] Speaker 02:
For example, claim eight, where they had the formed in a single body limitation.

[00:30:40] Speaker 02:
They had a plurality of side panels joined to one another limitation.

[00:30:45] Speaker 02:
And they decided to take those out because they were not needed to define over the prior art.

[00:30:51] Speaker 02:
So for this unitary issue, Wonderland, in addition to what you see in claim 15, but we can see in claim 8 during prosecution, limitations that went right at this single unitary issue that were in the claims.

[00:31:05] Speaker 01:
On your claim construction argument, then I think you also need to consider the requested amendments, which may or may not.

[00:31:15] Speaker 01:
resolve the deficiencies that you're pointing out in claim construction.

[00:31:21] Speaker 01:
Isn't that accurate?

[00:31:23] Speaker 02:
The requested amendments, I'm sorry, in the motion to amend?

[00:31:28] Speaker 02:
I'm sorry, in the motion to amend at the IPR?

[00:31:31] Speaker 01:
Something that we will need to consider, reconsider, I believe, in view of the statutory, the decisional change that's referred to in that

[00:31:45] Speaker 02:
right the aqua products case yes yes yes agreed and there there has not been briefing on aqua on on the motion to amend in large part because of the uncertainty surrounding aqua products would that resolve your claim construction concerns

[00:32:03] Speaker 02:
looking at the limitations that they included in those claims in the motion to amend?

[00:32:09] Speaker 01:
Perhaps that isn't before us, but perhaps appropriate procedures are appropriate so that it is the evolution of the case.

[00:32:22] Speaker 02:
Judge, in answering your question, I think the motion to amend is very insightful into this claim construction issue, because similar to what happened with claim eight in the prosecution leading up to the issuance of the patent,

[00:32:33] Speaker 02:
where there were terms in the claims focused on single and unitary and taken out, in the motion to amend, you have the same thing happening where additional limitations are being put in for single and unitary.

[00:32:48] Speaker 02:
So those claims do get to single and unitary, but they don't do it just through enclosure member or fabric member.

[00:32:55] Speaker 02:
They do it by the additional language that Wonderland knew all along.

[00:32:59] Speaker 02:
through the prosecution leading up to the issuance of the patent that it could add to have the single unitary requirement.

[00:33:07] Speaker 02:
Thank you, Judge Rose.

[00:33:07] Speaker 02:
Thank you.

[00:33:12] Speaker 00:
At four very quick points, Your Honor.

[00:33:14] Speaker 00:
First, with regard to the last colloquy that you had with my friend, the prosecution history arguments are answered at pages 22 to 24 of our reply.

[00:33:23] Speaker 00:
With regard to the claim aid issue that he's raised,

[00:33:25] Speaker 00:
His position is effectively that the examiner allowed the claims after we broadened them, which is passing strange to me.

[00:33:34] Speaker 00:
In fact, what happened was that we moved from a where-in clause, which is sometimes not treated as a claim limitation, a limitation that made exactly clear the unitary limitation, and that put that into the body of the claim, and then the claim was allowed.

[00:33:50] Speaker 00:
But again, that's answered pages 22 to 24 of our reply.

[00:33:54] Speaker 00:
Second, the Campbell Declaration.

[00:33:55] Speaker 00:
Judge Moore, you had quite a conversation with my friend.

[00:33:59] Speaker 00:
This lengthy, robust expert report may be lengthy.

[00:34:02] Speaker 00:
I would question whether it's robust.

[00:34:04] Speaker 00:
And it's not cited by the board.

[00:34:05] Speaker 00:
That's exactly right.

[00:34:06] Speaker 00:
But if it had been cited by the board, the only thing that could have cited was page A, 7594 to 95, paragraph 80.

[00:34:14] Speaker 00:
And what will you see in paragraph 80?

[00:34:16] Speaker 00:
Exactly the same conclusive restatement that was contained in their petition and that's contained in the board's decision.

[00:34:22] Speaker 00:
That is not substantial evidence.

[00:34:23] Speaker 00:
It can't support the board's finding here.

[00:34:26] Speaker 00:
The single sentence that we supposedly made that was not enough, my friend I think forgets that it was his burden and his client's burden to prove the unpatentability of our patent and to come forward with sufficient substantial evidence to take away our patent.

[00:34:43] Speaker 00:
We're not required to prove a negative.

[00:34:44] Speaker 00:
Judge Moore, you were exactly right.

[00:34:46] Speaker 00:
That was enough.

[00:34:47] Speaker 00:
The dissent and the majority both recognize this issue as raised and joined.

[00:34:51] Speaker 00:
So if the suggestion now is that we somehow waived that argument by not making it in sufficient detail for him, that argument is not well taken.

[00:35:01] Speaker 00:
It's unsurprising in this case that any of the things that were cited by the board about Viano do not support the propositions that they're cited for.

[00:35:12] Speaker 00:
Viano's whole point was to create a foldable floor.

[00:35:15] Speaker 00:
The particular configuration of the netting was of no interest to that patentee, and the language out of column two of Viano specification, as well as the complete mismatch of the very rough drawing in figure one certainly does not create the sort of substantial evidence that can support this finding.

[00:35:33] Speaker 00:
Finally, my last point is that, and I think this may be gilding the lily at this point, but even if Viano were in somehow or another found to be unitary,

[00:35:44] Speaker 00:
As we've pointed out at page 14 of our reply brief, with citations to appendix pages 5816 and 5817, the combination of Viano and Passin still wouldn't give our claim, because Passin only discloses single side panels that are connected by separate rods.

[00:36:02] Speaker 00:
So it wouldn't even be the quilt, Your Honor.

[00:36:04] Speaker 00:
Unless the court has further questions for me, I thank you for your time.

[00:36:08] Speaker 00:
I'll give you back the last minute.

[00:36:10] Speaker 03:
We thank both sides of the case.