[00:00:00] Speaker 02:
Okay, the first augured case this morning is number 182082, BedGear LLC against Fred and Brothers Furniture Company.

[00:00:11] Speaker 02:
Mr. Marshall.

[00:00:15] Speaker 04:
May I please record Lee Marshall on behalf of BedGear.

[00:00:19] Speaker 04:
The board here took the Rasmussen reference and its disclosure of a highly porous 3D textile and held that that expressly anticipated every variety of open-cell construction claimed in the Gussett patents.

[00:00:34] Speaker 00:
Is your argument twofold?

[00:00:36] Speaker 00:
You have both claim construction arguments as well as you think that even if the board's construction were correct, you don't think Rasmussen should be read so broadly as to meet all the claim limitations?

[00:00:47] Speaker 04:
That's correct.

[00:00:49] Speaker 04:
We think the board's ultimate holding was legal error for three reasons.

[00:00:54] Speaker 04:
Two, you've basically summarized them.

[00:00:56] Speaker 04:
Yeah, so let me get right into the claim construction.

[00:01:01] Speaker 04:
The claim construction ignored the file history here.

[00:01:04] Speaker 04:
The examiner had rejected the disjunctive definition of open cell construction and required that the specific structures that defines that open cell construction be expressly recited in the claims.

[00:01:20] Speaker 03:
And the patent owner is us.

[00:01:24] Speaker 03:
What do you understand the claim construction issue to be?

[00:01:27] Speaker 03:
There's a question of whether this should be read to mean 3D spacer fabrics or just 3D fabrics.

[00:01:35] Speaker 03:
Is that the claim construction issue we're talking about?

[00:01:37] Speaker 04:
No, the clean construction issue, Your Honor, is whether in the definition that's provided in the patent of open-cell construction, which is in the disjunctive, which says a construction having overall porosity greater than the inherent porosity of the constituent material, or

[00:01:57] Speaker 04:
one that has inherently higher porosity.

[00:02:01] Speaker 04:
Whether when the applicant amended the claims to include the specific structures, because the examiner refused to read that definition into the claims, whether the applicant was essentially choosing

[00:02:15] Speaker 04:
with those amendments, those structure-based claim amendments, one part of the definition or the other, but not both.

[00:02:24] Speaker 04:
And I think it's very clear, Your Honor.

[00:02:28] Speaker 03:
I'm not understanding.

[00:02:29] Speaker 03:
The claims have these specific structures in there.

[00:02:32] Speaker 03:
Yes.

[00:02:33] Speaker 03:
That's part of the claims.

[00:02:34] Speaker 03:
Those are limitations in the claims.

[00:02:36] Speaker 03:
There's no dispute about that, right?

[00:02:38] Speaker 03:
Right.

[00:02:38] Speaker 03:
So what's the other contention?

[00:02:40] Speaker 03:
Well, let me.

[00:02:42] Speaker 00:
Do you think claim 11 is your best example?

[00:02:44] Speaker 00:
for a limitation that's inconsistent.

[00:02:47] Speaker 04:
You just anticipated what I was going to say.

[00:02:49] Speaker 04:
The aperture claim is really the best one.

[00:02:51] Speaker 04:
That's claim 11 of 134 patent.

[00:02:54] Speaker 04:
And it talks about the open cell constructions being formed by apertures defined in the base material, said apertures being larger than any pores inherently defined in the base material.

[00:03:05] Speaker 04:
That reflects a choice.

[00:03:07] Speaker 04:
that with the open cell construction, it's essentially adopting the first category of the disjunctive.

[00:03:14] Speaker 04:
But what the board did here was say, no, that can be anticipated by a prior reference that shows a construction inherently having a higher porosity.

[00:03:30] Speaker 04:
And we believe, and the district court, by the way, agreed with us in an opinion that is 180 degrees from what the board did.

[00:03:40] Speaker 04:
We believe that the claim language here with the after claim, claim 11, clearly reflects a choice that the open cell construction was a construction having overall porosity greater than the inherent porosity of the constituent material.

[00:03:55] Speaker 00:
So in other words, let me ask you this.

[00:03:58] Speaker 00:
Does that require us, if the board had the construction incorrect, particularly on claim 11, for example,

[00:04:07] Speaker 00:
That requires us to vacate and remand, identify what the correct construction is, and then it's for the board to decide in the first instance, make that factual determination on anticipation in light of the proper claim destruction.

[00:04:20] Speaker 00:
Is that right?

[00:04:21] Speaker 04:
I agree, Your Honor.

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

[00:04:25] Speaker 02:
So was it proposed to amend the claims before the board to reflect

[00:04:32] Speaker 02:
The problem that seemed to be bothering the board was that the claims as written could be read more broadly than what you're saying is the correct construction.

[00:04:43] Speaker 04:
That proposal was not made, Your Honor.

[00:04:45] Speaker 04:
The amendments were made in the original prosecution in response to the examiner saying, I'm not going to read this disjunctive definition into the claims.

[00:04:54] Speaker 04:
You have to pick the structure.

[00:04:56] Speaker 04:
And so that's what we did.

[00:04:58] Speaker 04:
And instead of adopting a claim construction that would reflect that choice, the board effectively unwound that choice.

[00:05:07] Speaker 03:
I'm sorry, I'm not following this.

[00:05:10] Speaker 03:
I mean, the structure that was the subject of the amendment was written into the claims and no one's contending that the structure is not a limitation.

[00:05:20] Speaker 03:
So what difference does this conjunctive, disjunctive, whatever

[00:05:28] Speaker 03:
claim construction make to the interpretation of the claims?

[00:05:33] Speaker 04:
Because the board held that all of these claims could be anticipated by a construction simply having inherently a higher porosity, which is the second part of this disjunctive definition.

[00:05:46] Speaker 03:
I don't think that's true.

[00:05:48] Speaker 03:
I think what the board said was that we find these structures to be present in Rasmussen.

[00:05:54] Speaker 03:
Didn't they say that?

[00:05:55] Speaker 04:
In part they did, your honor.

[00:05:58] Speaker 04:
Let me address that because that's really the second main issue that we have.

[00:06:06] Speaker 04:
You know, the board is not permitted to fill in gaps in missing limitations in the prior art.

[00:06:13] Speaker 03:
And we think that's precisely what... The question of whether this structure is shown in the prior art is a substantial evidence question, right?

[00:06:20] Speaker 04:
It is, Your Honor, but even so, let me take another example.

[00:06:26] Speaker 04:
Let me take the 3D spacer fabric example.

[00:06:31] Speaker 04:
There are claims that specifically require that structure, a 3D spacer fabric.

[00:06:36] Speaker 04:
And there's no dispute at all that Rasmussen does not mention a spacer fabric, much less a 3D one.

[00:06:43] Speaker 04:
And so the question is, well, how did the board fill in that gap?

[00:06:46] Speaker 04:
Was the board permitted to fill in that gap?

[00:06:48] Speaker 04:
Was there substantial evidence under the appropriate anticipation law to fill in that gap?

[00:06:55] Speaker 04:
And now the Glideaway expert, the Fredman Brothers expert, admitted that Rasmussen does not specifically mention a spacer fabric.

[00:07:03] Speaker 04:
She testified that a 3D spacer fabric could have been one of the fabrics a person skilled in the art would have chosen, that it's the best one for the job and it's the most suitable.

[00:07:14] Speaker 04:
Now the board relied on this testimony and said that 3D spacer fabric is appropriate for a ventilated pillow.

[00:07:21] Speaker 04:
Appropriate.

[00:07:23] Speaker 04:
It doesn't matter whether it's suitable, appropriate, or even the best one for the job.

[00:07:28] Speaker 04:
And we cited the NIDIC case, Your Honor, for the proposition that the board is not permitted to fill in missing limitations even when, quote, a skilled artisan would immediately envision them.

[00:07:41] Speaker 04:
That's essentially what the board did here.

[00:07:44] Speaker 04:
The board relied on testimony from the other side's expert saying, this is the example that I would envision that would be used for a 3D textile.

[00:07:54] Speaker 04:
this 3D spacer fabric, not mentioned, but this is what I would envision would be the most suitable and the most appropriate.

[00:07:59] Speaker 04:
And the board then just used that and filled it in.

[00:08:03] Speaker 04:
The gap filling was so clear here, your honor, that opposing counsel had to resort at the hearing to suggest that Rasmussen may have used the term 3D textile instead of 3D spacer fabric because she was from Denmark and the usage might have varied.

[00:08:25] Speaker 04:
That's how blatant the gap filling was here.

[00:08:29] Speaker 04:
So the evidence

[00:08:32] Speaker 04:
I mean, really, if porous 3D textiles anticipates

[00:08:38] Speaker 04:
3d spacer fabrics it anticipates Fabrics that have apertures if it anticipates interlaced strands of fabrics That then there's there's effectively no claim differentiation here your honor And we think the board was not permitted to fill in these gaps Can I focus you again on claim 11 for a minute because I understand it the board found that

[00:09:05] Speaker 00:
that that claim which requires that the apertures be larger than any pores inherently defined in the base material.

[00:09:13] Speaker 00:
That's the claim language.

[00:09:14] Speaker 00:
And the board said that the apertures could include pores that are already inherently in the base material.

[00:09:23] Speaker 00:
And so that's where the claim, that's I understand what your alleged claim construction error is, is that their construction is inconsistent with the plain language.

[00:09:33] Speaker 00:
How does that then apply to the

[00:09:35] Speaker 04:
uh... determination of anticipation how did the board interpret the claim in order to find that Rasmussen meets the claim yet so the board did two things your honor the board said that uh... first that it can be anticipated by this highly porous material one inherently having a higher porosity and then the second thing the board said was well if you look microscopically at the fabric there's going to be

[00:10:03] Speaker 04:
There's going to be, because it's a breathable fabric, there's going to be some space between the particular fibers of yarn that make up that fabric.

[00:10:14] Speaker 04:
And those spaces would be larger than any pores on the fabric, on the fiber strands themselves.

[00:10:26] Speaker 04:
And so the board looked at this from this completely, I don't know, hypothetical microscopic level that really makes no sense when you look at the claim, which says that the apertures must be larger than any pores inherently defined in the base material.

[00:10:46] Speaker 04:
The base material is the fabric.

[00:10:48] Speaker 04:
It is not the microscopic look at the fibers that may or may not have cores, Your Honor.

[00:10:55] Speaker 04:
So that's the aspect from a pure anticipation perspective, even if you agree with the board's claim construction, where we believe that the board completely went astray.

[00:11:10] Speaker 04:
I think the third thing I'd like to talk about is the

[00:11:18] Speaker 04:
The common basic legal principle that a genus does not anticipate a claimed species within the genus.

[00:11:29] Speaker 04:
We cited a lot of cases for this.

[00:11:31] Speaker 04:
It's well known.

[00:11:32] Speaker 04:
And I think the best example on this one is claim 22 of the 332 pattern, which is the mesh configuration claims.

[00:11:40] Speaker 04:
And the light-away expert expressly admitted that you can have 3D textiles that do not include a mesh.

[00:11:48] Speaker 04:
She said, I would not say every breathable fabric has a mesh.

[00:11:52] Speaker 04:
You can have a 3D textile that doesn't include a mesh.

[00:11:55] Speaker 04:
A mesh is a breathable fabric, but it is not the only breathable fabric.

[00:11:58] Speaker 04:
In other words, it's a possible species

[00:12:01] Speaker 04:
within the genus of 3D textiles, or even porous 3D textiles.

[00:12:07] Speaker 02:
I don't think you'll get very far as a generalization.

[00:12:11] Speaker 02:
You can't just come in and pluck out something from a genus and say, no, this is mine.

[00:12:18] Speaker 02:
You have to do more.

[00:12:19] Speaker 02:
You have to show some unusual properties, some something other.

[00:12:24] Speaker 02:
So this is a burden that, as far as I could tell, the board felt you hadn't met.

[00:12:31] Speaker 04:
So we claimed our claims go to particular species or subgenuses and they used the disclosure and Rasmussen of a genus to anticipate those specific Species and our argument is based on for example, they had a phenocase which says I'm not sure that's what the board did I Thought the board found that these structures were disclosed in Rasmussen and

[00:12:59] Speaker 04:
Well, let me take, like I said, with the example of mesh, the Glideaway expert repeatedly admitted that there's lots and lots and lots of 3D fabrics.

[00:13:13] Speaker 04:
Mesh is one kind of them, one type of possible 3D fabric.

[00:13:18] Speaker 04:
But just the fact that 3D fabrics could include 3D fabrics that are meshes does not mean that the disclosure of a 3D fabric anticipates the specific claiming of a mesh configuration.

[00:13:33] Speaker 03:
But I thought what they said was that these structures were present in Rasmussen.

[00:13:37] Speaker 03:
not that the Rasmussen disclosed a genus, but these specific structures were disclosed in Rasmussen, right?

[00:13:45] Speaker 04:
In some instances, they did make that determination.

[00:13:48] Speaker 04:
With the mesh claims, they did not.

[00:13:51] Speaker 00:
What they said... Why don't you identify a specific paging appendix that you think it provides the best... Sure.

[00:13:57] Speaker 04:
Yes, I can, Your Honor.

[00:13:59] Speaker 04:
This was in pages, it was A60 to 61.

[00:14:04] Speaker 04:
where the board said that 2D and 3D textiles can include strands defining a mesh configuration.

[00:14:14] Speaker 04:
And they cited to sort of a long portion of our patent owner's response to the institution.

[00:14:20] Speaker 04:
The only one of which talks about mesh says, and this is at A543,

[00:14:27] Speaker 04:
that for 3D spacer fabrics, the two fabric layers can be the same or different.

[00:14:34] Speaker 04:
That is mesh or solid.

[00:14:37] Speaker 04:
The fact that they can be meshes doesn't mean that they always are meshes.

[00:14:43] Speaker 04:
The fact that an apple is a fruit doesn't mean that all fruits are apples.

[00:14:50] Speaker 04:
So what the board did was rely on this statement that it can include meshes to say, therefore, 3D textiles anticipates a mesh.

[00:15:00] Speaker 04:
And that's where the genus species argument comes in.

[00:15:03] Speaker 04:
And unless there are further questions, I'd like to reserve for rebuttal.

[00:15:07] Speaker 02:
Let's hear from the other side.

[00:15:10] Speaker 02:
Thank you.

[00:15:12] Speaker 02:
Mr. Mudd.

[00:15:28] Speaker 02:
Thank you, Your Honor.

[00:15:31] Speaker 05:
May it please the Court?

[00:15:33] Speaker 05:
Jason Mudd for Appellee Fredman Brothers Furniture Company.

[00:15:37] Speaker 05:
The purported invention of the gusset patents is directed to using a highly porous gusset between the top and bottom panels of a pillow to provide for lateral ventilation and cooling.

[00:15:46] Speaker 05:
And it does so using a gusset that's more porous than the top and bottom.

[00:15:50] Speaker 05:
This is precisely what the Rasmussen reference teaches.

[00:15:53] Speaker 00:
What about the specific embodiments?

[00:15:55] Speaker 00:
I mean, that's where the argument is directed.

[00:15:58] Speaker 00:
I think that the prior art discloses one generic description as opposed to describing the various different embodiments recited in the various claims.

[00:16:11] Speaker 05:
Well, what the board, the board's findings of fact were that the embodiments were disclosed, that the structures recited in the claims were disclosed and present in the Rasmussen reference.

[00:16:23] Speaker 05:
Right.

[00:16:24] Speaker 05:
And substantial evidence supports that finding.

[00:16:26] Speaker 05:
And so here, because... Well, that's the issue.

[00:16:30] Speaker 02:
I mean, it would be helpful if you would explain why that finding needs to stand.

[00:16:36] Speaker 05:
Sure.

[00:16:36] Speaker 05:
So I can start with that or I can address the claim construction first.

[00:16:41] Speaker 05:
I'll go to that first.

[00:16:42] Speaker 05:
So for example, interlaced spaced apart strands, the board found that a highly porous 3D textile material as described in Rasmussen that provides significant ventilation and airflow, textiles are made of strands.

[00:16:55] Speaker 05:
There are openings that provide for that airflow.

[00:16:57] Speaker 05:
Therefore, there are spaced apart and interlaced strands in that material.

[00:17:01] Speaker 05:
Same thing with mesh.

[00:17:03] Speaker 00:
Is it largely based on expert testimony explaining what you just said, basically explaining that saying that any of these kinds of materials in Rasmussen would meet this claim limitation?

[00:17:17] Speaker 00:
I'm just trying to understand what the evidence is.

[00:17:19] Speaker 05:
Yes, that certainly helps support, and the evidence actually came from both sides experts that porosity is created from spacing and strands, textiles are made of strands, thus a highly porous 3D textile has spaced apart strands.

[00:17:34] Speaker 05:
And those strands are interlaced because we have a three-dimensional material that's held together, it doesn't fall apart.

[00:17:39] Speaker 05:
So those structures are present in highly porous 3D textile material.

[00:17:43] Speaker 00:
And I understand the claim construction argument there is that in the preferred embodiment that is disclosed in the patent specification, those strands are not inherent in the material, but rather it's something that's formed.

[00:17:58] Speaker 05:
So I actually disagree with that.

[00:17:59] Speaker 05:
When you read the specification, it does not suggest that spaced apart or interlaced strands can't be inherent.

[00:18:06] Speaker 00:
Do I have the claim construction argument?

[00:18:07] Speaker 00:
Have I presented the claim construction argument correctly?

[00:18:10] Speaker 05:
So our understanding of the claim construction argument is that the patents provide an express definition with essentially two kinds of ferocity.

[00:18:18] Speaker 05:
a construction having overall porosity being greater than the inherent porosity of a constituent material or inherently having high porosity.

[00:18:26] Speaker 05:
So textiles are man-made, they're manufactured, right?

[00:18:30] Speaker 05:
So either the porosity can be inherent from how the material is originally made or the porosity can result from added porosity after manufacture.

[00:18:40] Speaker 05:
So what BedGear is proposing through its claim construction is to limit it to only encompassing porosity that's added after manufacture, right?

[00:18:50] Speaker 05:
That's why their constructions repeatedly reference that this porosity is greater than a constituent material.

[00:18:56] Speaker 05:
you'd notably the claims and even recite a constituent material that that concept is injected uh... into the claims through beggars claim construction so and they rely on the specification you're going to explain why you disagree with their reliance on specification yes in the specification when it describes uh... interlaced or space-depart strands

[00:19:15] Speaker 05:
It doesn't say that those can't be inherent as originally manufactured, right?

[00:19:21] Speaker 05:
I mean, textiles are made up of strands, right?

[00:19:24] Speaker 05:
And a highly porous 3D textile that's manufactured will have spaced apart strands as a result of how it's initially manufactured.

[00:19:33] Speaker 05:
There's no suggestion that these spacings have to be introduced after original manufacture of the material.

[00:19:39] Speaker 00:
So, Betty, you're... Does it use the embodiment as disclosed, though?

[00:19:44] Speaker 00:
It might not say that...

[00:19:45] Speaker 00:
You can't make it inherent in the material.

[00:19:48] Speaker 00:
But in the embodiment disclosed, is it formed in the material after the material is originally manufactured?

[00:19:56] Speaker 05:
It doesn't say that.

[00:19:56] Speaker 05:
It doesn't specify with regard to the spaced apart or interlay strands whether that is an arrangement that is after original manufacture or during original manufacture.

[00:20:06] Speaker 00:
Are you relying on a particular column?

[00:20:08] Speaker 05:
Yes, it's column two of the of the patent and I'm using the three three two patent And that's column two at about starting about line 20

[00:20:24] Speaker 05:
And so it says, with reference to figure three, the gusset 20 may be defined by a plurality of interlaced or spaced apart strands arranged randomly or in various patterns.

[00:20:35] Speaker 05:
So it doesn't say whether that arrangement is a result of original manufacture or if somehow there's a manipulation or modification that's made after original manufacture.

[00:20:44] Speaker 05:
So even the embodiments don't have this distinction of after manufacture versus before manufacture.

[00:20:53] Speaker 00:
What about claimable one?

[00:20:54] Speaker 05:
Yeah, with regard to claim 11, that's a great question.

[00:20:57] Speaker 05:
So with regard to claim 11, the way that the specification describes those apertures is that they can either be formed during manufacture or after manufacture.

[00:21:09] Speaker 00:
What about the plain claim language?

[00:21:11] Speaker 05:
The same thing with the plain claim language.

[00:21:13] Speaker 05:
So the plain claim language refers to apertures being larger than any pores inherently defined in said base material.

[00:21:20] Speaker 05:
That's the exact same language that the specification uses.

[00:21:24] Speaker 05:
The specification states at column two, line 38, apertures 32 may be defined in the base material with the apertures 32 defining the open cells of the gusset.

[00:21:36] Speaker 05:
The apertures 32 are larger in size than any pores that may be inherently defined in the base material.

[00:21:42] Speaker 05:
The apertures may be formed during manufacture of the base material or formed after manufacture.

[00:21:48] Speaker 05:
So those same apertures 32 that are described as being larger than inherent pores can be formed either before manufacture or after manufacture.

[00:21:58] Speaker 05:
Now, what this is getting at is that when you get down to the base fiber level, you'll have microscopic pores, right, that can be inherent to any textile.

[00:22:08] Speaker 05:
What the patent is talking about is we have meaningful apertures that provide significant airflow and cooling.

[00:22:14] Speaker 05:
This is the same thing that Rasmussen teaches.

[00:22:16] Speaker 05:
Rasmussen doesn't rely on inherent pores that can exist down at the base fiber level.

[00:22:21] Speaker 05:
It relies on highly porous material that provides significant airflow and cooling, just like the gusset patents do.

[00:22:28] Speaker 05:
And so the board's finding that the apertures larger than inherent pores is supported by substantial evidence.

[00:22:38] Speaker 05:
I'd like to address the file history, since that was the lead point raised by Bedgear in its argument.

[00:22:45] Speaker 05:
So importantly, as we explained in the briefing, the file history had nothing to do with the two parts of the definition of open cell construction.

[00:22:53] Speaker 05:
It had nothing to do with suggesting that the claims would be limited to either porosity.

[00:23:00] Speaker 00:
Can I just back up for a minute?

[00:23:01] Speaker 00:
Yeah.

[00:23:01] Speaker 00:
So just going back to claim 11.

[00:23:03] Speaker 00:
So it's your view that if it's formed during manufacture of the base material, that means it's, I suppose you're saying that's inherently defined in the base material?

[00:23:16] Speaker 05:
Yes, I believe that's correct, Your Honor, yes.

[00:23:18] Speaker 00:
Okay, that doesn't make a lot of sense to me.

[00:23:22] Speaker 00:
It's possible that if the pores could be formed during manufacture, but that still means that those pores are larger than those that are inherently in the base material, regardless of when they're formed in the base material.

[00:23:38] Speaker 00:
Does that make sense?

[00:23:39] Speaker 05:
So the claims using two different terms, apertures and pores, right?

[00:23:42] Speaker 05:
So the inherent pores, as the board found, are what exists at the base fiber level, right?

[00:23:50] Speaker 05:
The apertures are where the air flows, the meaningful air flow that provides significant ventilation, right?

[00:23:55] Speaker 05:
And those are larger than the inherent pores that exist down at the base fiber level.

[00:24:00] Speaker 05:
Another thing important to note about the claim language is the claim language doesn't actually even affirmatively claim or require the inherent pores, right?

[00:24:08] Speaker 05:
It's just a comparison that's used.

[00:24:10] Speaker 05:
So the claim is simply saying that

[00:24:13] Speaker 05:
There have to be apertures larger than inherent pores down at the base fiber level.

[00:24:18] Speaker 05:
And that was found to be present in the Rasmussen reference by the board.

[00:24:23] Speaker 00:
It says what?

[00:24:23] Speaker 00:
Said apertures being larger than any pores inherently defined in said base material, right?

[00:24:30] Speaker 05:
That's right.

[00:24:30] Speaker 05:
Regardless of whether pores exist.

[00:24:32] Speaker 05:
So if any pores do exist at the base fiber level, it should be larger than those.

[00:24:38] Speaker 00:
And what's the import of that in your view?

[00:24:41] Speaker 05:
The import is that you have meaningful openings that provide substantial air flow and that's larger than... And they have to be formed in the material.

[00:24:50] Speaker 00:
They're not inherent in the material, right?

[00:24:53] Speaker 05:
The patent and the claims don't distinguish between formed and inherent, right?

[00:24:59] Speaker 05:
So something can be formed in a material as originally manufactured and be inherent in that material.

[00:25:05] Speaker 00:
What about where it says said open cell construction is formed by apertures defined in said base material, said apertures being larger than any pores inherently defined in said base material?

[00:25:19] Speaker 02:
Yes.

[00:25:20] Speaker 00:
So it does require that there be apertures that are formed, right?

[00:25:25] Speaker 05:
Not in the usage of the patents.

[00:25:26] Speaker 00:
The patents... I'm looking at claim 11.

[00:25:29] Speaker 05:
Yes, it's not a method step of forming after manufacture.

[00:25:34] Speaker 05:
I understand.

[00:25:34] Speaker 05:
They can be formed at any point in time.

[00:25:37] Speaker 00:
Yes, but you agree that the apertures have to be larger than pores inherently defined in the base material, right?

[00:25:45] Speaker 05:
Any pores, if they exist, right, yes.

[00:25:49] Speaker 03:
Yes, that's correct.

[00:25:50] Speaker 03:
Is the idea that a particular method of manufacture may have larger pores than would necessarily be the case during some other method of manufacture?

[00:26:01] Speaker 05:
Well, the issue is that the apertures are where the airflow, this meaningful airflow, right, that provides for significant ventilation and cooling.

[00:26:09] Speaker 05:
And that's something more than just any inherent microscopic pores that might exist in any textile material.

[00:26:16] Speaker 05:
In the strands.

[00:26:18] Speaker 05:
I'm sorry, Your Honor?

[00:26:18] Speaker 03:
In the strands.

[00:26:20] Speaker 05:
Yes, in the strands themselves, or as the board found, in the base fibers, yes.

[00:26:24] Speaker 05:
So I'd like to touch briefly on the file history.

[00:26:28] Speaker 05:
So the file history had nothing to do with these two parts, the two parts of the definition of open cell construction.

[00:26:34] Speaker 05:
Recall that as I discussed, we're either talking about added porosity after initial manufacture or inherent porosity that results from initial manufacture.

[00:26:46] Speaker 05:
And there's nothing in the file history where the examiner was requiring the applicant to limit to one of the two types of porosity or somehow narrow that definition.

[00:26:56] Speaker 05:
In fact, these open-cell construction phrases were already present in the dependent claims.

[00:27:02] Speaker 05:
And they were indicated to be allowable if written in independent form.

[00:27:06] Speaker 05:
So, excuse me.

[00:27:09] Speaker 05:
all that happened was claim language that was already there was allowed.

[00:27:14] Speaker 02:
There was no... Doesn't that narrow the breadth of the claims in a manner contradicted by the way the board interpreted them?

[00:27:23] Speaker 05:
That would be correct if the claim language suggested that

[00:27:28] Speaker 05:
those strands were added after manufacturer, or that this is added to a constituent material.

[00:27:35] Speaker 05:
But as the board noted, nothing in the plain claim language requires the spaced apart strands to be added after manufacturer.

[00:27:45] Speaker 05:
So the dependent claims is originally written

[00:27:47] Speaker 05:
we're agnostic to whether it's at initial manufacture or after manufacture.

[00:27:52] Speaker 05:
And thus, an amendment that cancels the independent claim and rewrites that dependent and independent form does not somehow limit it to just after manufacture.

[00:28:04] Speaker 02:
Is this an issue that's critical in the infringement context?

[00:28:10] Speaker 05:
I don't know.

[00:28:11] Speaker 05:
It's a good question, Your Honor.

[00:28:12] Speaker 05:
I don't believe that's of record or an issue in this proceeding.

[00:28:16] Speaker 02:
Well, if this is a dispositive issue from the practical viewpoint, that would be of interest.

[00:28:24] Speaker 05:
Yeah, I'm not aware offhand, Your Honor, how it relates to a potential infringement issue.

[00:28:30] Speaker 05:
But here, we know Bedgier is trying to read in this after-manufacture requirement into the claim language to try to distinguish Rasmussen.

[00:28:38] Speaker 02:
Well, they're saying that the board should have construed the claims the way the examiner did in allowing them and on which they relied in their subsequent proceedings.

[00:28:48] Speaker 05:
Uh, no, I would disagree.

[00:28:49] Speaker 05:
The examiner was not construing the claims in the manner suggested by FedGear.

[00:28:54] Speaker 02:
Uh, the examiner- He construed them to be allowable with his changes.

[00:28:58] Speaker 02:
That was enough.

[00:28:59] Speaker 05:
He confirmed they were allowable regardless of whether it was before or after initial manufacture.

[00:29:05] Speaker 05:
So there was no amendment to limit to after manufacture.

[00:29:08] Speaker 02:
Well, and my question was, was that an issue, whether it was before or after?

[00:29:14] Speaker 02:
Uh, not during- If not, it shouldn't prejudice this applicant.

[00:29:18] Speaker 05:
Uh, not, not during, um, examination, no, the, the issue of before or after initial manufacture was not at issue in the file history.

[00:29:28] Speaker ?:
Okay.

[00:29:30] Speaker 05:
And then I'd like to touch on, so Bedgear noted the District Court claim construction which was raised for the first time in the reply brief.

[00:29:39] Speaker 05:
I'll just note that the District Court there was applying the Phillips standard.

[00:29:42] Speaker 05:
These IPRs are governed by the broadest reasonable interpretation because these predated the Patent Office's switch in its claim construction standard.

[00:29:52] Speaker 05:
Then with regard to the genus species issue raised by council, this is not a genus species case.

[00:29:59] Speaker 05:
As Judge Dyke noted, the board found the structures were disclosed, not that a genus was taught that would potentially anticipate a species.

[00:30:09] Speaker 05:
So this is not a genus species case.

[00:30:12] Speaker 02:
No, it's more a matter of construing the claims in accordance with the limitations of the species.

[00:30:21] Speaker 05:
Yes, I think that's one way of looking at it, Your Honor.

[00:30:25] Speaker 05:
And I see I'm out of time.

[00:30:27] Speaker 05:
If there are not any further questions, that's all I have.

[00:30:30] Speaker 01:
Any more questions?

[00:30:30] Speaker 01:
No.

[00:30:32] Speaker 01:
Any more questions?

[00:30:32] Speaker 01:
Thank you, Mr. Budd.

[00:30:33] Speaker 05:
Thank you, Your Honors.

[00:30:40] Speaker 04:
Judge Newman the claim construction Issue is central central to the infringement case And it was one of the few issues that was actually disputed on claim construction before the district court And if you if you read that opinion you will understand exactly you probably already have that that that is exactly what our position I mean the district court held that

[00:31:05] Speaker 04:
the definition of open cell construction plainly describes alternatives of open cell constructions that the claims can clearly be categorized by whether they are directed to embodiments matching either the first or the second part of the definition and that these specific open cell constructions which were put into the claims

[00:31:28] Speaker 04:
were added during prosecution after the examiner rejected reading the broad disjunctive definition in.

[00:31:35] Speaker 04:
And here we have the board doing the exact opposite and saying I'm going to read in this entire

[00:31:43] Speaker 04:
disjunctive definition into these claims, broaden them way out, and say they can be anticipated by a material simply inherently having a higher porosity.

[00:31:55] Speaker 04:
And we think that that is the essence of the error.

[00:31:59] Speaker 04:
Now, does the board, let me turn to the genus species thing.

[00:32:02] Speaker 04:
Does the board explicitly use the term genus and species?

[00:32:06] Speaker 04:
No.

[00:32:07] Speaker 04:
But what the board says is that a 3D textile can be a mesh.

[00:32:13] Speaker 04:
And therefore, 3D textile anticipates mesh.

[00:32:17] Speaker 04:
It's the exact same problem, Your Honor.

[00:32:21] Speaker 04:
The disclosure of a genus in a prior art reference cannot disclose a specific species of that genus.

[00:32:29] Speaker 04:
And we've cited a bunch of cases for that proposition.

[00:32:32] Speaker 04:
I think, you know, the other point I'd like to address is the forming point, which the language form is formed by, appears in Claims 1 and Claims 11, Judge, as you point out.

[00:32:48] Speaker 04:
quite clear when you when you look at those embodiments and these are the interlaced strand in the aperture embodiments that are shown in figures three and figure four of the patent and described in column two it's quite clear that what's happening there is that the fabric itself not how the fabric is made but the fabric itself is being interlaced

[00:33:12] Speaker 04:
or the fabric itself has apertures.

[00:33:15] Speaker 04:
In the making of the fabric, apertures are not created.

[00:33:20] Speaker 04:
It's that the apertures are not co-equal to the pores that exist when you weave a fabric together.

[00:33:31] Speaker 04:
And if you look at the description and the spec of interlacing, it's talking about the strands maybe of various materials, including, for example, polyester.

[00:33:42] Speaker 04:
So it is not the strands that are fibers, it is the strands that are the base material and it goes on and it talks about how the strands can be stitched together or fused together or tied together or fastened together.

[00:33:57] Speaker 04:
These are not strands that are woven together to make the fabric and it's very clear from the specification and the embodiments that the examiner was trying to claim those specific embodiments and that this

[00:34:10] Speaker 04:
incredibly broad disclosure of porous 3D textiles was used to anticipate all of these very specific constructions.

[00:34:19] Speaker 02:
Any more questions?

[00:34:20] Speaker 04:
Thank you very much.

[00:34:21] Speaker 02:
Thank you.

[00:34:22] Speaker 02:
The case is taken under submission.

[00:34:25] Speaker 02:
The court will stand in recess for about ten minutes.

[00:34:29] Speaker 04:
All rise.

[00:34:32] Speaker 04:
The court now stands in recess.