[00:00:00] Speaker 00:
90 Edgewell personal care products.

[00:00:21] Speaker 02:
Yes.

[00:00:59] Speaker 00:
All in favor.

[00:01:44] Speaker 00:
We're ready whenever you are, sir.

[00:02:00] Speaker 01:
Good morning.

[00:02:00] Speaker 01:
Good morning.

[00:02:01] Speaker 01:
May it please the court?

[00:02:02] Speaker 01:
Good morning, Your Honor.

[00:02:03] Speaker 01:
Your Honors, Jason Kravitz for Appellant Edgewell Personal Care.

[00:02:06] Speaker 01:
And with me is my colleague, Daniel Burnham.

[00:02:08] Speaker 01:
And in the courtroom is Assistant General Counsel to Edgewell, Robert Rosasco.

[00:02:12] Speaker 01:
The heart of this dispute concerns two ratios denoted as A over B and L over W that relate to certain dimensions of a tampon applicator tip.

[00:02:22] Speaker 01:
To determine the A over B ratio, you first need to locate the inflection point on the tip.

[00:02:27] Speaker 01:
That's the specific point where the barrel begins to taper inwardly.

[00:02:31] Speaker 01:
And to determine the L over W ratio, you need to know, among other data points, the number of petals, the specific dimensions of each petal in the undeformed state, how wide the gaps are between the petals, and perhaps most importantly, where the root ends are for each petal.

[00:02:46] Speaker 00:
OK.

[00:02:48] Speaker 00:
Wasn't there agreement by the experts with respect to what the disclosure was in the Koch reference that included ratios?

[00:02:55] Speaker 01:
No, Your Honor, respectfully, I disagree with that.

[00:02:58] Speaker 01:
There was not agreement among the experts.

[00:03:00] Speaker 01:
And I think that was one of the assumptions.

[00:03:05] Speaker 01:
I mean, the district court said that there was, in fact, no material dispute or genuine issue of material dispute with respect to what Koch teaches.

[00:03:12] Speaker 01:
And I think that that was an erroneous statement.

[00:03:16] Speaker 02:
Didn't both experts agree that if the tip is elongated, that the A over B ratio would be less than 1, and the L over W ratio would be greater than 1?

[00:03:33] Speaker 01:
No, Your Honor.

[00:03:34] Speaker 00:
Can we look at page 26 of the district court's opinion?

[00:03:37] Speaker 00:
Sure.

[00:03:37] Speaker 00:
Because that's where he says that.

[00:03:39] Speaker 00:
That's where we got it from.

[00:03:41] Speaker 00:
He calls out the expert's testimony in that regard.

[00:03:46] Speaker 00:
Are we talking about two different things, or is it your view that he's just mistaken about his need of the expert testimony?

[00:03:53] Speaker 01:
So, very fair question, Your Honor.

[00:03:55] Speaker 01:
And I think it's two different things.

[00:03:56] Speaker 01:
Number one is there was some confusion between whether people were talking about Koch versus a hypothetical, and that's an important distinction.

[00:04:03] Speaker 01:
That is not a distinction without a difference.

[00:04:05] Speaker 01:
And also there was some confusion about what the actual testimony said.

[00:04:09] Speaker 01:
There's no dispute that with respect to the A over B ratio, if you're taking a hypothetical tampon tip with the prior art hemispherical shape, and you're not changing the location of where the inflection point is, if you elongate those petals, your A over B ratio will dip below 1.

[00:04:28] Speaker 01:
There was no dispute about that, and there is no dispute about that.

[00:04:31] Speaker 01:
That doesn't mean it's below 0.8.

[00:04:33] Speaker 00:
More importantly... Right, well the district court didn't say, the district court said one, less than one.

[00:04:41] Speaker 01:
Less than one, correct, Your Honor, but the district court also said that that included point eight, point, below point eight.

[00:04:45] Speaker 00:
Okay, so I'm just trying to distill what your disagreement is with respect to the district court.

[00:04:51] Speaker 00:
Right.

[00:04:51] Speaker 00:
So you're not disputing that this was the expert testimony and he correctly outlined it.

[00:04:57] Speaker 01:
With respect to A over B. With respect to L over W, it's a different entire analysis entirely because L over W

[00:05:03] Speaker 01:
and A over B are not the same thing.

[00:05:05] Speaker 01:
So as I mentioned in my opening remarks, the L over W is dependent upon the number of petals.

[00:05:11] Speaker 01:
It's dependent upon the size and shape of those petals and whether they're all symmetrical or whether they're different.

[00:05:16] Speaker 01:
It's dependent upon the length of that curvature in the undeformed state as opposed to the

[00:05:21] Speaker 01:
straight state that the A over B is dependent upon.

[00:05:25] Speaker 01:
Most importantly, it's dependent upon where the root ends of the petals are, which is not necessarily the same place as the inflection point.

[00:05:32] Speaker 01:
So if the root ends of those petals are in front of the inflection point, then you're going to have a shorter L, which of course impacts the L over W ratio.

[00:05:40] Speaker 01:
If the root ends of the petals are behind the inflection point, you're going to have a longer L, which of course impacts the L over W ratio.

[00:05:49] Speaker 00:
So is one of those under one and one of those greater than one?

[00:05:52] Speaker 01:
Well, Your Honor, I don't mean to be flippant about it, but it depends on where those root ends are.

[00:05:57] Speaker 00:
OK, so can you just look at page 26?

[00:05:59] Speaker 00:
I'm just trying to understand what issue you're taking, if any, with what the district court concluded was the expert's agreement here.

[00:06:08] Speaker 00:
So you said you agree with AB, which is at the bottom of this paragraph, that he said the AB ratio is less than one.

[00:06:15] Speaker 00:
And then he says an LW ratio greater than 1.

[00:06:20] Speaker 00:
And he cites the expert testimony in footnote 9 explaining that.

[00:06:24] Speaker 00:
Is anything he says incorrect?

[00:06:27] Speaker 01:
I believe it is, Your Honor.

[00:06:28] Speaker 01:
I believe with respect to L over W, there was not agreement.

[00:06:30] Speaker 02:
What's incorrect?

[00:06:32] Speaker 02:
Where in footnote 9 is there a mistake?

[00:06:36] Speaker 01:
Footnote 9 of the district court's decision?

[00:06:38] Speaker ?:
Yep.

[00:06:38] Speaker 00:
That's where he cites the expert testimony confirming what he concludes that you say is wrong.

[00:06:46] Speaker 01:
Because, Your Honor, when someone is asking a hypothetical, you have to have assumptions.

[00:06:51] Speaker 01:
And so when Mr. Sheldon, our expert, Edgewell's expert, was being asked at his deposition about certain shapes, they were, and we addressed this in our brief, Your Honor, I thought we addressed it fairly clearly, that there was some

[00:07:05] Speaker 01:
mischaracterization of what Mr. Sheldon actually said and whether he was referring to Koch or whether he was referring to a hypothetical hemispherical shape that's being modified and that's a fundamentally different thing right because one is hypothetical one is prior art and Mr. Sheldon never testified that I mean first of all what he said about Koch was essentially I can read it to you exactly actually

[00:07:28] Speaker 01:
he says, it looks a little more elongated than a hemisphere.

[00:07:34] Speaker 01:
That's the sum total of Mr. Sheldon's admission with respect to what Koch teaches.

[00:07:41] Speaker 01:
If you then move from Koch to the hypothetical and you say, okay, so what does that mean?

[00:07:45] Speaker 01:
If the inflection point stays where it is and you're moving from a hemispherical tip to an elongated

[00:07:52] Speaker 01:
something more elongated, that necessarily will mean that the A over B is going to be less than one.

[00:07:56] Speaker 01:
Again, we concede this.

[00:07:58] Speaker 01:
Mr. Sheldon conceded that.

[00:07:59] Speaker 01:
But the L over W requires five or six different assumptions in order to understand what that range is going to be.

[00:08:06] Speaker 01:
And the patent itself contains data.

[00:08:10] Speaker 01:
I'm sure Your Honor's looked at it.

[00:08:12] Speaker 01:
It's the table in the patent that says, here's five different examples of different shapes that they tested, essentially.

[00:08:20] Speaker 01:
And two of them were outside the range of the L over W, the claimed range of the L over W. Those were two that were rejected based on their performance.

[00:08:29] Speaker 01:
There's no such data for the A over B ratio in the 075 pattern, but it's right there in the L over W. You can find, without too much difficulty, L over W ratios that fall outside the claimed range.

[00:08:41] Speaker 01:
And Mr. Sheldon never conceded that simply elongating a hypothetical hemispherical tip is going to necessarily put you into the L over W range of one to two.

[00:08:52] Speaker 01:
Again, it depends on the number of petals we're talking about.

[00:08:54] Speaker 01:
In the 075 patent, they reference a shape that has three petals.

[00:08:58] Speaker 01:
That fell outside the range.

[00:09:00] Speaker 01:
Of course, if you only have three petals.

[00:09:04] Speaker 04:
Well, I don't understand what you're saying.

[00:09:05] Speaker 04:
Can we just go back to footnote nine?

[00:09:07] Speaker 04:
Sure.

[00:09:07] Speaker 04:
The second paragraph.

[00:09:09] Speaker 04:
I'm on page 26.

[00:09:12] Speaker 04:
This is the paragraph describing your expert's testimony, and I understand you think this is a hypothetical, but the last sentence says he also agreed that if one took the hemispherical applicator tip having four petals and elongated a little bit,

[00:09:29] Speaker 04:
Even a little bit one would get L over W greater than one and then he cites I assume your experts testimony correct Is that an inaccurate citation or is that not answering the question the district where it should be answering?

[00:09:43] Speaker 04:
I think it's an accurate citation, but I think mr. Wait by inaccurate I mean is that not what the expert said?

[00:09:49] Speaker 01:
The expert, Mr. Sheldon, was making assumptions, whether they were articulate or not.

[00:09:53] Speaker 01:
He's making assumptions based on the questions he's being asked.

[00:09:56] Speaker 01:
He said this?

[00:09:57] Speaker 01:
He said that.

[00:09:58] Speaker 01:
Okay.

[00:09:58] Speaker 00:
But he's being... So wait, did you answer, Judge Hughes, that it was accurate or inaccurate?

[00:10:02] Speaker 00:
I didn't hear.

[00:10:03] Speaker 01:
That is an accurate recitation of an answer that Mr. Sheldon gave.

[00:10:08] Speaker 01:
in being asked questions about a hypothetical.

[00:10:11] Speaker 01:
I think the hypothetical put it in the context of a baseball, half a baseball, right?

[00:10:15] Speaker 01:
So the hemispherical tip, okay?

[00:10:17] Speaker 01:
So Mr. Sheldon didn't explain at that moment that he didn't ask, well, does your hypothetical want me to assume that there were three, four, five, or six petals?

[00:10:27] Speaker 04:
Well, the students I just read you said he agreed that if one took a hemispherical applicator tip having four petals, so he's at least relying on the four-petal hypothetical.

[00:10:36] Speaker 01:
Fair point, Your Honor, but he didn't ask whether that assumption is that the four pedals are identical.

[00:10:42] Speaker 01:
Are they symmetrical?

[00:10:44] Speaker 01:
Which, by the way, in Koch, they are not.

[00:10:47] Speaker 01:
Koch has four pedals that are not perfectly symmetrical.

[00:10:50] Speaker 01:
And the reason we know this is through Mr. Hull's testimony and the measurements that Mr. Hull took.

[00:10:57] Speaker 01:
So we know that Koch provides for a four-pedal option that does not have perfectly symmetrical pedals, which means that the L over W is going to be different for the four different pedals.

[00:11:07] Speaker 01:
And all four pedals under the 075 patent need to have an L over W ratio between 1 and 2.

[00:11:13] Speaker 01:
So Koch is an interesting reference.

[00:11:17] Speaker 04:
When you're talking about the different sizes of the pedals in Koch, is that based upon the patent itself?

[00:11:23] Speaker 04:
I thought this was just a design patent with a picture.

[00:11:26] Speaker 01:
It is just a design pattern with the picture, but we're... That's not necessarily to scale or anything.

[00:11:33] Speaker 01:
It is absolutely not to scale.

[00:11:35] Speaker 01:
We're not told anything about that image other than what it presents to the naked eye.

[00:11:41] Speaker 01:
We're not given, of course, with the design pattern, so we don't have the benefit of a specification telling us what the measurements or dimensions are and whether it is to scale.

[00:11:48] Speaker 01:
But what Koch teaches us

[00:11:50] Speaker 01:
is um... that those are not symmetrical pedals.

[00:11:53] Speaker 01:
You can see what we showed Mr. Holder... Where does Koch teach that?

[00:11:57] Speaker 01:
Well, Your Honor, um... Koch teaches that in conjunction with the testimony and the measurements that Mr. Holder... Koch itself does not teach that.

[00:12:05] Speaker 01:
Koch teaches very little of it by itself.

[00:12:08] Speaker 01:
Koch teaches virtually nothing by itself.

[00:12:10] Speaker 01:
I would suggest that Koch teaches almost nothing and is

[00:12:14] Speaker 01:
largely irrelevant to the disputed hand because it does not show us dimensions and it does not show us scale and it does not give us the ability to conclusively or precisely or accurately infer dimensions and measurements which is of course what the primary thrust of Al-Bad's arguments are today is based on or premised on.

[00:12:33] Speaker 02:
It may not show dimensions but it does show a structure that has a configuration that is apparent.

[00:12:41] Speaker 02:
on its face.

[00:12:43] Speaker 01:
It absolutely does, Your Honor.

[00:12:44] Speaker 02:
The tip is not hemispherical.

[00:12:47] Speaker 02:
It's elongated.

[00:12:48] Speaker 02:
It's hard to deny that.

[00:12:50] Speaker 01:
Well, again, Your Honor, our expert testified that in his view, in his expert opinion, it shows a slightly elongated based on a hemispherical tip.

[00:13:00] Speaker 01:
But respectfully, I suggest to the Court that I disagree that it's hard to dispute that it shows a hemispherical tip.

[00:13:06] Speaker 01:
This is an isometric drawing of a two-dimensional drawing of a three-dimensional product where you have... It's hard to dispute it on appeal when your expert agreed it was elongated.

[00:13:15] Speaker 04:
I mean, I don't understand why you use that expert, frankly, but...

[00:13:18] Speaker 04:
He said it.

[00:13:19] Speaker 04:
He said it was elongated.

[00:13:20] Speaker 04:
And there are mathematical truths that follow from elongation.

[00:13:24] Speaker 04:
There are.

[00:13:25] Speaker 04:
Do you agree that the A over B1 necessarily follows from elongation?

[00:13:29] Speaker 01:
I do agree.

[00:13:31] Speaker 04:
Then we're just getting into the L and W. And that all seems to be just further additional hypotheticals.

[00:13:37] Speaker 01:
I agree, Your Honor, that if you keep the inflection point where it is and you elongate the petals and the number of petals remains the same and they're symmetrical, then you're going to have an A over B ratio that dips below one.

[00:13:49] Speaker 01:
But I don't agree that it dips below 0.8 as a mathematical truth.

[00:13:54] Speaker 01:
That would require a 20% difference.

[00:13:56] Speaker 01:
And our expert never opined that there's a 20% difference.

[00:13:59] Speaker 01:
Our expert opined that he doesn't know, because he doesn't know where the inflection point is on Koch.

[00:14:04] Speaker 01:
And that's consistent with the law, which is that when you have a drawing, whether it's a design patent or a utility patent that doesn't have the benefit of dimensions or scale or a specification explaining what those could reasonably be inferred to be,

[00:14:18] Speaker 01:
then you don't have the ability to measure this with mathematical precision and therefore it's incompetent evidence for that purpose.

[00:14:25] Speaker 01:
If this were a case where we were trying to patent a finger grip with five or six concentric circles around it, then Koch would be able to teach us something about the prior art.

[00:14:37] Speaker 01:
But with respect to mathematical measurements, Koch doesn't teach us anything about those.

[00:14:41] Speaker 02:
It seems to me you're relying on these different ratios, the AB ratio and the LW ratio.

[00:14:50] Speaker 02:
But what is it that?

[00:14:55] Speaker 02:
presents some sort of unexpected result or something?

[00:14:59] Speaker 02:
What is it about these ratios that is of any patentable consequence?

[00:15:05] Speaker 02:
And just to clarify what I'm trying to get at here, if I took this pen, which is clearly prior art, and I said, well, all right.

[00:15:16] Speaker 02:
I'm going to invent a pen that is between a half inch and five eighths of an inch in diameter and it's between five and seven inches in length and that's my claim.

[00:15:31] Speaker 02:
The patent office rightfully would say well that's of no patentable consequence it's just a matter of design choice unless you can show that there's some sort of unexpected result or something of consequence

[00:15:44] Speaker 02:
Isn't that the same here?

[00:15:46] Speaker 01:
I respectfully disagree with that comparison, Your Honor, that analogy because... Well, straighten me out.

[00:15:51] Speaker 01:
Sure.

[00:15:52] Speaker 01:
A pen is not used for the purpose of insertion into the human body.

[00:15:58] Speaker 01:
And so what we're talking about here is something that where the inventor said

[00:16:02] Speaker 01:
that the shape of this tip in their view and their considered judgment as persons of skill in the art and they have some data in their patent to support it, at least with respect to the L over W ratio, they viewed that changing the shape of the tip would result in less resistance and less discomfort during the insertion process.

[00:16:20] Speaker 01:
And it was a, so that's the utility of it, your honor.

[00:16:24] Speaker 01:
Okay, so in 1999, this patent was new, it was novel, and it was not obvious, and the utility of it.

[00:16:32] Speaker 01:
Correct.

[00:16:33] Speaker 02:
But what is it about that particular shape that makes it, I mean,

[00:16:38] Speaker 01:
Well, it performs its function, Your Honor, and their view was that it provided less surface area.

[00:16:43] Speaker 01:
The shape of it was sufficiently different from the prior art that it created a different experience and less resistance and less discomfort upon the insertion process.

[00:16:54] Speaker 01:
Whether it's an extraordinary result, I think it's beside the point, Your Honor.

[00:17:00] Speaker 01:
It was their judgment that this product had utility.

[00:17:03] Speaker 01:
It clearly served its purpose and was functional.

[00:17:05] Speaker 01:
And in fact, Edgewell has built a business around it on the place export.

[00:17:08] Speaker 02:
So something with an AB ratio of 0.9, for example, would fail that test?

[00:17:14] Speaker 01:
On the L over W, Your Honor, according to the patent itself, the L over W ratio... I'm talking about the AB ratio.

[00:17:21] Speaker 01:
Okay.

[00:17:21] Speaker 01:
We don't know, Your Honor.

[00:17:22] Speaker 01:
We don't have that data.

[00:17:23] Speaker 02:
0.8.

[00:17:24] Speaker 02:
What is it, 0.8, that's so special?

[00:17:27] Speaker 01:
We don't know.

[00:17:28] Speaker 01:
With respect to A over B, we don't know that, Your Honor, because it's not specified in the patent.

[00:17:32] Speaker 01:
I'm out of time.

[00:17:32] Speaker 00:
It does say we're in a ratio AB.

[00:17:35] Speaker 00:
Is it most 0.8?

[00:17:37] Speaker 01:
0.8, correct.

[00:17:38] Speaker 00:
That's in the patent.

[00:17:39] Speaker 01:
No, I'm saying the data supporting any extraordinary performance results is not in the patent.

[00:17:45] Speaker 01:
We don't have that data.

[00:17:46] Speaker 00:
All right.

[00:17:47] Speaker 00:
You have exceeded.

[00:17:48] Speaker 00:
You've run through your rebuttal time as well.

[00:17:50] Speaker 00:
We'll restore some rebuttal time.

[00:17:51] Speaker 00:
Thank you, Your Honor.

[00:17:52] Speaker 00:
Thank you.

[00:18:00] Speaker 03:
Good morning, Your Honor.

[00:18:01] Speaker 03:
David Lowenstein.

[00:18:02] Speaker 03:
I'm representing Alibaba.

[00:18:05] Speaker 03:
I just wanted to address some of the questions that you asked and some of the answers that Mr. Kravitz just gave about this notion of hypothetical.

[00:18:16] Speaker 03:
I'm reading from Appendix 3109, and that's what the district court cited, and I believe it was Footnote 9 that you were just asking about.

[00:18:25] Speaker 03:
There's nothing hypothetical about these questions and answers.

[00:18:28] Speaker 03:
The question was referring to the cotton pattern.

[00:18:32] Speaker 03:
And the question starts around 10.

[00:18:35] Speaker 03:
Let's assume there's an isometric drawing.

[00:18:37] Speaker 03:
You're able to tell anything about the shape.

[00:18:39] Speaker 03:
There's an objection.

[00:18:40] Speaker 03:
Just from this illustration, he says no.

[00:18:43] Speaker 03:
But it's more elongated than a hemisphere, right?

[00:18:46] Speaker 03:
It's an illustration, he says.

[00:18:47] Speaker 02:
Where exactly are you reading this?

[00:18:49] Speaker 03:
Sure.

[00:18:49] Speaker 03:
I'm on page 68 of the transcript, around line 15 now.

[00:18:53] Speaker 02:
68, line 15, OK.

[00:18:55] Speaker 03:
Correct.

[00:18:56] Speaker 03:
That's not my question.

[00:18:57] Speaker 03:
Try to listen to my question, because otherwise we're here.

[00:19:00] Speaker 03:
I'll skip over the colloquy, OK?

[00:19:02] Speaker 03:
And then back onto 69, you're specifically asking me about the tip, was the expert's question.

[00:19:09] Speaker 03:
Yes, about the tip.

[00:19:10] Speaker 03:
OK, specifically about the tip, does this look more elongated than a hemisphere?

[00:19:15] Speaker 03:
And the question was, that's the question.

[00:19:17] Speaker 03:
And I think it looks more elongated than a hemisphere.

[00:19:21] Speaker 03:
There's nothing hypothetical about that.

[00:19:22] Speaker 03:
He says, going on, and that's relying on the knowledge as an engineer, able to read isometric drawings, correct, objection.

[00:19:29] Speaker 03:
I'm just looking at the picture.

[00:19:31] Speaker 03:
So he's looking at Koch.

[00:19:33] Speaker 03:
And if you look at Koch, which is in the appendix here, at 1212,

[00:19:44] Speaker 03:
You don't have to believe me.

[00:19:45] Speaker 03:
You can just look at it with your own eyes.

[00:19:47] Speaker 03:
It's a tapered tip.

[00:19:48] Speaker 04:
In fact, in the intercom... Well, I think your friend largely agreed, even though he cobbled a little bit, that Koch shows an elongated tip.

[00:19:57] Speaker 04:
Correct.

[00:19:57] Speaker 04:
And their expert agreed with that.

[00:20:00] Speaker 04:
which answers, at least in part, the A-B question, if we set aside this dispute about .8 and 1 or whatever it is.

[00:20:07] Speaker 04:
But his point, I thought, was Koch doesn't say anything about the LW ratios, even if you assume an elongated tip.

[00:20:15] Speaker 04:
And honestly, I thought that the math really is pretty much the same, but I understood him to be saying, well, no, it requires further assumptions.

[00:20:25] Speaker 04:
It just isn't supported in Koch and that their experts didn't agree to it.

[00:20:29] Speaker 03:
Well, I think, taking a step back, the district court didn't impose any mathematical limitations on Koch.

[00:20:37] Speaker 03:
He said Koch is this picture.

[00:20:39] Speaker 03:
It shows a tapered tip.

[00:20:40] Speaker 03:
And from there, the question is, what does a person of ordinary skill and the art do?

[00:20:46] Speaker 04:
I guess my question is, how does Koch show the LW ratios?

[00:20:51] Speaker 04:
Specifically, does their expert talk about Koch in those terms that we would find undisputed?

[00:20:58] Speaker 03:
Well, I think the point that you raised is right on the money.

[00:21:02] Speaker 03:
Their position, really from the get-go, is that Koch is a clean slate.

[00:21:06] Speaker 03:
It has no ranges, no ratios.

[00:21:11] Speaker 03:
It only has a single value, but nobody knows what it is.

[00:21:13] Speaker 03:
So it provides no information.

[00:21:15] Speaker 03:
It's as if it were a blank piece of paper.

[00:21:18] Speaker 03:
And that's obviously not the case.

[00:21:20] Speaker 03:
So the question then becomes, well, what does Koch show?

[00:21:23] Speaker 03:
Koch admittedly shows four petals.

[00:21:26] Speaker 03:
And then they really go through what I think is some tortured analysis about saying, well, they're really asymmetric.

[00:21:32] Speaker 03:
And their expert says, it appears to suggest asymmetric petals.

[00:21:36] Speaker 03:
He doesn't say it has asymmetric petals.

[00:21:38] Speaker 03:
And keep in mind, they say that Koch has no information.

[00:21:41] Speaker 03:
If it has no information, how can it be asymmetric?

[00:21:44] Speaker 03:
It's nothing, according to them.

[00:21:47] Speaker 03:
So on one hand, it shows asymmetric petals.

[00:21:50] Speaker 03:
On the other hand, it provides no information.

[00:21:52] Speaker 03:
Both of those statements can't be true.

[00:21:54] Speaker 03:
And then they say that there's a devastating admission because our expert, Mr. Hull, tried to use a computer model.

[00:22:02] Speaker 03:
And they said, well, the computer model shows that these points don't line up.

[00:22:07] Speaker 03:
They say, and I think the third statement of issues in this case, that the computer model was defective.

[00:22:13] Speaker 03:
But then they're relying on the computer model to show that the Koch pattern, which they say has no information, is somehow inconsistent.

[00:22:22] Speaker 03:
And so the bottom line is Koch is a tapered tip.

[00:22:25] Speaker 03:
It has four petals.

[00:22:27] Speaker 03:
And the question is, does a person of ordinary skill in the art look at that and say, if I elongated a little bit, do I get A over B of less than 0.8, and do I get L and W between 1 and 2?

[00:22:38] Speaker 03:
And as Judge Flynn pointed out, there's no evidence in the record here that any of these things have any criticality associated with them, and there's no unexpected results.

[00:22:48] Speaker 03:
So this is just routine, day-to-day engineering.

[00:22:51] Speaker 03:
It's optimization that any number of cases that

[00:22:55] Speaker 03:
the panel's been involved in say is not patentable.

[00:23:00] Speaker 03:
You can't patent .8.

[00:23:02] Speaker 03:
And there's a statement in the district court's opinion and in our papers where Mr. Kravitz admitted that there's really no distinction between .7, .8, and .9 in terms of AB.

[00:23:14] Speaker 03:
And the LW ratio is just a form of optimization.

[00:23:19] Speaker 03:
You don't want to have the pedals to be too long and skinny because they become too flexible and they would open prematurely.

[00:23:28] Speaker 03:
And you don't want them to be too wide because they wouldn't open at all.

[00:23:31] Speaker 03:
So it's just a question of where do you find that point.

[00:23:34] Speaker 03:
And there's no magic there.

[00:23:35] Speaker 03:
It's just routine, day-to-day engineering work.

[00:23:43] Speaker 03:
You know, the idea that Koch is somehow ambiguous and does or doesn't provide information is really, in my view,

[00:23:53] Speaker 03:
I want to say red herring, but it's an overused term.

[00:23:56] Speaker 03:
But I mean, if Koch could or couldn't show symmetric or asymmetric petals, it wouldn't comply with 112.

[00:24:02] Speaker 03:
And there's the in Raymada case that says even design patents have to comply with that.

[00:24:10] Speaker 03:
So it's really a stretch to say that Koch doesn't provide any information, but it does have asymmetric petals.

[00:24:21] Speaker 03:
I can go on, but that's the nub of their argument, is that Koch doesn't provide any information, but it does provide information to them.

[00:24:30] Speaker 03:
So the idea that a person of ordinary skill wouldn't have come up with these ratios is really not supported by the evidence.

[00:24:39] Speaker 03:
And I can go back, really, my presentation was going to start at the beginning of all this, where

[00:24:45] Speaker 03:
Tapering, and we cited cases from decades ago that said, it's just a mechanical expedient.

[00:24:53] Speaker 03:
Everyone knows what tapering is.

[00:24:55] Speaker 03:
So you don't need to have an advanced degree in engineering to understand the concept of tapering.

[00:24:59] Speaker 03:
Their expert, Mr. Sheldon, got a patent in 1985, 14 years before the priority date of the asserted patent, that talks about a bullet-shaped tip.

[00:25:09] Speaker 03:
And he said it was for ease of insertion.

[00:25:11] Speaker 03:
And then he tried to run away from that statement and say, well, no bullets are round.

[00:25:14] Speaker 03:
So we cited at least half a dozen references below.

[00:25:19] Speaker 03:
I can quickly rattle off the names, Balthazar, Voss, Loyler, Berger, Actor, Koch, and Werner, that either had tapered tips, they had the second bend at the front,

[00:25:33] Speaker 03:
They had an all tapered tips right have to have inflection points and there's no evidence that the location of the inflection point is critical.

[00:25:42] Speaker 03:
So we've been talking about the ratios, whether or not they're critical.

[00:25:45] Speaker 03:
The same is true about the inflection point.

[00:25:46] Speaker 03:
There's no evidence of criticality for any of the inflection points.

[00:25:51] Speaker 03:
And there's nothing in the patent that suggests otherwise.

[00:25:54] Speaker 02:
Edgewell argues that Judge Jordan erred in relying on our ratio cases.

[00:26:04] Speaker 02:
And the argument is that, well, whatever Koch teaches doesn't teach a ratio.

[00:26:10] Speaker 02:
And it's really inapposite to the ratio cases he relied on.

[00:26:18] Speaker 02:
What's your comment?

[00:26:19] Speaker 03:
Well, I think what you're talking about is their range argument.

[00:26:22] Speaker 03:
And to me, it really boils down to a semantic distinction.

[00:26:26] Speaker 03:
We saw the picture of Koch.

[00:26:28] Speaker 03:
It's elongated.

[00:26:29] Speaker 03:
It's tapered.

[00:26:30] Speaker 03:
It's bullet shaped.

[00:26:30] Speaker 03:
Whatever it is you want to call it, that's what it is.

[00:26:33] Speaker 03:
And we know, based on that, that A over B is less than 1.

[00:26:36] Speaker 03:
So you can call that a range, or you can call it something else.

[00:26:39] Speaker 03:
It's really just a semantic distinction.

[00:26:42] Speaker 03:
It doesn't really make a difference if it's called a range or if it's called a single value.

[00:26:46] Speaker 03:
We know that it's less than one.

[00:26:48] Speaker 03:
And then the question is, if that's your point in the prior art, what does a person of ordinary skill take away from that?

[00:26:57] Speaker 03:
It's less than one.

[00:26:59] Speaker 03:
And again, they've said that their less than 0.08 is a range, so I'm not quite sure why less than 0.1 would not be a range.

[00:27:08] Speaker 03:
But again, it's really just a way to refer to what everyone can see by picking up Koch.

[00:27:14] Speaker 03:
And the same, as I just said, is true with respect to LW.

[00:27:17] Speaker 03:
If we all agree that Koch has four petals and then there's this, what I think is an artificial dispute about the size of the petals, it has to have an LW that's greater than one.

[00:27:28] Speaker 03:
And that's just because it's longer than a sphere.

[00:27:32] Speaker 03:
Once that happens, four petals, then you get an LW of greater than one.

[00:27:36] Speaker 03:
And where you stop,

[00:27:38] Speaker 03:
With the L, again, it's just an engineering exercise.

[00:27:41] Speaker 03:
Everybody knows if you make it too long, it's too pointy, it's uncomfortable.

[00:27:45] Speaker 03:
And if the pedals are too long and thin, they become unstable.

[00:27:49] Speaker 03:
And that's in the Berger patent that we cited in our brief.

[00:27:52] Speaker 03:
I think it was on page 14.

[00:27:55] Speaker 03:
That was just, again, routine engineering optimization that had been done.

[00:27:59] Speaker 03:
I think Berger did it in 1975, about 20 years before the priority date in this patent.

[00:28:07] Speaker 03:
And I mean, we can talk about the prior art, the patents that we've mentioned.

[00:28:13] Speaker 03:
There's also evidence that was not technically prior art, but P&G was working on this technology in 1965.

[00:28:22] Speaker 03:
Playtex itself was working on this a few months before the priority date, and so those aren't necessarily public.

[00:28:29] Speaker 03:
They're not necessarily prior art, but they are evidence of state-of-the-art.

[00:28:32] Speaker 02:
I think just one of the specific statements made in the district court's opinion that Edgewell criticizes is the statement made on page 17.

[00:28:43] Speaker 02:
This is appendix 28.

[00:28:44] Speaker 02:
28?

[00:28:45] Speaker 02:
28, yeah.

[00:28:50] Speaker 02:
Yeah.

[00:28:52] Speaker 02:
At the beginning of the paragraph at the bottom here, the claimed ranges fall within the prior art because those ranges are encompassed by the AB ratios and L over W ratio shown in the Koch patent.

[00:29:08] Speaker 03:
Right.

[00:29:09] Speaker 03:
So if you look at the clear value case, which I believe Judge Crost was the author of, the range in that case was similar to the range here.

[00:29:19] Speaker 03:
The prior art range, I think, in that case was less than 150 parts per million of alkalinity or something.

[00:29:26] Speaker 03:
And then the claim was less than 50.

[00:29:28] Speaker 03:
And in that case, and this is what Judge Jordan found, the claims were anticipated.

[00:29:33] Speaker 03:
And so here we have Koch that we all know is less than one for AB.

[00:29:37] Speaker 03:
and they're claiming less than 0.8.

[00:29:39] Speaker 03:
And so, again, is that a range or is that?

[00:29:43] Speaker 02:
Well, we don't necessarily know that there's an L over W range in Koch of between 1 and 2.

[00:29:50] Speaker 03:
True.

[00:29:51] Speaker 03:
We do not know that.

[00:29:52] Speaker 03:
But we do know that L

[00:29:54] Speaker 03:
over W is greater than one.

[00:29:56] Speaker 02:
And like I said, the point... But isn't that a mistake then on the part of the district judge?

[00:30:04] Speaker 03:
I don't think it's a mistake.

[00:30:05] Speaker 03:
I think he may have used the word range perhaps incorrectly.

[00:30:10] Speaker 03:
But the fact is that Koch did have an L over W. Again, as a matter of simple, what we've all agreed is grade school math, it did have an L over W of greater than one.

[00:30:22] Speaker 03:
And once it's greater than 1, it's within the 1 to 2 range.

[00:30:27] Speaker 03:
And then the question is, would a person of ordinary skill in the arts stop at some point?

[00:30:31] Speaker 03:
And the answer is yes.

[00:30:32] Speaker 03:
And where that person would stop is not a patentable event, as it were, right?

[00:30:37] Speaker 02:
It doesn't provide a kind of a mystery of why 2 and a mystery of why less than 0.8.

[00:30:45] Speaker 02:
There's nothing here that explains anything that's critical or special or unexpected or

[00:30:52] Speaker 02:
anything out of the ordinary.

[00:30:54] Speaker 03:
I agree with that.

[00:30:56] Speaker 03:
The L over W, to take a step back, means it can't be more than twice as long as it is wide.

[00:31:02] Speaker 03:
And that's what they've decided as a place to stop.

[00:31:04] Speaker 03:
And it could be three times as long, but then the tip would become too pointy, the petals would become too narrow, and they would open prematurely.

[00:31:16] Speaker 03:
The product could fall out in shipping.

[00:31:18] Speaker 03:
There's reasons that you don't want to have long, skinny petals.

[00:31:22] Speaker 03:
You know, people for decades were aware of that.

[00:31:25] Speaker 03:
And you're absolutely right.

[00:31:26] Speaker 03:
There's no evidence that these numbers that are frankly quite arbitrary provide any criticality or any unexpected results.

[00:31:36] Speaker 03:
And that's exactly what the judge determined.

[00:31:38] Speaker 03:
And I think he was absolutely right.

[00:31:42] Speaker 03:
So if there are no more questions, I think I will just sit down.

[00:31:46] Speaker 03:
Thank you.

[00:31:56] Speaker 01:
Thank you for your indulgence, Your Honors.

[00:31:58] Speaker 01:
I want to just touch on a few points based on your questioning of my friend.

[00:32:03] Speaker 01:
With respect to the range cases, the district court went down the path of the range cases, and that was legal error.

[00:32:11] Speaker 01:
Because Koch or any other prior art does not teach a range, whether it be A over B or L over W. Koch does not teach a range.

[00:32:19] Speaker 01:
Koch teaches a single A over B point and a single L over W point.

[00:32:24] Speaker 01:
But we don't know what they are.

[00:32:25] Speaker 01:
But they're certainly not a range.

[00:32:28] Speaker 01:
Someone says to me, I know you live on a house on a particular street.

[00:32:31] Speaker 01:
I don't know which house.

[00:32:32] Speaker 01:
That doesn't mean I live in every house on that street.

[00:32:34] Speaker 01:
It means I live in one house still.

[00:32:35] Speaker 01:
You just don't know which one it is.

[00:32:37] Speaker 01:
So there is no range.

[00:32:38] Speaker 01:
There was never an invitation.

[00:32:39] Speaker 01:
to go down the range path.

[00:32:41] Speaker 01:
And the discussion about whether it's optimization or routine experimentation, all that is subsumed within the range cases, right?

[00:32:48] Speaker 01:
That comes from in Ray Allers, right, from 1955, the CCPA, the predecessor court, right?

[00:32:54] Speaker 01:
That's the genesis of these range cases.

[00:32:56] Speaker 01:
And it makes sense in the context of the range cases, because if the prior teaches a range, but your patent claim is subsumed within that range, then you're getting a head start, right?

[00:33:05] Speaker 01:
You're getting a running start on your invention.

[00:33:07] Speaker 01:
And that's when it's appropriate to put an additional burden on you as the patentee to explain, why do you deserve this patent when you had the running start in the first place?

[00:33:14] Speaker 01:
That is not this case.

[00:33:17] Speaker 01:
Judge Jordan flipped the burden.

[00:33:20] Speaker 01:
He presumed this patent was invalid and forced us to prove that it was valid.

[00:33:24] Speaker 01:
He flipped the burden on us.

[00:33:26] Speaker 01:
And he changed the presumption of validity to a presumption of invalidity.

[00:33:29] Speaker 01:
And then to compound that error, he overlooked two significant secondary considerations of obvious factors, right?

[00:33:36] Speaker 01:
Specifically licensing.

[00:33:38] Speaker 01:
Edgewell paid a million-dollar upfront licensing fee for the 075 patent for exclusive rights to it, and then built a business around it a couple of years later.

[00:33:46] Speaker 01:
Copying.

[00:33:46] Speaker 01:
Indisputable evidence in the record, Your Honor.

[00:33:48] Speaker 01:
We have their emails.

[00:33:49] Speaker 01:
You have them in the briefs and the appendix.

[00:33:51] Speaker 01:
They cannot deny in good conscience that they copied our product.

[00:33:55] Speaker 00:
They copied every aspect of it, including and specifically... Is the main evidence there, this email, which I have somewhere quoted?

[00:34:04] Speaker 00:
But there's one email which has some comments made.

[00:34:08] Speaker 01:
There is indeed that email, Your Honor.

[00:34:09] Speaker 00:
And it just says that they intend to develop a plastic applicator to a shape similar to your product to the extent possible considering the existing patent restrictions.

[00:34:21] Speaker 00:
Is that the money sentence?

[00:34:23] Speaker 01:
That's the money sentence for that email.

[00:34:26] Speaker 00:
I'm not sure I find this compelling evidence of copying.

[00:34:29] Speaker 00:
How about the box?

[00:34:31] Speaker 01:
The box they sell their product in that says compare to Playtex Sport that has a picture of our tip on the back of it that they're emphasizing.

[00:34:37] Speaker 01:
They copied our product.

[00:34:39] Speaker 01:
If they want to pretend that they copied Koch or copied the prior art, why is their product green?

[00:34:44] Speaker 01:
Why does their box say compare to Playtex Sport?

[00:34:46] Speaker 01:
Why do these emails say that they were copying our product as closely as they could?

[00:34:50] Speaker 01:
We know what happened.

[00:34:51] Speaker 04:
They can copy it as closely as they can.

[00:34:53] Speaker 04:
and still not be within the exact infringement of your product.

[00:34:58] Speaker 01:
Exactly right, Your Honor.

[00:35:01] Speaker 01:
But they could have chosen to copy us at 0.9.

[00:35:04] Speaker 01:
If they just wanted something that's a little bit beyond the hemisphere, why not go with an A over B over 0.9?

[00:35:09] Speaker 01:
They didn't.

[00:35:09] Speaker 01:
They wanted our tip.

[00:35:11] Speaker 04:
The district court, I think, did a really good job on commercial success and found that even if you did have some

[00:35:19] Speaker 04:
commercial success, this was so clearly obvious.

[00:35:21] Speaker 04:
Why wouldn't that same argument apply to this very minimal copying evidence?

[00:35:27] Speaker 04:
And your license argument to me sounds frankly strange because it's not a license.

[00:35:31] Speaker 04:
You're not licensing this patent to others.

[00:35:33] Speaker 04:
You took a license from somebody else on it.

[00:35:37] Speaker 04:
And that seems like an odd kind of license evidence that I haven't seen before.

[00:35:42] Speaker 01:
I don't see why it's any less compelling than if we had licensed the patent to others.

[00:35:48] Speaker 01:
We were paying a million dollars to have the exclusive rights for this tampon applicator tip shape, these ratios.

[00:35:56] Speaker 01:
Edgewell is a player in this space, a sophisticated competitor in this space.

[00:36:00] Speaker 01:
They wouldn't have done that for a patent that a personal skill in the art would have deemed obvious based on a reference that's on the face of the patent.

[00:36:06] Speaker 04:
How do we know that?

[00:36:07] Speaker 04:
Is there any testimony to suggest that?

[00:36:09] Speaker 04:
I mean, they also may be a big company that decides, well, there's this patent out here and it may be a problem.

[00:36:14] Speaker 04:
It may not be in the scheme of thing.

[00:36:17] Speaker 04:
I know you say a million dollars, but it's a million dollars over a long period of time, isn't it?

[00:36:21] Speaker 04:
maybe that's just extra protection against an infringement suit.

[00:36:25] Speaker 04:
It has nothing to do whether it's obvious or not.

[00:36:28] Speaker 01:
We paid this license fee before we ever dreamed up this product.

[00:36:32] Speaker 01:
We paid the license fee in 2004.

[00:36:34] Speaker 01:
We don't start making this product until 2006.

[00:36:36] Speaker 01:
This is not a situation where we bought our way out of a potential problem down the road.

[00:36:41] Speaker 01:
This was a business judgment that this was technology worth owning.

[00:36:47] Speaker 00:
Okay, we've exhausted our time.