[00:01:05] Speaker 02:
Okay, our next case is number 19-1335 Shyrock Contents Factory Company versus Spin Master.

[00:01:49] Speaker 02:
Okay, one moment.

[00:01:57] Speaker 02:
Okay, Ms.

[00:01:57] Speaker 02:
Preston.

[00:01:59] Speaker 00:
May it please support Hilary Preston for Chor Rock, the appellant here.

[00:02:03] Speaker 00:
The pronunciation is Chor Rock.

[00:02:06] Speaker 00:
I pronounce it with a hard CH, Choi-rock.

[00:02:09] Speaker 00:
Choi-rock, okay.

[00:02:09] Speaker 00:
But I'm sure in Korean there's a more nuanced pronunciation with that.

[00:02:13] Speaker 00:
Oh, Choi, yeah, okay, Choi-rock.

[00:02:14] Speaker 00:
I do not speak Korean, unfortunately.

[00:02:17] Speaker 00:
But yes, Choi-rock will suffice for our question, certainly.

[00:02:21] Speaker 00:
Your Honors, I'd like to begin with the question of standing that was raised in the opposition brief by Spinmaster.

[00:02:27] Speaker 00:
I'm actually not sure if Spin Master continues to press this point, given that the record has now been supplemented with clear evidence that there is standing in this case.

[00:02:35] Speaker 00:
We'll ask them.

[00:02:37] Speaker 00:
Yes, I trust you will, but I'd like to address the standing first and hit a couple of key points there.

[00:02:43] Speaker 02:
I'm not sure that you need to do that.

[00:02:45] Speaker 02:
No.

[00:02:47] Speaker 00:
I will be happy to skip the standing point.

[00:02:51] Speaker 00:
On the merits here, Your Honors, we're sort of interesting to sit through the last discussion.

[00:02:57] Speaker 00:
We're now switching to toys.

[00:02:59] Speaker 00:
We're talking about a patent that issued in 2007 for a transformable toy that opens and closes and reveals something inside.

[00:03:10] Speaker 00:
Choi Rock challenged all claims in that patent in an IPR petition.

[00:03:17] Speaker 00:
Two of the challenged claims were, in fact, invalidated.

[00:03:20] Speaker 00:
This appeal addresses the failure to invalidate the remaining claims.

[00:03:26] Speaker 00:
The technology is, as it suggests, fairly simple.

[00:03:29] Speaker 00:
We're talking about mechanical designs, something that opens and reveals something inside.

[00:03:34] Speaker 00:
The prior art is also extraordinarily simple, and it happens to be from about three decades earlier.

[00:03:41] Speaker 00:
So the key pieces of prior art and the one single piece that I will focus on in most of my argument

[00:03:48] Speaker 00:
is Maruyama 693, which is a Japanese patent that also discusses a spherical toy that opens and reveals, in that case, a robot inside.

[00:04:03] Speaker 00:
The English translation is Appendix 770.

[00:04:06] Speaker 00:
The PTAB below relied on Maruyama 693 in finding that it anticipated

[00:04:18] Speaker 00:
Claims five and six the ones that were invalidated There is striking overlap between the claim limitations of five and six and in the claims that were not actually invalidated We have in claims five and six we have a first movable member That was found to be disclosed in Mariama 693.

[00:04:39] Speaker 00:
We have a second was invalidated correct claims five and six were invalidated

[00:04:44] Speaker 00:
Five is the independent claim.

[00:04:47] Speaker 00:
Six adds that one of the revealed surfaces has an image on it.

[00:04:50] Speaker 00:
So those are the two claims that were invalidated.

[00:04:54] Speaker 00:
Both of those claims involve the first movable member, the second movable member, a coupler in between that allows the relative movement as between the two pieces, and also involves the revealers, which, not surprisingly, their job is to reveal the thing inside.

[00:05:11] Speaker 00:
And as I said, claim six then adds that the thing revealed must include an image on the surface.

[00:05:17] Speaker 00:
And all of those limitations were found present in Mariama 693 under 102 analysis.

[00:05:24] Speaker 00:
Those findings of the PTAB are not challenged before this court.

[00:05:30] Speaker 00:
And I think that's critically important because the limitations in the remaining claims are strikingly similar.

[00:05:40] Speaker 00:
The first two claims that I would like to talk about are the other independent claims that the patent begins with, claims one and three.

[00:05:47] Speaker 00:
And the dispute here is about the word includes.

[00:05:53] Speaker 00:
And Spinmaster has made an argument about that there's a late claim construction issue being raised on appeal.

[00:05:59] Speaker 00:
That is really not truly the case.

[00:06:01] Speaker 00:
as we can point to the evidence in the record that this issue of whether includes can be equated with connected is present from throughout the IPR proceeding.

[00:06:12] Speaker 00:
The final written decision from the board did not formally construe includes but it did refer to includes meaning form a part of is the language that they use.

[00:06:25] Speaker 04:
And your position here is that connected is sufficient.

[00:06:28] Speaker 00:
Correct.

[00:06:29] Speaker 04:
And that's Mr. Hurdle's position.

[00:06:31] Speaker 00:
Correct.

[00:06:32] Speaker 00:
Yes.

[00:06:33] Speaker 00:
You find support for that in the abstract of the 504 patent?

[00:06:40] Speaker 04:
Of course, Mr. Hurdle had a, to me, somewhat aggressive, shall we say, definition of connected.

[00:06:48] Speaker 04:
As far as he was concerned, connected meant if you move one part, then the second part also moves, if I recall correctly.

[00:06:56] Speaker 04:
In other words, if you, to take an example from a different area,

[00:07:00] Speaker 04:
If you, on that theory, the front bumper of an automobile would be connected to the rear bumper, because if you put a hook on the front bumper and pull it, the whole automobile, including the rear bumper, is pulled.

[00:07:12] Speaker 04:
That struck me as quite an unusual construction of connectedness.

[00:07:18] Speaker 00:
That may be fair, Your Honor.

[00:07:19] Speaker 00:
I actually don't think for claims one and three in the anticipation by Mariyama 693, there's any dispute that the revealers are connected to the display member.

[00:07:31] Speaker 00:
I don't think we'll hear from Spinmaster, and it's not in their briefing.

[00:07:33] Speaker 04:
Has Mr. Hurdle construed those terms?

[00:07:36] Speaker 04:
We're connected to it, you say?

[00:07:38] Speaker 00:
Yes, I don't think there's any dispute.

[00:07:40] Speaker 00:
But we're not included.

[00:07:41] Speaker 00:
Right.

[00:07:41] Speaker 00:
The dispute is included.

[00:07:43] Speaker 00:
I don't think there's any dispute that they are, in fact, connected.

[00:07:45] Speaker 00:
And visually, when we look at the figures of Mariama 693, it's not difficult to conclude that the arms are, in fact, attached to, connected to, the torso.

[00:07:56] Speaker 00:
And that's what we're talking about here.

[00:07:58] Speaker 02:
The torso is the display member?

[00:08:01] Speaker 00:
The torso is the display member, correct.

[00:08:03] Speaker 03:
Why would it be true in general that connected equates to include?

[00:08:10] Speaker 03:
My computer is connected to a server.

[00:08:12] Speaker 03:
My computer is not included in the server.

[00:08:16] Speaker 00:
Understood that is the language that's consistently used in the specification of the 504 so I was going to draw your honors attention to appendix at 133 where there is a discussion of the first and second Then this is an abstract of the 504 the first and second movable members include at least one revealer and

[00:08:37] Speaker 00:
And then it goes on to explain that the revealer is movably connected to the first and second movement.

[00:08:44] Speaker 03:
Right, so sometimes the language of connection can be part of what can be in the context in which something is included so that the button on my jacket is connected

[00:09:00] Speaker 03:
by a semi-rotatable thread.

[00:09:07] Speaker 03:
I could say maybe the button is part of the jacket or maybe the button is not part of the jacket.

[00:09:13] Speaker 03:
But in this context, you're talking about essentially half the egg, the abstract, right?

[00:09:19] Speaker 03:
Half the egg includes something.

[00:09:23] Speaker 03:
And it's connected that that sense is, the point of the sense is to say it's moveably connected.

[00:09:29] Speaker 03:
But it's another thing to say that a very specific subcomponent, the torso, includes the arms just because there's a connection between them.

[00:09:40] Speaker 00:
Understood your honor and I but I think that that is what the patent contemplates is that language includes is consistently used in the way that it means connected and in fact the the board found that in a slightly different context in talking about certainly contemplates that the arms in the

[00:09:59] Speaker 02:
figure in the patent are connected to the torso, right?

[00:10:03] Speaker 00:
Correct, Your Honor.

[00:10:04] Speaker 00:
Exactly in the same way that they are in Mariama 690.

[00:10:07] Speaker 03:
Why does that imply that the arms are included in the torso?

[00:10:12] Speaker 03:
That would be an odd thing to say.

[00:10:14] Speaker 00:
It may well be an odd thing to say, but I think it is how the language is used in the patent

[00:10:20] Speaker 00:
When you look at the figures in the 504 patent and the discussion of what the display member is in the 504 and the pieces that are connected to or included in the things that are rotatively connected to that.

[00:10:35] Speaker 00:
There are direct parallels between that and the exact same figures in discussion in Mariama 693.

[00:10:42] Speaker 00:
And the point that I was going to make about the board's prior finding, the board has, in a slightly different context, equated that their connected to can actually mean integrally formed structures.

[00:10:57] Speaker 00:
And that's the board's conclusion in Appendix 337.

[00:11:03] Speaker 00:
And Spinmaster actually agreed with that statement in Appendix 417.

[00:11:08] Speaker 00:
So you do see a series of places in which connected to is equated with includes.

[00:11:20] Speaker 00:
With respect to the arguments that are made that this is a new issue that ought to be disregarded on appeal, the spinmaster points to the Google case and the photometrics case, both of which are very distinguishable.

[00:11:38] Speaker 02:
In the Google case, the... Why don't you address Claim 7 and 8 in the image?

[00:11:45] Speaker 00:
issue before we run out of time here.

[00:11:51] Speaker 00:
and claim eight, the only thing that is in dispute is whether, again, we're talking about Mariama 693 in a direct anticipation argument.

[00:12:00] Speaker 00:
We're talking about whether there's a disclosure of the presence of an image on one of the surfaces that's revealed.

[00:12:07] Speaker 00:
And interestingly, claim six, which wasn't validated, also has an image on a surface that was revealed.

[00:12:16] Speaker 04:
So I- Of course, we don't.

[00:12:18] Speaker 04:
Necessarily have to accept the proposition that the board was correct on Its disposition of five and six I mean we look independently at the question of whether the claims that were disallowed are in fact properly disallowed Notice the board made a mistake with respect to five and six.

[00:12:35] Speaker 04:
That's irrelevant

[00:12:36] Speaker 00:
No disagreement that we look independently at the claims that are before the court on this appeal.

[00:12:42] Speaker 00:
My only point in connecting the two is that it raises the question of whether or not there is substantial evidence to support the board's finding.

[00:12:49] Speaker 00:
So the board looked at the same evidence in Mariama 693, found that there was an image disclosed, and somehow with respect to claims seven and eight, found that there was not an image disclosed in the exact same piece of prior art.

[00:13:03] Speaker 02:
So my understanding is you're relying on the specification here

[00:13:06] Speaker 02:
with respect to the feet, and you're saying that if you move down the foot, then you have an image of the leg and the foot, right?

[00:13:16] Speaker 02:
And so that has to be within the image language of the claim.

[00:13:25] Speaker 02:
And with respect to the prior art, I understand the theory about the movement of the head

[00:13:32] Speaker 02:
Once you move the head up, you can see there's a head that's an image that's similar to the foot thing in the specification, but this requires a plurality of images.

[00:13:45] Speaker 02:
Where do you find the other images?

[00:13:47] Speaker 00:
I believe, Your Honor, the claims seven and eight require at least one image.

[00:13:54] Speaker 00:
The plurality of revealers is the language that's used in claims one and three.

[00:13:58] Speaker 00:
And claims seven and eight require just a revelation of at least one image.

[00:14:04] Speaker 00:
So whether it's the head or whether it's a foot, which the specification does talk about sufficing as an image, either of those would be sufficient.

[00:14:14] Speaker 03:
Where is the best specification passage about the foot?

[00:14:20] Speaker 00:
Your Honor, in Column, Appendix 139, in Column 4 of the patent, Line 60 through 62, and this is a quotation from those lines of the specification, the revealer includes a surface having an image such as feet.

[00:14:41] Speaker 00:
You also see in Column 3,

[00:14:43] Speaker 00:
Line 64 to 65, one surface having an image such as a face.

[00:14:48] Speaker 00:
So not the feet, but another instance where the thing that is revealed is part of the figurine that is contained within the revealed structure.

[00:15:01] Speaker 02:
OK, you want to save your rebuttal time?

[00:15:03] Speaker 00:
I'll reserve the rest of my time.

[00:15:04] Speaker 02:
Thank you, Your Honors.

[00:15:08] Speaker 02:
OK, Ms.

[00:15:08] Speaker 02:
Bailey?

[00:15:09] Speaker 01:
May it please the court?

[00:15:12] Speaker 01:
You mentioned earlier that you may have questions for me on standing.

[00:15:15] Speaker 01:
Do you want to begin with that, or would you like to?

[00:15:16] Speaker 04:
Are you continuing to press standing?

[00:15:18] Speaker 01:
Yes, your honor.

[00:15:19] Speaker 04:
Why?

[00:15:21] Speaker 01:
Why?

[00:15:21] Speaker 04:
Why?

[00:15:24] Speaker 01:
Because the matters with respect to the Tony McCar toy line, which is the toy line that Troy Rock says that it intends on selling, have been resolved.

[00:15:35] Speaker 04:
There were various

[00:15:36] Speaker 04:
claims of confidentiality in the briefs with respect to this general area.

[00:15:41] Speaker 04:
Is there an understanding among the parties as to how far you can go in this field?

[00:15:49] Speaker 00:
In the declaration that was submitted with the reply brief, there is a paragraph that talks about the concrete plans to sell the product that is not confidential.

[00:15:58] Speaker 00:
That's paragraph 10.

[00:15:59] Speaker 00:
And then there's a paragraph 11, which provides some further detail that does remain confidential and under seal.

[00:16:05] Speaker 00:
So I think we can speak generally about the concrete plans that are part of the declaration without going into the detail.

[00:16:10] Speaker 00:
OK.

[00:16:10] Speaker 04:
Well, as long as everybody's on board with that.

[00:16:14] Speaker 01:
And I will try to be cognizant of that.

[00:16:16] Speaker 01:
Perhaps my counsel could let me know if she feels that I'm overstuffing.

[00:16:21] Speaker 01:
But I am going to try to be cognizant of that confidential information.

[00:16:25] Speaker 01:
So the Turner-McCarr toy line that Troy Rock says they intend on selling

[00:16:32] Speaker 01:
All claims regarding that toy line were resolved via the Mattel litigation.

[00:16:37] Speaker 01:
So just as quick background that is in our briefing, Spin Master sued Mattel in 2018 on the Turning Macard toy line.

[00:16:45] Speaker 01:
Mattel was a distributor for Choi Rock and Sana Kong of the Turning Macard toy line in the United States.

[00:16:54] Speaker 01:
That litigation has now settled.

[00:16:56] Speaker 01:
And all matters regarding any past sales of the Tony Macar toy line are now resolved.

[00:17:02] Speaker 02:
What about future sales?

[00:17:04] Speaker 01:
Does not address future sales.

[00:17:05] Speaker 01:
So let's talk about future sales.

[00:17:08] Speaker 01:
With respect to the future sales, Troy Rock has three reasons for why they believe they have standing.

[00:17:14] Speaker 01:
The July 2015 letter, these alleged imminent sales, and the denial of a covenant not to sue.

[00:17:22] Speaker 01:
So let's talk about the letter first.

[00:17:25] Speaker 01:
This letter from Spin Master was sent to Sonokong, not Choi Rock.

[00:17:31] Speaker 01:
Sonokong is not a party to this proceeding.

[00:17:34] Speaker 01:
They were not a party to the IPR, and they were not an RPI in the IPR.

[00:17:40] Speaker 02:
Per Choi Rock's... I think it would be helpful if you just gave us an overall statement of why there is no standing.

[00:17:48] Speaker 02:
Why is there no standing given

[00:17:51] Speaker 02:
that they are a competitor and that they have specific plans.

[00:17:54] Speaker 01:
Because we don't know what those specific plans are.

[00:17:56] Speaker 01:
The declaration has generalized allegations of selling the Trinium McCar toy line, but we don't know what the specifications of that toy line are.

[00:18:04] Speaker 01:
Over the years, the products have changed.

[00:18:06] Speaker 01:
There's approximately 25 to 30 different products in the McCar toy line.

[00:18:11] Speaker 01:
Not all of those products were asserted in the Mattel litigation on the unrelated patents.

[00:18:15] Speaker 01:
We also don't know what the specifications are going to be for any future products.

[00:18:21] Speaker 02:
toys in that line that you believe would infringe the claims that are involved here.

[00:18:29] Speaker 01:
So in the Mattel litigation we do not assert the 504 patent.

[00:18:33] Speaker 01:
I think that's notable.

[00:18:35] Speaker 02:
Well that's fine, but I'm asking a question.

[00:18:37] Speaker 02:
Is there any question but that in your view these toys would infringe the 504 patent?

[00:18:45] Speaker 01:
So I want to be careful about divulging attorney-client information but

[00:18:50] Speaker 01:
Let me say that that analysis has not been undertaken.

[00:18:58] Speaker 01:
And the reason is that we don't have any information on what that toy line might look like.

[00:19:06] Speaker 01:
And we do not have a desire in the Mattel litigation when we could have asserted the 504 patent against the toy line.

[00:19:13] Speaker 01:
There's no indication from Spin Master to Toy Rock that they intend on selling in the future.

[00:19:20] Speaker 03:
What do you mean you could have?

[00:19:21] Speaker 01:
Because?

[00:19:22] Speaker 01:
Because we were already bringing suit.

[00:19:26] Speaker 01:
From just kind of a circumstantial point of view, if we're already bringing a lawsuit on three other patents against a major toy company on the same toy line, it makes sense that if we're going to assert our patents, we're going to assert all the patents that we want to assert.

[00:19:39] Speaker 02:
Because you didn't sue them, we can assume that there's no case or controversy?

[00:19:44] Speaker 01:
That's not exactly what I think.

[00:19:47] Speaker 01:
That's not the point that I want you to take away from it.

[00:19:49] Speaker 01:
But I do think it's a factor into the analysis.

[00:19:52] Speaker 01:
And this is a analysis that requires many weighing of the factors.

[00:19:56] Speaker 01:
But another thing that I think is important here is that there's no evidence that Choi Rock is the entity that would actually be selling the product in the US.

[00:20:05] Speaker 01:
In other words, we have no evidence that Choi Rock has any business in the US.

[00:20:09] Speaker 01:
That they have the ability to sell in the US.

[00:20:12] Speaker 02:
Well, they produce the toys, right?

[00:20:14] Speaker 01:
But Sonokong... Yes, they produce the toys.

[00:20:18] Speaker 01:
From what I understand, Choi Rock is the toy developer, but Sonokong is the distributor of the toys.

[00:20:26] Speaker 02:
Okay, so they produce and design the toys?

[00:20:29] Speaker 01:
I do believe that Choi Rock designs the toys.

[00:20:33] Speaker 01:
When you say produce, I'm assuming you mean manufacture?

[00:20:37] Speaker 01:
Yes.

[00:20:37] Speaker 01:
I actually don't know, and it's been unclear from Choi Rock.

[00:20:41] Speaker 01:
and there's other briefing going on and other IPRs, what that relationship is.

[00:20:48] Speaker 01:
But if you read between the lines, and I invite the court to go read paragraph 11 of the declaration that is designated confidential.

[00:20:55] Speaker 01:
If you read between the lines, it looks to be carefully worded that there is an intermediate party between Choi Rock and what is going to happen in the United States.

[00:21:05] Speaker 01:
And we believe that party is.

[00:21:08] Speaker 01:
But Sonocong is not an entity.

[00:21:10] Speaker 01:
It's not a party to this lawsuit.

[00:21:13] Speaker 01:
If we were going to sue on the 504 patent, from what we understand, it would be against Sonocong because they are the distributor in the US.

[00:21:21] Speaker 01:
They're the company importing.

[00:21:22] Speaker 02:
We could certainly sue the designer, couldn't you?

[00:21:24] Speaker 01:
If they're not taking any activities in the United States, I'm not sure how we would have a claim.

[00:21:30] Speaker 02:
If the products they're designed are being distributed here, we can't sue them?

[00:21:34] Speaker 01:
But they're not importing or manufacturing or using or selling.

[00:21:38] Speaker 01:
the products.

[00:21:40] Speaker 03:
And you don't think that for Article 3 purposes there's standing of the upstream foreign maker to challenge a patent that would harm its ability to sell to the downstream US distributor?

[00:21:55] Speaker 01:
That was not part of the briefing.

[00:21:57] Speaker 01:
We have not considered that question.

[00:22:01] Speaker 04:
What do you think of it?

[00:22:03] Speaker 04:
What do you think about that?

[00:22:06] Speaker 04:
We have to consider that question.

[00:22:09] Speaker 04:
Therefore, you do.

[00:22:11] Speaker 01:
If they're not the entity that is actually having the presence in the United States, then they're not performing any of the activities that would give rise to infringement in the United States.

[00:22:24] Speaker 01:
And so there seems to be a disconnect between what Troy Rock is saying that they intend on doing versus what they actually say

[00:22:32] Speaker 01:
their related party somehow, Sonocong is doing.

[00:22:36] Speaker 01:
I find that problematic.

[00:22:37] Speaker 01:
I would question

[00:22:40] Speaker 01:
I think that Sano-Kong, if we were to sue Choi Rock, would come back and say that we don't have the ability to sue them because they're not the actual company that is producing, selling, manufacturing.

[00:22:54] Speaker 03:
But that might not be for Article III standing reasons.

[00:22:58] Speaker 03:
It might simply be because they don't come under title

[00:23:03] Speaker 03:
35 the provisions for liability because they're not doing any of the things in the u.s.

[00:23:09] Speaker 01:
Or the couple of foreign things that are covered Understood, but then shouldn't sauna conk have been listed as an RPI and the IPR and I will I

[00:23:20] Speaker 02:
Well, that has nothing to do with the standing issue.

[00:23:23] Speaker 01:
Well, if they have listed, if Troy Rock had listed Sonocong as an RPI in the IPR, I don't think we would be arguing a lack of standing here.

[00:23:37] Speaker 01:
They had their opportunity to bring in a company that they felt was related and harmed, and potentially have an injury in fact, and they chose not to.

[00:23:46] Speaker 02:
I don't see how that can deprive them of standing if they have it.

[00:23:49] Speaker 02:
There's no argument here that they failed to join a necessary party.

[00:24:00] Speaker 01:
So I'm sorry, could you?

[00:24:02] Speaker 02:
This case comes to us from the board without that issue.

[00:24:08] Speaker 02:
There's no issue about a failure to name a real party in interest.

[00:24:11] Speaker 02:
The question is, do they have standing here to challenge the board's decision?

[00:24:18] Speaker 02:
since they were the petitioner below.

[00:24:21] Speaker 01:
So perhaps I can pivot away from the discussion of Sonna Kong versus Troy Rock and go back to the facts that we know that would grant them standing.

[00:24:30] Speaker 01:
And based on what we know then, all they have is the alleged imminent sales.

[00:24:35] Speaker 01:
But we don't know what those sales will be.

[00:24:37] Speaker 01:
And I will tell you, Your Honors, we have looked for those sales.

[00:24:40] Speaker 01:
And they should have happened by now.

[00:24:42] Speaker 01:
And we're not seeing them in the marketplace.

[00:24:44] Speaker 01:
The toy community is selling as a very complicated area.

[00:24:48] Speaker 01:
To get into brick-and-mortar sales, you have to approach a Target or a Walmart many months in advance.

[00:24:55] Speaker 01:
There's no evidence of that, and it's actually very difficult to get product onto Target's shelf.

[00:25:00] Speaker 01:
You have to be a big player like Mattel or Hasbro.

[00:25:03] Speaker 01:
With respect to online sales, we're not seeing any online sales of the Tony McCar toy line by Toy Rock.

[00:25:12] Speaker 04:
Could you address the issue on the merits that we last were discussing with your colleague?

[00:25:22] Speaker 01:
Claim seven and also if you would also address claim nine With respect to claims seven and eight this is issue two enjoy box briefing So this ultimately comes down to a failure to map problem in claim seven

[00:25:41] Speaker 02:
There is a limit.

[00:25:41] Speaker 02:
I'll put aside the failure to map for a moment.

[00:25:44] Speaker 02:
OK.

[00:25:44] Speaker 02:
If you look at the specification and description of the feet, and you look at the prior art in terms of the movement of the head, it's exactly the same in terms of revealing an image.

[00:25:56] Speaker 02:
Moving the head up reveals an image of the head.

[00:25:59] Speaker 02:
Moving the feet down reveals an image of the feet, right?

[00:26:05] Speaker 01:
That one particular discussion is

[00:26:09] Speaker 01:
But I want to note a difference for you, Your Honor.

[00:26:12] Speaker 01:
Claim 7 has a different limitation than Claim 6.

[00:26:15] Speaker 01:
The limitations in Claims 2 and 6, which are dependent claims, are the same.

[00:26:19] Speaker 01:
But in independent Claim 7, the limitation is slightly different.

[00:26:23] Speaker 01:
The board noted this in its opinion at APPX 27.

[00:26:28] Speaker 01:
And essentially said, even if we were going to give credence to the mapping and claim two, that still doesn't get us to a teaching of the limitation, because the limitations are different.

[00:26:39] Speaker 01:
And simply because there may be an image on it.

[00:26:42] Speaker 02:
But what I'm asking, forget about the mapping, which is basically an argument that they didn't articulate this sufficiently before the board.

[00:26:50] Speaker 02:
I'm asking you, in comparing those two things, they're the same, right, in terms of the claims seven and nine.

[00:27:01] Speaker 01:
When the feet of Maryama are revealed, do I think it reveals an image?

[00:27:07] Speaker 01:
Is that what you're asking me?

[00:27:08] Speaker 01:
Yes.

[00:27:10] Speaker 01:
I haven't considered that question because, before you get frustrated with that response, I haven't considered it because it wasn't Matt.

[00:27:22] Speaker 01:
At least I'm acknowledging it.

[00:27:25] Speaker 01:
Because it wasn't Matt.

[00:27:27] Speaker 01:
And I'm usually on the petitioner sides in IPR.

[00:27:30] Speaker 01:
We're held to a really high standard on the mapping.

[00:27:33] Speaker 01:
And when you completely don't map a limitation whatsoever, this isn't a question of, did they map adequately?

[00:27:39] Speaker 01:
It's completely missing.

[00:27:41] Speaker 01:
I don't, as a patent owner, have to get any further.

[00:27:47] Speaker 01:
But one thing I also, if I may just.

[00:27:50] Speaker 04:
But if you could take it one step further, is there a difference?

[00:27:56] Speaker 01:
There is an image.

[00:27:57] Speaker 01:
I would say that there is an image on the feet.

[00:28:00] Speaker 01:
But I would say, and I emphasize this, that the claim limitations are different between the two.

[00:28:05] Speaker 04:
And what's the critical difference on which we could predicate a distinction saying, this is why claims seven slash eight are unpatentable, notwithstanding the contrary conclusion with respect to five and six?

[00:28:21] Speaker 01:
Sure.

[00:28:23] Speaker 01:
refer you to the board's decision at the appendix 27.

[00:28:26] Speaker 01:
The difference is?

[00:28:28] Speaker 01:
Because it's a revealer.

[00:28:29] Speaker 01:
And the definition, the claim construction for revealer from the IPR, is that when it's revealed, you actually have to rotate to reveal.

[00:28:36] Speaker 01:
And that is not taught in the reference Mariama.

[00:28:42] Speaker 01:
This is the design path.

[00:28:45] Speaker 01:
Yes, this one is on the design path.

[00:28:48] Speaker 02:
If you consider the design patent together with the prior utility patent, it does show rotation, right?

[00:28:57] Speaker 02:
That wasn't the ground percentage, Your Honor.

[00:28:59] Speaker 02:
No, but they argued it in relief.

[00:29:01] Speaker 02:
The ground was the design patent.

[00:29:03] Speaker 02:
But the question is, does the design patent show something that's rotatable?

[00:29:07] Speaker 02:
And the suggestion is, if you consider the design patent, the utility patent helps you understand that the design patent is showing something that's rotatable, as I understand it.

[00:29:19] Speaker 01:
But per the board's opinion, you still don't have a teaching that it's going to be revealed to rotate.

[00:29:26] Speaker 01:
So the rotation reveals the image.

[00:29:29] Speaker 01:
And the board considered this exact discussion that you're asking me about.

[00:29:35] Speaker 02:
Why don't you address the other merits issue?

[00:29:39] Speaker 01:
on the includes.

[00:29:40] Speaker 04:
Could plain nine, could you?

[00:29:42] Speaker 04:
Yes, what do you, do you have a specific question?

[00:29:44] Speaker 04:
Well, the coupled to the opposite, the coupler and the attachment at opposite ends, you say, not shown in the coupler.

[00:29:54] Speaker 01:
So I actually don't think that this is shown.

[00:29:56] Speaker 01:
Okay.

[00:29:57] Speaker 01:
So you pressed me earlier.

[00:29:59] Speaker 01:
I actually don't think that this is shown.

[00:30:00] Speaker 01:
So I think there's a failure to map limitation or problem here too.

[00:30:05] Speaker 01:
But if you were to look at the rear view,

[00:30:09] Speaker 01:
of the Mariamma reference.

[00:30:13] Speaker 01:
It's difficult to tell because it's a design patent, but it's unclear where that kind of lower section that is called, I believe it's called the pack, where it connects to

[00:30:26] Speaker 01:
the coupler.

[00:30:28] Speaker 01:
It looks like it connects to the coupler in, I believe, Fig 2, but there are other... Fig 2 is the best.

[00:30:34] Speaker 01:
There are other figures that when you try to, like, put the Mariama and sit there and think about, like, how would it be rotated back together, it doesn't quite match up.

[00:30:43] Speaker 01:
And it's unclear.

[00:30:44] Speaker 01:
We've actually... I've actually spent a lot of time trying to think about how it would be connected.

[00:30:49] Speaker 01:
So I don't think that it is connected.

[00:30:52] Speaker 04:
Well, on Fig 2, the two connectors are those, it's hard to describe them because they aren't marked with numbers, of course, but those do appear to attach the upper and lower members, correct?

[00:31:10] Speaker 04:
Yes.

[00:31:11] Speaker 04:
If I hold it up, perhaps you can see it.

[00:31:14] Speaker 04:
The lower member, the upper member, and the two connectors.

[00:31:17] Speaker 04:
So the questions then would be, are they rotatively connected?

[00:31:21] Speaker 04:
And are they connected at opposite ends of the connector, right?

[00:31:25] Speaker 01:
That is correct.

[00:31:26] Speaker 01:
That would be.

[00:31:27] Speaker 04:
Now, which is it that you think, which are both, are not shown?

[00:31:33] Speaker 01:
I don't necessarily think that it's rotatively connected at the lower end.

[00:31:38] Speaker 01:
I see that connection there, but.

[00:31:41] Speaker 04:
So in other words, you think it may well be the case that the connectors are fixed on the lower end and swivel only with respect to the upper end.

[00:31:50] Speaker 01:
Yes, if I may use my body.

[00:31:52] Speaker 04:
Like this, is that?

[00:31:53] Speaker 01:
Exactly, if I may use my body.

[00:31:55] Speaker 01:
I think the toy does this and closes in around itself.

[00:31:59] Speaker 01:
But not clam shell.

[00:31:59] Speaker 01:
And not that.

[00:32:01] Speaker 01:
Not a clam shell type structure.

[00:32:02] Speaker 01:
OK.

[00:32:04] Speaker 01:
May do.

[00:32:05] Speaker 01:
I see that I'm out of time.

[00:32:06] Speaker 02:
Please sit down.

[00:32:07] Speaker 02:
I'd like you to address.

[00:32:08] Speaker 02:
The display member includes a limitation in claim one.

[00:32:14] Speaker 02:
It seems to me if you look at figure one of the patent, which does show arms and torso, it would satisfy the claim limitation of claim one.

[00:32:26] Speaker 02:
What's the difference between that and the prior art?

[00:32:31] Speaker 01:
So a couple of things, Your Honor.

[00:32:33] Speaker 01:
First, I think we have to be very careful to not compare

[00:32:38] Speaker 01:
the figs from the patent suit to the figs from the reference.

[00:32:41] Speaker 01:
I think that is wholly improper and that's something that Troy Rack has done repeatedly.

[00:32:46] Speaker 01:
But second of all, in the patent suit, the 504 patent, the display member was described as the entirety of the figurine.

[00:32:54] Speaker 01:
It was not just the torso.

[00:32:55] Speaker 01:
And part of what's going on in claims one and three is that Troyrock had to be very careful in its mapping.

[00:33:02] Speaker 01:
And so it mapped the display member.

[00:33:03] Speaker 02:
We're getting back to the mapping again.

[00:33:05] Speaker 02:
But in terms of comparing the figures, I understand your argument that it's improper.

[00:33:10] Speaker 02:
But the counter argument would be that figure one is described as being something that's within claim one.

[00:33:19] Speaker 02:
There's no difference between the two, right?

[00:33:21] Speaker 02:
I mean, it's just arms connected to the torso, arms connected to the torso.

[00:33:26] Speaker 01:
I disagree, Your Honor, and if I may explain.

[00:33:29] Speaker 01:
The claim recites a display member.

[00:33:32] Speaker 01:
A display member includes revealers and revealers connected to movable member.

[00:33:38] Speaker 01:
Now, the display member and the movable member are mapped by Troy Rock as the same structure, the torso of the body.

[00:33:46] Speaker 01:
But in the 504 pattern, the movable members are those hemispherical structures that you see.

[00:33:53] Speaker 01:
But the display member is the entirety of the figurine.

[00:33:57] Speaker 02:
And so in the abstract, which describes differently in the prior art, which seems to be the sole basis that I can see for the board's conclusion in this respect.

[00:34:09] Speaker 01:
I would submit to Your Honor that the reference does not have movable members like the 504 patent has.

[00:34:19] Speaker 01:
Because the display member, I'm sorry, because the torso of the body in the reference has to satisfy for Troy Rocks mapping both the display member and the movable member, what happens is the mapping falls apart because there is no separate movable member per the claim.

[00:34:38] Speaker 02:
That's not what the board said.

[00:34:40] Speaker 01:
The board did determine

[00:34:43] Speaker 01:
The board applied the analysis that the display member and the movable member are both met by the torso in the reference.

[00:34:53] Speaker 01:
And when I say torso, I mean that torso section.

[00:34:56] Speaker 04:
Middle of the figuring.

[00:34:57] Speaker 01:
Yeah, it's structural element one in the reference.

[00:35:02] Speaker 02:
OK, I think unless there are other questions, we're on time.

[00:35:06] Speaker 01:
Thank you, Your Honors.

[00:35:09] Speaker 02:
OK, Ms.

[00:35:09] Speaker 02:
Preston.

[00:35:15] Speaker 00:
Thank you, Your Honors.

[00:35:16] Speaker 00:
I have just a few points to address from that discussion.

[00:35:19] Speaker 00:
Within claim nine, there was a discussion there about whether or not the movable members were rotatably connected.

[00:35:27] Speaker 00:
The claim language is actually movably connected.

[00:35:30] Speaker 00:
which I think is important.

[00:35:31] Speaker 00:
I don't think there's any distinction that there are two pieces that open and close and are, in fact, movably connected.

[00:35:38] Speaker 00:
You can see that by comparing Figure 7, and here I'm talking about Mariama 258, which is the design pattern, comparing Figure 7 with Figures 11 and 12, which show that the legs have, in fact, moved.

[00:35:52] Speaker 00:
There's not a requirement of a separate type of movement like a rotation.

[00:35:56] Speaker 04:
But doesn't the second movable member

[00:35:59] Speaker 04:
for example, in 9, have to be movably connected to the opposite end of the coupler, which I would assume that the member must move vis-a-vis the coupler, not just vis-a-vis the first member.

[00:36:14] Speaker 00:
If I understood the question no no no no it was a perfect question I want to make sure I'm following it if I understood the question The the claim limitation does require that the second movable member be movably connected To the opposite end of the coupler right that that's the claim language and it has to be movement vis-a-vis between the coupler and the Second member not simply between the second member and the first member

[00:36:41] Speaker 00:
Correct.

[00:36:42] Speaker 00:
That's correct, yes.

[00:36:43] Speaker 00:
And I do think that you can see that from the comparison of the figures that I just went through.

[00:36:47] Speaker 00:
But I do understand your honor's question.

[00:36:50] Speaker 00:
If I could touch on just a few points in my limited time, one thing that is important for us to clarify here, there's been an introduction in the briefing that made the point again today that the resolution of the Mattel litigation has somehow absolved the threat to Choi

[00:37:09] Speaker 00:
without going into information that is not in the record and certainly would be subject to confidentiality requirements.

[00:37:17] Speaker 00:
That's not accurate.

[00:37:19] Speaker 00:
That's not accurate.

[00:37:20] Speaker 00:
And that's really important for us to emphasize that point.

[00:37:24] Speaker 00:
Certainly, if that was accurate, that begs the question of why when we asked for a covenant not to sue, they weren't willing to give it.

[00:37:30] Speaker 00:
There is an ongoing controversy there.

[00:37:34] Speaker 00:
Another point that I think is important to correct is that it's emphasized that there's no evidence that Choyak is going to sell into the US.

[00:37:44] Speaker 00:
There's discussion of all the Sonicong stuff.

[00:37:46] Speaker 00:
The evidence is actually fairly clear in paragraph 10 of the declaration.

[00:37:50] Speaker 00:
that there will be sales in the U.S.

[00:37:52] Speaker 00:
So we do have that element that is discussed as being key to the standing dispute.

[00:37:57] Speaker 02:
And I see that I am now over my time.