[00:00:00] Speaker 03:
Before I get started, I have a small administrative matter that I just need to raise.

[00:00:19] Speaker 03:
It was an inadvertent mistake, but when we submitted the appendices, there were apparently some pages in the middle of the appendices that were misnumbered.

[00:00:28] Speaker 03:
They were off by one.

[00:00:30] Speaker 02:
So as a result, there are several pages in there as filed that are misnumbered, and about 20 pages that were cited that were not included in the joint appendix.

[00:00:38] Speaker 02:
So what the parties would like to do is, with your permission, file a corrected joint appendix pursuant to Rule 25 I.

[00:00:49] Speaker 00:
Yeah, and you've consulted Coca-Cola.

[00:00:50] Speaker 02:
Yes, yes, Your Honor.

[00:00:52] Speaker 00:
OK, fine.

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

[00:00:53] Speaker 06:
Thank you for bringing it to our attention.

[00:00:55] Speaker 02:
You're welcome, Your Honor.

[00:00:56] Speaker 02:
Thank you.

[00:01:02] Speaker 05:
Since we're doing a little housekeeping, I'll let you start first, and then I'll hand you the housekeeping.

[00:01:07] Speaker 03:
Oh, I'm happy to.

[00:01:09] Speaker 03:
Thank you, Your Honor.

[00:01:10] Speaker 03:
May it please the court.

[00:01:12] Speaker 03:
Your Honors, there's no justification for using Kronzer as a lead reference.

[00:01:17] Speaker 03:
Before Jodi, people were already making dark t-shirts by creating a white canvas on their shirt.

[00:01:27] Speaker 06:
Thank you.

[00:01:34] Speaker 05:
Do you agree that this appeal involves all the claims discussed in the two later appeals that are going to be argued?

[00:01:41] Speaker 03:
Ah, yes.

[00:01:42] Speaker 03:
Yes it does.

[00:01:44] Speaker 03:
This appeal will cover all of the claims.

[00:01:49] Speaker 03:
The next appeal will cover some of the claims, and then there's a separate for the last set of patents.

[00:01:56] Speaker 06:
OK.

[00:01:56] Speaker 06:
If this case, say for example, this case had come last month and the other two cases were coming in succeeding months, and we affirmed in this case

[00:02:07] Speaker 06:
we would be holding in now on all the patents and claims that are issued in the other two cases.

[00:02:14] Speaker 02:
Yes.

[00:02:14] Speaker 02:
Yes, Your Honor.

[00:02:14] Speaker 06:
And would move those two appeals.

[00:02:16] Speaker 02:
Yes.

[00:02:17] Speaker 06:
Yes.

[00:02:17] Speaker 06:
Thank you very much.

[00:02:18] Speaker 02:
Yes, that's right.

[00:02:24] Speaker 02:
Just give me one second, Your Honor.

[00:02:27] Speaker 02:
There's only two seconds.

[00:02:28] Speaker 00:
We had to spin it going in different ways, so no.

[00:02:39] Speaker 06:
Oh, yeah, right.

[00:02:51] Speaker 01:
Yes.

[00:02:53] Speaker 01:
No, you're right.

[00:02:55] Speaker 01:
Yes.

[00:02:55] Speaker 00:
We're going to restart the clock again.

[00:02:57] Speaker 01:
I apologize.

[00:02:58] Speaker 01:
I just wanted to double check the numbers.

[00:03:00] Speaker 06:
Take a deep breath, and then you're going to start again what runs there in the last.

[00:03:05] Speaker 02:
I'm sorry.

[00:03:06] Speaker 02:
No, no, no.

[00:03:06] Speaker 02:
I should have memorized.

[00:03:07] Speaker 02:
I forgot the one that runs wrong.

[00:03:14] Speaker 03:
So may it please the court.

[00:03:17] Speaker 03:
Your honor, there's no justification for using Kronzer as a lead reference.

[00:03:23] Speaker 03:
Before Jody, people were making dark t-shirts by creating a white canvas on the shirt and then putting an image on that white canvas.

[00:03:33] Speaker 03:
What Jody's patent did was improve the way the image, the canvas, and the shirt interact.

[00:03:42] Speaker 03:
Why would someone who was trying to improve the interactions with a canvas start with a patent like Kronzer, which does not even have a canvas?

[00:03:53] Speaker 00:
OK.

[00:03:53] Speaker 00:
So I got a few questions about this lead argument theory, that you type a lead argument.

[00:03:58] Speaker 00:
The first is a waiver question.

[00:04:00] Speaker 00:
Because what we could find in the briefing was that you did make the argument that a person skilled in the art would not have looked for Kronzer at all.

[00:04:12] Speaker 00:
Is that not a different argument that said that the argument you're making now and the argument you made in your briefs, that they shouldn't have used Kronzer as the lead, not that they shouldn't have considered Kronzer at all?

[00:04:24] Speaker 00:
And if I'm wrong about that, show me where you made the argument that they shouldn't have used Kronzer as the lead.

[00:04:30] Speaker 03:
Well, I believe we made the argument in the reply brief.

[00:04:32] Speaker 03:
But that argument, I don't believe, has ever been waived because the

[00:04:38] Speaker 03:
the point we've made to the Patent Office repeatedly, and I'll try to find the citations.

[00:04:49] Speaker 03:
The point we always made to the Patent Office, and in fact it's why during the argument the board even asked Nina's counsel the question, was we've always said from the beginning, why would you start with Kronzer when Oyez is the one that has a, discloses a white layer?

[00:05:10] Speaker 03:
And so it makes sense to start with OAS, but when they did, the board repeatedly said that keeps the patents patentable.

[00:05:20] Speaker 03:
There is no justification for starting on a patent where the issue is, how do you deal with that white layer that provides a background for the image?

[00:05:30] Speaker 03:
To start with a patent that doesn't even have a white layer, has no canvas, and then say, let's borrow a single ingredient, not even the entire layer, but borrow a single ingredient from Oyez and put it in there.

[00:05:45] Speaker 03:
And the reason is, the only reason anybody would do it that way would be to use Jody's invention as a roadmap.

[00:05:53] Speaker 03:
Because otherwise, what would naturally happen- But you said you made this argument to the board.

[00:05:58] Speaker 03:
Yes, Your Honor, we did.

[00:06:00] Speaker 03:
And in fact, that's why they asked that question.

[00:06:03] Speaker 06:
In Judge Ankenbrand's discussion with you,

[00:06:07] Speaker 06:
564 and 562-34 and in this case was all in context of whether or not you're using the claims of erogation, correct?

[00:06:19] Speaker 02:
Whether we were using the claims of erogation.

[00:06:21] Speaker 06:
Yeah, that was the argument.

[00:06:22] Speaker 02:
That was part of the argument, yes.

[00:06:25] Speaker 06:
And there isn't any case law in a utility patent setting to say, well,

[00:06:31] Speaker 06:
process requires the selection of the lead reference and what a lead reference has to have in it.

[00:06:37] Speaker 06:
This isn't a design patent case.

[00:06:39] Speaker 03:
It isn't, but your own case law, the WBIP case that we cite and the YETA case that we cite actually make this point that when this issue is raised where we say specifically, hey, why would you select out of a sea of prior art, why would you select Kronzer as the lead?

[00:06:57] Speaker 03:
That issue was squarely in front of the Patent Office, and Nina was challenged with it, even at the oral argument.

[00:07:03] Speaker 03:
And there's never been an answer to that question.

[00:07:06] Speaker 03:
And the reason is because Kronzer doesn't even have a white layer.

[00:07:10] Speaker 03:
So when they did try, and they did try eight different times with a patent that does have a white layer, which is Oyez, the Patent Office said repeatedly, that doesn't render the claims unpatentable.

[00:07:22] Speaker 05:
Didn't the challenge patent cite Kronzer as prior art?

[00:07:26] Speaker 03:
Yes, the Kronzer was cited in all of the patents as prior art.

[00:07:32] Speaker 03:
When they originally went through the patent office and even for the reissue patent, all the Kronzer patents were cited as prior art.

[00:07:39] Speaker 06:
So one looks at the prior art and they see OAS and they see, oh yes, there's a possibility of using a white layer.

[00:07:46] Speaker 06:
But the way in which OAS uses his with a cross-linked polymer creates a kind of stiffness.

[00:07:53] Speaker 06:
And so one says, well, I'm also looking

[00:07:55] Speaker 06:
at Kronzner maybe wouldn't want on an ordinary scale be motivated to improve Kronzner.

[00:08:03] Speaker 06:
And especially when Kronzner said, well, you can have pigments.

[00:08:07] Speaker 06:
And Kronzner isn't limited to printing on white or black or on any particular surface.

[00:08:14] Speaker 06:
So the rationale, as I believe from the board, unless I'm mistaken, was that Kronzner itself has got

[00:08:22] Speaker 06:
information here about the field and one still in the art would have been motivated to improve Kronzer.

[00:08:29] Speaker 03:
So let me let me unpack that in a couple of different ways your honor first when when the board or Nina says Kronzer can be used with any t-shirt that misses the mark because all they're saying is it's a light it's a light fabric

[00:08:48] Speaker 03:
Transfer an iron on and you can put it on dark fabric.

[00:08:52] Speaker 03:
You just may not be able to see the design That's the problem and then but in terms of when using a white layer was a way to deal with the problem Yep, and using the white layer was the way did we always chose to deal with it in one way, right?

[00:09:10] Speaker 03:
Yeah

[00:09:10] Speaker 06:
which in the way in which they did it was with the cross-linked polymer.

[00:09:16] Speaker 03:
But the effect of that cross-linked polymer is critical here, which is everybody agrees what that did was it caused a white layer, in other words, that canvas that was stiff.

[00:09:27] Speaker 03:
It didn't interact or it didn't mix and melt with the other layers.

[00:09:31] Speaker 03:
The effect of that discovery on the patentees part when she discovered that was it allowed the t-shirt to move with the shirt.

[00:09:39] Speaker 03:
And so there is no discussion in Nina or the board to suggest why someone would be looking at those pieces and saying, you know what the problem is?

[00:09:50] Speaker 03:
It's not soft enough, and I'm going to try to solve for that.

[00:09:53] Speaker 03:
All they were saying is, I want to add a white layer.

[00:09:57] Speaker 03:
And the only piece of prior art and the only approach in the prior art was that stiff cross-linked polymer.

[00:10:04] Speaker 03:
And so the only solution that's there is the cross-linked polymer white layer being put onto Kronzer.

[00:10:14] Speaker 00:
Are you, you agree that Kronzer is analogous art?

[00:10:18] Speaker 00:
Kronzer is analogous art, your honor, but it's... So I'm getting, I mean, I've read WPIP and I've read YADA and I'm not, I mean, you're holding those cases out as if we've got this legal

[00:10:35] Speaker 00:
test here about picking lead arguments.

[00:10:38] Speaker 00:
I'm aware of analogous art.

[00:10:40] Speaker 00:
I'm aware in the chemistry field we sometimes deal with lead compounds.

[00:10:45] Speaker 00:
But this seems like an odd argument to me.

[00:10:51] Speaker 03:
I don't think it's not an odd argument.

[00:10:54] Speaker 03:
Let me let me phrase it slightly differently the reason we're bringing that out and the reason it was brought out in WPIP and in yetta is When you have a sea of prior art and it's a very specific problem that we're dealing with here, which is hey How do you put a white layer into a into a shirt and have it be able to move with the shirt?

[00:11:15] Speaker 03:
The prior art hasn't addressed this problem at all.

[00:11:19] Speaker 03:
And all you have is prior art that's out there, which is already out there, which is you can do some things for light t-shirts.

[00:11:26] Speaker 03:
No canvas in there, no background.

[00:11:28] Speaker 03:
And the claims require something where you have a layer that is actually providing the background for the image.

[00:11:36] Speaker 00:
So are you saying you win because there was no lead reference that you could have ever used?

[00:11:42] Speaker 00:
I'm saying you couldn't use- Even though you have, I mean, I thought the test was, is this analogous?

[00:11:46] Speaker 00:
Sorry, can we look at it?

[00:11:48] Speaker 00:
Are you saying that if you don't have a lead reference, you can't find obvious things?

[00:11:55] Speaker 03:
No, I'm not I'm not saying that but what I am saying in this context and I think it's what the cases are saying WPI be a kind of says it there's always a sea of prior art that could all be analogous art But there are times when there's a reason to look at why are you picking the lead reference?

[00:12:12] Speaker 03:
And that's a question that's been raised here.

[00:12:14] Speaker 06:
And so when you have

[00:12:16] Speaker 03:
So the consequence is, if you don't have a reason to pick the lead reference except because of the claims as a roadmap, that's improper.

[00:12:25] Speaker 06:
And that's where I'm going, is the only reason they picked Kronzer, they don't have... I think, if I'm not mistaken, the rationale they said the things about Kronzer was that it does permit the insertion of the pigment in the layer, right?

[00:12:41] Speaker 06:
Actually, what it says is it can use pigments, but there's no examples in concert for I understand that but just the Use of the pigment and also the fact that crowns there isn't doesn't limit itself to printing on white And so one of ordinary skill in the art is free to consider how to improve crowns

[00:13:00] Speaker 06:
Doesn't the law say, if one ordinary skilled in the art looks at a reference and says, hmm, this is very helpful in the art, i.e.

[00:13:10] Speaker 06:
having a white layer?

[00:13:10] Speaker 06:
Oh, it is?

[00:13:12] Speaker 06:
Do they know that?

[00:13:14] Speaker 06:
They look at the other art and they say, hmm, could I improve with that knowledge?

[00:13:19] Speaker 06:
Could I improve other prior art?

[00:13:21] Speaker 06:
Wouldn't one ordinary skilled in the art be motivated to do that?

[00:13:24] Speaker 06:
Yes, that's part of the law, KSR.

[00:13:27] Speaker 06:
But you'd still need a little reason to get into Kronzner.

[00:13:31] Speaker 06:
And the reasons for getting into Kronzner is Kronzner says, hmm, you can have pigments in layers, and you can try it on a black shirt.

[00:13:41] Speaker 06:
So then the question is, is there substantial evidence to support the board's conclusion, actual conclusion, that there were these two hooks, if not others, in Kronzner

[00:13:52] Speaker 06:
that said, this is why we're going to try to improve Kronzer in the light of what we learned from Ochs.

[00:13:59] Speaker 03:
So the first part I think I've addressed, but just to be clear, the main reason no one on that side has ever suggested why they started with Kronzer.

[00:14:10] Speaker 03:
And because Kronzer really doesn't solve this problem.

[00:14:14] Speaker 03:
When they did start with something that does solve this problem, which is a unique problem of dealing with having a canvas,

[00:14:21] Speaker 03:
the white layer, the only solution they had out there was the hard plastic, the cross-linked polymer.

[00:14:27] Speaker 03:
And there's absolutely no, no, in evidence.

[00:14:31] Speaker 06:
The artisan knew that Oz, although he had with genius solved the printing on the dark fabric, it created this stiffness, right?

[00:14:41] Speaker 06:
And I think that's a disadvantage.

[00:14:43] Speaker 06:
So one of the skilled in the art would be inclined, would she not, to want to find a solution to the stiffness?

[00:14:49] Speaker 03:
but there is no solution out there other than so Kronzer teaches a very specific solution which is stiffness which is this crosslink reaction

[00:14:57] Speaker 03:
And the patent office already found that if you try to just take that solution and put it into Oyez, that doesn't render the claims unpatentable.

[00:15:06] Speaker 03:
So the question becomes, why are they able to just pick the pigment out?

[00:15:11] Speaker 03:
And you even said there's pigment already disclosed in Kronzer.

[00:15:14] Speaker 03:
But why are they able to pick pigment out and then start to experiment with all of Kronzer?

[00:15:19] Speaker 03:
And there's a lot of evidence, including their own, that says that that would be unpredictable.

[00:15:23] Speaker 03:
Your case law says it's unpredictable art.

[00:15:27] Speaker 06:
That gets us into the merits of the combination.

[00:15:32] Speaker 03:
And that's part of it is they don't have substantial evidence.

[00:15:36] Speaker 06:
For me, sir, when I look at, to me, your lead argument based on the lead reference is, and it's combined, it's mixed up with your arguments on the merits as to why there is no motivation to combine whatever is my expectation of success.

[00:15:52] Speaker 06:
So if I, in my mind, was to tell you fairly how I dealt with your situation one, seeing your lead argument is sort of odd because there is no clear statement in the two cases you cite for the rule of law you'd like.

[00:16:10] Speaker 06:
Because those cases are referring to proceedings before the patent office and examination.

[00:16:17] Speaker 06:
And the body of law, the build on this comes from

[00:16:22] Speaker 06:
examiner's rejection is challenged to the board, the board then entering an alternative, you know, A over B, and then the board said no, it was B over A, and the question was, is that a new ground for rejection?

[00:16:34] Speaker 06:
No, and Judge Rich even said in one case, it's frivolous to try to make this distinction.

[00:16:40] Speaker 06:
So that's where all that case law comes from.

[00:16:44] Speaker 06:
But my point is, once I've read and looked at the question of motivation to combine with expectation of success,

[00:16:51] Speaker 06:
if I'm going to affirm the board on all of those data points on substantial evidence, then I look at your lead reference argument and it doesn't seem to have any bite because the reasons why Chrysler was important here was because it opened the door to being improved by a white layer.

[00:17:19] Speaker 03:
And the only thing I'd push back on, Your Honor, and respectfully, is it's the only reason everybody knows to now look at Kronzer and say, hey, it can be used for this, is looking at Jody's patent.

[00:17:33] Speaker 03:
Otherwise, there is no reason to start with Jody didn't come up with the idea of white.

[00:17:38] Speaker 03:
but Jody did come up with the idea of coming up with a new white layer that would work in a t-shirt and that had never been done before and the only way people had done a white layer before that was that very specific reaction and so one skill in the art there is no basis for if someone all of a sudden had these in front of them

[00:17:57] Speaker 03:
to say, hey, let me take the white layer.

[00:17:59] Speaker 03:
But no, not the entire white layer.

[00:18:01] Speaker 03:
That's the prior art solution.

[00:18:02] Speaker 03:
I'll just take the pigment out and start experimenting.

[00:18:05] Speaker 03:
There is no basis in the record for saying why one of skill would do that with any reasonable expectation of success.

[00:18:12] Speaker 00:
OK.

[00:18:13] Speaker 00:
You're welcome to.

[00:18:29] Speaker 04:
May it please the court?

[00:18:32] Speaker 04:
Just to start with the lead reference, it is an argument that wasn't raised.

[00:18:37] Speaker 05:
Do you also agree, just to kind of level it, that it's the same question that Judge Carpenter asked the other side, that if we were to affirm on this appeal or render the other two appeals, they're going to get argued, moved?

[00:18:48] Speaker 04:
Yes.

[00:18:49] Speaker 05:
OK.

[00:18:51] Speaker 04:
So it is definitely a new argument that wasn't raised below.

[00:18:54] Speaker 04:
The lead reference, and I think they admit that in a footnote in their paper, they say that they didn't make this specific argument.

[00:19:05] Speaker 04:
Oh, in their reply brief at 6, the gray book, at footnote 2, they said they didn't make this specific argument about the lead reference.

[00:19:16] Speaker 04:
They made a different argument, which is Kronzer should be used at all.

[00:19:19] Speaker 04:
And Ron are correctly pointed out that that argument's more akin to a non-analogous argument, which the board found.

[00:19:26] Speaker 04:
The board found Kronzer analogous.

[00:19:29] Speaker 00:
And they haven't challenged that on appeal.

[00:19:31] Speaker 04:
And they haven't challenged that.

[00:19:32] Speaker 04:
And that's Appendix 166.

[00:19:33] Speaker 04:
So the way we look at this and the cases they cite.

[00:19:37] Speaker 06:
But there was a discussion, at least,

[00:19:42] Speaker 06:
leading that discussion as to whether or not are you using or your side using the planes as a roadmap.

[00:19:52] Speaker 06:
And that was pointing to the fact that, you know, why are you, why, why, why do you, you already have loads that make no sense to go to Cronstein.

[00:20:05] Speaker 04:
So that's, that's correct.

[00:20:07] Speaker 04:
If it was raised at all,

[00:20:08] Speaker 04:
It wasn't raised in their papers.

[00:20:10] Speaker 04:
WBIP was never raised in their papers.

[00:20:12] Speaker 04:
And if it was raised at all, it was raised at oral argument.

[00:20:15] Speaker 04:
And the Federal Circuit in the Dell case said that that's not permitted.

[00:20:19] Speaker 04:
You're not allowed to raise a new argument, especially for an IPR proceeding, during the oral argument.

[00:20:24] Speaker 04:
It has to be based on the arguments and the evidence presented during the IPR process, the papers and the testimony.

[00:20:29] Speaker 04:
So even if it is addressed, there's definitely that exchange.

[00:20:33] Speaker 04:
But that would be inappropriate for preserving it for appeal.

[00:20:36] Speaker 04:
And then to criticize the board to say, where's their discussion about this lead reference, to us, it's a little unusual because it wasn't raised.

[00:20:47] Speaker 04:
And when we look at the issues they say they did raise, the board did address those issues, the at-all argument.

[00:20:53] Speaker 04:
They addressed it at appendix 174 through 175.

[00:20:56] Speaker 04:
So from our perspective, it's either those two arguments are the same, and the board did address it, and we are under a substantial evidence standard, or the newly referenced argument is truly new, wasn't preserved, and therefore we

[00:21:16] Speaker 00:
What about the lead argument, lead reference argument?

[00:21:19] Speaker 04:
Yeah, we don't believe it's required, Your Honor.

[00:21:21] Speaker 04:
And to be honest, the board's findings just in going through its obvious analysis makes it abundantly clear.

[00:21:27] Speaker 06:
Did you trace back the history of how Dunne and Ip and the others and Yeda got to where they got to the addicted in those cases?

[00:21:35] Speaker 04:
Yeah, tell us that WVIP is a case where the federal circuit was faced with a jury verdict.

[00:21:40] Speaker 04:
And they didn't get the jury verdict.

[00:21:43] Speaker 06:
There was this notion that you might have to defend picking one reference as opposed to another for a legal analysis.

[00:21:52] Speaker 06:
The notion, do you agree with me that that comes from older cases, from primarily CCPA and others that were dealing with the

[00:22:03] Speaker 06:
saying a reference as obvious A over B as opposed to B over A in the patent office?

[00:22:09] Speaker 04:
That's my error understanding, Your Honor.

[00:22:11] Speaker 04:
But even in, I think, the Mutec case, this court recently said that it's not about labels.

[00:22:17] Speaker 04:
It's really about what does the combined references teach.

[00:22:20] Speaker 04:
And in that instance, when we're talking about what they teach, the labels are less relevant.

[00:22:25] Speaker 04:
Because here, everyone agrees.

[00:22:27] Speaker 04:
The parties agree that both Kronzer and OAS teach each and every limitation of the claims.

[00:22:33] Speaker 04:
And so the labels are less important, but the most important focus in obviousness analysis is, what does the combined teachings of the two references?

[00:22:40] Speaker 04:
And so since here, that is the case, and the board went through that analysis.

[00:22:44] Speaker 04:
And they did find, I mean, this is a situation where Kronzer discloses every limitation other than the pigment.

[00:22:53] Speaker 04:
So I mean, it's a natural, as the lead references go, it's a natural because it has everything that the claim requires but the white pigment.

[00:23:02] Speaker 04:
And it itself invites one of Borny's skill in the art to add pigments.

[00:23:06] Speaker 04:
And OS comes in and says, well, here's our improvement on image transfer sheets.

[00:23:12] Speaker 04:
You add a white pigment in, and that will increase the brilliance of the image transfer.

[00:23:17] Speaker 04:
And so I think what their argument really boils down to, or their complaint, is that Pronser doesn't address

[00:23:26] Speaker 04:
the problem that the patent suit addresses.

[00:23:30] Speaker 04:
And that's just, the law doesn't require that.

[00:23:32] Speaker 04:
I mean, I think this court just recently in Enrique Guttavi in May of 2023 stated that there is simply no requirement that the board rely on references that recognize the problem identified in the asserted patent.

[00:23:47] Speaker 04:
And that's at 2023 WL 347, 7285.

[00:23:53] Speaker 04:
It's not in our brief just because it was issued after the briefing was done.

[00:23:58] Speaker 04:
But the concept is in the law in NRA PD back in Federal Circuit 92.

[00:24:03] Speaker 04:
And the board's decision itself addresses this at Appendix 174 when it says, Conjure may not solve, much less acknowledge, the specific problem of dark image transfer.

[00:24:14] Speaker 04:
So whether it's waived or not, we believe this argument is incorrect as a matter of law, the argument they're making.

[00:24:22] Speaker 04:
And we think it's incorrect because the board's findings amply demonstrate exactly why a Kronzer would be a good reference.

[00:24:29] Speaker 04:
Even addressing your point, the patent owner cited 18 Kronzer patents.

[00:24:34] Speaker 04:
He's well known in this industry.

[00:24:36] Speaker 04:
So he's a logical starting point for any image transfer.

[00:24:40] Speaker 04:
Moving on to the other argument they addressed, why would you pick out just the white pigment?

[00:24:48] Speaker 04:
And I think the short answer is, that's what OAS teaches.

[00:24:53] Speaker 04:
OAS expressly teaches that if you want to make an improvement to an image transfer sheet that's similar in structure, which the board found that Kronzer's and OAS's were similar,

[00:25:07] Speaker 04:
you add this white pigment, it gives additional brilliance, especially on dark textiles, especially in dark fabric.

[00:25:15] Speaker 04:
So it's saying, here's an improvement to an image transfer sheet, and the way you do it is the white pigment.

[00:25:21] Speaker 04:
And so the answer is the expressed teachings of OAS gives you an improvement that Kronzer invites into his image transfer sheet.

[00:25:33] Speaker 04:
To us, when we look at this, we have expressed teachings.

[00:25:36] Speaker 04:
This is not an issue of hindsight.

[00:25:39] Speaker 04:
When the teachings and the motivation come from the expressed teachings of the prior art, that's not consideration.

[00:25:46] Speaker 04:
Hindsight is when you don't have the motivation.

[00:25:49] Speaker 04:
Here we have expressed teachings explaining why one warning skill in the art would be inclined to combine the two.

[00:25:56] Speaker 06:
And friend, the expressed teachings are simply the element white is useful, even though cross-linked white

[00:26:02] Speaker 06:
is problematic.

[00:26:04] Speaker 04:
So you raise a great point, Your Honor.

[00:26:06] Speaker 06:
I mean, the real thing here is... And then the points that Kronzner says, well, you can have pigments, and there's no limitation to what you're printing.

[00:26:16] Speaker 04:
Right.

[00:26:16] Speaker 06:
And the board addressed this in saying that... Are there any other data points in Kronzner?

[00:26:22] Speaker 06:
You say express teaching.

[00:26:24] Speaker 06:
So other than teaching that you can have a pigment,

[00:26:31] Speaker 06:
And the fact that where Kronzner isn't restricting itself to what color and material it prints off.

[00:26:38] Speaker 06:
Any other teachings in Kronzner?

[00:26:42] Speaker 04:
I just think it's... I think those are the main teachings in Kronzner.

[00:26:47] Speaker 06:
And I do think that... You really need to find some teachings in Kronzner to help you to undermine the allegation that there's road mapping here.

[00:26:59] Speaker 04:
Okay.

[00:27:00] Speaker 04:
The other teaching would be that it has a common goal with OS.

[00:27:03] Speaker 04:
They share the common goal of increasing the quality of the image transfer.

[00:27:07] Speaker 04:
So if one of them is sitting with two references, they have similar structures and they both have the goal of transferring image quality, and one says, oh, by the way, I have an additional improvement.

[00:27:17] Speaker 04:
I have a way of improving image quality, something that Kranz is already interested in trying to do.

[00:27:23] Speaker 04:
Right?

[00:27:24] Speaker 04:
Then you put in what that improvement is, add white pigment.

[00:27:27] Speaker 04:
Right?

[00:27:27] Speaker 06:
And the cross-linking... Oh, it's already got there in terms of the black-black, black-brown problem.

[00:27:34] Speaker 04:
Right.

[00:27:35] Speaker 06:
It's really dark image, dark pixel.

[00:27:37] Speaker 06:
It introduced a thing on a t-shirt that felt like it was a board.

[00:27:41] Speaker 04:
But cross-linking, and this is, I think, something that the board made very clear in its findings, cross-linking and white pigment have nothing to do with each other.

[00:27:49] Speaker 04:
White pigment plays no role in cross-linking the white layer.

[00:27:52] Speaker 04:
So I think this is a situation where it's very clear, and I can go through this, where the board goes through its analysis, that the cross-linking is independent

[00:28:02] Speaker 04:
of the white pigment.

[00:28:03] Speaker 04:
The teachings that what one-ordinary skill in the art understands is the white pigment that gives you the whiteness.

[00:28:08] Speaker 04:
That's what's giving you the contrast.

[00:28:10] Speaker 04:
That's what's giving you the improvement and brilliance of the image transfer.

[00:28:14] Speaker 04:
The cross-linking is just, that's a reaction that in O.S.'

[00:28:17] Speaker 04:
's embodiments they believed was a part of their invention.

[00:28:21] Speaker 04:
But it doesn't change what it teaches one-ordinary skill in the art.

[00:28:24] Speaker 04:
What it teaches one-ordinary skill in the art, and the board made this incredibly clear, is that it's the white pigment and

[00:28:31] Speaker 04:
The board goes through this.

[00:28:32] Speaker 04:
They said that there's no patent owner didn't point them to anything that said that white pigment was required for cross-slinging and Kronzer.

[00:28:45] Speaker 04:
The board did their own review.

[00:28:47] Speaker 04:
I believe it said Appendix 175, where they said we looked it all as itself.

[00:28:51] Speaker 06:
We have four board opinions, right?

[00:28:53] Speaker 04:
What?

[00:28:53] Speaker 06:
We have four board opinions.

[00:28:54] Speaker 04:
Correct.

[00:28:55] Speaker 04:
Well, I think we've been working off the 475 patent one, so that's the appendix numbers that I've been reciting.

[00:29:01] Speaker 04:
So in 175, the board says that we do our independent review of OS, and we don't find anything where it says white pigment equals that.

[00:29:08] Speaker 04:
Both experts agree.

[00:29:10] Speaker 04:
Their expert agrees the white pigment is independent of the cross-linking.

[00:29:15] Speaker 04:
So yes, there is a difference between OS and Schweinman's pens, this cross-linking, but it's a difference that's irrelevant to the teaching that the white pigment is the solution.

[00:29:28] Speaker 04:
to the issue of trying to increase the image quality when you're transferring an image onto a doc fabric.

[00:29:35] Speaker 04:
And to the extent there's time or questions, I'm more than happy to answer.

[00:29:40] Speaker 00:
Thank you.

[00:29:41] Speaker 04:
Thank you.

[00:29:43] Speaker 00:
We'll restore three minutes of rebuttal.

[00:29:56] Speaker 03:
Your Honor, let me address two or three points that he made.

[00:29:59] Speaker 03:
One is, Oyez does not just teach the white pigment.

[00:30:03] Speaker 03:
What Oyez teaches, and the record is very clear, it's literally undisputed.

[00:30:07] Speaker 03:
They teach a very specific reaction for using it, which is a cross-linking reaction.

[00:30:13] Speaker 03:
And so that is what is taught to one skilled in the art.

[00:30:16] Speaker 03:
There is absolutely nothing in the record that says why a person of skilled in the art would just take the white pigment out and start to experiment when the only solution out there for providing a white background as the claims require is this very specific reaction.

[00:30:33] Speaker 03:
There is no white canvas, white layer in Kronzer.

[00:30:37] Speaker 03:
The only solution out there for a white layer for white background is that cross-linked reaction.

[00:30:42] Speaker 06:
But everybody knew in the prior art what the white was for.

[00:30:45] Speaker 03:
Well.

[00:30:46] Speaker 06:
Because in the olden days, you took the t-shirt and then you took the white and you put it down, stuck it on, and then you put the picture on the white.

[00:30:55] Speaker 03:
yep and so you know what the white is for and you know that if you try to incorporate it into one a one-piece teach up thing that you'd have it as a hard piece of plastic what no one solved in the prior art was how to make that softer and what they're suggesting is I would just take the

[00:31:12] Speaker 03:
the white pigment out, which everybody knew white pigment existed, and they had never done, and all of a sudden just start experimenting with the formulas in Kronzer.

[00:31:21] Speaker 03:
And that simply, even if you read Kronzer, you can see the number of failures, and there's not a single experiment in Kronzer where they even use a pigment.

[00:31:29] Speaker 03:
And it's just failures galore.

[00:31:32] Speaker 03:
And it's in our brief.

[00:31:33] Speaker 03:
But the main point is, if you had that solution, there's nothing in this record.

[00:31:38] Speaker 03:
Their expert, our expert, no one has ever explained why the only solution you have off the shelf is that specific cross-linked reaction, yet you take one ingredient out, and then you start to experiment with the formulas in Kronzer.

[00:31:53] Speaker 03:
And that's why there's not substantial evidence for the obviousness finding that the board came up with for all these patents.

[00:32:01] Speaker 00:
Thank you.