[00:00:00] Speaker 04:
first argument for today is 23-2101 American Science and Engineering versus Stewart.

[00:00:07] Speaker 04:
Mr. Hankel.

[00:00:09] Speaker 02:
Good morning your honors.

[00:00:10] Speaker 02:
Aaron Hankel on behalf of American Science and Engineering.

[00:00:13] Speaker 02:
May it please the court.

[00:00:16] Speaker 02:
The first appeal we have involves U.S.

[00:00:18] Speaker 02:
Patent 8300-763.

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I don't anticipate this to be a lengthy argument.

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This appeal entirely turns around an expert's after-the-fact amendments to the express descriptions of a patent that he denominated as... You're talking about the little dashed red lines.

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And the entry points and the scanning angles and essentially everything that the board relied on.

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If you look at the final written decision, I counted it up last night.

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The board cites the patent just precisely one time in their anticipation analysis.

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Everything else is the experts, after the fact, characterizations of that patent based on the 763 patent.

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And so this is relatively straightforward.

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It's not the anticipation analysis that this court requires from any finder of fact.

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But counsel, you agree that the opinion doesn't have to be perfect for us to reach a conclusion with respect to a firm, right?

[00:01:10] Speaker 02:
Absolutely your honor, and I know this court sits in judgment or reverses judgment not opinions But the judgment is wrong and the analysis was flawed I don't believe even if you're right on anticipation Don't you have a problem on obviousness?

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I would disagree because the problems that are inherent in the anticipation analysis is the lack of disclosure.

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This is an express anticipation case.

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At least that's how the board framed their opinion in their analysis.

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Well, there's a disclosure of scanning.

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There's a disclosure of a sweeping beam.

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It's just a question of where that beam is located, whether it's located at an entry point, and whether it's

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covers the entire inspection space.

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And it seems to me you've got some pretty compelling evidence that it would be just a logical change to extend that to the entry of the physical structure.

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I would respectfully disagree with the logical analysis.

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I know that their experts said it would be most logical to start at certain points, but that is the precise type of hindsight analysis that is not permissible on obviousness.

[00:02:28] Speaker 00:
Well, if you're going to inspect things of different sizes, wouldn't you want to have a space that was large enough to accommodate whatever those variables might be?

[00:02:40] Speaker 02:
Your honor, I think our expert admitted to that, and I think that makes intuitive sense with the teachings of the 763 patent.

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But as we explained in our blue brief, there were other solutions to scanning the entire truck.

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And we talked about the Swift patent in the publication.

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You can do corner scanning, or you can do like a boom-based scanning.

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You don't necessarily have to do it in the way that the patent teaches.

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And in the art, there were different ways.

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You do multi-pass scanning, and we discussed those in our briefing.

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The patent provides a particular solution to a problem that wasn't in the art, and so that's the advancement, and that's what we should be looking for.

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What would have motivated someone?

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And the evidence that the board relied on, and the only thing we have is hindsight, because it's in theory that you could look at the known elements, as Your Honor pointed out.

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Yes, x-ray scanning existed long before this patent.

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So did backscatter technology, and backscatter detectors, and backscatter imaging.

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But it's it's not the it's not an a la carte type of ordering off a menu thing It's the the new and novel use of the previously known structures that is exemplified in these method claims that render them patentable both over CEPI or over the prior art alone and in combination Does that answer the court's question on the obviousness?

[00:04:01] Speaker 02:
Thank you

[00:04:03] Speaker 02:
So I had a little outline of what I want to talk about.

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I wanted to give an overview, at least in my perspective, of what the invention is, if that's helpful to the court.

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Then I would like to go through some of the admissions that the board made on anticipation, which I think are fatal to that.

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And then lastly, return to the 103 obviousness analysis of the board, unless the court has questions for me now.

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I would prefer if you would focus on the obviousness analysis first, as opposed to the order you're proposing.

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Absolutely, Your Honor.

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So the best way to focus on the obvious analysis, unfortunately, I do have to address the board's findings on anticipation.

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And I think the best way to do that is to point out the three, what I would argue are the

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The main flaws in the first is that inspection space, the drawing of figure one.

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This is what we address in our blue brief at pages 30 through 36 and 40 through 44.

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This is the foundational assumption because it's what sets up the first edge, the first entry point, and the inspection space.

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None of that is expressly described in the patent.

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I urge the court to read Chalmers, and when I refer to Chalmers, we're not disputing that it incorporates by reference the other Groszins reference.

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Both of those are patents from my client, who has been active in the space for 50 plus years.

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We're not disputing that Groszins is incorporated by reference to the Chalmers, so when I say Chalmers, I'm gonna be globally referring to both references and their teachings combined, and I'm happy to address them

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if the court has specific questions.

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But there is nothing in Chalmers, both alone or in combination with Groxsons, that provides information that defines this inspection space, that defines the first edge that's identified by the... Why can't the PTAP's finding that a skilled artisan would know to start scanning at a corner support the obviousness rationale here?

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That is more focused on the obviousness, but I understand.

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The problem with the board's foundational analysis is that it assumes that the detector arrays that are depicted in Figure 1 of Chalmers are drawn to scale.

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When this was pointed out to the board by my client, Viking would distance itself from that characterization of Figure 1, and they said the figure's not to scale.

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You cannot rely on it to be at scale.

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And so they argued that we couldn't argue that the rotating chopper wheel is drawn to scale.

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The entire board's analysis depends on that detector array being drawn to scale relative to the truck.

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So if the question is why can't you... Can you show me where in the analysis it depends on it being drawn to scale?

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Can you give me a page?

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The board actually didn't reference it.

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It was an issue that came up between the parties.

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That would be appendix 0399.

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That's a viking distance itself from the chopper wheel.

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Essentially, we pointed out that if you do a 60 degree, a 72 degree, or a 90 degree scan from Source 54, as it's depicted in figure one of Chalmers, you're not going to scan the whole truck.

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And their response was, of course, it's not drawn to scale.

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You can't rely on it as being drawn to scale.

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But that's absolutely what the board did.

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And it's kind of like a picking and choosing.

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The food.

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What is the precise page where I should know and look at that I would know the board did what you just said?

[00:07:27] Speaker 03:
Appendix.

[00:07:29] Speaker 02:
Absolutely, Your Honor.

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Appendix 28 is when the board says that the inspection space is delineated by the detectors 56 and 24.

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They repeat that analysis at appendix 37 through 38, citing appendix 888, which is Lanza's, Dr. Lanza's declaration of paragraph 127.

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And again- I'm on JA 28.

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You're just going a little too fast for me.

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Where?

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Sorry, Your Honor.

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Where on page 28?

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There's a quote, and hopefully I have it right.

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Accordingly, we are persuaded

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On the complete record before us, that Chalmers inspection split inspection space.

[00:08:05] Speaker 04:
I think I must be looking at it.

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Am I in the right brief?

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You have two of them here.

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I think I'm in the right.

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This is Appendix 28.

[00:08:12] Speaker 04:
OK.

[00:08:12] Speaker 02:
All right.

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The board basically finds that the inspection space in Chalmers is defined by Detectors 24 and 56.

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They say so again on page 37 and 38 of the final written decision, which is Appendix 37 and 38.

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And again on page 40.

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where they say, overall, we find persuasive petitioners' arguments in Dr. Lane's.

[00:08:34] Speaker 04:
And you told me page 28.

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I'm like, what is she?

[00:08:36] Speaker 04:
Her page 28 looks like mine.

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Where does she see this?

[00:08:38] Speaker 04:
I don't see anything.

[00:08:39] Speaker 04:
I don't see whatever you're talking about.

[00:08:41] Speaker 03:
I see the page, the line numbers, or not line numbers, the lines that he is referring to.

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But that still doesn't answer my question, in my opinion, that this is the board concluding that it must be drawn to scale.

[00:08:53] Speaker 02:
Oh, if that was the question, Your Honor, I misunderstood it.

[00:08:56] Speaker 02:
They don't say those words.

[00:08:57] Speaker 03:
OK, so you just are reading some type of ghost writing on the page to get to the fact that you think the board is assuming that it had to be drawn to scale?

[00:09:07] Speaker 02:
Well, they're relying on the scale that's provided for the detector array in Figure 1 as defining the inspection space on the one hand.

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And then on the other hand, saying, well, you can't rely on the scanning angles that

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Actually source would provide because the figure is not drawn to scale or that was like its argument The board did not discuss the scale issue.

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It was presented the board.

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It was not addressed But it's not drawn to scale.

[00:09:29] Speaker 02:
I think we all know that that was the petitioners argument below and that's the foundational assumption that goes into the board's anticipation analysis is that Who cares about everything else the detectors are drawn to scale relative to the inspected object.

[00:09:43] Speaker 02:
We think that was incorrect It's certainly not expressly supported in the records itself

[00:09:48] Speaker 02:
There are two other assumptions or admissions that the board made in terms of anticipation.

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Do you have anything else on obvious?

[00:09:56] Speaker 04:
I'm going to be honest, I don't totally follow your last argument about the drawn to scale thing.

[00:10:00] Speaker 04:
I don't necessarily see that the board erred in the way that you're suggesting.

[00:10:06] Speaker 04:
So is there another argument on obviousness that you have, or is that the main obviousness argument?

[00:10:11] Speaker 02:
Fair enough.

[00:10:13] Speaker 02:
Your honor, I'm sorry if I was less than clear on that.

[00:10:15] Speaker 02:
There are two admissions on the scanning space where the board expressly says we recognize AAS&E's argument that it doesn't expressly disclose this.

[00:10:24] Speaker 02:
So that funnels into the obviousness.

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The amount of issues and changes that the board had to make to reach its anticipation finding

[00:10:30] Speaker 02:
We're supported in its two-page analysis.

[00:10:32] Speaker 04:
I know, but we... Look, you got us on anticipation.

[00:10:37] Speaker 04:
You went on anticipation.

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Problem is, they made an alternative finding of obviousness, and I don't see how you went on that one.

[00:10:42] Speaker 04:
So that's kind of why we're... I think we're all trying to keep you focused on obviousness because we don't think that you need to spin your wheels on anticipation.

[00:10:50] Speaker 04:
I'm just trying to be honest and helpful.

[00:10:52] Speaker 04:
So, I mean, you know, just try to focus on obviousness if you could, because that's where you've got to persuade at least me.

[00:10:58] Speaker 02:
Fair enough.

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The changes that were made on the obviousness analysis are both the position and configuration of the x-ray sources, not just from the right-hand perspective, but from the bottom.

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The board basically says you can choose any number of chopper wheel arrangements, the number of spokes, and make a customized scanning arm.

[00:11:17] Speaker 02:
And then you can, in ordinary scale, you can move and change the geometry to start and stop the scanning wherever you want.

[00:11:23] Speaker 02:
That was the first set of changes that the board says was obvious.

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And the entire motivation was that it was logical and that it would, the motivation was to scan the entire truck.

[00:11:32] Speaker 02:
But as the board recognized on page 40 of the final written decision, that's appendix 40, even the proposed obviousness combination doesn't scan the entire truck here.

[00:11:41] Speaker 02:
It omits the wheels so the board's analysis and reasoning why someone would be motivated To apply this like hindsight analysis doesn't even solve the problem that the board identified as motivating the skilled artist You know people could pack drugs in contraband inside the wheels of the cargo vehicle So that's the motivation the solution that they the board found to solve that problem.

[00:12:05] Speaker 04:
It's not even I mean look I

[00:12:08] Speaker 04:
I like to lose a little bit of weight.

[00:12:10] Speaker 04:
I drink Diet Coke.

[00:12:12] Speaker 04:
That probably is not going to get me to lose all the weight that I want to lose, but it's like helping, right?

[00:12:16] Speaker 04:
So why does the board have to conclude that it also has to be able to scan the tires?

[00:12:22] Speaker 04:
I hear your point.

[00:12:23] Speaker 04:
Your point is that the way it's described

[00:12:28] Speaker 04:
You can't scan the tires.

[00:12:29] Speaker 04:
It doesn't get the whole vehicle.

[00:12:31] Speaker 04:
But does that really mean it's not a helpful method?

[00:12:34] Speaker 04:
It's not a good idea to do it?

[00:12:36] Speaker 04:
Don't you want to be able to scan more rather than less of the whole thing?

[00:12:41] Speaker 04:
And maybe it doesn't get everything.

[00:12:42] Speaker 04:
But isn't it logical to think that a skilled artist would want to modify it in a way to scan more of it?

[00:12:50] Speaker 02:
Your Honor, I would agree that our expert admitted, and I don't dispute, that scanning the entire vehicle is the goal.

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But this is not the only way to do it.

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And the prior art already had solutions to that, including multi-pass scanning and changing the positions of scanners.

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If the motivation of looking at Chalmers combined with Grogson is to scan the entire truck,

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What we've identified and what the board relied on doesn't solve that problem.

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And this is exactly the explanation that this court expects from the finder of fact to protect against hindsight bias.

[00:13:21] Speaker 02:
And working backwards from the back.

[00:13:22] Speaker 04:
But was the motivation to scan the entire truck or to do a better job of scanning?

[00:13:26] Speaker 04:
What's the?

[00:13:28] Speaker 02:
The motivation that the board relied on was to scan the entire vehicle.

[00:13:35] Speaker 04:
All right.

[00:13:36] Speaker 04:
OK, you want to save the rest of your time for about all?

[00:13:37] Speaker 02:
Yes.

[00:13:38] Speaker 02:
Thank you.

[00:13:41] Speaker 04:
Mr. Lamarca.

[00:13:47] Speaker 01:
William Lamarca on behalf of the United States PTO.

[00:13:50] Speaker 01:
I guess the focus is on obviousness, so I'll try to respond to that, Your Honor.

[00:13:54] Speaker 01:
Yeah, if you take a look at figure one in Chalmers, which is the prior reference that we're talking about,

[00:14:02] Speaker 01:
The complaint seems to be that, oh, the drawings are not to scale.

[00:14:06] Speaker 01:
I think no one disputes that the drawings are not to scale.

[00:14:09] Speaker 01:
We all agree.

[00:14:10] Speaker 01:
But regardless of the scale of the drawing, in figure one, the detectors, 56 and 24, whether they're small or large,

[00:14:19] Speaker 04:
it regardless their relationship to each other will define the inspection space let me ask a dumb question sure is the argument that he's making about the wheels not being scanned tied to his argument that have it's not strong has to be drawn to scale or is being understood to be drawn to scale are those two arguments intertwined

[00:14:36] Speaker 01:
I mean, it sounds like that's the argument appellants making, but in our view, the government's view, what the petitioner's point is, as well as the petitioner's expert, is that the chopper wheel, which is the thing that spins around that directs the beam up and down and creates the raster scan,

[00:14:52] Speaker 01:
If you position that wheel slightly further away, it would encompass more of the inspection space.

[00:14:59] Speaker 01:
If you position that wheel closer, it won't catch it all.

[00:15:02] Speaker 01:
It'll cut some of the way there.

[00:15:04] Speaker 04:
Like a lightbulb.

[00:15:05] Speaker 04:
Moving it further away, you get a broader beam.

[00:15:07] Speaker 01:
An example that I can think of the best analogy is... You don't like my lightbulb?

[00:15:11] Speaker 04:
I like your example.

[00:15:13] Speaker 01:
It's a great example of focusing a lens on a camera.

[00:15:18] Speaker 01:
If I'm real close to you, I have to adjust the focus to get you in focus.

[00:15:21] Speaker 01:
If I stand further away, I have to readjust the focus.

[00:15:24] Speaker 04:
Similarly here... At my age, I prefer you stand a little further away.

[00:15:27] Speaker 01:
And I'll do the best I can, Your Honor.

[00:15:29] Speaker 04:
No, I don't mean you personally.

[00:15:30] Speaker 04:
I meant when you were taking the picture.

[00:15:31] Speaker 01:
But it just... A little bit blurry, too.

[00:15:33] Speaker 04:
Can we have a filter on that camera?

[00:15:35] Speaker 01:
But the point is here with these chopper wheels,

[00:15:39] Speaker 01:
They don't disclose any specific distance that the chopper wheel is from the edge.

[00:15:43] Speaker 01:
And as a result, an ordinary artisan has to understand that.

[00:15:46] Speaker 01:
And that's what the expert, Dr. Lanza, testified to.

[00:15:49] Speaker 01:
Dr. Lanza indeed relied on the Chalmers reference and the Groden's reference.

[00:15:53] Speaker 01:
He focused on that evidence.

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But he also gave us the understanding of how would an ordinary skilled artisan lead these references.

[00:16:00] Speaker 01:
That's his opinion.

[00:16:01] Speaker 01:
He's an expert.

[00:16:03] Speaker 03:
So, Council, I think the Groden Council is taking issue with the motivation to combine testimony

[00:16:08] Speaker 03:
support in only support relating to motivation combined found on J a 918 Or is it elsewhere?

[00:16:18] Speaker 01:
Well, I think if you read petitioners

[00:16:23] Speaker 01:
responsibly, what you'll see is that the board said, yeah, the reason that you'd want to combine these is, number one, if you read Chalmers, the reference throughout, and we could go through it and read it all.

[00:16:34] Speaker 01:
But basically, their goal was to scan the objects inside the inspection space.

[00:16:40] Speaker 01:
If you're working at Border Patrol, for example.

[00:16:42] Speaker 03:
Can you answer my question, though?

[00:16:44] Speaker 03:
I want an answer to Claire.

[00:16:46] Speaker 03:
In where in the record what you want to look at where it summarizes the support.

[00:16:51] Speaker 01:
Yeah the best one of the best concise statements I can find for you that page fifty six of the board decision if you read page fifty six at the very bottom of the board decision where they kind of sum it up.

[00:17:02] Speaker 01:
I can take you there as soon as you get there.

[00:17:04] Speaker 01:
Down at the very bottom says, we find.

[00:17:07] Speaker 01:
You see that?

[00:17:07] Speaker 01:
We find Dr. Lanza's testimony the most persuasive, particularly because, as discussed above, it was well within the level of ordinary skill in the art, in fact beneficial, if not necessary, to arrange the physical elements of a radiation backscatter scanner

[00:17:24] Speaker 01:
including the chopper wheel in a manner to complete a full scan of an object within a designated inspection space.

[00:17:32] Speaker 01:
So what they're basically saying is if you read the Chalmers reference thoroughly, you'll understand that their number one goal is to not scan part of an object.

[00:17:41] Speaker 01:
It's to scan the whole truck that's sitting in there or car or motorcycle.

[00:17:45] Speaker 01:
Because why?

[00:17:45] Speaker 01:
We want to know whether or not there's any contraband.

[00:17:48] Speaker 01:
Is there weapons in there?

[00:17:49] Speaker 01:
Is there contraband in there?

[00:17:50] Speaker 01:
If we're only scanning pieces of the truck,

[00:17:52] Speaker 01:
then we would never set the device up in a way an ordinary artist would never follow it.

[00:17:56] Speaker 01:
So the board accepted that testimony from the expert that that's the main driver on why you would take all the elements are there, all the pieces are there, all you have to do is make sure they're positioned correctly to achieve your objective, which is to get a full scan of the object that you're scanning.

[00:18:12] Speaker 01:
So I think, Your Honor, to respond to your question specifically, that's the sum up of all the board's analysis on why

[00:18:20] Speaker 01:
and why Dr. Lanza, the expert, believes there's motivation to make those really minor adjustments to what you see disclosed in Figure 1.

[00:18:28] Speaker 01:
And, of course,

[00:18:30] Speaker 01:
The board as well as the petitioner believes there's enough there for anticipation, but I understand from the court that we're focusing on obvious.

[00:18:36] Speaker 01:
I'm trying to give you our response to the obviousness arguments.

[00:18:40] Speaker 01:
But that's our number one response.

[00:18:42] Speaker 01:
And whether you use a six-spoke chopper wheel and the angle was too narrow, all you have to do is back it up and you encompass the whole thing.

[00:18:50] Speaker 01:
If you use a five-spoke chopper wheel, the angle's broader and you may not have to back it up as much.

[00:18:55] Speaker 01:
If your angle is too broad and you're shooting out x-ray beams too far out beyond the inspection space, there's a risk that it could become unsafe because there's people standing around this thing, right?

[00:19:06] Speaker 01:
So you want to focus your beam where you need it.

[00:19:09] Speaker 01:
on the inspection space where the object is that has to be inspected.

[00:19:13] Speaker 01:
And that's what Chalmers teaches.

[00:19:14] Speaker 01:
That's what Grodens teaches.

[00:19:16] Speaker 01:
And if you read the Grodens references, in fact, which everyone agrees is incorporated by reference, you'll see that they inspect not just trucks, but they inspect smaller objects like luggage.

[00:19:26] Speaker 01:
And of course, you have to adjust these

[00:19:28] Speaker 01:
components, these parameters to make it adjust to apply to that particular object, right?

[00:19:33] Speaker 01:
So I think that's the main motivation behind it all and why it would have been obvious if not anticipated, Your Honor.

[00:19:40] Speaker 01:
And I'm happy to continue.

[00:19:42] Speaker 00:
Is there anything other than Dr. Lanz's testimony to support the conclusion that one of ordinary skill in the art would be motivated to alter the

[00:19:55] Speaker 01:
space.

[00:19:56] Speaker 01:
Well, I think there's an admission by the expert on the other side.

[00:19:59] Speaker 01:
They've admitted that you'd make these adjustments.

[00:20:01] Speaker 01:
It would be very easy.

[00:20:03] Speaker 01:
I'll give it to you.

[00:20:04] Speaker 01:
They called it simple geometry, I believe.

[00:20:06] Speaker 01:
And I can take you to that quote where I think it's page.

[00:20:12] Speaker 01:
Let's see if I can get to that.

[00:20:13] Speaker 01:
Yeah, here we go.

[00:20:15] Speaker 01:
On page 32 of the board decision, they reprint the deposition transcript of AS&E's expert.

[00:20:23] Speaker 01:
Do you see page 32 and 31, Your Honor, of the board decision?

[00:20:27] Speaker 01:
Do you see that?

[00:20:28] Speaker 01:
Yep.

[00:20:29] Speaker 01:
If you go down, if you look on the left-hand side at the bottom of 31,

[00:20:35] Speaker 01:
Ingenious as answer or question would a person of skill in art given a 60 degree beam sweep for these chopper wheels would a person of skill in the art know how far to locate the chopper wheel that's how far away so that it would sweep the contents of the vehicle in other words would they know how to position it in general and in the answer by the expert from the other side

[00:20:56] Speaker 01:
A person of skill and art would certainly know how far to position the x-ray source away from the object to get certain vertical and horizontal region of scanning.

[00:21:04] Speaker 01:
Question, that's just simple geometry, correct?

[00:21:07] Speaker 01:
Answer, yes, that's just simple geometry.

[00:21:09] Speaker 01:
So the point is, everybody agrees this is not a complicated thing.

[00:21:14] Speaker 01:
You've got these...

[00:21:15] Speaker 01:
general components, you got chopper wheels, you got x-ray beam sources, they're positioned around an object, you know that you have to position them in the right place.

[00:21:23] Speaker 01:
Just like a purchaser of a camera has to know how to focus the lens to get an in-focus picture, right?

[00:21:29] Speaker 01:
So I think that's my answer, Your Honor.

[00:21:30] Speaker 01:
Yeah, thank you.

[00:21:31] Speaker 01:
Is there anything further?

[00:21:33] Speaker 01:
Okay, I'll take the seat.

[00:21:34] Speaker 01:
Thank you for your time.

[00:21:35] Speaker 04:
Thank you, Mr. Lamarca.

[00:21:38] Speaker 04:
Mr. Henkel, we have a little bit of time.

[00:21:46] Speaker 00:
What do you say to the testimony that was just described by your colleague there?

[00:21:54] Speaker 02:
I think it was candid testimony that is frankly accurate.

[00:21:56] Speaker 02:
It is a matter of geometry.

[00:21:57] Speaker 02:
But the question on obvious is not whether a person is still in the archive.

[00:22:01] Speaker 02:
could do something, it's whether they would, and whether they had a reason to do so.

[00:22:05] Speaker 02:
There were other solutions that existed in the art.

[00:22:08] Speaker 02:
We're not only talking about the geometry of how far away the rotating chopper wheel is, we're talking about the configuration of the chopper wheel itself, whether it has four, five, or six spokes.

[00:22:17] Speaker 02:
and scans at 62, 72, or 90-degree arc angles, not just from one perspective, but from a second perspective as claimed.

[00:22:24] Speaker 02:
And we're also talking about the dimensions of the detectors.

[00:22:27] Speaker 02:
These are all variables that the board's analysis kind of just says, oh, well, yeah, anyone could have done that.

[00:22:33] Speaker 02:
Well, anyone could have done it, but they did not.

[00:22:35] Speaker 02:
And there's no articulated reason why they would have to arrive at the claimed invention.

[00:22:39] Speaker 02:
And that's the genesis of our non-obviousness argument.

[00:22:43] Speaker 02:
And if there are no further questions, I'm done.

[00:22:47] Speaker 04:
Thank you.

[00:22:48] Speaker 04:
OK.

[00:22:48] Speaker 04:
Thank both counsel.

[00:22:49] Speaker 04:
This case is taken under submission.