[00:00:00] Speaker 04:
The last case this morning is AMP Plus doing business as Elko Lighting versus DMF, 2023, 1997.

[00:00:53] Speaker 01:
Good morning, Your Honors.

[00:00:55] Speaker 01:
Guy Ruttenberg for the appellate.

[00:00:57] Speaker 01:
It leaves the court.

[00:00:59] Speaker 01:
Proceed.

[00:01:01] Speaker 01:
Your Honors, this case presents one straightforward issue as we see it, which is whether the board erred in finding that claim 22 is not unpatentable.

[00:01:14] Speaker 01:
And specifically, the board's finding didn't go through and decide that claim 22 is not unpatentable.

[00:01:22] Speaker 01:
As you know, the board focused on one specific limitation, limitation M, which relates to connecting to the electrical system of a building.

[00:01:32] Speaker 01:
And even on that limitation, the board didn't make a finding that that limitation is missing.

[00:01:37] Speaker 01:
What the board found is that our client failed to present evidence on that particular limitation.

[00:01:46] Speaker 01:
And I think the board erred in making that finding.

[00:01:49] Speaker 01:
And we respectfully request that Your Honors reverse and find that claim 22 is unpatentable.

[00:01:54] Speaker 03:
Where is the evidence that was presented?

[00:01:57] Speaker 01:
Yes.

[00:01:57] Speaker 01:
So I think in a couple of places.

[00:01:59] Speaker 01:
First and foremost, and I think this is where the board made a mistake.

[00:02:03] Speaker 01:
The original and the largest argument in this case was about limitation B, which relates to the driver.

[00:02:11] Speaker 01:
And in that context,

[00:02:13] Speaker 01:
the patent owner had argued that the driver should be limited to building mains, which is 120 volts to 240 volts AC.

[00:02:25] Speaker 01:
And in response to that particular argument under the heading of limitation B, we argued quite extensively that their claim construction is incorrect.

[00:02:37] Speaker 01:
But we also explained

[00:02:40] Speaker 01:
And this starts at excerpts of record, appendix 99 through 100.

[00:02:45] Speaker 01:
We explained in the context of appendix, excuse me, limitation B, that even under the defendant's, excuse me, even under the patent owner's construction, we explained extensively that intra-2011 still meets this limitation as it discloses 120 volts AC LED downlight

[00:03:06] Speaker 01:
I'm quoting from page 99 of the excerpts of record.

[00:03:10] Speaker 01:
And we cited directly to pages 6 and 7 of the 2011 catalog, which is the primary reference here, which says extensively, 120 volts AC LED downlights.

[00:03:25] Speaker 01:
That's on page 6, appendix of record 396.

[00:03:28] Speaker 01:
Appendix of record 397, it says on the right-hand column, interest groundbreaking 120 volt AC LED downlights.

[00:03:36] Speaker 01:
So that's discussed at length in the brief, in the declaration of Dr. Retschneider, and in the primary reference itself.

[00:03:44] Speaker 01:
And then, of course, when we talked about limitation M in the record, we also talked about that extensively.

[00:03:50] Speaker 01:
And we cited back to that same evidence.

[00:03:53] Speaker 01:
Limitation M didn't add much, other than saying that the device is connected to the electricity of a building.

[00:04:05] Speaker 01:
And again,

[00:04:06] Speaker 01:
On page appendix 124 to 125, we explained that the fixture is equipped.

[00:04:12] Speaker 00:
This is appendix 124 and 125?

[00:04:13] Speaker 00:
Yes.

[00:04:14] Speaker 00:
Yeah, okay.

[00:04:16] Speaker 01:
And that's the petitioner's brief.

[00:04:20] Speaker 01:
And we explained that INTRA 2001 discloses that the figure is equipped with an 18 AWG Tripex cable for direct hookup to an 8C junction box.

[00:04:33] Speaker 01:
We talked about the cables.

[00:04:35] Speaker 01:
And again, we cited back to Dr. Bretschneider's declarations at pages 158 to 159, which again, that in itself cites back to pages 6 and 7 of the catalog, which talks explicitly about 120 volts.

[00:04:47] Speaker 03:
So where's the evidence?

[00:04:50] Speaker 03:
You've talked a lot about we pointed to the catalog and the publication and referenced two of the arguments.

[00:04:57] Speaker 03:
Where's the evidence that you

[00:04:59] Speaker 03:
presented that would support the proposition that a person of ordinary skill in the art would know how to connect or to connect the DC electricity in this particular unit to a building.

[00:05:14] Speaker 01:
Well, first of all, it's not just DC.

[00:05:17] Speaker 01:
It's AC.

[00:05:18] Speaker 03:
And that's, again, in the evidence is... The recessed lighting is what, DC or AC?

[00:05:25] Speaker 01:
Well, there's both.

[00:05:27] Speaker 01:
The catalog itself talks about AC lighting as well.

[00:05:32] Speaker 01:
Again, that's on page six and seven of the catalog.

[00:05:35] Speaker 01:
The catalog is the evidence, that's the reference.

[00:05:37] Speaker 01:
And it says, 120 volts AC LED downlights.

[00:05:43] Speaker 00:
And so... That's on page seven, right?

[00:05:45] Speaker 01:
Page six and seven.

[00:05:46] Speaker 01:
So on page six, on the top of the page it says, 120 volts AC LED downlights.

[00:05:53] Speaker 01:
And then on page seven, on the right column it says,

[00:05:56] Speaker 01:
interest-groundbreaking 120-volt AC LED downlights.

[00:06:02] Speaker 00:
The reference on page 6 is just the heading at the top, right?

[00:06:07] Speaker 01:
True.

[00:06:08] Speaker 01:
Yeah.

[00:06:08] Speaker 01:
All right.

[00:06:08] Speaker 01:
True.

[00:06:09] Speaker 01:
And it's the heading?

[00:06:10] Speaker 01:
Yeah, I'm sorry?

[00:06:11] Speaker 00:
If I can follow up on Judge Rainer's question.

[00:06:14] Speaker 00:
Sure.

[00:06:15] Speaker 00:
I think what you're saying is not inconsistent with what your opposing counsel is saying, which is that

[00:06:22] Speaker 00:
Yes, you had a reference to Brett Schneider.

[00:06:26] Speaker 00:
And yes, there was a reference to page 6.

[00:06:29] Speaker 00:
But it wasn't in the context of saying why it is that this is suitable for attachment in a building.

[00:06:39] Speaker 00:
The references to 120 VAC, you have to dig into the Brett Schneider and to the

[00:06:53] Speaker 00:
I guess it is, catalog, and then a very brief discussion of limitation M, as if it incorporated a statement that here are the sources of the building limitation.

[00:07:13] Speaker 00:
You never tease that out.

[00:07:14] Speaker 00:
So the question is, was it the obligation of the board to try to figure out, ah, if we go to Bretschneider, we can figure out there's a reference

[00:07:23] Speaker 00:
to 120 volts, and 120 volts at least implies could be used in a building as opposed to on a boat.

[00:07:31] Speaker 00:
Now, is it the board's responsibility to do that, or was it yours?

[00:07:36] Speaker 01:
Well, obviously, it's our responsibility to begin with.

[00:07:38] Speaker 01:
But I would beg to differ that we didn't do that, because I think we did.

[00:07:42] Speaker 01:
And I think that's why I started.

[00:07:44] Speaker 00:
Well, it certainly would have been easy to fix the problem, right, by adding two sentences at the end of your very brief discussion on limitation M. True.

[00:07:52] Speaker 01:
Although limitation M, there's also a reply brief.

[00:07:54] Speaker 01:
And in limitation M, it was not one that was disputed.

[00:07:58] Speaker 01:
The dispute was.

[00:07:59] Speaker 01:
And this is why I think we did call it out in the context of a building.

[00:08:03] Speaker 01:
And that's why I started with page

[00:08:05] Speaker 01:
uh... twenty nine of the petition which is appendix page ninety nine

[00:08:09] Speaker 01:
because that's where we did it in the context of limitation be the driver and the reason that they did it there is because that's what the argument was about the argument was the other side claimed that the driver is limited to building mains power and so in responding to that argument we explained quite explicitly that okay even if that were true which it's not and the court and the board both rejected that construction but in responding to that construction we said quite explicitly

[00:08:38] Speaker 01:
The intra 2011 still meets that limitation and it's in that context that we talked about 120 volts LED and in fact it was also the this concept of 120 volts by the way there in the in the board's decision and remand the board's just doesn't doesn't address the 120 volts AC it doesn't mention that issue at all but

[00:09:00] Speaker 01:
In the original briefing, the entire argument, or I would say the bulk of the argument, from the patent owner was about building mains.

[00:09:12] Speaker 01:
And that means 120 to 240 volts.

[00:09:14] Speaker 01:
That's what their argument was.

[00:09:16] Speaker 01:
And so it was in that context that we addressed it.

[00:09:18] Speaker 01:
And so I do think in that context, it's the board's obligation to look at the entire briefing, not just the three lines that sort of at the end of the briefing.

[00:09:26] Speaker 03:
Counselor, you want the board to connect with Dodge.

[00:09:30] Speaker 03:
You want the board to take one of your arguments and to say, oh, look, this argument applies over here as well.

[00:09:37] Speaker 01:
Well, it's the same argument, Your Honor.

[00:09:39] Speaker 01:
I don't think it's a different argument.

[00:09:41] Speaker 01:
I think the question becomes, at what point does our argument, because someone could accuse us of being redundant.

[00:09:48] Speaker 01:
And I didn't write this paper.

[00:09:49] Speaker 00:
I don't think that's the worst law they will commit.

[00:09:51] Speaker 01:
Maybe not.

[00:09:53] Speaker 01:
Maybe not.

[00:09:53] Speaker 01:
And maybe that would have been a better option.

[00:09:55] Speaker 01:
But the fact that the petitioner

[00:10:00] Speaker 01:
in the brief itself says, it's citing to the right pages and it's citing to the declaration.

[00:10:06] Speaker 01:
And when you talk about the actual limitation that was disputed by the other side, they go back and say, here it is.

[00:10:13] Speaker 01:
And it's on page 29 of our brief.

[00:10:17] Speaker 01:
And it wasn't just a small argument that was buried.

[00:10:20] Speaker 01:
Much of the argument was about whether or not this limitation

[00:10:25] Speaker 01:
The driver limitation is satisfied, and so I think we had argued, maybe we should have argued more explicitly on the limitation M, but we had argued explicitly that even under their construction, drivers are satisfied because of pages 6 and 7, which talks about 120 volts, which is building makes.

[00:10:44] Speaker 01:
I think that's really the key of the argument here.

[00:10:47] Speaker 01:
I think the board simply overlooked that point.

[00:10:50] Speaker 01:
I also think, as we explained in the brief, that once you have a device that's in the prior art, and I think this device is in the prior art, whether you connect it to a building or not, the fact that it can be connected to the building, whether or not it actually was, and I think it was, but whether it was or not, that doesn't make it patentable.

[00:11:08] Speaker 01:
That's not a patentable distinction if you take a prior art and it has a new purpose.

[00:11:13] Speaker 01:
That doesn't make it patentably distinct.

[00:11:17] Speaker 01:
That's all I would say the rest of my time is rebuttal.

[00:11:19] Speaker 04:
We will serve it for you.

[00:11:22] Speaker 04:
Mr. Long.

[00:11:33] Speaker 02:
Good morning, Your Honor.

[00:11:34] Speaker 02:
May it please the court

[00:11:36] Speaker 02:
I want to respond then to what was discussed about this 120 volts on pages 6 and 7 of the entry 2011 catalog.

[00:11:45] Speaker 02:
And one thing that's important to understand, and I refer you to pages 9 through 10 of our red brief, there's two sets of products that were at issue.

[00:11:55] Speaker 02:
One set of products were low voltage products.

[00:11:59] Speaker 02:
And you'll see that on page 9 of our brief.

[00:12:02] Speaker 02:
They received 10 to 30 volts DC.

[00:12:06] Speaker 02:
And that's what Elko's argument was about for every limitation in the claims was directed to these low voltage devices.

[00:12:14] Speaker 02:
For that one limitation M, they refer to this Sardinia Cypress products.

[00:12:20] Speaker 02:
And you'll see that at pages nine through 10 as well.

[00:12:24] Speaker 00:
Well, what about limitation B?

[00:12:26] Speaker 00:
Excuse me.

[00:12:26] Speaker 00:
What about limitation B, which they say they cited the pages six and seven of, which include the Sardinia and Cyprus.

[00:12:35] Speaker 02:
Yes, Your Honor.

[00:12:36] Speaker 02:
For that limitation B for driver, and keep in mind this limitation M is about whether or not the driver is connected to the electrical system of the building.

[00:12:43] Speaker 02:
Right.

[00:12:43] Speaker 02:
So for limitation B, they also point to this Sardinia

[00:12:48] Speaker 02:
inside these high voltage products.

[00:12:50] Speaker 02:
And what's significant about these products is they, and if you look at them, you'll see it has a big black heat sink stacked on the back of a silver housing with the LEDs inside, and that big black heat sink houses this 120 volt

[00:13:04] Speaker 02:
Driver very different from his local these products are very low profile.

[00:13:11] Speaker 02:
You'll see this sardinia Cypress products are very tall products Very different and so the key issue here is the driver a converter That's a good question in the sardinia product cypress products it is and recall what the claims require that you have a driver inside a unified casting and

[00:13:34] Speaker 02:
So the sardinia products was high voltage products.

[00:13:38] Speaker 02:
They don't have unified casting they have a driver Sitting in this big black heat sink on the top and then the LEDs that receive low voltage DC inside so the sardinia products these high voltage products are very different than low voltage products because their Driver was stacked on the back of the heat sink to convert it to low voltage that the LEDs use and so every limitation

[00:14:04] Speaker 02:
that they relied on for, you know, there's lots of limitations of claims.

[00:14:07] Speaker 02:
You have a unified casting.

[00:14:08] Speaker 02:
It has internal driver and unified casting.

[00:14:11] Speaker 02:
In some cases, it has a quality of elements.

[00:14:14] Speaker 02:
But when they look at the driver being

[00:14:20] Speaker 02:
what is it in plain limitation, and the drivers coupled to the electrical system of a building, which is 120 volts, they point to this different product, the Sardinia, Cypress, high voltage products.

[00:14:31] Speaker 02:
So what's important there, and what they didn't do in doing that combination, they didn't say why it would have been obvious to modify those low voltage products that they relied on for every other limitation, to modify them so that they received... Other than pointing to those references, did they submit any evidence to support their position?

[00:14:50] Speaker 02:
Just the ones that they pointed here recited, they cite to that page six with that high voltage product, and they cite to two paragraphs from their expert that is basically citing to the same thing, saying that Dempsey 2011 does disclose some products that receive 120 volts, but it wasn't the low voltage products that they relied on for every other limitation in the clinic.

[00:15:13] Speaker 02:
And they made no argument at all that it would have been obvious to modify those low-focus products with all the limitations they needed so that they received $120.

[00:15:23] Speaker 02:
And that's important.

[00:15:25] Speaker 02:
When you look at one of the prior references they asserted, it was in ground three which they're not appealing.

[00:15:29] Speaker 03:
It seems that that would be a very simple argument to make, that a person of the word near skill would have the knowledge to convert DC power into AC power.

[00:15:43] Speaker 02:
And so I think that's why, if they'd have made the argument, we would have had a record where we would have put an evidence to rebut it.

[00:15:50] Speaker 02:
The fact is, they're making an argument now they didn't make before.

[00:15:53] Speaker 02:
Because the issue with that is, and that's what I was just about to explain, when you look at the skiffer pen that they relied on for another ground, it expressly taught you want to only have a low voltage device

[00:16:04] Speaker 02:
connected to a junction box, and you won't have separately a thing that converts the high voltage to low voltage.

[00:16:10] Speaker 02:
You want that for safety reasons, so that when you replace that light, you don't stick your hand into that high voltage and get it executed.

[00:16:16] Speaker 02:
There's reasons why you just don't simply convert something from a low voltage to a high voltage.

[00:16:23] Speaker 02:
The high voltage device may have more heat dissipation issues, so you're going to have to modify this small product.

[00:16:28] Speaker 02:
There's a lot of things, a lot of evidence we would have put in if they made the argument,

[00:16:32] Speaker 02:
that they're making now, a lot of the new arguments that we didn't have the opportunity to do then.

[00:16:38] Speaker 02:
So it's not as simple as you get to it.

[00:16:40] Speaker 02:
And that's a lot of things, right, with inventions.

[00:16:42] Speaker 02:
What might seem like a simple thing to do after the fact probably wasn't at the time.

[00:16:48] Speaker 02:
And that's the case here.

[00:16:49] Speaker 02:
So the point is, when we look at the arguments they made, we responded to the arguments they made.

[00:16:54] Speaker 02:
Not the arguments they're making now.

[00:16:55] Speaker 02:
We responded to the arguments they made.

[00:16:57] Speaker 02:
We produced a record based on the arguments that they made.

[00:17:01] Speaker 02:
And so the board's decision is absolutely right.

[00:17:04] Speaker 02:
We mentioned this in our brief.

[00:17:06] Speaker 02:
Elkwood's appeal cites a lot of evidence they never even cited to the board before, much less cited to the board for the argument presented here.

[00:17:16] Speaker 02:
And so it's very clear that the

[00:17:17] Speaker 02:
board was perfectly within its discretion to say here's all you cited for us we don't have to go search the record for parts of the record you didn't cite we don't have to consider arguments you didn't make but maybe wish you would have later and so I think the board substantial evidence absolutely supports what the board's done here I want to mention another thing unless there's more questions on that 120 volts but that is the problem they never showed why it would have been obvious

[00:17:44] Speaker 02:
modify these low voltage devices that they rely on for every other limitation so that they would receive high voltage.

[00:17:50] Speaker 02:
And it's not as simple as you would think.

[00:17:52] Speaker 02:
That's why you need the evidence, which they didn't have.

[00:17:55] Speaker 02:
There's another issue, too, here, which is a basic premise when you read their brief is that the panel in the first appeal had ruled that the patent office that found every limitation of claim 22 was met by the intro 2011 product.

[00:18:14] Speaker 02:
Now, they don't cite anything in the board's decision where they found that entry 2011 disclosed every limitation of claim 22, because there's not one.

[00:18:25] Speaker 02:
What had happened, though, and I apologize to Jefferson because he wrote the decision, but it's a non-precedential decision, right?

[00:18:31] Speaker 02:
It's meant to surprise you of enough information that parties who know the record knows what happened.

[00:18:36] Speaker 02:
And they kind of glom onto a statement in that decision that says that the board had found every limitation of the challenge claims disclosed in the entry 2011 catalog.

[00:18:47] Speaker 02:
And then that decision cited page 17 of the Westlaw version of that decision.

[00:18:52] Speaker 02:
It cited to the anticipation argument.

[00:18:55] Speaker 02:
that the board had made.

[00:18:57] Speaker 02:
Claim 22 wasn't challenged as anticipated, right?

[00:19:00] Speaker 02:
They didn't challenge it because claim 22 said you had to be coupled to the electrical system of a building.

[00:19:05] Speaker 02:
So what that opinion cited to in the factual background section, just kind of, you know, getting us on the ballpark, it cited to the anticipation section of the board's decision that didn't mention claim 22 at all.

[00:19:17] Speaker 02:
In fact, if you just read a couple sentences down that

[00:19:21] Speaker 02:
first panel decision says the board didn't consider anticipation of Claim 22 at all.

[00:19:26] Speaker 02:
In fact, when you read the page that the opinion cited to from the board decision, it lists the decision, the claims it was listing for all the limitations being in the interim 2011, that challenge.

[00:19:39] Speaker 02:
It doesn't list Claim 22.

[00:19:40] Speaker 02:
In the very next paragraph, it even says that Elko didn't challenge Claim 22 as anticipated.

[00:19:47] Speaker 02:
Not only was that not a holding of the court that the board found something it didn't, when you actually look at the holding of the court, the holding of the court was we vacate the board's decision on Claim 22.

[00:19:59] Speaker 02:
And we remanded it to the board to explain why their patentability decision for Claim 22.

[00:20:06] Speaker 02:
So even if the Federal Circuit had and the board had found that every limitation of Claim 22 is in the prior art and it didn't,

[00:20:13] Speaker 02:
The remand vacated whatever the decision was and sent it back below.

[00:20:19] Speaker 02:
That's a long explanation.

[00:20:20] Speaker 02:
It was kind of, we know the case.

[00:20:22] Speaker 02:
We live and breathe it.

[00:20:23] Speaker 02:
We know what was argued, what was decided.

[00:20:25] Speaker 02:
And so it's that personal pet peeve, for lack of a better word, that they would argue that the board found something they didn't, and then try to take advantage of a loose statement, the non-crescental decision to say something that didn't happen.

[00:20:41] Speaker 02:
I don't know if you guys have any questions about that.

[00:20:44] Speaker 02:
We have one last issue that wasn't touched on yet, and that's the subject manager reception issue.

[00:20:54] Speaker 02:
That deals with the change in the AIA said that the Patent Office has a right to intervene in appeals from NIPR.

[00:21:02] Speaker 02:
Recall the Patent Office is usually a party to appeals from the Patent Office patentability decisions.

[00:21:08] Speaker 02:
That changed with the AIA.

[00:21:11] Speaker 02:
And the statute says that you should file your notice of appeal within the time prescribed by the Patent Office.

[00:21:19] Speaker 02:
And the Patent Office had a regulation that says you should file a notice of appeal that provides sufficient information for us to determine whether or not we want to exercise our right to intervene in this appeal.

[00:21:31] Speaker 02:
And so it was a wonderful decision by Judge Rich LaPage, I think is what it was called, that went through our history of appeals and why you used to have to get your reasons for appeal.

[00:21:42] Speaker 02:
And then they took that away, et cetera.

[00:21:46] Speaker 02:
But where we're at is that the board, the Pat office has said,

[00:21:49] Speaker 02:
You need to give sufficient reasons in your notice of appeal while you're appealing.

[00:21:53] Speaker 02:
So we can decide whether or not we want to exercise that discretion.

[00:21:56] Speaker 02:
And you need to do that within 63 days of our decision.

[00:21:59] Speaker 02:
So what we have here is ELCO used a Form 5 of the Federal Rules of Appeal Procedure Notice of Appeal from an administrative agency, which doesn't say anything about what you're appealing other than you're appealing the decision.

[00:22:12] Speaker 02:
And so that doesn't meet the patent officer's regulations and what you put in a notice of appeal.

[00:22:18] Speaker 00:
But the batten office's regulations don't set out what jurisdictional bounds there are that are defined by the failure to file a notice of appeal, right?

[00:22:32] Speaker 00:
If an agency says, well, we'd like you to write your, Congress says you have to file a notice of appeal.

[00:22:39] Speaker 00:
The agency says, well, you know, the notice of appeal ought to be in 14-point type.

[00:22:43] Speaker 00:
And you didn't file it in 14-point type until after the expiration of the deadline.

[00:22:50] Speaker 00:
You still filed a notice of appeal.

[00:22:52] Speaker 00:
Congress has not said it has to be in 14-point type in order for the court to get jurisdiction, right?

[00:22:57] Speaker 02:
I agree with that situation, yes.

[00:22:59] Speaker 02:
But what Congress did say here is that you will file a notice of appeal in writing to the Patent Office within the time period as prescribed by the Patent Office.

[00:23:10] Speaker 02:
Well, they met the time period.

[00:23:13] Speaker 03:
Yeah, they met the time period.

[00:23:15] Speaker 02:
They met the time period for just a general notice of appeal.

[00:23:19] Speaker 03:
What they didn't meet are the requirements under the regulation for the notice itself and the amount of information provided.

[00:23:29] Speaker 03:
But that doesn't go to our authority to hear the case.

[00:23:35] Speaker 03:
That's not jurisdictional in nature.

[00:23:38] Speaker 02:
Well, I think in that case,

[00:23:40] Speaker 02:
The rules say, here's what your notice of appeal is.

[00:23:44] Speaker 02:
Your notice of appeal is something that gives us enough information so we can decide whether to intervene or not.

[00:23:50] Speaker 02:
And that just wasn't given.

[00:23:53] Speaker 04:
But the Patent Office decided not to participate after having gotten the information they needed.

[00:23:59] Speaker 02:
But after the date for the notice of appeal.

[00:24:04] Speaker 02:
I want to be clear.

[00:24:05] Speaker 02:
We have a duty.

[00:24:07] Speaker 02:
issue of subject matter jurisdiction to raise it on the merits we think we should prevail.

[00:24:12] Speaker 02:
But I think on this issue, technically, as much as your due date for a notice of appeal is on X date, and you do it X plus 1, that is a jurisdiction issue.

[00:24:22] Speaker 02:
And the notice of appeal filed here was not what the patent office deemed to be a notice of appeal.

[00:24:27] Speaker 02:
And it was important.

[00:24:28] Speaker 02:
It's not just standing on circumstance.

[00:24:31] Speaker 02:
It gives them an opportunity to decide, do we want to exercise that right to intervene?

[00:24:35] Speaker 04:
You raised it.

[00:24:37] Speaker 02:
Thank you, Your Honor.

[00:24:46] Speaker 02:
I think if you all don't have any more questions, I'm going to rest my time.

[00:24:52] Speaker 02:
Thank you.

[00:24:53] Speaker 04:
Thank you, Mr. Long.

[00:24:54] Speaker 04:
Mr. Rutenberg has a few minutes for a bottle.

[00:25:02] Speaker 01:
Thank you, Your Honors.

[00:25:03] Speaker 01:
A few points in rebuttal.

[00:25:05] Speaker 01:
I'll start where my friend on the other side started, where he started to distinguish the different sets of products in the catalog.

[00:25:13] Speaker 01:
Of course, that's not what the board did, and so there's no basis for affirming on that ground.

[00:25:18] Speaker 01:
because that's not what the board did.

[00:25:19] Speaker 01:
That would require an entirely new analysis the board didn't do.

[00:25:23] Speaker 01:
And in fact, the board did the opposite.

[00:25:25] Speaker 01:
In the board's initial decision, the board rejected this analysis.

[00:25:29] Speaker 01:
The board said, actually, we can look at these different disclosures.

[00:25:33] Speaker 01:
The board said that the vast majority of what's being discussed here is from the power LED.

[00:25:37] Speaker 01:
disclosures, including the unified casting, and that also is found in all of the different limitations.

[00:25:43] Speaker 01:
That's in the board's initial decision.

[00:25:45] Speaker 01:
And in fact, in the first decision by the panel, in the opinion that Your Honor Judge Bryson wrote, I believe, you explained and affirmed that the board's rejection of what they had called this mix-and-match argument.

[00:25:57] Speaker 01:
And so the board actually quite explicitly said that the

[00:26:02] Speaker 01:
The petitioner could and probably did rely on pages 6 and 7, and there's nothing in the opinion suggesting that that was the basis.

[00:26:11] Speaker 01:
Secondly, there's a lot of discussion about whether we have to show that this was 120 volt AC, and I think we did show that.

[00:26:19] Speaker 01:
But I think it's also important to note that the claim doesn't require any specific type of current.

[00:26:25] Speaker 01:
It doesn't require any specific type of voltage.

[00:26:28] Speaker 01:
The claim just says that it can be connected to the electricity of the building.

[00:26:33] Speaker 01:
And in fact, there was agreement among both experts that buildings can be AC or DC.

[00:26:39] Speaker 01:
I think it's in paragraph 99 of the initial declaration of Dr. Fretschneider.

[00:26:44] Speaker 01:
There's no construction that was given either implicitly or expressly by the board, nor construction requested with a request to limitation M. And so there's no specific voltage

[00:26:54] Speaker 01:
no specific type of connection that's required there, just that you connect it to a building.

[00:27:00] Speaker 01:
I do think, I would just point this out, there was testimony in the record, it wasn't cited in the briefing because it wasn't disputed at the time, but there was testimony that actually all the different types of devices in the catalog had been connected to a trade show booth, which I would say is a building, that's the Breitmier deposition at Page

[00:27:24] Speaker 01:
22, line 19 to 23, line 5.

[00:27:28] Speaker 01:
It's exhibit 2089 in the record below.

[00:27:31] Speaker 01:
And I think there was also discussion about why we argue law of the case in this brief, and part of why we argue law of the case, and part of why it's important to point to this court's prior statement explaining that the board had found all the other limitations.

[00:27:47] Speaker 01:
is because the only arguments that had been made in the past, meaning in the first round of briefing, were arguments that had been rejected by the board and then affirmed by the court.

[00:27:58] Speaker 01:
Again, setting aside the plurality of elements limitation, the only arguments that had been challenged was this construction of driver and then this notion that you can't mix and match.

[00:28:09] Speaker 01:
And both of those arguments had been rejected by the board as affirmed by this court in the first appeal.

[00:28:15] Speaker 01:
And so there really isn't any other challenge

[00:28:17] Speaker 01:
to claim 22 that wasn't there before.

[00:28:19] Speaker 01:
And there's really no reason why the board couldn't have, and Frank should have relied on pages six and seven.

[00:28:26] Speaker 01:
And there was testimony explained from Dr. Breitmeier that one of ordinary skill in the art, I believe that's paragraph 159 of his declaration, where he explains that one of ordinary skill in the art would know how to do this and would know how to use this in the building if one so choose.

[00:28:43] Speaker 01:
On the waiver argument, I'm happy to address that if the court has questions.

[00:28:48] Speaker 01:
But I think it's a little bit odd to argue waiver on an argument that both this court directed the panel to consider and the board did consider.

[00:28:57] Speaker 01:
So the board didn't view it as waived.

[00:28:59] Speaker 01:
The board actually considered the argument.

[00:29:01] Speaker 01:
They just didn't consider the evidence.

[00:29:03] Speaker 01:
And I think the way the board considered it is just as they considered Claim 17.

[00:29:07] Speaker 01:
They said Claim 17 was invalid as anticipated over Ground 1.

[00:29:13] Speaker 01:
They then said it's also, also obvious under Ground 2 based on the combination of the 2011 and 2007 reference.

[00:29:22] Speaker 01:
And what the board said, and frankly what this court has said in prior decisions that we cited, is anticipation is the epitome of obviousness.

[00:29:30] Speaker 01:
And so the board could and did consider this argument as a valid argument based on

[00:29:37] Speaker 01:
either the 2011 reference by itself or in combination with the 2007 catalog.

[00:29:43] Speaker 01:
So there's no question that it was considered and could be considered.

[00:29:46] Speaker 01:
I think I'm out of time.

[00:29:47] Speaker 01:
Thank you, Your Honors.

[00:29:48] Speaker 04:
That is correct.

[00:29:49] Speaker 04:
Thank you to both counsel.

[00:29:50] Speaker 04:
The case is submitted.

[00:29:52] Speaker 04:
And that concludes today's arguments.