[00:00:00] Speaker 02:
Final case for argument is 24, 1951, Medivis versus DuMare.

[00:00:08] Speaker 00:
May it please the court, Adam Steinmetz from Damaris LLP on behalf of the appellant, Medivis.

[00:00:13] Speaker 00:
Your honors, in this case, the board made a series of factual findings about what was disclosed in the Prior Art Jones reference.

[00:00:23] Speaker 00:
And those findings cover every single element of claim five.

[00:00:28] Speaker 02:
The board found that your petition make the argument that Jones figures 21, 22 and 23 disclosed claim five.

[00:00:36] Speaker 02:
So the petition, that's a yes or no.

[00:00:39] Speaker 00:
It did not say 20 figures, 21, 22 and 23.

[00:00:42] Speaker 00:
It referenced paragraph 121.

[00:00:45] Speaker 00:
which does describe figures 21, 22, and 23.

[00:00:48] Speaker 00:
But it did not specifically mention figures 21 through 23.

[00:00:52] Speaker 00:
I will say to that point, however, Your Honor, at the oral argument, the counsel for Medivis did clarify that figures 18 through 23 were all relied on and intended to be one call-out.

[00:01:05] Speaker 00:
But Your Honor is correct, the petition does not reference figures 21, 22, or 23.

[00:01:09] Speaker 02:
So in order to reverse, as you're suggesting, a remand, we'd have to rely on evidence that the board didn't consider, namely, figures 21, 22, and 23 of Jones, right?

[00:01:23] Speaker 00:
I think, Your Honor, I think the medivis's petition was based on the multiple layers and paragraph 121.

[00:01:32] Speaker 00:
And so I think inherent in that argument was a reliance not just on figure 18, which only shows one layer, but much like for claim six, for example, which also doesn't specifically reference

[00:01:42] Speaker 00:
Figures 21, 22, and 23.

[00:01:44] Speaker 00:
I think the argument in the petition for Claim 6 also was relying inherently on the description in Paragraph 121 of Figures 21 through 23.

[00:01:53] Speaker 00:
And the Board did go ahead and find that, I think it was Virtual Trajectory 1312, or it might have been Target Location 1314.

[00:02:01] Speaker 00:
for claim six did teach all the elements.

[00:02:04] Speaker 00:
So I think Your Honors would have to conclude that the reliance on paragraph 121 and the reference to multiple layers as shown in figures 21 to 23 are further expounding on figure 18.

[00:02:17] Speaker 00:
So I think that's correct Your Honor.

[00:02:20] Speaker 00:
I will say the findings of the board here were

[00:02:26] Speaker 00:
Directed to different claim limitations and different claims than claim five, but they do encompass every single element of claim five they Board found that Jones discloses multiple augmentation tags that are linked together

[00:02:38] Speaker 00:
that represent anatomical structure in different layers of the medical image.

[00:02:42] Speaker 00:
That is claim five.

[00:02:44] Speaker 00:
Those findings, those factual findings of the board are not disputed on appeal.

[00:02:50] Speaker 00:
There's no appeal on claims one, two, three, four, six, or seven.

[00:02:55] Speaker 00:
And so the findings of the board on those issues are final.

[00:02:59] Speaker 00:
In view of those factual findings, it's internally inconsistent for the Board to have found that every element of Claim 5 is disclosed in the prior art, and yet Claim 5 has been upheld.

[00:03:10] Speaker 00:
That's internally inconsistent in the Board's decision.

[00:03:14] Speaker 00:
The responses from Novorad here focus on a difference between identify and represent, and then questions about what was raised in the proceedings below.

[00:03:23] Speaker 00:
And I'd like to address both of those, if I may.

[00:03:26] Speaker 00:
So with respect to identify versus represent, the argument from the other side is that the identify limitation of claim 1e, of element 1e, is distinct from the represent element of claim 5.

[00:03:40] Speaker 00:
And I don't think there's a dispute that the two words have to mean different things.

[00:03:44] Speaker 00:
However, the specification itself, and this is at appendix 107,

[00:03:50] Speaker 00:
Column 4, lines 30 through 34, it describes specifically the Claim 5 embodiment, and it says in some cases a plurality of augmentation tags may be linked together to represent one anatomical structure.

[00:04:01] Speaker 00:
I'm sorry, can you give me the column number?

[00:04:03] Speaker 00:
Sure, that's column 4, lines 30 through 34 of the 807 patent.

[00:04:08] Speaker 03:
That's one of two relevant uses of the word represented.

[00:04:11] Speaker 00:
That is correct, that is one of two relevant uses, correct.

[00:04:14] Speaker 00:
And it says, represent one anatomical structure which crosses separate layers of the acquired medical image or radiological image.

[00:04:20] Speaker 02:
Are you going to give me a line?

[00:04:22] Speaker 00:
Sure.

[00:04:22] Speaker 00:
Lines 30 through 34.

[00:04:23] Speaker 00:
Sorry, Your Honor.

[00:04:27] Speaker 00:
And then critically, the next sentence, after it talks about how it represents anatomical structure in multiple layers, the next sentence then says, thus, each tag may identify that anatomical structure

[00:04:40] Speaker 00:
in a separate layer.

[00:04:42] Speaker 00:
So it is describing exactly how one represents anatomical structure in multiple layers.

[00:04:47] Speaker 00:
It does so by identifying it in each layer.

[00:04:50] Speaker 03:
Right.

[00:04:50] Speaker 03:
So I guess what I took away from this was everybody here is being somewhat careful about the difference between identify and represent.

[00:05:03] Speaker 03:
You don't want to

[00:05:06] Speaker 03:
dumbed down represent to identify, because you might actually be charged with infringement, and maybe you have a product that doesn't represent.

[00:05:17] Speaker 03:
So even if it identifies.

[00:05:19] Speaker 03:
And what this passage says is that a group of tags together may represent.

[00:05:26] Speaker 03:
And in that configuration, each tag identifies, each tag doesn't

[00:05:34] Speaker 03:
represent the thing that the group represents.

[00:05:38] Speaker 00:
That's correct, Your Honor.

[00:05:39] Speaker 03:
But you never explained that to the board.

[00:05:44] Speaker 03:
So the earlier claims about one and three and so on are all about identifying something.

[00:05:51] Speaker 03:
The explanation that you gave at the oral argument to the board was clarified, I guess.

[00:06:01] Speaker 03:
that in one of the pictures, the virtual trajectory and the target were the tags.

[00:06:06] Speaker 03:
And what they did is identify, is it the bone?

[00:06:09] Speaker 03:
The bone model, yes.

[00:06:10] Speaker 03:
The bone model that was involved.

[00:06:14] Speaker 03:
But more development is needed to introduce the idea of representing through a plurality.

[00:06:23] Speaker 03:
And there just wasn't any more development.

[00:06:25] Speaker 03:
So why didn't the board properly say, you just haven't crossed this divide, which may not be tremendous divide, but you just haven't crossed the divide into talking about this linked group of tags as representing?

[00:06:48] Speaker 00:
So I think, Your Honor, the

[00:06:50] Speaker 00:
The use of the word represent in the specification here, when it's talking about identifying in each layer, I think the identification of the bone model, let's say we talk about the virtual trajectory, which would go

[00:07:04] Speaker 00:
through the bone model, if you pulled out layers within the bone model, you would have multiple layers of the image and the virtual trajectory would be an augmentation tag.

[00:07:15] Speaker 00:
The series of places where the virtual trajectory crosses each layer would be a group of a plurality of augmentation tags linked together to represent that point on the bone model.

[00:07:27] Speaker 00:
I think the

[00:07:28] Speaker 00:
The description and the specification here makes that argument almost inherent that if you identify the anatomical structure in each layer of the medical image, you are thereby representing the bone model.

[00:07:43] Speaker 04:
So I think that... Isn't that your problem?

[00:07:46] Speaker 04:
And I write the board's rejection of your claim that Jones anticipates five is on pages 49 to 50?

[00:07:55] Speaker 00:
That's correct, Your Honor.

[00:07:57] Speaker 04:
As I read, the reason why you lost is because you failed to explain why bone model 1302 is both an augmentation tag and a structure.

[00:08:08] Speaker 04:
It was established that it's a structure earlier, I think, in claim one or whatever, right?

[00:08:13] Speaker 00:
Yes, Your Honor.

[00:08:14] Speaker 04:
So they're basically saying you failed to show why the bone model is an augmentation tag.

[00:08:19] Speaker 00:
Correct.

[00:08:19] Speaker 04:
Right.

[00:08:20] Speaker 00:
Yes.

[00:08:20] Speaker 04:
And I don't see any argument in your brief at all anywhere where you explain why the board is wrong, why bone model is in augmentation tax.

[00:08:30] Speaker 00:
Right.

[00:08:30] Speaker 00:
We're not arguing that bone model is in augmentation tax.

[00:08:33] Speaker 04:
Then why don't you, I'm simple minded, why don't you just lose?

[00:08:37] Speaker 04:
The only reason given by the board, this is a little bit like the last case, the very tense, terse, short, see if you can figure it out board explanation.

[00:08:47] Speaker 04:
But they said you lost because you failed to show that an augmentation tag, pardon me, that a bone model is an augmentation tag, period.

[00:08:55] Speaker 04:
Correct.

[00:08:55] Speaker 04:
And so I'm looking, so you don't respond to that.

[00:08:59] Speaker 04:
So why don't you lose?

[00:09:00] Speaker 04:
I couldn't understand why it mattered.

[00:09:04] Speaker 04:
I don't know why you ever made the argument in saying the reason why there is anticipation is because the bone model is bone.

[00:09:15] Speaker 04:
And I hear you talking a little bit to Judge Toronto now about why you think that's so, but I didn't see you presenting that to the board.

[00:09:23] Speaker 00:
Yes, if Your Honor, and I think this goes to Judge Frost's question at the beginning, if Your Honor is looking for a description of the other augmentation text.

[00:09:31] Speaker 00:
So to answer Your Honor's question, the board found that bone model 1302 is not an augmentation text, that it had not, or at least that Medivis had not shown that bone model 1302 is not an augmentation.

[00:09:41] Speaker 04:
That's right here.

[00:09:42] Speaker 00:
That's a factual determination and reviewed on substantial evidence.

[00:09:46] Speaker 00:
We have not challenged that finding on appeal.

[00:09:48] Speaker 04:
Isn't that the reason why you lost your anticipation argument?

[00:09:51] Speaker 00:
That is the reason why we want what is there for me to do to help you because I think Irrespective of whether bone model 1302 is an augmentation tag there are findings that are that have been made by the board in its final written decision that other augmentation tags that were mapped and I think this goes to the the unilock case I have the the unilock case at

[00:10:14] Speaker 00:
This is 2021-537-0480, where this court said, it's a non-precedential case, but this court said that there's nothing improper about arguing that the prior art discloses particular claim language in several different ways.

[00:10:29] Speaker 04:
In claim element 1E and 1F.

[00:10:35] Speaker 00:
Well, claim limitation, figure 18 does show virtual trajectory 13-12, and it shows target location 13-14.

[00:10:45] Speaker 00:
So those are shown in figure 18.

[00:10:48] Speaker 04:
It shows 13-12 and 13-14.

[00:10:51] Speaker 00:
Yes.

[00:10:51] Speaker 04:
That's the only two.

[00:10:54] Speaker 00:
Right?

[00:10:55] Speaker 00:
Sorry?

[00:10:56] Speaker 04:
13-12 and 13-14.

[00:10:57] Speaker 00:
Yes, correct.

[00:10:58] Speaker 04:
Those are the only two.

[00:11:00] Speaker 00:
It does show 1312 and 1314, which are the virtual trajectory.

[00:11:03] Speaker 04:
So one of those is going to be the initial tag in the claim.

[00:11:09] Speaker 04:
And then the plurality is 1314.

[00:11:12] Speaker 00:
The plurality would be, as I said at the beginning, would be the reference to paragraph 121 in Metavis's argument for claim five, which is describing the multiple layers shown, yes, in figures 21 through 23.

[00:11:24] Speaker 04:
Now, just to re- 23 are showing additional layers at 1334 and 1314.

[00:11:32] Speaker 00:
Yes, correct.

[00:11:34] Speaker 00:
They're showing additional, they're showing 1312 and 1314, renumbered to 1316.

[00:11:38] Speaker 04:
We know that those are augmentation tags.

[00:11:41] Speaker 00:
So the board already found that this is where we get to the internal inconsistencies, because the board did find that with respect to Claim 6, for example, and this is where the problem lies, which is that with regard to the other limitations, these findings were all made.

[00:11:56] Speaker 00:
For Claim 6, the board did find that a plurality of 2D representations of virtual trajectory 1312 is shown.

[00:12:03] Speaker 00:
And Medivis argued it exactly the same way, referencing paragraph 121,

[00:12:07] Speaker 00:
and then figures 18 and 19.

[00:12:08] Speaker 00:
And the board already made that finding.

[00:12:10] Speaker 00:
So this is the point I was making that these findings are already made and there's inconsistencies that are lying here.

[00:12:16] Speaker 04:
Claim six doesn't say they're augmentation tags.

[00:12:20] Speaker 00:
Claim six does say it's claimed almost identically to claim five.

[00:12:25] Speaker 04:
But it doesn't talk about those layers as being tags.

[00:12:28] Speaker 00:
It does not talk about the layers as being tagged.

[00:12:30] Speaker 04:
Correct.

[00:12:30] Speaker 04:
But you're telling me they are.

[00:12:31] Speaker 00:
I'm telling you that the representation of virtual trajectory 1312 and target location 1314 are the augmentation tags.

[00:12:41] Speaker 04:
And that was argued in... There has to be a plurality of augmentation tags once you get the first augmentation tag that includes a plurality.

[00:12:51] Speaker 00:
Right.

[00:12:52] Speaker 00:
Correct, Your Honor.

[00:12:53] Speaker 00:
And I think as the virtual trajectory goes through the various layers, you do see the virtual trajectory shown in, for example, Figure 22, it's shown at one layer, and then at Figure 23, it's shown at another layer.

[00:13:06] Speaker 00:
Sorry?

[00:13:07] Speaker 04:
I don't know why those are augmentation tags as required by the claim.

[00:13:12] Speaker 00:
So again, whether or not they are augmentation tags, that's a finding that, again, the board already made.

[00:13:18] Speaker 00:
This is on, let's say, Appendix 51, for example, that a plurality of 2D- 51?

[00:13:24] Speaker 00:
51, Appendix 51.

[00:13:26] Speaker 00:
With respect to Claim 6, the board said a plurality of 2D representations of virtual trajectory 1312 met the plurality of augmentation tags.

[00:13:36] Speaker 04:
Where are you on page 51?

[00:13:38] Speaker 00:
Yes, I'm on appendix 51.

[00:13:40] Speaker 00:
Which paragraph?

[00:13:43] Speaker 00:
Yes, the middle paragraph.

[00:13:44] Speaker 00:
It says, we agree with Petitioner for similar reasons.

[00:13:47] Speaker 00:
It says that.

[00:13:50] Speaker 04:
In the middle paragraph, right?

[00:13:52] Speaker 04:
It discloses which limitation.

[00:13:56] Speaker 00:
Appendix 51, the second sentence of the, I'm sorry, the third sentence of the second, first full paragraph, I guess.

[00:14:03] Speaker 04:
First full paragraph.

[00:14:04] Speaker 00:
First full paragraph, sorry.

[00:14:06] Speaker 00:
We further agree that one of ordinary skill in the art would have understood that retrieving Jones's virtual trajectory, 1312,

[00:14:13] Speaker 00:
includes retrieving a plurality of 2D representations of virtual trajectory 1312 that are linked together to show a surgical path of an incision.

[00:14:23] Speaker 00:
That is the augmentation tag limitation of claim 6, but for claim 5 the board declined to make that finding and it's internally inconsistent.

[00:14:32] Speaker 02:
That's the argument.

[00:14:43] Speaker 01:
Good morning may it please the court Joseph farmer on behalf of appellee we've reached the heart of the issue which is good To resolve this it's important to appreciate the differences between identify and represent And it's also important to note that there's no evidence or testimony on the record Interpreting the terms identify represent these terms were never disputed and that's because throughout the IPR proceeding the petitioner the patent owner and the board were all on the same page and

[00:15:12] Speaker 01:
Uh, for example, in the petition, Metavis only argued that Joan's bone model satisfied the representation requirement of claim five.

[00:15:20] Speaker 01:
That's an APPX 262.

[00:15:23] Speaker 01:
And petitioner's three sentence argument begins with one sentence from Joan's discussing how slices can be displayed.

[00:15:29] Speaker 01:
And then concludes quote, accordingly, a post would have understood that retrieving 3d bone model 1302 of figures 18 and 19.

[00:15:39] Speaker 01:
Further includes retrieving a plurality of 2D representations of bone model 1302 associated with layers of the acquired medical image."

[00:15:47] Speaker 01:
End quote.

[00:15:48] Speaker 01:
That's the entire argument.

[00:15:49] Speaker 01:
The third sentence... What page was that?

[00:15:52] Speaker 01:
That was at APPX 262.

[00:15:54] Speaker 01:
The third sentence is just a sentence from their expert, Kazanzidis, who just repeats the same conclusion but doesn't provide any additional analysis.

[00:16:06] Speaker 01:
You'll notice that Medivis does not mention Jones' drill trajectory or target at all.

[00:16:13] Speaker 01:
Petitioner does not mention figures 21 through 23 of Jones.

[00:16:20] Speaker 01:
That's the same in Petitioner's reply at APPX 471.

[00:16:26] Speaker 01:
Petitioner repeats its bone model theory.

[00:16:30] Speaker 01:
It says the polygons are linked together to represent the bone structure as claim five requires.

[00:16:38] Speaker 01:
Again, there's no explanation of how polygons are augmentation tags or how they're linked together.

[00:16:45] Speaker 01:
All the way through the IPR proceeding, including oral argument, petitioner never argued that the drill trajectory or target of Jones

[00:16:52] Speaker 01:
or figures 21, 22, or 23 satisfy the representation requirement of claim five?

[00:16:58] Speaker 02:
It feels a little odd, right?

[00:17:00] Speaker 02:
Because the board did, I think with respect to claim three, deal with Jones, the figures 21, 22, and 23.

[00:17:09] Speaker 02:
So it feels a little odd, right, that the board was willing and did rely on those figures with respect to its analysis of other claims, but not claim five.

[00:17:19] Speaker 02:
And I think the only answer you have is,

[00:17:22] Speaker 02:
It's the petitioner's petition.

[00:17:25] Speaker 01:
I would say that it's also that the board understood the difference between identify and represent.

[00:17:30] Speaker 01:
If we take a look at the petitioner or the board's decision for claim one and petitioner's argument, so at APPX 257, 257, petitioner argued that Joan's bone model was the anatomical structure in the medical image, that the drill trajectory and target location were augmentation tags identifying the bone model, and the board

[00:17:52] Speaker 01:
Except, I mean, the board was persuaded by that argument and concluded.

[00:17:57] Speaker 01:
We agree with, this is at APPX 36 and it continues to 37.

[00:18:03] Speaker 01:
We agree with petitioner that Jones discloses an augmentation tag.

[00:18:06] Speaker 01:
Specifically, we agree that Jones virtual trajectory 1312 and target location 1314 are each an augmentation tag that identifies anatomical structure, namely bone model 1302.

[00:18:21] Speaker 01:
The board also explained that target location 1314 identifies a point on bone model 1302 and that virtual trajectory 1312.

[00:18:31] Speaker 01:
points to bone model 1302 and therefore also identifies anatomical structure.

[00:18:38] Speaker 01:
The board then clarified the claimed augmentation tag need only identify at least one anatomical structure, not the anatomical structure itself.

[00:18:49] Speaker 01:
So the board understood the difference between the claim language in claim one, identify, and the claim language in claim five which required... What page was that?

[00:18:57] Speaker 01:
That was at

[00:18:58] Speaker 01:
I started on APPX 36 and finished on 37.

[00:19:02] Speaker 01:
So it was clear to the board that those claim terms are different, and the requirements of claim one and claim five were different.

[00:19:11] Speaker 01:
Identify means point two, and that's enough.

[00:19:14] Speaker 01:
And so the target location and the drill trajectory all point to the bone model.

[00:19:20] Speaker 01:
But representation required more than that.

[00:19:23] Speaker 01:
It had to be more like the anatomical structure itself.

[00:19:27] Speaker 01:
And so, I mean, the board, when it turned to claim five, it had already decided that the bone model was anatomical structure.

[00:19:34] Speaker 01:
And so I didn't understand how it could find that the bone model was both the structure to be augmented and the augmentation tag.

[00:19:42] Speaker 01:
And so they found an APPX 50 petitioner's terse argument does not explain why a bone model is both an augmentation tag and an anatomical structure, independent layers of the acquired medical image.

[00:19:54] Speaker 01:
Accordingly petitioner does not persuade us by a preponderance of the evidence that Jones anticipates claim five It's very clear when you when you look at the board's decisions for claim one and compare to them to claim five that the board appreciated the difference between the claim terms and the claim language and The board couldn't agree that the bone model was both elements anatomical structure and an augmentation tag and so it found that the petitioner had not met its burden and

[00:20:22] Speaker 01:
And that finding is clearly supported by substantial evidence.

[00:20:26] Speaker 01:
And there is no inconsistency between the board's finding for claim one and the board's finding for claim five.

[00:20:36] Speaker 01:
Unless there's any other questions on that issue, I'll move to the two arguments that they make for the first time on appeal.

[00:20:43] Speaker 01:
The first is that the virtual trajectory and target of Jones

[00:20:50] Speaker 01:
also satisfy the claim limitations of claim five.

[00:20:53] Speaker 01:
They argue that they made that argument during the oral argument phase of the IPR, and they cite to APPX 850.

[00:21:02] Speaker 01:
If you look at that part of the transcript, you'll see that the board asked a petitioner to walk through figure 18 and identify augmentation tax, which counsel then did.

[00:21:14] Speaker 01:
Identifying the virtual trajectory and the target of Jones and then the board asked and this is at line 9 of a ppx 850 So just to be clear you're saying it's the target location 1314 and council responded quote I think it's a combination of 1312 which is the drill trajectory and 1314 which is the target location I mean it could be either one because either one is pointing to the bone model so

[00:21:42] Speaker 01:
Everyone that was participating in this IPR proceeding understood that identify meant point two and represent meant more than that.

[00:21:49] Speaker 01:
It had to be a representation of anatomical structure that was created by a plurality of tags in each layer that were then combined together.

[00:21:57] Speaker 01:
There's a really good image of this in the patent at figure 1E and 1F.

[00:22:02] Speaker 01:
1E is an image of a kidney.

[00:22:04] Speaker 01:
It's a 2D slice of the torso of a person.

[00:22:08] Speaker 01:
And it identifies the kidney at 172.

[00:22:13] Speaker 01:
And that's an example of an augmentation tag identifying the kidney.

[00:22:18] Speaker 01:
Those slices are then combined together in figure 1F to create a 3D representation of the kidney.

[00:22:26] Speaker 01:
So the final argument they make on appeal is that figures... Yes, Your Honor.

[00:22:32] Speaker 03:
I assume it's your view that

[00:22:35] Speaker 03:
Figure 1C does not constitute a representation of an anatomical structure.

[00:22:50] Speaker 03:
In columns three and four, there's three paragraphs about figure 1C.

[00:22:57] Speaker 03:
And it's the last of those paragraphs.

[00:23:02] Speaker 03:
that says, in some cases, a plurality of augmentation tags may be linked together to represent one anatomical structure.

[00:23:09] Speaker 03:
I didn't take that sentence to mean that that is what is shown in figure 1C.

[00:23:16] Speaker 01:
1C is not plurality tags that are combined together to represent anatomical structure.

[00:23:22] Speaker 01:
Those are just a series of steps that are performed by the surgeon at each layer, perform procedure A, perform procedure B, et cetera.

[00:23:34] Speaker 01:
They reference figure 1d which you can see but before they start talking about the kidney that I just talked about in figure 1e and f They talk about figure 1d which shows an augmentation tack of a circle in one in multiple layers and then shows that those augmentation tags can be combined together to create a cylinder or a 3d augmentation tag it explains that before it goes on to the next page and it shows the example of the kidney and

[00:24:02] Speaker 01:
If that answers your question, I'll move on to figures 21 through 23.

[00:24:09] Speaker 03:
What is that star doing in figure 1D?

[00:24:17] Speaker 01:
I don't know exactly off the top of my head.

[00:24:19] Speaker 01:
I think it's just an example of a type of tag they discuss in the patent, different geometrical shapes that could serve as 2D augmentation tags.

[00:24:32] Speaker 01:
With regard to figures 21 through 23, again, there's no expert testimony interpreting these figures.

[00:24:39] Speaker 01:
And we believe on that basis alone the court can dispose of this argument.

[00:24:43] Speaker 01:
But even if considered, let me tell you briefly why this argument also lacks merit.

[00:24:49] Speaker 01:
On page 58 of Petitioner's opening brief, or Appellant's opening brief,

[00:24:56] Speaker 01:
Medivis writes figures 22 and 23 show a plurality of 2d representations of bone model 1302 associated with layers of the acquired medical image And that's just not correct if you look at figure 21, which is at a ppx 1344 You'll see a figure of the bone model 1302 I'm just going to hold my arm up here for the bone model and then a drill trajectory like my pen and

[00:25:23] Speaker 01:
that points to a point on the bone model.

[00:25:26] Speaker 01:
And in between the insertion point of the drill bit and the bone model, there's a series of 2D slices along the trajectory.

[00:25:34] Speaker 01:
The purpose of that is to help the physician or the surgeon hit a target on the bone model.

[00:25:41] Speaker 01:
And so figures 22 and 23 show front views of those slices.

[00:25:46] Speaker 01:
And they contain both a target location, which is 1316, and an impact location,

[00:25:53] Speaker 01:
The impact location is where the drill bit would hit the bone at its present location and orientation.

[00:26:02] Speaker 01:
And so it gives feedback to the physician so that he can adjust as he gets closer and closer to the bone model so that the impact location and the target location are the same.

[00:26:13] Speaker 01:
This is explained in paragraph, it's APPX 1358 paragraph 123 explaining what figures 22

[00:26:23] Speaker 01:
Figures 23 mean and that paragraph was not referenced at all by petitioner The bone model that they reference as being somehow linked together to create a 3d augmentation tag doesn't make sense because 1302 is just the bone model itself It's not necessarily in the slice and so at the end of the day Excuse me

[00:26:49] Speaker 01:
Petitioner has not identified augmentation tags in figures 21 through 23 that can be joined together to represent anatomical structure in independent layers.

[00:27:02] Speaker 01:
It just hasn't been done.

[00:27:04] Speaker 01:
So the board's factual findings on claim one and claim five are entirely consistent.

[00:27:09] Speaker 01:
The board's finding that petitioner's argument was lacking is also supported by substantial evidence.

[00:27:16] Speaker 01:
A reasonable fact finder could have and would have arrived at the same conclusion based on the arguments presented today and those in our papers.

[00:27:24] Speaker 01:
The court should deny the appeal and inform the bird's decision.

[00:27:29] Speaker 02:
Thank you.

[00:27:34] Speaker 00:
Thank you, Your Honor.

[00:27:38] Speaker 00:
I'd like to first address Judge Prost's point, which is that

[00:27:42] Speaker 00:
that's precisely the basis for our appeal is that in this case the board is this is not a case a forfeiture type case where we're raising figures twenty one through twenty three on the first time on appeal and the board never had occasion to consider this nobody made any findings about the virtual trajectory of target location the board did dig into figures twenty one twenty two twenty three it made factual findings about the virtual trajectory and the target location

[00:28:06] Speaker 00:
Those findings with respect to claims 3, 4, 6, and 1E are inconsistent with the findings with respect to claim 5 because claim 5, every single element is shown.

[00:28:18] Speaker 00:
Those findings show all the elements of claim 5.

[00:28:20] Speaker 00:
So this is not an occasion where the patent owner was caught off guard and wasn't aware that those figures are at issue.

[00:28:26] Speaker 00:
I would point, Your Honors, to page 384 of the appendix, appendix 384, where the patent owner itself makes the argument, I'll say conflating, but interchanging the words represent and identify.

[00:28:40] Speaker 00:
So the notion that everybody was on the same page about how represent and identify are two different things, I think the patent owner itself on 384 of the appendix

[00:28:50] Speaker 00:
makes note that one does represent anatomical structure by identifying it in the different layers.

[00:28:56] Speaker 00:
And the final point I would make is that to the extent that identify versus represent is the basis for the board's decision, that discussion is not in the board's final written decision.

[00:29:08] Speaker 00:
The board does not say that the

[00:29:10] Speaker 00:
petitioner loses this claim because of an identify versus represent argument.

[00:29:15] Speaker 00:
And if that's the case, then the board should make that finding and so we would ask for a remand for the board to make that finding if that is in fact the case.

[00:29:24] Speaker 02:
Thank you.