Legal Case Summary

. Period. I mean just the statement. And we see it all the time in cases coming out of the board coming up here where the statement, the predicate for the conclusion is written in the opinion. And I think, and I think in this case the predicate wasn't really good. Why don't we just assume it was there? There's no other basis on which the board could have done this. Well we, again I really think your question, we're speculating and that's the problem here. So what, what ground would have permitted the board to make the conclusion it did? I, this design choice was made. What other, other than uttering complete arbitrary behavior, what would have led three members of the board to say this is the correct result? Other than the fact that one of ordinary skill in the art would have done it. Respectfully, I don't know because they didn't do the analysis. But isn't the choice the assumption that the board knew what the law was? This is an unusual case. If you go back and look at the petition for the view here and the rest, there wasn't much by way of law larded in in front. I mean, so you see KSR cited maybe twice. So I think this Court's precedent speaks to your concern, Your Honor. If we look for example, the chew case. In the chew case it was a bag filter or mechanical device. And what the court said there is there, there was simply no analysis done of why you would make the modification that the examiner had said you would be a design choice. And that was a problem and that's why this court reversed. Similarly, in the gall case, Your Honor, the Federal Circuit faulted the commissioner for not explaining how or why this would be done. Now both of those cases also emphasize that an important factor to look at is the function. Here I respectfully submitted that the board had looked at the function. They would have found that they are very different. The spring in this is to make an electrical connection. The visit teaches that explicitly. This is nothing about that spring being a mechanical connection that does what KLAME 5 does, which is provided tension in force so that you've got spring force to hold that brush holder in these environments. KLAME 5 explicitly requires the spring to be on the mount box to exert a spring force on the brush holder only when it's engaged. So that it's a very different. Come back to that. I just think it's hard for me to believe that the board could have met this leap of faith that you've seen the thing they made. Unless they had been deflated and following the law, which is to say we can only do that if an ordinary artist would have been inclined to do that. Let me ask you question. Who is the ordinary artist? So that over the board. It is it is on it was we put in evidence and it was not challenged by our opponent that it's a mechanical engineer with additional experience working in this field. The citation to that evidence is a 619. That's our experts. Declarations. Now the board did not address that specifically, but that is on disputed. So it's this it's this mechanical engineer with some experience in this brush holder field

. Now, but whether or not that ordinary artist would have been motivated to either modify a reference, which we all agree is possible or to combine that that's the more that we are sending the ordinary artist. Right. I'm not sure if I'm right. It's we we can identify who the ordinary artist is. Correct. But then the next question is, well, what's the ordinary artist and they're going to do when they walk up to this prayer? Well, they're going to say, oh, I would modify or I would combine. I think you're hitting on the question. So we then have an opinion by the board that says modify and combine. Well, the board so with respect to claim five, they say. And also there's a combination issue. There it is. I'm just smoothing. So we say some time. So the board says one of our, the board says, modifying and combine. And what I'm saying is I can't see how the board responsibly could have done that unless they were through their mind. They just failed to say it. They were saying one of our nearest go on the earth would be inclined to do this. It you're on or I we don't know. And I can't assign. I mean, the agencies, you know, behave rationally and we believe they behave according to the law. I can't believe that this was three administrative judges on the fall. I can need to. Who just said. We have no reference whatsoever to what the law is. We have no reference at all the one in our New York. We're just going to do it in the closet. I submit that's that's the problem here. I would point the court to the board has to do this. I point you to saying so which says specifically. Even if the use of common knowledge is assumed to derive from the agency's expertise, that does not substitute for authority. Zurko says that the board's general expertise in the subject matter may provide sufficient sufficient support for conclusions as to peripheral issues. But with respect to core factual findings in a determination of patentability. However, the board cannot simply reach conclusions based on its own understanding or experience or on its assessment of what would have been basic knowledge or common sense. Well, it seems to me reading the opinion. The one thing that seems to be missing here is the board starts off with an analysis which it purports and heads to say what the petitioners' contentions are. And then it moves forward to your argument. Some of which it deals with in great detail

. I surmise reading it and I may be the only one that essentially the board subsequently was telling us they're essentially adopting the analysis and what they've laid out in terms of the petitioner. And then they say, okay, we're accepting that except we're going to consider your arguments with respect to those. And then you may fall for them for the result but with respect to the arguments you make, they do give a fairly detailed analysis. I would respectfully disagree with respect to all the analysis but especially with claims 5 and 8, the dependent claims, there's no analysis of the issue of would you combine and the issue of could you combine? There are two sentences with respect to claim 5 that relate to could you do it? Are you talking about now the opinion of the board or are you talking about the petitioners? The final written decision, the board at 25. The chief judge I think was saying and also was in the back of my mind was that I went back and looked to see what because it's clear from the boards opinion as they are adopting the arguments that would be made to them by the petitioner. So I said I'll go back and look at the petitioners. I looked to me like the petitioner was flesh on the bones in the petition that you say is absolutely in the board of the board. If I may address that with unclaimed 5, the argument now being offered to this court was not originally offered in the petition that you could move that spring. That was not in their petition. If you look at their petition at 8, 95, 96, the original argument was that you simply that spring moves and that's good enough. They didn't see or think that it was necessary to move it to the mount block and point it out on our response. The claim says it's the mount block and then they pivoted and replaced. So they didn't even make that argument with respect to claim aim. It is similar to your honor that the argument they made to the board there is the same. It's essentially the same argument, but there was nothing in the address. Would you combine it? If we look at the board's final decision on claim aim, there is just absolutely nothing there. They don't even acclaim it, use the word design choice. I would submit under this Court's precedent both in terms of the design choice cases, chew and gauw, and under St. Sue in Zurko. The design choice language shows up in a kind of a serendipitous way. I can point you to legions of one on three cases where design choice was behind what was happening, but the words weren't used to describe the analysis. The fact that the design choice words pop up to me, I'm carrying that away. As you can see, when you read an opinion, you can see what design process to do with modifying a previous reference. So, you know, I even recently, the Court issued its opinion, Belden v. Burk Tech, and that is not a design choice case, but I think that quick case is very instructive. That was a case involving cables in the use of the patents about preventing twisting of the core and the cables. In that case, in finding the independent claim obvious, here's what the board pointed to, in this Court affirmed the affiding. There was a teaching in the reference that you would align the core and the cables. The board said it, I think quite reasonably, in this Court said, well, if you know to align it, you know you're preventing twisting. We don't have anything like that here. We have a claim or a piece of prerogative uses this thing for one function, a claim that's a very different function, and absolutely, or didn't even attempt to point to anything in the opposite reference, either for claims vibrate. You're past your time, so I'm going to, but let me ask, can I, if I can just ask you a really technical question, because we've got three different cases. The mounting block issue is presented here. Is that the same issue that Mr. Cortzi is presumably going to talk about, and if hypothetically we were to agree on that, what does that do to this case? So you're exactly right, it's the same issue, and he's going to address it in the 354 patent. Now, if the court finds for cuts forth on these obviousness issues, and we submit them given the record reversal is appropriate, it is not necessarily, it's not necessary for the 018 claims. However, it is important for the 354 claim

. But what happens when we rule against you on the argument in maybe now, that's what the court reached the mounting block issue, because what it means is Cartman doesn't have a mounting block, so the combination falls apart for that reason. So the case, the whole case, is going to be on that case, go out claims? Yes. Yes. You went on that case, but on the other hand. We went on the other hand. You went on Mr. Cortzi's round, no, no. Corrector. Okay, well let's see if Mr. Cortzi. Why don't we begin briefly where we just were with mounting block? The 409.504 patent, the court improperly found that the brightest musical interpretation of mounting block would not would a covering mounting block that moves about during the coupling operation, you think that's inappropriate. All of the examples in the specification make clear that the mounting block is in fact fixed in place in a column 15 line 12. This is to the 354 patent that some of these citations are. It seems to me that the issue is given the brightest reason of a long interpretation, the board may be right that in the absence of the word fixed, it's susceptible to a broader interpretation. Was there any, I know if you do an amendment in these in this context, obviously it's going to prejudice you in terms of your past and printment, but was there was there any amendment going on in these process proceeding? There was some claim cancellation for some of these, but no amendment cuts forth sought to have its claims reviewed by the p-tap just as they would be reviewed in district court. And would it, do you agree that it would have satisfied the board if the word fixed had been inserted before mounting block? In the text of the claim claims. That clearly would have resolved this issue, however, we don't think that amendment is necessary to achieve this because of the clear disclaimer in the specification in column 15 line 12. We have a statement that the lower mount block 16 being the only portion that must be fixed to a location. I think that's a clear statement by the patentee that that's what needs to happen. I would also note that every embodiment in all the figures shows a lower mount block that sort of bolted into place. The word welding is used, the word key to a pin is used. There is throughout the specification repeated reference to securing that thing in place, fixing it so that during subsequent coupling operations doesn't move about. So on the point you make that the spec calls out use of keys and pins and bolts. Does that necessarily mean that it would not be moved with every proceeding? I mean, is that the same as necessarily as saying fixed? I think when we look at the weight of the statements in the specification, we have the word fixed in column 15. We have these statements about welding, keying, pinning, bolting. We have the figures which show bolts being inserted into holes that hold that thing in place. We take that all together. We have a circumstance where the patentee is clearly embracing a mount block that stays in place. This is akin to the Abbott diabetes case. Can I ask you just another housekeeping question, which is, we're talking about the 1315 case, right, the 354 patent. Yes. Okay. You've got the selective coupling issue there too. It's my understanding that selective coupling goes into one claim, but with the mounting issue, go to all claims. That's correct, Your Honor. All right

. So I wanted to tell us a little about selective coupling. Gladly, Your Honor. Selective coupling is in your hand. Another question, just about mounting. We're just going to be looking at figure 15b. It's on page 26. It's a one that shows the bolts coming up through the bottom and going through the elliptical receptical hole. Yes. And with the boards view that that shows that you're not fixively held down because it's slide back and forth. The board has an illusion to that. The elongated holes into which the bolt and sort of a spacer fence. Our interpretation of this figure is that those elongated holes are to get the mount block into the appropriate position. Those screw holes. If you look at the elongated holes sitting on top is our number 45, number 45 is the bolt. Is the nut that the bolt goes into? Yes. And look to me like it was designed to slide exactly right down into the hole. That there wasn't any slippage when we were the other. That's also our interpretation. So when you put the bolt out there's lock. It's fixed. That is also our interpretation of that figure. But what else is there that suggests non-fixedness in that drawing? That has to be the notion that somehow the nut that's elliptical also can slide back and forth. Is that the idea? We are trying to now stand in the shoes of the board in terms of what it meant. We don't think there is any notion of movement or slippage in this figure. We think the compressive force of the screw is going to hold that in place plus the width. If you were going to draw a number 45, the nuts to show them sliding into the hole where they fit. If you wanted to show that they fit real tightly, how would you do it other than what they've done in that drawing? I can't think of a way one could imagine. If the nut is made very much smaller than the hole, that would suggest a movement. It might suggest that you need to deal with the compressive force of the bolt going into the nut, which I think would otherwise hold it in place. In fairness, I should note that there is a Bellville washer 185 that has some flex in it. And the board may have been referring to that. But I don't think that changes the overall fixation. When we're seeing your mounting block argument standing along with your selected coupling argument, standing along with your extending from argument, you've got series of arguments where what you're trying to say is, well, go look at the spec and you understand very clearly that the broadest reason for interpretation was too broad. But in the selected coupling issue, you've got another leg to stand on, you've got claim differentiation. So you've got an extra boost up to say, oh, we're not just reading a limitation to the claim from the spec. And on extending from, you've got the language itself. So aren't the selected coupling and extending from arguments necessarily stronger than the mounting block argument? We believe in all of our arguments, but certainly the

... Finally believe in all your arguments Mr. Court, you wouldn't be here otherwise. But I mean, you're adding up data points when you're doing claim construction and trying to say, oh, I'm not going to violate the whole rule that you can't read the limitation after the spec. But the spec is talking to you about this. Don't you feel more comfortable when you've got something else going through? You like claim differentiation or the language itself extending from telling you that we've got to be going this way. Certainly. The term selective being inserted there certainly has to separate claim two of the three five. The guy who was asking away, where are our eyes at stake and it's kind of a close call, then doesn't the tie go to the board? I mean, you have a situation where you have some examples in this spec. And the question is, are we going to limit the claim to that? And we're not any US district board under Phillips. When the patent office in front of a... a monor, if just a shooter ever would have seen one, in terms of the standard, but of necessity, the broadest reason for dirtation is supposed to be broader than claim construction and the district board. So in a situation like this, when you're comparing, you know, extending from selected coupling and then mounting by, why is mounting budget necessarily fall over onto that side where you say, well, it's okay? And I think the reason is that word reasonable in the broadest reasonable interpretation standard. I think on mounting block, the board has embraced a construction that just goes beyond everything in the specification and that's not reasonable. I do want to make sure we have a chance to talk about the 906 patent. In the 906 patent, again, we see some of these themes. The board is initiating structural requirements that are in the independent claim 14. Independent claim 14. Described functional structures like a brush cache, but it also describes how those structures relate to and connect to other structures. The board seemed to have emphasized the first and ignored the latter and actually initiated the latter with this claim construction. This happens in a couple places, but the first place it happens is on the term brush cache coupled to the beam. That word coupled to has meaning. It doesn't say the brush cache is part of the beam. It doesn't say the beam includes a brush cache. It says coupled to. And that means we think distinct physical structures brought together into a coupling relationship. And so why is brought as reasonable? If you were just saying it has to be reasonable. Why is, I mean, take away the word broad because we're allowed to do it broader. What is unreasonable about the board's construction? The board's construction contemplates a relationship between the brush caching beam, whether the same structure. And that's improper. This court's Becht and Dickinson opinion said it's unequivocal where a claim says connected to. You don't connect to yourself. Two structures may connect to one another. And so that's what should happen here

. A couple two. Your reading means brought into connection with. That's correct. And you can't bring something into connection with it if it's already there. That's right. And so we think this is a clear structural physical limitation. Once this court, we hope it will do, cleans that up. The board's rejection under claim 14 falls apart. And that's because of the way the rest of the claim fits together. The claim requires a beam that's in sliding engagement with the mounting block and it requires a brush cache. And the board's analysis of points to the same structure for both. It points to resilient member 56 is having sliding engagement and the brush caching there by bushying the couple two relationship. And we need to read, but we need to, if we agreed with you on the brush issue, we still need to read the projection extending issue. And we need to reach both of those issues. You're independent basis for. There is the other reference, the only step reference. I think we have two attacks on the almost dead reference. First, this theme we've been talking about about the board failing to respect the structural definition in the claim applies on claim 19 for homestead. Claim 19 says the brush cache includes a spring, but the board's analysis for the spring points to something that's in the beach. So the board is pointing again to the wrong structure. It needs to find a spring in the brush cache, which in homestead are the little metal teeth 25. There's no spring in there. Homestead doesn't need the requirements of claim 19. And then turning to the projection. We think the dictionary. The spring because the legs can't compress a can't create a spring effect. This is the structural issue. The legs are the bean in homestead. And the teeth of the brush cache, if the brush cache includes a spring, that means the spring has to be inside those little teeth somehow. That's not what's happening. We're in anticipation here. This is a 102 rejection. There's not structural identity between these two. And I think reversal is appropriate. And there is reversal because there's no lawlessness. So that's the addition of this exclusively anticipation. That's correct

. Also the other side, MPI does not assert that under the correct claim construction, the claim construction cuts forth is proffering that there would be any anticipation. We think the record is clean for reversal. In the same way, you don't argue that there's not anticipation if we disagree with your claim construction. That I mean, I think under that. Both sides are rising and falling on the claim construction. It's a legal issue that's appropriate for review at this stage. I do want to talk about projection. There's dictionary evidence. The court is familiar with it. I think all the dictionaries plus common knowledge is a projection has to jut out from its surroundings. The board evidence some confusion said, well, the direction, maybe it juts down. Maybe it juts left. It has to jut. It does necessary to have to jut out. It has to jut. That's what we're about. That's what our proposed construction is aimed at. I think the boards approach to this term, they're operating under ordinary meaning. But when they applied it, it became clear that their ordinary meaning was overbroad. They applied the term projection to a little like a parking garage ramp that goes down. Why aren't that jutting down? I think it's not jutting at all. It's descending into sort of it's milled out of a surface. It doesn't project or jot in any way, respectfully. So we think the rejection over homestead in addition to the claim. You don't think of a downward ramp and a parking garage is extending downward? When I think of it extending, you know, the ramp is connected to the flat surface. The car sitting here, go to the edge and the point of car down. It's going to go down the hill. So maybe I chose that example because in the parking garage, the ramp goes below, you know, I'm on level one, the ramp goes below level one, right, and extending to level two. In homestead, that's not happening. The little ramp just cuts through the side of the box. That's it. It doesn't extend below. Did we know that? I think the figures are clear. Is it clear from this specification, I'm saying? I believe it is clear. I mean, I, all I saw was an example. I think the drawing is what we're standing on in the description of those as ramps. Through the side of the box

. I've talked about ramps and the garage that can extend down. There's ramps and there's ramps, I suppose. I think these particular ramps only extend through the wall of the brush box. There's a few about the theme limitation. Yes. The board found it was an elongated support structure. What's wrong with that? Is that claims construction? Do you need to prevail in order to win on this? Take those questions in reverse order. I think the other arguments we've presented provide a basis for reversal. This is not our only basis for reversal. I don't agree with you on this. It's hard to keep track of all the different claims and the three different patterns. If I don't agree with you on beam, what's the I agree with you on everything else? Hypothetically. If you agree with everything else, I think reversals are appropriate for the three five. Why don't you tell me what's wrong with elongated support structure for the word beam? That's not a technical definition of a beam. I think even under BRI, it's appropriate to look at what the meaning would be to a person of skill in the art. A person of skill in the art here looks at the pattern. That's correct. We think there's unrebutted dictionary and textbook evidence here, unrebutted expert testimony. That a beam has a technical definition that involves considerations of being long, being straight, being rigid. Let's look at figure 16. Figure 16 in the 906 pattern is described repeatedly as being a beam. Now, beam doesn't just include the back plate. The beam includes the edges. The beam includes the upper locking pin. The beam includes the pinholes. Does this picture look like a long, straight structural member? I think it does. Seriously? Seriously, Judge, I do. I think it's a disability here, Council. I mean, look at this. This is in multiple dimensions. This is nothing like an I-beam or any of the other things that you described as a beam, which granted my playing understanding of the word beam, would absolutely consist with what you say it should be. But I feel like you're living in a plain meaning world and not owning up to what you actually disclosed was a beam in your own pattern. That's why I corrected your initial statement about is it beam as one of ordinary skill in the art of construit or beam as one would have to construit in light of the pattern? The pattern discloses this is a beam. It's the upper beam. Yes. But once, as opposed to the lower beam, right, well, okay, this is a beam. So if this is a beam, so it's clearly not the long, straight thing that you said it was because there's no way that this is long and straight, no way

. So if this is a beam, then why isn't crumbles or whatever with its U-shape or omestead with its other shape, likewise, beams? I don't know what the heck to make out of the word beam in light of the patterns on use of it. And that's why I'm like, I think long-gated support structures are not looking so bad all of a sudden to me, you know. Then let me at least, and I'm out of time, let me focus on omestead briefly. Omestead is a springy structure, flexes back and forth. That's not rigid. That's not what a beam is. When we build things out of beams, we don't expect them to flex. In fact, we design them to flex minimally when they're under load. Omestead is the opposite. Okay, but wait, but the patent office said elongated support structure in that implies a degree of rigidity. You can't have a rubber band that's not an elongated support structure or a spring is not going to be deemed an elongated support structure. But then we're getting into not the matter of claim construction, but the matter of substantial evidence support of determination that that particular structure in the anticipatory reference fits the definition or not. Respectfully, I'm not sure it is at all clear that the board viewed rigidity as part of beam because it applied to omestead was this expressly flexible. It has to be a support structure. How can you have a non-rigid support structure or a rubber band can't be a support structure? I agree with you on the one hand, and yet I'm bound by where the board said omestead, which is resilient members flexing back and forth, and the board said that's a beam. So I have to assume that the board viewed the meaning of beam is brought enough to encompass that. I'm learning very short on time, I'd like to reserve some rubato. Yes, sure. Well, reserve three minutes is free. Thank you, you're welcome. Good afternoon. May I please support? It's important to take a look back and find a figure out how this patent portfolio fits into the whole thing, and to keep in mind that there are five patents originally challenged at the patent office. Okay, you've got so much stuff you've got to cover in 30 minutes. The look back at the history of the world is just not the way to go. Focus, let's start one at a time. Projection extending from how can something recessed into something else be a projection extending from? Seems quite frankly the opposite of the word projection, the opposite, not even sort of maybe not quite usually the way we think of projection, but actually the opposite of the way the word projection normally operates. I would disagree judge more with respect to it being a recess. They found that the board found that it had to extend from a surface of the mountain block. And so that ramp extends from a surface of the mountain block. Actually, there is, I mean, I have the picture here, I'm set figure one, it is there's a cut out and a little orange ramp. I think mine is color coded by my car. This is my guess. Yes. Okay. So you don't have orange on your horse. The little orange ramp is actually recessed into the cut out. It doesn't actually protrude at all, at all, from the sideways surface of onestates project. Yes, but it extends up from the horizontal surface that's in set there. So that's what the board found is an S-console. Well, only because there's a cut out, it doesn't actually extend beyond the horizontal surface. It's that the horizontal surface is cut out so it can be fit into that horizontal surface. But it extends up. It extends up. From cut out. So that's like saying something to projection. If I dig a hole and bury it because it projects from the figure one and on the surface. And when I'm talking about the horizontal surface, I'm talking about the base of the ramp. It extends up or lead from that base and extends to a point. That's I believe with the board found in its spec in its decision. It said nothing. Linus the direction in which the projection must project. That's worth once it's a project outwardly from an outer surface. It does project up from when I'm talking about your honors, the bottom of the ramp 59. There is a horizontal surface there and that ramp extends up from the surface. Because the horizontal surface was cut out to slide the ramp into it. That's the part that seems pretty clear from the picture. Okay, let's move on to your next argument. Sure. Moving on to a brush catch, including the spring. The brush catch, yeah, the brush catch includes the spring. I think you'll see in figure 12 of the cuts for the patent be spring is actually a separate piece from the brush catch. It's a leaf spring that comes off of the brush catch. The brush catches a generally kind of straight member with the tooth coming off of it. And there is a spring attached to it just as in the omestet reference. There's a brush catch 25. And the board found that the resilient part of omestet at the bottom of the beam there. And it's only that small part that deflects because if you look at the figure we were just looking at an omestet the top part of the beam actually fits behind the box and only the bottom part deflects and that part is riveted to the brush catch. I'm confused in omestet. What's the spring? Is it on the beam or is it on the brush catch? It would be the bottom part of the beam. So if you're looking at figure one. So does the brush catch include the spring or does the beam include the spring? The brush catch is coupled to the beam and the bottom part of the beam is a spring. So there's a spring coupled to the brush catch just in the cuts for the patents and figure 12 is a spring. It doesn't play 19 say wherein the brush catch includes a spring. It does

. Yes, but it extends up from the horizontal surface that's in set there. So that's what the board found is an S-console. Well, only because there's a cut out, it doesn't actually extend beyond the horizontal surface. It's that the horizontal surface is cut out so it can be fit into that horizontal surface. But it extends up. It extends up. From cut out. So that's like saying something to projection. If I dig a hole and bury it because it projects from the figure one and on the surface. And when I'm talking about the horizontal surface, I'm talking about the base of the ramp. It extends up or lead from that base and extends to a point. That's I believe with the board found in its spec in its decision. It said nothing. Linus the direction in which the projection must project. That's worth once it's a project outwardly from an outer surface. It does project up from when I'm talking about your honors, the bottom of the ramp 59. There is a horizontal surface there and that ramp extends up from the surface. Because the horizontal surface was cut out to slide the ramp into it. That's the part that seems pretty clear from the picture. Okay, let's move on to your next argument. Sure. Moving on to a brush catch, including the spring. The brush catch, yeah, the brush catch includes the spring. I think you'll see in figure 12 of the cuts for the patent be spring is actually a separate piece from the brush catch. It's a leaf spring that comes off of the brush catch. The brush catches a generally kind of straight member with the tooth coming off of it. And there is a spring attached to it just as in the omestet reference. There's a brush catch 25. And the board found that the resilient part of omestet at the bottom of the beam there. And it's only that small part that deflects because if you look at the figure we were just looking at an omestet the top part of the beam actually fits behind the box and only the bottom part deflects and that part is riveted to the brush catch. I'm confused in omestet. What's the spring? Is it on the beam or is it on the brush catch? It would be the bottom part of the beam. So if you're looking at figure one. So does the brush catch include the spring or does the beam include the spring? The brush catch is coupled to the beam and the bottom part of the beam is a spring. So there's a spring coupled to the brush catch just in the cuts for the patents and figure 12 is a spring. It doesn't play 19 say wherein the brush catch includes a spring. It does. And in the cuts for the patent the spring is a separate piece from the brush catch. If you go to figure 12 of the cuts for patents there is a brush catch 118 and then there's a separate piece 112 which is the spring. There are two separate pieces. So the brush catch includes the spring by having something connected to it just as an omestet. What are you going to address the 18 patent? Why don't we shift to that Judge Klopender? With respect to the 18 patent I think there was an argument the board conducted an improper obvious analysis and I don't think that's the case. I think if you look back to page A2 of the board's decision they indicated they considered the prior art, the petition, the patent owner response, the petitioner reply and the arguments made it the oral hearing and they went on to find and view of these arguments and evidence the board found petitioner met its burden by a proponderance of the evidence. So they found the arguments are represented and the evidence considered that the petitioner met its burden by a proponderance of the evidence. So we'll just go back to A2 saying we're A2. Yes. I'm looking at A2 and I granted the petition because nine grounds we had trial on some. The file that was found the file of the petition oral hearing was held we have statutory authority. The reasons it followed were back. Didn't you say there was more on page two what were you telling you was on page two? The board laid out all of the evidence and all of the arguments they considered and then indicated that we determined the petition. On page two. No, page two is said for the reasons that follow. So we're holding our breaths for the reasons that follow. Well up above was where they indicated above like where up above like show. Sure. So in the background mode of power petitioner filed a petition. Now the petition good. That was great. The board granted the. You say we read the petition? I assume that the board considered. I'm just I'm just calling you out because you were reading more in page two than non-page two. Okay. Well, let's shift to the analysis of the board and there's an argument that they did not follow the KSO. I'm not a rational and page 15 of our red brief. We talked about KSO and KSO elaborates the quote. When they're elaborates that when quote there are finite number of identified. Pretty cool solutions a person of ordinary skill in the art. Has good reason to pursue the known options within his or her technical grasp. And if this leads to the anticipated success successes it is likely the product not a innovation but a ordinary skill in common sense. And I would indicate that's what the board did here with respect to claim five. There's no argument. There's not a spring in the prior. There are two possible positions of position spring. The board said when faced with a finite number of solutions it would be a design choice as to where to place it

. And in the cuts for the patent the spring is a separate piece from the brush catch. If you go to figure 12 of the cuts for patents there is a brush catch 118 and then there's a separate piece 112 which is the spring. There are two separate pieces. So the brush catch includes the spring by having something connected to it just as an omestet. What are you going to address the 18 patent? Why don't we shift to that Judge Klopender? With respect to the 18 patent I think there was an argument the board conducted an improper obvious analysis and I don't think that's the case. I think if you look back to page A2 of the board's decision they indicated they considered the prior art, the petition, the patent owner response, the petitioner reply and the arguments made it the oral hearing and they went on to find and view of these arguments and evidence the board found petitioner met its burden by a proponderance of the evidence. So they found the arguments are represented and the evidence considered that the petitioner met its burden by a proponderance of the evidence. So we'll just go back to A2 saying we're A2. Yes. I'm looking at A2 and I granted the petition because nine grounds we had trial on some. The file that was found the file of the petition oral hearing was held we have statutory authority. The reasons it followed were back. Didn't you say there was more on page two what were you telling you was on page two? The board laid out all of the evidence and all of the arguments they considered and then indicated that we determined the petition. On page two. No, page two is said for the reasons that follow. So we're holding our breaths for the reasons that follow. Well up above was where they indicated above like where up above like show. Sure. So in the background mode of power petitioner filed a petition. Now the petition good. That was great. The board granted the. You say we read the petition? I assume that the board considered. I'm just I'm just calling you out because you were reading more in page two than non-page two. Okay. Well, let's shift to the analysis of the board and there's an argument that they did not follow the KSO. I'm not a rational and page 15 of our red brief. We talked about KSO and KSO elaborates the quote. When they're elaborates that when quote there are finite number of identified. Pretty cool solutions a person of ordinary skill in the art. Has good reason to pursue the known options within his or her technical grasp. And if this leads to the anticipated success successes it is likely the product not a innovation but a ordinary skill in common sense. And I would indicate that's what the board did here with respect to claim five. There's no argument. There's not a spring in the prior. There are two possible positions of position spring. The board said when faced with a finite number of solutions it would be a design choice as to where to place it. With respect to plain eight regarding the. Doesn't that quote say where there is a design need or market pressure to do so. There are finite number of identified predictable solutions. The first of ordinary skills good reason to pursue the known options within his or her technical grasp. You left out the first part right and that's the part they're complaining about. Their complaint is it's not enough to just say it's a design choice. What the spring court said is when there is a design need or market pressure to solve a problem then blankly blankly blank. But I don't see the boards opinion. You may have articulated some good reasons in your brief but I don't see any of those in the boards opinion itself as to where the design need has been established or what the design need is or what the market pressure is. I'm just reading straight from KSR on my computer. The first part of the single sentence that you read the second part of. So you kind of left out sort of important part which is part their arguing. I all I can say is I think that the board identified it as a design choice recognized that there were two possible places based on the prior for them and said that it would have been obvious for skilled artisan to move it to the. Modified mounting block in that why what what is the design need or the market pressure what's the problem with the way it was before what is the advantage to be achieved by moving it why why would a skilled artisan have made that design choice. I don't think that there was a. I don't think with this being a dependent claim I don't think there was necessarily the same problem presented in the prior art that way and I think the board considered it. I mean in the pattern that way and I think the board considered it that way there was the omestep reference that was before that did have the spring on the brush box and I think that they considered the prior and arriving at their decision. That's the point the board didn't say any of that I mean that's not a bad argument and if that is what their opinion had said maybe this would feel like a really different case to me but their opinion doesn't and what what about the fact that this two springs function completely differently and is it as opposed to. That's what one is a mechanical spring that works in a mechanical fashion to achieve the result and the other is a spring that's used. Completely not really is an electrical spring the movement is not not only going to are you going to move it but you're going to entirely change the function and nature of the use of the spring and that's all just going to fall into the design choice. Yeah I don't think it changes the function because it is a a you shaped spring and there's a knife edge that goes into it so it would exert a spring force on there and provide the same mechanical biasing that's called for the claim. The rest of the claim says spring applies spring force against at least a portion of the brush holder component when the brush holder component is mounted to the mounting block. So when the spring from visit is moved from the base to the mounting block there's no evidence that the spring force is going to be satisfied no evidence in this record and if I'm wrong you show me where it is. I don't think there's an explicit teaching but when it's moved the brush holder component still has a knife edge that slides in and that spring would apply spring force to that component of the brush. And the problem with that is you may be right and you may actually be able to convince the board of all of that but the board didn't address it or analyze it or anything. How am I supposed to do that and appeal to replace their two words design choice with everything you just said about how the spring would or wouldn't operate if it were moved. I mean we're changing the nature into at least as far as the disclosure goes of the functioning of the spring we're moving it to a different place and there's the rest of that element that they don't explain. I don't know how I can read all that into the words design choice without any explanation. I the only thing I can tell you are I think they address the party's arguments and so the argument as you're articulating it might not have been presented. No it wasn't I went back and look because I was worried about that too it's it's in there they expressly argue that the remainder of the claim. You know requires spring applied spring force against these divorce and the brush holder they expressly said it wouldn't there's no evidence and they didn't say it wouldn't do it. There's no evidence at all but it would work that way if it was moved because they don't have the burden approved so they didn't say it wouldn't but they just said there's no evidence at all that it would do any of that. I think go back and look to ensure that the argument was raised it was I don't know I should let you move on. Can you talk to us about your your when your adversary was up and we were talking about the same thing he said that in your petition for review I think he said in 895 96 you didn't have any of this rationale about the spring. I think we argued for the the combination of the spring would be moved to the modified mounting block and during the course of the proceedings they raise additional arguments and we we responded to those but I think we in the petition we argued for the combination of the modified mounting block to include the spring. Can I move you to mounting block. Sure

. With respect to plain eight regarding the. Doesn't that quote say where there is a design need or market pressure to do so. There are finite number of identified predictable solutions. The first of ordinary skills good reason to pursue the known options within his or her technical grasp. You left out the first part right and that's the part they're complaining about. Their complaint is it's not enough to just say it's a design choice. What the spring court said is when there is a design need or market pressure to solve a problem then blankly blankly blank. But I don't see the boards opinion. You may have articulated some good reasons in your brief but I don't see any of those in the boards opinion itself as to where the design need has been established or what the design need is or what the market pressure is. I'm just reading straight from KSR on my computer. The first part of the single sentence that you read the second part of. So you kind of left out sort of important part which is part their arguing. I all I can say is I think that the board identified it as a design choice recognized that there were two possible places based on the prior for them and said that it would have been obvious for skilled artisan to move it to the. Modified mounting block in that why what what is the design need or the market pressure what's the problem with the way it was before what is the advantage to be achieved by moving it why why would a skilled artisan have made that design choice. I don't think that there was a. I don't think with this being a dependent claim I don't think there was necessarily the same problem presented in the prior art that way and I think the board considered it. I mean in the pattern that way and I think the board considered it that way there was the omestep reference that was before that did have the spring on the brush box and I think that they considered the prior and arriving at their decision. That's the point the board didn't say any of that I mean that's not a bad argument and if that is what their opinion had said maybe this would feel like a really different case to me but their opinion doesn't and what what about the fact that this two springs function completely differently and is it as opposed to. That's what one is a mechanical spring that works in a mechanical fashion to achieve the result and the other is a spring that's used. Completely not really is an electrical spring the movement is not not only going to are you going to move it but you're going to entirely change the function and nature of the use of the spring and that's all just going to fall into the design choice. Yeah I don't think it changes the function because it is a a you shaped spring and there's a knife edge that goes into it so it would exert a spring force on there and provide the same mechanical biasing that's called for the claim. The rest of the claim says spring applies spring force against at least a portion of the brush holder component when the brush holder component is mounted to the mounting block. So when the spring from visit is moved from the base to the mounting block there's no evidence that the spring force is going to be satisfied no evidence in this record and if I'm wrong you show me where it is. I don't think there's an explicit teaching but when it's moved the brush holder component still has a knife edge that slides in and that spring would apply spring force to that component of the brush. And the problem with that is you may be right and you may actually be able to convince the board of all of that but the board didn't address it or analyze it or anything. How am I supposed to do that and appeal to replace their two words design choice with everything you just said about how the spring would or wouldn't operate if it were moved. I mean we're changing the nature into at least as far as the disclosure goes of the functioning of the spring we're moving it to a different place and there's the rest of that element that they don't explain. I don't know how I can read all that into the words design choice without any explanation. I the only thing I can tell you are I think they address the party's arguments and so the argument as you're articulating it might not have been presented. No it wasn't I went back and look because I was worried about that too it's it's in there they expressly argue that the remainder of the claim. You know requires spring applied spring force against these divorce and the brush holder they expressly said it wouldn't there's no evidence and they didn't say it wouldn't do it. There's no evidence at all but it would work that way if it was moved because they don't have the burden approved so they didn't say it wouldn't but they just said there's no evidence at all that it would do any of that. I think go back and look to ensure that the argument was raised it was I don't know I should let you move on. Can you talk to us about your your when your adversary was up and we were talking about the same thing he said that in your petition for review I think he said in 895 96 you didn't have any of this rationale about the spring. I think we argued for the the combination of the spring would be moved to the modified mounting block and during the course of the proceedings they raise additional arguments and we we responded to those but I think we in the petition we argued for the combination of the modified mounting block to include the spring. Can I move you to mounting block. Sure. Because even under the broadest reasonable interpretation is Mr. Courtney pointed out we need reasonableness and it seems to me there's a lot of specification including the use of the word fixed and everything they're talking about is bolting and pins and keys all of which can be used in the case of the I think there are a couple of points to consider there first and let's focus on the the 354 pattern which is appeal 1315. The use of the word fixed in the patent is in quotations it's not it's in quotations it's quote fixed in the patent and the board first noted in this would be at the bottom of a 9 of the 1315 decision the board made. The board said when a word or term is not used functionally but is referred to as a word or term itself is either a tall size or enclosed in quotation marks and so they had the fact that it's shrouded in quotation marks makes the use of it in that passage not to be taken literally so it's one of the things they pointed out it was unclear and we're talking about the disclaimer he argued for disclaimer in the patent and so if the word fixed is in quotation marks I don't know how that can rise to the level of disclaimer so this was discussed on a 9 and it's footnote 2 in the 1315 appeal but there's another part of the board is it really disclaimer or really doing a disclaimer analysis I mean is it clear that mounting block that would you need a disclaimer if it was absolutely clear that any ordinary of plain meaning of mounting block excuse fix. And so therefore you need an absolute. I think the argument Mr. Courtney raised was a disclaimer and I was rebutting that if it is a disclaimer the use of the quotations I think doesn't rise to the level of the reference to bolts and everything else or talking about this. I think that's one embodiment and so if you go to page 888 of the board's decision in the 1315 appeal they say midway through the page they talk about in fact the specification makes a point of not limiting the attachment of the mouth 20. I'm trying to find sure it's about 10 lines down. Okay. Okay. So in fact the specification makes a point of not limiting the attachment of the mouth 20 particular method fixed or not fixed and I think the parent bettopil here is important. It says or other attachment scheme may be used to secure the lower mouth lock 16 to a mouth base near a moving conductive surface or in position to move relative to a conductive surface so if the lower mounting block is capable of moving I don't know what the fixed limitation adds to it and the board goes on to this page to say. The cut's worth has pointed to an embodiment some embodiments but they don't cover all embodiments so in the embodiments with the mounting body. What in the real world would meet with moving relative to a conductive surface mean just describe me what happens in the structure. I know what happens if you're mounting it you're bolting it something tight and fixed and that's the that's the construction that your adversaries are doing for. I'm just asking in my own mind what does putting in a position to move relative to a conductive surface what does that mean. I think it means that the mounting block can be attached to something and have a move part of it can be movable part of what part of the mounting block can be movable and in the mounting block and where would you move it to what would be the purpose. I think one example is in the mounting block in the pattern there's an upper mounting block and a lower mounting block and they can move relative to each other. One thing I'm confused about this is not necessarily you but I want to ask you what your thoughts are. I thought I understood cut's worth to stand here and tell us there's a disclaimer and that's why we should find fixed and that's I didn't catch it at the time but now as I'm sitting here it's like I went back to their brief and I thought that they argued there was no disclaimer but nonetheless I'm not sure what that's going to be. I don't think the board could make this structural decision. Do they argue disclaimer or not? I believe the first time I heard it was today. I don't recall seeing it in their brief. And that's what the you know the broadest reasonable interpretation I think still has to be consistent with the specification and cannot read out and modigates. The board found with respect to if you incorporate the word fixed it would in their opinion read out certain embodiments from the specification and while we're on the plane construction issue I think one. I mentioned the embodiment of which of the one is position. The one where it says. And position to move relative to the conductive surface or the one where the mounting block. And you're moving rally aren't you still haven't just don't fix the thing tight so. Two tightly fixed things are moved relative to one another. I don't think that's required by the claim and I think I'm just trying to get out of here reading off a lot into a position to move relative to a conducting surface. Yeah, I think part of the boards opinion is that they weren't sure what fixed meant because this fixed mean that you can't fix it and then unscrew it take it off and put it back on so they were concerned with the use of the word fixed limiting it to some specific embodiment. And they pointed to the words the use of the word secure sometimes and they didn't. And why is it the prior art claim construction and the board fixed under our opinion the prior art still is fixed the Cartman. How exactly is fixed there are screws that come in that hit the mounting block and it's tightened up against a clamp so we argued down below that it is fixed. They've asked you to reverse I don't think you can reverse on any of the claim construction issues I think you could vacate and remand because we made the argument under cuts for claim constructions that these were disclosed the board never reached the claim construction arguments under cuts

. Because even under the broadest reasonable interpretation is Mr. Courtney pointed out we need reasonableness and it seems to me there's a lot of specification including the use of the word fixed and everything they're talking about is bolting and pins and keys all of which can be used in the case of the I think there are a couple of points to consider there first and let's focus on the the 354 pattern which is appeal 1315. The use of the word fixed in the patent is in quotations it's not it's in quotations it's quote fixed in the patent and the board first noted in this would be at the bottom of a 9 of the 1315 decision the board made. The board said when a word or term is not used functionally but is referred to as a word or term itself is either a tall size or enclosed in quotation marks and so they had the fact that it's shrouded in quotation marks makes the use of it in that passage not to be taken literally so it's one of the things they pointed out it was unclear and we're talking about the disclaimer he argued for disclaimer in the patent and so if the word fixed is in quotation marks I don't know how that can rise to the level of disclaimer so this was discussed on a 9 and it's footnote 2 in the 1315 appeal but there's another part of the board is it really disclaimer or really doing a disclaimer analysis I mean is it clear that mounting block that would you need a disclaimer if it was absolutely clear that any ordinary of plain meaning of mounting block excuse fix. And so therefore you need an absolute. I think the argument Mr. Courtney raised was a disclaimer and I was rebutting that if it is a disclaimer the use of the quotations I think doesn't rise to the level of the reference to bolts and everything else or talking about this. I think that's one embodiment and so if you go to page 888 of the board's decision in the 1315 appeal they say midway through the page they talk about in fact the specification makes a point of not limiting the attachment of the mouth 20. I'm trying to find sure it's about 10 lines down. Okay. Okay. So in fact the specification makes a point of not limiting the attachment of the mouth 20 particular method fixed or not fixed and I think the parent bettopil here is important. It says or other attachment scheme may be used to secure the lower mouth lock 16 to a mouth base near a moving conductive surface or in position to move relative to a conductive surface so if the lower mounting block is capable of moving I don't know what the fixed limitation adds to it and the board goes on to this page to say. The cut's worth has pointed to an embodiment some embodiments but they don't cover all embodiments so in the embodiments with the mounting body. What in the real world would meet with moving relative to a conductive surface mean just describe me what happens in the structure. I know what happens if you're mounting it you're bolting it something tight and fixed and that's the that's the construction that your adversaries are doing for. I'm just asking in my own mind what does putting in a position to move relative to a conductive surface what does that mean. I think it means that the mounting block can be attached to something and have a move part of it can be movable part of what part of the mounting block can be movable and in the mounting block and where would you move it to what would be the purpose. I think one example is in the mounting block in the pattern there's an upper mounting block and a lower mounting block and they can move relative to each other. One thing I'm confused about this is not necessarily you but I want to ask you what your thoughts are. I thought I understood cut's worth to stand here and tell us there's a disclaimer and that's why we should find fixed and that's I didn't catch it at the time but now as I'm sitting here it's like I went back to their brief and I thought that they argued there was no disclaimer but nonetheless I'm not sure what that's going to be. I don't think the board could make this structural decision. Do they argue disclaimer or not? I believe the first time I heard it was today. I don't recall seeing it in their brief. And that's what the you know the broadest reasonable interpretation I think still has to be consistent with the specification and cannot read out and modigates. The board found with respect to if you incorporate the word fixed it would in their opinion read out certain embodiments from the specification and while we're on the plane construction issue I think one. I mentioned the embodiment of which of the one is position. The one where it says. And position to move relative to the conductive surface or the one where the mounting block. And you're moving rally aren't you still haven't just don't fix the thing tight so. Two tightly fixed things are moved relative to one another. I don't think that's required by the claim and I think I'm just trying to get out of here reading off a lot into a position to move relative to a conducting surface. Yeah, I think part of the boards opinion is that they weren't sure what fixed meant because this fixed mean that you can't fix it and then unscrew it take it off and put it back on so they were concerned with the use of the word fixed limiting it to some specific embodiment. And they pointed to the words the use of the word secure sometimes and they didn't. And why is it the prior art claim construction and the board fixed under our opinion the prior art still is fixed the Cartman. How exactly is fixed there are screws that come in that hit the mounting block and it's tightened up against a clamp so we argued down below that it is fixed. They've asked you to reverse I don't think you can reverse on any of the claim construction issues I think you could vacate and remand because we made the argument under cuts for claim constructions that these were disclosed the board never reached the claim construction arguments under cuts. So to accept any of the claim construction issues are reversed here I think they would have to be sent back down to the board to consider under the fixed limitation and I think under the fixed limitation the board would find the Cartman clamp is fixed because the screws are tightened down. And it's fixed in place that's what we believe is required by fixed and that's why the board had a little confusion as to what exactly was meant by fixed and I think an important point was there was an opportunity to amend here and that opportunity was for gone they could have amended to claim fixed. Well that does kind of resolve the whole issue I mean that's all going forward but that wouldn't certainly change what's going on here. It's not a cost free decision to make. You are correct. With respect to the beam I think the board properly found that there's no reason to limited to a rigid structure or a straight structure and I think I'm. You say no reason limited to rigid they certainly didn't put the word rigid in the construction or whatever they did say it has to be a support structure right over the end couldn't be a support structure. I wholeheartedly agree with you I mean there's pictures of all the different things that could be. The construction does import into a notion of rigidity sufficient to perform the function of the beam. I agree with that. And I think there's no testimony that even under the own state it has some flexibility but it still supports structure and when their expert was question about it you couldn't identify how much deflection there would be. And with respect to it being straight I think the board really hit on the point you made earlier judge more when you look at the beam it's not straight in all directions so in which direction is it straight for the first time on reply cuts for the said well it's straight in the. Perpendicular direction along its axis and that's the first time we've ever heard that argument it came up and reply I could have been presented. And do you agree with Mr. Courtney's response to judge more about just the play of the various different things if we would to agree with their side on the projection and the brush catch then even if we disagree on the being case with the reverse. With respect to that's what I understood was the quite there between the various. Let me find my notes on that. With respect to the projection that affects the homestead reference only and with respect to the. Rush cash cash is. Yeah brush catch. Melting what. Fresh catch couple to the beam affects the rolls reference so if you were to find on both of those in cuts for favor you could vacate and remand for consideration under their claim construction. In terms of the project from that so is not a one of two reject. It isn't one of two rejection only for the homestead reference though. There are two references for purposes of the 906 patent to one of two rejections and so you don't think we can reverse. I don't think you can reverse because they didn't consider. We made the argument that it does project out under their construction down below I believe and I don't think that the board made a finding. I think you could make that finding but I think the board did not consider that construction in arriving at its finding. I think the only thing that you didn't hit on was selectively couple do you want to go there for sure so selectively coupling is an interesting one I don't think that the claim different. One other thing before we move on when you said we should remand to consider anticipation under their claim construction. Did you ever argue that below alternatively that even under their construction the claims would be anticipated. We did argue that below I don't know if we are getting for all of the claim constructions. I have to look at it but I know for example on the beam we argued that the Cartman beam was fit or was a person who's done. If you didn't do it for projection for example because I think that maybe we didn't for all of them like you're saying. So that wouldn't be remanded for them to reconsider the homestead reference in like of the new construction of projected if you didn't argue any thing different. That's correct to the extent we did not argue it but I believe it for the majority of them I believe we did argue. I think you're going to respond to Judge Morris question about the difference between selected coupling and coupling

. So to accept any of the claim construction issues are reversed here I think they would have to be sent back down to the board to consider under the fixed limitation and I think under the fixed limitation the board would find the Cartman clamp is fixed because the screws are tightened down. And it's fixed in place that's what we believe is required by fixed and that's why the board had a little confusion as to what exactly was meant by fixed and I think an important point was there was an opportunity to amend here and that opportunity was for gone they could have amended to claim fixed. Well that does kind of resolve the whole issue I mean that's all going forward but that wouldn't certainly change what's going on here. It's not a cost free decision to make. You are correct. With respect to the beam I think the board properly found that there's no reason to limited to a rigid structure or a straight structure and I think I'm. You say no reason limited to rigid they certainly didn't put the word rigid in the construction or whatever they did say it has to be a support structure right over the end couldn't be a support structure. I wholeheartedly agree with you I mean there's pictures of all the different things that could be. The construction does import into a notion of rigidity sufficient to perform the function of the beam. I agree with that. And I think there's no testimony that even under the own state it has some flexibility but it still supports structure and when their expert was question about it you couldn't identify how much deflection there would be. And with respect to it being straight I think the board really hit on the point you made earlier judge more when you look at the beam it's not straight in all directions so in which direction is it straight for the first time on reply cuts for the said well it's straight in the. Perpendicular direction along its axis and that's the first time we've ever heard that argument it came up and reply I could have been presented. And do you agree with Mr. Courtney's response to judge more about just the play of the various different things if we would to agree with their side on the projection and the brush catch then even if we disagree on the being case with the reverse. With respect to that's what I understood was the quite there between the various. Let me find my notes on that. With respect to the projection that affects the homestead reference only and with respect to the. Rush cash cash is. Yeah brush catch. Melting what. Fresh catch couple to the beam affects the rolls reference so if you were to find on both of those in cuts for favor you could vacate and remand for consideration under their claim construction. In terms of the project from that so is not a one of two reject. It isn't one of two rejection only for the homestead reference though. There are two references for purposes of the 906 patent to one of two rejections and so you don't think we can reverse. I don't think you can reverse because they didn't consider. We made the argument that it does project out under their construction down below I believe and I don't think that the board made a finding. I think you could make that finding but I think the board did not consider that construction in arriving at its finding. I think the only thing that you didn't hit on was selectively couple do you want to go there for sure so selectively coupling is an interesting one I don't think that the claim different. One other thing before we move on when you said we should remand to consider anticipation under their claim construction. Did you ever argue that below alternatively that even under their construction the claims would be anticipated. We did argue that below I don't know if we are getting for all of the claim constructions. I have to look at it but I know for example on the beam we argued that the Cartman beam was fit or was a person who's done. If you didn't do it for projection for example because I think that maybe we didn't for all of them like you're saying. So that wouldn't be remanded for them to reconsider the homestead reference in like of the new construction of projected if you didn't argue any thing different. That's correct to the extent we did not argue it but I believe it for the majority of them I believe we did argue. I think you're going to respond to Judge Morris question about the difference between selected coupling and coupling. Yeah, selective coupling. So the board at 810 of the 1315 appeal noted that they rejected the notion that there must be a specific predetermined way in which the brush holder component is coupled to the mounting block. And we know that's what they said what's the difference between coupling on the one hand and independent claim and selectively coupling independent have to be different. And I'm having trouble. I know that they do have to be different so for coupling in the independent claim means that it's capable of coupling. It doesn't specify the manner in which it couples so it's really describing only the mouth. Table of being coupled. A. Yeah, it's either coupled or not. And so what the board found is in the specification of the cuss for pattern it's this over the center locking mechanism. There's a position where it's not coupled at all so the brush holders in my hand. I put it on it's coupled in a disengaged position. It's like off-line switch. And then you slide it and it's coupled in the engaged position and cuts for it and it's. If I'm right, it's like a light switch on the wall. It's on or off. If it's on as couple, it's off. No, that's not correct. If you go to. What why shouldn't I be looking at couple. Not selectively couple couple. Yeah, but four coupling yet either on or off. So you're on or off. So I have a light switch right and it says. I have another light switch that says this one is selectively coupled. But it's not coupled on or off. It's somehow coupled with. Well, we're not dealing with light switches and I think if we look at. No, not, but it's just my hypothetical. What's the difference in this case? I think if you look at the patent. Just selectively couple has to mean more than just couple or not couple, which is what couple means in the independent. That's correct. So in the way that this works and described in the patent, when it's pushed all the way on that over the center locking mechanism extends and it couples it, you can undo it and it's disengaged but still coupled to the mounting block. And if you go to. Page 20 of cuts for its reply brief for the 1315. Proceeding. I think you'll see this this illustrator

. Yeah, selective coupling. So the board at 810 of the 1315 appeal noted that they rejected the notion that there must be a specific predetermined way in which the brush holder component is coupled to the mounting block. And we know that's what they said what's the difference between coupling on the one hand and independent claim and selectively coupling independent have to be different. And I'm having trouble. I know that they do have to be different so for coupling in the independent claim means that it's capable of coupling. It doesn't specify the manner in which it couples so it's really describing only the mouth. Table of being coupled. A. Yeah, it's either coupled or not. And so what the board found is in the specification of the cuss for pattern it's this over the center locking mechanism. There's a position where it's not coupled at all so the brush holders in my hand. I put it on it's coupled in a disengaged position. It's like off-line switch. And then you slide it and it's coupled in the engaged position and cuts for it and it's. If I'm right, it's like a light switch on the wall. It's on or off. If it's on as couple, it's off. No, that's not correct. If you go to. What why shouldn't I be looking at couple. Not selectively couple couple. Yeah, but four coupling yet either on or off. So you're on or off. So I have a light switch right and it says. I have another light switch that says this one is selectively coupled. But it's not coupled on or off. It's somehow coupled with. Well, we're not dealing with light switches and I think if we look at. No, not, but it's just my hypothetical. What's the difference in this case? I think if you look at the patent. Just selectively couple has to mean more than just couple or not couple, which is what couple means in the independent. That's correct. So in the way that this works and described in the patent, when it's pushed all the way on that over the center locking mechanism extends and it couples it, you can undo it and it's disengaged but still coupled to the mounting block. And if you go to. Page 20 of cuts for its reply brief for the 1315. Proceeding. I think you'll see this this illustrator. And if you're at that page, there are set of three figures that are indicated there. And in the left hand side, it illustrates the mounting block of the green. And in the middle position is the disengaged position. You'll see as cuts were even admits in the parenthetical down below, the mounting block and brush holder are coupled together in the disengaged position. So it's slid on. It's not engaged, but it's coupled. And then can I. I don't mean to derail you, but just to ask another procedural type question. If we disagreed with you on this, we'd have to vacate and remand. And it couldn't reverse because you separately argued, obviously, this is the board didn't address. Is that right? There are a number of grounds of the board. I didn't need to derail you. Sorry. So, but if you look at that diagram, the third figure shows it is in the coupled and the engaged position. So what the board found was selecting between coupling states. You have it's coupled, it's disengaged, you slide the handle, it's still coupled, but now it's engaged. So those are the coupling states that it was talking about. And so I think under Judge Klubbinger, the point you were trying to make about the independent claim being broader, this requires it to have two different coupling states. The independent claim could be just one coupling state where it's on or off. You know, it's just a problem. I don't attach them a different mechanism. I want to select the fact that you've selected that. You've selected between coupling states. So in the middle figure there, you'll see that the beam is kind of in an up position. And the end of it is still engaged with the mounting block. So the beam, there's an upper beam 18, it looks like. It's kind of fixed in the position it's hinged. So this is still coupled to the mounting block, but it's disengaged. And when you slide the handle that's not pictured, it actually spreads out and locks into place. And so that would be coupled in the engaged position. So these two right figures on page 20 of cuts for the reply brief, illustrate the two coupling states that the board talked about selecting between coupling states disengaged or engaged. And this is a read based on the specification of the pad. One of the last issues I'd like to address is kind of the projection extending from, come back to it. Part of the issue is we've heard the projection is something that must jut out, but there's also the extending from the language. And so I'm not sure from cuts for this construction what jutting out really adds. It talks about something that does extend from a surface. And I think the board properly found in the only step reference of these that it extends from that horizontal surface upward from that horizontal surface

. And if you're at that page, there are set of three figures that are indicated there. And in the left hand side, it illustrates the mounting block of the green. And in the middle position is the disengaged position. You'll see as cuts were even admits in the parenthetical down below, the mounting block and brush holder are coupled together in the disengaged position. So it's slid on. It's not engaged, but it's coupled. And then can I. I don't mean to derail you, but just to ask another procedural type question. If we disagreed with you on this, we'd have to vacate and remand. And it couldn't reverse because you separately argued, obviously, this is the board didn't address. Is that right? There are a number of grounds of the board. I didn't need to derail you. Sorry. So, but if you look at that diagram, the third figure shows it is in the coupled and the engaged position. So what the board found was selecting between coupling states. You have it's coupled, it's disengaged, you slide the handle, it's still coupled, but now it's engaged. So those are the coupling states that it was talking about. And so I think under Judge Klubbinger, the point you were trying to make about the independent claim being broader, this requires it to have two different coupling states. The independent claim could be just one coupling state where it's on or off. You know, it's just a problem. I don't attach them a different mechanism. I want to select the fact that you've selected that. You've selected between coupling states. So in the middle figure there, you'll see that the beam is kind of in an up position. And the end of it is still engaged with the mounting block. So the beam, there's an upper beam 18, it looks like. It's kind of fixed in the position it's hinged. So this is still coupled to the mounting block, but it's disengaged. And when you slide the handle that's not pictured, it actually spreads out and locks into place. And so that would be coupled in the engaged position. So these two right figures on page 20 of cuts for the reply brief, illustrate the two coupling states that the board talked about selecting between coupling states disengaged or engaged. And this is a read based on the specification of the pad. One of the last issues I'd like to address is kind of the projection extending from, come back to it. Part of the issue is we've heard the projection is something that must jut out, but there's also the extending from the language. And so I'm not sure from cuts for this construction what jutting out really adds. It talks about something that does extend from a surface. And I think the board properly found in the only step reference of these that it extends from that horizontal surface upward from that horizontal surface. Not convinced. Embedding something within is just not projecting. When you dig a hole out and put it in so it's surface level or worse yet below surface level, it's hard for me to conclude it's projecting just because you dug a hole. Well, there was an example of something that was described as projecting out in the cuts for the pattern. And it was a little pin, but it didn't project out from its surroundings. There were walls all around it. So I guess for me it's hard to understand what projecting out means under their construction. If it was projecting out from one surface, but there were walls around it, would that still be projecting out? I don't understand the limitation of what projecting means in their mind. And so I think what you're saying is if those walls weren't there on the side, if it ended there, it would be projecting out. Correct. I just don't, if you embed something within, and it actually, I just don't see how it can be definition of projection. I don't see anything, at least I don't see anything in the pattern that redefines it the way I did for being, for example. Thank you. Thank you. Mr. Forty. I'm pleased to court. I'd like to first address something that came up. I think I may be responsible for this, and I apologize for it. We are not arguing this claim or rest amount in the box. If I said that, you said there's a disclaimer right here. I will. I will. This line number. And I will own. Judge Moore. And I apologize to MPI for that. That is a misstatement on my part. I do want to talk about Judge Clevinder. You had some questions about what it means to move relative to a conductive surface. And you were talking about the term mounting block. I think what that means is these brush holders can be mounted. They're mounting block and you put on sort of a swingable arm. You swing it out of place and you've got to work on it and move things around. And you swing it back into place, turn the machine back on, and get back to work. I think that's at least one example of what moving relative to a conductive surface might be. I do want to take a minute and talk about selective coupling

. Not convinced. Embedding something within is just not projecting. When you dig a hole out and put it in so it's surface level or worse yet below surface level, it's hard for me to conclude it's projecting just because you dug a hole. Well, there was an example of something that was described as projecting out in the cuts for the pattern. And it was a little pin, but it didn't project out from its surroundings. There were walls all around it. So I guess for me it's hard to understand what projecting out means under their construction. If it was projecting out from one surface, but there were walls around it, would that still be projecting out? I don't understand the limitation of what projecting means in their mind. And so I think what you're saying is if those walls weren't there on the side, if it ended there, it would be projecting out. Correct. I just don't, if you embed something within, and it actually, I just don't see how it can be definition of projection. I don't see anything, at least I don't see anything in the pattern that redefines it the way I did for being, for example. Thank you. Thank you. Mr. Forty. I'm pleased to court. I'd like to first address something that came up. I think I may be responsible for this, and I apologize for it. We are not arguing this claim or rest amount in the box. If I said that, you said there's a disclaimer right here. I will. I will. This line number. And I will own. Judge Moore. And I apologize to MPI for that. That is a misstatement on my part. I do want to talk about Judge Clevinder. You had some questions about what it means to move relative to a conductive surface. And you were talking about the term mounting block. I think what that means is these brush holders can be mounted. They're mounting block and you put on sort of a swingable arm. You swing it out of place and you've got to work on it and move things around. And you swing it back into place, turn the machine back on, and get back to work. I think that's at least one example of what moving relative to a conductive surface might be. I do want to take a minute and talk about selective coupling. We had some conversation about that right at the end of my office area's presentation. I think the pattern is absolutely clear to what selective coupling is. Selective coupling is where you couple in a manner that selects where the brush is going to go. Alignment. Very important in these devices. You've got to get that graphite brush line right into place. That's what selective coupling is. What do you do with the argument of your adversary and based on your page 20 or your reply brief? I think page 20 of our reply brief describes this selective coupling. Absolutely. It shows how the brush goes from the two are the brush holder. On the left it's not shown at all. At the time you get to the right it has been selectively coupled. The brush is precisely positioned. That position is dictated by physical configuration of the components. It will never come into selective coupling in any other position. Every time you use it the brush goes to the same place. At one point I thought his argument is that you're drawing just so couple has coupled in two states engaged or disengaged. You can select to be coupled in gauge or you can select to be coupled this. I think that was his argument. His argument sounded like that I think. When the drawings seem to demonstrate that. I disagree. This is to try to find some meaning for the dependent point. That's right. I think the board's attempt to find meaning was to embrace this selecting between coupling states. I think that's a circular notion. Things are coupled or uncoupled. That's what's shown here. They're coupled or uncoupled. There aren't states. Selectively coupled. You now have a gloss, a narrower notion of what coupling is. You've brought these things into alignment. I do want to touch briefly on the 018 patent. I think the 018 patent towards analysis is this so-called design choice analysis. It's the embodiment of hindsight and failure to lay out. This KSR requires and is this core required

. I do want to make sure we talk about kinetic concepts. 1368. This court went into detail that there's a need to show the reasons why things come into combination. It's not sufficient to just say well it could be done. I see my time is up. It is. Thank you. We thank all sides and the cases of some medical