Legal Case Summary

Before we begin our cases today, we have much more positive and enjoyable exercise we can begin with and I'll turn it over to Judge Moore for motion. Well, it is my pleasure to move the court for the admission. Why don't you both stand up? Two of my law clerks, I move the admission of Jeremiah Sutter-Hell, who is a member of the Bar and Good Standing of the Highest Court of California, and Benjamin R. Sustinger, who is a member of the Bar and Good Standing of the Highest Court of Georgia, I have knowledge of their credentials and I'm satisfied they possess the necessary qualifications. These two gentlemen have each clerked for me. Jeremiah will be about twenty-two months and then be heading over to the PTO, join the solicitor's office, and Ben will be here for a year and be heading off to Atlanta to go back to Finnegan where he had worked before. I've been very fortunate to have these two gentlemen in my chambers. They're both incredibly smart, very hardworking, dedicated to law, patent law, they're going to be wonderful lawyers and I only hope that maybe they've learned a little something this year that will help them in those endeavors, but I have no question about their moral standing or their ability and I think they'll be valuable members of our bar, so I move my colleagues to admit them. Well, with great pleasure, I grant the motion. Now we'll throw you in. Please raise your hand. Through the silence for your offering, as you will report this, there are evident turnings and counsels of this court, uprightening in the court's law and that you want the both constitutions of the United States of America, and I'm going to allow the United States for the views of the best. Thank you. Now we'll proceed to the cases this morning. The first case is CW Zumbiel versus Kappos 2011, 1332. Mr. Aherons, we begin with you. Now there's a little bit of confusion with respect to the multiple parties here, so my understanding on how we're going to proceed, and you will go for nine minutes, then Mr. Vaughan will go for ten, then the patent office will make its presentation for ten minutes, then you will respond, and then you will provide, and you will have the final response for six minutes. Everyone agrees with that? That's what we're going to present. Okay, why don't we go forward? Just now raise the housekeeping matter before we start

. Okay. The cross-atolling grass packaging has a motion strike, pending that was unopposed in this case. I wondered if that would be... We're not prepared to learn that now, but we definitely need to be forward. Okay, I'm going to proceed to the play. Thank you, Your Honours. On behalf of the Zombele Company and this appeal from an inter parties re-examination, Zombele submits that the technology involved in this appeal is neither complex nor unpredictable. The placement of a finger flap in a carton so that it will function as a finger flap and not be inhibited by the cans or the containers there within the carton without interference is not a patentable feature as recited in. Dependent claims two, nine, and fourteen of six, three, nine patents. So in your opinion, what does Ellis teach about where the Caroline should be in the carton that has a staff row and a column arrangement? Ellis teaches in at A582 in column two, particularly about lines 30 through 35 that the Caroline can be anywhere from greater than half a canned diameter to less than a full canned diameter. That's an explicit teaching in the Ellis patents, and that teaching would pertain regardless of whether the cans were stacked or staggered as taught in Ellis specifically. In other words, the modification of Ellis, the obvious modification of Ellis as admitted by GPI is relied upon by the board and the examiner of placing cans in an stack of arrangement in Ellis that being obvious. That wouldn't affect the teaching of Ellis that the Caroline should be or could be anywhere from. Ellis says between the center of the first can at the bottom and the center of the first can on top. Obviously, that makes sense only in the context of a staggered case, right? I want to make sure we're speaking about the same portion of the tarot line, speaking of the tarot line that extends across the top panel of Ellis. Yes. Okay. So in the top panel of Ellis, if you refer to the figures, figure two, for example, or even figure three, which shows where that tarot line would extend, that embodiment is the preferred embodiment that's described in the specification as approximately three-fourths of the diameter of the can, which you can see the lower most can in figure three, the lower right hand can

. So if you have a can that stacks directly above that, the tarot line would be approximately three-fourths of the diameter of that can. But the teaching that it could be anywhere from greater than half to less than a full can diameter would show that spectrum. And indeed, if you utilize that to explicit teaching and then the incorporation of a finger flap into Ellis as taught by the German 718 reference, it would clearly end up between the first and second cans in the top row, which would just inherently be there. So it's our position that the board didn't appreciate that that would be the result when it concluded that there wouldn't be enough room for the finger flap to operate as a finger flap. And then that was an erroneous conclusion that's not supported by substantial evidence. But didn't the board find as a factual matter that Ellis teaches away from the location of the tarot line that you want us to conclude is obvious? I don't believe that's the case, Your Honor. What do you think the board found? Well, I believe that the board concluded that the location of the tarot line in Ellis when the cans are in a stacked arrangement would result in a finger flap that is simply not operable as a finger flap. But I believe that that's contradictory to the teaching in Ellis who says that that tarot line could be positioned all the way back to just under one full can diameter. And we disclose that or exemplify that in our brief with a drawing that shows how that would result so that you would have a can that does not interfere with that finger flap. And in that connection, if one takes the logic further or separately in fact to find as in claims 1, 8, and 13 the independent claims which were held to be unpatentable in view of the basis of Ellis in view of the German 718 pad. If indeed it would result in the placement of a finger flap in a position where it wouldn't function as a flap. So there couldn't be much more of an obvious thing to do but to make the finger flap usable for its intended purpose. There would be no point in including a finger flap for accessing the carton if it was in a position where it couldn't be used for that very purpose. It just would be contradictory to compensate a person of ordinary skill in the art could certainly be led to make that additional modification. But we submit that there's no requirement to further move the tarot line in Ellis because of this explicit teaching that we were just discussing. In graphics for it, right towards the end on page 56, graphics says in present case the board held that claim 14 was patentable over Ellis in view of German 718. But never decided whether claim 14 was patentable over Ellis in view of German 718 and Palmer because Zumbiel never presented it with that issue. In fact, Zumbiel presented to the patent office in its examination request the unpatent ability of claim 14 on basis of Ellis, German 718 and Palmer. The examiner didn't adopt that grant of rejection because he went with a lesser or a less inclusive combination, not even requiring the presence of Palmer because he found that the preambulatory limitation in claim 14 as to the fact that this carton blank was for the purpose of enclosing cans in a certain arrangement was not a limitation on the claim. So it means that the record, the collect record, we're all fine, but the reference to Palmer as well in the presentation and the substantial question of factability

. So, you don't have to search now, I want to enter it after you're sitting down when you come back up. Okay. So, I think that's the first time you've ever found that Ellis teaches away from the location of the terror lines that you would need in order to render these claims out of you. I don't specifically see the language that you were referring to. 44. Yes. About right in the middle of the page? Yes. Is it now? Yes. Whether a reference teaches away or not the fact of a factual issue that seems to the words made of fact binding, I have to give substantial evidence definite to my question again. Okay. I apologize if you didn't understand that the question is the factual finding in that regard is just simply contradicted by the plain teaching of Ellis. So there would be no substantial evidence to support that factual finding. That would be the counter position. There's simply nothing that supports this conclusion that Ellis teaches away from having a terror line in a position where the finger flap can be accessed without interfering with the cans. Okay. One of these reasons in this case has been this single terror line limitation. Correct? Correct. Okay. So I'm looking at Ellis. And can you please tell me which numbers and figure one correspond to what you believe is the single terror line disclosed in Ellis? Because the examiner, I guess, you know what? I won't play cat and mouse with you

. I'll just get right to it. The examiner said that point is to 26, 27, 29, but excluded 25 from his list of what amounts to the single terror line. The board sort of mentions 25 and passing is though that's what the examiner found, which I think is clearly a reliance. Is it 25, a pre-cut section? 25 is a pre-cut section. So how can a something that is already cut, i.e. not connected, be referred to as part of the single terror line? A terror line by its nature has wands and cuts in it. And so is this just a giant cut? One can look at it as a giant cut. The most particular part of the dispute about that claim element and the claim interpretation had more to do with whether or not its form of continuous loop. In other words, it ended and met at the same point, which it does not. But part of the reason, I believe, that part of the reason is that that's an issue. It doesn't form a continuous terror line, is because there are two giant cuts in the middle of what needs to be this continuous terror line. Well, that's not the reason that has been argued for why it's not a continuous terror line has to do with where the handhold is at the end of the card line. But insofar as if the court were to determine whether or that the claim construction should be modified as I think you're suggesting that Alice doesn't teach a continuous terror line or a single terror line because of those cuts. Well, the senator didn't find that cut number 25 was part of the terror line. Right, he didn't specifically identify cut 25. But doesn't it have to be in order for it to disclose the single terror line of claim 13? Really, it has to be, somebody has to be treating the cut at 25 as part of the terror line. As part of the continuum of the wine upon which the dispenser is removed from the park, that's correct. Okay, now we'll hear from Mr. Bon

. Thank you, Your Honours. May I please record on behalf of my client, Patrick Packaging International Inc. We're pleased to send our case to the court. Your Honours, as an initial matter, I'd point out that council for a pepally, a pepulent, a zumbiel, utilize most of the discussion arguing really what's in the part of the brief that we have moved to strike. That is this stacking of cans, whether it would be obvious to stack cans and they even manufactured a drawing that's not in any patent. They made it look like Alice, but it's not in any patent. It's nowhere to be found. They stack cans and then they said this falls between two cans. Well, as a matter of fact, that is totally contrary to findings of the board as you're on a pointed out, the board found that it would just in a summary finding because a pepent did not argue this to any of you. Can I ask you where else would you put, if you're stacking the cans rather than staggering the cans, where else would you put the terror line? Well, you could put the terror line as taught by Alice in front of the first can. Which is right at the edge of the cart. How is that feasible to do anything with when it's not feasible? Well, the can has a diameter, the can is circular. There's a space between the front of the cart and the front of the can enough to get a finger flap in. Or you could put it between the first and second and second and third and fourth. But it wouldn't operate the same way. When you then tear it open, it gets rid of one of the functions that the board has already found is okay here. The finger flap is the way it holds the cart and it would be a different kind of arrangement if you put the tear somewhere towards the back of the box. The teaching of Alice teaches away from that function. There's nowhere in the art that teaches a cart and the holding containers that forms the dispenser for catching a can. No where in the art is that taught

. No where in the art is that suggested. In fact, in Alice, shooting another fine in the board has, right? It doesn't go to, I mean, didn't the board say that that's just functional? I guess I really jumped back and forth. To focus on your question, where else would you put one? You would put it as taught by Alice. Alice teaches a finger hole inside, finger hole 30. And you put your finger in the finger hole and tear up along a tear strip and pop off the removable section of Alice because it's not needed. I would propose to the court that what we're missing a lot of this discussion is the teaching, the entire teaching of Alice, German, and Palmer. And Alice teaches a cart and that's very specifically arranged to be in staggered relationships. So there's no need to catch anything. There's no need for a basket. You want to remove that section R and slide it into the refrigerator so that it's open and you can pull the cans out and create a term in order. Right, but there's no just use the difference between the staggered and the stack. That's not an off and non-obvious. That's a non-obvious chain, right? Well, it is taught in the art to stack containers. That's taught in Palmer. But it would not be obvious to stack containers like in Alice and then move the tar line to a specific point behind the first and second can. That's nowhere taught in Alice. In fact, Alice teaches away from that. Alice teaches that you want your finger flap in front of the first can because there's room to pull it open. In front of the first can, you'll talk about behind the first can on the bottom. So if you have Alice that says you put at least part of Alice says you're going to put the flap behind the first can on the bottom

. And then you move the top can to be precisely on top of the first can on the bottom. Wouldn't it make perfect sense that that's where you keep your finger flap? That's not where it lines up. If Alice teaches in a pellet spree, a pellet made the mist statement that Alice teaches between one half a can diameter and a full can diameter. It doesn't teach that. It teaches that you want to put that share line between one half a can diameter and less than a full can diameter. It doesn't say how much less, but it does say it's less. It does say preferably three cords of the can diameter. So if you stack the cans, you're not going to have your tear line between the first and second can. That was a finding effect made by the board and that was supported by the declaration of the Jumman Welcomas who, as a carton designer, for 28 years built this carton according to teachings of Alice. And opine, the page 226, there's AO226, that if the cans are vertically stacked in a carton having an Ellis corner design, a finger flap place along the tear strip of Ellis would be positioned directly over the first can in the top row. So this arrangement would not work. And that is supported by the evidence and that what was found by the board. But there's your honor. So there it's one briefly, can we go back to claim one? Yes, you're challenging the board's decision on unpatentability with respect to claim one. We are challenging respect, not only claim one, but claim eight and claim 13. And if you look at the teachings, I've discussed briefly the teachings of Alice. If you look at the teachings of Jumman, which is to have a carton or a container for holding bottles resting on their ends so that you can remove a bottle and reinsert the bottle and have a closure panel for closing it up when you carry the container back to the re-explanatory. So if you look at the teachings of Jumman, that's the teachings of Alice or excuse me, teachings of Jumman. If you, if it's not obvious to put a fold line, the examiner's position that's obvious to look at the fold line of Jumman and put that on now, so that wouldn't be obvious to do, but cut for a number of reasons. Alice doesn't need a recloseable basket

. There's no can coming out of the carton number one. So you don't need that closure. Number two, as Geronna pointed out, there's a large cut 25 in the front wall of Alice. And that large cut is a handhold. If you put a fold line across the front wall of Alice, as taught by Jumman, you're going to eliminate that handhold. You're not going to have a handhold to carry the carton with. So one of our nearest skill we are would not try to put a fold line on that front wall for that additional reason. And the other reason is the teaching of Jumman is to pull out containers and put back in containers. That's why you have a closure because you have empty containers in there. You can't do that with Alice because Alice specifically wants you to pull out containers into pre-determined order. That's why they're stacked and arranged and numbered. If I could turn quickly to claim 14, claim 14 specifies a blank. And it also includes the limitations of the finger flap, let's say, between the first and second containers in the top row. And again, we submit that the board was absolutely correct in its finding that that is patentable. So claim 14, of course, depends on claim 13. Climb 13, claim the line. And as you're honor previously pointed out, there's two elements in claim 13 that are not taught or suggested by the prior art. And we believe that the rejection of those claims are clearly random. It requires interpretation of two claim terms. One is the free ends and what is the free end of a flap

. And the other is the single tarot being formed across the front. And in both of those cases, the board incorrectly determined the meaning of those claims. The claim specifies, on part C, that a tear line extends across the area corresponding to the top and two sides to the transverse fold line and then from the transverse fold line across each of the side inflaps to their free ends. Now, that is shown in the 639 patent on 51. The top, you'll see at the top of that figure, the tear line 78 is extending up to the free end of flap 50 and to the free end of flap 42. The office of the board, erroneously determined, that is shown in Ellis and figure two of Ellis, which at the bottom of figure two shows those short cuts or scores 21 that extend to that large cutout section. And the board, in correct or in our view, held that those cutout section constitutes free ends. And we believe that that was an erroneous finding, erroneous interpretation. The free end, if you look at the patent of the 639 patent in the specification, the free end clearly is the furthest point of that inflapped. For example, if you had an inflapped of figure one of the 639 patent that hypothetically had a small 1-inch slit that was going down towards the rest of the carton and the tear line ended there, you wouldn't, we proposed, naturally call that the free end just because it was a 1-inch slit. So the office's determination of what constitutes the free end and looking at Ellis really depends upon the size of that cutout, which is for the handhold 25. We also believe that the office incorrectly, as we discussed earlier, applied the claim line single tear line and appropriately single tear line extending across the side inflaps. Clearly, it's not met as shown in figure one by Ellis that has the cutout portion. It's not a single tear line, there's a cut in the middle of the tear line. Well, your halfway through the reputlance of your tongue, your toes, why don't we say the loudspeaker in half minutes like your mouth? I'm just kind of getting whipsawed here. Thank you, Your Honor. I'd like to have an order if you want. Thank you, Your Honor. May I please support you? I think Judge Morghith on a key part of this case that the board did make a factual finding that Ellis teaches away and Ellis figures three. Can we talk about claim two now? Yes

. Are you talking about claim two that the other side of the tail line? Okay, I just want to talk about that. Thank you, Your Honor. Now, that Ellis teaches away from having the tear line after the first can in the top row, figure three, respectfully inviting the court's attention to page six of our brief, our red brief in Ellis's figure three opposite page six. The tear line there, this is the substantial evidence that supports the boards teaching away finding the tear line there is clearly before the middle of the first can. So we have a tear line that teaches against putting the tear line any more to the left. Mr. Sivlo, I want to be clear, teaching away is the opposite of demonstrating. It is the opposite of demonstrating something, right? I may not be saying that right. I guess pointing to a figure that shows the tear line in one location, does that really support the idea that this reference teaches away from putting that tear line anywhere else? Thank you, Your Honor. In addition to figure three, as Council noted, Ellis expressly has, as we discussed in our brief, the restricted range of from a half a can to one can from the right side. And that is in Ellis on page 582 of the records, column two, about line 30, where it's talking about having a distance of less than one diameter of one can. And this restacking argument, Your Honor, was made as the board noted, laid to the board and laid to this court in some fields required grief. But you agreed that it would have been obvious to change a staggered arrangement to a stagger. That's the board agreement. Yes, Your Honor, as the board said. So I'm having trouble seeing where the non-obvious leap is from Ellis is set. So if you take Ellis and you say, we're going to move these cans over so they're not staggered but they're straight, you're still doing to the bottom can. It says there's got to be in front of the bottom can. So if you move the top can to be over exactly where on top of the bottom can, it seems to me it's not a truly inventive leap to say, okay, so this is where you're going to flip the tear. Your Honor, on this record, the board's rationale was reasonable. And that the board said, if you do stack the cans and as Ellis's tear line is in figure three, you would be hitting the top can on the first row. So as this late argument, the board went over and... You can't do it, it's a novelty. So therefore when the bottom can move to the front, it's the next most logical move, right? If you go from a staggered to a stacked can situation, you just move it over, right? Well, that might be another rationale that Zimbeel could have presented and the board could have agreed with. That's what the board was addressing was the Palmer and Palmer was all over Zimbeel's briefs to the board. And briefs to this court as a matter of fact Zimbeel keeps emphasizing which we haven't heard of yet. I think Palmer is really not that close, but their emphasis was on Palmer. They had a primary push for Palmer and so the board was addressing that Palmer teaches something else, a handle for carrying, not a flat to open a carton. So that argument that was presented to the board was rejected. And then as to Ellis and in combination with the German patent, that renders claimed one obvious because it's very beneficial to put a finger flap to start the tearing as the board noted and agreed with Zimbeel on that point. But as to a deep... The deep end of the claim claimed two that has a range, we don't have a reference that has the stacking, so that would be a hypothetical reference. And then you have to modify that hypothetical reference. And what the board was saying was that Palmer teaches something else. Wait, you don't have to modify the hypothetical reference because.

. And that the board said, if you do stack the cans and as Ellis's tear line is in figure three, you would be hitting the top can on the first row. So as this late argument, the board went over and... You can't do it, it's a novelty. So therefore when the bottom can move to the front, it's the next most logical move, right? If you go from a staggered to a stacked can situation, you just move it over, right? Well, that might be another rationale that Zimbeel could have presented and the board could have agreed with. That's what the board was addressing was the Palmer and Palmer was all over Zimbeel's briefs to the board. And briefs to this court as a matter of fact Zimbeel keeps emphasizing which we haven't heard of yet. I think Palmer is really not that close, but their emphasis was on Palmer. They had a primary push for Palmer and so the board was addressing that Palmer teaches something else, a handle for carrying, not a flat to open a carton. So that argument that was presented to the board was rejected. And then as to Ellis and in combination with the German patent, that renders claimed one obvious because it's very beneficial to put a finger flap to start the tearing as the board noted and agreed with Zimbeel on that point. But as to a deep... The deep end of the claim claimed two that has a range, we don't have a reference that has the stacking, so that would be a hypothetical reference. And then you have to modify that hypothetical reference. And what the board was saying was that Palmer teaches something else. Wait, you don't have to modify the hypothetical reference because... You still have to put a finger in. You're saying, okay, we're not using the staggered situation and Ellis, we're using the straight line. Which is one modification. And then you take what Ellis teaches, which is at least part of it, which is the tear is behind the first can on the bottom row. And you say... It's before the first can. Yes. Behind the first can. And you say, and we're going to move the top can over to be right on top of that can. Again, I mean, am I expressing... Do you understand what my concern is? I think this is kind of a logical need. And you couldn't do it otherwise. In a staggered situation, as you started off, it would be impossible to do the tear otherwise. The correct, Your Honor. You would have, as Palmer discloses, a tear line that

.. You still have to put a finger in. You're saying, okay, we're not using the staggered situation and Ellis, we're using the straight line. Which is one modification. And then you take what Ellis teaches, which is at least part of it, which is the tear is behind the first can on the bottom row. And you say... It's before the first can. Yes. Behind the first can. And you say, and we're going to move the top can over to be right on top of that can. Again, I mean, am I expressing... Do you understand what my concern is? I think this is kind of a logical need. And you couldn't do it otherwise. In a staggered situation, as you started off, it would be impossible to do the tear otherwise. The correct, Your Honor. You would have, as Palmer discloses, a tear line that... You can't do it on top of the can because you can't get your finger through. Correct. Yes, do it. I mean, Mr. Wong might just agree, but it seems to me a little weird to say that you're going to put it right at the very end. Right? Yes. Just agree with that. Yes. Would kind of be a nullity. So, what's the net most logical leap? Your Honor, I hate to be repetitive, but Ellis, as it's disclosed, has the tear line running into the top row first can. The next change with this hypothetical reference based on the late argument would be that you have to add a finger flap. So, the hypothetical reference in and of itself doesn't invalidate claim to... You have to then add a finger flap. So, we're really changing the Ellis reference based on the late submission to the board, which the board struggled to try to address, that if you restack them..

... You can't do it on top of the can because you can't get your finger through. Correct. Yes, do it. I mean, Mr. Wong might just agree, but it seems to me a little weird to say that you're going to put it right at the very end. Right? Yes. Just agree with that. Yes. Would kind of be a nullity. So, what's the net most logical leap? Your Honor, I hate to be repetitive, but Ellis, as it's disclosed, has the tear line running into the top row first can. The next change with this hypothetical reference based on the late argument would be that you have to add a finger flap. So, the hypothetical reference in and of itself doesn't invalidate claim to... You have to then add a finger flap. So, we're really changing the Ellis reference based on the late submission to the board, which the board struggled to try to address, that if you restack them... Well, you're going to... You're going to say late submission, but the board went ahead and dressed it. So, the board didn't treat it too late and therefore out of bounds, right? Correct. You're not suggesting that if the board accepted something and addressed it, we should somehow overlook a mistake the board made because they had less time to do it because it was the end. The board had the freedom to reject the argument if it was improper, that it had been filed too late, but they chose to either decide it was not improper or to address it anyway. So, this whole late file thing that you said, like, 20 times, I don't know what you want me to take away from that. That I should excuse a lack of detailed disclosure by the board as to why it's doing something or what. What do you want me to take away from the late file? Are you arguing it's waived or are you arguing it's... Well, what is your point? To this court, your honor, it appeared expansively in some Beale's reply brief. The board addressed the references and what they disclosed as substantial evidence that Ellis teaches away because Ellis has a restricted range from the middle of the bottom first can to the end of the first can, which hits the can on the top row. So Palmer teaches something else and Ellis teaches away. And those board findings are supported by substantial evidence, and that is enough. That's a reasonable rationale that claim to still stands because the rejection that was proposed to the board was properly defeated by the board showing substantial evidence. I'm going to add to that. I'm going to ask you a question. Ellis, the Caroline in Figure 3, it shows the Caroline sort of about three-fourths of the way back on the first can, which is located on the bottom row

. Well, you're going to... You're going to say late submission, but the board went ahead and dressed it. So, the board didn't treat it too late and therefore out of bounds, right? Correct. You're not suggesting that if the board accepted something and addressed it, we should somehow overlook a mistake the board made because they had less time to do it because it was the end. The board had the freedom to reject the argument if it was improper, that it had been filed too late, but they chose to either decide it was not improper or to address it anyway. So, this whole late file thing that you said, like, 20 times, I don't know what you want me to take away from that. That I should excuse a lack of detailed disclosure by the board as to why it's doing something or what. What do you want me to take away from the late file? Are you arguing it's waived or are you arguing it's... Well, what is your point? To this court, your honor, it appeared expansively in some Beale's reply brief. The board addressed the references and what they disclosed as substantial evidence that Ellis teaches away because Ellis has a restricted range from the middle of the bottom first can to the end of the first can, which hits the can on the top row. So Palmer teaches something else and Ellis teaches away. And those board findings are supported by substantial evidence, and that is enough. That's a reasonable rationale that claim to still stands because the rejection that was proposed to the board was properly defeated by the board showing substantial evidence. I'm going to add to that. I'm going to ask you a question. Ellis, the Caroline in Figure 3, it shows the Caroline sort of about three-fourths of the way back on the first can, which is located on the bottom row. And then it shows the finger-flop 30 to be placed slightly... look at Figure 1. Now, a finger-flop 30 in Figure 1, you can see where it is, slightly in front of the Caroline. It's less apparent where it exists in the sides of you in Figure 3. But isn't that finger-flop like right in the bottom of the can? Well, you're out in the can. I'm used because I don't see any finger in there into that location. If the finger-flop 30 is in front of the Caroline and is closed in Figure 1, and if the Caroline is where both Figure 3 and the specification text disclose it to be, how in the world is that figure-line operable? That finger-flop? Well, cans can have impressions that they get curved in, and all you need for when there's a pre-cut hole is to just get a fingernail or a little bit of your hand in there and start the tear. And that's why the German reference as to claim one invalidated claim one because it shows that having a finger-flop to start the tearing is an obvious modification. Are you afraid that this one closes that finger-flop and right in the bottom or the top depending on which side you are? That's a hole. That's a hole you're on. Number 30? Yes, you're on. Oh, I thought it was a... It's a hole to start the tearing, and then the German reference as a finger-flop to invalidate claim one. No. Is it at your honor? In column 2 of Alice, item 30 is described as a finger opening or a hole. It's a pre-cut hole

. And then it shows the finger-flop 30 to be placed slightly... look at Figure 1. Now, a finger-flop 30 in Figure 1, you can see where it is, slightly in front of the Caroline. It's less apparent where it exists in the sides of you in Figure 3. But isn't that finger-flop like right in the bottom of the can? Well, you're out in the can. I'm used because I don't see any finger in there into that location. If the finger-flop 30 is in front of the Caroline and is closed in Figure 1, and if the Caroline is where both Figure 3 and the specification text disclose it to be, how in the world is that figure-line operable? That finger-flop? Well, cans can have impressions that they get curved in, and all you need for when there's a pre-cut hole is to just get a fingernail or a little bit of your hand in there and start the tear. And that's why the German reference as to claim one invalidated claim one because it shows that having a finger-flop to start the tearing is an obvious modification. Are you afraid that this one closes that finger-flop and right in the bottom or the top depending on which side you are? That's a hole. That's a hole you're on. Number 30? Yes, you're on. Oh, I thought it was a... It's a hole to start the tearing, and then the German reference as a finger-flop to invalidate claim one. No. Is it at your honor? In column 2 of Alice, item 30 is described as a finger opening or a hole. It's a pre-cut hole. So just like for reality, you only need to be able to get your fingernail in there. Why can't it be placed where Judge Prokze is suggesting even if it's straight on the top of a can? No, you need to get your fingernail in there. Why can't you see that finger-flop even if that finger-flop is right on top of the center of the top-row can? Well... Did you get a fingernail in Mr. Piccolo room? Well, I was... I think more emphasizing that it's a hole. And depending on the can or the cardboard box is flackable, you can pull at that hole. And so a hole is differently treated than either a perforated chairline or a finger flack. It's because the finger-flop has to be able to be indented to be used to be pushed in, whereas a hole you can just kind of slide your finger in and out. Correct, your honor. But if there's enough room in the hole, then put your finger in and I'm not thinking the difference between that and a finger-flop. Because your honor, Alice has the holes on the side. And as the cans are positioned, you can... if you have to pull the cardboard, a hole is totally sufficient

. So just like for reality, you only need to be able to get your fingernail in there. Why can't it be placed where Judge Prokze is suggesting even if it's straight on the top of a can? No, you need to get your fingernail in there. Why can't you see that finger-flop even if that finger-flop is right on top of the center of the top-row can? Well... Did you get a fingernail in Mr. Piccolo room? Well, I was... I think more emphasizing that it's a hole. And depending on the can or the cardboard box is flackable, you can pull at that hole. And so a hole is differently treated than either a perforated chairline or a finger flack. It's because the finger-flop has to be able to be indented to be used to be pushed in, whereas a hole you can just kind of slide your finger in and out. Correct, your honor. But if there's enough room in the hole, then put your finger in and I'm not thinking the difference between that and a finger-flop. Because your honor, Alice has the holes on the side. And as the cans are positioned, you can... if you have to pull the cardboard, a hole is totally sufficient. A finger-flop is even better than a hole. As the German reference teaches that invalidates the claim one, you put your hand through the finger-flop and that simplifies the opening. So the hole is on the side in Alice and in the German pattern you have a finger-flop on top. The teaching in the German pattern of putting a finger-flop with a terror lock that invalidates broad claim one. Because claim one doesn't say where at all the terror line has to be. So that's why claim one is in balance. Speaking from a vast experience, as a former RMENCO, I believe that you put both your thumbs in slightly at the end of the side so you can lift the drop back. But reaching from the top and you want to get a hook in there because otherwise it will fall off. I don't think I could have said it better. You guys hold noted? By the court, all the time. Thank you. Thank you, Your Honor. Thank you. All right, Mr. Vaughan. You've got a couple minutes left. Thank you, Your Honor. Again, I would say the court that one can't negate, ignore the teachings of Alice when one is determining how to construct this hypothetical package. What we thought it could be, is that clear? We're just trying to explain you're talking about an empty argument with our rebound. Back to claim, too, Your Honor

. A finger-flop is even better than a hole. As the German reference teaches that invalidates the claim one, you put your hand through the finger-flop and that simplifies the opening. So the hole is on the side in Alice and in the German pattern you have a finger-flop on top. The teaching in the German pattern of putting a finger-flop with a terror lock that invalidates broad claim one. Because claim one doesn't say where at all the terror line has to be. So that's why claim one is in balance. Speaking from a vast experience, as a former RMENCO, I believe that you put both your thumbs in slightly at the end of the side so you can lift the drop back. But reaching from the top and you want to get a hook in there because otherwise it will fall off. I don't think I could have said it better. You guys hold noted? By the court, all the time. Thank you. Thank you, Your Honor. Thank you. All right, Mr. Vaughan. You've got a couple minutes left. Thank you, Your Honor. Again, I would say the court that one can't negate, ignore the teachings of Alice when one is determining how to construct this hypothetical package. What we thought it could be, is that clear? We're just trying to explain you're talking about an empty argument with our rebound. Back to claim, too, Your Honor. Alice teaches that in that carton, the finger flap, if you don't call it a finger flap, where the hole and the tab line is in the side of the carton. That works for Alice. There's no reason to move that to the top. If you did move it to the top, you'd be hitting a can if you stacked the cans. What we would say in the first instance is, Alice has a perfectly operable structure for opening its container. That finger flap is on the side. If you were following the teachings of Alice, if you were adding a fold line to the front of the carton, which we argued in regard to claim one, you would not do because there's a cut out there. But if assuming that you did add that, Alice has a perfectly operable structure for opening the carton. One wouldn't take that next lead to eliminate that structure and add it to the top and then look for a place, whether it's in front of the first can as is in the teachings of Alice, or behind the first can or the second can or the third can. There's a functioning structure for opening the carton of Alice. Thank you, Robert. You've probably addressed a couple of questions that were left from the beginning. You asked about where in the record the home reference was put forth. I would directly say A175, where the examiner found a substantial new question of patentability of claims 2914 based upon Palmer, Alice, and German 718. That was based on Zombeel's request, exam request, which is A102. With regard to the motion to strike, the rules provide that that can be addressed to the oral argument. Alternatively, we would have had the seclude to file over written response, so I didn't do that written response request, but thought I could address it here at the court would like me to. Would you expect to the issue of the..

. Alice teaches that in that carton, the finger flap, if you don't call it a finger flap, where the hole and the tab line is in the side of the carton. That works for Alice. There's no reason to move that to the top. If you did move it to the top, you'd be hitting a can if you stacked the cans. What we would say in the first instance is, Alice has a perfectly operable structure for opening its container. That finger flap is on the side. If you were following the teachings of Alice, if you were adding a fold line to the front of the carton, which we argued in regard to claim one, you would not do because there's a cut out there. But if assuming that you did add that, Alice has a perfectly operable structure for opening the carton. One wouldn't take that next lead to eliminate that structure and add it to the top and then look for a place, whether it's in front of the first can as is in the teachings of Alice, or behind the first can or the second can or the third can. There's a functioning structure for opening the carton of Alice. Thank you, Robert. You've probably addressed a couple of questions that were left from the beginning. You asked about where in the record the home reference was put forth. I would directly say A175, where the examiner found a substantial new question of patentability of claims 2914 based upon Palmer, Alice, and German 718. That was based on Zombeel's request, exam request, which is A102. With regard to the motion to strike, the rules provide that that can be addressed to the oral argument. Alternatively, we would have had the seclude to file over written response, so I didn't do that written response request, but thought I could address it here at the court would like me to. Would you expect to the issue of the... Would your argument simply be that in the Blueberry Fit pages 31 and 32, you did raise the issue and you just expanded and planted a little bit in the reply phrase? That the year-art commitment was filed. Essentially. And with regard to your question, your honor, Judge Moore, concerning the cut 25 in the determination of Alice having a tear line and whether it was continuous or single tear line, that limitation first of all is only in claim 13, claim 1 and 8 just call for. Said portions of the dispenser being defined by, but it doesn't say completely or exclusively defined by, so I think that the reasonable, broadest, reasonable interpretation of the claim language would allow for the inclusion of those cuts as partially defining that extensor. But I assume your initial reply, which is not the basis of how many weeks they were arguing that these continuous tear line limitations is not met, but you still. That would be my primary position. I just wanted to answer your specific question in that regard. There was some reference to the fact that I didn't mention Palmer in the opening arguments, but Palmer certainly does teach placing a finger flap between first and second can, clearly shown in the figures in Palmer. And it describes that it's for ease of accessing the carton interior purposes of lifting it. And the argument has been made that Palmer is teaching a handle or a handhold, not an opening or a dispenser. However, it would suggest that there's no dispute that Palmer does teach that finger flap between two adjacent cans, which is exactly the teaching that Zombeel is looking to that reference for. The fact is that in Alice, there is a handhold on the front end wall. It's item 42 in figures three. That's a handhold. It is on either side has tear line. So to say that it wouldn't be obvious to use Palmer to put in a finger flap along the tear line is actually countered by Alice itself, which has a handhold adjacent to tear lines themselves.

Before we begin our cases today, we have much more positive and enjoyable exercise we can begin with and I'll turn it over to Judge Moore for motion. Well, it is my pleasure to move the court for the admission. Why don't you both stand up? Two of my law clerks, I move the admission of Jeremiah Sutter-Hell, who is a member of the Bar and Good Standing of the Highest Court of California, and Benjamin R. Sustinger, who is a member of the Bar and Good Standing of the Highest Court of Georgia, I have knowledge of their credentials and I'm satisfied they possess the necessary qualifications. These two gentlemen have each clerked for me. Jeremiah will be about twenty-two months and then be heading over to the PTO, join the solicitor's office, and Ben will be here for a year and be heading off to Atlanta to go back to Finnegan where he had worked before. I've been very fortunate to have these two gentlemen in my chambers. They're both incredibly smart, very hardworking, dedicated to law, patent law, they're going to be wonderful lawyers and I only hope that maybe they've learned a little something this year that will help them in those endeavors, but I have no question about their moral standing or their ability and I think they'll be valuable members of our bar, so I move my colleagues to admit them. Well, with great pleasure, I grant the motion. Now we'll throw you in. Please raise your hand. Through the silence for your offering, as you will report this, there are evident turnings and counsels of this court, uprightening in the court's law and that you want the both constitutions of the United States of America, and I'm going to allow the United States for the views of the best. Thank you. Now we'll proceed to the cases this morning. The first case is CW Zumbiel versus Kappos 2011, 1332. Mr. Aherons, we begin with you. Now there's a little bit of confusion with respect to the multiple parties here, so my understanding on how we're going to proceed, and you will go for nine minutes, then Mr. Vaughan will go for ten, then the patent office will make its presentation for ten minutes, then you will respond, and then you will provide, and you will have the final response for six minutes. Everyone agrees with that? That's what we're going to present. Okay, why don't we go forward? Just now raise the housekeeping matter before we start. Okay. The cross-atolling grass packaging has a motion strike, pending that was unopposed in this case. I wondered if that would be... We're not prepared to learn that now, but we definitely need to be forward. Okay, I'm going to proceed to the play. Thank you, Your Honours. On behalf of the Zombele Company and this appeal from an inter parties re-examination, Zombele submits that the technology involved in this appeal is neither complex nor unpredictable. The placement of a finger flap in a carton so that it will function as a finger flap and not be inhibited by the cans or the containers there within the carton without interference is not a patentable feature as recited in. Dependent claims two, nine, and fourteen of six, three, nine patents. So in your opinion, what does Ellis teach about where the Caroline should be in the carton that has a staff row and a column arrangement? Ellis teaches in at A582 in column two, particularly about lines 30 through 35 that the Caroline can be anywhere from greater than half a canned diameter to less than a full canned diameter. That's an explicit teaching in the Ellis patents, and that teaching would pertain regardless of whether the cans were stacked or staggered as taught in Ellis specifically. In other words, the modification of Ellis, the obvious modification of Ellis as admitted by GPI is relied upon by the board and the examiner of placing cans in an stack of arrangement in Ellis that being obvious. That wouldn't affect the teaching of Ellis that the Caroline should be or could be anywhere from. Ellis says between the center of the first can at the bottom and the center of the first can on top. Obviously, that makes sense only in the context of a staggered case, right? I want to make sure we're speaking about the same portion of the tarot line, speaking of the tarot line that extends across the top panel of Ellis. Yes. Okay. So in the top panel of Ellis, if you refer to the figures, figure two, for example, or even figure three, which shows where that tarot line would extend, that embodiment is the preferred embodiment that's described in the specification as approximately three-fourths of the diameter of the can, which you can see the lower most can in figure three, the lower right hand can. So if you have a can that stacks directly above that, the tarot line would be approximately three-fourths of the diameter of that can. But the teaching that it could be anywhere from greater than half to less than a full can diameter would show that spectrum. And indeed, if you utilize that to explicit teaching and then the incorporation of a finger flap into Ellis as taught by the German 718 reference, it would clearly end up between the first and second cans in the top row, which would just inherently be there. So it's our position that the board didn't appreciate that that would be the result when it concluded that there wouldn't be enough room for the finger flap to operate as a finger flap. And then that was an erroneous conclusion that's not supported by substantial evidence. But didn't the board find as a factual matter that Ellis teaches away from the location of the tarot line that you want us to conclude is obvious? I don't believe that's the case, Your Honor. What do you think the board found? Well, I believe that the board concluded that the location of the tarot line in Ellis when the cans are in a stacked arrangement would result in a finger flap that is simply not operable as a finger flap. But I believe that that's contradictory to the teaching in Ellis who says that that tarot line could be positioned all the way back to just under one full can diameter. And we disclose that or exemplify that in our brief with a drawing that shows how that would result so that you would have a can that does not interfere with that finger flap. And in that connection, if one takes the logic further or separately in fact to find as in claims 1, 8, and 13 the independent claims which were held to be unpatentable in view of the basis of Ellis in view of the German 718 pad. If indeed it would result in the placement of a finger flap in a position where it wouldn't function as a flap. So there couldn't be much more of an obvious thing to do but to make the finger flap usable for its intended purpose. There would be no point in including a finger flap for accessing the carton if it was in a position where it couldn't be used for that very purpose. It just would be contradictory to compensate a person of ordinary skill in the art could certainly be led to make that additional modification. But we submit that there's no requirement to further move the tarot line in Ellis because of this explicit teaching that we were just discussing. In graphics for it, right towards the end on page 56, graphics says in present case the board held that claim 14 was patentable over Ellis in view of German 718. But never decided whether claim 14 was patentable over Ellis in view of German 718 and Palmer because Zumbiel never presented it with that issue. In fact, Zumbiel presented to the patent office in its examination request the unpatent ability of claim 14 on basis of Ellis, German 718 and Palmer. The examiner didn't adopt that grant of rejection because he went with a lesser or a less inclusive combination, not even requiring the presence of Palmer because he found that the preambulatory limitation in claim 14 as to the fact that this carton blank was for the purpose of enclosing cans in a certain arrangement was not a limitation on the claim. So it means that the record, the collect record, we're all fine, but the reference to Palmer as well in the presentation and the substantial question of factability. So, you don't have to search now, I want to enter it after you're sitting down when you come back up. Okay. So, I think that's the first time you've ever found that Ellis teaches away from the location of the terror lines that you would need in order to render these claims out of you. I don't specifically see the language that you were referring to. 44. Yes. About right in the middle of the page? Yes. Is it now? Yes. Whether a reference teaches away or not the fact of a factual issue that seems to the words made of fact binding, I have to give substantial evidence definite to my question again. Okay. I apologize if you didn't understand that the question is the factual finding in that regard is just simply contradicted by the plain teaching of Ellis. So there would be no substantial evidence to support that factual finding. That would be the counter position. There's simply nothing that supports this conclusion that Ellis teaches away from having a terror line in a position where the finger flap can be accessed without interfering with the cans. Okay. One of these reasons in this case has been this single terror line limitation. Correct? Correct. Okay. So I'm looking at Ellis. And can you please tell me which numbers and figure one correspond to what you believe is the single terror line disclosed in Ellis? Because the examiner, I guess, you know what? I won't play cat and mouse with you. I'll just get right to it. The examiner said that point is to 26, 27, 29, but excluded 25 from his list of what amounts to the single terror line. The board sort of mentions 25 and passing is though that's what the examiner found, which I think is clearly a reliance. Is it 25, a pre-cut section? 25 is a pre-cut section. So how can a something that is already cut, i.e. not connected, be referred to as part of the single terror line? A terror line by its nature has wands and cuts in it. And so is this just a giant cut? One can look at it as a giant cut. The most particular part of the dispute about that claim element and the claim interpretation had more to do with whether or not its form of continuous loop. In other words, it ended and met at the same point, which it does not. But part of the reason, I believe, that part of the reason is that that's an issue. It doesn't form a continuous terror line, is because there are two giant cuts in the middle of what needs to be this continuous terror line. Well, that's not the reason that has been argued for why it's not a continuous terror line has to do with where the handhold is at the end of the card line. But insofar as if the court were to determine whether or that the claim construction should be modified as I think you're suggesting that Alice doesn't teach a continuous terror line or a single terror line because of those cuts. Well, the senator didn't find that cut number 25 was part of the terror line. Right, he didn't specifically identify cut 25. But doesn't it have to be in order for it to disclose the single terror line of claim 13? Really, it has to be, somebody has to be treating the cut at 25 as part of the terror line. As part of the continuum of the wine upon which the dispenser is removed from the park, that's correct. Okay, now we'll hear from Mr. Bon. Thank you, Your Honours. May I please record on behalf of my client, Patrick Packaging International Inc. We're pleased to send our case to the court. Your Honours, as an initial matter, I'd point out that council for a pepally, a pepulent, a zumbiel, utilize most of the discussion arguing really what's in the part of the brief that we have moved to strike. That is this stacking of cans, whether it would be obvious to stack cans and they even manufactured a drawing that's not in any patent. They made it look like Alice, but it's not in any patent. It's nowhere to be found. They stack cans and then they said this falls between two cans. Well, as a matter of fact, that is totally contrary to findings of the board as you're on a pointed out, the board found that it would just in a summary finding because a pepent did not argue this to any of you. Can I ask you where else would you put, if you're stacking the cans rather than staggering the cans, where else would you put the terror line? Well, you could put the terror line as taught by Alice in front of the first can. Which is right at the edge of the cart. How is that feasible to do anything with when it's not feasible? Well, the can has a diameter, the can is circular. There's a space between the front of the cart and the front of the can enough to get a finger flap in. Or you could put it between the first and second and second and third and fourth. But it wouldn't operate the same way. When you then tear it open, it gets rid of one of the functions that the board has already found is okay here. The finger flap is the way it holds the cart and it would be a different kind of arrangement if you put the tear somewhere towards the back of the box. The teaching of Alice teaches away from that function. There's nowhere in the art that teaches a cart and the holding containers that forms the dispenser for catching a can. No where in the art is that taught. No where in the art is that suggested. In fact, in Alice, shooting another fine in the board has, right? It doesn't go to, I mean, didn't the board say that that's just functional? I guess I really jumped back and forth. To focus on your question, where else would you put one? You would put it as taught by Alice. Alice teaches a finger hole inside, finger hole 30. And you put your finger in the finger hole and tear up along a tear strip and pop off the removable section of Alice because it's not needed. I would propose to the court that what we're missing a lot of this discussion is the teaching, the entire teaching of Alice, German, and Palmer. And Alice teaches a cart and that's very specifically arranged to be in staggered relationships. So there's no need to catch anything. There's no need for a basket. You want to remove that section R and slide it into the refrigerator so that it's open and you can pull the cans out and create a term in order. Right, but there's no just use the difference between the staggered and the stack. That's not an off and non-obvious. That's a non-obvious chain, right? Well, it is taught in the art to stack containers. That's taught in Palmer. But it would not be obvious to stack containers like in Alice and then move the tar line to a specific point behind the first and second can. That's nowhere taught in Alice. In fact, Alice teaches away from that. Alice teaches that you want your finger flap in front of the first can because there's room to pull it open. In front of the first can, you'll talk about behind the first can on the bottom. So if you have Alice that says you put at least part of Alice says you're going to put the flap behind the first can on the bottom. And then you move the top can to be precisely on top of the first can on the bottom. Wouldn't it make perfect sense that that's where you keep your finger flap? That's not where it lines up. If Alice teaches in a pellet spree, a pellet made the mist statement that Alice teaches between one half a can diameter and a full can diameter. It doesn't teach that. It teaches that you want to put that share line between one half a can diameter and less than a full can diameter. It doesn't say how much less, but it does say it's less. It does say preferably three cords of the can diameter. So if you stack the cans, you're not going to have your tear line between the first and second can. That was a finding effect made by the board and that was supported by the declaration of the Jumman Welcomas who, as a carton designer, for 28 years built this carton according to teachings of Alice. And opine, the page 226, there's AO226, that if the cans are vertically stacked in a carton having an Ellis corner design, a finger flap place along the tear strip of Ellis would be positioned directly over the first can in the top row. So this arrangement would not work. And that is supported by the evidence and that what was found by the board. But there's your honor. So there it's one briefly, can we go back to claim one? Yes, you're challenging the board's decision on unpatentability with respect to claim one. We are challenging respect, not only claim one, but claim eight and claim 13. And if you look at the teachings, I've discussed briefly the teachings of Alice. If you look at the teachings of Jumman, which is to have a carton or a container for holding bottles resting on their ends so that you can remove a bottle and reinsert the bottle and have a closure panel for closing it up when you carry the container back to the re-explanatory. So if you look at the teachings of Jumman, that's the teachings of Alice or excuse me, teachings of Jumman. If you, if it's not obvious to put a fold line, the examiner's position that's obvious to look at the fold line of Jumman and put that on now, so that wouldn't be obvious to do, but cut for a number of reasons. Alice doesn't need a recloseable basket. There's no can coming out of the carton number one. So you don't need that closure. Number two, as Geronna pointed out, there's a large cut 25 in the front wall of Alice. And that large cut is a handhold. If you put a fold line across the front wall of Alice, as taught by Jumman, you're going to eliminate that handhold. You're not going to have a handhold to carry the carton with. So one of our nearest skill we are would not try to put a fold line on that front wall for that additional reason. And the other reason is the teaching of Jumman is to pull out containers and put back in containers. That's why you have a closure because you have empty containers in there. You can't do that with Alice because Alice specifically wants you to pull out containers into pre-determined order. That's why they're stacked and arranged and numbered. If I could turn quickly to claim 14, claim 14 specifies a blank. And it also includes the limitations of the finger flap, let's say, between the first and second containers in the top row. And again, we submit that the board was absolutely correct in its finding that that is patentable. So claim 14, of course, depends on claim 13. Climb 13, claim the line. And as you're honor previously pointed out, there's two elements in claim 13 that are not taught or suggested by the prior art. And we believe that the rejection of those claims are clearly random. It requires interpretation of two claim terms. One is the free ends and what is the free end of a flap. And the other is the single tarot being formed across the front. And in both of those cases, the board incorrectly determined the meaning of those claims. The claim specifies, on part C, that a tear line extends across the area corresponding to the top and two sides to the transverse fold line and then from the transverse fold line across each of the side inflaps to their free ends. Now, that is shown in the 639 patent on 51. The top, you'll see at the top of that figure, the tear line 78 is extending up to the free end of flap 50 and to the free end of flap 42. The office of the board, erroneously determined, that is shown in Ellis and figure two of Ellis, which at the bottom of figure two shows those short cuts or scores 21 that extend to that large cutout section. And the board, in correct or in our view, held that those cutout section constitutes free ends. And we believe that that was an erroneous finding, erroneous interpretation. The free end, if you look at the patent of the 639 patent in the specification, the free end clearly is the furthest point of that inflapped. For example, if you had an inflapped of figure one of the 639 patent that hypothetically had a small 1-inch slit that was going down towards the rest of the carton and the tear line ended there, you wouldn't, we proposed, naturally call that the free end just because it was a 1-inch slit. So the office's determination of what constitutes the free end and looking at Ellis really depends upon the size of that cutout, which is for the handhold 25. We also believe that the office incorrectly, as we discussed earlier, applied the claim line single tear line and appropriately single tear line extending across the side inflaps. Clearly, it's not met as shown in figure one by Ellis that has the cutout portion. It's not a single tear line, there's a cut in the middle of the tear line. Well, your halfway through the reputlance of your tongue, your toes, why don't we say the loudspeaker in half minutes like your mouth? I'm just kind of getting whipsawed here. Thank you, Your Honor. I'd like to have an order if you want. Thank you, Your Honor. May I please support you? I think Judge Morghith on a key part of this case that the board did make a factual finding that Ellis teaches away and Ellis figures three. Can we talk about claim two now? Yes. Are you talking about claim two that the other side of the tail line? Okay, I just want to talk about that. Thank you, Your Honor. Now, that Ellis teaches away from having the tear line after the first can in the top row, figure three, respectfully inviting the court's attention to page six of our brief, our red brief in Ellis's figure three opposite page six. The tear line there, this is the substantial evidence that supports the boards teaching away finding the tear line there is clearly before the middle of the first can. So we have a tear line that teaches against putting the tear line any more to the left. Mr. Sivlo, I want to be clear, teaching away is the opposite of demonstrating. It is the opposite of demonstrating something, right? I may not be saying that right. I guess pointing to a figure that shows the tear line in one location, does that really support the idea that this reference teaches away from putting that tear line anywhere else? Thank you, Your Honor. In addition to figure three, as Council noted, Ellis expressly has, as we discussed in our brief, the restricted range of from a half a can to one can from the right side. And that is in Ellis on page 582 of the records, column two, about line 30, where it's talking about having a distance of less than one diameter of one can. And this restacking argument, Your Honor, was made as the board noted, laid to the board and laid to this court in some fields required grief. But you agreed that it would have been obvious to change a staggered arrangement to a stagger. That's the board agreement. Yes, Your Honor, as the board said. So I'm having trouble seeing where the non-obvious leap is from Ellis is set. So if you take Ellis and you say, we're going to move these cans over so they're not staggered but they're straight, you're still doing to the bottom can. It says there's got to be in front of the bottom can. So if you move the top can to be over exactly where on top of the bottom can, it seems to me it's not a truly inventive leap to say, okay, so this is where you're going to flip the tear. Your Honor, on this record, the board's rationale was reasonable. And that the board said, if you do stack the cans and as Ellis's tear line is in figure three, you would be hitting the top can on the first row. So as this late argument, the board went over and... You can't do it, it's a novelty. So therefore when the bottom can move to the front, it's the next most logical move, right? If you go from a staggered to a stacked can situation, you just move it over, right? Well, that might be another rationale that Zimbeel could have presented and the board could have agreed with. That's what the board was addressing was the Palmer and Palmer was all over Zimbeel's briefs to the board. And briefs to this court as a matter of fact Zimbeel keeps emphasizing which we haven't heard of yet. I think Palmer is really not that close, but their emphasis was on Palmer. They had a primary push for Palmer and so the board was addressing that Palmer teaches something else, a handle for carrying, not a flat to open a carton. So that argument that was presented to the board was rejected. And then as to Ellis and in combination with the German patent, that renders claimed one obvious because it's very beneficial to put a finger flap to start the tearing as the board noted and agreed with Zimbeel on that point. But as to a deep... The deep end of the claim claimed two that has a range, we don't have a reference that has the stacking, so that would be a hypothetical reference. And then you have to modify that hypothetical reference. And what the board was saying was that Palmer teaches something else. Wait, you don't have to modify the hypothetical reference because... You still have to put a finger in. You're saying, okay, we're not using the staggered situation and Ellis, we're using the straight line. Which is one modification. And then you take what Ellis teaches, which is at least part of it, which is the tear is behind the first can on the bottom row. And you say... It's before the first can. Yes. Behind the first can. And you say, and we're going to move the top can over to be right on top of that can. Again, I mean, am I expressing... Do you understand what my concern is? I think this is kind of a logical need. And you couldn't do it otherwise. In a staggered situation, as you started off, it would be impossible to do the tear otherwise. The correct, Your Honor. You would have, as Palmer discloses, a tear line that... You can't do it on top of the can because you can't get your finger through. Correct. Yes, do it. I mean, Mr. Wong might just agree, but it seems to me a little weird to say that you're going to put it right at the very end. Right? Yes. Just agree with that. Yes. Would kind of be a nullity. So, what's the net most logical leap? Your Honor, I hate to be repetitive, but Ellis, as it's disclosed, has the tear line running into the top row first can. The next change with this hypothetical reference based on the late argument would be that you have to add a finger flap. So, the hypothetical reference in and of itself doesn't invalidate claim to... You have to then add a finger flap. So, we're really changing the Ellis reference based on the late submission to the board, which the board struggled to try to address, that if you restack them... Well, you're going to... You're going to say late submission, but the board went ahead and dressed it. So, the board didn't treat it too late and therefore out of bounds, right? Correct. You're not suggesting that if the board accepted something and addressed it, we should somehow overlook a mistake the board made because they had less time to do it because it was the end. The board had the freedom to reject the argument if it was improper, that it had been filed too late, but they chose to either decide it was not improper or to address it anyway. So, this whole late file thing that you said, like, 20 times, I don't know what you want me to take away from that. That I should excuse a lack of detailed disclosure by the board as to why it's doing something or what. What do you want me to take away from the late file? Are you arguing it's waived or are you arguing it's... Well, what is your point? To this court, your honor, it appeared expansively in some Beale's reply brief. The board addressed the references and what they disclosed as substantial evidence that Ellis teaches away because Ellis has a restricted range from the middle of the bottom first can to the end of the first can, which hits the can on the top row. So Palmer teaches something else and Ellis teaches away. And those board findings are supported by substantial evidence, and that is enough. That's a reasonable rationale that claim to still stands because the rejection that was proposed to the board was properly defeated by the board showing substantial evidence. I'm going to add to that. I'm going to ask you a question. Ellis, the Caroline in Figure 3, it shows the Caroline sort of about three-fourths of the way back on the first can, which is located on the bottom row. And then it shows the finger-flop 30 to be placed slightly... look at Figure 1. Now, a finger-flop 30 in Figure 1, you can see where it is, slightly in front of the Caroline. It's less apparent where it exists in the sides of you in Figure 3. But isn't that finger-flop like right in the bottom of the can? Well, you're out in the can. I'm used because I don't see any finger in there into that location. If the finger-flop 30 is in front of the Caroline and is closed in Figure 1, and if the Caroline is where both Figure 3 and the specification text disclose it to be, how in the world is that figure-line operable? That finger-flop? Well, cans can have impressions that they get curved in, and all you need for when there's a pre-cut hole is to just get a fingernail or a little bit of your hand in there and start the tear. And that's why the German reference as to claim one invalidated claim one because it shows that having a finger-flop to start the tearing is an obvious modification. Are you afraid that this one closes that finger-flop and right in the bottom or the top depending on which side you are? That's a hole. That's a hole you're on. Number 30? Yes, you're on. Oh, I thought it was a... It's a hole to start the tearing, and then the German reference as a finger-flop to invalidate claim one. No. Is it at your honor? In column 2 of Alice, item 30 is described as a finger opening or a hole. It's a pre-cut hole. So just like for reality, you only need to be able to get your fingernail in there. Why can't it be placed where Judge Prokze is suggesting even if it's straight on the top of a can? No, you need to get your fingernail in there. Why can't you see that finger-flop even if that finger-flop is right on top of the center of the top-row can? Well... Did you get a fingernail in Mr. Piccolo room? Well, I was... I think more emphasizing that it's a hole. And depending on the can or the cardboard box is flackable, you can pull at that hole. And so a hole is differently treated than either a perforated chairline or a finger flack. It's because the finger-flop has to be able to be indented to be used to be pushed in, whereas a hole you can just kind of slide your finger in and out. Correct, your honor. But if there's enough room in the hole, then put your finger in and I'm not thinking the difference between that and a finger-flop. Because your honor, Alice has the holes on the side. And as the cans are positioned, you can... if you have to pull the cardboard, a hole is totally sufficient. A finger-flop is even better than a hole. As the German reference teaches that invalidates the claim one, you put your hand through the finger-flop and that simplifies the opening. So the hole is on the side in Alice and in the German pattern you have a finger-flop on top. The teaching in the German pattern of putting a finger-flop with a terror lock that invalidates broad claim one. Because claim one doesn't say where at all the terror line has to be. So that's why claim one is in balance. Speaking from a vast experience, as a former RMENCO, I believe that you put both your thumbs in slightly at the end of the side so you can lift the drop back. But reaching from the top and you want to get a hook in there because otherwise it will fall off. I don't think I could have said it better. You guys hold noted? By the court, all the time. Thank you. Thank you, Your Honor. Thank you. All right, Mr. Vaughan. You've got a couple minutes left. Thank you, Your Honor. Again, I would say the court that one can't negate, ignore the teachings of Alice when one is determining how to construct this hypothetical package. What we thought it could be, is that clear? We're just trying to explain you're talking about an empty argument with our rebound. Back to claim, too, Your Honor. Alice teaches that in that carton, the finger flap, if you don't call it a finger flap, where the hole and the tab line is in the side of the carton. That works for Alice. There's no reason to move that to the top. If you did move it to the top, you'd be hitting a can if you stacked the cans. What we would say in the first instance is, Alice has a perfectly operable structure for opening its container. That finger flap is on the side. If you were following the teachings of Alice, if you were adding a fold line to the front of the carton, which we argued in regard to claim one, you would not do because there's a cut out there. But if assuming that you did add that, Alice has a perfectly operable structure for opening the carton. One wouldn't take that next lead to eliminate that structure and add it to the top and then look for a place, whether it's in front of the first can as is in the teachings of Alice, or behind the first can or the second can or the third can. There's a functioning structure for opening the carton of Alice. Thank you, Robert. You've probably addressed a couple of questions that were left from the beginning. You asked about where in the record the home reference was put forth. I would directly say A175, where the examiner found a substantial new question of patentability of claims 2914 based upon Palmer, Alice, and German 718. That was based on Zombeel's request, exam request, which is A102. With regard to the motion to strike, the rules provide that that can be addressed to the oral argument. Alternatively, we would have had the seclude to file over written response, so I didn't do that written response request, but thought I could address it here at the court would like me to. Would you expect to the issue of the... Would your argument simply be that in the Blueberry Fit pages 31 and 32, you did raise the issue and you just expanded and planted a little bit in the reply phrase? That the year-art commitment was filed. Essentially. And with regard to your question, your honor, Judge Moore, concerning the cut 25 in the determination of Alice having a tear line and whether it was continuous or single tear line, that limitation first of all is only in claim 13, claim 1 and 8 just call for. Said portions of the dispenser being defined by, but it doesn't say completely or exclusively defined by, so I think that the reasonable, broadest, reasonable interpretation of the claim language would allow for the inclusion of those cuts as partially defining that extensor. But I assume your initial reply, which is not the basis of how many weeks they were arguing that these continuous tear line limitations is not met, but you still. That would be my primary position. I just wanted to answer your specific question in that regard. There was some reference to the fact that I didn't mention Palmer in the opening arguments, but Palmer certainly does teach placing a finger flap between first and second can, clearly shown in the figures in Palmer. And it describes that it's for ease of accessing the carton interior purposes of lifting it. And the argument has been made that Palmer is teaching a handle or a handhold, not an opening or a dispenser. However, it would suggest that there's no dispute that Palmer does teach that finger flap between two adjacent cans, which is exactly the teaching that Zombeel is looking to that reference for. The fact is that in Alice, there is a handhold on the front end wall. It's item 42 in figures three. That's a handhold. It is on either side has tear line. So to say that it wouldn't be obvious to use Palmer to put in a finger flap along the tear line is actually countered by Alice itself, which has a handhold adjacent to tear lines themselves