for eight for health technologies versus intelligent hospital systems. So that's really important and I wanted localities to raise up this heat so let's summary of three points to aid this court in understanding why it is that the board should be reversed. The first point concerns claim construction. During re-examination, independent claims 3 and 20 were amended with explanations and declarations were submitted. But the board did not give weight to with the intrinsic evidence for that reason should be reversed. The second point though is like to highlight in summary, it concerns obviousness. The scope of the claims can shoot in light of the intrinsic evidence requires that a label be applied automatically to a syringe
. The spawning combination of prior art has prints all labels to an outboard printer. That requires that the labels be matched to the file that it has been filled and manually applied to those files. As properly can shoot, the claims in this case require the manufacturer of a syringe by an automated machine which applies labels and which prepares a syringe ready for administration to pay for. Turning then to the final point also relates to that obviousness and that really under either parties interpretation of the claims, the claim feature of a filtered out of the screen consisting of only those jobs that require manual handling is not fairly met by the spawning combination of references for sites to error messages which include system errors and automation errors. But those errors are not limited to only jobs that require manual handling. Can I tell me what's wrong with the following? That the claim construction dispute doesn't actually have to be resolved and doesn't add anything because if you had obviousness case for filtered streams getting even to the point of printer, the only thing that's left in the claim construction dispute is the automatic attachment to the syringes and you've compended that that's well known so that the dispute over whether automatic attachment of labels to syringes is required by the claims or not doesn't actually change the result of the obviousness like that
. I submit that it's wrong because the fundamental teaching of spawning is that all of the labels go to an output printer and the modifications that's been proposed in view of secondary references still does not result in a label being applied. A pelly hired an expert who gave an opinion as to how spawning operates. He's an electrical engineer with great credentials and he did not provide any explanation as to how spawning might actually be changed in this principle of operation to print only some of the labels. His testimony almost substantially mirrors for the way I'm trying to separate the question of attaching labels automatically attaching labels to syringes from the question of printing only the ones that are going to be attached automatically. So there's no teaching in the order for record of modifying spawning to put a label on syringes. If there were a labeling station in spawning that were able to apply a label to this syringe then it would produce a labeled syringe but spawning teaches a different system, spawning teaches and assist to pharmacists where there is a host computer and there's a label printer and the spawning system has been interjected into the flow and the teaching from top to bottom spawning is that pharmacist is there and it's the expectation from the teaching to spawning
. The pharmacist is going to retrieve from an offload carousel the filled vials for applying the label and in that dispensary system the pharmacist is able to look at the filled vials, these vials are filled with pills, so pills have shape, size, color, markings, things that the physician can't, pharmacist can confirm it has been correct and related to a label. The spawning is decidedly more basic system because it's only providing an assist. It's not important to make every thing that the pharmacist needs in order to his job and doesn't report to divide the flow as in the claim invention to two distinct paths which are mutually exclusive. In all of the teaching pharmacists combing those, it's output. On the primary side all of the labels are going to a label printer, an outboard label printer. When you look at the modification which takes the display and changes that to a printer, the so-called filtered output which spawning is providing is going to instead of a display to a printer
. But what is that filtered output? The claim calls for filtered output stream which consists of only those jobs that require manual handling. But the display of spawning provides outputs of concerning things that have been automatically handled. It has an output that says the offload carousel is full. It has an output that says that there's a count of zero weight and discrepancy. Spawning discloses that 854, 9132, 38, a number of different error messages which are not restricted to manually to jobs that require manual handling but in fact virtually all of them concern automated errors. Spawning is not sending only jobs that require manual handling to the display now as nullified to a printer
. Another problem with the modification that suggests that maybe we can apply a labels directly automatically in spawning which Dr. Trump or never addresses is that spawning in and of itself is proposing a system that is supposed to be a system pharmacist. If he were applying the labels directly he would end up with duplicate printing because the main printer is getting the jobs the machine cannot handle. Before he gets any modification we look at the teachings of spawning and all fairness. The display is only a display and it's shown error problems and handling. If the forms of the suppressing prints and expecting labels for the medications that have to be filled it's wonderful that the spawning machine can fill some of those orders and if spawning were to apply a label that might be interesting but the premise then is that spawning is taking control over these flows and the pharmacist would never have a printed label for the things the machine could not do and that would make spawning inoperable for its intended purpose because the pharmacist can keep pushing print and not seeing the jobs that he has to do
. By contrast that's our invention. Our invention has mutually exclusive streams flowing in different directions one to an output about to a printer and one to an automated machine. I submit the board error in ensuring the claims in the vacuum. They looked at the word that after the amendment that was made during prostitution they looked at the word manufacturer instead of the manufacturer and syringes for delivery and administration patients. That was the phrase that was amended to change the scope of the claim from before which was preparing medication doses. They looked at the one word that didn't provide a specific meaning for the claim language
. Pellies brief notes at page 16 that it seems the board used the plain and ordinary meaning and we concur. Doing the board disregarded the testimony of Blair who gave an understanding of what the patent itself teaches people of ordinary skill in the art and his commentary on the board's decision. They also disregarded the arguments that were made by the patent owner during the re-examination at the very time of the amendment that said manufacturing syringes for delivery and administration for patients means that you're implicitly that you're applying a label. That was backed by the declinerants who said for safety sake a machine like this has to have it. It was consistent with the specifications teaching that the order entry system communicates with the manufacturer of the medication preparation system and gives us the information that it needs that's the word in the spec at the specification needs to have that information in order to be able to print a label. That's a column 3 on 30 to 47 of 837
. So the specification supports an understanding that a person of ordinary skill in the art recognized and the plot. Blair said I read the two and two patent and implicitly describes it inherently describes a label printer and the application of labels. But the administering prosecution of clear and un-mistakable that the intention of the claim language the amendment was to narrow the scope of the claims and define it as applying a label. We went so far as to say that while we didn't have Ipsis verbose support for second prints or if you were relying on language and personal ordinary skill in the art review. So what was the impediment to your amending the claims because Ipsis verbose support is not required. Correct
. So why if it seems I don't know the not the best way to run the system to opt for up against amending claims to achieve what you want and instead make a prosecution history record which will then be binding. Understood and the binding effect is recognized and and was recognized in the time and if we were unabashed and making that position clear on the record this was an inter-partisory examination and at every stage the appellate was commenting and critiquing every single maneuver as it has the right to two and they commented and critiqued supports for the amendments that were actually made and they would have done that regardless of the reach of the support especially had we come in and said you know broadly the second printer in so many words that is why the claims were amended as such that's why the remarks were made. Blair was discounted because having no real weight apparently because he didn't use the magic language of the claims. The claims track the discussion provided by Blair. That's the meaning of a person in order to fill the arcs. Uncontroverted on the record
. You're into your rebuttal. Why don't we hear any other sign? Thank you. Your honours may it please the court. My name is Kevin Lawrence. I'm appearing on behalf of intelligent hospital systems. Even if claims three and claim 20 are construed for the sake of argument according to appellance construction. The remain obvious over the record, over the three brief highlight of the points about obviousness of forgetting the details. The first is that the appellant has felt to address the combination of spolving with Halverson and the other prior references and none of the declarations from any of appellance experts addressed obviousness. And so all they have is attorney argument and then third our position is supported by an expert witnesses declaration who goes into detail about all of the references that's Professor Trump, Professor MIT. And I'd like to talk in a little bit more detail about the spolving reference and the Halverson reference. It's important to always keep in mind that this is an obviousness issue and that there are multiple references involved. Both parties agree that spolving shows a printer and a display panel and appellance construction declines requires two printers, but it doesn't address whether or not that combination is obvious in light of spolving and Halverson
. The remain obvious over the record, over the three brief highlight of the points about obviousness of forgetting the details. The first is that the appellant has felt to address the combination of spolving with Halverson and the other prior references and none of the declarations from any of appellance experts addressed obviousness. And so all they have is attorney argument and then third our position is supported by an expert witnesses declaration who goes into detail about all of the references that's Professor Trump, Professor MIT. And I'd like to talk in a little bit more detail about the spolving reference and the Halverson reference. It's important to always keep in mind that this is an obviousness issue and that there are multiple references involved. Both parties agree that spolving shows a printer and a display panel and appellance construction declines requires two printers, but it doesn't address whether or not that combination is obvious in light of spolving and Halverson. So spolving discloses a controller that sends an error message to a display panel when a drug is not in the system. Halverson also has a system for dealing with prescription drug orders that have to be manually filled. And so that's discussed in Halverson which is at J.A. 100 and in particular column five lines 10 through 16. So Halverson discusses prescriptions that can be automatically prepared and then it discusses those that result in manual preparation being necessary
. So spolving discloses a controller that sends an error message to a display panel when a drug is not in the system. Halverson also has a system for dealing with prescription drug orders that have to be manually filled. And so that's discussed in Halverson which is at J.A. 100 and in particular column five lines 10 through 16. So Halverson discusses prescriptions that can be automatically prepared and then it discusses those that result in manual preparation being necessary. And so anything that's lacking in spolving is filled in by Halverson. And that is discussed in detail in Professor Trump's declaration paragraphs 21 through 26. So even if all of the labels, if you were to look at figure 30 and take sort of a simplistic interpretation of that and look at in the abstract and you look across that first row and view that as sending all the labels to the printer. It wouldn't matter because in figure 29 you have the loop that is shown and it's described in two places. First is at J.A
. And so anything that's lacking in spolving is filled in by Halverson. And that is discussed in detail in Professor Trump's declaration paragraphs 21 through 26. So even if all of the labels, if you were to look at figure 30 and take sort of a simplistic interpretation of that and look at in the abstract and you look across that first row and view that as sending all the labels to the printer. It wouldn't matter because in figure 29 you have the loop that is shown and it's described in two places. First is at J.A. 56 column 14 lines 47 through 60 and that describes figure 29 in detail and then also in J.A. 53 through 54 column 8 line 63 column 9 line 11. And that's the section describes the temporal aspect of the diagram for shown. But it has to be kept in mind that both figure 29 and figure 30 are referred to as simplified versions and you can't understand how they work just by looking at them. You have to read the two together and in line the specification particularly the sections that I just cited to
. 56 column 14 lines 47 through 60 and that describes figure 29 in detail and then also in J.A. 53 through 54 column 8 line 63 column 9 line 11. And that's the section describes the temporal aspect of the diagram for shown. But it has to be kept in mind that both figure 29 and figure 30 are referred to as simplified versions and you can't understand how they work just by looking at them. You have to read the two together and in line the specification particularly the sections that I just cited to. And what becomes a parent after reading those sections is that there is a description of the flow of the prescription label data that shows the temporal aspect to it before it is printed and that is the interpretation that the board accepted. But it doesn't matter if that is not what you agree with because either way there is a separation that occurs that's shown very clearly in figure 29 in the loop that is shown where you get down to is the drug system and if it's not then it gets kicked out and it goes to the display panel. And so the question for obviousness is just a simple question of what it be obvious to substitute the display panel with a printer as shown in Halverson. Halverson shows and figure one a system that's used in a pharmacy a network system with a plurality of printers and one of the printers works with the prescription drug orders that are ready for automated filling and others result in a message being sent and printed informing a worker that the prescription needs to be handled manually. So that combination is the reason why claims three and claims 20 are obvious. Dylan relates to a TCP IP protocol that shows in figure 31 of the arrows that's shown as unidirectional
. And what becomes a parent after reading those sections is that there is a description of the flow of the prescription label data that shows the temporal aspect to it before it is printed and that is the interpretation that the board accepted. But it doesn't matter if that is not what you agree with because either way there is a separation that occurs that's shown very clearly in figure 29 in the loop that is shown where you get down to is the drug system and if it's not then it gets kicked out and it goes to the display panel. And so the question for obviousness is just a simple question of what it be obvious to substitute the display panel with a printer as shown in Halverson. Halverson shows and figure one a system that's used in a pharmacy a network system with a plurality of printers and one of the printers works with the prescription drug orders that are ready for automated filling and others result in a message being sent and printed informing a worker that the prescription needs to be handled manually. So that combination is the reason why claims three and claims 20 are obvious. Dylan relates to a TCP IP protocol that shows in figure 31 of the arrows that's shown as unidirectional. It clarifies that it would be clearly bidirectional because the Spalding reference makes reference to the use of conventional printer networks and Dr. Trumper explains that that would of course be a bidirectional connection. So the figure 30 is not a complete representation but it can be fully understood by looking at those two sections in combination and the ref figures in combination. So I mentioned that, well I'm going to control our seven of Spalding filters, the drug orders between those that can be filled by the automated system and those that are unsuitable for automated handling. This separation of the manually filled drug orders from the drug orders received by the Spalding system is a filtering operation and that's what Dr. Trumper stated in his declaration at 8343 paragraph 16 and appellate has no expert test mates refute this view
. It clarifies that it would be clearly bidirectional because the Spalding reference makes reference to the use of conventional printer networks and Dr. Trumper explains that that would of course be a bidirectional connection. So the figure 30 is not a complete representation but it can be fully understood by looking at those two sections in combination and the ref figures in combination. So I mentioned that, well I'm going to control our seven of Spalding filters, the drug orders between those that can be filled by the automated system and those that are unsuitable for automated handling. This separation of the manually filled drug orders from the drug orders received by the Spalding system is a filtering operation and that's what Dr. Trumper stated in his declaration at 8343 paragraph 16 and appellate has no expert test mates refute this view. Appellate criticized Professor Trumper's statement in a 343 paragraph 18 that Spalding never states that all the labels for automatically transcriptions and manually filled prescriptions are printed by the label printer. But from the next sentence Professor Trumper goes on to affirmatively state that the simplified flow diagram does not provide the all prescription orders are sent to the label printer. He then concludes that a skilled artist and would understand that more than one printer could be connected to the Spalding system and that's at J343 paragraph 18. So Professor Trumper's declaration provides substantial evidence to support the board's findings which a reasonable mine might accept. In contrast, Spalding has no declaration evidence that supports an argument regarding an obviousness, just a attorney argument. I'd like to comment briefly on some of the claim construction issues if there's no questions about obviousness
. Appellate criticized Professor Trumper's statement in a 343 paragraph 18 that Spalding never states that all the labels for automatically transcriptions and manually filled prescriptions are printed by the label printer. But from the next sentence Professor Trumper goes on to affirmatively state that the simplified flow diagram does not provide the all prescription orders are sent to the label printer. He then concludes that a skilled artist and would understand that more than one printer could be connected to the Spalding system and that's at J343 paragraph 18. So Professor Trumper's declaration provides substantial evidence to support the board's findings which a reasonable mine might accept. In contrast, Spalding has no declaration evidence that supports an argument regarding an obviousness, just a attorney argument. I'd like to comment briefly on some of the claim construction issues if there's no questions about obviousness. So the PTO has to follow the broadest reasonable interpretation and can I have to ask your opposite number? If you're right about the obviousness analysis up to this point, what role if any is played by the claim construction dispute? Well, I would say that it has no role because either way that you can screw the claims, really all that matters is that there is a filtering that occurs and that filtering occurs as clearly shown in figure 29 with the output that goes to indicate that there's not a drug in the system and that it can't be filled. And then you combine that teaching with the similar teaching in the Hauverson reference there at column 5 that I said to earlier which shows similarly when you have a drug that can't be automatically filled that you print out a message indicating that it needs to be handled manually. That would show the use of two printers and it just wouldn't matter if you had if you had if you interpret if you can stream the claim to be the case that all the labels are printed all at once with no analysis and ignored the lower part that's shown in figure 30 and ignored the discussion about how the prescription label data has to go down to the database and then from the database to go back up. You still have a filtering that occurs and so it would be obvious either way. I'd like to point out the omega the rate tag case which explains it it's cited in a brief which explains how you can't use expert declarations to rewrite the specification. The problem with that is that where do you stop becoming untethered from the requirements of the written description and it just opens up a can of worms do you think that there would have been sufficient support and a specification for them to do by explicit amendment what they so clearly tried to do by argument to the examineer? No I don't there's just the word manufacturing is used and then used but I think we all understand what is meant by manufacturing but beyond that when it details it's there's just no detail there so it just it opens up to too many alternative versions of what that might be with with no basis
. So the PTO has to follow the broadest reasonable interpretation and can I have to ask your opposite number? If you're right about the obviousness analysis up to this point, what role if any is played by the claim construction dispute? Well, I would say that it has no role because either way that you can screw the claims, really all that matters is that there is a filtering that occurs and that filtering occurs as clearly shown in figure 29 with the output that goes to indicate that there's not a drug in the system and that it can't be filled. And then you combine that teaching with the similar teaching in the Hauverson reference there at column 5 that I said to earlier which shows similarly when you have a drug that can't be automatically filled that you print out a message indicating that it needs to be handled manually. That would show the use of two printers and it just wouldn't matter if you had if you had if you interpret if you can stream the claim to be the case that all the labels are printed all at once with no analysis and ignored the lower part that's shown in figure 30 and ignored the discussion about how the prescription label data has to go down to the database and then from the database to go back up. You still have a filtering that occurs and so it would be obvious either way. I'd like to point out the omega the rate tag case which explains it it's cited in a brief which explains how you can't use expert declarations to rewrite the specification. The problem with that is that where do you stop becoming untethered from the requirements of the written description and it just opens up a can of worms do you think that there would have been sufficient support and a specification for them to do by explicit amendment what they so clearly tried to do by argument to the examineer? No I don't there's just the word manufacturing is used and then used but I think we all understand what is meant by manufacturing but beyond that when it details it's there's just no detail there so it just it opens up to too many alternative versions of what that might be with with no basis. If if more detail is needed presumably for what for enablement or what? Well I think that you have to have enablement for this certainly but also written description and so there's just ambiguity they try to tie it to a particular commercial embodiment and the board found that that really just let me find exact phrase that the board used the board said that by means by no means the only configuration possible require and so by attempting to refer to a commercial embodiment it creates ambiguity because you can't rely on on that for what is meant by the patent terms and it just has too much ambiguity. So in conclusion I ask for the court to affirm thank you. Thank you. Apele mentioned Somega the Amiga case I think that the NTP case is more appropriate of NTP came after we had a nation and had the court to do an accord decision and in the NTP the court said that the intrinsic record includes what a person of ordinary skill in the art would understand claim to mean the purpose of player submission was to provide such information into the record and that's in the tuition to be clear and on the stakeless statements were made during prosecution particularly in view of issues concerning the actual words that appeared in the patent to address the meaning of the patent to a person of ordinary skill in the art. Apele suggests that the flow diagram of figure 29 is responsive of the out the floating divided Dr. Trump refers to that figure for that figure only talks about if it's not the database send an error message but the figure doesn't show is all these other arrows let's say let's send a message to the exact same location if the offload carousel is filled let's send the same message if there's a count discrepancy things that concern automated functions it is it is illusory and a misreading of the claim to talk about filtered out but without looking at the entire phrase a filter of output stream consisting of only those jobs that require manual handling
. With all these respective Dr. Trump he refers only to figure 29 and not the disclosure of folding which includes numerous error messages going to exact same place now going to paper about my machine is dirty my count the count is wrong the carousel is full all sorts of things that require automated handling. Thank you we thank both counsel but cases to read and that concludes the proceedings for this morning. All righ