RECORD OF ORAL HEARING
`
`U.S. PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`ANDERSEN CORPORATION,
`Petitioner,
`
`v.
`
`GED INTEGRATED SOLUTIONS, INC.,
`Respondent.
`
`__________
`
`Case DER2017-00007
`Petitioner Application 15/058,862
`Respondent Patent 9,428,953 B2
`__________
`
`Oral Hearing Held: November 14, 2018
`__________
`
`
`Before JONI Y. CHANG, JOSIAH C. COCKS, JUSTIN T. ARBES,
`Administrative Patent Judges.
`
`
`
`
`U.S. PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`ANDERSEN CORPORATION,
`Petitioner,
`
`v.
`
`GED INTEGRATED SOLUTIONS, INC.,
`Respondent.
`
`__________
`
`Case DER2017-00007
`Petitioner Application 15/058,862
`Respondent Patent 9,428,953 B2
`__________
`
`Oral Hearing Held: November 14, 2018
`__________
`
`
`Before JONI Y. CHANG, JOSIAH C. COCKS, JUSTIN T. ARBES,
`Administrative Patent Judges.
`
`
`
`
`Case DER2017-00007
`Petitioner Application 15/058,862
`Respondent Patent 9,428,953 B2
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`of:
`
`CYRUS A. MORTON, ESQ.
`SHUI LI, ESQ.
` Robins Kaplan, LLP
`800 LaSalle Avenue, Suite 2800
`Minneapolis, MN 55402
`(612) 349-8722 (Morton)
`(612) 349-8500 (Li)
`cmorton@robinskaplan.com
`sli@robinskaplan.com
`
`
`
`ON BEHALF OF THE RESPONDENT:
`
`
`THOMAS H. SHUNK, ESQ.
`of: Baker Hostetler
`127 Public Square, Suite 2000
`Cleveland, OH 44114
`(216) 861-7592
`tshunk@bakerlaw.com
`
`
`
`of:
`
`JOHN A. YIRGA, ESQ.
`Tarolli
`1300 East 9th Street, Suite 1700
`Cleveland, OH 44114
`(216) 621-2234 x135
`jyirga@tarolli.com
`
`
`
`
`The above-entitled matter came on for hearing on Wednesday,
`November 14, 2018, commencing at 10:00 a.m. at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`Case DER2017-00007
`Petitioner Application 15/058,862
`Respondent Patent 9,428,953 B2
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`P-R-O-C-E-E-D-I-N-G-S
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`10:01 a.m.
`JUDGE COCKS: Good morning and welcome to the Board.
`We're here today for oral argument in a derivation case. DER2017-00007.
`This proceeding involves petitioner's application 15/058,862 and
`respondent's patent 9,428,953. Let's start with introductions of counsel.
`Will counsel for petitioner please introduce themselves?
`MR. MORTON: Yes, Your Honor. I'm Cy Morton for petitioner.
`With me is also Shui Li. In the gallery I have our lead scientist Shelley
`Gilliss as well as from the Andersen Corporation Andrea Noraune, our IP
`counsel, and Kate Graham who's our glass -- lead.
`JUDGE COCKS: Thank you, Mr. Morton. Would counsel for the
`respondent please state their appearance as well?
`MR. SHUNK: Good morning, Your Honor. My name is Tom
`Shunk. I represent GED Integrated Solutions. I'm backup counsel in this
`case. Primary or lead counsel in this case is Mr. John Yirga here with me
`as well Mr. George Pinchak and Ms. Samantha Smart.
`JUDGE COCKS: Thank you, Mr. Shunk. Now as we set forth in
`the trial hearing order each side has 60 minutes of argument time.
`Petitioner will go first and present their case and may reserve rebuttal time.
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`Petitioner Application 15/058,862
`Respondent Patent 9,428,953 B2
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`The respondent will then argue their opposition and if petitioner did reserve
`rebuttal time the respondent may also reserve brief surrebuttal time.
`The petitioner will then use their rebuttal time and we will conclude
`with the respondent using any time they have reserved for surrebuttal.
`So that being said Mr. Morton you may approach the podium and
`begin when you're ready.
`MR. MORTON: Thank you, Your Honor. I'm going to shoot to
`reserve 20 minutes of rebuttal time approximately.
`So again, may it please the Board my name is Cy Morton. I
`represent the petitioner Andersen Corporation.
`Now, it is undisputed that Andersen employee Samuel Oquendo had
`the idea we're talking about here first and communicated it to GED's alleged
`inventor Bill Briese and that communication led directly to the '953 patent.
`Specifically, it's undisputed that it was Mr. Oquendo's idea to solve
`the problem of leakage at the fourth corner of an intercept insulating glass
`unit, a window frame, by moving the seam off the fourth corner to make all
`four corners identical.
`Mr. Briese eventually took that idea from Mr. Oquendo, put it in his
`own inventor notebook, handed the CAD drawing showing that idea to his
`engineers to make GED's new corner plus product and patented the idea in
`the '953 patent.
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`Case DER2017-00007
`Petitioner Application 15/058,862
`Respondent Patent 9,428,953 B2
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`And in the words of Mr. Briese and others at GED it was the best
`thing to happen to intercept since intercept.
`The only reason there's still an alleged dispute about derivation here
`today is that GED says Oquendo didn't conceive of a stop and didn't
`communicate a stop and that's it. And we'll be talking about that today.
`But that's really as you'll see just an attempt to feign ignorance about
`what was going on.
`According to GED Mr. Briese just didn't understand based on what
`Mr. Oquendo told him that in the new design you would not leave a corner
`notch along the side wall. And he did not understanding the stiffening
`flanges that were already there would come together to form a stop.
`As we'll see this is simply not true. That feature already existed in
`intercept and was the only natural outcome of the design Mr. Oquendo
`disclosed to Mr. Briese.
`So my plan this morning is to talk a little bit about the original
`intercept design and then go straight to conception, then disclosure, and then
`a little deeper dive on the disclosure of a stiffening flange stop which again
`is the primary --
`JUDGE COCKS: Just a question as a backdrop as you go forward.
`Do we have the right construction of stop in this case? Is there any
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`Case DER2017-00007
`Petitioner Application 15/058,862
`Respondent Patent 9,428,953 B2
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`disagreement between the parties, the construction that was offered in the
`institution?
`MR. MORTON: There's no disagreement. There's no
`disagreement. I think the only thing that came up on that was just the
`location of the stop. So the stop is what it is. There's other claim
`language that indicates the stop needs to be away from the corner, spaced
`apart from the corner. So no, I don't think there's a dispute.
`So we did bring the physicals as we said that we would in our calls
`with the Board. This is the original intercept spacer frame. And the
`Board can certainly take a look at this later.
`What you have here though is -- a little stuck together. But if you
`can picture how this all works it starts with a flat strip of metal and I've laid
`it out here so you can see it.
`Then that metal is punched. You punch 45 degree notches at the
`corners, punch, punch, punch. That punching is controlled by software, the
`location, timing of the punches. Of course the punch itself is controlled by
`just the shape of a piece of metal that does it.
`And you punch the tab and tail so the posts can go together. And
`the whole point is to create an airtight spacer frame to go inside a dual paned
`window and everybody knows that.
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`Petitioner Application 15/058,862
`Respondent Patent 9,428,953 B2
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`Once you've punched it you do what's called roll forming and that's
`where you bend it up so it's no longer flat. You create the U shaped
`channel and you create stiffening flanges all the way along.
`I have pictures of this. The product basically, slide 4 showing the
`stiffening flanges. And those extend everywhere where you don't punch it
`out, everywhere where there's enough material left the process is going to
`create stiffening flanges. And that's to give structural integrity to the entire
`spacer frame.
`JUDGE COCKS: Counsel, I do have one question. Just for the
`record we're looking at the prototype you have in your hands but that
`prototype is not in the record as of yet. If it becomes necessary for it to be
`in the record we will consider that at a later time.
`MR. MORTON: Sure. This is just to be clear, this is the original
`intercept frame prior to the invention. It's exhibit 1051. And you can see
`what happens as you fold the tab --
`JUDGE COCKS: Just for clarity there are images that are exhibit
`1051, is that correct?
`MR. MORTON: That's correct. Yes, we have not submitted this
`physical. So as you can see what you did originally was insert the tab into
`the tail and the side walls and stiffening flanges meet at the corner in the
`original intercept.
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`Petitioner Application 15/058,862
`Respondent Patent 9,428,953 B2
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`JUDGE ARBES: So Counsel, as I understand it, it was a problem
`because the seam was at the corner and there was difficulty putting the
`sealant around the outside. That was a problem.
`It was also a problem, right, that the holes need to line up exactly.
`
`Right?
`
`MR. MORTON: Yes, and you'll see that they do. You hit the
`corner the holes are lined up. That's to put in the argon gas between the
`panes. And again that's something that everybody knows you have to have.
`On the original intercept they have to line up and you do -- you have to have
`those holes so you can put in the gas.
`JUDGE ARBES: Okay. So when we're talking about moving the
`seam away from the corner, you have the same issues, right? We have to
`account for that seam being there and ensuring that the seal is proper and the
`holes still need to line up, right?
`MR. MORTON: Right. So if you look at the other corners
`obviously there's no seam on the outside of the other three corners. The
`fourth corner the way it was there's a seam right at the corner where the tail
`overlaps. And this area was identified as the main failure problem for
`leakage.
`JUDGE ARBES: And whatever the stop is and wherever it is that
`helps to align the two holes in the proper position, right?
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`Petitioner Application 15/058,862
`Respondent Patent 9,428,953 B2
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`MR. MORTON: It does. Certainly. So on the points that I've
`said, I mean we have certainly here at slide 5 a description again showing
`the stiffening flanges and Mr. Briese conceding that there will be stiffening
`flanges everywhere except for where you remove material to create a notch
`or to create the tail.
`Of course Mr. Oquendo testified to the same thing. He explained
`that anywhere where one side came into contact with another would serve as
`a stop. The stiffening flanges were already there as part of the original
`design of the GED or PPG intercept system and were already acting as a
`stop.
`
`And you see from their own finished quality specifications exhibit
`2009 showing the fourth corner, good fold tab, no air gap. And you can see
`that it just comes together, the side walls touch and the stiffening flanges,
`they're going to be right up there, are going to touch at that fourth corner.
`Mr. Briese further admissions on this saying that something is going
`to stop it at the fourth corner, the side walls, or the abutting flange. That's
`the stiffening flange to meet in the fourth corner. That's always been the
`design of the original intercept. Yes, says Mr. Briese. So that's what we
`have.
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`Petitioner Application 15/058,862
`Respondent Patent 9,428,953 B2
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`JUDGE COCKS: Just for the record this is slide 8 in the slide
`deck. I didn't say this before. If you could try for the clarity of the record
`reference the slide.
`MR. MORTON: Right. And I do know that rule. It's always
`hard to call it out every time.
`JUDGE COCKS: Right, I understand.
`MR. MORTON: So yes, that's slide 8 conceding that the stiffening
`flanges abut in the original intercept. So Oquendo and Briese agree that
`that was there and everybody that was involved in the conversations we'll
`get to already knew that.
`JUDGE ARBES: Counsel, can you clarify, if you could go back to
`the previous slide. When we have the situation where the seam is at the
`corner, what is touching what? You say the side walls or the abutting
`flange. So it's the side walls or the flange at the top. They're both
`touching the other piece at the corner?
`MR. MORTON: Yes. If it's lined up correctly you're going to
`have the entire 45 degree side wall touching right up to the stiffening flanges
`which are at the top of the side wall.
`JUDGE ARBES: So what's preventing it from going any farther
`than -- it's both I guess, the side walls and the stiffening flange?
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`MR. MORTON: Right. I think that's right. So then I'm going to
`move ahead to our conception period, show conception. I'm up to slide 10
`now.
`
`I'm going to focus on claim 1 which has the basic invention in it and
`claim 5 where the stop specifically has to be stiffening flanges. We
`covered all the claims in the briefing and really all the arguments come
`down to is there a stop space in the corner that's created by stiffening
`flanges.
`So our conception looking at really claim 1, really the substantial
`linear channel, the connecting structure, the stop, none of these things are
`disputed. It's really just where the lateral connection forms a union point
`by said stop. So that's got to be lateral from the corner. That's really the
`only issue.
`So what happened here. Looking up to slide 12. It's again
`undisputed that Mr. Oquendo came up with a prototype in March of 2009 or
`spring of 2009. I have the prototype here again. It's been labeled 2017.
`So we have pictures to that effect.
`And what he did was take two existing intercept frames and he'll cut
`one of them and put them together to demonstrate what he wanted to show
`which was to move the seam off the corner which he did by something
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`called reversing the swedge and splay. It's just changing whether the nose
`points into the corner or points out of the corner.
`So this is the -- holding up the prototype. Seams had to kind of
`tape it together here. But you now have the nose heading into the corner
`and you create this seam right here away from the corner. Now you can
`seal that much better than you could at the corner. That was the basics of
`his idea.
`And you still have this corner notch that's right here that's still in the
`prototype. And I just want to make sure we all understand where that came
`from.
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`It's because he had two original intercepts which was all he had to
`work with. So you took the fourth side here and cut it off at the corner.
`That's what's taped here in the prototype. Straightened out the tail and then
`used this as the fourth wall so he could insert this and demonstrate getting
`the seam off the corner.
`That's why there's still a corner notch in the prototype because he
`was using -- it's a vestigial notch if you will left over from, it's an artifact
`from using original intercept to create the reversal swedge and splay and
`move the seam off the corner which is what he was trying to demonstrate.
`Okay. It's also undisputed that he made CAD drawings
`demonstrating this. Of course when he made the CAD drawing he didn't
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`Case DER2017-00007
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`leave a corner notch along the side wall. He made a CAD drawing like
`this. Creates a butt joint. The stiffening flanges would meet in that butt
`joint. And this is his CAD drawing from June 2009.
`JUDGE COCKS: Mr. Morton, in the slide 13 there because the
`issue of a stop seems to be front and center can you point to a stop in that
`image at the top of slide 13?
`MR. MORTON: Well, I can't because this is intercept. I've been
`showing you the original intercept. This is a modification of intercept.
`And that's why I spent some time earlier saying the stiffening flanges run all
`the way around. So if you don't cut away material there will be stiffening
`flanges.
`So the entire length of what you're seeing here in the CAD drawing
`has stiffening flanges. Right where I'm trying to point there if I can hold
`still is the butt joint where those come together. And the stiffening flanges
`have to be there, have to meet at that point. So that's where the stop is, is
`right where that line is pointing to the top of the part of the butt joint right
`there that would have a stiffening flange.
`JUDGE ARBES: Do they have to meet exactly so that they stop
`when they contact, or can the one on the left insert within the one on the
`right and go farther?
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`Case DER2017-00007
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`MR. MORTON: Well, the stiffening flanges curl in like this. So
`they're not going to allow you to go in further. They're going to meet.
`The side walls are going to meet, the stiffening flanges are going to meet.
`So that insertion is going to be stopped at that point.
`And that's just a consequence of just squaring that off at 90 degrees
`instead of cutting a 45 degree corner notch which you would not do along
`the side wall.
`We have evidence that it wasn't just Mr. Oquendo. He shared his
`idea with others within Andersen again talking about moving the seam off
`the corner, shared his CAD drawings.
`We have his direct testimony answering the question that you just
`asked. He says the stiffening flange abutment is a consequence of a butt
`joint seam at the offset seam location. So that's what we were just talking
`about. You make a butt joint offset. You get a stiffening flange
`abutment.
`JUDGE ARBES: One question I have. On page 35 of your
`petition when we're talking about the stop limitation in particular you say
`about one-third of the way down “when assembled the insert tab naturally
`stops at the corner on the opposite frame end, placing the insert tab in its
`proper position.”
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`You seem to be saying there that the stop is at the corner because it
`goes all the way to the end and stops.
`MR. MORTON: So I think going back to our petition we just went
`through the claim language as it comes. And when you hit the element of a
`stop we gave like every kind of stop that there can be in the system.
`So if you do have the nose going into the corner that can form a stop.
`The stiffening flange abutment is a different form of a stop. So we were
`listing all the possibilities.
`When you get into the stop being by the union point offset from the
`corner that's where we've had to focus on the one that we also have in our
`petition which is the stiffening flange stop right there.
`JUDGE ARBES: So do you agree that there cannot according to
`these claims be a stop at the corner? It cannot be what you refer to on page
`35. It has to be if anything the contact of the stiffening flanges away from
`the corner.
`MR. MORTON: Right. I think it has to be by the union point is
`the way the claim language is.
`JUDGE ARBES: So that's the only stop you are relying on now
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`then?
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`MR. MORTON: Correct.
`JUDGE ARBES: Okay.
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`Case DER2017-00007
`Petitioner Application 15/058,862
`Respondent Patent 9,428,953 B2
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`MR. MORTON: Okay, so just finishing out the conception piece
`we also of course have the January 2011 drawing which was drawn for Mr.
`Oquendo by Mr. Briese which shows a software change to move the seam
`over to here in between A and B off of the corner.
`What happened here, what the testimony is, is Mr. Oquendo asked
`Mr. Briese for this. An hour later he had this sketch. The next day had a
`quote for the software change to create this.
`Mr. Briese has repeatedly admitted that this drawing came from Mr.
`Oquendo, was what he thought Mr. Oquendo was asking for not just in 2011
`but in 2009.
`JUDGE ARBES: Counsel, that drawing does have the V notch
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`still.
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`MR. MORTON: It does, it does, because again this is to reflect the
`software change. As I mentioned you control the timing and location of the
`punches with software, you control the shape of whatever is going to be
`punched by the shape of the punches.
`So this is not addressing that. This is just addressing the software.
`And obviously when you punch this nose piece you're going to have a punch
`that doesn't also punch a corner notch in the side wall.
`So this is the first step is get the software changed. And we'll
`certainly discuss this a lot more that you would not leave that corner on the
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`side wall when you design the punch to create a product in accordance with
`this idea.
`JUDGE ARBES: How do you respond, I believe Mr. Oquendo
`confirmed that this did accurately show his idea. And if this still shows the
`punch, then the stiffening flanges cannot contact, right?
`MR. MORTON: Well, if you look at all of Mr. Oquendo's
`testimony he says yes, this accurately shows what I wanted from Mr. Briese
`which was the software change because GED controls the software. The
`hardware is at Andersen. He could experiment with that. That's also the
`testimony. Create the punch and test the product himself. So that's what's
`going on.
`And we're going to see, believe me, we're going to see testimony
`from both Oquendo and Briese that you would never leave a corner on a side
`wall. And Mr. Briese concedes that repeatedly.
`JUDGE ARBES: Okay, so this really does not fully show Mr.
`Oquendo's idea in your view because it does not show the stiffening flanges
`touching each other.
`MR. MORTON: It does show where the stiffening flanges would
`be. They'd be right along here and right along here. I had Mr. Briese
`draw those on this drawing. I think we have it in a future slide.
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`Case DER2017-00007
`Petitioner Application 15/058,862
`Respondent Patent 9,428,953 B2
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`And it's quite clear just from looking at it if you don't punch a corner
`along the side wall those stiffening flanges will meet in the middle and abut
`at the butt joint just like in Mr. Oquendo's CAD drawing, just like in the
`corner product, just like in the '953 patent.
`So to go from there to address some of GED's arguments on
`conception they have commented even in the surreply to question the dating
`of Mr. Oquendo's CAD drawings so I want to address that briefly.
`Here we have a PDF of the CAD drawing that's attached to a June 5
`email internal to Andersen. And that shows the date. At least by June 5
`of 2009 he had the CAD drawing. It has all the structural aspects that
`we've been talking about for conception. So that is really not an issue.
`The reason why it's become supposedly an issue is because later in
`these pictures on the left in slide 18 were added. They're added December
`2, 2010. It doesn't change the fact that everything else was there, all the
`structure was there back in 2009.
`And the timing of these is interesting I think just because -- so he
`added pictures to the CAD in December 2010. This was just before going
`to Mr. Briese in January 2011 and asking for the 2011 CAD drawing to
`move the seam off the corner. So he's obviously just working on this
`project again and getting ready to go see Mr. Briese.
`JUDGE COCKS: Counsel, could you go back one slide?
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`Case DER2017-00007
`Petitioner Application 15/058,862
`Respondent Patent 9,428,953 B2
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`MR. MORTON: Yes.
`JUDGE COCKS: So, I think there's an exhibit 1012 and an exhibit
`1013. I don't see exhibit 1012. That bottom illustration 9 exhibit 1012.
`The reason I'm getting at is because there is some dispute about what
`is the June CAD drawing. I'm trying to see if we can resolve that a little
`bit.
`
`So go to the next slide then. So this resembles the June CAD
`drawing but is not itself the June CAD drawing, is that accurate?
`MR. MORTON: So when you do CAD drawings like this it can be
`the same underlying document and you just add to it like you add to any
`document.
`So there were some dimensional things that were added at some
`point and these pictures are obviously dated December 2010.
`JUDGE COCKS: I guess I should be more specific. The June
`2009 CAD drawings. Similar to that is what you're saying but it's not --
`what we're seeing in slide 18 is not the June 2009 CAD drawing. Or if I'm
`wrong tell me why I'm wrong.
`MR. MORTON: It's an edited version of the same document.
`And to be clear again all the lines, all the diagrams that you're seeing is the
`same.
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`JUDGE COCKS: It's just the pictures on the left.
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`Petitioner Application 15/058,862
`Respondent Patent 9,428,953 B2
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`MR. MORTON: Right. But the basic spacer frame, the offset
`seam, depictions of how the nose would look, that stuff is all the same.
`JUDGE ARBES: Counsel, I think one of the concerns I had was
`that Mr. Oquendo did testify that exhibit 1013 is the drawing he showed Mr.
`McGlinchy, but that's not true, right? He did not show exhibit 1013. It
`was the CAD drawings itself without the pictures.
`MR. MORTON: Right. I don't have that exact testimony, but
`these -- I'm not going to pretend that these December 2010 pictures were in
`what he showed to Mr. McGlinchy. His testimony was that it was on his
`computer so it's a live document and he showed -- so to him it's the same
`document.
`JUDGE COCKS: So is, and I think it's exhibit 1012 which is just
`the CAD version. So is that the document that was shown or potentially
`shown?
`MR. MORTON: Yes. If that's this CAD drawing without the
`pictures then I think the answer is yes.
`One other word about this whole dating issue that I think is kind of a
`little odd is that whether it was in June of 2009 or later 2009 or 2010 all of
`that was long before Mr. Briese claims to have done anything or figured out
`anything. So it's all prior. Everything that he did is prior to the January
`2011 drawing that Briese made at Mr. Oquendo's behest.
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`Petitioner Application 15/058,862
`Respondent Patent 9,428,953 B2
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`JUDGE ARBES: Counsel, I think we have to be accurate. We're
`talking about alleged communication of the conceived idea. It's not
`accurate to say that exhibit 1013 was shown to them, right? I believe
`you've acknowledged that has photographs that occurred in December of
`that year. So it could not be exhibit 1013 at least.
`MR. MORTON: It can't be -- no. It's the same underlying CAD
`drawing. The CAD drawing is never -- it's in CAD. It's a live document.
`It's never changed. It's had things added to it. It's had the figures added to
`it later.
`
`So that was one issue of GED's. The other issue we've discussed a
`lot and we'll discuss more is whether Mr. Oquendo conceived of a stop.
`We've already discussed that the stop is right there at the seam. It's the
`only thing that can happen when you create a butt joint in intercept.
`And this is what Mr. Oquendo testified as well. He said talking
`about whether or not he thought about that he says it has to be stopped at a
`certain point so the holes align. That's part of the design. I didn't
`specifically envision a new kind of stop. The stops, the abutment, all that
`stuff was in the system. It just happened to come together after he
`modified the punch and dies. So again it's just a natural outcome of
`moving the seam off the corner to create a punching.
`The last thing that
`GED has argued on conception is that Mr. Oquendo did not have a lateral
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`Case DER2017-00007
`Petitioner Application 15/058,862
`Respondent Patent 9,428,953 B2
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`connection which they argued as the overlap, the nose overlaps with the
`other side of the wall, that entire overlap as having to be away from the
`corner, not just where the stop is.
`So this, they never showed a construction of lateral connection.
`GED modified to add this red on slide 20 to define the lateral connection
`that's not in the patent.
`And in fact if you look at figure 7 of the patent both the lateral
`connection is 60, duty point is 58 and they both just point to where that butt
`joint would be right there. They do not denote the entire length of the
`overlap. So that argument which is in the reply or I should say their
`opposition is just not correct.
`Even if it was correct the 2011 drawing which is Mr. Oquendo's idea
`does show the entire overlap if that's the lateral connection spaced from the
`corner. We have Mr. Briese again confirming that that drawing that he
`made for Oquendo is based on my understanding of what Mr. Oquendo
`wanted and what I thought Mr. Oquendo was talking about all the way back
`in 2009.
`So it's an admission. This is what he thought he was talking about
`the whole time basically.
`So from there I'll move to disclosure which we certainly covered to
`some degree but I want to cover it specifically for this derivation.
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`Case DER2017-00007
`Petitioner Application 15/058,862
`Respondent Patent 9,428,953 B2
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`So I'm up to slide 25. And in the petition of course we talked about
`a meeting between Mr. Oquendo and Mr. Briese and Mr. McGlinchy where
`he showed the prototype.
`And GED in the trial has denied ever seeing the prototype. So I
`submit that the evidence still shows that it's more likely than not that they
`did. I don't need to win that point because we have other evidence of
`disclosure and we can win based on the other evidence and not on whether
`they saw the prototype, but I submit that the correct finding of fact is that it's
`more likely than not that they did see the prototype.
`And the reason is as we show on slide 25 it's undisputed that they
`were at a larger meeting with Mr. Oquendo at Andersen where the topic of
`the day was the fourth corner problem, the leakage problem. And GED
`proposed an automated patch at that meeting.
`So they were all there to discuss the very problem that Mr. Oquendo
`was trying to solve with his prototype.
`It's also undisputed that he had a prototype. No one's denying that.
`It was there. It was available. Slide 26, he testifies that he showed it to
`Mr. Briese and Mr. McGlinchy.
`Then going to slide 27 --
`JUDGE ARBES: Just one question if you can go back to the
`previous slide.
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`Petitioner Application 15/058,862
`Respondent Patent 9,428,953 B2
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`MR. MORTON: Yes.
`JUDGE ARBES: There was no one else there I take it when he
`showed it to them?
`MR. MORTON: That is correct. The meeting was just the three
`of them. It was a side meeting at the larger meeting to discuss the overall
`issue.
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`JUDGE ARBES: But that's denied by Mr. Briese and Mr.
`McGlinchy?
`MR. MORTON: They deny it. They deny it. So clearly I'm
`arguing based on the surrounding circumstantial evidence that Mr.
`Oquendo's testimony is more credible.
`So following that it's undisputed that at some point they started
`talking about this. You have an email from Mr. Oquendo to Briese in slide
`27 that says have you had a chance to look at the reversal of the swedge and
`splay which is of course exactly what's demonstrated in the prototype.
`And we have Mr. Briese responding. He understand
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