trials@uspto.com
`571-272-7822
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`IPR2016-00130, Paper No. 36
`May 9, 2017
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`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`JOHNS MANVILLE CORPORATION, JOHNS MANVILLE, INC.
`Petitioner
`vs.
`KNAUF INSULATION, INC., and KNAUF INSULATION SPRL
`Patent Owner
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`Case IPR2016-00130
`Patent D631,670 S
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`Oral Hearing Held: February 2, 2017
`
`
`Before: SCOTT A. DANIELS, (via video), KRISTINA M.
`KALAN, and JAMES WORTH, , (via video), Administrative Patent Judges
`
`The above-entitled matter came on for hearing on Thursday,
`February 2, 2017 at the U.S. Patent and Trademark Office, 600 Dulany
`Street, Alexandria, Virginia in Courtroom B, at 1:00 p.m.
`
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`571-272-7822
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`IPR2016-00130, Paper No. 36
`May 9, 2017
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`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - -
`JOHNS MANVILLE CORPORATION, JOHNS MANVILLE, INC.
`Petitioner
`vs.
`KNAUF INSULATION, INC., and KNAUF INSULATION SPRL
`Patent Owner
`- - - - - -
`Case IPR2016-00130
`Patent D631,670 S
`- - - - - -
`Oral Hearing Held: February 2, 2017
`
`
`Before: SCOTT A. DANIELS, (via video), KRISTINA M.
`KALAN, and JAMES WORTH, , (via video), Administrative Patent Judges
`
`The above-entitled matter came on for hearing on Thursday,
`February 2, 2017 at the U.S. Patent and Trademark Office, 600 Dulany
`Street, Alexandria, Virginia in Courtroom B, at 1:00 p.m.
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
`
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`DAVID E. SIPIORA, ESQ.
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`LANE C. WOMACK, Ph.D., ESQ.
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`Kilpatrick Townsend & Stockton LLP
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`1400 Wewatta Street
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`Suite 600
`
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`Denver, CO 80202
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`
`303-405-8525
`
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`Dsipiora@kilpatricktownsend.com
`
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`Lcwomack@kilpatricktownsend.com
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`ON BEHALF OF THE PATENT OWNER:
`
`JOSHUA P. LARSEN, ESQ.
`
`JAMES R. SWEENEY, II, ESQ.
`
`Barnes & Thornburg LLP
`
`
`11 South Meridian Street
`
`Indianapolis, IN 46204-3535
`
`317-236-1313
`
`josh.larsen@btlaw.com
`
`jsweeney@btlaw.com
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`P R O C E E D I N G S
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`(1:00 p.m.)
`JUDGE WORTH: Please be seated. We have two
`remote judges today, so we're just going to first check the
`setup.
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`JUDGE DANIELS: Good afternoon, Judge Worth.
`Can you hear me? This is Judge Daniels.
`JUDGE WORTH: I can.
`JUDGE KALAN: Can you hear me?
`JUDGE WORTH: Yes.
`JUDGE KALAN: Thank you.
`JUDGE DANIELS: Great. Let's go ahead and get
`started. Good afternoon, everyone. We have this afternoon
`our final hearing in IPR2016- 00130, Johns Manville
`Corporation versus Knauf Insulation, Inc.
`I am Judge Daniels. I am obviously remote. And
`in the hearing room with you is Judge Worth. And Judge
`Kalan is appearing remotely as well from Denver.
`So let's get the parties' appearances. Who do we
`have from Petitioner?
`MR. SIPIORA: Good afternoon, Your Honors. My
`name is David Sipiora from the film of Kilpatrick Townsend.
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`With me also is Lane Womack from my firm.
`JUDGE DANIELS: Good afternoon. Could
`someone check -- I couldn't hear you very well. Is the
`microphone on?
`MR. SIPIORA: Maybe it is not. It does not appear
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`to be.
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`JUDGE DANIELS: There we go. That's perfect.
`MR. SIPIORA: Okay. So --
`JUDGE DANIELS: I can hear you just fine, Mr.
`Sipiora. And is there anyone else with you today? I know that
`your lead counsel will not be here.
`MR. SIPIORA: Yes. Thank you for that,
`appreciate that, Mr. Reed is in China, he is not. In his stead is
`my colleague, Lane Womack. And also attending is from Johns
`Manville in-house counsel, Robert Touslee. Thank you.
`JUDGE DANIELS: Great. Thank you.
`From Patent Owner, who do we have?
`MR. LARSEN: Good afternoon, Your Honor, this
`is Joshua Larsen from Barnes & Thornburg. I will be arguing
`today on behalf of Patent Owner. I have with me here my
`partner, James Sweeney. We also have counsel for Knauf
`Insulation, Blake Hartz, and in- house counsel, Mr. Stephan
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`JUDGE DANIELS: Is Knauf the way to say it? Is
`that the proper way?
`MR. LARSEN: Yes, Your Honor, it is pronounced
`Knauf. Thank you.
`JUDGE DANIELS: Okay, thank you. Thank you.
`Welcome to everyone. Good to have you here.
`We set the procedure for today's hearing in our trial
`order, but let me just remind everyone that each party has 45
`minutes of time to present their arguments. And each party can
`allocate its time as it chooses.
`Please keep in mind that whatever is projected on
`the screen will not be viewable by Judge Kalan and I. So when
`you refer to an exhibit on the screen, please state for the record
`the exhibit and page number. And for demonstratives, the slide
`number is helpful as well. It is also helps for clarity in the
`transcript.
`Petitioner has the burden on the original claims and
`goes first. And you can reserve time for rebuttal. Patent
`Owner can then have the -- will then have the opportunity to
`present its response.
`And Petitioner may also address its reasons for
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`authorization, as we stated in our e-mail, for a motion to
`terminate as well.
`Judge Worth will keep -- can give you a warning
`before reaching the end of your argument time. Since he is
`there, that is the most efficient thing. And other than that, if
`there is no questions or concerns, I think we're ready to get
`started.
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`Oh, I feel like I have one thing, one issue I wanted
`to bring up was that there was an objection, Mr. Sipiora, I
`believe you have an objection to slide 8.
`MR. SIPIORA: We will withdraw the objection in
`light of where we're at in the proceeding. So at this point we
`will withdraw that.
`JUDGE DANIELS: Okay. Great. Do you want to
`reserve any time?
`MR. SIPIORA: Yes. In light of the 315 issue and
`the initiation decision, I would like to reserve 20. So I would
`like to do 25 and then reserve 20.
`JUDGE DANIELS: Certainly. All right. Judge
`Worth, if you would start the time, you can begin, Mr. Sipiora.
`MR. SIPIORA: Thank you.
`Again, thank you again for the courtesy and
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`consideration for Mr. Reed not to have to appear here in
`person. I appreciate that.
`In the Institution decision, the Board found a single
`claim of the '670 patent as unpatentable on four grounds, two
`grounds relating to anticipation and two grounds relating to
`obviousness.
`I am here today to ask you to uphold that initial
`decision and to enter a final written decision finding the single
`claim of this design patent, which is a photocopied image of a
`picture of a piece of building insulation as unpatentable for the
`same reasons as found in the Institution decision.
`My argument is broken into four parts. First, I will
`deal briefly with the evidentiary objections; second, briefly
`touch upon claim construction; third, look at anticipation
`grounds 3 and 4; and finally look at obviousness, if there is
`time, grounds 1 and 2.
`I am going to reserve, as I said, 20 minutes to come
`back and I will address the 315 issue as the burden of proof is
`on the patentee. I will pick up in response to their comments.
`So I am now moving to slide 2, motion to exclude
`Exhibits 1004 and 1005. This is an objection raised in a
`motion to exclude. The issue here has to do with the primary
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`references, 1004, 1005, which are, as reflected here the JM
`OEM applications brochure is 1004, 1005 from 1997; the other
`from 2000. We submit that they are properly authenticated and
`they are prior art printed publications that should be
`considered here.
`Testimony from Mr. Joe Mota in the case, including
`his declaration and deposition, stated that he had placed the
`copies of those exhibits, both 1004 and 1005 in his files, they
`are hard copy documents -- so they are literally brochures -- in
`his files in 1997 and 2000, respectively, and they have
`remained in those files since that time.
`Both Mr. Mota and Mr. Graves gave testimony both
`in their declarations and deposition of copious personal
`knowledge concerning the dissemination and publication of
`those documents. The testimony was that hundreds if not
`thousands of those brochures were given to distributors,
`fabricators, and approximately 100 or more direct customers of
`Johns Manville, including engineers, technical staff and so
`forth.
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`Mr. Mota testified that he personally sent
`marketing materials, these marketing materials to customers
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`those materials.
`He testified that he had a process. This process
`was also supported by the testimony of Mr. Graves, which is
`testimony in Exhibit 2020 in the record. And the process was
`these were printed brochures. There was an outside printer.
`They worked with a designer who then sent to a printer and
`printing was made of these brochures.
`They had come in boxes. Mr. Mota took those
`when they came as a practice over the course of years, he is a
`30- some-year employee. He would keep a couple of for his
`archival files, put them in the file and they would immediately
`go out. And within one month they would be distributed to
`customers. That was the testimony.
`Virtually every one of their customers would get a
`copy. And they testified that these brochures, the 1004 and
`1005, were the sole brochures that they used in their business
`during that time.
`They had one-page fliers that corresponded to
`individual products, but for the product line, this was the
`primary means of distribution. That's why they remember it
`very well, very clearly, what they did and when they did it.
`The first brochure was dated in 1997, December. It
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`would have been disseminated within about a month of that;
`testimony from both individuals. And then in 2000, in October
`of 2000, that was sort of replaced with the next brochure,
`which is 1005. And that was also disseminated.
`There are multiple exhibits in the record, 1021,
`1025, 1024, all the recipients' testimony of who received it,
`when they would have received it, et cetera, so there is
`abundant evidence in the record of these being disseminated
`and distributed at the time, 1997 and 2000 to the audience,
`their customers, OEM customers, HVAC industry customers,
`acoustical industry customers, et cetera.
`And it is reflected in the testimony of Mr. Graves,
`Exhibit 2028, and also the testimony of Mr. Mota.
`And I am going to jump over slide 3, which relates
`to the timeline, which relates to the 315 issue and move to
`slide 4 and briefly touch on the other pieces of evidence that is
`challenged. That is Exhibit 1010. That's the Owens-Corning
`OC 2006 annual report. It is called as reflected here At a
`Glance Report. Again, it was a properly authenticated piece of
`prior art.
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`The foundation for that evidence was the same as
`the foundation for evidence introduced in the earlier IPR, I
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`will call it the first testimony; Internet Archives. A librarian
`found it. We had testimony of Chris Butler of the Internet
`Archives.
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`That same evidentiary foundation was accepted
`with respect to Exhibits 1005 and 1006 in the prior art IPR
`petition, Petition Number 1. And we respectfully submit that
`same evidence should be accepted here.
`Exhibit 1018 is the declaration of Anne Barker.
`Exhibit 1031 is the affidavit of Chris Butler. Again, extensive
`testimony supporting and corroborating authenticity and the
`public availability of this 1010 prior art reference.
`Moving to slide Number 5, moving to claim
`instruction. For the record, Johns Manville maintains its
`position in terms of its proposed claim construction in the
`petition, both with respect to variation of distinct hues and
`waffle pattern, but we recognize in Petition Number 1 that this
`Board has spoken with respect to claim construction and we
`respect that decision. And we apply it here today in our
`remarks and comments.
`For the purposes of this discussion, all of our
`analysis will be based on that construction. And I am moving
`now to slide 5. There is an add to it; the PTAB construction
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`with respect to the '670 patent.
`There is really no dispute with respect to the first
`four elements as reflected here; insulation material, cloud- like
`appearance, variations in a swirl pattern, waffle pattern. Knauf
`does not challenge those.
`It is really on the fifth element, the color issue,
`that we have the dispute. I have paraphrased the Board's
`finding in Petition Number 1 to get it on to a slide, but
`basically the key difference between what was used in the
`initial Institution decision here by the Board and the final
`language, which we're relying upon now, is basically law of the
`case or the file wrapper in this case.
`In Petition Number 1 is, the language with respect
`to brown and cream in the initial ruling here with respect to
`Institution decision, the Board used the language "such as
`brown and cream" and found that these brochures had that.
`The Board's decision in Petition 1, which we're
`now applying, uses the phrase "including brown and cream."
`In other words, brown and cream are the colors that is part of
`this design. And we accept that.
`Under that standard, the same result applies. The
`facts were found. And under that standard, these, both 1004
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`and 1005, the '97 and 2000 brochures, would have brown and
`cream.
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`In other words, the change, really the only change
`in this case that we would submit from the time of the
`Institution decision to now, notwithstanding all the evidence
`that we have had, is really just that change of language,
`moving from "such as brown and cream" to "including brown
`and cream." And the outcome is no different.
`So using --
`JUDGE DANIELS: I just wanted to make clear, so
`I think -- I believe, since that final decision just came out, I
`believe my focus or our focus, the panel's focus was that the
`"including brown and cream" was language taken specifically
`from the specification.
`Is that -- is that your recollection as well?
`MR. SIPIORA: Well, there is no -- there is no
`specification.
`JUDGE DANIELS: Excuse me, not the
`specification, the file wrapper history.
`MR. SIPIORA: Well, actually, we respectfully
`disagree on that. The file wrapper says "such as." And your
`language -- and that's what you used in the Institution decision.
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`We had -- we were -- that was acceptable to us.
`You have now made a decision based, I believe -- I
`would say based on looking at the design and seeing the color
`itself, brown and cream, that "including brown and cream" as a
`way to capture more accurately in words what is depicted. So I
`would say I think it is based, at least as we read it, it was
`based on your looking at the -- really looking at the
`photograph, the photocopy of the photograph, which is the
`specimen, and saying color needs to be identified specifically
`as brown and cream, not just as an example here.
`JUDGE WORTH: Does calling it the law of the
`case undercut your position on estoppel?
`MR. SIPIORA: I hadn't thought of that. I don't
`think so. That law of the case is my term. That really isn't the
`right term. It is more a file wrapper issue, right? There is a
`decision made in a previous proceeding, and I take that to
`mean that that's where the Board would be today.
`I don't know that that necessarily carries over,
`because an examiner obviously can change their mind in
`different determinations. Sometimes that happens in
`prosecution. And in a sense this isn't a prosecution mode. It
`is a little unusual. It is kind of a new question.
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`But I would, I would treat it from our point of
`view -- there is a lot of thought that went into your decision,
`obviously. And in our view it is very well-reasoned and
`thoughtful. We accept it. And we rely upon it here where you
`are going to be today.
`Now, you might tell us differently, but today we're
`assuming that's where you are going to be. As I say, you have
`other language. I want to be respectful. You had other
`language -- I didn't mean to leave it out -- but really the
`material change is to move from "such as" to "including" and
`that to us means that you can't have other colors as in the
`example, like "such as." It has to have brown and cream.
`And the important part that I would like to make
`from the very outset is that doesn't change the outcome. The
`fact finding that was made in the Institution decision here says
`brown and cream was present, as I am going to describe in a
`minute here. And so the outcome doesn't change. The scope
`of the claim is changed. And appropriately so.
`If you look at Egyptian Goddess, and we got a very
`good question, Judge Worth, last time, which I regret I wasn't
`able to point to law at the time. You might remember that. I
`do very succinctly. I think about it often. I am not often not
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`able to come up with law, but the issue was disclaimer versus
`how is it treated. And it really is a limitation on claim scope.
`When you make it distinguishing over prior art,
`Egyptian Goddess actually talks about that. In a design patent
`case, you can narrow the scope of the claim. And in effect
`what happened here by distinguishing, as was done by the
`applicant in this case, talking about variation of distinct hue,
`there is an element of claim scope.
`And I take it that this Board in its decision has
`looked at that and its language reflects that understanding.
`There is some narrowing of scope. It is just not any color, it is
`brown and cream. And with the other language.
`So moving to slide number 6, it just sets out the
`grounds. Grounds 1, 2, 3, 4. I am going to take them in
`reverse order. I don't think I am going to have time to get to
`obviousness, and I think it is clear our arguments there.
`On anticipation, grounds 3 and 4, I am going to
`move to slide number 7. That's really just a statement of the
`grounds that you are familiar with, the legal standard,
`comparison of whether the claimed design in the prior art are
`substantially the same. And then of course looking at the
`comparisons. You don't look at minor comparisons or minor
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`differences; you look at major differences as counting. Minor
`differences don't defeat anticipation. That's the bottom quote
`from the International Seaway case on slide 7.
`Moving to slide 8 we have a side-by-side
`comparison of the two -- of the claim on the left, which is the
`insulation material, and the Exhibit Number 1004, which is the
`1997 OEM brochure. In this particular slide, really the only
`difference that I think one can reasonably argue about is the --
`kind of the distance or the scale.
`You know, clearly on the left, if you look at the
`photograph, it is a very close image. And on the right it is a
`little more distant. And that is, one could argue, potentially, a
`difference.
`Interestingly enough, and I raise this because the
`Board did make some findings in the initial first petition with
`respect to distal images and the distance away. And I want to
`make sure that we capture that here because this issue actually
`was dealt with in the prosecution of this case.
`In the file wrapper, the one reference that was cited
`on slide 9, you can see very much the same kind of situation.
`The Foltz reference is from a distance. And the
`examiner looked right at this. And the examiner actually --
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`and I go to slide 10 -- he made an observation there. He said,
`"the claimed design" -- this is on slide 10, the top quote
`there -- "the claimed design is a photograph of insulation
`material that was taken at a much closer distance than the
`photograph of the Foltz building insulation material."
`Then below he says, the mere change from a
`photograph, which shows the insulation material at a distance
`to a close-up shot doesn't alter the fact that you can use this as
`a reference.
`And in the prosecution, on slide 11, I am just
`lifting literal text in the boxes there. The examiner took note
`of the fact that this is insulation material, the fact that one is
`from a distance and one is closer up in terms of the -- of the
`distance and scale. It doesn't change the outcome. It doesn't
`play a role in affecting the efficacy of the reference in terms of
`analyzing it for purposes of anticipation or obviousness.
`JUDGE DANIELS: Mr. Sipiora, let me ask one
`question. Can I -- let's look at slide -- let's look at your slide
`9.
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`MR. SIPIORA: Yes, sir.
`JUDGE DANIELS: If I recall correctly, one of the
`arguments that Patent Owner makes, and I believe it was made
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`in the prosecution history, is that this -- the color here in Foltz
`is the difference between the lightness of the yellow as
`opposed to a distinct hue. Is that the argument that was made?
`MR. SIPIORA: Yes. The argument was made, not
`based on color per se, yellow or brown, but there was a
`variation of distinct hue. That was the difference. And Foltz,
`the prior art reference, didn't disclose a variation of distinct
`hue. It showed lightness, which is another aspect of color.
`Remember, chroma, lightness, and hue are the three
`attributes of color. He distinguished based on lightness. All
`we're seeing in Foltz is lightness of yellow, not a variation of
`distinct hue. That was the distinction made.
`JUDGE DANIELS: How -- how would you -- how
`would you determine as a person looking at this the difference
`between whether a color is lighter or whether it is a different
`hue?
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`MR. SIPIORA: I don't know that an ordinary
`observer can do it. One of our problems with the language of
`variation of distinct hue, which is not subject to challenge on
`this ground in this proceeding, is that it is very difficult to
`understand that, what that means and how it would be applied.
`I think what we have relied upon and the Board has
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`relied upon is the idea that if you can look at differences where
`you can actually perceive a difference in color, like cream and
`brown, then you are now talking about more of the nature of
`hue. Remember that hue in the color wheel is the
`circumference of that circle. And as you move around that
`circle, you are actually changing colors.
`So when you see a different color you are seeing a
`different hue as you move around. So if you saw green or
`blue, those are different hue. You can be in the same color,
`potentially, and have different hues in the same color in that
`wheel, but if you do see a different color, you are seeing
`different hue.
`And I think that's where visually we can see when
`we look at the reference we're relying upon, you can see the
`cream and brown. And now you know there is a difference.
`That's all we can rely upon at this point because we didn't have
`anything other than, of course, Dr. Bide, we tried to do it
`scientifically and do that difference. And we made a real pitch
`for that.
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`We think it is legitimate to say, listen, in this
`context, how do you distinguish it scientifically? You look at
`a variation of hue and looking at hue angle. That's Dr. Bide
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`did using somewhat arbitrarily, I would suspect, 36.3 was what
`you measured for the reference, but agreed it is a difficult
`thing to ascertain, but in this case we would submit you can
`make the distinction as you have in the Institution decision by
`finding brown and cream, those being sufficiently apart that
`you can know there is a difference there, a variation in hue.
`JUDGE DANIELS: Thank you.
`MR. SIPIORA: Thank you.
`JUDGE KALAN: Counsel, you have addressed
`distance here and also color. In our previous decision we had
`also talked about the variable lighting issue and then whether
`the mixture of colors was more or less pronounced between the
`patented -- the claimed design and Exhibit 100 -- in that case it
`was JM Spin- Glas, but here 1004 and 1005.
`What -- because the images may be so similar and
`just different color, how do you address those arguments in
`this context?
`MR. SIPIORA: Well, I would refer you to slide 12.
`And, I mean, the idea is you can see the front edge if you have
`slide 12 in front of you. On the front edge on the right side,
`you can see that there is a clear nice light on the top, nice clear
`angle on it, and you can see in that image for 1004 all the
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`things we have talked about. It is insulation. It has cloud- like
`appearance. It has the swirl variation, swirl pattern. And it
`has obviously got the molded cover on it, kind of the waffling
`on it. You can see that.
`And you can see the -- the brown, obviously, and
`you can see as well the cream color of the light whiteness in
`there as well.
`So this figure for 1004, we would submit, is the
`way you can make that determination. And the light doesn't
`really play a role when you look at kind of the front edge of
`this figure.
`JUDGE KALAN: But the Patent Owner's
`criticizing this as looking like mud or clay or being more
`mottled and not having the same marbelizing. Who should be
`really making that call?
`MR. SIPIORA: I think it is from this perspective,
`on anticipation, it is the ordinary observer. And I will say for
`the record the ordinary observer in this case is really anyone.
`Their expert, Dr. Schloss, said, Exhibit 2010,
`paragraph 14 said, "specifically the ordinary observer appears
`to have characteristics similar to the general population with
`normal color vision." And that's a quote.
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`In these circumstances, really, the ordinary
`observer is someone who can look at a piece of insulation and
`make a determination whether they see this variation. If you
`can't see the variation because the language is no good, that's a
`separate problem with the patent. That's not before us.
`But anticipation here, when you look at this
`reference, you can see the swirl pattern. I mean, this is
`language that was used by -- in the prosecution history, and
`they have accepted. I mean, this additional language that you
`are talking about, the muddy and so forth, their expert brought
`in. That is really, we think, properly rejected.
`In the prosecution history, language was used;
`variations in swirl pattern, cloud- like appearance, variation of
`distinct hue, obviously by the patentee himself. This is all
`language appropriately used and accepted. And it has been
`accepted by Knauf in this proceeding.
`This additional language doesn't lend any more
`light on the subject. It doesn't help us at all. And under
`Egyptian Goddess, we shouldn't be adding language that isn't
`helpful; additional terminology or language.
`One can look at this and observe all the things
`talked about in your claim construction. They are all there.
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`And for that reason, we would submit, this is anticipation as
`you found in your Institution decision.
`Is that helpful?
`JUDGE KALAN: Thank you.
`MR. SIPIORA: Thank you. I am just about out of
`time. Let me briefly say same arguments with respect to 1005.
`I will just move to slide 15.
`The Board has already found in its previous
`decision, Institution decision, that the overall appearance of
`the claimed insulation material and JM 1997 brochure is
`essentially the same. That was at page 24 of the Institution
`decision.
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`And the Board made a similar finding with respect
`to 1005. At page 25, the overall appearance of the claimed
`insulation material in JM 2000 brochure is essentially the
`same. We would simply ask you to stick with what you found.
`It was appropriate. It was right. Those elements are all
`present. And on that basis, anticipation is there.
`One last point is I just want to make clear we did
`argue, and we would still adhere to this, with respect to both
`designs, even if you divorced from language, even if you didn't
`use any of the file wrapper language, which is appropriate and
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`has been accepted by the parties, if you just look at these two
`designs in terms of brown and cream insulation and brown and
`cream insulation, which is what is an alternative offered by the
`patentee, we would argue as we do in our petition on pages 51
`through 53, there is still anticipation. It is still there.
`That is brown and cream insulation on the left; that
`is brown and cream insulation on the right. For that reason we
`would submit either way, whether you use words, which we
`think are appropriate, because of the file wrapper and the
`limitation of claim that was made by distinguishing prior art or
`simply looking at the design, just looking at it without words,
`either way, as you previously found, you should find
`anticipation.
`I think my time is up. My additional slide 17
`through 26 run through the argument you already know, that
`the references 1004, 1005, Rosen references. They have all the
`elements. And we're just looking for one element, which is the
`variation of distinct hue.
`We did the hue angle measurement with respect to
`1008 and 1010. You can use the hue angle measurement to
`find variation of distinct hue or you can look at them, as you
`did in your Institution decision. Either way. They show a
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`variation of distinct hue.
`And to the extent you didn't find it present in this
`reference, for whatever reason, there is obviously a reason to
`combine these and use them. And we would submit that that's
`separate grounds as you have previously found, grounds 1 and
`2 for finding obviousness.
`If there are no further questions, I will reserve the
`rest of my time.
`JUDGE DANIELS: Nothing further from me.
`Thank you.
`MR. SIPIORA: Thank you.
`MR. LARSEN: Good afternoon, Your Honor.
`JUDGE WORTH: Before you begin, I just want to
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`take --
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`MR. LARSEN: I'm sorry.
`JUDGE WORTH: I want to take a brief one-minute
`technical break.
`MR. LARSEN: Thank you, Your Honor.
`(Pause in the proceedings.)
`JUDGE WORTH: All set here.
`JUDGE DANIELS: Before we -- before we begin,
`Mr. Larsen, let me -- I believe you are going to jump right
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`into, it looks like from you
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