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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`
`ADIDAS AG,
`Petitioner,
`
`v.
`
`NIKE, INC.,
`Patent Owner.
`______________
`
`Case IPR2016-00921 (Patent 7,814,598 B2)
` Case IPR2016-00922 (Patent 8,226,749 B2)1
`_______________
`
`Record of Oral Hearing
`Held: November 15, 2018
`_______________
`
`
`
`
`Before JOSIAH C. COCKS, JAMES B. ARPIN, and SCOTT A. DANIELS,
`Administrative Patent Judges.
`
`
`
`
`1 This Transcript applies to each of the listed cases. We exercise our
`discretion to issue one Transcript to be docketed in each case. The parties
`are not authorized to use a multiple case caption.
`
`

`

`Case IPR2016-00921 (Patent 7,814,598 B2)
`Case IPR2016-00922 (Patent 8,226,749 B2)
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`MITCHELL G. STOCKWELL, ESQUIRE
`VAIBHAV P. KADABA, ESQUIRE
`TIFFANY L. WILLIAMS, ESQUIRE
`Kilpatrick, Townsend & Stockton, LLP
`1100 Peachtree Street NE
`Suite 2800
`Atlanta, Georgia 30309
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`CHRISTOPHER J. RENK, ESQUIRE
`MICHAEL J. HARRIS, ESQUIRE
`Banner & Witcoff, LTD.
`71 South Wacker Drive,
`Suite 3600
`Chicago, Illinois 60606
`
`
`
`
`The above-entitled matter came on for hearing on Thursday,
`
`November 15, 2018, commencing at 1:00 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
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`2
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`

`

`Case IPR2016-00921 (Patent 7,814,598 B2)
`Case IPR2016-00922 (Patent 8,226,749 B2)
`
`
`P R O C E E D I N G S
`- - - - -
`JUDGE ARPIN: Good morning. This is an additional oral hearing
`for IPR2016-00921 and IPR2016-00922. I would like to address a couple of
`housekeeping issues before we begin. The first is, do we have a court
`reporter on the line?
`THE REPORTER: Yes, I am here.
`JUDGE ARPIN: Are you able to hear me clearly?
`THE REPORTER: Yes, I am, thank you.
`JUDGE ARPIN: Have you been given the demonstratives that
`were provided by the parties?
`THE REPORTER: I have received those, yes.
`JUDGE ARPIN: Okay, good. Because this is a telephonic hearing
`and because we have a court reporter on the line and because of the utmost
`importance in keeping an accurate record of the hearing, I would ask each
`speaker to identify himself or herself before speaking. And that goes for the
`judges as well. I would ask that no party or judge, to the extent possible as
`far as the judges are concerned, interrupt. And should anyone object to
`anything said by the other party, if you could please wait until it is your turn
`to speak before mentioning those objections. If there is a last speaker who
`does not have is another opportunity to speak at the end of the hearing, I will
`offer the opportunity for someone to make or raise an objection. And I
`would also ask the parties in particular to take a breath every now and then
`so that we can jump in with questions.
`Further, we have received no objections to this point to any of the
`demonstratives, and there was no request for a prehearing conference to
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`Case IPR2016-00921 (Patent 7,814,598 B2)
`Case IPR2016-00922 (Patent 8,226,749 B2)
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`discuss this hearing or to raise objections to the demonstratives. And also,
`we've received no call informing us that any of the lead counsel would be
`absent. So we are working under the assumption that there are currently no
`objections to the demonstratives and that all the lead counsel are present.
`With that, I would like to have a roll call of the parties here in part
`so that we can make sure that the court reporter can hear everyone clearly. I
`would ask the court reporter if she has any difficulty hearing or
`understanding any of the speakers to please let us know now so we can
`hopefully correct it early on.
`Also, it goes without saying that I hope that the parties have found
`a quiet place, a place where they will not be disturbed during the course of
`this hearing so that we are not interrupted by anyone outside the hearing.
`The last thing I would like to point out also is although the Board
`did not make the call-in number public, the number was given to the parties,
`and if they gave it to anyone else to listen in, we have no objection to that.
`I'm not aware that there is any confidential material being presented during
`this hearing and I'm not aware that there is any confidential material in the
`file, but if either party intends to present any confidential information and
`they have given out the number, there is not really that much I can do about
`that.
`
`So with that, I would ask the petitioner to identify who is here on
`petitioner's behalf.
`MR. STOCKWELL: Your Honor, this is Mitch Stockwell with
`Kilpatrick Townsend on behalf of petitioner, Adidas. And with me are Mr.
`Vaibhav Kadaba, Ms. Tiffany Williams and Mr. Michael Morlock, also with
`Killpatrick Townsend.
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`Case IPR2016-00921 (Patent 7,814,598 B2)
`Case IPR2016-00922 (Patent 8,226,749 B2)
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`
`JUDGE ARPIN: Thank you very much, petitioner.
`Did you have any problem hearing the petitioner, court reporter.
`THE REPORTER: No, I could hear very well. Thank you.
`JUDGE ARPIN: Patent owner, would you please give us a roll
`call of who is here for the patent owner.
`MR. HARRIS: Good morning, Your Honor. This is Michael
`Harris within Banner & Witcoff on behalf of patent owner. And with me
`this morning is Chris Renk, also of Banner & Witcoff for patent owner.
`JUDGE ARPIN: Thank you very much, patent owner. Court
`reporter, could you hear clearly the patent owner?
`THE REPORTER: Yes, I could.
`JUDGE ARPIN: All right. The arguments that will be presented
`today will be limited to those that were authorized in the order. And I would
`ask all speakers, and this is for the benefit of the judges who have your
`demonstratives on our computer screens and for the court reporter, that you
`identify the slide number of your demonstrative that you are speaking about
`during your presentation. And if you mention any particular exhibit or
`paper, that you identify that exhibit or paper clearly, and if possible, the page
`number that you are referring to because that will allow the judges in
`particular to be able to go to that particular page in the file.
`I will be keeping time and will try to inform the parties of how
`much time they have remaining either until their time is up or until their
`rebuttal limitations are approaching. But I encourage the speakers to keep
`track of their time as well. And I would again remind the parties that
`although any member or any counsel for the petitioner or patent owner may
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`Case IPR2016-00921 (Patent 7,814,598 B2)
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`speak, it is crucial for the clarity of the record that the speaker identify
`himself or herself before speaking.
`With that, I think that we are ready to begin unless either party has
`any questions before we begin. Petitioner, do you have any questions at this
`time?
`
`MR. STOCKWELL: No, Your Honor. I did want to note that
`with respect to the parties' exhibits, the parties' counsel worked out the
`majority of objections but agreed to reserve a few objections, to the extent it
`was necessary to raise them during the hearing on the merits. But otherwise
`we worked out the majority of the objections.
`JUDGE ARPIN: Thank you very much. The panel, of course,
`always appreciates it when the parties work together to try to resolve things
`before the hearing. And if you do have objections, just please remember my
`admonition a few minutes ago to please wait until it's your opportunity to
`speak to raise those. It just becomes a very confused hearing if there are
`constant interruptions.
`With that, patent owner, do you have any questions at this time?
`MR. HARRIS: No, we don't, Your Honor. Thank you.
`JUDGE ARPIN: Since the petitioner has requested this hearing,
`petitioner will go first in accordance with the order. And we granted
`30 minutes to each side for this hearing. I would like to ask petitioner how
`much time do you wish to reserve?
`MR. STOCKWELL: Seven minutes, Your Honor.
`JUDGE ARPIN: Thank you very much. I will try to advise you
`shortly before that. And of course if we are asking a lot of questions that eat
`up your time, we may grant some additional time if we think it's appropriate.
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`Case IPR2016-00921 (Patent 7,814,598 B2)
`Case IPR2016-00922 (Patent 8,226,749 B2)
`
`
`With that, if you'll give me one second to set my timer, we can
`begin. Petitioner, whenever you are ready.
`MR. STOCKWELL: This is Mitchell Stockwell for the petitioner,
`Your Honor. Thank you. Adidas believes these claims are invalid on the
`merits, and we think that's especially true in light of the findings the Board
`has made on Nishida and the other Graham factors.
`Now, as set forth in slide 2 of our demonstratives, we've put
`forward the particularity standard of the statute because Nike has sought to
`avoid the merits and focus on particularity. But as we can see in the
`language on slide 2, particularity is really a threshold requirement for, as the
`statute says, the petition to be considered.
`I would like to note that the statute itself explains what the
`particularity requirement applies to, the claims, the grounds and the
`supporting evidence. It also, in subsection 4, allows the director to request
`additional other information as the director may require. The most relevant
`rule is 42.104(b)(4). That's the part of the CFR in which the director said the
`petition must specify where each element of the claim is found in the prior
`art.
`
`JUDGE ARPIN: Counselor, this is Judge Arpin. I have a
`question. Just about two weeks ago in the Acceleration Bay case, Judge
`Moore reminded us, though, that the particularity standard applies all the
`way through.
`MR. STOCKWELL: Your Honor, I think oftentimes what
`happens with particularity is the Federal Circuit, as they did in the Harmonic
`case, cites the fact that particularity applies to the petition and then follows
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`Case IPR2016-00921 (Patent 7,814,598 B2)
`Case IPR2016-00922 (Patent 8,226,749 B2)
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`the cite up with a statement along the lines that the preponderant evidence
`burden applies all the way through.
`I would point out, Your Honor, that assuming particularity applies
`in the face of the mandate, we think the petition easily meets the Board's
`own rules and requirements, but we believe that particularity is simply a
`threshold requirement. And I think that's particularly important in this case.
`If you step back and look at the Federal Circuit's mandate, the
`mandate requires this Board to promptly issue a written decision. A written
`decision is defined in Section 112 -- sorry, in the statute Section 318. And
`that says if an inter partes review is instituted, the Board shall issue a final
`written decision with respect to the patentability of any claim. And we
`contend that in this instance where the Federal Circuit mandate requires a
`written decision, the written decision must address the merits, the
`patentability.
`I would also point out this Board's own precedential decision limits
`and holdings establishes that Section 312 sets forth requirements that must
`be satisfied for the Board to give consideration to the petition, but a lapse in
`compliance does not deprive the Board of jurisdiction.
`And another context under Section 312(a), the Board has agreed
`and only at most adjusted the filing date when a fee payment was late or a
`real party in interest was supplemented. Some of the other subsections of
`subsection 312(a), the subsection 1 deals with the payment of the fee and
`subsection 2 deals with real parties in interest. So in our view, the mandate
`requires the Board to actually address the patentability of the claims and not
`merely address particularity.
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`Case IPR2016-00921 (Patent 7,814,598 B2)
`Case IPR2016-00922 (Patent 8,226,749 B2)
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`
`JUDGE ARPIN: This is Judge Arpin again. But the determination
`or a final written decision on patentability may be that the claims are either
`unpatentable or not unpatentable, and that may, in fact, depend on whether
`or not the argument was made with sufficient particularity for us to
`determine that the petitioner has met its burden of showing by a
`preponderance of the evidence; isn't that correct?
`MR. STOCKWELL: I view those as separate requirements, just as
`Section 312 is separate from Section 318. In the Board's institution decision
`it did not make a finding that the petition was not establishing a reasonable
`likelihood of invalidity. It simply made a finding as to particularity.
`Particularity is not the same. It's a notice function. And in this case, at no
`point has Nike ever complained about that it lacked sufficient notice.
`Even if the Board applies particularity in the face of the mandate,
`we think the petition easily meets the Board's own rules and requirements.
`And if you could look at slide 3, I think you need to bear in mind the nature
`of the claims in assessing particularity. If you look at representative claim 1,
`it describes a simultaneously knitted element with differing textures that is
`removed and incorporated into a shoe.
`Now, shoes have long had different textile features incorporated,
`and the key feature here appears to be the simultaneously knitting an
`element with different textures. These are broad claims and we think they
`are squarely described in the prior art. Apologies, Your Honor.
`JUDGE ARPIN: Go ahead, please. Finish your thought, please.
`MR. STOCKWELL: The Board's initial objection was that the
`claim charts contained bulk citations. But as you can see in the excerpt and
`material from the petition, in satisfying particularity, with we not only
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`Case IPR2016-00921 (Patent 7,814,598 B2)
`Case IPR2016-00922 (Patent 8,226,749 B2)
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`provided claim charts, but we described the references and provided an
`overview of the combination which we've color-coded here to match up the
`parts of the claim with the parts of the references that we've cited on slide 3.
`JUDGE ARPIN: Counselor, again, this is Judge Arpin. The
`interesting thing about this, and I'm looking at the 921 petition right now,
`and on page, I guess it's 33 and 34, you do have those sections that you
`color-coded. But then at the claim-by-claim analysis you say the chart
`below shows that Castello, Fujiwara and Nishida disclose all of the
`limitations of claim 1, and in each of the blocks aligning an element of the
`claim with the alleged support except for the final one, you list each of the
`references, Castello, Fujiwara and Nishida, as supporting elements.
`With regard to the 922 petition, you go even further. Not only do
`you have the same type of claim chart, but referring to page 39 of the
`petition in the 922 case, you say that both Castello and Fujiwara produce the
`simultaneous knitting limitation, and then you go on to say that on page 42
`that Nishida also shows the limitations that are shown by Castello and
`Fujiwara.
`So I'm questioning how are we supposed to read, how are we, as
`the Board, supposed to read these claim charts and the text when they don't
`appear to line up?
`MR. STOCKWELL: So Your Honor, if you could look at slide 4,
`I think your question kind of goes to the point the institution decision made
`that Nike has seized on that the petition contains parallel citations to the
`references but did not address whether one was cumulative over another.
`And I want to take that in two parts.
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`Case IPR2016-00922 (Patent 8,226,749 B2)
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`
`First on the law, there is no requirement in case law or rule,
`according to the Board or the cases, to explain whether a cited reference is
`cumulative over another. If you look at the Graham quote here, Graham
`requires explaining differences between the prior art and the claims. Not
`differences amongst prior art references. And as we pointed out, In re
`Gorman specifically says there's nothing wrong with citing multiple
`references in an obviousness combination, especially where the prior art uses
`elements for the same purpose. That was the case for Castello and Fujiwara.
`And I would also point out that this Board has a number of
`decisions in which it has found that notwithstanding citation of multiple
`instances of where an element is found either in a cited art reference, a
`particular cited prior art or in multiple, that still adheres to the particularity
`requirement. For example, Apple v. VirnetX, IPR-2015-00811, Paper 8 at
`12, the Board rejected exactly that contention that's citing multiple instances
`somehow as a failure to show particularity because the statute simply
`requires and the rule simply requires pointing out where the material is in the
`prior art and made exactly the same point that we have, quote, the more
`examples provided do not show a weakness in the petition, as patent owner
`alleges, but rather show the breadth of disclosure of the particular limitation
`and the cited reference.
`To the same effect is the United Patents Inc., v. Universal Security
`Registry, IPR2018-00067, Paper 14 at 14, where the Board rejected the
`patent owner's contention that the petition lacked sufficient particularity and
`specificity because it asserts that multiple references teach the same
`limitations. In that case, Your Honor, I looked at the actual petition, ground
`1 of which relied on three references just as Adidas does.
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`Case IPR2016-00921 (Patent 7,814,598 B2)
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`
`So simply because the presentation of the references cited to the
`references for showing -- each reference showing some of the same elements
`does not render the petition so insufficiently particular that it doesn't meet
`the minimal requirements of the statute and the regulation.
`And I would point out that at no point did Nike complain
`otherwise. And to find something different at this point would be
`inconsistent with the Board's practice.
`And I would also say it's also inconsistent with the way in which
`we presented ground 1 based on Nishida and Reed which was accepted by
`the Board. In terms of presentation of ground 1, which appears on pages 13
`and 19 of the petition for the '749 patent, that's seven pages, we presented
`ground 2 in eight pages, if you look at the way those were structured, it was
`a parallel structure. Ground 1 and ground 2 presented a chart with respect to
`element A, D and E and a chart and textual summary with respect to
`elements B and C. The charts used the same format in which we cited to the
`references, and we gave C also citations and cited Reed and Nishida as
`showing some of those references. And indeed, Your Honor, in this Board's
`own findings with respect to the instituted ground 1, as you can see in some
`of the other demonstrative slides, you often found that Reed and/or Nishida
`disclosed the particular element in question. So I would submit, Your
`Honor, that both the law and the facts establish here that the particularity
`hurdle was simply inapplicable to this petition.
`JUDGE ARPIN: Counselor, this is Judge Arpin again. First of all,
`with regard to the cases that you identified, none of those are precedential,
`correct?
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`Case IPR2016-00921 (Patent 7,814,598 B2)
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`
`MR. STOCKWELL: The Lumentin case is a precedential case,
`Your Honor.
`JUDGE ARPIN: On this point?
`MR. STOCKWELL: It is certainly precedential on the point that
`this is not a jurisdictional requirement of the Board, absolutely.
`JUDGE ARPIN: Not a jurisdictional requirement, but not the
`actual finding of whether particularity in that particular instance is binding
`on us in some way now?
`MR. STOCKWELL: I don't believe that case addressed the
`particularity aspect of the statute. That's correct, Your Honor.
`JUDGE ARPIN: And each of these cases involve a different
`combination of references which have to be weighed on themselves -- or as a
`themselves and in light of the arguments made in the petition, I think,
`wouldn't you agree?
`MR. STOCKWELL: Yes, but I would also, as I pointed out, Your
`Honor, ground 1 was presented in the same format with the same parallel
`citations, and the Board actually found that Nishida or Reed disclosed those
`elements.
`JUDGE ARPIN: Let's turn to that ground 1, for example, in the
`final written decision. And I'm looking at, this is Paper 21 of the
`IPR2016-00921 case. We found with regard to the first limitation or the
`preamble, actually, that Reed or Reed in combination with Nishida showed
`that limitation. So the second limitation we found that Reed alone showed
`that combination. So not Reed or Nishida, but the first one was Reed or
`Reed and Nishida. And the second was Reed alone. The third limitation we
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`said Reed or Nishida alone or together. And I guess the fourth limitation
`was Nishida alone.
`So there are only two limitations, and of those, there were only
`three elements that petitioner even argued that the two references both
`showed that. And we didn't agree in at least two of those cases or two of
`those -- with respect to two of those limitations.
`And then we went on to look at whether or not the two pieces of
`art, there was a teaching to combine them. Now in this second ground we
`are dealing with three limitations. And we are dealing with conflicting art,
`in our estimation -- or in our estimation at the time of the institution,
`conflicting statements as to which grounds or which references were relied
`on for each limitation.
`MR. STOCKWELL: I apologize, Your Honor, can you specify
`where you are dealing with -- I had not heard that question before where you
`believe we are dealing with conflicting.
`JUDGE ARPIN: Let's go to your slide 3 where you have
`identified particular references by your color coding, the orange color coding
`showing the first element taught by Castello, the green highlighting showing
`that apparently the second element was taught by Fujiwara, then the third
`element again allegedly taught by Castello, and then the fourth element
`taught by Nishida by the orange, green, blue and yellow color coding. That
`was in your section beginning on page 31, I guess, of the 921 petition and 34
`of the 922 petition. But then your claim chart lists all of the references as
`showing all of the elements except for the final element which you say only
`Nishida shows. That's with regard to 921, and there's no further explanation
`after the claim chart in 921. In the 922 petition, you go on as I quoted earlier
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`Case IPR2016-00921 (Patent 7,814,598 B2)
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`to say in particular in some of the sections that both Castello and Fujiwara or
`Nishida also describes the limitations which seems to be not the same as
`your introductory section.
`MR. STOCKWELL: But Your Honor, first off, I would point out
`that the introductory section also does reference Castello as teaching the
`same element as Fujiwara. And if you look at our petition, we actually said
`when Castello and Fujiwara were cited for the same proposition we used --
`we actually said similarly, Fujiwara discloses. The reason Castello is the
`primary reference relied upon here is that Castello teaches the wide-tube
`machine, and we rely on it only for dependent claims 9 and 19.
`For other elements, we were clear in saying here is the description
`of Castello, for example, for element 1B on page 38 of the '749 petition.
`And then we said Fujiwara similarly explains for element 1C on page 41.
`We described where Castello disclosed that element and then said similar to
`Castello, Fujiwara describes that.
`Where we rely on Fujiwara particularly was that unlike Castello,
`which we contended disclosed an outline in the form of the collar which was
`shown in the figure, Castello actually more expressly described that by
`actually describing an outline, the same language as stated in the claims.
`Thoroughly we relied on Fujiwara for a birds-eye knit for showing the
`apertures in which shoelaces were placed. And we also relied on Nishida for
`showing forming apertures in which shoelaces were placed, another
`dependent claim. The Board has already found, of course, that Nishida
`teaches apertures for shoelaces. So just because we relied on Fujiwara in
`some instances that had more clear description than Castello does not render
`the petition as insufficient and lacking notice. We clearly identified, as the
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`Case IPR2016-00922 (Patent 8,226,749 B2)
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`statute and the rules require, where in Castello and where in Fujiwara we
`were relying on those portions of the prior art references.
`JUDGE ARPIN: Counselor, again, this is Judge Arpin, and I'm
`looking at your slide 3. Your slide 3 doesn't talk about Fujiwara and
`Castello. It talks about Castello. And now, you know, when I read the
`language of your petition, it says a person -- and I'm reading from page 39 of
`the 922 petition. It says a person of ordinary skill in the relevant art, at least
`as of March 3, 2004, would have understood that the textile element and the
`surrounding textile structure of both Castello and Fujiwara are produced
`simultaneously. So I'm having a difficult time reconciling your preliminary
`statement on pages 31 through 33 of the 921 petition and 34 through 35 of
`the 922 petition with this kind of language. Or in the case of the 921
`language, we don't even have this. We just have the claim chart.
`MR. STOCKWELL: Well, I believe, Your Honor, that language is
`also in the 921 petition. With respect to the language that you refer to on
`page 39, it is true both Castello and Fujiwara produce a textile element
`simultaneously in a surrounding textile structure. And we point to that
`disclosure on pages 39 and 40 precisely for that proposition. And again, that
`is a situation where we point out that, in fact, these references do both teach
`that but that just because Fujiwara may be cumulative in some aspects of
`Castello does not render the combination inappropriate or legally infirm.
`And it certainly still satisfies the particularity requirement.
`JUDGE ARPIN: Counselor, this is Judge Arpin. You have about
`a minute-and-a-half left before you reach your reserved time, and I would
`like to ask you one other question about the three-reference combination. In
`a decision of just two days ago in the WhatsApp v. TriPlay case it was noted
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`that the Board had erred in considering the combination of two references
`and whether there was a reason to combine them, but the Federal Circuit
`remanded to us because they said that's not the same question as whether the
`three references would be combined.
`Now, in order to combine the three references, we must know what
`you are using each reference for. Don't you agree with that?
`MR. STOCKWELL: I agree to the extent that you need to refer to
`a particular element within a reference to fulfill the combination. In a
`situation like this where we clearly set forth where the Fujiwara disclosure
`was similar to and therefore somewhat cumulative over the Castello
`disclosure, you wouldn't need to make that combination. And again, with
`respect to Fujiwara in particular, we cited that for the fact that the pattern is
`expressly described as well as the bird's eye stitch. And we provided the
`alternative, which is standard practice before this Board, of providing
`alternative citations to other references or portions of the references.
`JUDGE ARPIN: Counselor, this is Judge Arpin again. You have
`reached your 23 minutes and have the seven minutes remaining. If you
`would like to wrap up before reserving or if there is more you would like to
`say and you would like to go into your reserved time, please let us know.
`MR. STOCKWELL: Thank you for the warning, Your Honor. I
`would simply point out that we did also address, to your question about
`motivation, the motivation is to modify. We set that forth in your papers as
`well as on slides 19 and 20. There's clearly a motivation to reduce costs and
`extend these known techniques to produce shoe uppers. And we've provided
`the testimony from Mr. Holden, both in his deposition and in his declaration.
`I will reserve the rest of my time, Your Honor. Thank you.
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`JUDGE ARPIN: Counselor, you have six minutes remaining.
`JUDGE DANIELS: This is Judge Daniels. Judge Arpin, do you
`mind if I ask a question?
`JUDGE ARPIN: Certainly. And we'll not have it eat into
`petitioner's time.
`JUDGE DANIELS: Is it fair to characterize your argument, fair to
`summarize it as -- our particularity requirement of 312(a) has been looked at
`by the Board as a lack of evidence or a lack of explanation of how the
`evidence applies to each claim. Whereas, here what you have is perhaps an
`overabundance of evidence. And I think you used the word "cumulative",
`which would contrast with a lack of evidence. Is that a fair way to couch it?
`MR. STOCKWELL: Well, I certainly -- I don't know that I would
`agree that we have an overabundance of evidence, Your Honor, but I
`certainly understand that was the point that Judge Arpin was making. I think
`my principal argument with respect to particularity is that the statute and the
`rule is clear. Our job was to identify where in the reference we were relying
`upon that evidence. We fulfilled that to the extent particularity still applies
`in these proceedings.
`JUDGE DANIELS: Right. And then you went on to explain
`where it may be in other references; is that right?
`MR. STOCKWELL: Correct.
`JUDGE DANIELS: So that is not confusing to us, but even if it is
`confusing to us, it still meets the particularity requirement?
`MR. STOCKWELL: Correct.
`JUDGE DANIELS: Thank you.
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`JUDGE ARPIN: This is Judge Arpin. Judge Cocks, do you have
`any questions you would like to ask?
`JUDGE COCKS: This is Judge Cocks. No, not at this time.
`Thank you.
`JUDGE ARPIN: Thank you very much, petitioner. You will have
`six minutes for your rebuttal or your reserved time. And with that, I'm going
`to ask patent owner whether they would like to begin. And I think our
`current procedure is to allow the patent owner to reserve a certain amount of
`time as well. So patent owner, is there a certain amount of time that you
`would like to reserve?
`MR. HARRIS: Thank you, Your Honor. This is Michael Harris
`for patent owner, and we'