UNITED STATES PATENT AND TRADEMARK OFFICE
`___________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________
`
`POLARIS INDUSTRIES INC.
`Petitioner,
`
`v.
`
`ARCTIC CAT INC.
`Patent Owner.
`___________
`
`Case IPR2016-01917
`Patent 7,669,678 B2
`___________
`
`Record of Oral Hearing
`Held: November 17, 2017
`___________
`
`
`
`
`Before MICHAEL W. KIM, SCOTT A. DANIELS, and SCOTT C. MOORE,
`Administrative Patent Judges.
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`Case IPR2016-01917
`Patent 7,669,678 B2
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`CYRUS MORTON, ESQUIRE
`RYAN DORNBERGER, ESQUIRE
`ROBINS KAPLAN
`800 LaSalle Avenue
`Suite 2800
`Minneapolis, Minnesota 55402
`(612) 349-8722
`cmorton@robinskaplan.com
`
`
`
`
`
`
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`JASON JACKSON, ESQUIRE
`SARA WEILERT GILLETTE, ESQUIRE
`KUTAK ROCK, LLP
`2 Pershing Square
`2300 Main Street
`Suite No. 800
`Kansas City, Missouri 64108-2416
`(314) 283-5222
`jason.jackson@kutakrock.com
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`The above-entitled matter came on for hearing Friday, November 17, 2017,
`commencing at 12:30 p.m., at the U.S. Patent and Trademark Office, 600 Dulany
`Street, Alexandria, Virginia.
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`Case IPR2016-01917
`Patent 7,669,678 B2
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`P R O C E E D I N G S
`JUDGE KIM: So this is the final hearing for IPR2016-1917. Polaris
`
`Industries Incorporated versus Arctic Cat Incorporated.
`
`MR. MORTON: Yes, Your Honor. Again, this is Cyrus Morton of Robins
`Kaplan for Petitioner Polaris. With me is Ryan Dornberger at Counsel table, and
`Andrew Hedden from our offices.
`
`JUDGE KIM: Thank you.
`
`Patent Owner.
`
`MR. JACKSON: Your Honor, this is Jason Jackson for Patent Owner,
`Arctic Cat. My colleague Sara Gillette will be arguing this case.
`
`JUDGE KIM: Thank you very much.
`
`Okay. So again 45 minutes. So Polaris, please come up. And
`approximately how much time would you like to reserve?
`
`MR. MORTON: I'm going to try to get done in about a half hour, and then I
`want to give Mr. Dornberger five minutes to address our motion to exclude.
`
`JUDGE KIM: Thank you for reminding me of that.
`
`And then before we begin, Patent Owner's Counselor, how much time would
`you like for the last word on the motion to exclude itself other than 45 minutes?
`
`MR. JACKSON: Five minutes would be adequate.
`
`JUDGE KIM: Thank you.
`
`You may begin.
`
`MR. MORTON: Thank you, Your Honor. May it please the Board, hello
`again. The 678 patent simply calls for a body panel for a vehicle that has smooth
`and textured portions near the leg of the rider. And moving to slide 3, the example
`shown in the patent is an ATV. So we've relied on ATV prior art for our primary
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`Case IPR2016-01917
`Patent 7,669,678 B2
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`reference. Claim 1 is not limited to ATV's, it could cover motorcycles or other
`straddle-ridden vehicles. Now, as you can see here, again, slide 3 in figure 1, the
`point is simply to texture some of the areas that could be scratched or scuffed by
`the rider getting on and off, leaving other areas smooth and shiny. So there'll be
`smooth areas that might also get scratched, but just for appearances you texture
`some of that area. Exactly where or how much to have textured versus smooth, it's
`up to the aesthetic tastes of the designer, whatever they want to do. Other than
`having smooth and textured portions in the general region, you see within the
`cargo racks and around the leg of the rider there's nothing in the patent claims that
`specifies any particular design. So if I skip to slide 5 in our grounds, our petition is
`based on the fact that all aspects of the claims were not just known, but were
`extremely well-known by 2004 when the patent was filed. And we propose three
`grounds: Each relies on Tamashima, which is a design patent, as the primary
`reference. In ground one, it was Melonio, which gives the basics of injection
`molding and putting texture into whatever you want, versus smooth on an injection
`molding plastic compound you would like. In ground two we've added
`Matsubayashi with the idea of having a unitary body panel on an ATV. And then
`we have a slightly different ground, Tamashima taught with Kia, and Kia is talking
`about smooth and textured portions on vehicle body panels including recreational
`vehicles.
`
`So our petition, important point I think, Your Honor, includes our analysis
`by our expert Dr. Scott. He has a PhD in Chemical Engineering; he is a former
`MIT professor in the department of material science; taught polymer engineering.
`Dr. Scott has conducted an extensive review of the art, with a thorough explanation
`of the obviousness of the invention. And so I realize at this point, the institution
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`stage, that was just reasonable likelihood of the invalidity. But in response, during
`the trial, Arctic Cat has only submitted a largely irrelevant expert declaration that
`is never mentioned or cited or discussed anywhere in the Patent Owner's response.
`So the record for the trial is that Dr. Scott's analysis, which supported the
`institution decision, is un-rebutted: He was not deposed, he's not been challenged
`in any way. And I think on that basis alone we've met the preponderance of the
`evidence standard now that would need to meet the challenged claim.
`
`JUDGE KIM: Counsel, don't we have a duty to actually read what's in the
`declaration? If there's some ridiculous points in there, it'd be like, "Okay, it's not
`challenged but it's not credible."
`
`MR. MORTON: Yes. Two responses to that, Your Honor. First, I don't
`think there's any ridiculous positions in the declaration. And second, all the
`reasons I'm going to cover here today are pretty much covered in the institution
`decision. And they're all correct, all those conclusions remain unchallenged.
`They're very good reasons to find all the claims invalid on all three grounds. So
`moving to ground 1A, Tamashima plus Melonio, and I'll move to slide 7. As I
`mentioned, our primary reference is a design patent to Tamashima. And just a
`moment about relying on the design patent: As our reply brief shows, when they
`challenged us on the point, we know there were actually ATV's with smooth and
`textured body panels, as claimed. But we need a printed publication here to start
`from. And you can't always see smooth and texturing in photographs from old
`articles or whatever. So we have a design patent that shows here two different
`surfaces on a body panel, on a fender, in the region where the rider, they make
`contact. So we have the two different surfaces; we have the right location; one it
`shows smooth, the other is depicted with stippling. We have other design patterns
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`showing the same, we could rely on the Lin reference which we cited shows the
`same thing.
`
`Now, as we analyzed Tamashima, the law here is undisputed, no dispute in
`the trial, this is the correct law. Drawings in design patents are evaluated, quote,
`On the basis of what they reasonably disclose and suggest to one of skill in the art.
`So that's what we've focused on, that's what our expert has focused on, is what
`would Tamashima suggest. And he said those two different surfaces could be
`three things: It could be a different color; it could be a different material; or it
`could be smooth and texturing. Those are really the three options, a very limited
`number of options a person of skill in the art could consider. And I know we're
`going to hear a lot today. Arctic Cat went out and found a commercial product
`made by Kawasaki who owns that patent. Which in that patent it shows -- well, it's
`two different colors, there's red and black, and you'll see that. I think if you look
`closely, to me the black looks to be textured. So it looks to me like in the
`commercial embodiment they decided to use two of the three options: "We'll have
`it be black plastic that we also texture to hide as much of the scratching as we can."
`But anyway, the main point of that is that's really not the question. The question
`is: What does the Tamashima design patent disclose or suggest to one of skill in
`the art? And it suggests all three. And since that's really as far as I can tell, the
`main issue, the most substantial issue in the case, I do want to spend some time
`going through our analysis, Dr. Scott's analysis, to support what one of skill in the
`art would think when looking at Tamashima.
`
`JUDGE KIM: Counsel, I just want to clarify what you meant: Are we
`saying now that -- because I think in the petition it's a little ambiguous saying you
`rely exclusively on Tamashima for the stippling. I think that's a little different than
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`saying there's two things, there's two areas if you will, and that you can vary the
`second area by texturing or color or -- I forget the third thing, material I believe.
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`MR. MORTON: Yeah. I think that's exactly what Dr. Scott said. There's
`another slide that gives me the cite. But there are limited number of options, and
`those are what they are.
`
`JUDGE KIM: So you're not exclusively saying Tamashima has stippling
`like a hundred percent. Is that right?
`
`MR. MORTON: Well it has stippling, I'm a hundred percent sure of that.
`That stippling could depict more than one thing. So we haven't said that this must
`disclose only smooth and texturing. We've said it discloses two surfaces in the
`right area for these claims, and those two different surfaces could be one of three
`things: Could be different color, different material, or it could be texturing.
`
`JUDGE KIM: I meant texturing. You're not saying that a hundred percent
`-- you don't need any more to disclose texturing based on just that figure?
`
`MR. MORTON: We need to know that a person of skill in the art would
`immediately recognize those three options, one of which is texturing. I mean, it's
`an obviousness ground, it's a combination.
`
`JUDGE KIM: That's what I was trying to get at.
`
`MR. MORTON: The texturing itself, does it have to be texturing? I'm
`going to fill that in now.
`
`JUDGE DANIELS: Mr. Morton, is there an issue of this being a design
`patent and how -- when we have an ordinary designer who would look at this, as
`opposed to a person with ordinary still in the art?
`
`MR. MORTON: I really don't think so. I think the design patent is clear for
`what it shows, it discloses to a person of skill in the art. This whole invention,
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`Your Honor, is basically an aesthetic component. If you want to add some
`texturing, you can add some texturing along with smooth, however much or
`however little you want. So there is an aspect of this entire proceeding that this is
`basically a design choice from the get-go. But as far as person of skill in the art,
`we've given a definition that hasn't been challenged, and agreed to. And that's the
`lens with which Dr. Scott looked at all the prior art.
`
`JUDGE DANIELS: What I was just thinking of was from the aspect of the
`designer, when they're designing these -- when they're looking at a design patent,
`they may see something different. This goes to the heart of what you're saying,
`what do they understand that stippling to be? I'm just sort of asking the question
`because I think that whether a designer of ordinary skill or a person of ordinary
`skill in the art as we generally look at utility patents, they tend to be the same. And
`probably as your argument, this could be a different surface, as well as coloring, as
`well as something you never mentioned which is, we use stippling quite a bit to
`show shadow in designs. Isn't that correct?
`
`MR. MORTON: That probably is correct. That could be in one of the
`MPEP options. I don't think that's ever been something urged in this trial. That's
`not shadowing, that's not something going on there. There's no dispute that it could
`be one of the three options I mentioned. They're just trying to argue, as you'll see,
`that the commercial embodiment that they found, is a black plastic.
`
`JUDGE DANIELS: Thank you.
`
`MR. MORTON: So the prior art -- this idea of having two different surfaces
`goes back. It's almost as old as the automobile. And citing here on slide 9, the
`Shaw graph, it has a bumper with a smooth surface, and then the part that's likely
`to get scratched has a different grainy surface to it to hide those scratches. So that
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`idea is as old as the hills. Moving up in time, I have two patents here, showing
`specifically the issue of scratching which related to the riders --
`
`JUDGE MOORE: What slide are you on, counselor?
`
`MR. MORTON: Slide 10, Your Honor. Slide 10 shows the
`Fergueson/Paterno references. One of them has scuff pads by the fender on the
`outside of the vehicle; the other has the same basic thing on the inside of the
`vehicle. Again, the idea of scuffing up the body surface or body panel with the
`feet of the legs, known and addressed since the 50's and '60's. Moving up further, I
`mentioned claim 1 could cover motorcycles. In the motorcycle art, it's been noted
`on these two references, Wolanski and Gentile, that the gas tank in the middle, near
`the legs, near the knees of the rider, could get scuffed up. So they have a
`protective covering they put over there to prevent those scratches, getting on and
`off the vehicle in the motorcycle art. Then we have -- so none of that, Your
`Honors, is for injection-molded parts. Injection molding became ubiquitous, I
`think in the '60's. What I have here on slide 12 is Melonio, which elaborates on
`that to say that injection-molded plastic parts, you can make, quote, any design.
`Any design may be formed as a design relief on the inner surface of the cavity of
`the mold, so articles formed in the cavity will have the design embossed therein.
`So when you're using your mold, anything you put on the mold you can put on the
`plastic-molded parts. That's been known for a long time. So now that we have
`injection-molded parts, I step ahead to slide 13 in the Johnson reference, which
`discloses injection-molded plastic parts. This is a rack on off-road recreational
`vehicles. And it says, "Well, you would make this using injection molding in a
`single manufacturing step." Says, "It provides substantial savings in manufactured
`steps in labor." And down below it says, "The addition of unique aesthetic nuances,
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`style, character, or function can be easily accommodated in many circumstances."
`So it's saying use molding, saying it saves money, and it is saying you can put
`whatever aesthetic nuances you want on the surface of whatever plastic part that
`you're molding for an ATV.
`
`Moving forward, the idea of unitarily molding more than one part, or what
`might be considered more than one part. In slide 14, Matsubayashi reference
`covers this in good detail. It has an integrally molded fender and storage
`compartment area. So really the whole entire back half of the vehicle that you're
`looking at there is molded in one part. And it says that that gives the reason why
`you would do that. At the bottom it says, "It's advantageous for many reasons
`including relatively low manufacturing cost, increased structural strength and
`rigidity, attractive appearance, et cetera." So it tells you exactly why you would
`make a unitary part, more than one part to it. Rondeau basically says the same
`thing at slide 15.
`
`Finally, let's apply what we know about scratching and wanting to do
`something about it, to plastic parts. The Umemoto reference in slide 16 says,
`"Almost all conventional bumpers made of polypropylene have roughened or
`textured surfaces to reduce the susceptibility to scratching." So that's the exact
`issue that's supposedly addressed in the patent. Finally -- I think I'm finally close
`here -- on Kia and Hovatter, we have plastic vehicle body panels explicitly with
`smooth and textured portions on them. Hovatter says they're good for
`snowmobiles, lawn tractors, and the like. Kia we'll talk about more later as our
`second ground. But with all those, we have the scratching problem; we have what
`to do about it; we have smooth and textured on the same article; we have using
`texturing to prevent scratches on ATV's and other vehicles, if you're going to hit it
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`with your foot or something else. So that's the backdrop by which we then analyze
`the Tamashima reference.
`
`So I am now on slide 19. Again, this ground is Tamashima plus Melonio.
`So we have Tamashima again showing two different surfaces in the right area.
`Melonio is saying you can design that any way like, any design you want to put on
`there. And in light of that background that I've given, that's the basis for saying
`that this is obvious. Couple more points on that obviousness ground, Your Honors:
`One, our expert Dr. Scott goes through an analysis to make sure even where the
`claims say not just rider contact but leg and knee contact. He goes in detail to
`explain why the parts that are stippled in Tamashima would receive knee contact.
`Basically, you lift your knee to get on a straddle-ridden vehicle, you're going to
`bump the area all along the side and even closer down by the foot well, depending
`on how you get on and off. So that's covered in slide 20 by Dr. Scott.
`
`So when you look at all that, this statement from KSR really is the core legal
`basis for this type of a ground. "When there is a design need or market pressure to
`solve a problem, there are a finite number of identified, predictable solutions. A
`person of ordinary skill has good reason to pursue the known options within his or
`her technical grasp." And that's what you have here. You have some areas you
`want to have be a little bit different to avoid scratching. There's a finite number of
`solutions, and clearly one of them is texturing.
`
`The motivation to combine, Your Honors, I've already given it somewhat by
`looking at slide 22. We first basically give the cost-savings option, so if you want
`to have some smooth, some textured, there'd be some cost savings, if you mold that
`unitarily as it's well-known how to do. And then the other motivation to combine
`is simply the scratching problem, the motivation to create this invention. That's at
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`slide 23. We covered this in detail in our petition. Well-known that textured
`plastic was effective in hiding scratching, and we cite some of the art that I've
`pointed to today. Now, on the specific claim elements, I think I've covered claim 1
`pretty fully here today. I mean, there it is, those are the areas of Tamashima, we
`cited our expert. On the other claims, there are just a few issues that Arctic Cat has
`raised during the trial, so we'll address them for the sake of completeness. All the
`other claims really talk about is, trying to suggest where to put the texturing, which
`is all obvious for reasons that we've given but I'll address the issues. Slide 25,
`claim 2 requires that the texturing be on a fender. And we've defined a fender -- I
`think we proposed it would be any structure over the wheel. Based on a dictionary
`definition here that it's a guard over the wheel, and the spec says it protects the
`rider from debris that's thrown up. So that's what a fender is. They've taken some
`issue with that, and said that a fender is really a guard over a wheel, it's not any
`structure over a wheel. And we're fine with that, Your Honor. I think they may be
`trying to construe their own construction. We'll see what arguments they make,
`but it is a structure, a guard -- whatever you like to call it -- over the wheel, that
`protects the rider from debris.
`
`JUDGE KIM: Right. As I read their arguments, there is some difference in
`that -- I don't know, a piece of paper maybe would be --
`
`MR. MORTON: Fair enough. Again, we're fine with a guard. I don't think
`there needs to be a claim construction dispute here, I don't think there is one. We're
`fine with a guard over the wheel.
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`JUDGE KIM: And then your position -- I guess their position is that the
`Kawasaki doesn't identify structure, doesn't do enough to prevent debris from
`reaching the rider?
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`MR. MORTON: Yeah. Which that argument doesn't make any sense to me,
`
`because if you removed -- in the Kawasaki commercial body, if you removed the
`red part, it's shiny, that would be bad: Debris would be thrown up and hit the rider.
`If you removed the black part -- it looks black, and to me it looks textured -- that
`would also be bad, there'd be debris that would be thrown up and hit the rider. So
`to have a complete fender that blocks debris from hitting the rider, as it says in the
`challenged patent it must do, you need the whole thing.
`
`JUDGE KIM: Is it structurally -- what is there is enough?
`
`MR. MORTON: If you have the whole thing, yeah. The whole thing is a
`fender, the red and the black put together, that's what you need to cover the wheel
`and protect the rider from debris.
`
`JUDGE KIM: I guess structurally it's sufficient to prevent debris?
`
`MR. MORTON: Yeah. Pretty much. The way that's laid out is a very
`standard ATV layout. And all of the different ATV's, some of them have it in one
`part, two parts, three parts, it's all unitarily molded. But the whole structure that's
`over the wheel, that is what you need to protect the rider from debris, just
`practically thinking about it, that's a fact.
`
`The other term that comes up is "frequent rider contact zone". I don't think
`there's any dispute -- in fact I know there's not, they've agreed that -- what was our
`construction of this? This is slide 26 -- an area the rider typically contacts during
`operation of the vehicle or mounting or dismounting. It's basically the whole area
`between the cargo racks when you look at one. But the Defendant claims/attempts
`to say other things about this: That say frequent rider leg contact and leg and knee
`contact. Now, we've said they'd all refer to the same area, because leg and the
`knee can contact all of the same areas between the cargo racks. Arctic Cat, first
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`part, still says that they are different terms because the words are different, but they
`haven't made any argument about what the difference is. They certainly have
`never said, "Well, here's prior art that shows texturing in an area of rider contact
`but not leg and knee contact." So there's no substance to it. There's no other
`definition. So I think the situation is the same as it was in institution: That there's
`no need to construe these terms in order to find all the claims obvious.
`
`Next we have "adjacent". For "adjacent" we have -- well, we've argued it
`both ways. So this doesn't matter, I don't think, to the obviousness, but we've said
`that what is yellow on Tamashima, that stippled portion, is adjacent because it's
`near. Art affirmation is near, that's based on slide 25. "Not distant; nearby" is the
`first definition of adjacent in the dictionary. And they also use adjacent different
`ways in the spec, so to be consistent -- they've argued here that it means "next to".
`Or sometimes they might say touching or close to touching. So we've argued, and
`put in evidence from our experts, that the red portion that has been added on
`Tamashima, it has to be there. That's also obvious for all the reasons we've given
`and cited here in slide 28. And we've pointed out, it hasn't been disputed at all by
`Arctic Cat, that they pointed in the litigation -- they pointed texture, and that is not
`right next to the seat as the claim element is. Just something that's near it would
`count in the litigation. And we all know you can argue the same construction in
`both forms and you can argue broader here and a little narrower in Court. But you
`can't argue narrower here and broader in Court. So --
`
`JUDGE KIM: I'm sorry. Is there a limit to "near"? Is an inch "near"?
`
`MR. MORTON: It's a term of degree. And like I've said, we've put in our
`evidence that that's pretty near what's in the yellow. Somebody gets on, they're
`going to hit that with their knee. You can see where the seat is, you can see where
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`the texturing is. But it's a term of degree that's not provided any further definition
`in the spec. So I think under the broadest reasonable interpretation it's going to
`include what we've pointed to.
`
`I think I've pretty much covered this. There is the issue of load contact. The
`rider includes the load, this is for claim 10. But we've pointed out the stippling in
`Tamashima, and it extends by the front cargo racks, front and back units. Just to
`give a brief Minnesota example -- these are both Northern Minnesota companies
`where people deer hunt. And they go out, and they collect the deer that they get
`with a four-wheeler. And believe me if you drive a deer up onto one of those cargo
`racks, you're going to scrape or scruff right where that red portion is in
`Tamashima. So whatever "Load contact" means, we've covered it.
`
`Ground 1B, I'm now into slide 34, we're very quick on this ground: If there
`was some argument that Tamashima plus Melonio doesn't disclose specifically
`unitary body panel -- you could put in one panel -- Matsubayashi says, "Make one
`panel for huge areas of the ATV, and do that for reasons to combine." Right in
`Matsubayashi, "low manufacturing cost, increased structural strength and rigidity,
`attractive appearance." So all of those reasons to combine are right there in
`Matsubayashi. Ground 2 -- I realize I'm getting down on my time, so I'll go pretty
`quick on ground 2 -- is the time that's showing my 35 or my 45?
`
`JUDGE KIM: That's 35, Sir.
`
`MR. MORTON: 35, I got lots of time.
`
`Ground 2, Tamashima plus Kia. So obviously we're starting with the same
`Tamashima reference for the same reason: Two different surfaces on an ATV in
`the right location, limited number of options. Kia then provides the options. So
`Kia talks about kind of the history of injection-molding; discloses the old forms of
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`injection-molding using the steel mold. You can put anything you want in there.
`The actual disclosure of Kia, looking at slide 38, they're coming up with a new
`mold process. It uses a little bit different way to use a film, and you put it in the
`mold, so you can change it out more rapidly. You can change out whatever you're
`adding. But what matters is: It says you can make any decorative pattern that you
`want, on this slide, and at the bottom it says, "Advantageously the film layers have
`multiple areas of texturing, or can have some smooth and some textured areas." So
`it's explicit, smooth and textured areas, in one body panel. And this is for slide 39,
`"automotive interior or exterior panels, shower and bathroom applications, marine
`and recreational vehicle applications, et cetera." So it's saying you can do this --
`and it repeats the smooth and textured at the bottom of slide 39. That's what Kia
`provides.
`
`So Tamashima plus Kia renders the claims obvious, and basically smooth
`and textured surfaces on vehicle body panels to address scratching is just
`extremely well-known. The only thing in the path is where to put it. And we get
`that from Tamashima and the motorcycle art that says the same thing. So the
`claims are obvious, and we request confirmation and cancellation based on all
`three grounds.
`
`JUDGE KIM: You're up.
`
`MR. DORNBERGER: Good afternoon, Your Honors. I am Ryan
`Dornberger from Robins Kaplan on behalf of Polaris. I'll be discussing two issues
`today: The motion to exclude and Petitioner's objections to Patent Owner's
`demonstrative exhibits. They're really kind of together, so I'll discuss them
`together. First --
`
`JUDGE KIM: Starting with the demonstrative exhibits, did we have notice
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`of this?
`
`MR. DORNBERGER: Yes, Your Honor, we sent the Board an e-mail this
`week, I believe on Tuesday, requesting a conference call outlining Petitioner's
`objections. We did not hear back from the Board, but I believe that is in the
`record.
`
`JUDGE KIM: I see. Why don't you go to the first issue first, and we'll
`address the same issue?
`
`MR. DORNBERGER: Certainly, Your Honor. And they're sort of related,
`so maybe I can address them at the same time. Going to the motion to exclude,
`here on slide 41, it's really two groups of exhibits. Exhibit 2011 is a declaration
`from Patent Owner's expert witness, Clinton Cowen. And that is also the subject to
`Polaris's objections to Patent Owner's demonstrative exhibits. The second group of
`exhibits are Exhibits 2012 through 2018. Those deal with product offerings from
`third-party manufacturers in 2017, that Patent Owner's relying on to try to show
`what was available in late 1990's or early 2000’s, Kawasaki ATV's. And I'll start
`with Exhibit 2011 -- I don't have a slide for that. But Patent Owner admits, Your
`Honors, that they do not rely on or otherwise cite to the declaration of Clinton
`Cowen in any of those papers. So therefore it is not relevant to anything in this
`proceeding. If you look at the motion to exclude, we cite to the Celgard case.
`There, the Patent Owner has submitted two exhibits, and in the record they have
`never cited to any of the art. The Board excluded those references as irrelevant.
`The same would apply here. Exhibit 2011, this was never cited, even though the
`Patent Owner chose to put it in the record, they didn't cite to it. If I may, Your
`Honors, I'll segue that into Petitioner's objections to the demonstrative exhibits. It's
`the same issue. Demonstrative slide No. 23, the Patent Owner submitted, I think
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`two days ago, includes a quote from this declaration. Even if the Board were not
`to exclude Exhibit 2011 from the record, it would still be improper to include that
`quote on slide 23 for Patent Owner's demonstrative exhibits, simply because they
`chose not to cite it. And these demonstrative exhibits are not new arguments.
`They're not new evidence either. I understand that Patent Owner contends they
`made an argument in their response, and they quoted portions that may support
`this. But if that were the case, they could have