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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`EDWARDS LIFESCIENCES CORPORATION,
`Petitioner,
`
`v.
`
`BOSTON SCIENTIFIC SCIMED, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-00060
`Patent 8,992,608 B2
`____________
`
`Record of Oral Hearing
`Held: December 19, 2017
`____________
`
`
`
`
`Before NEIL T. POWELL, JAMES A. TARTAL, and ROBERT L.
`KINDER, Administrative Patent Judges.
`
`
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`NON-PUBLIC VERSION – PROTECTIVE ORDER MATERIAL
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`EDWARDS LIFESCIENCES CORPORATION,
`Petitioner,
`
`v.
`
`BOSTON SCIENTIFIC SCIMED, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-00060
`Patent 8,992,608 B2
`____________
`
`Record of Oral Hearing
`Held: December 19, 2017
`____________
`
`
`
`
`Before NEIL T. POWELL, JAMES A. TARTAL, and ROBERT L.
`KINDER, Administrative Patent Judges.
`
`
`
`NON-PUBLIC VERSION – PROTECTIVE ORDER MATERIAL
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`NON-PUBLIC VERSION – PROTECTIVE ORDER MATERIAL
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`Case IPR2017-00060
`Patent 8,992,608 B2
`
`
`APPEARANCES:
`
`ON BEHALF OF PETITIONER:
`
`
`GREGORY S. CORDREY, ESQUIRE
`Jeffer Mangels Butler & Mitchell LLP
`3 Park Plaza
`Suite 1100
`Irving, California 92614
`
`and
`
`BRIAN EGAN, ESQUIRE
`Morris Nichols LLP
`1201 North Market Street
`16th Floor
`Wilmington, Delaware 19899-1347
`
`
`
`ON BEHALF OF PATENT OWNER:
`
`
`MATTHEW WOLF, ESQUIRE
`MARC A. COHN, ESQUIRE
`Arnold & Porter Kaye Scholer LLP
`601 Massachusetts Avenue, N.W.
`Washington, D.C. 20001-3743
`
`
`
`The above-entitled matter came on for hearing on Tuesday, December
`
`19, 2017, commencing at 1:04 p.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
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`Case IPR2017-00060
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`P R O C E E D I N G S
`- - - - -
`JUDGE TARTAL: Good afternoon and welcome. We are here for
`the final hearing in an Inter Partes Review, case captioned Edwards
`Lifesciences Corporation, Petitioner, versus Boston Scientific Scimed,
`Incorporated, Patent Owner, Case IPR2017-00060, concerning U.S. Patent
`Number 8,992,608 B2.
`First, let me begin by introducing the panel. I'm joined by Judge
`Powell and Judge Kinder and I'm Judge Tartal. May we please have
`appearances from the parties? Who do we have today for Petitioner?
`MR. CORDREY: Greg Cordrey. I'm lead counsel for the
`Petitioner, Edwards Lifesciences.
`MR. EGAN: Good afternoon. Brian Egan on behalf of Petitioner
`
`as well.
`
`Cohn.
`
`JUDGE TARTAL: And for Patent Owner who do we have today?
`MR. WOLF: Good afternoon. Matt Wolf and with me is Marc
`
`JUDGE TARTAL: And, Mr. Wolf, are you the current designated
`lead counsel?
`MS. SKLENAR: Your Honor, I am, Jennifer Sklenar.
`JUDGE TARTAL: Okay. And who will be doing the argument
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`today?
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`MS. SKLENAR: Mr. Cohn and Mr. Wolf are going to split it.
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`JUDGE TARTAL: Okay. Thank you.
`We set forth the procedure for today's hearing in our Trial Order.
`Each party will have 40 minutes total time to present arguments in the case.
`As an initial matter, both parties have filed objections to certain
`demonstrative slides. First, we remind the parties that demonstrative slides
`are not evidence and will not be relied on for purposes of a final written
`decision.
`Have the objections to the demonstratives been resolved? And I'll
`start with Petitioner, the objections that you filed with regards to Patent
`Owner's demonstratives, are they still at issue or --
`MR. CORDREY: We were able to resolve some of them, but the
`objections that we filed with the Board are unresolved.
`JUDGE TARTAL: Okay. And then for Patent Owner, were the
`objections that you filed with Petitioner's demonstratives resolved?
`MR. WOLF: The same, Your Honor.
`JUDGE TARTAL: Okay. So the ones that you filed in your
`objections are the ones that are still pending?
`MR. WOLF: Yes, Your Honor.
`JUDGE TARTAL: So then just to clarify, the sets of
`demonstratives that were submitted in advance to the Board are the sets that
`you are using today for Petitioner?
`MR. CORDREY: Yes, they are and we do have an objection here.
`We understand that the Patent Owner now has submitted with its filing this
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`morning or I guess about an hour ago its demonstrative exhibits pursuant to
`the Board's order. In doing so, they apparently re-ordered the exhibit
`numbers, so that's going to throw things off, but we've been working off the
`order of the exhibits and the numbering implied in that order when they were
`served on the Board. So that's the copy that we've been working on last
`week. So, for example, our objections referred to the slides that were served
`on the Board, those numbers.
`In addition, obviously our presentation today we had incorporated
`certain of their slides and, of course, the numbers that we used refer to the
`version that was served on the Board last week.
`JUDGE TARTAL: Okay. And so for Patent Owner, were the
`demonstratives that were filed today, how are they different from what was
`provided to the Board?
`MR. WOLF: Only in order, Your Honor. We triaged them, so we
`-- so it became less important as we worked through the arguments. So
`that's all we did is move things around. There's no difference in the slides.
`We removed the titles from slides actually that would address a couple
`objections. So the only difference between what you got a week ago and
`what you got this morning is this morning there were no titles on the slides.
`There's actually no substantive difference at all.
`JUDGE TARTAL: Did you have anything else, Petitioner?
`MR. CORDREY: No, I was just going to point out that they did
`remove the titles and so --
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`JUDGE TARTAL: Okay. We are aware of the objections that
`have been raised that were filed and, as necessary, may address the issues
`raised with a particular slide if it is used today. Otherwise, we will reserve
`ruling on the objections to demonstratives until after the oral arguments.
`And because of the numbering of the slides, it may take a moment for us to
`identify if there's a slide that's out of order, but we'll have copies that are
`available to us.
`We also remind each party that under no circumstances are they to
`interrupt the other party while that party is presenting its arguments and
`demonstratives. For example, please do not interrupt counsel to object to a
`slide. When it is your opportunity to speak, you may address your
`objections to demonstratives out of the total time provided for argument, if
`you so choose.
`I would suggest there may be one exception which is if -- and we'll
`get to this in the related matter. If there is an issue with confidential
`information and it's been raised by opposing counsel, if the other counsel
`identifies a concern over confidential information, rather than objecting or
`making a scene out of it, if they could, you know, identify that it is an issue
`at that point in time, that would be fine.
`MR. CORDREY: Your Honor, what we had proposed and we
`submitted this to the Board was that we've agreed -- the parties agreed that
`for purposes of the oral argument that we would display the unredacted
`versions of the demonstrative exhibits that have confidential information and
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`that the parties would be able to discuss those here in the hearing in order to
`facilitate discussion rather than having to use redacted versions.
`However, the parties have agreed that those documents, those
`confidential documents will retain their confidentiality designations pursuant
`to the protective orders in the IPR and also in the District of Delaware where
`there's co-pending litigation. So that was our proposal as how we'd like to
`proceed today.
`JUDGE TARTAL: Okay. So if I understand you correctly, the --
`and what I understand the proposal was, is that you will use the redacted
`versions of the slides for your presentation today and that you haven't
`requested a closed hearing at any point in time.
`MR. CORDREY: The unredacted versions.
`JUDGE TARTAL: You want to use the -- I'm sorry.
`MR. CORDREY: Unredacted versions.
`JUDGE TARTAL: You will use the unredacted versions --
`MR. CORDREY: Correct.
`JUDGE TARTAL: -- for display.
`MR. CORDREY: Yes. We have agreed that that would facilitate
`the discussion today rather than trying to deal with the redactions in the
`documents.
`JUDGE TARTAL: Okay. Sorry, I didn't --
`MR. CORDREY: That's okay.
`JUDGE TARTAL: -- understand --
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`MR. CORDREY: But we do ask, though, because obviously we
`have a transcript that's being prepared that we -- that the transcript be
`designated initially confidential while we have an opportunity after the
`hearing to, you know, determine which portions need to remain confidential
`and which portions can be undesignated.
`JUDGE TARTAL: Okay. We will take that request under
`consideration. I'm not sure offhand how we would handle that, so let me
`think about it.
`I know both parties filed copies of the redacted versions of the
`demonstratives as exhibits today. Petitioner, did you file a motion to seal
`with that filing?
`MR. CORDREY: No, Your Honor. We filed copies of the
`redacted version and then -- publicly and then we filed copies of the
`unredacted versions privately.
`JUDGE TARTAL: Okay. I believe we've directed the parties in
`the past that anytime a document is filed with limited access to the public, a
`Motion to Seal has to accompany that filing, just as support showing as to
`why it would be designated as confidential. So that would need to be filed
`for both the Petitioner's and the Patent Owner's redacted versions of the
`slides.
`
`MR. CORDREY: We'll do that.
`JUDGE TARTAL: And then we'll have the related issue as to if
`the redacted version wasn't used during the hearing, whether that's still
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`relevant or not, but that may resolve itself, depending upon what slides are
`used by the parties' today.
`Were there any other preliminary issues from Petitioner?
`MR. CORDREY: No, Your Honor. Obviously there's a pending
`Motion to Exclude as well, separate and apart from the issues before the
`Court, but at this point we don't have anything in terms of preliminary.
`JUDGE TARTAL: Okay. So the Motion to Exclude, you're
`referring to the expert testimony and -- is that the Motion to Exclude?
`MR. CORDREY: That's correct, Your Owner. The Patent Owner
`has filed a Motion to Exclude the declarations of our expert.
`JUDGE TARTAL: Right. Okay. We will not address that issue
`in terms of ruling on it at this point in time. We'll reserve ruling until the
`final decision. But to the extent that you feel you need to address it during
`your time allocated to provide oral argument you can, but we won't be
`resolving it today.
`Are there any other questions from Patent Owner?
`MR. WOLF: No, Your Honor.
`JUDGE TARTAL: Okay. Thank you. Petitioner has the burden
`of proof and will go first. The Patent Owner will then present opposition
`arguments for the case. And then to the extent Petitioner has reserved time,
`Petitioner will present arguments in reply for the case.
`For clarity of the transcript, when you refer to an exhibit on the
`screen, please state for the record the exhibit and page number or for
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`demonstratives the slide number to which you are referring and we will
`understand that the slide numbers that you're referring to are the slide
`numbers pertaining to the version of demonstratives that have been filed as
`exhibits in this case, not the original version that was sent as a courtesy copy
`to the Board.
`Petitioner, would you like to reserve any specific amount of time
`for the rebuttal?
`MR. CORDREY: We would. We'd like to reserve 20 minutes for
`rebuttal.
`JUDGE TARTAL: And so out of the total of 40 minutes, that
`would provide 20 minutes for your initial argument.
`Counsel, you may proceed when you are ready.
`MR. CORDREY: I have hard copies of the demonstrative slides
`for the Board. May I --
`JUDGE TARTAL: Yes, please.
`MR. CORDREY: So there's two sets. The top set is the
`unredacted version that we'll be presenting today.
`JUDGE TARTAL: Thank you.
`MR. CORDREY: Is the Board ready?
`JUDGE TARTAL: Yes.
`MR. CORDREY: Good afternoon, Your Honors. May it please
`the Board, my name is Greg Cordrey. As you know, I'm here today with my
`colleague, Mr. Egan. This morning or this afternoon I'll be addressing the
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`obviousness arguments. Mr. Egan will take on the issues of secondary
`considerations. Given the time constraints, I won't be able to obviously walk
`through all of the demonstrative exhibits that we filed, but I will be referring
`to certain exhibits as we go through in the discussion as any evidence cited
`in our papers.
`Now, in the Petition the Petitioner demonstrated that Claims 1
`through 4 are obvious. Nothing in this trial has changed that conclusion.
`The Patent Owner in response has relied heavily on secondary
`considerations. But as Mr. Egan will explain, those secondary
`considerations are irrelevant, they lack merit and even if they were
`accredited, they don't overcome the strong showing of obviousness in this
`case.
`
`Next slide. Now, let's talk about the '608 patent. Figure 13 in the
`'608 patent describes the problem of paravalvular leakage, and you can see
`that it's the blue valve prosthesis in blue, the native valve, the native leaflets
`in orange, and then the leakage of the blood in between. The '608 patent
`purports to solve this problem by using a fabric seal that forms flaps, and
`those claimed embodiments are shown in Figures 32, 33 and 34.
`Next slide, please, slide 4. Now, the problem with leaks caused by
`irregular vessels is not a new problem. In fact, it's been known since the
`advent of surgical heart valves in the 1960s and then later it was a problem
`with stent grafts and further disclosed more recently with THVs.
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`JUDGE TARTAL: Counsel, let me just ask, I think this may be
`one of the slides that have been objected to. Is there support in the record
`for the Bergheim reference that's indicated on slide number 4?
`MR. CORDREY: There is support in the record for the Bergheim
`reference. It's at page 4 of Petitioner's Reply. We have a discussion of the
`fact that a person of ordinary skill in the art would have understood that a
`fabric seal addresses both PVL and migration, and we referred to our
`expert's declaration, Exhibit 1045 at paragraph 30, and our expert relies on
`Bergheim and includes, in fact, the language that's quoted in the slide.
`JUDGE TARTAL: Okay. Thank you. And I don't intend to
`interrupt for every one of the objections that are there, but I just wanted to
`get some idea as to where there is support when it's been --
`MR. CORDREY: Understood.
`JUDGE TARTAL: -- challenged.
`MR. CORDREY: So the problem of leaks caused by irregular
`vessels was known and, again, it was well-known in surgical valves, stent
`grafts and THVs.
`If I could have slide 5. Now, the solution to that also was
`well-known. Fabric seals were one of a number of tools in the toolbox of a
`person of ordinary skill in the art to address PVL and, again, they come from
`the surgical world, the stent graft world and THVs. Other solutions were
`also known from the toolbox and that would include proper sizing,
`oversizing, valve placement, and improved imaging techniques.
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`Can I go to slide 18?
`So specifically in this IPR we have three grounds at issue. We
`have obviousness based on Spencer in combination with Elliot, Thornton
`and Cook. Now, the only disputed limitation in Spencer is the claimed flap
`limitation. Elliot, Thornton and Cook all disclose the use of fabric seals to
`seal the irregular tissue. Notably, Elliot, Thornton and Cook also were not
`part of the prosecution history of the '608 patent.
`If we could go to slide 22.
`Now, the Patent Owner raises four arguments in its papers in
`response to our showing of obviousness. The first two issues relate to what
`the Patent Owner has characterized that there's no motivation to combine.
`The third is the Patent Owner's contention that Elliot, Thornton and Cook
`don't disclose the claimed flaps and then, of course, they rely on secondary
`considerations.
`Can I have the next slide, please, 23?
`So let's turn to the first issue. The Patent Owner contends that
`Elliot, Thornton and Cook are intended only for use in healthy tissue, rather
`than calcified tissue.
`Let me see slide 24. Now, this distinction that the Patent Owner
`has relied upon is not a claimed distinction and here we have the language of
`Claim 1 that describes the flaps and where the fabric seal comprises flaps
`that extend into spaces formed by the native leaflets. And you'll notice
`there's nothing in the claim language about the native leaflets being
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`calcified, so this is a completely artificial distinction that the Patent Owner is
`relying upon in this case.
`In fact, the Patent Owner in its papers and its declarations mention
`calcification 75 times. And yet if you look at the specification of the '608,
`you won't find that word in any of its form at all.
`Let's see the next slide.
`Now, at their depositions, we cross examined the Patent Owner's
`experts and they confirmed that their expert opinions in this matter are based
`on the assumption that the claims require some degree of calcification and so
`we've highlighted the evidence in slide 25 for Dr. Manganaro.
`Can we see slide 26?
`And here's the evidence for Dr. Brecker, same admission.
`Now, can we see slide 27?
`Significantly at Dr. Brecker's deposition when he was pressed, he
`actually conceded and admitted that the claims are broader and cover what
`he called a condition which he described as pure aortic regurgitation. Now,
`the important thing about that condition, and I won't get into the details
`unless the Board asks questions, is that he described it that it's a condition
`where the leaflets have no calcium. So this is a condition where the
`distinction they've made, he's now admitting the claims are broader and
`cover other conditions where there's no calcification in the tissue.
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`JUDGE TARTAL: Counsel, is the distinction based only on
`calcification or is there a property that's present in the native valve leaflets
`that differentiate from other applications?
`MR. CORDREY: The characteristics that they've identified in
`native valve leaflets or in the aortic annulus versus other parts of the aorta
`was the calcification, and their expert, Manganaro, goes on at length about
`the differences, the supposed differences in the calcification that you'd have
`in the native leaflets versus the aorta.
`But as I'll get to and as the evidence in this record shows, there's no
`support for that. You can look all day through Dr. Manganaro's declaration
`and not once does he cite any authority or any evidence for that proposition.
`And, in fact, we have evidence in the record, Exhibit 1060, for example,
`which is a peer published journal article that says that aortic calcification is
`prevalent. And, in fact, it's common in anybody over age 70, it's almost a
`near certainty that you'll have calcification in the aorta. And even more
`importantly, Elliot and Thornton themselves specifically discuss the use of
`their fabric seals in a calcified environment.
`If I could see slide 28.
`Now, the Patent Owner has tried to pigeonhole Elliot, Thornton
`and Cook as being related only to aortic -- abdominal aortic aneurysms, that
`specific application, and, again this is consistent with their characterization
`of the calcification, the supposed differences between an aorta and the aortic
`annulus. But, in fact, if you look at Elliot, Thornton and Cook, their
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`Case IPR2017-00060
`Patent 8,992,608 B2
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`teachings are much broader. Elliot, for example, even states that it's not
`limited to endovascular grafts and stent grafts.
`If I could see slide 29.
`And those skilled in the art, for instance, knew that the fabric
`sealing technology of stent grafts and THVs was interchangeable and so on
`Exhibit 29 -- I'm sorry, slide 29 we have Exhibit 1009 which is the patent of
`Pavcnik.
`Now, what's interesting about Pavcnik is that Pavcnik discloses an
`embodiment that's both a heart value, as you can see in paragraph 67
`highlights, and in a separate embodiment, Figure 32, it describes it can also
`be used for a stent graft. So those skilled in the art would understand that
`you would have an interchangeability in the technology between THVs and
`stent grafts. They're essentially part of the same art.
`If we can see slide 30.
`Now, we asked -- we cross examined the Patent Owner's expert on
`this issue and Dr. Manganaro admitted, in fact, that stent graft art is relevant
`to the subject matter of the '608 patent. That's what's shown on slide 30.
`Let me see slide 31.
`And I alluded to it earlier that Elliot and Thornton both disclose
`that, in fact, you will find calcification in the aorta, and that's -- some of
`Elliot is highlighted on slide 31. And the other evidence in the record I
`pointed to is -- I point you to is Exhibit 1060, which is a journal article that
`talks about the prevalence, the high prevalence of calcification in the aorta.
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`If we can go to slide 34.
`Let me talk quickly about their second argument which is that
`Spencer's tight seal is inconsistent with the fabric seals of Elliot, Thornton
`and Cook.
`Can I see the next slide?
`Now, the first thing that the Patent Owner relies upon is this
`excerpt from Spencer that references that there's no need for slack material
`and they latch onto that and they say, that's a teaching from Spencer that you
`wouldn't have any slack material anywhere on this THV, but, in fact, I
`would invite Your Honors to look actually at the context of this in Spencer
`at pages 22 and 23 and you'll see what they're actually describing are the
`inside of the THV where the valve attaches to the stent. We're not talking
`about the cuff on the outside. We're talking about the attachment points of
`the valve on the inside.
`If I could see slide 36.
`Now, slide 36 is the portion of Spencer that actually talks about the
`cuff and you can see Spencer discloses that the cuff is formed from slack
`material in the valve that's rolled up over the inlet in order to prevent
`leakage. So clearly Spencer is not teaching those skilled in the art that slack
`is a bad thing in the context of the cuff. In fact, it relies upon that slack to
`form the cuff.
`JUDGE KINDER: What does Spencer mean by referring to a
`slack wall, can you explain that concept just a little bit?
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`MR. CORDREY: The slack wall that Spencer refers to is part of
`the valve assembly. So if you take the -- you have the tricuspid valve
`assembly shown in the demonstrative slide there and that material can --
`excess material can be rolled up over the inlet and that slack that's in the
`material then can be used to form a cuff and that will help prevent leakage
`according to Spencer.
`JUDGE TARTAL: But it doesn't dispute it. Is it that Spencer
`doesn't disclose the flaps and pockets, correct?
`MR. CORDREY: That's correct. For the purpose of this IPR,
`that's a disputed issue. We -- obviously the Petitioners have a different view
`of Spencer and we think it does, but we understand that the Board has
`instituted this IPR based on obviousness with the understanding that Spencer
`doesn't disclose flaps and pockets. So that is the dispute for the basis for the
`obviousness challenge.
`Now, if I could see --
`JUDGE TARTAL: Just to clarify, what you're referring to is
`there's an anticipation ground and it was under the concept that this could be
`interpreted -- Spencer could be interpreted to show the claimed limitations
`related to pockets and flaps, but the instituted ground is an obviousness
`ground and the obviousness contentions put forth by Petitioner were based
`on the idea, at least that to the extent Spencer doesn't disclose pockets and
`flaps, the additional art relied upon does, correct?
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`MR. CORDREY: That's correct, Your Honor. We contended that
`Spencer is anticipatory. The Board disagreed in its Institution Decision, but
`we also said in the event that the Board disagreed on the anticipation, it
`would be obvious in light of Elliot, Thornton and Cook and that's the
`grounds that we're here for today.
`Now, let me turn to slide 37. The Patent Owner raises another
`argument which is this risk of migration if you combine the Spencer THV
`with the fabric seals of Elliot, Thornton and Cook. And their expert, Dr.
`Brecker, states in his declaration that if you combine, then you're going to
`have this risk of migration.
`Now, again, just as Dr. Manganaro had no evidence for this
`artificial distinction between calcified aorta and calcified annulus, Dr.
`Brecker has no evidence in his declaration that there's going to be this risk of
`migration if you use a fabric seal on the THV of Spencer. And, in fact, in
`the testimony, in part of his declaration that's shown on slide 37, the part
`that's highlighted, Dr. Brecker actually backs away from that and says -- Dr.
`Brecker actually backs away from that and what he says is that I really don't
`know, I'm guessing as to what the effect will be on having a fabric skirt.
`We want slide 37. Okay. There we go.
`So Dr. Brecker, even the only evidence they have is his testimony.
`He cites to no evidence. And then at the end of his testimony, he basically
`says I'm guessing, I don't know what the effect will be, but those skilled in
`the art do know what the effect will be.
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`Case IPR2017-00060
`Patent 8,992,608 B2
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`If we could see Exhibit 1059 at 14.
`Now, this is an excerpt from the Bergheim patent and Bergheim
`has a cuff like Spencer and Bergheim significantly says that the cuff also
`may prevent migration of the valve and he explains why, because the friction
`of the valve --
`JUDGE TARTAL: Is this a slide that you have in your
`demonstratives, counsel, or --
`MR. CORDREY: It is not. It's just an excerpt highlight from --
`JUDGE TARTAL: Okay. We'd ask just to use demonstratives
`that you've provided in advance, not demonstratives that no one has had a
`chance to review.
`MR. CORDREY: We'll do that, Your Honor. We had done that in
`order just because of the time limitations, but understanding Your Honor's
`concern.
`So let's go to slide 59. I'm sorry, slide 53, sorry.
`Okay. Now, there are many reasons that a person of ordinary skill
`in the art would have been motivated to combine Spencer with Elliot,
`Thornton and Cook. Among them would be the PVL was a known problem.
`Okay? And we show that in surgical valves and THVs. Elliot, Thornton
`and Cook expressly disclose the use of fabric seals to seal leakage caused by
`irregular tissue. Thornton is another example where it, in fact, shows wall
`separation that's described in the '608 patent. Spencer, as I already showed,
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`also discusses a desire to improve and enhance the sealing properties of its
`THV.
`
`Now, I'm going to skip to 7. The Gore Excluder which is a
`commercialized version of the Thornton reference was successfully
`commercialized and that tells a person of ordinary skill in the art that they
`would have an additional reason of expectation of success in combining
`these technologies.
`And then, finally, the USPTO has twice concluded that flaps and
`pockets are an obvious design choice.
`Can we see slide 62?
`JUDGE TARTAL: Can I jump you back to just one issue?
`MR. CORDREY: Sure.
`JUDGE TARTAL: The claim construction and the District Court
`construction of I believe it was “flaps” and “pockets,” and the proposed
`construction by Petitioners, does any of that matter, is there a distinction
`between your proposed -- in this proceeding -- between your proposed
`construction and what was adopted in District Court?
`MR. CORDREY: There are differences, but for purposes of this
`IPR it doesn't matter because the construction that was proposed in the
`District Court and adopted by the District Court is actually broader than the
`construction that we proposed. So it would -- if the Board were to determine
`that the District Court's construction was the proper construction, it's a
`broader construction, so it wouldn't -- for the same reasons it would be
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