UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
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`ACCLARENT, INC.,
`Petitioner,
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`v.
`
`FORD ALBRITTON, IV,
`Patent Owner.
`__________
`
`Case IPR2017-00498
`Patent 9,011,412
`__________
`
`Record of Oral Hearing
`Held: April 24, 2018
`__________
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`
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`Before JOSIAH C. COCKS, BEVERLY M. BUNTING, and RICHARD H.
`MARSCHALL, Administrative Patent Judges.
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`__________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
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`ACCLARENT, INC.,
`Petitioner,
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`v.
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`FORD ALBRITTON, IV,
`Patent Owner.
`__________
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`Case IPR2017-00498
`Patent 9,011,412
`__________
`
`Record of Oral Hearing
`Held: April 24, 2018
`__________
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`
`
`
`Before JOSIAH C. COCKS, BEVERLY M. BUNTING, and RICHARD H.
`MARSCHALL, Administrative Patent Judges.
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`Case IPR2017-00498
`Patent 9,011,412
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
`
`
`LISA ADAMS, ESQ.
`Mintz Levin
`One Financial Center
`Boston, Massachusetts 02111
`617-348-3054
`ladams@mintz.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`ASHLEY MOORE, ESQ.
`McKool Smith
`300 Crescent Court, Suite 1500
`Dallas, Texas 75201
`214-978-6337
`amoore@mckoolsmith.com
`
`
`
`
`
`The above-entitled matter came on for hearing on Tuesday, April 24,
`2018, commencing at 10:00 a.m. at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia.
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`Case IPR2017-00498
`Patent 9,011,412
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`P R O C E E D I N G S
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`JUDGE MARSCHALL: Good morning, everyone, be seated.
`Good morning, everyone. This is a hearing in IPR2017-00498 between
`Petitioner Acclarent, Inc. and Patent Owner Ford Albritton, IV, reviewing
`Patent Number 9011412. I'm Judge Marschall. With me is Judge Cocks
`and Judge Bunting is appearing remotely. Let's get the parties'
`appearances, please. Counsel for Petitioner?
`MS. ADAMS: Good morning, Your Honors. I'm Lisa Adams
`with Mintz Levin and here with me today is my colleague, Pete Cuomo.
`MR. CUOMO: Good morning.
`MS. ADAMS: We represent Acclarent, Inc., the Petitioner in this
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`case.
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`JUDGE MARSCHALL: And Counsel for Patent Owner?
`MS. MOORE: Yes, Your Honor. Ashley Moore representing the
`Patent Owner. I'm with McKool Smith and with me today is Meredith
`Elkins, also from McKool Smith.
`JUDGE MARSCHALL: Thank you and welcome. We appreciate
`your being here today and helping us understand your arguments. We look
`forward to your presentations.
`Please keep in mind that Judge Bunting will not be able to see what
`you project on the screen but has a copy of the materials, so please clearly
`reference your materials when speaking. Each party will have 60 minutes
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`of total time to present arguments. The Petitioner may reserve time for
`rebuttal.
`Petitioner, do you wish to reserve any time for rebuttal?
`MS. ADAMS: Yes. I'd like to reserve 15 minutes.
`JUDGE MARSCHALL: Okay. You may begin when ready.
`MS. ADAMS: We have hard copies of the presentation. Would
`you like those?
`JUDGE MARSCHALL: Sure.
`MS. ADAMS: Do you need one as well? So good morning. I'd
`like to start on slide two. There are five grounds at issue in this proceeding.
`Three of these are based on anticipation and the other two are based on
`obviousness for some of the dependent claims.
`Turning to slide 3, the purported invention in the Albritton patent
`lies in the ability to hold the device using a single hand. The patent,
`however, does not identify any particular structure for allowing this
`purported new use. The patent merely discloses a generic handle that's
`shown here that has a well-known structure. The disclosure is very broad,
`only disclosing an upper portion and a lower portion that can extend at any
`angle less than 90 degrees. Even the background of the patent admits that a
`guide catheter, a handle, and a working device inserted through the two are
`well known.
`JUDGE COCKS: Counselor, let me ask you a question right off the
`bat. So you say the patent didn't disclose any structure for one-handed use,
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`but isn't figure 3 described as being a structure for one-handed use? So isn't
`that a structure that provides for one-handed use?
`MS. ADAMS: It is a structure, but it's a very typical pistol-style
`handle, and the most that they say about it in their disclosure is that there's
`an upper portion and a lower portion. They really don't describe any unique
`shape, size, or any particular features on there that enable this purported use.
`JUDGE COCKS: Isn't there discussion on the angle of the handle
`with respect to the main upper portion, 60 degrees, I think, is referenced?
`MS. ADAMS: They disclosed that as a preferred angle. That isn't
`in the claims and they also explain that the device can have any angle less
`than 90 degrees. And in figure 6, they have an embodiment that's a
`pivoting handle.
`JUDGE MARSCHALL: Under the controlling case law on this
`topic, how much structure would they need to emphasize in the
`specification, in your view, to render the narrow interpretation proposed by
`Patent Owner, the preferred construction?
`MS. ADAMS: That's a good question. The -- in the case law that
`relies on, you know, specific details about the structure, there are usually
`significantly more details. All of the cases where they rely on the structure
`have very specific disclosures. So for example, like In re Man Machine
`talks about the mouse. In that patent, they explain, you know, that there's a
`button on the back where the phone goes and there are buttons on the front,
`and they talk about -- I believe they talk about the size as well. It's very,
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`very detailed and in all of those cases as well, the reason -- in all of those
`cases, the Board found that the prior art had a very different structure. And
`that's really not the situation here. I mean the handle they're disclosing is
`very generic, and the prior art here all has fairly the same structure, at least
`according to the broad disclosure that's in the patent.
`JUDGE MARSCHALL: Sticking with claim construction for a
`second, some of the cases seem to emphasize the importance of performing
`the claim function in the relevant specification, and isn't that the case here
`where they emphasize the importance of one-handed use?
`MS. ADAMS: They do talk about one-handed use in the
`specification, but the difference here is that they really don't explain what it
`is that's so unique about the structure that enables that use. The structure is
`just very generic and there's really not a lot of disclosure on what it is about
`this specific structure that now allows you to do this where the prior art
`structures didn't.
`JUDGE MARSCHALL: Is it your view that the specification has to
`describe some unique structure to perform the claimed function in order to
`apply the narrower meaning to "adapted to" or "configured to?"
`MS. ADAMS: Well, I would think it would have to disclose a
`different structure. I mean if the prior art has the same exact structure
`according to what's broadly disclosed, then the prior art is going to
`inherently perform that function.
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`JUDGE MARSCHALL: But the point of novelty of the claim
`doesn't need to be that particular structure for performing that function, does
`it?
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`MS. ADAMS: No. I mean I think when you recite a device claim
`in terms of the function that it can perform, then, you know, that carries with
`it the risk that it's going to cover, you know, more broadly any structure
`that's capable of performing that function.
`So let me turn to slide 4. As you can see here, I've color-coded the
`claim language. These are the use limitations as we refer to them. And as
`you can see in this claim, they really only recite that the handle has a
`structure. They don't say anything more in the claim language about that
`structure. The remainder of the language refers to the use and, in particular,
`how a user would actually hold the device. Because of that, it is our
`position that these limitations must be read to be intended use.
`I understand that you could interpret these to be functional language
`and normally, I think looking at these, I would consider them to be
`functional language, but in light of the very broad disclosure that's in the
`specification, I think you have to interpret these as intended use.
`JUDGE MARSCHALL: Have you found any cases that construe
`similar claim language as mere intended use?
`MS. ADAMS: Sorry, could you repeat that?
`JUDGE MARSCHALL: Have you found case law that construes
`similar phrases as mere intended use?
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`MS. ADAMS: So in the cases that involve intended use language --
`well, for example, Digital Ally is one. It's a PTAB decision and in that case,
`it had similar language about a vehicle responding to an emergency. And
`they said that that's something the user chooses to do and it's not something
`that the structure of the device enables, and I think that's the same situation
`here. Positioning your fingers at certain locations on a device is really
`something the user is choosing to do, and it's not -- you know, it's not a
`result of the structure of the device.
`In the other intended use cases, in all of those cases where they
`interpreted the claim language to be intended use, they did so because there
`was no detailed disclosure on the structure. And that's what I think dictates
`where and why these need to be read as intended use limitations.
`JUDGE MARSCHALL: But just to be clear, those cases didn't
`include "configured to" or "adapted to" type of language, correct?
`MS. ADAMS: It didn't, no. So moving on to slide 5, this is --
`claim 14, as you can see here, is very similar to claim 1. The only
`difference I want to point out is that the language about the guide catheter
`being insertable through an external body passage is in a preamble of this
`claim. That limitation is relevant with respect to ground 3 but in claim 14.
`Because it's in the preamble, it has no bearing here.
`JUDGE MARSCHALL: Aside from that distinction, does claim 14
`rise or fall with claim 1 in your view?
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`MS. ADAMS: Yes. I also want to point out a few things about
`both of these claims, and you'll notice that in both of these claims, they do
`not recite that any of these use limitations have to occur simultaneously.
`This is something that the method claim, which isn't at issue in this
`proceeding, actually does recite. So here there's no limitation on
`simultaneous use. The claim language also doesn't say single-handed or
`only one hand. It explains where the positions of the user's, you know, one
`hand need to be able to go, but it doesn't preclude the use of a second hand
`in, you know, assisting or holding the device.
`The claim also doesn't say anything about the sinus or balloon
`sinuplasty or even the type of working device that's used here. It's fairly
`generic to the type of procedure.
`JUDGE COCKS: Well, if you'd go back one slide?
`MS. ADAMS: Sure.
`JUDGE COCKS: So just to clarify what you just said, so looking at
`the red part, the guide catheter apparatus to be controlled by some or all
`three fingers of one hand of an operator, are you saying that would be met
`even if an additional hand was doing some of the control?
`MS. ADAMS: I don't see why not. I mean the claim doesn't say
`"with only one hand." I think that the -- you know, if these are read to be
`functional limitations and not intended use, then I think that the user's hand
`would need to be capable of positioning those fingers of the same hand in
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`the -- you know, according to the limitations in the claim, but I think you
`could also have a second hand involved.
`JUDGE BUNTING: Counselor, I have a question for you.
`Following down to the "green" portion where it says, "The thumb and index
`finger of the hand," are you saying that recitation of the hand could be a
`different hand than the one hand recited earlier in the claim?
`MS. ADAMS: No. I think that these three limitations do refer to
`the fingers of the same hand. I don't dispute that. I just don't think it
`precludes a second hand being involved in the procedure.
`JUDGE BUNTING: Thank you.
`MS. ADAMS: Sure. So before I get into claim construction, on
`slide 6, we lay out the points of contention and as you can see here, for each
`ground, Patent Owner is really only contesting the use limitations. They do
`not argue that the prior art lacks any of the structural elements that are in the
`claim. And then with respect to McCabe, they do argue that McCabe is not
`insertable through an external body passage according to their interpretation.
`Moving on to slide 7 and turning to claim interpretation, I do want to
`start with the "Configured to Allow and Adapted" or "Configured to Permit."
`And as I mentioned before, we believe these limitations must be read to be
`intended use limitations, and we have several reasons for finding this. If
`you turn to slide 8, first, the claim language alone, I think, requires these to
`be intended use in using the terms "configured to allow" and "adapted to
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`permit." The terms "allow" and "permit" are permissive language and
`clearly refer to what a user can do if holding this device.
`As I mentioned before, the specification also really doesn't get into
`the specific structure. So this is the passage here in the specification where
`they describe the handle and the most this says is that there's a lower portion
`of the handle and then there's an upper portion of it that they make an angle.
`The remainder of this is really talking about how the user could position her
`fingers. They really don't describe anything more about that structure.
`Turning to slide 9, I think Patent Owner's arguments also support an
`intended use here because they, too, fail to point to any structure that enables
`this use. In all of their papers, they just repeatedly argue that the invention
`is single-handed use.
`And then turning to slide 10, I think it's important to recognize that
`the language here refers to how a user would hold the device and not a
`function of the device itself. Typically, when we're looking at functional
`language, it's referring to a function of the device and how different
`components interact with one another, and that's really not the situation in
`the claims here. And as I mentioned before, this is very similar to the
`Digital Ally case where there, the Board found that responding to an
`emergency is not something that the ambulance does. It's something a user
`chooses to do. So I think that's the very same situation here. Where you
`put your fingers on this device is really up to the user and not to -- you
`know, not as a result of the function or structure of the device.
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`Turning to slide 11, even if the claim language is interpreted as
`functional language rather than intended use, there are -- you know, there's
`the broader "adapted to" or "configured to" meaning and there is -- some
`courts have applied a narrower "made to" or "designed for." Well, we think
`the claims are anticipated. Even under the narrow meaning, if you read this
`as functional language, we think the broader meaning has to apply here for
`many of the same reasons. There's really no language again imposing any
`particular structure. It's not in the claims and the specification really doesn't
`explain, you know, what it is about that structure that now allows this new
`use. And more importantly, during the litigation against our client,
`Acclarent, Patent Owner has actually made arguments that our client
`infringes if they allowed for the claimed use.
`I'd like to turn to Exhibit 1017 and page 44. This is a document --
`I'm going to pull it up here -- from the litigation, from a hearing, and I guess
`it's not showing on the screen, but if you turn to Exhibit 1017, page 44, in
`that -- in the litigation, the judge in that case, in speaking with Patent
`Owner's counsel, had asked them the question, "Does it create an
`infringement claim if a device that is intended to be used otherwise," you
`know, for some purpose outside of the claim, "is used in a creative way by
`users that would infringe?" And counsel for Patent Owner responded, "If it
`is adapted to allow for infringement of an apparatus claim, even if it is not
`disclosed that it was used in that particular manner, but if it is adapted to
`allow that use, that is sufficient for infringement of an apparatus claim as
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`opposed to a method claim." So really, they're applying a broader adapted
`to interpretation in the litigation and yet arguing for a narrow interpretation
`here, which really is unfair and is really kind of turning everything upside
`down.
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`I also just want to make a correction here to slide 11. We cite at the
`bottom here to Exhibit 1013 and that actually should be 1017 and that same
`error is actually present in our Patent Owner Response on page 10. I
`apologize for that. That should be Exhibit 1017.
`Petitioner Reply. I apologize, not Patent Owner Response.
`So moving on to slide 12, Patent Owner makes an argument that
`we're relying on inherent anticipation here, but they argued that that's only
`applicable for a capability standard in the means plus function context. And
`that's just plainly wrong. I think the case law is very clear. For example,
`Ex Parte Warren and Ex Parte Hanni apply an inherent anticipation standard
`in a non means plus functioning case that involved purely functional
`language.
`Second, Patent Owner also argues that the prior art must necessarily
`or always use the device in the claimed manner for inherent anticipation but
`again, that's not correct. I think the law is quite clear here that the prior art
`doesn't actually have to teach the function. It just has to teach a device
`that's, you know, inherently capable of being used in the claimed manner.
`Moving on to slide 13 and the term "external body passage." Patent
`Owner raised this as an issue and argues that this term should be limited to a
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`natural orifice and not an opening made by an incision. We don't think this
`term needs to be interpreted at all, because I don't think it has any bearing,
`because the claim language is "insertable through" and these are device
`claims, not method claims. But regardless, whatever interpretation you
`give, I mean I think the prior art is "insertable through an external body
`passage." However, since they've put this definition forward, I do still want
`to address it.
`Turning to slide 14, as I had mentioned earlier, in claim 14, this is in
`the preamble so really, to the extent this is an issue at all, it would only be
`with respect to claim one.
`Turning to slide 15, Patent Owner points to this passage in the
`specification as an explicit definition of the term "external body passage."
`However, as you can see here, they haven't really defined external body
`passage. They have just included it among a list of other types of body
`passages, and I do concede that the other types of body passages listed are a
`natural orifice, but this still doesn't preclude the external body passage from
`being made by an incision. I also want to note there is a place in the
`specification of the Albritton patent where they mention a hole in a
`membrane, which some could consider to be an opening formed by an
`incision.
`So turning to slide 16, Patent Owner has cited to two documents in
`support of their position here. The first one they say is a definition of
`external body passage and the second one they say is a medical treatise.
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`However, if you turn to slide 17, this is that first document, and as you can
`see, this is a definition of the term "meatus," not external body passage.
`While this definition refers to external openings, it clearly isn't a definition
`of external body passage.
`The next slide, 18, is their second piece of evidence and as you can
`see, this is a blog post and it's an advertisement for a book. And Dr.
`Holmes, Patent Owner's expert, admitted in his deposition that this is not a
`medical treatise. So really, they have no evidence to support their position
`that external body passage should be limited to a natural orifice.
`JUDGE MARSCHALL: Do you address the possible narrow
`construction of this term in the Petition?
`MS. ADAMS: I don't think it's dispositive at all. I mean if you
`apply the narrow construction here, McCabe is -- which is where this comes
`up as an issue, is still insertable into a natural orifice such as the nose or
`mouth, and Patent Owner's expert even admitted that in his deposition.
`JUDGE MARSCHALL: It wasn't in the Petition though that you
`said it was --
`MS. ADAMS: Oh.
`JUDGE MARSCHALL: -- insertable into the nose --
`MS. ADAMS: Correct.
`JUDGE MARSCHALL: -- or mouth?
`MS. ADAMS: It was not in the Petition.
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`JUDGE MARSCHALL: And in your Reply, you refer to Patent
`Owner's videos as evidence, is that correct?
`MS. ADAMS: Yes, because Patent Owner's expert explained that
`the McCabe -- oh, sorry, I apologize -- the -- we rely on the video even
`though it's the Goldfarb device because it shows a rigid shaft that's very
`similar to the McCabe rigid shaft, so it's proof that McCabe is cable of being
`inserted into a nostril as a natural orifice.
`JUDGE MARSCHALL: So that would be your evidence in support
`of this element if we go with the narrow construction as well as the alleged
`admission by Dr. Holmes, correct?
`MS. ADAMS: Correct. Finally, on slide 19, Patent Owner does
`argue that a POSA would readily understand this and our expert, Dr. Levine,
`did not agree with that. He said if a surgeon was going to refer to a natural
`orifice, they would use the term "natural orifice," and he did opine that the
`term "external body passage" is broader and could include incisions. But
`again, this dispute really has no consequence here.
`So moving on to slide 20 and on to ground 1 with respect to
`Goldfarb, as I mentioned previously, there are two points of contention here;
`working device manipulation and suction control. So if you turn to slide
`21, Patent Owner argued that Goldfarb does not teach manipulating the
`working device with a single hand but instead requires two hands. This is a
`screenshot from the video submitted by Patent Owner, and they explain that
`throughout this video, the surgeon, Dr. Weeks here is using two hands to
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`control the Goldfarb device, yet as you can see at this screenshot taken
`around the one-minute mark, the surgeon has actually released the device
`from his left hand and his right hand is being used to hold the Goldfarb
`device. The white piece is the handle and his thumb is shown advancing
`the balloon catheter with a single hand.
`JUDGE MARSCHALL: Although the claim requires the thumb
`and the index finger must manipulate the working device, correct?
`MS. ADAMS: Correct. Patent Owner has interpreted that
`limitation to require that the finger can provide oppositional support and that
`only the thumb need be used, so we're applying their definition here.
`JUDGE MARSCHALL: So the oppositional support doesn't need
`to be on the guide wire itself?
`MS. ADAMS: Correct, according to the way they apply it. So this
`video proves that the Goldfarb device is not only capable of being used in a
`claimed manner but actually was used that way, so I think you could say it
`was made or designed for this use. And more importantly, this video also
`corroborates our expert, Dr. Levine's testimony that he often used the
`Goldfarb device with one hand and that he's seen many others do that with
`one hand as well.
`JUDGE MARSCHALL: Is there any teaching in Goldfarb itself,
`the reference of using a single hand?
`MS. ADAMS: Yes. So Goldfarb does have a lot of teachings
`about single-handed -- let me just pull up that Exhibit.
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`JUDGE MARSCHALL: And by single-handed, I'm using it as a
`shorthand for the claim requirements for single-handed manipulation of the
`working device and control of the suction with the same hand that controls
`the device, correct? I just want to make it clear I'm talking about single-
`handed as claimed, not in general.
`MS. ADAMS: Right, right, right. Yes, and you're correct. I
`mean when he's talking about single-handed, he is talking about holding the
`endoscope and the handle with one hand. I would -- yes, he doesn't
`expressly teach only using the right hand. However, if you're holding the
`endoscope and even the handle with your left hand, your right hand is still
`being used in this manner to advance the working device, and it's clearly
`providing some support and control for the guide catheter. And, you know,
`Patent Owner did not argue that Goldfarb doesn't teach the guide catheter
`manipulation limitation. They only argued they don't teach manipulating a
`working device, which he's doing here with his right hand.
`JUDGE COCKS: Is there any dispute that what is shown on slide
`21 is the Goldfarb device?
`MS. ADAMS: No. Moving on to slide 22, even Patent Owner's
`expert, Dr. Holmes, conceded that that video shows single-handed use. He
`characterized this as rare but I don't think that's relevant here. I mean the
`question is whether or not Goldfarb's capable of being used in the claimed
`manner since these are device claims, not method claims, and his admission
`proves that it is.
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`Turning to slide 23 and on to the next point of contention, with
`respect to suction control, Patent Owner argues that you can't control
`suction, that you can't grasp, control, and support the weight of the device
`while also attempting to stretch the thumb and finger to pinch or cover the
`suction port. However, first off, the claim doesn't say how suction is
`controlled. It just says controlling suction, so I think they're basing their
`arguments on limitations that aren't in the claim but second, Goldfarb, as you
`can see here, explicitly teaches a suction hole that can be controlled with a
`thumb or finger. If your left hand is holding the endoscope, clearly this
`thumb or finger hole would be covered with a thumb or finger of the right
`hand, so Goldfarb expressly teaches this limitation of the claim.
`As you can see on the bottom of this slide, Patent Owner's expert
`also admitted that you could -- that someone using the Goldfarb device
`could easily move their thumb or finger to cover a hole in their device, so he
`has conceded to this point as well.
`Moving on to ground 2 on slide 24, claims 6 and 19 recite a handle
`coupling adapted to allow movement of the source of suction. While, it's
`not really clear what "allow movement" entails, Goldfarb teaches a suction
`tube that's attached to the handle, and couplings that allow movement were
`well-known. Patent Owner didn't argue the specific limitations of these
`dependent claims but instead just argued that Goldfarb teaches a way for
`controlling suction with the same hand.
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`Moving on to ground 3; on slide 25, the two points of contention
`with respect to McCabe are Patent Owner argues it's not insertable through
`an external body passage according to their interpretation, and they argue
`that McCabe doesn't meet the working device manipulation limitation. So
`starting with external body passage on slide 26, as we had discussed earlier,
`the video here shows a rigid shaft similar to McCabe being inserted into a
`nostril.
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`JUDGE MARSCHALL: And this shows the Goldfarb device,
`correct?
`MS. ADAMS: It does show the Goldfarb device and not the
`McCabe device, but they both have rigid shafts so --
`JUDGE MARSCHALL: Right.
`MS. ADAMS: -- I think if anything, this proves the rigid shaft is
`capable of being inserted into a natural orifice.
`JUDGE MARSCHALL: Going back to the Goldfarb issue, let's
`assume that it's capable of one-handed use as claimed. Is there any
`evidence that it was designed for that purpose aside from showing that it's
`capable of being used for that purpose?
`MS. ADAMS: Are you asking whether or not there's any evidence
`that the manufacturer of Goldfarb intended this to be used?
`JUDGE MARSCHALL: Correct.
`MS. ADAMS: Not that I'm aware of. We haven't looked into that.
`JUDGE MARSCHALL: Okay.
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`MS. ADAMS: It's my understanding, though, under the case law
`where they talk -- where they apply the narrower "made to" or "designed
`for" interpretation that they're not looking at intent, but they're really still
`looking at structure because in all of those cases, the structure of the prior art
`was very different and so they came to the conclusion that it wasn't made or
`designed to because it had structural differences. So I think here, because
`the structure is the same, it would be very hard to say it's not made to or
`designed to be used in that manner, plus our expert has also testified that he
`often used it with one hand in the claimed manner.
`JUDGE MARSCHALL: Well, at least with Goldfarb, the structure
`isn't the same as, say, figure 3 in the 412 patent, right? It's a little bit
`different if you have to reach back further to manipulate the guide wire in
`Goldfarb than in figure 3 of the patent, correct?
`MS. ADAMS: It's not identical but Patent Owner didn't argue any
`of the structural differences, and I would say because Goldfarb actually
`teaches that their handler -- handle is malleable, that it would be even easier
`to, you know, bend the handle and manipulate it in the claimed manner.
`Moving on to slide 27 and going back to external body passage,
`again, this is just an admission by Patent Owner's expert that McCabe is
`insertable through the nose. He did distinguish the sinus from the nose but
`Patent Owner hasn't made that distinction in defining the term.
`Moving on to slide 28 and working device manipulation, Patent
`Owner argues that McCabe is not configured for a single hand to hold the
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`handle and manipulate the working device. First, McCabe, throughout its
`patent, teaches using either hand which makes it clear it's one or the other.
`If they intended two-handed use, they wouldn't have said either hand. And
`also, our expert, Mr. Kesten, explained that McCabe is more conducive to
`use in the claimed manner because on the Albritton device, the angle of the
`handle would tend to rotate the user's wrist more forward, which would have
`the effect of positioning their thumb and finger further away from the
`opening on the back of the device, whereas
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