`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`Skechers U.S.A. Inc.,
`Petitioner,
`
`v.
`
`Nike Inc.,
`Patent Owner.
`____________
`
`Case IPR2017-00620 (Patent D723783)
`Case IPR2017-00621 (Patent D723781)
`____________
`
`Record of Oral Hearing
`Held: April 12, 2018
`____________
`
`
`
`
`Before KEN B. BARRETT, GRACE K. OBERMANN, and SCOTT A.
`DANIELS, Administrative Patent Judges.
`
`
`
`
`Case IPR2017-00620 (Patent D723783)
`Case IPR2017-00621 (Patent D723781)
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`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`MICHAEL R. FLEMING, ESQUIRE
`SAMUEL K. LU, ESQUIRE
`TALIN GORDNIA, ESQUIRE
`Irell & Manella LLP
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`ERIK S. MAURER, ESQUIRE
`CHRISTOPHER J. RENK, ESQUIRE
`AUDRA C. EIDEM HEINZE, ESQUIRE
`Banner & Witcoff, Ltd.
`Ten South Wacker Drive, Suite 3000
`Chicago, Illinois 60606
`
`
`
`
`The above-entitled matter came on for hearing on Thursday, April 12,
`
`2018, commencing at 10:00 a.m., at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia.
`
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`P R O C E E D I N G S
`- - - - -
`JUDGE OBERMANN: Please be seated. Good morning. This is a
`little different from what I'm used to; usually the petitioner's over there and
`the patent owner's over there, but I will make the adjustments. Welcome to
`the PTAB. This is the final hearing -- it's a combined final hearing in IPR
`2017-00620 and IPR 2017-00621.
`
`I'm Judge Obermann, and to my right is Judge Barrett. Today, we
`have appearing remotely from New Hampshire, Judge Daniels -- he's on the
`screen to my left. This means that the counsel who's presenting argument
`has to be very careful to identify exhibits by number, please. I noticed that
`one party -- and I'm not to call you out by name -- in their briefs they refer to
`things like the Anders Declaration and the Ball transcript, that's not as
`helpful to us as the number of the exhibit. So, please refer to the numbers of
`the exhibits and the numbers of your demonstratives, especially so that
`Judge Daniels can pull them up on his screen in New Hampshire.
`
`Let's start with introductions; I'll start with Petitioner. Who do we
`have for Petitioner, today?
`
`MR. FLEMING: Yes, Your Honor. Mike Fleming with Irell &
`Manella, representing Skechers, the Petitioner; and I would like to introduce
`Sam Lu who is the lead counsel and Talin Gordnia.
`
`JUDGE OBERMANN: Hello; thank you.
`
`MR. FLEMING: I also have our slides to hard copy. May I present
`them?
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`JUDGE OBERMANN: Absolutely; thank you. Mr. Fleming, will
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`you be presenting argument or will you be splitting your argument time with
`co-counsel?
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`MR. FLEMING: I'm going to allow Mr. Lu to begin, and then Talin.
`
`JUDGE OBERMANN: Thank you very much. Okay; and who do we
`have for Patent Owner today?
`
`MR. MAURER: Good morning, Your Honor. My name is Eric
`Maurer. I'll be arguing on behalf of Nike. With me is lead counsel, Mr.
`Christopher Renk.
`
`MR. RENK: Good morning.
`
`JUDGE OBERMANN: Good morning.
`
`MR. MAURER: And Audra Eidem Heinze; and also with us today is
`Brian Fogarty. Mr. Fogarty is the Vice President of Global IP Litigation and
`Brand Protection for Nike.
`
`JUDGE OBERMANN: Thank you. I think we have one more person
`in the room that wasn't identified. Do we want to identify our last person?
`
`MR. JOHNSON: Jamie Johnson with FTILB, filming the
`presentation today.
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`JUDGE OBERMANN: Thank you.
`
`MR. JOHNSON: Thank you.
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`MR. RENK: May I present hard copies of the demonstratives?
`
`JUDGE OBERMANN: Absolutely; thank you. Mr. Maurer, did you
`already tell me who's going to be presenting argument?
`
`MR. MAURER: I will, Your Honor. I don't think I did, but I will.
`
`JUDGE OBERMANN: Okay. Before we get going, I just wanted to
`go over a couple of things. I'm in receipt of the paper that was filed
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`regarding Paper 51, which is the sealed version of the Petitioner's reply brief,
`I believe. Is it my understanding that document can be unsealed in its
`entirety?
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`MS. HEINZE: Yes, Your Honor. The issue that was raised via email
`to the Board is no longer an issue, (inaudible) so that Paper 51 (inaudible)
`can be restored to public.
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`JUDGE OBERMANN: Great; thank you. And that the information
`was actually owned by Patent Owner, is that correct? And that was
`allegedly confidential?
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`MS. HEINZE: It was owned by Petitioner.
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`JUDGE OBERMANN: Oh, it was; okay. But you agree, Mr. Maurer,
`that can be opened to the public?
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`MR. MAURER: We agree.
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`JUDGE OBERMANN: Great. So, I set down some ground rules in
`the hearing order. I want to make sure that we don't blur the evidence
`between the cases. They're very similar, but they are different patents; so, to
`the extent that you can make sure that you let us know how you're dividing
`up your argument -- that would be helpful. I've reviewed with the Panel the
`objections to the demonstrative exhibits, and we're overruling those
`objections. We're going to let both sides refer to whichever demonstratives
`they would like. Those demonstratives are not evidence, they're just visual
`aids for us and we'll take into account your objections, but we are quite
`competent to discern when there's new evidence in a demonstrative; and we
`are also quite skilled at figuring out whether, for example, there's something
`misleading or it exceeds the scope of a proper responsive brief.
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`With that, we have allotted 45 minutes of total time for each side to
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`present argument. Petitioner will go first, and you may reserve some time
`for rebuttal. I'll ask you now, do you want to reserve some time for rebuttal?
`
`MR. RENK: Yes, Your Honor, we'd like to reserve 20 minutes for
`rebuttal.
`
`JUDGE OBERMANN: 20 minutes, okay. And I set it up since
`Patent Owner has raised secondary indicia of non-obviousness, we're going
`to have Patent Owner go second, and you may also reserve some time, but
`only to address secondary indicia and only if your friends raised it in their
`primary presentation. So, would you like to reserve any time of your 45
`minutes?
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`MR. RENK: We would, Your Honor, five minutes.
`
`JUDGE OBERMANN: Five minutes, okay. Thank you. The only
`other thing I would say is that I would really appreciate it if neither side
`objects during the opposing person's argument. If you do have an objection,
`just raise it in your own time. If you want to point out any particular, you
`know, problem that you have with an exhibit in terms of new evidence or
`something like that, please use your own time for that but don't interrupt
`your opposing counsel to do that. The one exception is if either counsel or
`the Board identifies confidential information during the course of this
`hearing, please just stand up and shout so that we can mark the transcript. I
`don't think that's going to be necessary, hopefully; but if it is, please do that.
`This is an open hearing; it's open to the public; and I think that's it.
`
`I'm going to start the clock ticking when Petitioner's counsel begins;
`and what I'm going to do -- I don't think you can see it in this room, but I'm
`going to set it for -- you're reserving 20 of your 45 minutes, so I'll set the
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`clock for 25 minutes. Would you like me to give you a warning at 5 minutes
`or 3 minutes?
`
`MR. LU: Sure, five minutes would be good.
`
`JUDGE OBERMANN: Five minutes; okay. I'll start the clock
`running when you're ready.
`
`MR. LU: Good morning, Your Honors. My name is Samuel Lu, and
`I will be arguing the issues of claim construction and later on the issues of
`secondary meaning. My colleague, Talin Gordnia, will be arguing regarding
`the prior art combinations. Obviously, the issues of claim construction may
`come up in there, and she will be prepared to argue that as well.
`
`I wanted to start off today with claim construction by basically
`identifying what I think are going to be two issues that need to be addressed;
`and, basically, they're arguments that were raised by Nike in its Patent
`Owner response, post institution, that I think impact the question of whether
`or not the references disclose, or teach, the combination. And it's Skechers'
`position, as will be articulated momentarily, that either the patent doesn't
`disclose a particular feature that Nike claims is present in the claim design or
`if it disclosed a feature, it's not clear what that feature is.
`
`JUDGE OBERMANN: Okay, I want to understand this because it
`wasn't clear to me when I read your brief. Can you look at figure 1 and tell
`me with a straight face that line is unbroken, that defines what they call a
`channel in the center of the figure?
`
`MR. LU: So, let's turn to that particular demonstrative so we can take
`a look at what we're talking about, in particular. And to be clear, are we
`discussing figure 1 of the 783 Patent or the 781 Patent?
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`JUDGE OBERMANN: Thank you very much. I was the first
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`violator of my rule. I'm looking at figure 1 of the 783 Patent and I see a
`feature in the very center of that figure that looks almost like a topographical
`map and your friend is calling that a channel, and I don't think we have to
`talk right now about whether it's elevated, depressed, or flat; but I'm looking
`at that and it's big, and it looks to me like it has solid lines and is part of this
`design. And I would like to know, from you, are you disputing that's a
`feature of the invention.
`
`MR. LU: So, let's pull up slide 4; and I believe what Your Honor is
`referring to is this feature here.
`
`JUDGE OBERMANN: That's correct, and maybe we can make clear
`for the record that counsel has just shined a light on the very center feature
`of figure 1. How can we describe it for the record?
`
`MR. LU: Well, we've been describing it as three sort of concentric
`ovals with a line in the center, and perhaps if we go to slide 5 that might
`provide an even more zoomed-in image; and then this is an image from the
`783 Patent that's been zoomed in. So, the question was whether or not there
`is some feature that's depicted there; and I think it goes without saying that
`something is depicted there. It's not a particularly prominent feature as
`evidenced by the fact that neither our petition, nor the Board's decision or,
`for that matter, Patent Owner's preliminary response address what that was.
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`JUDGE OBERMANN: Can I just make a statement?
`
`MR. LU: Sure.
`
`JUDGE OBERMANN: That is a no-go because Patent Owner can sit
`on their hands. They don't have to make any arguments at the pre-institution
`stage; so the fact that they didn't raise it in a preliminary response is a non-
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`starter for you. It's the Petitioner who bears the burden of construing the
`claim in the petition and coming forward with their evidence in laying out
`their case. So, let's just be clear that we're not going to be receptive to an
`argument that Patent Owner somehow waived this argument by not raising it
`in the preliminary response.
`
`MR. LU: And we understand that; but it is a different argument that's
`being made here. The question is how prominent is that particular feature.
`
`JUDGE OBERMANN: Do you have any evidence on that? This is a
`problem we're having because I don't see anything in your petition that talks
`about that at all.
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`MR. LU: Well, we're discussing a design patent which, as you know,
`the Federal Circuit has issued some authority regarding what's in a design
`patent and it's the figures. What's helpful in the course of an analysis of a
`design patent is to call out a written description, the level of detail which
`may be more detailed as issues arise or less detailed in cases where it's a
`simple design patent -- no dispute, no prior art, no prosecution history,
`things like that.
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`JUDGE OBERMANN: Well, let's be flexible because there is a
`possibility -- and, I think, it's a pretty strong possibility since you've
`admitted that this is a feature of the invention -- that we're going to have to
`address it in the final. And the fact that it wasn't addressed at the pre-
`institution stage, and that we did not address it on the partial record that we
`had at institution, means that we are going to give you some flexibility to
`address it now. But I do want to just confirm that we can all agree that
`there's something there and we need to address it.
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`MR. LU: Yes; there is something that is depicted there.
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`JUDGE OBERMANN: And it's part of the design?
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`MR. LU: And it is within the claim design region; so, yes, it is part of
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`the design.
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`JUDGE OBERMANN: Okay; thank you.
`
`MR. LU: So, that's one of the questions that will be addressed. What
`is depicted, both with Nike's position -- just so it's clear what we understand
`Nike's position to be -- we understand Nike's position to be that there's a
`wide-rounded channel which is this area of the three sort of concentric ovals,
`and they argue that there's an additional sipe that runs through the center
`there. You can see that is a sipe that mimics what's immediately (inaudible).
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`JUDGE OBERMANN: So, there are really three sipes in this view of
`the invention?
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`MR. LU: No; and that's one of the big claim construction disputes
`that's going to come up; and, I think, it's most pronounced on the slide for
`the 781 Patent which is slide 9, if you could call that up. And I believe that -
`- before we begin there, I think --
`
`JUDGE OBERMANN: I think I know where you're going because
`the broken line is there, but if I look at the figure from the 783 Patent it's a
`solid line that's the bottom most. Is that correct?
`
`MR. LU: Yes. Let's go back to the 783 slide, please. You are
`correct. That's a very good observation. While on the 781 Patent there are
`two broken lines that Nike is asserting constitutes a sipe. The 783 Patent has
`what appears to be a solid line on top and a broken line on the bottom. Now,
`I think if the Board were to interpret that as anything, it would be the edge of
`a polygonal subdivision. In other words, a sipe, if you think of it, is a valley
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`or a chasm, you've got two edges -- an edge on one side, a bottom, and an
`edge on the other side.
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`Now by virtue of the fact that Nike has put all of this section down
`below, including one of the two lines that are at the bottom of this claimed
`subject area as dotted lines, all that they are claiming there is an edge,
`somewhere. In the claim, they could be arguing that the edge is down here
`because it's all disclaimed.
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`JUDGE OBERMANN: Okay. So, in your view, this figure that we're
`looking at here on page 5, there's really only two sipes that are claimed and
`it would be the one that is just underneath those protrusions that you're, yes;
`and then the one that's in the center that's in the center of are -- what we'll
`call for lack of a better word, the channel portion. And I know that you
`dispute that it is a channel; but can we just call it that?
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`MR. LU: With our objection, yes, we can call it a channel portion.
`
`JUDGE OBERMANN: All right.
`
`MR. LU: Okay. So, I think, we've basically addressed the issues on
`the dotted lines. In particular, going back to slide 9, Nike is claiming that
`this is a sipe when, in fact, its only got two dotted lines; and if we go to slide
`3, you'll see that Nike specifically calls out in its -- both of the patents, both
`the 781 and 783 -- that the broken line showing the remainder of the shoe are
`for environmental purposes only and form no part of the claim design.
`
`So, I think for the 783 Patent it's crystal clear that there are only two
`sipes. The third sipe at the bottom that Nike asserts is there is represented
`solely by broken lines and it cannot be a sipe. With regard to the 781, our
`positon is that it doesn't depict a sipe. At best, it depicts an edge and by
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`virtue of the way design patents are claimed it's not even clear that edge is
`necessarily at that particular location.
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`JUDGE OBERMANN: But in the 781 Patent you have another
`problem because it does depict a depression, doesn't it?
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`MR. LU: It does not. Let's go back to the 781 slide on 9. So, there's
`a sipe that's here and there is some shading that is present, but the primary
`point that we've made is that it is not clear from this drawing, in the 781
`Patent or in the 783 Patent, what exactly is being depicted there. The ideal,
`sort of gold standard, what Nike should have done in filing its patent
`application was to include a cross-sectional view to make clear exactly what
`was going on there. Alternatively, Nike could have submitted a perspective
`view like the one that they submitted in the course of this IPR through expert
`testimony. That figure is not part of the patent; it's Nike's interpretation of
`what's present here, and it's very telling that Nike needed to submit that,
`such a figure, in order to communicate to the world what exactly is being
`represented by this figure in the 781 Patent, as well as the figure in slide 5.
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`JUDGE DANIELS: Mr. Lu?
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`MR. LU: Yes, Judge Daniels.
`
`JUDGE DANIELS: Sorry, can you all hear me okay?
`
`MR. LU: Yes, I can hear you.
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`JUDGE DANIELS: I turned my microphone off so there's no
`feedback until I wanted to ask you a question (inaudible). So, are you aware
`of any cases or any our decisions where we have allowed a design patent
`owner to submit an additional drawing or an artist rendering of what they
`would like us to see? This is going to your point you just made.
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`MR. LU: I am not aware of any case in which a patent owner was
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`permitted to submit a drawing after the patent issued in a proceeding such as
`this. Nike has not identified any case; and I would submit that if they were
`permitted to submit such a drawing, it would constitute new subject matter
`with a new priority date because it would be changing sort of the contours of
`what was disclosed and claimed in the patent.
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`JUDGE DANIELS: So, would you agree that what they've submitted
`here is more than just clarifying what is not crystal clear, for instance, on
`slide 9?
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`MR. LU: I think what I was saying is, that at best, the evidence that
`Nike has submitted can only be used to clarify. To the extent that Nike
`relies upon it for more than that as evidence of a claim construction, that is
`improper; and that's the argument that we articulated in terms of why that
`drawing shouldn't be considered as evidence.
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`In addition, in the course of our briefing, we also set forth a whole
`number of reasons regarding why that drawing is inaccurate and doesn't
`represent what's disclosed by the figures of the 781 and the 783 Patent.
`
`JUDGE OBERMANN: I've looked at that figure and one thing it
`does do is it pulls together the various figures of the 783 Patent so that you
`can see where the side portion meets the sole. And I have to say you have
`about 12 minutes left, and I'm having a really hard time seeing a Rosen
`reference in RCD0007; and the reason I'm having a hard time is (a) you
`haven't addressed this feature -- that we'll call the channel feature; and (b)
`there is a handedness issue with the side view where the 783 Patent has
`those vertical grooves and sipes on the lateral side; and the Rosen reference
`has them on the medial side. Those two things together are really troubling
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`me. I don't see how you get a Rosen reference out of this. So, I'd like you to
`really focus on that.
`
`MR. LU: I will let my colleague, Ms. Gordnia, address that.
`
`JUDGE OBERMANN: That's not combination. I heard you talk
`about how she was going to talk about combining things. You can't combine
`the two (inaudible).
`
`MR. LU: We'll discuss the Rosen reference; she will discuss the
`Rosen reference.
`
`JUDGE OBERMANN: Okay.
`
`MR. LU: One point I wanted to make and then I'm going to turn
`things over to her, is that the MPEP -- and this is cited in our briefing --
`recommends that in circumstances like this, like perspective drawings, be
`submitted in connection with the patent application so that you can see
`exactly the sort of layout that you're talking about. That was not done in this
`case; and Nike cannot do so after the patent's issued.
`
`JUDGE OBERMANN: I understand that, but we can look at the
`figures that were provided and we can see which part of the shoe represents
`the medial side and which side represents the outside. It's pretty clear in
`figure 1, you know, what we're looking at; and we can tell where the side
`design is supposed to go. And isn't it true that in RCD0007 it's on the
`complete opposite side of the shoe and it wraps around?
`
`MR. LU: It is on the opposite side of the shoe, and with that I will
`turn things over to my colleague. Thank you.
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`MS. GORDNIA: Your Honor, we have about 10 minutes or so?
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`JUDGE OBERMANN: Yes, we can be flexible if we find that we ask
`you a lot of questions, we'll give both sides a little extra time if we need to.
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`MS. GORDNIA: So, good morning, Your Honors. I'm Talin Gordnia
`
`from Irell & Manella representing Petitioner, Skechers. And as Mr. Lu said
`I will address the grounds that were instituted by the Board.
`
`With respect to the first -- if we can go to slide 57, please? So, slide
`57 depicts the Board's order regarding the instituted grounds for the 621
`IPR; and the next slide. On slide 58, these are the grounds for the 620 IPR.
`And if we could go to slide 58, please. So, the instituted grounds, all of
`them have RCD0007 as the Rosen reference. And the reason that RCD0007
`is a Rosen reference is because it creates, basically, the same visible
`impression as the claim; and the reason for that is that it satisfies all of the
`Board's constructions, in addition to providing, basically, the same visible
`appearance. We see here on slide 60 at the grid-like pattern of pads in a
`portion of the heel. Next slide.
`
`JUDGE OBERMANN: I have a problem.
`
`MS. GORDNIA: Yes, Your Honor.
`
`JUDGE OBERMANN: What I heard your friend Mr. Lu argue is that
`sipe in RCD0007 that ends right before the square portion that has the
`yellow --
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`MS. GORDNIA: Mm-hmm.
`
`JUDGE OBERMANN: -- that is actually the feature that corresponds
`to our channel, right?
`
`MS. GORDNIA: So, Your Honor, there are two sipes -- one that goes
`all the way to the heel, one that ends short of the heel. And what we know
`from another reference, in the 945 Patent --
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`JUDGE OBERMANN: We can't look at that yet because we're
`talking about whether this is a Rosen reference.
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`MS. GORDNIA: So, with respect to the -- there is one channel or
`
`sipe that goes all the way to the heel that is approximately --
`
`JUDGE OBERMANN: Let me stop you. I see that sipe. Where is it
`in figure 1 of the 783 Patent? It's the uppermost sipe.
`
`MS. GORDNIA: That's right. There is an uppermost sipe in the
`claim as well as in the RCD0007 reference.
`
`JUDGE OBERMANN: And then we've got a sipe in the RCD0007
`reference that stops just before the polygon that has the yellow. What does
`that correspond to in figure 1 of the 783 claim?
`
`MS. GORDNIA: That corresponds to the sipe below the top sipe; and
`you are correct that it does not extend all the way. So, the question is, is that
`feature a part of the overall visual impression or is it a change, a difference -
`- because we know that a Rosen reference can have some differences. It
`doesn't have to be precisely exactly the claim design; otherwise we wouldn't
`be in the obviousness framework. So, there are some differences that are
`recognizable between RCD0007 and the claim, but our position is that those
`differences are de minimis. That gap could be bridged based on the
`knowledge of a designer having ordinary skill; and even if they're not de
`minimis, the secondary reference is that our instituted grounds render those
`features obvious.
`
`JUDGE OBERMANN: What about the solid lines in figure 1 that
`radiate out on the ovals, what's that; and where is it in RCD0007?
`
`MS. GORDNIA: So, to the extent that Nike's arguing that those lines
`you just referenced represent a channel, we know from Nike's expert Mr.
`Ball, as well as the 945 Patent, that channels and sipes -- well, at least,
`according to Mr. Ball -- a channel and a sipe he wasn't able to distinguish
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`between the two. There is a wide sipe in that region we were just talking
`about in RCD0007. So, to the extent that there's a sipe in the claim, there is
`a sipe also in RCD0007.
`
`JUDGE OBERMANN: I see the sipe in the claim, but I also see
`unbroken lines that, basically, radiate from it; and as the Petitioner you need
`to be able to tell me -- I've already heard Mr. Lu say that's an element of the
`claim -- and what I need to know from you is where is that in RCD0007?
`
`MS. GORDNIA: So, I'm pointing with the lighter to the area that
`you're referencing, right?
`
`JUDGE OBERMANN: Yes.
`
`MS. GORDNIA: -- the radiated lines are those lines?
`
`JUDGE OBERMANN: Yes.
`
`MS. GORDNIA: Okay; so, to the extent that this feature that we're
`talking about in the claim is simply a channel -- which according to Mr.
`Ball, could also be a sipe. We have a similar feature in RCD0007. That's
`the full sipe we see here.
`
`JUDGE OBERMANN: But that's not the same one. You're relying
`on that sipe for the uppermost sipe in figure 1.
`
`MS. GORDNIA: And this is where the de minimis changes in
`differences come into play. So, the question is really, is the heel area of the
`claim, is it a grid-like pattern or are we going to get very specific and
`identify the number of sipes, the number of polygons, and also the direction,
`whether they're 90 degrees. We have a number of arguments in Nike's
`Patent Owner response where Nike's actually, specifically, saying that
`RCD0007 is not a Rosen reference because it doesn't have the same number,
`shape, size, subdivisions; and according to their expert there are six.
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`So, to the extent the Board finds that RCD0007 is not a Rosen
`
`reference because of those reasons that Nike has presented in its Patent
`Owner response, we respectfully ask that the Board clarify that for the
`record and for the public that the reason RCD0007 may not be a Rosen
`reference is because it doesn't have the same number, shape, size of polygon
`or subdivisions; and, specifically, the feature in the summary Nike is arguing
`is not just a wide-rounded channel, but Nike argues that there is a deeper,
`narrow sipe that also runs through the channel. So, it's not just a channel; it's
`a channel and a sipe within the channel, and both the channel and the sipe
`extend the length of the claimed area.
`
`So, to the extent that we rely on the Board's already instituted claim
`constructions, RCD0007 is a Rosen reference. To the extent the Board now
`distinguishes RCD0007 over the claim, or the claim, rather, over RCD0007
`due to that channel, we simply ask that the Board clarify that for the record,
`that the reason RCD0007 is not a Rosen reference is because it lacks a
`channel that also includes a sipe, as well as all the other features that Nike is
`pointing out that are different, including the number, the size, and the shape.
`
`JUDGE OBERMANN: Why can't we just rely on the sipe or the,
`what we're going to call the channel, as a feature? Everyone here agrees that
`it's a feature and it's not clearly represented in this RCD0007.
`
`MS. GORDNIA: So, everyone agrees that it's a channel, but I'm only
`pointing out, for Your Honors and the record, that according to Nike and
`according to what we've seen -- if we'd just go to slide 4, the zoomed-in
`view, or slide 5, rather, the zoomed-in view -- there is also a longitudinal
`sipe that goes through the channel.
`
`JUDGE OBERMANN: Right.
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`MS. GORDNIA: So we just want to be clear that those two features
`
`go together.
`
`JUDGE OBERMANN: Okay. Well, we see the longitudinal sipe in
`the very center here; and I can see a partial one in RCD0007, and you need
`to extend it in order to get here to this figure; but I don't see in RCD0007
`anything that corresponds to the other solid lines that are radiating from that
`sipe.
`MS. GORDNIA: So, that's right, Your Honor. If you construe this
`
`region that I'm pointing to as both a channel and a sipe, then RCD0007 does
`not have a channel with a sipe inside the channel.
`
`JUDGE OBERMANN: Is RCD0007 a Rosen reference under those
`circumstances?
`
`MS. GORDNIA: If the Board's construction is that the claim both for
`the 781 and the 783 requires a wide rounded channel with a deeper,
`narrower sipe running through it --
`
`JUDGE OBERMANN: We don't have to go that far, do we? We
`know that there's something there, and we know that you didn't address it in
`the petition; and I'm looking to the Petitioner to tell me where that feature is
`in RCD0007, or something that looks like it, is it enough to make a Rosen
`reference?
`
`JUDGE BARRETT: Do I understand your position that you are not
`so much saying that groove is in RCD0007? You're saying RCD0007 as it
`stands is a Rosen reference because it has sipes and it has the different
`quadrants and that gets close enough to move forward to the combination?
`
`MS. GORDNIA: So, that is our argument; that there are differences
`and there can be under the law of differences between the claim and Rosen
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`reference, and then you bridge the g
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