UNITED STATES PATENT AND TRADEMARK OFFICE
`___________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________
`
`NATIONAL OILWELL VARCO, L.P.,
`Petitioner,
`
`v.
`
`TECHNICAL INDUSTRIES, INC,
`Patent Owner.
`___________
`
`Case IPR2017-00648 (Patent 7,263,887 B2)
`Case IPR2017-00699 (Patent 7,401,518 B2)
`___________
`
`Record of Oral Hearing
`Held: March 27, 2018
`___________
`
`
`
`
`Before BRYAN F. MOORE, MINN CHUNG, and JACQUELINE T.
`HARLOW, Administrative Patent Judges.
`
`
`
`
`
`
`

`

`Case IPR2017-00648 (Patent 7,263,887 B2)
`Case IPR2017-00699 (Patent 7,401,518 B2)
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`ROBERT M. BOWICK, ESQUIRE
`BRADFORD T. LANEY, ESQUIRE'
`Raley & Bowick
`1800 Augusta Drive
`# 300
`Houston, TX 77057
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JOE LEMOINE, ESQUIRE'
`Lemoine & Associates
`406 Audubon Blvd.
`Lafayette, LA 70503
`
`TED M. ANTHONY, ESQUIRE
`P.O. Box 52168
`Lafayette, LA 70505
`
`
`
`
`The above-entitled matter came on for hearing on Tuesday, March 27,
`
`2018, at 1 p.m., at the U.S. Patent and Trademark Office, Madison Building
`East, 600 Dulany Street, Alexandria, Virginia.
`
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`Case IPR2017-00648 (Patent 7,263,887 B2)
`Case IPR2017-00699 (Patent 7,401,518 B2)
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`
`P R O C E E D I N G S
`- - - - -
`JUDGE HARLOW: Good afternoon. Judge Moore, may I get
`started?
`JUDGE MOORE: Yes.
`JUDGE HARLOW: Thank you. Apologies, I have difficulty seeing
`my colleague in Alexandria. We will hear argument now in IPR2017-00648
`and IPR2017-00699, National Oilwell Varco L.P., v. Technical Industries,
`Inc., concerning U.S. patent Nos. 7,263,887 B2 and 7,401,518 B2. At this
`time we'd ask counsel to introduce themselves and their colleagues
`beginning with counsel for Petitioner.
`MR. BOWICK: Yes. Bobby Bowick, and with me is Bradford Laney
`for Petitioner National Oilwell Varco.
`JUDGE HARLOW: thank you, Mr. Bowick.
`MR. LEMOINE: Judges, Joe Lemoine for Patent Owner, Technical
`Industries, and with me is Mr. Ted Anthony, co-counsel.
`JUDGE HARLOW: Thank you, Mr. Lemoine, and welcome to the
`Board. Before we turn to the substance of today's proceedings there are
`several preliminary matters we would like to address. First, beginning with
`Mr. Lemoine, counsel for Patent Owner, it's the understanding of the panel
`that Patent Owner has represented both in its preliminary response as well as
`its Patent Owner response that Patent Owner wishes to disclaim certain
`claims of the challenged patents; is that correct?
`MR. LEMOINE: That is correct.
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`JUDGE HARLOW: Thank you. For clarity of the record, would
`Patent Owner be amenable to filing within two weeks a request for adverse
`judgment in order to formally disclaim those claims?
`MR. LEMOINE: We would, Your Honor.
`JUDGE HARLOW: Thank you. Petitioner, would you have any
`objection to that procedure?
`MR. BOWICK: No objection.
`JUDGE HARLOW: Thank you. Patent Owner, we direct you to our
`rules and in particular 37 C.F.R.§42.73 which govern requests for adverse
`judgment, but this should be a very straightforward filing and to the extent
`either party has any questions please feel free to contact us via email.
`MR. LEMOINE: Thank you.
`JUDGE HARLOW: With that out of the way, counsel for Petitioner,
`when we were reviewing the record in preparation for today's hearing it
`came to our attention that it appears Petitioner has filed excerpts instead of
`full transcripts for certain depositions. Am I reading the record correctly?
`MR. BOWICK: That would be correct.
`JUDGE HARLOW: Thank you. Again, to have a full and complete
`and clear record, we would request that Petitioner go ahead and file full
`transcripts as exhibits as well as any exhibits that were used during
`depositions, noticed and taken by Petitioner, but that are not already of
`record. Does that make sense?
`MR. BOWICK: Yes. One question with respect to that. You want us
`to substitute those depositions with the exhibits for the existing exhibits in
`the record or file them as new exhibits to the IPR?
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`JUDGE HARLOW: If we were to substitute those exhibits, would
`that cause problems for citations in Petitioner's filings?
`MR. BOWICK: I don't believe it would. I just want to make sure that
`we follow the Court's practice and give you guys what you want.
`MR. LEMOINE: May I respectfully attempt to be helpful here?
`JUDGE HARLOW: Certainly, Mr. Lemoine.
`MR. LEMOINE: The Petitioner, the depositions that you had filed
`excerpts for Bobby, we have gone ahead and filed full transcripts of those in
`the record and they are already in the record. We can give the particular
`exhibit numbers and I don't know if you have to re-file them or just make
`reference to them because we did go ahead and already put the full
`transcripts into the record. I don't know if that helps save a few trees at
`least.
`
`JUDGE HARLOW: Thank you, Mr. Lemoine. Our normal
`procedure pursuant to our records requires that the party noticing and taking
`the deposition file the transcripts, however in view of the fact that it sounds
`like the transcripts may already be of record we may be able to go ahead and
`make an exception in this instance. What I would ask the parties to do is
`within two weeks to send an email to the Board indicating whether indeed
`all of the transcripts and all of the exhibits used during those depositions
`exist in their entirety somewhere in the record. If they do, then the Board
`can address any concerns we might have about who filed what and make that
`of record. But as an initial step if the parties are agreeable to it, if the parties
`wouldn't mind conferring and then sending an email to the Board confirming
`whether each transcript and exhibit used in the depositions is already of
`record.
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`MR. LEMOINE: Yes. And to again attempt to be helpful, Mr.
`Anthony has reminded me while the depositions and full transcripts are in
`the record, not necessarily all the exhibits to the deposition in the record, so
`when we clean up we'll have to attend that, Bobby.
`JUDGE HARLOW: Okay. So are the parties amenable to two weeks
`to confer, update the Board, and then we can proceed from there?
`MR. BOWICK: Yes, Your Honor.
`MR. LEMOINE: We agree.
`JUDGE HARLOW: Thank you counsel, very much. And then,
`Patent Owner, seeing as you've already filed copies, it sounds like of all of
`the depositions, just a reminder to the extent any transcripts you may have
`relied on either haven't been filed in their entirety or some exhibits are
`missing, please include that in the discussion with -- sorry, in the email that
`you'll send to the Board.
`MR. LEMOINE: Yes.
`JUDGE HARLOW: Thank you very much. All right. Consistent
`with our prior order, each party will have 60 minutes to present its
`arguments today. Because we are proceeding with regard to two cases that
`concern related patents, the panel invites the parties to express their
`preference for whether the parties will argue both cases at the same time or
`whether the parties would prefer to split the hearing into two parts, for
`example, arguing the 648 case first and the 699 case separately. Counsel for
`Petitioner, do you have a preference as to whether you'd like to present on
`both patents at once or break them up?
`MR. BOWICK: What I was planning on doing is do them sort of a
`hybrid. I was going to address the prior art with respect to the 887 patent
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`first and then when we move to the 518 patent, instead of re-plowing the
`same field, I'd probably just refer back to the earlier arguments but I might
`still go back to references or images from those references with respect to
`the different claims.
`JUDGE HARLOW: And would it be your preference to --
`understanding that format -- your preference to present both sets of
`arguments first and then have Patent Owner respond, or would you like to
`break it up by patent so that you would present on one patent, Patent Owner
`would respond, you would present on the other patent, Patent Owner would
`respond to you?
`MR. BOWICK: I would prefer to present on both patents, let them
`respond and then do a single reply or rebuttal.
`JUDGE HARLOW: Thank you very much. Counsel for Patent
`Owner, do you share the same preference or would you like to proceed
`differently?
`MR. LEMOINE: That would be satisfactory yes, Your Honor.
`JUDGE HARLOW: Okay. Thank you very much. In that case,
`Petitioner will proceed first to present its case as to the challenged claims in
`both cases, and may reserve rebuttal time as Petitioner has suggested.
`Thereafter, Patent Owner will respond to Petitioner's case. I'd like to note
`that any subsequent rebuttal by Petitioner must be confined to subject
`matter that was expressly addressed during Patent Owner's argument. We
`also remind the parties that pursuant to the statute, namely 35 U.S.C.
`§316(e) the Petitioner bears the burden of proving any proposition of
`unpatentability by a preponderance of the evidence and we remind the
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`parties that this hearing is open to the public and a full transcript of it will
`become part of the record.
`For clarity of the record, and because Judge Chung and I are both
`participating in this hearing by video link and we cannot see the
`demonstratives as you display them in the courtroom, we would request that
`you identify any exhibits by number or any demonstratives by page number.
`We have received the parties' demonstratives that they emailed to us. With
`that, I would invite Mr. Bowick to begin and to tell us how much time he'd
`like to reserve for rebuttal.
`MR. BOWICK: Thank you. Petitioner would request 35 minutes in
`rebuttal.
`JUDGE HARLOW: Thank you. And Judge Moore has kindly agreed
`to maintain the clock for us in Alexandria so that the parties can see how
`their time is being used. With that, counsel you may proceed.
`MR. BOWICK: Thank you. I'd like to start off addressing the 887
`patent. The only claim remaining based on the disclaimer is claim 4 and if
`you look at the differences claims 1, 2 and 3 have been disclaimed and what
`I'm referring to is Petitioner's demonstrative pages 8 and 9 for reference.
`The Patent Owner has disclaimed the claims 1 through 3 where the only
`novel feature of this patent being using a computer means to compute the
`effect of stresses on the wall of said tubular.
`Now this panel has already rejected claim 4 as anticipated by
`Assanelli in its initial determination and found obviousness of claim 4 of
`Assanelli in view of Kiefer and Assanelli in view of Lam.
`JUDGE HARLOW: Counsel, before you proceed I'd just like to
`clarify for the record that our initial determination was that Petitioner had
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`established a reasonable likelihood that it would be able to show by a
`preponderance of the evidence that those claims were unpatentable, but just
`to keep the record clear in case of an appeal we did not make a
`determination at this time that those claims are unpatentable.
`MR. BOWICK: Thank you. So the main issue before this panel is
`whether or not Assanelli discloses a computer for calculating these stresses
`on a tubular member and that is admitted in the Patent Owner's response
`which is dated November 30, 2017. That's docket No. 18, page 4, where
`there's an admission by the Patent Owner where they state,
`"It is true that Assanelli suggests data and the database is then
`processed by finite element method."
`The next quote says,
`"The dispute relies on whether or not a computer is used to perform
`that finite element analysis."
`So for the purposes of today's argument I am addressing claim 4
`which is the heart of this whole case, is whether or not Assanelli discloses
`calculating stresses by the finite element analysis and does it do so with a
`computer. Now this panel in its initial determination has already determined
`on paper No. 13 entered July 27, 2017 at page 18 that Assanelli teaches the
`use of a computer as the data acquisition system. That's also shown on
`figure 1 which is page 20 of the demonstratives of the Petitioner. There's
`clearly a CRT monitor displayed and a computer box labeled data
`acquisition.
`Now the Assanelli patent also describes fitness measurements as well
`as many other measurements including position, et cetera, being stored in
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`this database so that it can be processed to produce the images shown on
`figures 7, 8, 9 and 10 including 5 of the Assanelli reference.
`So the question is, is this just a data acquisition or is this a computer
`disclosed? Now as I mentioned this panel has already found, at least as a
`preliminary matter, that Assanelli discloses using a computer to determine
`stresses. Another IPR panel, IPR No. 2017-00860 has similarly found that
`Assanelli discloses the use of a computer to calculate these stresses and
`that's on page 25 of that other panel's decision and I'm referencing page 30
`of the demonstratives from the Petitioner. So another independent panel has
`also found that Assanelli discloses a computer to perform these stress
`calculations.
`JUDGE HARLOW: Counsel, refresh my recollection. In the 860 IPR
`it is not the same patent at issue that we're currently discussing. It's not the
`887 is it; is that correct?
`MR. BOWICK: It's not the 887, it's the same family. They all rely on
`the same disclosure from a provisional application so it's the third and fourth
`generation of the original filing.
`JUDGE HARLOW: Understood. Thank you.
`MR. BOWICK: So the 887 and the 518 are patents 1 and 2, and that
`other panel is dealing with patents 3 and 4. But it's the exact same
`disclosure, nothing new has been added. Very similar claims and elements.
`MR. LEMOINE: Counsel, excuse me. I didn't want to interrupt you.
`May I respectfully object to that. I believe Mr. Bowick is referring to IPRs
`in neither of the cases that are before this Board. It went before another
`Board and are different claims. It is true that they have the same
`specification but, again, I don't think it is another finding or anything that
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`amounts to (indiscernible) but a preliminary determination by another board
`and --
`MR. BOWICK: Well I'd appreciate -- you're going to have time,
`you're going to have an hour to --
`JUDGE HARLOW: Counsel.
`JUDGE MOORE: Counsel, yes.
`JUDGE HARLOW: Let's just move on. Your objection is noted for
`the record, Mr. Lemoine and Mr. Bowick, please proceed.
`JUDGE MOORE: And just for the -- so that this can work here.
`Certainly if there are issues of confidential information being disclosed or
`something you could certainly interrupt. But because we have to do the time
`and everything else, you will have time after his presentation to bring to our
`attention anything that you need to, so we'd like you to refrain from
`objecting during his presentation and they'll do the same during your
`presentation.
`MR. LEMOINE: Thank you. I will certainly comply.
`JUDGE MOORE: All right. Thank you.
`MR. BOWICK: Thank you. All I'm suggesting, I'm not addressing
`other patents, is that another panel has determined that the Assanelli
`reference discloses the use of a computer to perform the stress calculations.
`The Patent Owner's main argument is that Assanelli has a reference to
`manually taking thickness measurements but nowhere in these claims is
`there a requirement that it has to be done automatically. There's nothing in
`this patent --
`JUDGE HARLOW: Counsel.
`MR. BOWICK: Go ahead.
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`JUDGE HARLOW: Counsel, can you please explain the relationship
`as least as Petitioner sees it between how those manual measurements are
`taken and then ultimately recorded and processed by Assanelli?
`MR. BOWICK: From looking at the reference, I'm not a person of
`ordinary skill. Dr. Rodgers has addressed that in Exhibit 1007 and I think
`has explained that. Just from memory here I can assume that they have
`some kind of device that they trigger in a position to take a measurement.
`It's going to use some kind of ultrasonic which is a sound wave generated
`and received and I think for the purposes of these patents, if you look at
`these claims it doesn't mater how they do it. All they have to do is record a
`thickness measurement, a location longitudinally along a pipe and a position
`circumferentially around the pipe. So whether they take a manual
`measurement with a -- almost like you'd use a cell phone to take a picture,
`and they record even with a tape measure how far from the end of the pipe
`and what distance around, all the claims require is taking a measurement,
`recording where that measurement's taken longitudinally and recording
`where that measurement is done circumferentially and that that data is put
`into a digital format for a computer to read.
`So these claims are broad enough to cover even somebody sitting on a
`computer typing in numbers manually of the position, thickness, position
`both longitudinally and circumferentially. There's nothing in this claim that
`says it has to be done automatically.
`Now the prior art reference to Lam and to Kiefer both do those
`automatically with a location. They have transducers. They tell it where it
`is when it's taking the sensor both longitudinally and circumferentially.
`Now the Assanelli patent right after that reference to the manual
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`measurement of thickness where the ultrasonic transducer suggests that they
`plan on incorporating that into the automatic system that they were currently
`using and that is --
`JUDGE HARLOW: Can you point us to that point in Assanelli
`please?
`MR. BOWICK: Sure. If you look at page No. 2, left hand column
`about two thirds of the way down the page where you see figure 5 that's
`bolded, the sentence says,
`"An enhancement of the device is planned which will allow to
`measure the wall thickness on line with the outside diameter."
`So while this part of the article describes 272 locations with an
`ultrasonic gauge measured manually, the very next sentence describes using
`the ultrasonic thickness sensor automatically or mechanically to do this all in
`one. Now if you look at the rest of this article the only way to do the finite
`element analysis of a tubular you have to have the thickness which this
`article describes as sort of italicized t and to do those measurements to do
`finite element analysis, one of the critical parameters is going to be the
`thickness.
`Now this is outlined in Exhibit 1007 which is the Rodgers declaration.
`But my recollection from mechanical engineering in college finite element
`analysis is basically taking a structure and breaking it into tiny little cubes,
`little three dimensional objects, and computing all the stresses that would be
`on each one of those little cubes and thickness is going to be part of that.
`How thick that pipe is is going to be the critical area. The finite element
`formulas that are described here, reference D which is diameter and
`thickness as the critical parameters on pipe strength, how big around it is and
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`how thick that pipe wall is to determining what type of stresses a tubular can
`handle in an oil filled environment.
`Now if the panel turns to figures 5, 8, 9 and 10 of Assanelli there's no
`question that these graphics were done on a computer. These are not hand
`drawn based on manual (phonetic) -- they didn't take measurements and then
`get out their rulers and start sketching this, that's just silly. Even the Patent
`Owner's experts testified that these images were done with ADINA which is
`a commercially available finite element software that's out there on the
`marketplace before this patent was filed, when this article was written, that
`ADINA software was used to do these graphics, figures 5, 8, 9 and 10 that
`show the stresses that this tubular would have based on the thickness
`measurements, diameters and other things that were measured. Specifically
`I'm looking at our surreply brief which is docket No. 37, page 3, where I
`quote Mr. Mike Webre who is one of Patent Owner's designated experts.
`His transcript is Exhibit 1033, page 49, lines 5 through 9 where he admits
`that these figures were done by a computer which include calculating the
`stresses based on the measurements of a 3D object which was a tubular.
`Also the principal expert of the Patent Owner is William Emblom
`who identified these images as being performed using ADINA software
`which I don't think I need to provide an expert to say software has to be used
`on a computer, it doesn't do it by itself. Maye one day but as of right now
`and certainly as of 2003 when this patent was filed you had to have software
`loaded on to a computer to do anything and his testimony excerpted as
`Exhibit 1029, page 64, lines 14 to 17, and page 76, lines 6 to 16, where he
`admits that the figures shown in Assanelli were done on a computer using
`ADINA software.
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`So from Petitioner's standpoint whether or not a computer was used
`has been admitted to by both of the Patent Owner's experts. It's showing a
`picture of a computer, yes. They make a big deal that the word computer is
`only shown in a footnote of Assanelli but you don't have to say yes, we do
`all these calculations on a computer to know that a computer is used. The
`figures that have been identified by their experts as using software which
`can only be used on a computer to perform these stress calculations, so I
`don't believe that the fact that Mr. Assanelli didn't say hey, guess what, we
`did computer generated images on a computer doesn't mean that a computer
`wasn't used.
`JUDGE HARLOW: Counsel, just to keep the record clear a couple of
`times you've said Assarelli. I assume you mean Assanelli?
`MR. BOWICK: I'm sorry. Assanelli.
`JUDGE HARLOW: That's fine. I'm just trying to make the court
`reporter's job a little bit easier.
`MR. BOWICK: I'll spell it for him afterwards. I guess I assumed he
`was an Italian, I don't know. Okay. I want to talk a little bit about the 518
`IPR. Now they've withdrawn several claims here, 1, 2, 3, 5, 7, 8, 10, 12, 13,
`15, 17 and 19. So that leaves only claims 4, 6, 9, 11, 14, 16, 18 and 20. So
`in the preliminary determination this panel's determined that we've raised at
`least reasonable grounds for anticipation in view of Assanelli just like the
`887 alone or in combination with Lam and Kiefer.
`Now if you look at these claims in the 518 they're substantially similar
`so I'm going to go over everything. This has been addressed in all the
`briefing. But the difference in the 518 patent from the 887 is there's a
`limitation added with respect to claims 9, 14 and 18 which have a partial
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`Case IPR2017-00699 (Patent 7,401,518 B2)
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`overlap limitation. Now the Patent Owner didn't respond or dispute that in
`any of the filings it's made, that Petitioner made, so I'm going to skip over
`that and see if they address it in their time, I'll address that on rebuttal. But
`in the filings before this panel they didn't address whether or not any of the
`prior art had this partially overlaps language. They did not dispute that.
`The other difference in the 518 claims and the 887 is they have
`different claims that have the number of discreet portions laid out. Now
`claim 4 of the 887 says two. Claim 2 of the 518 says greater than or equal to
`two. I think it says at least two. Claims 4 and 6 of 518 say more than two.
`Claims 9 and 11 say more than 64 and claims 14 and 16 say more than 360.
`Now as we set out in our briefs and in the declaration of Dr. Rodgers,
`Assanelli, Kiefer and Lam disclose taking 360 measurements per
`circumference, so at least one measurement every degree of the pipe. A
`round pipe, assuming that it's round which it's supposed to be has 360
`degrees, they take a measurement every degree. Now if you look at --
`JUDGE HARLOW: Counsel, just to clarify, does Assanelli teach
`taking the thickness measurement every degree or I recall Assanelli
`disclosing taking the thickness measurement at 270 points?
`MR. BOWICK: In the first part of the article it says, for that
`disclosure, it says 272 but later in Assanelli, Assanelli describes taking that
`measurement 360 times per rotation.
`JUDGE HARLOW: I see. And counsel while you're looking that up
`just to remind you you have about five minutes.
`MR. BOWICK: I see it, thank you. And what I'm referring to is page
`5 of 9 of Assanelli, left hand column about two thirds of the way down, sort
`of right in there in the middle of these formulas there's a reference that says
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`Case IPR2017-00648 (Patent 7,263,887 B2)
`Case IPR2017-00699 (Patent 7,401,518 B2)
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`wherein is the number of samples taken in each turn (360 on average) which
`I believe is the disclosure that they take 360 measurements per turn where
`the turn is defined as one rotation of the pipe which is 360 degrees. There's
`a similar disclosure in the Lam reference and the same thing in the Kiefer
`reference where they take a measurement every 360.
`Now if you look at that the Assanelli paper refers to nine and five
`eighth inch tubulars. That's also described in the Patent Owner's patents as
`well and in the Patent Owner's patent they talk about this -- strike that, never
`mind. Basically my point is the prior art's showing 360 measurements per
`rotation and then if you take the linear index as it's much more than that --
`depends on the length of the pipe -- but if they take one every degree that's
`360 per rotation of the pipe. Oilfield tubulars are usually 30 to 40 feet long.
`So I can't really do the math there, but if I had my phone I could, it would be
`much more than 360 which would satisfy all these claims.
`Now the last element of these claims of the 518 is the same as claim 4
`of the 887 and I believe I've addressed that over and over again with the
`computer doing the stress calculations. I don't believe there's dispute but I'm
`sure we're soon to hear that there is some kind of dispute, so at this point any
`questions for me? I'll take them. I know I've only got two and a half
`minutes, otherwise I'll turn over the podium.
`JUDGE CHUNG: Counsel, can you hear me?
`MR. BOWICK: Yes, I can.
`JUDGE CHUNG: Hi. Good afternoon. So I have a question about,
`well I guess I just want to clarify your theories on what Assanelli discloses.
`It was a little unclear to me whether you are arguing that Assanelli teaches a
`person of ordinary skill that a computer is used to do finite element analysis.
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`Case IPR2017-00648 (Patent 7,263,887 B2)
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`In other words, are you arguing what Assanelli is teaching to one of ordinary
`skill in the art or are you arguing inherency, or inherent disclosure in
`Assanelli as disclosing using a computer to compute stresses?
`MR. BOWICK: I'm not saying it's inherent, I think it's directly there.
`A person of ordinary skill would know the finite element that's shown there
`is done on a computer because of the images generated. There's no question
`that those images are computer generated. Dr. Rodgers addressed this point
`in his supplemental declaration where he looked at the number of
`calculations required to generate figure 9 of Assanelli and he determined that
`if you could do those calculations in I think a ten second period by hand, it
`would take 17 years to accomplish, whereas if you did it on a Pentium 5
`computer with -- I can't remember how many gigahertz it was -- but
`whatever was used around 2001 it could be done in a matter of 30 seconds.
`So I don't think there's any question that a computer was used. We
`know that Assanelli didn't spend 17 years doing these calculations to publish
`a paper back in 1998. I don't think he started, I don't even know, 17 years
`before that to generate those images in figure 9 but I don't see that there's
`any dispute, and to the extent there's any suggestion that it's not directly
`disclosed I would assume that it's certainly inherently disclosed because I
`can't imagine any person of ordinary skill or even of low skill spending 17
`years at their desk 24/7 doing these type of calculations.
`JUDGE CHUNG: Okay. So my question is whether Dr. Rodgers
`addressed this issue in the original declaration filed with the petition? Did
`he address, you know, what Assanelli teaches to one of ordinary skill?
`MR. BOWICK: I don't believe he did the calculations. He stated why
`it was done. The software, I think he identified what software it was done
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`Case IPR2017-00648 (Patent 7,263,887 B2)
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`with and that that software was done later. In his supplement he responded
`to the Patent Owner's expert, Mr. William Emblom, who stated that finite
`element software was not available when this patent was filed in 2003 and
`that this stuff was routinely done by him by hand. So what Dr. Rodger's was
`rebutting is this isn't done by hand, it would take 17 years to do the Assanelli
`by hand, and he also brought in several prior art references from Mr.
`Emblom's school where he taught which was University of Louisiana
`Lafayette -- which we call U La La (phonetic) -- there are several papers
`from that university describing the use of finite element software in the '90s,
`you know, ten to fifteen years before this patent was filed. So finite element
`software existed when I was in college in the early '90s. It existed at U La
`La, and a person of ordinary would certainly have access to it.
`JUDGE CHUNG: I understand. Thank you.
`MR. BOWICK: Any other questions? Thank you all very much.
`JUDGE HARLOW: Thank you. Counsel for Patent Owner, would
`you like to proceed?
`MR. LEMOINE: Yes, Your Honor. And I do have an administrative
`question to ask. I have back difficulty. I will try to do my best standing at
`the podium but in the event it becomes -- would I be permitted to sit?
`JUDGE MOORE: Yes.
`MR. LEMOINE: Okay. I'll try to endure.
`JUDGE MOORE: We'll certainly accommodate and whenever --
`don't feel tha