`U.S. PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`ELITE PERFORMANCE FOOTWARE, L.L.C.,
`Petitioner
`
`v.
`
`REEBOK INTERNATIONAL LIMITED,
`Patent Owner.
`__________
`
`Case IPR2017-01676 (Patent 7,637,035 B1)
`Case IPR2017-01680 (Patent 8,505,221 B2)
`Case IPR2017-01689 (Patent 8,020,320 B2)
`__________
`
`Record of Oral Hearing
`Held: October 25, 2018
`__________
`
`Before MEREDITH C. PETRAVICK, KEVIN W. CHERRY, and
`JAMES A. WORTH, Administrative Patent Judges.
`
`
`
`
`
`Case IPR2017-01676 (Patent 7,637,035 B1)
`Case IPR2017-01680 (Patent 8,505,221 B2)
`Case IPR2017-01689 (Patent 8,020,320 B2)
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`RICHARD LACAVA, ESQ.
`MICHAEL SCARPATI, ESQ.
`of: Arent Fox, LLP
`1301 Avenue of the Americas
`New York, New York 10019-6040
`(212) 484-3900
`richard.lacava@arentfox.com
`michael.scarpati@arentfox.com
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`MITCHELL G. STOCKWELL, ESQ.
`MATIAS FERRARIO, ESQ.
`Kilpatrick Townsend & Stockton LLP
`1001 West Fourth Street
`Winston-Salem, North Carolina 27101
`(336) 607-7503
`mstockwell@kilpatricktownsend.com
`mferrario@kilpatricktownsend.com
`
`
`
`The above-entitled matter came on for hearing on Thursday, October
`25, 2018, commencing at 9:00 a.m. at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia.
`
`
`
`
`Case IPR2017-01676 (Patent 7,637,035 B1)
`Case IPR2017-01680 (Patent 8,505,221 B2)
`Case IPR2017-01689 (Patent 8,020,320 B2)
`
`
`P-R-O-C-E-E-D-I-N-G-S
`
`8:58 a.m.
`JUDGE PETRAVICK: Good morning, please be seated. It will
`take us a few minutes to boot-up our computers.
`(Pause.)
`JUDGE PETRAVICK: All right, we'll begin. Today we're here for
`a hearing for IPR 2017-01676, -01680, and -01689. I'm Judge Petravick;
`with me on the bench is Judge Cherry and Judge Worth.
`Each side will have 90 minutes total time which can be divided
`between argument and rebuttal, and so the order will go, Petitioner, Patent
`Owner, Petitioner, and then Patent Owner again, as set forth in the
`scheduling order.
`So, Petitioner and Patent Owner, if you'd like to introduce yourselves
`and then let me know how much time you'd like to reserve for rebuttal.
`MR. LACAVA: My name is Richard LaCava from Arent Fox, here
`on the behalf of Petitioner, Elite Footwear, and with me is Michael Scarpati,
`also from Arent Fox. I'd like to reserve 45 minutes for rebuttal.
`JUDGE PETRAVICK: Okay. And for Patent Owner?
`MR. FERRARIO: Good morning, Your Honors, Matias Ferrario
`from Kilpatrick Townsend on behalf Reebok International. With me is
`Caroline Wray, my colleague, also from Kilpatrick Townsend, and with me
`and joining us today is Ms. Sara Halton, who is Senior IP Counsel of
`Reebok International.
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`JUDGE PETRAVICK: And would you like to reserve some time for
`your rebuttal?
`MR. FERRARIO: Yes. I don't know that I'll need all my 90
`minutes. My timing right now looks to be about 40 minutes on an opening
`and reserving some time for rebuttal.
`JUDGE PETRAVICK: Okay. All right. Also, if you can make
`sure that after the hearing you give a business card to the court reporter so
`that they have the correct spelling of your name. That would be
`appreciated.
`Can you hear me? Am I close enough to the microphone? Okay.
`MR. LACAVA: I can hear you just fine.
`JUDGE PETRAVICK: So Petitioner, if you'd like to approach the
`podium. Give me a minute -- I'm going to set this clock for 45 minutes, and
`anytime you go over it, that will be deducted from your rebuttal time.
`MR. LACAVA: Thank you very much, Your Honor.
`JUDGE PETRAVICK: All right. Then one last instruction before
`you start; if you are going to refer to a slide, please make sure to say the
`slide number so that it's reflected in the transcript so we can go back and
`look at it later.
`MR. LACAVA: Yes, Your Honor. Thank you.
`JUDGE PETRAVICK: Thank you. You can begin when you're
`ready.
`MR. LACAVA: Good morning, Your Honors. Thank you for being
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`here this morning. My name is Rich LaCava, I'm here representing
`Petitioner in this matter, and I just want to let you know, I believe we have --
`and I'll lay out for a very straightforward case in this proceeding for
`invalidity of the claims that are at issue here, and I will be presenting that as
`we go forward.
`The first thing I'd just like to take you through is an overview of the
`patent that we're dealing with here. As we here on slide No. 4, we have just
`a summary and an exemplary picture of what we're dealing with, and it's an
`article of footwear. The claims cover an upper material, a sole material, and
`some flexure grooves or flex lines in the sole of the material, and sole plates
`that are there.
`So we'll be going through this in the context of what the claims are,
`just to give you some idea, but I think the first ultimate issue that we are
`dealing with is what the proper claim construction is of these flexure lines
`that are within the claims at issue.
`(Off microphone comments).
`So looking at slide No. 12, we have here at issue in the case we've
`had three constructions that are basically at issue here. We had petitioned
`our initial construction, which we had proposed a claim construction for a
`flexure line that was simply a line that divides the sole of the shoe into a
`plurality of sole plates.
`As we know from the Institution Decision, the Board, Your Honors,
`adopted a slightly different construction of that for the Institution Decision,
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`which was the center box on the slide, which is a line that divides the sole
`into a plurality of sole plates and allows the sole to bend or curve.
`It was also noted in the Institution Decisions that the broadest
`reasonable construction at that stage did not require any specific degree of
`bending or curving such as to allow the sole to collapse or roll onto itself.
`Then we have, lastly, Patent Owner's proposed construction, which
`was a groove in a shoe sole that allows the sole to substantially better curve
`enough for the shoe to be folded and divides the sole into a plurality of sole
`plates.
`So going through this construction in our follow-on papers, Petitioner
`agreed that the proper construction here is what the Board had set forth in
`the Institution Decision. You will hear from Patent Owner that they believe
`by adopting that construction, that it ignores the flexibility requirements of
`the claim language, of the flexure line. But we believe that it does not do
`so. The Board's construction does set forth some degree of flexibility,
`which is all that is required by the claims and what is set forth in the
`specification.
`In fact, you'll see -- we'll show you some slides in evidence that both
`of the experts have opined and said that when you put a groove into a
`material, it will bend more at that groove than it will at other places. So it
`will concentrate stresses at that point, because it's a thinner piece of material,
`and the shoe will bend more likely at that point than anywhere else.
`JUDGE CHERRY: Is flexure line a term of art?
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`MR. LACAVA: Not that I'm aware of.
`JUDGE CHERRY: Would you say it's fair to say that the invention
`disclosed in these patents is a shoe that collapses?
`MR. LACAVA: I would say that the invention disclosed is a shoe
`that collapses. I would not say that the claims cover a shoe that collapses.
`JUDGE CHERRY: But do you think that it's unreasonable to -- if the
`only invention disclosed is a shoe that collapses, is it fair to construe the
`claims as not embodying that invention?
`MR. LACAVA: I think it is, with the way the claims have been
`constructed, and the way they're structured. It is, because the claims are
`comprising claims, and they only have a certain number of elements, but
`they don't exclude anything else. They don't provide any way to objectively
`measure what this -- you'll hear from Patent Owner -- they say some
`enhanced flexibility.
`There's nothing that lets anyone reading the patent know, well, what
`was normal flexibility beforehand, and what is enhanced flexibility now?
`How is anyone supposed to know if they made a shoe, whether that shoe was
`normal flexibility and outside the scope, or somehow some arbitrary point
`that is now enhanced flexibility and covered by the patent?
`JUDGE CHERRY: Now, in the litigations, I'm assuming that --
`there's a litigation involving your client with this patent, is there?
`MR. LACAVA: Correct. There have been several.
`JUDGE CHERRY: So now, for the parts that are accused, are they
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`collapsible shoes or are they just regular shoes like regular sneakers you
`buy?
`
`MR. LACAVA: Well, that's the whole point of why Petitioner is a
`little confused here, because we believe that the accused shoes are just
`normal sort of athletic footwear; sneakers, not sort of collapsible shoes or
`anything that would fit the configuration that they've disclosed in this patent.
`JUDGE CHERRY: So do you sell a shoe-- like the shoe that they've
`put in their secondary considerations that you roll up and sell in a vending
`machine?
`MR. LACAVA: No, we do not.
`JUDGE CHERRY: Okay. Did you put the -- have there been
`infringement contentions in the underlying litigation?
`MR. LACAVA: No, I don't believe we have any infringement
`contentions. There was an initial ITC case --
`JUDGE CHERRY: Okay.
`MR. LACAVA: -- which then, since the -- how do we say that -- but
`it settled.
`JUDGE CHERRY: Okay.
`MR. LACAVA: And then there's a district court action in Oregon
`that has been stayed right before the Markman hearing, so we haven't gotten
`down to that stage yet.
`JUDGE CHERRY: Now, in the ITC litigation, did they -- they
`proffered this construction of just the ornamental construction they used
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`initially in the petition. Did they map the shoes based on that construction
`in their complaint?
`MR. LACAVA: Yes, they did, Your Honor.
`So in continuing on; let's see where we were. Also you will hear
`from Patent Owner making statements that Petitioner and Petitioner's expert
`ignored the flexibility requirements of the claims in his analysis, and in fact,
`that's actually not true, because in the first declaration of our expert, he went
`on at length in -- I just note too, that it was Mr. Ulan's first declaration in this
`case -- paragraphs 112 through 114. In that declaration, he specifically
`went through an analysis that involved flexibility.
`Can you pull up his first declaration?
`(Pause.)
`(off microphone comments.)
`MR. LACAVA: So if we look here, just reading through this portion
`of Mr. Ulan's declaration, Petitioner's declaration, it's dealing with the Nike
`1995 catalogue, and he says here in his declaration, Nike H1995 further
`teaches that the inclusion of flex grooves on an athletic shoe are
`advantageous because they improve performance by increasing flexibility.
`
`He said, The Air Max shoe has an outsole with a large single flex
`groove in the midsole and an outsole forefoot for enhanced flexibility.
`Then the Air Structure II sole has an outsole with asymmetrical V-flex
`grooves in the midsole and outsole forefoot, and the Air Flight One shoe has
`flex grooves in the midsole and outsole for flexibility. Additional examples
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`of this are found throughout this catalogue.
`Then the expert goes on to say, Based on these examples, which
`illustrate flex grooves spanning the forefoot arch and heel areas, various
`configurations, a POSITA would have understood that flexible grooves on
`the bottom of an outsole are both useful and easily applied to a given design
`with predictable results. In other words, adding a flex groove to the
`forefoot arch or heel area increases flexibility in those areas.
`Then he states further, It is further my opinion that Nike H1995
`provides additional guidance that would have led a POSITA to experiment
`with shoe designs featuring variations on the number and placement of
`grooves along the outside of the shoe in order to arrive at a designs with
`increased or modified flexibility profiles.
`And then in his opinion he says, Nike H1995's teachings regarding
`flex grooves provide a further motivation to combine the teachings of
`Reebok 2000 and Nike H1995. For example, these teachings would have
`naturally motivated the POSITA to experiment with designs inspired by
`Reebok's 2000 Classic Sovereign with alternate flex groove configurations.
`And It is further that a POSITA designing shoes inspired by Reebok
`2000 would consider combining the forefoot of Reebok 2000's Classic
`Sovereign with the arch and heel areas of Nike H1995's Air Footscape in
`order to derive an outsole pattern similar to these examples of previewed
`market trends, but sufficiently different to avoid confusion with the original
`designs.
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`Both outsoles feature similar patterns of flexure lines and sole plates,
`given the basic similarity of these designs as POSITA would have readily
`appreciated that a new design generated by merging aspects of these two
`sources of inspiration would maintain a cohesive aesthetic which is desirable
`in the footwear industry.
`So you see, he has commented about the flexibility of grooves in the
`prior art, and it's not just an aesthetic analysis; there's more than that. It is
`all of the factors that were enumerated under KSR that he has looked at as
`why you would combine things together and what people would understand
`these grooves to be and how they would function in the bottom of an athletic
`shoe.
`
`JUDGE PETRAVICK: Counsel --
`MR. LACAVA: Yes, Your Honor?
`JUDGE PETRAVICK: The patent says that the shoe can be -- I just
`want to read it -- rolled, folded, or collapsed, and figure 4 shows a partially-
`collapsed shoe, and figure 5 shows a storage container in which is a shoe
`that is collapsed. What's the difference between a rolled, folded, and
`collapsed?
`MR. LACAVA: That is a very good question, Your Honor, and as
`part of our -- I think, we are not sure when the line goes from one to the
`other.
`
`JUDGE PETRAVICK: So is-- which one is the extreme? So if
`something that is rolled, is that all the way rolled up into the collapsed stage
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`like the stage shown in figure 5?
`MR. LACAVA: I believe-- rolled and collapsed are synonymous,
`from reading the patent. I think they're one and the same.
`JUDGE PETRAVICK: But folded is different?
`MR. LACAVA: Folded, I believe, is more like what you have in
`figure 4 here.
`JUDGE PETRAVICK: So in Patent Owner's proposed construction,
`they just have folded, but not collapsed.
`MR. LACAVA: I believe that's correct, yes.
`JUDGE PETRAVICK: So if I'm following my logic here, I'm going
`to ask these same questions to the Patent Owner --
`MR. LACAVA: Yes.
`JUDGE PETRAVICK: We're not-- this claim is broad enough to
`cover a shoe that is just partially -- they call it partially collapsed or folded,
`but not all the way rolled together or what that Patent Owner calls fully
`collapsed.
`MR. LACAVA: That is correct. That is our understanding as well.
`It covers a range of what would be from bent to all the way collapsed or
`rolled up onto itself.
`JUDGE CHERRY: Can it be folded or collapsed when your foot is
`in the shoe?
`MR. LACAVA: Well, I think that would be reading a little too
`much. I don't think anyone would think you could roll up a folded shoe
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`while your foot is in it. I don't think feet would --
`JUDGE CHERRY: Well, I mean, I'm just thinking if you're standing
`on your tippy-toes and the shoe kind of bends.
`MR. LACAVA: Well, like most shoes, I think that would be the
`case. Again, that is part of the problem we have with Patent Owner's
`proposed construction and with the whole description of this application in
`the beginning.
`There's no indication in the patent or anywhere on file this year,
`anything that indicates, well, how much force do you need to fold it into that
`configuration? How is one looking at this patent in the claim supposed to
`know what force is applied?
`I know they've made arguments about some normal flexibility and
`some enhanced flexibility of this patent, but none of that is present in the
`claims, and there is no objective way of figuring out what that force would
`be, looking at the claims or Patent Owner's proposed construction.
`JUDGE WORTH: Is it a matter of force, or is it a matter of degree of
`flexion?
`MR. LACAVA: Well, it's partly both.
`JUDGE WORTH: So when do you know --
`MR. LACAVA: So it's both of them, which is double the problem
`with their proposed construction. They say, Substantially bend enough to
`be folded. Well, at what point along the continuum does a substantial bend
`turn into a fold? How is someone supposed to know? Under what force do
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`you have to apply to a shoe in order to make it fold or make it substantially
`bend?
`JUDGE WORTH: Where are you getting this force issue from? Is
`there a claim language --
`MR. LACAVA: There's no claim language, and that's the point.
`The claim itself is indefinite, because no one knows what the metes and
`bounds of the claims are.
`JUDGE WORTH: I'm not sure why force is an issue.
`MR. LACAVA: Oh, force is an issue because Patent Owner and
`their proposed construction in arguments have brought up the distinction
`between the present invention and how it's different over a normally-flexible
`shoe. No one knows what a normally-flexible shoe is.
`JUDGE WORTH: And there's no -- you're not tying any claimed
`term or phrase --
`MR. LACAVA: No, no.
`JUDGE WORTH: -- to the issue of force?
`MR. LACAVA: No, Your Honor, we're not. The first time this
`normal flexibility and supposed enhanced flexibility came up was in their
`expert declaration. So it's nowhere to be found within the specification, and
`if they're claiming their proposed construction provides this enhanced
`flexibility, how is one supposed to know, based on their construction,
`whether you have normal flexibility or enhanced flexibility? That's covered
`by what they say --
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`JUDGE PETRAVICK: But, Counsel, doesn't it -- doesn't the term
`we're talking about -- looking at the claims of the 035 patent -- the claim is
`for an article of footwear. It doesn't say collapsible article of footwear; it
`doesn't say flexible article of footwear. It doesn't have a functional
`limitation that says that the article of footwear itself collapses.
`But it does say that it has these lines, and it's the adjective, flexure,
`right? What does the adjective, flexure, add to this whole claim? That
`adjective is on the line, not the footwear in the claim.
`MR. LACAVA: Correct, Your Honor.
`JUDGE PETRAVICK: So what they're asking us to do is say that the
`adjective flexure -- read that so as to require the footwear in general to be
`able to go into a collapsed state or a rolled state. Isn't that where the idea of
`flexibility and enhanced flexibility comes into the claim?
`MR. LACAVA: Sure. Yes, yes it does. But if you look at it as
`well, all of these shoes that we've cited in the prior art and everything we
`know about, they have rubber soles. They have EVA, 3D Utralite; all these
`materials that they call out in the patent as being capable of assuming that
`configuration.
`So if we made another shoe out of those, is it material-based? It's
`very indefinite as to -- again, if you put it in a collapsed state, how much
`force can you apply to a shoe to put it into that collapsed state?
`JUDGE CHERRY: Do you think that if we adopted their
`construction then we'd also have to limit the upper? It seems like the
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`flexibility would also depend on the upper part of the shoe as well.
`MR. LACAVA: I believe it would, and that was another point I was
`going to raise. In each of these claims, all it says is an upper in the main
`and independent claims. It doesn't say anything about a flexible upper.
`They are also going to argue with you that the main reference, this one here,
`the Classic Sovereign, Reebok's own shoe; they're going to say that this has
`a stiff leather upper that doesn't let it move into that.
`But their own description of it in the catalogue calls it a soft, luxurious
`material. I think those two things are quite at odds with each other. I think
`everyone kind of knows that leather is flexible. If you apply enough force
`it's going to bend, and if you apply enough force we could probably roll this
`shoe up.
`JUDGE WORTH: Just -- on the indefiniteness argument; do I take it
`that you're arguing that with respect to the Motion to Amend? I mean, this
`is an IPR, so --
`MR. LACAVA: Well, I'm arguing two things; one is in the Motion
`to Amend, that the claims are indefinite because they use language like fold
`and roll and collapse. The other one is their proposed construction
`shouldn't be adopted because it is indefinite.
`And then we're just adding more uncertainty of what the scope of the
`claims would be if their construction is adopted.
`JUDGE WORTH: But you are not arguing indefiniteness in the main
`case before the Motion to Amend?
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`Case IPR2017-01676 (Patent 7,637,035 B1)
`Case IPR2017-01680 (Patent 8,505,221 B2)
`Case IPR2017-01689 (Patent 8,020,320 B2)
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`MR. LACAVA: We are arguing for the Motion to Amend; that some
`of their claims are indefinite the way they have proposed them. We are also
`arguing in relation to only Patent Owner's proposed construction that is
`indefinite, not the Board's construction.
`JUDGE CHERRY: So you're raising it just as an argument against
`that construction, though. We shouldn't adopt that construction because it's
`an indefinite construction?
`MR. LACAVA: Yes, 100 percent. Thank you, Your Honor. Also,
`if you turn on to Patent Owner's construction, we believe that their
`construction is unreasonably narrow, given the disclosure in the
`specification.
`For example they talk about, whatever construction we apply to the
`claims have to apply to all the flexure lines that are there, and even their own
`images, say for here, the bending one, we have flexure lines. They are
`highlighted here at 301 at the bottom of the page. Those are not bending at
`all to allow the substantial bending to allow the shoe to fold.
`JUDGE CHERRY: To the extent that they're adding the limitation
`that the shoe has to be rolled or folded, do you have an objection to that? I
`mean, wouldn't that solve their problem, that if they explicitly say that the
`shoe has to be rolled or folded? Doesn't that get away from this problem
`that we talked about, that every sneaker would read on the claim?
`MR. LACAVA: Well, it goes back to the same problem. If you add
`rolled or folded into the claim, people who are making shoes -- shoes have
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`Case IPR2017-01680 (Patent 8,505,221 B2)
`Case IPR2017-01689 (Patent 8,020,320 B2)
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`grooves in the bottom. They define sole plates; there are all kinds of
`different configurations, as we know.
`In order to know if I infringe, how much force do I have to apply to
`fold that shoe or roll it? And under whose hand? Patent Owner has argued
`in their responses and through their expert that it's an adult human hand or a
`human hand. Well, whose human hand? Is it mine? Is it yours? My co-
`counsel and I get along very well, but I guarantee there are things I can roll
`and fold that he cannot.
`JUDGE CHERRY: We can have feats of strength.
`(Laughter.)
`MR. LACAVA: So at what point -- you know, how are you
`supposed to objectively understand whether you would infringe such a
`claim? That's the whole point of why their proposed construction does not
`work.
`
`It would just add more ambiguity to what the scope of the claim is and
`whether people would know whether they do or do not infringe, and it would
`set an arbitrary boundary for the Patent Owner to make accusations of
`infringement for anyone they desired if they can say, Oh, well, someone can
`fold this. Maybe it's a machine that can fold it or roll the shoe up. There's
`no arbitrary way of determining what that would be.
`So returning to your earlier question about the prior litigation; in fact,
`Reebok had accused what we consider several regular sneakers of infringing
`this claim, so if it was within the scope -- this is why we're very confused
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`about what their original position was and what their position is now, and
`how, with any construction that's applied, how would we know whether we
`do or don't infringe the claim if it were to survive with that construction?
`JUDGE WORTH: Could you address the argument on page 43 -- I'm
`in the 1676 case -- page of 43 of the Patent Owner response, saying, The
`widest portion is not wider than the widest portion of the first sole plate.
`MR. LACAVA: The Patent Owner's response
`(Pause.)
`-- Well, that's their argument. Go back to our construction here; we
`will show you where that feature is set forth.
`So here we have in this image -- I hope -- do you have the images on
`your screen as well?
`JUDGE PETRAVICK: Mm-hmm.
`MR. LACAVA: Okay, there we go. So we're talking about, here in
`this claim 1, the sole plates that are in the arch area. So this is the image
`from the Classic Sovereign. We've got a first sole plate and a second sole
`plate that are here, and --
`JUDGE WORTH: What exhibit is this, just for the record?
`MR. LACAVA: This is slide No. 57. So just looking at the image
`that you have here, there is the sole plate on the left is wider than the sole
`plate on the right. Also, with regard to relative dimensions of sole plates,
`there has not been identified anywhere any criticality associated with one
`sole plate being larger or wider or anything than the other.
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`So if it doesn't even disclose that, it's just a term matter of degree, and
`without that, it's just a matter of design choice of whether you make one
`larger than the other.
`JUDGE WORTH: So in the Patent Owner response it says Mr. Ulan
`admits he did not measure the width of the sole plates.
`MR. LACAVA: Right. I believe -- on an actual shoe. He looked
`at the image.
`JUDGE WORTH: Okay.
`MR. LACAVA: We could find that actual shoe, and it's not
`admissible as part of what the evidence -- we're just relying on what the
`picture itself was.
`JUDGE WORTH: The catalogue?
`MR. LACAVA: The catalogue picture and what that would
`reasonably show to someone of skill in the art looking at the image, so not
`the actual shoe itself, and the image seems pretty clear that one sole plate is
`wider than the other. But again, what Mr. Ulan was talking about was, he
`didn't actually look at a shoe.
`Okay. I'm going to address one other issue that the Patent Owner
`will be bringing up. They will contend that there is some disavowal
`throughout this specification that relate to these normal shoes, bulky or
`heavy shoes, and how that is a disavowal of shoes that cannot bend or fold
`or collapse -- or that cannot fold or collapse or roll upon each other.
`Just to counter that, the Reebok 2000 specifically lists the 3D Ultralite
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`material, which is the same material that they say the sole is made of in their
`patent -- I believe there's also a claim that specifically covers that material.
`And within the Reebok catalogue --- or actually within the patent itself in the
`035 patent at column 4, lines 32 to 36, it says, 3D Ultralite material is a
`unique mix of polymers that provide good cushioning and prevention of
`friction while being lightweight and very flexible, while also offering
`excellent road feel, traction, and superior shock absorption.
`So if you have the same material, how would it not function the same
`way in the prior art that we have? In fact, why don't we go right to the
`claims section, and we'll walk you through, now, some of the exemplary
`claims.
`What we've gone through here -- we have it in our other papers, but
`what we've gone through here are the claims as they were applied to the
`initial Institution Decision; not every single one of them. So we've just
`highlighted them as examples for you, and we can go through them right
`here.
`
`So we have here on the slide, we've got 035 patent claims. For claim
`1 we've got an article of footwear comprising; not a collapsible shoe, not a
`rolled or folded shoe, just an article of footwear. So, got Reebok 2000, their
`own catalogue and shoe. It discloses this Classic Sovereign shoe, and we're
`at Slide 53 to be clear for the record.
`The next limitation, which is on slide 54, requires an upper. It
`doesn't say flexible material, leather, mesh, anything like that. As far as we
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`know, an upper could cover something made of wood. Who knows? So
`the Classic Sovereign has an upper.
`Then the next limitation we have
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