`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CASCADES CANADA ULC,
`Petitioner,
`
`v.
`
`ESSITY PROFESSIONAL HYGIENE
`NORTH AMERICA, LLC,
`Patent Owner.
`____________
`
`Case IPR2017-02198
`Patent 8,273,443 B2
`____________
`
`Record of Oral Hearing
`Held: December 14, 2018
`____________
`
`
`
`
`Before JO-ANNE M. KOKOSKI, KRISTINA M. KALAN, and
`JON B. TORNQUIST, Administrative Patent Judges.
`
`
`
`
`Case IPR2017-02198
`Patent 8,273,443 B2
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`DAISY MANNING, ESQUIRE
`RUDY TELSCHER, ESQUIRE
`Husch Blackwell LLP
`190 Carondelet Plaza
`Suite 600
`St. Louis, MO 63105
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`DAVID A. MANCINO, ESQUIRE
`KEVIN P. FLYNN, ESQUIRE
`Baker Hostetler
`312 Walnut Street
`Suite 3200
`Cincinnati, OH 45202-4074
`
`and
`
`RAMON A. URTEAGA, ESQUIRE
`SCA
`2929 Arch Street
`Suite 2600
`Philadelphia, PA 19104
`
`
`
`
`The above-entitled matter came on for hearing on Friday, December
`
`14, 2018, commencing at 1:00 p.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`
`2
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`Case IPR2017-02198
`Patent 8,273,443 B2
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`P R O C E E D I N G S
`- - - - -
`JUDGE TORNQUIST: You may be seated. Okay. This is a hearing
`for IPR 2017-02198. Cascades Canada ULC versus Essity Professional
`Hygiene North America LLC. Per our November 21 trial order, each side
`will have 45 minutes to argue today. Petitioner bearing the burden of proof,
`you will go first and can reserve time for rebuttal if you will like. Patent
`owner, you will go next and you can also reserve a short period of time for a
`sur rebuttal if you'd like and we will hear from petitioner and then patent
`owner.
`
`Before we begin, I have just one issue, patent owner, just looking at
`the briefing, there is a paper that came in, paper 10 that changed the name of
`patent owner.
`
`MR. MANCINO: Yes, sir.
`
`JUDGE TORNQUIST: To Essity professional Hygiene North
`America. All of the briefing since has had the name Essity Professional
`Hygiene or, I mean, with an AB, Essity Hygiene and Health AB. So which
`one is the patent owner?
`
`MR. MANCINO: May I?
`
`JUDGE TORNQUIST: Sure.
`
`MR. MANCINO: This is counsel.
`
`MR. URTEAGA: Yes, everything is owned by Essity. Everything
`has transferred to the ownership, formally to the ownership of Essity. It is
`just a name, a name change, not an assignment so it is the same company as
`when this case was originally filed.
`
`JUDGE TORNQUIST: So North America LLC is the owner?
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`MR. URTEAGA: For this particular case it is North America.
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`JUDGE TORNQUIST: Okay.
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`MR. URTEAGA: Yes. The related cases that we saw last month,
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`those are the AB Company.
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`JUDGE TORNQUIST: Okay.
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`MR. URTEAGA: Which is an affiliate. I hope that clarifies.
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`JUDGE TORNQUIST: Yes. Okay. Thank you.
`
`MR. MANCINO: Thank you for asking.
`
`JUDGE TORNQUIST: Okay. With that, petitioner, when you are
`ready.
`
`MR TELSCHER: Good afternoon, Your Honors. On behalf of
`petitioner we would like to have 30 minutes of opening and then 15 minutes
`of rebuttal.
`
`JUDGE TORNQUIST: Okay.
`
`MR TELSCHER: Ms. Manning, can you please bring up Slide 2?
`Oh, well, can we approach and give copies? I'm burning my time here.
`Would you like copies now or later?
`
`JUDGE TORNQUIST: I will take a copy. Do you need one?
`
`MR TELSCHER: Sure. All right. As I think we are all aware by
`now by the briefing, there is one primary issue as to the independent claims
`and that is whether or not it's obvious to combine embossing with our
`primary references. As to Claim 10 there is the additional issue for the
`independent claims as to a basis weight which we will discuss as well.
`
`Slide 4 please. Essity on this record does not dispute that Teall
`discloses all limitations of the independent claims except for the embossing
`and then as to independent Claim 10 again, the basis weight.
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`Slide 37. So the primary issue before the board is whether it would be
`obvious to combine embossing with the Teall reference and we will get to
`Grosriez and Winter as well.
`This same issue has already been resolved by one examiner and the
`board back in 2008. Back in 208 and we have cited this in our briefing, both
`the examiner found that it would be obvious to take the basis weights and
`embossing of Heath and combine them with the primary references that were
`of record then.
`In 2008 before a board that same issue was presented up on appeal
`and the board said that yes, it would be obvious to use the embossing in
`basis weights of Heath in combination with the primary references.
`Back to Slide 4 please. To be clear, that issue is the same issue that
`we have on appeal here. And the reason for that is on this, excuse me this
`IPR because the 443 patent then was for a quarter folded panel napkins but
`the independent claims that were at issue back in 2008 were for folds that
`were at least twice. So those claims covered six panel napkins. So this issue
`has already been resolved.
`In order for Essity to prevail as to this embossing issue in the
`independent claims it would require disagreement with one examiner and
`then three prior board members.
`Also on this record, if that weren't enough, all of the experts agreed
`that embossing for dispensed napkins which is what Essity does and that’s
`what Cascades does, we are talking about dispense napkins, embossing has
`been the primary way of making a napkin for 30 to 40 years, for dispensing
`napkins.
`Slide 3 please. Actually before I move on to this dependent claim
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`slide, I want to make a couple other points. So the experts agree that
`embossing was known for the last 30 to 40 years. However, by 1992,
`consistent with the expert testimony, there is an ASTM standard that as of
`'92 shows the basis weights and says that embossing should occur. As I said
`both experts agree that it was prevalent.
`And then would you please turn to Slide 10, Ms. Manning? If that
`weren't enough, the 443 patent all that it says about embossing is that you
`should use conventional embossing equipment. There is no new embossing
`techniques so the same embossing has been going on for decades is all that
`the 443 patent shows.
`Moving now to Slide 3 please. The dependent claims only raise a
`couple of additional issues. There is one issue as to whether it would be, it
`was clearly known, there is no dispute on this record that it was clearly
`known to interleave napkins. The issue that Essity is raising is would it be
`obvious to interleave napkins in opposite direction where they are not in the
`same direction? So that is one issue before you as to dependent Claims 2, 7
`and 11.
`As to Claims 4 and 9 as well as 10, there is an issue as to whether the
`basis weight range of 10 to 20 pounds which is the thickness of a napkin.
`Do I want my napkin thin, do I want it thick? Basis weights of 10 to 20
`pounds are an issue for those dependent claims and then again independent
`claim.
`As to the other dependent claims on this slide, we are not aware that
`Essity has challenged the validity of those claims other than in combination
`with the independent claims to our knowledge. But we will discuss basis
`weights near the end.
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`Moving on to Slide 11 please, Ms. Manning. We have on this record
`three primary references that all show basically the same thing. All of the
`for the most part all of the limitations of the independent claims except for
`embossing as to Claim 10 basis weights. So we have three primary
`references that all show the same thing for the most part.
`Next slide please which will be Slide 12 for the record. Teall as we
`have mentioned, Essity is not disputing that Teall shows every single
`limitations of the independent claims with the exception of embossing. And
`then as to Claim 10 again basis weights. So I'm going to move though the
`Teall slides pretty quickly then.
`Move to the next slide please which is 13. In 13, this is from Teall, it
`makes clear that interleaving and this is as of 1919. As of 1919 Teall is
`already talking about the need for interleaving which allows you to dispense
`napkins such that when you pull one napkin out, the friction from the
`interleaving pulls the next napkin to the top so you can't to the next napkin.
`So it allows for dispensing one at a time.
`There are a number of references that talk about interleaving and its
`purpose which is to get napkins out of a dispenser one at a time. But Teall is
`one of them and that's an early as 1919.
`Next slide please. If you look at the very top of this slide, it is not
`underlined, but basically what Teall -- Teall was not directed to the napkins
`themselves which are very basic. It was in -- it was directed to a simple and
`improved mechanism for producing the interleaved napkins and towels.
`Next slide please. There is no dispute that the folds are all equal and
`that it has the longitudinal fold with two transverse folds.
`Next slide please, which is 16 for the record. It also describes the
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`interleaving process by which the napkins are interleaved.
`Next slide please. Moving on to Grosriez, I'm aware at the institution
`stage that the panel found that Grosriez was §325(d). However, we would
`ask the panel to look at Grosriez again and I am very respectful that I'm not
`asking the panel, I don’t take lightly asking the panel to look at something
`again. But our argument here is different than it was in the original
`prosecution.
`In the original prosecution, it was Heath, the napkin of Heath, in
`combination with Grosriez and other references and when there was -- when
`Essity was able to overcome that rejection, it was because the napkin of
`Heath was not detached. And so they argued that their napkins are detached
`and you will see the independent claim here recall for napkins that are
`detached.
`Obviously Teall and Grosriez and Winter are all detached. We are
`arguing differently. We are not saying apply the napkin of Heath to
`Grosriez. What we are saying is apply the embossing and basis weights of
`Heath to Grosriez. And we make the same arguments with respect to Winter
`and Teall.
`
`JUDGE TORNQUIST: So your potential issue with Grosriez then is
`to show that it actually shows,I guess, a six panel napkin, or three folds that
`are equal in size, correct?
`
`MR TELSCHER: That is absolutely correct.
`
`JUDGE TORNQUIST: Okay.
`
`MR. TELSCHER: And looking at slide, to pick up on that point,
`looking at Slide 18 please, Ms. Manning, in Slide 18, it is column 4 of
`Grosriez. What it first describes in Grosriez is a four panel napkin in which
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`the folds are all equal. Then if you come down to lines 50 through 55 it
`talks about how you can make one of the folds offset.
`But then when you get to 55 to 60, it says and by the way, it doesn't
`have to be a four panel napkin, you can also make it as a six panel, C fold or
`Z fold.
`Next slide. 19 for the record. And then it says after describing the
`four panel napkins and the six panel napkins, all of which have equal folds,
`which is why when Essity takes exception with Grosriez showing equal
`folds, that is clearly what it shows in column 4. Now we have the equal
`folded six panel napkin and it says the remainder of the patent in nonlinear
`fashion will talk about how to stack them. Because what Grosriez was
`directed to is not making these basic napkin folds, they had been around
`since the early 1900's.
`What Grosriez was about is if there is imbalance in a napkin, we are
`going to rotate the napkin. We are not going to stack them all in the same
`direction because if you stack them all in the same direction then there is
`imbalance then that imbalance starts to stack up and the napkin stack will tip
`over.
`Turning to the next slide which is 20. This is columns 5 and 6 of
`Grosriez. Grosriez talks about three ways that you can cure imbalance in a
`napkin stack. One is they have what I call and it's not on this slide, it's the
`star pattern. If you kind of rotate each napkin like a little bit of a degrees,
`then you have this like star pattern. And now what you are doing is if there
`is imbalance in a napkin, we kind of keep rotating that imbalance around
`such that we even out the stack.
`And, you know, one of the things I said last because we were before
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`you about a month ago is if you have one binder that has got a big side and
`another, you just kind of rotate. That’s what Grosriez was about is putting
`the big sides offsetting so back and forth.
`If you look at the second two embodiments of Grosriez, they have one
`that is a stack of napkins not interleaved and then you have the third so
`rotate, rotate, rotate is the second way.
`The third way in Grosriez is rotate, rotate, rotate but interleave. And
`what you have here is interleaving and gain in Grosriez much like Teall it
`says, you know, the reason why you use interleaving is for dispensing
`napkins from a dispenser which is right here in lines well, let's see. Looks to
`be 50 or something. But it says intertwining the folded sheets 36 makes it
`possible particularly when the stack is placed in a dispenser.
`So there again we have got replete references in the prior art to
`interleaving for dispensing and notably in Grosriez its oppositely folded
`interleaving. Winter --
`
`JUDGE TORNQUIST: So let me, before you move on, let me ask
`you a question. Looking back at your figure 9B.
`
`MR TELSCHER: Yes.
`
`JUDGE TORNQUIST: That is the interleaved embodiment, correct?
`
`MR TELSCHER: Yes, it is.
`
`JUDGE TORNQUIST: Okay. And in the briefing, we have had two
`terms used, unbalanced and uneven. You have talked about balanced. Is
`this even 9B?
`
`MR TELSCHER: Yes. Your -- what you are doing is by taking --
`what Grosriez says is when you fold these napkins, the fold edge is thicker
`than the other edges so Grosriez rotates them back and forth to even out the
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`stack.
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`JUDGE TORNQUIST: Okay. And I guess what I'm trying to figure
`out is the difference between that and for example Figure 18 of Grosriez. I
`don't know you have it in your --
`
`MR TELSCHER: I have the references.
`
`JUDGE TORNQUIST: Yes.
`
`MR TELSCHER: I can look at it.
`
`JUDGE TORNQUIST: And there, they talk about getting the top
`sheet flat. Flat in both directions I believe.
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`MR TELSCHER: Yes, so --
`
`JUDGE TORNQUIST: 13 and 14 show a different embodiment
`where it is flat in one direction and not the other.
`
`MR TELSCHER: Yes. So what they do in Figure 18, that’s another
`example in Grosriez is if you pull the napkins out a little bit, now you are
`taking the thick part out of the stack and it flattens it even more.
`
`JUDGE TORNQUIST: Okay. So is there a problem if you -- you
`have it balanced but it is not necessarily even at the top.
`
`MR TELSCHER: I wouldn't think so, no because the issue we are
`here to decide is would it be obvious to include embossing with the
`interleaved napkins and the point of Grosriez is to the extent that embossing
`creates some kind of -- and by the way, the -- a general conclusion that they
`are saying embossing creates this imbalance. There is no record evidence in
`any patent or any paper that says this. It is just what they say.
`But what Grosriez says is to the extent there is imbalance in a napkin,
`that means part of a napkin is bigger than another, if you rotate the big parts,
`you're going to even it out which means that one skilled in the art as of at
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`least Grosriez understood that by rotating back and forth you would even out
`the stack.
`Winter please, Slide 21. Again Winters again we are -- we have a
`record, I mean, it is not lost to me that we had 10 grounds. It is rare that you
`have got three primary references that show everything except for the
`embossing. But again Winter is more of the same so --
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`JUDGE TORNQUIST: Well, no, Winter is towels, correct? And the
`claims are to napkins.
`
`MR TELSCHER: It is towels. That’s a fair distinction. We have
`addressed that in our briefing. Teall sys that towels and napkins are the
`same. Mr. Mrvica says that you fold towels and napkin the same.
`So the 443 patent itself is directed to absorbent sheets if you read the
`spec which it covers napkins and towels so we would submit to Your Honors
`that there is no distinction from an obviousness standpoint between towels
`and napkins. The methods for stacking and dispensing them are related.
`
`JUDGE TORNQUIST: I guess I, one concern I had maybe you could
`address is if we take Winter, we have to take Winter and now switch it to a
`napkin. Then at least in your briefing you remove a fold, I don't know if you
`need to or not but you remove a fold and then you emboss. And to some
`degree that seems, those steps seems -- there seems to be so many steps it
`seems almost hindsight driven. Can you address that?
`
`MR TELSCHER: Yes, I can.
`
`JUDGE TORNQUIST: Okay.
`
`MR TELSCHER: When we are talking about C folded or Z folded
`napkins and six panel, there is only a few ways to do it. So you can make a
`longitudinal fold first and two transverse folds. You could do two
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`longitudinal folds and getting to a six panel napkin there is only a couple
`ways of doing it. So I, the only exception I would take with it and I
`understand why you are asking it, more steps that looks like it is not obvious
`and it is hindsight but when it comes to napkin folds as Teall shows, as
`Grosriez shows, there is only and as Winters shows, there is only a few ways
`to do it if you are wanting to make a napkin and fold it a few times to make a
`six panel napkin. So there is only a couple ways.
`So I would respectfully say that that is not outside of the norm of
`variables if you look at KSR if there are only a few ways to do it, there are
`like known variations and they all product the same result, it doesn't render it
`not obvious.
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`JUDGE TORNQUIST: Okay. And is there any reason that your
`grounds on Winter would succeed if the ground on Teall did not?
`
`MR TELSCHER: No, I would agree with you. I'm trying to think if
`there is anything about Winter -- well, I would say that Winter now Winter
`shows opposite interleaving. So it does have that over Teall. Grosriez also
`shows the opposite interleaving as well.
`
`JUDGE TORNQUIST: So those are dependent claims, right, not the
`independent claims which --
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`MR TELSCHER: Correct.
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`JUDGE TORNQUIST: Okay.
`
`MR TELSCHER: As far as the independent claims go, as I sit here
`and think about that question, I don’t think there is a difference between
`Winter, Teall and Grosriez as it applies to the independent claims.
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`JUDGE TORNQUIST: Okay.
`
`MR TELSCHER: I think they all show everything but embossing.
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`Let's move to Slide 26. I want to move on to embossing and basis weights.
`As we have brought to the boards attention, we have a couple of references
`that are again cumulative on the secondary references which are the ASTM
`standards in Heath. They both show the same things.
`The ASTM standards were developed in 1992. That’s the date of
`them. You know, the most notable thing about the ASTM standards and it
`matches what our expert Mr. Mrvica has stated and that is that by the 90's,
`by the 80's even, embossing was well known. These basis weights were
`well known which again basis weights, I can't imagine more basic
`parameters for a napkin as to how thick we are going to make it. So our
`expert would say that.
`But as of 1992, we have an entire array in the standard it talks about
`the basis weights and tells you that napkin should be embossed. And what I
`would submit to the panel is this is an industry standard. This wasn’t as if
`this was some like paper that's talking about the new ways of basis weights
`and napkins. This is an industry standard and whichever person or persons
`developed the standard in 1992, I would submit to the board that they didn’t
`just make it up out of thin air.
`I mean, these standards when you pull together this kind of data, this
`would be people are, you know, a person or persons that were looking at
`what was going on in the industry and saying here is kind of the standards.
`Lightweight, 11.9 or less. Medium weight, 12 to 13.9 and heavy weight,
`above 14. So those are the standards.
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`JUDGE KALAN: Are those the standards, Counsel, or were these
`standards later withdrawn?
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`MR TELSCHER: They were. In 1999 but they weren't technically
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`withdrawn, I mean, they were withdrawn, the ASTM standards but they
`were done so only because they felt that the TAPPI standards had overtaken
`it. So it wasn't like standards went away, it's just as to ASTM they felt that
`they had been overtaken by TAPPI and so they were withdrawn.
`But they were publicly accessible since 1992. The ASTM is
`undeniably an international standards organization that publishes as the
`panel found in their institution decision. You know, these were reprinted
`from a book, available in 1992 and I would submit that this situation is right
`on top of the Ericsson case. The Kyocera case as well as the ZTE case.
`The only evidence that Essity has come forward with is Mr. Carlson
`really with unsubstantiated testimony which I will get into stating that
`customers haven’t requested it of Essity or their designers don't use these
`standards. That’s not the issue. The issues before you is it publicly
`accessible?
`Our burden of proof is to show that it is more likely that not that it
`was and there is substantial evidence before you that this was of record as of
`1992 and publicly accessible.
`
`JUDGE KALAN: So I do want to talk about public accessibility a
`little more but as to the withdrawal, is that because there was any deficiency
`in or anything wrong with the standards? That one of ordinary skill in the art
`would have questioned?
`
`MR TELSCHER: No. The record is clear that the reason the standard
`was withdrawn is they were duplicative with TAPPI and TAPPI was a more
`direct industry standard. And again, these are just basic basis weights. I
`mean, you can look to Heath to find the same basis weights range that are in
`the ASTM. You can look to Heath to talk about embossing and why you do
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`it.
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`And we have two experts that both agree that for dispensed napkins,
`they have been embossed for 30 to 40 years and at least Mr. Mrvica agrees
`that as of the date of these, the patents being filed and well before that, these
`were the common basis weights.
`Slide 33 please, Heath. You know, Heath is more of the same. It
`talks about the basis weights range and it also talk about embossing and why
`you do embossing.
`Next slide. Heath specifically says that the reason why you emboss is
`to obtain maximum softness of the one ply tissue. So, I mean, the
`motivation is right there in Heath as well.
`The next slide please. Let's see. 36 please. Motivation to combine
`ASTM says they shall be embossed. Health tells you why you would
`emboss.
`Slide 38 please or 37. Again, this is specifically what the patent
`examiner and patent office have found that, you know, using basis weights
`or embossing does not render these types of folded napkins unobvious
`simply by adding basis weights or embossing to the napkins that were
`disclosed in Hochtritt doesn't render them patentable and that is from the
`same patent family, same owner, argued back in the 2000's.
`38 please. The experts agree if you look at Mr. Carlson's testimony
`and again his declarations will say something different so when you look at
`the declarations you will ultimately have to go to the deposition testimony
`and that is true in a lot of places for Carlson's testimony where in deposition
`he qualified what he said in this declaration.
`Here is one of the areas where he says ultimately most traditionally
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`dispensed napkins were embossed and that is since the beginning of his
`career. Mr. Mrvica says the same thing. All of this testimony is cited in our
`briefs. Motivation to combine basis weights.
`Slide 40 please. When you turn to basis weights, again, they were
`well known. Our, the ranges that we have shown you dominate the range of
`10 to 20 pounds which is the range of the dependent claims and as well as
`Claim 10. The law is clear that they need to come forward with evidence to
`show that there is some unexpected result for their range and they have not
`produced any evidence that would show that their range produces any result
`that wouldn't be anticipated.
`I mean, and what we are talking about this is very basic. We are
`talking about the thickness of a napkin. So the thicker I make it, the heavier
`the basis weight, the more it absorbs, the thinner I make it, the more
`lightweight it is and it's just a matter of cost and absorbency. That’s a very
`basic inquiry.
`They don't come before you with evidence that shows that at 10 it
`does this, at 11 it does a similar thing and all of a student if you get to 16
`basis weight, there is something unexpected, the absorbency doubles. There
`is no evidence like that before it is just a kind of a how thick do you want
`your napkin, price, absorbency kind of continuum. And that's exactly --
`
`JUDGE TORNQUIST: They do make an unexpected results
`argument though for the dependent claims do they not? The basis weights?
`
`MR TELSCHER: I'm sorry, what?
`
`JUDGE TORNQUIST: Patent owner does make an unexpected
`results argument for basis weight, do they not?
`
`MR TELSCHER: Not that I'm aware but I might have missed that.
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`What do you think that is?
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`JUDGE TORNQUIST: Okay. If we go to --
`
`MR TELSCHER: What?
`
`JUDGE TORNQUIST: If we go to --
`
`MR TELSCHER: Oh, well they have suggested the 20 pounds and
`under produces some result but that wouldn't matter, I mean, this range
`covers -- ASTM covers 14 to above 20.
`
`JUDGE TORNQUIST: I guess it applies more to Heath. In their
`broader range I think over Heath goes a little higher.
`
`MR TELSCHER: It does go higher but, you know, Mr. Carlson says
`that there were napkins made with basis weights above 20, there are also
`basis weights under 20. I don't know that that shows unexpected results.
`
`JUDGE TORNQUIST: I just wanted you to address the question
`because they do make the argument.
`
`MR TELSCHER: Fair enough and I am remembering that argument
`now. Thank you.
`Slide 41. Again, the patent office has already addressed these issues
`in the same patent family for claims that were at least twice so they weren't
`limited to four fold napkins back in the 2000's when these were -- when
`these same issues were before the patent office. And the patent office has
`already found that adding basic basis weights to these napkins is just a
`regular design choice and doesn’t, you know, doesn’t render the claims not
`obvious.
`
`JUDGE TORNQUIST: Did the board in the previous decisions have
`Grosriez before them?
`
`MR TELSCHER: It did.
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`JUDGE TORNQUIST: Okay. And the argument that it was
`
`unexpected or not unexpected but that you would have a problem? Almost a
`teaching away?
`
`MR TELSCHER: Well, the reason why they got, the reason why
`Essity got around the claims back then, at least one of them, was they argued
`that none of the references showed that the top panel and the bottom panel
`were equal. I think it was Kayama was the reference. We got three
`references now of record that undisputedly show that limitation.
`So Grosriez was not submitted for the proposition of basis weights.
`Grosriez was submitted for the proposition of the overall general napkin
`folding and interleaving.
`42. At one point Mr. Carlson was taking exception with the ASTM
`standard because it talks about medium or, excuse me, lightweight, medium,
`and heavyweight napkins and he was criticizing Mr. Mrvica for that.
`Ultimately in deposition again here is an area where he withdrew and
`said that has no effect on the obviousness analysis in his view. Mr. Mrvica
`has testified that these were common basis weight ranges prior to the date of
`the critical date for the patent en suite, the 443.
`Opposite the interleave please which would be Slide 9 let's start with.
`One of the notions is that interleaving in the same direction was known but
`interleaving in opposite directions is somehow patentable.
`If you look to the 443 patent itself I will start there. It talks about
`interleaving in the background of the patent. It doesn't mention any
`distinction between heretofore interleaving his been same direction, but our
`idea is opposite direction and therefore we solve some problem in the art.
`There is no discussion of that. They just say interleaving was known.
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`Then when you go to column 3 which is the next slide, do we have
`that? All right. If we go to the, if you go to the next column which is
`column 3 of this patent, 443, and it's at lines 39 to 41 of the patent. They
`talk about how to interleave. And they reference two patents. Both of those
`patents are from the 1960's, they incorporate them by reference. Those
`patents show conventional machines from the 1990's that interleave in
`opposite directions.
`When you look to the art of record, Slide 43 please. Teall as of -- this
`is we are talking the early 1900's. Teall shows interleaving in the same
`direction. Wheeler shows interleaving in the opposite direction. And I'm
`going to -- the biggest point that I need to make on this interleaving in the
`same or opposite directions is this. The patent Claims 1, 5 and 10
`indisputably cover there's two basic types of folds for a six panel, C fold and
`Z fold.
`There has been a lot of discussions that there is two ways of doing it
`and Essity says that just because there is two ways of doing it doesn't mean
`that it is obvious. We think it does under KSR. That issue really does not
`matter on this record.
`C folded napkins which are indisp
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