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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`NAVISTAR, INC.,
`Petitioner,
`
`v.
`
`FATIGUE FRACTURE TECHNOLOGY, LLC,
`Patent Owner.
`_____________
`
`Case IPR2018-00853
`Patent 7,143,915 B2
`_____________
`
`Record of Oral Hearing
`Held: June 11, 2019
`_____________
`
`
`
`Before LINDA E. HORNER, BENJAMIN D. M. WOOD, and
`RICHARD H. MARSCHALL, Administrative Patent Judges.
`
`
`
`
`
`
`
`Case IPR2018-00853
`Patent 7,143,915 B2
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`CRAIG D. LEAVELL, ESQ.
`MATTHEW M. KAMPS, ESQ.
`Faegre Baker Daniels, LLP
`311 S. Wacker Drive
`Suite 4300
`Chicago, IL 60606
`(312) 356-5106 (Leavell)
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`MEREDITH M. ADDY, ESQ.
`AddyHart, P.C.
`10 Glenlake Parkway
`Suite 130
`Atlanta, GA 30328
`(312) 320-4200
`
`ROBERT HART, ESQ.
`AddyHart, P.C.
`401 N. Michigan Avenue
`Suite 1200-1
`Chicago, IL 60611
`(312) 834-7701
`
`
`
`
`The above-entitled matter came on for hearing on Tuesday, June 11,
`
`2019, commencing at 10:00 a.m. at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia.
`
`
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`Case IPR2018-00853
`Patent 7,143,915 B2
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`
`P R O C E E D I N G S
`- - - - -
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` 9:59 a.m.
`JUDGE HORNER: Good morning. We will hear argument now
`on Case Number IPR2018-00853. Navistar Incorporated versus Fatigue
`Fracture Technologies. This is concerning Patent 7,143,915.
`Counsel for the parties, please introduce yourselves, starting with
`Petitioner.
`MR. LEAVELL: Good morning, Your Honor. Craig Leavell on
`behalf of Navistar.
`MR. KAMPS: Good morning, Your Honor, it's Matt Kamps on
`behalf of Navistar.
`MS. ADDY: Good morning, Your Honor, Meredith Addy on behalf
`of Fatigue Fracture Technology.
`MR. HART: I'm Robert Hart on behalf of Fatigue Fracture
`Technology.
`JUDGE HORNER: Great. Thank you. And welcome to the court.
`Per our order of May 14th, each side will have 60 minutes to argue.
`The Petitioner bears the burden of proving unpatentability and so they'll be
`arguing first, and you may reserve rebuttal time, and patent owner may
`reserve sur-rebuttal time. Do wish to reserve rebuttal time?
`
`MR. LEAVELL: We do, Your Honor, 15 minutes, please.
`JUDGE HORNER: Fifteen minutes, okay. And would you wish to
`reserve sur-rebuttal time?
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`MS. ADDY: Yes, Your Honor, ten minutes.
`JUDGE HORNER: Ten minutes, okay.
`Okay, this hearing is open to the public. We're going to have a full
`transcript made, and it will become part of the record. For clarity in the
`transcript, when you're referring to demonstrative slides, if you can just note
`the slide number for the record that would be very helpful.
`I'll remind you that demonstratives are not evidence but are aids to
`assist the panel. And we're aware of the pending motion -- Petitioner's
`pending motion to strike portions of the patent owner's sur-reply and
`exhibits. And we're also aware of the pending motions filed by each party
`on the motions to exclude and also objections to demonstratives.
`At this time, we're going to reserve ruling on those motions and
`objections, and we will allow discussion of the arguments and the exhibits
`and demonstratives here today. But ultimately, we will not consider them
`in our final written decision if we determine that the reliance on them would
`be improper.
`With that, I invite counsel for Petitioner to begin.
`MR. KAMPS: And we've got copies of our slides. I know we
`were supposed to bring one. I brought four if you'd like them. If you don't
`want them, fine.
`JUDGE HORNER: We have copies of the slides there.
`MR. KAMPS: Okay.
`(Off-microphone comments.)
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`MR. KAMPS: Good morning, Your Honors. My name is Matt
`Kamps and, along with Craig Leavell, lead counsel in this case working on
`behalf of Petitioner, Navistar, we respectfully request cancellation of the
`challenge claims on the '915 patent.
`We've already reserved rebuttal time, and you've already addressed
`that we have motions pending. So I'm not going to belabor any of these
`points here. I do want to step through a couple of these points very quickly,
`however.
`Navistar's two pending motions before the Board, Papers 35 and 40,
`are Motions to Strike and Motion to Exclude, respectively. Just wanted to
`note that the first issue here, secondary considerations argument presented in
`FFT sur-reply, that issue's been mooted by stipulation of the parties.
`The remaining two, however, may ripen before the Board, we have
`new claim construction arguments and newly filed sur-reply Exhibits 2051
`and 2056. We respectfully request that those are stricken from the record as
`improper, untimely, prejudicial to Navistar in the contravention of this
`Board's decisions, and also the trial practice guidelines promulgated in 2018.
`I do want to mention one thing that's in the vein of our Motion to
`Strike. And that's that this Board is going to hear today yet another new
`claim construction argument, which we know is improper at the oral
`argument stage. And I just wanted to tee that up for the Board.
`FFT will present on Slides 9, 10, and 21, or at least those slides of its
`demonstratives, that now that the fatigue force is terminated while the part
`has considerable load bearing capacity. This is a new argument that was
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`not in any of the merits briefing and, as such, is improper at this oral
`argument and should be accorded no weight.
`Regarding our Motion to Exclude, stepping through each of these
`four points very quickly that we teed up in our motion, all four of these
`categories of evidence are inadmissible. And I will start with Exhibits 2051
`to 2053 and 2056, these are sur-reply exhibits. In the event that they are not
`stricken, these exhibits are inadmissible because they lack foundation and
`authentication. Navistar timely objected to these exhibits, no supplemental
`evidence was presented to cure.
`I do want to note here that Exhibits 2051 and 2053, by admission of
`FFT, have been called demonstratives, but they were filed into evidence.
`Obviously, we don't object to them being used as demonstratives here in this
`proceeding, but they were filed as evidence.
`The statement by Professor Yu, it unsworn hearsay statement that
`remains unsworn hearsay. This has never been cured by way of
`supplemental evidence. Navistar timely objected to this exhibit on multiple
`occasions. It's inadmissible for at least those reasons. It remains unsworn
`hearsay today.
`On translated exhibits in this next slide, uncited exhibits and portions
`thereof, these issues can really be presented together. And the Board might
`be wondering what Counsel will argue. Why are you presenting these
`issues? We know untranslated exhibits aren't admissible. We also know
`that evidence not cited is inadmissible as irrelevant. Well, we met and
`conferred with FFT, and they would not agree that they would refuse to rely
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`on said exhibits. We've never been provided with translated copies of the
`exhibits listed here, objected timely thereto. They remain untranslated.
`They should be out.
`
`And we have these uncited portions of exhibits, or exhibits that were
`presented in the preliminary stage of these proceedings, but were never cited
`again post-institution. Again, conferred about it. They remain uncited.
`They're not in these proceedings. They should be out.
`And with that, I'll turn it over to Mr. Leavell who will present our
`case in chief. Thank you for your time.
`
`MR. LEAVELL: Good morning, Your Honors.
`
`JUDGE HORNER: Good morning.
`MR. LEAVELL: Here on demonstrative Slide Number 2, we list
`the grounds that we presented in our petition. And the grounds that are
`highlighted in green here are the grounds for which the Board, at the
`institution phase, found that we had met our burden to show a likelihood of
`success or likelihood of unpatentability.
`But our presentation today is going to focus mainly on four grounds,
`and those are here on Slide 3. Ground one, anticipation by Brovold, and
`then the combination grounds three, four, and seven, each of three, and four,
`and seven were found by the Board to reasonably support a likelihood of
`unpatentability at the institution phase.
`Slide 4 shows a summary of the prior art and the four key
`requirements for the challenged claims. On -- across the top and down the
`left are the four prior art references we rely on. And there should be no
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`genuine dispute that each of the prior art references discloses each of the
`limitations checked with a green check mark.
`
`Both sides' experts agree that those limitations are found in the prior
`art. So what does FFT have left? They mainly have two approaches that
`they'll take. The first one is to read into the claims limitations that aren't
`there. They just simply aren't in the claim language and aren't in the agreed
`constructions.
`The second attack that FFT mounts is to attack the references
`individually and not the combination in the obviousness grounds, for any of
`the obviousness grounds, especially three, four, and seven.
`So turning to the level of skill in the art and the state of the art, the
`parties agree that a person of ordinary skill in the art would be quite highly
`skilled, having up to three years of actual experience fracturing connecting
`rods. And this is an agreed level of skill in the art.
`
`And as we'll see, the methods, the materials, and the machines for
`performing the claimed invention in the '915 patent were all well known to a
`person of ordinary skill in the art well and before 1999.
`The fracture separation of connecting rods goes back to 1948. This is
`Slide Number 7. The first one is a patent from 1948, and there are a lot of
`patents in between then and 1999 disclosing the fracture separation of
`connecting rods.
`The automakers were aware of fracture separation of connecting
`rods. Here on Slide 9, we've got a list of several patents and SAE
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`publications from the automakers talking about fracture separation of
`connecting rods.
`On Slide 10, fracture-separated connecting rods were actually out on
`the road in vehicles by 1993, including by Ford and even earlier for outboard
`marine engines.
`Now, here on Slide 12, we've got a list of publications and patents
`from the automakers, the Society of Automotive Engineers, and the
`University of Michigan relating to powdered metal materials. So why are
`powdered metal materials relevant? There's two reasons. First of all,
`powdered metal connecting rods were well known, and they were known to
`be easily fractured in as few as 100 to 1,000 cycles of fatigue resulting in a
`perfectly brittle fracture. That was well known long before 1999.
`And second, it also is relevant to FFT's arguments regarding the
`Bayliss reference. Bayliss was in 1964. And FFT argues that, well,
`Bayliss would take too long, or Bayliss talks about cooling when the 35
`years between the Bayliss publication and the obviousness analysis in this
`case in 1999, there were a lot of developments in materials, including the
`powdered metal materials that were known to be perfectly suitable and
`appropriate for easy fracture separation of connecting rods.
`So one of skill in the art would know these materials and would
`understand that Bayliss's process would work just fine using the materials
`that were developed in the three decades after the Bayliss reference. On
`Slide 13, briefly, powdered metal connecting rods were in vehicles on the
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`road by 1976 with Porsche, in the 1980s with Toyota, and in the late '80s
`with Ford.
`
`And FFT's expert Mostovoy, here on Slide 14, admitted during his
`testimony that powdered metal connecting rods were well known, and it was
`known that they were easy to fracture separate.
`Fatigue was also well known by 1999 to a person of ordinary skill in
`the art. On Slide 15, these are sample handbooks, text books, references
`from the SAE, things that a person of skill in the art may have used as an
`engineering undergrad or would have on their desk as a first year engineer
`right out of school.
`And on Slide 16, this is the admission by FFT's Mostovoy that one
`of skill in the art in 1999 would have already known that a fatigued
`connecting rod requires a lower magnitude of dynamic force to fracture than
`a non-fatigued rod. In other words, a person of skill in the art admittedly
`knew about fatigue, knew about fractured connecting rods, and knew that
`they would require a lower force to fracture if they had been fatigued. And
`that's Slide 16 for the record.
`Slide 17, Mostovoy also conceded during his deposition that by 1999
`one of skill in the art was familiar with the machines. So we've talked
`about the methods and materials, and now here we are at the machines that
`were known to a person of ordinary skill in the art.
`They were commercially available, servo-hydraulic fatigue machines
`from a variety of companies, including MTS. MTS might have been the
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`leader at the time. And MTS was the company that Mr. Brovold worked for
`when he came up with the Brovold patent that's one of our references.
`And on Slide 18, Mostovoy admitted that they were high speed
`machines. These machines that were well known to a person of skill in the
`art could apply fatigue forces at frequencies as high as 50 Hertz or, in MTS
`cases, 60 Hertz, on the market available by 1999. And for comparison, the
`'915 patent and the one example it gives says to apply fatigue force at 4
`Hertz, so much, much slower than what was known and common in the
`machines.
`On Slide 20, quickly, this is the MTS patent from 1966. It discloses
`fatigue at 60 all the way up to 300 Hertz. And it even -- and this is resonant
`fatigue, by the way, not that that's required in the claims, but MTS even
`disclosed that in 1966. And they even comment in this patent that the
`resonant fatigue testing machine is shown schematically, because the actual
`components are standard components available on the market. That's in
`1966.
`
`Slide 21, this is another reference we talk about. It's a NASA
`reference from 1986 showing fatigue using an MTS system. Caterpillar and
`INSTRON on Slide 22, the INSTRON machine is notable, because that's the
`machine that Mr. Guirgis used in his thesis paper. It's not incorporated into
`the patents but is relevant to his invention story. And the copyright date on
`the manual, for that manual is 1980. So by the time Mr. Guirgis was using
`it for his thesis, it was already 18 years old.
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`Now, the combination of both fatigue and dynamic in the same
`process was also known. And this is Slide 24. Now, to be very clear, as
`we'll see, every cyclic fatigue force is also necessarily a dynamic force.
`And also, the challenged claims do not require a separate, distinct fatigue
`force and a separate, distinct dynamic force. That's not in the claim
`constructions that are agreed, and the Board acknowledged that in the
`institution decision preliminarily.
`But even that combination of a separate, distinct fatigue force
`combined with a separate, distinct dynamic force was well known to a
`person of skill in the art. We cited Exhibit 1065 here on Slide 24, and that's
`from 1930, teaching that combination. And we talked about, in our reply
`brief, the example of just a paperclip and how easily somebody would know
`that you could combine fatigue and dynamic force.
`Mostovoy admitted during his deposition here on Slide 26 that there
`were a lot of different machines that were known to a person of skill in the
`art that could do this, that could apply a cyclic fatigue force and, during that
`cyclic fatigue force, apply dynamic force at a particular moment during that
`cycle. He admitted that was known to somebody of skill in the art.
`So turning to the challenged claims, on Slide 28, we've got -- it's
`very small, but I'll go quickly, and we're not going to read the claim
`language -- but we've got the challenge claims, one, seven, nine, and ten.
`And I've highlighted in blue here the language that the parties agree is non
`limiting and optional.
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`In pink, I've boxed in the lateral cyclic force of option B2 which is
`irrelevant to this IPR. All of our arguments, all of our prior art show that
`Option B1, the longitudinal, not B2. And then in green, I've boxed in the
`redundant language on Claim 10 that just repeats the language of B1. And
`so for Claim 10, it's telling you, you have to use the option for B1 for the
`fatigue. So ten is redundant of one in that regard.
`So if you remove that redundant non-limiting, non-relevant option
`language, this is what you're left with, a preamble, a longitudinal cyclic
`fatigue, a dynamic force, and then Claim 9 is the connecting rod.
`And Mostovoy admitted during his deposition that everything in the
`preamble, the dynamic force, and the connecting rod, that that was the old
`prior art. Those were the fracturing connecting rods that were available,
`that were on the road in 1993. And that combination was known to a
`person of skill in the art long before. So three out of the four things that are
`germane to this dispute were already admittedly known in combination in
`the prior art.
`The parties agree, at least Mostovoy and Navistar agree, that the
`claims rise or fall together. So the dependent claims, if Claim 1 is invalid,
`the dependent claims are invalid as well. There's nothing in them that
`would render them valid over Claim 1.
`And I apologize. That was Slide 32, and I also mentioned Slides 29
`and 31.
`So on Slide 34, there's a lot of slides in our deck, I'm just going to hit
`one of them here, where Mostovoy testified about things that are not
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`required by the challenge claims. But here on Slide 34, he admits that the
`claims do not require reassembly of the part. So with the method claim, the
`process claims, there's no step that requires reassembling the part after
`separation. There's no language in the claim about suitability for
`reassembly of the part after fracture separation. There's no statement of
`intended use in the preamble about reassembling the part after fracture
`separation. The stated use is to separate, to fracture.
`And again, Claim 1 isn't even -- Claims 1, 7, and 10 aren't even
`related to connecting rods. So you can't even implicitly imply that they
`read into the preamble an intended use for reassembling connecting rods,
`even if it was appropriate to read in implicit and statements of intended use
`into a preamble.
`So Slide 41, turning to this patent specification now briefly, the
`specification, nowhere in the specification is there any mention of any
`specific material. It doesn't even say steel, it doesn't say any particular type
`of steel, it does mention high strength materials. Nowhere in the
`specification is there any disclosure of any magnitude of force, fatigue,
`dynamic, pre-stressing, no magnitude examples at all.
`There's no machinery disclosed in the specification for doing this
`process or creating these forces. The closest it comes, it briefly mentions
`you could use a hydraulic motor and cams to create cycles of force. But
`that's the extent of any structure disclosed in the specifications.
`And as far as what type of part, what size of part, the specification
`expressly says that it's suitable for even very, very small connecting rods
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`such as lawn mowers. We had an example of that in Exhibit 1059, a
`photograph of a small connecting rod.
`The '915 patent talks about some engineering principles in the
`specification. And there's two of them. First of all, it's in the background,
`it describes these as engineering principles and says, first of all, connecting
`rods are made of high strength materials. And therefore, connecting rods
`will fracture brittlely without deformation.
`Secondly, it says connecting rods, especially those with a V-notch,
`are generally going to fail under essentially elastic fracture conditions as
`opposed to plastic deformation. That's what the patent teaches itself in the
`specification.
`And this IPR, FFT says those general engineering principles in the
`patent don't apply to any of our prior art. Each of Brovold, Cavallo, and
`Becker are notched connecting rods. So logic based on the patent would
`say they fail brittlely and without deformation. But FFT says these
`principles don't apply to the prior art.
`And Bayliss also is a notched rod. But FFT says, well, these
`principles that are explained in the background of the patent, don't apply to
`the prior art. Because they would be plastic or wouldn't fail in the right
`way.
`
`Turning briefly to claim construction, claim construction in this case
`is still under the broadest reasonable interpretation. We filed in the time
`when that still applies for this proceeding. And the claim construction is
`undisputed.
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`Now, it's unclear whether FFT is actually asking for new
`constructions or whether they're just reading in limitations without asking
`for constructions. But at the end, it doesn't really matter. Whether you're
`looking at the agreed constructions, undisputed constructions, or whether
`you even adopt FFT's new, which we say are improper constructions, the
`claims are still unpatentable, certainly under Grounds 3, 4, and 7. The
`combination, the obviousness combinations, even under their new, what we
`think are claim construction arguments, would still be invalid.
`
`Ground 1 anticipation by Brovold might be a little more debatable.
`But we still think it'd be unpatentable even under their new claim
`construction theories.
`JUDGE HORNER: Can you go back to --
`MR. LEAVELL: Sure.
`JUDGE HORNER: -- the prior slide? I believe it was Slide 42
`where you were talking about the engineering principles.
`MR. LEAVELL: Sure.
`JUDGE HORNER: The background of the '915 patent in Column 1
`does talk about problems with the connecting rods made of high strength
`material require a large magnitude fracturing force that can result in plastic
`deformation. So I'm a little confused by the argument you made about the
`'915 patent not acknowledging the problem of plastic deformation or that all
`breakage of these connecting rods or fracture of these connecting rods would
`be allowed in the elastic region.
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`MR. LEAVELL: Well, what the -- and if I overstated that, I
`apologize, but what the specification says, if you notch a connecting rod,
`then you're going to have that pre-stressor. And then under conditions with
`the high strength connecting rods with a notch, especially the V-notch, that's
`going to lead to a brittle fractures operation process.
`So it's really the two of them together. It's high strength and it's
`notched. Then the '915 patent says that fracture occurs under essentially
`elastic conditions with limited plasticity zone at the tip of the crack.
`JUDGE HORNER: Okay. And is it your understanding that
`whenever you have a fracture occur due to crack propagation, you're going
`to have some plastic deformation occur at the tip?
`MR. LEAVELL: Yes. There is an admission, it's in one of our
`slides, I'm not sure if I'm going to use it today, where FFT's Mostovoy
`admits that, and I can, well, he admits that every fracture necessarily has
`some ductile deformation. We cited that in our reply. There's no such
`thing as a perfectly elastic fracture. So of course, there's going to be some
`level of ductility.
`But remember, the claims here don't require a brittle fracture. They
`amended their claims in the re-exam, which introduced a brittle requirement.
`They didn't move to amend here. The claims don't say anything about
`brittle or ductile. So I would argue an ugly ductile fracture separation is
`still clearly within the scope of the challenged claims. We're addressing
`these details because they raised them. But I don't want to lose track of the
`fact that that's not even in the claims.
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`JUDGE HORNER: What about the interpretation in the institution
`decision of the fatigue force required that the force weaken the part?
`MR. LEAVELL: Yes.
`JUDGE HORNER: Is it your understanding that even in the case of
`fatigue applied, that causes a ductile fatigue, that that would cause
`weakening of the part?
`MR. LEAVELL: Yes, yes. If you think about any example of
`plastic, it's still going to be weaker as you pull it. Even if it deforms, it's
`going to hold less force. And in my mind, the definition of weakened is it
`can hold less load or force than before you did whatever you did to it. So
`even if it's taffy, and it's elastic, or non-elastic and ductile, it's still going to
`weaken it. But our prior art, we submit, discloses perfectly fine brittle
`fractures. But it doesn't really matter for the scope of the claims.
`
`I'm going to jump ahead to Slide 75 and Claim Number 5. And this
`is a diagram we've created for this argument that discloses three different
`scenarios. Scenario one in red shows the final force greater than that which
`came before it. The blue shows the final skew forces are lower than the
`forces that came before it. And the green shows they're all the same
`magnitude.
`And we would submit that there's nothing in the claims that require
`any magnitude or relative magnitudes between the forces. And so all three
`of these scenarios would be within the scope of the claims. The red shows
`our combination grounds, three, four, and seven, where we're using Cavallo's
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`Case IPR2018-00853
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`parting mass. And it's clearly going to be higher in magnitude than the
`cyclic fatigue before it.
`And in an institution decision here on Slide 75 at the top, there is a
`statement where the Board said that the amount of force for the dynamic
`force, when applied suddenly, must be greater than any applied primary pre-
`stressing force. And I understand the logic based on the description.
`I would submit that's not required in the claims. And it's not part of
`the claim construction. But the note --
`
`JUDGE HORNER: I think that's in the specification of the patent.
`MR. LEAVELL: Right. Because in that embodiment, the force is
`being applied by the same mechanism. And so logically, it will be higher
`than the pre-stress. But even if you assume it's higher than the pre-stress,
`that's only if there's a pre-stress present.
`JUDGE HORNER: Right.
`MR. LEAVELL: And two, that's not the fatigue force. They make
`an argument recently that the dynamic force magnitude has to be greater
`than the fatigue cycles. That's different than the pre-stressing. But in any
`event, in our combinations shown here in red, there's no issue about the
`magnitude.
`JUDGE HORNER: So just so I understand the position you're
`taking, let's look at the green example at the bottom. Would it be your
`position that, let's say if we take each one of these cycles, that the first four
`cycles could be a fatigue force and the last cycle could be the dynamic force
`that causes the fracture?
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`MR. LEAVELL: In the green example?
`JUDGE HORNER: Yes.
`MR. LEAVELL: Yes, I would agree with that. That's not in any of
`our grounds. And none of our grounds rely on that. That would be, for
`example, anticipation by Bayliss which we, you know, Bayliss just has run
`fatigue until it separates. Because every fatigue force is also dynamic, and
`because there's nothing in the claims that says they have to be separate and
`distinct. Maybe we should have asserted Bayliss anticipates.
`JUDGE HORNER: Well, explain to me your anticipation by
`Brovold.
`MR. LEAVELL: Sure. So anticipation by Brovold can be
`represented by what's shown in blue. And so in that scenario, and I'm not
`saying every example, I'm not saying Brovold has to be read in this manner.
`But if you look at Brovold and you assume that it is applying relatively large
`cycles of fatigue force, they're not over the elastic limit, but they're sizeable
`forces.
`Once you apply 100, or 500, or 1,000 cycles of pretty substantial
`fatigue, the part's going to crack. It's going to weaken. And at that point,
`the part is not going -- it's Newton's third law. Every force has an equal
`opposite reaction. The force won't be able to withstand that load anymore.
`So the next time you try to apply that same load, you won't be able to apply
`it. There'll be a load drop because the part is weakened, because it's micro
`cracked.
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`And so the last three or four cycles that Brovold teaches is you're
`going to fatigue it for a low number of cycles, which we say is 1,500,
`whatever it is, and then your last three, once we see that load drop happen
`and you know, okay, it's time to split this thing, you go, one, two, three until
`it pops off.
`And whether you need one, or two, or three, he just -- you know,
`there's an option in this. So what's shown in blue is one reading of Brovold
`where you apply several cycles of fatigue, and then the part weakens. So it
`can no longer take that load. So the load drops by 50 percent, and you
`complete the separation with three or four more loads.
`JUDGE HORNER: And that reading that you've just explained
`you're saying is disclosed in Column 6?
`MR. LEAVELL: The combination of Column 2 and Column 6. So
`Column 2 says cycle under a low number of cycles. It doesn't say two or
`three. And we presented in our brief how one of skill in the art would
`understand a low number of cycles is not two or three. It's 100 or 1,000.
`And then they'd go to Column 6, and it says you can program it to
`fatigue fail the bearing housing. That's Step 1. Step 2 then is you can then
`cycle it two or three time with fatigue to complete the fracture separation.
`I'm going by memory here, that's not the exact language.
`JUDGE HORNER: But what do you understand fatigue failure to
`
`be?
`
`MR. LEAVELL: So in that context, fatigue fail is what is described
`in the ASTM standard, that Mostovoy was on the panel, and Mostovoy
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`admitted in his deposition, was something a person of ordinary skill in the
`art would rely on.
`Fa
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