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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`3M COMPANY, MERCK & CO., INC. and
`MERCK SHARP & DOHME CORP.,
`Petitioner,
`
`v.
`
`APTAR FRANCE S.A.S. and APTARGROUP, INC.,
`Patent Owner.
`____________
`
`Case IPR2018-01054 (Patent 8,936,177 B2)
`Case IPR2018-01055 (Patent 9,370,631 B2)
`____________
`
`Record of Oral Hearing
`Held: August 12, 2019
`____________
`
`
`Before HYUN J. JUNG, SCOTT A. DANIELS, and
`RICHARD H. MARSCHALL, Administrative Patent Judges.
`
`
`
`
`IPR2018-01054 (Patent 8,936,177 B2)
`IPR2018-01055 (Patent 9,370,631 B2)
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`STEVEN D. MASLOWSKI, ESQUIRE
`RUBÉN H. MUÑOZ, ESQUIRE
`JASON WEIL, ESQUIRE
`CAITLIN E. OLWELL, ESQUIRE
`Akin Gump Strauss Hauer & Feld LLP
`Two Commerce Square
`2001 Market Street, Suite 4100
`Philadelphia, Pennsylvania 19103-7013
`
`GREGORY A. MORRIS, Ph.D., ESQUIRE
`RON N. SKLAR, ESQUIRE
`Honigman Miller Schwartz and Cohn LLP
`155 North Wacker Drive
`Suite 3100
`Chicago, Illinois 60606
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`ASHLEY N. MOORE, ESQUIRE
`ROBERT M. MANLEY, ESQUIRE
`RYAN A. HARGRAVE, ESQUIRE
`BENJAMIN G. MURRAY, ESQUIRE
`McKool Smith, P.C.
`300 Crescent Court Suite 1500
`Dallas, Texas 75201
`
`
`
`
`The above-entitled matter came on for hearing on Monday, August 12,
`
`2019, commencing at 1:06 p.m. at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia.
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`IPR2018-01054 (Patent 8,936,177 B2)
`IPR2018-01055 (Patent 9,370,631 B2)
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`P R O C E E D I N G S
`- - - - -
`(Proceedings begin at 1:06 p.m.)
`JUDGE JUNG: This is the hearing for Cases IPR2018-01054 and
`01055. Petitioners 3M and Merck challenge certain claims of U.S. Patent
`numbers 8,936,177 and 9,370,631, owned by Aptar.
`Starting with Petitioner's counsel, followed by Patent Owner's
`counsel, please state your name for the record.
`MR. MASLOWSKI: Steven Maslowski from Akin Gump for
`Petitioners.
`JUDGE JUNG: Thank you.
`MR. SKLAR: Ron Sklar from Honigman, also for Petitioners.
`JUDGE JUNG: Thank you, Counselor.
`MS. MOORE: Ashley Moore from McKool Smith, on behalf of
`Patent Owner Aptar.
`JUDGE JUNG: Okay.
`MS. HARGRAVE: And Ryan Hargrave with McKool Smith on
`behalf of Patent Owner as well.
`JUDGE JUNG: All right. Thank you, and welcome. As stated
`in the hearing order each party has 90 minutes of total time to present its
`arguments. Petitioner will proceed first, followed by Patent Owner. Each
`party may reserve time for rebuttal. Please refer to your demonstratives by
`slide number.
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`IPR2018-01054 (Patent 8,936,177 B2)
`IPR2018-01055 (Patent 9,370,631 B2)
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`And please do not interrupt the presentations to make an objection.
`And the Panel realizes there is an objection by Patent Owners to Petitioner's
`Exhibit slide 16. With all that said, Petitioner, Mr. Maslowski, you may --
`MR. MASLOWSKI: With your permission, Your Honor, Ron
`Sklar from Honigman will handle the ’177 patent first. And I will handle
`the ’631 patent. And we would also like to reserve 30 minutes of our 90
`minutes for rebuttal.
`JUDGE JUNG: Okay. All right, Mr. Sklar, you may proceed
`when you're ready.
`MR. SKLAR: Thank you, and good afternoon, Your Honors. I'm
`Ron Sklar. And I will be presenting on the argument on the ’177 patent
`today, on behalf of Petitioners.
`Turning to slide 3, the Board instituted this IPR on the ’177 patent,
`which is entitled Fluid Product Dispenser. According to the specification
`of the ’177 patent, the patent is generally directed to a fluid dispenser having
`a dose counter that functions in a reliable manner.
`There are two grounds of invalidity. Both cover the same five
`claims. And on slide 4 we've reproduced independent claim 1. We've
`highlighted three of the requirements of claim 1. One, a fluid dispenser,
`two, a dose counter, and three, wherein that dose counter functions during
`incomplete strokes.
`All of these elements were known in the prior art. And as we will
`be discussing here in a moment, on slide 5 we see that fluid dispensers
`having dose counters were known in the prior art. Likewise, we will
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`discuss in more detail in a moment that rotating mechanisms that function
`during incomplete strokes were also disclosed in the prior art.
`Turning to slide 7, in 2003 the FDA issued guidance to the industry.
`Prior to 2003 there were no commercialized MDIs on the market. And by
`MDI I'm referring to an inhaler, a metered dose inhaler.
`There were no MDIs on the market that had an integrated dose
`counter. In its final guidance the FDA told manufacturers to implement
`that. So they had to integrate a dose counting device into the development
`of their MDIs. And they had to make sure that those MDIs avoided
`undercounting.
`Two months after the FDA issued that final guidance, Aptar filed its
`priority application to the ’177 patent. So the final guidance was March of
`2003. Aptar filed its priority application in May of that same year.
`So with that in mind, turning to slide 9. What we haven't seen here
`is any argument from Aptar that fluid dispensers having dose counters were
`not known in the prior art. That has not been in dispute. Rather, they've
`focused on Rhoades's disclosure of an incomplete stroke. And so we will
`focus on that here as well.
`On slides 10 and 11 we simply summarize the prior art combinations
`in this case. On slide 10, for example, we show that in the Ground 1
`combination a POSA would have taken the teachings of Rhoades and
`combined them with the teachings of Elliott.
`Likewise, on slide 11 we show that a POSA would have taken the
`teachings of Rhoades and combined them with Bason.
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`On slide 12 we show that Rhoades discloses an incomplete actuation
`stroke. So let me describe for a moment. We have a four figure sequence
`on this slide. And this is showing the Rhoades pen mechanism moving
`from the retracted position to the depressed position.
`There are, the first and last figures on this slide are Figures 8 and 9
`from the Rhoades reference. And then the middle two figures are
`annotations from Mr. Piper, Petitioner's expert, to illustrate how the
`specification of Rhoades describes that process of moving from the retracted
`to the extended position.
`Let me just briefly describe the three components that we see on this
`slide. The cream-colored plunger that you see, and we'll just -- we'll focus
`on the first figure in this sequence, Figure 8 of the Rhoades patent.
`The first figure shows that there are cream colored fingers. That's
`the plunger that you depress when you're activating your mechanical pen.
`It moves up and down axially. The orange cam body, likewise, as the
`plunger depresses down, it will force the cam body downward as well. At
`some point the cam body can also rotate, and we'll discuss that too.
`And finally, we see blue colored stop members. A line has been
`drawn across this slide in red to indicate that the stop members are stationary
`throughout this process. They do not move. The only two components
`that move are the white fingers, or cream colored fingers, and the orange
`stop members. Excuse me, the orange cam body.
`Okay. Starting with Figure 1 in the sequence, this is the pen of the
`Rhoades mechanism at rest. This is fully retracted. It cannot write in this
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`position. As you move to Figure 2, you see that the plunger has now been
`depressed a little bit further. And likewise, the cam body has moved down
`accordingly.
`However, the cam body cannot rotate at this point. Because the
`blue stop members are sitting within these grooves of the orange cam body,
`preventing rotation.
`Now, in the third figure in the sequence, we get to the point where --
`exactly where the blue stop members are no longer residing within the
`orange cam body, within the groove of the cam body. At this point the cam
`body is free to rotate.
`Now, Rhoades discloses that there's still further depression beyond
`this point. And we see that in Figure 9 of Rhoades. So even after the cam
`body is capable of rotating, the plunger can be further depressed.
`In Figure 3, when the cam body begins to rotate, it will rotate up and
`to the right, and slide along the bottom surface of those blue stop members,
`just like you can see it sliding along the bottom surface of the white fingers
`right now. As it rotates, it would slide along the bottom of the blue stop
`members.
`But in Figure 9, the last figure in this sequence, on slide 12, we see
`that there's a gap between the blue stop members and the top of the cam
`body. Now, recall, as I explained before, that the stop members are
`stationary. So that gap could not have been formed by the stop members
`moving up. Rather, they can only be formed by the plunger being further
`depressed.
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`Aptar has not addressed Figure 9. By Aptar I'm referring to the
`Patent Owner in this case. Aptar has not addressed Figure 9 of Rhoades.
`Instead, Aptar has relied on a video, an animation from a website on
`thekidshouldseethis.com.
`Now, this video we've objected to as hearsay. But it's also
`irrelevant because it differs from the disclosure of Rhoades itself. You can
`see on the left hand side of slide 13 we have a figure, a screenshot from this
`animation on thekidshouldseethis.com. And on the right hand side we're
`comparing that to Figure 9 of Rhoades.
`On the left hand side you can actually see that what the animation
`shows is the orange cam body rotating and sliding along the bottom surface
`of those blue stop members. It doesn't show that gap.
`Figure 9 of Rhoades, which is the reference, the prior art reference
`that Petitioners rely on, does in fact show that gap. In fact, excuse me,
`Aptar's expert admitted that these two disclosures were in fact different.
`Turning to slide 14. I'm not going to spend much time on this
`because this relates to the animation on thekidshouldseethis.com, not the
`Rhoades reference that Petitioners have relied on. But just wanted to point
`out that even this animation is not being consistent with the idea of an
`incomplete actuation stroke. There's still potentially additional room that
`the plunger can be depressed beyond the point that's shown in the video.
`On slides 15 and 16 what we show is that this idea of an incomplete
`stroke works in both directions. So up until this point we've been talking
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`about the incomplete stroke on the actuation stroke, on the depression of the
`plunger.
`However, it works on the return stroke as well. And to be clear,
`this relates to claim 2. We were talking about claim 1 before when we
`were talking about the actuation stroke. On the return stroke now we're
`talking about claim 2.
`So if we look at the figure in the top left hand corner of slide 15,
`what we see here is the plunger. And in this figure it's in green. We see
`the plunger right before it's about to be released. Okay. The yellow cam
`body will be rotating up and to the right. And the plunger, the green
`plunger is going to be released.
`For the yellow cam body to reset, the green fingers need to clear the
`next vertical surface of the yellow cam body. And we've identified those
`two surfaces, those two points, in blue circles on the left hand figure of slide
`15 at the top.
`Once the green fingers clear those two surfaces in blue, further
`depression of the plunger will cause the cam body to rotate again. It
`doesn't matter that the plunger hasn't been released all the way back to its
`rest point. It's now sitting on top of the next horizontal surface, if you will,
`or oblique surface. And further depression of the plunger will cause it to --
`will cause that cam body to rotate.
`We turn to slide 17 now. And on slide 17, this is the FDA guidance
`that we looked at earlier in the introduction to this presentation. We've
`again, you know, seen this before. But again, the FDA told manufacturers
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`in its final guidance in 2003 that they need to integrate dose counting
`devices into the development of their MDIs.
`On slide 18 we see that given this directive from the FDA, POSAs or
`skilled artisans would have looked to rely on known mechanisms in the field
`that had a similar, that had such a mechanism, that converted linear to
`rotational motion, right? With linear motion pushing down on the canister
`of the plunger, and then the rotation of the cam body once you clear the stop
`members. You don't need to reinvent the wheel. You can look to these
`known mechanisms in the art.
`Also because the FDA is now telling manufacturers that you need to
`do this in virtually all of your MDIs going forward, a POSA's going to be
`encouraged to look for those known mechanisms in an area where they show
`also the ability to mass produce those types of mechanisms.
`Not only would a POSA have looked to those known mechanisms, in
`fact Mr. Piper did look to that known mechanism. And we show that here
`on slide 19. You can see that Mr. Piper, around 1998 was actually asked to
`design and build a dose counter for an inhaler. And he did in fact look to
`the mechanism of a pen for that purpose.
`On slide 20 we see that Mr. Clemens, again, Aptar's expert in this
`case, gave testimony in another action that contradicts Aptar's position here.
`So in this IPR, Aptar argues that a skilled artisan would not look to the
`known mechanisms of a pen for converting linear to rotational motion.
`But in a prior case, again involving another medical device, this was
`an injection device, Mr. Clemens was asked, are there other ways for
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`converting linear to rotational motion? And again, this medical device he
`was talking about in the other case also converted linear to rotational motion.
`He was asked, are there other ways of doing this? And he
`responded, yes, there are other ways of doing that. I'm going to flip
`forward for a moment to slide 21. And you can see what those other ways
`were. He said you can do that through gearing, through the use of cams,
`through the use of springs -- the very same mechanisms that we find in
`Rhoades.
`Now, flipping back to slide 20, what Mr. Clemens said is that these
`are basic mechanisms. And skilled artisans, engineers take these basic
`mechanisms and they apply it to whatever product they're working on. It
`doesn't matter if it's not optimum for the case. Skilled artisans know how
`to optimize those things. They can apply those basic known mechanisms to
`whatever product they are working on.
`Okay. Flipping to slide 26 now, we'll discuss some stuff about
`analogous art. As the Board noted in its Institution Decision, a reference is
`analogous if it is reasonably pertinent to the particular problem with which
`the inventor is involved.
`We've summarized here the evidence in this case -- some of the
`evidence in this case that demonstrates that in fact the mechanism of
`Rhoades was in fact pertinent.
`First of all, we just discussed Mr. Piper's prior testimony that he,
`excuse me -- his testimony in this case that he had in fact looked to the
`mechanism of a pen when designing a dose counter.
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`As for Mr. Clemens, we'll flip forward to slide 28. Here we have
`another piece of prior testimony from another IPR proceeding, from Mr.
`Clemens. And this also concerned a medical device. This was a safety
`mechanism for protecting a needle. And in that case Mr. Clemens testified
`that such mechanisms can be found in the age old mechanism of a
`retractable ball point pen.
`On slide 29 we also see that there's reference to this in the prior art,
`to the use of mechanical pens, or when looking to design a medical device,
`in particular even when designing MDIs. So on slide 29 we see a reference
`on the right that's being discussed.
`You can see there that it is in fact an MDI, an inhaler. And it has
`an indexing mechanism. And at the bottom highlight you can see the
`patent notes that the device for rotating the rod is an indexing mechanism
`much like that of a ball point pen.
`Turning back to slide 22 now, we see that here Aptar argued that a
`skilled artisan would not look to Rhoades because it does not require strict
`tolerances. And as the Board noted in its Institution Decision, the
`challenged claims also do not require expressly close manufacturing
`tolerances.
`However, a POSA would have known how to coordinate those
`tolerances if desired in a particular device. And Mr. Piper provided
`significant testimony on that point.
`Now, Aptar has also argued, and now I'm on, excuse me, slide 23.
`Aptar has also argued that Rhoades teaches away from the use of the
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`mechanism, the rotating mechanism in Rhoades, because it does not require
`close tolerances.
`But excuse me, but it doesn't discourage or discredit the use of close
`tolerances. It simply says that it's not required for purposes of the pen.
`But that doesn't mean that a skilled artisan would be discouraged from
`taking that device, from taking that component and utilizing it, and
`coordinating the tolerances as appropriate for the MDI. And we've cited to
`a Federal Circuit case that upholds that this is not a teaching away.
`On slide 24 what we've noted here is that Aptar argues that a POSA
`would not have looked to Rhoades, because it has a double click design.
`So by that I mean, you know, when you're activating your pen, you click
`down once to put it into the writing position. You click a second time to
`release it back to the retracted position. So two clicks per one full cycle.
`In fact, as Mr. Piper explained, this double click inhaler would have
`a number of advantages over current MDIs. And specifically that it would
`avoid the loss of prime issue.
`However, Mr. Piper also testified that if a single depressant release
`inhaler were desired, a POSA would know how to do that. And he
`described that. You see that on slide 25. He both described it in his
`petition, and provided an illustration of what that could look like as well.
`Okay. We're going to flip now to slide 30. And Aptar has raised a
`number of operability arguments in this case. In doing so, it has ignored
`KSR, and it has treated the skilled artisan as an automaton.
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`On slide 31 we see that not only has Aptar treated the skilled artisan
`as an automaton in the context of these IPRs; however, it's applied a double
`standard in the context of the Specification of the ’177 patent, and its
`prosecution history. Aptar applies a different standard to the skilled
`artisan.
`So you can see at the top of slide 31 we have a quote from the
`prosecution history. The examiner had issued a rejection because certain
`structures and connections between those structures had not been disclosed.
`And Aptar told the Patent Office that those structures and connections do not
`need to be disclosed. A skilled artisan would understand them.
`Another example of this is at the bottom of slide 31. Here you can
`see, now let me step back for a moment. To understand this, the FDA's
`guidance, which required skilled artisans to put dose counters -- to integrate
`dose counters into all of their MDIs going forward, Aptar's expert, Mr.
`Clemens, admitted that such a modification to current devices would affect
`the inhalation flow path of that device.
`So as of the FDA's guidance, anyone who's going to follow that
`guidance is going to affect whatever inhalation flow path already existed in
`that device, and they would have to redesign a new inhalation flow path, or
`at least reconfirm that it was accurate.
`However, Aptar has criticized these IPRs for not describing how a
`POSA would set the inhalation flow path, or has alleged that POSA would
`be unable to set an inhalation flow path.
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`You can see at the bottom of slide 31, Mr. Clemens was testifying on
`cross examination. He was being asked, well, in the context of the ’177
`patent, since this new modification that the FDA requires will in fact change
`the inhalation flow path, how would a skilled artisan know how to do that?
`Because the ’177 patent's Specification does not describe that. And his
`answer to that is, well, it would come from over 50 years of development of
`metered dose fluid dispensing devices.
`The Federal Circuit has told us that you cannot apply this type of
`double standard. What's good for the goose is good for the gander. So if
`you did not provide that type of detail in your Specification, you can't be
`heard to complain that the prior art also does not provide that level of detail.
`We're going to briefly discuss objective indicia of non-obviousness.
`Aptar has raised two issues in this IPR. And this applies to both patents --
`both the ’177 patent and the ’631 patent that are at issue in this hearing
`today.
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`Now, on slide 42, here we are responding to Aptar's argument
`regarding long felt need. And there was no long felt need. The FDA
`guidance was published in 2001, was draft guidance. And 2003 was the
`final guidance.
`Aptar admitted that it was simply answering the FDA's call. That's
`not a long felt need. That is a shortly felt regulatory requirement, and that
`is explained in the Ecolochem case that's cited on the bottom of page 42.
`Finally, the other secondary consideration raised by Aptar was
`failure of others. And quite simply, Aptar has put forth no evidentiary
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`IPR2018-01054 (Patent 8,936,177 B2)
`IPR2018-01055 (Patent 9,370,631 B2)
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`support to suggest that anyone else in the industry tried and failed to achieve
`this.
`
`If Your Honors have any questions, I would be more than happy to
`answer them. Otherwise I would turn over the floor to my colleague, Mr.
`Maslowski.
`JUDGE JUNG: I have no questions, Mr. Sklar.
`MR. SKLAR: Thank you, Your Honors.
`MR. MASLOWSKI: Good afternoon, Your Honors. Again,
`Steven Maslowski for Petitioners. I'm going to start with slide 44 and the
`’631 patent.
`Now, we have four grounds of institution for the ’631 patent. Two
`grounds of anticipation and two grounds of obviousness. And before I get
`to the specifics of those, just a quick mention about the claims. On slide 45
`here we have independent claim 1 and dependent claim 2. There are two
`independent claims and two dependent claims at issue in this patent.
`Now, claim 1, independent claim 1 defines various structural
`elements. For example, it talks about a first member, a second member,
`broad structural elements. It talks about a stationary body. It talks about
`a fluid reservoir. And then it simply talks about the way those structural
`elements move relative to each other. So there's no mention of incomplete
`actuation or return strokes in the ’631 patent. So in some respects it's a
`little simpler.
`On slide 46 we have claims 3 and 4. And independent claim 3 is
`very similar to independent claim 1. Again, structural elements and simply
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`IPR2018-01054 (Patent 8,936,177 B2)
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`defining the way that these different members, for example, move relative to
`each other in the reservoir and the other various components.
`So starting with Ground 1. Ground 1 of the ’631 patent is that
`claims 1 to 4 are anticipated by Allsop. There are two primary disputes
`with regard to Allsop, and we've bucketed them this way. One is the push
`button cap, the so called first member that Petitioners are pointing to. And
`the second is the displayable dose value limitation.
`Now, first Aptar takes issue with whether the push button cap of
`Allsop is enabled, and also whether and how it would operate. So let's look
`at those issues. I'm going to jump ahead to --
`JUDGE JUNG: Mr. Maslowski --
`MR. MASLOWSKI: Yes.
`JUDGE JUNG: Before you go on, do you agree with Patent
`Owner's contention that the Board need not resolve any dispute about
`ordinary level of skill in regard to -- for these two cases?
`MR. MASLOWSKI: I do agree with that for one primary reason,
`which is that regardless of the specific definition we want to give to that
`person of skill in the art, I think we know from the ’177 patent prosecution
`history what that person knows.
`JUDGE JUNG: Okay.
`MR. MASLOWSKI: So Aptar's admissions in the ’177 file history
`sort of carried the day, in terms of what the person of skill in the art,
`regardless of number of years of experience we want to give them, what they
`know, and what they're able to do. So I think that's the important point.
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`IPR2018-01054 (Patent 8,936,177 B2)
`IPR2018-01055 (Patent 9,370,631 B2)
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`JUDGE JUNG: Okay. Thank you, Mr. Maslowski. And second
`question, do you also agree with Patent Owner's contention that no claim
`terms have to be construed to reach the final written decision in these two
`cases?
`
`MR. MASLOWSKI: Yes, we do agree with that, Your Honor.
`Based on the positions that they've taken, we do not believe that any claim
`terms require construction.
`JUDGE JUNG: Okay. Thank you, Mr. Maslowski.
`MR. MASLOWSKI: So we're on slide 49. And I'd like to look at
`the push button cap issue first. And Aptar says Allsop does not enable the
`push button cap. So let's look first at what Allsop says about the push
`button cap.
`So Allsop says, a push button cap, not shown, may be provided as
`part of the main housing 10 to cover the upper portion of the pressurized
`dispensing container 15. Advantageously, this prevents the ingress of dust
`contaminants and moisture into the apparatus.
`So Allsop says what the push button cap is, where it is, and what it
`does. And Petitioner's expert, Mr. Piper, illustrated the push button cap of
`Allsop, in green, as shown in the picture in the bottom right hand corner.
`And to be clear, he added the green portion. He illustrated the push button
`cap. It's a cap with a push button. Pretty straightforward.
`The push button cap is the claimed first member in the ’631 patent
`claims. Now, let's look next at Aptar's depiction of the push button cap.
`We're on slide 50.
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`The bottom left hand depiction is Aptar's expert, Mr. Clemens, and
`what he views the push button cap to be. As you can see, it's a cap, but
`there's no push button. There's nothing to push, nothing moves.
`According to Mr. Clemens, Allsop doesn't describe how the push button cap
`operates or how it connects.
`But the portion of the Specification from Allsop that we just looked
`at describes exactly that. It operates by being pushed. It moves axially.
`It's located on top of the housing to cover the container, to prevent the
`ingress of contaminants.
`The lack of enablement argument from Aptar fails. And it is
`simply that. It's argument.
`JUDGE JUNG: Mr. Maslowski, before you go on. You said that
`Allsop discloses that the push button cap moves axially. Can you pinpoint
`where it says that, or where one of ordinary skill in the art would understand
`that's being disclosed?
`MR. MASLOWSKI: With respect to, I'll go back to slide 49. In
`terms of where it's defined, and the function that it carries out. So in the
`text it says, it's part of the main housing 10 to cover the upper portion of the
`pressurized dispensing container. And that's where our expert, Mr. Piper,
`has positioned it. And the push button is, you know, to actuate the device.
`So to actuate the device without the push button cap, you push down on top
`of the dispensing container. With the push button cap in place, one of skill
`in the art, as illustrated by Mr. Piper, has shown that you push the button,
`which pushes the canister, which actuates the device.
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`IPR2018-01054 (Patent 8,936,177 B2)
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`JUDGE JUNG: And I think your position is that this phrase push
`button cap cannot be interpreted to mean a cap for a push button? So the
`cap itself cannot be the push button?
`MR. MASLOWSKI: I understand that Aptar made that argument.
`But the device is still lacking a push button. So if it really is a cap that
`covers a push button, then what's the push button? There is no push button
`even in Mr. Clemens's depiction. He has a cap again. There's no push
`button present.
`JUDGE JUNG: Yes. You may go on.
`MR. MASLOWSKI: So going back to the enablement argument,
`Allsop has presumed enabled. And Aptar has not provided any evidence in
`support of its non-enablement argument, and has certainly failed to
`undertake an analysis --
`JUDGE DANIELS: I'm sorry. Before we -- can you guys hear
`me okay?
`MR. MASLOWSKI: Yes, Your Honor.
`JUDGE JUNG: Yes.
`JUDGE DANIELS: This is Judge Daniels. Sorry, Mr.
`Maslowski. Before you go on, couldn't it -- if I'm understanding this push
`button discussion that we just had, is it your position that a push button cap
`as described in Allsop is intended to push down? There's a physical
`connection between the dispenser inside and the push button cap, so that the
`user actuates that push button cap, and it pushes down, and then hence
`pushes the dispenser, which actuates? Is that your all's position?
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`MR. MASLOWSKI: That's exactly right.
`JUDGE DANIELS: And then, and my -- they can answer this
`question when it's their turn. But couldn't it be that the, what Patent
`Owner's position here is that the cap is just pushed into place to cover the
`device? I mean, I don't see anything that the push button in their
`description that tells me that the push button is pushing down on the
`dispenser.
`MR. MASLOWSKI: That is, it's our position --
`JUDGE DANIELS: Does it cover the upper part? Go ahead.
`
`Sorry.
`
`MR. MASLOWSKI: Sure. Our expert, as one of skill in the art,
`understands this teaching to be that the push button cap is part of the
`working device. So it's there to coexist during operation of the device.
`And so it covers the upper portion of the container.
`And again, I would understand Mr. Clemens's posi
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