Trials@uspto.gov
`571-272-7822
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`Paper # 34
`Entered: 02/04/2022
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ONTEL PRODUCTS CORPORATION,
`Petitioner,
`
`v.
`
`GUY A. SHAKED INVESTMENTS LTD.,
`Patent Owner.
`____________
`
`IPR2020-01728 (Patent 9,591,906 B2)
`IPR2021-00052 (Patent 9,877,562 B2)
`____________
`
`Record of Oral Hearing
`Held Virtually: Wednesday, January 12, 2022
`
`BEFORE: FRANCES L. IPPOLITO, ARTHUR M. PESLAK, and
`ALYSSA A. FINAMORE, Administrative Patent Judges.
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`571-272-7822
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`
`
`
`
`Paper # 34
`Entered: 02/04/2022
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ONTEL PRODUCTS CORPORATION,
`Petitioner,
`
`v.
`
`GUY A. SHAKED INVESTMENTS LTD.,
`Patent Owner.
`____________
`
`IPR2020-01728 (Patent 9,591,906 B2)
`IPR2021-00052 (Patent 9,877,562 B2)
`____________
`
`Record of Oral Hearing
`Held Virtually: Wednesday, January 12, 2022
`
`BEFORE: FRANCES L. IPPOLITO, ARTHUR M. PESLAK, and
`ALYSSA A. FINAMORE, Administrative Patent Judges.
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`IPR2020-01728 (Patent 9,591,906 B2)
`IPR2021-00052 (Patent 9,877,562 B2)
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`A P P E A R A N C E S
`
`ON BEHALF OF THE PETITIONER:
`
`
`JOHN S. ARTZ, ESQUIRE
`JONATHAN D. NIKKILA, ESQUIRE
`DICKINSON WRIGHT PLLC
`350 S. Main Street
`Suite 300
`Ann Arbor, Michigan 48104
`(248) 433-7262
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JONATHAN M. STRANG, ESQUIRE
`BENJAMIN Z. BISTRICER, ESQUIRE
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW
`Suite 1000
`Washington, D.C. 20004
`(202) 637-2362
`
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`The above-entitled matter came on for hearing on Wednesday,
`January 12, 2022, commencing at 1:00 p.m. EST, by video/by telephone.
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`IPR2020-01728 (Patent 9,591,906 B2)
`IPR2021-00052 (Patent 9,877,562 B2)
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` P R O C E E D I N G S
` JUDGE FINAMORE: Thank you. This is a
`consolidated oral argument for two inter partes review
`proceedings, IPR2020-01728 and IPR2021-00052, both
`captioned Ontel Products Corporation v. Guy A. Shaked
`Investments Ltd.
` I am Judge Finamore, and I am joined by Judge
`Ippolito and Judge Peslak. The Board is providing a
`court reporter who will be providing a transcript of
`this oral argument. As this is a consolidated oral
`argument for two proceedings, we’ll have one transcript
`for both proceedings which will be entered into each
`proceeding.
` Turning to the parties’ appearances. For each
`person in attendance on behalf of the party, please
`state and spell the person’s name. Please also indicate
`who will be speaking for that party.
` With that, let’s get appearances for
`Petitioner.
` MR. ARTZ: Yes, good afternoon, Your Honor.
`For Petitioner, John, middle initial S., Artz. Spelled
`J-O-H-N, last name A-R-T-Z. And with me in the room I
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`have Jonathan Nikkila, N-I-K-K-I-L-A. I will be
`speaking.
` JUDGE FINAMORE: Thank you, Mr. Artz.
` And let’s turn to Patent Owner.
` MR. STRANG: Thank you, Your Honor. For Patent
`Owner, we have me, lead counsel, Jonathan Strang,
`S-T-R-A-N-G, and with me in the room I have Ben
`Bistricer, B-I-S-T-R-I-C-E-R, also of Latham & Watkins.
` JUDGE FINAMORE: And Mr. Strang, will you be
`doing the speaking on behalf of Patent Owner?
` MR. STRANG: Yes, Your Honor.
` JUDGE FINAMORE: Thank you.
` Before we begin with the parties’ arguments, I
`would like to go over four housekeeping matters.
`First, as this is a video proceeding, there is a chance
`we may have technical difficulties. If you experience
`any difficulties that prevent you from presenting your
`case, please let the judges know. If you can’t let the
`judges know, for example, if you lose audio or video
`connection, please use the telephone number we provided
`to contact our hearings team.
` Second, in an effort to provide a clear
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`transcript for this oral argument, please mute yourself
`when you’re not speaking. When you are speaking, please
`first identify yourself. As this is a consolidated
`argument for two proceedings, please also indicate at
`the beginning of your argument which proceeding you’re
`referring to, and indicate when you’re switching to the
`other proceeding. When using the demonstratives, please
`remember to identify the slide number.
` Third, there are no speaking objections during
`today’s oral argument. If you feel you need to make an
`objection, please do so during your oral argument time.
` And finally, four, Judge Peslak will be keeping
`time. He will try to give you an indication when you
`have five minutes remaining in your allotted time. If
`you would like an indication at a different time, please
`let us know at the beginning of your speaking time.
`Unfortunately, there’s no common clock. Although Judge
`Peslak will be keeping time, you should also keep track
`of your own time.
` Any questions regarding these housekeeping
`matters?
` MR. ARTZ: John Artz speaking. Not from
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`Petitioner, Your Honor.
` MR. STRANG: No questions from Patent Owner,
`Your Honor.
` JUDGE FINAMORE: Thank you. Let’s start the
`parties’ arguments. As we outlined in our Order, each
`party will have 90 minutes, including rebuttal time, to
`present their arguments. Petitioner who has the burden
`of proving unpatentability will go first. Patent Owner
`will go second. At the beginning of each party’s
`argument, the party may reserve time, some of its 90-minute
`argument time, for rebuttal.
` With that, Petitioner you may begin. And
`please let us know if you would like to reserve time for
`rebuttal.
` MR. ARTZ: Yes, thank you, Your Honor. We
`would like to reserve 20 minutes for rebuttal.
` JUDGE FINAMORE: I just want to make sure I
`heard you correctly. Did you say 20 minutes?
` MR. ARTZ: I did, 20 minutes. Two zero.
` JUDGE FINAMORE: Thank you. That leaves you 70
`minutes, and you may begin when you’re ready.
` MR. ARTZ: Thank you, Your Honors. Good
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`afternoon. As indicated, my name is John Artz, and I
`represent Petitioner, Ontel Products.
` There are two patents in this -- these
`consolidated proceedings, the ’906 and the ’562. I’m
`going to be starting with the ’906 patent. While the
`patents have the same subject matter, same disclosure,
`and same drawings, they have different claims, and there
`is some overlap, but I will try to identify for which
`proceeding the evidence and keep it segregated as best
`we can.
` Your Honor, the invalidity assertions as to
`both patents are each clear and simple. Dafni, in its
`plead -- its briefings, as well as apparently based on
`our reading of their slides, are going to try to
`complicate and confuse some of the issues, in our view,
`to try to distract from what we believe is the clear
`unpatentability of the claims. Lacking in many
`instances substantive arguments, like many parties in
`their shoes, as you’re going to see, they’re going to
`focus on process. Process arguments have no merit.
` Similarly, when they do address the substance,
`and we’ll point this out as we go through today, they
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`commit various errors. In many instances, they
`mischaracterize Ontel’s position. In other instances,
`they mischaracterize the testimony to try to create
`inconsistencies with Ontel’s experts, and then,
`mischaracterize and try to gloss over admissions from
`their expert. They also offer new evidence of
`commercial brushes in their Sur-reply, which is not
`proper and untimely.
` But most glaringly, in their Petition,
`particularly Figure 7 and Figure 8, they have inserted new
`drawings that they contend represent the prior art in
`order to try to make an argument in response to
`arguments we presented in reply. But those drawings are
`not fair representations as they eliminate the key
`feature that demonstrates the -- the flaw in their
`argument. And again, that’s for example, on pages 7 and 8
`of their Sur-reply. We believe that a review of the
`relevant and accurate evidence demonstrates that all
`claims are invalid.
` So let’s turn to the ’906 specifically. Both
`-- the ’906 patent relates to a hair brush that both
`heats and dries the hair at the same time in a single
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`brush, but does so by addressing safety concerns. And
`it’s the same for the ’562 patent, but the claim of the
`’906 patent, and this is on Slide 3, has three main
`limitations that we’re focusing on. The first, it has
`heating elements with spacers configured on top of the
`heating elements. It also has peripheral spacers that
`are located around a portion of the heating elements.
`And then, it also has a geometric relationship where the
`peripheral spacers are shorter in height than the
`spacers that are configured at the top of the heating
`elements. And as we’ve demonstrated in the Petition,
`these features are well-known and are disclosed in the
`Choi reference.
` So let’s turn to Ground 1. Ground 1 is
`anticipation by the Choi reference. There are three
`issues that remain in dispute between the party and that
`-- the parties, and that the Board is going to have to
`address. First, the issue of whether Choi discloses all
`elements of claim 1. Secondly, whether Choi’s spacers
`are configured on top of the heating elements as the
`claim requires. And third, whether Choi teaches the
`undulating heating element paths of claims 12 and 13.
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` Given the issues that have been raised by
`Dafni, it’s worth reorienting a baseline as to the law of
`anticipation. As we mentioned, Ontel asserts that
`claims 1 and 12 through 13 are anticipated by Choi, as
`well as others that do not currently appear to
`be in dispute based on the briefing.
` But the law in anticipation requires, as it has
`for close to a century, an anticipation requires the
`presence in a single reference of every element of the
`claim as arranged in the claim. Notably, Your Honors,
`you’re not going to hear Dafni assert that the Choi
`reference doesn’t disclose any particular element of
`claim 1. Now, so I’ll say that again. Dafni does not
`contend that Choi is absent, or there’s an absence in
`Choi of any particular element in claim 1. Instead,
`Dafni wrongly asserts that because certain features in
`Choi that are required by the claim exist in different
`figures, Ontel didn’t meet its burden of proving
`that the separate figures were not separate and
`discrete. But that’s not the test.
` Moreover, it is also incorrect, as Choi plainly
`teaches various brush row configurations that can be
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`engaged and are interchangeable with the disclosed iron
`rolls. And this is not in dispute. Dafni’s own expert,
`Mr. Ganaja, agrees that Choi, quote, teaches -- teaches,
`quote, an iron roll with grooves that are designed to
`receive one of several distinct brush configurations.
` And that’s in Mr. Ganaja's Declaration at
`paragraph 22. So in other words, there is no dispute
`between the parties that the iron roll grooves of Choi
`can receive the various brush configurations that it
`discloses. And what’s also important with respect to
`anticipation, the law is also clear, you need to look at
`the reference in its entirety, not example-by-example.
`And this comes directly from the Net MoneyIN case that
`Dafni relies so heavily on.
` Let’s -- turning to Slide 6, and let’s talk the
`specifics about the Choi reference. As mentioned, Choi
`discloses a heated hairbrush that has two different iron
`roll shapes. One of the iron rolls is shaped as a
`cylinder, as shown in Figure 1, and the other is a flat
`brush that’s shown in Figure 3. Each of these different
`shaped iron rolls has grooves on its surface, again, for
`receiving the various brush configurations or brush row
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`-- rows that are disclosed in the various figures of
`Choi. And as we’ve demonstrated in the Petition, with
`respect to Figure 13 with the -- which is Choi’s flat
`brush roll embodiment, where the iron roll is 320, the
`grooves of the iron roll can receive heating element
`rows and spacers, designated 141 and 142, but also can
`receive the -- the rows of heating elements and spacers 441
`and 442, with the spacers projecting through bores
`in the heating elements and projecting above the top to
`serve to space the user’s scalp from the heating
`elements to protect it from burning doing use -- during
`use. And those are positioned down the region of the
`face as shown in the drawings in the Petition. Both for
`Figure 13 as well as the brush row of Figure 19 that
`includes the peripheral units labeled 443 on the end.
` As paragraph 103 of Choi demonstrates, both the
`heating elements and spacers, as well as the peripheral
`units that make up the row 440, are coupled to the iron
`roll. And the iron roll is what’s disclosed, for
`example, in Figure 13.
` And there is no dispute about that. Dafni’s
`expert, Mr. Ganaja, agree -- agrees, as we mentioned,
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`that Choi encompasses the iron roll with grooves to
`receive several distinct brush configurations. And with
`respect to specifically the iron roll groove that’s
`mentioned in paragraph 103 in connection with Figure 19,
`he was asked during his deposition what groove and what
`iron roll that was in reference to. And he testified at
`Exhibit 1046 at paragraph 45 that the groove being
`referenced in paragraph 103 of Choi is the groove
`identified by reference number 122, which is the iron
`roll groove in Figure 13.
` To the extent that there was any ambiguity, the
`entirety of Choi refutes Dafni’s argument in terms of
`anticipation that Choi doesn’t teach every element of
`the claim 1 as arranged in the claim. Specifically, and
`I will refer the Board to Slide 10, and where we have
`summarized and quoted the solution section of Choi. The
`solution section is the part of Choi where it identifies
`what it is that they believe that they invented, what
`they believe they contributed to the art in terms of the
`heat -- heated hairbrush art, and what they thought that
`they were providing or what Choi teaches to a person of
`skill in the art is that Choi includes an iron roll
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`which is made of metal. It can be heated up to a high
`temperature. And that’s at paragraph 7 of Choi. It
`also has grooves formed in the lengthwise direction.
`That’s also at paragraph 7. It also indicates that heat
`transfer units can be coupled to the grooves with heat
`shield units coupled to the hollow part and exposed
`through their upper surface. So those are the brush
`rows, and those are also identified in paragraph 7.
` While the heat transfer units are made of
`metal, the heat shield units are made of plastic, such
`that they serve as insulative spacers. And that’s at
`paragraphs 8, 11 and 12.
` The solution section also says that the rows
`can include protective plastic protective units, again,
`insulative, located at the ends of the heat transfer
`units, clearly to protect the user’s scalp and hands
`from contacting the heating elements and being burned.
` To the extent there was any doubt, Choi also
`teaches that the hairbrush assemblies include, quote,
`separated individual parts -- and this is at paragraph 23
`-- and each groove of the iron roll may be coupled
`with several -- several individual parts.
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` Again, making clear that the iron roll of the
`solution can accept the various brush row configurations
`disclosed in the figures of Choi. Choi thus reaffirms
`that it teaches every element of claim 1.
` Let’s turn to the second issue that the Board’s
`going to have to decide with respect to whether or not
`Choi teaches spacers that are configured on top of the
`heating elements. First, it’s worth noting that there’s
`two agreements, or two issues, that are not in dispute
`that are relevant to this issue. First, both parties
`agree that Choi teaches heating elements with spacers
`that project from bores in the heating elements.
`Namely, they start internally, and project through an
`upper surface above.
` Dafni also does not dispute that Choi’s spacers
`contact the tops of the heating elements. And that’s
`significant. But Dafni has nevertheless proposed a
`construction of this term as follows: namely, spacers
`that are shaped or arranged so that they are attached
`to, supported by, or in contact with the uppermost
`surface of the end of the heating element. Now that
`appears at their Preliminary Patent Owner Response,
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`page 26, and their Patent Owner Response, page 43, but
`even under their proposed construction, this is taught
`by Choi, because as Dafni does not dispute, and as the
`Board noted in the Institution Decision, page 26, that
`Choi’s spacers contact the tops of the heating elements.
`Because of that, Dafni says, well, I know that’s what we
`said our construction was, but that’s not really what we
`meant. So they now try to seek to narrow their
`construction to add the requirement that while the
`spacer needs to do those things that they said, or be
`positioned where it said, it also cannot extend through
`the middle of the heating element. That’s their new
`construction --
` JUDGE FINAMORE: Mr. Artz?
` MR. ARTZ: -- but yet -- yes, ma’am.
` JUDGE FINAMORE: This is Judge Finamore.
` The -- Patent Owner’s proffered definition that
`you refer to, I believe, on page 43 of their Patent
`Owner Response, you mentioned that --
` MR. ARTZ: Yes.
` JUDGE FINAMORE: -- Choi discloses spacers
`configured on top in accordance with their definition. Does that
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`mean you agree with Patent Owner’s definition in this
`portion of the Preliminary -- or excuse me, Patent Owner
`Response?
` MR. ARTZ: No, we do not, Your Honor. And
`thank you for clarifying that. I’m going to get to that
`right now. We do not agree. We think that the proper
`-- that the construction that Dafni has proposed is far
`from the ordinary meaning which they say controls, and
`which we agree controls. And we believe that the
`proper meaning of this term can be discerned from the
`Specification and the claims. So let’s start with the
`claims first, because these are the proper sources for
`determining what a claim term means.
` Claim 4, while claim 1 requires configured on
`top, meaning that the spacers are configured on top,
`claim 4 requires that the spacers be connected on top.
`So at a minimum, claim 4 tells us that the spacers of
`claim 1 do not need to be physically connected on top.
`But then, let’s look to what the Specification says.
`The Specification differentiates spacers that are
`configured on top, to those that are among the heating
`elements, and those that are located on top, which it
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`identifies as 130B. And we have that quoted on Slide 12.
`That’s paragraph – it’s column 4, lines 4 through 8.
`And I’ll read it again. It says, spacers -- this is
`the second bullet point on the that slide.
` Spacers 130 located on the brush’s face are
`marked 130A. Spacers 130 located on top of the heating
`elements 120 are marked 130B.
` Those are the spacers to which we’re referring
`that are encompassed by this claim. Those are located
`or configured on top of the heating elements. And I
`think this is important because Patent Owner agrees when
`discussing, or it’s Patent Owners assertion, that the
`various 130B heating spacers that are positioned on top
`that are disclosed in the 56 -- or in the ’906 patent
`include those that are located in and project from a
`bore. That is obviously what the claim in the ’562
`patent is, and that is what they contend is disclosed
`within the ’906 patent. And in fact, that is what their
`expert, Mr. Ganaja, testified is shown in Figure 1B.
` Now, Dafni tries to refute the significance of
`this testimony as it applies to the fatality of their
`configured on top position by saying that Ontel somehow
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`mischaracterizes the testimony. Well, let’s dig into
`that.
` Mr. Ganaja clearly testified that some of the
`spacers in Figure 1B, quote, appear to be configured
`within or through and exposed on top, protruding.
` And that comes from Mr. Ganaja’s transcript,
`page 69, lines 13 through 14.
` So clearly, Dafni and Mr. Ganaja agree that
`Figure 1B discloses spacers that project through a bore
`above, and those can only be the spacers that are 130B
`identified in 1B because neither Figure -- neither those
`identified by 130A or 130C are affiliated with heating
`elements. 130A is among the heating elements not
`connected or associated with any heating element, and
`130C is on the periphery.
` So given that this is a preferred embodiment,
`it would be error to interpret the claims to exclude
`spacers that extend out through a bore and find that
`that’s not covered by the phrase, configured on top,
`particularly given the passage from the Specification at
`column 4, lines 4 through 8 that says that, spacers 130B
`are defined as those that are located on top, and 130B
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`in Figure 1B are those -- include those that extend up
`through bores, as well as those that are connected on
`top as set forth in claim 4. And again, that there’s no
`dispute --
` JUDGE PESLAK: Mr. Artz --
` MR. ARTZ: -- that Choi teaches -- yes. Yes,
`Your Honor.
` JUDGE PESLAK: Is there any anything in the
`Specification of the patent that says those spacers come
`up through a bore? Because when I look at say just Figure 2C,
`it doesn’t look like they’re coming up through a
`bore.
` MR. ARTZ: Your Honor, you’re correct. There
`is no mention anywhere in either Specification for the
`requirement of the spacers coming up through the bore.
`The best disclosure that Dafni can point to for support
`for that, because they have it as obviously the main
`element in the ’562 patent, which we’re going to get to
`in a second. Claim 1 is Figure 1B. And that’s what their
`expert had testified. He said there’s some unidentified
`spacers in Figure 1B that project up through bores. So
`other than that testimony when you’re looking at the
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`disclosure and the intrinsic evidence, that’s all that --
`that exists. But we do know with respect to -- and did
`I answer your question, Your Honor?
` JUDGE PESLAK: Yes, thank you.
` MR. ARTZ: We -- we do know that Dafni previously
`or has also taken the position publicly that this
`patent, specifically the ’906 patent, covers brushes
`that have spacers that extend up through bores. And I’m
`referring specifically, Your Honor, to Slide 14. Slide 14
`on the left is a photo of the Dafni Classic, their
`commercial brush, that, as Mr. Ganaja averred in his
`Declaration at paragraph 113, includes heating elements
`with spacers that project up through bores. And he
`testified that that was covered by the ’906 patent, or
`at least the website, Dafni put it on its website that
`they contend that the ’906 patent covers this commercial
`product.
` As we’re going to hear in a second, it
`certainly can’t be claim 18 because they take the
`position that claim 18 doesn’t cover spacers that are
`located above the heating elements. It only covers ones
`that are connected directly to the face, and there
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`clearly are not any of those spacers amongst the
`heating elements of the Dafni Classic.
` So if we accept Dafni’s stated construction,
`the one that they’ve advocated in their two positions,
`requiring it to be supported or connected on top,
`there isn’t any dispute that -- that Choi teaches it.
`And based on their assertions with respect to what
`configured on top means with respect to the commercial
`product in Figure 1, it’s also met by Choi by projecting
`up through a bore, as again that’s not disputed that
`Choi teaches that configuration. This is despite their
`attempts to try to reengineer the construction.
` So let’s turn to issue 3. And issue 3 relates
`to claims 12 and 13. And this with respect to Ground 1.
`The Petition demonstrated that replacing the rows of
`Figure 13 with the rows of Figure 19 results in lengthwise
`rows having offset rows of heating elements across the
`face of the brush. And if Your Honors turn to Page 16,
`you can see that there Figure 1 and Figure 13 are
`reproduced, or at least portions of it on that slide,
`and you can see both of the rows of heating elements as
`replaced on Figure 13 on the left, and Figure 1 on the right
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`are offset in the sense that across the face of the
`brush, the heating elements in adjacent rows are not
`parallel. Their steps are not aligned with respect to
`another -- one another if you’re drawing a straight line
`across the brush. And Mr. Ganaja agrees that it’s not
`disputed, or he agrees that Figure 13 of Choi discloses
`offset rows.
` Now, Dafni, however, says, when you put the rows
`of Figure 19 into Figure 13, it doesn’t result in an offset
`arrangement because there’s no alignment mechanism as to
`the rows of Figure 19. Dafni is not correct. Each brush
`row, and we’ve disclosed the various brush rows that
`exists in Choi on -- on Slides 17, 18, and 19, for
`example, all include an alignment mechanism. The
`alignment mechanism is designated in red, and with an
`arrow -- arrow. And what it is is that simply, one end
`of the brush is longer than the other, such that when
`you couple them into the rows of the iron roll, and you
`do so with the longer portion alignment mechanism, as
`Dafni seeks to call it, in the -- towards the
`different ends, it’s going to result in the rows being
`offset. Exactly what’s shown in Figure 13. It’s not
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`clear whether Dafni didn’t appreciate that that
`alignment mechanism was in the drawings, but it doesn’t
`matter.
` But what is prevalent is what I mentioned at
`the introduction. If you look at pages 7 and 8 of their
`Sur-reply, in an effort to demonstrate that putting the
`rows of Figure 19 into Figure 13 results in heating elements
`that are aligned, they’ve completely removed the
`alignment mechanism. You put the alignment mechanism
`in, you can’t line them up with the heating elements
`lined up when they’re inserted into the grooves the same
`manner as Figure 13.
` So not only does Figure 13 show offset rows, Your
`Honor, but Figure 1 also clearly includes offset rows.
`Thus, if you put the heating -- the row 440 with the
`peripheral ends of Figure 19 into either Figure 1 or Figure 13,
`it results in heating elements that are arranged
`across the face that are offset or not in alignment.
`And this makes sense, because this feature is well-known
`for heated hairbrushes as we’ve set forth in the
`Petition, and that’s the manner in which a person
`skilled in the art reads and understands the Choi
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`reference.
` Let’s turn to Slide 19, for example,
`specifically. When you insert the row 440 with the
`protective units 443 into the Figure -- the brush, Figure 13,
`because remember Figure 19 is not a completed brush
`assembly. It’s just a roll. And that’s why when it
`says you couple, it’s the iron roll, as their expert,
`Mr. Ganaja, agrees, you’re referring to the iron roll of
`Figure 13. And when you do that, you arrive at what’s
`shown on Page 19. You have rows of heating elements
`with spacers projecting through their top, and
`protective units at either end protecting a user’s scalp
`from the heating elements, that are arranged in offset
`rows.
` Now, recognizing that it can’t likely get away
`from the alignment issue, Dafni, as I mentioned at the
`beginning, tries to raise red herrings or confuse the
`issue by introducing new evidence in the form of an
`unrelated brush that it first introduced in sur-reply.
`This is not timely, and we object. But nevertheless,
`it’s no help. And because what it does do, and while
`this brush is not in any way tied to the Choi reference,
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`it clearly shows an alignment mechanism. And it clearly
`shows an alignment mechanism such that the rows of
`heating elements, when you put adjacent rows into the
`grooves in this brush, they would be offset. Now, Dafni
`tries to say, well, what this brush is relevant for is
`every other row are rows of peripheral spacers. But as
`we’re going to hear shortly with respect to the
`dependent claims, Dafni says, if you’re going to be
`inserting peripheral spacers on the flat brush of Figure 13,
`no person of skill in the art would actually remove
`heating elements and insert a row of peripheral spacers,
`because it would only leave two rows of heating elements.
`So Dafni can’t have it both ways.
` I’d like to turn now to claim 18. Claim 18 is
`obvious over Choi in view of Gress. Dafni asserts that
`the phrase, dispersed on at least part of the hairbrush
`face requires a direct connection between the spacer and
`the face.
` The intrinsic evidence does not support its
`position. First, let’s look at the language of the
`claim in its entirety, because I think it’s instructive
`to a proper resolution of this issue. The full
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`IPR2021-00052 (Patent 9,877,562 B2)
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