Trials@uspto.gov
`571-272-7822
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`Paper 38
`Date: November 27, 2023
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`SPECTRUM SOLUTIONS, LLC,
`Petitioner
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`v.
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`DNA GENOTEK, INC.,
`Patent Owner
`____________
`
`IPR2022-01347
`Patent 11,002,646 B2
`____________
`
`Record of Oral Hearing
`Held: November 14, 2023
`____________
`
`
`Before DONNA M. PRAISS, CHRISTOPHER M. KAISER, and JAMIE T.
`WISZ, Administrative Patent Judges.
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`571-272-7822
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`Paper 38
`Date: November 27, 2023
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`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SPECTRUM SOLUTIONS, LLC,
`Petitioner
`
`v.
`
`DNA GENOTEK, INC.,
`Patent Owner
`____________
`
`IPR2022-01347
`Patent 11,002,646 B2
`____________
`
`Record of Oral Hearing
`Held: November 14, 2023
`____________
`
`
`Before DONNA M. PRAISS, CHRISTOPHER M. KAISER, and JAMIE T.
`WISZ, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`IPR2022-01347
`Patent 11,002,646 B2
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`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`ALI S. RAZAI, ESQUIRE
`BENJAMIN B. ANGER, ESQUIRE
`JOSEPH F. JENNINGS, ESQUIRE
`Knobbe, Martens, Olson & Bear, LLP
`2040 Main Street, 14th Floor
`Irvine, CA 92614
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`MEHRAN ARJOMAND, ESQUIRE
`Morrison & Foerster, LLP
`Aon Center
`707 Wilshire Boulevard, Suite 1000
`Los Angeles, Ca 90017
`
`BRIAN M. KRAMER, ESQUIRE
`DREW ALAN HILLIER, ESQUIRE
`Morrison & Foerster, LLP
`12531 High Bluff Drive, Suite 100
`San Diego, CA 92130
`
`
`
`The above-entitled matter came on for hearing on November 14,
`2023, commencing at 1:00 p.m., at 600 Dulany Street, Alexandria, Virginia.
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`IPR2022-01347
`Patent 11,002,646 B2
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`P R O C E E D I N G S
`- - - - -
`JUDGE WISZ: Good afternoon. Today, we will hear arguments
`in IPR2022-01347 involving U.S. Patent Number 11,002,646. I'm Judge
`Wisz, and with me on the panel by videoconference are Judges Praiss and
`Kaiser.
`
`So let's start with appearances beginning with Petitioner.
`MR. RAZAI: Good afternoon, Your Honor. This is Ali Razai
`from Knobbe Martens on behalf of the Petitioner Spectrum Solutions. With
`me is Ben Anger and Mr. Jennings.
`JUDGE WISZ: Thank you. And Patent Owner?
`MR. ARJOMAND: Good afternoon, Your Honors. My name is
`Mehran Arjomand for Patent Owner DNA Genotek from Morrison &
`Foerster. With me is Drew Hillier also of Morrison & Foerster and Brian
`Kramer of Morrison & Foerster.
`JUDGE WISZ: First, we want to note that we have at our disposal
`the full record, including your demonstrative exhibits. But for clarity of the
`record and so we can follow the argument, we ask you to identify what page
`of your demonstratives or exhibits you are talking about as you argue. Also,
`if you could state your name before speaking, this will help the court
`reporter and those attending the hearing from remote locations.
`We also want to note that Patent Owner has filed objections to
`several of Petitioner's demonstrative exhibits. We reviewed the
`demonstratives and the objections and have taken the objections into
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`consideration. We note that the demonstratives are here just to guide the
`arguments and are not coming in as evidence. We also will not consider any
`new arguments. If counsel would like to use some of their allotted time to
`address what they consider to be new arguments in the demonstratives,
`you're free to do so.
`Patent Owner has also filed a motion to exclude Petitioner's
`Exhibit Number 1020, and that motion has been fully briefed at this point.
`We're not going to rule on that motion at this time, but we'll take it under
`advisement. And, again, it's your choice if you want to use your allotted
`time at this hearing to address the motion to exclude.
`And now consistent with the hearing order, each party has 60
`minutes to present their arguments. Petitioner, you'll proceed first. And
`would you like to reserve any time for rebuttal?
`MR. RAZAI: Yes, Your Honors. I would like to reserve 15
`minutes, please.
`JUDGE WISZ: Fifteen minutes. And I'll just set the clock, and
`you can start whenever you're ready. If you could just make sure that
`microphone is on.
`MR. RAZAI: Hello? Is it on? Okay. Thank you, Your Honors.
`Like I said, I'm Ali Razai from Knobbe Martens presenting on behalf of the
`Petitioner, Spectrum Solutions. So this IPR involves the '646 patent, and the
`'646 patent comprises of three parts. There's a sample collection vessel that's
`identified in green, a cap, and an annular valve. The annular valve has an
`outer cylinder. As you can see, that's in burgundy. It has an inner cylinder
`that's in orange that houses a reagent compartment. The reagent
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`compartment has fluid vents which are denoted in yellow on the slides,
`which is on Slide 2. Once the outer cylinder slides past the fluid vents, it
`opens the fluid vent, thereby allowing the reagents and the reagent
`compartment to flow out of the reagent compartment and into the sample
`collection vessel, thereby mixing with whatever substance may be present in
`that particular vessel.
`The Petitioner has challenged the '646 patent on four separate
`grounds. Ground 1 is the combination of Plante and Cho. The Plante patent
`also revolves around a sample collection system, and it's configured for ease
`of use by unskilled users. It's specifically concerned with saliva collection,
`storage, and transmission systems. The system includes a receiving vessel
`that includes an integrated funnel and a cap. And similar to the '646 patent,
`the cap includes a reagent chamber. The reagent chamber has a membrane
`on the bottom and, as the cap is tightened onto the vessel, there is a knife 19
`that pokes through that membrane, creating a hole there by releasing the
`reagents in the reagent chamber into the sample collection vessel.
`Another piece of prior art that we're using in that combination is
`the Cho patent, the Cho publication. And the Cho publication, similar to
`what the annular knob in the '646 patent looks like, it has an inner cylinder
`that's denoted in orange that houses a reagent chamber inside the cap. The
`reagents are housed within that particular chamber, and there's fluid vents
`that are denoted in yellow on the bottom of that inner cylinder. There's an
`outer cylinder that's denoted in burgundy, and, as that outer cylinder slides
`past the fluid vent, the reagents in the reagent chamber empty out into the
`vessel.
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`Patent 11,002,646 B2
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`Now, the point of attack here from the Patent Owner side isn't
`really on any elements. There's no elements that are challenged in terms of
`being met. The arguments are threefold. One has to do with the motivation
`to combine, the second has to do with an expectation of success, and the last
`one is analogous art. We'll get into each one separately, but, to be clear, the
`Petitioner is not relying on analogous art as a motivation to combine
`analogous art, showing that the references are analogous to the '646 patent.
`Getting into the motivation to combine issue, the first motivation
`that is identified in the petition is that Plante includes a knife 19, which is a
`sharp. And in a potentially biohazard situation, like a sample collection
`vessel, a person of ordinary skill in the art would like to eliminate that
`particular sharp. And Mr. Leinsing, who is the Petitioner's expert, he
`declared that a POSA would have recognized that the knife in Plante's
`sample collection system created a risk of injuring the user and others. It has
`long been known in the field of medical devices to avoid sharp objects, if
`possible.
`
`Now, the '646 patent similarly recognizes this long-felt desire to
`remove sharps from these types of devices. The '646 patent states a sample
`collection device may further allow a laboratory technician to receive the
`sample collection device and safely open it for processing with generally no
`risk of exposure to any hazards. Now, what hazards are they talking about?
`Improved safety for both the sample donor and the end user since, for
`example, sharp objects are not included. Now, this is the '646 patent, but,
`obviously, the '646 patent was not the first one to recognize that removal of
`sharps is something that is beneficial in these types of devices. The NSPA,
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`for example, includes studies that date back decades that show removal of
`sharps is something that would be beneficial in these types of settings, both
`for the user, as well as for the lab tech.
`But the Patent Owner argues, well, there's no risk of injury to a
`user because one of the things that they argue is, well, lab techs aren't going
`to be handling the device. They're not going to be exposed to these
`biohazards because these are all automated systems that are employed.
`That's actually directly contrary to the '646 patent, which actually states,
`finally, the sample collection device may further allow a lab tech to receive
`the sample collection device and safely open it for processing with generally
`no exposure to any hazards. This is Slide 9.
`The Patent Owner then argues, well, there's an alternative solution,
`meaning you can introduce engineering control, so that maybe is the
`motivation to eliminate the sharp. But that's directly contrary to law. In
`KSR, for example, and other case law that we'll get into in a second and it's
`also cited in the reply. Under the correct analysis, any need or problem
`known in the field of endeavor at the time of invention and addressed by the
`patent can provide a reason for combining the elements in the manner
`claimed.
`
`Then the Patent Owner argues, well, the NSPA teaches the exact
`opposite. The fact that there's alternatives that are taught doesn't make it the
`opposite and, in fact, in the Patent Owner response, the Patent Owner
`recognizes that the NSPA consistently refers to two ways to reduce the risk
`of occupational exposure, needleless systems, and engineering controls.
`Now, that doesn't mean that they have to be needles. A needleless system
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`can eliminate the sharp all together. And if you look at the NSPA, it says
`estimates for all health care settings are that 600,000 to 800,000 needle stick
`and other for percutaneous injuries, meaning that injuries by things that are
`sharp other than needles, occur among health care workers annually. Such
`injuries can involve needles or other sharps contaminated with blood-borne
`pathogens, such as HIV, hep B, hepatitis C, and obviously many other
`pathogens that could potentially be present in a sample.
`Now, we asked the Patent Owner's expert, Dr. Wereley, do you
`agree that one of skill in the art in 2012 would have been motivated to
`minimize the risk of injury for a device to be used by unskilled users in
`collecting samples, and, to his credit, Dr. Wereley agreed: I believe that's
`one of the principles that a POSA in 2012 would have considered when
`designing the device. And he identifies the engineering controls. But then
`he was asked could it also include eliminating the sharp, and, again, he
`answered one possible way of eliminating the ability of a person to hurt
`themselves on a sharp element is to eliminate that sharp element.
`Now, under the established case law, Novartis, for example, which
`cites all the way back to in re Fulton from 2004, our case law does not
`require that a particular combination must be the preferred or the most
`desirable combination described in the prior art in order to provide
`motivation for the current invention. This is Slide 14.
`Now, Novartis dates all the way back to in re Fulton, and, although
`in Novartis the Federal Circuit was dealing with lead compound claims and
`was dealing with a case that it actually found to be patentable, this is cited
`for proposition of a law, not for what the ultimate finding in that case was.
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`In re Fulton, 2004, same thing. That's where the proposition of law came
`from. So any criticism of Novartis is meritless; and, in fact, just months ago,
`in September of 2023, the Federal Circuit again confirmed that Novartis's
`holding applies. And in Elekta v. ZAP, same exact quote from Novartis,
`they held the claims to be unpatentable. And they were device claims and
`had nothing to do with a lead compound.
`Moving on to Slide 16, now, the Petitioner does not need to show
`that eliminating the sharp was the best way of doing it. It just needs to show
`that it was one way of doing it. But even if it were our burden to show that
`it were the best way, we would still meet that burden. This is a slide from
`Dr. Metzker, who is the Patent Owner's expert, and he says, well, we could
`do engineering controls and we could also have lab coats -- or that's
`supposed to be goggles, that's taken from the declaration -- or laboratory
`gloves. We can double-glove on each hand. And if you have a particular
`device that could be infected with HIV or HPV or HCV in a healthcare
`setting, I'm not comfortable that the coats, the goggles, or even double-
`gloving is going to protect me against that potential sharp stick. So even if it
`were our burden to show that it were the best way, that burden would still be
`met.
`
`Then the Patent Owner shifts its argument and tries to use a
`commercial embodiment of its own, the RE-100, which is a device that's not
`at issue and it's not embodying any prior art in this case, and say, well, look,
`you wouldn't be hurt, we tested it, we did a subjective test and I can press on
`it and it's fine. It's not the same product. But, moreover, if we're going to be
`opening up testing to show motivation to combine, how far out there are we
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`going to spend these proceedings that are meant to be on the written record?
`But the Patent Owner cites Wabco for the proposition, and in Wabco there
`was testing that was accepted to assess discretionary denial in the institution
`phase to show whether the claimed invention may have had features that the
`examiner didn't appreciate on re-exam. But even in Wabco, at the final
`written decision, the Board said we afford this evidence little weight for a
`number of reasons, and those reasons are very applicable to this case and
`even more so here than they were in Wabco. They said that the embodied
`device had some structural features that were different than the prior art.
`Here, it's not even embodying the prior art. It's a completely unrelated
`device that they're testing subjectively, putting in front of the Board, and
`saying, well, look, it's not sharp, so there's no motivation. That argument
`has no merit.
`So to summarize the motivation to combine with a sharp, the
`Plante reference discloses a knife to puncture a reagent chamber. A person
`of ordinary skill in the art would recognize the hazard associated with a
`knife and a sharp. A POSA understood that there were multiple ways to
`reduce the risk. For example, eliminating the sharp all together or
`implementing engineering controls. The Patent Owner's expert
`acknowledged that a POSA would have recognized eliminating the sharp as
`one option, and the Federal Circuit has repeatedly confirmed that a solution
`need not be the preferred or most desirable to render the claims obvious.
`There is a motivation to combine with the reference.
`But if that were not enough, there's also the molding issue. And
`Mr. Leinsing testified that it's difficult to mold sharp features. These
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`features end up being the last feature of the part to fill and will not fill fully
`to form the sharp or will stall and try to fill after the rest of the part is filled.
`Now, why is that relevant? We're not saying it's impossible to create one or
`to mold one. We're just saying it's going to increase the expense. There's
`going to be a higher rate of failure, more rejects, and more to throw out.
`And so because of that reason, another reason to actually eliminate the
`sharp. And Mr. Leinsing supports his declaration with an injection molding
`handbook.
`Now, there's at least two separate motivations to combine these.
`But one of the other ones that we also have, which is the KSR rationale,
`which actually obviates the need to even show a strict teaching motivation to
`combine, is the simple substitution argument which we'll get to in a second.
`Next, going to Slide 23, the Patent Owner challenges the petition
`on the reasonable expectation of success, but it provides no argument. The
`Petitioner's reasonable expectation of success for the Cho and Plante
`combination is on page 31 of the petition that includes cites to the expert
`declaration and, again, in the reply from pages 15 to 17. There's no cogent
`argument to show that there is no expectation of success in combining Plante
`and Cho to arrive at the claimed invention.
`The Patent Owner argues, well, Cho's cap won't fit on Plante. You
`can't just take off Cho's cap and put it onto a Plante device. They argue that
`Cho's design encourages contamination. People are going to pick it up from
`the part that's sticking out and contaminate the actual reagent compartment.
`And Plante doesn't have one of Cho's features, for example the ratchet, and
`they also argue that Cho doesn't have all the features of Plante. But we're
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`not trying to invalidate Plante, nor are we trying to invalidate Cho. The
`relevant analysis are the claims of the '646 patent.
`On the Cho won't fit argument, in Allied Erecting and many, many
`other cases, including a Supreme Court precedent in KSR, a POSA is not an
`automaton. There is an expectation that the POSA will adjust physical
`features of references when making a combination. That's within the skill of
`the art. You can modify things. You can adjust physical features to make it
`work. It's not just a rote test of let's take this cap off and put it on that, and,
`hey, look, if it doesn't work, then sorry, you can't do it.
`On the contamination issue, again, the law is clear that a POSA is
`expected to optimize the product. But, nonetheless, this argument, Patent
`Owner's experts aren't any experts in consumer behavior. They don't know
`who is going to pick what up. And also why can't you adjust the packaging
`to make sure that people pick up the right part and don't touch the middle?
`And also how is that argument in any way more applicable to Cho than it is
`to Plante where the reagent compartment similarly sticks out and isn't fully
`recessed within the cap? That argument lacks merit.
`Then they argue that Plante doesn't have one of Cho's features and
`vice versa, that Cho doesn't have many of Plante's features. But if we look
`at the Federal Circuit precedent, for example the Axonics which is in our
`reply at page 13, the inquiry is not whether a relevant artisan would combine
`a first reference's features with a second reference's features to meet the
`requirements of the first reference that are not requirements of the claim at
`issue. The relevant analysis is do they render the claims at issue
`unpatentable, and they do.
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`Then the Patent Owner makes some shifting arguments about
`Cho's fluid-tight seal. And the Patent Owner respond, it was first, well,
`there's no fluid-tight seal, so it's not analogous art. In the surreply, they
`come and say, well, no, there's no reasonable expectation of success. They
`also, for the first time, throw in Claim 3 and say, well, Claim 3 has that
`feature. Although we never argued it at POR, it's still there.
`Regardless of what the argument might be, there is a fluid-tight
`seal. Cho discloses an object of the present invention is to provide a bottle
`which throws two kinds of material separately in a bottle when the bottle is
`distributed on the market. Ask Dr. Wereley. Now, if you were told that a
`bottle is suitable for storing two separate materials and being distributed on
`the market, would you expect that the bottle seal those materials? And,
`again, to Dr. Wereley's credit, he acquiesced: I think it's common practice
`that materials that are distributed on the market are sealed. And if Patent
`Owner is making these arguments about the ratchets or the grooves or
`whether it can actually tighten or not, those are more akin to non-enabling
`prior art, which wouldn't even apply because it's not an element that we're
`trying to fulfill.
`And if they want some disclosure above and beyond what's in Cho,
`we need to look no further than the '646 patent where there is no discussion
`whatsoever about the sealing cap sealing the bottle, and the reason is clear:
`that's what a sealing cap does. A cap is meant to be put on a bottle to seal
`the contents. That's just common sense.
`The next argument is that the Patent Owner starts saying, well,
`with Cho, you have multiple parts, and I'm not sure what the actual legal
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`umbrella that this argument is fitting under, but we're just going to tackle it
`on its facts and say, well, there's a lot of parts in Cho and why would you
`want to combine it? But they're misconstruing what the parts were. I mean,
`look at the Plante patent with Plante saying is the first important
`shortcoming of the Genotek system is that it's comprised of four discrete
`parts which must repeatedly be coupled and decoupled in a series of
`complex steps which must be executed in a particular order. So the parts
`that they're talking about are the parts that are manipulated by the user: a
`vessel, a funnel, a container of fluid, and a stopper cap. So this is what
`happens. You have the vessel, get the funnel on top. The user deposits a
`sample and throws the funnel away. The top is put on, releasing the reagents
`into the chamber. That top is then throw away. Then a sealing cap is put on
`and shipped. Four parts.
`'646 patent, same exact discussion about the parts. The sample
`collection devices use a minimum amount of parts and do not require
`removal or exchange of the piece or an object thereof. How many parts does
`Cho have? '646 Plante and Cho each have two parts. There's a cap and
`there's a vessel.
`This is where we get into the simple substitution. So simple
`substitution is a KSR rationale that obviates the need for a strict teaching
`suggestion or motivation to combine. Now, in the surreply, the Patent
`Owner treats simple substitution as a heightened likelihood of success
`argument. It's not. What they're arguing is, well, it really wouldn't be
`simple, you have to modify things. Well, we've already established that's
`within the skill of the art. The skilled artisan is not an automaton. The
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`Patent Owner argues at page 12 of the surreply that the combination is not a
`simple substitution because Plante's receiving sample would need to be
`modified in multiple ways to function with Cho. Although it's a novel
`argument in the surreply, it actually fails as a matter of law. That's within
`the skilled artisan's ability to do. The skilled artisan is not an automaton
`limited to bodily incorporating a structure from one reference into the other.
`But what's more important is that the Patent Owner misapplies the
`simple substitution to imply that because some modification would be
`required to combine Cho and Plante, it somehow negates the finding of
`obviousness. It does not. The Petitioner has established that it would be
`within the skill of the art to combine the teachings of Cho and Plante to
`arrive at the claimed invention of the '646 patent, and it has declarations to
`support it and it's common sense. The challenged claims are obvious.
`But let's get to the other point of what they actually say in the
`POR. Although the surreply misapplies simple substitution, in the POR, the
`Patent Owner actually recognized the role of simple substitution as the KSR
`rationale if you look at Patent Owner response at page eight. The
`Petitioner's third motivation isn't a motivation at all but a KSR rationale.
`Cho's cap is purportedly a simple substitution for Plante's cap in Plante's
`device for which there would have been a reasonable expectation of success,
`and they cite KSR and they also similarly cite NPEP 2143.1. Now, what
`does NPEP 2143.1 say? It actually lists the various KSR rationales. It lists
`seven, A through G. B is simple substitution of one known element for
`another to obtain predictable results. G is some teaching, suggestion, or
`motivation on the prior art. Simple substitution is just the KSR rationale.
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`IPR2022-01347
`Patent 11,002,646 B2
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`The '646 is independently obvious under that rationale because it would
`have been obvious to replace the known cap of Plante with the known cap of
`Cho to yield a predictable result of a reagent being mixed with a substrate in
`the container vessel.
`Moving on to Slide 30. Now we're getting into analogous art.
`Now, again, I reiterate, Petitioner is not relying on analogous to say that it
`has a motivation to combine. We've already discussed the motivations to
`combine. There's two different tests to show analogous art. There's the
`same field of endeavor test, and there's a reasonable pertinent test. The '646
`patent for the disclosure relates the devices, solutions, and methods for
`collecting samples of bodily fluids or other substances. Some read the
`disclosure, the same also has particular use with the collection of any other
`substance. It's not limited to bodily fluids. It can be any substance.
`Similarly, in Cho, the field of endeavor, so for the '646 patent, the
`field of endeavor is the easy and safe mixing of a substance in a cap with
`any other substance collected in the tube. Cho, like the '646 patent, also
`permits the easy and safe mixing of two substances. Now, if you were to
`narrow Cho and say, well, it needs to be something that's more specialized,
`but Cho discloses that its bottle can be used in a variety of industrial fields,
`including the mixing of medicines and chemicals. It's in the same field of
`endeavor, Your Honors.
`But it also meets the reasonable pertinent test. Under in re Clay, a
`reference is reasonably pertinent if, even though it may be in a different field
`from that of the inventor's endeavor, it is one which, because of the matter
`with which it deals, logically would have commended itself to an inventor's
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`Patent 11,002,646 B2
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`attention in considering this problem. Both Cho and the '646 patent are easy
`to use, deal with compartment containers for storing and later mixing by a
`lay user. Nothing in Cho limits it to immediate use. In fact, Cho is talking
`about shipping the bottle off. The Patent Owner points to embodiments that
`show one advantage is to enhance the freshness of materials or deterioration
`of properties. Isn't that a property of the reagent, not the actual bottle?
`What's relevant is that Cho and the '646 patent are both directed to keeping
`the two materials separate until the lay user decides to combine them.
`Now, what's interesting is when we get into Plante and Patterson.
`There really are no arguments made by the Patent Owner about this
`combination. The only express arguments that are made about the Plante -
`Patterson combination is, one, the motivation to eliminate Plante's knife,
`which we discussed; and the fact that they argue that Patterson, for some
`reason, doesn't have a cap, which evolves over time.
`So we've already gone through Plante. Patterson similarly has an
`outer housing that's in burgundy with an inner cylinder that's in orange. The
`reagent compartment, when the outer cylinder slides past the fluid vents, the
`additive goes inside of the bottle. The reagent compartment empties into the
`sample collection vessel. Now, again, there's no other argument that's
`specific to Patterson except for the Plante knife and the alleged missing cap.
`So the petition sets forth a detailed motivation to combine analysis.
`All of our arguments are there for the combination of Plante and Patterson.
`The entirety of Patent Owner's argument is two sentences. The Patent
`Owner incorporates here its arguments from the discussion of Plante in view
`of Cho: Petitioners fail to show that a POSA would be motivated to
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`Patent 11,002,646 B2
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`substitute Patterson's cap for Plante's cap. Those two lines incorporate over
`75 pages of text. That's what section five does. There's no explanation that
`they provided. There's no evidence, material facts, or any governing law,
`rule, or precedent for Plante and Patterson outside of the Plante eliminating
`the knife and the cap argument. There's no expert testimony. Instead, the
`Patent Owner just simply asks the Board, well, can you just develop some
`arguments for us? Why don't you dig through those 75 pages and see what
`applies.
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`Section five has many arguments that are directed at Cho that
`aren't even applicable to the Plante and Patterson combination. But what's
`important is that they make these arguments in the surreply for the first time
`that weren't in the POR, citing, you see the citations in red, their citations
`don't contain anything that even remotely resembles these arguments that are
`made in simple bullet-point fashion without any support whatsoever.
`Patterson poses similar problems as Cho for plastic molding. I fail to see
`how, but there's no explanation. Patterson does not provide the same
`function as Plante, there would not be simple substitution. That's all they
`say, no other argument. Patterson's outer housing and inner housing will not
`operate merely by screwing on the cap. Additional mechanisms will be
`required, or the user will need to take additional actions. Thus Patterson's
`device requires features that are not present in Plante. Again, I haven't seen
`this argument, but I'm not sure, again, why Plante is relevant. The features
`of Plante are relevant. We're trying to meet the claim features. We're not
`trying to invalidate claims.
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`Patent 11,002,646 B2
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`Let's get into Patterson discloses the claim cap argument. Now,
`what's interesting is that the Patent Owner goes to great lengths in its
`surreply to not use the word cap, and they referred to it as the inner and outer
`housing repeatedly. But even in Slide 53 that Genotek is going to present,
`they still call it a cap because it's a cap. The title of the invention is mixing
`cap and method for use. If you look at what the cap consists of, so referring
`now to Figure 1 through 4, the present invention, in its preferred
`embodiment, is a mixing cap and method for use thereof when the mixing
`cap preferably comprises the outer housing 20 and the inner housing 40. So
`we're not referring to the outer housing 20 as the cap. It's that combination
`of feature 20 and 40 together comprise the cap in Patterson.
`They complain about the color scheme, well, there's no blue. Well,
`I'm not sure whether color schemes are what invalidate patents. The petition
`goes through in great detail showing where the cap is.
`In the surreply, for the first time, they say
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