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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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`TELEBRANDS CORP,
`Petitioner,
`
`v.
`
`TINNUS ENTERPRISES, LLC,
`Patent Owner.
`____________
`
`Case PGR2016-00030 (Patent 9,242,749 B2)
`Case PGR2016-00031 (Patent 9,315,282 B2)
`____________
`
`Record of Oral Hearing
`Held: December 1, 2017
`____________
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`
`
`Before MICHAEL W. KIM, FRANCES L. IPPOLITO and
`KEVIN W. CHERRY, Administrative Patent Judges.
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`Case PGR2016-00030 (Patent 9,242,749 B2)
`Case PGR2016-00031 (Patent 9,315,282 B2)
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`ROBERT T. MALDONADO, ESQUIRE
`ELANA B. ARAJ, ESQUIRE
`Cooper & Dunham, LLP
`30 Rockefeller Plaza
`New York, New York 10112
`
`ON BEHALF OF PATENT OWNER:
`
`
`ROBERT STERNE, ESQUIRE
`JASON D. EISENBERG, ESQUIRE
`TYLER J. DUTTON, ESQUIRE
`Sterne, Kessler, Goldstein & Fox
`1100 New York Avenue, N.W.
`Washington, D.C. 20005
`
`
`
`
`The above-entitled matter came on for hearing on Friday
`December 1, 2017, commencing at 1:00 p.m., at the U.S. Patent
`and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`Case PGR2016-00030 (Patent 9,242,749 B2)
`Case PGR2016-00031 (Patent 9,315,282 B2)
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`P R O C E E D I N G S
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`JUDGE KIM: This is the oral hearing for
`PGR2016-00030 and 00031. My name is Michael Kim. To my
`right I have Judge Kevin Cherry, and on the phone we have Judge
`Frances Ippolito. Can we please get appearances, starting with
`petitioner.
`MR. MALDONADO: Good afternoon, Your Honor.
`Robert Maldonado of Cooper & Dunham for the petitioner,
`Telebrands Corp. And with me, sorry.
`MS. ARAJ: Elana Araj for petitioner, Telebrands Corp.
`JUDGE KIM: Welcome. And patent owner?
`MR. STERNE: Good afternoon, Your Honor. Robert
`Sterne from Sterne Kessler for the patent owner. And with me I
`have Jason Eisenberg, Tyler Dutton and Trent Merrell from our
`firm. We also have the inventor, Josh Malone, who is right here.
`And we have Brian Koide, Eric Olavson and Jeff Ahdoot from
`the Dunlap, Bennett and Ludwig firm, the trial counsel in this
`case.
`
`JUDGE KIM: So a few housekeeping matters first, for
`in and out purposes, if people need to leave, that's fine. We
`would just ask you please restrict that to portions where counsel
`changes to minimize the disruptions if possible.
`Also for counsel, you'll see that Judge Ippolito is on the
`phone only today, so if you could please be clear about what slide
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`you are speaking of. She has all the slides and can read them. So
`that's fine. If you would just be clear about that, that would be
`appreciated. And I think that's it for preliminaries.
`So each side has 60 minutes. Petitioner, you may
`reserve time for rebuttal. Approximately how much would you
`like, sir.
`MR. MALDONADO: I would like to reserve
`15 minutes, Your Honor.
`JUDGE KIM: All right. And then last but not least,
`just preliminaries, so we ruled on the motion to seal for the
`demonstratives yesterday. I assume for the seal of
`demonstratives, you just want them expunged or do you want
`something different?
`MR. MALDONADO: We are okay with leaving the
`demonstratives in for the public record we had marked
`confidential, Your Honor.
`JUDGE KIM: You want to leave them?
`MR. MALDONADO: Yes.
`MR. STERNE: Your Honor, we just want to leave
`them in the public record, please.
`JUDGE KIM: All right. So with that, Mr. Maldonado.
`MR. MALDONADO: Thank you. Would Your
`Honors like copies of the demonstratives?
`JUDGE KIM: Sure.
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`MR. MALDONADO: Good afternoon. May it please
`the Court, my name is Robert Maldonado. I represent the
`petitioner, Telebrands Corp. And with me today are my
`colleagues, Tonia Sayour and Elana Araj, Vishal Parikh, from
`Cooper & Dunham. And then we also is Mike Underhill and Eric
`Maurer from the Boies Schiller firm as well.
`We are here today to talk about two patents relating to
`devices for filling multiple self-sealing balloons with water. It's a
`simple technology really. And the patent owner may try to
`overcomplicate it, but it's not complicated. It's putting balloons
`on tubes, filling them with water and closing them with rubber
`bands. All of this is in the prior art, and we don't have to look too
`far to find it.
`Now, when the patent owner comes up for its
`presentation, they are going to try to cloud the issues and talk
`about infringement and preliminary injunctions which are not
`issues before the Board. They are going to try to portray this as a
`case between an independent inventor and a corporation. It is
`not. The real party in interest here is not Tinnus. Tinnus has
`signed all of its rights to a large toy company called Zuru which
`has offices across the world. And this is a dispute between two
`corporations.
`Now, as the Board knows, last week the parties
`concluded a jury trial in the Eastern District of Texas. The jury
`did return a verdict in plaintiff's favor. The petitioner obviously
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`disagrees with the verdict and will be filing post-trial motions.
`There is no final judgment in that case. And importantly, as this
`Board has recognized in its decision in this proceeding denying
`rehearing, the Board evaluates the evidence and arguments
`presented before it and is not required to reach the same
`conclusion as the District Court. And that's the Novartis case,
`Novartis v. Noven, 853 F.3D 1289.
`JUDGE KIM: But not required to is not the same as
`citing it for a persuasive authority; is that not correct?
`MR. MALDONADO: Correct, Your Honor, yes. And
`nothing that happened in Texas dictates what should happen here.
`So with that background, I would like to now move on
`to the substance of the dispute. We have two proceedings
`involving two separate patents, the '749 patent and the '282
`patent. And these are two patents in a family of six patents. As I
`mentioned, the innovation here is simple and basic.
`If we could please start with slide 5, I'm going to skip
`some slides in the interest of time. So I would like to start by
`talking about the '749 patent. And the '749 patent has four
`structural elements, and so does the '282 patent. This is a
`housing, a plurality of hollow tubes, a plurality of containers and
`a plurality of elastic fasteners. This is the same four structural
`elements as I mentioned in the '282 patent and also the same four
`structural elements in the parent '066 patent which has now been
`invalidated by the Board.
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`If we turn now to slide number 9, the '282 patent, I'm
`going to talk about the differences between the '749 and '282.
`The housing is different, described differently in the two patents.
`In the '749 patent the housing has a common face at a second end.
`That requirement has been removed from the '282 patent. And
`the only other difference between the claims is the pressing
`limitation in the '282 patent. And if we turn to slide 10 now, this
`is the pressing limitation. And that recites that the containers are
`disposed sufficiently close to each other so that they press against
`each other whether the containers are in a filled state or an
`unfilled state.
`And now if we skip to slide 12, so we'll start by talking
`about obviousness. We can talk about the '749 patent and the
`'282 patent at the same time since there's a lot of overlap between
`them. Again, the only difference in the '282 is pressing, and we
`can talk about that separately.
`Turning to slide 13, so the primary reference that the
`petitioner relies upon is the Saggio reference. And the Saggio
`reference basically has it all. It has all of the three of the four
`structural elements. It has the housing. It has the tubes and it has
`a container, a self-sealing container. And this is a device for
`filling multiple self-sealing water balloons with water. And so
`this reference, which is published in May of 2013, shows that this
`idea was out there before the patent owner's earliest priority date.
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`And again, this has practically the entire invention here. The only
`thing missing is the elastic fasteners.
`And if we turn now to slide 16, another reference that
`we rely on, the petitioner, is the Cooper reference. And if we
`look at the Cooper reference and the Saggio reference here on
`slide 16 side by side, this tells us, you know, if you look at them,
`you'll see that the housings are very similar. And this tells us that
`the housing can be of any shape. They both have an inlet that's
`attached to a hose. They both have a housing with a plurality of
`tubes. And they both can accommodate balloons at the end of the
`tubes to fill them up with water.
`JUDGE KIM: Counsel, I don't know if they are similar.
`I mean, you got one with vertical tubes and you got one with
`horizontal tubes.
`MR. MALDONADO: Right. So a POSA would know
`that you can place the tubes in any direction that you want. They
`both have tubes and they both have an inlet, and they are similar
`size and shape. What Cooper tells us is that, for example, if you
`wanted more tubes, Saggio has eight tubes and Cooper has 12
`tubes. You can orient them in a different direction to achieve a
`different number of tubes.
`JUDGE KIM: Is Cooper used for balloons?
`MR. MALDONADO: Cooper is a sprinkler. So it's
`attached to a garden hose which could be used to fill balloons.
`It's well known in the art that garden hoses are used to fill
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`balloons. And Saggio is a hose attachment device that is attached
`to a hose with tubes to fill water balloons. So Saggio would be
`the motivation to use a device such as Cooper to fill water
`balloons.
`JUDGE KIM: One of the arguments is that Cooper,
`because it is a sprinkler, it's not quite in the same area.
`MR. MALDONADO: Well, we would argue it is in the
`same area because it is a hose attachment device. This mentions
`a hose attachment devices that could be used to fill balloons with
`water.
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`JUDGE KIM: So that's where you think the field of the
`invention is for a POSITA?
`MR. MALDONADO: Hose attachment devices, yeah,
`for filling multiple containers with water, yes.
`And so if we move now on to slide 17, as I mentioned,
`the three of the four structural limitations are present in Cooper
`and Saggio. And the patent owner has not refuted this. That's the
`housing, the tubes and the containers. And I mentioned earlier
`the missing element is the elastic fastener. And that's number 4
`here on slide 17.
`So what does the patent say about the elastic fastener?
`If we turn to slide number 18, the elastic fastener is basically
`described as having four functional features. One is to clamp the
`container to the tube. The second is to restrict the detachment of
`the container from the tube. The third is to seal the container
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`upon detachment. And then the fourth is the sufficiently limited
`limitation that we'll talk about today. And that's really where the
`crux of the dispute is here.
`And this limitation describes that each elastic fastener is
`sufficiently limited to permit its respective container to detach
`from the tube upon one or more of at least partially filling the
`container with the fluid and shaking the housing. So this is the
`sufficiently limited limitation. It talks about when the container
`is permitted to detach from the tube and describes two scenarios,
`and one or two or both of them would apply to that.
`So the question is, is this elastic fastener disclosed in
`the prior art? And the answer is yes. This is slide number 20, the
`prior art of Donaldson. And Donaldson is a patent that dates back
`to 1991. And Donaldson shows that as of 1991 a person of
`ordinary skill in the art knew that an elastic fastener could be
`used to attach a balloon to a tube and to permit the balloon to
`detach when the balloon is at least partially filled with a fluid.
`Now, if we look at the next slide, number 21, and this
`shows the sequence of figures that show the operation of
`Donaldson. These are Figures 2, 4 and 5 of the Donaldson patent.
`So the device here, as you see in Figure 2, the balloon is attached
`to the outside container or tube. It's cylindrical, so it's like a tube.
`And it's attached with an elastic fastener which is labeled
`number 20.
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`And Figure 4 shows that there's an inner container that
`has pressurized gas so when that's punctured, the balloon, which
`is marked number 10, fills up with fluid. And as the balloon fills
`up with fluid, the balloon expands. There's also a downward
`movement of an inner tube. And then at slide number 5 -- Figure
`number 5, rather, we see that the container detaches from the tube
`and the elastic fastener number 20 seals the container. And these
`are all of the functional features that are described in the patent.
`JUDGE IPPOLITO: Counsel, can I stop you there for a
`second. I have a question about that. I think there is a dispute,
`and you can correct me if I'm wrong, on whether or not the term
`"upon" means by or after. And it seems that it's your position that
`it does not mean by or caused by. Could you respond to that
`argument?
`MR. MALDONADO: Certainly, Your Honor. And I
`believe that in reviewing the patent owner's slides that the patent
`owner agrees that upon means when and does not mean caused
`by. So we have evidence in the record that the patent owner's
`expert as well, Dr. Kudrowitz, has testified that upon means when
`and it describes the time period. It doesn't mean caused by.
`So I can point to, this is slide number -- just give me
`one second -- I'll find that -- 32 in our presentation. And there's
`no causation requirement in the patent. So this is Exhibit 1035,
`the testimony of Dr. Kudrowitz. Exhibit 1035 at page 83, line 23
`to 84, line 1. And in his deposition, Dr. Kudrowitz was asked
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`about what upon means and doesn't upon mean when in this case?
`And Dr. Kudrowitz testified, Upon in this case would mean
`upon -- sealed the containers upon detachment. When they are
`detached, the fastener seals them.
`So even Dr. Kudrowitz has admitted that upon means
`when. Dr. Kamrin admits that as well. And I don't believe there's
`actually -- I don't believe patent owner is taking the position that
`upon means caused by. And that's not the common and ordinary
`reading of upon. Does that answer your question, Your Honor?
`JUDGE IPPOLITO: It does. I have a follow-up for
`that. So if it is construed to mean causes or by, I think it's
`mentioned in your reply brief, do you have a position as to
`whether or not Donaldson teaches that?
`MR. MALDONADO: Yes, Your Honor. So if we
`could look at slide 34, as I mentioned, we don't believe that that's
`the patent owner's position. But even if upon means caused by,
`then Donaldson does expressly disclose the limitation. Both
`experts have testified as to this. Dr. Kamrin's testimony is here
`on slide 34 on the left. Dr. Kamrin testified that the O-ring used
`to hold Donald's balloon on the tube allows the balloon to be
`attached with the force in the form of a pressure differential. And
`that's Dr. Kamrin's testimony.
`Dr. Kudrowitz testified. On the right is his testimony.
`And he says that the fluid is causing the displacement which then
`causes the O-ring to release. So it's the fluid that causes the
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`release. Without the fluid there would be no displacement and
`there would be no release.
`So it's the petitioner's position that even if upon means
`caused by, that that is expressly disclosed in Donaldson.
`JUDGE IPPOLITO: So can you explain further then
`how that works with what I think you just described as how the
`sliding or some mechanical movement allows the Donaldson
`balloon to detach.
`MR. MALDONADO: Sure. If we look again at the
`figures of Donaldson, let me find that slide, that's slide number
`21, so as the balloon number 10 -- as the air enters and fills up the
`balloon, there's pressure that's acting on the balloon. There's an
`upward pressure acting on the balloon in Figure 4 of slide
`number 21. And at the same time, there's -- the fluid travels
`between the two compartments, between the balloon and the
`compartment below the box in the middle of Figure 4. So there's
`also a pressure that's applying downward on to the inner
`container. And as the balloon fills and the inner container moves
`down, then the elastic band releases and seals the container.
`JUDGE CHERRY: Mr. Maldonado, the examiner in
`the related applications has focused a lot on the spring of
`Donaldson. Can you address -- I mean, the examiner felt that the
`spring distinguished Donaldson from what's happening in the
`Malone patents. Can you explain your position on that?
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`MR. MALDONADO: So the spring -- sure, Your
`Honor. So the spring is connected to the number 62, which is the
`firing pin. And the spring biases the inner container up and
`biases the pin down. So when you push the pin to puncture the
`container, you push it up against the spring and then it will recoil
`down in a downward direction. This is in Figure 4 of slide 21.
`And then there's also a biassing force on the inner container that
`biases the inner container in an upward direction with the spring,
`but then that's countered by the force exerted by the fluid as it
`exits the pressurized container.
`And I just want to note also for the record that I don't
`believe in these proceedings that the patent owner has argued that
`the spring is a part of the mechanism that causes the balloon to
`detach.
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`JUDGE CHERRY: Thank you.
`MR. MALDONADO: You're welcome. So now if we
`can move on to slide number 23, please, now, Donaldson also
`teaches the automatically sealed limitation. And this is shown
`here on slide 23, Figure 5. We've already talked about this, but I
`put this up to show that Tinnus' expert, Dr. Kudrowitz, also
`admits that the text and figures in Donaldson show an O-ring that
`automatically seals the balloon upon detachment. And
`Dr. Kudrowitz, when he was asked about this, testified, and his
`testimony is here on slide number 23, Whether or not -- if we
`could use -- that is possible or not, so whether or not it's possible,
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`that is what Donaldson teaches. Donaldson teaches the balloon
`detaching -- I'm sorry, the elastic fastener sealing the balloon
`upon detachment.
`If we could move on now to slide 24 and talk just
`briefly about motivation to combine Cooper, Saggio and
`Donaldson. So a POSA looking at Saggio -- and as I mentioned,
`Saggio has basically all elements of the claimed invention. The
`only thing it's missing is the elastic band. Saggio discloses a
`special balloon, self-sealing balloon, a balloon that would have to
`be specially manufactured. It would be expensive and it would
`be inconvenient to use that balloon. So a POSA that's looking to
`make something like Saggio would be motivated to use an elastic
`fastener. And we rely here on the DyStar case. It would be
`commonsensical to use an elastic fastener because it would be
`simpler, it would be cheaper and it would be commercially
`available. And so that's the motivation to combine these
`references, to use an elastic fastener from Donaldson on a device
`such as Saggio.
`And I would also like to mention that in the prosecution
`history, the examiner, when examining this application, similarly
`found when looking at Saggio that there would be a motivation to
`use an elastic fastener to replace the complex
`specially-manufactured balloon of Saggio. And that's in the
`record at Exhibit 1005 at pages 189 and 90 where the examiner
`was discussing another prior art elastic fastener reference known
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`as Billen and said that it would be simpler to manufacture and use
`than Saggio's more complex and complicated balloons.
`JUDGE CHERRY: Excuse me, Mr. Maldonado, would
`you characterize your motivation to combine as common sense or
`would you say it's more this commercial motivation?
`MR. MALDONADO: I would say it's a commercial
`motivation, Your Honor.
`And now if we can turn next to slide 26, just to
`summarize, Saggio plus Donaldson meets all elements of the '749
`patent. There's a housing with an opening at a first end, a
`plurality of holes. We have a plurality of hollow tubes that
`extend through the holes. We have a plurality of containers, and
`there's a plurality of elastic fasteners which we just discussed that
`those elastic fasteners meet all of the limitations of the claim.
`If we move now on to slide 27, and this will just discuss
`the pressing limitation. As I mentioned earlier, the '282 patent
`differs from the '749 patent in that it has this pressing limitation
`which states that each of the bendable tube assemblies has a
`flexible tube that can be bent in any direction, including could be
`bent close enough so that they touch. And in this slide number 27
`we see Figure 4 of the Cooper patent on the right. And on the left
`is the commercial embodiment of the Cooper patent with the
`noodle-head sprinkler. And I have a physical sample here. If you
`would like to see, I can hand it up to you. But it basically shows
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`Case PGR2016-00030 (Patent 9,242,749 B2)
`Case PGR2016-00031 (Patent 9,315,282 B2)
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`that these tubes are flexible and they can bend so that they are
`touching. Would you like to see that?
`JUDGE KIM: I think we are okay.
`MR. MALDONADO: Importantly, the patent owner
`does not deny that Cooper teaches the pressing limitation.
`So if we now turn to slide number 28, again, this is an
`animation which shows -- which we've created to show the
`combination of Cooper, Saggio and Donaldson. And in this
`animation you see the Cooper sprinkler. You see the tubes that
`are bendable and flexible. Balloons can be placed on the end of
`the tubes and they could be attached with elastic fasteners as
`shown in this animation such as those in Donaldson. The device
`could be hooked up to a garden hose and then the balloons could
`be filled with water and detached. And this is something that --
`this is a predictable result. This is not something that's
`unpredictable. This is exactly what a person of ordinary skill in
`the art would expect to happen when these elements are
`combined.
`Now, if we could turn to slide 30, and Tinnus had made
`some contentions about Donaldson and whether or not it's
`enabling. And the relevant question is whether the prior art
`teaches a POSA to make the claimed invention. And the answer
`is yes.
`
`Petitioner's expert, Dr. Kamrin, testified that a POSA
`would understand how Donaldson operates by looking at
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`Donaldson and its figures. And an O-ring, Donaldson shows an
`O-ring that clamps the balloon onto the inflation device. The
`pressure pushed outward on the balloon membrane, the O-ring is
`released and pulls the balloon off the tube. And that's what a
`POSA would understand as to Donaldson.
`When we questioned Dr. Kudrowitz, which is the patent
`owner's expert, this is slide number 31, Could a POSA design the
`claimed elastic fastener without undue experimentation? And the
`answer is yes.
`And the question to Dr. Kudrowitz is, Would it be
`pretty simple to design, to pick a rubber band that would hold the
`balloon onto a tube until it's at least partially filled with a fluid
`and then allow it to pop off?
`And the witness, Dr. Kudrowitz, said that it would
`involve some experimentation but it would not involve undue
`experimentation. He said it's something that a person of ordinary
`skill in the art could do.
`So that's a very important admission. And I think one
`thing that we want to emphasize here today is that the patent is
`not talking about specially engineered elastic fasteners. There's
`no description in the patent about manufacturing special elastic
`fasteners. The inventor, in his deposition, testified that when he
`created this invention in February or January of 2014, he bought
`O-rings off the shelf and he played around with them. He had
`taken some balloons and he studied how to put O-rings on
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`balloons. They are off-the-shelf items. They are not specially
`manufactured. There's no indication or direction in the patent
`about how to make special elastic fasteners. And the reason for
`that is that a POSA reading the patent would know how to choose
`an elastic fastener that would work the way that it's described in
`the patent.
`And the inventor testimony that I referred to just now is
`found in the record of the '282 PGR at Exhibit 1048, page 29,
`lines 6 through 10.
`JUDGE CHERRY: But we are not to look at how the
`inventor developed the invention, right?
`MR. MALDONADO: Well, that's correct. We looked
`at the disclosure in the patent, and the patent does not disclose
`any special fasteners.
`JUDGE CHERRY: But I guess in terms of Saggio's
`teaching, Saggio doesn't -- does Saggio talk about how the
`balloons are detached or does it just talk about them being filled
`or sealed?
`MR. MALDONADO: Saggio does not describe what
`causes the detachment of the balloons. It says the balloons are
`placed on the ends of the tube, they are filled with water and they
`detach and seal. So a POSA reading Saggio or understanding
`Saggio would understand that the balloons would detach based
`upon their own weight.
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`JUDGE CHERRY: Do you understand the claims to
`require detachment based on weight or just the capability to do
`so?
`
`MR. MALDONADO: So again, we understand that the
`claims recite permitting detachment. So it's our position that the
`claims allow detachment. The elastic fastener will allow the
`detachment to happen. So capable. So the fastener is capable of
`detaching under those circumstances.
`JUDGE CHERRY: So you don't think that it has to be
`designed to do that?
`MR. MALDONADO: It has to be designed so that it's
`capable of doing that.
`JUDGE CHERRY: But not designed especially so that
`it will detach, but it has to be designed such that it could be
`capable?
`MR. MALDONADO: Yeah. I'm not entirely sure I
`understand the distinction. If it's capable of detaching, then I
`would expect that when you use it that it will detach under those
`circumstances.
`We already talked about causation and whether
`causation is required. We believe it's not required and that upon
`does not mean caused by.
`Slide number 35, if we can just talk about -- briefly
`about inherency, again, we do believe that the functional features
`of the elastic fastener are expressly disclosed in Donaldson. But
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`even if the Board were to disagree, we put in evidence into the
`record from Dr. Kamrin. And his testimony is uncontradicted
`that the O-ring would necessarily detach upon shaking because
`the O-ring in the balloon detach due to pressurized gas before the
`balloon breaks or tears.
`And you know, getting back to the purpose of
`Donaldson, the purpose of Donaldson is to fill up balloons, for
`children to use it, for the balloons to be easy to fill up and easy to
`detach. So we know that the balloons are not attached so
`difficultly or so tightly that they are difficult to remove. The
`point of Donaldson is for it to be easy for children to use. So we
`know in Donaldson that the strength -- and this is explained by
`Dr. Kamrin, that the strength of the balloon, the elastic balloon is
`greater than the connecting force holding the balloon onto the
`tube, which means that the tube necessarily will detach before it
`breaks or tears because the strength of the balloon is greater than
`the connecting force holding the balloon onto the tube.
`JUDGE KIM: Counsel, what is your view on inherency
`in an obviousness case?
`MR. MALDONADO: What is my view on inherency
`in obviousness cases? I believe that inherency is available in
`obviousness cases as well as in anticipation cases.
`JUDGE KIM: Hasn't there been a line of cases recently
`from the Federal Circuit that frowns on that, that obviousness,
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`essentially, you have leeway, so why rely on inherency? Why not
`just rely on leeway? Mostly in the chemical arts, though.
`MR. MALDONADO: I'm aware that there are cases
`that say you have to look at inherency maybe with a finer eye in
`obviousness cases. So I'm aware of that, and I believe that our
`testimony satisfies that. And in any event, I do believe that the
`limitations that we talked about, as I mentioned, are expressly
`disclosed. So inherency, although we believe that we have the
`evidence and testimony, we don't believe it's necessary for this
`court to rule that these patents are obvious.
`JUDGE CHERRY: And also, there's no limitation on
`the shaking, right? The shaking doesn't have to be by a child? It
`could have been by Andre The Giant or --
`MR. MALDONADO: Well, I think it would be a
`human being, but it does not have to be a child, that is correct.
`JUDGE IPPOLITO: I have a follow-up regarding slide
`35. So I would like you to explain a little bit more about how you
`get to the conc
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