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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`BESTWAY (USA), INC.,
`Petitioner,
`
`v.
`
`INTEX MARKETING LTD.,
`Patent Owner.
`____________
`
`Case PGR2017-00003
`Patent 9,254,240 B2
`____________
`
`Record of Oral Hearing
`Held: February 5, 2018
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`
`
`
`
`Before KEN B. BARRETT, FRANCES L. IPPOLITO, and KEVIN W.
`CHERRY, Administrative Patent Judges.
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`Case PGR2017-00003
`Patent 9,254,240 B2
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`MICHAEL CHU, ESQ.
`BRIAN A. JONES, ESQ.
`McDermott, Will & Emery
`227 West Monroe Street
`Chicago, Illinois 60606-5096
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`TREVOR CARTER, ESQ.
`ANDREW McCOY, ESQ.
`REID E. DODGE, ESQ.
`Faegre Baker Daniels LLP
`300 North Meridian Street, Suite 2700
`Indianapolis, Indiana 46204
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`
`
`
`The above-entitled matter came on for hearing on Monday, February
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`5, 2018, commencing at 1:00 p.m., at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia.
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`Case PGR2017-00003
`Patent 9,254,240 B2
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`P R O C E E D I N G S
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`JUDGE BARRETT: Good afternoon, everyone. We are on the
`record in PGR2017-00003, Bestway, USA v. INTEX Marketing. My name
`is Judge Barrett at the bench, next to me is Judge Cherry, and appearing by
`video is Judge Ippolito.
`We will start with the parties' appearances. Who do we have from
`Petitioner?
`MR. JONES: Good morning, Your Honor. Brian Jones on behalf
`of Bestway USA, Inc., and with me is Michael Chu.
`JUDGE BARRETT: Good morning.
`MR. CHU: Good morning.
`JUDGE BARRETT: From Patent Owner?
`MR. CARTER: Your Honor, Trevor Carter from Feagre Baker
`Daniels from INTEX, and with me is Drew McCoy on my right and Reid
`Dodge on my left.
`JUDGE IPPOLITO: Counsel, can I have you speak at the podium
`in the future, I can't hear otherwise. So I just want to make sure you're both
`aware of that.
`JUDGE BARRETT: Okay. We set forth the procedure for today's
`hearing in the trial order, or in the hearing order. Each party is going to have
`30 minutes total to argue. Petitioner shall go first and can reserve time for
`rebuttal if you so wish.
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`For clarity of the transcript and, more importantly, to assist Judge
`Ippolito in following along, please identify the slides you're showing on the
`screen, either by slide number or exhibit and page number.
`I'll give each counsel a warning when you're reaching the end of
`your argument time. Are there any questions?
`(No response.)
`JUDGE BARRETT: Petitioner, you may begin when you're ready.
`MR. JONES: Good morning, Your Honors, Brian Jones on behalf
`of Petitioner Bestway.
`The instituted claims of the '240 patent are invalid as obvious over
`the prior art. The '240 patent claims an inflatable pool with internal
`components made from mesh-reinforced PVC. The prior art taught an
`inflatable pool and the prior art taught mesh-reinforced PVC. It would have
`been obvious to combine these teachings to provide increased strength so
`that larger and deeper pools could be constructed. The instituted claims are
`unpatentable and Petitioner respectfully requests that they be cancelled.
`Moving to slide 2, to review, the Board instituted review of claims
`1 through 7 and 17 of the '240 patent based on obviousness over two prior
`art references, Peterson and Fireman. I'll start with an overview of the '240
`patent to review, and then we'll discuss the prior art and we'll discuss the two
`disputed issues that remain in the case.
`Moving to slide 4, the '240 patent is directed to an inflatable
`structure. In particular, an inflatable pool, depicted here in figure 1 of the
`'240 patent. The '240 patent, figure 1, shows an exemplary embodiment of
`the claimed invention. It's a basic inflatable structure with two walls that
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`form an inflatable chamber and the focus of the dispute is around what the
`patent calls the internal tensioning structures 120. These are the internal
`tensioning elements that help maintain the desired shape of the pool when
`it's inflated.
`Moving to slide 5, a particular type of material is used to construct
`the internal tensioning structures. The '240 patent shows an example of this
`type of material in figures 5 and 6. It's a multi-layered material with a
`mesh-reinforcing layer, and it's attached to a solid layer, as depicted in
`figures 5 and 6. The '240 patent calls the mesh layer the porous layer, and
`the solid layer an attachment sheet. Figure 4 shows one of the internal
`tensioning structures constructed from this mesh-reinforced material.
`So on slide 6 I have depicted claim 1, and claim 1 claims an
`inflatable product, and the first few elements relate to that basic inflatable
`structure that I have highlighted here in green. The remaining claim
`elements, beginning with the porous sheet that I've highlighted in blue, relate
`to the fiber reinforced material, or the mesh reinforced laminate that's
`discussed later. And just to be clear about the claim language, there are no
`claim construction disputes as to the instituted claims.
`So with that in mind, we can move to slide 8 and discuss the prior
`art references. The first reference is Peterson. Peterson is directed to an
`inflatable pool with a basic structure depicted in figure 2. As with the '240
`patent, Peterson uses internal tensioning structures to maintain the shape of
`the inflatable pool. Peterson calls these structures vertical interior
`supporting webs, and they're depicted here with reference number 16 in
`figure 4. That's the cross-sectional view that Peterson discloses.
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`The second reference is the reference called Fireman. Fireman is
`also directed to an inflatable pool, one that's called a self-rising pool, and
`Petitioner relies on Fireman's disclosure of a multi-layered, mesh-reinforced
`PVC. Fireman discloses using a material with a three-layer construction,
`depicted here in figure 5 of Fireman, for the walls of the self-rising pool.
`The material is formed from a layer of mesh interposed between two layers
`of PVC.
`So returning to the claim language of claim 1, this is how the prior
`art stacks up. Peterson discloses the basic inflatable structure for the pool,
`and Fireman discloses the mesh-reinforced PVC that's used for pools.
`So let's get to the two disputed issues. Slide 12 shows the disputed
`limitation from Patent Owner, and it relates to the claimed outer perimeter of
`the tensioning structures. Patent Owner argues that the prior art does not
`disclose a porous sheet that substantially overlaps the outer perimeter of the
`attachment sheet. Patent Owner refers to this limitation as the substantial
`overlap limitation.
`So in slide 13, those are the two disputes, the substantial overlap
`limitation of claim 1, and the second dispute is obviousness, whether
`Petitioner provided a sufficient reason to combine the prior art.
`As we'll discuss, the petition explained how the outer perimeters
`substantially overlap, and the petition provided sufficient reasons to combine
`the prior art.
`Those are the only two disputes, and they all relate to claim 1.
`Patent Owner does not challenge the substantial evidence in the petition with
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`respect to the remaining instituted claims 2 through 7 and 17, so the only
`issue is with respect to claim 1.
`So discussing first the substantial overlap limitation, slide 16
`shows where this limitation is in the prior art. The petition explained how
`the combination of prior art taught outer perimeters that substantially
`overlap. Relying on Fireman's disclosure of mesh-reinforced material,
`Petitioner explained that when pool components are cut from a multi-layer
`material like Fireman's, the outer perimeters of all the layers will
`substantially overlap.
`Now, the experts agree that Fireman discloses a multi-ply mesh
`material, so each of the elements annotated here on figure 5A of Fireman are
`not in dispute: The attachment sheet, the porous sheet, the frame members
`and the enclosed pores are all required by the claims, so those are not
`disputed. That only leaves the outer perimeters that must substantially
`overlap.
`And Petitioner does not rely on Fireman's disclosure alone.
`Petitioner explained that when using Fireman's material in a known way to
`make pool components, like the walls of Fireman or the internal tensioning
`structure of Peterson, it is cut to its desired shape. The result is that all of the
`layers of the material have outer perimeters that are the same, and therefore
`substantially overlap.
`Now, the experts agree on this point: When a tensioning structure
`is cut out of mesh-reinforced PVC, it will satisfy the substantial overlap
`limitation.
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`If I fast forward to slide 22 for a second, you'll see the quote from
`Mr. Kuchel, or Mr. Kuchel, that's Patent Owner's expert, "you agree that
`such a tensioning structure cut out of bulk material with a uniform layer
`throughout, that would satisfy the limitation that requires an outer perimeter
`that substantially overlaps the outer perimeter of the at least one attachment
`sheet, correct?"
`"I would agree with that," he says.
`So if we return back to slide 17, Patent Owner tries to raise doubt
`as to Fireman's disclosure, suggesting that Fireman does not necessarily
`disclose bulk uniform material, so it's not clear what happens at the outer
`perimeters. But Fireman is not ambiguous in this regard. Figure 5 shows
`exactly how the structure looks throughout the material. There's nothing in
`Fireman that discloses other variations of this structure depicted in figure 5,
`and Patent Owner misreads Fireman. Patent Owner argues that figure 5
`teaches a structure with differently sized layers because figure 5A literally
`depicts a shorter layer where top layer 40 has a different length than middle
`layer 42, and another different length than bottom layer 40, but this is a
`typical engineering drawing where each layer is cut away from the layer
`below. Without cutting away each layer, the layer below would not be
`visible, and this is why the layers have that stair-step look. They've been cut
`away to reveal what's below. It's not meant to literally depict the extent of
`each layer.
`To one of skill in the art, one would have understood that the
`layers extend to the edges of the sheet. This cutaway view simply shows the
`layers underneath.
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`Turning to slide 18, Fireman's material is a known material, and
`Petitioner's expert, Dr. Sadegh, describes how it is used in a known way.
`Fireman explains that any process known in the art for forming flexible
`polymer sheets can be used. And the process that Dr. Sadegh described,
`cutting a structure from a larger sheet of material, is one of those known
`ways of manufacturing and using this type of material.
`There's no dispute on this point. And that's exactly what the Board
`instituted when it instituted review and that's exactly what Petitioner and its
`expert described. "We understand Dr. Sadegh to testify as to how
`fiber-reinforced material used in the inflatable products industry is
`manufactured, that one of ordinary skill in the art would expect the mesh
`layer to extend to the edges of the of the solid PVC sheets, that the pool
`components are cut from the formed single sheet, and, thus, would appear as
`shown in Fireman's figure 5A."
`In slide 20, this is the evidence relied on to support that. This is
`Dr. Sadegh's testimony discussing that for this type of material, three layers
`are formed into sheets, and the mesh extends to the edges of the sheet.
`Eventually, the material is cut to the proper dimensions, and as a result, the
`outer perimeters overlap.
`This is no different from tailoring a shirt or using any type of bulk
`material, you take a bolt of fabric, using the shirt's pattern, you cut it to the
`proper dimensions. That's exactly what Dr. Sadegh was describing.
`On slide 21, this shows that Dr. Sadegh's interpretation of Fireman
`was reasonable because the experts agree that this type of material was well
`known. Mr. Kuchel testified that bulk, uniform, mesh-reinforced material
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`was well known at the time of the invention, so it's reasonable for
`Dr. Sadegh to interpret it that way.
`We discussed slide 22 earlier, the experts agree that using bulk,
`uniform, mesh-reinforced material would disclose the substantial overlap of
`the outer perimeters of the material.
`In short, Petitioner's application of the prior art to the claims is
`consistent with what was well known at the time, and how one of ordinary
`skill in the art would have understood and used the prior art; therefore, the
`combinations of Peterson and Fireman discloses all of the limitations of
`claim 1.
`So if there's any questions about the substantial overlap limitation,
`I would be happy to take them now before I move on to obviousness.
`JUDGE BARRETT: Yeah, so if you could just reiterate so I'm
`totally clear on the matter. I imagine Patent Owner will say Petitioner
`pointed to Fireman's figure as disclosing the porous sheet overlapping the
`edge, but that's just a schematic, right? It's just a representation.
`So how do you get from that figure to one of ordinary skill in the
`art recognizing Fireman discloses the overlap at the edge?
`MR. JONES: Well, I think Fireman discloses how the material
`looks at any point along its -- its entire piece of material. So getting from
`the material used to its actual use is what is relied upon by Petitioner's expert
`to say when using this type of material in the industry to build a pool wall, or
`an internal tensioning structure, you would, of course, have this same
`structure throughout the material.
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`The point of Fireman is that the mesh-reinforcing layer provides
`the strengthening element. That's the key to the structure. And so it could,
`of course, extend to the edges of that material. And so that's what we rely on
`for that.
`JUDGE BARRETT: Okay.
`MR. JONES: So then turning to the obviousness issue, on slide
`24, Petitioner has provided sufficient reasons to combine Peterson and
`Fireman. As one motivation, Petitioner identified explicit disclosure in
`Fireman that recognized the well-known properties of mesh-reinforced
`laminates increased strength. The strength of the mesh increases durability
`and allows larger swimming pools to be constructed.
`Petitioner also relied on motivation in Peterson. In slide 25, this is
`what Peterson talks about, the same type of motivation, the increased
`strength from the internal tensioning structures allows water of greater
`depths to be supported within the pool. Peterson also provides an explicit
`suggestion to use something other than the PVC disclosed in Peterson.
`Peterson says that its connecting webs can be fabricated from PVC or
`similar materials. And there's no dispute that PVC is similar to
`mesh-reinforced PVC, except stronger.
`On slide 26, this shows that the experts agree that strength was a
`known problem and that mesh-reinforced PVC provided a known solution.
`Mr. Kuchel, Patent Owner's expert, annotated the forces that the internal
`webs of Peterson's internal tensioning structures would have been known to
`experience. He annotated those in figure 4 with the red arrows.
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`And he also agreed that materials with higher tensile strength, such
`as mesh-reinforced PVC, would have been known to withstand those forces.
`And higher tensile strength, on slide 27, is exactly what was known in the
`art, and taught by Fireman. Patent Owner's expert agrees, "higher tensile
`strength of mesh-reinforced PVC over plain PVC was a well-known
`property, correct?”
`"Yes, it was, as well as other features of laminate structure; but
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`yes."
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`And that's exactly what Peterson -- or that's exactly what Fireman
`discloses when it explains that using the mesh layer enhances the tensile
`strength.
`On slide 28, Patent Owner argues that Petitioner's combination is
`against the conventional wisdom, but this is false, because it ignores the
`conventional wisdom that it included in the petition, or that it included in its
`Patent Owner response. It argues that no prior art reference describes using
`mesh-reinforced PVC for an internal tensioning structure, but that ignores
`what it listed in its Patent Owner response under Known Prior Art
`Tensioning Structures, and it listed a Patent Owner reference here to Wang
`'755. That discloses a prior art reference that describes increasing the
`strength of the material when used as an internal tensioning structure. So
`that argument about the conventional wisdom is false. The argument is -- or
`the truth is the conventional wisdom teaches otherwise.
`This is more detail around the Wang '755 reference. Exhibit -- or
`figure 2 of Wang shows that internal tensioning structure 1 made of
`three-layer material, with an outer layer 11 of PVC, an inner layer 12 of
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`mesh, and another outer layer 11 of PVC. Wang '755 calls his internal
`tensioning structure straps, and the two outer layers are made of PVC film
`while the inner layer is made of a chemical fiber, cotton mesh in between.
`And this enhanced inflatable mattress in the present utility model is durable,
`economic and sturdy.
`So it's not true that the conventional wisdom taught otherwise.
`JUDGE BARRETT: Now, I take it you're offering this in rebuttal
`to an argument Patent Owner made; did Petitioner rely on Wang as
`providing a reason to combine in the petition?
`MR. JONES: We did, Your Honor, we cited Wang in section -- on
`pages 31 and 32 of the petition to discuss what was known in the prior art at
`the time that internal tensioning structures or that tensioning structures could
`be made out of mesh-reinforced PVC. So this is the background knowledge
`of one of skill in the art. It can't be ignored. It doesn't serve as a primary
`reference, or one of the references relied on, but this informs the person of
`ordinary skill in the art.
`JUDGE CHERRY: And I just wanted to confirm, on slide 28, that
`table that you have there, that's from the Patent Owner response?
`MR. JONES: That's correct.
`JUDGE CHERRY: So that's their characterization of Wang?
`MR. JONES: That's correct.
`JUDGE CHERRY: Thank you.
`MR. JONES: So up until now -- on slide 30 -- up until now, we
`have been discussing the motivation to use stronger materials to form bigger
`and deeper pools, that's a problem and solution that we identified in the
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`petition, but that's not the only rationale that Petitioner provided. Petitioner
`also explained that the combination was also obvious because the
`combination is familiar elements using known materials to achieve
`predictable results, that reinforcing PVC with mesh was a known technique
`for improving strength and it was a simple substitution of mesh-reinforced
`PVC for plain PVC with the predictable result of providing increased
`strength. Patent Owner does not rebut any of these additional rationales,
`and, indeed, their expert agrees.
`As to secondary considerations of nonobviousness, Patent Owner
`does not credibly dispute any facts that relate to those issues. Patent
`Owner's expert concedes that he's not aware of any facts relating to those
`factors.
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`So the bottom line is, on slide 32, that the '240 patent claims an
`obvious combination, a person of ordinary skill in the art would have known
`that mesh-reinforced PVC provided increased strength for structures that are
`placed under tension. This technique was used to improve the strength of
`inflatable pools for decades, and claim 1 is nothing more than an obvious
`combination of familiar elements that one of ordinary skill in the art would
`have seen right away.
`For the reasons we stated in the petition, the instituted claims are
`invalid as obvious, and unless there are questions, I will reserve the
`remainder of my time for rebuttal.
`JUDGE CHERRY: No, I don't have questions.
`MR. JONES: Thank you, Your Honors.
`JUDGE BARRETT: Okay, you have about 11 minutes left.
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`MR. JONES: Thank you.
`MR. CARTER: Good afternoon, Trevor Carter for INTEX.
`So, starting on slide 6, claim 1 of the '240 patent claims a specific
`internal tensioning structure for use in an inflatable product. So it's
`important to note, this is not just any mesh PVC combination product, this is
`a specific material that has the limitations set forth on slide 6, and the
`dispute has focused on the substantial overlap limitation that has been
`discussed and I will discuss here.
`This is a crowded art. Over 100 references were cited on the face
`of the '240 patent, and none of these references teach the specific internal
`tensioning structure that is claimed in this patent.
`So as Bestway's counsel pointed out, there are two key issues here.
`One, has the Petitioner provided sufficient evidence of a motivation or
`reason to modify Peterson's traditional PVC tensioning structure; and two,
`has Petitioner provided sufficient evidence that Fireman's wall material
`teaches the precise claim limitations of the internal tensioning structure.
`So first, on the lack of any reason to modify Peterson's tensioning
`structures, the test is not can you or could a person of ordinary skill in the art
`have taken this material and used it in -- as an internal tensioning structure,
`in Peterson, the test is would a person of ordinary skill in the art have done
`that, and that is a critical component of any obviousness analysis.
`There's no dispute here, looking at slide 13, that Peterson is
`missing key limitations related to the porous sheet of claim 1. To overcome
`those deficiencies, Petitioner relies on a composite mesh material, not used
`as an internal structure, but rather as an exterior wall of a self-rising pool.
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`And we heard here today, you see it in their briefing, we'll talk about it, an
`implication, but what I heard Bestway's counsel say, they don't rely on
`Fireman alone for the missing piece in Peterson. They admitted again today
`that the cutaway is not meant to disclose the extent of the layers. Figure 5
`doesn't provide that.
`They aren't relying in -- in Fireman, on Fireman alone for the
`overlap --
`JUDGE CHERRY: You agree that you can buy mesh-reinforced
`PVC, right? You don't dispute that?
`MR. CARTER: That you can buy mesh-reinforced PVC, yes.
`Mesh-reinforced PVC is a material that has been known, correct.
`JUDGE CHERRY: So your contention is that you invented
`mesh -- you're not contending that you invented mesh-reinforced PVC,
`right?
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`MR. CARTER: That's correct, not -- this isn't just simple mesh
`with PVC, this is using mesh PVC where you have substantial overlap as an
`internal tensioning structure. That's what is --
`JUDGE CHERRY: So you use "substantial overlap" just to mean
`it goes to the edge of the tensioning structure, right?
`MR. CARTER: That is correct.
`JUDGE CHERRY: So you just mean that the whole piece of the
`tensioning structure is made from mesh PVC?
`MR. CARTER: It means that they are the same size layers, the
`PVC and the mesh.
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`JUDGE CHERRY: But you agree that your expert admitted that
`you can buy this material -- you can buy mesh-reinforced PVC and you
`could cut out a piece and use it as a tensioning structure, it would meet the
`limitation, right?
`MR. CARTER: If -- if you bought the bulk PVC material with the
`PVC and the mesh, and you cut it out in a way to match what is in the '240
`patent, you would have what is in the '240 patent.
`JUDGE CHERRY: But to make tensioning structures that are
`disclosed in Peterson.
`MR. CARTER: But in Peterson it's PVC only.
`JUDGE CHERRY: So -- I know that, but I'm just saying if you
`made that -- if you cut out a piece just like Peterson shows in its structure,
`that would meet the limitation?
`MR. CARTER: If you had a piece of the bulk, uniform mesh on
`PVC going to the extent of the sides --
`JUDGE CHERRY: Which is known. Which is known.
`MR. CARTER: That material is known.
`JUDGE CHERRY: So going to the edge -- going to the edge -- so
`you can buy material that goes all the way to the edge, right? That's known?
`MR. CARTER: Well, but you wouldn't -- there's no disclosure of
`anything of that going all the way to the edge of an internal tensioning
`structure. And --
`JUDGE CHERRY: But this is like elementary mechanical
`engineering, right, that knowing that -- that the reinforcement is only good to
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`the -- you want the reinforcement to go to the edge of whatever structure
`you're using. What's the level of skill in the art?
`MR. CARTER: The level of skill is a bachelor's in mechanical
`engineering, and our level of skill is plus two years of experience in the
`inflatable product area, and Bestway's skill is two years of experience in
`product design, which is another key issue in the case that their expert is not
`an expert in the inflatable product area, just the composite area. He's a
`materials expert focusing on composites and not inflatable products.
`JUDGE CHERRY: So a person of -- a materials expert wouldn't
`be knowledgeable about what materials to use for different applications?
`MR. CARTER: Possibly, but not --
`JUDGE CHERRY: Did you raise this in the petition?
`MR. CARTER: I'm sorry?
`JUDGE CHERRY: Is this raised in your Patent Owner response?
`MR. CARTER: Yes, of -- yes, criticizing Dr. Sadegh for being
`focused on composites with a very narrow focus of looking --
`JUDGE CHERRY: But isn't this composite -- you're saying that
`you're using a composite -- your invention is using this composite in these
`tensioning structures.
`MR. CARTER: Yes, that's what the invention is, using the
`composite, the PVC mesh material as the internal tensioning structure.
`JUDGE CHERRY: So why wouldn't a person that's an expert in
`composites be qualified to opine about this?
`MR. CARTER: It's not a -- you know, not an expert in the
`inflatable product area.
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`JUDGE BARRETT: Well, let me clarify, then, because my
`understanding is we don't so much care about what the experts are, but it's
`the person of ordinary skill in the art. Are you saying Petitioner's expert is
`not qualified to testify about that person's understanding of the art?
`MR. CARTER: We -- so we didn't raise a Daubert type issue to
`exclude, but we think it goes to his credibility of being somebody who's
`focused on composites, and the testimony that we have on one of our slides
`that he saw that his task here was to look at the '240 patent internal
`tensioning structures and determine if you could do that in a composite
`material, and he did that task is his testimony. So when you have somebody
`who was focused on those kind of --
`JUDGE CHERRY: So shouldn't you have looked at the patent at
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`all?
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`at all?
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`MR. CARTER: I'm sorry?
`JUDGE CHERRY: The expert shouldn't have looked at the patent
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`MR. CARTER: No, he looked at the patent but he limited his
`analysis and you can see in his analysis he just focused right in on when I'm
`going to increase the strength of something, I just look at the tensioning
`structures, he didn't look at any other alternatives. So this is on slide 34. He
`said his task was looking at the '240 patent to see if the tensioning structure
`that they are using, the composite material has been disclosed and taught in
`the prior art, and I did that task. And he has other statements similar to that.
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`JUDGE CHERRY: So your contention is that he should have
`looked at every possible way of increasing the struc -- increasing the
`strength?
`MR. CARTER: He should have gone through a normal design
`analysis, which in his deposition he talked about knowing what that is. So
`let me show --
`JUDGE CHERRY: Well, does the -- what case establishes that an
`obviousness analysis must be done along the exact lines of a normal design
`analysis?
`MR. CARTER: I think KSR. You look at the design as a whole.
`You look at this inflatable product that is an inflatable product that has the
`two walls in the internal tensioning structure.
`JUDGE CHERRY: But doesn't KSR tell us that analysis has to be
`flexible, and met for the case?
`MR. CARTER: Yes.
`JUDGE CHERRY: Well, if all this was known, why isn't this
`under KSR's known elements used in a known way to achieve a predictable
`result?
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`MR. CARTER: So I think the -- with that analysis, and that is
`right out of KSR, you still have to show that you have the disclosure of the
`composite material meeting the substantial overlap, and you still have to
`show a reason to combine even under that test.
`JUDGE CHERRY: Well, wouldn't that be a reason, they're known
`materials used in a known way to achieve a predictable result?
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`MR. CARTER: That by itself is a could-have analysis. You have
`to have more than that.
`JUDGE BARRETT: I would like to take you back to where I
`think we -- you were going. With Fireman, is it your position that Fireman
`does not disclose the substantial overlap, or that it just doesn't disclose a
`substantial overlap in a tensioning structure?
`MR. CARTER: Both. Both. So I don't think that there is an
`argument here, as I have read, and can you take me to around slide 60 and
`then I'll get there.
`JUDGE CHERRY: But you would agree Fireman discloses using
`this mesh-reinforced material granted this dispute about how far it goes, but
`you agree that they use the mesh-reinforced material in the tensioning
`structures?
`MR. CARTER: So Fireman uses it in the external wall.
`JUDGE CHERRY: Okay. So they don't use it in the tensioning
`structure, you're putting that material into the tensioning structures of
`Peterson?
`MR. CARTER: Right. That's one of the critical problems here is
`these are two different pools. The pool of Peterson is an inflatable pool,
`where you have this ai
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