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`RECORD OF ORAL HEARING
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______
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`C&D ZODIAC INC.,
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`Petitioner,
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`v.
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`B/E AEROSPACE INC.,
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`Patent Owner.
`____________
`
`Case IPR 2017-01275 (Patent 9,073,641 B2)
`Case IPR 2017-01276 (Patent 9,440,742 B2)
`Case PGR 2017-00019 (Patent D764,031 S)
`____________
`
`Record of Oral Hearing
`Held: August 3, 2018
`____________
`
`
`
`Before JENIFER S. BISK, SCOTT A. DANIELS, and RICHARD H.
`MARSCHALL, Administrative Patent Judges.
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`
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`JOHN C. ALEMANNI, ESQUIRE
`Kilpatrick Townsend & Stockton
`1001 West Fourth Street
`Winston-Salem, NC 27101
`
`Case IPR 2017-01275 (Patent 9,073,641 B2)
`Case IPR 2017-01276 (Patent 9,440,742 B2)
`Case PGR 2017-00019 (Patent D764,031 S)
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONR:
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` BEHALF OF THE PATENT OWNER:
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`MICHAEL FLEMING, ESQUIRE
`Irell & Manella, LLP
`1800 Avenue of the Stars
`Suite 900
`Los Angeles, CA 90067
`
`
`
`
`The above-entitled matter came on for hearing on Friday, August 3,
`2018, commencing at 1:01 p.m., at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia, before Julie Souza, Notary Public.
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`Case IPR 2017-01275 (Patent 9,073,641 B2)
`Case IPR 2017-01276 (Patent 9,440,742 B2)
`Case PGR 2017-00019 (Patent D764,031 S)
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`P R O C E E D I N G S
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`JUDGE BISK: Okay. Good afternoon. I am Judge Bisk. I have
`Judge Marschall with me and as you can see Judge Daniels is joining us by
`video today. Can I get the names of the people here for Petitioner?
`MR. ALEMANNI: Yes, thank you, Your Honor. My name is John
`Alemanni. I'm here on behalf of Petitioner C&B Zodiak. With me are Mr.
`David Reed, Mr. Michael Morlock, Mr. Andrew Rinehart, who will be
`arguing the three of them, Ms. Arneita Grey will be helping us on
`demonstratives, and here on behalf of C&B Zodiak is in-house counsel Mr.
`John Murray.
`JUDGE BISK: Okay. And for Patent Owner.
`MR. FLEMING: Yes, Your Honor. I'm Mike Fleming from Irell &
`Manella. I'm representing B/E Aerospace, the Patent Owner, and I have
`with me Talin Gordnia as well.
`JUDGE BISK: Okay. Thank you.
`MR. FLEMING: Your Honor, could we present hard copies of the --
`JUDGE BISK: Oh, sure.
`MS. GORDNIA: May I approach?
`JUDGE BISK: Yes. Okay, Judge Daniels was asking me to remind
`everyone to speak into the microphone because otherwise he can't hear
`anything that's going on. Each side today has 90 minutes to argue the three
`cases. The three cases that we're here to see are PGR2017-00019 and IPRs
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`2017-01275 and 01276. So Petitioner, whenever you're ready just let me
`know how much time you want me to reserve for rebuttal.
`MR. ALEMANNI: Thank you, Your Honor. I believe our opening
`will be between 45 and 50 minutes, and I'd like to reserve whatever time we
`have left for rebuttal, if I may.
`JUDGE BISK: Okay. I'll put 50 minutes on the timer.
`MR. ALEMANNI: Perfect. Thank you.
`JUDGE BISK: Okay.
`MR. ALEMANNI: Great. Thank you. Again, good afternoon, Your
`Honors. My name is John Alemanni here on behalf of Petitioner, C&D
`Zodiak. I'll try to speak slowly for the court reporter.
`Let's go to slide 2 please, Ms. Grey. So slide 2 is a brief overview of
`what we plan to cover. I will present evidence that a recess was well known
`in the art, applying recess to a forward wall was well known in the art, and
`that it's obvious to apply a recess to a lavatory which is what the Board held
`in the prior case in the parent patent and the Federal Circuit affirmed, and
`further that a second recess is no less obvious.
`Then I'll turn it over to my colleague, Mr. Morlock, who will
`demonstrate that the secondary considerations case that B/E has presented is
`like a house of cards precariously perched on a couple of pieces of evidence
`that don't say what B/E purports they say.
`Then I'll turn to my colleague David Reed. He'll demonstrate that the
`design patent, the 031 patent, is not entitled to the priority date of the 838
`patent and therefore it is eligible for PGR review. Then he'll demonstrate
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`that B/E has admitted that it sold the design that's embodied in the 031
`patent and is therefore invalid.
`And finally I'll turn it over to my colleague, Andy Rinehart, who will
`present and demonstrate that the 031 patent is indefinite, and for the record
`Your Honors I'll just note Mr. Rinehart has helped us in numerous
`proceedings before the Board and in District Court. This will be his first
`opportunity to get up and argue.
`JUDGE BISK: Okay. He has been admitted pro hac?
`MR. ALEMANNI: He is admitted and he is fully prepared. I just
`appreciate that he's making his first argument.
`JUDGE BISK: Okay.
`MR. ALEMANNI: Wanted to make note of that.
`MR. ALEMANNI: So with that let's go to slide 3, please. These are
`the instituted grounds. There's essentially one ground in the two IPRs that is
`admitted prior art and that's the Betts patent which is a patent from
`McDonnel Douglas back in the '70s. The two instituted grounds for the IPR
`are that the challenged claims are obvious in view of Betts, the admitted
`prior art in combination with Betts, and then for the design patent as I
`mentioned there is a prior sale which invalidates the patent because it is not
`entitled to its priority date and is also indefinite.
`So with that let's go to B/E's slide 10. So I was just going to bring up
`the Patent Owner's slide 10 briefly. The only reason I bring this is up is to
`set some context. I want to just talk early about what's at issue in this case,
`and basically it's a first recess and a second recess and we're going to talk
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`about a few terms and I know sometimes when we go through and might get
`confused about what we're talking about so I want to make clear that the
`recesses we're talking about are on the forward wall of the lavatory, so
`they're on the wall of the lavatory that's towards the front of the aircraft.
`There are points in our discussion and our conversation where we're going to
`talk about the side wall of the lavatory and the side wall is the wall towards
`the side of the aircraft where the windows are. So if you're in an aircraft and
`you put your arm on the wall, that's the side wall or on the arm rest next to
`the wall that's the side wall. The wall that we're talking about with the
`recesses is the forward wall, so I just want to make that clear so there's no
`confusion. A lot of times we talk about the curve wall so I want to be a little
`more clear in the way I explain this, and so what's at issue is going to be that
`second recess. We're going to talk a lot about that today.
`Let's go back to our slide 4, please. So I'm going to talk a little bit
`about the challenged patents. I won't belabor it. There's two challenged
`patents here, the 641 and the 742. They claim priority to a patent, the 838
`patent, which was the subject of an earlier IPR. Most of the claims of that
`parent patent were invalidated in that IPR. That decision was affirmed. But
`the two patents at issue, the 641 and the 742, share a specification.
`Another point of clarity for today. I'm going to try to refer just to the
`641 proceeding to the extent I can unless I'm referring specifically to the
`742, so all the exhibits and when I refer to the record I'm going to be
`referring to the 641 just to make it easier to keep track of where we are.
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`Case IPR 2017-01276 (Patent 9,440,742 B2)
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`The detailed description of those patents is very short. There are three
`paragraphs to it which are substantive and I'll make note that the description
`of the second recess, as I showed you, that'll be the issue today. B/E calls it
`key but I note that in the prosecution history if you look at it the description
`of the second recess was added in September of 2014. So years after the
`original patent was filed and months after we filed the challenge in the first
`IPR against the parent patent, so this is the element that B/E says is key but
`yet it wasn't described in the detailed description of the parent patent, and so
`we reference this in our petition at page 10.
`Let me go to, or let me briefly discuss. I won't go into the back story
`of this case but B/E -- well I'm going to get a little bit into it, I say that and
`then I contradict myself -- there was a lawsuit filed in Texas about a year
`and a half ago, a little bit longer than that. B/E filed a preliminary
`injunction. So there's evidence in this IPR that wasn't in the prior art. That
`evidence came from the quick discovery we did in the first few months at
`the beginning of that case. The preliminary injunction was denied. The
`judge in the Eastern District of Texas found that these patents, the three here
`and a couple of others, are likely invalid and denied the preliminary
`injunction. Mr. Brauer, one of the inventors on all three of these patents,
`was on the stand and the judge asked him is there any patent asserted on the
`interior space of a lavatory? The reason the judge asked this case is that we
`had pointed out in the specification of these patents there's no description of
`the interior of the lavatory.
`JUDGE BISK: Is this testimony in the record anywhere?
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`Case IPR 2017-01276 (Patent 9,440,742 B2)
`Case PGR 2017-00019 (Patent D764,031 S)
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`MR. ALEMANNI: It is. It's Exhibit 2075, page 56 lines 15 through
`20, we cited in the reply paper 28 at pages 12 through 13.
`JUDGE BISK: Okay. Thanks.
`MR. ALEMANNI: And so what Mr. Brauer said in response is it
`turns out that once you succeed in doing it, and he's referring to creating a
`recess, there are a variety of solutions and so that didn't seem to us so
`fundamental. So the interior of the lavatory to us didn't seem so
`fundamental, and that's why you don't find any description in the patent of
`the interior. There's no plumbing, there's no toilet, there's no lighting
`because they didn't see it as being that fundamental, and I'll note in the
`Institution decision we had proposed a construction for a recess which was
`rejected, which is fine -- we're fine with the plain and ordinary meaning --
`but in the Institution decision which is paper 12 at page 9 the panel noted
`that the term recess need not be construed. It simply needs to be shaped to
`accommodate the shape of whatever's in front of it and so by way of context,
`in the Patent Owner preliminary response B/E refers to Exhibit 2033. Can
`you pull up Exhibit 2033, page 7, please?
`JUDGE BISK: Is this the preliminary response or the --
`MR. ALEMANNI: This is the Patent Owner's preliminary response
`in the 641 proceeding --
`JUDGE BISK: Okay.
`MR. ALEMANNI: -- and this is paper 7 at page 20. They refer to
`what they alleged is Defendant's are doing to infringe the patent and so can
`you blow up the picture? This is page 7. It's the same table cell that they
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`refer to although they don't put this picture in theirs. I just want to point out
`that as you note in your Institution decision, the recess is in this and the
`accused device, is shaped to accommodate the foot of the seat so basically
`it's just a hole cut in the bottom of the floor of the lavatory. So to provide
`context of the breadth at which B/E's applying the term recess, that was
`defined or alleged by them to be a recess. So we agree the term is broad
`enough as you say in the Institution decision to accommodate part of the seat
`or part of the structure that's in front of the wall. That's the only point I'm
`trying to make with that.
`Can we go back to our presentation slide 5, please. I'm back to
`Exhibit 1001. This is the 641 patent at issue, and I'm on page 3 and I have
`the figures pulled up. Figure 1 is labeled prior art, it's admitted prior art.
`Figure 2 is the invention. Those figures are the same -- same seat, same
`floor, ceiling, back wall -- the only difference between the two figures, the
`admitted prior art, and the claimed invention is that there are two recesses in
`the forward wall of the lavatory on the right, figure 2, and so that'll
`obviously be the focus of our discussion today. I want to note, and this
`makes a difference when we argue about the design patent and in some of
`the discussion we had about the utility patent, but at Exhibit 2104, page 76
`paragraph 183 of Dr. Dershowitz's testimony, he notes that the drawing on
`the right is a cross-section and so for purposes of the argument we'll just
`presume that they're both cross-sections and we'll describe them as such.
`JUDGE DANIELS: Mr. Alemanni.
`MR. ALEMANNI: Yes.
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`JUDGE DANIELS: I do note that Patent Owner has said that, and
`that you here are looking at this cross-section, but I'm not sure I totally
`understand this as a cross-section. Is that something that you entirely agree
`with or?
`MR. ALEMANNI: Yes. Actually, Your Honor, I think that's
`probably right. It's only described in the patent as a schematic but I think
`when you look at the two drawings it being a cross-section makes sense,
`because if you look on the left at the prior art drawing it appears that what
`you're seeing is a thicker line that defines the outside of the lavatory and
`then a thinner line that defines something on the inside. So it looks like it
`defines a ceiling and then a cabinet, and then you have a cutout for a sink
`and then you have an area in the bottom that's another storage area, and then
`on the right if you look at it it makes sense that it's a cross-section because if
`you look at that same thin line that I just described, you notice that it doesn't
`line up. So if you look on the right hand side of the interior of the lavatory,
`so start at 30 in the picture move to the right, if you look at the top there's a
`thin line and then you go down to the bottom there's also a thin line but they
`don't line up, and so it wouldn't make sense that that's a door from that
`perspective. Then further if that were the door then the door overlaps with
`the curve wall so that doesn't make sense either, so Dr. Dershowitz's
`explanation that these are instead cross-sections makes some sense.
`JUDGE BISK: So you're saying that this patent doesn't require the
`recess to come all the way to go from basically one end of the wall to the
`other? The recess could just be the portion that's the forward wall?
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`MR. ALEMANNI: I'm not saying --
`JUDGE BISK: The second recess.
`MR. ALEMANNI: I'm not saying that, Your Honor.
`JUDGE BISK: Okay.
`MR. ALEMANNI: What I'm saying is that the patent doesn't
`necessarily show that. The prior art though does show a recess that extends
`along the full length, so for purposes of invalidating the patent it doesn't
`matter whether or not it discloses --
`JUDGE BISK: Well I'm asking for purposes though of the design
`patent. One of the differences between the design patent we're looking at
`and the application that it has for priority from is that it shows the recess,
`and it looks like it's coming all the way to the end, where the prior version
`doesn't show that.
`MR. ALEMANNI: So can we go to slide 28, please? So if we look at
`slide 28 --
`JUDGE BISK: Yes.
`MR. ALEMANNI: -- to address your question, and Mr. Reed will go
`into more detail on this, but regardless of whether that's a cross-section the
`angled element in figure 2 --
`JUDGE BISK: Uh-huh.
`MR. ALEMANNI: -- of the parent patent is not shown anywhere in
`figure 1 or figure 2. In fact, the answer to Judge Daniels's question that it's a
`cross-section, the wall that's closest to us or in figure 1, the one we can
`actually see, that's nowhere in the figure on the left. So if that were in figure
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`2 on the left then we would see the wall dropping down, the claimed wall --
`the inboard wall is what we would call it, the wall towards us in the aisle.
`Then if you look at figure 2 there's a cutout there but there's no indication
`that there's an angled wall or some sort of angled structure within that. It's
`not shown anywhere, and so we would expect to see some sort of angled
`structure, some indication that's there, but none of those elements are present
`and if this were a full on side view it would have to show the other elements,
`for instance, the flat forward wall. None of that is in the figure on the left.
`JUDGE BISK: Okay.
`JUDGE DANIELS: Isn't the question though really whether what's in
`the figure on the right shown in the figure on the left though?
`MR. ALEMANNI: Yes.
`JUDGE DANIELS: I don't want to get wrapped in the design patent.
`I know we're working on the utilities. It's just this question of the cross-
`section fitting into, in particular, into the design.
`MR. ALEMANNI: I think it's clear. If I can let Mr. Reed go into
`more detail, but I'll cover briefly. I'm happy to answer your question now.
`So the figure on the left, the standard is that the design -- actually just go to
`slide 26. So the case law that we rely on in this is Daniels, in the petition for
`the PGR proceeding at page 27 and the reply at page 5. Both sides talk
`about the Daniels decision. It's also in the Institution decision. So in the
`case of In re Daniels which Your Honors described in the Institution
`decision, the Federal Circuit found that the design on the right, the claim at
`issue, was supported by the design on the right. That seems appropriate to
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`us because but for the flowery sort of surface indicia, you can see the design
`on the right and the claim at issue in the priority application. You can see
`the top, the middle, it's a container. It's got all the holes. Basically
`everything's there.
`Now if we move to Salmon, which is slide 27, please. I mean the
`claim at issue here is a stool with a round top. Now I don't have a picture of
`the priority application but what I do have is the text. What the case says is
`that you have the same stool in the parent application except it had a square
`top with rounded corners. So it went from a square top with rounded corners
`to a round top, and the court held that's enough of a difference to break the
`priority chain. It's not the same design, the design is simply not there and so
`when we move to slide 28 the design on the right is simply not present in the
`design on the left and so that's our position and I can let Mr. Reed go into
`more detail if that's okay, or I can answer the question now.
`JUDGE DANIELS: Thank you. You've answered it quite well. I
`don't want to take away from your discussion and argument from the utilities
`at this point, so let's wait. Thank you.
`MR. ALEMANNI: All right. Thank you, Your Honor. So can we go
`back to slide 8, please. So I'm going to talk a little bit about preclusive
`effect. I'll talk about the MaxLinear case and the Nestle case that we cited.
`It's cited in our reply at page 3. It's well settled that collateral estoppel
`applies to --
`JUDGE BISK: Well, can I ask. Why does collateral estoppel apply
`to in this case?
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`MR. ALEMANNI: The issues that were argued in the previous case
`are was it obvious to apply the recess in the Betts patent that's in figure 1 of
`Exhibit 1005, the Betts patent, to a lavatory.
`JUDGE BISK: Okay.
`MR. ALEMANNI: And the finding of the PTAB, what was affirmed
`by the Federal Circuit, is that yes, that is --
`JUDGE BISK: These claims have something extra that weren't in the
`others.
`MR. ALEMANNI: Yes, I agree. Collateral estoppel does not
`preclude you from the final finding.
`JUDGE BISK: Okay.
`MR. ALEMANNI: So it's just there are some subsidiary issues.
`JUDGE BISK: Okay.
`MR. ALEMANNI: Can we go to the next slide? We say the
`subsidiary issues are 1) that it's obvious to apply the recess to the lavatory
`and then 2) the Board made a finding that the Betts' seat is shown in the
`unreclined position, and so those are two points that come up in argument
`here. We had the chance to fully argue those and litigate those. I've talked
`more than I ever wanted to about reclined seats and so we settled those
`issues. They were affirmed by the Federal Circuit. So we believe it should
`apply, at least in part, to the proceedings here. But yes, Judge Bisk, you're
`right, it's not a complete estoppel.
`JUDGE BISK: Okay.
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`Case IPR 2017-01275 (Patent 9,073,641 B2)
`Case IPR 2017-01276 (Patent 9,440,742 B2)
`Case PGR 2017-00019 (Patent D764,031 S)
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`JUDGE MARSCHALL: Does collateral estoppel apply to the
`secondary considerations?
`MR. ALEMANNI: So I think my answer would be no, although I
`think they're instructive. The PTAB waived most of the secondary
`considerations here. There is additional evidence because we had the PI
`hearing. The Federal Circuit expressed skepticism about the secondary
`considerations, particularly in regards to nexus. I think those are
`informative. But I think at a (indiscernible) you still have to look at the case
`as a whole, so you have to look at the claim and you look at the secondary
`considerations, I think the whole case is there's a balance and then you take
`nexus and use it as a fulcrum. But I think you still have to do that
`consideration, so I don't think it applies to forestall you from looking at
`everything.
`JUDGE MARSCHALL: The nexus issue is different here because the
`claims are different, correct?
`MR. ALEMANNI: It is, absolutely. Okay, let's go to slide 10, please.
`Very briefly, the claim in the 838 patent I've already talked about but it's a
`lavatory having a single recess and so I think what's somewhat helpful is to
`go to the next slide and just compare the two claims.
`So slide 11, please. So if you look at slide 11, we have the 838 claim
`on the left, we have the 641 claim on the right and these are the independent
`claims. There are differences in the claim but the dispute here is about the
`second recess where I've highlighted. If we go to the 742, the dispute again
`is about the second recess. This is sort of a retrofit (phonetic) find, putting a
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`Case IPR 2017-01275 (Patent 9,073,641 B2)
`Case IPR 2017-01276 (Patent 9,440,742 B2)
`Case PGR 2017-00019 (Patent D764,031 S)
`
`new lavatory and a new wall in. I think in some of the demonstratives there
`was a suggestion 742, not ours, and some of these demonstrative's
`suggestion that claim 1 is at issue -- I believe it's one of the instituted
`grounds here -- this is a claim that we've been focused on. Again, the
`difference is it has a second recess.
`JUDGE MARSCHALL: And there's no dispute that Betts does not
`disclose that second recess, correct?
`MR. ALEMANNI: Explicitly, yes. There's no dispute that there's not
`a second recess, Your Honor. Yes, Your Honor. Let's go to slide --
`JUDGE BISK: I have one question. It seems to me there might be
`another difference between these claims in the 742 patent and the 838 in that
`they specifically discuss reducing the volume of unusable space --
`MR. ALEMANNI: Uh-huh.
`JUDGE BISK: -- where I don't think that was in any of the 838 patent
`claims?
`MR. ALEMANNI: They didn't address it explicitly although they're
`talking about the same concept. In the 742 claims -- can you blow that up a
`little bit so I can see it, on the right? It's the very last section, sorry, the very
`last part of it. So it talks about reducing the volume of unusable space, and
`so we'd argue unusable space in and of itself doesn't make any sense because
`you have a cabin in an aircraft and you have space, and so you could use it if
`you wanted to. If you're talking about the gap behind the seat you could
`throw something back there if you wanted to. So the point I think is found
`further in the claim and it says unusable space in the cabin area by
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`Case IPR 2017-01275 (Patent 9,073,641 B2)
`Case IPR 2017-01276 (Patent 9,440,742 B2)
`Case PGR 2017-00019 (Patent D764,031 S)
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`eliminating gaps that existed, so I think it's a particular way of reducing
`unusable space --
`JUDGE BISK: Okay.
`MR. ALEMANNI: -- and that is by putting the things closer.
`JUDGE BISK: Uh-huh.
`JUDGE MARSCHALL: And there's no dispute that Betts does not
`disclose moving seats to reduce that unusable space to reduce the gaps,
`right?
`MR. ALEMANNI: There is a dispute about that, absolutely and I will
`get to that next.
`JUDGE MARSCHALL: Okay.
`MR. ALEMANNI: So if we can go down to slide 13, please. So slide
`13 is just admitted prior art. It's all the elements of the claim other than the
`recess. I just note the seats there.
`But let me go to slide 14 to address your question directly. So this is
`Betts. This is Exhibit 1005, figure 1. So the Betts' closet if you read the
`abstract of Exhibit 1005 and then the very first part of the detailed
`description -- we refer to this in the petition at pages 7 through 9 -- Mr.
`Betts, when he created this closet, he said it was for the express reason of
`providing more room for passengers and Mr. Anderson, our expert, relies on
`that in making his determinations and giving his testimony. If you look at
`the Betts' closet, if that Betts' closet had a straight wall on the front of it then
`that seat would necessarily need to be moved forward.
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`Case IPR 2017-01275 (Patent 9,073,641 B2)
`Case IPR 2017-01276 (Patent 9,440,742 B2)
`Case PGR 2017-00019 (Patent D764,031 S)
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`
`Now the patents at issue, so Exhibit 1001 if you look at column 1 near
`the bottom around line 50, it says that the claims aren't limited to moving
`seats aft. In fact you can move seats aft or you can make the enclosure
`bigger. Regardless of what's going on here, the seat is closer. In other
`words if you left the closet in place, if the seat is moved aft in relation to that
`closet it must be.
`JUDGE MARSCHALL: You're inferring though that—Betts doesn't
`say we have a straight wall, we're going to replace it with this curved wall
`with the recess and therefore move the seats back. It doesn't say that.
`MR. ALEMANNI: It doesn't explicitly say that, no, Your Honor it
`does not. But I think from the drawing it has to. In fact it's interesting here,
`Mr. Anderson talks about this. I believe it's in or about -- well he talks about
`this at 180 in his declaration, but I mean if you look at this it's clear there's a
`couple of design constraints here. One is that you're making more room for
`passengers, so how are you doing it? Well Mr. Anderson explains in his
`declaration that back in the '70s, 45 years ago when this came about, they
`were actually worried about passenger comfort in the airplane which seems a
`bit different than today, so if you had to allow for recline and so you create a
`recess that's larger than it would need to be if all you were doing was
`moving the seats back, or making the enclosure bigger.
`So in this case, not only is the seat closer but that recess is larger and
`then if you look at the lower wall, it's labelled 32 in the drawing, you see
`that it's shaped so that when the seat tilts back it aligns with the back of the
`seat. That's a lot of recline, I don't think I've seen a seat like that in probably
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`Case IPR 2017-01276 (Patent 9,440,742 B2)
`Case PGR 2017-00019 (Patent D764,031 S)
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`20 years but that was the design constraint, the design choices they were
`making in designing the size and shape of that recess and determining the
`position of the recess.
`JUDGE BISK: That reminded me of another question I had which is,
`is there a dispute over the level of ordinary skill, that a person of ordinary
`skill would have?
`MR. ALEMANNI: There is a dispute, a little bit, but I don't really
`think that it matters for purposes of the argument. I think we'd be okay with
`the level of skill in the art that's presented by either party. I don't think it
`makes a difference here.
`JUDGE BISK: Okay.
`MR. ALEMANNI: Okay. I am going to address Dr. Dershowitz's
`testimony at some point, but I don't think the level of skill itself makes that
`much of a difference.
`JUDGE BISK: Okay. I did see there's a little bit of argument over
`whether the expert should have had experience in designing a lavatory, but
`that's not --
`MR. ALEMANNI: I think -- I'm sorry, Your Honor.
`JUDGE BISK: -- one of ordinary skill wouldn't need to have that.
`MR. ALEMANNI: I didn't mean to interrupt you.
`JUDGE BISK: No, go ahead.
`MR. ALEMANNI: I think -- and I can talk about this and we
`developed the record a little bit, I don't want to put you out there -- I think
`there are issues with Dr. Dershowitz's testimony that would cause you to
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`Case IPR 2017-01276 (Patent 9,440,742 B2)
`Case PGR 2017-00019 (Patent D764,031 S)
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`give it less weight. We didn't move to exclude him. We're not running
`away from any of this evidence and he's got a Ph.D from MIT so clearly
`well credentialed and all we're talking about is a recess on a forward wall.
`So it's not that difficult, but there are issues with his testimony that I think
`would cause you to give it less weight and clearly the panel is in the position
`to determine how much weight they give it, but we're going to point to a few
`places along the argument where he misunderstands the technology, where
`he testifies about things that he clearly doesn't understand, and so the level
`of skill in the art isn't the issue but the issue is more to do with the specific
`(indiscernible.)
`JUDGE BISK: Okay.
`MR. ALEMANNI: Okay. So let me move to slide, the next slide. So
`Mr. Anderson, in his testimony -- so I'm referring to the reply, pages 7 to 9,
`and Mr. Anderson's testimony is Exhibit 1
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