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`Paper #
`Entered: 40
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`U.S. PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`INTEX RECREATION CORP.,
`Petitioner,
`
`v.
`
`TEAM WORLDWIDE CORP.,
`Patent Owner.
`
`__________
`
`PGR 2019-00015
`Patent 9,989,979 B2
`
`__________
`
`RECORD OF ORAL HEARING
`Held: February 11, 2020
`__________
`
`Before GEORGE R. HOSKINS, JAMES J. MAYBERRY, and
`ERIC C. JESCHKE, Administrative Patent Judges.
`
`
`
`Trials@uspto.gov
`571-272-7822
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`PGR 2019-00015
`Patent 9,989,979 B2
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`R. TREVOR CARTER, ESQ.
`REID E. DODGE, ESQ.
`JOEL D. SAYRES, ESQ.
`Of: Faegre Drinker
`1500 K Street, NW
`Suite 1100
`Washington, DC 20005
`(317) 237-1352 (Carter)
`(317) 237-1143 (Dodge)
`(302) 607-3589 (Sayres)
`trevor.carter@faegredrinker.com
`reid.dodge@faegredrinker.com
`joel.sayres@faegredrinker.com
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`TIMOTHY E. BIANCHI, ESQ.
`of: Schwegman, Lundberg, Woessner
`121 South 8th Street
`Suite 1600
`Minneapolis, MN 55402
`(612) 373-6912
`tbianchi@slwip.com
`
`
`
`
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`2
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`PGR 2019-00015
`Patent 9,989,979 B2
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`
`
`ROBERT M. HARKINS, ESQ.
`Of: Ruyak Cherian LLP
`1936 University Avenue
`Suite 350
`Berkeley, CA 94704
`(510) 944-0187
`bobh@ruyakcherian.com
`
`
`The above-entitled matter came on for hearing on Tuesday, February 11,
`2020 commencing at 10:00 a.m. at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia.
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`PGR 2019-00015
`Patent 9,989,979 B2
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`P-R-O-C-E-E-D-I-N-G-S
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`10:29 a.m.
`
`JUDGE MAYBERRY: Please be seated.
`Give us a couple of minutes to get booted up.
`All right, good morning and welcome to the Patent Trial and
`Appeal Board. I'm Judge Mayberry, and joining me are Judge
`Jeschke and Judge Hoskins.
`We're here for a hearing in PGR 2019-00015, which concerns
`U.S. Patent 9,989,979, so the ’979 patent. Petitioner is Intex
`Recreation Corporation and Patent Owner is Team Worldwide
`Corporation, and we'd like to begin with introductions. So, will
`counsel for Petitioner please come up and introduce themselves?
`MR. SAYRES: Thank you and good morning, Your Honors.
`Joel Sayres from Faegre Drinker Biddle Reath on behalf of
`Petitioners. With me at counsel table is Reid Dodge, and also with
`me for Petitioners is Trevor Carter.
`JUDGE MAYBERRY: And for Patent Owner?
`MR. BIANCHI: Good morning, Your Honors. Tim
`Bianchi for Team Worldwide Corporation, and with me is Mr. Bob
`Harkins, from the Ruyak Cherian firm.
`JUDGE MAYBERRY: All right, thank you.
`Now, each side is going to have 60 minutes of presentation
`time, including any rebuttal. And Petitioner bears the burden for
`proving unpatentability of the challenged claims and will go first.
`Petitioner may reserve rebuttal time. Then Patent Owner will
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`PGR 2019-00015
`Patent 9,989,979 B2
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`respond to Petitioner's case. Patent Owner may reserve sur-rebuttal
`time.
`
`Petitioner may use its remaining time to reply to Patent
`Owner's response and then Patent Owner may use its sur-rebuttal time
`to reply to Petitioner.
`And, as you all see, Judge Hoskins is appearing remotely.
`To ensure that Judge Hoskins can follow the presentation and also to
`help keep our record clear, please speak into the microphone and
`indicate the slide or paper, or exhibit number that you're talking about.
`All three of the judges have electronic copies of the whole
`record and your demonstratives so, we're going to be following along
`on our screens. One thing to point out, though, is if you use a pointer
`on your presentation, Judge Jeschke and I will be able to see it but
`Judge Hoskins will not.
`Does either party have any questions before we start?
`Petitioner?
`MR. SAYRES: No, Your Honor.
`JUDGE MAYBERRY: Patent Owner?
`MR. BIANCHI: No, Your Honor.
`JUDGE MAYBERRY: All right, then Petitioner you may
`start when you are ready.
`MR. SAYRES: Thank you, Your Honors, and if I may, can I
`reserve 30 minutes of rebuttal time?
`JUDGE MAYBERRY: Sure, if you just give me time to
`adjust this, then sure.
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`PGR 2019-00015
`Patent 9,989,979 B2
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`All right, so what's going to happen, it's going to count down,
`a yellow light's going to come on with one minute left.
`MR. SAYRES: Thank you, Your Honor.
`So jumping right in starting on slide 2, this is an overview of
`the seven instituted grounds, which we can come back to if we need
`to.
`
`Now on to slide 4. This is an overview of the ’979 patent
`and as you can see, it describes the invention as relating to an inflating
`module used in inflatable objects so as to inflate the inflatable object
`and provide supplemental air pressure to the inflatable object when
`the air pressure of the inflatable object is under a predetermined level.
`Now on to slide 5. At a high level, we can see that the patent
`discloses a pump to provide primary air pressure, and that's described
`in Figures 1 through 4D, and then separately, a supplemental air
`pressure providing device, which is described in Figures 5 through 13.
`Now on slide 6, pressure controlling assembly obviously is an
`important term we'll be talking about today but just as kind of an
`introduction, we'll see that the patent, the only reference in the patent
`to what the pressure controlling assembly is, as opposed to the
`function it performs, is illustrated here on this slide on the right, and
`that is designated by the numerals 121 and 122.
`Now, those numerals only appear in one figure in the patent,
`that's Figure 2A but the specification gives no reference,
`identification, or any other disclosure or description of what 121 or
`122 is. And we'll come back to that this morning.
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`PGR 2019-00015
`Patent 9,989,979 B2
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`On to slide 7, we have an overview of the five challenged
`claims with the term pressure controlling assembly in red where it
`appears all in claim one.
`On to slide 8, I'm going to walk through the four recited
`functions for the pressure controlling assembly. This was recognized
`in the, by the Board in the institution decision and it's shown here in,
`recited in the claims.
`The first function is a pressure controlling assembly
`configured to monitor air pressure in the inflatable object after the
`inflatable body has been inflated by the pump.
`Then we have the air pressure, the pressure controlling
`assembly is configured to automatically activate the supplemental air
`pressure providing device, and then we have the pressure controlling
`assembly detects that the air pressure inside the inflatable object
`decreases below a predetermined threshold after inflation by the
`pump.
`
`And finally, we have the pressure controlling assembly to
`control the supplemental air pressure providing device to provide
`supplemental air pressure to the inflatable object so as to maintain the
`air pressure in the inflatable object within a predetermined range.
`Now, moving on to slide 13, we have the transition, definition
`of a transition application here. I don't think there's any dispute that
`the ’979 patent is a transition application, which means it was filed
`after March 16, 2013, but claims the benefit of an application filed
`before March 16, 2013.
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`PGR 2019-00015
`Patent 9,989,979 B2
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`On to slide 14, we'll see the standard and there's other
`authority we cite in our briefs, but I don't think there's also any dispute
`here that post-grant review applies if the ’979 patent contains at least
`one claim that cannot claim priority back to the earlier filed
`application for lack of written description. That earlier application is
`the ’847 application. And that's what I'll be referring to today.
`So, on to slide 15, at a high level, we have two issues
`regarding PGR eligibility. First is the ’979 patent unable to claim
`priority to the ’847 application. And, in looking that, into that
`inquiry, we start with is pressure controlling assembly a means-plus-
`function term, is it subject to 112(f). If so, does the ’979 patent
`specification fail to disclose corresponding structure? And then
`finally, does the ’847 application fail to provide written description
`support?
`The second main issue to that eligibility question is do new
`matters claimed added and then cancel trigger PGR eligibility, and
`we'll get into more detail into that in a minute.
`JUDGE MAYBERRY: Excuse me, counsel, may I ask a
`question?
`MR. SAYRES: Yes.
`JUDGE MAYBERRY: The Petition had three issues, one
`that the term primary air pressure did not have written description
`supporting the ’847 application.
`By what's on this slide and what was in your reply, are we to
`understand that you have now dropped that as an issue that you're
`asserting?
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`Patent 9,989,979 B2
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`MR. SAYRES: We haven't conceded that issue. We don't
`think their characterization of that is correct. We still think it's
`invalid under 112(b) and 112(f), and lack of written description.
`However, we think that the Board does not need to reach those
`issues because it's pretty clear that the claims are invalid for lack of
`written description and as means-plus-function claims that don't recite
`corresponding structure.
`So, you are correct, we did not brief those in the reply and I'm
`happy to answer questions about them today, but we don't address
`them in the slides today.
`JUDGE MAYBERRY: That leads to a couple other
`questions. One being because in our decision on institution we did
`not find that the primary air pressure argument carried the day, and
`you didn't provide any additional argument or point us to any
`additional evidence that would sway us otherwise because you didn't
`cover it in your reply.
`Is there any way we could reach the alternative that it does
`lack written description support and provide PGR eligibility, or
`because you didn't point us to anything else, are we done?
`MR. SAYRES: Well, Your Honor, as you know, the Board
`is free to change its mind from the institution decision to the final
`written decision.
`So, we think on a new review of the record and the arguments
`on final written decision, the Board is able to reach that if it finds that
`the evidence is conclusive, even without reply argument.
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`So, we think it's the Board can but we don't think the Board
`needs to and so we didn't present any argument in the reply.
`JUDGE MAYBERRY: All right, thank you.
`And on that same vein of these two issues that are here on the
`board, do we only need to reach one of them and if we find PGR
`eligibility under one, we can just ignore the other?
`MR. SAYRES: That's correct, Your Honor. If you find
`that the term lacks written description supporting the ’847 application,
`the only way -- then it would be PGR eligible. And we also had a
`separate ground that the term lacks written description support in the
`’979 specification itself.
`So, the only way that the claims would survive in that instance
`is if you found there were some difference in the ’979 specification, as
`opposed to the ’847 application.
`As we'll see in a little bit, the only difference between the two
`is that the original ’847 application did not have any reference to 121
`or 122. It did not identify the pressure controlling assembly as 121
`or 122.
`
`So, unless that is a meaningful difference, which we would
`submit it is not, that does not provide written description support, then
`it would fall with the eligibility question that it would be invalid under
`that ground.
`JUDGE MAYBERRY: All right, thank you. My question
`was actually a little different, I think. I was just wondering if we
`find that the application is eligible under your Issue No. 1, can we
`ignore Issue No. 2?
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`MR. SAYRES: That's correct, Your Honor.
`JUDGE MAYBERRY: All right, thank you.
`MR. SAYRES: So, now moving on to slide 17 we're going
`to address the means-plus-function question first. And, of course,
`the first question in the means-plus-function test is determining
`whether or not the term itself connotes structure.
`And so as an overview of our argument, we have four main
`points, one is that when you look at the term in the claims, it is
`claimed purely in terms of function.
`The second is that when you look at the term itself, it consists
`of a nonce word assembly with a functional descriptor ahead of it,
`pressure controlling, and recent authority which we'll talk about in a
`minute both from the PTAB and the Federal Circuit have confirmed
`that in this case, Federal Circuit has consistently held such terms to be
`subject to 112 sixth.
`Third, we'll see that when you look at the specification to see
`if it imparts any structure to the term, there's nothing in there that
`imparts structure to the term. It's not described, identified, in any
`way, so there's no way you could impart structure there.
`And then, finally, I think recognizing this set of reality, Patent
`Owner has come in with expert testimony saying well, we could find
`some numerals in the figures that we could try to figure out that it
`could perform maybe some of the functions.
`And, as a first point, that's not what the first test of the means-
`plus-function test is, it's whether or not the term itself connotes
`structure. And the MTD case, which we'll talk about in a minute,
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`Patent 9,989,979 B2
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`makes it very clear that just even if you could possibly find a
`collection of parts that can perform the function, that's not sufficient to
`take it out of the ambit at 112 sixth.
`But in any event, their extrinsic evidence if anything, confirms
`that this is a black-box term that is just serving as a placeholder for the
`function it performs.
`JUDGE MAYBERRY: And counsel, before you move on, a
`couple of questions. One, on your third point, nothing in the ’979
`patent specification. And is that what you mean or do you mean the
`’847 application?
`MR. SAYRES: Right now, Your Honor, I'm on the means-
`plus-function limitation analyzing whether the term is a means-plus-
`function term as used in the ’979 patent application.
`JUDGE MAYBERRY: Yes, your item says nothing in the
`’979 patent specification imparts structure. What about the part of
`the specification that attaches the reference numerals 121 and 122 to
`the term pressure controlling assembly?
`That would seem to be something in the ’979 patent
`specification that does impart structure.
`JUDGE JESCHKE: In view of Figure 2A as well.
`JUDGE MAYBERRY: Yes.
`MR. SAYRES: Well, we would submit that that bare
`reference to 121 and 122, because there is no description of what 121
`or 122 is, there's literally nothing in the patent that says what that is or
`might be.
`JUDGE JESCHKE: You mean text?
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`MR. SAYRES: There's no text.
`JUDGE JESCHKE: Okay.
`MR. SAYRES: There's, you're correct of course, that, Your
`Honor, that it's pointing to something in the drawing. But we would
`submit that that is not sufficient to impart structure to the term itself.
`Someone, a person of ordinary skill looking at the
`specification, would now look at 121 and 122 and the line going to
`some undisclosed part of the figure and say, I suddenly, that connotes
`structure of a pressure controlling assembly to me.
`JUDGE JESCHKE: So, you're not saying that that figures
`could not, it's just that in this particular instance they do not provide
`enough description to, to show that there is a linkage if you will,
`between pressure controlling assembly and a certain group of
`structures?
`MR. SAYRES: That's correct, Your Honor. Conceivably
`there might be a case where that is. I don't think we're anywhere
`near that here, but that's our position.
`JUDGE MAYBERRY: But sufficiency and nothing are kind
`of two different things, or can be two different things. That's why I
`was wondering if you were talking about the ’847 because as you kind
`of hinted to earlier, that does appear to be a difference between the
`’847 application, which we are focused on when it comes to PGR
`eligibility, and the ’979 patent specification, and that is those
`reference numerals attached to the pressure controlling assembly.
`MR. SAYRES: Correct, Your Honor. I see your point. I
`would just, all we are saying is that the bare reference to 121/122 does
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`not impart structure. There's the reference there of course, for sure,
`but it does not impart structure. So, that's why we labeled that
`argument the way we did.
`JUDGE MAYBERRY: And in your list of four things,
`where does the fact that the examiner who was involved in the
`prosecution of the application that matured into the ’979 patent, I
`think, the ’073 application but don't quote me, never called it a means-
`plus-function limitation?
`And then there's some additional evidence that would suggest
`that the examiner knows when, when means is used and knew that
`those were a means-plus-function but never kind of carried it over to
`the, this phrase that doesn't use the term means.
`How do we weigh that evidence, or those facts, when we're
`trying to go through this whole story to determine whether this is the,
`you know, presumptions are rebutted and this really is a means-plus-
`function limitation governed by 112(f)?
`MR. SAYRES: Two points to that question, Your Honor.
`The first is that if it was the case that because an examiner did not
`raise a 112 sixth objection during prosecution, that necessarily means
`the term is not means-plus-function or it provides some substantial
`evidence to that effect, would essentially make it that you would never
`have invalidation after issuance for means-plus-function because of
`course, when a patent claim issues, it's going to survive that.
`So, just by the fact that the examiner didn't raise it, I don't
`think it weighs strongly that it's not a means-plus-function claim.
`When you look at the MTD case, that's one of the things the Federal
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`Circuit really had made clear, is that in that case, is the Patent Owner
`himself went in and said this term, mechanical control assembly,
`connotes structure. And we're not claiming means-plus-function, it
`connotes structure.
`And then later on, the Patent Owner afterward said well no,
`now we think it's a means-plus-function term. And the Board said
`yes, we find that really persuasive that the term looks kind of means-
`plus-function-y, but we think that's persuasive and the prosecution
`history, that's the position the Patent Owner took and it issued without
`a 112 sixth denial.
`And so the Federal Circuit said no, that you can't put a
`substantial weight on that evidence in the face of clear evidence
`otherwise because there's no indication in the specification that 112
`sixth couldn't apply.
`So, we would say that the MTD provides guidance that that
`doesn't serve as really a lot of evidence as to whether or not it's 112
`sixth. The examiner could have missed it, the Patent Owner could
`have changed, you know, arguments midstream.
`There's all sorts of situations where that would arise so we
`would say that that's not conclusive or substantial evidence.
`Particularly in this case where as we'll see, the claims, the
`specification, do not impart any structure to the term and all we have
`left is extrinsic evidence that itself confirms the functional nature of
`the term.
`JUDGE MAYBERRY: All right, thank you.
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`MR. SAYRES: So, on slide 18 we have the Williamson
`standard, which talks about when you can overcome what was
`formerly a strong presumption is no longer a strong presumption,
`when the claim term means is not used.
`And that standard is if the claim fails to recite sufficient
`indefinite structure, or else recites function without reciting sufficient
`structure for performing that function. And we think this case lands
`squarely within this standard.
`Slide 19, I'm going to walk through the claims a little bit. As
`you can see here, again, we have the instances of pressure controlling
`assembly being used.
`And on slide 20, we have again the four functions that are
`being recited. And as this shows, pressure controlling assembly is
`being claimed purely in terms of a function. It's a pressure
`controlling assembly for performing a function. And in this case,
`four functions.
`Now, in slide 21 --
`JUDGE MAYBERRY: Excuse me, counsel, before you get
`rolling again. The Petition that was filed in this PGR was filed the
`day before the claim construction standard changed for this type of
`proceeding. So, it's under the broadest reasonable interpretation
`regime because of its filing date.
`How does BRI as opposed to Phillips affect how we're going
`to construe those functions and whether structure is recited or not, or
`the sufficient structure is recited or not? How, what's the interplay
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`between BRI and Phillips and how we're going to actually construe
`these claims?
`MR. SAYRES: I think, Your Honor, that that's an unsettled
`question. I'm not aware of any authority specifically saying that the
`difference in standard is meaningful when you're looking at a means-
`plus-function analysis.
`So, we don't think it affects the outcome in this case, we think
`it's clear that this falls within 112 sixth. And so our position is
`there's no distinction.
`All we know, all we're doing here is applying it under BRI.
`We can't say whether or not if you apply the Phillips analysis it would
`come out the other way. All we know is here, applying BRI that it
`would be means-plus-function.
`But I think it's open to, I think it's not settled that question
`whether there is a difference.
`
`On to slide 21, the Federal Circuit has consistently identified
`certain words like means, device, mechanism, element, as nonce
`words that are just generic placeholders for a function. And we can
`see here in the Askeladden case, the Federal Circuit, I mean I'm sorry,
`the Board agreed that assembly falls within that, which makes sense.
`An assembly is being used as just some placeholder collection of parts
`for performing a function.
`And then when you look at the words preceding it in the claim
`term pressure controlling, you'll see that that again is purely
`functional.
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`PGR 2019-00015
`Patent 9,989,979 B2
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`So, again in that same case, the Board found that in that case,
`the modifier module generating for assembly is not structural but
`functional, and we think the same applies here.
`On to slide 22. It's not just, you know, the Board of course,
`the Federal Circuit has consistently found that when you have a nonce
`term, a generic placeholder coupled with a functional descriptor, you,
`that is a means-plus-function term.
`And this was recognized by the Board in its institution
`decision and we have some of the authority laid out here. As you
`can see, module generating assembly, mechanical control assembly,
`custom selection mechanism, lever moving element, and distributor
`learning control module all very analogous to what we have right
`here.
`
`Now, on to slide 23. I'm going to talk a little bit about the
`MTD case. This is an important case for a couple reasons. One, it's
`very analogous and in fact, Patent Owner in its Patent Owner
`response, was pretty vehement that this is an analogous case to the
`situation we have here. Their expert in deposition admitted,
`represented that it's analogous to the claim we have here because we
`have a, that nonce, that nonce term functional descriptor configured to
`perform a function in the MTD case.
`And what the MTD case said was the term mechanical control
`assembly is similar to other generic black-box terms and then that
`claim language reciting what the mechanical control assembly is
`configured to do is functional. And that's what we have here as well.
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`Patent 9,989,979 B2
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`So, slide 24 illustrates that when you look at MTD on the left,
`mechanical control assembly configured to perform a function, and
`you have the pressure controlling assembly configured to perform
`four functions, it's right on point.
`
`Now again I alluded to this earlier. Now I'm on slide 25, I
`alluded to this earlier that in their Patent Owner response, they, the
`Patent Owner represented that MTD was directly analogous because it
`had these configured to perform a function recitations.
`After the Patent Owner response, because the Patent Owner
`taking a step backwards relying on the Board decision in that MTD
`case before the Federal Circuit came out with their decision.
`After the Patent Owner response, the Federal Circuit found no,
`this is a means-plus-function term, and so on the sur-reply, Patent
`Owner is doing everything it can to now try to distance itself from the
`case.
`
`But as we'll see on slide 26, the decision, MTD decision is
`directly on point because of the similarity of terms, the configure-to
`language, and on the bottom on the right similar to here, there was
`evidence in the MTD case that mechanical control assembly was being
`used to describe a wide variety of structures with various functions in
`the prior art. And we think that also applies on this case.
`Now, they've raised three issues in their sur-reply about why
`it's not on point, first being well, in MTD the term itself wasn't being
`used in the claim whereas here, we have pressure controlling
`assembly in the specification. As we'll see, that pressure controlling
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`Patent 9,989,979 B2
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`assembly in the specification is just being disclosed functioning.
`There's no, it's just recitation of the function.
`Second, well, we, Patent Owner says we've submitted
`evidence that shows that this has structural meaning. Well, their
`evidence as we'll see is just their expert pointing to a collection of
`numerals. And of course MTD says you can't just try to find
`something that's a collection of parts that can perform the function,
`that's not the first part of the test.
`And finally, they say well in the MTD, the party arguing
`against means-plus-function was pointing to this ZTR control
`assembly. So, they were pointing to a different term whereas here,
`we're pointing to the same term, patent controlling assembly.
`Actually, what they are doing, what their expert is doing is not
`only pointing to a different term, he's pointing to different numerals
`that aren't even identified in the figure. So, this is if anything, more
`on point than what we have here.
`Slide 27 just shows the Patent Owner's agreement, their
`expert's agreement that MTD is analogous.
`Slide 28, MTD is also interesting because it did have language
`reciting that the term was coupled to structure. Here, there's nothing,
`there's no similar language. And the Board in MTD even said that
`coupled-to language makes it partially but not fully functionally, but
`even then it's a means-plus-function term and that applies. We don't
`even have that here.
`So, and to try to, Patent Owner to try to get in that coupled-to
`universe, has made some representations in its sur-reply that there's
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`structural connections recited in the claims. Looking at the claims,
`you can see that that's just not true. There's no structural connections
`recited whatsoever.
`Moving on to the specification, you'll see that these are the
`four parts of the spec that have the term pressure controlling
`assembly.
`JUDGE HOSKINS: Excuse me, counsel, which slide are
`you on?
`MR. SAYRES: Oh, I'm sorry, slide 32.
`These are the four parts that have pressure controlling in it,
`pressure controlling assembly in it, and as you'll see again every time
`it's referenced it's being referenced in reference to just the structure,
`sorry, just the function that's being performed.
`So, nothing about that is imparting structure to a person of
`ordinary skill in the art saying well now I know from these functions
`what structure we're talking about. What the term is connoting, you
`don't get any of that from the specification.
`JUDGE MAYBERRY: Excuse me, counsel? I just want to
`make sure we're all on the same page because our threshold inquiry
`really is, is the ’979 patent eligible for PGR, and so we're looking to
`see is if there's written description support in the ’847 patent
`application. And kind of all your story is about the ’979 patent
`specification.
`So, are other than the 121/122 number which you seem to say
`is insignificant, are you saying that the specification for the ’979
`patent and the ’847 application are the same? So, whenever we hear
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`you say ’979 patent specification, you are equally saying ’847
`application?
`MR. SAYRES: Effectively, yes, Your Honor, that's true
`because there's no meaningful difference as to whether the ’847
`application adequately has written description support based on that
`121/122. If anything it has less written description support.
`So, our position would apply even stronger to the ’847
`application because it doesn't even give you an indication of a
`numeral. So, that's correct. We do separately argue that there's no
`written description support but it would effectively apply.
`121/122, we've covered on slide 34.
`Again, slide 35, this is what Patent Owner is coming in with
`given the lack of any structure in the claims or specification is their
`expert saying well, I can look to these other things other than 121 and
`122, and I can find some, something that can perform some of the
`functions.
`As we'll see, there's no evidence that these perform all four
`functions and there's not even a clear indication of what sub-part, sub,
`some collection or the whole collection is actually being advocated as
`a pressure controlling assembly, but the bottom line is they're pointing
`to these additional numerals. The numerals are not referenced
`anywhere in the specification, and this is not what the first part of that
`test is. It's not whether you can find something that performs the
`function.
`Again, on slide 36 this shows when you look at what they're
`pointing to, none of that is in the specification except for switch 2 is
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`identified in the specification as a switch 2. Other than that, those
`terms are not anywhere in the ’979 patent.
`And their expert when we tried to get some more clarity on
`this and ask well, is it everything, is it some parts of it? Their expert
`said repeatedly, and we have additional citations and in addition to the
`one on slide 37 where the expert says well, it depends on wher
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