Trials@uspto.gov
`571-272-7822
`
` Paper 32
`Entered: July 23, 2021
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LKQ CORPORATION and
`KEYSTONE AUTOMOTIVE INDUSTRIES, INC.,
`Petitioner,
`
`v.
`
`GM GLOBAL TECHNOLOGY OPERATIONS LLC,
`Patent Owner.
`____________
`
`PGR2020-00055
`Patent D855,508 S
`____________
`
`Record of Oral Hearing
`Held: June 29, 2021
`____________
`
`Before KEN B. BARRETT, SCOTT A. DANIELS, and
`ROBERT L. KINDER, Administrative Patent Judges.
`
`
`
`
`571-272-7822
`
` Paper 32
`Entered: July 23, 2021
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LKQ CORPORATION and
`KEYSTONE AUTOMOTIVE INDUSTRIES, INC.,
`Petitioner,
`
`v.
`
`GM GLOBAL TECHNOLOGY OPERATIONS LLC,
`Patent Owner.
`____________
`
`PGR2020-00055
`Patent D855,508 S
`____________
`
`Record of Oral Hearing
`Held: June 29, 2021
`____________
`
`Before KEN B. BARRETT, SCOTT A. DANIELS, and
`ROBERT L. KINDER, Administrative Patent Judges.
`
`
`
`
`
`PGR2020-00055
`Patent D855,508 S
`
`APPEARANCES:
`
`ON BEHALF OF THE APPELLANT:
`
`
`BARRY IRWIN, ESQUIRE
`Irwin IP LLC
`222 South Riverside Plaza
`Suite 2350
`Chicago, Illinois 60606
`
`ON BEHALF OF PATENT OWNER:
`
`
`CRAIG DEUTSCH, ESQUIRE
`Fish & Richardson PC
`60 South 6th Street
`Minneapolis, Minnesota 55402
`
`
`ALSO PRESENT, OBSERVING:
`
`
`DOROTHY WHELAN, ESQUIRE
`JENNIFER HUANG, ESQUIRE
`GRACE KIM, ESQUIRE
`JOSEPH A. HERRIGES, ESQUIRE (pro hac vice)
`Fish & Richardson PC
`3200 RBC Plaza
`60 South 6th Street
`Minneapolis, Minnesota 55402
`
`
`
`The above-entitled matter came on for hearing on Tuesday, June 29,
`2021, commencing at 3:36 p.m. EDT, by video/by telephone.
`
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`PGR2020-00055
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`P R O C E E D I N G S
`- - - - -
`JUDGE KINDER: This is Judge Kinder, and we welcome you to the
`afternoon session for PGR2020-00055. Again, the parties are LKQ
`Corporation and Keystone Automotive Industries as the Petitioner and GM
`Global Technology Operations as the Patent Owner.
`If I could get an appearance for the Petitioner, please.
`MR. IRWIN: Barry Irwin of Irwin IP for the Petitioner, LKQ.
`JUDGE KINDER: All right. Thank you, Mr. Irwin. I hope you’ve
`got some steam left. This is your third one in a row.
`All right. For the Patent Owner?
`MR. DEUTSCH: Thank you, Your Honor. This is Craig Deutsch on
`behalf of GM Global Technology Operations.
`JUDGE KINDER: All right. Mr. Deutsch? Did I say that correctly?
`MR. DEUTSCH: Correct.
`JUDGE KINDER: Okay. Welcome. All right. The proceeding will
`be 30 minutes per side. The Petitioner will go first and then the Patent
`Owner. Petitioner, you can reserve time as you see fit or for a brief rebuttal
`and then Patent Owner has a right to reserve a time for a very brief sur-
`rebuttal.
`As we’ve mentioned a couple times already, but just as a reminder,
`please give the exhibit number when you present an exhibit and give us just
`a second or two to get to that exhibit and we’ll follow along with you as
`you’re presenting.
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`I think everything else has already been discussed in our prior
`proceedings today. Mr. Irwin, how long do you want for rebuttal -- reply
`time on this hearing?
`MR. IRWIN: Five minutes would be great.
`JUDGE KINDER: All right. Mr. Deutsch, how long would you like?
`MR. DEUTSCH: Thank you, Your Honor. Three minutes would be
`
`great.
`
`JUDGE KINDER: All right. Let me check. It looks like we are
`ready to go. Mr. Irwin, I will let you begin your opening. If I can get one of
`my colleagues to also track time, I’d appreciate it. Thank you. When you’re
`ready.
`MR. IRWIN: Thank you, Your Honor. Turning to Slide 2, Slide 2
`depicts the '508 patent figures. Again, we’ve highlighted the patent date of
`April 2018, which is a little more than three years ago, and vehicle design
`was quite sophisticated long before then.
`Turning to Slide 3, Slide 3 depicts the prior art that we relied upon in
`chronological order and the commercial embodiment of the '508 next to it.
`It’s pretty easy to see where the '508 is valid in that context. The Leopaard
`skid bar that’s shown in the middle is just as rugged, just as chiseled, just as
`bumper-like, and just as three-dimensional as '508 embodiment.
`Turning to Slide 4, Slide 4 depicts a closeup of the Leopaard skid bar.
`Now to be clear, the prior art that we relied upon is for the skid bar itself as
`well as the publication that depicts that skid bar. GM’s argument that the
`vehicle that’s in the publication is different is irrelevant. The skid bar is the
`same. And in any event, the vehicle is actually the same.
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`Changing at the wheels, using a different headlamp, using a different
`trim, does not change the fact that --
`JUDGE KINDER: Mr. Irwin, this is Judge Kinder. Can you clarify
`that position? Are you relying upon an exhibit as prior art publication or are
`you relying upon the vehicle itself as some type of on sale bar?
`MR. IRWIN: I’m relying upon the -- both. I’m relying upon the skid
`bar itself and I’m using the publication as evidence of what that skid bar
`looked like. It’s an on-sale bar, if you want to call it that. It’s the actual
`item that was available for the critical date, that actual item was publicly
`known, was offered for sale. The actual item is evidenced by the publication
`itself. And that -- and also, I’m relying upon the publication and that skid
`bar.
`
`JUDGE KINDER: Does that create issues with anticipation, the
`single reference general rule for anticipation? Ignore obviousness --
`MR. IRWIN: No, it doesn't.
`JUDGE KINDER: -- for one minute.
`MR. IRWIN: No, both of them separately are anticipatory references.
`Both of them separately are obviousness references. But we’re relying upon
`one reference for two assertions of anticipation and two assertions of
`obviousness. One thing.
`You could -- it’s the skid bar itself, on sale, publicly available before
`the critical date, proven up by the references. Really, it’s academic.
`Whether you want to talk about the skid bar itself or the publication, it
`doesn’t matter. They’re both depicted, both the same. Same actual figure.
`So, I think it’s academic. But to be clear, our position is we’re relying
`upon the skid bar as opposed to the publication. The skid bar depicted in
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`that publication anticipates the '508 patent and it -- because it’s substantially
`the same, virtually basically the same and, therefore, goes to obviousness.
`Turning to Slide 4 -- I’m sorry, turning to Slide 5, Slide 5 depicts the
`thumbnail images of the Leopaard and corresponding images from the '508
`that demonstrate the similarities. I should just mention a few of the design
`features that lead to the conclusion that the designs have an overall -- have
`the same overall visual impression. They both have a substantial front-
`facing surface that occupies a similar fraction of the skid bar height.
`They both have an upwardly facing top surface with a plainer contour.
`They both have a lower surface that slopes downward and curves rearward
`with the slope flattening about midway back. They both have a set of four
`recesses cut out in the front-facing surface and the lower-facing surface that
`form trapezoidal apertures in both the front-facing surface and the bottom
`surface. These recesses are both formed in both situations by two triangular
`slanted facets on the side, sandwiching a rectangular potion in between.
`And they both have a larger gap between the middle two recesses than the
`gap between the other two recesses.
`Turning to Slide 6, this tribunal’s initial reaction is that the overall
`similarity was correct and it’s inconsistent with GM’s arguments. As you
`found there, both designs have noticeable curvature from side-to-side with
`the center extending further forward. They have substantial rectangular
`vertical front portions that curve rearward and terminates in a top portion.
`The bottom angles rearward and also curves rearward. And they have -- the
`most pronounced features in both is that they have top and bottom portions
`with four evenly spaced recesses set between them.
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`Turning to Slide 7, GM’s expert acknowledged that he basically
`didn’t even consider the similarities. And in Slide 8, he couldn’t even
`explain what it meant to be basically similar. So, again, his opinion is of
`little value.
`Turning then to the differences that GM alleges exist on Slides 9 and
`10. We both summarized those alleged differences and refuted them in
`Slides 9 and 10. We go into more detail as to the first five in the subsequent
`slides. But first with regard to the differences, they say the recesses had a
`different shape. They say the front surface has a different shape. They say
`the top surface has a different shape. Turning to Slide 10, they say the lower
`surface does not extend past the recesses and that the curvature is different.
`At the bottom of Slide 10, I want to address, take a little more time, I
`don’t have a specific slide as to this one, but I want to address the side
`portions and address the contention that one can’t see the side portions in
`Leopaard. Our position is regardless of whether one can see the side, it does
`not change the substantial similarity or basic similarity analysis. It doesn't --
`and, specifically, the designer of ordinary skill in the art would think that
`they’re basically the same because you would know that those side portions
`are there. But regardless, they’re basically the same even absent those
`features, as we’ve talked about numerous times in many cases, when patents
`anticipated are obvious like reactions (phonetic) for features.
`Turning to Slide 11, and the recesses. There was extensive,
`unrebutted expert testimony as to the similarities in the recesses.
`Specifically, our expert explained that the recesses are similar because
`they’re subtractive in nature, they leave this narrow band of front-facing
`material above each, that they're trapezoidal with chamfered facets on each
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`side, they’re longer than wide, they have a longer than wide central portion,
`and they have this identical uneven spacing. In order to assert the recesses
`are different, GM compares different views, again, to assert that the recesses
`were different.
`Similarly, with regard to front-facing surface, the front-facing surfaces
`are similar. Again, it was unrebutted that the front-facing surface shared
`similar height, similar orientation, similar intersection with the top surface,
`that they had four trapezoidal cutouts and they leave space above those
`cutouts, and that there’s a visible surface separating the tops of the cutouts
`from the top of the car. I think that's the (inaudible) of what was said about
`the space above the cutouts.
`What GM does to rebut this is they use a comparison of the
`commercial embodiment. They doctor a photo of the commercial
`embodiment to make it look like that front-facing surface is much larger
`than it actually is. If you look at the actual patent drawing and compare it to
`the actual skid bar, you can see the front-facing surfaces are very similar in
`height, orientation, et cetera.
`In their Sur-Reply, they argue with attorney argument again that, well,
`we failed to rebut that the height makes up one-third of the -- that the front
`makes up one-third of the height and we failed to rebut the angled
`relationship, but that’s irrelevant because those are not differences between
`the skid bar, the Leopaard skid bar and the patented skid bar.
`In terms of the, turning to Slide 13, the top surfaces, both designs
`feature a similar top surface. And again, GM’s argument that we didn’t
`dispute that the patent pertaining to top surface is just a non-sequitur. We
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`didn’t dispute that it has a top surface because we said that the Leopaard
`skid bar has a top surface as well.
`And turning to the lower surface in Slide 14, again there’s unrebutted
`testimony that that lower surface shares numerous similarities: similarities
`in the slope, similarities in the convex curvature, and similarities in how it
`changes in pitch angle as the surface extends rearwards.
`JUDGE KINDER: Hi, this is Judge Kinder.
`MR. IRWIN: Judge.
`JUDGE KINDER: Aren’t these impressions by your experts really
`best guesses? Because we’re looking at the evidence that you’ve presented
`for the Leopaard, and we just don’t have a bottom view. Is that right?
`MR. IRWIN: Well, I don’t agree with that, Your Honor, no. I think if
`you -- for example, if you look at Slide 14 and Exhibit 1010, at 1, you can
`certainly see the bottom view will look similar.
`Can you see behind the recesses? If that’s your question, no, you
`can’t really see very well behind the recesses. But you can see that bottom
`surface and you can see how that bottom surface has a very similar slope.
`You can see the change in the curvature. You can see the convex nature of
`the bottom surface. And you can also see how it changes the pitch angle.
`So, no, I don’t think that it’s conjecture by our expert at all.
`Now, I agree, we agree that it’s hard to see behind the recesses on that
`bottom edge. But our position is we know that there’s a strip back there
`because you can’t see any serration. Mr. Hill testified that he thinks that
`there’s a strip back there due to the lack of serration behind -- you can’t see
`that, for example, in Exhibit 1010, at 1. GM’s response to that was simply
`attorney argument. Their expert didn’t say anything in their Sur-Reply
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`about this. They just submit attorney argument that says, well, there’s
`another way you could do it. There’s no evidence that there’s another way
`to do it except for attorney argument.
`And so, even if there was the absence of that material behind those
`recesses, here we’re talking about -- if you want to talk about minutiae. I
`mean, you just heard Mr. Herriges talk about minutiae. Oh, everything is
`minutiae. Every difference is just minutiae. That difference would not
`change the substantial similarity between (audio skip) critically would not
`change the convex similarities between (audio skip).
`And turning to Slide 15, with regard to the curvature, as the Panel
`already found, there is curvature in the Leopaard skid bar. GM tries to use
`an orthographic image that exaggerates that curvature. But as you see in
`Figure 1 and Figure 2, it’s very subtle.
`GM also tries again to use this pretense that they got a smoking gun
`admission from our expert where he says he doesn’t know how far the
`Leopaard sticks out. If you read his testimony, he says that I really don’t -- I
`don’t know how far either the Leopaard or the patented design sticks out.
`And so, that’s not a smoking gun admission.
`That leaves just the vertical side edges. And the vertical side edges do
`not distract from, again, the substantial or the basic similarity. And they are
`taught by the Equinox, which has vertical side edges.
`If you turn to Slide 18 --
`JUDGE KINDER: Could I ask a real quick question? I’m sorry to
`interrupt your flow.
`MR. IRWIN: That's all right.
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`JUDGE KINDER: There’s some dispute for anticipation on who the
`ordinary observer is. Do you think it absolutely matters in this particular
`case which side we come out on? Will the end result be the same no matter
`which ordinary observer we pick?
`MR. IRWIN: It might. I mean, there’s certainly -- I mean, GM’s
`argument is that the ordinary observer is someone that requires absolute
`identicality in order for there to be anticipation. If that’s the ordinary
`observer that you’re selecting, then it would matter.
`Our position on this is, though, that the ordinary observer, and it’s
`clear and we discuss it on (audio skip), the ordinary observer -- what’s been
`misrepresented, what -- I think why we’ve gotten confused on this is that
`GM acts like the ordinary observer is someone who’s purchasing these very
`items. I mean, that’s not the case. What the case law says, the ordinary
`observer is someone who’s purchasing items of this type. Someone who is
`purchasing items of this type, not someone that has already purchased the
`items and -- once and is looking to replace it. They're someone who
`purchases this type of item.
`So, they’re not an expert. They’re not looking for identicality.
`They’re looking for an ordinary person, a reasonable person. Are they going
`to think that these are substantially the same? And for them to, you know,
`now make this ordinary observer into someone who’s looking for precise
`identicality misrepresents the law and, you know, the law is pretty clear.
`We’re not talking about an expert. We’re not talking about a retail
`purchaser. We’re talking about an ordinary observer.
`And just like in the Marine Coast Windshield case, the Court said the
`ordinary observer is the person who bought the boat, even though we’re
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`talking about a replacement windshield. The ordinary observer is the person
`who bought the boat in the first instance, not somebody who’s looking for a
`replacement windshield.
`I don’t know how much time I have left.
`JUDGE KINDER: Okay, thank you. You’ve got about 10 minutes
`left for your opening.
`JUDGE DANIELS: Mr. Irwin, I just wanted -- this is Judge Daniels.
`You know, this is an interesting question that the Panel’s been discussing,
`this issue of the ordinary observer. So, I understand the -- I haven’t -- the
`boat case was a District Court, I think. What would seem to me was the
`more recent Hafco Foundry case that I think that you cited. And in there it
`seemed like the Federal Circuit sort of blessed a broader, you know,
`definition of the ordinary observer in that it was anyone who would purchase
`and use the device. And, you know, I think that goes to some of the issue
`here where we can have -- it doesn’t have to be one person or the other. It
`could potentially be both. In other words, I mean, the person who’s buying
`the item of a type is -- the ordinary purchaser of a vehicle, is he the one
`who’s going to go buy the replacement part?
`MR. IRWIN: Well, the type of -- what we’re talking about is the skid
`bar. The ordinary observer is the first person who’s purchasing the skid bar.
`People buy skid bars when they buy vehicles. And so, the purchaser of the
`vehicle is going to buy this part as part of the process of buying the vehicle.
`So, that’s why I say that’s the important part, purchasers of parts of this type.
`Those people are buying fenders, they’re buying a collection, but they’re
`also buying skid bars and fenders and hoods.
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`And so, I think it’s pretty clear that the ordinary observer is the retail
`purchaser. It should be. And if it isn’t, then what you’ve done, we’ve put --
`create two classes of design patents. There are design patents for
`replacement parts and then we have design patents for everything else. And
`in order to invalidate (phonetic) a design patent on a replacement part we
`have to show absolute identicality because, you know what, people want to
`put their car back together. But when it comes to everything else, it just has
`to be substantially the same. And I just don’t think that we should be -- I
`think it invites reversal that we create this special class of design patent
`where in order to anticipate you have to show absolute identicality because
`of the repair practices that are imposed by law.
`And in reality, the person who’s repairing a part doesn’t care what the
`thing looks like. All he does, he goes into the repair shop and says I want it
`back the way it was regardless of how it looked. Looks are really not critical
`other than the fact that he wants it to look the same. Whether or not he has a
`back edge, it’s not relevant. Whether or not, you know, it has a defined
`outer border, they don’t care. They want it back together and the law says
`they want it back together.
`JUDGE DANIELS: So, the --
`MR. IRWIN: But they could get --
`JUDGE DANIELS: Excuse me. So, the ordinary observer in this
`case is, you’re pretty set on -- your position, I guess, is that it does not
`extend to that person who’s a -- for instance, who’s going to do the repair,
`who wants and knows exactly the specific dimensions of the part; that the
`ordinary observer is more reasonable and does not need to have that sort of
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`skill of looking at a part as someone who just buys replacement parts for
`them.
`
`MR. IRWIN: I agree exactly. I think the Pacific Coast Marine is
`analogous. There they said, you know, it’s not the retail -- it’s not the repair
`shop. It’s the original purchaser of the boat.
`And, you know, other cases say, no, it’s not an expert and it’s not a
`patent owner. Well, why do cases say not experts, it’s not patent owner?
`It’s an ordinary, reasonable person who purchases items of this type. And
`items of this type are purchased in the context of vehicle purchases.
`JUDGE DANIELS: Thank you.
`MR. IRWIN: Thank you. I don’t know what kind of time I have, but
`the only other thing I really wanted to talk about was the combination.
`JUDGE KINDER: Sorry, this is Judge Kinder. You have five
`minutes before you enter your rebuttal time.
`MR. IRWIN: Oh, okay, I have plenty of time. For some reason I’m
`doing better -- doing better the third time.
`Turning to Slide 18 then, it should be beyond dispute that the
`Leopaard and the Equinox are related. The designs, as you can see on Slide
`18, are basically similar and the skid bars are all in similar vehicles. LKQ’s
`experts further provided specific motivation to modify the Leopaard to have
`vertical sidewalls as shown in the Equinox. They provided specific
`testimony as to why it would be obvious or why there would be motivation
`to make the sidewall vertical.
`For its part, turning to Slide 20, GM’s expert basically denies that any
`combination is reasonable. He was asked, “So are you saying,” Slide 20,
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`“are you saying a designer of ordinary skill in the art would not take
`elements from one skid bar and apply them to another skid bar?”
`Answer, “To create a third solution?”
`Question, “Yes.”
`Answer, “Not in my experience. I certainly wouldn’t do it, and I just
`think that that would be wrong.”
`Then, “In my experience, again, I would never call for, I’ve never
`done it, and I’ve never witnessed it where specific design elements were
`directly applied to another design for a solution that I can recall.”
`So, he basically says there’s no combination at all that makes sense.
`Of course, that’s inconsistent with both common sense and it’s inconsistent
`with the law.
`I believe I will save the rest of my time for rebuttal. That’s okay?
`JUDGE KINDER: Yeah, that’s fine. I’m sorry, I was on mute and
`trying to turn it off. You have about 27 minutes left, I believe, a little bit
`more than 27 -- or, I'm sorry, 7 minutes. Excuse me.
`MR. IRWIN: Yeah. I jumped ahead and covered a lot of stuff that I
`had planned to cover. I’ll go ahead and save the rebuttal if that’s okay. If
`you want to cut it, you can do that.
`JUDGE KINDER: Yeah, that is fine. All right, thank you, Mr. Irwin.
`Mr. Deutsch for the Patent Owner, whenever you’re ready, we’ll go
`ahead and start your clock.
`MR. DEUTSCH: Great. Thank you, Your Honors, and may it please
`the Board. I’d like to turn right to Slide 3 and then get into a couple of
`issues that we’ve been talking about around the ordinary observer standard
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`and the threshold issue of the anticipation ground to reliance on multiple
`references.
`And starting at Slide 3, there’s really no dispute here that nearly every
`feature visible in the '508 patent design is significant to overall appearances.
`LKQ characterizes the top surface, the front surface, as well as the overall
`curvature and its recesses as cardinal features. And yet, many of these
`features that create this overall appearance in the claimed design are missing
`in the prior art.
`JUDGE KINDER: Do you agree at least that the features that seem to
`draw the most attention, and we were talking about this in a recent case, are
`the recesses that would be most prominent to the ordinary observer and to
`the designer of ordinary skill?
`MR. DEUTSCH: Yeah, I think the recesses are prominent features in
`these designs. And it’s important to look at, you know, the -- how they
`impact the overall appearance, how do they relate to other aspects of the
`design, and the specific aspects of these recesses that contribute to the
`overall appearance. And that’s something I can jump to right away.
`In the later slides, Slide 18, we discuss this specific appearance of the
`recesses that have a certain perimeter shape, substantial depth, side surfaces
`that have at least a relationship with the side surfaces, the outer side surfaces
`of the skid bar. And in particular, the recesses include parallel top and
`bottom edges of nearly identical width and three edge segments on the side
`that first angle outwardly from the top edge and then it angles back towards
`the bottom edge.
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`And the shape of the Leopaard recesses is just, it’s different, whether
`you’re looking at the front or the perspective views. The Leopaard lacks
`that distinctive recess shape of the claimed design.
`And so, I think --
`JUDGE KINDER: Can you elaborate? I’m sorry, this is Judge
`Kinder. Can you elaborate on that?
`MR. DEUTSCH: Yeah. Yeah.
`JUDGE KINDER: Because looking at it, the drawings are not exactly
`clear, but how are the side edges, for example, distinct?
`MR. DEUTSCH: Sure. So, looking at Figure 2 of the claimed
`design, for example, and the side edges of the recess, you know, we see
`three segments as it slopes outward and then down and then in again. And
`that’s something that both experts have touched on. And Mr. Peters has
`explained the significance of that shape and the difference compared to the
`Leopaard. And you have Mr. Hill as well commenting that with respect to
`the Leopaard, you just can’t see that well the shape of the recess on the
`sides. And so, that outer perimeter shape is different, whether you’re
`looking at the front or looking from a perspective view.
`JUDGE KINDER: So, we don’t know if the Leopaard has the three
`angles? Is that primarily the side difference?
`MR. DEUTSCH: That’s -- yeah, so that’s the difference on the side.
`And that’s something that Mr. Hill has noted as well. That’s at pages 79 and
`80 of Mr. Hill’s transcript commenting that he just can’t tell what the shape
`of the recesses are on the bottom portion. And you can’t see a perimeter
`shape of three segments like the '508 patent.
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`And this is something, you know, when we’re talking about whether a
`feature is the most prominent feature or a cardinal feature, it’s not merely the
`presence of recesses that contribute to the overall appearance. It’s specific
`aspects of these features.
`JUDGE KINDER: Okay, thank you.
`MR. DEUTSCH: And so, there’s -- and, you know, taking a step
`back and again talking about the significance of these features to the
`observer in the context of vehicle parts, on Slide 4 we see what LKQ has
`acknowledged in other proceedings about consumers in this context. And it
`makes sense that the appearance of vehicle components matter to consumers.
`This is one of the more expensive purchases that consumers make. And
`these principles apply whether or not the purchase is of a new vehicle or,
`you know, vehicle components, the skid bar itself.
`LKQ’s point in these other proceedings is that it’s not good enough
`just to provide a functional part. The look of it matters to consumers. That’s
`important. And the specific aspects go to the overall appearance.
`And, you know, to try to address the question about the ordinary
`observer, I don’t think it matters in this case. The result is the same whether
`we’re talking in the context of a vehicle purchaser, a purchaser of the part
`alone. All of the claimed features are visible and significant in either case.
`And we see the relevant authority from the Federal Circuit saying that the
`ordinary observer is not limited to only a single phase, such as when the part
`is installed in the vehicle. Some of these cases are shown on Slide 5. And
`the fact finder must consider all of the ornamental features illustrated in the
`figures that are visible at any time during the normal use lifetime. And this
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`normal use lifetime extends “from the completion of manufacture assembly
`until the ultimate destruction, loss, or disappearance of the article.”
`JUDGE KINDER: So, I think you’re trying to politely say our
`analysis at least in the DI phase was probably off and that we didn’t give
`sufficient weight to the bottom view because, frankly, we didn’t know if it
`would even be noticeable. Is that right?
`MR. DEUTSCH: Yeah, I think. And, you know, I think the
`institutional premise on that question and the evidence, you know, we have
`evidence now on the record to address that more directly that we didn’t have
`at the time, additional testimony from Mr. Peters, additional testimony from
`Mr. Hill saying that all of those features that you see in Figure 2 are
`important.
`And so, yeah, even that bottom portion is significant to the overall
`appearance. The bottom edge of the recess, the space between the recess
`and ultimately the bottom edge of that surface of the skid bar all contribute.
`JUDGE KINDER: Do you take issue with their expert’s testimony
`that looking at kind of the serrations, they can almost infer that there’s some
`type of bottom portion that runs across the recesses?
`MR. DEUTSCH: Yeah, so I -- there’s a scenario -- there’s a few
`things I would point out about that argument. One, if we consider a scenario
`where the depth of the recess decreases as you move towards that bottom
`edge and, you know, leads to zero at that bottom edge where it meets the
`edge, there’s no serration or toothed edge, and we still have that smooth
`bottom edge with no surface below it. They don’t address that scenario and
`so there’s just speculation about what the bottom might look like.
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`And I think I heard LKQ mention that there’s no testimony on the
`other side. This was something that was raised in the reply after we no
`longer had an opportunity to present any testimony explaining that point.
`But that’s something that I think, you know, looking at the figure itself, we
`can’t see a surface below the recesses.
`JUDGE KINDER: Uh-oh.
`SUPPORT STAFF: Stand by, please.
`JUDGE KINDER: It appears we’ve frozen, if we can take a quick
`pause in the case.
`MR. IRWIN: Understood. Thank you, Your Honor.
`SUPPORT STAFF: Stand by, please. I still see them connected, but
`we don’t see video connection. Let me check back
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