U.S. PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`ALLSTEEL INC.,
`Petitioner,
`v.
`DIRTT ENVIRONMENTAL SOLUTIONS LTD.,
`Patent Owner.
`__________
`
`Case IPR2015-01691
`Patent 8,024,901 B2
`__________
`
`Record of Oral Hearing
`Held: February 15, 2019
`_______
`
`Before SALLY C. MEDLEY, SCOTT A. DANIELS, JACQUELINE T.
`HARLOW, Administrative Patent Judges.
`
`
`
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`ALLSTEEL INC.,
`Petitioner,
`v.
`DIRTT ENVIRONMENTAL SOLUTIONS LTD.,
`Patent Owner.
`__________
`
`Case IPR2015-01691
`Patent 8,024,901 B2
`__________
`
`Record of Oral Hearing
`Held: February 15, 2019
`_______
`
`Before SALLY C. MEDLEY, SCOTT A. DANIELS, JACQUELINE T.
`HARLOW, Administrative Patent Judges.
`
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`R. TREVOR CARTER
`of: Faegre Baker Daniels, LLP
`300 N. Meridian Street
`Suite 2700
`Indianapolis, Indiana 46204-1750
`(317) 237-0300
`trevor.carter@faegrebd.com
`
`ON BEHALF OF THE PATENT OWNER:
`
`CHAD NYDEGGER, ESQ.
`of: Workman Nydegger
`60 East South Temple
`Suite 1000
`Salt Lake City, Utah 84111
`801-533-9800
`cnydegger@wnlaw.com
`
`The above-entitled matter came on for hearing on Friday, February 15, 2019,
`commencing at 1:00 p.m. at the U.S. Patent and Trademark Office, 600
`Dulany Street, Alexandria, Virginia.
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`P-R-O-C-E-E-D-I-N-G-S
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`(1:02 p.m.)
`JUDGE MEDLEY: Good afternoon. This is the hearing for
`IPR2015-01691, Allsteel v. DIRTT Environmental Solutions, concerning
`claims 8, 11, 13, and 21 through 23 of U.S. Patent number 8,024,901.
`Counsel for the parties please introduce yourselves, starting with
`Petitioner.
`MR. CARTER: Yes, thank you, your Honor. It's Trevor Carter
`for Petitioner, and with me are my colleagues Tim Sullivan and Lead
`Counsel Victor Jonas. And from the client, we have the general counsel
`Steven Bradford --
`JUDGE DANIELS: Hey, Sally, can you remind them to just speak
`into the microphone, please?
`JUDGE MEDLEY: Yes, I'm sorry. That was next on my list after
`introductions, but yes, you need to speak into the --
`MR. CARTER: Sorry, I'll start again. I'm Trevor Carter on behalf
`of the petitioner, and with me I have my colleagues Tim Sullivan and Lead
`Counsel Victor Jonas. And from the client, we have General Counsel
`Steve Bradford and IP Counsel Allison Wright.
`JUDGE MEDLEY: Okay, thank you. And for Patent Owner?
`MR. NYDEGGER: Good afternoon. My name is Chad Nydegger
`from Workman Nydegger, representing DIRTT Environmental Solutions,
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`the patent owner. With me I have my partner David Todd, and also seated
`in the audience two additional -- an additional partner and associate, Michael
`Frodsham, and Rachel Perry.
`JUDGE MEDLEY: Okay, thank you. Per our January 11, 2019
`order, each party will have 30 minutes total time to present arguments.
`Petitioner, you'll proceed first to present your case with respect to the
`challenged claims 8, 11, 13, and 21 through 23for the grounds which we
`instituted trial and you may reserve time to respond to Patent Owner's
`arguments. Thereafter, Patent Owner, you'll respond to Petitioner's
`presentation.
`We'd like to remind the parties that this hearing is open to the public.
`The transcript will be entered into the public record of the proceeding.
`Please be mindful that judges Daniels and Harlow are attending this
`hearing by video link. The camera is directly behind me, and if you face
`the camera, it will appear as if you are directly facing them. So, if you look
`over there, they'll look at the side of your face.
`Also, please speak directly, as I said earlier, into the microphone so
`that they can hear you. And please also remember to mention each slide
`number as you refer to it, so that it is reflected in the record, and so that
`Judges Daniels and Harlow may follow along.
`Petitioner, you may proceed.
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`MR. CARTER: Thank you. So, going to Slide 3, just to put
`where we are in context, this panel has already decided that the majority of
`the claims in the 901 patent are invalid. Importantly, there's only one
`independent claim, Claim 1. And for that claim, it's already been decided
`that the references that we are using today were all used to invalidate that
`claim, so we don't have any analogous art issues. So, it's already found to
`be a motivation to combine. So, we have those issues behind us.
`Here on Slide 4, we show the combinations that we have, which are
`essentially Raith, which provided the modular wall system, the connecting
`strips, so that you can connect adjoining modules, along with Yu, EVH, and
`MacGregor.
`And Slides 5 through 7 show the findings of this panel and the final
`written decision on why Raith was combined with EVH. Raith combined
`with Yu in Slide 6, and Raith combined with MacGregor in Slide 7, to find
`Claim 1, which is the independent claim from which the claims that we're
`now looking at depend.
`So, jumping into the claims that we are directly addressing here,
`there is a common issue that cuts across all of the claims, and that is that the
`901 patent does not support the way that the claims were interpreted to find
`that the prior art did not meet the limitations.
`Or, said another way, there's a symmetry between the prior art that is
`used and the disclosure in the 901 patent supporting those claims. So, what
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`we are asking for out of this hearing, and in the final written decision, is
`clarity on how the 901 patent supports, or doesn't support the way the panel
`is interpreting the claims to reach the decision.
`We understand that the issue of the 901 patent not supporting, if that
`is what is found, based on what we're arguing here, that those bring up 112
`issues that this panel cannot deal with based on the rules. But we would
`appreciate clarity, so that we can have and we see the balance of looking at
`the 901 patent disclosure, compared to the prior art disclosure.
`So, starting with Claim 8 on Slide 9, the key claim language that is at
`issue is, an L-shaped slot adapted to receive and engage a substantially L-
`shaped hook. So, this claim limitation definitely requires an L-shaped slot.
`And then, the adapted to receive and engage language, we don't believe that
`there is an L-shaped hook that is positively claimed. It just needs to be
`adapted to receive and engage it.
`But the Yu reference has the L-shaped slot and the L-shaped hook.
`That's what we'll show. The institution decision said that the petitioner did
`not direct the board to where in Yu bracket 189-5 it engages connector
`bracket.
`And that's what you're going to hear from DIRTT. They're latched
`onto, you have this connector bracket, and there's nothing in the L-shaped
`hook that touches that. And the panel decision on rehearing is similar to
`that.
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`So, let's look at these brackets. So, on slide 10, on the lefthand
`side, we show, on the bottom you can see 51-5. And above that, you have
`the bracket 189-5, and we've shown in green how that creates the L-shaped
`slot. We don't think there is any dispute that there is an L-shaped slot.
`Yu also discloses many L-shaped brackets that can go into that slot.
`So, for example, in figure 17A, we have highlighted in green an L-shaped
`bracket that is going into that L-shaped slot.
`Now, let's contrast that with the disclosure in the DIRTT patent
`supporting this.
`JUDGE MEDLEY: I have a question. So, are you saying that the
`blue, in that figure the blue on the upper portion, and the blue on the lower,
`all of that is the L-shaped slot?
`MR. CARTER: Yes, I think you can look at it that way, where you
`have a fully bounded L-shaped slot. You have it on the bottom, and then
`you also, by having connector bracket 189-5, which is in that position, you
`have the boundary at the top. However, we're going to see that you really
`don't even need that bracket on top, 189-5, to have an L-shaped bracket,
`when you look at the disclosure in the DIRTT patent.
`JUDGE MEDLEY: So, what is your position? That it constitutes
`the L-shaped slot?
`MR. CARTER: It can be either.
`JUDGE MEDLEY: Where is that in your petition?
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`MR. CARTER: We have -- Well, we've consistently argued in
`many places that it is the combination of the two, and we also have a citation
`to Dr. Beaman's expert declaration. For example, what we have on Slide
`13, that Yu further teaches that the L-shaped hooks are secured in the
`channels 51-5 of Yu.
`JUDGE MEDLEY: So, your papers say it's the combination of the
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`two?
`
`MR. CARTER: That is correct.
`JUDGE MEDLEY: So then, when you just said it could be either
`one, that's not really accurate as to what your position has been?
`MR. CARTER: We've been -- Yes, we've been clear that it is the
`combination that creates that full boundary. My point is that, when I go to
`Slide 11, and we look at the disclosure in the DIRTT patent, you can see an
`L-shaped hook. So, that is what is in dashed lines in Slide 11, and then we
`have colored it in in Slide 12, so you can see that.
`JUDGE MEDLEY: Right. We're aware. Could you point to
`me in your petition where you say that the L-shaped slot is bounded by 189-
`5 of Yu and the lower 51-5? Where is that in your petition? Particularly,
`I'm looking at page 43 of your petition, where you have the claim charts.
`MR. CARTER: So, page --
`JUDGE MEDLEY: I don't see it there. It just says Yu discloses
`cross-rails that include channels that receive hook-like ends of connector
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`brackets. So, the channels receive the hook-like ends. Cross-rails and
`associated mounting brackets include connectors for connection to the T-
`shaped leads of cover pads and tiles.
`So, I don't see anything there that accounts for the L-shaped slot.
`MR. CARTER: Yeah, so the cross-rail, going back, is 200, so that
`is what is on the bottom of 51-5, and the mounting bracket --
`JUDGE MEDLEY: So, where is it in the petition though? I'm
`trying to find where are the original papers where you clearly indicate to us,
`or more importantly to your opponent, so they would know what your
`position is, that 189-5 and the channel, that those together are what you are
`saying meets the limitation of the L-shaped slot.
`MR. CARTER: So, we point out -- So, on page 39, under Claim 8,
`six lines down, it says, as previously discussed, the cross-rails and associated
`mounting brackets, figure 30, reference 189-5 of Yu, provides such features.
`JUDGE MEDLEY: But there are a lot of features in Claim 8.
`Where does it say that you're relying on the combination of those two things
`to make the L-shaped slot?
`MR. CARTER: Well, at the beginning of the section for Claim 8, it
`says, Claim 8 requires a cantilever trans-channel stringer with a central,
`horizontally extending channel portion, with a generally L-shaped slot for
`receiving and engaging L-shaped hooks on wall accessories. The channel
`stringer has an upper portion for tile support.
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`So, when it's talking about what I just read as previously discussed,
`the cross-rails and associated mounting brackets provide such features, those
`are the features to which it is referring.
`JUDGE DANIELS: Counsel, does your discussion in the petition
`bridging page 34 and 35 help you? I mean, there's the same -- I see figure
`17A you reproduced there. And what the panel is concerned with is well
`you know obviously, if this wasn't sufficiently described to us back then, we
`can't -- then it's a new argument.
`I feel like this is close at 34 and 35. I mean, you're talking about
`the L-shaped hook, which I get. We all see that, but I can't -- Would you
`agree that 34 and 35 are supposed to discern for us the L-shaped slot?
`MR. CARTER: So, let me look at -- I'm on page 66, paragraph 155
`of the Beaman Declaration, which we cite, and --
`JUDGE DANIELS: Hang on. Before you go there, just look at
`the petition for me. We can go to the Beaman declaration in just a second.
`And the reason is because you have this figure in your Slide 10 that you
`show very clearly the green, which I don't think we're having any trouble
`with, the L-shaped bracket.
`MR. CARTER: Right. So you're at -- we have -- it says, the
`channels 51-5 of Yu's cross-rails are L-shaped, and it is clear from Yu that
`the hook-like projections are L-shaped hooks of Yu's connector brackets,
`which support furniture components, are received in channels 51-5. And
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`then we go on to say the cross-rails and the mounting brackets mounted to
`the cross-rails combine to define channel stringers.
`So, Judge Medley, I apologize. In response to your earlier
`question, we did specifically say that the channels of Yu's cross-rails are L-
`shaped.
`JUDGE MEDLEY: But you just said 51-5 are L-shaped, correct?
`MR. CARTER: That's right, which is the bottom part, which is not
`
`--
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`JUDGE MEDLEY: But then you told me earlier that you're relying
`on 51-5 and 189-5.
`MR. CARTER: Right. And I think that we can't rely on both
`because, when you look at the DIRTT disclosure, that bottom part has the L-
`shape. And as we'll see in the DIRTT disclosure, they don't have an upper
`boundary on what it is that they refer as their L-shaped bracket. And in Dr.
`Beaman's declaration, he uses what we have as the modified excerpts, Figure
`30 Yu, that comes right from his report, below paragraph 155.
`JUDGE DANIELS: So, you would argue -- So, you are arguing --
`You're saying both, and you mean that if we look, for instance -- I think
`Figure 17A as you have it brought up is a good example. You would like
`us to interpret this drawing, which does not show the upper part, the 189
`reference, but just shows the channel, that that is an L-shaped channel,
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`similar, or like we see in the claim -- in the drawings that are associated with
`the 901 patent?
`MR. CARTER: That's correct. So, looking at Slide 11 -- So, if
`you can see my hands, in the Yu patent, you have the hook has the short end
`of the L pointing down, and the long end of the L extending out. And just
`based on the weight, the weight is going to be pulling that hook down. So,
`you have engagement with the small part of the L and the bottom part of the
`long part of the L.
`When you look at what DIRTT discloses, looking at Slide 11, all
`they have is, now you have it flipped upside-down. So, instead of in Yu,
`where it's like this, with the small part down, in DIRTT, you just simply
`have it flipped up. And you don't have anything bounding the top of the
`long side of the L here. Once again, the only engagement is the small part
`of the L and the bottom of the long part of the L, which once again makes
`sense because you're going to have the weight of that pulling down.
`In the DIRTT patent, if you take that L-shaped hook out, I don't
`know that anybody would say that's an L-shaped slot. I mean, it's a fish-
`hook or a backward J. So, if the finding is is that L doesn't have an L-
`shaped slot, I don't see how you can find that DIRTT has disclosure
`supporting an L-shaped slot.
`And that's our main contention here in responding to the institution
`decision, which is what we're doing. In the institution decision, we think
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`that, however the claim was interpreted, to say that Yu does not have an L-
`shaped slot that is adapted to engage an L-shaped hook, there isn't support
`for that interpretation from the 901 patent.
`Now, DIRTT, possibly understanding that they have an issue with
`this in their disclosure, they are introducing a new claim limitation for
`cantilever channel stringer, and they want to read into the claim that the
`stringer has to provide support, not just for a wall accessory -- which is all
`that the claim says, the claim only says a wall accessory -- they now want to
`read in that it has be a cantilever wall accessory, allowing the other end of
`the wall accessory to hang free.
`So, first, just as a matter of grammar, cantilever is an adjective for
`channel, or stringer, or both. And what you have when you look at the 901
`patent, going back to Slide 11, is you have this stringer that is going to be
`coming off the wall, and then extending out, so that stringer, and the channel
`defined in the stringer, does extend to a free end.
`And so, possibly that's what is meant by cantilever channel stringer,
`which I don't think changes the outcome in how you look at the prior art in
`the case because, looking at Slide 10, the same is true of Yu, whether you're
`looking at 51-5, or 51-5 plus 189-5, as the L-shaped slot.
`So, we don't think DIRTT's claim construction is proper, that there is
`support to read those additional limitations into the claim.
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`Alright, moving to claims 11 and 13 with EVH, the key language is a
`structural extrusion to engage surface of said at least one module. The
`institution decision said that we have not accounted for the claimed
`structural extrusion limitation.
`Well, here, as we show in slide 17, this is once again a disclosure
`issue. There is an embodiment in the 901 patent that's in Figure 16. And
`that embodiment clearly says that the level or assembly is received into
`channels formed in the module's lower-most extrusion.
`In Figure 16, I don't think there's any dispute that there is not a
`separate structural extrusion, and DIRTT doesn't contest that. DIRTT has
`not said anything that Figure 16 is not covered by the claim, so that means
`that the structural extrusion can be one and the same as the structural
`components of the module itself.
`And we think the reason why DIRTT is taking this position of not
`contesting this is that they want to be able to enforce the patent to say that
`you don't have to have a separate structural extrusion, separate from the
`vertical frame that the leveler interacts with.
`So, once again, getting back to the point of clarification, if the
`panel's decision is that you have to have a separate structural extrusion,
`something that's separate from the vertical end frame that it interacts with,
`we just ask for clarification, so that we know that Figure 16 is not an
`embodiment that is covered by the patent.
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`Now, the next issue that is raised, and is raised clearly, is roll
`forming, and the claim limitation is that the leveler is interacting with the
`structural extrusion. We did -- We were allowed to, and we did build a
`record in the first proceeding, both in the initial petition and in the
`declaration, where counsel for DIRTT asked Dr. Beaman questions -- that is,
`cross-examination -- and the responsive answers to that cross-examination,
`that is now evidence in this proceeding.
`There is no motion to move to strike that as nonresponsive. It was
`clearly responsive, and we have cited that testimony in our papers, and once
`again on Slide 18. So, the point of that is that the testimony is that the
`decision to use roll forming, versus extrusion, is just based on an economic
`how many parts you're going to make. And a person of ordinary skill in the
`art knows that, otherwise, those two are interchangeable.
`Claim 13, we don't think there's really a separate issue on that that
`the parties have raised, so I'm going to skip over that unless there are any
`questions.
`For MacGregor, and looking at Claim 21. So, the claim language is
`a moveable, reconfigurable wall unit, of Claim 1, wherein said vertical end
`frame depth is extended to provide a deeper wall.
`So, similar to the 112 issues that we've talked about earlier, of
`support, we think one of the issues here might be, you know, are the terms
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`extended and deeper? Are those definite terms that we can understand and
`apply?
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`The institution decision said, to the extent that either Petitioner or
`Mr. Beaman mean that extending the vertical side-frame would have been
`obvious, we do not find any evidence to support such a conclusion.
`So, once again, similar to what we looked at with Claim 8 and Claim
`11, we think that we need some clarity here on what is the claim
`construction that is leading to this decision. The only disclosure that
`DIRTT points to supporting this claim limitation is what we have on Slide
`22. The depth or thickness of the module can be selected by varying the
`width of frame 12. It goes on to say, for example, as will be described
`below, the modules can house a rear projection or digital video system, and
`the greater depth is needed to enclose the componentry.
`Well, below and in the figures, there isn't any more discussion to
`give us any guidance on what this means, other than you have a wall that is
`deep enough to house this componentry.
`So, when we're looking at what does, going back to Slide 21, what
`does this claim term mean -- So, we think there are three options. One
`option is the option that we think is in play, and that's because we're just
`claiming a wall here. It's just talking about the vertical end frame depth.
`Said vertical end frame depth is extended, and that's referring back to Claim
`1, so we're just talking about a wall.
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`Somebody is deciding when they are designing that wall that they
`want that wall to have a certain depth that is deeper relative to other walls
`that they know exist, not relative to other walls in the system. That is, if
`you have a wall, and you want to house something, or you need more space,
`you just make it deeper.
`So, we think that is one claim interpretation, and that is clearly
`shown in MacGregor because MacGregor shows the walls that house the
`same componentry, or even something deeper, such as the storage cabinet.
`JUDGE MEDLEY: Did you propose a claim construction for any
`of that?
`MR. CARTER: We did not because we think that this is -- We
`think that, when you look at this, to the extent that you can understand
`extended and deeper -- And once again, we acknowledge that those might be
`112 issues -- but when you look at that in view of the sparse disclosure in the
`901 patent, the MacGregor patent has the exact same disclosure. It houses
`the same componentry, and it also shows the storage cabinets where it is
`going to have a deeper wall that houses those components or what is stored
`in the cabinet.
`Now, the second claim interpretation could be -- and if we're looking
`at the institution decision, where the word extending is used instead of
`extended, is that you have a single frame member, and that single frame
`member can be moved, whether it's telescoping or maybe extended.
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`And we acknowledge that we don't have anything in the prior art that
`shows that you can take a single frame member and say I can take this frame
`member and somehow widen in, deepen it. And when you look at the
`support that they have in the 901, where it says the depth or thickness of the
`module can be selected by varying the width of the frame, maybe that's what
`this is, is that, for that module, you can vary the width -- you can select --
`you can vary the width of the frame, similar to the way that I can go to my
`iPhone and I vary the brightness, I can select the brightness by varying what
`setting I have on my phone.
`And so, that's number 2. If that's the claimed construction, we just
`ask for clarity that that's what it is, and we acknowledge the prior art doesn't
`have something that is telescoping or you're taking that and extending it.
`The third would be that it is a -- you know, that it's part of a wall
`system, where you have, you know, a glass wall that is thinner, you know,
`the size of what we would see as glass walls in a system, or a solid panel
`wall that's thinner. And then, you have a deeper wall module that houses
`this electronic componentry. So, we don't think that that is what Claim 21
`does because it doesn't talk about anything about one wall being deeper
`relative to another wall. It's just claiming a single wall.
`But if that is the claim interpretation, then that is -- that's what we
`have, looking at Slide 25, the combination of Raith and MacGregor, that's
`what Raith is. Raith, for example, in Figure 13, shows you can have the
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`glass, you can have the solid panel, you can have the door. And then in
`MacGregor, it's known to a person of ordinary skill in the art, oh, if I want to
`have a storage cabinet or I want to be able to have a module stored, I can do
`that. And that's just very elementary.
`So, unless there are any questions, I'd like to reserve the balance of
`my time, which is five minutes.
`JUDGE MEDLEY: Okay, thank you. I don't have any questions
`for you. Any questions?
`JUDGE HARLOW: No, thank you.
`JUDGE MEDLEY: Okay.
`JUDGE DANIELS: I have one quick question, sorry. It takes me
`a second to hit my unmute button because I've been getting some feedback.
`Counsel, I just have a quick question about on the deeper -- this issue
`of whether they're deeper or wider. I'm looking at Figures 17 and 18 of the
`901 patent. Is that what they're talking about here? I mean, here they've
`put a media section -- Also, if I look at the figure --
`MR. CARTER: Yes, I'm familiar with that. You're right. And
`that is the extent of their disclosure. So, when we look at Slide 22, which is
`the disclosure that DIRTT points to, and they give the for example, as will
`be described below, this is the extent of the as described below, is in Figure
`17, which is -- It doesn't show anything. You know, what does that mean,
`by having the deeper wall, other than it's deep enough to house the
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`componentry? Which, when you look at our Slide 23, Figure 11 in
`MacGregor, that is clearly disclosed to house the same componentry.
`And then, I think even more so when you look at our Slide 24,
`looking at figures 1U and 1V of the storage cabinet, that that has to be deep
`enough to hold that.
`So, once again, as I started out at the beginning, we think that there
`is an issue of the disclosure in the 901 patent and what support that provides
`for these claims, because we think, based on the symmetry between the prior
`art and the disclosure, that the prior art needs to meet the claims, or the 901
`patent does not satisfy 112 to support its own claims.
`JUDGE DANIELS: So, MacGregor -- You're just saying
`MacGregor can make its -- It's funny because I can't -- You never point to
`anything - - I'm looking at Slides 23 and 24. I mean, there's nothing in here
`that says that it gets deeper. It just seems to say that, well, it's deep enough
`so that we can put a storage facility or accessory unit in the wall. And to
`do that, we just have to make it some depth, right? I mean, can't they just
`make it deeper?
`MR. CARTER: Well, but that's what the claim is. Once again,
`this is a dependent claim off of Claim 1. I mean, the whole show is about
`what Claim 1 -- you know, what is Claim 1, with the connecting strips?
`You go back, that's what this was all about. Claim 21 simply has, wherein
`said vertical end frame depth is extended to provide a deeper wall.
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`And the disclosure in DIRTT of what it is and what that means leads
`to the confusing, really, of what of these three -- what are the three -- you
`know, we've thought about what are the three ways you could try to interpret
`this. And one of them we agreed we don't have in the prior art, where you
`take a single frame member and telescope it.
`But the other two, the disclosure that you have in MacGregor and
`how simple and elementary this would be to a person of ordinary skill in the
`art, Raith combined with MacGregor is going to meet that limitation.
`JUDGE DANIELS: So, do you -- So, just bear with me for a
`second. If we didn't have digital flat screen technology, and you had a
`CRT television, if you wanted to hide it in the wall, you'd have to make the
`wall deeper.
`MR. CARTER: That is -- That's correct. And when you look at
`this application, the 901 is 2004, and MacGregor obviously predates that.
`So, I can remember somewhat recently, when I was moving one of my old
`TVs out of my house and trying not to kill myself, just based on how heavy
`it was -- because, you know, it wasn't just a simple, lightweight flat screen.
`So, it hasn't been that long ago that we had these very heavy televisions that
`we had to somehow mount on or in walls or in storage cabinets.
`JUDGE DANIELS: Yeah, I know. Your point is well taken. I'm
`just -- I'm sort of with you. I don't quite understand what the patent is
`saying and why that's particularly difficult or -- I understand the panel's
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`having a little bit of trouble with the references, but your explanations are
`helpful. Thanks.
`MR. CARTER: If there are any questions -- And if I could just ask,
`just so I could understand, how much I have for rebuttal.
`JUDGE MEDLEY: We'll give you that. Since we asked a lot of
`questions, how about three minutes?
`MR. CARTER: Thank you. I appreciate it.
`MR. NYDEGGER: Good Afternoon, may it please the court. So,
`we're here on remand to talk about Claims 8, 11, 13, and 21 through 22.
`Now, it's important to realize that we're here on remand not because the
`Board found that the evidence was sufficient to institution on these claims.
`In fact, it was exactly the contrary. In its initial institution decision, the
`Board denied institution on these claims because the evidence was
`insufficient to meet even the likelihood of success standard, and we also
`even had a motion for rehearing on Claim 8, which was subsequently
`denied. So, Claim 8's been looked at twice by the Board.
`Now, because of SAS Institute, we're on remand to look at these
`claims. We have trial instituted more as a procedural matter than as a
`substantive matter. And so now, what the Petitioner's faced with is it has to
`use the same evidence that it provided in the Petition that was insufficient
`the first go around to meet the likelihood standard to now meet the higher
`threshold of a preponderance of the evidence standard, and it simply can't do
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`it. The evidence just is not there, particularly when you limit the evidence
`to what was submitted with the original Petition, as the board has indicated
`would be done.
`Now, Claim 8 is not obvious because Yu doesn't teach the L-shaped
`slot that's adapted to receive and engage the hook, and it doesn't teach a
`cantilever channel stringer.
`Claims 11 and 13 are not obvious because the prior art doesn't teach
`the claimed structural extrusion.
`JUDGE MEDLEY: Excuse me. Please remember to referen
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