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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`ST. JUDE MEDICAL, LLC,
`Petitioner,
`
`v.
`
`SNYDERS HEART VALVE LLC,
`Patent Owner.
`__________
`
`Case IPR2018-00105 (Patent 6,540,782 B1)
`Case IPR2018-00106 (Patent 6,540,782 B1)
`Case IPR2018-00107 (Patent 6,821,297 B2)
`Case IPR2018-00109 (Patent 6,821,297 B2)
`__________
`
`Record of Oral Hearing
`Held: January 30, 2019
`__________
`
`
`
`Before PATRICK R. SCANLON, MITCHELL G. WEATHERLY, and
`JAMES A. WORTH, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`IPR2018-00105 (Patent 6,540,782 B1)
`IPR2018-00106 (Patent 6,540,782 B1)
`IPR2018-00107 (Patent 6,821,297 B2)
`IPR2018-00109 (Patent 6,821,297 B2)
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`TEDD W. VAN BUSKIRK, ESQ.
`STEPHEN M. LUND, ESQ.
`MICHAEL H. TESCHNER, ESQ.
`Lerner David Littenberg Krumholz & Mentlik, LLP
`600 South Avenue West
`Westfield, New Jersey 07090
`(908) 518-6341
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`MATTHEW ANTONELLI, ESQ.
`Antonelli, Harrington & Thompson, LLP
`4306 Yoakum Boulevard
`Suite 450
`Houston, Texas 77006
`713-581-3000
`
`
`
`SARAH J. RING, ESQ.
`The Ring Law Firm, PLLC
`9654 C Katy Freeway
`Box 263
`Houston, Texas 77055
`281-772-6541
`sring@ringipfirm.com
`
`
`
`
`The above-entitled matter came on for hearing on Wednesday,
`
`January 30, 2019, commencing at 12:00 p.m. at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`2
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`IPR2018-00105 (Patent 6,540,782 B1)
`IPR2018-00106 (Patent 6,540,782 B1)
`IPR2018-00107 (Patent 6,821,297 B2)
`IPR2018-00109 (Patent 6,821,297 B2)
`
`
`P R O C E E D I N G S
`- - - - -
`JUDGE SCANLON: Good afternoon, everyone, thank you. This is
`the hearing for IPR 2018-00105, 106, 107, and 109. The first two cases of
`which involve patent number 6,540,782 and the other two involve patent
`number 6,821,297.
`I'm Judge Scanlon in our Detroit office and with me today as the
`panel are Judge Weatherly and Judge Worth.
`Let's start with appearances. Who's here for petitioner, please?
`MR. VAN BUSKIRK: Good afternoon, Your Honors. It's Tedd
`Van Buskirk from Lerner David Littenberg Krumholz & Mentlik on behalf
`of the petitioner.
`JUDGE SCANLON: Okay, thank you. And for patent owner.
`MR. ANTONELLI: Good afternoon. Matt Antonelli on behalf of
`Snyders Heart Valve.
`MS. RING: And Sarah Ring on behalf of Snyders Heart Valve.
`JUDGE SCANLON: Okay, thank you. As set forth in the hearing
`order, each party will have two hours to present arguments. Petitioner will
`present its case first and may reserve time for rebuttal.
`Patent owner will then present its case and then the petitioner may
`use any reserve time for rebuttal. And last, patent owner may request an
`opportunity to present a brief sur-reply to petitioner's rebuttal.
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`IPR2018-00105 (Patent 6,540,782 B1)
`IPR2018-00106 (Patent 6,540,782 B1)
`IPR2018-00107 (Patent 6,821,297 B2)
`IPR2018-00109 (Patent 6,821,297 B2)
`
`
`Given the overall length of this hearing we wanted to provide
`adequate breaks for everyone. I'm thinking we will try to take a short break
`every hour. Does that schedule sound good to the parties?
`MR. VAN BUSKIRK: That's fine, Your Honor.
`MR. ANTONELLI: Yes, sir.
`JUDGE SCANLON: All right, thank you. And I also ask each
`presenter to speak into the microphone so that we can hear you clearly.
`I also ask you to identify demonstratives you may be using by slide
`number. That's not only helpful for me participating remotely but also it
`helps get the slide numbers into the record.
`Also, I'd like to mention there's a protective order in place and a
`motion to seal certain exhibits has been granted. Based on the
`demonstratives that have been submitted, it doesn't appear that any party
`intends to discuss any information covered by the protective order, but if a
`party does want to discuss protected information, please let us know.
`Before we get started with the presentations, I'd also like to address
`the objections to the demonstratives that were filed. Petitioner, would you
`approach the podium and explain your objection, please?
`MR. VAN BUSKIRK: Yes. Good afternoon, Your Honors. Simply
`put the demonstrative exhibits that were filed and served by the patent owner
`were not timely.
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`IPR2018-00105 (Patent 6,540,782 B1)
`IPR2018-00106 (Patent 6,540,782 B1)
`IPR2018-00107 (Patent 6,821,297 B2)
`IPR2018-00109 (Patent 6,821,297 B2)
`
`
`The rules call for seven business days before the hearing. Patent
`owner apparently calculated seven business days before to fall on Martin
`Luther King Day and therefore felt that they rolled over to Tuesday.
`We pointed out that Martin Luther King Day was not a business day
`and in fact last Friday was the day. We told patent owner that we would be
`serving our demonstratives on time and we did so and we received their
`demonstrative exhibits the following day. So it's simply a timeliness
`objection.
`JUDGE SCANLON: Okay. Is there -- so what day were they served
`to you?
`MR. VAN BUSKIRK: They were served on us last Saturday.
`JUDGE SCANLON: The 22nd. Saturday.
`MR. VAN BUSKIRK: Saturday.
`JUDGE SCANLON: Oh, okay. So --
`JUDGE WEATHERLY: Last Saturday or Saturday the 19th?
`MR. VAN BUSKIRK: You're right. Saturday the 19th, Your
`Honor. It's all kind of blurred together in the past week.
`JUDGE SCANLON: Right. Yes. So, Martin Luther King Day was
`Monday the 21st. In the record it looks like the certificate of service was
`showing the 23rd. So you're saying they were actually served on the 19th?
`MR. VAN BUSKIRK: Without my calendar here, whatever the
`Saturday before Martin Luther King Day. So essential they have the benefit
`of having our slides for a little over a day before they served theirs.
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`IPR2018-00105 (Patent 6,540,782 B1)
`IPR2018-00106 (Patent 6,540,782 B1)
`IPR2018-00107 (Patent 6,821,297 B2)
`IPR2018-00109 (Patent 6,821,297 B2)
`
`
`JUDGE SCANLON: Okay. And you feel that prejudices you in
`your case?
`MR. VAN BUSKIRK: We simply pointed out the objection based
`on timeliness. They did have our slides for a day, but other than that I can't
`identify any prejudice and we're prepared to let them go forward and use
`their demonstratives.
`JUDGE SCANLON: Okay. That's fine. Counsel for patent owner,
`would you care to be heard on this issue?
`MR. ANTONELLI: Thank you, Your Honor. I think you have most
`of the facts now. I think we've got an agreement that I just heard that the
`objection is being withdrawn and that we can use our demonstratives.
`I do want to correct one thing that I think was a little bit of a mistake
`or at least wasn't the full story.
`So, on the day that the contentions were due I was traveling. One of
`my partners in the office -- the Friday deadline, right. We calculated that we
`move up according to the rules in the CFR.
`I see the point of their argument about what the deadline is. We on
`Friday before they sent us their contentions said hey, we want to make sure
`everybody is on the same page because we have the deadline on Tuesday.
`So that they can today say that they were prejudiced they
`immediately sent us theirs in the afternoon and said no, you're wrong, here
`they are. Didn't try to talk to us, didn't try to work it out so that they would
`have this argument to make.
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`IPR2018-00105 (Patent 6,540,782 B1)
`IPR2018-00106 (Patent 6,540,782 B1)
`IPR2018-00107 (Patent 6,821,297 B2)
`IPR2018-00109 (Patent 6,821,297 B2)
`
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`We immediately said look, we'll get them to you. I was traveling. I
`got in the office. We brought the team into the office on Saturday. We got
`them out. There was absolutely nothing objectionable in our slides. They
`confirmed that during our meet and confer. They can identify no prejudice.
`I think it would be beneficial for everyone if we use the slides. That
`way we don't have to point you to the pages of the papers where the pictures
`are that are in our slides. So that's all I have on that.
`JUDGE SCANLON: Okay, thank you.
`MR. ANTONELLI: Thank you.
`JUDGE SCANLON: So, having heard both sides we're going to go
`ahead and allow patent owner to use their slides. We understand there was a
`gap there, but frankly the panel finds the demonstratives very useful for the
`oral argument and it seems like, given the circumstances that have been
`explained, the prejudice is fairly minimal. So we'll go ahead and allow the
`patent owner to use their slides.
`So unless there's any other questions I think we're ready to start. I'll
`let petitioner --
`JUDGE WEATHERLY: I have a comment. Judge Scanlon, I have a
`comment.
`JUDGE SCANLON: Judge Weatherly, go ahead.
`(Whereupon, the above-entitled matter went off the record at 12:08
`p.m. and resumed at 12:09 p.m.)
`JUDGE WEATHERLY: I'm ready.
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`IPR2018-00105 (Patent 6,540,782 B1)
`IPR2018-00106 (Patent 6,540,782 B1)
`IPR2018-00107 (Patent 6,821,297 B2)
`IPR2018-00109 (Patent 6,821,297 B2)
`
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`JUDGE SCANLON: All right. Let's start then with the
`presentation. Petitioner, please take the podium and please let us know how
`much time, if any, you would like to reserve for your rebuttal.
`MR. VAN BUSKIRK: Thank you, Your Honors. I would like to
`reserve one hour of my time for rebuttal. Before we get started I also have
`hard copies of the demonstrative exhibits for Judge Worth and Judge
`Weatherly. And Judge Scanlon, we find there's no differences in what you
`have from what was filed.
`JUDGE SCANLON: Okay, thank you.
`MR. ANTONELLI: Your Honors, we'd like to object to preserving
`one hour of the two hours for rebuttal time. That's inappropriate to us. We
`believe you have a right to hear their case and the rebuttal time ought to be
`used for rebuttal. They're essentially trying to change the order of that by
`trying to put so much of their time for rebuttal.
`JUDGE SCANLON: Sorry, I think I get the gist of what you're
`requesting. I couldn't hear you very well. I'm sorry, if I can ask Mr. Van
`Buskirk to step aside.
`MR. ANTONELLI: Sorry, Your Honor. This is Matt Antonelli.
`We object to the request for an hour of rebuttal time of the two hours
`of argument time. We think that's inappropriate. It's really kind of a
`sandbagging opportunity.
`Rebuttal is supposed to be for rebuttal time. Devoting that much
`time to the rebuttal argument is really just I think procedural gamesmanship.
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`IPR2018-00105 (Patent 6,540,782 B1)
`IPR2018-00106 (Patent 6,540,782 B1)
`IPR2018-00107 (Patent 6,821,297 B2)
`IPR2018-00109 (Patent 6,821,297 B2)
`
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`We think something 30 minutes or less is more appropriate. Thank
`
`you.
`
`JUDGE SCANLON: I do think -- I don't know that we have a hard
`and fast rule on that, but I do believe that the spirit of the rules is that the
`rebuttal time is not half of the total time.
`I think I would suggest we get started. Petitioner can use as much of
`their two hours as they want and then depending on how much time they use
`we can determine what is a fair amount of rebuttal time. Does that sound
`agreeable to petitioner?
`MR. ANTONELLI: That's fine, Your Honor.
`JUDGE SCANLON: Okay. Having said that then when you're
`ready you may proceed.
`MR. VAN BUSKIRK: May I approach -- would you like copies?
`JUDGE WEATHERLY: Certainly. I brought a clock here. There's
`an hour on the clock that I have. I could run it for a longer time. I'm going
`to run it for an hour since that's the time period that you essentially indicated
`by implication that you would use.
`I thought there might be a digital readout of the clock somewhere in
`the room that you can see. I don't think that there is, but these lights, if you
`see these lights over here on this little box to my right going off that's what
`is causing it. The yellow light will come on as the time starts to wind down
`and then a red light will come on.
`MR. VAN BUSKIRK: The yellow light at 15 minutes, Your Honor?
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`IPR2018-00105 (Patent 6,540,782 B1)
`IPR2018-00106 (Patent 6,540,782 B1)
`IPR2018-00107 (Patent 6,821,297 B2)
`IPR2018-00109 (Patent 6,821,297 B2)
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`JUDGE WEATHERLY: I don't know when it -- it might only be
`two. It might be five minutes. I'll also try to keep you apprised of the time.
`MR. VAN BUSKIRK: I'm going to clock myself, keep an eye on it.
`So good afternoon. May it please the Board my name is Tedd Van Buskirk.
`As I said I'm from the Lerner David firm. I have with me today my
`colleagues Michael Teschner and Stephen Lund.
`I'm also pleased to have with us -- that's division counsel Rendos, St.
`Jude Medical now being part of Abbott.
`Before I get started I would like to acknowledge something right up
`front and that is this is not your typical IPR. I suspect you've probably heard
`others say that, but I mean it. This is not your typical IPR and the reason for
`that is that from the time these petitions were filed, in fact before even patent
`owner's claim constructions and contentions have been a constant moving
`target.
`
`If we were to look at Dr. Snyders' provisional application from
`which the two patents at issue here today arose we would see very little
`resemblance between the claims and their constructions here today versus
`what those patents were all about.
`If we look at figure 2 and 3 of the '782 patent we see the very
`specific funnel valve or inverted umbrella valve within a bird cage stent that
`Dr. Snyder has described in his provisionals.
`And moving to slide 3 Dr. Snyders -- sorry, slide 2, my apologies.
`In slide 2 we see some of the prior art valves we'll be talking about today.
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`IPR2018-00105 (Patent 6,540,782 B1)
`IPR2018-00106 (Patent 6,540,782 B1)
`IPR2018-00107 (Patent 6,821,297 B2)
`IPR2018-00109 (Patent 6,821,297 B2)
`
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`So Dr. Snyders actually distinguished the native heart-like valves
`shown in the bottom three figures on slide 2 which come from Anderson and
`Stevens and Bessler.
`Yet here we are today trying to distinguish those same valves, or use
`those same valves for purposes of invalidity that he distinguished all those
`years ago.
`Now, I think we made very clear in our petitions, or at least I hope
`that we did so, and throughout these proceedings that the claim constructions
`that we are operating on are actually patent owner's own claim constructions
`from parallel litigation that the patent owner is aware is going on.
`JUDGE WEATHERLY: And some of those are implied
`interpretations, yes?
`MR. VAN BUSKIRK: I'm not sure I understand your question.
`JUDGE WEATHERLY: Meaning that you inferred the
`interpretation based on an accusation of infringement of a device.
`MR. VAN BUSKIRK: That's correct, Your Honor. At the time that
`these IPRs were filed up against the one-year deadline all we had at that time
`were contentions that the patent owner had put forth in court. There were no
`claim constructions that had been -- there were no claim construction
`briefing. There were no claim construction decisions.
`So, based on what the accused product, which if we look at slide 3
`we can see here, based on features of the accused product that they said
`infringed we interpreted the claims based on --
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`IPR2018-00105 (Patent 6,540,782 B1)
`IPR2018-00106 (Patent 6,540,782 B1)
`IPR2018-00107 (Patent 6,821,297 B2)
`IPR2018-00109 (Patent 6,821,297 B2)
`
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`JUDGE WEATHERLY: Well, I'll speak just for myself instead of
`the entire panel. I'm not really that much interested in essentially drafting a
`clearance opinion.
`And to some extent the degree to which your briefing depends upon
`contentions, some of which were expressed and some of which you inferred,
`makes it very difficult for the panel because as you know claim
`interpretation is before us and before courts as an issue of law and it's
`something that's supposed to be decided upon an intrinsic record.
`I generally found your briefing to be lacking in terms of the extent to
`which it addresses the intrinsic record and that's frustrating for us. It makes
`it more difficult for a decision-maker like me to render a fair decision.
`So, if it's possible for you to address the intrinsic record, that would
`be my preference. If not, I certainly am not going to tell you how you
`should present your argument.
`I'm just merely trying to give you some insight into what it's like to
`sit in my seat.
`Now, I also understand that there have been -- there's been a
`Markman order entered in the parallel district court litigation. In general, to
`what extent should we follow the Markman order? Are there places where
`we should depart from the Markman order?
`MR. VAN BUSKIRK: As Your Honor is no doubt aware, you are
`not bound by the district court nor is the district court bound by what the
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`IPR2018-00106 (Patent 6,540,782 B1)
`IPR2018-00107 (Patent 6,821,297 B2)
`IPR2018-00109 (Patent 6,821,297 B2)
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`panel here says. Maybe none of us really know what these claims mean
`until the Federal Circuit speaks.
`But, back to your point and I appreciate your difficulty with this. It's
`something we've faced all along too. In fact, that's why I said this has been a
`moving target.
`To your point about the intrinsic record, I'd like to first point out that
`we proposed narrower constructions as well and we have grounds, the
`obviousness grounds that we contend that even under a narrower
`construction the claims would all still be invalid.
`As to the claim constructions and interpretations that we relied on in
`the anticipation grounds, which are based on what we put forth in the district
`court case, claims, as you know, are meant to serve a public notice function
`and the patent owner has taken specific positions about what they believe the
`claims mean.
`And we think, and I apologize if you disagree, we think it was
`reasonable for us to rely upon what the patent owner said they believe the
`claims mean.
`JUDGE WEATHERLY: I'm not sure that I do disagree with that.
`You had an opportunity to address the intrinsic record in your briefing, and I
`wish you had done more of it. I'll leave it at that. And I apologize for the
`interruption. Though I can't promise you it will be the last.
`Your colleague on the other side of the podium made no promises
`about interruptions of your presentation either.
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`IPR2018-00105 (Patent 6,540,782 B1)
`IPR2018-00106 (Patent 6,540,782 B1)
`IPR2018-00107 (Patent 6,821,297 B2)
`IPR2018-00109 (Patent 6,821,297 B2)
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`JUDGE WORTH: Let me pick up on a few things that Judge
`Weatherly said.
`It is helpful for us if you can point out where you're being consistent
`or inconsistent with a Markman order. Are you arguing estoppel based on
`litigation positions?
`MR. VAN BUSKIRK: Your Honor, we are not. And I may be at a
`bit of a disadvantage compared to Mr. Antonelli here because I and my team
`are IPR counsel only. We are not fully aware of everything that's gone on in
`the litigation and much of what's gone on in the litigation has been sealed or
`not shareable.
`In fact, as Your Honors may recall, when we had an issue about what
`the patent owner's expert Dr. Chronos had opined on or put in his expert
`reports we asked for discovery on that and it wasn't given.
`So I'm not fully aware of all the positions that have been taken there.
`I'm not trying to make excuses, I'm just being honest as to what I do or don't
`know. I hope you'll bear with me on that point.
`But as far as I know estoppel is not an issue here.
`JUDGE WORTH: Fair enough.
`MR. VAN BUSKIRK: -- answer your question as best I can.
`JUDGE WEATHERLY: Maybe on a claim term by term basis you
`can help us with what your position is relative to the Markman order.
`Maybe not.
`(Simultaneous speaking)
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`IPR2018-00105 (Patent 6,540,782 B1)
`IPR2018-00106 (Patent 6,540,782 B1)
`IPR2018-00107 (Patent 6,821,297 B2)
`IPR2018-00109 (Patent 6,821,297 B2)
`
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`MR. VAN BUSKIRK: Let me get one -- at least I hope, let me get
`one issue off the table which makes things easier here and that's the '109, the
`last of these four petitions that's directed to the '297 patent.
`That petition is directed only to two method claims and the patent
`owner has never separately argued the merits of those claims. We submit
`that they should rise or fall with claim 1 of the '297 patent from which they
`depend.
`We specifically noted that in our reply papers, and patent owner in
`sur-reply didn't say otherwise. So with that I think we can move those two
`claims the '297 patent way and focus on the two petitions directed to the '782
`patent and the 107 petition directed to the '297.
`So, for purposes of the remaining three petitions given the number of
`claims, the number of grounds in the art what I felt would be easier to do
`would be to address the various elements -- there's been much overlap there
`-- and take them up in the order that they arise.
`Starting with the preamble every claim of patents is directed to either
`an artificial valve for repairing a damaged heart valve, having a plurality of
`cusps separating upstream and downstream regions, or to that valve in
`combination with an instrument for delivering it.
`And I don't think there's any dispute here that in all of the
`anticipation or obviousness grounds that we have that the art is directed in
`fact to artificial valves and instruments for their delivery. So really no
`dispute there.
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`IPR2018-00105 (Patent 6,540,782 B1)
`IPR2018-00106 (Patent 6,540,782 B1)
`IPR2018-00107 (Patent 6,821,297 B2)
`IPR2018-00109 (Patent 6,821,297 B2)
`
`
`The next element is the flexibly resilient frame which is common to
`all the claims. We'll get into some details about that in a moment, but as to
`the flexibly resilient frame itself again I think there's agreement on both
`sides that the art teaches that. Leonhardt, Bessler, Anderson, they all have a
`frame or a stent.
`All the independent claims except for claim 18 require that that
`flexibly resilient stent have a plurality of peripheral anchors. And there
`doesn't appear to be much dispute as to that point either.
`The dispute as to flexibly resilient frame elements, there are two
`points on that.
`First, the patent owner disputes whether Bessler's frame is sized and
`shaped for insertion in a position between the upstream and downstream
`regions.
`It maintains this argument in its post institution papers despite the
`fact that in the Board's institution decision the Board found that upstream
`regions and downstream regions were defined regardless of whether Bessler
`teaches removal of the cusps before surgery or not.
`In other words, that limitation is positional in nature. Removal of
`the leaflets doesn't change the fact that there's an upstream and a
`downstream region, and we think that the Board got it right and should
`maintain that position.
`Now, where the rubber meets the road here on this claim element
`from the '782 patent is in claims 18 and 29 which call for a plurality of
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`IPR2018-00105 (Patent 6,540,782 B1)
`IPR2018-00106 (Patent 6,540,782 B1)
`IPR2018-00107 (Patent 6,821,297 B2)
`IPR2018-00109 (Patent 6,821,297 B2)
`
`flexibly resistant U-shaped elements, sized and shaped for insertion between
`those upstream and downstream regions.
`And these U shapes must have opposite ends, elements being joined
`midway between the respective ends. This is where we get into the
`contentions.
`If we look at slide 23 in defining the U-shaped elements in their
`proposed claim construction the patent owner told us that in exhibit 1041
`that U-shaped elements are parts of a frame that are generally shaped like a
`U.
`
`In the contentions themselves patent owner draws a series of
`arbitrarily shaped U or V shapes around the stent.
`Now, we don't necessarily agree that these are U shapes or that they
`can be arbitrarily drawn like this, but using their logic one could just as
`easily draw U shapes near the very top, from the top all the way to the
`bottom, basically anywhere in between.
`The point is if these arbitrary U shapes count for purposes of
`infringement we believe that our interpretation of U shapes with respect to
`Leonhardt and Bessler are far less arbitrary and just as reasonable.
`If we look at slide 8, take a look at Leonhardt to start. Here,
`Leonhardt shows U-shaped elements in red or yellow labeled A joined
`generally midway between their ends by the blue and green portions labeled
`B.
`
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`IPR2018-00105 (Patent 6,540,782 B1)
`IPR2018-00106 (Patent 6,540,782 B1)
`IPR2018-00107 (Patent 6,821,297 B2)
`IPR2018-00109 (Patent 6,821,297 B2)
`
`
`If we look at figure F on the right which the Board analyzed in its
`institution decision we see U-shaped elements A, which are the V shapes in
`this case at the top and bottom of the figure joined midway between their
`ends by the green connecting bar B.
`Or if we go over to figure E on the left the U-shaped elements are
`joined midway between them or between their ends at the blue area and the
`red shapes to the right of it are joined at the green arrow.
`JUDGE SCANLON: Excuse me, if I could -- pardon the
`interruption.
`As far as figure E can you -- I don't see the logic of how the B
`elements are joining what you're identifying as the U shape at their
`midpoint.
`Particularly the right-hand side of figure E you've got the red U-
`shaped elements. One end of one U-shaped element is joined to an end of
`another U-shaped element by a segment B. I don't see how that's at the
`midpoint of either of the U-shaped elements.
`MR. VAN BUSKIRK: So, Your Honor, am I looking at the right
`direction first off with the camera here because you are to my right but I
`believe I'm looking at you in the camera?
`JUDGE SCANLON: Sorry about that. If you're looking forward I'm
`seeing your face directly when you look forward. So apologize about that.
`Wherever you want to look is fine with me.
`
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`IPR2018-00105 (Patent 6,540,782 B1)
`IPR2018-00106 (Patent 6,540,782 B1)
`IPR2018-00107 (Patent 6,821,297 B2)
`IPR2018-00109 (Patent 6,821,297 B2)
`
`
`MR. VAN BUSKIRK: Thank you. Okay. So to your question the
`figure on the right, we'll start there with the red U or V shapes connected by
`the green bar B.
`The connection needs to be between the midpoint of the respective
`elements. Now, as I think you'll appreciate we drew these with identified
`endpoints in the circles that are shown in dashed lines there.
`Those circles could be bigger or smaller, but the circles define an
`endpoint. There's actually two on each of the -- that green portion B is
`midway between either what I'll call the interior endpoints of those V's or
`even if you were to draw a line from the exterior endpoints of those two V's.
`This is probably the hardest case of the four examples we give. It's a
`little easier to understand, I believe, when you look at figure E on the left.
`And if we skip ahead to Bessler I think probably the easiest case here
`is if we look at figure F -- sorry?
`JUDGE WEATHERLY: You're on slide 10.
`MR. VAN BUSKIRK: Slide 10, thank you.
`JUDGE WEATHERLY: Judge Scanlon can only follow along if we
`know what slide we're on.
`MR. VAN BUSKIRK: Thank you. Slide 10, Your Honor. If we
`look at figure F on the left which is from Bessler we have U or V-shaped
`elements in yellow. They have endpoints on the bottom of figure B and
`those endpoints, whether it's the left -- whether it's the outside sets or the
`inside sets they are joined midway between blue element B.
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`IPR2018-00105 (Patent 6,540,782 B1)
`IPR2018-00106 (Patent 6,540,782 B1)
`IPR2018-00107 (Patent 6,821,297 B2)
`IPR2018-00109 (Patent 6,821,297 B2)
`
`
`Now, patent owner also argues that the U-shaped elements must be
`sized and shaped to match the size and shape of the position between the
`upstream regions and the downstream regions, which we understand to mean
`they must span the annulus.
`As the Board noted, however, the claim language doesn't require that
`each individual U shape span the annulus. If we go back to slide 3 which
`shows the accused product patent owner's U shapes, and maybe it's easier to
`look at with respect to slide 23, U-shaped elements here do not span the
`annulus.
`And that is because of the sort of multidimensional shape we have
`here. We're trying to represent a three-dimensional object here in two
`dimensions, but the fact is this stent also goes in and out of the page in the Z
`axis.
`
`Let's go back if you would, Stephen, please to slide 3. On the left is
`an overhead view of the accused product. There are nine cells around the
`outside. That's a top view of what we see on the right.
`Connecting any of these arbitrarily shaped U's will never bisect the
`annulus because it's an odd number. If we were talking about eight or six
`perhaps there would be an argument there, but this does not span the full
`annulus. It's necessarily going to be something less.
`We believe that all the claims that require a U-shaped element based
`on patent owner's logic are joined generally midway between the ends
`whether that's in Leonhardt or in Bessler.
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`IPR2018-00105 (Patent 6,540,782 B1)
`IPR2018-00106 (Patent 6,540,782 B1)
`IPR2018-00107 (Patent 6,821,297 B2)
`IPR2018-00109 (Patent 6,821,297 B2)
`
`
`And moreover, more importantly, the fallback here is there are other
`grounds based on obviousness whether it is Anderson or Johnson where in
`fact the U shapes are midway between the ends.
`And in the Johnson case, let's skip to slide number 14 here's Johnson.
`Now Johnson on figure 1 on the left shows a frame having three struts.
`But Johnson specifically teaches that its frame can also have four
`struts and we put a figure in two slides later on slide 16. Here's the four-
`strut embodiment of Johnson.
`Johnson is a valve that was used for open heart surgery to replace a
`diseased valve. And it is clear from Johnson, both the figures and its
`disclosure that those U shapes between their midpoints which we see at the
`bottom where the circle is showing the 90 degree orientation of the two
`struts, and at the pad ends which are those triangles you see, those will in
`fact span the annulus.
`JUDGE WEATHERLY: We're on slide 16 for Judge Scanlon. This
`figure it came from your expert I presume?
`MR. VAN BUSKIRK: That's correct. Our expert looked at the
`disclosure from slide 14 as well as Johnson's express teaching of
`specification that there could be four struts. We created this figure.
`JUDGE WORTH: I would like to echo what Judge Weatherly said
`before. We're not sitting to decide infringement. And so unless there's some
`compelling connection to something that the Patent Office would typically
`decide for patentability we don't want to get into questions of infringement.
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`IPR2018-00105 (Patent 6,540,782 B1)
`IPR2018-00106 (Patent 6,540,782 B1)
`IPR2018-00107 (Patent 6,821,297 B2)
`IPR2018-00109 (Patent 6,821,297 B2)
`
`
`MR. VAN BUSKIRK: I understand we're not here to talk about
`infringement.
`JUDGE WEATHERLY: In other words, it would be much more
`helpful for us if yo
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