Trials@uspto.gov
`571-272-7822
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`Paper No. 27
`Entered: July 21, 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.
`_________________
`
`IPR2020-00534
`Patent D797,625 S
`_________________
`
`Record of Oral Hearing
`Held: April 27, 2021
`_________________
`
`
`
`
`Before GRACE KARAFFA OBERMANN, SCOTT A. DANIELS, and
`CHRISTOPHER G. PAULRAJ, Administrative Patent Judges.
`
`
`
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`571-272-7822
`
`
`
`
`Paper No. 27
`Entered: July 21, 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.
`_________________
`
`IPR2020-00534
`Patent D797,625 S
`_________________
`
`Record of Oral Hearing
`Held: April 27, 2021
`_________________
`
`
`
`
`Before GRACE KARAFFA OBERMANN, SCOTT A. DANIELS, and
`CHRISTOPHER G. PAULRAJ, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`
`
`
`IPR2020-00534
`Patent D797,625 S
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`BARRY F. IRWIN, ESQ.
`IFTI ZAIM, ESQ.
`ANDY HIMEBAUGH, ESQ.
`Irwin IP, LLC
`222 S. Riverside Plaza
`Chicago, Illinois 60606
`(312) 667-6080
`birwin@irwinip.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JOSEPH A. HERRIGES, ESQ.
`CRAIG A. DEUTSCH, ESQ.
`Fish & Richardson, P.C.
`60 South 6th Street
`Minneapolis, Minnesota 55402
`(612) 337-2579
`herriges@fr.com
`deutsch@fr.com
`
`
`
`
`The above-entitled matter came on for hearing on Tuesday, April 27,
`
`2021, commencing at 1:00 p.m. EDT, via Videoconference.
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`IPR2020-00534
`Patent D797,625 S
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`
`P R O C E E D I N G S
`- - - - -
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` (1:02 p.m.)
`JUDGE DANIELS: Good afternoon, everyone. This is our final
`oral hearing in IPR 2020-00534. Patent No. 7 -- Design Patent 797625.
`The case is between Petitioner, LKQ Corporation and Patent Owner is
`General Motors -- We'll refer to GM usually.
`Just a few administrative matters before we begin. I'm Judge
`Daniels. Also the panel consists of -- here with us today are Judges Paulraj
`and Judge Obermann. We have a court reporter of course on with us.
`And I've already told him that if we were to lose anyone or him, that we will
`take a quick break and get everybody back if something happens. But I
`think most of the technology is pretty consistent now, so we shouldn't have
`any problems.
`We don't have a timer like we do in the hearing rooms in Alexandria,
`so I will keep time. And Judge Obermann's going to back me up on the
`time. It doesn't hurt to have -- It doesn't hurt for Counsel -- for you all to
`keep track of your time either. So if you hear my phone go off, it's because
`I'll have it on for your timer.
`And by the way, I know we asked for -- the parties asked for
`disparate times to present today, so we sort of met in the middle with 60
`minutes. If we're having a good discussion and we're learning a lot, you
`know, we can always -- we can always add some time if it's necessary. But
`I think that 60 minutes per side will be a good place to start. We also have
`a public audio line open, so members of the public with an interest in this
`proceeding are listening. We're not aware of any confidential subject
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`IPR2020-00534
`Patent D797,625 S
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`matter. So Counsel, if there is some or something that is confidential
`obviously we need to know and just tell us.
`So with all that, let's sort of get started here. Can I get the parties
`appearances and who's going to do the speaking for Petitioner first?
`MR. IRWIN: Yes, Your Honor. This is Barry Irwin of Irwin IP.
`And I'll be doing the speaking for LKQ. With me in the room is Ifti Zaim
`and Andy Himebaugh, but I don't expect them to be speaking.
`JUDGE DANIELS: Okay. Thank you, Mr. Irwin and good
`afternoon. And for Patent Owner -- for GM.
`MR. HERRIGES: Good afternoon, Your Honor. Can you hear
`
`me?
`
`JUDGE DANIELS: I can.
`MR. HERRIGES: This is Joe Herriges. Mr. Irwin -- I couldn't
`hear Mr. Irwin when he was speaking.
`JUDGE DANIELS: Okay.
`MR. HERRIGES: Could Your Honors hear me?
`Could Your Honors hear me?
`JUDGE OBERMANN: I could hear, yes. This is Grace
`Obermann.
`MR. HERRIGES: I apologize here. Let me see if I can switch
`something on.
`MALE PARTICIPANT: Mr. Irwin, would you mind speaking
`again?
`MR. IRWIN: Hi, Joe. How you doing? Joe, can you hear me?
`(off record comments)
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`MR. HERRIGES: My apologies. Joe Herriges speaking on
`behalf of General Motors. I will be doing the argument today with my
`partner, Craig Deutch.
`MR. IRWIN: Okay. I've lost the -- I've lost the video feed of --
`There we go. I see video feed for -- I have two Joes. And otherwise, I
`have the video feed I think I need.
`JUDGE DANIELS: I think oftentimes, you all -- Counsel will
`sometimes lose -- If someone's not speaking, we may -- you may sometimes
`not see their video. But the most critical part is the audio of course. So
`thank you, Alan. Alright, it looks like we're all set Let me just get
`through a couple other matters. So please mute if you're not speaking.
`And also please try to describe for Counsel -- Please try to describe any of
`the demonstratives you're referring to so it's clear on the record what exactly
`we're talking about. And mention the demonstrative numbers or the slide
`number, whichever you're referring to.
`So you each have 60 minutes. You can divide it up however you
`like. If anyone needs to take a break in-between, we can or we can go right
`through. That goes for Judges or for Counsel. We can always take a
`quick five to ten minute break. At this point, I'll assume we can go straight
`through.
`So let's see, Petitioner has the burden and goes first. You can
`reserve any time for rebuttal you want. Patent Owner, Mr. Herriges, you
`will be able to go second. After Petitioner has some rebuttal time, you can
`also present some sur-rebuttal briefly if you'd like. I'll give you a warning
`if Grace will help -- Judge Obermann will give us a warning when we get
`within a couple of minutes of the end of your time. So other than that, Mr.
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`Irwin, if there's any time you'd like to reserve, let us know. And you can
`begin when you're ready.
`MR. IRWIN: Okay. Thank you, Judge Daniels. Okay,
`Petitioner would like to reserve ten minutes for rebuttal please.
`On behalf of LKQ, I wanted to extend our thanks to the Board for
`the time and effort that they've put into not just this proceeding, but in
`connection will all the proceedings between LKQ and GM. I just wanted
`to let you know how much we really appreciate and recognize how much
`time and effort goes into it. We wanted to thank you for that.
`Before diving into the details, I just wanted to say a few quick words
`about the patent and the applicable law. Turning to Slide 2 of our slides,
`you can see the images from the 625 patent depicted there. I've always
`highlighted the filing date of August 24, 2016. I highlighted the filing date
`because obviously that filing date is significant for the obviousness analysis,
`which that was filed less than five years ago and I'm sure the Board is aware.
`Vehicle design was quite sophisticated by 2016, so I want to keep that in our
`minds as we evaluate the obviousness issues. How sophisticated vehicle
`design had become by 2016.
`Turning then to Slide 3, I just want to make a quick point with regard
`to claim construction. I know that in the institution decision, the Board
`noted a detailed claim construction was not required. I just wanted to
`emphasize the reason why that is. And as the Federal Circuit explained in
`Egyptian Goddess, detailed claim construction risks placing undue emphasis
`on particular design features and shifts the focus from the design as a whole.
`But yet throughout this proceeding and frankly through all the proceedings,
`GM violates both of those maxims. Turning to Slides 4 and 5 --
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`JUDGE DANIELS: Mr. Irwin?
`MR. IRWIN: Yes, sir?
`JUDGE DANIELS: We also have some Federal Circuit case law
`and I think it's High Point. Don't quote me on that. But they also -- They
`also didn't like it when there was no verbal construction in certain times.
`And I think -- I think that, that creates a little bit of a quandary. When do
`we -- When do we use some verbal construction and when do we just look at
`the design -- How do we decide that difference?
`MR. IRWIN: Yeah, Judge Daniels. That's a great question. I
`think the federal circuit clarified that in the MRC case. And specifically
`what they said in the MRC case is it's important when you go through the
`substantial similarity analysis that you highlight -- you identify what you
`think are similarities. It's important that you identify what you see as
`differences. And that you evaluate those differences in the context of those
`overall similarities. So what the court said is we don't need to do a detailed
`claim construction, but when you're doing the substantial similarity analysis,
`you need to call out what the features are that you think are similar. What
`makes you think these are similar? And also call out what has been
`identified as differences. And address whether or not those differences
`change the overall substantial similarity between the designs.
` And frankly, just like you did -- you provided a detailed claim
`construction in the 741 decision, but the analysis that you did after that was
`exactly what the coordinate MRC says you should be doing. When you're
`deciding whether they're substantially similar, go through the features,
`explain why, and highlight what you see as the differences and explain how
`that impacts the similarity.
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`IPR2020-00534
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`
`JUDGE DANIELS: So even though -- even though for instance in
`this case where, you know, I think that your claim construction is not -- I
`think we'd all probably agree, it's not particularly detailed, we should still get
`into more of those details at least in the comparisons when we do the
`analysis. Right?
`MR. IRWIN: That's correct. That's absolutely correct, exactly.
`Turning then to Slides 4 and 5. Slides 4 and 5 summarize the law of
`anticipation. GM likes to assert well, you know, this difference has a
`significance. They don't tell you what the significance is, but they like to
`throughout their paper say "this difference has some significance." But
`whether there's a difference -- whether the difference between the patent and
`prior art has some undefined significance is not the issue. It's not the issue
`for anticipation and not the issue for obviousness.
`The issue is whether or not the designs are substantially similar.
`And this substantial similarity considers significant differences. The case
`law is clear that you consider significant differences, not minor or trivial
`differences. And in fact, anticipation that's been found -- may be found
`when there are readily apparent differences pursuant -- and you cited that
`case law in the institution decision at Page 23. The point is anticipation
`may be found even when there are readily apparent differences.
`JUDGE OBERMANN: I don't want to eat into your time, but I just
`want to make clear here. What you're talking about is readily apparent
`differences to the ordinary observer.
`MR. IRWIN: That's correct. And then when we get to
`obviousness, it will be in the context of the ordinary designer, correct.
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`JUDGE OBERMANN: And in terms of the ordinary observer,
`don't we look at things like how sophisticated they are, what their tolerance
`is for a difference?
`MR. IRWIN: I don't believe we look at it for what their tolerance is
`for a difference. I think we look at it in the context of how they would
`perceive these designs at the time that they are encountering those designs.
`JUDGE OBERMANN: So why isn't it appropriate in a case like
`this where we're talking about replacement parts for what could be a
`potentially high end vehicle not to say that there's going to be a demand for
`substantial identity between the replacement part and the original part?
`MR. IRWIN: Sure. And we can jump ahead to -- I cover that on
`Slide 9 if you want to flip ahead to Slide 9. But I think that, that looks at it
`from the wrong standpoint, Your Honor. Vehicle designers -- And this is
`testimony from GMs own experts -- Vehicle designers design these parts as
`part of the process of designing the vehicle. And they design the vehicle
`for sell to the retail customer. They're not designing these parts as stand-
`alone items. So they're designing them as part of the vehicle. They're
`presented to the ordinary observer as part of the process of purchasing a
`vehicle.
`(simultaneous speaking)
`JUDGE OBERMANN: May I stop you for just a second --
`MR. IRWIN: Sure.
`JUDGE OBERMANN: -- because I'm having a real problem with
`this. Because when we look at the design, we're looking at a fender.
`Under what scenario, do we look at the whole car?
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`Patent D797,625 S
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`
`MR. IRWIN: Well the fender is part of the car. And the
`testimony is, is the fender is designed as part of the design of a car. So
`when is that fender first presented to the ordinary observer? That fender is
`first presented to the ordinary observer when they go to purchase a car.
`And that's why --
`JUDGE OBERMANN: But I think this is really important because,
`you know, you're sort of rocking the whole world that I had around these
`cases. Because I've always been thinking about this in terms of what's
`going to be acceptable to that post-buyer. You know, the person who's got
`the car. They're going to bring it into a shop. It's got to be acceptable to
`the person who owns that shop and has to get paid by the guy that brought it
`in. Right? And the guy that brought it in, if you get something that
`doesn't look like the other side of the car, if it's a different fender, you know
`-- You've got a couple things going on here. You've got, you know, what
`could be a potentially sophisticated purchase of a high end item. Looking
`to replace, you know, a fender, it's got to look like the other fender on the
`car or they're not going to accept it. Right?
`MR. IRWIN: I agree that when a person is repairing their vehicle,
`they want the repair part to look like the original part. But I do not think
`that's the -- the proper ordinary observer. I disagree --
`JUDGE OBERMANN: Why? Why do we look at it from the
`perspective automobile purchaser and not the perspective person who's
`bringing their car in for a repair? Where does that come from?
`MR. IRWIN: Sure. Think about it in the context that automobile
`manufacturers when they first design a car, they're going out and they're
`getting design patents on all aspects of their car. Some parts may get
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`IPR2020-00534
`Patent D797,625 S
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`injured in a collision and need to get repaired. Other parts might have no --
`never get replaced. They're not typical replacement parts. But yet, we're
`getting design patents for some things that are typical replacement parts and
`some things that are not typical replacement parts. What you're suggesting
`is the ordinary observer for vehicle parts would change, depending upon
`whether or not this is a part that is typically involved in a collision or not.
`JUDGE OBERMANN: Well, I don't want to keep interrupting you,
`but what I'm looking at here is the claim. And the claim is to a fender and
`that's a part that gets hit a lot. So I don't care whether, you know, some
`undercarriage component that never gets hit has a certain design. I'm
`focused on the design that's in front of me, which here, they've claimed a
`fender. So I don't know why --
`MR. IRWIN: Correct.
`JUDGE OBERMANN: -- I don't see why we look at the whole car
`or you know, treat all these parts the same.
`MR. IRWIN: Well to me, it seems incongruent to consider the
`ordinary observer for a vehicle part in one instance different than the
`ordinary observer for a different vehicle part. They're all designed --
`JUDGE OBERMANN: I guess I'm not understanding that. And I
`do want to understand your position because I think it's important. But I
`don't understand where -- do you have a case cite or any kind of comparable
`situation where we look beyond what's actually in the design claim, you
`know, to say that this ordinary observer -- almost like you know, would look
`at the entire thing and not just the thing that's claimed.
`MR. IRWIN: Yeah. We have the case, Pacific Coast Marine
`Windshield versus Malibu Boats.
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`Patent D797,625 S
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`JUDGE OBERMANN: What was the design there?
`MR. IRWIN: It was a design for a windshield for a boat and a
`similar situation. It was a repair context replacement of the windshield for
`a boat. And the court used as the ordinary observer, the purchaser of the
`boat, not the purchaser of the replacement part.
`JUDGE OBERMANN: But was that a Federal Circuit case?
`MR. IRWIN: This is a Federal Circuit 2014 case. Yes, Your
`Honor.
`JUDGE OBERMANN: Okay, thank you. And that's in your
`briefs, yeah.
`MR. IRWIN: It is.
`JUDGE PAULRAJ: On the point about -- and apologies for
`interrupting. Just to clarify about Pacific Coast case, was the issue of
`ordinary observer really disputed in that case? Because frankly I'm
`looking at that case and I don't see any dispute. I'm not even sure that the
`federal circuit said that the consumer should be the ordinary observer as
`opposed to what might be analogous to the repair shop situation here.
`MR. IRWIN: My understanding is that they used the retail
`consumer as the ordinary observer for purposes of doing the analysis of
`substantial similarity.
`JUDGE PAULRAJ: I think my question to you is did they actually
`consider whether or not a repair shop personnel or whatever analogous
`situation might be there for boats, would be more proper for an ordinary
`observer? I frankly don't think the ordinary observer issue was really
`disputed in Pacific Coast, but correct me if I'm wrong.
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`MR. IRWIN: I think it was disputed at the District Court level and
`then not really focused on at the Federal Circuit level. But at the District
`Court level, it was disputed and they used the perspective of the ordinary
`observer of the retail purchaser of the boat.
`JUDGE PAULRAJ: Okay, so is that --
`(simultaneous speaking)
`JUDGE OBERMANN: But if that wasn't a part of the -- If that
`wasn't a basis for the appeal, does it really have any persuasive or
`authoritative weight here? I mean we don't follow what a District Court
`fact-finding on a boat was, you know, unless the Federal Circuit -- that issue
`is taken up. Then we'd have to, you know, give it some serious thought
`whether the Federal Circuit passed on it. Right?
`MR. IRWIN: Well, I think that the District Court decision would
`have persuasive authority just as -- just like any other District Court case,
`Your Honor.
`JUDGE PAULRAJ: Have you cited the District Court case,
`Counsel because I only see a cite to the Federal Circuit decision here?
`MR. IRWIN: I don't know for certain whether we cited the
`underlying District Court case or whether or not there was even a written
`decision in the District Court. We studied that -- the docket of that case
`pretty substantially. And so I'm sort of confusing myself as to whether or
`not it was based upon briefing in the District Court decision or whether or
`not it was -- led to the District Court decision or whether or not it --
`JUDGE OBERMANN: Do we even know -- Do we even know
`whether the patent owner in that District Court case argued that it should be
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`the comparable person that would repair a boat? Do we even know
`whether that issue was raised?
`MR. IRWIN: Yes, Your Honor. We do. We went back and
`looked at the docket and that was the contested issue.
`JUDGE OBERMANN: But we have no record here what the
`parties argued there. And in any event, it wasn't taken up on appeal. Is
`that fair?
`MR. IRWIN: I don't know if -- I don't know if it was challenged on
`appeal or not. I know that -- I mean I -- I don't have the Federal Circuit
`briefing sort of fresh in my mind.
`JUDGE OBERMANN: Sure. I'm sorry. We're sort of asking a
`lot of you because this is -- what might seem like a minor issue. And I'm
`sure you're ready to talk about lots of things. I'm sorry. We're not
`criticizing you for not knowing this. This is in the weeds, but you can tell
`we're very interested in this point.
`JUDGE OBERMANN: Yeah. And I understand that. And I'm
`happy to talk about it as long as Your Honor would like to talk about it. I
`mean I think logically, you know, these -- their own expert testified that
`these parts are designed -- (audio interference) -- designing a car. They
`first presented to the consumer, not as a repair part. They're presented to
`the consumer as part of the car. So --
`(simultaneous speaking)
`JUDGE PAULRAJ: So I'm going to ask you that question because
`I think -- I feel like some of your arguments are internally inconsistent. I'm
`trying to see how -- which directions are those. Because your decision is
`that we should look at the ordinary observer as the automotive purchaser. I
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`don't know about you, but when I go purchase a car, I don't think most
`consumers -- most automotive purchasers just purchase a fender. They buy
`the car as a whole. Right?
`MR. IRWIN: Right.
`JUDGE PAULRAJ: But at the same time, you're saying that when
`we're looking at the design, we should only focus on the particularly claimed
`design rather than any perhaps external features like the hood or other parts
`that -- car parts that are connected to this claim design. So tell me how you
`reconciled those two positions.
`MR. IRWIN: Well GM chose to focus this patent on just the
`fender. And so the way I envision the analysis is the ordinary observer is
`the person who first sees this fender. They see it in the context of
`purchasing a car. And then the question is whether or not that person
`would consider this prior art reference to be substantially similar to the
`fender that it sees when it's looking at the car. And not be distracted by
`other aspects of the vehicle. But looking at just the fender and looking at
`the prior art, would they consider in that context them to be substantially
`similar?
`JUDGE PAULRAJ: So why wouldn't a consumer -- the
`automotive purchaser here not look at other aspects of the car, especially
`those that perhaps are directly adjacent to or otherwise kind of connected to
`the fender parts that are at issue her. I think -- Let me preface it this way.
`Would you agree that the ordinary observer that you're arguing for, the
`automotive purchaser, they don't buy an automotive -- they don't buy a
`fender by itself. They buy the car. Right?
`MR. IRWIN: Correct.
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`JUDGE PAULRAJ: And are you saying that's not withstanding the
`fact that the ordinary observer as you're arguing for, buys the car as a whole.
`They would somehow hyperfocus on the fender in this situation. Is that
`what you're saying?
`MR. IRWIN: No, I don't -- I don't think that they would
`hyperfocus on a fender. In fact, that's the opposite of my argument. And
`in that context -- So from that context --
`JUDGE PAULRAJ: So you're telling us not to -- You're telling us
`not to look -- Wouldn't you at least consider the anticipation issue. We
`shouldn't look at other adjacent components that the fender might fit into.
`You're telling us not to look at what the hood is.
`(simultaneous speaking)
`MR. IRWIN: Right. Right. Judge Paulraj because GM didn't
`include those in the patent. So we can't do that comparison. We can't do
`that comparison.
`JUDGE PAULRAJ: I guess I'm trying to figure out, then that begs
`the question of why are we looking at the ordinary observer from the
`perspective of the automotive purchaser? It seems like you would have a
`much stronger argument that you should look at the fender in isolation if the
`ordinary observer was a repair part person who would perhaps buy a fender
`on it's own. Because they're the one trying to replace these -- replace these
`body parts to make sure it fits into whatever car that they're -- So I could see
`a repair shop person saying I need to get a fender that looks -- that fits into
`my GM car. So I'm going to look at this to make sure that it kind of fits in
`nicely. Don't you think that a repair shop person would much more -- be
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`much more likely to look at a part in isolation as opposed to an automotive
`purchaser?
`MR. IRWIN: I think that, that's probably true. But it doesn't
`change the fact that the proper ordinary observer in this context should be
`the vehicle -- the retail vehicle purchaser. Because I don't think --
`JUDGE PAULRAJ: So you're saying it as -- I'm trying to figure
`out -- It seems like that's just a conclusory statement that you're saying we
`should just, you know, conclude that the ordinary observer is the purchaser -
`- the automotive purchaser, but we know --
`MR. IRWIN: Right.
`JUDGE PAULRAJ: -- an automotive purchaser doesn't buy a
`fender on their own. They buy the car as a whole.
`MR. IRWIN: I understand that, but GM -- GM breaks their car up
`into multiple pieces and patents all these different pieces. Now if they -- if
`another automobile owner -- automobile manufacturer were to use the same
`exact fender on a brand new car, don't you think GM would serve
`infringement as to that fender on that new car?
`JUDGE PAULRAJ: I'm not worried about infringement in this
`case frankly. I don't care what GMs serves in terms of infringement. I'm
`worried about whether or not these patents are patentable.
`MR. IRWIN: Sure. And we're trying to talk about who the
`ordinary observer would be for that purpose. And you know, the ordinary -
`- the ordinary observer shouldn't change depending upon the type of auto
`part we're talking about. There's some parts that get repaired and there's
`some parts that will likely never get repaired. And there's years that go by
`before -- There may be years that go by before anybody ever buys a repair
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`part. And so what about during that period of time when somebody
`introduces a -- Let's assume that nobody ever bought a repair part and yet
`somebody comes out with a car that includes that same -- that same style of
`part. What would you -- I mean who would the ordinary observer be?
`JUDGE PAULRAJ: I mean I think to go to Judge Grace -- to
`Judge Obermann's point. I think we're trying to decide the case before us.
`We're not necessarily trying to decide what might be a hypothetical scenario
`where there's a part that never has to be replaced. So I'll leave it at that. I
`know you have other points you want to cover in your presentation. So you
`can proceed if you'd like.
`MR. IRWIN: Okay. Turning to Slide 5, I'd just point out some of
`the numerous designs that have been found to be substantially similar, not
`withstanding the readily apparent differences. And then turning to Slide 6
`and 7. Slide 6 and 7 now focus on obviousness. And this is from the
`standpoint of the ordinary designer. And again slight differences do not
`preclude a finding of obviousness. Judge Obermann, did you have a
`question?
`JUDGE OBERMANN: No, I apologize. My mouse just fell on
`the floor so I'm a little flustered, but I'm fine.
`(simultaneous speaking)
`MR. IRWIN: Okay. So slight differences do not preclude a
`finding of obviousness even when the prior art is different. You can still
`obviate if the change necessary derived at the claimed events, it would be
`routine or if it's disclosed in a related reference. The ultimate inquiry is
`whether a designer of ordinary skill in the art would find the claim design
`obvious. And when you consider this, you should keep in mind that a
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`designer of ordinary skill is not just sophisticated. But in this situation
`works within an organization with vast, vast resources at its disposal.
`Decades of precedent and expert guidance. And Harvey is not inconsistent
`with this black letter law that I point out. We're not saying that because the
`door cut line is a geometric shape, all geometric shapes for door cut lines are
`obvious. We're not saying because the wheel arch is a geometric shape, all
`geometric shapes for a wheel cut -- for a wheel arch are obvious. We're
`saying that the particular door cut line and wheel arches at issue in this --
`that were part of this patent are obvious.
`And turning to Slide 7, I depict some of the designs that have been
`found obvious in prior cases, not withstanding clear and readily apparent
`differences. And in every case, the court found these designs obvious
`despite these differences because those differences were within the
`knowledge of the ordinary designer. Okay?
`Slide 8, we kind of talked about this. I think the issue is whether or
`not GM says that, you know, you have to pay particular attention to fitment.
`And what I would respond to that is whether an ordinary designer or a
`designer of ordinary skill in the art would be attuned to fitment issues.
`Which really those are really just a subset of a readily apparent differences.
`And you know, GM didn't even disclose these adjoining parts as
`environment. So hence, it's disingenuous to say that we have to consider
`this adjoinment issue when they didn't even disclose this adjoinment in their
`patent.
`(simultaneous speaking)
`JUDGE DANIELS: Hold on, Mr. Irwin.
`MR. IRWIN: Yes, Judge Daniels.
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`JUDGE DANIELS: Let me just -- Let me just interject one thing.
`This might be helpful to the Panel because I think you're hitting a good point
`here. Which is for instance, in the MRC case, there were -- there were
`differences in these jerseys that people saw. You could point them out.
`Correct? But the Federal Circuit still said -- I think what you're telling us
`in that case, the Federal Circuit said how the stitching is done for example is
`an aspect of these designs that's within the level of ordinary skill in the art to
`change or alter. So therefore, that's not like a critical difference that
`separates the two designs. Am I saying that correctly?
`MR. IRWIN: That's correct, Your Honor.
`JUDGE DANIELS: And so for instance in our case, your position
`would be that for example, the -- Let's say the line -- the curvature of the
`right-hand side of the design that would match with a door -- Where there's a
`curvature there that is different, that altering that curvature would not be a
`big deal for one of ordinary skill in the art.
`MR. IRWIN: That's correct, Your Hon
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