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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`DEXCOM, INC.,
`Petitioner,
`
`v.
`
`WAVEFORM TECHNOLOGIES, INC.,
`Patent Owner.
`____________
`
`Case IPR2016-01679 (Patent 7,146,202 B2)
`Case IPR2016-01680 (Patent 8,187,433 B2)
`____________
`
`Record of Oral Hearing
`Held: December 7, 2017
`____________
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`
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`Before ERICA A. FRANKLIN, JON B. TORNQUIST, and
`ELIZABETH M. ROESEL, Administrative Patent Judges.
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`Case IPR2016-01679 (Patent 7,146,202 B2)
`Case IPR2016-01680 (Patent 8,187,433 B2)
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`CALVIN P. GRIFFITH, ESQUIRE
`MATTHEW W. JOHNSON, ESQUIRE
`Jones Day
`500 Grant Street
`Suite 4500
`Pittsburgh, Pennsylvania 15219-2514
`
`ON BEHALF OF PATENT OWNER:
`SCOTT EADS, ESQUIRE
`KARRI KUENZLI BRADLEY, ESQUIRE
`Schwabe, Williamson & Wyatt
`1211 S.W. 5th Avenue
`Suite 1900
`Portland, Oregon 97204
`
`
`
`
`
`The above-entitled matter came on for hearing on Thursday,
`December 7, 2017, commencing at 10:00 a.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`Case IPR2016-01679 (Patent 7,146,202 B2)
`Case IPR2016-01680 (Patent 8,187,433 B2)
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`P R O C E E D I N G S
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`JUDGE ROESEL: We will now hear argument in case
`numbers IPR2016-01679 and 01680, Dexcom, Inc., versus WaveForm
`Technologies, concerning U.S. patent number 7,146,202 and 8,187,433.
`Would counsel please introduce yourselves, starting with petitioner.
`MR. GRIFFITH: Your Honor, Calvin Griffith with Jones Day
`on behalf of the petitioner, Dexcom, Inc. And with me is Matthew
`Johnson, also with Jones Day, and our technical assistant, Alan Eaton.
`JUDGE ROESEL: Thank you.
`MR. EADS: Good morning, Scott Eads from the Schwabe,
`Williamson & Wyatt law firm on behalf of the patent owner, WaveForm
`Technologies, Inc. And I'm here with Karri Bradley, also from Schwabe
`Williamson, and with our technical, Laura Rochellis.
`JUDGE ROESEL: Thank you. So today, according to our
`November 8, 2017, order, each side will have one hour total to present its
`arguments regarding both of the IPRs before us today. Petitioner will
`argue first and may reserve rebuttal time. And patent owner may not
`reserve rebuttal time.
`So the parties are reminded that this hearing is open to the
`public and a full transcript of it will become part of the record. If either
`party wishes to touch on confidential information that is the subject of a
`motion to seal, counsel are asked to please alert the panel or if you see
`the other side is going to touch on such information, we can discuss how
`to handle that at the time.
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`Case IPR2016-01680 (Patent 8,187,433 B2)
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`Each party has filed objections to the other side's demonstrative
`slides. So patent owner's objections to petitioner's slides 30, 31, 32 and
`48 are tentatively sustained on the basis that they contain evidence or
`arguments not presented in the briefing. Patent owner's remaining
`objections are overruled.
`Petitioner's objections to patent owner's slide 39, the second
`bullet, and slides 40, 58, 59, 65 and 66 are tentatively sustained on the
`basis stated in petitioner's objections. So neither party may refer to the
`slides that I have just listed unless they first present an argument that
`convinces us to overrule the objection. So as a courtesy, counsel should
`refrain from interrupting the other side's presentation. Any objection
`should be stated during your own argument.
`So with that, petitioner may begin. And please let us know how
`much time you would like to reserve for rebuttal time.
`MR. GRIFFITH: Sure, Your Honor, I anticipate using
`45 minutes in my opening remarks and reserving 15 minutes rebuttal,
`best approximation right now. Could be 45 to 50 minutes for opening.
`JUDGE ROESEL: That's fine.
`MR. GRIFFITH: Your Honor, we have hard copies, color
`copies of our demonstratives that we can hand up to the Board if that
`would be -- if the Board would wish and would like to have a hard-copy
`handy.
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`JUDGE ROESEL: Please do.
`MR. GRIFFITH: Your Honors, there are a number of grounds
`of unpatentability that are at issue today. The Wilson plus Rosenblatt
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`ground is common to both the '202 and '433 patents, so to both IPRs.
`Primarily the case boils down to these two issues, would it have been
`obvious in June 2003 to use a platinum-clad tantalum electrode instead of
`a platinum-iridium electrode or a platinum electrode in an implantable
`glucose sensor; and second, does Hagiwara anticipate.
`Your Honors, this is a case of a simple substitution of one
`known sensor wire for another, just substituting a platinum-clad anode
`for a platinum anode. Both were well known. The motivation is to
`reduce cost, and that motivation is explicitly described in the references.
`It yields a predictable result, lower cost and the anode that functions
`entirely as an anode. And that is exactly what Section 103 and KSR, the
`doctrine of obviousness, are all about. It's why we have it in the patent
`statute. This is a textbook case of obviousness.
`Now, the patent owner has mounted a number of arguments
`against our prima facie case of obviousness and they essentially relate to
`these issues. The first is whether Rosenblatt is analogous art. It
`addresses the same problem as the '202 and '433 patents, a point that the
`patent owner virtually ignores in its response and in its slides filed earlier
`this week. It's a bit of an ostrich sticking its head in the sand, I would
`submit. The only problem that the patent owner discusses at any length
`is sensor breakage rather than cost savings, the high cost of platinum that
`Rosenblatt explicitly calls out and that the '433 and '202 patents call out.
`Yet that breakage problem is related to the robustness characteristic that
`was actually stricken from the claims. It was removed from the claims
`early on in the prosecution history.
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`In any event, excessive costs of platinum anodes is a problem
`that the WaveForm patents address explicitly and is exactly pertinent to
`the problem addressed by Rosenblatt. It is the same problem. So
`Rosenblatt is analogous art under In re Bigio.
`The second big issue that we are looking at is whether the
`Rosenblatt/Wilson combination yields a platinum-clad tantalum wire that
`is structurally flexible. And the '202 and '433 patents explicitly admit
`that such a wire is structurally flexible. The patent owner tries to avoid
`this conclusion by adding a robustness requirement, as I said earlier, that
`was dropped early on in the prosecution. So it's a part of the prosecution
`history that the patent owner essentially ignores. Another ostrich
`situation, I believe. The requirement of robustness does not exist in the
`issued claims. And even if it did, it would not save the day for the patent
`owner. The Wilson/Rosenblatt combination results in a platinum-clad
`tantalum wire with a robust flexible core. The combination meets the
`structurally flexible requirement of the claims.
`The third issue we are going to be honing in on today with
`respect to this combination is whether the Wilson/Rosenblatt
`combination yields a sensor in which the electrochemically active layer
`contacts the core, is in contact with the core.
`JUDGE ROESEL: Counsel, on that last bullet, the requirement
`of the claim is actually that the electrochemically active layer contacts the
`outer surface of the core.
`MR. GRIFFITH: Correct. That's exactly right, Your Honor.
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`JUDGE ROESEL: And the argument has to do with this
`intervening alloy layer in the Rosenblatt reference; is that right?
`MR. GRIFFITH: It does, Your Honor.
`JUDGE ROESEL: So in that structure where you have this
`intervening alloy layer, where exactly is the outer surface of the core?
`MR. GRIFFITH: It is the alloy layer, Your Honor. In other
`words, we would say that the alloy layer is the outer surface of the core.
`In the same way that in claim 7 of the patent, the patents-in-suit, you can
`have a tantalum oxide layer at the surface of the core as the surface of the
`core. So there's nothing about the word "core" that requires that the core
`be made of a single pure substance or that it not have more than one layer
`or that it be uniform in composition from the most interior spot to the
`surface. And indeed, claim 7 is perhaps the best example of that.
`Another example is the fact that the core can be made of an alloy. So for
`example, nitinol is a material that may be used for the core. So you could
`have a mixture of materials in the core. There's nothing about that word
`"core" that says you can't have -- it must be a pure tantalum material from
`outer surface to inner-most interior of the core.
`JUDGE ROESEL: So to be more precise, it's petitioner's
`position that in the Rosenblatt structure the outer surface of the core is
`the boundary between the alloy and the platinum layer on the outside?
`MR. GRIFFITH: Yes. In other words, it is the alloy layer,
`what is called the alloy layer, platinum is diffused into the tantalum core,
`and that would be the outer surface of the Rosenblatt core. Even -- I
`would say, Your Honor, that even if one viewed it interior of that, I
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`would say it does touch -- unquestionably, the platinum layer that's
`placed on that touches tantalum particles that are diffused into that
`one-micron layer. It's a one-micron layer. It's a very thin layer. It's
`actually thinner than a micron because it goes on as a micron layer, but
`then the wire is drawn to make it thinner. So it starts out with a
`6.7-millimeter wire and then after drawing, the diameter of the thing is, I
`believe it was, 670 microns.
`JUDGE ROESEL: So petitioner's proposed construction for the
`term "outer surface" is exposed surface. So does petitioner contend that
`that alloy layer, the boundary between the alloy layer and the platinum
`layer is an exposed surface?
`MR. GRIFFITH: Yes. In other words, in the
`Wilson/Rosenblatt combination, that outer surface that is
`platinum-tantalum alloy is an exposed surface that is then covered with
`the platinum. So the platinum keeps it from being exposed to bodily
`fluids in that Wilson/Rosenblatt combination.
`JUDGE ROESEL: So at what point in the process or method of
`using this sensor is that surface between the alloy and the platinum
`exposed?
`MR. GRIFFITH: Well, it's exposed at the sensor window. So
`perhaps -- thank you, Mr. Johnson. We've put up on the slide here the
`diagram of the sensor window materials. And so on the left is the
`electrode.
`JUDGE TORNQUIST: Which slide are you on?
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`MR. GRIFFITH: This is from Exhibit 1004, page 6. So on the
`left is the electrode surface. And that has platinum on the surface. In this
`Wilson diagram, it is platinum or platinum-iridium, a platinum alloy.
`And platinum iridium is one of the alloys that the '202 and '433 patents
`explicitly say you can use as the expensive platinum metal on the surface
`of the core.
`So in the Wilson/Rosenblatt combination, Your Honor, you
`would have a core to the left of what we see in this diagram. Could we
`move that picture down a little bit. No, no, the other diagram. So in the
`combination, you would have platinum next to what is called the inner
`membrane there, and then to the left of that you would have the
`Rosenblatt core, the tantalum core that has a tantalum-platinum alloy at
`the surface. So what's happening is and what the '202 and '433 patents
`are saying we -- needs to be done is to prevent fluids from getting
`through to that tantalum core. So as a result of putting platinum on it,
`you prevent the bodily fluids from getting to it.
`Another drawing, Your Honor, would be, if we could go to
`slide 28 of the presentation, so we've included this figure in our slide
`deck to illustrate the very structure that Your Honor was asking about.
`So this is the tantalum portion, and then on that is the platinum-tantalum
`alloy. It's not drawn to scale here, Your Honor. That alloy layer is less
`than a micron thick. And then there would be a thicker platinum layer on
`top of that.
`JUDGE ROESEL: We are referring to slide 28. Counsel,
`could you please point us to where is the outer surface of the core.
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`MR. GRIFFITH: It's the top in this drawing -- oriented in this
`drawing, it's the top of the red. So in other words, we are saying the core
`is the red and the orange.
`JUDGE ROESEL: Did petitioner's expert testify that that
`surface is an outer surface in accordance with petitioner's proposed
`construction?
`MR. GRIFFITH: He did, Your Honor.
`JUDGE ROESEL: Can you direct us to that testimony.
`MR. GRIFFITH: We can. My associate will get me that cite.
`And what this is analogous to, this is structurally identical to what is in
`claim 7 of the patents. So claim 7 calls out that the analyte sensing
`element of claim 1 wherein said outer surface of said core comprises a
`passivated oxide surface. So we know from this that -- and
`unquestionably, everyone agrees that that red in this drawing is -- the top
`of that would be the outer surface of the core.
`And so we know from this that the patent allows for having a
`core that is not uniform in terms of its composition. So the orange in this
`drawing would be pure tantalum and if it's a tantalum oxide core. It
`doesn't have to be tantalum oxide. And claim 7 doesn't require it be
`tantalum oxide. It's any metal oxide.
`But you have the metal oxide on the metal itself on another
`metal. So compositionally those are different chemicals. And so you
`have layers. You have two layers here. The word "core" does not
`prohibit that. So that's the nature of the issue here, Your Honor. It's not
`the only issue, because Rosenblatt also discloses that you can just -- his
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`preferred process is this bonding layer because you get better bonding.
`He says you avoid flaking by doing that. So he was concerned that if you
`don't do that, that you would have flaking. So you use this bonding layer
`less than a micron thick and that when you put platinum on that it adheres
`nicely to it, and it's on the surface of the core. Every bit as much as in
`claim 7, the platinum is on the surface of the core even though there is a
`metal oxide layer between that. And if it's tantalum, pure tantalum, or if
`it's nitinol, it would be nitinol alloy. Whatever you select for that core,
`that metal oxide layer would be structurally between them. That's the
`same structurally as in the Wilson/Rosenblatt combination for that
`bonding layer embodiment.
`JUDGE TORNQUIST: So what if it's a carbon layer? Say
`during the processing you actually get a carbon layer over the tantalum.
`Is that the outer surface of the core?
`MR. GRIFFITH: I would think that claim 1 doesn't prohibit
`that. Yes, Your Honor, I would think that one could use -- you know, I
`don't think the claim would prohibit such a thing.
`JUDGE TORNQUIST: And what if it was Teflon?
`MR. GRIFFITH: Again, I think that that's not prohibited by the
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`claim.
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`JUDGE TORNQUIST: So it could be anything that's touching
`the core could be the outer surface of the core, then?
`MR. GRIFFITH: Yes. What I'm saying, Your Honor, is that
`the core can be a multilayer thing. Plastic, Your Honor mentioned
`Teflon. Plastics are called out as options for the core. So what I'm
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`saying is that you are not restricted when you pick a core material from
`laminated to only one specific material or never having more than one --
`it can have a layer in it. So, yes, if one chose plastic to put onto another
`material, that could make up the core, absolutely.
`JUDGE ROESEL: Does the outer surface of the core need to
`exist before it's coated or plated or deposited with the electrochemically
`active material?
`MR. GRIFFITH: I would think so, Your Honor. I haven't
`thought of that question before, but -- I haven't thought about whether
`one could form an outer surface of the core in situ. In Rosenblatt it
`certainly exists before the platinum is put onto it.
`JUDGE ROESEL: How so?
`MR. GRIFFITH: Well, so what happens in Rosenblatt in the
`bonding layer embodiment, so you take a tantalum wire and then you --
`the example that he gives, it was 6.7 millimeters is then coated with a
`one-micron coating of platinum. And then that is heated at high
`temperatures, in the nature of 1,000 degrees. And that causes this
`diffusion of platinum into the tantalum. And he calls it an alloy layer.
`And then after that, the pure platinum coating is put on. That is
`the electrochemically active metal layer. So that is the layer that on
`which electrochemical reactions occur. The enzymes are having the
`effect so that hydrogen peroxide is generated and so forth or whatever
`electrochemical reaction one is doing.
`So that is a pure platinum layer that then beneath it is the
`platinum alloy very thin surface bonding layer. It's just on there to
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`increase the bonding to the core. But it's on there, absolutely, before the
`second step of the thicker 10 to 15 microns it can be or maybe it was 20,
`25 microns, something like that, layer is put on.
`JUDGE TORNQUIST: Would you just point us to that in
`Rosenblatt, the two steps.
`MR. GRIFFITH: Sure. So Your Honor, I'm at columns 4 and
`5. We see at line 70 of column 4 and on to column 5 a heavy deposit of
`platinum metal may be applied to the tantalum base by electroplating in
`the manner described above. So this is how you get a nice platinum
`metal layer on the base. However, if such a heavy deposit exceeds
`approximately one micron in thickness, it cannot be successfully bonded.
`So therefore, it is desirable to apply a primary coat. He calls this
`platinizing. It's a primary coat which does not exceed one micron in
`thickness. It could be less, but it does not exceed one micron in
`thickness. Following the bonding of the primary coat to the tantalum
`base in the manner as hereinabove, a second coat of any desired
`thickness, such as, for example, 25 microns, that's what I was just
`referring to, may be electroplated upon the surface of the thin primary
`coat. The blistering which occurred, as stated above, when a thick
`platinum metal deposit is electroplated directly on the tantalum base does
`not occur. So that's what it's getting to.
`And then in column 5, the example that it gives of this is the
`6.7-millimeter rod onto which a one-micron thick bonding layer is placed
`and then followed by 25 microns of the platinum. That platinum that
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`goes on second is your electrochemically active metal. That's what's
`functioning for the electrochemistry of this wire.
`And then it goes on to explain, you know, in that example that
`when you do that, you get something that doesn't flake. And in fact, it
`even says towards the end of that that it produces something that doesn't
`have brittleness because you can get some brittleness with tantalum oxide
`when it's on the surface.
`JUDGE ROESEL: So again in this column 4 to 5 description,
`please identify where is the outer surface of the core and also where is
`that in the record, in the expert testimony or elsewhere that's been
`identified?
`MR. GRIFFITH: Okay. So the first, the outer surface is that
`second -- it's the one-micron or less than one micron alloy layer. So you
`put that one-micron platinum alloy layer on there, you cook it at 1,000
`degrees or something like that, and that outer surface that is that
`tantalum-platinum alloy is the outer surface of the core.
`JUDGE ROESEL: Before or after bonding?
`MR. GRIFFITH: Well, after cooking it, it is the bonding layer.
`So after cooking, I would say, Your Honor. So after you cook it, then it's
`ready to have the thicker platinum layer put onto it.
`Now, we have in our reply, Your Honor, is where we called out
`the diagram that I had up earlier and where we explained that our
`position that it's the outer surface of the red that is the outer surface.
`JUDGE ROESEL: What page of the reply, please?
`MR. GRIFFITH: Pardon me?
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`JUDGE ROESEL: What page of the reply?
`MR. GRIFFITH: I'm sorry, page 17 of the reply. And what we
`are doing here is we are analogizing it directly to that claim 7
`embodiment that has tantalum oxide. So in that embodiment, tantalum
`oxide, that layer is the outer surface of the core. And then you have your
`platinum on that. So it would be the outer surface, Your Honor, would
`be in the claim 7 embodiment, the line between the blue and the red or
`the orange. I'm not sure which color that is. But it would be the very
`outer surface of the tantalum oxide. As we've said in our brief on
`page 17, it would be the platinum-tantalum alloy that would form the
`outer surface of the core.
`And we would note, Your Honor, that they have said that with
`respect to -- can we go back to slide 28. They have said that the problem
`with this is that first they say tantalum oxide is naturally occurring. So
`they say therefore, in other words, tantalum will naturally oxidize so that
`you'll have tantalum oxide on the surface. So therefore, a layer of a
`dissimilar chemical in that circumstance is permitted on the core. But
`they say if it's a metal, that is not permitted. And we submit, Your
`Honor, that there's no principled distinction between the two. I mean,
`when they argue things like the platinum-tantalum alloy is brittle, their
`expert said it's brittle, but we have a scientific treatise that explains that
`tantalum oxide is generally more brittle than metals. And indeed, in
`Rosenblatt he made sure that he didn't have tantalum oxide on the surface
`because he wanted to avoid flaking. And he uses bonding layer which
`avoided flaking. That's the reason he did that. But that upper red surface
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`there is the outer surface. I mean, Your Honor, metaphysically I don't
`know if one views the surface as having depth or not, but to point -- so
`whether it's exactly the atoms of the very top surface in this drawing or if
`one views the surface as having depth to it, it would be the red.
`JUDGE ROESEL: Counsel, I'm concerned that the
`interpretation of Rosenblatt columns 4 and 5 that we just heard today is a
`new argument. I don't recall this from the briefing.
`MR. GRIFFITH: Your Honor, this is in our reply brief that we
`submitted. So we can go back to pages 16 and 17 of the reply.
`JUDGE ROESEL: When you say reply, please do identify
`which case you are talking about, because we do have two reply briefs.
`MR. GRIFFITH: We are putting up on the screen from
`IPR 1679, but it's also in 1680. So this is page 16 which shows this claim
`7 embodiment that I was discussing a moment ago. So we just took these
`drawings in the slides, we took it out of our brief.
`JUDGE ROESEL: And where is the analysis of Rosenblatt
`columns 4 and 5?
`MR. GRIFFITH: Well, it's the next page. And I'll have to --
`we've discussed Rosenblatt columns 4 and 5, the example, the .67 micron
`diameter wire was also described in the brief. I don't have that page with
`me off the top of my mind. But that example where the .67-millimeter
`layer or .67-micron wire is called out by our expert and was called out.
`Okay. So page 15 further elaborates our reply brief in case 1679, but this
`is also in 1680. So we have two regimes here.
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`And by the way, Your Honor, so this responded, the reason this
`is in the reply brief is they made the argument in their opposition brief
`that the bonding layer in this bonding embodiment in Rosenblatt is a
`separate layer that prevents -- it's not part of the core. And they said it
`prevents the platinum from contacting the core. So this responded to that
`argument in their brief, that's what this is. That's why this is in here,
`because they said in their opposition, with Rosenblatt, that bonding layer
`is not the core. And we had viewed that that prepared wire that
`Rosenblatt talks about as the core. And then they called this out
`specifically and said, no, that alloy layer is not part of the core; it's
`different, and you are not allowed to have a metal layer in between the
`core and the platinum is basically the gist of their argument.
`And they argued that claim 16 of, I believe, '433 is phrased in
`language they said that illustrates that a metal, another metal layer can't
`be viewed as part of the core. So claim 16 calls out having the stainless
`steel core and then having a gold layer on that and then a platinum
`layer -- I'm sorry, I can't remember the third layer right now. But it's
`another layer, the platinum or another metal layer on top of that. That
`was the genesis of this issue.
`Now, that said, Your Honor, we believe so Rosenblatt does
`teach platinum-clad tantalum wires. That's the very first couple of
`paragraphs at the bottom of column 1, at the top of column 2. It
`describes processes for making those. And it says, you know, these have
`some flaking. These have problems with bonding between that platinum
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`layer and the tantalum core. So Rosenblatt says the cure for that is to
`prepare the surface right so that it bonds well.
`Now, that broad concept that's disclosed in Rosenblatt as well
`of just platinum onto tantalum, we would say -- Rosenblatt found some
`problems with that in 1955. This is why we cited those additional
`exhibits. Some of them, four of them had been cited in our original -- I
`think it was in the original brief they had not been submitted as exhibits.
`But those describe how platinum-clad tantalum wires have become
`commonplace in a variety of contexts, in implants and so forth. Now,
`this is the subject of the motion to exclude.
`MR. EADS: I would --
`JUDGE ROESEL: Counsel, wait for your own argument.
`Thank you.
`You may proceed.
`MR. GRIFFITH: So those six patents are the subject of the
`motion to exclude. I would submit, Your Honor, that those were not
`being submitted, we are not submitting them to provide a replacement
`ground of unpatentability. The ground for unpatentability that we assert
`is Rosenblatt plus Wilson.
`The purpose of asserting those patents was, one, to provide
`evidence of the state of the art and the level of skill in the art as of 2003.
`So skilled artisans by 2003 had on numerous occasions been able to make
`platinum-clad tantalum wires. So three of those exhibits were related to,
`in fact, implants, cardiac pacemakers, and they were just platinum-clad
`wires used in cardiac pacemakers. And then three other explained that
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`this was cheaper than using platinum wire. So there was a cost savings in
`using the platinum-clad tantalum wires. And those were submitted as
`further evidence on motivation to combine as well as state of the art.
`And Your Honor ruled out some of our demonstrative exhibits
`that talked about those. I would -- I'm not sure what the basis for that is.
`They are not new argument. Those things are all cited in our briefs and
`discussed in the reply brief. And the primary basis that the patent owner
`had for wanting those out was this motion to exclude.
`JUDGE ROESEL: For the structure of the tantalum or
`platinum-clad tantalum structure, we should look at Rosenblatt, right?
`MR. GRIFFITH: Yes. And so he discloses basically two
`structures. He discloses platinum directly on tantalum and then platinum
`with this bonding layer that we say is part of the core. It acts as a surface
`of the core in the same way that tantalum oxide acts --
`JUDGE ROESEL: And he says the first one doesn't work,
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`right?
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`MR. GRIFFITH: He criticizes it and I think says it's not
`satisfactory. In other words, what he found was he was getting peeling
`off of the platinum. And so they say that's a teaching away. But these
`subsequent patents are evidence of there is no demotivation, if you will,
`to have platinum directly on tantalum.
`JUDGE ROESEL: So when it comes down to it, we basically
`need to find that -- to find for petitioner, we need to find the structure
`shown in slide 28 with the intervening alloy layer meets the limitations of
`the claims; is that right?
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`MR. GRIFFITH: I don't think you need to, Your Honor, but I
`think that it clearly does. And I think that in most respects that involves
`fewer issues. So the issues that it involves is whether that metal alloy
`layer, that platinum-tantalum alloy layer is part of the core, it's a claim
`construction issue, whether a core has to be pure and can't have other
`layers or not or whether it can be nonuniform, if you will, in terms of its
`chemical makeup.
`And then the second issue that it involves is they say that if
`that's part of the core, that that will cause flaking off, and for that reason
`or some reasons that are not perfectly clear to me, will cause that wire to
`not be structurally flexible. That's the argument.
`It's wrong. First, Rosenblatt says you don't have flaking off.
`That's the point of using that, that bonding layer. And two, again,
`comparing to the structure for claim 7, the tantalum oxide layer, tantalum
`oxide would be even more brittle. So brittle -- so having that thin layer
`on there, it's a powder. Tantalum oxide is a powder. So having that t
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