[00:00:00] Speaker 05:
The final case for argument is 23-2395 in Rape Royale.

[00:00:41] Speaker 01:
Good morning.

[00:00:45] Speaker 01:
Good morning.

[00:00:46] Speaker 01:
My name is Michael Drew.

[00:00:48] Speaker 01:
I represent the applicant inventor, in this case, of Mrs. Bonnie Iris McDonnell-Floyd.

[00:00:56] Speaker 01:
I was the blue brief.

[00:00:57] Speaker 01:
So I'm going to, if I could, direct your attention to pages five and six of the blue brief from the brief of the appellant.

[00:01:07] Speaker 01:
Page five shows.

[00:01:12] Speaker 01:
figures from the utility application for this case.

[00:01:17] Speaker 01:
Page six shows the drawings from the design application.

[00:01:24] Speaker 01:
Now, this case is about a design application and claims for priority to the utility application.

[00:01:35] Speaker 05:
Did the utility patent ever issue?

[00:01:37] Speaker 01:
No.

[00:01:37] Speaker 01:
Is that a ban?

[00:01:38] Speaker 03:
No, no, that was a ban.

[00:01:40] Speaker 03:
Mr. Drew, is there any reason why you could not amend the design application to delete one of the columns so that the design would show a four by six pattern similar to figure 1A of the utility?

[00:02:01] Speaker 01:
Well, to be honest, your honor,

[00:02:04] Speaker 01:
That never came up.

[00:02:05] Speaker 01:
I'll have to be honest with you.

[00:02:07] Speaker 01:
Never considered that.

[00:02:09] Speaker 01:
It was not anything that came up in the exam.

[00:02:10] Speaker 03:
I mean, if you amended the desire, the application is pending.

[00:02:16] Speaker 03:
If you amended it, then you would have clear, arguably, you would have clear support in the parent.

[00:02:23] Speaker 01:
I suppose so.

[00:02:24] Speaker 01:
I'm not sure what.

[00:02:26] Speaker 03:
I mean, I don't know whether you run into any file wrap or estoppel of any sort, but you're not overcoming a reference.

[00:02:34] Speaker 03:
You're just clarifying the record to provide written description support.

[00:02:40] Speaker 01:
Yeah, and I can't say.

[00:02:42] Speaker 01:
I don't know whether we'd be here.

[00:02:43] Speaker 01:
What would that be?

[00:02:45] Speaker 01:
A bit of a hypothetical.

[00:02:46] Speaker 01:
Yeah, yeah.

[00:02:47] Speaker 01:
I have to say that never came up.

[00:02:51] Speaker 01:
We never discussed that with the examiner.

[00:02:53] Speaker 01:
I'm not sure what our approach examiner would have.

[00:02:56] Speaker 01:
But I mean, it's certainly not something I will look into.

[00:02:59] Speaker 02:
Mr. Drew, could I ask you to just speak up a little bit?

[00:03:01] Speaker 01:
Oh, I'm sorry.

[00:03:02] Speaker 01:
Yeah.

[00:03:02] Speaker 01:
Thank you.

[00:03:03] Speaker 01:
Yes, sure, sure.

[00:03:06] Speaker 01:
The blanket, a cooling blanket, the idea of the cooling blanket is to provide some immediate on-site relief to humans or animals or other animals or humans for any kind of ill effects suffering from any sort of heat-related illness, like a heat stroke or some sort of heat exhaustion.

[00:03:30] Speaker 01:
It's also useful

[00:03:32] Speaker 01:
in case of something like a heart attack.

[00:03:34] Speaker 01:
Any kind of emergency where lowering the body temperature of an individual would provide a... With respect to the design patent, everything you just said is irrelevant.

[00:03:43] Speaker 01:
Yes.

[00:03:44] Speaker 01:
Okay.

[00:03:45] Speaker 01:
Yes.

[00:03:45] Speaker 01:
I'm trying to get some background for the utility.

[00:03:50] Speaker 01:
I just mentioned that because the design of the utility application is a series of

[00:04:00] Speaker 01:
It's a plurality of rectangular compartments that are separated or arranged in a cross-hatching arrangement in a rectilinear substrate.

[00:04:16] Speaker 01:
The channels that separate the compartments from one another have apertures.

[00:04:24] Speaker 01:
This case has come before you for one reason and one reason only.

[00:04:29] Speaker 01:
During the prosecution of the design case, the examiner made what I'm terming and we're calling an observation.

[00:04:37] Speaker 01:
That observation is that the number of rectangular portions of the blanket is different in the utility application from those shown in the design application.

[00:04:49] Speaker 01:
Well, that's correct, is it not?

[00:04:51] Speaker 01:
Isn't that correct?

[00:04:53] Speaker 01:
That is correct.

[00:04:54] Speaker 01:
The reason that we frame it as an observation rather than a fact is that we're concerned that if we say it's a fact, that tends to have some kind of implication that perhaps there is some legal significance to it.

[00:05:05] Speaker 01:
Our position is that it's an observation while it's not really a legal significance in the sense that there is no legal consequence to the fact that it is different.

[00:05:16] Speaker 02:
The examiner did not agree with that, right?

[00:05:19] Speaker 02:
I think the examiner thought there was a legal consequence.

[00:05:22] Speaker 02:
The examiner thought there was a legal consequence.

[00:05:25] Speaker 02:
I think it's a fact question whether there's written description support for the design in the earlier utility application, right?

[00:05:34] Speaker 02:
That's a fact question.

[00:05:35] Speaker 02:
But there is a legal consequence.

[00:05:38] Speaker 01:
There is a legal consequence, but I don't think that only because it has been made a legal consequence by this case.

[00:05:46] Speaker 01:
It's an observation, but I think the case law shows that it is an observation.

[00:05:53] Speaker 01:
There is no real legal consequence that fits within the test set forth by this court as far as analyzing.

[00:06:02] Speaker 05:
But you've got different numbers of rec tables.

[00:06:05] Speaker 05:
You've got six and four.

[00:06:08] Speaker ?:
Yes.

[00:06:08] Speaker 05:
the utility and six and five in the design.

[00:06:13] Speaker 05:
Why was the board not correct in concluding that it shouldn't get the priority day?

[00:06:19] Speaker 01:
Well, because the general case, the general analysis that is set forth by this court is that there is a test.

[00:06:27] Speaker 01:
And you guys know it as well as I can, as well as I could recite it.

[00:06:31] Speaker 01:
But the test is whether there's a written description that would show that the utility application has there's a port in the utility application to satisfy the written description requirement

[00:06:47] Speaker 02:
Do I have it correct that the test is whether, I guess it's either a person of ordinary skill in the art or a designer of ordinary skill would look at the utility application and see if the designer was in possession of the design and the design patent, right?

[00:07:05] Speaker 02:
In looking at the utility patent.

[00:07:07] Speaker 01:
Yes, at the time of

[00:07:09] Speaker 01:
the utility patents.

[00:07:11] Speaker 02:
Given the breadth of design patents generally, and the fact that this is a written description is a question of fact, so in other words we just have to look whether the board's finding was unreasonable, why isn't it

[00:07:26] Speaker 02:
not unreasonable to say, well, I look at one figure, they're different from one another.

[00:07:32] Speaker 02:
And we're talking about a design here.

[00:07:34] Speaker 02:
And you can't rely on obviousness in order to provide written description support for something.

[00:07:42] Speaker 02:
Our case law says that.

[00:07:43] Speaker 01:
No, but I think the case law is that at the time,

[00:07:46] Speaker 01:
of the filing of the utility application, would that reasonable person have seen that their, would the applicant, would the inventor have been in possession of the design shown in the design application that is claimed in the design application?

[00:08:04] Speaker 05:
So how would we know that he was in possession here if he disclosed the two different configurations but not the one included in the design patent?

[00:08:12] Speaker 01:
I think if you look at, and there are cases that support that, you look at several factors.

[00:08:20] Speaker 01:
One is that you're looking at the common subject matter, common subject matter of the drawings in the utility application and the common subject matter of the drawings in the utility application as compared to the drawings of the design application.

[00:08:37] Speaker 01:
Common subject matter is not limited to a specific

[00:08:42] Speaker 01:
numerical numbering.

[00:08:46] Speaker 05:
What limitations apply to your principle?

[00:08:50] Speaker 05:
What's the limiting principle?

[00:08:52] Speaker 05:
If there were 12 by 4, what would be covered under the written description requirement of utility?

[00:08:58] Speaker 05:
Any number of rectangles?

[00:09:01] Speaker 05:
Is there a limit to the number of rectangles or the difference between the horizontal and the vertical?

[00:09:08] Speaker 05:
What are the limiting principles in your analysis in terms of what else would come in?

[00:09:13] Speaker 01:
I think in this case, because we're talking about a design application, we're looking at a design application, which is depending upon, is relying upon,

[00:09:23] Speaker 01:
the utility application.

[00:09:25] Speaker 01:
So a lot of cases show that, OK, the design application may depend upon utility application.

[00:09:32] Speaker 01:
Cases show that you look to the drawings.

[00:09:34] Speaker 01:
OK, there are the drawings.

[00:09:36] Speaker 01:
And also cases show that you're looking for common subject matter.

[00:09:41] Speaker 01:
And again, because we're talking about a design, the aesthetic features, the visual impressions, the ornamental design, it's the look.

[00:09:53] Speaker 01:
And I guess if you had to put it in terms of language, because sometimes, even though we're talking about visual representations, if I would say the language, again, I would say it's the plurality, a number of rectangular compartments separated by a cross-hatching of channels, of aperture channels within a rectilinear boundary.

[00:10:19] Speaker 01:
And so if you look at that.

[00:10:21] Speaker 02:
It could be 100 by 100, and that would still, if it was 100 by 100, you would still think, you know, 100 of these rectangles by 100 of the rectangles, you still think that that would provide, have support from the utility application.

[00:10:37] Speaker 01:
I think it could.

[00:10:38] Speaker 01:
I mean, it doesn't limit it.

[00:10:40] Speaker 02:
I don't think you need to go that far.

[00:10:42] Speaker 01:
Well, I don't think you need to go that far.

[00:10:43] Speaker 01:
But I think if you look at the visual representation, and again, we're talking about, OK, we said, OK, we've got a 6 by 4.

[00:10:50] Speaker 01:
We've got a 6 by 6.

[00:10:51] Speaker 01:
We're going to show a 6 by 5.

[00:10:52] Speaker 01:
And in addition, I think what's important is that there is an actual written portion.

[00:10:59] Speaker 01:
In other cases, say, you look to the drawings for the written description.

[00:11:03] Speaker 02:
If this specification of the utility patent

[00:11:07] Speaker 02:
had said you know instead of having six by six as shown in figure one you could have a five by six a four by six a three by six or you know or yeah 12 by 12 if it had specifically indicated five by six i don't know if we'd be here today but it doesn't does it

[00:11:24] Speaker 01:
Well, it doesn't.

[00:11:27] Speaker 01:
We're showing the six by six and the six by four as embodiments, but the language, the actual written portion of the written description, which includes the drawings for sure, but which also includes the language in the specification, does talk about plurality.

[00:11:45] Speaker 02:
But it doesn't talk about, if I remember correctly,

[00:11:48] Speaker 02:
I didn't see anything where it said you could increase or change the number of rectangles.

[00:11:53] Speaker 02:
It was a little more vague than that.

[00:11:56] Speaker 02:
And the board said that that could mean that you're increasing the size of the rectangles as opposed to altering the number of rectangles.

[00:12:04] Speaker 01:
I think it didn't say a lot of things, but what it did say was that this is a representation, this is an embodiment, and there are general possibilities as to the size.

[00:12:17] Speaker 01:
And again, we're not claiming all these other things that it could have been this, it could have been that.

[00:12:22] Speaker 01:
We're saying, OK, we're claiming

[00:12:24] Speaker 01:
what we're showing here in the drawing of the design application.

[00:12:29] Speaker 01:
I have another question.

[00:12:31] Speaker 01:
Go ahead.

[00:12:31] Speaker 01:
And we think that that squarely fits within whether or not the inventor had that in her mind at the time that that utility application was filed.

[00:12:43] Speaker 02:
Got it.

[00:12:44] Speaker 02:
OK.

[00:12:44] Speaker 02:
I have a little question.

[00:12:45] Speaker 02:
Sure.

[00:12:46] Speaker 02:
My little question is, I noticed that unlike the utility patents, the design patents show some loft.

[00:12:53] Speaker 02:
some three dimensionality that's in the figures.

[00:12:57] Speaker 02:
Was there any attention to that by the examiner or the board as being a distinction?

[00:13:03] Speaker 01:
We addressed that.

[00:13:04] Speaker 01:
I think the examiner asked about the significance of that.

[00:13:08] Speaker 01:
And I believe that during the examination, we said that they were contour lines.

[00:13:16] Speaker 01:
And that did not relate to the design aspects.

[00:13:19] Speaker 01:
You said that they were what?

[00:13:20] Speaker 01:
Contour lines.

[00:13:21] Speaker 01:
In other words,

[00:13:22] Speaker 02:
I mean, they're not dotted.

[00:13:24] Speaker 02:
Maybe I misunderstand design patent law, but I thought that all of the design counts in a design patent, unless the lines are dotted.

[00:13:37] Speaker 01:
I can't remember the exact section of the exact language, but these lines were considered to show the contours, that there was some three dimensionality.

[00:13:47] Speaker 01:
to these compartments, and we drop that, we remove that.

[00:13:51] Speaker 01:
Well, we didn't remove it.

[00:13:53] Speaker 01:
We indicated in response to examiner's question that those were contour lines and not considered to be a part of what was being claimed as a subject matter.

[00:14:03] Speaker 04:
OK.

[00:14:03] Speaker 04:
Why don't we hear from the other side, and then we'll change your rebuttal.

[00:14:08] Speaker 04:
OK.

[00:14:08] Speaker 04:
Thank you.

[00:14:24] Speaker 00:
May it please the court, Ryan Rosola on behalf of the United States Patent and Trademark Office.

[00:14:29] Speaker 03:
Before you begin your argument, would the Patent Office have any objection if the applicant here sought to amend the design application to change the drawing from a 5 by 6 to a 4 by 6 pattern?

[00:14:51] Speaker 00:
I think we would still potentially have a problem with that in view of the in Ray Owens case because I think what would be what the.

[00:15:01] Speaker 03:
the applicant would be doing in that case is drawing a dotted line, a broken line, and dis- No, I'm suggesting just amending the drawing to show a four by six pattern, not a five by six pattern, so that it would conform to the utility application drawing figure 1A.

[00:15:25] Speaker 00:
So you're saying that

[00:15:27] Speaker 03:
if they would amend the figure one and design patent to look like figure one a is there any reason why they couldn't do that the application is pending eminence claiming priority back to the earlier utility pack you know i don't think it's new matter because

[00:15:55] Speaker 03:
I guess it's claimed as a divisional.

[00:15:59] Speaker 00:
It's claimed as a divisional, correct.

[00:16:02] Speaker 00:
And the problem with the divisional right now is that there's no written description between the figures as they currently exist and the figures in the earlier utility application.

[00:16:16] Speaker 00:
If taking one column away, perhaps.

[00:16:21] Speaker 00:
There would have to be additional changes made, I believe, because the 4 by 6 figure 1A square has square compartments not rectangular.

[00:16:34] Speaker 02:
Let's just forget about figure 1A and figure 1 of the utility patents and figure 1 of the design.

[00:16:41] Speaker 00:
So then you're adding an additional column to the design patent.

[00:16:49] Speaker 03:
My suggestion is just amend the design application to conform exactly to what is disclosed in the utility application to avoid the issue that we're confronting now.

[00:17:06] Speaker 00:
I think it would require a new

[00:17:10] Speaker 00:
written description analysis and a new analysis by the examiner, but that seems it would take care of the written description argument presently here.

[00:17:25] Speaker 05:
Can I ask you, Mr. Drew didn't press it here, but I gleaned from his brief, particularly the gray brief.

[00:17:34] Speaker 05:
Now, he didn't cite the RAI decision in blue, rightfully so, because it issued like a week after he filed his brief.

[00:17:40] Speaker 05:
But obviously, you didn't respond to it in red.

[00:17:44] Speaker 05:
But I took his analysis of the RAI decision to be that,

[00:17:51] Speaker 05:
which is why I think he should have answered my hypothetical differently, that the reason this ought to be OK is because it's between, sort of like it's analogous to the range cases in RAI.

[00:18:04] Speaker 05:
And therefore, it's because it's between 6 times 6 and 6 times 4.

[00:18:09] Speaker 05:
It should be OK under the RAI analysis.

[00:18:12] Speaker 05:
So what's your answer to that?

[00:18:13] Speaker 00:
We disagree with that.

[00:18:14] Speaker 00:
We don't think that's the proper analysis.

[00:18:16] Speaker 00:
We don't think there's a range disclosed in this case.

[00:18:18] Speaker 00:
And I think it would actually be very difficult to disclose a range in a design patent case.

[00:18:24] Speaker 00:
What the case law tells us is to look back

[00:18:27] Speaker 00:
for a written description for a design claim, you look back to the illustrations that show the ornamental design of the earlier design and whether the later claim design is shown in those illustrations.

[00:18:41] Speaker 00:
That has to be depicted in an illustration.

[00:18:43] Speaker 00:
That's what the Daniels case, the Owens case, the racing strollers case all tells us.

[00:18:48] Speaker 00:
That's how we determine written description for design claims.

[00:18:53] Speaker 02:
Now, the Daniels case and the Owens cases, those were different, right?

[00:18:56] Speaker 02:
Because they were design patents that were relying on earlier design patents, right?

[00:19:03] Speaker 02:
So they couldn't rely on anything other than the figures.

[00:19:06] Speaker 00:
That's correct.

[00:19:07] Speaker 00:
But they look back to the racing strollers case.

[00:19:10] Speaker 00:
The racing strollers case is a design patent looking back to a utility patent.

[00:19:15] Speaker 00:
What the court said in the racing strollers case is that force 120, the question is, is there any illustration in any form in that earlier disclosure that supports or that shows the later claimed design?

[00:19:31] Speaker 00:
We think that that case is pretty clear that to tell us that even in this situation like this where you're looking back at a utility Application you're looking back to the figures in the utility application and those figures in the utility application disclose What they disclose what they show the ornamental aspects of the design the visual impression of the design and what Daniels and Owens tells us and citing back to these cases is the design has to be visual has to be

[00:20:00] Speaker 02:
So in other words, in these cases, you could never rely on anything that is said in the utility patent.

[00:20:14] Speaker 00:
That's correct.

[00:20:15] Speaker 00:
That's our view.

[00:20:16] Speaker 00:
Especially if you're trying to create an image, right?

[00:20:20] Speaker 00:
If you're trying to describe a new figure, a new design, you can't go back to that language and create that digital impression.

[00:20:29] Speaker 02:
This is a little different though, because it's not like just creating an image.

[00:20:32] Speaker 02:
I mean, it's take away a row or take away a column.

[00:20:36] Speaker 00:
It's not different, we don't think.

[00:20:38] Speaker 00:
We think that especially in view of the broader language, and this is why we cited to the Endivier case.

[00:20:49] Speaker 00:
Because to the extent that you want to go back and look to that language, we don't think you should go back and can go back to that language, but to the extent

[00:20:56] Speaker 00:
that you think that some kind of range can be shown, the language in this case would preclude any finding of written description because the language is so broad.

[00:21:06] Speaker 00:
It said it could be any size.

[00:21:08] Speaker 00:
It says it could be a square corner.

[00:21:10] Speaker 00:
It could be rounded corner.

[00:21:11] Speaker 00:
It said that the seams could be of any size.

[00:21:14] Speaker 00:
So the board found in its decision that that language

[00:21:19] Speaker 00:
would preclude and prevent any kind of written description.

[00:21:24] Speaker 00:
A reasonable designer would not recognize that the design applicant had possession of the 6x5 design, because through that entire universe of shapes and sizes,

[00:21:41] Speaker 00:
a designer might end up landing on a six by five design.

[00:21:46] Speaker 00:
But that's just would have been obvious.

[00:21:48] Speaker 00:
And we know from this court's case law that obviousness, you can't rely on that to show written description.

[00:21:54] Speaker 03:
Mr. Rossello, let me direct your attention to the board's decision.

[00:21:59] Speaker 03:
On page five, the board, in concluding that the application doesn't

[00:22:09] Speaker 03:
convey with reasonable clarity that the inventor was in possession of the particular blanket design.

[00:22:16] Speaker 03:
At the top of the page, a third line down, it says, nothing in the disclosure of the 938 application pointed to by Appellant provides any detail as to the visual impression or ornamental design of the presently claimed cooling blanket.

[00:22:33] Speaker 03:
All right?

[00:22:34] Speaker 03:
And from that, the board concludes that there's no evidence of possession as of that filing date.

[00:22:45] Speaker 03:
But yet on page seven, at the top of the page, now this is in the context of the anticipation ruling, the board says, appellant does not point to any particular differences

[00:23:00] Speaker 03:
between the 938 application and the claim subject matter such that they are not substantially the same for purposes of the ordinary observer test.

[00:23:11] Speaker 03:
So the two designs are substantially the same for purposes of the ordinary observer test, yet there's nothing to suggest that there's

[00:23:23] Speaker 03:
a similar visual impression for purposes of the written description test.

[00:23:29] Speaker 03:
That seems to be somewhat contradictory.

[00:23:32] Speaker 00:
I think what you're touching on is the idea that the disclosure to meet a 112 written description analysis and the disclosure to meet an anticipation analysis are different.

[00:23:48] Speaker 00:
And this court has recognized, and the predecessors of this court was recognized for more than 50 years, back to the Lukacs case, that that is, there's some daylight between the law of disclosure for 112 and disclosure for 102.

[00:24:01] Speaker 03:
I mean, VASCAP made that perfectly clear.

[00:24:05] Speaker 03:
And it's easy to understand in the context of utility patents.

[00:24:11] Speaker 03:
But in the context of design patents, where the visual impression

[00:24:18] Speaker 03:
is at the heart of things.

[00:24:21] Speaker 03:
You're not reading claim limitations on structure or accused devices.

[00:24:30] Speaker 03:
It's the visual impression that's created.

[00:24:33] Speaker 03:
It's a little different context.

[00:24:39] Speaker 03:
which makes it very difficult, it seems to me, to rationalize the two statements that were made here by the board.

[00:24:46] Speaker 03:
In one point, they're saying there's no detail that would suggest that the visual impression is the same.

[00:24:58] Speaker 03:
But two pages later, they're not substantially the same.

[00:25:09] Speaker 00:
And I understand the concern of the court here, but I think the application of the law of anticipation and the application of the law of written description leads to that decision.

[00:25:21] Speaker 00:
So for example, what this court has told us in Ariad is that you have to demonstrate within the disclosure that the inventor

[00:25:32] Speaker 00:
invented or had possession of, actually had possession of the claimed design.

[00:25:38] Speaker 00:
And you can't go outside of that record.

[00:25:40] Speaker 00:
And so what the court tells us in the racing strollers case is that we have to look to the figures.

[00:25:46] Speaker 00:
And so what the figures are, what provides the written description for a design?

[00:25:50] Speaker 00:
And so looking back at the figures, if the figures do not show the later design, then there's no written description.

[00:25:56] Speaker 03:
And maybe the distinction is that in the written description context,

[00:26:01] Speaker 03:
You know, you have to point to some specifics, some specific details to establish possession of the invention.

[00:26:10] Speaker 03:
Whereas in the anticipation context, it's not necessarily any specific written details.

[00:26:18] Speaker 03:
It's the overall visual impression, all things considered.

[00:26:22] Speaker 03:
So maybe that's the distinction.

[00:26:24] Speaker 03:
But it's a very fine line.

[00:26:28] Speaker 00:
Exactly.

[00:26:28] Speaker 00:
I mean, I think that is correct.

[00:26:30] Speaker 00:
And I do agree it is a very fine line.

[00:26:32] Speaker 00:
But there is a line.

[00:26:33] Speaker 00:
There is daylight between the two.

[00:26:35] Speaker 00:
And unfortunately, the applicant, his case falls within that daylight.

[00:26:40] Speaker 05:
Thank you.

[00:26:51] Speaker 01:
Just a few quick points to summarize.

[00:26:55] Speaker 01:
With respect to the matter of the

[00:26:58] Speaker 01:
actual written portion of the written description being disregarded.

[00:27:03] Speaker 01:
I don't think there's anything in the case law that says that you can or should do that.

[00:27:08] Speaker 01:
I think the case law says that, OK, with design cases, you do look to the drawing.

[00:27:13] Speaker 01:
But it doesn't say disregard any actual written description in the written description.

[00:27:20] Speaker 01:
So I think that should be taken into account.

[00:27:22] Speaker 01:
Also, to summarize,

[00:27:23] Speaker 01:
I think a literal interpretation of sections 120 and 112 would lead to the result that the inventor did have possession of this idea of a 6 by 5 array.

[00:27:39] Speaker 01:
That's not the controlling factor.

[00:27:41] Speaker 01:
Controlling factor is the visual impression.

[00:27:44] Speaker 01:
I think one of the things that has happened here by the patent office is sort of a circular reasoning or hindsight type of reasoning or looking back reasoning.

[00:27:53] Speaker 01:
And that is that the patent office defined the invention that was claimed, that visual impression, that ornamentation.

[00:28:04] Speaker 01:
of the design case in a way that necessarily excludes the six five by five array that is shown.

[00:28:10] Speaker 01:
There's common subject matter, and that is consistent in these cases that you look at the original utility application, you look at the joints of the design application.

[00:28:20] Speaker 01:
Is there common subject matter there?

[00:28:22] Speaker 01:
And I think the evidence more likely shows that there is and isn't.

[00:28:26] Speaker 01:
Another idea here that comes into play is that in power or aces.

[00:28:30] Speaker 01:
The court also talked about the actual or inherent, what is shown actually or inherently.

[00:28:36] Speaker 01:
And I think that that is in play here also.

[00:28:39] Speaker 01:
I see that I'm just about out of time.

[00:28:42] Speaker 01:
But I think everything is already stated in the blue brief and our gray brief.

[00:28:47] Speaker 01:
Thank you very much.

[00:28:48] Speaker 05:
Thank you.

[00:28:49] Speaker 05:
We thank both sides.

[00:28:50] Speaker 05:
The case is submitted.

[00:28:51] Speaker 05:
That concludes our proceeding for this hearing.