FATIGUE FRACTURE TECHNOLOGY v. NAVISTAR, INC.
Oral Argument — 12/08/2020 · Case 20-1094 · 30:20
0:02
Appellant Attorney (Meredith Martin Addy)
The United States Court of Appeals for the Federal Circuit is now open and in session.
0:07
God save the United States and this honorable court.
0:10
Judge Wallach
Good morning, counsel.
0:16
This is the time set for oral in 2-0-1094.
0:31
Appellant Attorney (Meredith Martin Addy)
Yes, Your Honor.
0:38
Thank you, Your Honor.
0:39
Good morning, Your Honors.
0:40
This obviousness appeal turns on missing limitations.
0:44
The claims require two specific force limitations.
0:47
The limitation, the fatigue force that weakens the part, and the dynamic force that separates the part.
0:54
Judge Wallach
Yes, Addie?
0:55
Appellant Attorney (Meredith Martin Addy)
None of, yes, yes.
0:57
Judge Wallach
This is Judge Wallach.
0:59
On page 42 of the blue brief, that the PTAB erroneously.
1:52
Appellant Attorney (Meredith Martin Addy)
Your Honor, the PTAB's reliance on Mr. Brovold to explain his patent is okay,
2:00
but the PTAB cannot rely on Mr. Brovold to expand his patent beyond that,
2:06
which is the same.
2:07
The PTAB cannot be disclosed because Mr. Brovold is the inventor of that patent.
2:12
So under this court's precedents, such as Woodland Trust and others,
2:18
testimony by an inventor needs to be corroborated.
2:22
So while he can testify as to what his patent says,
2:25
he can't testify about things that are not in his patent,
2:28
and he can't expand the disclosure of his patent beyond that.
2:32
In addition...
2:33
Judge Wallach
Aren't those the inventors?
2:41
Appellant Attorney (Meredith Martin Addy)
Yes.
2:42
And I would argue that in this case,
2:44
the inventor is also attempting to benefit from the explanation of his patent.
2:47
He's attempting to expand the scope of his patent
2:50
to cover something that's not disclosed in his patent.
2:54
But in addition, Your Honor, I think there's another difference.
2:57
And that difference is that Mr. Brovold's patent talks about fatigue breaks
3:03
and fatigue fails of the part,
3:07
whereas the claim limitation is explicit that it is applying,
3:11
at least, a fatigue force to the part.
3:15
So while Mr. Brovold's patent is clear that it's applying a ductile ultra-low cycle force
3:22
that is always load-bearing, and that causes the part to break,
3:29
which he calls a fatigue break,
3:32
that's different from the claim limitation,
3:35
which is applying a fatigue force to the part,
3:41
and that's...
3:42
Fatigue force is specifically defined as a time-varying force
3:48
that causes fluctuations of stresses that weaken the part.
3:52
There is no disclosure in any of the prior art
3:56
of fluctuations of stresses weakening the part.
4:03
And that is where the difference in fatigue force as claimed,
4:07
and as Mr. Brovold defines it,
4:09
is different from Mr. Brovold's naming of his break,
4:14
a fatigue break.
4:17
In addition, Your Honor,
4:20
none of the prior art teaches that this fluctuation of stresses
4:26
weaken but do not separate the part,
4:28
which is required by the claim.
4:30
For example, Brovold's single-shot embodiment
4:34
is a load-bearing force that separates the part.
4:39
Brovold's two-to-three-shot fatigue fail embodiment
4:42
also separates the part.
4:44
Cavallo's mechanical parting force
4:46
separates the part.
4:47
And Bayliss's fatigue fracture force
4:51
separates the part after a prolonged period of time
4:54
and, admittedly, with extreme cooling,
4:57
which, if it isn't there,
4:59
Bayliss says causes ductile deformation,
5:02
which you cannot have in this industry.
5:04
Judge Chen
Ms. Addy, this is Judge Chen.
5:07
Just getting back to Brovold,
5:09
my understanding was the focus on Brovold
5:12
was the embodiment in which up to three cycles of force
5:17
were being applied to the part.
5:20
And the first two would be regarded as a fatigue force,
5:27
forces being applied that don't break the part.
5:32
It would be the last cycle that would break the part.
5:35
And my recollection is that the patent owner's expert,
5:41
Dr. Mostavoy,
5:43
acknowledged that those first couple applications of force
5:48
would be applied to the part.
5:49
And that these cyclic forces,
5:52
which necessarily are fluctuations of stresses,
5:56
and that the last force being applied
5:59
would be a dynamic force.
6:04
I believe that's what he said in his deposition,
6:07
to break the rod.
6:09
So what's wrong with,
6:13
or why was it unreasonable for the board
6:16
to understand Brovold in that manner
6:20
in the sense that the embodiment,
6:23
with multiple applications of a force,
6:26
the first few are being applied
6:30
and sort of breaking down the part,
6:34
weakening the part,
6:35
but not breaking the part.
6:36
And then you've got the final force applied
6:39
that actually breaks the part.
6:44
Appellant Attorney (Meredith Martin Addy)
Thank you, Your Honor.
6:45
There are several reasons.
6:46
But first, remember,
6:50
the PTAB construed the claimed fatigue force
6:53
as a force,
6:55
time-varying,
6:56
a force that causes fluctuations of stresses
6:59
that weaken the part.
7:01
Nowhere in the record
7:03
is there any testimony
7:05
that there's fluctuations of stresses
7:08
in Brovold.
7:09
And that makes sense
7:11
because Brovold is this ultra-low cycle force.
7:15
You hit it once, it's load-bearing.
7:17
If it breaks, you're done.
7:18
But if it doesn't,
7:20
then you reload the force and you hit it again.
7:22
There's no disclosure there.
7:24
But secondly,
7:25
and I think Mr. Mastavoy was very clear on this,
7:30
when counsel asked him
7:32
if Brovold's force causes fluctuations of stresses
7:35
on the connecting rod,
7:37
he says, no, not fluctuations.
7:40
It causes a continuous increase in stress
7:42
until the part fractures.
7:44
And that's at Appendix 525, Your Honor.
7:47
So at least for this fatigue force
7:50
that is applied to the part in the claim,
7:54
that's different.
7:55
It's different from this load-bearing muscle force.
7:58
Judge Chen
Did Mastavoy refer to Brovold's force
8:01
as a cyclic force?
8:02
I believe he did.
8:04
Appellant Attorney (Meredith Martin Addy)
He did, Your Honor.
8:05
He said it was a cyclic force,
8:07
but he didn't say that it causes fluctuations of stresses.
8:10
He said, no, it doesn't.
8:12
It causes an increase in stress
8:14
until the part breaks.
8:16
And that's different.
8:17
Because if you think about elastic fatigue,
8:20
which is several thousand fluctuations of stresses,
8:23
and that's what we have here,
8:24
that is different from this one or two or three shot
8:29
load-bearing force that comes in from Brovold.
8:32
So that addresses the fatigue limitation.
8:35
But on the dynamic force limitation, Your Honor,
8:40
Brovold also cannot satisfy the dynamic force
8:43
because the dynamic force logically
8:46
must be greater than the fatigue force.
8:49
Judge Chen
Just so I understand,
8:52
I thought one of your criticisms of Brovold's
8:54
was two cycles of force cannot be a fatigue force.
9:00
Is that right?
9:01
You would need many, many more applications of force?
9:05
Appellant Attorney (Meredith Martin Addy)
Yes.
9:05
And I think there's a little bit of confusion here
9:07
because a fatigue force,
9:11
we believe, is synonymous with an elastic force.
9:14
It's a time-varying force
9:16
that causes fluctuations of stresses that weaken the part.
9:19
An elastic force is 10 to the fourth or higher fluctuation.
9:24
And so that's where the confusion is.
9:26
And fatigue fractures, fatigue force is an elastic force,
9:33
but the board did not find that it was an elastic force.
9:36
So while we believe that's the case,
9:39
we can distinguish on other grounds as well,
9:41
and I'd like to do that.
9:42
Yes, sir.
9:43
Judge Wallach
Patty, this is Judge Wallach.
9:45
Let me take you back to what you just talked about,
9:48
the assertion that because independent claims,
9:56
you say logically they're magnetically applied,
10:04
fatigue force, why is that the only possibility
10:07
and what record evidence supports it?
10:11
Appellant Attorney (Meredith Martin Addy)
That's the only logical possibility
10:15
because, again, consider you're applying a force
10:18
that is weakening the part.
10:22
If you just apply that same force,
10:25
you continue to weaken the part.
10:27
If you want to separate the part,
10:28
you have to apply something a little higher.
10:31
So, but secondly, and I...
10:34
Judge Taranto
Can I just ask you, Ms. Eddie,
10:35
I mean, why is that right?
10:37
I mean, maybe, you know,
10:40
each of the...
10:41
The fatiguing forces, I mean, you know,
10:44
let's say it's at a level of five
10:46
and you need, you know, 20 of them or something
10:50
to go down from 100 to zero,
10:52
and you do a lot of the fives,
10:56
and at some point, you know,
10:58
all that's left is, you know,
11:00
a force of three or something
11:02
to get over the hump of finally breaking it.
11:05
And yet the dynamic force would be the breaker,
11:08
but why logically does it have to be
11:11
stronger than each of the multiple applications
11:14
of the fatigue force?
11:18
Appellant Attorney (Meredith Martin Addy)
Your Honor, it's stronger
11:20
because the claim says
11:24
that you're applying a fatigue force
11:26
to weaken and then a dynamic force to separate.
11:30
So if the fatigue force had dropped in load,
11:34
then it would have separated the part.
11:36
But the fatigue force hasn't separated the part.
11:39
The dynamic force that's claimed
11:41
is what separates the part.
11:43
And I think it's...
11:44
It's helpful to look at Navistar's Exhibit 1056,
11:47
which is in our reply brief at 11.
11:51
And Navistar's Exhibit 1056,
11:54
on the far right side,
11:56
it shows the peak force at fracture
12:00
is smaller than the peak of the cyclic load.
12:03
And that doesn't make any sense
12:05
because once you have a fracture,
12:08
you don't apply anything else.
12:10
Once the force is...
12:12
Judge Wallach
Once the part is...
12:14
Go back to my...
12:15
Part of my question.
12:17
Yes.
12:17
What...
12:17
Your Honor,
12:29
Appellant Attorney (Meredith Martin Addy)
the specification is replete
12:31
with statements that say
12:33
applying the dynamic force
12:35
raises the stress intensity factor
12:38
to exceed the fracture toughness of the material.
12:41
And if you don't...
12:42
And that's...
12:43
The first one's at 103.
12:44
It's also at 111 and 112.
12:47
And if you don't exceed
12:49
the fracture toughness of the material,
12:51
you do not break the part.
12:53
And if you go...
12:54
And by the way,
12:55
the board recognized this force
12:57
has to be greater in magnitude
12:59
than the fatigue force.
13:00
It did that at 82 and 83 and 84
13:05
of the institution decision.
13:07
But it said, quote,
13:09
Petitioner has not established adequately
13:11
where the disclosure of Grobold
13:13
teaches applying an increased hydraulic force
13:16
when the connecting rod is nearing complete fracture.
13:19
And Your Honor,
13:21
Petitioner never taught that.
13:23
Petitioner never...
13:24
Never established where that is in the record
13:26
because it's not taught.
13:28
Judge Taranto
Ms. Addy, this is Judge Taranto.
13:30
Can I just...
13:31
Before you sit down,
13:33
I know your time is either short or out,
13:36
but can you give a short explanation
13:39
of what you think is wrong with the board's
13:42
Ground 7, the Cavallo and Bayless,
13:45
which have nothing to do with
13:47
what we've been talking about up till now,
13:50
but if correct, would support the judgment?
13:54
Appellant Attorney (Meredith Martin Addy)
Yes, Your Honor.
13:55
So, first of all,
13:56
just as when the other grounds,
13:58
neither reference discloses the claimed fatigue force
14:00
that requires fluctuations of stresses
14:02
that weaken but do not break the part.
14:05
That's what the claim requires.
14:08
Secondly, one of skill and the art
14:10
would not add Bayless to Cavallo
14:12
because both references are directed
14:15
to forces that fracture the part.
14:17
Thirdly, you wouldn't add Bayless to Cavallo
14:20
because Bayless is even slower
14:22
and has the same problems
14:24
as Blanchard.
14:25
So, there's no teaching or suggestion
14:27
to add in Bayless
14:32
because Cavallo was trying to split the rod faster
14:35
and Bayless is even slower than Brovold.
14:38
So, it doesn't make any sense.
14:40
And Bayless, I'm sorry,
14:42
Bayless admits that it's even slower
14:44
without the extreme cooling,
14:46
with the extreme cooling,
14:48
but without the extreme cooling,
14:49
it produces ductile necking,
14:51
which you cannot have.
14:52
So, for the same reason,
14:54
Bayless,
14:55
is inappropriate to combine
14:58
as Brovold.
14:59
And there's no teaching to stop it.
15:01
Sorry, I'm done,
15:02
and I see I've reached my time.
15:04
So, I will hold the rest for rebuttal.
15:09
Judge Wallach
Thank you, Judge.
15:19
Appellee Attorney (Craig D. Leavell)
It's actually level.
15:20
It's pronounced easier than it's pronounced.
15:25
Thank you, Your Honor.
15:26
It may please the court.
15:29
Affirmance in this case
15:30
is warranted and straightforward.
15:31
This is just an example
15:34
of an AIA
15:35
where the AIA and the PTAB
15:36
has worked exactly as intended.
15:38
to efficiently dispose
15:40
of an invalid patent and claims
15:41
in an IPR proceeding.
15:43
There's nothing remarkable
15:45
about the proceeding below,
15:46
other than perhaps...
15:47
Judge Taranto
I'm sorry, can you get to the merits
15:49
rather than the generalities, please?
15:51
Appellee Attorney (Craig D. Leavell)
Sure.
15:51
First of all, let me address
15:53
the comment in response
15:55
to Judge Chen's question
15:56
about whether there's testimony
15:59
from Dr. Mastavoy
16:01
about the fluctuation of stresses
16:03
in Brovold.
16:04
He clearly admitted that,
16:07
and that's on Appendix 524,
16:09
in his deposition
16:11
at page 144,
16:12
lines 1 through 8.
16:14
And secondly,
16:16
with respect to the higher force logic
16:19
that was discussed
16:21
by the question from Judge Wallach,
16:23
and I think we mentioned this
16:25
in our brief to this court,
16:27
we certainly mentioned it
16:28
in our brief to the PTAB.
16:30
You know, think of an example
16:32
of a paperclip.
16:33
If you bend the paperclip
16:34
and you fatigue a paperclip,
16:36
it gets weaker and weaker,
16:37
and then that last dynamic force
16:39
to actually separate
16:40
the paperclip
16:41
can be a very, very small force,
16:44
smaller than the forces
16:45
that you've used
16:46
to fatigue the paperclip.
16:48
I completely disagree
16:50
that the logic
16:51
necessarily requires
16:52
that the dynamic force
16:54
be greater in magnitude
16:55
than the fatigue force.
16:57
Judge Taranto
If I heard Ms. Addy correctly,
17:01
and you'll correct me if I didn't,
17:03
I thought she said
17:04
that the board
17:07
repeatedly said
17:08
that the dynamic force
17:09
has to be greater.
17:11
And the fatigue force?
17:13
Appellee Attorney (Craig D. Leavell)
No, I don't believe
17:15
that's correct.
17:16
In the institution decision,
17:17
the board initially,
17:23
that Navistar did not establish,
17:25
that in the Brobald reference,
17:27
that the magnitude
17:28
of that final dynamic force
17:30
did increase.
17:32
And that was
17:33
in the institution decision.
17:34
And we argued that,
17:36
we explained that
17:36
in our initial petition,
17:38
in order to make sure
17:40
we covered all the bases,
17:41
regardless of what claim
17:42
construction might be adopted.
17:44
But when the board
17:45
adopted the constructions
17:47
that it adopted,
17:49
which were FFT's
17:51
proposed constructions
17:52
for fatigue force
17:53
and dynamic force,
17:55
and in light of the admissions
17:56
that Mr. Mostowoy and FFT made,
17:59
that every fatigue force
18:01
is also a dynamic force,
18:03
there was no longer a need
18:04
for us to establish
18:06
that the dynamic force
18:08
had to be higher in magnitude.
18:10
We argued that in the petition
18:11
in order to cover our bases,
18:13
but the board,
18:14
in the final written decision,
18:16
never found that.
18:17
And the board's claim construction,
18:19
there's no requirement
18:20
of any magnitude.
18:21
The claims don't discuss
18:23
any magnitude
18:24
or relative magnitude
18:25
of the forces.
18:28
I think what Ms. Addy
18:29
was referring to
18:30
in the institution decision,
18:31
which was changed
18:33
and a different result
18:35
in the final written decision,
18:36
found anticipation by Brobald.
18:40
Judge Taranto
And what do you do
18:42
with the slightly odd fact,
18:45
if I'm understanding it correctly,
18:47
that in,
18:49
Brobald,
18:49
we're talking about
18:50
an application of a force
18:54
two times
18:55
is supposedly cyclic,
18:57
which seems something
19:00
fairly far in practical
19:02
comparison purposes
19:06
to what this patent
19:07
seems to be about.
19:09
Appellee Attorney (Craig D. Leavell)
Well, if you look at Brobald,
19:11
and this is not Brobald's testimony,
19:14
this is his patent.
19:15
Judge Taranto
Yes.
19:15
Appellee Attorney (Craig D. Leavell)
The patent says,
19:17
column two, lines 30 to 33,
19:20
that the tool system
19:21
is adaptable
19:22
for either brittle fractures
19:24
or for cycling the members
19:26
to cause fatigue breaks,
19:27
generally under a low number of cycles.
19:31
It's argued that
19:31
it's not necessarily limited
19:33
to just a couple cycles,
19:34
but even if it is,
19:35
that's enough.
19:37
The Brobald patent
19:39
also talks about
19:40
cracking or breaking,
19:44
and that's in column four,
19:47
lines six through 14.
19:49
And Brobald also talks about
19:51
the quality of the fracture.
19:54
At column one,
19:56
one, nine through 12,
19:58
the field of the invention
19:59
is to provide a properly fitting
20:01
bearing cap.
20:02
And the abstract refers
20:03
to quality control of the parts.
20:06
At column one,
20:07
line 20 to 29,
20:09
it talks about
20:09
when properly broken,
20:11
the two parts of the bearing house
20:12
will fit back together
20:13
exactly as they separated.
20:17
There's others.
20:18
I could go on,
20:18
but Brobald is talking about
20:20
a high-quality fracture separation.
20:22
And the fact that he can do it
20:24
in a relatively low number of cycles
20:25
is enough.
20:26
The claim doesn't require
20:28
any more than one fatigue cycle.
20:31
The Bayless being slower
20:39
argument that we saw quite a bit
20:42
in FFT's brief
20:44
and Councilman.
20:45
Judge Taranto
I think I actually understand
20:47
the response to the slower.
20:50
What exactly,
20:51
and if you can point me to
20:52
the place in the board decision
20:54
that responds to this,
20:56
where did the board say
20:58
here is the affirmative motivation
21:01
for combining
21:03
a body and a body?
21:04
Most of his discussion
21:06
seems to be
21:07
the patent owner says,
21:09
oh, no, no, no,
21:09
there isn't such a motivation
21:11
and talks about the cooling
21:13
and the length of time,
21:18
basically those two things.
21:20
But where's the board's
21:21
affirmative statement?
21:23
A relevant skilled artisan
21:25
would be motivated
21:27
to combine Cavallo and Bayless
21:30
because...
21:32
Appellee Attorney (Craig D. Leavell)
Well, I read the board's
21:36
final response to that.
21:37
The final written decision
21:37
and how we presented
21:38
the grounds to the board
21:40
is that essentially
21:41
the motivation for grounds
21:43
four and seven
21:45
are very similar.
21:47
That a person of skill in the art
21:48
knew a fatigued rod
21:50
would require a lower dynamic force
21:52
compared to a non-fatigued rod.
21:54
And that Cavallo invites
21:56
the use of fatigue force.
21:58
So I think how properly
22:01
the board's final written decision
22:03
should include those motivations,
22:06
the general motivations,
22:07
the ones that are not specific
22:08
to Grovalt in particular.
22:10
In other words,
22:11
people of skill in the art
22:12
knew about fatigue.
22:13
They knew that fatigue
22:14
connecting a rod
22:16
would fracture more easily
22:17
and that there was a motivation
22:19
to reduce the final magnitude
22:21
and that that logic
22:24
applied to both grounds.
22:26
Judge Chen
So before I agree to...
22:28
This is Judge Chen.
22:29
I mean, as I read the board opinion
22:32
at 842 to 843,
22:35
the board appears to be summarizing
22:39
your...
22:40
Your theory for why it would be...
22:42
There would be a motivation
22:44
to combine aspects of Bayliss
22:48
with Cavallo.
22:50
And then at the very end
22:52
of the analysis at 848,
22:55
the board simply says,
22:57
in conclusion,
22:58
petitioners demonstrated
22:58
by preponderance of evidence
23:00
the unpatentability of claim one
23:02
over Cavallo in view of Bayliss.
23:05
And I mean,
23:07
one way to read all of this
23:09
section of the board opinion
23:10
is that...
23:11
Is that the board
23:13
adopted your understanding
23:15
of why they're a skilled artist
23:17
and hypothetical one
23:18
would have been motivated
23:19
to combine these references
23:21
in this manner?
23:22
Is that the best way to get there?
23:26
I'm not saying it's great,
23:28
but is that the best way
23:29
to understand
23:30
what the board has done
23:32
and how we can discern
23:35
what the board's thinking is here
23:37
on Judge Toronto's question?
23:39
Appellee Attorney (Craig D. Leavell)
Yeah, Judge Chen, thank you.
23:41
I certainly agree
23:42
that that's a fair way of reading
23:44
that the board just,
23:45
you know, they're at the end of the...
23:47
They had already found
23:48
invalidity on four other grounds
23:49
and they just neglected to recap
23:51
and say that they were agreeing
23:52
with our...
23:53
But I think that's a fair
23:55
reading decision.
23:57
But also in the context
23:59
of all the reasons
24:00
for ground four as well
24:01
with respect to the motivation
24:04
to add fatigue force
24:06
in place of Cavallo's feeling.
24:11
Thank you.
24:13
Judge Chen
Mr. Lovell, did the other side
24:15
of fatigue force
24:16
ever contend below?
24:18
That Bayless does not teach
24:22
a fatigue force?
24:25
Maybe I should be asking
24:26
Ms. Addy this,
24:27
but I'm just...
24:28
If you recall...
24:30
Appellee Attorney (Craig D. Leavell)
They're certainly admitted
24:32
that Bayless discloses fatigue force
24:37
in exact, you know,
24:38
longitudinal fatigue
24:39
exactly as claimed
24:40
in claim one of the 915 patent.
24:44
I can get the site for that.
24:46
Now, I think counsel for FFT
24:48
would argue that,
24:50
well, we never admitted
24:52
that it's a fatigue force.
24:52
Fatigue to weaken
24:54
but not separate
24:55
is their argument.
24:57
And I would argue
24:59
that's attacking
25:00
the references individually,
25:02
which under the
25:03
Bradium Technologies case
25:05
is improper.
25:06
Because once you combine
25:08
Bayless with Cavallo,
25:10
you've got that dynamic force
25:12
that's added
25:13
and you've got
25:14
the claimed invention.
25:15
But the bigger point is
25:17
there's nothing
25:17
in the court's claim construction
25:19
that requires fatigue
25:20
to weaken but not separate.
25:22
The fatigue force,
25:24
can be applied
25:24
simultaneous with the dynamic force.
25:27
It can contribute
25:28
to the fracture separation,
25:31
the preferred embodiment,
25:32
and the patent
25:33
teaches exactly that.
25:35
And the construction
25:37
of fatigue force,
25:38
FFT agrees with.
25:40
And they tell this court
25:42
they agree with.
25:42
Not require that.
25:45
They never argued
25:46
for any other construction below.
25:48
The PTAB adopted
25:49
their construction.
25:50
They waived any argument
25:53
that was required
25:55
by the claims.
25:56
Similar to the St. Jude Medical.
25:58
Case from October,
26:00
submitted in a supplemental brief.
26:03
If fatigue fracture
26:05
wanted a particular
26:07
claim construction,
26:08
it was incumbent upon them
26:10
to ask for it.
26:11
And they did not.
26:12
Judge Taranto
This is just trying to,
26:13
can I just ask this?
26:15
Do we have to accept
26:18
the proposition,
26:20
and by putting it that way,
26:21
I'm not trying to express skepticism,
26:24
that a uniform force
26:30
or a force repeatedly applied serve as both
26:39
the fatigue force and the dynamic force.
26:45
Do we have to accept that
26:46
so that the last application,
26:48
the one that snaps the thing,
26:51
will then constitute the dynamic force?
26:54
Appellee Attorney (Craig D. Leavell)
I don't think you have to accept that
26:59
for us to win because in the combination,
27:03
certainly in the obviousness rounds,
27:05
we've got a distinct dynamic force.
27:08
However,
27:10
I think it is under the constructions
27:14
that were adopted by the PTAB,
27:15
which were proposed by FFT,
27:18
both in the litigation and at the PTAB.
27:22
Their expert admits
27:23
that every fatigue force
27:24
is also a dynamic force.
27:25
So I would argue that Bayless
27:27
arguably anticipates,
27:28
but we didn't argue that below.
27:30
We combined it with Caballo's preload,
27:32
or Caballo's dynamic force.
27:36
To answer your question,
27:37
you don't need to find
27:38
that that's correct
27:40
in order to affirm,
27:41
but I think it is correct.
27:50
And one point,
27:51
and I think it sounds like
27:53
the panel has already,
27:55
but on the Bayless's slower issue,
27:58
and we didn't argue this,
28:00
we didn't point this out in the brief,
28:02
but if you read the specification
28:04
of the asserted patent,
28:06
it says that the dynamic force
28:08
can be a slow rate dynamic force
28:10
that would take one-tenth of a second.
28:14
And at Bayless,
28:16
which is operating at 40 hertz,
28:18
in a tenth of a second,
28:20
you're going to have four cycles of fatigue.
28:23
So the argument that
28:24
Brovald's dynamic force is too slow
28:29
and that it takes too long
28:31
to go from low magnitude force
28:34
to the breaking force,
28:36
that's the criticism that Caballo makes.
28:39
Caballo is talking about
28:40
a split-second fraction of a cycle
28:43
duration that it takes
28:44
to build up the hydraulic fluid.
28:46
To get specification,
28:49
the preferred embodiment
28:50
says to apply the dynamic force
28:53
for one-tenth of a second.
28:55
So Bayless,
28:57
Bayless would be plenty fast.
28:58
In one-tenth of a second,
29:00
Bayless can go through four cycles of fatigue.
29:02
So it can certainly go from low force
29:05
to fracture force
29:06
in less than one-tenth of a second.
29:09
If the panel has any further questions,
29:15
I think I can wrap up my argument.
29:18
Thank you, counsel.
29:22
Appellant Attorney (Meredith Martin Addy)
Thank you.
29:22
I'll be short.
29:24
Counsel argued that Brovald's force
29:26
can satisfy the two separate force limitations
29:29
in the claim,
29:30
but that simply doesn't make sense.
29:32
And this is a tale
29:33
of two different...
29:34
of two different forces,
29:35
like apples and oranges.
29:36
And there's no teaching or suggestion
29:38
to use two forces
29:41
in any of the prior art.
29:43
Not any.
29:44
And that's not taking it singly or combined.
29:47
There has to be a teaching or suggestion.
29:49
Secondly,
29:50
there was no affirmative statement
29:53
because there can't be
29:54
of any indication
29:56
to combine Bayless with Brovald.
29:58
You know, Navistar's statement,
30:00
Navistar's argument
30:01
that the board should have included that analysis
30:04
doesn't seem to be true.
30:05
The board wants to satisfy
30:05
the strict requirements of the EPA
30:06
that require an explanation.
30:09
There's not one
30:10
because there isn't one.
30:11
Thank you your honors.
30:12
I appreciate,
30:13
I appreciate your hearing argument.
30:14
Judge Wallach
Thank you, counsel.
30:16
The matter will stand...