median plane” have different meanings, both planes pass
through the center of the heel, and as a practical matter, if
a pivot is offset from one plane it is also offset from the
other plane, and that the exact location of the offset of the
pivot would be a matter of routine optimization and obvious to
one with ordinary skill.
The problem with Bourdeau’s new argument made in its
reply and at final hearing is that Okajima had no meaningful
opportunity to present evidence to respond to the new
argument. Okajima might have demonstrated that an offset from
one reference plane does not equate to an offset from the
other reference plane, or that an optimized angle from one
reference plane may not be an optimized angle with respect to
the other reference plane. The new argument was not raised in
Bourdeau’s original motion or in Bourdeau’s principal brief.
Since Okajima has had no meaningful opportunity to rebut the
newly presented argument made by Bourdeau in its reply brief
and at final hearing, we decline to consider the argument on
its merits or to express any views as to its soundness.
For the foregoing reasons, Bourdeau has failed to
demonstrate that Bourdeau’s preliminary motion 2 to designate
Okajima’s claims 18-20 as corresponding to the count was
improperly denied.
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