[00:00:42] Speaker 04: Next case is Excel Nobel Codings versus Dow Chemicals, 2015, 13, 31, and 38. [00:00:52] Speaker 04: Ms. [00:00:53] Speaker 04: Goddard. [00:00:56] Speaker 00: Good morning, Your Honor. [00:00:58] Speaker 00: I'd first like to point out that the district court aired in this case in its claim construction and narrowly construing the word collection to require an accumulation function in this process claim. [00:01:11] Speaker 00: But before getting to that, and there's a lot of issues to discuss on that, I'd first like to turn to infringements under the doctrine of equivalence. [00:01:19] Speaker 00: It's important because even under the district court claim construction, which required accumulation, ACSO raised a genuine issue of material fact in an unrebutted declaration of opinion from our expert, Dr. Mount. [00:01:36] Speaker 00: the district court erred by refusing to even consider that evidence and going through a normal equivalence evaluation and instead applied a initiation analysis that's saying no accumulation can't be equivalent to accumulation. [00:01:53] Speaker 04: I'll tell you quite frankly anyone who starts off with an equivalence analysis is almost making a concession [00:02:01] Speaker 00: I didn't want to draw that inference at all. [00:02:06] Speaker 04: Let me ask you how a pressurized collection vessel is equivalent to a valve, control valve, or the reverse. [00:02:24] Speaker 00: The issue here is, on the equivalent analysis, is whether or not what we've identified in Dow's equipment as the pressurized collection vessel, which is the downstream equipment that includes a valve, not a pressure relief valve, but whether all of that equipment together is equivalent to the pressurized collection vessel of the claim. [00:02:48] Speaker 00: And Dr. Mount did that analysis. [00:02:51] Speaker 00: drew the conclusion that the function that we need to look at to determine whether or not there's an insubstantial difference is the function that's recited in the claim, which is, is this equivalent performing the function of maintaining the back pressure on the extruder that's needed to keep the pressure above atmospheric so there's no boiling in the extruder? [00:03:14] Speaker 00: That's the entire function recited in this claim, both for [00:03:19] Speaker 00: the pressure release valve that's not being used. [00:03:23] Speaker 01: But for a doctrine of equivalence, you don't get to encompass and cover everything and anything that performs that function to achieve that result. [00:03:34] Speaker 01: That's to be things that are insubstantial differences to the way that you've claimed it. [00:03:40] Speaker 01: And so that's the concern. [00:03:42] Speaker 01: And I think I heard Judge Lurie express that when we're looking at [00:03:46] Speaker 01: a series of heat exchangers and a pressure control valve, how can collection of all of that equipment be deemed to be a pressurized collection vessel? [00:04:03] Speaker 00: The series of heat exchangers and the control valve [00:04:06] Speaker 00: is the vessel, even under the court's construction. [00:04:08] Speaker 00: The court did define vessels to include tubes and piping, and a control valve that stays in a fixed position throughout the entire process is simply a narrowed passageway like a long piece of pipe. [00:04:22] Speaker 00: So it meets the definition of vessel. [00:04:24] Speaker 01: So really what we're looking at is whether or not their vessel... Well, maybe the tubing and the piping under the district court's understanding could be deemed a vessel, but now we're talking about a [00:04:36] Speaker 01: valves and you know when I was looking at your specification it seems like it understood a valve to be an alternative to a collection vessel and and now we have in the accused product something that looks like it's using both together you know assuming that heat exchangers can be a vessel. [00:04:59] Speaker 00: Okay and so [00:05:00] Speaker 00: The valve that was eliminated from the claims during prosecution is a pressure release valve. [00:05:08] Speaker 00: The only evidence in the record on that is from Dr. Mount. [00:05:12] Speaker 00: It's a spring-loaded valve that opens and shuts and opens and shuts and gets clogged. [00:05:17] Speaker 00: That was deleted from the claims as an option, instead just a pressurized collection vessel where there's flow directly from the extruder into the pressurized collection vessel to create that pressure on the extruder. [00:05:29] Speaker 00: Dow's process does, in our view, the same thing, literally, under our plane construction. [00:05:37] Speaker 02: But is there any accumulation or collection in the Dow process? [00:05:41] Speaker 00: In the Dow process, the extrusion passes directly from the extruder, directly through this little valve. [00:05:47] Speaker 00: It's not opening and closing. [00:05:49] Speaker 00: It's not changing aperture. [00:05:50] Speaker 00: It's just going directly into the heat exchange equipment, which is the tubes and piping. [00:05:56] Speaker 01: Are you saying the pressure control valves [00:05:59] Speaker 01: stays the same width the whole time? [00:06:02] Speaker 00: It does. [00:06:02] Speaker 00: It does. [00:06:03] Speaker 00: It does not open and close. [00:06:04] Speaker 01: I mean, that doesn't sound like a valve to me, though. [00:06:06] Speaker 00: It is not a valve. [00:06:07] Speaker 01: It's a valve and the evidence... It sounds more like an entryway. [00:06:11] Speaker 00: It's a valve that's set during startup. [00:06:13] Speaker 00: The rate of the startup of the procedure, it's set to a specific value, a specific aperture, and it stays in that position the entire time. [00:06:23] Speaker 00: And if you notice from the documents that are cited by Dow in support of its motion for a judgment... Doesn't that argument work against you? [00:06:28] Speaker 02: I mean, if the VAL... I agree with you that you're describing correctly how the VAL functions. [00:06:35] Speaker 02: But if it did close, then perhaps there'd be accumulation on the back end or collection. [00:06:40] Speaker 02: But if it stays open, don't you have a continuous flow as opposed to any type of collection [00:06:46] Speaker 00: Well, you have the same continuous flow that you have into the literally sited pressurized collection vessel. [00:06:51] Speaker 00: It goes directly from the extruder into the literally sited pressurized collection vessel. [00:06:57] Speaker 00: There's no release valve in the claims process either. [00:07:00] Speaker 00: It's just going free flowing. [00:07:02] Speaker 00: In fact, the distinction over Kanaka, the down south council, makes it nonsensical because the way ASTHO distinguished its aqueous low viscosity process [00:07:15] Speaker 00: is by saying that in the Tanaka process you get a plug or a form of accumulation that forms in the extruder and that creates the back pressure on the extruder. [00:07:26] Speaker 00: So the evidence that's in the record is Dow's documents, no expert testimony, Dow's documents that say we have this control valve which is just an aperture that's set at the beginning of the process and never changed. [00:07:41] Speaker 00: And our attorneys say there's constant flow. [00:07:44] Speaker 00: Well, it is a continuous process. [00:07:46] Speaker 00: There's no dispute about that. [00:07:49] Speaker 00: It runs continuously. [00:07:51] Speaker 00: But Dr. Mount has given the opinion that is worthy of a trial in consideration by a jury that that equipment that doesn't have a pressure release valve, that has no control over the control valve during the process, is the equivalent to a pressurized collection vessel because [00:08:10] Speaker 00: It fills up or accumulates the dispersion as the dispersion enters into it and maintains the back pressure. [00:08:17] Speaker 01: Yeah, I got lost when I was a little bit when I was looking at Dr. Mount's expert declaration, 51 paragraphs long. [00:08:26] Speaker 01: And he devoted the 51st paragraph to doctrine of equivalence. [00:08:31] Speaker 01: And I suppose some could say he was very concise. [00:08:36] Speaker 01: Others might say he was [00:08:38] Speaker 01: very skimpy on his doctrine of equivalence analysis. [00:08:41] Speaker 00: Well, the bulk of the opinion is really directed to his understanding of the process and how the process works. [00:08:47] Speaker 00: The equivalence analysis is to say, I've looked at this, and it's achieving the same function, which is maintaining the back pressure on it. [00:08:56] Speaker 01: But it's about this substantially the same way. [00:09:00] Speaker 01: And to that, he says, by collecting the dispersed material in a contained volume, and [00:09:08] Speaker 01: It's ambiguous to me how he's using the word collecting. [00:09:12] Speaker 01: Is he using it collecting kind of like the way you want it to mean, which is receiving, or is he using collecting in the way the district court understood it, which is it's accumulating? [00:09:25] Speaker 01: And so what's your answer to that? [00:09:28] Speaker 00: I would say he's using it in both ways, because collecting in the broadest sense means the receiving or the gathering. [00:09:38] Speaker 00: of the material, and in the narrow sense, means the buildup. [00:09:42] Speaker 00: And the reality of the situation is that in this patent, there's no distinction made or function attributed to in the intrinsic record for, quote, buildup or accumulation of dispersion in the pressurized collection vessel. [00:09:59] Speaker 00: And if I could, I'd like to turn a little bit to claim construction here, because this really raises the claim construction issue. [00:10:05] Speaker 00: The claim construction here is with respect to a device. [00:10:11] Speaker 00: This is a process claim and the question is what is the device that is maintaining the back pressure on the extruder? [00:10:18] Speaker 00: The specification talks about options, but the device that's claimed is something called a pressurized collection vessel that allows free flow of the dispersion from the extruder and when it enters at a pressure above atmospheric [00:10:32] Speaker 00: That maintains the back pressure on the extruder. [00:10:34] Speaker 00: That's all that's said in the claim. [00:10:36] Speaker 00: It doesn't say anything about buildup, how much we need, how much needs to be there, how long it needs to be there, because it's really the pressure differential that maintains the back pressure on the extruder. [00:10:48] Speaker 00: So in our briefs, we have advocated, consistent with the case law, that when this is the intrinsic record, you give the meaning of a word like collection its ordinary meaning. [00:11:02] Speaker 01: in its full scope, not in its narrow scope of accumulating, like hoarding or building up, but collecting like... Did you cite any kind of extrinsic evidence, some kind of standard dictionary or technical dictionary that would tell us that collection means nearly receiving? [00:11:21] Speaker 01: Because I didn't see anything in your briefs that [00:11:24] Speaker 01: We did. [00:11:24] Speaker 00: We cited the Webster's dictionary. [00:11:28] Speaker 00: That's the only dictionary that's cited here. [00:11:30] Speaker 04: We don't need a dictionary. [00:11:31] Speaker 04: We can look at your examples, like example two. [00:11:34] Speaker 04: The dispersion was collected and then from which the dispersion once cooled could be periodically removed. [00:11:42] Speaker 04: So obviously it was collected. [00:11:44] Speaker 04: It wasn't just passed through. [00:11:46] Speaker 00: But it was collected in the sense that it was received, not in the sense that it was accumulated. [00:11:51] Speaker 00: In fact, the fact that it can be periodically removed and it doesn't say how periodically or how much you need to build up is stressing how unimportant accumulation is. [00:12:01] Speaker 00: And all that's important is the receiving at a pressure above atmospheric. [00:12:07] Speaker 01: Would you say that a drinking straw is a collection vessel? [00:12:11] Speaker 00: I don't think a drinking straw would work in the context of the claim. [00:12:14] Speaker 00: And this is the problem with allergies. [00:12:16] Speaker 01: Right. [00:12:17] Speaker 01: No, I'm just trying to understand. [00:12:18] Speaker 01: Or what about water flowing through a garden hose? [00:12:22] Speaker 01: Is that a collection vessel? [00:12:23] Speaker 00: Well, blood flowing through blood vessels would be a blood vessel. [00:12:26] Speaker 00: I mean, it's a vessel. [00:12:27] Speaker 00: So the two, we know we're big beyond the two. [00:12:29] Speaker 00: Right. [00:12:29] Speaker 01: We're trying to understand the term collection vessel. [00:12:33] Speaker 00: Yes. [00:12:34] Speaker 00: And collection vessel. [00:12:35] Speaker 00: Let me point to one thing here. [00:12:37] Speaker 00: The only place you find the word accumulation in all [00:12:41] Speaker 00: The intrinsic record and the extrinsic evidence, the only place you find the word accumulation is in the dictionary. [00:12:48] Speaker 00: It is, and it's not the first definition in the dictionary, it's like third or fourth. [00:12:53] Speaker 00: There is no reference in the patent to any sort of accumulation, build up, hold time. [00:12:59] Speaker 00: There's no reference in any of the four extrinsic patents that DAV cites to accumulation. [00:13:05] Speaker 00: They refer to a patent that refers to a collection bath. [00:13:08] Speaker 04: That periodically removing something doesn't mean that prior to that something was collected. [00:13:15] Speaker 00: And the case law is very clear that because in that example we refer to periodically removing, we're not restricted to periodically removing. [00:13:23] Speaker 00: In fact, the patent also makes clear in the specification that this process contemplates further steps. [00:13:33] Speaker 00: which implies that it could go from the collection vessel into something else, a filtering process, similar to the extrinsic patent that Dow has cited, the 682 patent, where the word, again, collection vessel, is used. [00:13:51] Speaker 00: It's depicted as a closed vessel. [00:13:52] Speaker 00: Ms. [00:13:52] Speaker 04: Darden, you're a battle time if you'd like to save it. [00:13:55] Speaker 00: I will. [00:13:56] Speaker 00: Thank you, Your Honor. [00:13:59] Speaker 04: Mr. Barlow. [00:14:04] Speaker 05: Thank you, Your Honor. [00:14:05] Speaker 05: Good morning, and may it please the Court. [00:14:08] Speaker 05: First, I'd like to respond to some of the Council's comments about claim construction. [00:14:13] Speaker 05: Examples two and three, the language of examples two and three assumes there is accumulation. [00:14:19] Speaker 05: They say the dispersion was collected into a water-cooled pressurized vessel from which the dispersion, once cooled to below 100 degrees C, could be periodically removed. [00:14:30] Speaker 05: Once cooled implies that the material is sitting there. [00:14:34] Speaker 05: Periodically removed requires it is not immediately removed. [00:14:37] Speaker 05: It is removed after a period of time. [00:14:40] Speaker 05: So both of those assume that accumulation has occurred. [00:14:43] Speaker 05: And the word collection is used in those examples to mean accumulation. [00:14:48] Speaker 05: ACSO has never disputed that accumulate is one of the meanings of the term collect. [00:14:55] Speaker 05: They instead are asking for a broader construction [00:14:59] Speaker 05: of collect meaning receive. [00:15:00] Speaker 05: But they've never disputed that accumulate is a proper meaning of collect. [00:15:05] Speaker 05: And examples two and three show that it is the one that... What about their rain gutters analogy? [00:15:10] Speaker 01: Don't you think rain gutters accumulate the rain water from... [00:15:15] Speaker 01: from the roof of the house? [00:15:17] Speaker 05: There are other definitions of collect. [00:15:20] Speaker 05: The only other one... But it's collecting, isn't it? [00:15:23] Speaker 05: It's gathering it together. [00:15:25] Speaker 05: In other words, the rain falls on the roof. [00:15:26] Speaker 01: You don't want to say collecting, but it is gathering water. [00:15:29] Speaker 05: It is collecting. [00:15:31] Speaker 01: I agree. [00:15:31] Speaker 05: It's collecting water. [00:15:32] Speaker 05: I agree. [00:15:33] Speaker 05: I'm agreeing with you that it's not accumulating in the same sense as the accumulates used in the patents. [00:15:38] Speaker 04: It certainly used to in my gutters when they were leaving. [00:15:42] Speaker 05: And right, if there's leaves in the gutters, there could be accumulation. [00:15:46] Speaker 05: But rain collecting in the gutter doesn't mean that the gutter is just receiving the rain. [00:15:52] Speaker 05: It's received all over the root. [00:15:53] Speaker 05: And it's gathered together in the gutter. [00:15:56] Speaker 05: And we agree, gathered together is another definition of collect. [00:16:01] Speaker 05: But acts have never asked in the district court or in this court that collect be construed to mean gathered together. [00:16:07] Speaker 05: And they've never explained how gathered together makes sense in the context [00:16:11] Speaker 05: of examples two and three. [00:16:13] Speaker 05: Gathered together includes aspects of accumulate. [00:16:17] Speaker 05: It also includes other things where you have things all over the place, like all over the roof in space, and you gather it together in a smaller space. [00:16:26] Speaker 05: So to the extent gathered together would make any sense at all as a construction in the patent, it would mean accumulate. [00:16:34] Speaker 05: It would have the same connotations. [00:16:36] Speaker 05: What there is no evidence for, extrinsic or intrinsic, [00:16:41] Speaker 05: is an ordinary meaning of collect, that means just receive. [00:16:47] Speaker 05: There's no evidence of that. [00:16:48] Speaker 05: The only ones that have been pointed to are collect and gather together. [00:16:53] Speaker 04: What about equivalence? [00:16:55] Speaker 05: Okay, equivalence. [00:16:57] Speaker 05: The district court did not, as counsel said, decide that there can be no equivalence to accumulation. [00:17:06] Speaker 05: The district court decided that AXO's function wave results analysis [00:17:11] Speaker 05: was aficiation because it completely read accumulation out of the claim. [00:17:16] Speaker 05: What Axel Art relies on, as Axel's counsel just said, was the function recited in the claim of maintaining the pressure. [00:17:26] Speaker 01: Assuming we agree that collection means accumulation, when I was reading the aficiation reasoning by the district court and your arguments, [00:17:40] Speaker 01: It made me wonder if anything can be the equivalent of accumulation. [00:17:46] Speaker 01: Maybe you would be thinking that if it doesn't technically accumulate, then it's automatically vitiation. [00:17:54] Speaker 01: And that seems a little bit too extreme. [00:17:56] Speaker 05: That's not what we're saying. [00:17:59] Speaker 05: Here, AXO's functionary results argument says there are other limitations of the claim that are met. [00:18:06] Speaker 05: Therefore, it's equivalent. [00:18:07] Speaker 05: So Axel is only relying on other claim limitations. [00:18:12] Speaker 05: So Axel is saying, well, you look at every claim limitation except collect. [00:18:16] Speaker 05: And if those are met, it's equivalent. [00:18:19] Speaker 01: Well, I don't think they're going that far. [00:18:21] Speaker 01: I think they are trying to make a case for why your device is a collection vessel. [00:18:30] Speaker 01: And the theory, I think, is that there's [00:18:35] Speaker 01: There's this dispersion liquid medium that's coming into your vessel, and it's sitting there at least for a period of time. [00:18:44] Speaker 05: Well, it's not sitting there. [00:18:45] Speaker 01: Well, sitting there is not right, but it resides for a period of time. [00:18:49] Speaker 05: Okay, so that theory doesn't relate to accumulation. [00:18:54] Speaker 05: You could have a pipe with water flowing through it with no accumulation at all. [00:18:59] Speaker 05: all the water that goes to that pipe is resident in the pipe for a defined period of time. [00:19:04] Speaker 05: It can't instantaneously jump from the front to the back. [00:19:07] Speaker 05: All substances in the universe have to take time to travel through space. [00:19:11] Speaker 05: So that argument, resident time, doesn't mean there's any accumulation. [00:19:16] Speaker 01: Well, if that's not an equivalent, then what is an equivalent? [00:19:20] Speaker 05: So they would have to consider the role of accumulation in the claimed invention. [00:19:24] Speaker 04: Is it your view that a term in a claim doesn't necessarily have to have an equivalent? [00:19:30] Speaker 05: Well, I actually haven't considered that, Your Honor. [00:19:34] Speaker 05: There may be equivalents of accumulate. [00:19:37] Speaker 05: Their analysis just didn't address that point. [00:19:42] Speaker 05: Accumulation performs a function in the claimed invention. [00:19:46] Speaker 05: In order to present a proper function-way results analysis, they would have to consider what's the function of accumulation in the claimed invention. [00:19:54] Speaker 01: What is that function? [00:19:56] Speaker 05: Well, if you don't have any accumulation in a pressurized vessel, [00:20:00] Speaker 05: then you have a line of dispersion that ends at atmospheric pressure. [00:20:03] Speaker 05: And then you are dependent on the inherent pressure of the dispersion and the viscosity of it as it cools to raise the pressure. [00:20:12] Speaker 05: You can't raise it any other way. [00:20:13] Speaker 05: But if you accumulate it in a pressurized vessel, you can apply extra pressure at the end of the line of material, and that will push the pressure back up into the extruder. [00:20:26] Speaker 05: That's what happens in examples two and three. [00:20:29] Speaker 05: the line of pipes or whatever that comes out of the extruder, it goes into this tank that's under pressure from nitrogen. [00:20:37] Speaker 05: So the nitrogen is creating pressure that's pushing back up into the extruder and maintaining the pressure in the extruder at a high value. [00:20:45] Speaker 05: If you don't have the accumulation, then you have something like Tanaka, where the material flows through the, it's shown on page six of our brief, the material flows out of the extruder [00:20:59] Speaker 05: into the cooling device, and then eventually out the other end. [00:21:04] Speaker 05: And as it cools, it becomes more viscous, and that creates pressure. [00:21:09] Speaker 05: Whether it becomes a solid or remains a viscous liquid, as it cools, it becomes more viscous, and that raises pressure back up inside the extruder. [00:21:19] Speaker 05: But what comes out at the very end of the Tanaka process, as shown in Figure 1, is atmospheric pressure. [00:21:26] Speaker 05: So the entire source of your back pressure is the inherent property of the dispersion. [00:21:32] Speaker 02: What about the Dowell's apparatus? [00:21:37] Speaker 02: And I'm looking at, I guess this is a figure at A1097. [00:21:43] Speaker 02: And it's the picture that was used by Axel's expert. [00:21:51] Speaker 02: And it's got a red box around the heat exchangers. [00:21:54] Speaker 02: You'll be probably familiar with that part. [00:21:57] Speaker 02: Now, when I look at the heat exchangers, I see a pressure control valve. [00:22:01] Speaker 02: What is that valve supposed to do? [00:22:03] Speaker 05: That valve maintains the pressure in the extruder. [00:22:07] Speaker 05: The pressure in the extruder is around 400, 500 psi. [00:22:11] Speaker 05: That valve is a small aperture. [00:22:13] Speaker 02: But what does it do? [00:22:15] Speaker 02: Does it open and close? [00:22:16] Speaker 05: Well, on this record, their experts said when you're up and running, it doesn't open and close. [00:22:24] Speaker 05: factually not true, but on this record, on summary judgment, we would have to concede that if, for the purposes of this appeal, it stays at one setting. [00:22:33] Speaker 02: Because if, I mean, why would, how could that be, how could it operate as a pressure control valve if there's not some sort of opening and closing? [00:22:40] Speaker 05: It has to. [00:22:40] Speaker 05: It has to. [00:22:41] Speaker 02: If the pressure raises to... So if it does, if it does open and close, when it closes, what happens to the material that's inside the heat exchangers? [00:22:47] Speaker 05: It doesn't close all the way. [00:22:49] Speaker 02: It's like a... Let's say it closes halfway. [00:22:52] Speaker 05: Well, maybe just a tiny bit. [00:22:54] Speaker 05: It's constantly flowing. [00:22:55] Speaker 02: So it goes up because there's more material in the heat exchangers? [00:22:59] Speaker 05: No, because the pressure's higher. [00:23:00] Speaker 02: But the material's not moving anymore. [00:23:02] Speaker 05: No, it's still moving. [00:23:03] Speaker 05: It's still moving. [00:23:06] Speaker 05: Pressure is just the number of molecular collisions. [00:23:10] Speaker 05: Temperature is the speed each molecule hits the wall. [00:23:13] Speaker 05: Pressure is the number of collisions. [00:23:14] Speaker 05: So when you compress a gas together, you get more and more collisions. [00:23:18] Speaker 05: That raises the pressure. [00:23:19] Speaker 05: So if water is more liquid, they're far more complicated. [00:23:25] Speaker 02: Well, I guess I'm looking at the heat exchangers, not so much as a pressurized vessel, but it seems to me that there's accumulation that could have occurred there. [00:23:35] Speaker 05: But the valve controls the pressure in the extruder, not the heat exchangers. [00:23:39] Speaker 02: But it's between both. [00:23:40] Speaker 05: Right, I know. [00:23:41] Speaker 05: But if you're correct, if you're correct that you [00:23:45] Speaker 05: If you close the valve and that slows down the amount of stuff coming out of the extruders, there'd be de-accumulation, not accumulation. [00:23:52] Speaker 05: There'd be less material. [00:23:54] Speaker 01: But that doesn't happen. [00:23:55] Speaker 01: The question might be what is then driving the dispersion through all the heat exchangers? [00:24:00] Speaker 01: Maybe if there's no propulsion from the extruder, once you turn off the valve, then maybe it's all just sitting there. [00:24:08] Speaker 01: Maybe that's what Judge Rain is thinking, but that's what [00:24:10] Speaker 05: It sparked my curiosity. [00:24:13] Speaker 05: But that doesn't happen. [00:24:14] Speaker 05: There's constant flow. [00:24:16] Speaker 05: There's no accumulation. [00:24:17] Speaker 05: Accumulation also, as AXO admits on page 31 of the blue brief, isn't just a building up of a material. [00:24:25] Speaker 05: There has to be a sense of holding, or keeping, or impeding for moving on for there to be accumulation. [00:24:33] Speaker 05: So if things are still moving, constantly moving, every element of fluid that goes into the heat exchangers [00:24:40] Speaker 05: pushes an element of fluid out the other end. [00:24:42] Speaker 05: There's no accumulation. [00:24:44] Speaker 05: There's the same amount of material all the time. [00:24:47] Speaker 05: Water is an incompressible fluid. [00:24:48] Speaker 05: Its density is not a function of pressure except at very high temperatures. [00:24:53] Speaker 05: That's not in the record, but if they wanted to have some theory on summary judgment that changes in the pressure in the extruder would change the amount of fluid in the heat exchangers, they would have had to submit an expert report on that, but they didn't. [00:25:05] Speaker 05: So I think on this record, the evidence is [00:25:08] Speaker 05: The changes in pressures that might occur during the process don't change the amount of fluid flowing through the processes. [00:25:16] Speaker 04: Mr. Follow, I might point out to you, you want to save two minutes for your cross-appeal. [00:25:24] Speaker 04: Yes, that's right. [00:25:25] Speaker 04: If it's mentioned. [00:25:26] Speaker 05: Yes, thank you. [00:25:27] Speaker 04: I want to get to the... If you have something too robust. [00:25:29] Speaker 05: Yes, thank you very much. [00:25:30] Speaker 05: And I do want to get to the indefiniteness issue. [00:25:33] Speaker 05: So on indefiniteness, the ultimate issue for indefiniteness is, [00:25:38] Speaker 05: What the term viscosity means in the context of the patent to a person of ordinary skill in the art. [00:25:45] Speaker 05: And that's a question of law for the court to resolve de novo. [00:25:48] Speaker 05: And that's explained in the Teva Supreme Court case that says you look outside the context of the patent to see what the meanings of terms are, but then you conduct a legal analysis and that is you look at the context of the patent to see what meaning of the term a person of skill in the art would understand from that patent. [00:26:05] Speaker 05: And that's purely a question of law. [00:26:07] Speaker 05: There could be underlying issues of fact. [00:26:10] Speaker 05: Here both parties submitted extrinsic evidence, but there were no disputes about the content of the evidence on the relevant issues. [00:26:18] Speaker 01: But the district court judge made a call on which side's extrinsic evidence was more persuasive as to understanding how one of ordinary skill in the art would do this measurement. [00:26:31] Speaker 01: Would the default be at room temperature or would the default be something else? [00:26:38] Speaker 05: The judge's call, to the extent it's on what the term means in the patent, is not a finding of fact. [00:26:44] Speaker 01: No, no, I know. [00:26:44] Speaker 01: We're talking about what we will agree is the underlying fact finding. [00:26:49] Speaker 01: It can and apparently did exist in this indefiniteness challenge. [00:26:54] Speaker 05: So number one, there are no underlying issues of fact. [00:26:59] Speaker 05: And number two, the judge didn't make any findings of fact. [00:27:03] Speaker 05: A conclusion on the ultimate issue, even if it's an issue of fact, [00:27:07] Speaker 05: under Rule 52 is not a finding of fact. [00:27:11] Speaker 05: I see I'm into my rebuttal time. [00:27:14] Speaker 04: You can save it or use it. [00:27:16] Speaker 05: Let me just make one more point before I save the rest for rebuttal time, and that is the ASTM on which we rely on, the contents that we rely on are not in dispute. [00:27:25] Speaker 05: We rely on section 10.1 on page A545. [00:27:28] Speaker 05: It says there's four things you have to specify for viscosity in the coating and adhesive art. [00:27:34] Speaker 05: instrument model, spindle number, rotational speed, and temperature. [00:27:39] Speaker 05: And in the patent, in the examples where they measure dispersion, viscosity of dispersion, such as column 6, lines 45 to 46, they report the instrument model, Brookfield Viscometer, spindle number, spindle 2, rotational speed, 12 RPM, and they leave out temperature. [00:27:54] Speaker 05: None of that's disputed. [00:27:56] Speaker 05: There's no dispute that the ASTM doesn't report a default temperature or a [00:28:02] Speaker 05: or even use room temperature at all. [00:28:04] Speaker 05: So we believe in the undisputed facts. [00:28:07] Speaker 05: The legal question has to come out that these claims are indefinite. [00:28:10] Speaker 05: And I'd like to reserve the rest of my time here. [00:28:12] Speaker 03: Thank you, Mr. Fowler. [00:28:15] Speaker 03: Ms. [00:28:18] Speaker 00: Doherty. [00:28:18] Speaker 00: Thank you, Your Honor. [00:28:19] Speaker 00: Just a couple quick points in response. [00:28:22] Speaker 00: ACSO does not admit that accumulation requires holding. [00:28:25] Speaker 00: ACSO merely notices that it's not clear what accumulation requires. [00:28:30] Speaker 00: In fact, the district court doesn't really say how much accumulation, how long. [00:28:35] Speaker 00: The district court instead said that there was no basis in the claim to read in the negative limitation of no continuous flow, but then said that accumulation means no continuous flow. [00:28:47] Speaker 00: So that is another reason why the district court's claim construction should be reversed and a construction entered that's consistent with not only the intrinsic record that places no importance on accumulation, [00:28:59] Speaker 00: But also the extrinsic evidence that Dow cites to each one of those patents also uses the word collection in the gathering sense. [00:29:07] Speaker 00: There's a patent that's directed to separating liquids over here in this vessel from solids over here, not to accumulate them, but to separate them, to gather them into different places. [00:29:18] Speaker 00: I don't want to spend a lot of time on that. [00:29:19] Speaker 00: I want to turn to indefiniteness. [00:29:21] Speaker 00: The ASTM standard that was not submitted through any expert, only through Dow's counsel, is not some sort of default standard that we have special rules for viscosity limitations. [00:29:33] Speaker 00: As this court is very well aware, there are many analytical tests that vary in results based on the temperature. [00:29:40] Speaker 00: That's why we have a convention. [00:29:43] Speaker 00: We have a convention that says you need to specify the temperature unless it's at room temperature. [00:29:49] Speaker 00: And the presumption is, if no temperature is specified, you're supposed to use room temperature. [00:29:54] Speaker 00: The ASTM standard doesn't say anything about that, take that away. [00:29:59] Speaker 00: It's a standard regarding something called apparent viscosity of something called hot melt adhesive that sets up a standard for measuring apparent viscosity, which is defined in this ASTM standard. [00:30:12] Speaker 00: There's no explanation from any expert as to who's using this for what and when. [00:30:17] Speaker 00: There's nothing in there that says you don't use the room temperature default. [00:30:20] Speaker 00: And every temperature in that AFTM standard is measured at above 100 degrees, which by the claim's own definition is going to be completely irrelevant because the claim requires cooling to below 100 degrees. [00:30:34] Speaker 01: Just a quick question. [00:30:35] Speaker 01: Do you think the district court made a fact finding? [00:30:38] Speaker 00: I do believe the district court made a fact finding, but I also believe that the record is clear enough to affirm the finding de novo. [00:30:45] Speaker 00: But in our view, the district court did make a fact finding. [00:30:49] Speaker 00: The parties submitted extrinsic evidence. [00:30:51] Speaker 00: We submitted a declaration. [00:30:53] Speaker 00: They submitted the standard. [00:30:54] Speaker 00: He made the finding of facts. [00:30:56] Speaker 00: What would one of ordinary scale in the arts understand when confronted with this? [00:31:01] Speaker 00: And we do believe that the finding of facts [00:31:03] Speaker 00: and the ultimate conclusion is an issue of law, but this really kind of compels the conclusion. [00:31:08] Speaker 04: Thank you, Ms. [00:31:09] Speaker 04: Gardner. [00:31:10] Speaker 04: Mr. Balo, we'll give you two minutes on the cross appeal. [00:31:16] Speaker 05: Just briefly, we agree the ASTM may not necessarily be the default standard, but it's the only evidence in the record from the coatings and adhesives art. [00:31:26] Speaker 05: So it's the only evidence showing what a person's skill of skill in the coatings and adhesives art [00:31:31] Speaker 05: would understand regarding how to measure viscosity and what has to be specified. [00:31:36] Speaker 05: Coatings and adhesives art is on page 3 of Access Bluebrief they admit that dispersions of the invention have commercial application in the manufacture of coatings and adhesives. [00:31:47] Speaker 05: The patent in column 1 starting at line 10 talks about coatings and adhesives. [00:31:52] Speaker 05: In column 4 at lines 40 to 42 it says the dispersions are particularly useful for coatings and adhesives. [00:32:00] Speaker 05: So we think it's clear that the art, relevant art, is coatings and adhesives. [00:32:03] Speaker 05: The only evidence from that art is the ASTM. [00:32:05] Speaker 05: It shows that room temperature is not the default or even very, very, very often used and that temperature must be specified. [00:32:14] Speaker 05: That's all I have on her. [00:32:16] Speaker 04: Thank you, Mr. Ballot. [00:32:17] Speaker 04: We'll take the case under discussion.