[00:00:02] Speaker 00:
Next case is NCAP versus the Scott's Company, 2015-2008.

[00:00:08] Speaker 00:
Mr. Weiss.

[00:00:09] Speaker 00:
Thank you.

[00:00:17] Speaker 03:
May it please the court.

[00:00:19] Speaker 03:
I want to start my arguments with the board's decision on Roth and Low, the combination for obviousness.

[00:00:28] Speaker 03:
The board made a factual error stating that Low

[00:00:31] Speaker 03:
teaches a coding or a coding process for a seed.

[00:00:34] Speaker 03:
The intervener agreed that a mistake was made but basically glossed over it.

[00:00:38] Speaker 03:
The record shows that one of the skill in the art in the field of agglomeration concluded and demonstrated that low in combination with raw would not get the combined degree of the coded seed.

[00:00:49] Speaker 03:
Specifically, NCAP presented the Madigan Declaration, which stated in several paragraphs that you cannot just agglomerate what's taught in low around the seed.

[00:01:00] Speaker 03:
They presented testing.

[00:01:01] Speaker 03:
There were photos and evidence.

[00:01:03] Speaker 03:
You could not just do it.

[00:01:05] Speaker 03:
There was no evidence.

[00:01:06] Speaker 03:
The board doesn't rely on any one of ordinary skill in the art or anyone to state that the combination would work.

[00:01:14] Speaker 03:
Further, Dr. Sundstrom, who's Scott's expert, stated on the record that he did not review Lowe because it did not contain a seed.

[00:01:22] Speaker 03:
And further, Scott could tell did not rebut any of NCAP's evidence, showing that you could not combine the references.

[00:01:29] Speaker 03:
Then there's a general point that the board has made, which includes all the prior references.

[00:01:34] Speaker 03:
And that is, the board concluded that, on the definition of soil condition material, that the soil condition material must beneficially modify the soil to which the soil condition material is applied.

[00:01:47] Speaker 03:
That's a given.

[00:01:49] Speaker 03:
There is no dispute that's the board's definition.

[00:01:53] Speaker 03:
This affects every one of the references.

[00:01:55] Speaker 03:
With respect to low, which is a paper mill sludge,

[00:01:58] Speaker 03:
the fact that Matthews is flyish, there's no evidence showing that those materials beneficially modified the soil.

[00:02:07] Speaker 03:
In fact, there's evidence showing that it does not.

[00:02:09] Speaker 03:
But the board agreed that NCAP provided evidence showing that not all paper mill sludge would beneficially modify the soil.

[00:02:20] Speaker 03:
Not all flyish would beneficially modify the soil.

[00:02:24] Speaker 03:
Once the board accepted that evidence,

[00:02:27] Speaker 03:
It was Scott Spurgeon to prove that those materials had to have beneficially modified the soil, because that's the definition that the board had found.

[00:02:36] Speaker 03:
When we look into the papers themselves, Lowe specifically teaches that their papermill sludge is chemically inert.

[00:02:44] Speaker 03:
That's on AO1A3, 1 colon 11, 14, 1 colon 24, and 2 colon 4.

[00:02:52] Speaker 03:
When we look at fly ash now, which is the Matthews patent, again,

[00:02:56] Speaker 03:
the record shows that not all fly ash is the same as it was found with the experts from both NCAT and SCOTS experts both agree to that.

[00:03:06] Speaker 03:
When it came down to fly ash, when one looked to Matthews, Matthews specifically states that the coating materials including fly ash are inert material substances such as fly ash.

[00:03:17] Speaker 03:
And then it further states that the key to the system of permeability and control is that different shaped inert particle ingredients.

[00:03:24] Speaker 03:
That's fly ash.

[00:03:25] Speaker 03:
So basically, the papers specifically state that the substances that the board was claiming would beneficially modify the soil.

[00:03:34] Speaker 03:
The papers themselves say they were inert.

[00:03:36] Speaker 03:
They have no effect on the soil whatsoever.

[00:03:46] Speaker 03:
So therefore, based on the fact that none of the papers show that

[00:03:53] Speaker 03:
their materials that the board found, beneficial to modify the soil, they can anticipate or make obvious the claims of the 259 packs.

[00:04:04] Speaker 03:
Further on, another note, we believe that the board's constructions of the claims were also incorrect.

[00:04:10] Speaker 03:
With regards to combination seed capsule, we believe that the combination seed capsule should have been construed.

[00:04:18] Speaker 03:
Scotch originally requested that it be construed in their petition.

[00:04:22] Speaker 03:
We, all of the declarants, Baker, Madigan, and Preschak, found that the combination seed capsule should have been construed.

[00:04:30] Speaker 03:
The board did not construe it.

[00:04:33] Speaker 03:
With regards to soil condition material, the 259 patent at column 8, lines 42 through 52, gives a full definition of what a soil condition material is.

[00:04:44] Speaker 03:
The board just took a piece of that, the first sentence, and didn't use the whole paragraph to define it.

[00:04:50] Speaker 03:
Scotts themselves and their petition

[00:04:52] Speaker 03:
quoted the full definition of a column 8 lines 42 through 52, which NCAT put in, as the definition.

[00:04:58] Speaker 03:
And the board found that neither Scott's, neither any of the declarants were correct.

[00:05:06] Speaker 00:
Are you conceding that certain claims are anticipated by Schreiber or Matthews?

[00:05:12] Speaker 03:
No, I am not, Your Honor.

[00:05:13] Speaker 03:
As I just stated before, in order for it to be anticipated, let's just take the fly assurance, which is Matthews,

[00:05:21] Speaker 03:
you'd have to have a soil condition material that benefitially modifies the soil.

[00:05:25] Speaker 03:
Fly ash, as I just stated, is an inert material.

[00:05:28] Speaker 03:
It has to be inert, according to the teachings of Matthews.

[00:05:31] Speaker 00:
And therefore... But aren't the teachings of a reference questions a fact to which we owe the Patent Office deference?

[00:05:38] Speaker 03:
In this regard, Your Honor, they didn't make that determination.

[00:05:45] Speaker 03:
The determination they made was,

[00:05:47] Speaker 03:
is that fly ash, because fly ash is an example in the 259 pattern, because paper mill sludge is an example in the 259 pattern, they didn't take the further step to say it has to beneficially modify the soil.

[00:06:00] Speaker 03:
They just said because fly ash is there, because fly ash is in the 259 pattern and fly ash is in Matthews, it's the same.

[00:06:08] Speaker 03:
Because paper mill sludge is in the 259 pattern and because paper mill sludge is in low, it's the same.

[00:06:14] Speaker 03:
That was based on the board's own definition.

[00:06:17] Speaker 03:
stating that, and in fact, they included some examples in their definition.

[00:06:22] Speaker 03:
But even they, when they had to go back to those examples, stated that if it's paper mill sludge, fly ash, whatever those materials are, they must beneficially modify the soil.

[00:06:33] Speaker 03:
So it's not a question of fact.

[00:06:34] Speaker 03:
They didn't observe their own definition.

[00:06:36] Speaker 03:
There's no determination whatsoever in their holdings saying that the fly ash, the paper mill sludge, beneficially modifies the soil.

[00:06:47] Speaker 03:
In fact, you can't put it to nerve.

[00:06:52] Speaker 02:
Don't they say that at A26, though?

[00:06:54] Speaker 02:
I thought they said it at A26, specifically.

[00:07:01] Speaker 02:
Well, a person born near Scalding Art would have understood that a non-toxic fly ash could be used to coat the seed as a soil-conditioned material and that using toxic materials harmful to the seed should be avoided.

[00:07:11] Speaker 02:
Correct.

[00:07:12] Speaker 02:
We determined, yes.

[00:07:13] Speaker 02:
We determined that a person born on Earth would interpret Matthews as using non-toxic fly ash beneficial to the soil.

[00:07:20] Speaker 03:
I agree, Your Honor.

[00:07:23] Speaker 03:
They focused on non-toxic versus toxic.

[00:07:26] Speaker 02:
I heard you just say they made no finding on that.

[00:07:30] Speaker 03:
With regards to non-toxic, they stated that one of us in New York would not have chosen a toxic substance, a toxic fly ash, because fly ash can be toxic.

[00:07:38] Speaker 03:
The argument here is that they didn't focus on the fact that fly ash could be inert.

[00:07:43] Speaker 03:
in inert material would not beneficially modify the soil.

[00:07:46] Speaker 03:
That's where they skipped that section totally.

[00:07:49] Speaker 03:
They relied on toxic versus non-toxic, which is a pretty simple argument, rather than addressing the fact that the patent itself, Matthews, as I cited, states that it flies against inertness.

[00:07:59] Speaker 02:
What about your argument on the combination seed capsule?

[00:08:03] Speaker 02:
I heard you saying that both parties submitted the same very long construction.

[00:08:08] Speaker 02:
from, I think, the abstract of the past.

[00:08:11] Speaker 02:
Is that right?

[00:08:11] Speaker 02:
I mean, I thought I heard you just say that.

[00:08:13] Speaker 02:
I was thinking, well, doesn't the board have an independent duty to interpret the claims, regardless of what the parties assert?

[00:08:19] Speaker 02:
Right.

[00:08:19] Speaker 03:
No, you're right.

[00:08:19] Speaker 03:
I didn't say it.

[00:08:20] Speaker 03:
With the combination of C-capsules, both parties stated that it deserved to claim construction.

[00:08:25] Speaker 03:
We didn't have the same construction, but both parties submitted a construction, and the board turned around and did not conclude the claim whatsoever.

[00:08:33] Speaker 02:
What is your basis for reading in such a long definition into that?

[00:08:37] Speaker 03:
Because it says right in the abstract, a combination C capsule is, and then it goes through exactly what it, you know, it says the advantage pertains to a combination C capsule wherein each capsule includes, and then it goes, the combination C capsules are made by, the combination C capsules provide, it goes into a whole definition what the combination C capsule is.

[00:09:02] Speaker 03:
And I believe that the,

[00:09:03] Speaker 02:
Does that mean we'd have to read to most patents where it uses a word that's in the claim and then says what the beneficial properties are, that we always have to read those into the claim?

[00:09:14] Speaker 03:
No, Your Honor.

[00:09:15] Speaker 03:
But in this particular case, if one goes to the file history and one looks at the other claims that all relate back to the combination C capsule, this gives life and meaning to the claim.

[00:09:26] Speaker 03:
That's why it's important.

[00:09:28] Speaker 02:
Abstract gives life and meaning to the claim?

[00:09:30] Speaker 03:
These particular statements give life and meaning to the claim.

[00:09:33] Speaker 03:
If these statements were in the summary of the invention, the board probably may have concluded that they were a definition that needed to be construed.

[00:09:43] Speaker 03:
They may have looked at that they're in the abstract as not wanting to use them to construe the claim.

[00:09:48] Speaker 03:
But they didn't construe the claim at all, actually.

[00:09:50] Speaker 02:
My understanding is, well, I would say that whether it's in the abstract or the summary, the question is whether there's an express definition.

[00:09:59] Speaker 03:
OK.

[00:10:00] Speaker 03:
I agree, Your Honor.

[00:10:01] Speaker 03:
Thank you.

[00:10:02] Speaker 03:
The other important part to understanding this is that every seed coating has a different effect on why it's being used, why elements in the coating are used.

[00:10:20] Speaker 03:
For instance, Matthews describes a hard, physically hard coating that's used for planting so that when it's in the planters or it's stored on the shelves, the coating doesn't break.

[00:10:31] Speaker 03:
Schreiber discusses a coating where it delays germination.

[00:10:36] Speaker 03:
And one of the things that you brought up was, am I giving up on Schreiber for anticipation?

[00:10:39] Speaker 03:
The answer is no, because Schreiber uses their coating internally.

[00:10:43] Speaker 03:
Their supposed salt fish material is in an internal coating.

[00:10:48] Speaker 03:
And the whole purpose of it is you plant these seeds in bad weather, and then when the temperatures are right and the moistures are right, that the seed will then germinate.

[00:10:57] Speaker 03:
The issue there is,

[00:10:59] Speaker 03:
a great portion of the seeds will never germinate.

[00:11:01] Speaker 03:
Therefore, a great portion of the quote-unquote soil condition material that they're claiming is a soil condition material will never even touch the soil.

[00:11:09] Speaker 03:
This is an argument made during the... What is the evidence of that?

[00:11:13] Speaker 03:
It's in Shriver itself.

[00:11:14] Speaker 03:
Shriver says that a great majority of the seeds will not germinate.

[00:11:18] Speaker 03:
And this was from the board, and this was an inherently argument.

[00:11:22] Speaker 03:
And the board said, and I like to quote them, that

[00:11:26] Speaker 03:
Even if 50% of the seeds were to germinate, that would be enough for an inherency.

[00:11:31] Speaker 03:
And the way I read inherency, and you can look at the oral argument there, was it has to necessarily be present.

[00:11:36] Speaker 03:
That's the interpretation of what inherent means.

[00:11:41] Speaker 03:
And if only 50% of the seeds will ever have the soil condition material even touch the soil, that can't be inherency.

[00:11:48] Speaker 03:
I'm into my time.

[00:11:51] Speaker 00:
We will save it for you, Mr. Weiss.

[00:11:55] Speaker 00:
Thank you.

[00:12:07] Speaker 01:
These are hollow claims based on a hollow specification that lacks complexity to end capillogies.

[00:12:14] Speaker 01:
All the declarations that they submitted are just not commensurate.

[00:12:16] Speaker 01:
Could you speak up a little bit, please?

[00:12:20] Speaker 01:
Yes, Your Honor.

[00:12:23] Speaker 01:
The point is that these are just hollow claims.

[00:12:25] Speaker 01:
There's nothing to these claims based on a hollow specification.

[00:12:28] Speaker 01:
Specification lacks complexity to end capillogies that it has.

[00:12:32] Speaker 01:
and all the declarations that they cite are just not commensurate in scope with the claim language.

[00:12:36] Speaker 00:
Are you raising written description grounds when you talk about hollow specification?

[00:12:42] Speaker 00:
No, I'm not.

[00:12:43] Speaker 00:
You're talking about obviousness and anticipation?

[00:12:45] Speaker 01:
I am only talking about anticipation and obviousness.

[00:12:47] Speaker 01:
All I'm saying is that at best, all that these claims require is a seed coated with soil conditioning materials that are already well known in the arts.

[00:12:57] Speaker 01:
That's not even the inventive concept here.

[00:13:01] Speaker 01:
The inventive concept here is this idea that you have the soil conditioning material that's close to the seed that covers the seed.

[00:13:08] Speaker 01:
Because of that, it creates these properties that not only support the soil, but when it's planted, it also supports the seed.

[00:13:16] Speaker 01:
The board was already overly generous in its claim construction here.

[00:13:21] Speaker 01:
But even if we gave NCAP everything else that they wanted, it doesn't change the analysis here because all of those asserted benefits, potential benefits for which there's no evidence at all on the specification and no data at all, all of that just naturally flows from the fact that this is a combination product.

[00:13:38] Speaker 01:
And so even if we read with them on a claim construction issue, they're still anticipated and obvious based on that.

[00:13:48] Speaker 02:
I want to ask you a question about the motion to amend and just what is your response to whether we should remand in view of the PTADS decision and master image which further clarified Idol Free?

[00:14:04] Speaker 01:
There's no reason for the court to remand here.

[00:14:07] Speaker 01:
All that master image said was that it clarified that when Idol Free said that you have to show patentable distinction over the prior art of record and the prior art known to the patent owner.

[00:14:17] Speaker 01:
What that meant was simply that you had to show patentability over all material art that is in the proceeding.

[00:14:24] Speaker 01:
And so here, it doesn't really affect the analysis.

[00:14:26] Speaker 01:
This case falls squarely within Microsoft's reproxicon, where the references that were cited were part of the proceeding here.

[00:14:33] Speaker 01:
Because they're not only were they raised in the petition, they were also raised in the opposition.

[00:14:37] Speaker 01:
So there's no reason to remand on that basis.

[00:14:40] Speaker 01:
And not only that, that was just one ground for denying the motion to amend.

[00:14:44] Speaker 01:
The board cited additional grounds, the fact that they didn't provide a claim construction for all the additional limitations that they provided.

[00:14:51] Speaker 01:
The fact that there was no technical disclosure supporting any of those asserted limitations.

[00:14:59] Speaker 01:
Even if you discount the board's holding on based on Simmons and Evans, there's more than enough reasons for the board to deny their motion to amend.

[00:15:12] Speaker 01:
Any other further questions?

[00:15:14] Speaker 00:
Nothing further?

[00:15:15] Speaker 01:
Okay, thank you.

[00:15:16] Speaker 00:
All right, Mr. Weiss has some rebuttal time.

[00:15:27] Speaker 03:
Your Honor, with her argument that the claims are hollow, the spec is hollow, I totally disagree.

[00:15:34] Speaker 03:
This is a marketable product that's been on the market.

[00:15:36] Speaker 03:
There are several companies that have licensed this product.

[00:15:38] Speaker 03:
If they didn't feel that the patent had any merit to it, they wouldn't need to

[00:15:42] Speaker 03:
license us or believe that the patent is valid and move forward with this.

[00:15:47] Speaker 03:
Second of all, with regards to the motion to amend, there was an incorrect statement made by Intervena that we did request to extend the page limit and the patent board denied us.

[00:16:01] Speaker 03:
It's in the opinion.

[00:16:03] Speaker 03:
And in fact, they even say it's a case which stated we should have asked for more pages.

[00:16:08] Speaker 03:
We did and it was denied.

[00:16:10] Speaker 03:
It's almost impossible to fulfill all the requirements of claim construction technical disclosure, responding to every piece of prior art in a 15 page limit, including a list of the claims, which according to the case cited by them, if we would have asked for an extension, we probably would have been able to put the claims into an appendix, which would have been counted against our page limit.

[00:16:34] Speaker 03:
Unfortunately, it wasn't granted.

[00:16:38] Speaker 03:
And so going back to the claims themselves where she said everything, no argument about anticipation or obviousness other than the fact that she said it should be.

[00:16:49] Speaker 03:
Again, Your Honor, according to the board's own decision, they stated specifically that soil condition material must beneficially modify the soil other than nitrogen, phosphorus, potassium, or plant nutrients.

[00:17:00] Speaker 03:
That's the definition the board came up with that we had to respond to.

[00:17:04] Speaker 03:
The Scots did not put any evidence in

[00:17:08] Speaker 03:
stating that any of the prior art fulfills that definition.

[00:17:11] Speaker 03:
This is not just a soil condition material, as the intervener would like to say.

[00:17:16] Speaker 03:
The soil condition material has a specific definition that the board stated, that the patent states in it, that the board found, and that the prior art has to meet in order to anticipate and or make obvious.

[00:17:29] Speaker 03:
The prior art did not meet that definition that they stated.

[00:17:34] Speaker 03:
the prior art should not be found anticipatory or obvious.

[00:17:39] Speaker 03:
And we have, as evidence, we have declared, all of our declarants have stated exactly what we're stating.

[00:17:47] Speaker 03:
Dr. Katers, Dr. Baker, Mr. Kreischek, Mr. Magin have all found that the prior art doesn't meet this.

[00:17:53] Speaker 03:
Their own declarants have found that in order for these materials, they have to beneficial modify the soil.

[00:18:02] Speaker 03:
They agree with the board's definition.

[00:18:04] Speaker 03:
yet no one points to any reasoning in the opinion statement that they've met this definition.

[00:18:11] Speaker 03:
And therefore, when the board cites to fly ash, paper mill sludge, et cetera, there is no citations to the patent, other than what you said about it being nontoxic, which is not what

[00:18:29] Speaker 03:
It's not what's claimed.

[00:18:30] Speaker 03:
It says it must beneficially modify.

[00:18:32] Speaker 03:
It doesn't say toxic, non-toxic.

[00:18:35] Speaker 03:
The definition says beneficially modify.

[00:18:38] Speaker 03:
If something is inert, it cannot chemically, or it cannot beneficially modify if it's inert.

[00:18:44] Speaker 03:
And low is inert.

[00:18:46] Speaker 03:
Matthews is inert.

[00:18:51] Speaker 03:
They teach that they must be inert.

[00:18:53] Speaker 03:
And the third one, Schreiber, teaches that it's within the inner layer and that it's not inherent.

[00:18:57] Speaker 03:
We've already proven that.

[00:18:59] Speaker 00:
Thank you, Mr. Weiss.

[00:19:02] Speaker 00:
We'll take the case under five.

[00:19:03] Speaker 03:
Thank you very much.