[00:01:29] Speaker 02: Okay, if you're ready, the next case is number 14, 1373, Connaker Corporation against Jamin Kingdomway, Mr. Nowak. [00:01:41] Speaker 03: Good morning, Your Honor. [00:01:42] Speaker 03: Keith Nowak for Connaker Corporation. [00:01:45] Speaker 03: Let me begin with a discussion of the term seal tank. [00:01:49] Speaker 03: As the Court knows, during the claim construction in the District Court, the District Court relied exclusively on the dictionary definition of the term seal, [00:01:58] Speaker 03: to conclude that a field tank was a tank that was completely closed to the entry or exit of material. [00:02:05] Speaker 03: The issue, therefore, on this claim construction term is whether that claim construction decision excluded the preferred method of extraction. [00:02:15] Speaker 03: And that's what I can discuss for this in the beginning. [00:02:17] Speaker 04: Can I just clear up where we are? [00:02:19] Speaker 04: You're contesting for claim constructions, is that correct? [00:02:23] Speaker 03: Actually, Your Honor, the inner gas atmosphere we waved. [00:02:26] Speaker 04: Okay. [00:02:27] Speaker 03: We're not discussing that today. [00:02:28] Speaker 04: But, well, however many claim constructions you're contesting, do you have to win all of them for us to reverse? [00:02:36] Speaker 03: Good question. [00:02:39] Speaker 03: I believe that we do, Your Honor. [00:02:40] Speaker 03: Yes. [00:02:42] Speaker 03: Yes. [00:02:42] Speaker 04: Okay. [00:02:42] Speaker 03: Thanks. [00:02:43] Speaker 07: Okay. [00:02:45] Speaker 07: All right. [00:02:45] Speaker 07: So let's be clear. [00:02:48] Speaker 07: So if you, if we reverse on sealed tank, are you saying that that we can't reverse on that? [00:02:54] Speaker 07: We'd have to [00:02:55] Speaker 07: We'd have to find in your favor on all the other claim constructions. [00:03:00] Speaker 03: No, what we're saying, Your Honor, is that the claim constructions that were reached by the district court, we need those claim constructions to be reviewed by this court and remanded for a claim construction based on the intrinsic evidence. [00:03:13] Speaker 04: I think maybe you didn't understand my question then. [00:03:16] Speaker 04: My question is, even if we agree with you on one or more of these claims constructions, if we disagree with you on one and affirm the district court's [00:03:25] Speaker 04: Does that still mean we have to affirm the judgment here? [00:03:30] Speaker 03: Yes. [00:03:32] Speaker 03: Yes, Your Honor. [00:03:33] Speaker 03: Yes, that's correct. [00:03:34] Speaker 04: OK. [00:03:34] Speaker 04: So we're on the same page. [00:03:36] Speaker 04: So we can reverse steel tank if we think it's wrong. [00:03:40] Speaker 04: Or we can disagree with steel tank. [00:03:42] Speaker 04: But if we agree with the district court on the ordering of the steps or the act of oxidation constructions, we stop to affirm. [00:03:51] Speaker 04: OK. [00:03:51] Speaker 06: Well, Your Honor, I want to make sure it's clear. [00:03:53] Speaker 02: Use the microphone if you're willing to share with us. [00:03:58] Speaker 02: Tell us your name. [00:03:59] Speaker 06: Bobby Bowick. [00:04:00] Speaker 02: Okay. [00:04:01] Speaker 06: The 70 mole percent limitation was construed but was not the basis of a summary judgment. [00:04:08] Speaker 04: Right, right. [00:04:08] Speaker 04: No, I don't even know why we're talking about that since it's not the basis of a summary judgment. [00:04:12] Speaker 04: I'm really talking about the other two. [00:04:13] Speaker 06: It's really just the other two claims. [00:04:15] Speaker 06: Okay. [00:04:16] Speaker 06: So those two claims we have to win on. [00:04:18] Speaker 06: Okay. [00:04:18] Speaker 06: Thank you. [00:04:22] Speaker 03: Okay, Your Honor, let's talk about the extraction process. [00:04:26] Speaker 03: The extraction process is defined in the patent at Column 16, Line 7 through 15. [00:04:33] Speaker 03: And it's described in Example 8, and it's shown in Figure 1. [00:04:36] Speaker 03: So let's take just a quick look at Figure 1 in the patent to describe how the extraction process works. [00:04:42] Speaker 02: That's not the exhibit that was objected to, is that right? [00:04:46] Speaker 02: No. [00:04:47] Speaker 02: That's the one in the record? [00:04:48] Speaker 04: It's underneath. [00:04:49] Speaker 02: Okay. [00:04:50] Speaker 04: There are the appendixes of that. [00:04:52] Speaker 04: That looks familiar. [00:04:54] Speaker 04: I'd still like to see it in the appendix. [00:04:56] Speaker 04: Where is it? [00:04:57] Speaker 02: That's somewhere. [00:05:00] Speaker 03: It's figure one of the patents. [00:05:04] Speaker 02: Okay. [00:05:05] Speaker 02: That's the one in the patent. [00:05:06] Speaker 03: Yes. [00:05:07] Speaker 02: Okay. [00:05:07] Speaker 03: All right. [00:05:08] Speaker 03: In the patent itself, there's three types of extraction described. [00:05:11] Speaker 03: There's a batch process, there's a continuous extraction process, and there's a counter-current multi-stage extraction process. [00:05:19] Speaker 03: Figure 1 shows counter-current multi-stage extraction, which is the preferred method of extraction. [00:05:26] Speaker 03: The yellow pipes distribute the extraction solvent throughout the first three stirring tanks. [00:05:32] Speaker 03: The cell-disrupted solution, which contains the CQ10 we want to recover, is distributed throughout all six tanks, and the recovery is on the left-hand side. [00:05:43] Speaker 03: The point I'm making is a very simple point. [00:05:45] Speaker 03: The point is that the preferred method of extraction [00:05:49] Speaker 03: requires circulation through all six tanks. [00:05:52] Speaker 03: And that would not be possible if the tank is closed to prevent the entry or exit of material. [00:05:58] Speaker 03: So by the district court deciding on its claim construction, we've excluded the preferred embodiment of extraction. [00:06:06] Speaker 03: In addition, both continuous extraction, you can put that down by me, both continuous extraction and countercurrent multi-stage extraction is in the dependent claims. [00:06:15] Speaker 03: So with that definition, we've also lost those dependent claims. [00:06:19] Speaker 03: Now, Judge Gilmore in the Texas litigation had a different claim construction. [00:06:25] Speaker 03: And that claim construction was that the field tank meant a tank that would prevent exposure of the contents to the atmosphere. [00:06:34] Speaker 03: That was done for safety reasons. [00:06:36] Speaker 03: One skilled in the art would know that use of a solvent such as hexane creates vapors within the tank. [00:06:43] Speaker 03: Those vapors are flammable. [00:06:45] Speaker 03: It creates pressure in the tank. [00:06:46] Speaker 03: So you need [00:06:47] Speaker 03: prevent exposure to the atmosphere of those hexane vapors. [00:06:51] Speaker 03: That's where Judge Gilmour came out. [00:06:54] Speaker 03: Bottom line, the fact that the definition that came out of the district court in California excludes the preferred embodiment of extraction. [00:07:02] Speaker 03: Therefore, we suggest that this court adopts Judge Gilmour's definition, which is supported by the specification, and makes sense. [00:07:11] Speaker 03: That's it on COP. [00:07:13] Speaker 03: Unless the court has questions. [00:07:15] Speaker 03: Let me move to the next one, which is the oxidizing the reduced Q10, which is the second claim term at issue here. [00:07:31] Speaker 03: Here, the district court construed the term oxidizing the reduced Q10 by adding three new claim limitations to the claims. [00:07:41] Speaker 03: Those claim limitations were [00:07:44] Speaker 03: Oxidation must occur with an oxidizing agent. [00:07:47] Speaker 03: Oxidation must occur in a separate step. [00:07:50] Speaker 03: And all or substantially all of the reduced Q10 must be oxidized in that single step. [00:07:57] Speaker 03: So let's take the oxidizing agent first. [00:08:03] Speaker 03: The oxidizing agent is described in the patent at columns 17, lines 8 through 9 as simply an example. [00:08:10] Speaker 03: one example of oxidation in the manufacturing process. [00:08:14] Speaker 03: It is not required. [00:08:16] Speaker 03: It is not preferred. [00:08:17] Speaker 03: It's simply an example. [00:08:19] Speaker 03: In addition, there are eight examples in the patent which describe the recovery of both oxidized and reduced Q10. [00:08:27] Speaker 03: In those eight examples, only one talks about use of an oxidizing agent. [00:08:33] Speaker 03: If an oxidizing agent was required, we say it would have been in all of the examples. [00:08:39] Speaker 03: And finally, of course, [00:08:40] Speaker 03: The oxidizing agent had mentioned in the dependent claims. [00:08:43] Speaker 03: If we added that to the independent claims, it would violate the doctrine of claim differentiation. [00:08:50] Speaker 03: All right. [00:08:50] Speaker 03: Now let me address the most important issue as far as I'm concerned, which is the separate oxidizing step. [00:08:58] Speaker 03: The district court by concluding there was a separate oxidizing step and that disruption, oxidation, and extraction had to occur in the same fixed order. [00:09:08] Speaker 03: That decision was the basis for construing the other remaining claim terms other than steel tank. [00:09:15] Speaker 03: So let's look at the claim language and see if the oxidizing step can only occur between disruption and extraction and whether those steps have to be in a particular order. [00:09:30] Speaker 04: Well, this to me seems to be your biggest problem in this case because the common sense reading of claim 22 [00:09:38] Speaker 04: has steps. [00:09:40] Speaker 04: It talks about culturing something to get reduced COQ10, disrupting the microbial cells, and then oxidizing thus obtained reduced COQ10. [00:09:52] Speaker 04: So just the simple grammar of that is referring back to the COQ10 that you cultured and disrupted to obtain the reduced. [00:10:04] Speaker 04: How do you get around that? [00:10:05] Speaker 03: Yes, and I'd like to give a different perspective on the claim language, Your Honor. [00:10:09] Speaker 03: So here's claim 22 and 33, which include the three elements that were construed. [00:10:16] Speaker 03: Let me get my notes here in my right place. [00:10:23] Speaker 03: Okay, let's look carefully at claim 22. [00:10:26] Speaker 03: There the conjunctive and is used to connect the steps of disrupting and oxidizing. [00:10:35] Speaker 03: And the term and then is used to connect the [00:10:38] Speaker 03: the claim limitations, oxidizing, and extraction. [00:10:42] Speaker 03: There's a difference here between the terms used to connect these two claim elements and the terms used to connect these two claim elements. [00:10:51] Speaker 03: This says and, and this says and then. [00:10:53] Speaker 03: Obviously, the patent holder decided to use a different conjunctive term when describing these three claim limitations. [00:11:02] Speaker 04: Can you point me to... [00:11:06] Speaker 03: That's Claim 22 in the patents, you're right. [00:11:08] Speaker 04: Yeah, I know. [00:11:09] Speaker 04: We're in... What column is this? [00:11:13] Speaker 04: Where in the appendix is this? [00:11:15] Speaker 06: All right. [00:11:16] Speaker 06: You have to figure one. [00:11:17] Speaker 06: That's Appendix Page 66. [00:11:18] Speaker 06: Yep. [00:11:19] Speaker 06: It's attached on... Where's Claim 22? [00:11:22] Speaker 06: Claim 22 is Appendix Page 79. [00:11:48] Speaker 04: I'm having a hard time. [00:11:49] Speaker 04: Okay, I've got it now. [00:11:51] Speaker 04: Go ahead. [00:11:52] Speaker 04: You got it? [00:11:52] Speaker 04: Okay. [00:11:54] Speaker 03: All right. [00:11:56] Speaker 03: I think it's pretty clear that when you use the term and then the patent holder was saying that extraction here in claim 22 is coming after disruption and oxidizing. [00:12:09] Speaker 03: However, if and then means extracting is coming after, what does and mean? [00:12:15] Speaker 03: If the patent holder wanted to say [00:12:17] Speaker 03: disrupt and then oxidize and then extract, the patent holder would have said so. [00:12:24] Speaker 03: He didn't. [00:12:25] Speaker 03: He made a distinction between those conjunctive terms. [00:12:31] Speaker 03: In addition, in contrast, claim 33 does not use the term and then. [00:12:37] Speaker 03: It uses the term and, extraction and oxidizing. [00:12:42] Speaker 03: Just looking at the claim language. [00:12:44] Speaker 04: I'm sorry for being dense, but is the gist of what you're telling me is that the disrupting and oxidizing states, the first two things can go on simultaneously and that the extraction is what has to occur after? [00:13:02] Speaker 03: That's correct, Your Honor, and I can support that in the specification because oxidation occurs throughout the process, and the specification is very clear on that. [00:13:11] Speaker 03: So we say, I say, [00:13:13] Speaker 03: The fact that the patent holder used two different terms here, it must mean different things. [00:13:17] Speaker 04: I understand your argument, and it seems to carry some weight, but the problem that I have is that that second phrase connected by the and also includes the word thus obtained reduced COQ, suggesting that the COQ 10 in the first step has already been obtained. [00:13:38] Speaker 03: Let's talk about that for a second. [00:13:39] Speaker 03: I agree, right? [00:13:40] Speaker 03: The disruption step goes on for some period of time. [00:13:43] Speaker 03: It doesn't happen instantaneously, because you're disrupting all these millions of microbial cells. [00:13:51] Speaker 03: When you begin, it doesn't say disrupt the microbial cells to obtain all of the reduced Q10. [00:13:56] Speaker 03: It says disrupt the microbial cells. [00:13:58] Speaker 03: That process starts as soon as disruption processes begin. [00:14:02] Speaker 03: At the same time, or shortly thereafter, because oxidation is occurring throughout the process, you begin [00:14:09] Speaker 03: oxidizing the reduced cells that have been obtained to that point. [00:14:14] Speaker 03: I mean, the specification can't be any clearer that oxidation is occurring during this step. [00:14:19] Speaker 04: Oh, I think it could be a lot clearer than this. [00:14:21] Speaker 04: I mean, it's very difficult to read this grammatically to support either of your views. [00:14:29] Speaker 03: Why wouldn't the patent holder have said disrupt and then oxidize and then extract? [00:14:34] Speaker 04: Well, why did he put the word thus obtained in? [00:14:36] Speaker 04: that references back to the obtaining the reduced COQ tin from the disrupting part. [00:14:43] Speaker 03: Of course. [00:14:43] Speaker 03: But it doesn't say that this disruptive step has to be completed before it's oxidized. [00:14:48] Speaker 03: There's nothing that says that. [00:14:51] Speaker 04: I understand your position. [00:14:53] Speaker 03: And there's nothing in the specification that says that. [00:14:56] Speaker 03: And I mean, the same argument applies to claim 33, that the term and is used and not the term and then. [00:15:04] Speaker 03: My argument simply is, and of course the court understands, they wouldn't have used those two separate terms unless they meant two different things. [00:15:12] Speaker 03: So let me just briefly go to the specification and provide support for what I just said. [00:15:20] Speaker 03: Yeah. [00:15:22] Speaker 03: Oh, yeah. [00:15:23] Speaker 03: And one more thing, of course. [00:15:26] Speaker 03: All right. [00:15:28] Speaker 03: Let me back up a moment. [00:15:32] Speaker 03: It's clear in the specification itself. [00:15:34] Speaker 03: At column 58 through 65, the oxidation is occurring during the culturing step. [00:15:43] Speaker 03: That's column 8, line 58 through 65. [00:15:45] Speaker 03: In fact, oxygen is added during the culturing step, and it's undisputed that if in the presence of oxygen, the reduced Q10 will be oxidized. [00:15:55] Speaker 03: So it's certainly happening during that portion of the manufacturing process. [00:16:00] Speaker 03: At column 17, line 20 through 25, it says, [00:16:05] Speaker 03: It's not necessary to protect the reduced Q10 from an oxidation reaction. [00:16:12] Speaker 07: Where are you reading, counselor? [00:16:14] Speaker 03: Column 17, lines 20 through 25. [00:16:17] Speaker 02: Okay. [00:16:23] Speaker 06: That's Appendix 75. [00:16:24] Speaker 06: Okay. [00:16:27] Speaker 02: Let's hear from the other side, and we'll save you rebuttal time. [00:16:31] Speaker 03: Okay. [00:16:31] Speaker 03: Thank you, Your Honor. [00:16:47] Speaker 05: I please the court. [00:16:48] Speaker 05: Mr. Walker. [00:16:49] Speaker 05: Timothy Walker for the Shinjo Defendant and the Pellee. [00:16:55] Speaker 05: As a preliminary matter, because inert gas atmosphere has been, that issue's been waived, the judgment of non-infringement as to independent claims 1 and 11 and all their dependent claims to be affirmed. [00:17:13] Speaker 05: There's also been no argument here made that the district court misapplied its claim constructions to the accused process. [00:17:24] Speaker 05: In fact, plaintiffs didn't even address that. [00:17:28] Speaker 02: Wait. [00:17:29] Speaker 02: Well, you only have a few minutes to talk on what's not reached. [00:17:34] Speaker 04: Could you get to the ordering staff? [00:17:36] Speaker 04: I mean, it seems to me that that's the heart of this case, or at least for me. [00:17:41] Speaker 04: Any clear way to read those claims definitively, one way or the other? [00:17:46] Speaker 05: I think all I can do is agree with Your Honor, is that there is clear sequencing language in the claims, and the sequencing language is unambiguous. [00:17:57] Speaker 04: It requires... Well, I think there's, as your friend pointed out, the ands and thens suggest sequencing language one way, and the thus-obtained suggests sequencing language the other way. [00:18:09] Speaker 04: What are we to do with that? [00:18:14] Speaker 05: I don't think that the difference that he is pointing to mandates that particular reading of the claims. [00:18:23] Speaker 05: Just because it says that it's, again, the use of the word thus obtained, oxidizing thus obtained, you don't have the thus obtained reduced coenzyme Q10 until you've disrupted the microbial cells. [00:18:42] Speaker 05: So that's the, you know, the step is disrupting the microbial cells to obtain reduced coenzyme Q10 and oxidizing thus obtained reduced coenzyme Q10. [00:18:55] Speaker 05: So you have to disrupt first according to this before you oxidize. [00:19:01] Speaker 05: You can't do one before the other. [00:19:03] Speaker 07: Isn't this issue tied into the district court's construction [00:19:09] Speaker 07: and use of the word converting all or substantially all of the reduced coenzyme Q10. [00:19:16] Speaker 07: Where does that come from? [00:19:17] Speaker 07: Where does the all or substantially all construction come from? [00:19:21] Speaker 05: That has to do with maintaining the sequencing that's been claimed here. [00:19:26] Speaker 07: The claim language... It's neither in the specification or in any of the claims that you have to have all or substantially all of the reduced coenzyme Q10 to have been [00:19:39] Speaker 07: involved in converted. [00:19:41] Speaker 05: It is not specifically set in the specification or in the claims that it needs to be done that way, but in order to preserve the sequence that is in the claim language. [00:19:53] Speaker 07: That's my point. [00:19:54] Speaker 07: It's substantially all preserves, appears to preserve a sequence, but if we find that that's an imported limitation, then what does that do to the argument regarding the sequence? [00:20:09] Speaker 05: I would say that it's not an imported limitation if it's required in order to maintain the claim sequence. [00:20:16] Speaker 05: That's our understanding of it. [00:20:19] Speaker 05: If you allow multiple oxidation steps, then you lose the sequence, because now you're oxidizing, extracting, and oxidizing, and that doesn't fit either of the independent claims. [00:20:36] Speaker 02: But we're told that oxidation occurs spontaneously even at the beginning of the process. [00:20:41] Speaker 02: So you're not saying that it has to be totally rigorous. [00:20:47] Speaker 05: No, that's a separate step. [00:20:48] Speaker 05: And I think we need to be clear here about what the culturing step is about and what we're culturing for. [00:20:56] Speaker 05: And again, we don't want to forget what the initial and the threshold limitation is. [00:21:01] Speaker 05: We are culturing cells to make reduced [00:21:06] Speaker 05: coenzyme Q10 at a ratio of at least 71 percent. [00:21:10] Speaker 02: But we're told that that stuff is in the prior art so that what we really are concerned with is this continuous process. [00:21:19] Speaker 02: Is that correct? [00:21:21] Speaker 05: I would say that's only partly correct in the sense that the, yes a lot of this is in the prior art and I think there are novelty issues that aren't right here but the [00:21:36] Speaker 05: The requirement is that the cells be cultured to make 70 mole percent reduced. [00:21:44] Speaker 05: That is a ratio. [00:21:46] Speaker 05: And you achieve that during the culturing. [00:21:48] Speaker 05: And while you're culturing, while the cells are alive, they need oxygen. [00:21:52] Speaker 05: And so while you're culturing, you are providing oxygen. [00:21:55] Speaker 05: And the purpose of CoQ10 is as an electron transport molecule. [00:22:02] Speaker 05: So it undergoes a cycle of [00:22:04] Speaker 05: on a molecule-by-molecule basis. [00:22:06] Speaker 05: It's being cycled. [00:22:08] Speaker 05: It's being oxidized and reduced. [00:22:10] Speaker 05: But the claim limitation is a ratio of 70 mole percent. [00:22:16] Speaker 07: And I think that the oxidation... We're talking about the sequence issue. [00:22:22] Speaker 07: Yes. [00:22:23] Speaker 07: Why is it that the sequence can occur even if all of essentially all of the CO210 is an oxidizer? [00:22:33] Speaker 07: I mean, why is there a requirement that it be all or substantially all? [00:22:40] Speaker 05: Well, I think the intent was to preserve the sequencing. [00:22:43] Speaker 05: I think maybe what your honor is... That's my point. [00:22:45] Speaker 07: If you don't have substantially all, why can't the sequencing be preserved? [00:22:50] Speaker 07: I don't see the dependence. [00:22:54] Speaker 05: I think that the... And maybe I'll probably just rephrase what you're asking me. [00:23:02] Speaker 05: is that what I think was intended to be precluded by this claim instruction is multiple oxidation steps and oxidation, partial oxidation throughout the process. [00:23:16] Speaker 05: I think that was what was intended to be precluded. [00:23:19] Speaker 05: And if you're suggesting that one could meet the claim limitations by oxidizing, oh, say, half of it, and then no additional oxidation steps, [00:23:32] Speaker 05: then maybe that's what Your Honor has in mind. [00:23:37] Speaker 05: And I suppose that's possible. [00:23:40] Speaker 05: We know that this is specifically claimed as an industrial process. [00:23:45] Speaker 05: We know that there is disclosure of the use of oxidizing agents, which are intended to achieve a substantially complete oxidation. [00:23:56] Speaker 05: And for those reasons, I think that was [00:24:01] Speaker 05: You know, that was really the basis for requiring the substantially complete oxidation is that, you know, one of ordinary skill in the arts would not think that in an industrial process to make oxidized, you would deliberately or, you know, you would not oxidize at all. [00:24:23] Speaker 04: So you're suggesting that we should be that limitation in because that would be the best practices. [00:24:28] Speaker 04: I mean, what makes a difference if their patent claim results in an inefficient process and they don't oxidize all the reduced COQ10 they obtain? [00:24:38] Speaker 04: If they only oxidize 50% of it and use that, what makes a difference in terms of reading the claim language? [00:24:47] Speaker 05: Well, in terms of reading the claim language, [00:24:50] Speaker 05: Again, I think I've explained it as best as I can that the intent of that provision and the intent of reading that in was to preserve the sequencing. [00:24:58] Speaker 04: If the sequencing's preserved, and if what's precluded is some additional... I understand what you're saying, but I don't understand why, even if you preserve the sequencing, that last step has to oxidize all or nearly all. [00:25:11] Speaker 04: It just says oxidize. [00:25:12] Speaker 04: It could oxidize 25% of it. [00:25:14] Speaker 04: It'd be a dumb way to do business, probably, but it still does [00:25:19] Speaker 04: a scene like that would disrupt the sequencing. [00:25:22] Speaker 05: Again, I think I've given, Your Honor, the best answer I have, which is that it's claimed as an industrial process for making coenzyme Q10. [00:25:31] Speaker 05: And one of our in their skill would think that you're trying to do it all. [00:25:36] Speaker 05: And again, you have to, something's got to be in the claim construction to preserve that sequencing. [00:25:43] Speaker 04: But again, why is it all or not? [00:25:46] Speaker 04: that all or substantially all. [00:25:48] Speaker 04: Don't you still win if you get it the specific order and that that last step is an act of oxidation? [00:25:54] Speaker 04: You don't need the all or substantially all. [00:25:56] Speaker 05: You're correct that we win no matter what because at least the Shenzhou process has, again, the Shenzhou process has oxidation across its process that's undisputed. [00:26:12] Speaker 05: And so as long as the sequencing is preserved, [00:26:14] Speaker 05: There is no infringement. [00:26:17] Speaker 07: You're saying in order to preserve the sequencing, we have to affirm the district court's construction of all or substantially all. [00:26:26] Speaker 05: I don't know that that has to be done. [00:26:28] Speaker 05: I do think that the sequencing has to be preserved and that multiple oxidation steps ought to be precluded and that oxidation during extraction needs to be precluded because that's what the claim steps say. [00:26:41] Speaker 02: Is it conceded that there's no infringement [00:26:44] Speaker 02: on that construction? [00:26:46] Speaker 05: That's my understanding. [00:26:47] Speaker 05: They have not discussed at all the accused processes. [00:26:54] Speaker 02: Well, they haven't gotten there, but my question is, and I think we started out with the assumption that that would end the entire case or not? [00:27:04] Speaker 05: It's our view that yes, it would. [00:27:06] Speaker 05: If the sequencing is preserved and you cannot have multiple oxidation steps in a single process, [00:27:14] Speaker 05: then Shinjota's not infringed. [00:27:18] Speaker 05: And there's nothing in the record before the court to explain how the ex-KGC process infringed. [00:27:26] Speaker 02: Did you want to share time with your colleague or take the rest of it? [00:27:29] Speaker 02: Yes, we did. [00:27:30] Speaker 05: Yes, he has five minutes, I believe. [00:27:33] Speaker 05: That was the intent. [00:27:34] Speaker 02: Okay, proceed. [00:27:44] Speaker 01: I was going to address the third claim limitation in this case after my colleague had addressed the first two and the third limitation is the 70 mole percent limitation [00:28:01] Speaker 01: I heard Judge Hughes's point, and to that point, the reason that it does matter somewhat in this case, first of all, is that Conneka appealed that particular claim. [00:28:12] Speaker 04: But the district court didn't rely on that in its judgment. [00:28:14] Speaker 01: That's correct. [00:28:15] Speaker 04: The district court did not rely on that in its judgment, but if... Aren't you just asking us to render an advisory opinion on a claim construction? [00:28:22] Speaker 01: Well, it's in this court's discretion, of course, whether to affirm that, but it's... [00:28:27] Speaker 04: It's arguably... It doesn't matter what we say one way or another to the judgment on that claim construction, though. [00:28:32] Speaker 01: Well, so to take one hypothetical, if this court were to reverse the district court's constructions on the other two terms, then it would matter... It would be like an advisory opinion on that one when you go back. [00:28:45] Speaker 01: Well, I guess I'd call it an affirmance, not an advisory opinion, because the district court has already ruled on that, and that particular construction was appealed to this court. [00:28:54] Speaker 01: So I think I would use the word affirmance, but it's certainly within the discretion. [00:28:58] Speaker 07: But it wasn't part of the district court summary judgment, was it? [00:29:02] Speaker 01: It did not. [00:29:02] Speaker 01: The summary judgment ruling on non-infringement did not hinge on that. [00:29:05] Speaker 01: That's correct. [00:29:06] Speaker 07: So if we rule on that issue, we would be issuing a declaratory judgment or an advisory opinion of sorts. [00:29:14] Speaker 01: Well, again, I'm not sure. [00:29:17] Speaker 01: Your Honor can refer to it. [00:29:19] Speaker 04: Our ruling on that issue does not impact the judgment in this case whatsoever. [00:29:25] Speaker 04: Is that, I mean, I'm not trying to bully you into that, but isn't that the case? [00:29:30] Speaker 04: Don't you agree? [00:29:30] Speaker 01: Well, it would avoid the possibility of that term of the claim construction, again, being appealed if it went back on remand and then Kanika appealed back to this court. [00:29:41] Speaker 01: It would avoid that back and forth process. [00:29:43] Speaker 04: That didn't answer my question at all. [00:29:44] Speaker 04: I mean, the question was, our ruling on this construction doesn't affect the judgment in this case. [00:29:51] Speaker 04: It may affect it down the line, depending upon if certain things happen. [00:29:55] Speaker 01: That's right. [00:29:57] Speaker 04: Whether we agree with you or we agree with them, whatever claim construction we give here is not going to change the judgment. [00:30:03] Speaker 01: It would not change the judgment at this stage or on remand. [00:30:08] Speaker 01: That's correct. [00:30:11] Speaker 01: So I could address some of, I could follow up on my colleagues' points and the questions that Your Honors asked. [00:30:21] Speaker 04: Can you tell me about this ordering thing? [00:30:23] Speaker 04: We've looked at the claim language. [00:30:25] Speaker 04: The claim language itself doesn't seem particularly helpful. [00:30:29] Speaker 04: Either way, is there anything else? [00:30:31] Speaker 04: I mean, I know your friend pointed to some stuff in the specification. [00:30:35] Speaker 04: I looked at it quickly. [00:30:36] Speaker 04: Is there anything else that can give us some guidance here, either intrinsic evidence or extrinsic evidence of [00:30:42] Speaker 04: whether these ordering steps are required or not. [00:30:44] Speaker 01: Well, first of all, if you look at the claim language itself, for example, in claim 22. [00:30:48] Speaker 04: That's not what I asked you. [00:30:50] Speaker 04: I just told you the claim language is not helpful to me. [00:30:53] Speaker 04: So what else besides the claim language can you point me to, either in the specification or if there's any extrinsic evidence? [00:31:03] Speaker 04: We've been over the claim language very clearly. [00:31:07] Speaker 04: There are arguments on both sides of the claim language. [00:31:09] Speaker 04: If you don't have it, I know you aren't prepared. [00:31:11] Speaker 01: I just wanted to address the then point, the and then versus and point, but I'll pull up the... [00:31:34] Speaker 04: But it's fine. [00:31:35] Speaker 04: I apologize. [00:31:35] Speaker 04: I mean, I know you were prepared to argue the other point. [00:31:38] Speaker 04: So I just thought if you had an easy answer, that's fine. [00:31:42] Speaker 01: No, I mean, our argument primarily, we think the claim language is extremely clear. [00:31:47] Speaker 01: And there are a number of cases from this court. [00:31:50] Speaker 01: Mantek v. Hudson, 1998 case, E-Pass v. [00:31:53] Speaker 01: 3Com, 2007 case from this court indicated that, for example, E-Pass held, because of the language of most of the steps of its method claim, [00:32:02] Speaker 01: refer to the completed results of the prior step, EPAS must show that all of those steps were performed in order. [00:32:08] Speaker 01: Here you have numerous pieces of language to address the and versus and then point, the thus obtained, if you look at claim 22, the thus obtained term actually acts as a then term. [00:32:19] Speaker 01: So I don't see that and versus and then argument as valid. [00:32:27] Speaker 01: And there are multiple pieces of language like that. [00:32:32] Speaker 01: As far as this all or substantially all, which is part of the same construction, the reason it matters is because Kanika's counsel has argued that in the preamble, the two independent method claims say that the claims comprise a number of steps. [00:32:51] Speaker 01: Their argument, Kanika's argument, is that therefore you could insert other steps. [00:32:55] Speaker 01: If you construed any of the steps as not requiring all or substantially all of that process, [00:33:01] Speaker 01: then what you could do is insert additional steps. [00:33:03] Speaker 01: For example, if you have extracting and then oxidizing, and either one were treated as not processing all or substantially all of the CoQ10, then what you could do is, for example, before the extracting step, add another oxidizing step, and before that oxidizing step, add another extracting step, and you could add all these little steps where you do- Would you agree that oxidizing occurs throughout the entire process? [00:33:27] Speaker 01: Well, no, and that gets to the heart. [00:33:29] Speaker 07: You think, your argument is that it can only occur and only occurs in one of the steps. [00:33:35] Speaker 01: Well, all or substantially all leaves the possibility for some de minimis or some small amount of oxidation or extraction that's occurring in another process. [00:33:42] Speaker 01: That's the part of, that's the substantially all part. [00:33:45] Speaker 02: But the only, the only reason... Is that critical to your position? [00:33:48] Speaker 02: Because they do say throughout the specification that this reduced form just spontaneously oxidizes if there's any stray oxygen around. [00:33:57] Speaker 01: Well, so first I'll answer, it's important to our position that it be a significant amount of the step occurring. [00:34:05] Speaker 01: Whether that has to be substantially all, I'm not sure, but, you know, at least 50%, something like that. [00:34:09] Speaker 07: So there's no requirement that it be all or substantially all. [00:34:13] Speaker 01: It has to be. [00:34:14] Speaker 07: You're arguing it should be a significant amount. [00:34:19] Speaker 01: Yeah, and I think substantially all could be interpreted. [00:34:21] Speaker 01: I mean, there's a slight, maybe there's a very slight [00:34:24] Speaker 01: wording difference that would be tolerable. [00:34:26] Speaker 07: That was there on the district court to use that term. [00:34:30] Speaker 01: Yes, the district court used that term and maybe it could have set a significant, over 50 percent, a majority or something like that. [00:34:37] Speaker 01: Maybe it could have worded it that way, but I think all are substantially, all also make sense. [00:34:42] Speaker 01: Now to address the point about why does the patent discuss oxidation throughout the process, that has to, that goes back to how they were able, how Canica was able to get this patent in the first place. [00:34:51] Speaker 01: The way Canica, the entire point of this patent, [00:34:53] Speaker 01: is that the prior art, there's a ton of prior art where oxidized CoQ10 is obtained by just allowing oxidation to occur throughout the entire process. [00:35:03] Speaker 01: What Kanika did here is they tried to make an end run around that prior art by claiming first producing reduced CoQ10 and then in a separate step oxidizing it. [00:35:14] Speaker 01: That's how they were able to get around the prior art. [00:35:17] Speaker 01: Of course, from an industrial perspective, this is nonsensical because [00:35:21] Speaker 01: These are claims that are drafted solely to try to shoehorn infringement into them. [00:35:29] Speaker 01: Industrially, that makes no sense because you're protecting the CoQ10 from being oxidized only to later oxidize all or substantially all of it. [00:35:38] Speaker 01: This would be an inefficient and very strange industrial process. [00:35:41] Speaker 01: it doesn't make any sense. [00:35:42] Speaker 01: So that explains why the specification talks about one thing, which is allowing the whole thing to oxidize the whole way through, which is how the prior art does it. [00:35:49] Speaker 01: And then the claims had to be narrowed down into this stepwise order in order to get the claims allowed in the first place. [00:35:57] Speaker 01: And now they're trying to go back and shoehorn basically the prior art into their narrowed claims, which had to be narrowed in order to get them to begin with. [00:36:06] Speaker 02: Okay, I think we have [00:36:07] Speaker 02: We have that argument. [00:36:09] Speaker 02: Thank you, Mr. Nista. [00:36:11] Speaker 01: Thank you. [00:36:16] Speaker 02: Mr. Newell. [00:36:18] Speaker 03: Let me just address the last point that was made with all due respect to my colleague. [00:36:26] Speaker 03: The microorganisms set forth in the patent only produce reduced Q10. [00:36:30] Speaker 03: The discovery here was the fact that those microorganisms [00:36:33] Speaker 03: produced enough reduced Q10, so when you oxidize it, you got more oxidized Q10. [00:36:38] Speaker 03: That's what the whole patent is about. [00:36:40] Speaker 03: So saying it's nonsense to produce reduced Q10 first and then oxidize it is nonsense. [00:36:45] Speaker 03: That's the whole, that's what we're talking about here, and it says so in the patent. [00:36:49] Speaker 03: I mean, that's the purpose. [00:36:50] Speaker 03: So let's go back to Judge Hughes' concern on the sequence, all right? [00:36:55] Speaker 03: Let's keep in mind what we're trying to do here. [00:36:58] Speaker 03: We're trying to make oxidized Q10. [00:37:01] Speaker 03: That's the purpose of this. [00:37:02] Speaker 03: So oxidation occurring throughout the process is what we're looking to do. [00:37:07] Speaker 03: The Interactive Gift versus CompuServe case says, look at the claims first. [00:37:12] Speaker 03: If it mandates that the steps are in an order, so be it. [00:37:16] Speaker 03: If the steps do not, if the claims language does not mean that mandate that, look at the specification. [00:37:22] Speaker 03: That's what I did, right? [00:37:24] Speaker 03: I think the court would agree that the claim language doesn't mandate that those steps be in a particular order. [00:37:30] Speaker 03: And if you go to the specification and you see that reduced Q10 does not have to be protected from an oxidation reaction, and we're trying to oxidate it, that's the purpose of the whole process, it certainly, to me, indicates that oxidation is occurring throughout the process. [00:37:47] Speaker 03: That there is no separate oxidizing step, either in the disruption or extraction. [00:37:52] Speaker 03: And in fact, it says in the patent that disruption and extraction can occur at the same time. [00:37:58] Speaker 03: So how can there be a fixed order of the steps? [00:38:00] Speaker 03: And I'm backing up and looking at the industrial process is what we're trying to, that's what the patent was trying to cover, right? [00:38:09] Speaker 03: So in addition, of course, there can't be, I mean, what the district court is saying with that construction is the only time oxidation can occur is between disruption and extraction. [00:38:24] Speaker 03: And that doesn't count the fact that we are looking to get 70 more percent in the culturing [00:38:30] Speaker 03: you are oxidizing 30% of it right there. [00:38:33] Speaker 03: So that's another reason why the sequence of the steps is not clear. [00:38:38] Speaker 03: In addition, my colleague mentioned the fact that somehow oxidation in the culturing step doesn't count. [00:38:47] Speaker 03: I refer to the court, and I won't read this, but if you take a look at column one, lines 50 through 52, it clearly says that [00:38:57] Speaker 03: The microbial cells, which are the live cells, are being oxidized or inculcated. [00:39:03] Speaker 03: That's all I have, Your Honor. [00:39:06] Speaker 03: We respectfully request that this course be remanded for a new claim constructed at the District Court. [00:39:11] Speaker 02: Thank you. [00:39:15] Speaker 02: Thank you. [00:39:15] Speaker 02: Thank you all. [00:39:16] Speaker 02: The case is taken under submission.