[00:00:50] Speaker 02:
Our third case is Ness Oil.

[00:00:54] Speaker 02:
Council, ready to proceed?

[00:00:55] Speaker 03:
Yes, Your Honor.

[00:00:58] Speaker 02:
Mike Flibert?

[00:00:58] Speaker 02:
You're reserving three minutes.

[00:01:00] Speaker 03:
Yes, Your Honor.

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

[00:01:01] Speaker 03:
Mike Flibert for the appellant, Essay Oil.

[00:01:04] Speaker 03:
The Board in this case committed legal error by failing to analyze Claim 22 as a whole, including the requirement for a biological feedstock having more than five weight percent free fatty acids.

[00:01:16] Speaker 03:
The board's analysis of HCO temperature never addressed the same requirement for feedstocks having more than 5 weight percent free fatty acids.

[00:01:25] Speaker 03:
We point the court to pages 13 through 16 of the analysis of the opinion, which is at A39 through 42.

[00:01:33] Speaker 03:
But the issue wasn't whether it would have been obvious to select

[00:01:36] Speaker 03:
the H2O temperature in the range that's claimed in the abstract.

[00:01:40] Speaker 03:
But the weather would have been obvious to do so in the context of this overall process with a biological feed having more than 5% free fatty acids.

[00:01:51] Speaker 03:
But the board never addressed the correct issue.

[00:01:54] Speaker 03:
And so we submit this is harmful error because the evidence showed that higher... You have the burden of establishing that it's non-obvious.

[00:02:02] Speaker 02:
That's correct, Your Honor.

[00:02:03] Speaker 02:
Where did you develop your argument below that Claim 22 was non-obvious as a whole?

[00:02:11] Speaker 03:
Well, we argued that in the briefs.

[00:02:13] Speaker 03:
We also submitted expert testimony from Dr. Klein, who is a leading expert in the field.

[00:02:18] Speaker 03:
He's an academic at the University of Delaware.

[00:02:20] Speaker 03:
And so we had two expert declarations.

[00:02:22] Speaker 03:
We also have the prior arc, which we submitted, including the Craig reference, the one-year

[00:02:27] Speaker 03:
Craig was particularly important on this issue because Craig specifically teaches that HCO temperature is feedstock dependent.

[00:02:35] Speaker 02:
Give me a record site where, because the PTAB says NASA did not address why the claim limitations

[00:02:46] Speaker 02:
in the original claims, either in isolation or as combined and substituted claim 21 would render the claim non-obvious.

[00:02:55] Speaker 03:
Give me a second.

[00:02:56] Speaker 03:
I think what they're talking about there are the other dependent features that were added to the claim.

[00:03:00] Speaker 03:
When they talk about that, they're not talking about the issue we're raising here.

[00:03:07] Speaker 03:
The issue of the claim as a whole, I mean we argued in the reply brief and the motion to amend it, A3357, it was in Dr. Klein's declaration, both of his declarations, A2172 and A2210 were some of the key places.

[00:03:23] Speaker 03:
But yeah, you're correct that the board, they did note that we hadn't made sort of separate arguments for these dependent features that were also folded in.

[00:03:31] Speaker 03:
There were a number of amendments that were made.

[00:03:34] Speaker 03:
But we're focusing here on the temperature limitation, which was, we thought, a key feature.

[00:03:39] Speaker 03:
But you are correct.

[00:03:40] Speaker 03:
As to the other features, the board said we hadn't made essentially separate arguments for those.

[00:03:46] Speaker 03:
This was harmful error, we believe, because Craig teaches that, first of all, that HGO temperature is feedstock dependent.

[00:03:54] Speaker 03:
Secondly, for tall oil fatty acid, which is a feedstock of the type claimed, which has a high free fatty acid content, a higher temperature was required.

[00:04:05] Speaker 03:
the art was teaching those two critical things.

[00:04:09] Speaker 03:
And RIG never disputed this, that there was a dependency of the type of feedstock because these are very complicated mixtures of triglycerides having different chain lengths, different amounts of free fatty acids and the like.

[00:04:22] Speaker 03:
And so because you have this very broad range of starting materials, you have a very broad range of temperatures.

[00:04:29] Speaker 03:
The art appreciated that, and Craig specifically taught that for these types of feats, as claimed, having free fatty acids, one needs to use a higher temperature.

[00:04:40] Speaker 03:
For example, in that Craig reference, the optimum temperature for colloid oil fatty acid is 390.

[00:04:46] Speaker 03:
Craig specifically says that was somewhat higher than processing of other materials.

[00:04:52] Speaker 03:
Also the minor reference, which the board did not address.

[00:04:56] Speaker 04:
Am I remembering right that the tall oil fatty acid has very, very much more than 5% weight fatty acid?

[00:05:06] Speaker 04:
That's correct.

[00:05:07] Speaker 04:
So even though it had a temperature above the range claims,

[00:05:13] Speaker 04:
here in the reference, there's a fair amount to go down for fatty acids or for feedstocks that are say at 6%.

[00:05:27] Speaker 03:
Yes, that's an excellent question and the answer to that is look at the monitor.

[00:05:31] Speaker 03:
Monier, which the board never addressed, has a variety of feedstocks having free fatty acids at much lower levels, and yet still has higher temperatures that are proposed.

[00:05:43] Speaker 03:
So you are absolutely correct that Craig is a very high content of free fatty acids, but the Monier reference, which was six years later, still has very high free fatty acid content, I mean still has very high temperatures, but at lower

[00:05:58] Speaker 03:
I believe we have a table in our brief that has the different amounts of free fatty acids formed on the air.

[00:06:07] Speaker 03:
But again, REG never disputed this beef stock dependency issue.

[00:06:12] Speaker 03:
They put in no contrary evidence on this.

[00:06:14] Speaker 03:
And that's why we submit this was a harmful error.

[00:06:17] Speaker 03:
We cited the Wilson and Villa Chevrolet air cases, the CCPA decisions, where the CCPA had analogous situations where the board had essentially disregarded a particular claim limitation in doing the obviousness analysis.

[00:06:31] Speaker 03:
In both those cases, the CCPA reversed because this derives directly from Graham.

[00:06:37] Speaker 03:
This is the basic principle from Graham.

[00:06:39] Speaker 03:
One has to compare the claim as a whole with all its limitations to the prior art.

[00:06:44] Speaker 03:
In those two cases, the board didn't do that.

[00:06:46] Speaker 03:
It disregarded the limitation and the board was reversed.

[00:06:51] Speaker 03:
Again, here the board never addressed feedstock dependency of HTO temperature and disregarded the limitation regarding the specific type of feedstock when it considered the HTO temperature issue.

[00:07:05] Speaker 03:
And we submit that that was reversible legal error as in Wilson and as in de la Chevalier.

[00:07:11] Speaker 03:
Now, we also know that REG presented no substantive response to those two CCPA cases that we cited, and so they don't dispute the legal principle, which of course thrives directly from Graham, that one has to consider all the limitations when comparing the prior art to the claim of invention.

[00:07:29] Speaker 03:
So we submit that this is the first error.

[00:07:32] Speaker 03:
This failure to follow Gram, failure to consider all of the claim limitations when considering that HGO temperature issue, and in particular the fact that the prior art would have led to higher temperatures if one had considered that type of feedstock was being processed.

[00:07:51] Speaker 03:
I mean, essentially the board essentially assumed that all the feedstocks that were available could be processed at all the temperatures.

[00:07:57] Speaker 03:
And that was contrary to the accepted understanding of the art.

[00:08:01] Speaker 03:
So I'd also like to address the teaching away issue if I could.

[00:08:05] Speaker 03:
Now we submit there can be no prima facie case here because the board did not conduct a proper gram analysis.

[00:08:12] Speaker 03:
So we don't think court actually has to necessarily get to the teaching away issue.

[00:08:16] Speaker 03:
I mean, there was no proper gram analysis.

[00:08:18] Speaker 03:
There can be no prima facie case.

[00:08:20] Speaker 03:
But even if there was a prima facie case, we submit that we rebutted that with evidence of teaching away.

[00:08:29] Speaker 03:
The key here was, again, the Craig reference, which RG's expert described as the gold standard in the art.

[00:08:35] Speaker 03:
The Craig reference has a very clear disclosure of an example with tall oil fatty acid, which is a feedstock of the type claimed, which has, again, as we said, high free fatty acid content.

[00:08:47] Speaker 03:
If you look at Columns 9 through 10 of Craig, which is an A2861, you'll see that Craig reported that at temperatures of 350 degrees and lower, the product collection system was plugged with a solid margarine-like material.

[00:09:03] Speaker 03:
And we submitted expert testimony from Dr. Klein, which was not rebutted, indicating that one important skill would have interpreted that disclosure to mean that HDO of this type of feedstock would not work at temperatures below 350.

[00:09:20] Speaker 04:
Does Craig specifically connect the problem of clogging to the high molecular weight hydrocarbons as opposed to something else?

[00:09:29] Speaker 04:
And I'm not sure I understand or remember the details well enough.

[00:09:33] Speaker 04:
Somebody refers to heavies, which might not be exactly the same thing.

[00:09:40] Speaker 04:
To the extent you understand what I just said.

[00:09:42] Speaker 03:
That's an excellent question.

[00:09:43] Speaker 03:
He does not.

[00:09:44] Speaker 03:
Craig does not.

[00:09:46] Speaker 03:
The problem is clearly tied to temperature.

[00:09:48] Speaker 03:
Craig recognized the problem was temperature dependent, but there was never any understanding of why this was happening.

[00:09:54] Speaker 03:
And this is exactly what's missing from the board's analysis and missing from Dr. Shabrou's testimony because although, you know, Dr. Shabrou said one could change the reactor configuration, change the catalyst, one could change new solution, all these chemical engineering principles he mentioned, and you could have reduced high molecular weight hydrocarbons, he never tied that to the reactor plugging.

[00:10:16] Speaker 03:
He provided no opinion that reducing high molecular weight hydrocarbons would in fact

[00:10:21] Speaker 03:
solved the plugging problem.

[00:10:23] Speaker 03:
And the board cites no evidence, there is no evidence in the record explaining or even theorizing that that would have solved the operability of what Craig teaches.

[00:10:34] Speaker 03:
So it isn't known why the plugging occurred, but Craig teaches the temperature dependence.

[00:10:39] Speaker 04:
Is that way of looking at it perhaps relevantly burden-flipping?

[00:10:47] Speaker 04:
If Craig doesn't quite teach away with respect to the hydrocarbons, then there's not really a teaching of that sort to overcome, to explain.

[00:11:00] Speaker 03:
Well, Craig had experimental data.

[00:11:02] Speaker 03:
The reason that RIG's experts set up the gold standard is a detailed series of experiments intended to determine what the optimum temperatures are for these varying feedstocks.

[00:11:13] Speaker 03:
And Craig clearly reports that temperatures below 350 did not work, particularly for these types of feedstocks.

[00:11:19] Speaker 03:
That's what one of Ornishill would take from this reference.

[00:11:22] Speaker 03:
There is inoperability at temperatures below 350.

[00:11:26] Speaker 03:
And again, inoperability is a touchstone of teaching away.

[00:11:29] Speaker 03:
Now, the board, in its opinion, refers to essentially three things to try to overcome this problem.

[00:11:34] Speaker 03:
They credit Dr. Shiguru's testimony.

[00:11:37] Speaker 03:
We accept that they credited his testimony.

[00:11:39] Speaker 03:
But what did he say?

[00:11:40] Speaker 03:
What he said was, first, that Jakula's different reactor configurations and catalysts could lead to different optimal temperatures.

[00:11:49] Speaker 03:
And secondly, he said that reduced temperature and dilution would lead to lower levels of high molecular weight hydrocarbons.

[00:11:55] Speaker 03:
And then third, he said that increased catalyst activity could lead to lower H2O temperatures.

[00:12:00] Speaker 03:
He never even postulated or theorized any link between those effects and having no plugging.

[00:12:08] Speaker 03:
So there is no evidence saying, for example, that if one reduces the high molecular weight hydrocarbon content, one can use a lower temperature.

[00:12:15] Speaker 01:
Why was he offering those observations?

[00:12:18] Speaker 01:
Why was he offering those observations unless they were connected to... Well, he was offering general chemical engineering principles, but Dr. Klein... Was there a lecture about what was going on?

[00:12:31] Speaker 03:
His was just sort of a general lecture?

[00:12:34] Speaker 03:
He was general.

[00:12:34] Speaker 03:
It was very general.

[00:12:35] Speaker 03:
And in fact, the board's opinion is very general.

[00:12:37] Speaker 03:
It's stating general chemical engineering principles that we don't dispute.

[00:12:41] Speaker 03:
But we had a clear teaching away in a reference.

[00:12:44] Speaker 03:
And we put in expert testimony from a leading expert saying that one ordinary skill would have interpreted that to mean that it did not work.

[00:12:51] Speaker 04:
What about, I think this was Dr. Shigru, or maybe it was the board that said, Craig used a small reactor, commercial scale reactor, everything drops by 30 degrees, and if you drop by 30 degrees, you're down into at least the upper part of the claimed range.

[00:13:11] Speaker 03:
Well, if you look, if you're talking about that table 8, even if you subtract 30 degrees from the tall oil fatty acid entry, which is the only one that falls within the claim, it's still above our claimed range.

[00:13:22] Speaker 04:
But that's the testimony one subtracted from the 350.

[00:13:26] Speaker 03:
Well, I don't think the reference would suggest to do that.

[00:13:29] Speaker 03:
Not for these claimed feedstocks.

[00:13:30] Speaker 03:
Again, they're ignoring the feedstocks that are being claimed.

[00:13:33] Speaker 03:
We have to look, again, the issue wasn't whether it would be obvious to do it for some other feedstock, like a purified vegetable oil.

[00:13:38] Speaker 03:
It would have been obvious for these feedstocks, such as tallow-oil high-action.

[00:13:42] Speaker 04:
And also... But that's where maybe it makes a difference, that tall oil field, fatty acid is, I forget what it was, 70, 90%?

[00:13:53] Speaker 04:
It's very high, it's even higher than that.

[00:13:55] Speaker 04:
Very high.

[00:13:56] Speaker 03:
That's correct.

[00:13:56] Speaker 03:
And so, in terms of differences between Craig and Chukula, yes, there may have been some differences, but they never tied any of those differences to a resolution of the plugging problem that Dr. Klein identified and said one of ordinary skills would have been lost.

[00:14:13] Speaker 03:
Thank you.

[00:14:26] Speaker 00:
Jean Gales on behalf of RHE.

[00:14:31] Speaker 00:
We disagree with counsel's statements that the board committed legal error.

[00:14:36] Speaker 00:
They followed appropriate law.

[00:14:39] Speaker 00:
And in fact, the issue here, as Your Honor's correctly stated, necessity bears the burden of proof on patentability of claim 22.

[00:14:48] Speaker 00:
And they did not meet that burden here.

[00:14:53] Speaker 00:
The judge is correctly cited to the portion of the final written decision where the board starts out by saying, Nestea never made an argument that Claim 22 as a whole is not obvious over the art.

[00:15:06] Speaker 00:
That's on pages 11 and 12 of that final decision, or A's 37 and 38.

[00:15:15] Speaker 00:
Nestea itself, both in its motion to amend and its reply brief on its motion to amend, and even at oral argument, focused on the two limitations, the temperature limitation and the high molecular weight hydrocarbon limitation.

[00:15:29] Speaker 00:
And that's, in turn, what the board focused on.

[00:15:32] Speaker 00:
Nestea did not make an argument that the claim as a whole was not obvious.

[00:15:37] Speaker 02:
They say they didn't in their reply briefs.

[00:15:39] Speaker 00:
Council cited to page A3357 in their reply brief, and we disagree.

[00:15:44] Speaker 00:
that this supports an argument that the claim as a whole is not obvious.

[00:15:48] Speaker 00:
If you look at that page, again, it's talking about the very two limitations that the board focused on, namely the temperature limitation and the high molecular weight limitation.

[00:15:59] Speaker 00:
And the board, in considering both the references themselves, the declarations submitted by both experts, and the deposition testimony, found that these limitations did not render claim 22 not obvious.

[00:16:15] Speaker 00:
I want to talk about the feedstock dependency argument that counsel raised.

[00:16:19] Speaker 00:
First, I think it's undisputed in the record that most of the limitations in claim 22 are disclosed in the Jocula reference, the A3245 reference.

[00:16:31] Speaker 00:
The narrow purity limitations, which were in original claim 3, that was canceled.

[00:16:36] Speaker 00:
The 5 weight percent pre-fatty acid, which was in original claim 4, that was canceled.

[00:16:41] Speaker 00:
The diluting agent in original claim 7, that was canceled.

[00:16:45] Speaker 00:
and even the dilution ratio of original claim signs.

[00:16:50] Speaker 00:
But what Jocula also discloses, which is undisputed, is multiple feedstocks.

[00:16:55] Speaker 00:
Jocula discloses TOFA, or tall-ol free-asset.

[00:16:59] Speaker 00:
It discloses coconut oil and tallow.

[00:17:04] Speaker 00:
And the record sites for that are also discussed in Dr. Chigru's declaration A2715 to 2716.

[00:17:14] Speaker 00:
And in the reference, A3245, A3249.

[00:17:20] Speaker 00:
So not only does it entirely encompass the claim range of 280 to 330, that was the new limitation, where Jocula discloses 200 to 500 degrees Celsius and a preferred range of 300 to 400 for the feedstock that has the other properties at issue.

[00:17:42] Speaker 00:
Jocula discloses a process very similar to what is claimed in the 094 patent.

[00:17:47] Speaker 04:
All of the various... For feedstock that has greater than 5% fatty acids?

[00:17:54] Speaker 00:
Yes, Your Honor.

[00:17:55] Speaker 00:
The feedstock limitation of claim 22 was just copied from original claim 4, which was previously found to be anticipated by Jocula.

[00:18:05] Speaker 00:
So there's no dispute that Jocula discloses

[00:18:08] Speaker 00:
processing of biological feedstocks with 5 weight percent pre-fatty acids.

[00:18:14] Speaker 00:
But Jocula also gives a range of feedstocks.

[00:18:18] Speaker 00:
It doesn't just mention TOFA, one of them.

[00:18:20] Speaker 00:
It gives feedstocks over the breadth of that

[00:18:24] Speaker 00:
5 weight per cent on up to 100 per cent.

[00:18:27] Speaker 04:
Topa is 100 per cent.

[00:18:30] Speaker 04:
With a wide temperature range, right?

[00:18:32] Speaker 00:
Jocula discloses a broad temperature range of 2 to 500.

[00:18:37] Speaker 04:
And if one recognized that the temperature might be a function of the particulars of the feedstock, there's no particular reason to infer that the lower end of the temperature range disclosed

[00:18:51] Speaker 04:
is being taught by Jocula for the higher range of the feedstock in terms of fatty acids?

[00:19:00] Speaker 00:
What Jocula gives you, I think, is the roadmap.

[00:19:03] Speaker 00:
And Jocula talks about temperature being a result-effective variable.

[00:19:10] Speaker 00:
Particularly when Jocula talks about you can lower temperatures based on the feedstock you use.

[00:19:15] Speaker 00:
There's actually a site in Jocula that says,

[00:19:18] Speaker 00:
you can use a variety of feedstocks and still have a desirable outcome.

[00:19:24] Speaker 00:
And it talks about a pre-hydrogenation step, because there was a recognition already in the art that, depending on the feedstock you use, it could lead to the formation of high molecular weight hydrocarbons, or HEBIs.

[00:19:37] Speaker 00:
So Jockula explained, given the recognition in the art that use of certain feedstocks could lead to the formation of HEBIs, you can do an optional

[00:19:48] Speaker 00:
pre-hydrogenation step and operates the process at milder conditions, such as lower temperatures.

[00:19:56] Speaker 00:
So what we submit is that a person of skill in the arts having Jocula in hand disclosing a wide range of feedstocks that could be used over a temperature range that encompasses the claim range, including when they say it's preferably 300 to 400,

[00:20:15] Speaker 00:
and where they say, depending upon what feedstock you use and the propensity of heavies being formed, you can lower the temperatures, a person of skill in the art would have known what to do.

[00:20:27] Speaker 00:
We cite cases in our briefs like on reapplied materials, where you've got a result-effective variable like temperature, where a person of skill in the art is presumed to know how to optimize to get at the claimed features.

[00:20:42] Speaker 00:
But I also want to talk about what the board focused on was the span of time.

[00:20:47] Speaker 00:
The Craig reference that they cite to was filed in 1988.

[00:20:50] Speaker 00:
It issued in 1991.

[00:20:54] Speaker 00:
The Jocular reference was filed in 2003 and was published in 2004.

[00:20:59] Speaker 00:
The Monnier reference that they refer to was filed in 1995 and issued in 1998.

[00:21:05] Speaker 00:
Over that span of time, which the board recognizes, lots of things happen.

[00:21:12] Speaker 00:
Jocula cites Desmonnier with cites to Craig.

[00:21:15] Speaker 00:
A person of skill in the art would have all of this prior art in front of him or her and would be able to put this together.

[00:21:22] Speaker 00:
And when the board talks about why there's no teaching away by Craig or why a person of skill would have been able to optimize, the board specifically says, we think Dr. Chagrut's testimony more persuasively considers the expressed teachings of Craig, of Jocula,

[00:21:41] Speaker 00:
the timing of the disclosures, the differences in the reactor conditions, configuration and operating conditions, and the knowledge, skill, and reasoning of a person of skill in the art.

[00:21:52] Speaker 00:
And I want to talk a little bit about those operating conditions.

[00:21:56] Speaker 00:
Craig and Monnier were processes that did not use dilution, which is something that Jocula recognized.

[00:22:03] Speaker 00:
Dilution is going to help you operate at a lower temperature.

[00:22:07] Speaker 00:
Dilution is also going to impact the formation of high molecular weight hydrocarbons or HEBIs.

[00:22:14] Speaker 00:
So again, giving the person of skill in the art information about how to manipulate temperature in order to achieve the desired result.

[00:22:23] Speaker 00:
Also, I'm sorry, your honor.

[00:22:25] Speaker 01:
Mr. Flibert says that he recognizes what Dr. Shavir said, but on the teaching away issue, Mr. Flibert argues that the board made a mistake here in relying on Dr. Shavir because Shavir never connected up the dots, if you will.

[00:22:41] Speaker 01:
that Shigru is talking about a number of concepts in chemical engineering, but he isn't explaining how they work to explain the plumbing problem.

[00:22:51] Speaker 01:
What's your response to Mr. Simber's argument?

[00:22:55] Speaker 00:
I disagree that Dr. Shigru doesn't connect the dots.

[00:23:00] Speaker 00:
He explains extensively the teachings of Jocula in his first and second declarations, which are in the record.

[00:23:07] Speaker 00:
where he mentions things like use of dilution to control temperature rise and formation of heavies, for example, at A4035 to 46.

[00:23:17] Speaker 01:
Why is he mentioning that at 4035, 36?

[00:23:22] Speaker 01:
What problem is he addressing?

[00:23:26] Speaker 00:
He's addressing the concept that it was well appreciated in the art that dilution could control both the temperature at which you operated the HDO process

[00:23:36] Speaker 00:
as well as limit the formation of high molecular weight hydrocarbons.

[00:23:40] Speaker 00:
So where you have a claim 22 that has a temperature range that they're saying distinguishes it from the art, and where it has a claim limitation of less than 1% weight, high molecular weight hydrocarbons, dilution was something that was recognized in the art to affect both of those things.

[00:23:59] Speaker 00:
And Dr. Shigru talks about that.

[00:24:01] Speaker 00:
And that's important in the context of Craig, because Craig didn't use dilution.

[00:24:06] Speaker 00:
So in 1991 or 1988, when he filed his work, there was no dilution.

[00:24:12] Speaker 01:
As Mr. Flipper... What you're saying is the clogging problem mentioned in Craig is non-existent, doesn't exist anymore.

[00:24:23] Speaker 01:
Jocula makes no reference to... Craig was teaching away from a problem that the industry solved after Craig.

[00:24:31] Speaker 00:
I don't know that it was a problem.

[00:24:33] Speaker 01:
I think Mr. Flippert acknowledged... I assume for purposes of argument that clogging was a problem you'd like to avoid.

[00:24:39] Speaker 00:
If it was a problem that people wanted to avoid, it had been solved some 15 years later by the time we got to Jocula.

[00:24:46] Speaker 01:
Because Jocula and its disclosure... It's an interesting situation.

[00:24:50] Speaker 01:
Is it possible that you can have a reference that actually does teach a way?

[00:24:55] Speaker 01:
as of the time that that reference existed, but by the time you're considering the patent in suit, the problem has gone away.

[00:25:04] Speaker 01:
That in theory could happen, but I don't even think... Isn't that in essence what you're saying about the teach-away issue here?

[00:25:11] Speaker 00:
No.

[00:25:11] Speaker 00:
I'm saying two things, Your Honor.

[00:25:13] Speaker 00:
I think I'm saying Craig does not teach-away because

[00:25:16] Speaker 00:
Craig was using a different process.

[00:25:19] Speaker 00:
Craig did not use dilution.

[00:25:21] Speaker 00:
Craig used a feedstock at the upper end of the range.

[00:25:24] Speaker 00:
Again, Nestea is trying to get a claim that covers

[00:25:28] Speaker 00:
from 5% weight to 100%?

[00:25:30] Speaker 01:
If Craig had a problem, if clogging was a problem for Craig, it was because of what he was doing.

[00:25:37] Speaker 01:
But what you're talking about is you don't have the problem.

[00:25:39] Speaker 00:
Right.

[00:25:40] Speaker 00:
As Mr. Flippert acknowledged, the plugging was not tied to the formation of heavy.

[00:25:45] Speaker 00:
There's certainly nothing in Craig that ties those two concepts together.

[00:25:49] Speaker 00:
But even as to his mention of Craig,

[00:25:52] Speaker 00:
operating at 350 degrees, Craig used a different type reactor than Jocula used.

[00:25:57] Speaker 00:
He used a bench top reactor.

[00:26:00] Speaker 00:
Jocula is processing these feedstocks using a commercial reactor.

[00:26:05] Speaker 00:
And even Craig says in a footnote, if you use a commercial reactor, you can operate at 20 or 30 degrees less.

[00:26:13] Speaker 00:
I believe it was 30.

[00:26:14] Speaker 00:
So you go from 350 to 320.

[00:26:17] Speaker 00:
And again, Craig doesn't use dilution.

[00:26:21] Speaker 00:
If we talk about Monnier, again, much earlier in time than Jocula, Monnier's process did not use solution.

[00:26:28] Speaker 00:
And like Craig, Monnier also used a bench top reactor, not a commercial reactor.

[00:26:35] Speaker 00:
These are all things that a person of skill would recognize as impacting the process.

[00:26:41] Speaker 00:
And they would certainly look to Jocula more recent in time as to what to do.

[00:26:47] Speaker 00:
I also want to note, which the board acknowledged, was the difference in catalyst.

[00:26:53] Speaker 00:
Catalyst activity, the higher catalyst activity you have, the lower temperature you can operate.

[00:27:00] Speaker 00:
And if you look at Craig, Craig has data on other feedstocks that he processed.

[00:27:05] Speaker 00:
So non-five weight percent high feedstocks, pure oils that Craig talked about.

[00:27:12] Speaker 00:
And with those pure oils, Craig talks about

[00:27:15] Speaker 00:
And I can provide a site for that where when he did an experiment on canola oil, some of the experiments produced a high amount of heavies, some produced a low amount of heavies.

[00:27:32] Speaker 00:
And then when he did experiments on other pure oils, again, he observed heavies, but there was a difference in catalysts.

[00:27:39] Speaker 00:
In certain experiments, he used the nickel moly catalyst, known to give you higher catalyst activity, where you can operate at a lower temperature.

[00:27:49] Speaker 00:
Whereas when he used a cobalt moly catalyst, that was known in the art to provide lower catalyst activity.

[00:27:58] Speaker 00:
And something that Chagrou talked about in his declaration, for example, A2696 to A2697,

[00:28:07] Speaker 00:
and also 82687, in which I think the board, when looking at all of this together, acknowledged is what catalyst you use impacts the process.

[00:28:20] Speaker 00:
A nickel moly catalyst is better than a cobalt moly catalyst.

[00:28:23] Speaker 00:
And over the span of 15 or so years, catalysts improved.

[00:28:29] Speaker 00:
So again, when the board says, we're not just looking at

[00:28:33] Speaker 00:
the references, Craig, Monnier, the other references in the record.

[00:28:38] Speaker 00:
We're looking at what Chigru has to say about them, and we're looking at the passage of time.

[00:28:43] Speaker 00:
And again, applying the law in this area, which is where you've got a result effective variable like temperature, where you've got a reference like Jocula that puts all the pieces together.

[00:28:54] Speaker 00:
So even if they had argued, which we say they did not, that the claim as a whole is not obvious, Jocula puts it all together.

[00:29:02] Speaker 00:
And any tiny bit that's missing, a person of skill in the art would have known what to do, because the roadmap is there.

[00:29:11] Speaker 00:
In my minute?

[00:29:13] Speaker 02:
15 seconds.

[00:29:15] Speaker 02:
15 seconds.

[00:29:19] Speaker 00:
Unless Your Honor has any questions, I think that covers my argument.

[00:29:23] Speaker 00:
Thank you.

[00:29:24] Speaker 00:
Thank you, Your Honor.

[00:29:33] Speaker 03:
Thank you, Your Honor.

[00:29:34] Speaker 03:
First, I don't think we've heard really any significant dispute that the Board did not consider all the claim limitations, including the 5% free fatty acid limitation, when it assessed the issue of HCO temperature.

[00:29:46] Speaker 03:
And you heard no contrary evidence cited in terms of this issue of feedstock dependency.

[00:29:51] Speaker 03:
So we think the first point is essentially undisputed.

[00:29:55] Speaker 03:
Also, they did not even attempt to distinguish the Wilson case or de la Chevrolet, which we cited in our brief, which we think are controlling, on the question of what's required under Graham when considering the claim that mentioned versus the prior art.

[00:30:10] Speaker 03:
I think that point is established.

[00:30:14] Speaker 03:
On the Jakula reference, the board said that it was crediting or it said in particular in light of Jakula's successful results.

[00:30:22] Speaker 03:
The only results in Jakula on HDO are in the single example, which does not disclose the HDO temperature.

[00:30:32] Speaker 03:
What could one of skill take from that?

[00:30:34] Speaker 03:
It doesn't disclose the temperature.

[00:30:36] Speaker 03:
Now, jacula does have a preferred range of 300 to 400, right?

[00:30:42] Speaker 03:
That is entirely consistent with Craig.

[00:30:44] Speaker 03:
Craig taught that for tall oil fatty acid, the optimal temperature is 390.

[00:30:49] Speaker 03:
That's within that preferred range of jacula.

[00:30:53] Speaker 03:
There is no evidence to suggest

[00:30:56] Speaker 03:
that Jakula did anything other than follow Craig and use 390.

[00:31:01] Speaker 03:
There's no reason to believe that Jakula used a lower temperature.

[00:31:05] Speaker 03:
So when the board said it was relying on part of Jakula's successful results, first of all, that doesn't really make sense because there's no temperature disclosed in the results.

[00:31:15] Speaker 03:
But secondly,

[00:31:17] Speaker 03:
The results were with tall oil fatty acid, in that example, and Craig taught to use 390, which is within the preferred range of teculla.

[00:31:26] Speaker 03:
So we don't think it's possible to draw anything from that combination, logically.

[00:31:32] Speaker 03:
Thank you, Counsel.

[00:31:33] Speaker 03:
Thank you, Your Honor.

[00:31:36] Speaker 02:
That concludes the oral arguments for today.

[00:31:39] Speaker 02:
Let me just say, this Court expects a very high level of

[00:31:46] Speaker 02:
skill on the part of appellate advocates.

[00:31:51] Speaker 02:
And both counsels, I think, met that level and I was very pleased with it.

[00:31:57] Speaker ?:
Thank you.

[00:31:58] Speaker 03:
Thank you, Your Honor.