[00:00:00] Speaker 03:
he's some of the same lawyers at two zero one five dash one two eight one waters versus actually i think you've got a switch i'm okay no don't switch that that'll confuse me worse i'm okay with you state saying where you are and i'm okay with that yeah miss ferman

[00:00:40] Speaker 04:
So good morning, Your Honors.

[00:00:41] Speaker 04:
My name is Dr. Deborah Vernon, and I'm of McCarter and English, and I represent Waters Technology Corporation, the patent owner appellant in this case.

[00:00:51] Speaker 04:
So the primary issue can be boiled down to is constant compressibility compensation?

[00:00:57] Speaker 04:
I'm going to use the term CCC for short.

[00:00:59] Speaker 00:
Could you please not use that term for short?

[00:01:01] Speaker 00:
OK.

[00:01:02] Speaker 00:
It seems to me that all the action here is in figuring out what at a compensation means.

[00:01:10] Speaker 00:
And that's buried when you use the acronyms.

[00:01:13] Speaker 04:
Okay.

[00:01:13] Speaker 04:
So is constant compressibility compensation merely a result of placing a pressure regulator behind any pump such as a syringe pump?

[00:01:23] Speaker 04:
Or is it a requirement of the claims?

[00:01:25] Speaker 04:
Pumping a pump having a mechanism to set a portion of its stroke to compression and the remainder to deliberate.

[00:01:33] Speaker 04:
This is an important question because the claims stand rejected

[00:01:37] Speaker 04:
based upon art that all parties agree do not teach pumping out a CCC.

[00:01:42] Speaker 04:
You can find that at A19 of the record.

[00:01:45] Speaker 00:
Use that acronym again.

[00:01:47] Speaker 04:
Okay.

[00:01:48] Speaker 00:
I'm sorry.

[00:01:48] Speaker 00:
I apologize.

[00:01:49] Speaker 00:
No, I mean, serious.

[00:01:49] Speaker 00:
It made it very hard to get to the bottom of what was at issue here, that the whole brief was written in acronyms.

[00:01:59] Speaker 04:
Very true.

[00:02:00] Speaker 04:
So the art that was cited in the rejections all teach placing

[00:02:06] Speaker 04:
a pressure behind a syringe pump.

[00:02:10] Speaker 04:
The broadest reasonable construction must be consistent with a specification as understood by one of ordinary skill in the art.

[00:02:18] Speaker 00:
So let me cut to what seems to me your principal problem.

[00:02:24] Speaker 00:
The screw and the syringe.

[00:02:27] Speaker 00:
Do I have the two terms right?

[00:02:29] Speaker 00:
In the specification.

[00:02:31] Speaker 04:
In the specification.

[00:02:32] Speaker 00:
Which I take it from a page in your reply brief.

[00:02:35] Speaker 00:
you fundamentally don't have an answer for.

[00:02:40] Speaker 04:
So when you say the screw versus the syringe, are you talking about a... You really don't know what I'm talking about?

[00:02:46] Speaker 04:
Are you talking about there's a passage in the specification that says various types of pumps are also capable of delivering?

[00:02:53] Speaker 04:
Yeah, including the syringe.

[00:02:56] Speaker 04:
such as reciprocating dual-piston diaphragm and screw pumps.

[00:03:01] Speaker 00:
Right.

[00:03:01] Speaker 00:
Column 6, lines 22 and 0.

[00:03:03] Speaker 04:
So first of all, that passage doesn't state syringe pumps.

[00:03:09] Speaker 04:
It states screw pumps.

[00:03:11] Speaker 00:
But I also... I'm sorry.

[00:03:12] Speaker 00:
Diaphragm is what I meant.

[00:03:14] Speaker 04:
Oh, diaphragm pumps.

[00:03:15] Speaker 04:
OK.

[00:03:15] Speaker 04:
So that passage, first of all, talks about various types of pumps.

[00:03:23] Speaker 04:
If you look at a couple sentences beforehand,

[00:03:25] Speaker 04:
It talks about an exemplary embodiment.

[00:03:29] Speaker 00:
Right.

[00:03:29] Speaker 00:
So these are embodiments.

[00:03:30] Speaker 04:
So they potentially are embodiments.

[00:03:33] Speaker 04:
And in the next sentence, which we're talking about, this various types of pumps are also capable.

[00:03:38] Speaker 00:
It doesn't define CCC.

[00:03:40] Speaker 00:
It doesn't have to be defined.

[00:03:41] Speaker 00:
The principle here is that when embodiments are called out, that's a pretty good reason, not conclusive, but pretty good reason to think that the claim covers them.

[00:03:56] Speaker 00:
And I take it from the relevant page on your reply brief, which said this is not definitional.

[00:04:01] Speaker 00:
They're mere embodiments.

[00:04:02] Speaker 00:
Those seem to me just not to be responsive to the core point.

[00:04:07] Speaker 00:
So that if there were ambiguity in the claim language, these embodiments seem to me to defeat the idea that the pump itself has to have a compensation mechanism in it.

[00:04:23] Speaker 04:
I turned to what this court has looked to for the broadest reasonable construction.

[00:04:28] Speaker 04:
And I believe it was in Ray Abbott Diabetes Care in 2012 of this court, where a similar question where one embodiment or an exemplary embodiment was unclear about whether or not it could possibly include wires.

[00:04:47] Speaker 04:
But yet the claim language, which didn't say it had to be wire free,

[00:04:52] Speaker 04:
but was a censor that the specification made clear should be wire free.

[00:04:58] Speaker 04:
This court found that just because.

[00:05:01] Speaker 00:
I agree that it is entirely possible for there to be different claims covering different embodiments.

[00:05:07] Speaker 00:
And the claim language in some situations can, in fact, not cover particular embodiments if it's clear enough.

[00:05:15] Speaker 00:
My problem is that this peculiar claim language

[00:05:20] Speaker 00:
that talks about pumping and delivery and at a compensation, a certain constant compressibility compensation, leaves unclear exactly how those things fit together.

[00:05:35] Speaker 00:
And as long as it's unclear, one needs to find something in the spec that says, embodiments that I think you admit are embodiments of this would be outside it.

[00:05:48] Speaker 00:
And I don't see how you get over that hurdle.

[00:05:51] Speaker 04:
Well, what I would say to that, Your Honor, is that this is a passage that is to an embodiment.

[00:05:56] Speaker 04:
It's not the entire thing.

[00:05:57] Speaker 04:
So you're asking to read out.

[00:06:00] Speaker 02:
Yes.

[00:06:00] Speaker 02:
How do we read out of the claim an actually expressed embodiment?

[00:06:05] Speaker 02:
We have lots of case law that says it's inappropriate to read a claim in such a way to exclude an embodiment, a disclosed embodiment.

[00:06:14] Speaker 02:
So you've disclosed claim.

[00:06:16] Speaker 02:
You've disclosed embodiments where the pump does not have that constant

[00:06:21] Speaker 02:
compressibility, compensation compressibility capacity.

[00:06:24] Speaker 02:
I'm going to add another C. So you've actually disclosed situations in which the pump itself doesn't do that.

[00:06:32] Speaker 02:
So why is it irrational for the board to believe that accomplishing that is something that doesn't have to be a capability of the pump itself rather than of the flow?

[00:06:43] Speaker 04:
Well, I think it's because it's inconsistent with other parts of the specification.

[00:06:47] Speaker 04:
So in other parts of the specification,

[00:06:50] Speaker 04:
And if we were to turn to, for instance, the summary of the invention, and this is at column three on page A35, we're told that the invention pertains to converting a pump with a constant compressibility compensation.

[00:07:06] Speaker 04:
If we move on to the next paragraph, it says, in the present invention, unmodified HPLC pumps can deliver reproducible flow conditions

[00:07:19] Speaker 04:
despite having limited compressibility compensation ranges and no ability to dynamically compensate.

[00:07:25] Speaker 04:
So why would one say, or it'd be inconsistent to say, that you would get the present invention despite having constant compressibility compensation if that was just a result?

[00:07:41] Speaker 02:
Well, what is the conversion and the modification to the pumps that are being referred to there?

[00:07:46] Speaker 04:
So here it's an unmodified HPLC pump.

[00:07:49] Speaker 04:
It has this limited compressibility compensation range, no ability to dynamically compensate.

[00:07:55] Speaker 04:
And our claims tell us that there is a back pressure regulator that is conditioning the flow behind that HPLC pump to allow for the use of constant compressibility compensation to deliver the controllable flow.

[00:08:12] Speaker 04:
And that is further stated

[00:08:15] Speaker 04:
just a few lines down under the results.

[00:08:18] Speaker 04:
This is at line 36.

[00:08:19] Speaker 04:
The result of the invention is controllable flow of a compressible fluid delivered downstream of the regulator.

[00:08:26] Speaker 04:
It doesn't say controllable flow at a constant compressibility compensation to the mobile phase and into the SFC column without performing dynamic compression.

[00:08:39] Speaker 00:
So let me try to phrase

[00:08:43] Speaker 00:
what may be more of a confusion than anything else, but confusion I think unfortunately doesn't help you here.

[00:08:49] Speaker 00:
So the way that this claim is written, it seems to me to leave unclear whether the at a constant compressibility compensation is meant to apply, I'll use a shorthand here, to the word pumping or to the word delivery.

[00:09:06] Speaker 00:
And if that's unclear,

[00:09:08] Speaker 00:
then it seems to me that that makes sense, at least under a broadest reasonable interpretation, of including some of these non-pumping, I don't know what to call it, the diaphragm and the screw pop, one without a plunger in it.

[00:09:30] Speaker 00:
Which means it would be one reasonable way of interpreting this language which

[00:09:36] Speaker 00:
could apply that language to the delivery, which is clearly how the board thought of it, and not as a description of an activity of the pump itself.

[00:09:47] Speaker 00:
So why does that, it seems to me, what I want to hear is, is there some reason that just does not make physical sense in terms that you can try to make me understand?

[00:09:57] Speaker 04:
Sure.

[00:09:57] Speaker 04:
So I think there's a couple things.

[00:09:59] Speaker 04:
One, I think that the claim limitation is a mouthful.

[00:10:02] Speaker 04:
But I think that what was going on here was that it was written for one of Ornear's skill in the art.

[00:10:08] Speaker 04:
And what the drafters of the patent wanted to make clear was that there was a problem and a solution that they wanted to make perfectly clear.

[00:10:18] Speaker 04:
And so therefore, it talks about pumping as the first active step.

[00:10:23] Speaker 04:
But there are three places in this limitation where it mentions the compressible fluid and the fact that

[00:10:30] Speaker 04:
you are compressing or that you're pumping to get your constant, to get your controllable flow without needing that dynamic compensation.

[00:10:41] Speaker 04:
So I think, first of all, the claim does need to be read in context of the specification.

[00:10:45] Speaker 04:
Second, you are asking, I think, what you're struggling with, Your Honor, is maybe put it in a different way, is that is it just a back pressure regulator that

[00:10:59] Speaker 04:
can condition the flow.

[00:11:00] Speaker 04:
And once you've conditioned the flow, then why do you need anything else?

[00:11:05] Speaker 00:
But you don't need to do the conditioning inside the pump as long as what leaves the back pressure regulator has the required properties.

[00:11:13] Speaker 00:
That's all that this invention cares about.

[00:11:16] Speaker 04:
That's where another part of the confusion and another part of reading out from the claim comes from.

[00:11:20] Speaker 04:
And that's about compressible fluids.

[00:11:23] Speaker 04:
Because the specification tells us that pumping

[00:11:27] Speaker 04:
and controlling flow rates in compressible fluids is hard.

[00:11:31] Speaker 04:
Compressible fluids change state or density very easily under slight changes of pressure and temperature, like when you pump them.

[00:11:39] Speaker 04:
And so as you can imagine, if you're pumping this fluid and it would be difficult to deliver flow if it's acting that unpredictably.

[00:11:49] Speaker 04:
One second it's a gas, one second it's a liquid, one second it could be ice chunks.

[00:11:54] Speaker 04:
And so what the prior art did

[00:11:57] Speaker 04:
was it had something called dynamic compensation.

[00:12:00] Speaker 04:
It basically had monitors to constantly understand what state that fluid was in.

[00:12:06] Speaker 04:
And once it understood that state, it would change how it would actually compress the fluid.

[00:12:13] Speaker 04:
So does that answer your question?

[00:12:16] Speaker 04:
I'm sorry, I went on a little bit longer.

[00:12:18] Speaker 00:
Sufficiently, I think.

[00:12:20] Speaker 02:
So I guess if that's the concern,

[00:12:25] Speaker 02:
that you don't need this dynamic system to adjust the Z rate, then why do you need a separate compressibility capability for the pump?

[00:12:40] Speaker 04:
Sure.

[00:12:40] Speaker 04:
So once you condition that flow, and these claims make it clear that you need multiple steps, you need a pressure or maintaining step to sort of condition that flow,

[00:12:52] Speaker 04:
to limit this wild unpredictability.

[00:12:56] Speaker 04:
So you're limiting that predictability.

[00:12:57] Speaker 04:
You've made a compressible fluid act a little bit less compressible.

[00:13:01] Speaker 04:
But it's still compressible.

[00:13:04] Speaker 04:
And you still have to deal with the fact that downstream, it's probably mixing with other fluids.

[00:13:09] Speaker 04:
And it's still, you need to account for that condition of that fluid to get it out reproducibly and deliver the flow.

[00:13:21] Speaker 02:
why is it irrational to read this specification to say that it is the flow stream that is accounting for that, that is protecting against the variations in compressibility?

[00:13:39] Speaker 04:
So if we turn to the summary of invention,

[00:13:51] Speaker 04:
And I'm at the bottom of column three, and this is page A35.

[00:13:54] Speaker 04:
It says, any types of back pressure regulars work with a preferred embodiment.

[00:14:01] Speaker 04:
The density of the liquid in the pump varies over a carefully controlled range during refill and delivery.

[00:14:06] Speaker 04:
This is the type of pump that is this HPLC pump that we talked about.

[00:14:11] Speaker 04:
If the inlet pressure is relatively high, then the fluid is less compressible.

[00:14:15] Speaker 04:
If the temperature in the fluid is maintained over a constant,

[00:14:18] Speaker 04:
The fluid is still less compressible, and there's no change in compressibility.

[00:14:22] Speaker 04:
So here, we're turning to the point that we're telling you, you need to condition that flow to make it less compressible.

[00:14:32] Speaker 02:
Right.

[00:14:36] Speaker 02:
But you're saying that it's the flow which, according to this, could be governed by a syringe pump.

[00:14:47] Speaker 02:
And as long as the flow is correct, in other words, if you're able to do away with variations in z completely by the flow, then why do you even need anything else?

[00:15:00] Speaker 04:
I think I understand your question.

[00:15:02] Speaker 04:
So maybe it's the difference then between a syringe pump and the type of pump that is claimed here.

[00:15:08] Speaker 04:
And the syringe pump doesn't have the same sort of control.

[00:15:12] Speaker 04:
We even see that in the specification.

[00:15:15] Speaker 04:
Early on, it talks about these pumps are more accurate than syringe pumps.

[00:15:22] Speaker 04:
But what is going on here is that in reciprocating pumps, you have inlet and outlet chuck valves that help you to control that pressure over a small volume of fluid.

[00:15:32] Speaker 04:
In a syringe pump, you don't have those chuck valves.

[00:15:35] Speaker 02:
Well, the syringe pump I get is just controlling the flow.

[00:15:38] Speaker 02:
I mean, that's what's causing the flow, right?

[00:15:40] Speaker 04:
So flow.

[00:15:43] Speaker 04:
You need to pressurize and create the conditions to move the flow and meter that flow.

[00:15:48] Speaker 04:
We want to have a controllable flow rate.

[00:15:51] Speaker 04:
We don't want to just pressurize.

[00:15:52] Speaker 04:
We want to meter out what's coming out.

[00:15:55] Speaker 03:
OK, you've used all of your time and all of your rebuttal time.

[00:15:58] Speaker 03:
So I'll restore two minutes of your rebuttal time.

[00:16:00] Speaker 03:
But let's move on and hear from Mr. Green.

[00:16:02] Speaker 04:
Thank you, Your Honor.

[00:16:02] Speaker 03:
Thank you.

[00:16:10] Speaker 01:
Thank you, Your Honor.

[00:16:12] Speaker 01:
I'm here responding to Waters' argument as appellee.

[00:16:20] Speaker 01:
We are defending the decision of the examiner, which found that these claims should be construed so as they are not limited to a constant compressibility compensation pump.

[00:16:32] Speaker 01:
We are defending the decision of the board, which decided that these claims were not limited to a constant compressibility compensation pump.

[00:16:40] Speaker 03:
And I think that the board has done an admirable job going through the... Is your best argument that specification discloses pumps that just don't do that and claims that there are embodiments of the invention?

[00:16:52] Speaker 01:
That's half of it.

[00:16:54] Speaker 01:
The other half is the language of the specification which says in, I can quote, at least one example, in column five to line 66 through column six to line five.

[00:17:08] Speaker 01:
The present invention does not require knowledge of the compressibility constant of the fluid being delivered to the chromatography system because the pump is pumping at constant pressure.

[00:17:19] Speaker 01:
That's the back pressure.

[00:17:21] Speaker 01:
The pump can run at different flow rates in an open loop with no compressibility compensation.

[00:17:28] Speaker 01:
The pump is controlled by the constant pressure and therefore the flow rate may be changed independent of compressibility.

[00:17:33] Speaker 01:
There are other examples from the specification at A16 in the record.

[00:17:39] Speaker 01:
We also rely, of course, on the exemplary embodiments of the invention, which are the ones that have been referred to previously.

[00:17:48] Speaker 01:
They include diaphragm and screw pumps.

[00:17:52] Speaker 01:
There appears to be no dispute that screw pumps do not have any compressibility compensation.

[00:18:00] Speaker 00:
Is there a dispute about diaphragms?

[00:18:02] Speaker 00:
Obvious question from the way you just phrased your point.

[00:18:06] Speaker 01:
I didn't think there was either.

[00:18:07] Speaker 01:
I don't think there is either, but I focused on screw phones because the board does as well.

[00:18:14] Speaker 01:
And it is this section that distinguishes in rate diabetes care, which is a case cited by my counterparty, my counter counsel, as distinguishing this point.

[00:18:28] Speaker 01:
In rate diabetes care, the single example that was excluded by the claims

[00:18:36] Speaker 01:
was a reference to the prior art.

[00:18:39] Speaker 01:
This is a reference to exemplary embodiments of the present invention.

[00:18:47] Speaker 01:
We also would point to the claims and rely on the broadest reasonable interpretation standard.

[00:18:54] Speaker 00:
I think if you read the claims, it is clear that... Can I ask you to step back and maybe just try to explain to me

[00:19:03] Speaker 00:
what it means for there to be a certain kind of compensation, forget what goes in front of that, at which either pumping or delivery occurs when there is no response of some compressibility altering device to

[00:19:33] Speaker 00:
compressed to the compressibility to which it is responding.

[00:19:39] Speaker 01:
I'm sorry, Your Honor.

[00:19:41] Speaker 01:
If that is a question based on the argument you just heard from a waters council.

[00:19:46] Speaker 00:
The language of the claim talks about a constant compressibility compensation.

[00:19:52] Speaker 00:
Yes.

[00:19:53] Speaker 00:
And it says something has to

[00:19:56] Speaker 00:
occur at that.

[00:19:58] Speaker 00:
So it's at some sort of compensation.

[00:20:01] Speaker 00:
Can you explain in common sense terms how to give affirmative meaning to those words when there is no adjustable plunger in a device?

[00:20:18] Speaker 01:
Well, the specification and the board

[00:20:22] Speaker 01:
in considering the declaration from Waters expert concluded that that was a result of pumping against the back pressure, the elevated back pressure and that's the way the claim is written.

[00:20:33] Speaker 01:
I don't know what the word that in your sentence refers to.

[00:20:37] Speaker 01:
That being the constant compressibility compensation is a result of creating a controllable flow stream which is the result of pumping against the back pressure and that pumping can be done

[00:20:52] Speaker 01:
by any pump that doesn't have already built into it compressibility compensation.

[00:21:02] Speaker 01:
That's what is described in the specification.

[00:21:04] Speaker 02:
But how do you respond to your argument on the other side that what the invention is doing and what the specification is describing is not a situation in which there doesn't have to be any kind of control in the pump.

[00:21:20] Speaker 02:
but where you don't need a dynamic control.

[00:21:23] Speaker 02:
And that's what, that was the whole point.

[00:21:25] Speaker 02:
That was the expensive pumps that they were trying to do away with.

[00:21:28] Speaker 02:
And so in prior art there would have been both, right?

[00:21:34] Speaker 02:
A dynamic flow control as well as a compressibility, constant compressibility control.

[00:21:40] Speaker 02:
So what they're saying is they're only doing away with the one, not the other.

[00:21:45] Speaker 01:
My response is respectfully they're misconstruing the specification.

[00:21:49] Speaker 01:
The specification is broader than just allowing a constant compressibility pump to be used instead of a dynamic compressibility pump.

[00:21:59] Speaker 01:
The specification is very clear that you don't need to control for compressibility at all in the pump you're using, and you still get a controllable flow at a constant compressibility compensation.

[00:22:11] Speaker 01:
And that's what the board found, citing material at A16 in the record.

[00:22:17] Speaker 01:
They looked at the declaration of Dr. Cordia.

[00:22:20] Speaker 01:
They, in fact, relied on that declaration in coming to their claim construction.

[00:22:25] Speaker 01:
So whether you look at this as a de novo or you look at this with deference, there's no doubt, I think, that the board got it right when they read the specification and understood the science.

[00:22:36] Speaker 02:
What about the two particular points that your opponent referred to in column three

[00:22:45] Speaker 02:
starting at line 16.

[00:22:47] Speaker 02:
In particular, the invention pertains to converting a pump with constant compressibility compensation for use in gradient elution supercritical fluid chromatography.

[00:23:00] Speaker 02:
Doesn't that imply that the pump has to have a constant compressibility compensation mechanism?

[00:23:10] Speaker 01:
I would say no, Your Honor.

[00:23:12] Speaker 01:
This is one example of a type of pump that can be used to achieve the claimed result.

[00:23:19] Speaker 01:
But then the specification goes on to be very clear.

[00:23:23] Speaker 02:
Well, that's not describing an embodiment.

[00:23:24] Speaker 02:
This is what the present invention is.

[00:23:27] Speaker 02:
That's describing the present invention.

[00:23:29] Speaker 01:
Yes, Your Honor.

[00:23:30] Speaker 01:
And I'm referring to other parts of the specification that talk about the present invention as not requiring knowledge of the compressibility constant of the fluid.

[00:23:39] Speaker 01:
There are several instances in the specification

[00:23:43] Speaker 01:
which are cited in the board decision where the present invention is described as not requiring any adjustment for compressibility and you still get the controllable flow at a constant compressibility compensation that's claimed.

[00:23:57] Speaker 01:
So I would say that this section that talks about pertaining doesn't limit the scope of the invention.

[00:24:04] Speaker 01:
To the extent that it applies, it's talking about using a constant compressibility compensation pump as one thing that could be used

[00:24:11] Speaker 01:
But you could also use other things, like the diaphragm and screw pumps that are described in the specification.

[00:24:20] Speaker 03:
Do you have anything further?

[00:24:22] Speaker 01:
No, Your Honor.

[00:24:26] Speaker 03:
OK.

[00:24:26] Speaker 03:
Thank you, Mr. Green.

[00:24:29] Speaker 03:
Mr. Green.

[00:24:30] Speaker 03:
OK, Ms.

[00:24:31] Speaker 03:
Vernon, you have two minutes of rebuttal.

[00:24:39] Speaker 04:
So just one quick point about a case that opposing counsel mentioned in rate diabetes, saying that it was referring just to the prior arc.

[00:24:48] Speaker 04:
There actually was an embodiment in the specification that had wires.

[00:24:53] Speaker 04:
But moving on to the passages that Agilent cited, I would say that, first of all, I'd like to point out that none of these state constant compressibility compensation.

[00:25:04] Speaker 04:
Also, I believe that the passages are read out of context in the sense that they don't

[00:25:08] Speaker 04:
take into account the without dynamic compensation requirement?

[00:25:14] Speaker 02:
Well, you know, the context is the specification.

[00:25:17] Speaker 02:
But that passage that begins at the bottom of column five and goes over to the top of column six is pretty strong, at least for the argument against you.

[00:25:31] Speaker 02:
Starting at line two, the pump can run at different flow rates in an open loop with no compressibility compensation.

[00:25:38] Speaker 02:
And then it says, the pump is controlled by constant pressure, and therefore flow rate may be changed independent of compressibility.

[00:25:46] Speaker 02:
How do you get around that language?

[00:25:47] Speaker 04:
Right, but the next sentence goes to without the need for dynamic compensation.

[00:25:51] Speaker 04:
And so if we read the passage in its entirety, we see that these passages are really referring to what the problem is in this case, which is you want to get over using that dynamic compensation, which is imperfect because it's always chasing its tail.

[00:26:06] Speaker 02:
But how do we know that it's not just getting around dynamic compressibility compensation, but it's getting around the need for a separate independent constant compressibility mechanism?

[00:26:22] Speaker 04:
Because you still need a compressibility compensation mechanism to deal with the fact that while you've narrowed that change in compressibility of the compressible flow,

[00:26:34] Speaker 04:
you still have a fluid that has some compressibility to it.

[00:26:39] Speaker 02:
Do you concede that it doesn't actually say that anywhere in the specification?

[00:26:45] Speaker 02:
Now you say someone with skill in the art would understand that, but it doesn't actually say that, does it?

[00:26:51] Speaker 04:
Putting all those exact lines together, no it does not.

[00:26:54] Speaker 04:
Someone of ordinary skill in the art would understand that.

[00:26:57] Speaker 04:
If I may direct your attention though to

[00:27:02] Speaker 04:
some of the mistakes that are clearly highlighted in the board's findings.

[00:27:06] Speaker 04:
And you can find those on pages A14 and A15 of the board's record.

[00:27:11] Speaker 04:
I would like to point out the fact that a lot of these findings and conclusions actually don't have any support to the evidentiary record.

[00:27:18] Speaker 04:
So there's no site to any authority for these findings.

[00:27:23] Speaker 03:
such as okay well I think we're beyond our rebuttal time and the extended time I gave you so I think we're going to have to finish up.

[00:27:30] Speaker 03:
I thank both counsel for their argument the case is taken under submission.