[00:00:00] Speaker 03:
Mr. Hughes, Inc.

[00:00:01] Speaker 03:
versus Nalco Company, 15-1895.

[00:00:50] Speaker 03:
Mr. Shield, so you've reserved four minutes for rebuttal, is that correct?

[00:00:56] Speaker 03:
Yes, sir.

[00:00:56] Speaker 03:
You've got 15 minutes, four minutes for rebuttal.

[00:01:00] Speaker 03:
You may proceed, sir.

[00:01:04] Speaker 02:
May it please the court.

[00:01:06] Speaker 02:
The board's conclusions of the claims of the 943 patent are obvious.

[00:01:09] Speaker 02:
It is not supported by substantial evidence or the law.

[00:01:12] Speaker 02:
Although Baker believes that each of the issues briefed supports reversing the board's conclusions, we plan to focus on three issues today in addition to any questions that I only have.

[00:01:21] Speaker 02:
Specifically, the board's overly broad constructions of emulsion and lowering pH of the wash water.

[00:01:26] Speaker 04:
In the red brief, NALCO asserts that Baker Hughes never raised its claim construction arguments with the board.

[00:01:34] Speaker 04:
And in response in the gray brief, you cite, you list JA sites at page three that total 107 pages where you assert you did challenge the quote erroneous instructions.

[00:01:47] Speaker 04:
Would you point me to a specific language within those 107 pages?

[00:01:51] Speaker 02:
Yes, Your Honor.

[00:01:53] Speaker 02:
For example, at A03619 to 20, specifically at page 16 of the comments responding to the action closing prosecution, Baker described an emulsion in terms of the 943 patent required about 5% wash water to be dispersed in crudal using a mixing valve at page

[00:02:14] Speaker 02:
Seventeen of the same response to the action closer prosecution Baker said that an aqua solution in crude oil mixture does not equal wash water and crude oil emulsions as the patent similarly in the comments and revised amendments at a zero three eight seven seven seven eight and a zero three eight seven nine the same arguments were made

[00:02:40] Speaker 02:
In the appellants brief to the board at page 9, A04374, Baker once again talked about that a mixture of oil and water does not necessarily equal an emulsion.

[00:02:51] Speaker 02:
In the reply rebuttal brief to the board at A04615, page 5 of that brief, Baker was clear that the examiner is using faulty logic, that just because all emulsions are a mixture of emissable liquids doesn't mean every mixture of emissable liquids is emulsion.

[00:03:09] Speaker 04:
Do you concede, or you admit it, that two of the examiner's statements were true, namely emulsions are a mixture of two immiscible liquids and water and crude oil are immiscible liquids?

[00:03:24] Speaker 02:
Yes, but just because you have water and crude oil together doesn't mean it's an emulsion.

[00:03:30] Speaker 02:
You can have water and crude oil mixed without creating an emulsion.

[00:03:33] Speaker 02:
And that's the issue there.

[00:03:34] Speaker 02:
Just because emulsions are mixtures of emissable liquids doesn't mean all mixtures of emissable liquids are emulsions.

[00:03:41] Speaker 02:
And Baker was clear that that was faulty logic on the part of the examiner.

[00:03:49] Speaker 04:
What about your lowering the pH construction?

[00:03:54] Speaker 02:
Going first to the October 3, 2011 response to office action at 03552, page 11.

[00:04:02] Speaker 02:
Baker was clear that lowering the pH of the wash water is not equivalent to adjusting the pH.

[00:04:07] Speaker 02:
At 03260 and 61, Baker talked about that there are two distinct steps.

[00:04:14] Speaker 02:
First, you add the acid composition to the wash water, lower the pH to 6 or below, and then the wash water is added to the crude oil and an emulsion is created.

[00:04:25] Speaker 02:
Baker made similar arguments at A063622-23,

[00:04:30] Speaker 02:
A038A1-A2 and A04383, for example.

[00:04:42] Speaker 04:
Where in the record did you object to the reliance on Wikipedia before the PTAB?

[00:04:49] Speaker 02:
The banker objected to the construction that the PTAB used that all mixtures of miscible liquids were emulsions, and said it was faulty logic.

[00:05:00] Speaker 02:
There wasn't a specific discussion on Wikipedia.

[00:05:02] Speaker 04:
So there wasn't a specific objection?

[00:05:04] Speaker 02:
There wasn't a specific discussion that Wikipedia is unreliable.

[00:05:07] Speaker 02:
The examiner's constructions, as we talked about in our briefs, they said one thing about that all mixtures of miscible liquids were emulsions.

[00:05:15] Speaker 02:
And then the examiner says, well, Reynolds doesn't really have an emulsion.

[00:05:19] Speaker 02:
So what he's talking about is two emulsions.

[00:05:21] Speaker 02:
So the board didn't actually ever articulate one construction.

[00:05:25] Speaker 02:
They had a compounding error of constructions that started with Wikipedia.

[00:05:30] Speaker 02:
And then to justify the use of Reynolds, they're like, well, there's two types of emulsions talked about in Reynolds.

[00:05:34] Speaker 02:
But Reynolds only discusses that there should be no emulsions.

[00:05:37] Speaker 02:
The board miscites the examiner saying, talking about the two types of emulsions, one being easily settled by just resting overnight, which the board says there's a temporary emulsion.

[00:05:48] Speaker 02:
It cuts out the examiner's language describing what that was.

[00:05:52] Speaker 02:
And then there's a second type of emulsion that's intimately and thoroughly mixed.

[00:05:55] Speaker 02:
You have to use an electrostatic coalescence.

[00:05:58] Speaker 02:
The board's error didn't start or finish with Wikipedia.

[00:06:02] Speaker 02:
It started there, but it continued on as they tried to justify the improper use of Wikipedia.

[00:06:09] Speaker 01:
Do you agree that if there was like a chemistry text or a dictionary that isn't modified continually like Wikipedia, if there was something like that that had that same definition in it, that that would be something that the board could have relied on?

[00:06:25] Speaker 02:
in a general sense, the board can rely on technical dictionaries and so forth, and chemistry dictionaries for what an emulsion is.

[00:06:31] Speaker 02:
But you still have to be reasonable in light of what the specification is.

[00:06:34] Speaker 01:
I agree with you.

[00:06:35] Speaker 01:
But I just want to make sure that you're not saying that you couldn't rely on.

[00:06:38] Speaker 02:
No, I'm not saying that.

[00:06:39] Speaker 02:
It's more that Wikipedia itself, as one court observed, it's not good for technical issues.

[00:06:45] Speaker 01:
I see it as being a minor part of your argument.

[00:06:47] Speaker 01:
And the most important part of your argument that you need to succeed here is that it needs a little bit of different meaning than what's in the Wikipedia

[00:06:54] Speaker 01:
definition based in line to the specification.

[00:06:58] Speaker 01:
That's your real argument if you're going to succeed.

[00:07:00] Speaker 02:
Yes.

[00:07:00] Speaker 02:
Wikipedia is a red herring.

[00:07:07] Speaker 02:
Thank you.

[00:07:07] Speaker 02:
Secondly, the board unreasonably expanded the scope of the transitional language consisting of to capture art that should never have been considered.

[00:07:15] Speaker 02:
Finally, the issue we want to cover is the secondary considerations of non-obviousness.

[00:07:19] Speaker 03:
Before you get to that, can you discuss the combining of patent owner admissions and kickoff

[00:07:25] Speaker 02:
Yes, sir, what would you like to know about that?

[00:07:27] Speaker 03:
Well, I assume you're saying that there's no substantial evidence to support that finding.

[00:07:31] Speaker 02:
Correct.

[00:07:32] Speaker 02:
And the issue there is if you look at the Patent Owners Admissions, there are four statements, most of which are partial statements.

[00:07:39] Speaker 02:
The last one of the four statements identified by the board goes on for four pages after the portion they snip out of it.

[00:07:47] Speaker 02:
But there's 119 pages of testimony from the inventor.

[00:07:51] Speaker 02:
There are four statements taken out of context, snipped,

[00:07:55] Speaker 02:
And there's nothing in the record to explain how one skilled in the art would know to pick those four statements and ignore all the other statements by the inventor.

[00:08:04] Speaker 02:
Similarly, Hickok teaches a method of adding metals to gasoline, which can include peroxides and oxidation.

[00:08:14] Speaker 02:
It doesn't have wash water.

[00:08:15] Speaker 02:
It doesn't have emulsions.

[00:08:16] Speaker 02:
It doesn't happen in a salter.

[00:08:18] Speaker 02:
And gasoline, as even was admitted by the board, is a refined hydrocarbon.

[00:08:23] Speaker 02:
It's not crude oil.

[00:08:25] Speaker 02:
As the inventor testified in the testimony that wasn't considered by the board or mentioned, crude oil is a mixture of thousands of chemicals.

[00:08:32] Speaker 02:
You can't understand how it's going to react until it's tested.

[00:08:37] Speaker 02:
So when you put that together, Hickok, the only thing they pull out of it, they ignore pretty much the entire description of Hickok and pull an acid out.

[00:08:45] Speaker 02:
And then they say, the inventor's statements during a plumber injunction hearing years after the fact can then be mixed with this random acid

[00:08:54] Speaker 02:
pick for something that's not analogous art to come up with a new invention or a new disclosure of obviousness.

[00:09:00] Speaker 02:
But there's nothing in the record to explain why a person of skill in the art would make that combination.

[00:09:07] Speaker 01:
Also, I know the inventor's statements don't talk about the particular range of a pH or 6 below.

[00:09:15] Speaker 01:
Does Hickok disclose that?

[00:09:18] Speaker 02:
Hickok doesn't disclose pH at all.

[00:09:20] Speaker 02:
PICOT doesn't mention pH, emulsions, wash waters, desalters.

[00:09:25] Speaker 02:
I'm not sure it mentions crude oil, because it talks about refined motor oils and motor fuels.

[00:09:35] Speaker 02:
So turning to the clay construction issues, I believe we've already talked about emulsion.

[00:09:40] Speaker 02:
But going to the lowering the pH of the wash water, there are two distinct steps.

[00:09:45] Speaker 02:
And the steps require that the wash water pH be lowered

[00:09:49] Speaker 02:
before, after, and during the adding of the acid composition.

[00:09:53] Speaker 02:
And the acid composition in the wash water is then added to the crude oil to create an emulsion.

[00:10:00] Speaker 02:
The board's construction removes the wash water from two places.

[00:10:05] Speaker 02:
First, the board's construction, which reads, lowering the pH of the wash water six or below before, during, or after adding the hydroxy acid to the water.

[00:10:14] Speaker 02:
It removes wash water there.

[00:10:16] Speaker 02:
And if you look at the 943 patent, it describes that the solvent you can put your acid in can be water, it can be alcohol, it can be other things.

[00:10:23] Speaker 02:
So by removing wash water, which has a specific meaning of refinery to salting, the board skews the scope of the patent a little bit.

[00:10:31] Speaker 02:
But the board goes further to say that you add the hydroxy acid aqueous composition to the crude oil to create an emulsion.

[00:10:38] Speaker 02:
They completely remove the wash water.

[00:10:40] Speaker 02:
By doing that, they then bring in heart, which adds the acid composition directly to the oil.

[00:10:45] Speaker 02:
In the original prosecution, the wind declaration describes that the invention works better because the acid is added to the wash water and not directed to the oil, and that they actually tested adding the acid to the oil as opposed to the wash water.

[00:11:00] Speaker 02:
So by removing wash bar from the construction, the board ensnares HAARP, which goes against the teachings of the invention, going back to the original prosecution.

[00:11:10] Speaker 02:
And also they use it to justify bringing in Hickok, which is about treating gasoline.

[00:11:15] Speaker 02:
which doesn't have wash water, but it does have a solution you put the acid in.

[00:11:19] Speaker 02:
And so by removing wash water completely from the scope of the language, the board drastically changes the scope of the invention to snare art that shouldn't have been considered.

[00:11:33] Speaker 02:
The consisting of, we've talked about a little bit, is closed language.

[00:11:40] Speaker 02:
And because of that, the prior art has to actually disclose

[00:11:44] Speaker 02:
the invention being discussed, not the invention plus a bunch of other items that may or may not be part of the invention.

[00:11:50] Speaker 02:
In this case, because the board basically equated it consisting of to comprising of, the board felt there was no need to explain how you would know which elements to pick from the various pieces of prior art.

[00:12:02] Speaker 02:
Hart, for example, has a pH range that's 6 to 11, which is above the operating range of the claimed invention.

[00:12:08] Speaker 02:
Hickok uses gasoline.

[00:12:10] Speaker 02:
Reynolds doesn't create emulsions.

[00:12:14] Speaker 02:
When you start looking at all the different things that are in each of the pieces, you can come up to 25 to 30 different elements that may or may not be in the very pieces.

[00:12:24] Speaker 01:
But just to be fair, I mean, you should probably be talking about Reynolds in view of Hart.

[00:12:30] Speaker 01:
Yes.

[00:12:31] Speaker 02:
Reynolds in view of Hart.

[00:12:32] Speaker 02:
Because Reynolds in view of Hart, the specific issue there is that Reynolds teaches against using emulsions.

[00:12:37] Speaker 02:
And Hart specifically has emulsions.

[00:12:39] Speaker 02:
Both of them use a pH range that's substantially higher than the operating range.

[00:12:43] Speaker 02:
of the claimed invention.

[00:12:46] Speaker 02:
The Reynolds, in part, because one is teaching to use emulsions, one is teaching away from emulsions, the board never explains that, you know, how one would combine those two.

[00:12:55] Speaker 01:
Teaching away, that's a factual issue, right?

[00:12:57] Speaker 01:
So we need to review that for substantial evidence.

[00:13:00] Speaker 02:
Correct.

[00:13:00] Speaker 02:
But there is no evidence to show that a person of ordinary skill would take a reference that doesn't use emulsions and mix it with a reference that does.

[00:13:08] Speaker 02:
The Reynolds, when you look at it, says all emulsions should be avoided.

[00:13:14] Speaker 01:
And the examiner... It doesn't expressly say that.

[00:13:17] Speaker 02:
It says, emulsions should be avoided because they interfere with the separation.

[00:13:21] Speaker 02:
And then there's discussion about higher pHs.

[00:13:25] Speaker 02:
But the Reynolds operating range is from 5 to 9, preferably.

[00:13:29] Speaker 02:
Most of the operating range is above 6 or above 7, actually, into an alkaline range.

[00:13:35] Speaker 02:
So pH isn't an issue in Reynolds.

[00:13:37] Speaker 02:
When you look at it, pH is an issue for the claim convention.

[00:13:40] Speaker 02:
That's what has to be 6 or below.

[00:13:44] Speaker 02:
Ignoring the parts of Reynolds, for example, and Hart that teach away from the invention, and putting them together, there's no explanation of how you know which pieces to pick and which ones to ignore.

[00:13:56] Speaker 02:
There's nothing in the record to describe that.

[00:13:58] Speaker 02:
There is no substantial evidence supporting the board's conclusions.

[00:14:07] Speaker 03:
You're into your rebuttal time.

[00:14:10] Speaker 03:
I'm sorry.

[00:14:10] Speaker 03:
OK.

[00:14:12] Speaker ?:
Thank you.

[00:14:19] Speaker 03:
Mr. Porodek?

[00:14:20] Speaker 03:
Yes.

[00:14:21] Speaker 03:
Did I pronounce that correctly?

[00:14:22] Speaker 00:
It's at Porotic.

[00:14:23] Speaker 00:
I respond to any variation of that.

[00:14:26] Speaker 00:
I'll say Porotic.

[00:14:28] Speaker 00:
I don't even notice anymore.

[00:14:29] Speaker 00:
But thank you, Your Honor, for asking.

[00:14:33] Speaker 00:
Your Honor Judge Stoll, you talked about the reference here that probably is the quickest path to some kind of an affirmance would be the heart plus the Reynolds plus heart combination.

[00:14:43] Speaker 00:
Because both of those independently teach adding hydroxy acid

[00:14:47] Speaker 00:
to a crude oil in order to resolve the metal.

[00:14:53] Speaker 03:
Do they teach achievement at a certain pH level?

[00:14:55] Speaker 00:
Yeah, I think Reynolds is our best reference on that.

[00:14:58] Speaker 00:
There's a number of different places, but Reynolds itself in column three talks about the pH level, the preferable pH level being sex, and it talks about that pH level can be down to two.

[00:15:09] Speaker 00:
And so it's teaching six as its preference, and it actually says, very pertinent here, one reason you want to be careful not to make your

[00:15:16] Speaker 00:
uh... your your uh... that make your uh... motion to base is that it can lead to an emotion that is hard to separate so much of their argument on rentals is around that one sentence in which uh... we might as well take a look at it it's in column three this is on a two seven four five uh... as discussed previously in order for the iron to bind appropriately does it by the way we're going to hold on just a little bit sure thing five thirty one it's uh... eight two seven four five

[00:15:47] Speaker 00:
column 3, line 31.

[00:15:53] Speaker 00:
As discussed previously, in order for the iron to bind appropriately to the citric acid, the pH should be above 2 and preferably 5 to 9.

[00:16:01] Speaker 00:
One difficulty with the addition of base, however, is the formation of emulsions, which can interfere with effective separation.

[00:16:08] Speaker 00:
Therefore, the most preferred pH is around 6, especially for napthenic acid crudes.

[00:16:14] Speaker 00:
And the 943 is dealing with these naphthenic crudes, which are the heavier ones.

[00:16:19] Speaker 00:
And so what's teaching there actually with respect to the acid in this is that you don't want it to go too high.

[00:16:24] Speaker 00:
And it says the preference is at six, and it can go down even lower.

[00:16:27] Speaker 01:
What about the formation of emulsions being a problem?

[00:16:31] Speaker 00:
Yeah, and that's an interesting issue.

[00:16:33] Speaker 00:
It jumps out at one as saying, wait a second.

[00:16:35] Speaker 00:
This entire process, they talk about desalters.

[00:16:38] Speaker 00:
They talk about demulsifiers in here.

[00:16:40] Speaker 00:
They talk about intimate mixing.

[00:16:42] Speaker 00:
Those are all things that are talking about the emulsion that are made in the conventional dissolving process.

[00:16:47] Speaker 00:
So why is there that sentence?

[00:16:49] Speaker 00:
And what the word found, and it's supported by all the evidence I just said, and also maybe even a reading of this sentence itself, is this is talking about a very particular form of emulsion, what they call the stable emulsion.

[00:17:02] Speaker 00:
And you see that in some of the other references that we have.

[00:17:04] Speaker 00:
For example, petroleum refining.

[00:17:06] Speaker 00:
And I believe page 55 of that reference talks about these stable emulsions.

[00:17:10] Speaker 00:
And those are difficult because if you mix things up, you want to make sure that at a certain point, you can separate them.

[00:17:17] Speaker 00:
And so in this particular circumstance, especially with these heavy neptenic crudes, which are these heavier crudes that are harder to resolve, if it gets to base, and this is my understanding, it gets kind of milky and difficult to demulsify at the end of the process.

[00:17:34] Speaker 00:
So looking at all this evidence that I just named,

[00:17:37] Speaker 00:
The board actually said, no, this is a very particular emulsion that they're saying is not desirable.

[00:17:43] Speaker 00:
But of course, when you're talking about using conventional consulting processes, we know from a number of different prior sources in this, you are going to be doing

[00:17:53] Speaker 00:
an emulsion.

[00:17:53] Speaker 00:
That's the entire point of this, to bring the mix of the oil and the water together with a solution.

[00:18:00] Speaker 00:
And then after you process it, then to separate it back into a water and oil phase.

[00:18:06] Speaker 00:
So I think on that issue, I've given you the evidence, but the board itself findings on that, which is a reading of the prior references.

[00:18:15] Speaker 03:
Your opponent says that Hickok is not an analogous reference because it deals with gasoline.

[00:18:23] Speaker 00:
Yes, that's right.

[00:18:23] Speaker 00:
So I just want to answer with respect.

[00:18:26] Speaker 00:
That's another combination that, for us, Hart and Reynolds themselves, that combination is the one that kind of gets you there.

[00:18:34] Speaker 00:
But the Hickok, I think, if you look at your recent decision in the Applebee-Samsung case, talked about some of these analogous art issues.

[00:18:43] Speaker 00:
And I think it's pertinent here.

[00:18:45] Speaker 00:
We are talking right now about Hickok, the problem that we solved is removing metals from gasoline.

[00:18:51] Speaker 00:
Here we're talking in the 943 patent about the problem to be solved is removing metals from hydrocarbons.

[00:19:00] Speaker 00:
And so gas is a hydrocarbon.

[00:19:02] Speaker 00:
The 943 patent talks mostly about crude oil as examples, but I counted 50-some references to hydrocarbons generally in there.

[00:19:11] Speaker 00:
There's many benefits of the invention that are listed that are around liquid hydrocarbons.

[00:19:16] Speaker 00:
So the idea that gasoline is a liquid hydrocarbon.

[00:19:19] Speaker 00:
So I think we're in an area where

[00:19:21] Speaker 00:
Under either of the analogous art tests, are we in the same field of endeavor?

[00:19:25] Speaker 00:
I would say we absolutely are.

[00:19:27] Speaker 00:
Gas, at the end of the day, is a fraction of crude oil.

[00:19:31] Speaker 00:
So it is actually gas is a component part of crude oil.

[00:19:35] Speaker 00:
And when it's separated in this process down the road, it can become fuel.

[00:19:39] Speaker 00:
But we're talking about the same, potentially the very same, hydrocarbon at the beginning and the end of the process.

[00:19:44] Speaker 00:
So for me, that's the same field of endeavor.

[00:19:47] Speaker 00:
What the board focused on was looking at is the same problem to be solved.

[00:19:52] Speaker 00:
Is the structure similar?

[00:19:54] Speaker 00:
And again, the same problem to be solved, removing metals from liquid hydrocarbons.

[00:19:58] Speaker 00:
And the structure is very similar.

[00:20:01] Speaker 00:
In Hickok, the structure is to treat this particular fuel with a hydroxy acid and then distill, sending your spent acid down one pipe,

[00:20:12] Speaker 00:
and your good fuel down the other pipe.

[00:20:15] Speaker 00:
So the structure is very similar.

[00:20:16] Speaker 00:
And if you just look recently at the Apple case, you see a very similar analysis using that principle.

[00:20:21] Speaker 04:
To make the record clear, then, when you responded to, at the beginning of your response to Judge Raina, when you began by saying, yes, that's right, you were referring to, yes, Hickok deals with gasoline, not, yes, the other clause of his question, which

[00:20:39] Speaker 04:
was they say it's not analogous.

[00:20:41] Speaker 00:
I only agree with the part that's favorable to me, Your Honor.

[00:20:44] Speaker 00:
To be clear, yes.

[00:20:45] Speaker 00:
No, but I think, and I've given my reasoning, and I think that's sound.

[00:20:48] Speaker 00:
And again, the board, this is the board's job.

[00:20:50] Speaker 00:
It looks at these issues.

[00:20:51] Speaker 00:
It had a nice discussion.

[00:20:53] Speaker 00:
It pointed out Hickok itself.

[00:20:57] Speaker 00:
It looked at the prior references that treat gasoline and oil the same.

[00:21:01] Speaker 00:
And it made that conclusion, and they're entitled to deference.

[00:21:05] Speaker 00:
I think the one thing I would raise right now in terms of the claim construction issue that was raised by my colleague, I think it's important on the claim construction, we have the position that there was absolutely a waiver of challenging the claim construction of emulsion.

[00:21:26] Speaker 00:
And so we've had that position in there.

[00:21:28] Speaker 00:
We also think that that definition is uncontroversial, and it is the broadest reasonable construction.

[00:21:33] Speaker 00:
I think it's important, just if there's any doubt in your minds, that even if we took their construction, the construction that it is very specifically a desalting emulsion that's used with a mixed valve in which there is a certain percentage, I think they say 3% to 10% ratio of water to oil, that very specific new construction they have, the interesting thing is Reynolds still meets it.

[00:21:56] Speaker 00:
If we go through, Reynolds has this teaching about a certain kind of emulsion it doesn't want.

[00:22:00] Speaker 00:
But if you accept that finding,

[00:22:02] Speaker 00:
then again and again in Reynolds, there's a teaching of an emulsion that is a thorough intimate mixture in a conventional dissolving process, which we know involves a mixed valve.

[00:22:13] Speaker 00:
And it talks specifically at one point about the ratio that they would, this is again in column three, A2745, line 38.

[00:22:25] Speaker 00:
The ratio of aqueous citric solution to hydrocarbonaceous feed should be optimized

[00:22:32] Speaker 00:
the determining factor being the separation method.

[00:22:37] Speaker 00:
So it's talking about a number of separation methods, potentially.

[00:22:39] Speaker 00:
Commercial desalters, for example, ordinarily run at 10% or less aqueous volume.

[00:22:45] Speaker 00:
So all the elements of their proposed construction are actually taught very specifically in Reynolds.

[00:22:52] Speaker 00:
So in a certain way, this argument about the construction is somewhat academic, because even if we were to accept their construction, Reynolds would meet it.

[00:23:00] Speaker 00:
And it's also further academic because, of course, Reynolds is in combination with Hart.

[00:23:05] Speaker 00:
So if there's any question about whether emulsion is taught by Reynolds or what kind of emulsion is taught by Reynolds, I would propose that the most narrow form of emulsion is taught.

[00:23:15] Speaker 00:
But if there's any question whatsoever, it is in combination with Hart.

[00:23:19] Speaker 00:
And so the board looked to Hart.

[00:23:20] Speaker 00:
And if you look at Hart, it's specifically teaching water and oil emulsion.

[00:23:25] Speaker 00:
And it's specifically talking about, I believe, a 5% to 10% ratio.

[00:23:29] Speaker 00:
So in my view, that's why I go back to this combination.

[00:23:32] Speaker 00:
It's just airtight.

[00:23:33] Speaker 00:
Both Hart and Reynolds on their own are very powerful.

[00:23:37] Speaker 00:
Together, it doesn't seem like there's any harm whatsoever from our point of view.

[00:23:45] Speaker 03:
Thank you very much.

[00:23:45] Speaker 03:
Thank you very much.

[00:23:55] Speaker 03:
Mr. Shield, you have a couple of minutes.

[00:24:01] Speaker 02:
Thank you, Your Honor.

[00:24:02] Speaker 02:
First of all, I'd like to look at Reynolds and Hart.

[00:24:05] Speaker 02:
When you look at Reynolds, Reynolds says that a desalter should use 10% or less wash water.

[00:24:10] Speaker 02:
But when you actually look at the experiments in Reynolds, they're shown in the tables 1, 2, 3, and 4, it uses 50% aqueous solution, 16% and 66%, way above what a desalter runs at according to Reynolds.

[00:24:24] Speaker 02:
Additionally, Hart teaches that it's superior to the Reynolds product

[00:24:27] Speaker 02:
by adding the acid directly to the oil as opposed to the wash water.

[00:24:33] Speaker 02:
Grills at heart by themselves would not lead to a combination by one skill in the arc.

[00:24:38] Speaker 02:
They are going in different directions.

[00:24:39] Speaker 02:
The only way you get there is by using the 9-4-3 pattern as a roadmap.

[00:24:46] Speaker 02:
The argument about Hickok being analogous arc, this is very similar to the Clay case, where the arc that was being cited was a bladder

[00:24:58] Speaker 02:
in the bottom of the tank and gel being put into a well formation.

[00:25:01] Speaker 02:
They both dealt with handling crude oil in that case, but one was storing it and one was getting it out of the ground.

[00:25:07] Speaker 02:
Hickok adds metals to the gasoline for the stabilization process and then, in a separate step, removes it.

[00:25:14] Speaker 02:
But Hickok doesn't use wash water, desalters, or emulsions.

[00:25:20] Speaker 02:
Hickok is dealing with a very specific

[00:25:23] Speaker 02:
adding metals to gasoline for stabilization.

[00:25:25] Speaker 03:
Are you saying that Hickok doesn't use wash water?

[00:25:28] Speaker 02:
It does not.

[00:25:29] Speaker 02:
It uses an aqueous solution with the acid, so the acid can be added to the oil.

[00:25:34] Speaker 02:
That's what it is.

[00:25:35] Speaker 02:
It's not wash water.

[00:25:36] Speaker 02:
It doesn't mention wash water.

[00:25:38] Speaker 02:
And in the 9-4-3 patent, the issue is removing metals from crude oil that are naturally existing.

[00:25:43] Speaker 02:
It's not adding something to remove it.

[00:25:48] Speaker 01:
Finally, even if... Why isn't the hydroxy aqueous composition there, the wash water plus the hydroxy acid?

[00:25:55] Speaker 02:
Well, because wash water in a refinery has a very specific meaning.

[00:25:59] Speaker 02:
It's not water in the sense of, you know, what you get out of your tap.

[00:26:03] Speaker 02:
That's very expensive.

[00:26:04] Speaker 02:
Wash water is whatever water the plants have, and it's used to clean the oil in the desalting process.

[00:26:11] Speaker 02:
But it's not pure water.

[00:26:13] Speaker 02:
As discussed at A4378,

[00:26:18] Speaker 02:
Page 13, the appellate's brief to the board.

[00:26:20] Speaker 02:
Wash water is a term of art understood by a person of skill in the art that contains contaminants.

[00:26:27] Speaker 02:
It's not pure water.

[00:26:29] Speaker 02:
Whereas when you're making an acid solution, you're putting it into pure or clean water.

[00:26:33] Speaker 02:
And that's the difference that's being overlooked here.

[00:26:36] Speaker 02:
Wash water is important.

[00:26:37] Speaker 02:
And that's why we go back to the lowering of the construction of the pH of the wash water.

[00:26:41] Speaker 02:
The board, by removing wash water from the claim language, rewrites the claim scope to be something completely different.

[00:26:47] Speaker 04:
Well, in response to Judge Stoll's question, which was, why isn't aqueous citrus solution wash water?

[00:26:58] Speaker 04:
You said, well, wash water is water with a contaminant in it.

[00:27:01] Speaker 02:
Well, no.

[00:27:02] Speaker 02:
I'm sorry.

[00:27:04] Speaker 04:
Isn't the citric acid, in your analogy, a contaminant?

[00:27:09] Speaker 02:
No, the citric acid is what you're trying to put in in the aqueous solution.

[00:27:12] Speaker 02:
You need, again, the solution to put into the gasoline.

[00:27:14] Speaker 02:
Wash water is a large volume of water that's being mixed with the crude oil.

[00:27:18] Speaker 02:
The acid is a smaller subset that's added to the wash water before the wash water is added to the crude oil to create the emulsion and the desalting process.

[00:27:28] Speaker 02:
The 943 patent talks about the difference between wash water and the solution that's made for the invention.

[00:27:42] Speaker 02:
And unfortunately, I can't find that site right now.

[00:27:44] Speaker 02:
But finally, the secondary considerations of non-obviousness.

[00:27:48] Speaker 02:
The board didn't actually consider the secondary considerations.

[00:27:53] Speaker 02:
Specifically, the Southern District of Texas found that Nalco was copying the claimed invention after a two-day preliminary injunction with witnesses.

[00:28:00] Speaker 02:
The board doesn't even address it.

[00:28:03] Speaker 02:
The board also fails to look at the fact that the assignee of the Reynolds patent, Chevron, was one of the two companies that came to Baker to solve the problem with high calcium crude oil.

[00:28:15] Speaker 03:
And when you look at those issues, they- I don't think that your opponents address secondary considerations.

[00:28:24] Speaker 03:
OK.

[00:28:25] Speaker 03:
So don't argue that on both.

[00:28:27] Speaker 02:
OK, Your Honor.

[00:28:31] Speaker 02:
I see my time's out.

[00:28:32] Speaker 02:
Is there any other questions for the board?

[00:28:34] Speaker 03:
Do you want to have a concluding thought?

[00:28:37] Speaker 02:
Fakably, for all the reasons addressed in our brief, that the board's conclusions of Irishness were inappropriate and should be reversed by this panel.

[00:28:44] Speaker 02:
Thank you.

[00:28:45] Speaker 03:
Thank you very much.

[00:28:46] Speaker 03:
We thank all the parties for their arguments and this court now stands for recess.