[00:00:00] Speaker 00:
David Netzer Consulting versus Shell Oil.

[00:00:29] Speaker 00:
Okay, Mr. Garza, whenever you're ready.

[00:00:33] Speaker 04:
May it please the court.

[00:00:36] Speaker 04:
The party's briefing focuses on the fourth step of the claim.

[00:00:42] Speaker 04:
But that's not the focus of the patent.

[00:00:45] Speaker 02:
Well, the claim has a fourth step.

[00:00:47] Speaker 04:
It does have a fourth step.

[00:00:49] Speaker 02:
It refers to fractionating the pyrolysis gasoline to get over 80%.

[00:00:57] Speaker 02:
When you look at your patent specification column two, the azeotrope description, that clearly refers to distillation.

[00:01:11] Speaker 02:
That's where you get the azeotropes.

[00:01:16] Speaker 02:
And I think it's pretty clear that the last step of the accused process is separation.

[00:01:25] Speaker 02:
It's not distillation.

[00:01:28] Speaker 04:
I agree that the last step of the process is separation and not just distillation.

[00:01:32] Speaker 02:
But then why doesn't that settle a case then?

[00:01:35] Speaker 02:
Because the accused doesn't meet one step of the claim.

[00:01:40] Speaker 04:
Again, I believe the term fractionation is broader than distillation.

[00:01:44] Speaker 04:
I believe sub-fractionation is any process that creates fractions and not just distillation.

[00:01:49] Speaker 02:
A selection of what you believe or what I believe doesn't just specification indicate otherwise.

[00:01:55] Speaker 04:
No, Your Honor.

[00:01:56] Speaker 04:
The portion of the specification that you point to does not speak to azeotropes and generic fractionation.

[00:02:03] Speaker 04:
It does speak to azeotropes and conventional fractionation.

[00:02:07] Speaker 04:
And that term does have meaning.

[00:02:09] Speaker 04:
Conventional is a word that means usual or expected.

[00:02:13] Speaker 00:
And I will say in this... Wait, so your point being that the claim term fractionization is something other than conventional fractionization?

[00:02:22] Speaker 04:
Yes, conventional is a limitation on the word fractionation.

[00:02:25] Speaker 00:
You don't mean other, just broader.

[00:02:28] Speaker 04:
Fractionation is broader.

[00:02:30] Speaker 04:
Yes, fractionation is broader than conventional fractionation.

[00:02:33] Speaker 04:
And that's again shown by our citations to the specification, including column three that says that fractionation by conventional distillation may become difficult.

[00:02:44] Speaker 04:
And in claim 11, that says separation by conventional fractionation in a distillation column.

[00:02:50] Speaker 04:
No, the intrinsic evidence does not support a finding that fractionation is limited to distillation.

[00:02:58] Speaker 04:
I'd like to move to the specification disclaimer arguments.

[00:03:04] Speaker 04:
One argument that Shell makes is that the motivation for this patent to take advantage of the market shift for impure benzene results in a disavowal of processes that use other separation techniques than distillation.

[00:03:20] Speaker 04:
As we've shown in our brief, the patent has more than one benefit.

[00:03:25] Speaker 04:
And according to Federal Circuit precedent, including the Golight case, when there's more than one benefit, each claim does not need to claim every benefit.

[00:03:34] Speaker 04:
And here, if Netzer had intended to limit his claim to impure benzene, the file history would look very different.

[00:03:43] Speaker 04:
So Shell has pointed to page A261 of the file history.

[00:03:48] Speaker 04:
And that's where Netzer states that the claim process is particularly useful to make benzene that isn't completely pure.

[00:03:57] Speaker 04:
And then quickly pivots to contrast the Takahisa reference that tries to make high-purity benzene.

[00:04:04] Speaker 04:
Now, with this setup, it begs for an express disclaimer.

[00:04:09] Speaker 04:
Netzer could have said, claim one does not cover high-purity benzene overcoming the Takahisa rejection.

[00:04:17] Speaker 04:
But Netzer didn't do that.

[00:04:19] Speaker 04:
What Netzer did is he pointed to the fact that Takahisa is looking for high purity benzene to show why the Takahisa reference did not meet the first three steps of the claim.

[00:04:29] Speaker 04:
He said the Takahisa reference has no reason to separate out a benzene rich fraction.

[00:04:36] Speaker 04:
The Takahisa reference has no reason to crack benzene in the toluene rich fraction separately.

[00:04:42] Speaker 04:
And he argued that the Takahisa reference, if you did crack,

[00:04:45] Speaker 04:
a benzene-rich fraction separately.

[00:04:48] Speaker 04:
You'd lose free radicals that were important to that invention.

[00:04:51] Speaker 04:
If Netzer had intended to limit his invention to impure benzene, he would have made that expressed disclaimer in the file history to overcome the Takahisa reference.

[00:05:02] Speaker 03:
Is there anything in the record, and I realize that the record is pretty thin here because of the way the proceeding unfolded in the district court, about why

[00:05:16] Speaker 03:
shell as you allege it has done, would use the separation of toluene followed by cracking of mixture that includes benzene preceding the self-allaying process, what benefit it gets out of putting a different input, a cracked

[00:05:40] Speaker 03:
a benzene cracked, or not exactly, benzene is not cracking, but putting a different input into step four, does the sulfolane process get cheaper, get faster, or something, or are we just silent on that because the record is so skimpy?

[00:06:01] Speaker 04:
The record is thin.

[00:06:02] Speaker 04:
So we have seen in the record indications that Shell did make this change to where they began.

[00:06:08] Speaker 03:
You accuse it of doing so.

[00:06:09] Speaker 03:
So I mean, that's your infringement.

[00:06:11] Speaker 03:
Yes.

[00:06:11] Speaker 04:
But there is in the record a pre- and post-2009 flow diagram that shows that this change to crack.

[00:06:20] Speaker 03:
And is this a non-confidential part of the record?

[00:06:23] Speaker 04:
I don't believe so, but it is in the joint appendix.

[00:06:26] Speaker 03:
There's rather a lot that's marked confidential, including published patents and all kinds of things in the joint appendix.

[00:06:32] Speaker 03:
the whole joint appendix as confidential material practically.

[00:06:35] Speaker 04:
Yes.

[00:06:36] Speaker 03:
Including all kinds of things that are not confidential.

[00:06:39] Speaker 04:
We were doing our best to accommodate the protective order that the court entered.

[00:06:42] Speaker 04:
And so that we did file the information under seal as required by the court.

[00:06:53] Speaker 03:
Well, let me just get back to what I sort of understand to be

[00:06:59] Speaker 03:
point in in the specification you say there are new processes for making what is it ethyl benzene that's one of the potential that don't require such a pure benzene input and if you don't require that then you can now use a process to produce a somewhat less pure

[00:07:23] Speaker 03:
benzene product and one of the ways that we can do that is by this B and C steps that first separates the toluene and then puts into a cracker something that people hadn't been putting into a cracker before namely benzene because why would you put it in there it's not going to crack and why would you waste all the energy doing that but you now get a benefit out of that and I gather your point is

[00:07:51] Speaker 03:
That doesn't mean that we are limiting that to by the process that follows that.

[00:07:59] Speaker 03:
You can use this for anything.

[00:08:01] Speaker 03:
So my question is, would somebody of skill in the art have understood that the benefit of doing steps B and C, where you say the invention lies, would not extend to a separation process other than boiling point distillation?

[00:08:19] Speaker 04:
No, Your Honor.

[00:08:20] Speaker 04:
What someone of skill in the art reading the patent would recognize is that David Netzer saw a way to create pyrolysis gasoline in a different way.

[00:08:30] Speaker 04:
And he contended that this pyrolysis gasoline was a better way of creating benzene because it resulted in higher benzene concentration, but also co-produced ethylene.

[00:08:42] Speaker 04:
Again, that was a big part of this invention by using steps A, B, and C

[00:08:46] Speaker 04:
Not only do you get the benefit of moving benzene from a refinery source, the refermate, into the chemical chain, but you also get these valuable byproducts, ethylene.

[00:08:56] Speaker 04:
That's not something that happened before.

[00:08:58] Speaker 04:
And someone of skill in the art would see that that co-production is a benefit that doesn't turn on the way you separate out those chemicals.

[00:09:09] Speaker 02:
The next part.

[00:09:10] Speaker 02:
Isn't there another aspect of the fourth limitation which reads,

[00:09:16] Speaker 02:
fractionating pyrolysis gasoline to form a benzene product comprising at least 80%.

[00:09:25] Speaker 02:
Whereas Shell only fractionates to get to 57%.

[00:09:33] Speaker 04:
And of course, we read the term fractionation different.

[00:09:37] Speaker 04:
We are looking at the entire chain between pyrolysis gasoline and benzene.

[00:09:42] Speaker 04:
And we believe you should look to all six process units and all the steps.

[00:09:46] Speaker 04:
to determine fractionation.

[00:09:47] Speaker 04:
We don't think the read ends at the second distillation column.

[00:09:52] Speaker 02:
You know, one of the purposes of disclosure in a patent is precision.

[00:10:00] Speaker 02:
And if these terms are all slippery and indistinct, that doesn't lead to a very clear patent.

[00:10:11] Speaker 04:
The term fractionating, I don't agree is slippery.

[00:10:15] Speaker 04:
Fractionating is a clear word.

[00:10:17] Speaker 04:
It is a functional variation of the word fraction, and it means getting to fractions.

[00:10:22] Speaker 04:
And he was specific to distillation when he intended it.

[00:10:26] Speaker 04:
The word distillation appears throughout the disclosure, and he chose not to use it here.

[00:10:30] Speaker 04:
That choice has meaning.

[00:10:32] Speaker 04:
So I disagree with the premise.

[00:10:34] Speaker 03:
Can I ask you, let's assume, for purposes of this question,

[00:10:39] Speaker 03:
that fractionating in step four, claim one, is limited to boiling point separation as opposed to separation for something else.

[00:10:48] Speaker 03:
Then the question arises, was it proper to grant summary judgment of no literal infringement?

[00:10:54] Speaker 03:
Do I take it your argument on that, on this assumption, which I know that you disagree with your primary argument, is that when it says fractionating the pyrolysis gasoline to form a purified benzene product,

[00:11:08] Speaker 03:
That doesn't mean fractionating by boiling point separation and nothing else.

[00:11:12] Speaker 03:
You can have other steps in there the way your preferred embodiment has a hydro-treater step as part of step four.

[00:11:20] Speaker 04:
Correct.

[00:11:20] Speaker 04:
And there's two points I want to make sure are clear.

[00:11:23] Speaker 03:
And therefore, the accused product or the accused process has several boiling point distillations, you say, but also some other stuff, but your literal infringement contention on

[00:11:36] Speaker 03:
on the claim construction implicitly adopted by the district court is that you can still accuse that of coming within fractionating because this doesn't say fractionating and no other process to form it.

[00:11:49] Speaker 04:
Correct.

[00:11:49] Speaker 04:
And the two points, the first is the one that you just made wonderfully, which is fractionation does not mean only fractionation.

[00:11:56] Speaker 04:
The preferred embodiment has other steps.

[00:11:58] Speaker 04:
But the other point I want to make sure and point out is shell oversells extraction's role

[00:12:05] Speaker 04:
in the sulfalane process.

[00:12:07] Speaker 04:
So I do want to turn you to their brief at page 10.

[00:12:13] Speaker 04:
If you turn to that.

[00:12:18] Speaker 02:
Well, doesn't extraction go from 57% to 99 plus?

[00:12:23] Speaker 02:
Isn't that extraction?

[00:12:25] Speaker 04:
So let me address that right here.

[00:12:27] Speaker 04:
So this is where Shell first addresses the sulfalane separation.

[00:12:30] Speaker 04:
And Shell says, in the sulfalane process,

[00:12:32] Speaker 04:
The benzene concentrate is fed to the extractor containing the sulfalane solvent.

[00:12:37] Speaker 04:
The sulfalane has a preferential affinity for aromatics.

[00:12:40] Speaker 04:
And then there's an ellipsis.

[00:12:42] Speaker 04:
Shell used the ellipsis to gloss over the role of volatility in the sulfalane separation.

[00:12:49] Speaker 04:
So they cite to page A272, and that is a Shell's engineer's declaration.

[00:12:54] Speaker 04:
So here's the part they left out.

[00:12:56] Speaker 04:
The sulfalane has a preferential affinity for aromatics, effectively making benzene behave

[00:13:03] Speaker 04:
as if it was less volatile, boil at a higher temperature than the non-aromatics.

[00:13:09] Speaker 04:
What Shell's engineer says is, sulfalane makes benzene behave less volatile.

[00:13:14] Speaker 04:
So the solvent's important, and the extraction's important.

[00:13:17] Speaker 04:
But the solvent allows the volatility to change to allow separation by distillation.

[00:13:24] Speaker 04:
So the sulfalane separation is not extraction alone.

[00:13:27] Speaker 04:
It's extraction working hand-in-hand with distillation.

[00:13:31] Speaker 04:
And I'm already most of the way through my rebuttal time, so I'd like to reserve my two minutes.

[00:13:35] Speaker 00:
Bye.

[00:13:35] Speaker 00:
Thank you.

[00:13:40] Speaker 01:
Good morning, Your Honors, and may it please the court.

[00:13:42] Speaker 01:
Kathleen Sullivan for Shell.

[00:13:44] Speaker 01:
Judge Laurie had the case exactly right.

[00:13:46] Speaker 01:
Fractionation was written with specificity in this patent, and fractionation was properly construed.

[00:13:53] Speaker 03:
Can I ask you, where does the patent ever use the word fractionation alone in a way that limits what I take it from the joint appendix to be an extremely common and old generic use of the term to mean break it into parts?

[00:14:10] Speaker 01:
Not so, Your Honor.

[00:14:11] Speaker 01:
Fractionation is a specific term used two places in the patent.

[00:14:17] Speaker 01:
The genus is separation.

[00:14:20] Speaker 01:
And there are two species at stake here.

[00:14:22] Speaker 01:
One is fractionation, which is properly construed as separation by boiling points.

[00:14:26] Speaker 03:
Rather than fight the question.

[00:14:28] Speaker 03:
I read about six pieces of prior art as using the word fractionation as a genus.

[00:14:35] Speaker 03:
Now you say, I don't think there's any contrary prior art in the joint appendix.

[00:14:41] Speaker 03:
So you say in this patent, fractionation is only a species, boiling point separation as opposed to others.

[00:14:48] Speaker 03:
Where is that indicated by use of the term fractionation without an adjective in front of it?

[00:14:58] Speaker 01:
Your Honor, the term fractionation in step four is distinct from the term separation in step two.

[00:15:04] Speaker 03:
Let's start at eight.

[00:15:05] Speaker 03:
I'm sorry.

[00:15:06] Speaker 03:
That's a grammar point, not a science point.

[00:15:09] Speaker 03:
Fractionation applies to the whole.

[00:15:11] Speaker 03:
You would never say fractionate part A from part B. You would never say separate the whole.

[00:15:19] Speaker 03:
You need in clause B.

[00:15:22] Speaker 03:
because what comes after it, separate this part from this other part.

[00:15:26] Speaker 03:
You could not grammatically have used the word fractionate in step B. So that doesn't indicate that fractionation applies to only some subclass of techniques.

[00:15:41] Speaker 03:
It's simply an English language aspect of the fact that the direct object of fractionate is not the parts, it's the whole.

[00:15:50] Speaker 01:
Respectfully disagree, Your Honor, that the term fractionate without an adjective is crucial to the precision of step four.

[00:15:57] Speaker 01:
Step four says that what you do to the pyrolysis gasoline at step four to get to 80% pure benzene is fractionate.

[00:16:04] Speaker 01:
Now, if we go back to the part of the specification Judge Laurie was referring to earlier, which is page 820, column 2, lines 17 through 20.

[00:16:14] Speaker 01:
The azeotrope.

[00:16:19] Speaker 01:
The azeotrope section.

[00:16:20] Speaker 01:
And Your Honor, now Judge Toronto, I know you said, where is fractionation without an adjective?

[00:16:24] Speaker 01:
And the word conventional is here.

[00:16:26] Speaker 01:
But I want to focus on the more important aspect of the contrast here.

[00:16:30] Speaker 01:
If we go to column two, we see that Netzer says he's come to solve a problem.

[00:16:36] Speaker 01:
It's the problem you referred to earlier, Your Honor, which is the problem of trying to use crackers to produce less pure benzene for a new market.

[00:16:44] Speaker 01:
Here's what he says in column two.

[00:16:46] Speaker 01:
He says, there's a problem because of azeotropes.

[00:16:50] Speaker 01:
that makes conventional fractionation impossible.

[00:16:53] Speaker 01:
What's the problem?

[00:16:54] Speaker 01:
The problem is, azeotropes create a liquid mixture of uniform boiling point.

[00:17:01] Speaker 01:
So without boiling point differentials, we can't fractionate.

[00:17:05] Speaker 01:
Fractionate here means distillation.

[00:17:07] Speaker 01:
Distillation means separation by using boiling point differentials.

[00:17:11] Speaker 03:
I'm sorry, but what you want to do is keep mushing together things that are stated more precisely.

[00:17:18] Speaker 03:
If you're using conventional fractionation, which is boiling point separation, then there's a problem with azeotropes.

[00:17:25] Speaker 03:
That doesn't say, once I take a step to solve that problem, that step is inapplicable to any form of separation that you later may choose to use.

[00:17:36] Speaker 01:
Well, Your Honor, that's so.

[00:17:37] Speaker 01:
But the key is that what I want to focus, Your Honor, on is the next paragraph.

[00:17:41] Speaker 01:
The next paragraph, Netzer tells us that the conventional way of solving, the conventional, I'm on column two.

[00:17:48] Speaker 01:
starting at line 21, page 820, column 2, starting at line 21.

[00:17:54] Speaker 01:
The conventional method of benzene purification and separation from the above azeotropes is by aromatic extraction or extractive distillation processes, such as UOP's sulfalane process.

[00:18:08] Speaker 01:
That is our Shell's accused process.

[00:18:11] Speaker 01:
So Netzer has identified our process, UOP sulfalane, as extraction, as an extractive process.

[00:18:18] Speaker 01:
And he said it solves the azeotrope problem.

[00:18:21] Speaker 01:
Why is that?

[00:18:22] Speaker 01:
Because it uses solubility differentials.

[00:18:25] Speaker 01:
That's not disputed, Your Honor.

[00:18:26] Speaker 01:
Even my adversary has said in his brief that extraction is a technique that solves separation problems by solubility differentials, not by boiling point differentials.

[00:18:37] Speaker 01:
So Your Honor, just to summarize, this section is contrasting fractionation, whether conventional or otherwise, on the one hand, with extraction

[00:18:46] Speaker 01:
or extractive processes, on the other hand.

[00:18:50] Speaker 01:
And Netzer is saying, I've come along because there's a problem in the fractionation world, azeotropes.

[00:18:57] Speaker 01:
Shell has solved that through extraction, which is a solubility-based separation.

[00:19:03] Speaker 01:
Because we extract, Your Honor, we can't be practicing step four.

[00:19:07] Speaker 01:
We can't be fractionating because we're using solvents.

[00:19:11] Speaker 01:
And if I could just go back to the key, the key non-infringement evidence is not disputed.

[00:19:15] Speaker 01:
The evidence about Shell's processes is in the record at A940 to 941.

[00:19:20] Speaker 01:
And I have no confidentiality bar whatsoever in sharing with you what Judge Laurie has already described.

[00:19:28] Speaker 01:
The extraction process that Shell practices is the one that purifies benzene from 57% by weight to 99% by weight.

[00:19:38] Speaker 01:
So the process, the undisputed step in Shell's sulfalane process that practices step four of claim one

[00:19:46] Speaker 01:
is not fractionation, it's extraction.

[00:19:49] Speaker 01:
It's the use of solvents, not boiling or heat.

[00:19:53] Speaker 01:
And because the way we get from 57% benzene to over 80% benzene, which is required by the precise words of step four, is extraction, not fractionation.

[00:20:05] Speaker 01:
Your Honor's question, with respect, it doesn't matter whether we're talking about conventional fractionation or ordinary fractionation by distillation.

[00:20:13] Speaker 01:
The key point is we perform

[00:20:16] Speaker 01:
the crucial separation step through extraction.

[00:20:21] Speaker 01:
And that's undisputed.

[00:20:22] Speaker 01:
It's at 940 to 941.

[00:20:24] Speaker 01:
It's the undisputed record of what our process is.

[00:20:27] Speaker 01:
And because we rely on extraction, we can't, as Judge Laurie already described, infringe step four.

[00:20:34] Speaker 01:
So Your Honor, if I could respectfully just suggest the genus is separation, there are multiple- Can I ask you back on that first point?

[00:20:42] Speaker 03:
Yeah.

[00:20:43] Speaker 03:
I didn't see, but maybe I missed it.

[00:20:46] Speaker 03:
any source in extra patent materials that contradicted the proposition that the word fractionation is quite commonly used as a genus for all methods of breaking apart and separating, not just boiling point methods.

[00:21:06] Speaker 01:
Your Honor, I prefer you to read brief pages 23, 24.

[00:21:10] Speaker 01:
Read brief pages 23, 24.

[00:21:14] Speaker 01:
Look, we admit that the extrinsic

[00:21:16] Speaker 01:
Evidence is mixed.

[00:21:17] Speaker 01:
Sometimes people use fractionation to sound like it means lots of means of separation.

[00:21:24] Speaker 01:
We offer on pages 23 and 24 lots of external dictionaries and treatises, several dictionaries and treatises that say it used fractionation precisely to mean, as Judge Laurie said, distillation.

[00:21:35] Speaker 01:
Can I ask about this?

[00:21:38] Speaker 03:
There are two different things you can say about extrinsic evidence that

[00:21:41] Speaker 03:
or uses outside the patent that use the term in two different ways.

[00:21:46] Speaker 03:
One is there are different uses, all of which are perfectly permissible, and others are, no, nobody would ever use this term to mean anything other than boiling point distillation.

[00:22:00] Speaker 03:
I didn't take it that any of these uses did anything but say fractionation covers a lot of different kinds of separation.

[00:22:08] Speaker 01:
Your Honor, we cite the outside evidence, including opinions of this court, at the bottom of 23 and the top of 24, that use fractionation in the sense that the Netzer patent uses fractionation, meaning fractionation is separation by boiling points.

[00:22:22] Speaker 03:
And what do you do with the evidence going back to, I think the earliest one is 1957 patent and then 1963 patent, and then on and on and on, talking about all kinds of different non-boiling point fractionations?

[00:22:35] Speaker 01:
Your Honor, then I would say that Netzer should have written his patent differently.

[00:22:38] Speaker 01:
If Netzer wanted to take advantage of fractionation as a generic term for all kinds of separation.

[00:22:43] Speaker 01:
But the word is just fractionating.

[00:22:45] Speaker 03:
There's no modifier in step four.

[00:22:48] Speaker 01:
But Your Honor, the term fractionation is distinguished from extraction by Netzer himself.

[00:22:53] Speaker 01:
The specification informs the claim.

[00:22:56] Speaker 01:
With respect, I don't think we should even be talking about extrinsic evidence, because inside the world of this patent,

[00:23:01] Speaker 01:
The specification at column two informs the claim at column seven, step four.

[00:23:07] Speaker 01:
And it's Netzer himself who said, listen to me, folks.

[00:23:11] Speaker 01:
There's a problem with fractionation.

[00:23:13] Speaker 01:
He says there's a problem with conventional fractionation, and the problem is azeotropes.

[00:23:18] Speaker 01:
And here's how I'm going to solve it.

[00:23:19] Speaker 01:
I'm going to come along and crack before you fractionate.

[00:23:21] Speaker 01:
Now, we're not on those steps.

[00:23:23] Speaker 01:
We're just on step four.

[00:23:24] Speaker 01:
That's the only thing that's before the court.

[00:23:26] Speaker 01:
And he said, why is my technique better?

[00:23:29] Speaker 01:
Because that stuff that Shell does, the UOP process, that solves azeotropes through solvents, through solubility, through extraction, not boiling points.

[00:23:40] Speaker 01:
But that's too expensive.

[00:23:41] Speaker 01:
That's too expensive, and it makes the benzene too pure.

[00:23:44] Speaker 01:
More than the market needs, there's a market shift.

[00:23:46] Speaker 01:
That's why I gave you the invention.

[00:23:47] Speaker 01:
It's the major driving force behind my invention.

[00:23:49] Speaker 01:
What we learn from Netzer then, we want to live inside the patent until it's not clear, what we learn from Netzer is he thinks fractionation, whether conventional or otherwise,

[00:23:59] Speaker 01:
is different from extraction or extractive distillation, those processes have to be, they have to be different from fractionation because they solve the boiling point problem and they have to do it by something other than boiling points.

[00:24:15] Speaker 03:
Can I ask you the same question I asked Mr. Garza?

[00:24:18] Speaker 03:
Is there anything in the record that indicates whether if you use the sulfalane process

[00:24:25] Speaker 03:
the extraction process, there's any benefit to doing what they accuse you of doing, namely going through the other steps as a precursor to that?

[00:24:37] Speaker 01:
Your Honor, no there is not because the record on summary judgment is limited to step four and with respect we think the district court's judgment should be affirmed because the construction of fractionation and separation by boiling points is correct and we don't infringe step four.

[00:24:52] Speaker 01:
But to end, and your honor, we have been doing this process for 50 years.

[00:24:56] Speaker 01:
It's our patented process, Selfilane.

[00:24:58] Speaker 01:
And we've been doing it to produce pure benzene to sell to a pure benzene market.

[00:25:02] Speaker 01:
That's what we do.

[00:25:03] Speaker 01:
Netzer came along and he said, who needs such pure benzene?

[00:25:05] Speaker 01:
There's a market shift.

[00:25:06] Speaker 01:
I can help you with crackers to allow you to fractionate after cracking.

[00:25:10] Speaker 03:
And another evidentiary question, is there any evidence about whether

[00:25:14] Speaker 03:
for 50 years, or it's only more recent that you started doing what they accuse you of doing, which is doing something before you get to the self-finding process that includes steps B and C?

[00:25:26] Speaker 01:
Well, Your Honor, let me be clear.

[00:25:28] Speaker 01:
We do not dispute that we fractionate.

[00:25:31] Speaker 03:
I'm asking a timing question.

[00:25:32] Speaker 01:
There is no evidence in the record on that question, Your Honor.

[00:25:36] Speaker 01:
But I want to be clear.

[00:25:37] Speaker 01:
We don't dispute that there is fractionation as properly construed in this patent earlier in our process.

[00:25:44] Speaker 01:
It's just that as Judge Flory said, the fractionation through distillation doesn't get you over 80% pure benzene.

[00:25:51] Speaker 01:
It only gets you to 57%.

[00:25:53] Speaker 01:
And that's undisputed.

[00:25:54] Speaker 01:
That's record 940, 941.

[00:25:56] Speaker 01:
It's the chart in the blue brief itself at page 15.

[00:26:00] Speaker 01:
And if the things we do that are fractionation through boiling points only get you to 57%, we're not getting over the 80% threshold that is the precise requirement at step four.

[00:26:11] Speaker 01:
Your Honor, if Mr. Netzer had meant fractionation to include extraction, he could have written the patent to say fractionation or extraction, or he could have used the term separation in step four, but he didn't.

[00:26:24] Speaker 01:
And Your Honor, as to the other claims, my friend referred to other claims, and he said, well, look at these other claims, claim three and claim 11 that refer to conventional fractionation in a distillation column.

[00:26:37] Speaker 01:
That doesn't mean that fractionation is broader than distillation.

[00:26:41] Speaker 01:
I mean, cooking is a genus.

[00:26:43] Speaker 01:
Sauteing and baking are species.

[00:26:45] Speaker 01:
If I say I'm sauteing in a frying pan, it doesn't mean that frying includes baking.

[00:26:51] Speaker 01:
It doesn't mean that sauteing includes baking.

[00:26:54] Speaker 01:
A frying pan, like a distillation column, is just an apparatus for performing the method.

[00:26:59] Speaker 01:
So we would say that Netzer wrote this patent, and we know from his specification, so we don't need to get to the other patents, and we don't need to get to the extrinsic evidence at all, to define fractionation.

[00:27:11] Speaker 01:
as different from extraction.

[00:27:13] Speaker 01:
And we know that he defined fractionation as boiling point separation, because he told us that it can't break azeotropes.

[00:27:22] Speaker 01:
If there wasn't an azeotrope problem with fractionation, if there wasn't a boiling point problem with the azeotropes, then fractionation wouldn't have a problem.

[00:27:32] Speaker 01:
So the specification at 2 really tells us that fractionation in this patent means separation by boiling point.

[00:27:41] Speaker 01:
And you need not go to the extrinsic evidence, Your Honor, which we admit is mixed.

[00:27:44] Speaker 01:
But we think that the better of the extrinsic evidence favors our interpretation of fractionation as boiling point separation.

[00:27:53] Speaker 01:
We think that you can read the dictionaries as well as the district court.

[00:27:57] Speaker 01:
We also think the district court, to the extent there's a factual question about the extrinsic evidence, he had this debate before him.

[00:28:03] Speaker 01:
My friend said, fractionation means any kind of separation.

[00:28:07] Speaker 01:
We said, no, fractionation means separation by boiling point.

[00:28:10] Speaker 01:
The court had the extrinsic evidence.

[00:28:11] Speaker 01:
He resolved the claim construction in our favor and, by implication, rejected their extrinsic evidence.

[00:28:17] Speaker 01:
But Your Honor, you need not go beyond the extrinsic evidence to hold that.

[00:28:21] Speaker 01:
Fractionation is properly construed as boiling point based.

[00:28:24] Speaker 01:
Netzer told us that in column two in the specification.

[00:28:28] Speaker 01:
He could have written it differently.

[00:28:29] Speaker 01:
He didn't.

[00:28:30] Speaker 01:
We don't practice any fractionation by boiling point.

[00:28:35] Speaker 01:
at the point when we change benzene purity to be greater than 80%.

[00:28:39] Speaker 01:
We take it from 57% to 99% through extraction, not fractionation.

[00:28:44] Speaker 01:
The district court's judgment of non-infringement should be affirmed.

[00:28:47] Speaker 01:
Thank you.

[00:28:48] Speaker 04:
Thank you.

[00:28:53] Speaker 04:
All right.

[00:28:53] Speaker 04:
I have two very quick points.

[00:28:55] Speaker 04:
First, there is evidence in the record on timing at A949.

[00:29:00] Speaker 04:
The shell has a flow diagram that shows how they used to perform the process in February 2009.

[00:29:05] Speaker 04:
And they did not separate out of benzene rich fraction.

[00:29:08] Speaker 04:
They did not crack it.

[00:29:09] Speaker 04:
Now, there wasn't depositions.

[00:29:11] Speaker 04:
We don't know.

[00:29:12] Speaker 03:
And the point of the question, and I assume the point of the answer, is that it suggests there is actually some benefit to the sulfolane blast step.

[00:29:24] Speaker 03:
process of doing the steps B and 3, your new cracking process?

[00:29:29] Speaker 04:
Yes.

[00:29:30] Speaker 04:
Again, we don't know.

[00:29:31] Speaker 04:
But I do have in my reply brief what I believe to be an explanation for this.

[00:29:35] Speaker 04:
But again, we don't know.

[00:29:36] Speaker 04:
The timing of Shell's change was February 2009.

[00:29:39] Speaker 04:
And as we state in our reply brief, in 2007, EPA did lower the amount of benzene that was allowed in gasoline.

[00:29:48] Speaker 04:
So this is one major benefit of the patent.

[00:29:50] Speaker 04:
You take reformate that has benzene,

[00:29:53] Speaker 04:
you now can't use that reformate in your gasoline pool because the reformate has a lot of benzene.

[00:29:59] Speaker 04:
So using Netzer's invention, you get to take reformate that would normally go into the gasoline pool, separate out the benzene, and transfer it to your chemical processes to purify benzene.

[00:30:11] Speaker 04:
So that's why I believe Shell made this change.

[00:30:15] Speaker 04:
The timing was so that they could reduce the benzene in their gasoline.

[00:30:19] Speaker 04:
But again, without depositions, it's not something we know for sure.

[00:30:23] Speaker 04:
And that's about my time.

[00:30:26] Speaker 03:
So we do have one more time I mean address what what is I take it actually the only argument, but it's not a bad argument from from shell the column two says you thought this up because there's a problem with Not being able to use boiling point separation and

[00:30:48] Speaker 03:
unless you do something because of the azeotropes, right?

[00:30:55] Speaker 03:
What is it that says, nevertheless, the solution you adopted to address that problem is a solution that we intend to be usable even when you don't use distillation, but some other separation process after you've gone through it?

[00:31:13] Speaker 04:
Well, the best evidence I have for that is the bile history.

[00:31:17] Speaker 04:
where the file history does admit at a page A261 that this is a particularly good useful method for creating dilute benzene.

[00:31:27] Speaker 04:
But they stopped short of disclaiming ultra-high pure benzene.

[00:31:31] Speaker 04:
Again, they had the chance to do it.

[00:31:33] Speaker 04:
They didn't do it.

[00:31:35] Speaker 04:
And that's what happened.

[00:31:38] Speaker 00:
Thank you.

[00:31:38] Speaker 00:
We thank both counsel and the cases submitted.

[00:31:41] Speaker 04:
Thank you.