[00:00:01] Speaker 03:
Your Honors, this case involves a patent, the 330 patent, which claims a natural composition for use in preventing the formation of ice or snow on outdoor surfaces, roadways primarily, and also for de-icing those particular surfaces.

[00:00:20] Speaker 03:
Upon its issuance in 2000, the product, which was produced under the trade name GeoMelt, enjoyed wild success.

[00:00:32] Speaker 03:
And that success is evident in the file wrapper of this reexamination.

[00:00:38] Speaker 03:
In particular, eight different articles and memos talking about its success, 14 different declarations from customers regarding its success, declaration from a manufacturer who produced the product, and a declaration from the inventor talking about the licensing that he'd engaged in of the 330 patents.

[00:01:02] Speaker 03:
Also, the third party requester for the re-examination that ultimately occurred in 2009 and 2010 even produced, even had a product data sheet talking about what a great invention this is and how it was all produced under the 330 patent.

[00:01:20] Speaker 02:
The board essentially said that all this objective addition of non-obviousness is irrelevant because there's nothing new

[00:01:32] Speaker 02:
about the product.

[00:01:34] Speaker 02:
In other words, you can't have a nexus to a novel feature if, in fact, the novel feature doesn't exist.

[00:01:41] Speaker 03:
Yes, Your Honor, that is what the Board said.

[00:01:43] Speaker 03:
And I think the Board was wrong for a couple of very specific reasons.

[00:01:46] Speaker 03:
First of all, as you know, Your Honor, this Court has said multiple times that if a product within the scope of the invention is sold and has success, there is a presumption

[00:02:01] Speaker 03:
of a nexus.

[00:02:02] Speaker 03:
The court has said that many, many times.

[00:02:04] Speaker 03:
The board didn't address that at all.

[00:02:07] Speaker 03:
And what I think the court made its mistake on was that it relied primarily on two prior art references, the Zizlaw reference and the public works reference.

[00:02:18] Speaker 03:
And both of those references, quite frankly, are different products.

[00:02:24] Speaker 02:
Why did you use the phrase in discussing Zizlaw that you said,

[00:02:30] Speaker 02:
It may not be equivalent to DSBM.

[00:02:36] Speaker 02:
Isn't your argument that it's not?

[00:02:38] Speaker 02:
It is not.

[00:02:39] Speaker 03:
It is not equivalent.

[00:02:40] Speaker 03:
I will say that unequivocally, Your Honor.

[00:02:42] Speaker 04:
But isn't the core of your argument that there really isn't substantial evidence to support the prima facie case that the examiner made?

[00:02:49] Speaker 03:
Yes, Your Honor.

[00:02:50] Speaker 04:
And that's what I understood where you really were, because you said there's no showing that

[00:02:55] Speaker 04:
The stuff in the Polish reference isn't just molasses as opposed to de-sugar?

[00:02:59] Speaker 03:
Correct.

[00:03:00] Speaker 03:
That is absolutely right.

[00:03:02] Speaker 04:
And you made that point very early on.

[00:03:04] Speaker 04:
In fact, in response to the first rejection, you say it's not the same stuff.

[00:03:11] Speaker 04:
Correct.

[00:03:12] Speaker 04:
And you believe that if that showing can't be made, if there isn't substantial evidence, you don't put Z and daily together.

[00:03:23] Speaker 04:
There's no prima facie case.

[00:03:24] Speaker 04:
You never need to get to the secondary consideration.

[00:03:27] Speaker 04:
The case goes back.

[00:03:28] Speaker 03:
Yes, Your Honor.

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

[00:03:30] Speaker 03:
Zita's law, where as you referenced, the Zita.

[00:03:33] Speaker 04:
So I mean, how are we going to find this out?

[00:03:36] Speaker 04:
I mean, molasses that's made from sugar beets, if you look it up, it's typically considered to have 50% sugar.

[00:03:46] Speaker 04:
And that's what the Polish reference has, right?

[00:03:51] Speaker 03:
Correct.

[00:03:51] Speaker 03:
The Polish reference is 15%.

[00:03:52] Speaker 04:
15% sugar and then it's got a bunch of carbohydrates.

[00:03:58] Speaker 03:
Correct.

[00:03:59] Speaker 04:
And the examiner's view was, well, you can add the carbohydrates to the sugar because carbohydrates sooner or later turn into sugar, right?

[00:04:08] Speaker 03:
I don't know that the examiner specifically said that.

[00:04:11] Speaker 03:
He adds them up.

[00:04:12] Speaker 03:
He does add them up.

[00:04:13] Speaker 04:
But the examiner didn't make any showing that all carbohydrates all metabolize to sugar at the same time, right?

[00:04:20] Speaker 04:
Which they don't.

[00:04:21] Speaker 03:
There was absolutely no showing of that.

[00:04:23] Speaker 04:
And part of your argument was that you really can't mix sugar, carbohydrates, and sugar together to get a larger percentage in daily.

[00:04:31] Speaker 03:
No, that's absolutely part of it, or a large part of it, Your Honor.

[00:04:35] Speaker 03:
The fact of the matter is even

[00:04:37] Speaker 03:
The daily reference, and again, we think the daily reference is not analogous art for a lot of different reasons, but even the daily reference says that DSBM, desugared sugar beet molasses, by definition has to be less than 30% sucrose, less than 30% sugar.

[00:04:54] Speaker 03:
And Zata's law expressly says it's 50% sugar.

[00:04:59] Speaker 03:
It's made by a different process.

[00:05:01] Speaker 03:
It is molasses.

[00:05:03] Speaker 04:
Our invention is... But is that something one of ordinary skill in the art would understand that definition at 30% and would accept it in making that argument?

[00:05:12] Speaker 03:
Well, first of all, there was no showing of what the person of ordinary skill in the art, who that person was, or what that person would know at all.

[00:05:20] Speaker 03:
That wasn't even discussed at the office.

[00:05:24] Speaker 03:
And I believe, as I understand it, that a person of ordinary skill in the art would recognize that those are two different things.

[00:05:33] Speaker 03:
The novelty and the non-obviousness of the 330 patent was the fact that it was relying on de-sugared sugar beet molasses.

[00:05:44] Speaker 03:
It was not as a result of the distillation of alcohol, which is what was shown in public works.

[00:05:50] Speaker 03:
That was the public works disclosure was the byproduct of the distillation of alcohol.

[00:05:55] Speaker 03:
That is expressly disclaimed in the 330 patent.

[00:06:01] Speaker 03:
Zitta's law is molasses.

[00:06:04] Speaker 03:
Our invention is desugared sugar beet molasses.

[00:06:09] Speaker 04:
And the way you make molasses is by desugaring sugar beets.

[00:06:16] Speaker 03:
Well, I'm not so sure.

[00:06:18] Speaker 04:
Well, I mean, if you look it up, the process for making molasses goes through a series of process where you expose the sugar beet to a number of processes, and you suck the juice off.

[00:06:30] Speaker 04:
And then you're left with something, and you centrifuge it, and you throw some of the crystals out.

[00:06:35] Speaker 03:
Well, and I think you are hitting on, Your Honor, the difference in Zeta's law.

[00:06:40] Speaker 03:
Zeta's law talks about simply centrifuging a sugar beet concentrate.

[00:06:47] Speaker 04:
Whereas if you look at the processes that are disclosed in the... What I'm saying is that if you look it up, that's what you do to make molasses.

[00:06:55] Speaker 03:
And molasses has significant sugar concentrations in it.

[00:06:59] Speaker 03:
that is desugared sugar bead molasses includes significantly less and in the Stefan process in particular results in 15 percent-ish sugar.

[00:07:10] Speaker 02:
I mean that's the whole point of calling it desugared.

[00:07:12] Speaker 03:
That is the whole point of calling it desugared.

[00:07:14] Speaker 02:
So let me ask you about daily.

[00:07:16] Speaker 02:
I know you say daily is in a different field, a technological field, but does it have to be precisely in the same field if it's dealing with

[00:07:29] Speaker 02:
desugared molasses?

[00:07:31] Speaker 02:
I mean, couldn't you say that it doesn't really matter what field it's in?

[00:07:36] Speaker 02:
Wouldn't one of skill in the art look to any system that's using desugared molasses for a variety of purposes?

[00:07:42] Speaker 03:
I don't think so, Your Honor.

[00:07:44] Speaker 03:
This Court has said many times that in order to be analogous, it either has to be in the same field or reasonably pertinent to the same field.

[00:07:52] Speaker 03:
And if you look at the fields here, the field for the 330 patent is de-icing

[00:07:58] Speaker 03:
roadways, cut to the chase, de-icing roadways.

[00:08:03] Speaker 03:
And while the field for Daly is tire ballast, and the board essentially said, well, they're both used outside.

[00:08:14] Speaker 03:
Well, that's not reasonably pertinent, Your Honor.

[00:08:18] Speaker 02:
The fact of the matter is somebody who is looking at... Well, they're both used outside, and when it's important that it has a particular freezing point,

[00:08:28] Speaker 03:
Possibly.

[00:08:29] Speaker 03:
Possibly.

[00:08:30] Speaker 04:
But in your client's own patent, he cites it daily and says, we looked at daily, we incorporate daily herein, entirety, and we looked at it for the properties of D, sugar, and sugar beam plastics.

[00:08:42] Speaker 03:
Well, Your Honor, I wouldn't.

[00:08:44] Speaker 04:
That's in column five of your patent.

[00:08:45] Speaker 03:
Yes, I know exactly.

[00:08:47] Speaker 03:
Your Honor, and I would disagree slightly in that regard.

[00:08:50] Speaker 03:
First of all, merely citing to a prior art reference does not

[00:08:55] Speaker 03:
is not some admission of materiality.

[00:08:58] Speaker 03:
It is not some admission that it is material to determine whether that reference is relevant to an obviousness analysis.

[00:09:10] Speaker 02:
It might be indicative of whether one skilled in the art would even look at it, right?

[00:09:15] Speaker 03:
But you have to remember why Daly was cited.

[00:09:18] Speaker 03:
He's citing it for the properties.

[00:09:21] Speaker 04:
He said, we are citing this disclosure that it relates the production of de-sugar and the properties thereof.

[00:09:32] Speaker 03:
I'm sorry, Your Honor.

[00:09:33] Speaker 04:
Yeah, and that would pick up your definition of 30%, right?

[00:09:36] Speaker 03:
That would pick up the definition of 30%.

[00:09:38] Speaker 03:
And it's the properties of the Stefan method of producing.

[00:09:42] Speaker 03:
But I think if you read that entire paragraph,

[00:09:45] Speaker 03:
What you see is that the inventor is citing today primarily to say, to identify where you can buy desugared sugar beet molasses that is made by the Stefan process.

[00:09:57] Speaker 03:
There's a whole list of manufacturers and it is those manufacturers and the concept

[00:10:05] Speaker 03:
of de-sugared sugar beet molasses that it is cited for.

[00:10:09] Speaker 03:
But it's not cited for the fact that it is relevant prior art that a person of ordinary skill in the art would have looked to at the time of this invention.

[00:10:19] Speaker 04:
The simple fact is when you are talking about... But if you're studying the question of whether or not de-sugared sugar beet molasses has any effect on melt or on... Melt is the other side of prohibiting freezing.

[00:10:36] Speaker 04:
They'd hunt around and they would find out, you know, it does go to Google and ask whether or not desugared sugar beet molasses interferes with freezing and this daily will pop up.

[00:10:49] Speaker 03:
Well, I would respectfully disagree, Your Honor.

[00:10:52] Speaker 03:
And what daily doesn't talk about, daily talks about the ability to put the stuff, whatever the stuff is, the desugared sugar beet molasses into the tire.

[00:11:03] Speaker 03:
And it has the added benefit of not corroding the metal rim.

[00:11:08] Speaker 03:
What was going on, what the inventor was dealing with at the time, was trying to de-ice, trying to have long-lasting effect on roadways and keep them de-iced in the middle of a storm.

[00:11:21] Speaker 03:
The ability to spray the material efficiently

[00:11:26] Speaker 03:
And so it doesn't clog the sprayers that you see on the roadways.

[00:11:31] Speaker 03:
That was the major focus of, and to avoid odor, and to avoid, to be biologically inert.

[00:11:42] Speaker 02:
There's a lot of different... Is the question of what one skilled in the art would look to in terms of any other prior art, is that a question of fact?

[00:11:51] Speaker 03:
is what a person, I think there has to be, it has to be supported by substantial evidence.

[00:11:56] Speaker 02:
Okay.

[00:11:56] Speaker 02:
So we have to review it for substantial evidence.

[00:11:58] Speaker 03:
Yes.

[00:11:59] Speaker 03:
And again, and I see that I'm into my response time, but very quickly, your honor, I think the fact of the matter is we have to be very cautious.

[00:12:07] Speaker 03:
Again, this court has warned the office many, many times not to too broadly define in Transocean, in Enrique Clay, in Enrique Clay, I should specifically say,

[00:12:21] Speaker 03:
This court warned against too broadly defining the fields that are reasonably pertinent to the invention at hand.

[00:12:29] Speaker 03:
And I think that's exactly the mistake.

[00:12:31] Speaker 04:
Come back to the key case on the prima facie case and whether or not the examiner was right in the first place.

[00:12:37] Speaker 04:
Don't you really have to.

[00:12:39] Speaker 04:
upset the prima facie case in order to get real legs on your secondary consideration argument?

[00:12:46] Speaker 03:
No, Your Honor.

[00:12:46] Speaker 03:
I don't... Why not?

[00:12:47] Speaker 04:
Because if the materials are the same or similar to the same, then they're in the prior art.

[00:12:55] Speaker 04:
Your Honor, I think, and again... I mean, you've got the Polish patent alone.

[00:13:01] Speaker 04:
If it's the stuff, if that molasses is actually desugared sugar beet molasses,

[00:13:07] Speaker 04:
as being used for exactly what your client wants to use his stuff for, then why isn't Z alone something that's in the priority?

[00:13:15] Speaker 04:
Well, again, we think Z is... That's what I'm saying, but if you've got a win on, you've got to get Z out, right?

[00:13:23] Speaker 03:
That's an important consideration, but as, again, this court said in Transocean, even in the face of a prima facie case of obviousness, solid evidence of secondary considerations may be sufficient to hold that a particular invention was not obvious.

[00:13:36] Speaker 03:
So I think

[00:13:37] Speaker 03:
Yes.

[00:13:38] Speaker 04:
That's true.

[00:13:38] Speaker 04:
That's true.

[00:13:39] Speaker 04:
But I mean, it's a bedrock principle that if what you're doing is practicing the prior art, audios, secondaries... There's no question.

[00:13:49] Speaker 03:
There's no question, Your Honor.

[00:13:51] Speaker 03:
If I may reserve at least one minute.

[00:13:53] Speaker 03:
Thank you.

[00:13:53] Speaker 01:
Okay, thank you.

[00:13:54] Speaker 01:
We'll save you rebuttal time, Mr. Tiller.

[00:13:56] Speaker 03:
Thank you.

[00:13:57] Speaker 01:
Ms.

[00:13:57] Speaker 01:
Kelly, the office.

[00:14:01] Speaker 00:
Good morning, Your Honors.

[00:14:02] Speaker 00:
May it please the Court.

[00:14:04] Speaker 00:
There is no dispute that at least

[00:14:06] Speaker 00:
since the 1920s, people have used de-sugar beet molasses as an anti-freezing and de-icing agent.

[00:14:15] Speaker 00:
That's in the Crowfoot reference that is in the appendix here.

[00:14:18] Speaker 00:
There's also no dispute that at least since the 1990s... That's not relied on by the examiner, is it?

[00:14:26] Speaker 00:
It was relied on by the examiner, the board.

[00:14:29] Speaker 00:
There were many rejections.

[00:14:30] Speaker 04:
Not in the board decision?

[00:14:32] Speaker 00:
Right, but I'm painting the picture, or at least I'm trying to,

[00:14:35] Speaker 00:
Paint the picture of what the prior art world was.

[00:14:38] Speaker 04:
But maybe you ought to paint it in terms of what prior art is actually involved in the case and the decision.

[00:14:43] Speaker 00:
Yes, Your Honor.

[00:14:44] Speaker 00:
And that was the next statement that I was going to move to.

[00:14:48] Speaker 00:
There's no dispute that since the 1990s, mixtures of desugared beet molasses and ethylene glycols or sodium chloride have been used as anti-freezing agents.

[00:14:58] Speaker 04:
How do we know that Polish reference is desugared sugar beet molasses?

[00:15:04] Speaker 00:
We know it because the 330 patent says so.

[00:15:08] Speaker 04:
Your Honor, I... Where does the 330 patent say that?

[00:15:10] Speaker 00:
The 330 patent says so, and this is the... I've got the patent open.

[00:15:15] Speaker 04:
Okay.

[00:15:15] Speaker 04:
Looking for the column and the line number.

[00:15:19] Speaker 00:
The 330 patent at column five, it's appendix page four, column five, and it begins at line nine.

[00:15:32] Speaker 04:
Line nine.

[00:15:34] Speaker 04:
The older of the two... Processes, removing sugar, yeah.

[00:15:41] Speaker 00:
And it says, the older of the two most widely used processes of removing sugar... And which is the older of the two?

[00:15:46] Speaker 04:
What are we talking about?

[00:15:48] Speaker 04:
Centrifuging?

[00:15:49] Speaker 04:
What process are we talking about?

[00:15:50] Speaker 04:
What a name on the process.

[00:15:52] Speaker 00:
Okay.

[00:15:54] Speaker 00:
The 330 patent describes two processes for making de-sugared sugar beet molasses.

[00:16:01] Speaker 00:
And it says that both of them will serve generally well in the claimed invention.

[00:16:07] Speaker 00:
The first one it describes as the older centrifugation process.

[00:16:10] Speaker 00:
And the second one it describes as the Stefan process.

[00:16:15] Speaker 00:
It defines these two processes, which one it says is the older and the other it says the more modern.

[00:16:21] Speaker 00:
In fact, the Stefan process is from the 1880s, so I don't know how much more modern it really is.

[00:16:27] Speaker 00:
And it says both of those will serve equally well in the invention.

[00:16:31] Speaker 02:
Is there anything in the record that says that the actual process that's used in the z-references and in the 330 patent is the same?

[00:16:47] Speaker 00:
There is no reference that says they're identical other than the 330 patent.

[00:16:54] Speaker 02:
It doesn't say they're identical.

[00:16:58] Speaker 00:
Opposing counsel, Natural has admitted this, has said that the centrifugation process is the older process.

[00:17:07] Speaker 02:
Does that?

[00:17:08] Speaker 02:
It's the general centrifugation process, but they specifically dispute whether or not the centrifugation process in their patent is the same as in the Zitz law reference.

[00:17:19] Speaker 00:
I did not read their argument to be that way.

[00:17:22] Speaker 00:
In fact, I think Judge Clungers made a better argument for them than in fact they did.

[00:17:27] Speaker 04:
I asked you a question you never answered.

[00:17:29] Speaker 04:
I asked you, how do we know that Z is de-sugared sugar beet molasses?

[00:17:34] Speaker 04:
And you answered by saying, well, the patent itself, the 330, admits that.

[00:17:39] Speaker 04:
And then you went back to column five and you started talking.

[00:17:42] Speaker 04:
We're talking about methods of making de-sugared sugar beet molasses.

[00:17:46] Speaker 04:
Yes.

[00:17:47] Speaker 04:
Show me where in the 330 patent there is a concession that Z makes de-sugared sugar beet molasses.

[00:17:56] Speaker 04:
A process is described in... I'm not asking... We all know that there are two processes, and both of those processes can make desugared sugar beet molasses, right?

[00:18:08] Speaker 04:
But those processes also, if you don't follow them all the way through, won't make desugared sugar beet molasses.

[00:18:15] Speaker 04:
It'll make just molasses, because you've got to take the extra sugar out.

[00:18:18] Speaker 04:
Your Honor, I think... You made a statement to me that there was a statement in this patent that said that Z

[00:18:25] Speaker 04:
is desugared sugar B molasses.

[00:18:28] Speaker 04:
You know, that's like a Bill Clinton or something is is.

[00:18:32] Speaker 04:
No, Your Honor.

[00:18:33] Speaker 04:
It doesn't say that, right?

[00:18:36] Speaker 00:
Respectfully, I don't think that's what I was saying.

[00:18:39] Speaker 00:
Quite respectfully.

[00:18:40] Speaker 00:
That's what came out of your mouth when I asked you the question.

[00:18:43] Speaker 00:
I don't think that I was able to finish my thought then.

[00:18:46] Speaker 00:
If I might now,

[00:18:48] Speaker 00:
I'm not trying to be contentious here.

[00:18:50] Speaker 04:
I've come back to the question.

[00:18:52] Speaker 04:
Z doesn't talk about desugared sugar beet molasses.

[00:18:56] Speaker 04:
Your Honor... Let me finish.

[00:18:58] Speaker 04:
Z talks about molasses, okay?

[00:19:02] Speaker 04:
Z talks about not desugared sugar beet molasses, but molasses.

[00:19:05] Speaker 04:
And the two are very different compounds.

[00:19:08] Speaker 00:
I'm aware, Your Honor.

[00:19:10] Speaker 04:
So the examiner believed that Z was desugared sugar beet molasses.

[00:19:17] Speaker 04:
And for that reason, he was able to combine z with daily and do some equations and bring up some numbers.

[00:19:24] Speaker 04:
And what your adversary is saying is right at that first step, the very first step in the examiner's process where he said, I'm going to treat z as equal to or close equal enough to daily to put them together, your adversary is saying that was error, that there's no substantial evidence to support that equation or semi-equation.

[00:19:45] Speaker 00:
With all due respect, Your Honor, I think

[00:19:47] Speaker 00:
That's an argument that you are making now.

[00:19:50] Speaker 00:
I don't think that's an argument that opposing counsel made in their brief.

[00:19:53] Speaker 00:
And it's certainly not in it.

[00:19:54] Speaker 00:
I believe it was made in the brief.

[00:19:58] Speaker 00:
I believe it was made in the brief.

[00:20:01] Speaker 02:
Excuse me.

[00:20:02] Speaker 02:
When I'm speaking, you have to wait, OK?

[00:20:04] Speaker 02:
I believe it was made in their brief.

[00:20:06] Speaker 02:
And I believe that the point that they were making is that you can have a process.

[00:20:10] Speaker 02:
and you either carry a process all the way through or you don't and you could still have two different things.

[00:20:15] Speaker 02:
So you could have a beer making process that in the end of the day will make our old version of 3-2 beer which is lower alcohol or you can have at the end of the day it makes a higher alcohol content.

[00:20:27] Speaker 02:
But that doesn't, just because the process, the basic process is the same doesn't mean the end result is the same.

[00:20:34] Speaker 02:
And so how do you, let's get to the fact that the end result here

[00:20:40] Speaker 02:
is 50% sugar.

[00:20:42] Speaker 02:
How do you call 50% sugar desugared?

[00:20:48] Speaker 00:
Accepting that that's what they argued, because I really, having looked at the record, I don't believe that's what they argued.

[00:20:58] Speaker 00:
And I think that argument comes from really reading about sugar processes.

[00:21:04] Speaker 00:
Because when preparing for this case, I looked at how sugar is desugared.

[00:21:10] Speaker 00:
and realized that Zditov is sugar beet molasses.

[00:21:16] Speaker 00:
However, and this was admitted in the record, they said the 330 patent says that process of making sugar beet molasses, that centrifugation process, it describes as being desugared beet molasses.

[00:21:34] Speaker 00:
Now that may be an error in the 330 patent, but that's what the 330 patent says.

[00:21:39] Speaker 00:
And the 330 patent says that that process of making sugar beet molasses, this thing with 50% sugar, it says that that will serve generally well in this claimed competition.

[00:21:55] Speaker 04:
Now, didn't the examiner believe that he could connect up Z?

[00:22:02] Speaker 04:
Z was made, oh, there's just a centrifuge.

[00:22:07] Speaker 04:
Do we know exactly what process was used in Z in the Polish patent?

[00:22:12] Speaker 00:
The process described in Z, and your honor is correct in this, is this process of just making sugar beet molasses.

[00:22:20] Speaker 04:
They don't talk about it.

[00:22:22] Speaker 00:
Not what ordinary artisans would define as being desugared beet molasses.

[00:22:27] Speaker 04:
They don't describe the new method, right?

[00:22:30] Speaker 00:
They don't describe Stefan, which is respectfully not the new method.

[00:22:34] Speaker 04:
The reason why I thought the examiner

[00:22:36] Speaker 04:
believed that he was comfortable with the process in Z, in the Polish patent, was because they used a centrifuge.

[00:22:46] Speaker 00:
I believe that the examiner, looking at everything the examiner said, said that Z's process met that description because of what was in the 330 patent, how the 330 patent describes how you make D-sugar... What would an examiner say to that, which I don't have any documents here?

[00:23:06] Speaker 00:
The examiner... Is that in the record?

[00:23:13] Speaker 00:
The... Let me try to find it.

[00:23:20] Speaker 00:
The examiner talks a great deal about... Did you have a site to the examiner and what you have as documents?

[00:23:28] Speaker 00:
I did not... I was aware of the distinction that you're making here.

[00:23:33] Speaker 00:
I didn't mark

[00:23:36] Speaker 00:
I'll try to find these references, this part right now.

[00:23:48] Speaker 00:
It's actually their response to an argument made by, it's a response made to the arguments made by opposing, by natural stock client, I mean natural, natural to the board.

[00:24:07] Speaker 04:
I do know that the examiner mentioned the fact that the Polish patent used a centrifuge, but that seemed to me not to be very helpful because molasses is made through the centrifuge process as well, where you're not even trying to desugar at all.

[00:24:23] Speaker 00:
Right.

[00:24:24] Speaker 00:
And looking outside of the record to something called the sugar beet handbook, because I was interested in how sugar beet molasses is made and desugared, that's when I discovered that

[00:24:38] Speaker 00:
In fact, what the 330 patent and what Zittes' law describe as being a desugaring process is actually a process of making molasses.

[00:24:45] Speaker 02:
But the examiner has the burden of establishing a prima facie case.

[00:24:50] Speaker 02:
And merely saying that because something is made from the same process, in the end of the day, it becomes the same thing isn't enough, is it?

[00:25:01] Speaker 00:
In this case, I believe it is, Your Honor, and here's why.

[00:25:03] Speaker 00:
Because the issue in this case is whether these ranges

[00:25:08] Speaker 00:
of this desugared beet molasses and either the ethylene glycol or rock salt have been disclosed in the prior art.

[00:25:17] Speaker 00:
And the issue here is how much sugar you have in these things and whether they're equatable or not.

[00:25:26] Speaker 00:
And the examiner went through and did the calculations and found that these very broad range claims, in fact, the prior art overlaps

[00:25:37] Speaker 00:
What is it found in the claims?

[00:25:38] Speaker 00:
And that's the issue here.

[00:25:40] Speaker 02:
There's never anything in the claims that talks about 50% sugar.

[00:25:46] Speaker 00:
We have something that has the properties, that does.

[00:25:49] Speaker 00:
We have something that the 330 patent says is desugared beet molasses.

[00:25:59] Speaker 00:
Whether the person of ordinary skill of the art would necessarily define it that way, the 330 patent has certainly defined it that way.

[00:26:07] Speaker 02:
Well, assuming we don't agree that it defines it that way.

[00:26:11] Speaker 00:
Right.

[00:26:11] Speaker 00:
The examiner went through and did the calculations about what the densities were and converted those by volume ratios to by mass ratios, and found that the ranges overlap.

[00:26:24] Speaker 00:
And when opposing counsel argued that, oh, the sugar content might be off, which is what he argued.

[00:26:32] Speaker 00:
He didn't say one is molasses and one is desugar be molasses.

[00:26:35] Speaker 00:
What he said was,

[00:26:36] Speaker 00:
The concentrations of sugars are very different.

[00:26:38] Speaker 00:
One has 50% sugar.

[00:26:39] Speaker 02:
Right.

[00:26:40] Speaker 02:
I mean, how is that different than saying one is sugared and one is de-sugared?

[00:26:46] Speaker 00:
It's different because the 330 patent says that that's de-sugared beta-lacet.

[00:26:50] Speaker 00:
That says it's... Okay.

[00:26:52] Speaker 00:
Right.

[00:26:52] Speaker 02:
You better get on to another argument because at least I don't buy the argument that it says that something with 50% is de-sugared.

[00:27:01] Speaker 02:
What other basis?

[00:27:03] Speaker 00:
Well, the other basis would be that this product meets all of the requirements of the claimed invention.

[00:27:13] Speaker 00:
And the board said, even if we're wrong about the amounts of sugar, and the examiner said, even if we're wrong about the amounts of sugar, it would be ordinary for one of ordinary skill in the art.

[00:27:25] Speaker 00:
It would be common.

[00:27:26] Speaker 00:
It would be obvious to optimize these ratios.

[00:27:30] Speaker 00:
To adjust that amount of sugar,

[00:27:31] Speaker 00:
to adjust the amount of solids, and to adjust the amounts of salt and ethylene glycol.

[00:27:36] Speaker 00:
And that's what the examiner said, and that's what he said.

[00:27:38] Speaker 04:
So what would you be adjusting?

[00:27:39] Speaker 04:
I mean, if you say, even if you're wrong about sugar, if you're wrong about sugar, then we throw the Polish reference out.

[00:27:47] Speaker 04:
You said, even if you were wrong about sugar.

[00:27:49] Speaker 04:
Well, you could further... Let me think.

[00:27:52] Speaker 04:
So if we throw the Polish reference out,

[00:27:56] Speaker 04:
And what numbers are we playing with to come up with the numbers in the patent?

[00:28:03] Speaker 00:
Well, if we throw the Polish reference out, then we're dealing with daily, which opposing counsel readily admits is within the claimed range.

[00:28:14] Speaker 02:
So this is where I think the argument about the objective in DISA is most powerful, and that is that you would have to make

[00:28:23] Speaker 02:
reach the conclusion that someone would look to daily, that someone of ordinary skill in the art would look to daily.

[00:28:29] Speaker 02:
So isn't it indicative of whether they would or would not when you see how successful the product has been?

[00:28:37] Speaker 02:
In other words, someone of ordinary skill in the art obviously didn't look to daily and that this objective indicia is supposed to help us avoid hindsight in saying that they would.

[00:28:49] Speaker 00:
There are two problems with daily identified by the board.

[00:28:52] Speaker 00:
One problem with daily is, first of all, not daily, I'm sorry, the declarations.

[00:28:59] Speaker 00:
One problem that the board identified is that there is no express teaching that this geomelt was actually added to salt and ethylene glycol to obtain the claimed invention.

[00:29:17] Speaker 00:
and done so at the ratios, because that's what we're arguing about here, is the ratios recited in the claims.

[00:29:23] Speaker 00:
Again, desugared and properly desugared beet molasses was known since 1926 as an anti-freezing agent.

[00:29:32] Speaker 00:
There was no evidence, the board found it natural and the declaration provided no evidence that the geomelt was being added

[00:29:43] Speaker 00:
to salts or ethylene glycols or any of the other things that are found in the Marcouche group of claim one in the concentrations recited in the claims, or that it was even being added to these other things at all.

[00:29:58] Speaker 00:
So you have a problem there with, are those people writing these declarations actually using geomelt alone, or are they using the claim of vengeance?

[00:30:11] Speaker 00:
a problem and a failure on natural's part to establish.

[00:30:18] Speaker 00:
The other problem that the board identified is the fact that as daily evidences, people already knew that de-sugar beet molasses and other fermentation products, when you mix them with salts or ethylene glycols, that they are

[00:30:40] Speaker 00:
marvelous anti-freezing and de-icing agents.

[00:30:46] Speaker 00:
And you also learn from the prior art.

[00:30:50] Speaker 01:
So you knew, but it doesn't show a combination with ethylene glycol, does it, in the prior art?

[00:30:55] Speaker 01:
When you say people already knew?

[00:30:57] Speaker 01:
I'm sorry, Your Honor.

[00:31:05] Speaker 01:
I heard you say that people knew that the combination of molasses with ethylene glycol and the salt.

[00:31:13] Speaker 00:
Yes, I'm sorry.

[00:31:14] Speaker 00:
Ethylene glycol, as part of the Marcouche group, is from Ziddiswa.

[00:31:17] Speaker 00:
Thank you.

[00:31:18] Speaker 00:
And daily, it discloses, on field report number two, combinations, which is found in public works, discloses combinations of

[00:31:32] Speaker 00:
desugared beet molasses or other fermentation products and salt.

[00:31:37] Speaker 02:
Doesn't Daley actually teach us a way from combining the desugared molasses with the inorganic salts?

[00:31:45] Speaker 00:
No, Your Honor.

[00:31:45] Speaker 00:
He just said it's not preferred because you'll cause corrosion to the tires.

[00:31:49] Speaker 02:
But Daley fully states... Wouldn't it cause corrosion to the roads?

[00:31:53] Speaker 02:
I mean, if someone in skill in the art is going to look to both, wouldn't they say, we don't want corrosion?

[00:31:59] Speaker 00:
Well, respectfully,

[00:32:02] Speaker 00:
road salt corrodes cars and other things on the roads.

[00:32:06] Speaker 00:
And that's the point of the invention.

[00:32:09] Speaker 04:
You want to reduce... Right.

[00:32:14] Speaker 00:
They want to reduce the amount of salt that they use.

[00:32:16] Speaker 00:
I mean, as it's used right now, whether it be the ice melter, the geomelter, or a desugared beet molasses made and sold by other companies, it's still mixed in with salt.

[00:32:29] Speaker 00:
In fact,

[00:32:30] Speaker 00:
The Washington Post just published last year, that's what's used in DC.

[00:32:34] Speaker 01:
But not for this use.

[00:32:36] Speaker 01:
I mean, this is really to try and focus this back and forth.

[00:32:40] Speaker 01:
Yes, the combination for a totally different use, accepting that that was known.

[00:32:46] Speaker 01:
How do we cross the bridge to this use?

[00:32:50] Speaker 00:
Are you referring from daily to this use?

[00:32:53] Speaker 00:
Yes.

[00:32:53] Speaker 00:
OK, I just wanted to clarify.

[00:32:56] Speaker 00:
We cross the bridge because Daley is specifically using this combination of desugared beet molasses and salt as a ballast, as an anti-freezing agent.

[00:33:12] Speaker 00:
He doesn't want to use just water because water will freeze and then you'd have a block of ice in your farm equipment or outdoor equipment or construction equipment that is just going to act

[00:33:24] Speaker 00:
It'll serve the opposite function of being balanced.

[00:33:28] Speaker 00:
It's going to be like throwing your washing machine out of balance.

[00:33:33] Speaker 00:
So he needs something that's going to remain fluid.

[00:33:36] Speaker 00:
And Daley says, I have this fermentation product.

[00:33:42] Speaker 00:
And this fermentation product meets everything the claimed invention says it's going to meet.

[00:33:47] Speaker 00:
It's environmentally friendly.

[00:33:49] Speaker 00:
It's biologically inert.

[00:33:51] Speaker 00:
It will stay liquid.

[00:33:54] Speaker 00:
It'll function as an antifreezing agent to minus 30 degrees.

[00:34:01] Speaker 00:
It is low cost.

[00:34:06] Speaker 00:
He lists all of the reasons that are listed in the 330 patent as to what he's looking, you know, as to what one is looking for

[00:34:15] Speaker 00:
the problem the inventor is trying to answer.

[00:34:18] Speaker 00:
But he uses a different molasses, and this is the bridge we're trying to cross.

[00:34:22] Speaker 00:
Well, Daly doesn't use a different molasses.

[00:34:24] Speaker 00:
Daly uses, and I think Judge Clevenger would agree, Daly uses de-sugar beet molasses.

[00:34:36] Speaker 04:
The problem for you with Daly is that Daly defines what de-sugar beet molasses is, that is to say less than 30% sugar by weight.

[00:34:45] Speaker 04:
But Your Honor would agree.

[00:34:46] Speaker 04:
It's a definition.

[00:34:47] Speaker 04:
And the amount of sugar by weight in the Polish reference is 50%.

[00:34:51] Speaker 04:
So ergo, it's not desugared sugar beet molasses.

[00:34:54] Speaker 00:
Simple as that.

[00:34:55] Speaker 00:
Right.

[00:34:55] Speaker 00:
But Judge Newman was asking about the Daily Reference.

[00:34:58] Speaker 00:
And does the Daily Reference disclose a desugared beet molasses that no one would disagree was within the scope of the claims?

[00:35:09] Speaker 00:
And I was just asserting that I don't think

[00:35:15] Speaker 00:
they would disagree or anyone could disagree, that Daley does disclose.

[00:35:19] Speaker 04:
But the case that we are reviewing is not an anticipation case based on Daley, nor is it an obvious case based on Daley.

[00:35:28] Speaker 04:
It's an obvious case based on the Polish patent plus Daley, plus some computations, correct?

[00:35:35] Speaker 00:
I agree, Your Honor.

[00:35:36] Speaker 00:
I was trying to answer Judge Newman's questions about Daley.

[00:35:39] Speaker 04:
What I heard the presiding judge to say was, well, that was fine, everything you were saying about Daley.

[00:35:44] Speaker 04:
And she said, how do you get from Daley back to the Polish reference?

[00:35:48] Speaker 04:
That's what I heard the presiding judge to ask.

[00:35:51] Speaker 04:
That was your question.

[00:35:53] Speaker 01:
That was my question.

[00:35:54] Speaker 01:
Oh, I'm sorry, Your Honor.

[00:35:55] Speaker 01:
I thought you were asking how is Daley... I think perhaps we've exhausted the issues.

[00:36:01] Speaker 01:
However, I think we understand the

[00:36:04] Speaker 01:
the difference.

[00:36:06] Speaker 01:
Okay, thank you.

[00:36:07] Speaker 01:
Thank you, Ms.

[00:36:07] Speaker 01:
Kelly.

[00:36:08] Speaker 01:
And let's see, let's add the time we've run over to Mr. Tillery's time.

[00:36:14] Speaker 03:
You may not need it all.

[00:36:15] Speaker 03:
Thank you, Your Honor.

[00:36:18] Speaker 03:
Two very quick points.

[00:36:19] Speaker 03:
One, Judge Clevinger, you asked about the board, the examiner and the board's decision or statement that the ratios would be adjusted and what the

[00:36:32] Speaker 03:
the examiner and the board was talking about was adjusting the ratios between desugared sugar beam molasses and potentially ethylene glycol or salt or one of the other compounds that are included in the Marcouche group of claim one.

[00:36:46] Speaker 03:
That is not an acknowledgement, however, to use a different molasses product.

[00:36:54] Speaker 03:
The person with more skill in the art, based on these teachings, is not going to adjust the sugar

[00:37:02] Speaker 03:
The sugar compound is defined as less than 30%.

[00:37:05] Speaker 03:
The adjustment in ratios is between the desugared sugar beet molasses and those other compounds.

[00:37:12] Speaker 03:
The other point, going to what Judge O'Malley asked with regard to the secondary considerations, I think there is ample evidence in those secondary considerations that the claimed invention was being used.

[00:37:29] Speaker 03:
There's multiple references in those articles and in those memos.

[00:37:32] Speaker 03:
about how geomelt is being used in combination with salt, and it's reducing the bounce of the salt going off the roadway.

[00:37:41] Speaker 03:
It's keeping the salt on the roadway.

[00:37:44] Speaker 03:
It's reducing the amount of salt that has to be purchased.

[00:37:48] Speaker 03:
It's reducing the labor that's involved with having to de-clog the machines that spread this stuff.

[00:37:57] Speaker 02:
What's your response to your friend on the other side when she says that you are

[00:38:02] Speaker 02:
affidavits or your declarations don't really say that geomelt practices the invention.

[00:38:10] Speaker 03:
Well, as I understood what the board and the examiner did, or at least that the board did, is that it assumed that geomelt.

[00:38:17] Speaker 03:
I think there's a statement, as I recall, where the board even says, assuming that geomelt is within the scope of the invention, we're still not going to consider it.

[00:38:27] Speaker 02:
So you disagree that the board actually came right out and said that there was no evidence that it was.

[00:38:32] Speaker 03:
Correct.

[00:38:33] Speaker 03:
I would disagree with that.

[00:38:35] Speaker 03:
And importantly, I think there is evidence when you look at, in particular, the declaration, I think, I forget, it's Mr. Belovick's declaration, if I recall his name correctly.

[00:38:46] Speaker 03:
He's a manufacturer of DSBM, or at least a seller of DSBM.

[00:38:50] Speaker 03:
And he says, I'm selling this product for use in the patented invention, or for use within the scope of the patent.

[00:39:00] Speaker 03:
He specifically says that, and he says,

[00:39:02] Speaker 03:
This has met a long felt but unmet need.

[00:39:07] Speaker 03:
He says that his customers are paying an additional amount for the DSBM for use in the patented invention.

[00:39:16] Speaker 03:
And further, there is evidence from the inventor themselves, himself, I should say, the inventor himself, that he has licensed the patent.

[00:39:28] Speaker 03:
And then you go to the product data sheet

[00:39:31] Speaker 03:
from the third party requester who specifically says, produce pursuant two and it gives the patent number.

[00:39:39] Speaker 03:
So I think there is ample evidence to show that the secondary consideration evidence was specifically disclosing use of the claimed features and that there was success, that it was well regarded.

[00:39:57] Speaker 04:
Well, we really don't have any

[00:39:59] Speaker 04:
adjudication of all of that.

[00:40:01] Speaker 04:
And these are potential facts because the board, the examiner and the board, as is quite common in these cases, said, I don't need to worry about any of those factors because this is all spraxing prior.

[00:40:16] Speaker 03:
And you're right, honor.

[00:40:17] Speaker 04:
I mean, I think the debate about whether or not the particular substance was made pursuant to the patent and all the rest of the stuff is something, if you were in a district court, would be subsidiary facts that would be litigated.

[00:40:28] Speaker 04:
Because once you got past the part heart issue.

[00:40:31] Speaker 03:
Yes, absolutely, Your Honor.

[00:40:34] Speaker 04:
We don't ever have a record on which to.

[00:40:37] Speaker 03:
Correct.

[00:40:37] Speaker 03:
And that's the real point here.

[00:40:39] Speaker 03:
That's where the board erred in not even considering this evidence.

[00:40:43] Speaker 04:
But your case in a nutshell just goes right back to the fact that you believe that the examiner did not make the case to show that the Polish patent is teaching de-sugared sugar beet molasses.

[00:40:53] Speaker 03:
No question publicly.

[00:40:55] Speaker 04:
It's full stop.

[00:40:56] Speaker 04:
Case is over if you went on that point.

[00:40:58] Speaker 03:
Case is over if I went on that point.

[00:41:00] Speaker 03:
Case is over.

[00:41:01] Speaker 04:
Yes, thank you, Your Honor.