[00:00:00] Speaker 01: Patent Trial and Appeal Board. [00:00:04] Speaker 01: Mr. Rosenberg, it's my understanding you want five minutes for rebuttal? [00:00:25] Speaker 01: Yes. [00:00:26] Speaker 01: Or hoping for five minutes for rebuttal? [00:00:28] Speaker 01: We'll see. [00:01:10] Speaker 05: Both of the prior art and the present invention at issue involve a construction which has a manifold and flow comes into the manifold and it is distributed into connecting channels that are connected to the manifold. [00:01:27] Speaker 05: In the prior art, [00:01:29] Speaker 05: They recognized in Fitzgerald's reference, they recognized the problem that is if you don't do anything to the connecting channels, the flow is going to come down the manifold and it's all going to tend to want to go through the last channel because that's where the momentum is going. [00:01:43] Speaker 05: And Fitzgerald solved this problem by putting in gates or grades at the front of each connecting channel so that the channel furthest down the manifold in the direction of momentum is the smallest. [00:01:57] Speaker 05: and then continually larger so that flow would be equalized in the connecting channels. [00:02:07] Speaker 05: The Patent Office has looked at Figure 1B, which is a tool, designed tool for analyzing the various dimensions and forces in a system. [00:02:22] Speaker 05: and has said that you could make them all the same size in Fitzgerald. [00:02:25] Speaker 05: You could make all your openings to the connecting channels the same size. [00:02:30] Speaker 05: But that's not a reasonable interpretation because it wouldn't fix the problem. [00:02:38] Speaker 05: It would have unequal flow in the connecting channels, which was the very problem that Fitzgerald was trying to solve. [00:02:45] Speaker 05: So because that would defeat the purpose of Fitzgerald, it's not a reasonable interpretation of the Fitzgerald reference taken as a whole. [00:02:58] Speaker 05: Now, in the present invention, the inventors have found that you could equalize flow in the connecting channels in a different way, and that you could do that by having a disrupted fluid in the connecting channels. [00:03:14] Speaker 05: This will tend to equalize flow, create some pressure drop, but it will tend to equalize flow in the connecting channel so that you'll have an equal distribution of flow. [00:03:24] Speaker 05: So inventors in the present case [00:03:30] Speaker 01: Found in there are examples in the back of the in the specification that show how this works That I think we sort of understand how it works And so let's talk about some of the specifics about your objections to the to the precise findings So there are you've got a number of claims here What do you think is your strongest claim with respect to the absence of anticipation? [00:03:59] Speaker 05: The various claims have different strengths. [00:04:01] Speaker 05: I think claim 21 is the strongest claim. [00:04:04] Speaker 05: I think claim 43 is also a very strong claim, because claim 43 explicitly says there are no gates, grates, or orifices. [00:04:11] Speaker 05: And Fitzgerald clearly says you have to have gates or grates. [00:04:14] Speaker 01: Does it say you have to, or it says you may? [00:04:18] Speaker 05: It says to the person of ordinary skill reading it who wants to follow its instructions to build advice, it says you must, because otherwise you're going to have unequal flow. [00:04:34] Speaker 05: There's no way to read it to say that, oh, well, you wouldn't have gates or grades, because if you did that, you would have unequal flow. [00:04:44] Speaker 05: You would have the very problem that Gerald seeks to solve. [00:04:48] Speaker 01: So you're saying that what Fitzgerald is saying is that when he says that a connecting channel may be a gate or other orifice and that the PTAB's interpretation, that that means it may also not be. [00:05:01] Speaker 01: In other words, it doesn't have to be there at all. [00:05:02] Speaker 01: You're saying it's got to be one or the other. [00:05:05] Speaker 05: Yes. [00:05:05] Speaker 01: It's got to have something. [00:05:07] Speaker 05: Right. [00:05:07] Speaker 05: In view of Fitzgerald, that's what the teaching of Fitzgerald is. [00:05:10] Speaker 05: And Figure 1B is really a design tool that shows you all the different dimensions and forces. [00:05:18] Speaker 05: there's nothing in that paragraph or anywhere else in Fitzgerald that would provide guidance to the practitioner to set up a situation where there's no gates or grates at the front of the connecting channels. [00:05:29] Speaker 01: What about Fitzgerald's reference to the equal cross-sectional area? [00:05:35] Speaker 01: It says that the cross-sectional area of a gate or any other orifice design may or may not be a different cross-sectional area than the channel. [00:05:43] Speaker 05: Again, that's a design tool that they're talking about. [00:05:46] Speaker 01: Okay, let me finish. [00:05:47] Speaker 01: If it can be equal to the channel, doesn't that imply that if there's no difference, then it's not [00:05:53] Speaker 01: important to the design? [00:05:55] Speaker 05: It says one of the connecting channels that would be interpreted reasonably the only reasonable interpretation is that one of the connecting channels may have a cross-sectional area that is where the opening is equal to the cross-sectional area and that would be the one furthest up the manifold because the idea of gates is you have successively smaller openings as you go down the manifold in order to equalize flow. [00:06:20] Speaker 02: Where do you find [00:06:23] Speaker 02: other than by implication, I guess is what you're saying, perhaps. [00:06:27] Speaker 02: But I don't see in paragraph 185 of Fitzgerald anything that says, at least, or to me even suggests, that we're talking about one of the channels. [00:06:41] Speaker 05: Yes, Your Honor. [00:06:42] Speaker 05: That paragraph should not be read in isolation. [00:06:45] Speaker 05: It should be read in conjunction with the definition of what a gate is, what an orifice is, [00:06:52] Speaker 05: and the specification as a whole. [00:06:55] Speaker 02: Well, where else in the specification would you look to find a suggestion that the reference to the area that may or may not be different from the channel is limited to a single channel? [00:07:13] Speaker 05: I would say the definition of gates. [00:07:17] Speaker 02: What about the definition of gates tells us that [00:07:20] Speaker 02: that this reference is only one channel. [00:07:23] Speaker 05: I'm not... That gates have to have varying cross-section at the entrance of a channel. [00:07:31] Speaker 05: Okay, let's see. [00:07:33] Speaker 05: So if one were to look up the definition of gate. [00:07:35] Speaker 03: Where is that? [00:07:38] Speaker 04: Definition of gate at page, in Fitzgerald, paragraph 75. [00:07:46] Speaker 02: 75, okay. [00:07:51] Speaker 04: completeness, the definition of orifices is at paragraph 284. [00:08:17] Speaker 02: And in the definition of gait, what are you referencing in particular? [00:08:22] Speaker 02: That paragraph is a long paragraph. [00:08:24] Speaker 02: I'm just looking. [00:08:28] Speaker 05: I actually would have to. [00:08:31] Speaker 05: I don't have that paragraph in front of me. [00:08:34] Speaker 01: OK. [00:08:35] Speaker 01: But doesn't that relevant sentence start with the word thought channels, not thought channel? [00:08:43] Speaker 05: Yes. [00:08:44] Speaker 05: And gates are understood in terms of a set of connecting channels. [00:08:53] Speaker 05: Since I'm running short of time, could I proceed with? [00:08:57] Speaker 01: Yes. [00:08:58] Speaker 01: Can we move to claim 16 for a second? [00:09:00] Speaker 01: Yes, Your Honor. [00:09:03] Speaker 01: Putting aside the waiver issue, I'm having a little bit of difficulty with your evidence of criticality when what you claim is essentially an unbounded range on the other end. [00:09:13] Speaker 01: I understand that there's an overlap between the two ranges, but your range has no top end, right? [00:09:23] Speaker 05: I would want to check the definition of connecting channels to see whether that has a top end. [00:09:33] Speaker 05: No, actually... No, this is your size ranges. [00:09:37] Speaker 05: The size range is limited because it calls them plural connecting microchannels and the definition of microchannels does limit the height of the channels. [00:09:45] Speaker 00: What is that height limitation? [00:09:47] Speaker 05: I believe in this application, I think it's one centimeter, but it could be two millimeters. [00:09:54] Speaker 05: I'm not sure which of those it is. [00:09:57] Speaker 00: Where in your specification do you talk about at least 0.03 inches and how important it is? [00:10:03] Speaker 05: In the examples that's shown that we have three examples, one with a very low range, a very small height and then .03 height, .03 inch height and .05 height and the .03 and .05 [00:10:25] Speaker 05: are within the claim and and they operate they they have a Manifold volume that is less than the volume of the plural connecting micro channels, but in the case of the very small channel You do not you do not have a manifold volume that is less than the volume of the plural connecting micro channel So it doesn't operate doesn't functions very differently in the two cases. [00:10:46] Speaker ?: So [00:10:46] Speaker 00: The thing that's troubling is that elsewhere, you know, in describing your invention, you continually say that you're looking at two millimeters or less as being the dimensions, instead of saying 0.3 inches or more. [00:11:01] Speaker 00: And you say that several times, two millimeters or less, for example, in appendix page 142. [00:11:10] Speaker 00: So it's hard to see how the specification appreciates or suggests that the 0.03 inches is critical. [00:11:21] Speaker 05: I believe that's clear from the examples that it shows that it's critical. [00:11:29] Speaker 05: And claim 21 requires the presence of a fluid and disrupted flow in a connecting channel or in the connecting channels. [00:11:40] Speaker 05: and that feature [00:11:42] Speaker 05: is not either, it's certainly not explicitly mentioned in Fitzgerald, and it's not inherently mentioned in Fitzgerald either. [00:11:50] Speaker 05: And it's not, the patent examiner never alleged that it was. [00:11:55] Speaker 05: The patent examiner merely took the position that because the apparatus of Fitzgerald is capable of having a fluid and disrupted flow, that the patent office did not need to present any reasoning as to why there would be a fluid and disrupted flow. [00:12:11] Speaker 05: And I believe that's incorrect, that the Patent Office has the initial burden of showing that there is, the initial burden of showing that each claimed limitation is present either explicitly or inherently in the prior art. [00:12:28] Speaker 01: Does your argument here depend upon our conclusion that our [00:12:33] Speaker 01: case law that creates a rebuttable presumption when there's functional claim language use needs to be rethought? [00:12:43] Speaker 05: I believe that it depends on how one interprets the various cases in Ray Best and Ray Schreiber. [00:12:52] Speaker 05: Actually in each of those cases the patent examiner or the patent office does show why [00:13:01] Speaker 05: provide sound reasons why the alleged features would be present. [00:13:06] Speaker 05: So in those two cases, the Patent Office actually does meet their initial burden of showing that it would, a reasonable basis why those features would be present. [00:13:16] Speaker 05: For example, in BEST, they say, well, you're blowing air over the zeolite intermediate, and that would naturally remove ammonia from the ammonia's volatile component. [00:13:26] Speaker 05: Everybody knows that. [00:13:27] Speaker 05: That would naturally remove ammonia from the material. [00:13:29] Speaker 05: So they've met their burden in those two cases. [00:13:32] Speaker 05: This is actually, in my view, dictated in the cases. [00:13:36] Speaker 05: And it's the position of the Patent Office that's taken from this that, well, you need to first determine whether a feature is functional or structural. [00:13:46] Speaker 05: And in the brief, I've gone at length to explain why that's not a valid distinction. [00:13:55] Speaker 05: And then you could ignore the functional descriptions and put the burden on the applicant. [00:14:01] Speaker 00: That's not what the PTAC did here though, is it? [00:14:04] Speaker 00: I mean, they said... I believe that it is written. [00:14:05] Speaker 00: What about where they said in the opinion that it's inherent because of the structural features in the priority? [00:14:13] Speaker 05: Well, that's not a reasonable basis. [00:14:15] Speaker 05: It's like saying... But that's different. [00:14:17] Speaker 00: They didn't just say there's no reason and therefore now it's your burden. [00:14:21] Speaker 00: I think I heard you saying they were just saying it's functional so therefore I don't have to have a reason. [00:14:27] Speaker 05: Well that's actually the patent examiner's position and I don't believe that they've made any kind of reasonable showing that there would be inherently be a disrupted fluid in the connecting channels. [00:14:43] Speaker 05: It's as if I had a [00:14:46] Speaker 05: cardboard cup and came with directions to say, put water in the cup. [00:14:52] Speaker 05: And the patent office would say, well, the cup is capable of holding boiling water, therefore it's holding boiling water. [00:15:00] Speaker 05: there's no guidance in Fitzgerald that would lead the practitioner to a disrupted flow fluid in the connecting channels. [00:15:10] Speaker 00: What about through the definition of disrupted flow in your specification where you say it occurs [00:15:17] Speaker 00: It can occur in smooth microchannels and also includes flows through microchannels having surface features and then talks about different surface features that could provide this disrupted or turbulent flow including projections or recesses, three-dimensional torturous flow paths, surface features such as chevrons or other shapes recessed into the channel wall. [00:15:41] Speaker 05: I mean, those are structures, right? [00:15:44] Speaker 05: But those are not in Fitzgerald. [00:15:49] Speaker 05: So those are structures, but they are not in Fitzgerald. [00:15:56] Speaker 02: Let me see if I understand your example about the paper cup. [00:16:01] Speaker 02: Suppose what we had was prior art. [00:16:04] Speaker 02: Let's not make it paper just to make it a little simpler. [00:16:07] Speaker 02: Let's say it's Pyrex glass and the Pyrex glass is in the prior art and the new application is to a [00:16:19] Speaker 02: Pyrex glass for holding boiling water. [00:16:23] Speaker 02: The Pyrex glass is exactly the same Pyrex glass as was in the prior art, but your invention is that this [00:16:29] Speaker 02: device can be used to hold boiling water. [00:16:32] Speaker 02: Is that patentable? [00:16:33] Speaker 05: No, Your Honor, because the claim that you propose says for holding boiling water. [00:16:39] Speaker 05: It doesn't say holding boiling water. [00:16:41] Speaker 02: So our claim says comprised. [00:16:42] Speaker 02: Holding boiling water. [00:16:43] Speaker 02: All right. [00:16:43] Speaker 02: That's one of the limitations is holding boiling water. [00:16:46] Speaker 02: Is that patentable over the Pyrex cup that is in the prior art? [00:16:55] Speaker 05: Well, the question, I think, is whether it would be anticipated or obvious. [00:16:58] Speaker 02: Well, let's say is it anticipated by the prior art cup, which is exactly the same cup, minus holding boiling water. [00:17:17] Speaker 05: If the prior art necessarily [00:17:24] Speaker 05: contains boiling water, then yes. [00:17:28] Speaker 05: If it doesn't, then no. [00:17:30] Speaker 05: And in this case, the fluid and disrupted flow provides a critical advantage over the fluid and non-disrupted flow. [00:17:42] Speaker 05: And in particular, non-disrupted flow would include laminar flow, which is actually the typical case for flows from microchamps. [00:17:51] Speaker 01: So what is your distinction from Shriver? [00:17:57] Speaker 05: In this case, it says, if Shriver had popcorn in the funnel. [00:18:02] Speaker 05: So in Shriver, the court specifically said, we're not going to rule on the case that says it comprises popcorn. [00:18:09] Speaker 05: And that was probably an error on the part of the applicant not to argue that. [00:18:12] Speaker 05: But the Patent Office said in that case that it was configured such that it could dispense popcorn. [00:18:23] Speaker 05: But in our case, it doesn't say configured or capable. [00:18:25] Speaker 05: It says comprising. [00:18:27] Speaker 05: So that is an element of the claim in this case, where in Shriver, popcorn was not an element in the case. [00:18:36] Speaker 01: Thank you. [00:18:37] Speaker 01: We'll give you two minutes for rebuttal. [00:19:01] Speaker 06: Good morning. [00:19:01] Speaker 06: May it please the court? [00:19:03] Speaker 06: I would like to start with Claim 43, since that is one of the claims that Velossi is claiming that it's one of the strongest claims. [00:19:12] Speaker 06: And in Claim 43, I think the distinction here is that what's claimed here are that there are gates or orifices or other types of structural elements are missing from the manifold or microchannel device. [00:19:26] Speaker 06: And as we discussed in Claim Figure 1B, which we can turn to, [00:19:41] Speaker 03: This is 1B of Fitzgerald. [00:19:43] Speaker 06: 1B in Fitzgerald. [00:19:44] Speaker 03: That's Appendix 23, I think. [00:19:46] Speaker 06: Correct, Appendix 23. [00:19:48] Speaker 06: And if we look at Figure 1B as well as Paragraph 185 and Page 95 of the appendix. [00:20:05] Speaker 06: Now looking at this paragraph, what the board found is that these cross-sectional openings [00:20:11] Speaker 06: ACC and AC1 as well as ACC and AC2 and ACC and AC3 can have the same cross-sectional area. [00:20:23] Speaker 06: And when they have the same cross-sectional area, it's as though an orifice or a gate is not present and the connecting channel is continuous. [00:20:35] Speaker 06: Now, Velasquez argues that because Fitzgerald defines gate in a particular manner, [00:20:41] Speaker 06: that it must therefore include a gate in its device. [00:20:46] Speaker 06: And that is simply not the case. [00:20:47] Speaker 06: And that's not the case because, as your honors pointed out, here what paragraph 85 states is that the opening can be a gate orifice for any other type of design, and that these gates are not necessarily present. [00:21:05] Speaker 06: I would like to now move on to claim 16. [00:21:10] Speaker 06: And here, first, this issue of criticality was not argued before the board. [00:21:16] Speaker 06: And so it's arguably waived. [00:21:18] Speaker 06: But to the extent this court does consider the evidence that was presented. [00:21:23] Speaker 02: You made the same point in your briefing, arguably waived. [00:21:27] Speaker 02: And I always wonder when somebody says it's arguably something, do they really believe that it's waived or not? [00:21:32] Speaker 06: I believe it's waived. [00:21:34] Speaker 02: And the basis for that belief is [00:21:37] Speaker 02: the regulation, the PTO regulation that says you must argue something in the original brief, and it's not good enough to argue it in the hearing brief. [00:21:48] Speaker 02: As I understand it, you're not contesting that this criticality argument at least, whether it's persuasive or not, it was raised in the petition for rehearing. [00:21:57] Speaker 06: It was raised in the petition for a hearing, but it was not raised. [00:22:00] Speaker 02: Not good enough. [00:22:01] Speaker 02: It has to be in the original brief. [00:22:02] Speaker 06: That's correct. [00:22:03] Speaker 02: And does that apply as well if the board addresses the merits of the point that was raised on rehearing? [00:22:12] Speaker 02: Does waiver still apply in your view? [00:22:16] Speaker 06: In our view, it still does apply. [00:22:17] Speaker 02: Of course, I guess here the board [00:22:19] Speaker 02: alluded at least briefly to the fact that it wasn't raised before, but it wasn't clear to me that they were basing their judgment entirely on waiver, or at least that they weren't saying that's an alternative ground for rejecting the argument. [00:22:35] Speaker 06: Your Honor, here I believe the board was looking at the evidence that was raised. [00:22:40] Speaker 06: And first, it did make the finding that this argument was raised belatedly. [00:22:44] Speaker 06: And so therefore, it does not need to consider the argument. [00:22:47] Speaker 06: But the board did go further to look at the example that velocity sites in its request for rehearing and found that there simply wasn't enough evidence there to show criticality of the invention. [00:23:02] Speaker 01: And on the merits, that's because there were only two data points? [00:23:06] Speaker 06: And that's because those two data points were at the higher end of the claimed range, or rather it was showing that, what it was showing was that at .03 inches and .05 inches the invention was operable, but at .0006 inches the invention was not as operable. [00:23:25] Speaker 06: And so it's not showing, it's not showing that that particular range is critical [00:23:31] Speaker 06: over, say, a data point of 0.079 inches, such as shown in Fitzgerald. [00:23:36] Speaker 01: So you're saying it was the high end of the Fitzgerald range? [00:23:39] Speaker 06: It was showing only the, it was only showing that a particular point works, but it does not show that the 0.079 inches that's disclosed in Fitzgerald would not be operable. [00:23:48] Speaker 02: It was at the low end of the at least 0.03 range, right? [00:23:53] Speaker 06: It was at the low end of the at least claim. [00:23:55] Speaker 02: Of the claim trend. [00:23:56] Speaker 02: That's correct. [00:23:57] Speaker 02: Not the high end. [00:23:57] Speaker 02: OK. [00:23:58] Speaker 02: That's correct. [00:23:58] Speaker 02: And your point that I take it is that 0.079 is only a little bit beyond 0.05. [00:24:10] Speaker 02: And therefore, who knows whether this advantage that flowed from the larger channels. [00:24:19] Speaker 02: No pun intended. [00:24:20] Speaker 02: No. [00:24:21] Speaker 02: Would have applied if you'd popped up another three hundreds. [00:24:28] Speaker 02: Okay. [00:24:29] Speaker 02: That's correct. [00:24:30] Speaker 06: That's correct. [00:24:32] Speaker 06: And now as with respect to claim 21 here, you know, the board found it made its prima facie case of anticipation. [00:24:42] Speaker 06: And what the board found, and the examiner, what the board and the examiner found is that the structural elements found in claim 21 were also found in the Fitzgerald reference. [00:24:52] Speaker 06: And Velocis does not dispute that. [00:24:54] Speaker 06: Now, the only dispute that Velocis raises is that whether or not a fluid passing through that structure would flow in disruptive flow. [00:25:03] Speaker 06: And what the board found is that that is an inherent feature of the device, that the Fitzgerald reference, because it includes the same structural elements as found in claim 21, would also be inherently capable of having a fluid pass and disruptive flow. [00:25:18] Speaker 00: What are those structural elements that would result in disrupted flow? [00:25:23] Speaker 06: In the Fitzgerald Reference? [00:25:24] Speaker 06: Well, the Fitzgerald Reference, as even Velasiz argues, the Fitzgerald Reference teaches many different types of microchannel devices. [00:25:33] Speaker 06: It includes gates, orifices, and other types of openings that could result in turbulent or transitional flow, which the 336 application defines as [00:25:44] Speaker 06: as disturbed flow. [00:25:46] Speaker 06: They define disturbed flow as transitional or turbulent flow. [00:25:50] Speaker 06: And the Fitzgerald's reference includes embodiments that also disclose transitional or turbulent flow. [00:25:55] Speaker 02: Where is that? [00:25:57] Speaker 02: I have the same question. [00:26:00] Speaker 02: It seemed to me that, well, you should answer the Stoltz question before I interrupt. [00:26:06] Speaker 06: Sure. [00:26:06] Speaker 06: Well, first let's turn to, we can turn to APPX87 of the Fitzgerald's reference. [00:26:18] Speaker 06: In paragraph 42, the Fitzgerald references discusses that in a preferred embodiment, the first flow regime is turbulent and the second flow regime is transitional. [00:26:28] Speaker 06: And thus, the Fitzgerald reference does contemplate embodiments that would include disturbed flow as Velasquez has defined it. [00:26:36] Speaker 00: But doesn't your adversary say that's in the manifold? [00:26:39] Speaker 00: Not through the microchannels. [00:26:42] Speaker 00: I mean, and if you read the paragraph above, it is talking about the fluid flow in the manifold. [00:26:46] Speaker 06: I mean, it's talking about the fluid passing through the macro manifold and then passing through the manifold implant. [00:26:51] Speaker 06: So it's talking about flowing through different parts of the manifold device. [00:26:56] Speaker 06: And I mean, one of the things that this application, both the Fitzgerald application as well as the 336 application, [00:27:02] Speaker 06: It talks about these different channels sort of interchangeably in terms of the manifold, the sub-manifold and the micro channels. [00:27:11] Speaker 01: But they aren't really interchangeable because it says passing through a manifold inlet and into a manifold and then they talk and then in 42 it says the first flow regime is turbulent and the second is transitional. [00:27:33] Speaker 06: And the other thing I think that we could also look to is that at, let's see, at APPX 93, the Fitzgerald reference discusses the Reynolds numbers associated with laminar transitional and turbulent flow. [00:27:52] Speaker 06: And... What paragraph? [00:27:54] Speaker 06: It's paragraph 123 on page 93 of the appendix. [00:28:02] Speaker 06: And the application at issue discusses the same Reynolds values for these same types of flows. [00:28:08] Speaker 06: So both the Fitzgerald reference as well as the velocities application envision flow to be laminar as well as turbulent or disturbed. [00:28:21] Speaker 06: So it's not that the Fitzgerald reference does not disclose any embodiments that have only laminar flow. [00:28:28] Speaker 06: They do disclose embodiments that have. [00:28:30] Speaker 06: turbulent or disturbed flow. [00:28:31] Speaker 02: But there's nothing in Fitzgerald, as I understand it, that actually calls out a particular embodiment as producing a turbulent flow, if that's what one is trying to achieve. [00:28:41] Speaker 02: You wouldn't find anything, I take it, in Fitzgerald that would say, here's how to get a turbulent flow. [00:28:47] Speaker 06: Well, the Fitzgerald reference does disclose different types of openings. [00:28:51] Speaker 02: Right, but it's not telling, what's missing, it seems to me, from Fitzgerald [00:28:57] Speaker 02: Whether it's material or not is another question. [00:28:59] Speaker 02: But what's missing is anything that says, if you want a turbulent flow, here's how to get it. [00:29:06] Speaker 02: The examples in the application tell you this is a turbulent flow with a high Reynolds number. [00:29:12] Speaker 02: And these are two examples of how to get it, right? [00:29:15] Speaker 02: 0.3 and 0.5. [00:29:18] Speaker 06: Well, it does talk about how to get these different types of Reynolds numbers, but it also talks about how in preferred embodiments they can vary the turbulent flow. [00:29:27] Speaker 06: So at APPX 99 in paragraph, let's see, I believe it's paragraph 263, it talks, if you go down on two, three, four, five, six, seven, eight, nine, around 10 lines, [00:29:48] Speaker 06: it states that the value of the Reynolds numbers in preferred emonuments can vary across the manifold from turbulent flow to translational flow to laminar flow. [00:29:56] Speaker 06: And in other preferred embodiments, it can vary from transition flow to laminar flow. [00:30:00] Speaker 06: And it basically talks about how these different manifold devices can have different flow within the different channels. [00:30:06] Speaker 06: So the fact that Fitzgerald also does contemplate having flow besides laminar flow, I think, is indicative of [00:30:17] Speaker 06: of there being the presence of turbulent flow within the microchannel devices. [00:30:25] Speaker 02: But there isn't an embodiment anywhere, well, tell me if there is, in Fitzgerald that says if you want turbulent flow, here's how to get it. [00:30:37] Speaker 06: Well, there may not have been an express embodiment disclosing how to get turbulent flow, specifically just teaching how to get turbulent flow. [00:30:45] Speaker 06: But because the structural elements that are found in claim 21 are all found in the Fitzgerald reference, as well as the fluid itself. [00:30:54] Speaker 06: Now remember, this is a system claim and not an apparatus claim. [00:30:58] Speaker 06: And because this is a system claim where [00:31:02] Speaker 06: where a fluid is flowing through a structure. [00:31:05] Speaker 06: And that same structure is disclosed in Fitzgerald. [00:31:08] Speaker 06: It necessarily does anticipate the claim that philosophy sets foot forward. [00:31:16] Speaker 06: For all these reasons, we ask that the court affirm the board's decision. [00:31:19] Speaker 06: If there are no other questions. [00:31:24] Speaker 01: OK, two minutes for rebuttal. [00:31:31] Speaker 05: On the issue of disrupted flow in claim 21, the Patent Office position relies on the description of fluid and disrupted flow as a functional limitation. [00:31:48] Speaker 05: And this idea has become a plague on the Patent Office for applicants. [00:31:55] Speaker 05: And it should be reconsidered by the court because, number one, it conflicts with our modern understanding of knowledge. [00:32:01] Speaker 05: Number two, it creates a paradoxical situation where claims of identical scope receive unequal treatment, claims using so-called structural language being allowed, and claims using functional language being rejected, even though the two sets of claims are identical by definition. [00:32:18] Speaker 01: Even if you think there's some illogic to it, what's the harm in using it as a presumptive burden shifting [00:32:27] Speaker 01: basis for analysis. [00:32:29] Speaker 05: Because functional language is actually how you tell the public how you know whether a given component is present in the system or not. [00:32:37] Speaker 05: So functional language provides the public with a test. [00:32:40] Speaker 05: Here's how you know. [00:32:40] Speaker 05: Does your alleged infringing component [00:32:44] Speaker 05: literally infringe or does it not literally infringe? [00:32:47] Speaker 05: You run the test and then you know. [00:32:48] Speaker 05: The Patent Office position is promoting the idea that applicants should hide that test because if you reveal that test, they're going to say, oh, it's functional. [00:33:01] Speaker 05: And therefore, we're going to reject it and we're going to put the initial burden on you to prove that it's not in the prior art, which is very difficult because proving a negative is always much harder than proving a positive. [00:33:11] Speaker 05: In this case, for example, I don't think there's any evidence that could have possibly been provided that would have convinced this examiner [00:33:19] Speaker 05: that disrupted flow was a distinguishing characteristic. [00:33:24] Speaker 05: And in fact, what this examiner did is pretty typical, I believe, where the patent examiners say, well, it's functional. [00:33:31] Speaker 05: I'm not going to consider it. [00:33:32] Speaker 05: I don't need to. [00:33:34] Speaker 05: And that's what happened in this case. [00:33:35] Speaker 05: The examiner said, well, it's capable of having disrupted flow. [00:33:39] Speaker 05: Therefore, I'm not going to consider it as a patentable feature of the invention. [00:33:47] Speaker 05: And so this, even though it's illogical, yes, but it's also contrary to public policy because it discourages applicants from explaining how you know whether a component is or is not within the claim. [00:34:01] Speaker 05: You need to have a test. [00:34:04] Speaker 05: If you're going to be highly, highly specific, you need to have a test. [00:34:07] Speaker 05: How do you know whether a widget is in the claim? [00:34:10] Speaker 05: Well, how do you know something is a widget? [00:34:12] Speaker 05: Well, if you do these three tests and it meets all the criteria, then it's a widget. [00:34:18] Speaker 05: If it doesn't, then it's not. [00:34:19] Speaker 05: That's good to tell the public that. [00:34:21] Speaker 05: We would like to tell the public that. [00:34:23] Speaker 05: So we will know whether a claim is literally infringed or not literally infringed. [00:34:30] Speaker 01: Anything else? [00:34:48] Speaker 05: The honorable court is adjourned until tomorrow morning at 10 a.m.