[00:00:00] Speaker 04:
This morning is 15 1 3 8 7 in Rayvajan incorporated

[00:01:06] Speaker 04:
Whenever you're ready, Mr. Ryan.

[00:01:08] Speaker 03:
May it please the court, Andrew Ryan for Vijan.

[00:01:14] Speaker 03:
So it is Vijan's position that the board committed legal error by ignoring its expert's declaration, the declaration of Dr. Bailey.

[00:01:23] Speaker 03:
The board dismissed of Dr. Bailey's entire declaration in a single sentence with no indication that it gave any consideration to his experience, knowledge,

[00:01:35] Speaker 03:
as a person of skill in the art as they're required to do under KSR.

[00:01:44] Speaker 03:
And it really is harmful because if you follow the logic that Dr. Bailey lays out in his declaration, it becomes clear that the board's grounds for obviousness just do not hold water.

[00:01:59] Speaker 04:
It seemed to me that the factual support for the Bailey Declaration didn't really add much because those arguments were duplicated by attorney argument so that at the end of the day, whether or not they attributed the argument to the Bailey Declaration or the attorney, the board covered everything that had been submitted.

[00:02:19] Speaker 04:
Am I wrong about that, Will?

[00:02:22] Speaker 03:
The problem is that they treated the Bailey Declaration like attorney argument without giving it the proper consideration.

[00:02:29] Speaker 03:
of the expert evidence that it is.

[00:02:33] Speaker 03:
I mean it is entitled to make the standards a significant consideration.

[00:02:40] Speaker 02:
What aspect of the Bailey Declaration shows non-obviousness?

[00:02:44] Speaker 03:
Well, so starting with the Janino reference.

[00:02:52] Speaker 03:
When you look to Janino,

[00:02:57] Speaker 03:
Genino describes combining methylacetate with water, and it stops there with regard to methylacetate.

[00:03:04] Speaker 03:
There's no discussion in Genino of adding yet another solvent to the methylacetate in water.

[00:03:09] Speaker 03:
In fact, in Genino, it does talk about adding a third solvent to ethylacetate, but not the methylacetate.

[00:03:19] Speaker 03:
So the lesson a person of skill in the art takes away from Genino is methylacetate, water, you're done.

[00:03:26] Speaker 03:
In the alternative, what it shows is a biphasic solution, not a single-phase solution.

[00:03:33] Speaker 03:
Either way, there's no indication, there's no teaching, there's no pathway from Janino for a person of skill in the art to combine methylacetate with glycol ether.

[00:03:45] Speaker 03:
Dr. Milley lays all that out, giving his impression of what Janino says to him as a person of skill in the art.

[00:03:51] Speaker 03:
There's no indication the board gave it any more weight than they did attorney argument.

[00:03:56] Speaker 03:
as they should have.

[00:03:58] Speaker 03:
But they're not compelled to give it particular weight.

[00:04:02] Speaker 03:
Correct.

[00:04:03] Speaker 03:
Not compelled to give it weight, but they're not allowed to ignore it.

[00:04:06] Speaker 03:
And I think it's clear that they did.

[00:04:08] Speaker 04:
The substance of what he said, they dealt with it.

[00:04:10] Speaker 04:
I thought you just told us that they dealt with it, but they just dealt with it as if it was attorney argument.

[00:04:15] Speaker 04:
So you're drawing some distinction between whether or not they said this came from the Bailey Declaration or this came from the attorney argument.

[00:04:23] Speaker 03:
Right.

[00:04:23] Speaker 04:
What is that distinction?

[00:04:24] Speaker 03:
Well, it's entitled to some consideration beyond just mere attorney argument.

[00:04:30] Speaker 03:
It can't be ignored, and they did ignore it, even though they addressed it in that one sentence.

[00:04:34] Speaker 02:
Well, they also addressed it in the hearing.

[00:04:40] Speaker 03:
Well, not in its entirety, though.

[00:04:50] Speaker 03:
that didn't follow his logic through why Janino and Perlman don't guide you to the claimed composition.

[00:05:10] Speaker 03:
When you understand that the board simply ignored his testimony as a person of skill in the art and treated it only as attorney argument, it does become clear that

[00:05:20] Speaker 03:
the board's obvious analysis is really a true hindsight analysis using the 532 patent as a template.

[00:05:28] Speaker 03:
Because there's nothing in Janino and Perlman that guides a person of skill in the art to the combination of methyl acetate and glycol ether.

[00:05:37] Speaker 03:
Like I said, Janino, it clearly talks about methyl acetate, water, stop.

[00:05:44] Speaker 03:
There's nothing for a person of skill in the art to go on there to add something else.

[00:05:48] Speaker 03:
And then they

[00:05:48] Speaker 03:
They really did just kind of went out and cherry picked a reference Perlmin that includes glycol ether.

[00:05:57] Speaker 03:
In a classic way, just using the 532 claims to go out and find what they needed.

[00:06:03] Speaker 03:
Dr. Bailey did use his background knowledge when he analyzed Perlmin and realized that Perlmin is directed to non-volatile solutions, compositions,

[00:06:18] Speaker 03:
and that if one were to just for no reason add methylacetate to that composition, because remember Perlman doesn't mention methylacetate at all, for no reason to add methylacetate to that composition you'd lose the benefits of the non-volatile composition that Perlman is really all about.

[00:06:35] Speaker 02:
It sounds to me as though what you're arguing is that the board can't disagree with an expert declaration.

[00:06:45] Speaker 03:
They can't ignore it.

[00:06:47] Speaker 03:
It's clear from our reading of their decision that they did simply ignore it.

[00:06:53] Speaker 03:
It is akin, I think, to a case like Sullivan, where the court mentioned the expert declarations in a footnote, indicated that they weren't going to granted weight for a certain reason.

[00:07:09] Speaker 03:
But at the end of the day, they did go on and ignore it, which is what this court found.

[00:07:13] Speaker 03:
Same with Rizbicki.

[00:07:15] Speaker 02:
the board.

[00:07:16] Speaker 02:
My recollection of Sullivan is that we held that they had rejected the declarations for an incorrect reason.

[00:07:27] Speaker 03:
They did.

[00:07:28] Speaker 03:
In a footnote.

[00:07:30] Speaker 03:
And then this court held that they were obligated to consider those declarations.

[00:07:36] Speaker 02:
They were obligated not to reject them for an incorrect reason.

[00:07:43] Speaker 03:
you go to Rizvicki and the language is clear that it's they're obligated not to ignore it for whatever reason.

[00:07:48] Speaker 02:
There was no rejection here of the Bailey Declaration for an incorrect reason, was there?

[00:07:55] Speaker 03:
Yeah, ostensibly the reason they gave is that it was entirely based on his opinion and no other outside facts.

[00:08:05] Speaker 03:
First of all, even if that were true, that's not

[00:08:08] Speaker 03:
grounds for ignoring a declaration.

[00:08:10] Speaker 03:
It still must be considered.

[00:08:12] Speaker 04:
Well, you keep on saying ignoring.

[00:08:14] Speaker 04:
I mean, what they said is his general opinion testimony is entirely based on the teachings and the reference and provides no factual based evidence in addition to the teachings of the prior art itself.

[00:08:24] Speaker 04:
They're allowed to therefore give it less weight than they might otherwise do.

[00:08:29] Speaker 04:
You conclude that they ignored it.

[00:08:30] Speaker 04:
I think a fair conclusion is that because of what they said,

[00:08:34] Speaker 04:
they considered it but gave it less weight than you might wish they had given it to.

[00:08:39] Speaker 03:
Right.

[00:08:40] Speaker 03:
Well, it's probably always a fine line whether a piece of evidence is giving little or no weight or whether it's completely ignored.

[00:08:49] Speaker 01:
Well, I would think ignored means not referred to or not relied on.

[00:08:54] Speaker 01:
And the determination clearly shows that both.

[00:08:58] Speaker 01:
They do refer to it.

[00:09:00] Speaker 01:
They do rely on the declaration to say it's

[00:09:03] Speaker 01:
we move on because this declaration does not help.

[00:09:05] Speaker 03:
They say that, but there have been other situations where the court has kind of given

[00:09:15] Speaker 03:
respectfully I'll say lip service or the board is giving lip service to it.

[00:09:18] Speaker 04:
They address the arguments made in that you want to call out Bailey.

[00:09:21] Speaker 04:
They address those.

[00:09:22] Speaker 04:
You just think they should have addressed it from a different perspective since they addressed it as if it were an argument and they should have given deference to him because he's an expert.

[00:09:32] Speaker 04:
I don't understand.

[00:09:32] Speaker 03:
Yeah, they gave no explanation as to why his impressions of the prior art, given his status as an expert in the art, weren't impactful at all.

[00:09:44] Speaker 01:
Well, it does.

[00:09:45] Speaker 01:
It says that Bailey's opinion provides no factual-based evidence in addition to the teachings of the prior art itself.

[00:09:55] Speaker 01:
So it found that the Bailey Declaration basically went through the prior art, and that was it.

[00:10:01] Speaker 03:
His opinion, as an expert, is itself evidence that must be considered.

[00:10:10] Speaker 03:
Another point is when the board addressed the Jeruzic reference for Representative Claim 3 regarding sodium acetate, that's at page 21 of the record, the court's page 15 of the board's decision, they simply said, we are not persuaded that Jeruzic is not analogous art for the limited purpose for which the examiner cites the reference.

[00:10:34] Speaker 03:
It's a conclusion they just reached themselves without any discussion at all of

[00:10:40] Speaker 03:
of Dr. Bailey's impressions of jurusic.

[00:10:44] Speaker 03:
It's like a case like Rezbicki, where they substituted their own judgment for that of the expert.

[00:10:50] Speaker 03:
I think that's an indication of how the board treated the Bailey declaration.

[00:11:00] Speaker 03:
This debate about whether or not they gave it no weight or whether they ignored it, I think that indicates that it was.

[00:11:07] Speaker 03:
They did completely ignore it inappropriately.

[00:11:11] Speaker 03:
I see that I'm into my rebuttal time.

[00:11:22] Speaker 00:
May I please the court.

[00:11:24] Speaker 00:
The central theme of Vijan's appeal is that the board aired its consideration of Dr. Bailey's declaration.

[00:11:30] Speaker 00:
The board did not, however, ignore Dr. Bailey's declaration.

[00:11:34] Speaker 00:
Rather, the board simply found the declaration unpersuasive.

[00:11:37] Speaker 00:
stating that the declaration lacked any factual evidence outside the teaching of the cited prior art to support Dr. Bailey's general opinion testimony.

[00:11:46] Speaker 00:
And unlike the cases by John Seitz, the board directly addressed each argument on which Dr. Bailey opined and rejected them on the merits as unsupported or contradicted by the cited prior art.

[00:12:00] Speaker 00:
This is true for each of the representative claims on appeal.

[00:12:04] Speaker 00:
For claim one, the board found, contrary to Dr. Bailey's opinion, that a person of skill in the art, for numerous reasons, would have expected to use the glycol ethers to form a single-phase composition.

[00:12:16] Speaker 00:
Opposing counsel mentions Dr. Bailey's reference to Janino and Perlman, but the board and the examiner, specifically the examiner, found that Janino, in fact, taught a single-phase composition, a homogenous composition,

[00:12:32] Speaker 00:
and that Perlman was not the primary reference relied on, rather that that was Gerima which taught all the limitations except the buffer.

[00:12:40] Speaker 00:
For the representative claim three, the board found that juristic was reasonably pertinent for the purpose of teaching sodium acetate as a well-known pH buffer in the chemical arts.

[00:12:53] Speaker 00:
The board was simply not required to ignore the prior art and accept Dr. Bailey's opinion just because he said so.

[00:13:01] Speaker 00:
unless there's any other questions.

[00:13:03] Speaker 00:
We ask that the board's opinion be affirmed.

[00:13:05] Speaker 00:
Thank you.

[00:13:09] Speaker 03:
Unless there's any questions, Your Honors, we'll rely on our briefs.

[00:13:13] Speaker 04:
Thank you.

[00:13:14] Speaker 04:
Thank you.

[00:13:14] Speaker 04:
We thank both parties for cases submitted that concludes our proceedings for this morning.

[00:13:20] Speaker 02:
All rise.

[00:13:25] Speaker 03:
The honorable court is adjourned until tomorrow morning at 10 o'clock a.m.