[00:00:10] Speaker 03:
The final case for argument this morning is 151773, red synthetic fuels versus mesquite oil.

[00:01:02] Speaker 03:
OK, I guess we're ready on the scales whenever you're ready.

[00:01:36] Speaker 01:
May I please report?

[00:01:39] Speaker 01:
My name is Shawn Gills.

[00:01:40] Speaker 01:
I am counsel for Patent Owner R.E.G.

[00:01:42] Speaker 01:
in these proceedings.

[00:01:44] Speaker 01:
I have ten minutes for argument, five minutes for rebuttal.

[00:01:48] Speaker 01:
We are appealing the decision of the Board.

[00:01:50] Speaker 01:
We think that two errors were made with respect to their invalidation of claims 105 and 8 of 804 patent, specifically an error based on invalidity by Dendy and invalidity by Craig.

[00:02:04] Speaker 01:
With respect to Dendy, we believe the board incorrectly found that claims 1-358 were invalid by Dendy because the board applied a wrong conception analysis and wrongly excluded evidence that the 804 inventor here, Mr. Apare, had an earlier invention date that predated Dendy.

[00:02:26] Speaker 01:
With respect to Craig, briefly we found that the board erred in finding that Craig anticipated claims 1, 3, 4, and 8 of the 804 patent, particularly where that finding was clearly based on inherent anticipation.

[00:02:40] Speaker 01:
It is undisputed that the reference in question did not expressly disclose the at least 75 weight percent required by the claims.

[00:02:49] Speaker 03:
Well, that's because they used a different method, right?

[00:02:51] Speaker 03:
They used the peak area percent.

[00:02:53] Speaker 01:
Right.

[00:02:53] Speaker 01:
And the board acknowledged in its final written decision that peak area percent and weight percent are not equivalent.

[00:03:01] Speaker 01:
And here, what the board did was credit NSBE's expert, Dr. Klein, who used response factors to try to correlate peak area percent on the one hand to weight percent.

[00:03:16] Speaker 01:
But the objective evidence, here we presented Horrocks, Jurassicia, and even Dindie

[00:03:22] Speaker 01:
But particularly with Clorox and Jurassicia, that evidence said, you've got to look at the relative response factors for the particular machine in question.

[00:03:32] Speaker 01:
Here, Craig used a GC-MS detector.

[00:03:36] Speaker 01:
There was no information in the record on the actual operating conditions or what response factors were appropriate for the machine or detector that Craig used.

[00:03:47] Speaker 01:
All Klein did was pull response factors out of other literature.

[00:03:51] Speaker 01:
What Gorak and Chaurasia say is that when you do that, you've got to apply correction.

[00:03:57] Speaker 01:
And particularly, Chaurasia says that if you don't apply correction, you can have error up to 20%.

[00:04:03] Speaker 01:
And that's at JA2965, also supported by JA3905 to 07.

[00:04:10] Speaker 01:
And also in our expert report, Mr. Lam's or Dr. Lam's second declaration.

[00:04:15] Speaker 04:
In that portion of Chaurasia, it was describing what

[00:04:19] Speaker 04:
some other reference, Souter was talking about, with respect to Souter's own test results, right?

[00:04:27] Speaker 04:
Right, but I think... I guess what I'm trying to figure out is, is this some hard and fast rule?

[00:04:33] Speaker 04:
If you don't do the correction, then all of a sudden, you know, any attempt to translate from area percent to weight percent is going to be so unreliable that it could be as great at 20 percent.

[00:04:46] Speaker 04:
Or was Chaurasia being more

[00:04:49] Speaker 04:
observational about something that Souter was simply describing about Souter's own testing?

[00:04:55] Speaker 01:
I think when you look at the objective evidence in full and you look at the detectors in question, Craig used a GCMS detector, which is understood by those of skill in the arc as helping you identify what a compound is.

[00:05:09] Speaker 01:
But if you want a quantitative measurement of how much you have,

[00:05:14] Speaker 01:
A person of skill in the art in the literature talks about the need to use a GCFID detector, which is what Dendy does at JA656.

[00:05:26] Speaker 01:
And part of what our expert and even our own inventor did, he used GCFID data to determine quantitatively what was the actual weight percent of the high even carbon number paraffins in question.

[00:05:42] Speaker 01:
And he did that long before there was this priority dispute.

[00:05:46] Speaker 01:
And we submitted evidence of that at J8263946.

[00:05:51] Speaker 01:
And again, what Gorachs and Shirassia talk about is you use these relative response factors

[00:06:01] Speaker 01:
But then you have to apply correction.

[00:06:03] Speaker 01:
You have to have the objective evidence requires certain calibration data and information about the equipment being used.

[00:06:12] Speaker 01:
And here we didn't have that.

[00:06:14] Speaker 01:
And so what Dr. Klein does is he first uses some RMR values in Sioux, then he uses some RMR values that he pulls out of Gorax and Terrasia to get some data.

[00:06:25] Speaker 01:
And all the board says is what he comes up with is about the same.

[00:06:31] Speaker 01:
But Klein admits that he never uses correction, which is what Garrocks and Shirassi had tell you to do in both of those references.

[00:06:40] Speaker 01:
And what's interesting is the board refuses to find a Claim 2, which requires an 80 weight percent of the claim of even carbon number paraffins.

[00:06:52] Speaker 01:
The board refuses to find a Claim 2, as anticipated, because the data that Klein presents shows 82 weight percent.

[00:07:00] Speaker 01:
So if 82 weight percent isn't close enough to at least 80 weight percent, how is 82 weight percent close enough to 75 weight percent?

[00:07:13] Speaker 01:
The board doesn't explain why that delta is adequate.

[00:07:17] Speaker 04:
And I think that delta is inadequate.

[00:07:19] Speaker 04:
Couldn't the inference be that there's a buffer zone between the measured 82 weight or the calculated 82 weight and the claimed 75 weight?

[00:07:31] Speaker 04:
so that the board just had a much greater sense of peace of mind that the 75% or higher value was met by the 82% calculated number compared to a claim that's calling for 80% or higher, where that maybe was just a little too close for comfort for the board to feel confidence in affirming that kind of a rejection.

[00:07:56] Speaker 01:
Again, we submit that the board doesn't make that analysis of what is an acceptable buffer.

[00:08:01] Speaker 01:
And you've got to have a prior reference to hold on to.

[00:08:06] Speaker 01:
And here, the objective evidence of record, Sharasia, reports error up to 20%.

[00:08:14] Speaker 01:
And to me, if you're going to have any type of reasonable buffer, you've got to be outside of the reported error range.

[00:08:21] Speaker 04:
Sharasia also mentioned 3% to 5% error rate, right?

[00:08:25] Speaker 01:
Right, but there's no discussion of why 3 to 5 percent error in this case would be, is more likely as opposed to the upper end of 20 percent, particularly when we simply don't have the data on what equipment Craig used.

[00:08:41] Speaker 01:
And again, Klein does not go through that analysis as to why the error is expected to be in the lower end of the range as opposed to the higher end of the range.

[00:08:51] Speaker 01:
And nor does the board go through that analysis, which we think would be necessary.

[00:08:55] Speaker 03:
Before we run out of time, I'd like to turn to what I guess is really the first issue that you raised.

[00:09:01] Speaker 01:
Yes.

[00:09:02] Speaker 01:
So let's talk about the board's error with respect to DENDE.

[00:09:06] Speaker 01:
Again, we think the wrong conception analysis was applied.

[00:09:10] Speaker 01:
The law and the law of this circuit says the inventor doesn't need to attach special significance to his experimental results.

[00:09:18] Speaker 01:
He only needs to appreciate the fact

[00:09:20] Speaker 01:
of what he made.

[00:09:21] Speaker 01:
Here, a diesel product.

[00:09:23] Speaker 04:
If hypothetically, we or I were to conclude that exhibit 2061 should have been admitted for the purposes of showing that this particular inventor was trying to get to a high, high purity of even carbon number paraffins, and then that in

[00:09:48] Speaker 04:
addition to the admitted exhibits establishes conception.

[00:09:54] Speaker 04:
Then is there any need to go further and try to, you know, do this trench warfare through the remaining exhibits?

[00:10:05] Speaker 01:
I think we've got enough, even without 2061, which was admitted by the board for the limited purpose of showing that Mr. Apare contacted Microtech, a known producer of PCMs, but I would agree with you.

[00:10:17] Speaker 01:
2061 only further adds to the pie that already establishes conception.

[00:10:24] Speaker 05:
Let me ask a question in a slightly different way.

[00:10:29] Speaker 05:
If we thought the currently admitted evidence, plus or without plus the 2061, was sufficient to mandate a conception finding,

[00:10:41] Speaker 05:
do we need to reach the other evidentiary exclusion issues or are those immaterial to anything remaining in the proceedings such as reduction of practice?

[00:10:54] Speaker 01:
I think you may not need to look at them because as we argue in our brief on reduction of practice, the admitted evidence by the board

[00:11:04] Speaker 01:
Exhibit 2004, 2007, 2011, 2058, all show reduction of practice.

[00:11:12] Speaker 01:
And I want to point out with respect to Price and Loom, which we also cite, or Price, which we cite in our papers, and Loom, which is a case that Price cites, Price involved a single drawing, Exhibit 13.

[00:11:24] Speaker 04:
And there was- I'm trying to remember, the Board never reached a finding on reduction of practice or diligence here, right?

[00:11:31] Speaker 04:
They did not.

[00:11:33] Speaker 04:
I don't know if we'd be inclined, if we were to agree with you on conception, to decide up here in the first instance on intelligence and reduction of practice, especially when I think your argument is about a simultaneous conception or reduction of practice, whereas conception probably doesn't require some proof of conception, that it works for its intended purpose.

[00:11:59] Speaker 04:
In reduction of practice, that is a requirement.

[00:12:02] Speaker 04:
And then there's some question on this record in front of us on whether or not there needed to be additional testing to establish that this did work or could work as a PCM or as a diesel product in light of possible impurities and things like that.

[00:12:24] Speaker 01:
I don't think there's any question that this was a useful composition.

[00:12:28] Speaker 01:
Mr. F. Harvey certainly knew on May 31st of 2007 when he got the chromatogram in exhibit 2004 that he had a useful diesel product.

[00:12:38] Speaker 01:
The prior art already established.

[00:12:40] Speaker 01:
We cited to Wong in our papers that the usefulness of diesel fuel products were well known and compositions of this type.

[00:12:51] Speaker 01:
We also cite two in the patent were useful as specialty chemicals, diesel fuels, fuel additives.

[00:12:56] Speaker 04:
Isn't there something else in the record that says you have to make sure that there isn't a high number of impurities, though, in the resulting product?

[00:13:06] Speaker 01:
not that's covered by the claim.

[00:13:08] Speaker 01:
When we look at conception, we've got to look at the claim language.

[00:13:11] Speaker 01:
And the claim language has a phase change composition that has this 75% weight, even carbon number paraffins made by HDO using fatty acids and esters, the type of feedstocks that are mentioned in the claim.

[00:13:29] Speaker 01:
Here, part of what we argue in our brief, our opening brief at 57 and 58,

[00:13:34] Speaker 01:
is that reduction of practice is commensurate with conception.

[00:13:37] Speaker 01:
That chromatogram showed that as of May 31, 2007, Mr. Epare had produced at Centrolium a composition according to the method that met the claim limitation.

[00:13:52] Speaker 01:
And he continued to do that work over the next several months within Centrolium from about June to August or October of 2007 or so.

[00:14:02] Speaker 01:
And those exhibits of additional 18 GCFID chromatograms are in Exhibit 2007.

[00:14:08] Speaker 01:
And then SWRI with their work and the communications back and forth in Exhibit 2011 and in 2058, you have another 80 or so GCFID chromatograms, most of which show

[00:14:26] Speaker 01:
Again, claim compositions meeting all of the claim limitations that are at issue, claims one and five and eight.

[00:14:33] Speaker 01:
So again, unlike Price, where there was quibble about a single drawing and whether that drawing was independent cooperation, we've got in the relevant time period.

[00:14:45] Speaker 01:
So we're looking at the time period from prior to Dendy.

[00:14:49] Speaker 01:
Dendy was filed June 13th of 2008.

[00:14:52] Speaker 01:
And if you look at the chromatograms in 2058, and again, there are 80 of them.

[00:14:57] Speaker 01:
But if you only focus on the ones that are prior to June 13, that's 60-plus chromatograms just in that single exhibit, plus the ones that Mr. Abhari and people working under his direction at Centrolium, the predecessor REG, got internally.

[00:15:16] Speaker 01:
These show production of the claimed composition

[00:15:21] Speaker 01:
according to the process, and using multiple feedstocks.

[00:15:25] Speaker 04:
He didn't just use... Ms.

[00:15:27] Speaker 04:
Gills?

[00:15:27] Speaker 04:
Yes, sir.

[00:15:28] Speaker 04:
I guess the chromatograms, when you add up all the percentages for the C14, C16, C18, C20, they get you to roughly 80%.

[00:15:37] Speaker 04:
Yes, sir.

[00:15:39] Speaker 01:
At least 75% weight as to the vast majority of the chromatograms that are in the admitted evidence.

[00:15:45] Speaker 04:
The charts that I'm reading in exhibit 2058 report out area percent, not weight percent.

[00:15:51] Speaker 01:
And I'll comment on that.

[00:15:52] Speaker 01:
And again, this is something that is in the record in that Mr. Apare and both SWRI are using GCFID.

[00:16:04] Speaker 01:
And GCFID, again, is a different type of detector than the mass spec detector used by CREC, the prior that we talked about earlier.

[00:16:16] Speaker 01:
A mass spec detector is only accurate for telling you what you have.

[00:16:23] Speaker 01:
The FID detector is a much better approximator of the percentage of what you have.

[00:16:31] Speaker 01:
And even the peak area in a GCFID detector is going to be much closer to the weight percentage in a FID detector than what you would get using a mass

[00:16:46] Speaker 01:
MS detector such as Craig did.

[00:16:49] Speaker 01:
So those two are more equivalent.

[00:16:51] Speaker 01:
We're not talking about the equivalent between peak area of an MS detector on the one hand versus weight percentage on a

[00:17:01] Speaker 01:
FID detector.

[00:17:02] Speaker 01:
On the other hand, we're talking about the same detector, two different types of measurements, and within that same detector, they're close.

[00:17:10] Speaker 01:
But even there's testimony from Mr. Apari that he did some correction within his lab.

[00:17:16] Speaker 01:
And he followed the right steps and did correction.

[00:17:19] Speaker 01:
None of that was done by Dr. Klein when he analyzed Craig and the board even acknowledging that correction could be done doesn't explain why

[00:17:29] Speaker 01:
Klein's analysis of Craig is acceptable.

[00:17:32] Speaker 01:
And we think that's clear error, particularly when you're talking about inherent anticipation.

[00:17:38] Speaker 01:
This is not something that is within the four corners of Craig.

[00:17:42] Speaker 01:
You have to look outside of Craig to an expert who admittedly didn't go through all the steps.

[00:17:49] Speaker 01:
That's error.

[00:17:51] Speaker 03:
I think we're going to bring this to an end while we store some rebuttal time.

[00:17:54] Speaker 03:
Thank you.

[00:18:04] Speaker 02:
Thank you, Your Honor.

[00:18:05] Speaker 02:
May it please the court, Mike Flitter for an essay on it.

[00:18:08] Speaker 02:
The board thoroughly analyzed the evidence here and made detailed factual findings.

[00:18:12] Speaker 02:
And they're both in their final reading decision and in their decision on the motion to exclude evidence.

[00:18:17] Speaker 02:
And RH has not shown that those findings lack substantial evidence.

[00:18:22] Speaker 02:
The board also applied the correct legal analysis on the DINTY issue on conception.

[00:18:26] Speaker 02:
The board relied on in vitrogen.

[00:18:28] Speaker 04:
Can we first go to the FID detector versus MS detector argument that the other side is making and that Craig, I guess, was using the wrong detector.

[00:18:43] Speaker 04:
It's the unreliable detector and so therefore we can't really reliably translate that to a weight percentage.

[00:18:50] Speaker 04:
What's your response to that?

[00:18:52] Speaker 02:
Your Honor, the board heard all of these arguments.

[00:18:54] Speaker 02:
They had a number of different critiques.

[00:18:56] Speaker 02:
of Dr. Klein's analysis.

[00:18:58] Speaker 02:
Dr. Klein has a lot of experience, 30 years of engineering experience, PhD from MIT.

[00:19:04] Speaker 02:
The board heard his testimony.

[00:19:06] Speaker 02:
They evaluated all these different critiques and they found that his testimony was credible.

[00:19:10] Speaker 02:
So they found that it was perfectly reasonable in this art to take these figures that were expressed in GC area percents and use relative response factors to convert them to corresponding weight percents.

[00:19:23] Speaker 02:
And if you look, he used three different sets of calculations.

[00:19:26] Speaker 02:
including two of the references that REG identified.

[00:19:30] Speaker 02:
So he essentially took all the literature values, he did different calculations, he has a table of those results, and the results are very consistent.

[00:19:38] Speaker 02:
And the board found that that was persuasive evidence that when one uses relative response factors, as is perfectly appropriate in this heart, one gets values that are well above the 75% claim limitations.

[00:19:51] Speaker 04:
Did you say anything with respect to the two different types of detectors?

[00:19:55] Speaker 02:
Well, he acknowledged that it's possible to directly use GCFID for quantitative analysis.

[00:20:03] Speaker 02:
That doesn't mean that GCMS is inappropriate.

[00:20:06] Speaker 02:
And in fact, there's nothing in the claim requiring any particular type of analysis of the weight percent.

[00:20:11] Speaker 02:
There's nothing in the patent saying that one has to do this in any particular way.

[00:20:14] Speaker 02:
And so it simply requires a weight percent of 75%.

[00:20:19] Speaker 02:
And persons skilled in the art recognize and appreciate

[00:20:23] Speaker 02:
that area percents for GC-MS can be reasonably converted to corresponding weight percents.

[00:20:28] Speaker 02:
And if you look at Dr. Klein's table, the values are almost the same.

[00:20:32] Speaker 02:
So this is a small change.

[00:20:34] Speaker 02:
Area percent to weight percent change.

[00:20:36] Speaker 02:
This is not a very large change in the number.

[00:20:38] Speaker 02:
It's a small correction.

[00:20:40] Speaker 02:
Now, I wanted to address the 20% argument, because I think this is a good illustration of why RNG is simply arguing facts.

[00:20:48] Speaker 02:
This is from Sharasha.

[00:20:49] Speaker 02:
Yes.

[00:20:50] Speaker 05:
Is that a 20% off a percentage or off a absolute quantity?

[00:20:56] Speaker 02:
Now, their reply brief really kind of glosses over what it is.

[00:20:59] Speaker 05:
Is it a cross-section measurement that they're talking about?

[00:21:02] Speaker 02:
They're talking about the relative response factor.

[00:21:05] Speaker 02:
So in other words, this reference, and it's a reference within a reference, they don't provide the actual reference, but it's talking about up to 20% error for the relative response factor.

[00:21:16] Speaker 02:
But they make no assertion that even if one were to change these relative response factors by 20%, the one would get a value below 75%.

[00:21:25] Speaker 02:
So that's one point.

[00:21:26] Speaker 02:
The other point, which I think is really critically important, is that that reference is not talking about paraphrase.

[00:21:34] Speaker 02:
It's talking about completely different compounds.

[00:21:37] Speaker 02:
And it's identified at page JA2965.

[00:21:41] Speaker 02:
It's talking about polycyclic

[00:21:44] Speaker 02:
aromatic hydrocarbons and polychlorinated biphenyl pollutants.

[00:21:49] Speaker 02:
So those are not the same compounds.

[00:21:51] Speaker 02:
So they're asking this court to make findings about this 20% error based on compounds that are not even the same as the claimed compounds.

[00:22:01] Speaker 02:
So these are the types of arguments they made before the board.

[00:22:05] Speaker 05:
Can I just ask a question because I'm just confused about this.

[00:22:08] Speaker 05:
So I've been looking at this same page 2965.

[00:22:13] Speaker 05:
and the paragraph that talks about Souter having a range of errors plus or minus 20% of the observed values.

[00:22:23] Speaker 05:
I'm going to say what I understand this to mean, and then you please correct me.

[00:22:27] Speaker 05:
Those values are atomic or molecular cross-sections.

[00:22:32] Speaker 05:
They're not ratios.

[00:22:33] Speaker 05:
They're not percentages.

[00:22:35] Speaker 05:
So it would not be the case that we're talking about a relative percent moving

[00:22:42] Speaker 05:
by as much as 20 percent.

[00:22:46] Speaker 02:
Is that right?

[00:22:46] Speaker 02:
That is absolutely correct, Your Honor.

[00:22:47] Speaker 02:
It's not talking about all of a sudden the weight percent is reduced by 20 percent.

[00:22:51] Speaker 02:
It's talking about one of the factors used in their prediction, okay?

[00:22:55] Speaker 02:
And so it's not even, and they don't point that out in their brief.

[00:22:59] Speaker 02:
They sort of gloss over and they say up to 20 percent error, and they're not being really particularly fair about that.

[00:23:04] Speaker 02:
And I think also, as I said, it's not the same compounds.

[00:23:08] Speaker 02:
These are much more complex molecules.

[00:23:10] Speaker 02:
So even if you could have a 20% up to a 20% error, for some polycyclic aromatic compound, that is not the linear straight chain alkanes that we're talking about that are in the claims.

[00:23:21] Speaker 02:
So it's completely irrelevant in this case.

[00:23:24] Speaker 02:
But the board, the fact is, the board heard all of these technical critiques and they found them unpersuasive.

[00:23:29] Speaker 02:
And they're simply re-arguing technical facts on appeal, which the board carefully considered and found unpersuasive.

[00:23:40] Speaker 05:
On the DINDI issue, were some exhibits excluded or discounted, one or the other, on the basis of treating the, of requiring a particular utility, namely of the, what's the acronym?

[00:24:00] Speaker 05:
For PCM?

[00:24:01] Speaker 05:
Yeah, right.

[00:24:02] Speaker 05:
The problem here was they decided... Which the board initially concluded is not actually a claim limitation.

[00:24:08] Speaker 05:
Yes, they correctly... So there seems kind of a dissonance there.

[00:24:10] Speaker 02:
Well, they correctly interpreted the claims, but they found that... Well, the problem here was they presented only one witness.

[00:24:17] Speaker 02:
They decided to put their entire conception case on the inventor.

[00:24:21] Speaker 02:
They have no expert testimony, no other fact witness.

[00:24:24] Speaker 02:
And as a result of that, they had problems with evidentiary issues, for one thing.

[00:24:29] Speaker 02:
They had hearsay problems, they had authentication problems,

[00:24:32] Speaker 02:
under the Chen case and other decisions, which have held that it's inappropriate to have an inventor authenticate a document and then say, oh, that corroborates my testimony.

[00:24:41] Speaker 02:
That's well established in the case law.

[00:24:43] Speaker 02:
The board cited that law.

[00:24:45] Speaker 02:
They had hearsay problems.

[00:24:47] Speaker 02:
I wanted to mention the Microtech document, which was mentioned.

[00:24:51] Speaker 02:
We had a hearsay objection to that document.

[00:24:54] Speaker 02:
And as the board pointed out in footnote seven on J822,

[00:24:59] Speaker 02:
REG just responded that they were not offering that for the truth.

[00:25:03] Speaker 02:
They were only offering it to show that he contacted Microtech.

[00:25:07] Speaker 02:
So that document cannot establish any facts that are set forth in that document.

[00:25:12] Speaker 02:
It's only the fact that he contacted Microtech is what it was admitted for.

[00:25:17] Speaker 02:
So that document is not substantive evidence beyond that one fact.

[00:25:21] Speaker 04:
I thought they wanted to show, they used 2061 to show that

[00:25:28] Speaker 04:
this particular individual, Mr. Ibarra, was at a minimum thinking about trying to get high purity even carbon number paraffins.

[00:25:37] Speaker 04:
And, you know, was shooting for 90 but already had 80 in his mind.

[00:25:42] Speaker 04:
But that's in the substance of the email.

[00:25:44] Speaker 02:
The only fact they admitted it for was that he contacted them, which, by the way, when you say he admitted it, you mean the board admitted it for it.

[00:25:52] Speaker 02:
The board admitted it.

[00:25:53] Speaker 04:
Yes, Your Honor.

[00:25:54] Speaker 02:
But they wanted more than what the board admitted it for.

[00:25:56] Speaker 02:
But during the proceeding below, they only asked for this to be offered to show that he contacted that company.

[00:26:02] Speaker 02:
And also, it's only a party who testify that this is a PCM manufacturer.

[00:26:07] Speaker 02:
The fundamental problem is that every single fact they allege comes right back to the inventor.

[00:26:11] Speaker 02:
They have no independent testimony.

[00:26:13] Speaker 02:
It's only a party who interprets these test results, only a party who says that this company was a PCM manufacturer.

[00:26:20] Speaker 02:
Their briefing refers to numerous other cases.

[00:26:23] Speaker 05:
I mean, I guess it's surprising to me a little bit, but you know that there are cases better than I. It's surprising that there would be a doctrine that says an inventor who happens to be a professional in the field is not qualified without further corroboration to say that IBM is a computer company or micro whatever

[00:26:46] Speaker 05:
is in the business of doing PCM materials or whatever it was.

[00:26:52] Speaker 05:
As opposed to, I did this experiment on this night with nobody looking and no video camera.

[00:27:01] Speaker 02:
Yes, Your Honor, but they have no testimony from anyone else on any of his assertions.

[00:27:05] Speaker 05:
All right, let me ask my question.

[00:27:06] Speaker 05:
Why isn't his testimony on that point, the nature of the company, perfectly sufficient?

[00:27:11] Speaker 02:
Well, he cited no evidence to support it.

[00:27:13] Speaker 02:
He says it.

[00:27:14] Speaker 02:
He's in the business.

[00:27:15] Speaker 02:
Well, he says it, but that was just his bald assertion.

[00:27:18] Speaker 02:
There's no other evidence of that.

[00:27:19] Speaker 05:
And our corroboration doctrine reaches that far that you don't believe a bloody thing he says because he's the inventor?

[00:27:27] Speaker 02:
I think it just goes to the weight, Your Honor.

[00:27:29] Speaker 02:
The board was entitled to weigh that.

[00:27:30] Speaker 02:
That was one of the many facts they considered.

[00:27:32] Speaker 02:
They also considered that they refer to all these other people, Jennifer Parker, who allegedly did testing, Vladimir Groover, Shelley Goodman, Katie Boyle, Don Manscarey Roth, all mentioned in their briefing.

[00:27:43] Speaker 02:
None of them testified.

[00:27:45] Speaker 02:
Then you look at the SWRI documents, the testing documents repeatedly refer to Eloy Flores, Jennifer White.

[00:27:53] Speaker 02:
They never testified.

[00:27:55] Speaker 02:
They never came forward with any other testimony except Dan Benner.

[00:27:58] Speaker 02:
And that was the fundamental problem that the board had with their case.

[00:28:02] Speaker 02:
They had no other evidence other than Upari's own assertions.

[00:28:06] Speaker 02:
And that's where corroboration comes into play.

[00:28:10] Speaker 02:
They had an organizational chart, which is JA 3390.

[00:28:13] Speaker 02:
identifying thirty-fourths and trillion employees, including Mr. Amhari.

[00:28:17] Speaker 02:
Not one of them testified for them.

[00:28:20] Speaker 02:
And I think it's important that they never argued that any witness was unavailable.

[00:28:25] Speaker 04:
What's missing from the documents that were admitted in terms of establishing conception, given that the chromatograms, or whatever you call them, the figures, the data sets keep showing that

[00:28:42] Speaker 04:
They had the high even carbon number of paraffins that was the entire purpose of this exercise.

[00:28:49] Speaker 04:
Right, according to APARI.

[00:28:51] Speaker 02:
Again, they have no experts saying that's true.

[00:28:52] Speaker 02:
They have no other witness saying it's true.

[00:28:54] Speaker 02:
But that's exactly the right question.

[00:28:56] Speaker 02:
And the key here was in vitrogen.

[00:28:59] Speaker 02:
In vitrogen specifically, how the test results alone are not enough and that there has to be evidence that the inventor timely interpreted or evaluated the results.

[00:29:09] Speaker 02:
and understood them to show the existence of the invention.

[00:29:12] Speaker 02:
That's at 429, F3, and 1065.

[00:29:14] Speaker 02:
The board cited that precedent.

[00:29:16] Speaker 02:
That's exactly the problem here.

[00:29:18] Speaker 02:
There's no evidence showing that he contemporaneously evaluated, interpreted any test results.

[00:29:24] Speaker 04:
If 2061 were to be admitted for what we saw as a non-hearsay purpose, then exhibit 2061 shows that appreciation,

[00:29:38] Speaker 04:
mental appreciation of 80%, right?

[00:29:41] Speaker 02:
Well, again, that's going exactly to our hearsay objection, which they did not dispute.

[00:29:47] Speaker 02:
They haven't argued that that was an improper hearsay objection.

[00:29:51] Speaker 02:
So I disagree that could be considered for that reason.

[00:29:55] Speaker 02:
That was adjudicated below, and that's not how it played out.

[00:29:59] Speaker 02:
But the board noted, for example, that even if Hari did not testify as to the nature of the materials sent to Microtech,

[00:30:05] Speaker 02:
or how it was produced.

[00:30:07] Speaker 02:
That was a JA-22, JA-3370.

[00:30:11] Speaker 02:
And the board found that one can't determine from that exhibit what product or process Harry had in mind.

[00:30:16] Speaker 02:
This is JA-23.

[00:30:18] Speaker 02:
And there's no recognition in that document about the significance of even carbon on the paraffins.

[00:30:27] Speaker 02:
And the idea for a non-hearsay use, that document, they're arguing on appeal that

[00:30:32] Speaker 02:
This shows his state of mind, that he believed it could be useful as a PCM.

[00:30:37] Speaker 02:
But again, the board considered that argument.

[00:30:39] Speaker 02:
That's really not a legitimate, not hearsay use.

[00:30:43] Speaker 02:
That's really attempting to show his state of mind for cooperation, that he conceived of the claim of the measure.

[00:30:50] Speaker 02:
Also wanted to note, the Langer case is also entirely consistent with in-metrogen.

[00:30:54] Speaker 02:
In Langer, they had the test results.

[00:30:56] Speaker 02:
They had X-ray diffraction data.

[00:30:58] Speaker 02:
And the court in Langer specifically held that that was not enough.

[00:31:02] Speaker 02:
and that the inventor's testimony in 1968 couldn't be dated back to 1956.

[00:31:06] Speaker 02:
Same problem here.

[00:31:08] Speaker 02:
His testimony in 2014 that he appreciated that he had made a high even carbon number composition can't be dated back to the time period here where they were making essentially a diesel fuel.

[00:31:20] Speaker 02:
I also want to note the board understood, for example, the SWRI documents talking about diesel fuel.

[00:31:26] Speaker 02:
That does not connote anything particular to even carbon number paraffins, a diesel fuel.

[00:31:31] Speaker 02:
And support for that will be found, for example, in the Craig reference itself.

[00:31:36] Speaker 02:
The Craig reference recognizes that diesel fuels are simply paraffins that boil in a particular range, temperature range.

[00:31:48] Speaker 02:
And so there's nothing about having a project making synthetic diesel fuel that has anything to do with a composition having to have at least 75% weight even carbon in the paraffins.

[00:32:02] Speaker 02:
And the board recognized that and made findings on that when they evaluated the SWRI documents for it.

[00:32:11] Speaker 02:
The, the Inherency cases we submit, as a fact, also don't apply.

[00:32:16] Speaker 02:
This is not a case where the reference was silent.

[00:32:18] Speaker 02:
The reference not only had the same starting materials, the same process, as the claimant mentioned, but it had the results.

[00:32:25] Speaker 02:
It had expressed results in Table 9, broken down

[00:32:30] Speaker 02:
by showing all of the even carbon number components and their amounts.

[00:32:34] Speaker 02:
So this isn't a case like Finnegan, for example.

[00:32:37] Speaker 02:
In Finnegan, the Jeffords reference was silent.

[00:32:40] Speaker 02:
All of these cases they cite, the prior was silent on a claim element.

[00:32:44] Speaker 02:
That's inherency.

[00:32:45] Speaker 02:
This was not an inherency situation.

[00:32:47] Speaker 02:
The board fully appreciated that.

[00:32:58] Speaker 02:
The cases they cite, just wanted to note, the cases they cite on the conception have nothing to do with this case.

[00:33:04] Speaker 02:
Hypertech, there were 30 witnesses who testified at trial, including numerous witnesses on the conception issue.

[00:33:09] Speaker 02:
They had signed a witness lab notebooks, which they don't have here.

[00:33:14] Speaker 02:
Burroughs had multiple witnesses testifying in a three-week trial.

[00:33:18] Speaker 02:
There was a draft patent application that had details of how to use AZT to treat AIDS, which was the claim invention there.

[00:33:24] Speaker 02:
The Dow case,

[00:33:27] Speaker 02:
It does stand for the idea that the inventor doesn't have to appreciate the legal patentability of the claims, but the board never did that here.

[00:33:34] Speaker 02:
They did not require any finding, any showing of legal patentability.

[00:33:39] Speaker 02:
And again, in that case, multiple witnesses testified it was more than adequate evidence, and they don't have that here.

[00:33:46] Speaker 03:
Thank you.

[00:33:46] Speaker 02:
Thank you very much, Your Honor.

[00:34:00] Speaker 03:
I don't want to take up a lot of your time, but I really have one question about what your friend said, and that goes to this exhibit 2061, because he referred to the footnote in the board opinion, footnote 7.

[00:34:10] Speaker 03:
And it sounds like the board thinks they were giving you everything you were asking for, i.e., you say, we're not submitting it for the truth, and that they say for only, only to corroborate that he contacted MicroTech.

[00:34:26] Speaker 03:
And they say, okay, we'll do that.

[00:34:29] Speaker 03:
Did the board miss something in terms of your argument?

[00:34:32] Speaker 01:
I think that's an incomplete summary of what we were saying.

[00:34:34] Speaker 01:
We were saying that many of the exhibits had some non-hearsay value.

[00:34:38] Speaker 01:
Conception goes to the mental state of the inventor, what his beliefs were.

[00:34:43] Speaker 03:
So you think this characterization is just wrong?

[00:34:45] Speaker 03:
I mean, they misunderstood what you were saying was the reason they wanted to?

[00:34:50] Speaker 01:
Yes, I believe so, Your Honor.

[00:34:53] Speaker 01:
We put in a lot of the exhibits to show this is what Mr. Alpare believed.

[00:34:57] Speaker 01:
was his invention, number one, and two, that he communicated his ideas to others.

[00:35:03] Speaker 01:
He was communicating with Microtech, and clearly he can.

[00:35:06] Speaker 01:
I agree with Judge Taranto that an inventor can attest to what a company is known for, and that's what he did, and that should be acceptable.

[00:35:17] Speaker 01:
Under the cases that we cite in our papers, Noor, Reese, you can look at the circumstances surrounding all of the evidence.

[00:35:26] Speaker 01:
There's a case that says it would be the antithesis of the rule of reason to require that all of your corroborating evidence had to come from an inventor.

[00:35:37] Speaker 01:
And again, we didn't just put our case on the back of Mr. Aparey.

[00:35:43] Speaker 01:
We submitted, as I mentioned,

[00:35:44] Speaker 01:
99 or so GC chromatograms about 80 or so that are prior to DENDE.

[00:35:50] Speaker 01:
Those are physical exhibits which under Price and Loom, those exhibits stand on their own.

[00:35:56] Speaker 01:
They don't need witness testimony to corroborate them.

[00:36:00] Speaker 01:
A person of skill in the art can look at that GCFID, which is a standard technique for giving a quantitative measure of the weight percent of a compound and see that here,

[00:36:15] Speaker 01:
a chemical composition here, a diesel fuel product, had been produced with at least 75% weight.

[00:36:21] Speaker 01:
The in vitrogen case is an opposite.

[00:36:24] Speaker 01:
There, those were process claims, not composition claims.

[00:36:28] Speaker 05:
Does the conception standard require the fact that Mr. Evari recognized that the even-numbered carbons represented

[00:36:44] Speaker 05:
75, 80, whatever percent?

[00:36:47] Speaker 01:
I think here it does.

[00:36:48] Speaker 01:
I think a person of skill in the art even beyond Mr. Apare could look at exhibit 2004 and see the dramatic peak reflected by C18.

[00:36:59] Speaker 01:
How could you miss that that is a representation of at least 75, 80 percent of an even carbon-numbered paraffin?

[00:37:06] Speaker 01:
and lots of the other GCFID chromatograms that we put into evidence show similar results.

[00:37:12] Speaker 01:
You've got a high peak and then you've got some smaller peaks of some of the other even carbon number paraffins.

[00:37:20] Speaker 01:
It would strain credibility that a person would not recognize what is being shown there.

[00:37:25] Speaker 05:
I guess my, I'm not such a person, but when I look at that, that I recognize there's a very high peak,

[00:37:33] Speaker 05:
Boy, at least I don't immediately translate that into a number.

[00:37:38] Speaker 01:
You can see the number on the document itself on exhibit 2004 and many of the other chromatograms.

[00:37:45] Speaker 05:
The percentage of the area that's made up by the peak?

[00:37:48] Speaker 05:
You can see that?

[00:37:49] Speaker 01:
I think you can, and if you can't, an exhibit that we put in the evidence exhibit 2006, which the board excluded, the actual raw data from, for example, exhibit 2004, is in that spreadsheet.

[00:38:01] Speaker 01:
So there you can get the actual numbers to the extent you can't read it on the chromatogram itself, which is a computer generated and dated document.

[00:38:10] Speaker 01:
We submitted Exit at 2006, which is a spreadsheet that gives you the numerical numbers.

[00:38:14] Speaker 01:
So it'll tell you this is the amount of C-18, this is the amount of C-20, and all of the other even carbon number pair events.

[00:38:22] Speaker 05:
But doesn't conception require that he have noticed and thought about the fact that if he were looking for it, it would be evident on the document?

[00:38:36] Speaker 01:
Again, I think the admitted evidence shows that.

[00:38:38] Speaker 01:
I think the peak would give him that recognition, as well as the fact that in exhibit 2011 that's admitted, the communications with SWRI, he's specifically saying, give me weekly updates.

[00:38:50] Speaker 01:
Give me other GC chromatograms that look like this.

[00:38:53] Speaker 01:
And that's what SWRI, over a period of several months, does.

[00:38:58] Speaker 01:
So if you compare, for example, the chromatograms that are sitting back to him, they look the same.

[00:39:04] Speaker 01:
One of the exhibits that the board did not admit, exhibit 2013, I just want to point out, 2013 has essentially the same chromatograms that are in exhibit 2058 that was admitted.

[00:39:19] Speaker 01:
Nesky had objected to 2013 because some of the emails that had the chromatograms as an attachment weren't initially provided.

[00:39:27] Speaker 01:
Mr. Eppari with his declaration said, here's a compilation of the chromatograms that I received

[00:39:33] Speaker 01:
from SWRI.

[00:39:35] Speaker 01:
We got an objection, so we went back and produced and labeled as exhibit 2058 all of the actual emails that attached those chromatograms.

[00:39:45] Speaker 01:
So again, between 2011 and 2058, you see Mr. F. Harry's instruction.

[00:39:52] Speaker 01:
He's communicating his ideas to a third party.

[00:39:55] Speaker 01:
how to do the process, what to look for, and keep sending me data.

[00:40:00] Speaker 01:
Keep sending it to me weekly.

[00:40:02] Speaker 01:
I want to keep seeing it to show that 2013, which was not admitted, and 2058, which was admitted, have the same information.

[00:40:14] Speaker 01:
You can see, for example, the GC data at page 4 of Exhibit 2013, which is JA2748, and compare that

[00:40:24] Speaker 01:
to the GC data at page 6, which is exhibit 2058.

[00:40:29] Speaker 01:
And again, 2058, no objections.

[00:40:32] Speaker 01:
No hearsay, no authentication objections.

[00:40:36] Speaker 03:
On our thought, we're beyond our time.

[00:40:39] Speaker 03:
That's it?

[00:40:40] Speaker 03:
Thank you, Your Honor.

[00:40:41] Speaker 03:
We thank both parties and the cases submitted.