[00:00:03] Speaker 02:
We have four argued cases today.

[00:00:05] Speaker 02:
First is U.S.

[00:00:08] Speaker 02:
Water Services v. Novosimes.

[00:00:10] Speaker 02:
Council Ray, proceed.

[00:00:15] Speaker 02:
Please go ahead.

[00:00:20] Speaker 00:
Good morning, Your Honors.

[00:00:22] Speaker 00:
In order to show inherent anticipation, no designs was required to establish that the use of phytase, as described in the prior art, would necessarily and inevitably result in deposit reduction.

[00:00:35] Speaker 00:
The district court recognized that US water had induced evidence that practicing biton antrum will not always result in deposit reduction.

[00:00:44] Speaker 00:
The court nonetheless granted summary judgment.

[00:00:47] Speaker 00:
This was error.

[00:00:49] Speaker 00:
Indeed, the district court found that whether or not Vitan Antrum would always result in deposit reduction and US Water supporting evidence was not even relevant and not even a relevant consideration.

[00:01:02] Speaker 00:
But this evidence is not only relevant, it is the keystone of any inherent anticipation analysis, and it can't be ignored.

[00:01:10] Speaker 00:
Given the factual record of this case and the acknowledged genuine disputes of fact, the district court's decision

[00:01:17] Speaker 00:
cannot stand and cannot be reconciled with the court's precedent.

[00:01:21] Speaker 00:
This court has uniformly held that the prior art must necessarily and inevitably result in the absent limitation for there to be inherency.

[00:01:31] Speaker 00:
Going back to the Glaxo case in 1995.

[00:01:33] Speaker 04:
Let me ask you this hypothetically.

[00:01:35] Speaker 04:
If the prior art shows six ways of doing something, and only two of them inherently result in the result you're getting that, is that enough for inherency?

[00:01:46] Speaker 00:
If there is a very specific example, like there was in one of the cases, there is a very specific example that would always result in the claim limitation, then that might satisfy the inherency analysis.

[00:01:59] Speaker 00:
That's not the case here.

[00:02:00] Speaker 00:
There is no one example.

[00:02:02] Speaker 04:
Or at least we don't have factual findings to that effect here.

[00:02:05] Speaker 00:
We do not, no.

[00:02:06] Speaker 02:
In fact, Well, your real issue for your opposing counsel is necessarily resolved

[00:02:16] Speaker 02:
And the court's finding that the prior discloses conditions that necessarily result.

[00:02:26] Speaker 02:
And the court's finding that you had adduced evidence that shows that it doesn't necessarily result.

[00:02:32] Speaker 02:
I mean, that's where I think you should be directing your attention.

[00:02:35] Speaker 00:
That's correct.

[00:02:36] Speaker 00:
This is a genuine issue of disputed fact here.

[00:02:38] Speaker 00:
And this court's precedent, going back to Glaxo and other cases,

[00:02:42] Speaker 00:
Even if there is a possibility that the prior art could be practiced in a way that doesn't result in the claimed limitation, there can't be inherent anticipation.

[00:02:50] Speaker 00:
So it's not US Water's burden to prove that you would never get deposit reduction practicing the prior art.

[00:02:56] Speaker 00:
It's NOVA's burden to prove that you would always get deposit reduction practicing vitan antrum.

[00:03:02] Speaker 00:
And the district court found, in fact, that we had evidence to the contrary that practicing vitin antrum would not always result.

[00:03:08] Speaker 03:
What is your best evidence for genuine issue of material fact?

[00:03:12] Speaker 00:
So the best evidence, we have three experts in this case, very credentialed experts.

[00:03:16] Speaker 00:
And each of them have testified that you can use vitase as described in vitin antrum, and you will not see deposit reduction.

[00:03:24] Speaker 00:
And one of the things the district court got hung up on is that the natural result of phytase is a reduction in the amount of phytic acid in solution, but it doesn't necessarily follow that the natural result will be a reduction in deposits.

[00:03:39] Speaker 00:
So we have our expert, Eric Dorn.

[00:03:41] Speaker 00:
This is in the appendix at 853, who said,

[00:03:44] Speaker 00:
One can remove a large majority of phytate from solution and still see no reduction in deposits.

[00:03:53] Speaker 00:
Our expert Rodney Sims also said that bite would not always result in deposit reduction.

[00:04:01] Speaker 00:
And one of the things to remember, Rodney Sims is at A1009 to 10.

[00:04:10] Speaker 00:
And as Rodney Sims explained,

[00:04:15] Speaker 00:
There's 24 to 26 tons of phytic acid going through an ethanol plant on a daily basis.

[00:04:22] Speaker 00:
A lot of phytic acid.

[00:04:24] Speaker 00:
And only 1% to 2% of that phytic acid will ever deposit on surfaces in an ethanol plant.

[00:04:29] Speaker 00:
So you have to reduce a lot of the phytic acid before you're ever going to see any reduction in deposits.

[00:04:37] Speaker 00:
We also have testimony from our expert, George Reed, who's a UW chemist.

[00:04:43] Speaker 00:
who explains that adding phytase will reduce phytic acid, but will not necessarily lead to any reduction in deposits.

[00:04:50] Speaker 00:
And that is at the appendix 762.

[00:04:54] Speaker 00:
And even Novozyme's expert in deposition acknowledged that he did not know how much phytic acid you would have to reduce in the solution before you would see any measurable reduction in deposits.

[00:05:08] Speaker 00:
And that is in the appendix at 8.5662 to 6.3.

[00:05:15] Speaker 04:
Does your patent tell us how much has to be reduced before you see a reduction in deposits?

[00:05:20] Speaker 00:
The claim limitation that you have to see a reduction in deposits.

[00:05:23] Speaker 00:
It does not tell you, it has examples of how much phytic acid would be, have to be removed before you would potentially see those.

[00:05:31] Speaker 00:
The issue, I think, is that, as Mr. Sims explained in his report, there's not a one-size-fits-all for these plants.

[00:05:39] Speaker 00:
You've described in the patent, the inventors have described all the various parameters that you have to tweak, including temperature, pH, dosage, residence time, in order to see a reduction in deposits.

[00:05:51] Speaker 00:
That's taught in the patent.

[00:05:54] Speaker 02:
Is that your specific recipe that they say the red rake doesn't exist?

[00:05:59] Speaker 00:
It is, yes.

[00:06:00] Speaker 00:
So again,

[00:06:01] Speaker 00:
Every plant is different.

[00:06:02] Speaker 00:
They all use a different kind of corn mill, which can affect how much phytic acid deposit you get and how you can reduce it.

[00:06:12] Speaker 00:
So there's no one size fits all recipe, but looking at the patent,

[00:06:16] Speaker 00:
And looking at the experiments that were done and looking at all the various parameters that the inventor said, this is going to affect whether or not you're going to see reduction in deposits.

[00:06:25] Speaker 00:
A person with ordinary skill in the art could get that reduction of deposits.

[00:06:29] Speaker 03:
And that's- And you do have specific examples, I think four in your patent?

[00:06:33] Speaker 00:
That's correct, yes.

[00:06:34] Speaker 00:
I believe it is four.

[00:06:36] Speaker 00:
Yes.

[00:06:38] Speaker 00:
So the evidence that US Water has, and it's undisputed that US Water has this evidence, that bite and antrum won't always result in deposit reduction, should have been dispositive on the summary judgment issue.

[00:06:51] Speaker 03:
Dispositive.

[00:06:52] Speaker 03:
You didn't move for summary judgment, right?

[00:06:54] Speaker 00:
That is correct.

[00:06:55] Speaker 03:
Your point is simply that the district court should not have granted summary judgment.

[00:06:59] Speaker 00:
Correct.

[00:06:59] Speaker 00:
It should have been dispositive on the question of whether summary judgment was appropriate.

[00:07:03] Speaker 00:
It was not.

[00:07:06] Speaker 00:
In the Mel Biofield case, the possibility that the prior art laser could be used to practice the claimed limitation was not sufficient to show inherency.

[00:07:16] Speaker 00:
Occasional results are not sufficient.

[00:07:19] Speaker 00:
And in the Trintec case in 2002, the court said, inherency leaves no room for probabilities or possibilities.

[00:07:28] Speaker 00:
And they said,

[00:07:29] Speaker 00:
that this was in keeping with the strict identity requirement of anticipation.

[00:07:34] Speaker 00:
So we're talking about a reference which does not expressly disclose one of the claimed limitations of US Water's patent.

[00:07:41] Speaker 00:
Therefore, there is a burden on NovaSigns to show that one ordinary skill in the art would see that it would always result.

[00:07:48] Speaker 00:
That's how you get around the fact that it's not explicitly disclosed.

[00:07:51] Speaker 02:
One of NovaSigns' other arguments, in addition to the recipe, is the coordination argument.

[00:07:59] Speaker 02:
To the extent U.S.

[00:08:01] Speaker 02:
Water contends that choices of phytase dosage and so on must be coordinated to achieve deposit reduction, there's no specific disclosure of what that coordination is.

[00:08:16] Speaker 00:
If you go back to the sites that I had to Rodney Simms and Eric Dorn's declaration, they will say that you could look at U.S.

[00:08:24] Speaker 00:
Water's disclosure

[00:08:25] Speaker 00:
look at all the various parameters that they have identified as affecting deposit control.

[00:08:30] Speaker 00:
And one with no more than routine experimentation could get deposit reduction.

[00:08:36] Speaker 00:
So it's not a zero-sum game between whether Veit and Antrim inherently anticipate and whether or not the patents have 112 problems.

[00:08:45] Speaker 00:
These are two different standards.

[00:08:47] Speaker 00:
And the disclosures of Veit and Antrim are not the same.

[00:08:51] Speaker 00:
as US Water's disclosures.

[00:08:53] Speaker 00:
The entire patent is about reduction of phytic acid deposits in an ethanol plant, which is completely absent from the prior art.

[00:09:04] Speaker 00:
Most recently in the Allergan case, this court held that where it's even possible to practice the prior art in a way that would not be.

[00:09:13] Speaker 04:
Can I ask you the same hypothetical, but I want to make sure I understand your answer.

[00:09:17] Speaker 04:
And I want to make it a little more specific.

[00:09:19] Speaker 04:
The prior art has six different methods.

[00:09:22] Speaker 04:
One of them contains not the same kind of like four factors or whatever you were talking about before in precisely the same way your patent talks about them, but doesn't say monitoring of these four factors in this way will result in a reduction.

[00:09:41] Speaker 04:
But it in all other respects is equal to yours.

[00:09:44] Speaker 04:
But the other five are not.

[00:09:47] Speaker 04:
Is there inherently there because it discloses, the prior art discloses precisely that in that one method?

[00:09:54] Speaker 04:
Even though other parts of the prior art may not be a result in it, that one method there is the same as yours and necessarily would.

[00:10:02] Speaker 00:
If I'm understanding your hypothetical, and I think that I am, you're sort of getting at this idea of overlapping ranges, which is what we're talking about.

[00:10:11] Speaker 04:
Well, I'm not talking about overlapping ranges.

[00:10:13] Speaker 04:
I'm talking about the exact same range.

[00:10:15] Speaker 04:
And I know this is a hypothetical it's not here But but let's say you have four factors to achieve this reduction in your specification And they have the same four factors in one embodiment in their patent But they don't say use these four factors in the same way as you do to achieve a reduction but presumably

[00:10:38] Speaker 04:
it will result in the same thing because it does precisely what yours would.

[00:10:42] Speaker 04:
If it were that, I mean, those are very specific facts.

[00:10:44] Speaker 04:
Would that be inherent?

[00:10:46] Speaker 00:
If you could show in that example, that very specific example, without hindsight and without picking and choosing from the patent itself, if you could show in that example that the absent limitation would always inevitably and invariably result,

[00:11:02] Speaker 00:
Then I think there could be inherent anticipation there.

[00:11:05] Speaker 04:
Even if other parts of the prior art wouldn't inherently anticipate?

[00:11:09] Speaker 00:
Right.

[00:11:10] Speaker 00:
I think you could do that.

[00:11:12] Speaker 00:
I mean, it's sort of like in the King Pharma case, or no, in the Atlas Powder case.

[00:11:16] Speaker 00:
They found that there were overlapping ranges.

[00:11:18] Speaker 00:
And so that was a claimed compound to elements in various ranges, kind of ingredients.

[00:11:25] Speaker 00:
And the court said, OK, there's overlapping ranges here.

[00:11:28] Speaker 00:
But it didn't stop there.

[00:11:29] Speaker 00:
And that's kind of where the court stopped.

[00:11:30] Speaker 00:
And these are all pretty much factual questions.

[00:11:32] Speaker 00:
Yes, these are absolutely factual questions.

[00:11:34] Speaker 00:
So you still, in your example, you would still have to, the challenger of the patent would still have to show that within that example, you would always get the claimed, the absent limitation.

[00:11:49] Speaker 03:
And it's a factual question, because inherently it's a factual question.

[00:11:52] Speaker 03:
Is that what you're going to comment about with Allergan?

[00:11:55] Speaker 00:
Yes, and in Allergan, it's a factual question, and in Allergan, they only found that there was a possibility that it could be the prior art to be practiced in a way that didn't result in the claimed invention.

[00:12:08] Speaker 00:
You can even have it was probable that the prior art was.

[00:12:13] Speaker 03:
They said it was possible that it would be.

[00:12:15] Speaker 03:
It's possible that it wouldn't be.

[00:12:16] Speaker 03:
They could have those eye drops administered in a way where it doesn't touch the eyelashes.

[00:12:21] Speaker 00:
Correct.

[00:12:21] Speaker 03:
And so the district court said in that case that they didn't think that inheritance had been proven.

[00:12:27] Speaker 03:
And this court said there was no clear error with that conclusion.

[00:12:30] Speaker 03:
It doesn't mean that the case would result.

[00:12:32] Speaker 03:
that that's a matter of law.

[00:12:34] Speaker 03:
It's a question of fact.

[00:12:35] Speaker 00:
Correct.

[00:12:36] Speaker 00:
Correct.

[00:12:37] Speaker 00:
But it certainly wouldn't be right for summary judgment in the Allergan case that there was inherent anticipation in light of the evidence that you wouldn't always get that absent limitation practicing the prior art.

[00:12:47] Speaker 02:
You're into your rebuttal time.

[00:12:49] Speaker 02:
Thank you.

[00:12:59] Speaker 02:
Mr. Tellexon.

[00:13:00] Speaker 01:
Thank you.

[00:13:01] Speaker 01:
May it please the court

[00:13:03] Speaker 01:
The district court was correct in its ruling on anticipation.

[00:13:08] Speaker 01:
And the reason is that King is directly on point and dispositive.

[00:13:13] Speaker 03:
Isn't King like a simpler case?

[00:13:16] Speaker 03:
It's just a question of taking a drug with food, which seems like a much more simple situation in terms of the method itself.

[00:13:24] Speaker 01:
I think it's right on point and squarely on the issues here, because the limitation was take with food.

[00:13:32] Speaker 01:
And you'll get this effect.

[00:13:34] Speaker 01:
And here, when you look at the claims of the patent, it's apply a phytase under these conditions.

[00:13:41] Speaker 01:
And those are conditions that are present in the prior art and also in these fuel ethanol plants.

[00:13:49] Speaker 01:
And then you will get the phytic acid to be reduced to the soluble form.

[00:13:54] Speaker 01:
And then the claim says, thereby, you get the deposit reduction.

[00:13:58] Speaker 03:
It shows a lot more than thereby you get deposit reductions.

[00:14:01] Speaker 03:
It's like 10 lines, I think.

[00:14:02] Speaker 03:
But it's not your position.

[00:14:03] Speaker 03:
I just want to make sure I understand this.

[00:14:05] Speaker 03:
It's not your position that just because the first six steps of the claim are admittedly performed, that necessarily the wherein clause is met.

[00:14:16] Speaker 03:
I don't mean necessarily, but it's instead you realize that you have a duty to show inherency on whether the wherein clause is met.

[00:14:24] Speaker 03:
Is that right?

[00:14:25] Speaker 01:
I think if those six steps are practiced, the evidence is that you will get deposit reduction.

[00:14:32] Speaker 03:
OK.

[00:14:32] Speaker 03:
But you agree that you had to present certain evidence that you would get.

[00:14:36] Speaker 01:
The evidence is, for example, Dr. Cole saying it's just science.

[00:14:42] Speaker 01:
When you reduce the phytic acid, you take it from its insoluble form and you reduce it, make it soluble, there isn't going to be the stuff to

[00:14:53] Speaker 01:
to deposit.

[00:14:55] Speaker 01:
And that's exactly what the patent teaches.

[00:14:59] Speaker 01:
Council mentioned example four.

[00:15:01] Speaker 01:
If you look at example four, all that it says is that you have a test tube with the deposits in it with no phytase.

[00:15:09] Speaker 01:
You have a test tube where there is phytase, and it's clear.

[00:15:13] Speaker 01:
And it says, therefore, you will get deposit reduction.

[00:15:17] Speaker 01:
It doesn't have all these sophisticated recipes that

[00:15:23] Speaker 01:
Dorn and Sims and their experts talk about, those aren't in the patent anywhere.

[00:15:27] Speaker 03:
I understand your position.

[00:15:29] Speaker 03:
But you agree that's a factual question, right?

[00:15:32] Speaker 03:
I mean, I understand your position that there's no genuine issue of material fact, but it's a factual question, right?

[00:15:38] Speaker 03:
Inherency?

[00:15:39] Speaker 01:
Inherency is a factual question.

[00:15:41] Speaker 01:
But here, there is no factual dispute because Veidt and Antrim teach the exact same steps, the exact same conditions,

[00:15:52] Speaker 01:
And therefore, if it happens in U.S.

[00:15:55] Speaker 01:
Waters patent, it will happen in Vita and Antrim.

[00:15:59] Speaker 01:
There's absolutely no question.

[00:16:01] Speaker 02:
Do you agree with your colleague that there's no evidence that any fuel ethanol plant ever practiced Vita or Antrim?

[00:16:14] Speaker 01:
Not at all, Your Honor.

[00:16:16] Speaker 01:
Dr. Cole went into that in great detail in his expert report.

[00:16:20] Speaker 01:
That's, I think, some of the most telling evidence is that these plants that are accused of infringement, some of them use very low dosages of phytase.

[00:16:30] Speaker 01:
And they get deposit reduction.

[00:16:32] Speaker 01:
They get enough deposit reduction that they keep buying phytase.

[00:16:36] Speaker 01:
And Dr. Cole said that is evidence.

[00:16:38] Speaker 01:
These ranges, these temperatures, these dosages, these pHs are exactly what

[00:16:45] Speaker 01:
U.S.

[00:16:46] Speaker 01:
Waters is accusing of infringement.

[00:16:48] Speaker 01:
They are getting deposit reduction because they're practicing Vitanantra.

[00:16:52] Speaker 01:
So that is absolutely not a true statement when they say that.

[00:16:58] Speaker 01:
See, these parameters... What's the citation of the record on that?

[00:17:06] Speaker 01:
We can get that, but it's Cole's expert report.

[00:17:08] Speaker 02:
Well, if it's key to you, you should know it.

[00:17:10] Speaker 01:
I apologize, Your Honor.

[00:17:13] Speaker 01:
Cole goes on at length about

[00:17:15] Speaker 01:
He compares the dosages from the patent.

[00:17:19] Speaker 01:
He compares the dosages in the eight plants that are accused of infringement.

[00:17:22] Speaker 01:
He lines them up in a chart.

[00:17:24] Speaker 02:
No, no.

[00:17:25] Speaker 02:
Before it began its infringing activities.

[00:17:28] Speaker 02:
That was their argument.

[00:17:31] Speaker 01:
Well, I don't know that that's relevant, whether somebody was practicing it before these plants.

[00:17:38] Speaker 02:
But that's not my question.

[00:17:40] Speaker 01:
I'm sorry.

[00:17:40] Speaker 02:
Let me read to you from their yellow brief.

[00:17:43] Speaker 02:
Novozymes does not dispute that before it began its infringing activities, there is no evidence that any fuel ethanol plant ever practiced Vita or Antrim, let alone achieved deposit reduction from doing so.

[00:17:55] Speaker 02:
That's at page 14 of their break.

[00:17:57] Speaker 01:
Well, Your Honor, I think the Antrim reference and the Vita reference, even if nobody ever practiced those, are anticipating references.

[00:18:06] Speaker 01:
I think the evidence was not developed as to what other plants were doing things before

[00:18:12] Speaker 01:
these modern days?

[00:18:14] Speaker 02:
There's an easy answer, yes or no.

[00:18:17] Speaker 01:
I don't know that the record shows that they were practicing it.

[00:18:20] Speaker 01:
If you're asking were they practicing it in a way before these allegedly infringing plants, the answer is I don't know.

[00:18:28] Speaker 01:
But they are practicing vitinantrum in that they are practicing the exact parameters of vitinantrum today and last year and the year before and the year before.

[00:18:38] Speaker 01:
And those plants are accused of infringing.

[00:18:41] Speaker 01:
Those plants are said to infringe because they reduce deposits.

[00:18:45] Speaker 01:
And yet they are doing the exact parameters that Vitanantrum teach.

[00:18:50] Speaker 01:
And that's why there's deposit reduction.

[00:18:52] Speaker 01:
And that's why, absolutely necessarily, if you do what Vitanantrum teach, you get deposit reduction.

[00:18:58] Speaker 01:
There's no question of that.

[00:19:02] Speaker 02:
Well, I'll accept your I don't know answer.

[00:19:05] Speaker 01:
So I think it's important to understand a little bit about what this chemical reaction is that occurs.

[00:19:17] Speaker 03:
Do you have a response to some of the expert testimony that was cited by opposing counsel, the testimony from Dorn and Simms and Reed, and why that doesn't create a genuine issue of material fact?

[00:19:33] Speaker 01:
Yes, Your Honor.

[00:19:35] Speaker 01:
The answer is that King and Vertigal before King said that if it's not in the claims, it doesn't matter.

[00:19:45] Speaker 01:
And their claims do not recite some specific recipe that is necessary in order to achieve this deposit reduction.

[00:19:57] Speaker 01:
This is something that came up in litigation when they realized that Antrim and Veidt

[00:20:03] Speaker 01:
teach exactly what they're doing.

[00:20:06] Speaker 01:
There's nothing in the patent.

[00:20:07] Speaker 01:
You can read the patent from cover to cover, and there's nothing that says, in order to get to positive reduction, you need to do this, but not this.

[00:20:14] Speaker 01:
There's some secret combination.

[00:20:17] Speaker 01:
The other answer is that Antrim actually... I'm not sure I understand that.

[00:20:24] Speaker 04:
Is there nothing in the specification that further illuminates the different steps you apply it?

[00:20:32] Speaker 01:
No, it says it will result in deposit reduction.

[00:20:36] Speaker 01:
If you reduce the phytic acid, it will result in... That's what the patent says?

[00:20:41] Speaker 01:
Yes, it does.

[00:20:42] Speaker 03:
I thought that there were these four examples where they were successful.

[00:20:46] Speaker 01:
I think it's important, Your Honor, to understand those examples.

[00:20:51] Speaker 01:
Example one simply says that there's phosphorus.

[00:20:55] Speaker 01:
Example two simply says that the deposits have what's called phytate, which is these

[00:21:01] Speaker 01:
the phytic acid with the minerals lodged in between there.

[00:21:06] Speaker 01:
Example three simply takes a solution from the plant and applies phytase, and it reduces the phytic acid to the soluble form.

[00:21:18] Speaker 01:
It never says anything about reducing deposits.

[00:21:23] Speaker 01:
And then in four, four is key.

[00:21:24] Speaker 01:
Yes, it does.

[00:21:27] Speaker 02:
It says which is the source of the deposits.

[00:21:31] Speaker 01:
Right.

[00:21:32] Speaker 01:
It's saying that if you reduce phytic acid and its salts to the soluble form, therefore, you will get a reduction in deposits, because that's all that's necessary.

[00:21:45] Speaker 01:
And that's the point, Your Honor, is that antrum and bite were doing the same thing.

[00:21:50] Speaker 03:
Actually, in their disclosure, they don't talk about putting this in the beer column, for example, do they?

[00:21:55] Speaker 01:
No, they put it in liquefaction and antrum and fermentation

[00:22:01] Speaker 01:
in Vite.

[00:22:05] Speaker 01:
You don't put it in the beer column.

[00:22:06] Speaker 01:
It's a process.

[00:22:07] Speaker 01:
In the Breyer Art, you don't put it in the beer column.

[00:22:11] Speaker 01:
The claims that they broadened out are now broadening.

[00:22:15] Speaker 03:
I understand the claims are broader, but don't they have a

[00:22:18] Speaker 03:
wherein clause, and in that wherein clause, there's a function that they achieve.

[00:22:23] Speaker 03:
And so is it your position that they can't have broader claims and claim the specifics through the functional language at the end of the claim?

[00:22:31] Speaker 01:
Your Honor, the point is that if you reduce the phytic acid, you've got the phytic acid with the magnesium salts joined up with it.

[00:22:41] Speaker 01:
That's insoluble.

[00:22:43] Speaker 01:
If you take phytase and you reduce it, you chop the arms off the phytic acid

[00:22:48] Speaker 01:
and it's now soluble, it will never deposit because it's soluble.

[00:22:51] Speaker 01:
It can go all the way through the factory and out the back end, and it won't deposit.

[00:22:56] Speaker 03:
How do I know that's so?

[00:22:59] Speaker 01:
Because that is the science that Dr. Cole talks about.

[00:23:02] Speaker 03:
That is exactly what... Isn't there a different expert testimony before the court in this case?

[00:23:09] Speaker 01:
But none of that is in the claims, Your Honor.

[00:23:13] Speaker 01:
Isn't it possible that their claims don't work?

[00:23:17] Speaker 01:
Well, then that's why we have the alternative argument that it's invalid for lack of written description.

[00:23:22] Speaker 01:
Because if they're right that you need this secret sauce, this sophisticated recipe, their claims don't claim it.

[00:23:28] Speaker 03:
But that's not before us today.

[00:23:31] Speaker 03:
It's an alternative argument?

[00:23:33] Speaker 03:
Yeah, alternative argument.

[00:23:34] Speaker 01:
But did the district court rely on it?

[00:23:36] Speaker 01:
No, we said that if they were right, that there is a sophisticated.

[00:23:40] Speaker 01:
Well, that's something for the district court to decide, not us.

[00:23:43] Speaker 01:
Well, you can affirm on an alternative ground.

[00:23:47] Speaker 03:
But not an alternative ground that the district court didn't even consider a rule on.

[00:23:50] Speaker 03:
Not that it requires factual findings.

[00:23:54] Speaker 01:
You don't even need to get there, Your Honor, because it's not in the claims.

[00:23:56] Speaker 01:
If we look at the claims.

[00:23:57] Speaker 02:
I'm just going to point out to you where you are in your time, but keep going.

[00:24:03] Speaker 01:
If you look at the claims, all it says and all it requires, if you look at the six facts.

[00:24:09] Speaker 04:
I mean, we know what the claims say.

[00:24:11] Speaker 04:
We've read them.

[00:24:11] Speaker 04:
I mean, I think the problem is it may be

[00:24:14] Speaker 04:
They've added this functional claim language on, and those prior six steps don't always result in what they're claiming either.

[00:24:22] Speaker 04:
But that doesn't mean that you don't have a problem with the summary judgment here.

[00:24:30] Speaker 04:
Because what you have to prove is those six steps always result in that process, and those six steps were in the prior honor.

[00:24:37] Speaker 01:
And they do.

[00:24:39] Speaker 01:
Dr. Cole says,

[00:24:40] Speaker 01:
and they don't dispute, the district court says, Dr. Kohle's never disputed on this, that when, fight to your side.

[00:24:47] Speaker 04:
But their side's experts do dispute it.

[00:24:50] Speaker 04:
Pardon me?

[00:24:50] Speaker 04:
Their side's experts do dispute it.

[00:24:52] Speaker 01:
No, what they say is that you need to have a sophisticated recipe.

[00:24:56] Speaker 01:
And our point is that King says if the sophisticated recipe is not in the claims, which it is not, then it doesn't matter.

[00:25:03] Speaker 01:
And that's why the court was able to.

[00:25:04] Speaker 04:
It doesn't matter for what purpose.

[00:25:06] Speaker 01:
For inherent anticipation.

[00:25:08] Speaker 01:
Because if you don't claim it, you can't rely on it.

[00:25:11] Speaker 01:
That's exactly what King stands for.

[00:25:12] Speaker 04:
But they did claim it in the seventh step where it says it has to result in this.

[00:25:17] Speaker 04:
I mean, it's a problem with this kind of functional claim.

[00:25:19] Speaker 04:
That's not very clear.

[00:25:20] Speaker 04:
But it still is there.

[00:25:23] Speaker 04:
So if there are some variations of the first six steps that result in seven and some that don't, then I don't see how it's always inherent.

[00:25:34] Speaker 01:
But they don't.

[00:25:35] Speaker 01:
If you practice what's in the claims, adding phytase at a dosage 10 parts per million or less, in this temperature range, at this pH, without the addition of acid, and breaking down the phytic acid, it says, thereby, reducing the formation.

[00:25:52] Speaker 01:
Those steps are in all fuel ethanol plants.

[00:25:56] Speaker 04:
Are you saying that their experts are just flat out wrong, that if you do those six things, it won't always result in a reduction?

[00:26:05] Speaker 01:
I think they're experts.

[00:26:10] Speaker 01:
There's no evidence that they're right.

[00:26:11] Speaker 01:
But the reason that you don't need to consider it is because it's not in the claims.

[00:26:16] Speaker 01:
King says if it's not in the claims, you cannot consider it.

[00:26:20] Speaker 01:
One last point, and that is that Antrim, even if they're expert is right and you need to put a certain amount in before you fall off this cliff, Antrim example one says,

[00:26:34] Speaker 01:
reduce the phytic acid to zero.

[00:26:38] Speaker 01:
And so even under, that's example one of the Antrim reference.

[00:26:43] Speaker 01:
And so if you follow that, then you reduce it to zero.

[00:26:45] Speaker 01:
Even with their first order kinetic cliff argument, you get to zero and all of the phytic acid is reduced and deposits, even by their admission, would be reduced.

[00:26:55] Speaker 02:
Was the judge in error when the decision says,

[00:27:00] Speaker 02:
at J-28, U.S.

[00:27:03] Speaker 02:
Water has induced evidence that practicing Vite and Antrim will not always result in deposit reduction.

[00:27:09] Speaker 01:
What he's referring to there is they induced evidence which does not need to be credited because it's not in the claims.

[00:27:16] Speaker 01:
They induced this evidence of the secret sauce or the sophisticated recipe, but they didn't claim it.

[00:27:21] Speaker 01:
And it's not even in the patent.

[00:27:23] Speaker 01:
There's nothing in the patent that says

[00:27:25] Speaker 01:
Here's what you need to do.

[00:27:26] Speaker 01:
If you don't do this, it won't reduce deposits.

[00:27:29] Speaker 01:
If you do this, it will.

[00:27:30] Speaker 01:
So it's not even in the spec like it was in King, but it's certainly not in the claims.

[00:27:36] Speaker 01:
And that's why he says they induced evidence, but I don't need to rely on it because it's not in the claims.

[00:27:42] Speaker 01:
I'll reserve my little bit of time.

[00:27:44] Speaker 02:
We'll give you a couple of minutes.

[00:27:50] Speaker 00:
I have three points to make on rebuttal.

[00:27:52] Speaker 00:
The first one is very brief.

[00:27:53] Speaker 00:
Just on this last point about example one, I would refer the court to the Sims expert report, which is at A1009 to 1011, where he discusses why this example would not necessarily result in deposit control.

[00:28:09] Speaker 00:
And at a minimum, this is a factual dispute.

[00:28:13] Speaker 00:
Second, we've talked about this use of the word thereby.

[00:28:16] Speaker 00:
But deposit reduction is an affirmative limitation of the claims.

[00:28:21] Speaker 00:
Novozymes has never alleged otherwise.

[00:28:24] Speaker 00:
In fact, Novozymes has a non-infringement position that despite the fact that these infringing plants add phytase to the ethanol, that we have not proven that we'll actually get deposit reduction.

[00:28:37] Speaker 00:
So they're using that limitation as a non-infringement defense.

[00:28:40] Speaker 04:
Do you think your six steps always result in reduction?

[00:28:45] Speaker 00:
No, I think you need to go to the patent and look at the teachings of the patent in order to get that.

[00:28:52] Speaker 00:
And finally, this idea that VITE and Antrum are commensurate with these patents.

[00:28:57] Speaker 00:
They're not.

[00:28:59] Speaker 00:
Nobody was using VITE or Antrum in a way to reduce

[00:29:03] Speaker 00:
deposits, nobody was using phytase in a way to reduce deposits until they were, they learned of U.S.

[00:29:10] Speaker 00:
Waters method either from U.S.

[00:29:11] Speaker 00:
Water or from Novozymes after Novozymes.

[00:29:14] Speaker 00:
That's been conceded.

[00:29:15] Speaker 00:
Learned about U.S.

[00:29:16] Speaker 00:
Waters patents.

[00:29:18] Speaker 00:
I'll see you the rest of my time unless you have questions.

[00:29:21] Speaker 00:
Thank you.

[00:29:23] Speaker 02:
Two minutes.

[00:29:27] Speaker 01:
Thank you, Your Honor.

[00:29:28] Speaker 01:
If I could just address briefly inequitable conduct.

[00:29:33] Speaker 01:
What we have here is an entire another litigation, this chem treat litigation, that was not disclosed to the Patent Office.

[00:29:43] Speaker 01:
They had their lawyer, prosecution lawyer, Dr. Scoug, who said in the Patent Office, these claims are distinguishable over Veidt because you add it to fermentation and not at the time where their claim said to the back end, to back center stillage.

[00:30:04] Speaker 01:
Within days, he said in the chem treat litigation, in a declaration, a sworn declaration.

[00:30:11] Speaker 01:
Which involved the 244 patent, which is not an issue here.

[00:30:15] Speaker 01:
It's not an issue here.

[00:30:16] Speaker 01:
It's the parent case to these patents.

[00:30:19] Speaker 01:
But the point is, Your Honor, and Judge Schiltz in the transcript that also should have been disclosed to the Patent Office said, how can you stand before me and tell me one thing that these are the same, that they're equivalent

[00:30:33] Speaker 01:
when you told the Patent Office, your lawyer told the Patent Office, that they were different and distinguishable.

[00:30:40] Speaker 01:
If the examiner had had the chem treat litigation and had Scoug's declaration and Schiltz's transcript and Scoug's deposition where he admitted making this distinction, offering no explanation, just like in US Willowwood, there was no explanation for why this wasn't disclosed.

[00:31:03] Speaker 02:
Well, the examiner was aware of the differences between the pending claims of the patents ensued in the 244 patent, right?

[00:31:11] Speaker 01:
Well, it's in the record, but they said they were generally patterned after and similar.

[00:31:16] Speaker 01:
And then they also added two other limitations at the same time, which they said were patentably distinguishable while they withheld this trade secret information, where their own inventor, Mr. Johnson, said, it's not in the specification.

[00:31:33] Speaker 01:
It is not in the specification.

[00:31:35] Speaker 01:
It's a trade secret.

[00:31:36] Speaker 01:
They didn't tell her that either when they were arguing for why it should be patented.

[00:31:44] Speaker 02:
Thank you.

[00:31:44] Speaker 02:
Thank you.