[00:00:00] Speaker 01:
Our final case of the day is 2016-1768 MH System versus Cold Harbor Marine Limited.

[00:00:11] Speaker 01:
Mr. Roush?

[00:00:13] Speaker 04:
I said that wrong then.

[00:00:15] Speaker 01:
How do you say it?

[00:00:18] Speaker 04:
Rausch.

[00:00:18] Speaker 01:
Rausch.

[00:00:19] Speaker 01:
Got it.

[00:00:20] Speaker 04:
I know.

[00:00:22] Speaker 04:
That means quite worth filling.

[00:00:23] Speaker 04:
Law firm Fully and Marger on behalf of a compelling MH system.

[00:00:28] Speaker 04:
I want to address at least three errors in the patent trial appeal board's decision in the nobody's reading.

[00:00:34] Speaker 01:
Just three?

[00:00:35] Speaker 01:
I mean, you raised so many.

[00:00:38] Speaker 04:
I think that's my view all the time we have today.

[00:00:40] Speaker 01:
It's unusual to see a brief with this many issues on appeal.

[00:00:44] Speaker 04:
Yes, well, one issue is that the

[00:00:47] Speaker 04:
The final decision covered many different grounds, I believe.

[00:00:51] Speaker 04:
Ultimately, there were five different rejection grounds covered in the decision.

[00:00:56] Speaker 04:
And I think below these angles, right up here, you'll notice that there were at least 16 different grounds.

[00:01:03] Speaker 04:
We'll focus on three.

[00:01:06] Speaker 04:
First, I want to address why the board failed to explain why the personal boarding skill would have been motivated to combine any of the prior references.

[00:01:16] Speaker 04:
Second, I want the board improperly dismiss Patent Under's evidence of secondary considerations, and in particular, the evidence of copying this matter.

[00:01:26] Speaker 04:
And third, I want to address the board's finding with respect to the Watten reference, in that there's not substantial evidence for saying that Watten discloses treating water in the ballast tank when the ballast tank is at less than atmospheric pressure.

[00:01:42] Speaker 01:
OK, so for the purpose of our students, this case is about

[00:01:45] Speaker 01:
killing nasty stuff in the hull of a boat, right?

[00:01:49] Speaker 01:
Like zebra mussels and other nuisance species who are transported along with water.

[00:01:56] Speaker 01:
We don't want to release those into different water and let them take over.

[00:02:01] Speaker 01:
So this patent is directed to reducing and or eliminating them.

[00:02:06] Speaker 04:
Yes, like let's say for example, an oil tanker takes off from a port in the Middle East and comes to New York.

[00:02:12] Speaker 04:
There's different wildlife these port.

[00:02:14] Speaker 04:
In order to balance that below, they pick up and dump water when they're on and off load.

[00:02:19] Speaker 04:
And when they do so in the harbor, there's inevitably aquatic species.

[00:02:22] Speaker 04:
What might be a native species in the Middle East may become a nuisance species in, let's say, New York Harbor.

[00:02:28] Speaker 04:
And that can have very detrimental effects on the wildlife.

[00:02:31] Speaker 02:
These are stowaways in the balanced tanks.

[00:02:35] Speaker 04:
Correct.

[00:02:39] Speaker 04:
And what the patent teaches is an innovative method of killing these aquatic nuisance species by inducing a phenomenon known as hypoxia and hypercapnia.

[00:02:48] Speaker 04:
Hypoxia causes death due to lack of oxygen, whereas hypercapnia causes death due to excessive levels of carbon dioxide.

[00:02:57] Speaker 02:
But those were both known phenomena, correct?

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

[00:03:03] Speaker 04:
The patent solution is creating a phenomenon where you induce both at the same time, so you can hopefully kill all the aquatic animals and species.

[00:03:12] Speaker 02:
But I mean, just as a general proposition, what's unobvious about combining two things that perform the function that they are already well known for accomplishing?

[00:03:25] Speaker 02:
Well, I mean, I think what it is is the... Isn't that what the Supreme Court talked about at KSR?

[00:03:32] Speaker 04:
Well, here is the particular method of doing so.

[00:03:35] Speaker 04:
It's like to do them both simultaneously through the idea that the front of the body discusses a bubbling process where you're bubbling up concentrated carbon dioxide and gas-deprived oxygen levels.

[00:03:47] Speaker 04:
And ideally, that would be from an inert gas generator.

[00:03:52] Speaker 01:
You're talking in terms of technology at a very high level.

[00:03:55] Speaker 01:
But let me try to make it simple, because Judge Lynn's question is exactly the same one I have.

[00:04:00] Speaker 01:
I could shoot you.

[00:04:01] Speaker 01:
Colonel Marksteiner in the back room could kill you with his pinky.

[00:04:05] Speaker 01:
If we both do it simultaneously, how is that an invention?

[00:04:09] Speaker 01:
You know, we're both, we both are going to kill you and we have the object of killing you.

[00:04:14] Speaker 01:
What is the advantage of, why can you get a patent on the fact that we decided to do it together?

[00:04:20] Speaker 04:
Well, each method... And by the way, I don't actually mean I'm going to kill you.

[00:04:25] Speaker 01:
And Pete, I know you would do anything for me.

[00:04:27] Speaker 01:
He's our circuit executive.

[00:04:28] Speaker 01:
Don't kill the cat.

[00:04:29] Speaker 01:
All right, good.

[00:04:31] Speaker 04:
Well, thank you.

[00:04:31] Speaker 04:
Well, the innovative solution here is that hypoxia may not kill all the aquatic instance species, and hypercapnia may not kill all the aquatic instance species.

[00:04:41] Speaker 04:
But when you induce both phenomena together,

[00:04:44] Speaker 04:
awful, you're going to kill at least a satisfactory amount of the aquatic nuisance species.

[00:04:50] Speaker 04:
And for example, with respect to the deprivation of oxidant, the aquatic nuisance species could be anaerobic, which would mean that a deprived level oxygen may have no effect on them.

[00:05:00] Speaker 00:
Now for some of these, I have one technical question since you are talking about the technical issues.

[00:05:06] Speaker 00:
What about, doesn't hypercapnia, am I saying that right?

[00:05:10] Speaker 00:
Doesn't that necessarily or many times cause hypoxia at the same time?

[00:05:15] Speaker 00:
Because for hypercapnia, you're increasing the carbon dioxide, which I would think would necessarily decrease the amount of oxygen.

[00:05:24] Speaker 00:
And there are some references that suggest that even.

[00:05:27] Speaker 04:
There's some references to that, and I don't believe the board made that as one of their findings, a fact.

[00:05:32] Speaker 00:
But I'm just asking you.

[00:05:34] Speaker 04:
No, and I'd like to point, Your Honor, to the declaration of Dr. Forrest Felbeck.

[00:05:39] Speaker 00:
Will that answer my question?

[00:05:43] Speaker 04:
He explains that the

[00:05:48] Speaker 04:
that his declaration adds that APPX606, the hypoxia, results from environmental conditions that can be caused by the deprivation of oxygen, not relatively abundance of carbon dioxide.

[00:06:03] Speaker 04:
And he also explains it's not necessarily the decreased carbon dioxide environment does not necessarily mandate a, or excuse me, increased carbon dioxide environment does not necessarily mandate a

[00:06:17] Speaker 04:
level of decreased oxygen that would induce hypoxia, which is the killing due to lack of oxygen.

[00:06:26] Speaker 01:
I still don't understand why a skilled artisan wouldn't just combine them.

[00:06:32] Speaker 01:
You know, I don't understand.

[00:06:33] Speaker 01:
Like you haven't shown me what... Both of these things are intended to kill certain species and they may both have different levels of effectiveness with different kinds of species.

[00:06:42] Speaker 01:
So why wouldn't you got a bunch of water?

[00:06:44] Speaker 01:
You know, why not

[00:06:46] Speaker 01:
Use both of them.

[00:06:47] Speaker 01:
Like, I just don't understand why.

[00:06:48] Speaker 01:
They're both doing exactly what they're supposed to do, so why wouldn't you just use them both together?

[00:06:53] Speaker 04:
Well, I think that goes to what the patent talks about in using an inert gas generator, whereas you need some mechanism to create the conditions.

[00:07:06] Speaker 04:
For example, the patent talks about bubbling inert gas, which is a composition of nitrogen, oxygen, and carbon dioxide.

[00:07:14] Speaker 04:
The carbon dioxide levels heighten, and the nitrogen levels also might increase.

[00:07:20] Speaker 04:
And when you pump that through, that induces both conditions.

[00:07:25] Speaker 04:
For example, whereas compared to the prior art, let's say the Elzinga reference only discusses pumping carbon dioxide through, and the Watton reference in particular discusses pumping carbon dioxide, they're not pumping carbon dioxide, but injecting carbon dioxide at very high levels of pressure.

[00:07:45] Speaker 02:
But claim two, which is one of the claims at issue, doesn't have all of those limitations, right?

[00:07:57] Speaker 04:
That is correct.

[00:07:57] Speaker 04:
But based on the teachings of the patent, Your Honor, you need to induce the phenomenon somehow.

[00:08:05] Speaker 04:
And what the patent teaches is that use of the inert gas generator.

[00:08:09] Speaker 01:
But wait a minute.

[00:08:10] Speaker 01:
You would certainly read this on any mechanism

[00:08:14] Speaker 01:
killing the thing in the same way, right?

[00:08:17] Speaker 01:
I would think so.

[00:08:18] Speaker 01:
That's like saying one type of gun is different than another type of gun.

[00:08:22] Speaker 01:
I mean, if everybody knows they would all kill and the claim only requires a gun, what difference does it make?

[00:08:29] Speaker 04:
Well, Your Honor, but you still need to be able to create the phenomenon somehow.

[00:08:39] Speaker 01:
But skilled artisans knew how to create the phenomenon.

[00:08:41] Speaker 01:
That's not the question.

[00:08:42] Speaker 01:
Your question here is whether you combine them all.

[00:08:45] Speaker 04:
Well, I also would like to point, Your Honor, to the Watton reference, which is directed at hypercapnia and describes the hypercapnia method as having a unique capability.

[00:08:55] Speaker 04:
Having a what?

[00:08:56] Speaker 01:
I'm sorry, I'm missing something.

[00:08:57] Speaker 04:
A unique capability of aquatic animals and species.

[00:08:59] Speaker 04:
In the background, it even talks about how it's advantageous over hypoxia.

[00:09:06] Speaker 00:
It also says at column 8, line 30,

[00:09:09] Speaker 00:
around 38, it says that the hypercapnia will actually result in hypoxia.

[00:09:15] Speaker 00:
Supersaturated concentrations of carbon dioxide cause stress and death.

[00:09:19] Speaker 00:
And then there's a parentheses that says hypoxia.

[00:09:30] Speaker 04:
Correct, Your Honor, but I think there's two differences.

[00:09:35] Speaker 04:
As explained in the

[00:09:40] Speaker 04:
It is his view that hypoxia appears to be a mistake.

[00:09:50] Speaker 01:
Yes, but it references it expressly, and that's a question of fact.

[00:09:55] Speaker 01:
So I'm supposed to disregard the board's substantial evidence, under substantial evidence, for a fact finding it made about something a reference actually says because your expert says he thinks the reference says it in a mistaken way.

[00:10:09] Speaker 01:
is the quintessential fact-finding body's job.

[00:10:14] Speaker 01:
And I'm in an appellate court.

[00:10:16] Speaker 04:
Yes, Your Honor, but I'd also like to point out that the reference is- Not me personally, we.

[00:10:24] Speaker 04:
Is talking about the killing from hypoxia.

[00:10:28] Speaker 04:
And killing by hypoxia just means lack of oxygen.

[00:10:31] Speaker 04:
I'm not an expert, but I can imagine a scenario where you would be in a oxygen-rich environment, but you could still die from lack of oxygen.

[00:10:42] Speaker 01:
But again, all of that is board fact-finding material.

[00:10:45] Speaker 01:
All of that, how it's used in this reference and what it teaches one of skill in the art is a fact-finding, and the board made express and specific fact-findings about that reference.

[00:10:54] Speaker 01:
So you're calling them into question, and you seem like a smart guy.

[00:10:57] Speaker 01:
Maybe I would believe you if I got to decide that question fresh.

[00:11:01] Speaker 01:
de novo, but I don't.

[00:11:03] Speaker 01:
I've got to give deference to the board's finding.

[00:11:06] Speaker 04:
Yes, I understand that, but I think the board erred in not even refusing to mention paragraph seven of Dr. Force's declaration.

[00:11:16] Speaker 01:
So you think the board commits what legal or factual error when it doesn't actually address the evidence on the other side when it makes a fact-finding to the contrary?

[00:11:25] Speaker 01:
Where exactly do you think I put that?

[00:11:28] Speaker 01:
In what box?

[00:11:29] Speaker 04:
I would put that in the legal error failing to consider the reference.

[00:11:33] Speaker 01:
I should presume they failed to consider it because they didn't mention it in the opinion?

[00:11:37] Speaker 04:
Yes, Your Honor.

[00:11:43] Speaker 04:
OK.

[00:11:46] Speaker 04:
Another legal error I wanted to touch on more is there are six different prior art references cited in the board's decision.

[00:11:54] Speaker 04:
And there are disparate references

[00:11:56] Speaker 04:
And the board failed to make the necessary findings as to why it would have been obviousness to combine the references.

[00:12:04] Speaker 04:
Instead, the board merely criticized MH systems for arguing the references, quote, separately.

[00:12:10] Speaker 04:
It's simply permissible for the board to cite disparate references as disclosing the entirety of a claim without explaining why a person born here still would have been motivated to combine them.

[00:12:22] Speaker 04:
Indeed, the obvious rationale cited by Nicole Carver-Brief is merely the statements of the examiner and the board merely recites these statements without stating whether or not the board is adopting them.

[00:12:35] Speaker 04:
And just last week, a week ago today, when we came across this case in our preparation for it, in ICON Health v. Strava, the

[00:12:45] Speaker 04:
This court remanded a enterprise re-examination decision where the board failed to provide an evidentiary basis for its motivation combined, and the board also failed to explain its reasoning as to why a person of ordinary skill would have combined the references.

[00:13:03] Speaker 04:
As the ICON Health decision explains, the board must explain why it adopted the prevailing argument, and the board did not do so here.

[00:13:13] Speaker 01:
You're into your rebuttal time.

[00:13:14] Speaker 01:
Would you like to save the remainder?

[00:13:15] Speaker 04:
Oh, I guess you're fine.

[00:13:16] Speaker 01:
Okay.

[00:13:17] Speaker 01:
Very good.

[00:13:17] Speaker 01:
Let's hear from the other side.

[00:13:23] Speaker 01:
Mr. Sitaway.

[00:13:25] Speaker 02:
Yes.

[00:13:26] Speaker 01:
Mr. Sitaway.

[00:13:33] Speaker 03:
Thank you, Your Honors.

[00:13:36] Speaker 01:
Okay, Mr. Sitaway, you have to address every single rejection.

[00:13:38] Speaker 01:
Go!

[00:13:40] Speaker 03:
Well, I'd like to begin by addressing something that each one of you brought up.

[00:13:47] Speaker 03:
which is what's obvious about these two known methods of killing this ANS, this plodic nuisance species, the forcafian hypoxia.

[00:13:58] Speaker 03:
And I'd just like to add to the court's discussion that the patent itself provides that not only are hypoxia and carbonation known, but their combination is also known methods of controlling this ANS.

[00:14:12] Speaker 03:
So it's not only a question of

[00:14:15] Speaker 01:
Whether Watten discloses it, for example, because the 859 discloses it on its own face, and that is further support for the board's fact-finding about Watten.

[00:14:25] Speaker 03:
That's exactly right.

[00:14:26] Speaker 00:
Did the board refer to that at all?

[00:14:28] Speaker 03:
It did.

[00:14:28] Speaker 03:
That's fact-finding number 1A.

[00:14:31] Speaker 03:
And fact-finding number 1B is very closely related.

[00:14:36] Speaker 03:
And not only that, but it's

[00:14:40] Speaker 03:
But this statement that's fact-finding 1A and 1B also cites the references that are used as part of the rejection.

[00:14:49] Speaker 03:
So it cites the McMahon reference, for example.

[00:14:51] Speaker 03:
And it cites the Tambori reference.

[00:14:58] Speaker 03:
And so it shows that Percival-Lornais-Filiard, in reading these references, understands not only that

[00:15:08] Speaker 03:
Hypoxium, Hypochapenia would work to conflate ANS, but one could use them together, and could induce these two conditions simultaneously, as I think you brought up, by using inert gases, combustion gases from onboard sources on the ship, from the exhaust fumes that were already there.

[00:15:31] Speaker 01:
So this patent doesn't create a new way to, for example, induce Hypochapenia.

[00:15:37] Speaker 01:
hypoxia.

[00:15:40] Speaker 01:
It's not a new way.

[00:15:40] Speaker 01:
It's not like they found a new machine or a new method of creating this condition.

[00:15:46] Speaker 01:
Did they?

[00:15:46] Speaker 01:
I mean, is that what's claimed?

[00:15:48] Speaker 03:
No, that is not claimed at all.

[00:15:50] Speaker 01:
Because he kind of suggested that.

[00:15:51] Speaker 01:
He suggested if you look at the spec, they claimed a very specific and sort of

[00:15:55] Speaker 01:
different possibly even novel way of doing it but when Judge Lynn pointed the claim to, none of those elements are certainly there.

[00:16:02] Speaker 01:
I know there are a lot of claims at issue.

[00:16:03] Speaker 01:
Are those elements present in one of the other claims that are on appeal to us such that maybe there is a basis for coming out different ways on different claims?

[00:16:11] Speaker 03:
Not significantly.

[00:16:12] Speaker 03:
Most of the claims

[00:16:15] Speaker 03:
Let me start with Claim 2, and then I'll work out from there.

[00:16:19] Speaker 03:
Claim 2 requires the induction of a hypercaphene, hypoxia, as well as a certain reduction of pH and a certain concentration of carbon dioxide.

[00:16:32] Speaker 01:
But it doesn't tell you how to do it, really, other than it says, infuse carbon dioxide into the balance.

[00:16:37] Speaker 03:
That's exactly right.

[00:16:38] Speaker 03:
And most of the claims are along those same lines.

[00:16:41] Speaker 01:
So any known method of doing this

[00:16:43] Speaker 01:
would if used in triple, in fringe.

[00:16:46] Speaker 03:
That's correct.

[00:16:47] Speaker 03:
Now, I will say that a couple of the claims do have, it talks about bubbling these gases up through the ballast water, for example, which is a little more structural.

[00:16:58] Speaker 03:
However, the board absolutely addresses that in its findings of fact.

[00:17:07] Speaker 01:
Times 16 and 15 are examples of bubbling the gaseous mixture through the ballast water.

[00:17:12] Speaker 01:
Is that something, was that taught by any particular reference?

[00:17:16] Speaker 01:
And if so, which one?

[00:17:18] Speaker 03:
Finally, I can point to, finally in fact, 5D.

[00:17:21] Speaker 01:
Well, Zynga, is that what that one is?

[00:17:23] Speaker 03:
That is actually McMahon.

[00:17:24] Speaker 01:
OK, McMahon.

[00:17:25] Speaker 03:
Which is used in Rejection 6.

[00:17:28] Speaker 03:
But it states, due to its ability to deform weak gases when dissolved in water, medium bubbles of gases containing elevated concentrations of carbon dioxide will also have a reduced pH.

[00:17:43] Speaker 03:
There are other... finding in fact E5E also in the plan discloses permittivity in water as a molybdenum using micro-bubbling sparser system.

[00:17:59] Speaker 01:
And there's another... Okay, I have a dumb question.

[00:18:08] Speaker 01:
Is the bubbling for the hypercapnia or for the hypoxia?

[00:18:13] Speaker 01:
or both?

[00:18:16] Speaker 03:
I would say the bubbling is tied to either condition.

[00:18:18] Speaker 03:
The condition, the bubbling of this gas, which is a combination of nitrogen, oxygen, and carbon dioxide, is the byproduct of combustion.

[00:18:27] Speaker 03:
That gas is bubbled through water, and it creates both conditions simultaneously.

[00:18:32] Speaker 03:
That both conditions can happen simultaneously is also the product of several fact findings, including McMahon, which discusses

[00:18:42] Speaker 03:
both hypercapnia and anoxia, which is a complete elimination of oxygen, as well as normoxia, which is normal oxygen conditions.

[00:18:53] Speaker 03:
But they'll seem to describe creating both conditions together, as does the Watton reference, which is in the product of a great deal of discussion.

[00:19:05] Speaker 03:
Are there any other questions on the board's finding of obviousness?

[00:19:12] Speaker 03:
In particular, all we've been discussing are the content of the prior art.

[00:19:16] Speaker 03:
That's all that's been discussed in the hearing today, what is discussed in the briefs.

[00:19:21] Speaker 03:
The standard there, as the court has already raised, are these fact-finding supported by substantial evidence?

[00:19:28] Speaker 03:
Did the board support its findings of what the prior art held was substantial evidence?

[00:19:34] Speaker 03:
And I'll just leave the court on this point with the patent itself, I think, provides the greatest evidence of that substantial evidence by the board.

[00:19:47] Speaker 03:
I'd like to turn to the secondary considerations of non-obviousness briefly.

[00:19:54] Speaker 01:
In particular... The only one he mentioned was copying, and he didn't really get a chance to address it.

[00:20:00] Speaker 01:
So any ones that you address, you open the door on rebuttal to discussing.

[00:20:03] Speaker 01:
Feel free to go forward.

[00:20:06] Speaker 03:
No, Your Honor, since it wasn't raised for the court, if there are no further questions, I'll see to it.

[00:20:14] Speaker 01:
Because it's covered in the briefs?

[00:20:15] Speaker 03:
Yes.

[00:20:16] Speaker 01:
Very good.

[00:20:17] Speaker 01:
Good choice.

[00:20:18] Speaker 01:
OK.

[00:20:20] Speaker 01:
We have some rebuttal time.

[00:20:21] Speaker 01:
You can make it two minutes.

[00:20:24] Speaker 04:
Thank you, Your Honor.

[00:20:31] Speaker 04:
Just a couple of points.

[00:20:34] Speaker 04:
First off, Councilor Cold Harbor referenced the statement in fact finding 1A, I believe it was.

[00:20:46] Speaker 01:
1A and I think 1B, he had on both.

[00:20:49] Speaker 04:
About the statement page and the background.

[00:20:52] Speaker 04:
There's been no finding that the board considered that to be, quote, admitted prior art.

[00:21:01] Speaker 04:
And stating this in the background,

[00:21:05] Speaker 04:
of the patent are not necessarily, should not necessarily be considered being in their prior art without sufficient statements signifying that.

[00:21:28] Speaker 04:
And second, I want to, I believe, your honor, ask a question of whether

[00:21:34] Speaker 04:
and not the kindness limited to just inducing the phenomenon of inducing hypoxia and inducing hypercapnia.

[00:21:42] Speaker 04:
Cobar for reference, claim four, discusses bubbling, but I'd also like to point out claim five, which claims

[00:21:53] Speaker 04:
bubbling water when the ballast tank itself is the U.S.

[00:21:58] Speaker 04:
based above the ballast tank is being kept at less than atmospheric pressure.

[00:22:02] Speaker 04:
No single reference teaches that, and with respect to Rejection 6, which is the one we'll claim by the subject too, the elving of reference is what discloses meaning that limitation.

[00:22:14] Speaker 01:
However, again... Rejection 6 actually cites McMahon.

[00:22:18] Speaker 01:
McMayhem, or however you say it, right?

[00:22:20] Speaker 04:
With respect to the claim 5, occasionally Rejection 6 cites Elzinga, or Annela, as Watten as discussing the below atmosphere.

[00:22:32] Speaker 01:
I know, I just don't have Elzinga at all.

[00:22:33] Speaker 01:
I have Watten, McMayhem, and Millwee as the Rejection 6 element.

[00:22:37] Speaker 04:
Oh, excuse me, I meant to say Watten instead of Elzinga.

[00:22:40] Speaker 01:
Okay, got it.

[00:22:40] Speaker 01:
That's all.

[00:22:41] Speaker 01:
I just wanted to make that... Look, it's hard to keep all these things straight, but I think I have a nice little chart here that does it, so I'm trying to follow.

[00:22:47] Speaker 01:
So, Watten,

[00:22:48] Speaker 01:
You believe they cite Watten for that and you don't think it discloses gas liquid containing at pressures above at or below local atmospheric pressure at page 8.

[00:23:00] Speaker 01:
A-10.

[00:23:01] Speaker 01:
So are you saying that that fact-finding is not supported by substantial evidence?

[00:23:06] Speaker 04:
Correct, Your Honor.

[00:23:07] Speaker 04:
Because the entire purpose of Lawton is, if you take a look at the abstract, is that Lawton is talking about pressurizing carbon dioxide and doing the, and pumping the ballast water into an absorber is not treating the

[00:23:23] Speaker 04:
the water while it is in the ballast tank.

[00:23:27] Speaker 04:
The board cites what necessarily is in that limitation, and it's argued that that amounts to being a finding of, not being supported by substantial evidence.

[00:23:41] Speaker 01:
Okay, is there anything further?

[00:23:42] Speaker 01:
Because we're out of time, so if you have a wrap-up sentence, I'll pull it out.

[00:23:47] Speaker 04:
I think that covers it.

[00:23:50] Speaker 04:
Again, the rest of it should be covered in our brief.

[00:23:53] Speaker 01:
I thank both counsel.

[00:23:55] Speaker 01:
This case is taken under submission and that concludes our hearings for today.