[00:00:00] Speaker 06:
7-1036 Nalco Company vs. Kembobs

[00:00:42] Speaker 06:
Mr. Farney, whenever you're ready, please proceed.

[00:00:50] Speaker 00:
May it please the court.

[00:00:51] Speaker 00:
My name is Brian Farney, and I represent the appellant Nalco Company.

[00:00:55] Speaker 00:
This appeal is from a 12b6 dismissal, and it is unusual in at least two respects.

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First, as the court knows, its review is de novo.

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The parties have agreed on that.

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But here, it's de novo in literally one sense.

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It's unusual.

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NACO's complaint three different times below, the district court never held a single oral argument.

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So this is the first time NACO has ever been afforded an oral argument to explain why its complaint does state the claim for infringement.

[00:01:25] Speaker 04:
Well, I mean, you don't have to have oral argument to get due process.

[00:01:29] Speaker 04:
I mean, if you don't adequately explain it in your briefs, then that's up to the district court.

[00:01:35] Speaker 00:
Agreed.

[00:01:35] Speaker 00:
It is unusual, however, and I think it led to the error, the reason that we're here.

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Without having that oral argument, the district court never really understood what our position was on infringement.

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So the issues we have here is, did he err in misunderstanding what our infringement position was?

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He never addressed either alternative theory and dismissed it for any reason that applied to those theories, as I'll explain.

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And then second, has Kenmott given us any reason to think otherwise?

[00:01:59] Speaker 04:
Well, I'm actually trying to drill down on your infringement theories, too.

[00:02:04] Speaker 04:
So your primary argument for direct infringement

[00:02:09] Speaker 04:
by the named defendants, or the originally named defendants, is based on the full-scale testing, right?

[00:02:18] Speaker 04:
Correct.

[00:02:20] Speaker 04:
All right.

[00:02:21] Speaker 04:
Then I think one of the pieces of confusion is, are you relying on direct infringement by unnamed parties for purposes of your indirect infringement claims?

[00:02:33] Speaker 00:
Yeah.

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So the direct infringement claim that we're relying upon and preserved here on appeal

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is that ChemMod and its affiliates that are named direct the process in the North Dakota facility, as we allege in paragraph 63 to 67 of our complaint, and control that process.

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And they've never denied that they do that.

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In their briefing below, in the 4AC briefing at page 5, and here on appeal, the only thing they say is the process is not covered by the claims, but they never say they control all those steps in the process.

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So that's a direct infringement act.

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In conjunction with all their work in the commercial power plants,

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The commercial power plant operator is the one that actually injects the material into the flue gas and would be the direct infringer.

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So that's the underlying direct infringement for which we allege they're inducing a contributory infringement.

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arises from.

[00:03:20] Speaker 04:
Right.

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And I think that's where the confusion was.

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I think that the district court thought that you were assuming that it was the named defendants, the originally named defendants, who had to engage in the direct infringement before you could have any indirect infringement.

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I think that some of it.

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I also think the confusion, as we read the record, I think the confusion also led in part to some terminology confusion.

[00:03:42] Speaker 00:
The district court, in dismissing the first amendment complaint,

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focus on the fact that KenMod and its affiliates apply this MerSorb, the bromine precursor, to the coal outside the plant.

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And they use the term injection, the dual injection process.

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The MorSorb and the S-Sorb is a dual injection process on the coal outside the plant.

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In its complaint, MALCO had used that word injection as KenMod does, but then later said it's the injection of that treated coal with the MerSorb into the furnace where the flue gas is that is the infringing injecting step.

[00:04:14] Speaker 00:
But the district court, you can read at page five of his opinion in dismissing the 1AC, said applying or injecting this material out here on the coal, the coal cannot be injected in the furnace, and therefore it's not plausible it's infringement.

[00:04:27] Speaker 00:
I never really understood.

[00:04:28] Speaker 00:
That wasn't the infringing step we were talking about.

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The infringing step we were talking about was once you inject that coal with emersorb into the furnace, that is injecting the flue gas.

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We tried to clarify that.

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Nalco tried to clarify that in the third amendment complaint.

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to make it clear that's the stuff we were talking about.

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And if you read the district court's opinion at page six, it's quite clear he summarizes what we said, but then says, as I've already said, applying it to these three places outside the plant can't be injecting the flue gas.

[00:04:56] Speaker 00:
He never addressed the question of whether injecting it into the furnace is injecting the flue gas.

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When you get to the fourth minute complaint, you can really see the error has propagated.

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In the fourth minute complaint, as the court knows, there's a dispute between the parties whether flue gas exists, where Ken Mod's stuff is injected.

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or whether it's limited to the upper furnace region and beyond.

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NALCO, by the fourth amendment complaint, added a second alternative theory infringement, that even if flue gas isn't where the chemical process is put into the coal injectors, it is in the upper furnace region.

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And injecting it through the coal injectors will cause it to shoot up under pressure to that upper furnace region.

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And that is injecting within the meaning of the claim.

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The district court cited, summarized that position in page 5 of the dismissing the 4AC, and then said,

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I've already addressed this in my opinion with respect to the 3AC, which couldn't be true because we never alleged it to the fourth amendment complaint.

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And if you go back and look at the section he cites at page 6 of the third amendment complaint, he's again saying applying it to the coal outside the plant is an infringement.

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So I don't think the court ever really understood that we were not accusing applying the material to the coal outside the plant as an act of infringement.

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What we were accusing was spraying that material, the bromine precursor, along with the coal into the plant is the active infringement, either because at the point of the injection where the coal injectors are, there's flue gas, or even if you take the alternative position of flue gases in the upper furnace region, it gets to the flue gas.

[00:06:27] Speaker 04:
Do you agree with the proposition that even if there are only limited obligations with respect to pleading, that one could plead themselves out of court by affirmatively making statements that would

[00:06:39] Speaker 04:
make it clear that there can't be infringement.

[00:06:41] Speaker 00:
Essentially, that could be true.

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You could say, my claim requires A, B, and C, and then go on to say they don't have C. That could happen in the case.

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It didn't happen here.

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Here, the claim simply requires injecting bromine precursor into the flue gas.

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Kenma does not dispute that when the treated coal is injected into the furnace, that is injecting bromine precursor.

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The claim is a comprising claim.

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And as we said in our brief, and Kenma did not oppose this,

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That means that if you're injecting bromine precursor and coal along with it, that you are injecting bromine precursor.

[00:07:15] Speaker 00:
The only dispute between the parties is whether flue gas exists where that injecting is occurring.

[00:07:21] Speaker 00:
And we have two theories on that.

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And remember, at this stage, we're not, like your prior case, which is summary judgment, we're not here on a final judgment.

[00:07:29] Speaker 00:
We're simply whether we've stated a plausible claim for infringement for which we're entitled to have a fair hearing and a fair day in court.

[00:07:36] Speaker 00:
Let's look at both of these theories, and I'll take the second theory first.

[00:07:41] Speaker 00:
On the second theory, which as I pointed out, the district court never really addressed, the only argument Kimmott has ever given for why that position is implausible, that injecting through the coal injectors causes it to flow under pressure to the upper furnace region, where they say the flue gas is, is still infringement, is that it's implausible that thermal label material would get to the upper furnace region.

[00:08:05] Speaker 00:
They just simply say that.

[00:08:07] Speaker 00:
Their attorney says that, but there's no evidence of it.

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They cite no expert that says that.

[00:08:11] Speaker 00:
There's simply nothing in there.

[00:08:13] Speaker 00:
We say it does get there, and at a 12b6 stage, our position is accepted as true.

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But it's more than that.

[00:08:19] Speaker 00:
We showed you in the brief, there's a Felsvang reference that was intrinsic to the patent, cited in the patent.

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And at lines 39 through 50 of Column 4 and Felsvang, it specifically talks about injecting a chlorine precursor instead of a bromine precursor.

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same purpose, removing mercury from the gas.

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And if you want more precursor to be up beyond the upper furnace region, you can inject more into the furnace.

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So Felsman clearly understands you can inject more precursor into the furnace to get it up above and shows that it's possible to get precursor up above even though you're injecting into the furnace.

[00:08:53] Speaker 00:
So we have one data point that our position is right, not as plausible to right.

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They have no data point otherwise.

[00:08:59] Speaker 00:
It's simply at a 12-by-6 stage not possible to say that our position on the second theory is not plausible.

[00:09:04] Speaker 04:
What about the district court's statement that as it relates to indirect infringement, you didn't adequately plead intent?

[00:09:13] Speaker 00:
It's interesting.

[00:09:14] Speaker 00:
If you look at the court's opinion, he says two things.

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He says primarily that both as to inducement and contributory infringement that the reason we don't meet either of those is we have no underlying direct infringement for the same claim scope issue.

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and almost a side reference that we didn't plead intent, but we pointed out that we did plead intent, the paragraphs 108 through 111 of the Fourth Amendment complaint.

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And if you read those paragraphs, we clearly alleged intent, and at the 12b6 stage,

[00:09:41] Speaker 00:
That allegation has to be accepted as true.

[00:09:43] Speaker 06:
Well, the intent is irrelevant to the induced infringement, right?

[00:09:45] Speaker 06:
It's not relevant to the contributory infringement.

[00:09:48] Speaker 06:
Correct.

[00:09:48] Speaker 06:
And you pledged knowledge, and you said no non-substantial, non-impringing uses.

[00:09:55] Speaker 06:
That's correct.

[00:09:55] Speaker 06:
And that should be sufficient for contributory.

[00:09:57] Speaker 00:
That's correct.

[00:09:57] Speaker 06:
Even if there were some flaw in the indirect for inducement.

[00:10:02] Speaker 00:
That's correct.

[00:10:02] Speaker 00:
There are separate theories.

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And the only time you reference that intent was with respect to the inducement.

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And you can read, like I said, 108 through 111 that we did do so.

[00:10:10] Speaker 00:
in a contributory, the only reason he ever gave was the no infringement claims point.

[00:10:14] Speaker 00:
Yes, that's correct, Your Honor.

[00:10:16] Speaker 00:
Turning to the first infringement theory we had is that when they inject the bromine precursor along with coal, using the coal injectors into the furnace that is injecting the flue gas, we specifically alleged in paragraph 29 of our complaint the following.

[00:10:35] Speaker 00:
Coal combustion flue gas

[00:10:38] Speaker 00:
is present throughout the operating coal combustion furnace, including the site at which the Kenmont solution mixture is injected via coal injectors into the operating coal-fired power plant.

[00:10:48] Speaker 00:
We made that specific allegation at a 12b6 stage that needs to be accepted as true.

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But it's not just a bare statement that it needs to be accepted as true.

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There was intrinsic evidence at the time of the 4AC that supported our position.

[00:11:01] Speaker 00:
Claim 21 of the patent includes the phrase, where the flue gas is produced during combustion of coal.

[00:11:07] Speaker 00:
The point here is what's going on here is you have coal that's been pulverized to the stage of basically taco powder.

[00:11:14] Speaker 00:
It's being injected under pressure with a forming precursor into basically a giant blowtorch.

[00:11:18] Speaker 00:
That's what's going on.

[00:11:20] Speaker 00:
And there's flue gas where that flame is occurring.

[00:11:23] Speaker 00:
And that's what this claim 21 is saying.

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Flu gas is produced during the combustion of the coal.

[00:11:29] Speaker 00:
The PTAB in re-examination found that flue gas is not limited to location or temperature, where temperature is essentially a proxy for location, because it gets cooler as it goes up through the power plant.

[00:11:41] Speaker 00:
And particularly, Madden, which was a point discussed by the patent office, is a reference we cited at page 32 of our opening brief to show you that the art clearly understands that when you're wanting to inject material into the flue gas,

[00:11:56] Speaker 00:
You can do so by injecting it in the upper furnace region or even further up.

[00:12:01] Speaker 00:
And it's confusing because up is downstream.

[00:12:03] Speaker 00:
But either using either term, you can inject it in places there.

[00:12:07] Speaker 00:
But you can also, and this is the key in Madden, at figure two of his patent on page 32 of our brief, you can also inject into the flue gas by putting the material in with the fuel and injecting directly in the furnace.

[00:12:21] Speaker 00:
Now, Madden says that column four, lines one through 13,

[00:12:25] Speaker 00:
that that is injecting into the flue gas just as much as injecting in the upper furnace region or at other places downstream.

[00:12:32] Speaker 00:
Now, if that's injecting the flue gas, and NAWCO's position is what ChemMod's doing is injecting the flue gas, that's at least a plausible position that we have stated to foreign infringement, and we're entitled to move forward to a markman hearing in the other proper process in the case.

[00:12:47] Speaker 00:
Now, what is ChemMod's response to this?

[00:12:50] Speaker 00:
They don't cite a single piece of evidence that says anyone in this industry

[00:12:55] Speaker 00:
thinks that coal combustion gas is called something other than flue gas.

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That it's called something down here and something else up here.

[00:13:01] Speaker 00:
They don't have anything like that.

[00:13:03] Speaker 00:
The only thing they cite is two sentences out of over 2,000 pages of file history from that NALCO in the re-exam brief to the PTAB according to the unlimited flue gas to something less than what it means in the ARC.

[00:13:17] Speaker 00:
You don't have to read all 2,000 pages to know that they're taking the sentence out of context.

[00:13:23] Speaker 00:
You have to read one page.

[00:13:24] Speaker 00:
page six where those statements are.

[00:13:26] Speaker 00:
There are three paragraphs on that page.

[00:13:29] Speaker 00:
Paragraph one, NACO says the ore patent claims and the specification do not limit flue gas to any location.

[00:13:37] Speaker 00:
Flat out says that.

[00:13:39] Speaker 00:
In the third paragraph, and continuing on to the next page, it says the ore claims do not limit flue gas to any location.

[00:13:46] Speaker 00:
Now, Ken Mudd's entire case for why our first theory isn't plausible is that the middle paragraph somehow

[00:13:51] Speaker 00:
says something completely opposite of what the first and the third paragraphs say.

[00:13:54] Speaker 06:
You're well into your rebuttal time.

[00:13:55] Speaker 06:
You want to make sure you save some?

[00:13:57] Speaker 00:
I will.

[00:13:59] Speaker 00:
We showed you in the briefing that that was not the case, because particularly what those two sentences were talking about was the Madden reference and another reference.

[00:14:09] Speaker 00:
And as I've said, Madden clearly shows the material, the flue gas, is in the area of the cold injectors that injecting occurs.

[00:14:16] Speaker 00:
And with that, I'll reserve the rest of my time.

[00:14:19] Speaker 06:
Mr. Mark?

[00:14:33] Speaker 02:
May please the court.

[00:14:34] Speaker 02:
Richard Mark for the defendants.

[00:14:36] Speaker 02:
My colleague Joe Eval is with me at the console table.

[00:14:40] Speaker 02:
Patent in this case claims a method for treating mercury containing flue gas by injecting a form of bromine into flue gas.

[00:14:51] Speaker 02:
The chem-mod process is categorically different from that.

[00:14:54] Speaker 02:
It involves applying chemicals to solids.

[00:14:56] Speaker 04:
The problem here is that I'm feeling like I'm back in a district court and that we're having

[00:15:03] Speaker 04:
a claim construction argument, one that never occurred below.

[00:15:07] Speaker 04:
So why are we discussing claim construction here on a motion to, an appeal from a motion to dismiss?

[00:15:16] Speaker 02:
What the district judge did appropriately in this setting was to apply the broadest plausible, broadest possible construction to the patent and say,

[00:15:27] Speaker 02:
Is there any way this can be read?

[00:15:29] Speaker 02:
You didn't apply a limiting reading.

[00:15:31] Speaker 04:
If the district court wanted to do this on a motion to dismiss, what the district court should have said, I'm going to apply the construction that the plaintiff proposes and then see if there's no way there can be infringement.

[00:15:42] Speaker 04:
He can't choose among constructions when there's a debate over what the appropriate construction was without having a claim construction.

[00:15:51] Speaker 02:
No choice was made by the district court because what the complaint did here

[00:15:55] Speaker 02:
including by attaching as exhibits material of Kemod and Arthur Gallagher, was to adopt as allegations of the complaint the defendant's description of its process.

[00:16:11] Speaker 02:
And that description shows clearly

[00:16:14] Speaker 02:
that the process is a different one than the method claimed in the patent.

[00:16:19] Speaker 04:
Assuming you accept your description of what the method claimed in the patent is.

[00:16:23] Speaker 02:
It is not simply accepting the defendant's assertion in a disputed setting.

[00:16:30] Speaker 02:
What happened here was that the plaintiffs chose to incorporate and make part of their complaint ChemMod's description of what it does, including its understanding of what it does, which incidentally

[00:16:44] Speaker 02:
dooms the aspects of the indirect infringement case.

[00:16:48] Speaker 02:
But in terms of direct infringement and whether somebody, a non-party in this case, is directly infringing by adopting the thing that is attached as Exhibit E to the Fourth Amendment complaint, that PowerPoint that I'm sure the court has reviewed, that document was attached to every single complaint from the first complaint that was filed

[00:17:10] Speaker 02:
through the amended complaint, the first, second, third, and fourth.

[00:17:14] Speaker 02:
And that was the consistent description adopted as an allegation of what the chem-mod process is that the court could and should, on 12b6, assume the truth of when it makes the determination of what the process is, comparing it to a patent that says we inject into flue gas.

[00:17:36] Speaker 02:
To do otherwise, and to say, oh, we'll take

[00:17:39] Speaker 02:
we'll take anything here as the description as the plaintiffs are urging on this appeal would be to read the word flu out of the claim and that can't be done.

[00:17:53] Speaker 02:
You can't just take coal combustion flue gas and turn it into coal combustion gas without changing fundamentally the meaning of the patent.

[00:18:04] Speaker 02:
As to certain

[00:18:05] Speaker 02:
other aspects of the argument that have already been made.

[00:18:08] Speaker 02:
I think there are some clarifications that are inevitable as a result of the way the matter has been litigated.

[00:18:15] Speaker 02:
As to these defendants, there is no direct infringement case left.

[00:18:20] Speaker 02:
It has been.

[00:18:21] Speaker 04:
What about the testing allegations?

[00:18:24] Speaker 02:
The testing allegation was first raised on this appeal in the reply brief.

[00:18:29] Speaker 02:
It was not raised as a matter in the appeal

[00:18:34] Speaker 02:
as a basis for changing the judgment.

[00:18:36] Speaker 04:
The judge's obligation is to look at the complaint.

[00:18:39] Speaker 04:
I mean, they allege infringement through testing.

[00:18:43] Speaker 04:
Are you saying that it's not in the complaint?

[00:18:46] Speaker 02:
They do have allegations in the complaint, but it is the obligation of the appellant to say what it wants to have changed about the judgment in its brief on appeal.

[00:18:56] Speaker 02:
There is no argument in the plaintiff's principal brief on appeal that the testing allegations are basis.

[00:19:02] Speaker 06:
Waiver is the discretion of the Appellate Court.

[00:19:03] Speaker 06:
So why don't you, I understand your waiver argument, but why don't you move beyond it on the assumption that you may not prevail on that?

[00:19:11] Speaker 06:
So why don't you move beyond it and tell us, do you have a response on the merits to Judge O'Malley's question about the North Dakota testing, or is your only response to that waiver?

[00:19:20] Speaker 02:
The principal response to that is that the

[00:19:25] Speaker 02:
The process, as it is performed, is not infringing.

[00:19:28] Speaker 02:
As even raised in the reply brief, however, the testing allegations don't go to all of the defendants in this case, even as they describe it in the reply group.

[00:19:40] Speaker 02:
So there are a number of parties that are uncovered by that.

[00:19:42] Speaker 04:
It doesn't have to go to all the defendants.

[00:19:44] Speaker 02:
No, it doesn't.

[00:19:45] Speaker 04:
But certain parties... You know, it's part of the confusion here is that there are separate claims.

[00:19:50] Speaker 04:
Some defendants are accused of some things.

[00:19:52] Speaker 04:
Others are accused of other things.

[00:19:53] Speaker 04:
Some direct infringers are not even listed in the complaint.

[00:19:59] Speaker 04:
You don't have to have every single allegation applied to every single defendant.

[00:20:06] Speaker 02:
That's true.

[00:20:08] Speaker 02:
The way the complaint was originally structured, however,

[00:20:11] Speaker 02:
That is what the plaintiffs attempted to do, and what they have been doing since then is retreating and retreating in certain ways to try and preserve some aspect of the claim.

[00:20:22] Speaker 04:
A fundamental flaw in... Well, when they filed their complaint, in fairness, the direct infringement claims were governed by Form 18.

[00:20:32] Speaker 04:
Yes.

[00:20:33] Speaker 02:
That is true.

[00:20:33] Speaker 02:
Yes.

[00:20:34] Speaker 04:
And the district court just ignored that.

[00:20:37] Speaker 02:
Not so.

[00:20:38] Speaker 02:
because this complaint, by attaching additional materials and going beyond what Form 18 allows as essentially a safe harbor for a certain type of complaint,

[00:20:51] Speaker 06:
the plaintiffs issued that from the get-go you think there's some smoking gun i've got your powerpoint right here twenty three eighty one is that the page you think is some smoking gun attached because i didn't review this but i didn't see anything that pleads them out of court the way you seem to be suggesting so it might help me at least if you would point to specificity to the things that they attached to their complaint which you think make their complaint implausible on its face

[00:21:24] Speaker 06:
I mean, the only thing I think you could be talking about is 2381, but I could be wrong.

[00:21:28] Speaker 02:
Well, 2381, of course, shows first.

[00:21:31] Speaker 02:
And that is the drawing of the PowerPoint, which shows where the only activity these defendants engage in occurs.

[00:21:40] Speaker 02:
It's in the green oval, omitted from the brief, as we otherwise noted.

[00:21:47] Speaker 02:
But that shows where the entirety of the activity of these defendants occurs.

[00:21:51] Speaker 02:
And that's where the application and so on goes on.

[00:21:55] Speaker 06:
So they're injecting, so they say, I don't believe any of this is privileged.

[00:22:00] Speaker 06:
Is there anything I'm about to say that's under a protective order?

[00:22:03] Speaker 06:
I'm about to say where it's being injected.

[00:22:05] Speaker 06:
Go right ahead.

[00:22:06] Speaker 06:
All right.

[00:22:07] Speaker 06:
So their argument is that it's being injected into a combustion chamber.

[00:22:12] Speaker 06:
Is that a fair way to characterize that?

[00:22:16] Speaker 02:
In other words, if you go to the right of the green oval on 2381 to where it's pointing to the boiler furnace, that's where they say that occurs.

[00:22:24] Speaker 05:
OK.

[00:22:25] Speaker 05:
Where is it being injected?

[00:22:27] Speaker 05:
Where is the CMS, right?

[00:22:30] Speaker 05:
Is that CMS?

[00:22:30] Speaker 05:
Is that what it's called?

[00:22:33] Speaker 02:
The ChemMod solution is the description of the process.

[00:22:38] Speaker 02:
What the complaint alleges to be the ChemMod solution mixture is refined coal that has chemicals added to it.

[00:22:44] Speaker 06:
Where is the thing injected?

[00:22:46] Speaker 02:
That is to the right, you see the boiler furnace.

[00:22:52] Speaker 02:
The other place to look for this, Your Honor, is if you look at paragraph 27 of the Fourth Amendment complaint, there is another drawing there, a schematic, that illustrates

[00:23:05] Speaker 06:
Where can I find that?

[00:23:08] Speaker 06:
Fourth amended complaint, I guess, is at 2102.

[00:23:10] Speaker 06:
You want me to look at paragraph 27?

[00:23:13] Speaker 06:
All right.

[00:23:14] Speaker 06:
2116.

[00:23:14] Speaker 06:
So what is it you want me to see about this?

[00:23:19] Speaker 06:
This one's sort of less clear than the pretty one.

[00:23:22] Speaker 02:
Than the pretty one, yeah.

[00:23:23] Speaker 06:
Well, that's unfortunate.

[00:23:25] Speaker 02:
So if there is a structure, you see reagent injection options, and there is a

[00:23:35] Speaker 02:
a structure with three little arrows in it that says coal injectors.

[00:23:39] Speaker 02:
Which page is this?

[00:23:40] Speaker 02:
This is 21, I have it on 2116 of the appendix.

[00:23:48] Speaker 06:
The three little arrows inside the yellow box that say coal injectors.

[00:23:51] Speaker 02:
Yes, and that structure there, that's, and you see above coal injectors it says furnace.

[00:23:56] Speaker 02:
That's where they're saying that happens.

[00:23:58] Speaker 02:
The blue lines that go to the left of that show where the Mercer

[00:24:06] Speaker 02:
is mixed in with the coal.

[00:24:08] Speaker 02:
What they're alleging is that coal injectors in the furnace, that is where the injection step is alleged to occur.

[00:24:16] Speaker 02:
And to differentiate that again from what the chem lab... And where is it that you think the flue gas is?

[00:24:22] Speaker 02:
The flue gas, by admission of NALCO, if you look to the top of that box where the coal injectors are, that's where above

[00:24:32] Speaker 02:
above the combustion zone in the superheater would be.

[00:24:37] Speaker 06:
What I would point to... So you think it's in the upper part of the furnace.

[00:24:40] Speaker 06:
That's where you think the flue gas is.

[00:24:41] Speaker 06:
Sure.

[00:24:42] Speaker 06:
And that's not just me saying that.

[00:24:43] Speaker 06:
So they're injecting something here.

[00:24:45] Speaker 06:
Yes.

[00:24:45] Speaker 06:
What is wrong with their argument that simple

[00:24:49] Speaker 06:
physics would suggest when you inject something into a combustion chamber it's going to rise up.

[00:24:53] Speaker 06:
What's, maybe wrong, maybe you'll be able to prove it wrong, but why isn't that enough at the complaint stage to give them an infringement allegation?

[00:25:03] Speaker 02:
Because the admission that they made in

[00:25:08] Speaker 02:
the re-examination proceeding reads like this.

[00:25:12] Speaker 06:
So now you want me to claim disclaimer.

[00:25:14] Speaker 06:
So now, in order to save you at the 12b6 stage, I not only have to go this deep into the facts, but I have to figure out whether there's a disclaimer on a claim construction that the district court didn't actually make.

[00:25:29] Speaker 06:
Is that certainly not accepting their view of claim construction?

[00:25:33] Speaker 06:
You said he picked the broadest possible view, right?

[00:25:36] Speaker 06:
But you want me and are going to require me to agree with a disclaimer or a lexicography in prosecution in order for you to win, even though there was no hearing on any of that, very little briefing below on it.

[00:25:50] Speaker 06:
And yet that's how far I have to go to get you out of 12b6.

[00:25:54] Speaker 02:
I wouldn't treat it as a disclaimer, Your Honor.

[00:25:56] Speaker 02:
The way I'd characterize it is an admission by NALCO to the Patent Office in the following context.

[00:26:05] Speaker 02:
They're facing an argument in the PTAB.

[00:26:08] Speaker 03:
And did they attach the re-exam to the complaint?

[00:26:13] Speaker 02:
No.

[00:26:15] Speaker 03:
OK, so how does that get in?

[00:26:16] Speaker 02:
I think it can come in by judicial notice.

[00:26:20] Speaker 02:
I think for purposes of the motion to dismiss, it can come in by judicial notice.

[00:26:30] Speaker 04:
Was there a motion for judicial notice?

[00:26:32] Speaker 02:
No, there was not.

[00:26:33] Speaker 02:
What they said in that, and we quoted it to the district court, and indeed this has gone back and forth in the district court, was the following.

[00:26:41] Speaker 02:
Accordingly, the prior art is quite clear and consistent in its teachings that flue gas refers to combustion gases which reside in the flue, the region of a coal combustor from above the combustion zone through the particulate collection system.

[00:26:58] Speaker 02:
That's an admission by them in the following context.

[00:27:03] Speaker 02:
in a patent office proceeding where they are resisting an attempt to limit their patent to a lower temperature zone.

[00:27:11] Speaker 02:
where they are broadening it out and saying under the broadest reasonable construction here.

[00:27:14] Speaker 06:
Your notion that this is some sort of admission in order to get you out from underneath what is really a factual question about what was or wasn't relinquished in this course of prosecution history is quite novel.

[00:27:27] Speaker 06:
Do you have any case that you can point me to where we have defined statements in the prosecution history like this as an admission that would be treated under a different standard than, say, disclaimer and yet still affect claim scope?

[00:27:39] Speaker 06:
I don't have a case on that.

[00:27:40] Speaker 06:
I feel like you just made it all up.

[00:27:42] Speaker 02:
Well, the statement that they made that... Not the legal standard.

[00:27:46] Speaker 06:
The legal proposition or test that you'd like for me to adopt feels quite novel.

[00:27:51] Speaker 06:
that there's an admission that was made during prosecution, which somehow informs the scope of the claims.

[00:27:56] Speaker 06:
But it's not a disclaimer.

[00:27:57] Speaker 06:
It's something different than a disclaimer, according to you.

[00:28:00] Speaker 02:
Certainly, information from the patent office proceedings can be brought to the attention of the district court as appropriate to illuminate the meaning of the patent.

[00:28:10] Speaker 04:
And there's a dispute over what that statement actually means, right?

[00:28:15] Speaker 06:
It has been asserted.

[00:28:16] Speaker 06:
If you read... Just to be clear, you could be right at the end of the day, but my problem is you're trying to get me to swallow all this at 12b6, you know, and that's just so early.

[00:28:26] Speaker 06:
And I don't even see all this flushed out in the lower court's opinion.

[00:28:29] Speaker 01:
Mr. Mark, wouldn't it have been better if we had claim construction proceedings before the district court?

[00:28:33] Speaker 01:
I mean, how?

[00:28:34] Speaker 01:
And this really just illuminates it.

[00:28:35] Speaker 01:
You've got to have claim constructors.

[00:28:37] Speaker 01:
Your whole position seems to be premised on a particular claim construction.

[00:28:42] Speaker 02:
Well, there is no... We do not say that the court defined or said

[00:28:45] Speaker 02:
This is the limitation and what the claim actually means.

[00:28:50] Speaker 02:
Indeed, if you look at paragraph 21 of the Fourth Amendment complaint, the plaintiff points away from claim construction.

[00:28:59] Speaker 02:
They say in paragraph 21, as explained in the patent, coal combustion flue gas is coal combustion gas.

[00:29:08] Speaker 02:
They say, don't look outside.

[00:29:10] Speaker 04:
I'm sorry.

[00:29:11] Speaker 04:
One of my biggest problems here is that this is a district that has local patent rules.

[00:29:16] Speaker 04:
Instead of following those local pattern rules and finding out exactly what the infringement contentions are and pinning them down and going through that analysis, you had two years of pleading and briefing on motions to dismiss.

[00:29:31] Speaker 04:
And you're asking us to apply it in incredibly

[00:29:34] Speaker 04:
strange standard on a motion to dismiss.

[00:29:37] Speaker 04:
Instead of just saying, Judge, we can get this all sorted out within the first 60 days.

[00:29:42] Speaker 04:
And let's just get the infringement contentions in place.

[00:29:44] Speaker 04:
Let's put them to their test.

[00:29:46] Speaker 04:
Let's figure out what the claim construction is.

[00:29:49] Speaker 04:
Instead, you've got us, after two years of pleadings and briefing on pleadings, now we're supposed to go behind everything to try to throw this case out.

[00:29:59] Speaker 04:
It feels like you're asking us to conduct a bench trial.

[00:30:03] Speaker 02:
May I?

[00:30:04] Speaker 02:
I know my time is up.

[00:30:05] Speaker 02:
May I give a brief response to that?

[00:30:07] Speaker 02:
The parties actually did go through exchanging infringement contentions, and NALCO attached to the second amended complaint, the third and the fourth, its infringement contentions, which is why certain exhibits are reiterated in the appendix multiple times.

[00:30:24] Speaker 02:
In that, again, what NALCO did is adopt and re-adopt

[00:30:29] Speaker 02:
the defendant's materials explaining what the chem-on process was.

[00:30:34] Speaker 02:
All of the material extrinsic to that that they could have used to allege facts, which they didn't do, to explain why the process comes within the patent, they first put in on reconsideration, a point where at that point they are making new arguments, new facts, new law that the district judge appropriately didn't consider at that point.

[00:30:55] Speaker 02:
The Madden reference, for example, comes under that rubric.

[00:30:58] Speaker 02:
never brought to the attention of the district court.

[00:31:01] Speaker 02:
We submit that the judgment below was correct and should be affirmed.

[00:31:04] Speaker 02:
After having several times to plead the complaint, they failed to state one and it should be dismissed with prejudice.

[00:31:11] Speaker 02:
Thank you.

[00:31:12] Speaker 06:
Mr. Farney, you have rebuttal time, but Judge O'Malley really put forth the best rebuttals you could have possibly put forth.

[00:31:17] Speaker 06:
Do you want to come to the podium?

[00:31:21] Speaker 06:
If you really want to, go ahead.

[00:31:23] Speaker 06:
I feel like you've got nowhere up.

[00:31:25] Speaker 06:
You can't go up very much more.

[00:31:26] Speaker 00:
I understand that.

[00:31:27] Speaker 00:
I was only going to point out

[00:31:28] Speaker 00:
the judgmentality that we did ask the district court and point out the local patent rules and say that if we had the opportunity to follow those rules and have a Martin hearing, that that's where they should be fleshed out.

[00:31:41] Speaker 00:
I think we've addressed the other points counsel raised about the exhibit and the flaws with the prosecution history in our briefs and my previous arguments, so I'll just let us stand at that and support those any questions.

[00:31:50] Speaker 06:
Okay, I thank both counsel for their arguments and the cases taken under submission.