[00:00:03] Speaker 04:
There's six cases on the calendar this morning.

[00:00:05] Speaker 04:
Three argued cases from the PTO.

[00:00:13] Speaker 04:
Two happened in one trademark.

[00:00:16] Speaker 04:
Two veterans cases and government employee case.

[00:00:19] Speaker 04:
And the last three submitted on the briefs and will not be argued.

[00:00:25] Speaker 04:
First case is Southware Company versus Cerowire.

[00:00:31] Speaker 04:
2016-22-87.

[00:00:35] Speaker 04:
Mr. Bradley.

[00:00:48] Speaker 01:
May it please the Court.

[00:00:49] Speaker 01:
The Board's obviousness determination must be reversed.

[00:00:53] Speaker 01:
The 30% reduction limitation is not inherent from the priority.

[00:00:57] Speaker 01:
Inherency requires certainty.

[00:00:59] Speaker 04:
Well, the 30% isn't even in the application.

[00:01:02] Speaker 04:
Aside from the amended claim, it's sort of new matter, isn't it?

[00:01:06] Speaker 01:
It's not at all, Your Honor.

[00:01:07] Speaker 01:
It is in the application.

[00:01:09] Speaker 01:
The specification clearly shows examples in which the polling force was reduced 50% even.

[00:01:15] Speaker 01:
And there are several examples.

[00:01:17] Speaker 04:
I see 50%.

[00:01:18] Speaker 04:
But in any event, the steps are in summers, aren't they?

[00:01:22] Speaker 04:
And so what is it that's different from summers that leads to this special

[00:01:27] Speaker 04:
30 percent limitation.

[00:01:31] Speaker 01:
Summers does not disclose or suggest the 30 percent reduction limitation, and there's not even any argument nor any finding that it was.

[00:01:40] Speaker 03:
The argument and the finding was only... But is there any suggestion that your steps differ in any material way from Summers?

[00:01:47] Speaker 01:
Yes, Your Honor.

[00:01:48] Speaker 01:
The steps require specifically a process in which you have a limitation

[00:01:52] Speaker 01:
of reduction in pulling force of at least about 30 percent.

[00:01:56] Speaker 03:
No, that's not my question.

[00:01:57] Speaker 03:
My question putting aside the 30 percent is your patent says here are the few things and let me just make it a hypothetical to make it easier.

[00:02:04] Speaker 03:
Say the patent says do A, B, C, and D and you'll get result X and the prior ARP says do A, B, C, and D in the exact the same way but doesn't say you'll get result X even though

[00:02:22] Speaker 03:
They're the exact same steps doing the exact same thing so that you will get the result X. Why isn't that inherent?

[00:02:30] Speaker 01:
That situation would be inherent, but that's not the situation we have here.

[00:02:33] Speaker 03:
So what in your steps apart from 30% limitation are different than Summers?

[00:02:39] Speaker 01:
Summers only discloses the notion of introducing a lubricant into a fiber optic cable sheet.

[00:02:45] Speaker 01:
It doesn't talk anything about the pulling forces.

[00:02:48] Speaker 01:
It doesn't say, and it's not the case, as Mr. Sasse's data showed,

[00:02:52] Speaker 01:
It's not the case that the 30 percent reduction in pulling force necessarily flows from that.

[00:02:59] Speaker 01:
Summers doesn't.

[00:03:01] Speaker 01:
If you practice the steps of Summers, all you have is the claims before these were amended in the prior reexamination.

[00:03:09] Speaker 01:
You have a lubricant and a cable.

[00:03:10] Speaker 01:
And that's why those claims were amended.

[00:03:12] Speaker 01:
They were amended to add the narrowing and specific limitation

[00:03:16] Speaker 01:
requiring a 30% reduction in pulling force.

[00:03:18] Speaker 03:
What, particularly about your patent, results in a 30% limitation that's not in summers?

[00:03:25] Speaker 01:
The particular selection of polymers and lubricants in the right concentrations.

[00:03:29] Speaker 01:
It is not the case.

[00:03:30] Speaker 03:
So are those polymers?

[00:03:32] Speaker 02:
I'm sorry, go ahead.

[00:03:32] Speaker 02:
No, but you didn't claim those.

[00:03:34] Speaker 02:
Where is your claim to a particular type of lubricant that will result in that?

[00:03:41] Speaker 01:
built into the 30% reduction limitation, because as the data showed.

[00:03:44] Speaker 04:
That's the result.

[00:03:46] Speaker 04:
That's not the means for achieving it.

[00:03:49] Speaker 01:
I disagree, Your Honor.

[00:03:50] Speaker 01:
It is part of the steps that must be satisfied.

[00:03:52] Speaker 01:
You do not satisfy these claims simply by having a lubricant and a cable.

[00:03:58] Speaker 01:
It's only the subset of lubricants and cables in which you achieve a 30% reduction in pulling force.

[00:04:04] Speaker 01:
And that was not recognized in the prior art.

[00:04:06] Speaker 01:
There's no argument that it's recognized.

[00:04:08] Speaker 01:
The only argument is that it was inherent.

[00:04:10] Speaker 01:
The data clearly showed that it was not inherent.

[00:04:13] Speaker 01:
The board found, as a factual matter, that the data showed otherwise.

[00:04:17] Speaker 01:
It showed that the pulling force can actually increase, not inherently decrease, certainly not inherently decrease by at least about 30%.

[00:04:26] Speaker 04:
Was the 30% added in an amended claim?

[00:04:31] Speaker 01:
Not in this re-examination, Your Honor.

[00:04:33] Speaker 01:
This patent has been subject to original examination.

[00:04:37] Speaker 01:
two ex parte re-examinations, and now this is a third re-examination.

[00:04:41] Speaker 01:
This is a critical patent in the industry.

[00:04:43] Speaker 04:
This one, excuse me, in the prior re-examination... But the 30% was not in the original specification.

[00:04:51] Speaker 01:
That number is not, but the disclosure is certainly... Well, you're asserting the number is critical.

[00:04:58] Speaker 01:
The disclosure supports the 30% reduction limitation.

[00:05:03] Speaker 01:
The examples used

[00:05:05] Speaker 01:
do not have to, it's clear under AREAT, that the examples, first of all, you don't even have to have examples to have a sufficient written description.

[00:05:13] Speaker 01:
The examples here used a 50%, which is really kind of the preferred method here, but the claims are allowed to be broader than that.

[00:05:21] Speaker 01:
There certainly is no 112 issue before the court, nor could it even be raised here, and that's something we could deal with.

[00:05:29] Speaker 02:
Your claim itself and your disclosure is that basically hinges on the notion that you say is supported by written description that one of skill in the art would know which type of lubricant and in what quantity to apply simply by virtue of you saying the force has to be reduced by 30%.

[00:05:47] Speaker 02:
That's the point, right?

[00:05:48] Speaker 02:
That they would know how to put together a finished electrical cable that has these characteristics.

[00:05:54] Speaker 01:
According to the specific test method that's set forth in the claim,

[00:05:58] Speaker 01:
that's very specific.

[00:05:59] Speaker 01:
There's figures two and three in the patent specific.

[00:06:01] Speaker 02:
Well claim one's not very specific.

[00:06:03] Speaker 02:
It doesn't specify a type of lubricant, a quantity of lubricant, or any of that.

[00:06:06] Speaker 02:
You're saying a skilled artisan would know how to make such a thing because they would be able to figure out or know what quantity and type would result in a 30% reduction, correct?

[00:06:18] Speaker 01:
A person of skill in the art reading this specification would know whether their

[00:06:24] Speaker 01:
process that they're doing would fall within the scope of the claims.

[00:06:27] Speaker 01:
I'm not sure if that's the question.

[00:06:29] Speaker 02:
No, I'm asking you, the claim articulates no lubricant, correct?

[00:06:33] Speaker 01:
It doesn't specify a lubricant apart.

[00:06:34] Speaker 02:
The claim articulates no quantity of lubricant to be applied.

[00:06:39] Speaker 01:
Not by name, but it still has to be that which achieves the pulling force reduction that's called it.

[00:06:45] Speaker 02:
That which achieves the result that you want.

[00:06:47] Speaker 02:
And you're saying a skilled artisan would know how to create a cable.

[00:06:53] Speaker 02:
that meets that limitation by virtue of what's disclosed in the spec.

[00:06:56] Speaker 02:
Yes.

[00:06:57] Speaker 02:
OK.

[00:06:57] Speaker 02:
So the problem for you is you've got this claim that discloses no particular lubricant and no particular quantity, but just says reduction in pulling force to 30%.

[00:07:05] Speaker 02:
You're saying a skilled artisan would know how to do that.

[00:07:09] Speaker 02:
Well, the problem is Summers teaches lubricants in various quantities and even talks about pulling force.

[00:07:17] Speaker 02:
Let's see.

[00:07:18] Speaker 02:
Summers Claim 1 expressly says,

[00:07:20] Speaker 02:
for low resistance to cable pulling force.

[00:07:25] Speaker 02:
I'm having trouble understanding how your claim is more specific than Summers' disclosure and why, as a result, it doesn't read right on it.

[00:07:33] Speaker 01:
That sounds to me, Your Honor, like an issue that was not before the board, not addressed by the parties, not even raised by Sarah, which is, as I understand Your Honor's question,

[00:07:45] Speaker 01:
the issue of whether Summers has a disclosure that would make it obvious or suggest to a person of skill in the art that you could do this.

[00:07:52] Speaker 01:
There is no argument here.

[00:07:54] Speaker 01:
Cerro never made that argument.

[00:07:55] Speaker 01:
Cerro recognized that it would not be able to prove or I'm assuming they recognized they would not be able to approve that this was obvious to a person of skill in the art.

[00:08:05] Speaker 01:
So instead, they said, well, we're going to argue that it's inherent.

[00:08:09] Speaker 01:
It naturally flows.

[00:08:10] Speaker 01:
And the board was very clear.

[00:08:12] Speaker 01:
and saying, our finding is only based on inherency, only inherency, not disclosure.

[00:08:18] Speaker 02:
Where did the board say that so clearly, that they found Summers inherently discloses the 30% reduction?

[00:08:26] Speaker 01:
One example is APPX 32.

[00:08:27] Speaker 01:
The board said, quote, the basis for the rejection was that the combination of Summers, Dow, and UL 719 inherently teaches the limitation.

[00:08:40] Speaker 01:
And where this arose,

[00:08:43] Speaker 01:
was in a request for a rehearing, Southwire presented the notion that Your Honor was just suggesting, whether Summers just discloses or suggests to a person of skill in the art based on the limited bit that it does teach.

[00:08:56] Speaker 01:
Sarrow came back in its response and very clearly said no.

[00:08:59] Speaker 01:
They said that argument is, quote, irrelevant and should be entirely disregarded because it does not address the basis for the rejection.

[00:09:12] Speaker 01:
That's on A-31.

[00:09:14] Speaker 01:
Sarah said, we are not arguing anything about the disclosure of Summers rendering this limitation obvious or known to a person of skill in the art.

[00:09:22] Speaker 01:
And the board came back on the next page and said, yes, that's right.

[00:09:25] Speaker 01:
Our finding is only based on inherency.

[00:09:28] Speaker 01:
The basis for the rejection was that the combination of Summers, Dow, and UL-719 inherently teaches the limitation

[00:09:37] Speaker 01:
Our new arguments, we were raising the fact that Summers doesn't disclose this.

[00:09:41] Speaker 01:
The board said that's a new argument and it will quote, will not be considered.

[00:09:44] Speaker 01:
That is not the issue that's before this court.

[00:09:46] Speaker 01:
This court cannot rely on grounds that were not raised by Cerro or addressed by the examiner or the board.

[00:09:54] Speaker 01:
It was always inherency.

[00:09:56] Speaker 01:
And this is not inherent.

[00:09:57] Speaker 01:
The data shows that.

[00:09:58] Speaker 01:
The board found that the test data doesn't necessarily decrease, certainly doesn't necessarily decrease

[00:10:06] Speaker 01:
by at least about 30%, as claimed.

[00:10:08] Speaker 01:
The data sometimes increases.

[00:10:10] Speaker 04:
If you're claiming a new compound and it is asserted that a particular process which produces another compound also inherently produces this compound, then it's clear in the law that the so-called inherently produced compound must always and clearly be

[00:10:36] Speaker 04:
produced, this is a result.

[00:10:39] Speaker 04:
This isn't a different, this isn't an inherent substance.

[00:10:43] Speaker 04:
This is a result of procedures that are in the prior art.

[00:10:49] Speaker 01:
It's not a result, Your Honor.

[00:10:51] Speaker 01:
It is, as Mr. Sasse's data showed.

[00:10:53] Speaker 01:
It doesn't necessarily follow.

[00:10:55] Speaker 04:
The result is that there's 30% less force required.

[00:10:58] Speaker 01:
But it doesn't, that 30% reduction plainly does not result from simply introducing a lubricant into a cable sheet.

[00:11:06] Speaker 01:
The claim only encompasses those permutations and combinations of lubricants and polymers that would actually achieve that.

[00:11:14] Speaker 04:
Or is it a property?

[00:11:16] Speaker 04:
And you can't claim a new property of an old process.

[00:11:20] Speaker 01:
This is not a new property of an old process.

[00:11:22] Speaker 01:
This is a new process.

[00:11:23] Speaker 01:
The invention, for decades, the evidence showed in the record that for decades, folks had been using externally applied lubricants that were messy and time consuming and expensive.

[00:11:34] Speaker 01:
And Southwire's invention here

[00:11:35] Speaker 01:
change the industry.

[00:11:36] Speaker 01:
That's why we've been litigating for some nine years on these patents.

[00:11:40] Speaker 01:
And it's terribly important.

[00:11:42] Speaker 01:
And it's not just some process like Summers recognized.

[00:11:48] Speaker 01:
It's not that.

[00:11:48] Speaker 01:
There's even, like I said, no argument of that.

[00:11:51] Speaker 01:
It's only whether it's inherent.

[00:11:53] Speaker 01:
And there can be no question that it's not inherent.

[00:11:56] Speaker 01:
The data shows it's not inherent.

[00:11:58] Speaker 01:
The board found, supported by substantial evidence, that it's, as a factual matter, doesn't necessarily follow.

[00:12:05] Speaker 01:
This court's cases are clear.

[00:12:07] Speaker 01:
It's certainty.

[00:12:08] Speaker 01:
It has to always be the case.

[00:12:10] Speaker 01:
And here, it's clearly not.

[00:12:12] Speaker 01:
Do you have a question, Judge Hughes?

[00:12:14] Speaker 01:
OK.

[00:12:15] Speaker 01:
Also, as part of that secondary considerations evidence, there's quite a lot of it here.

[00:12:21] Speaker 01:
The board found praise in the industry.

[00:12:25] Speaker 01:
The evidence showed that this worked like a magic trick and that it was highly praised.

[00:12:30] Speaker 01:
It's found in every big box.

[00:12:32] Speaker 04:
But did the board also found that it was praised because it was already invented earlier and in practice?

[00:12:40] Speaker 01:
They used that theory to avoid applying the secondary considerations evidence, which was one of the flaws.

[00:12:47] Speaker 03:
They essentially said... They didn't avoid applying it.

[00:12:49] Speaker 03:
They looked at it and they rejected it as insufficient.

[00:12:53] Speaker 01:
They rejected it purportedly because Summers already disclosed it.

[00:12:58] Speaker 01:
But as this court said in Enrae Tiffin,

[00:13:01] Speaker 01:
That need would not have been long felt if it had been solved by the prior art.

[00:13:05] Speaker 01:
If it had been solved by Summers, why was there a long felt need for decades here?

[00:13:10] Speaker 01:
I see the amendment in my rebuttal time.

[00:13:12] Speaker 01:
I'd like to reserve it.

[00:13:13] Speaker 04:
We will serve it for you, Mr. Bradley.

[00:13:16] Speaker 04:
Mr. Steadman.

[00:13:26] Speaker 00:
Good morning, and may it please the court, I'm Paul Steadman for the

[00:13:30] Speaker 00:
defendant and the appellee.

[00:13:33] Speaker 00:
I have nothing to add to the conversation that's already been had, but I'm happy to answer questions of the panel if there are questions.

[00:13:40] Speaker 04:
I would like you to deal with the inherency issue.

[00:13:46] Speaker 00:
Okay, so if the the inherency issue is actually misstated under cases as long ago as in Ray Best in a case that's before the board and the examiner

[00:13:57] Speaker 00:
in a case like this with a series of process steps and then a claimed result of the process steps.

[00:14:04] Speaker 00:
The examiner is allowed to find the same process steps in the prior art and use that to make a prima facie case of obviousness.

[00:14:13] Speaker 00:
The burden is then on the patentee to show that the prima facie case is wrong.

[00:14:20] Speaker 00:
Here, they found the exact same process steps in the combination of Summers and Dow

[00:14:27] Speaker 00:
and UL 719.

[00:14:30] Speaker 00:
Summers uses the same process steps.

[00:14:33] Speaker 00:
That is, it puts the lubricant and the plastic into the extruder and extrudes the lubricant with the plastic sheath over the cable.

[00:14:41] Speaker 00:
Council mentioned that it is an optical fiber cable, but the specification of the 301 patent specifically says that the patent includes fiber optic cables.

[00:14:49] Speaker 00:
So it's exactly the same process.

[00:14:51] Speaker 00:
It's also exactly the same plastic sheath material.

[00:14:55] Speaker 00:
It's nylon, which is recited as one of the permissible plastic materials in the specification.

[00:15:01] Speaker 00:
And it's exactly the same lubricant.

[00:15:03] Speaker 00:
The siloxane oils, which is the same thing that's called out by Dow, and I believe by Summers, is exactly the same lubricant.

[00:15:12] Speaker 04:
Is the 30% a claim limitation?

[00:15:16] Speaker 00:
I do not believe it is a proper limitation, Your Honor.

[00:15:18] Speaker 00:
It can't be.

[00:15:20] Speaker 00:
Under the IPXL case, we're not allowed to argue that the claim is

[00:15:24] Speaker 00:
invalid under 112.6.

[00:15:27] Speaker 00:
But if you look at the claim and the way that it is structured, the claim is a process for making cable that includes the steps of combining a preselected lubricant to provide a reduced coefficient of friction in which the lubricant is of a type which migrates through said jacket to be available at the outermost exterior surface.

[00:15:53] Speaker 00:
The finished electrical cable having the characteristic that an amount of force required to install blah blah blah is at least about a 30% reduction.

[00:16:02] Speaker 00:
If this is a process claim, then those steps must be process steps.

[00:16:06] Speaker 00:
If they are claiming the nature of the resulting cable, that is directed to the apparatus or the thing.

[00:16:15] Speaker 00:
Under IPXL, one claim cannot be directed to both.

[00:16:19] Speaker 03:
So if they had a more specific claim here, recognizing that not all combinations of cable and lubricant and everything else result in 30%, maybe some is only 10, maybe some is 50.

[00:16:32] Speaker 03:
If they have these specific process steps to say, do it in this way with this combination of lubricant, this thing, and that will result in 30% reduction, that might differ from the prior R, assuming some of us didn't have the same specificity.

[00:16:48] Speaker 00:
It might, but Dow has more specificity.

[00:16:51] Speaker 00:
So if you look at Dow, Dow was a commercially available master batch for exactly this purpose, for putting lubricant into plastic for use in things like cable sheets.

[00:17:03] Speaker 00:
Dow specifically says that at the highest addition levels, 2% to 10% siloxane, 10% is a lot of lubricant in the plastic.

[00:17:11] Speaker 00:
Improved surface properties are expected, including lubricity, slip,

[00:17:15] Speaker 00:
lower coefficient of friction and greater Mar abrasion resistance.

[00:17:19] Speaker 00:
That's at appendix 192.

[00:17:21] Speaker 00:
Then at appendix 194, Dow has a very helpful table where it shows that with the addition of additional weight percent siloxane, up to 5%, the coefficient of friction drops by more than half.

[00:17:36] Speaker 00:
So what they want to say is, well, you have to have the words pulling forces reduced, but this shows

[00:17:41] Speaker 00:
a more than 50% reduction in the coefficient of friction, which is the only mechanism identified in the 301 patent for reducing the pulling force in the first place.

[00:17:51] Speaker 00:
So even if you were to be that specific, I would say the combination of Dow plus Summers actually does teach the 30% reduction limitation.

[00:18:00] Speaker 00:
But under the par-pharmaceutical case and other cases like that, I believe in-rate Cuban is another one, the court has said

[00:18:11] Speaker 00:
that the patent itself can define a limitation at issue as a property that is necessarily present.

[00:18:18] Speaker 00:
And if we look at the 301 patent disclosure itself, I believe this was referred to earlier in the argument, at column 6, the data in the patent, which doesn't show any particular amount of lubricant or any particular lubricant identified, it just shows

[00:18:39] Speaker 00:
lubricated samples versus un-lubricated samples.

[00:18:42] Speaker 00:
Column 6 of the 301 patent itself claims that the data recorded proved that cable construction having a surface lubricant reduced pulling forces.

[00:18:53] Speaker 00:
And then a little farther down at line 20, it says it was found using this method that lubricated specimens yielded approximately a 50% reduction in pulling force when compared to standard non-lubricated cable specimens.

[00:19:08] Speaker 00:
So the patent itself is saying, if you add lubricant that's sufficient to reduce the coefficient of friction, you are going to get a reduction in pulling forces.

[00:19:17] Speaker 00:
And the only number that it specifies is a 50% reduction, which just happens to be almost exactly the same teaching that you see in Dow.

[00:19:25] Speaker 02:
Going back to the earlier question that was posed to you about whether this is a proper limitation.

[00:19:31] Speaker 02:
I don't want to follow up because you pointed out that this is a method claim, which I guess, of course, is a method claim, and that that's really a structural element, and that's sort of not appropriate in the method claim.

[00:19:44] Speaker 02:
Suppose this weren't a method claim.

[00:19:45] Speaker 00:
Suppose it were not a method claim.

[00:19:46] Speaker 02:
Not a method claim.

[00:19:47] Speaker 02:
It's an apparatus claim to a cable.

[00:19:49] Speaker 02:
It would be appropriate then, wouldn't it, in terms of patent claiming, to say, select a lubricant if a skilled artisan, if the written description supported this.

[00:20:02] Speaker 02:
select a lubricant in a quantity that would result in a 30% pulling force.

[00:20:07] Speaker 02:
If a skilled artisan knew how to do that based on the patent's disclosure, those would be structural elements.

[00:20:12] Speaker 02:
And then that pseudo result would really be defining the particular elements in the claim.

[00:20:18] Speaker 02:
That would be appropriate, wouldn't it?

[00:20:20] Speaker 00:
I agree with you.

[00:20:21] Speaker 00:
I can imagine a claim like that that could be drafted.

[00:20:23] Speaker 02:
But that's not this claim.

[00:20:24] Speaker 00:
That is not this claim.

[00:20:29] Speaker 00:
If there are no further questions, I'll yield the balance of my time to the panel.

[00:20:33] Speaker 04:
Thank you.

[00:20:35] Speaker 04:
No one loses a case by giving up time.

[00:20:41] Speaker 04:
Mr. Bradley has about two and a half minutes of rebuttal time.

[00:20:45] Speaker 01:
Going to the point just raised there by Judge Moore, this claim is a method claim.

[00:20:50] Speaker 01:
But it doesn't claim all introductions of lubricants into polymer sheets.

[00:20:56] Speaker 01:
That's what the claim looked like before the reexamination and before this limitation was added.

[00:21:02] Speaker 01:
these claims cover only those processes in which there's a reduction of at least 30% in the pulling force.

[00:21:09] Speaker 01:
It is a much narrower set of processes.

[00:21:12] Speaker 01:
And it doesn't necessarily follow that simply by introducing a polymer into the sheath that you achieve the 30% reduction limitation.

[00:21:20] Speaker 01:
And that's why the board's finding on inherency is just flat wrong.

[00:21:24] Speaker 01:
It has to be reversed.

[00:21:25] Speaker 01:
As I mentioned in my opening argument,

[00:21:28] Speaker 01:
their finding, their reasoning was only based on inherency.

[00:21:32] Speaker 01:
And it's just not inherent.

[00:21:34] Speaker 01:
They found so.

[00:21:36] Speaker 01:
Now, to be clear, this 30% reduction limitation is a limitation.

[00:21:41] Speaker 01:
In the prior ex parte re-exams, the original broader claims without the limitation were ruled invalid.

[00:21:48] Speaker 01:
And then when this limitation was added, it came out of re-examination.

[00:21:54] Speaker 01:
And that's the ones we have here.

[00:21:56] Speaker 01:
So it's absolutely a limitation.

[00:21:58] Speaker 01:
And that counts, and it must be satisfied either expressly or inherently in the prior art.

[00:22:03] Speaker 01:
There's no argument of an express disclosure or suggestion.

[00:22:07] Speaker 01:
The examiner never reached that.

[00:22:08] Speaker 01:
The board never reached that.

[00:22:10] Speaker 01:
The only argument was inherency.

[00:22:12] Speaker 01:
It's not inherent.

[00:22:14] Speaker 01:
It's clear that it's not inherent.

[00:22:16] Speaker 01:
Also, counsel mentioned IPXL of mixing apparatus and process claims.

[00:22:24] Speaker 01:
The cases make clear that a process claim

[00:22:27] Speaker 01:
may include product characteristics, the process can be performed in a way that achieves certain physical characteristics.

[00:22:36] Speaker 01:
And that's not improper under IPXL, of course, nor is that issue presented here.

[00:22:40] Speaker 01:
But the claim is very appropriately defining a particular method that's not just any method that necessarily achieves this result, because it's not a result.

[00:22:52] Speaker 01:
The board found as much.

[00:22:53] Speaker 01:
It doesn't necessarily follow.

[00:22:57] Speaker 01:
Counsel mentioned that Dow has a 10 percent lubricant.

[00:23:01] Speaker 01:
He said that's a lot of lubricant.

[00:23:03] Speaker 01:
Well, Mr. Sasse's test data showed that for 10 percent PTFE lubricant, the pulling force actually goes up.

[00:23:12] Speaker 01:
It's not, certainly wasn't obvious to a person of skill in the arc, nor was there even an argument.

[00:23:17] Speaker 01:
The only argument was inherency.

[00:23:19] Speaker 01:
The only finding by the examiner and the board was inherency.

[00:23:22] Speaker 01:
This Court must reverse because it's not inherent.

[00:23:25] Speaker 01:
I'm out of time.

[00:23:25] Speaker 01:
Thank you.

[00:23:26] Speaker 04:
Thank you.

[00:23:27] Speaker 04:
Council will take the case under advisement.