[00:00:00] Speaker 03:
Knoff insulation ink number 17-1317.

[00:00:50] Speaker 03:
Mr. Larson?

[00:00:51] Speaker ?:
Yes.

[00:00:51] Speaker 03:
Thank you, Your Honor.

[00:00:53] Speaker 03:
You reserve three minutes of your time for rebuttal, correct?

[00:00:57] Speaker 03:
Yes, Your Honor.

[00:00:58] Speaker 03:
OK.

[00:00:58] Speaker 03:
Now you may proceed when you're ready.

[00:01:03] Speaker 04:
Thank you, Your Honors.

[00:01:04] Speaker 04:
May it please the Court?

[00:01:05] Speaker 04:
My name is Joshua Larson.

[00:01:07] Speaker 04:
I'm here today representing the appellants, Knopf Insulation Inc.

[00:01:10] Speaker 04:
and Knopf Insulation SBRL, the patent owners, in this appeal from the Patent Trial Appeal Board.

[00:01:15] Speaker 04:
This case arose from several re-exams involving

[00:01:20] Speaker 04:
three of Knopf's patterns.

[00:01:22] Speaker 04:
Your Honor, according to the Board's logic in this case, the Board believed that it would be obvious to combine basically any and all teachings from prior art references solely because they had an overlap in intended use or application, and regardless of what the references actually taught about how they achieved that result, no matter how different that was and how different the systems were.

[00:01:49] Speaker 04:
More particularly in this case, each of the board's obviousness rejections rely on a primary reference referred to as Hanson.

[00:01:56] Speaker 04:
In the briefs, we call it Hanson II, but for short, Hanson today.

[00:02:00] Speaker 04:
And a secondary reference, Worthington.

[00:02:02] Speaker 04:
Some of the rejections also rely on third, fourth, or fifth tertiary references.

[00:02:06] Speaker 04:
But the core of the rejection in this case, in the 103 rejections that we've appealed, is that the primary reference, Hanson, would have been modified by a teaching in Worthington to arrive at the claim of invention.

[00:02:20] Speaker 04:
In your honors.

[00:02:20] Speaker 01:
Let me clarify this for me.

[00:02:24] Speaker 01:
The way you started out struck me as being possibly an overstatement of what the board was really doing here.

[00:02:32] Speaker 01:
You say all that was required under the board's logic was an overlap of, I think you said, intended use and application.

[00:02:39] Speaker 01:
But isn't it the case that the two prior references and the patents all have a lot in common in terms of their components?

[00:02:48] Speaker 01:
that go into the ultimate composition here, and that the departures are only with respect to a couple of the components.

[00:03:00] Speaker 01:
That seems to me quite different from saying that if you have an intended use of one quite different set of components from another, that they're prima facie combinable.

[00:03:16] Speaker 04:
Your Honor, we would respectfully disagree with that characterization.

[00:03:19] Speaker 04:
I believe that is one of the characterizations that the PTO has advanced on appeal here, is that these two references have a lot of similarities.

[00:03:29] Speaker 04:
And in the sense of if you were to go through and just pick out several of the reactants that we have in our claims,

[00:03:37] Speaker 04:
you can go through these references and find those reactants.

[00:03:40] Speaker 01:
But isn't that important to deciding whether it makes sense to look to the other references for guidance and motivation to combine?

[00:03:54] Speaker 04:
I believe it is important to look at the references, Your Honor, and that's the point I'd like to make.

[00:03:57] Speaker 01:
I mean, the similarity between the references is an important factor.

[00:04:01] Speaker 01:
But go ahead.

[00:04:02] Speaker 04:
I agree with you, Your Honor.

[00:04:04] Speaker 04:
If there were a similarity between these references, that would be a factor that could point towards obviousness.

[00:04:09] Speaker 04:
But in our view, there is very little similarity.

[00:04:13] Speaker 04:
They are similar in the sense that they are both binder systems or binder chemistries.

[00:04:19] Speaker 04:
And the overlap in potential uses is that they could be used on sand.

[00:04:22] Speaker 04:
That's what the PTO had pointed out.

[00:04:25] Speaker 04:
But what the PTO has ignored in its decision is the very different chemistries that are involved in the two references and our claim.

[00:04:34] Speaker 04:
In each of these three, we have a different system going on, a different type of reaction, different chemistries.

[00:04:39] Speaker 04:
In our claim, in the first instance, we've claimed a Maillard reaction that forms a, the product is called a melanoidin, and that's what's used as the binder.

[00:04:49] Speaker 04:
In Hansen, by contrast, Hansen does not describe that reaction.

[00:04:53] Speaker 04:
Describes a different type of chemistry that involves anhydrides.

[00:04:57] Speaker 04:
There's a two-step reaction that happens.

[00:04:58] Speaker 04:
While some of the same reactants are involved, they're reacting in a different order

[00:05:02] Speaker 04:
in a very different way to produce a different product.

[00:05:04] Speaker 04:
They produce polyesters.

[00:05:06] Speaker 04:
And the polyesters are used as the binder enhancer.

[00:05:08] Speaker 04:
It's a different type of binding system.

[00:05:11] Speaker 04:
Then in the third instance, we have Worthington.

[00:05:13] Speaker 04:
Again, while some of the same reactants are mentioned, they're present in very different proportions and reacted in different ways and in different orders to produce a different type of binder.

[00:05:24] Speaker 04:
Worthington is a little bit vague on what his binder is, but to our best understanding, he dehydrates sugars and uses the dehydrated

[00:05:31] Speaker 04:
or caramelized sugars as a binder.

[00:05:34] Speaker 04:
And so, Your Honor, in this case, what we don't, this is not a case where we have two references that describe the same or even closely related reactions.

[00:05:44] Speaker 04:
And the PTO has just said we need to take the amounts.

[00:05:46] Speaker 04:
It'd be obvious to take an amount from one and tweak it in the other.

[00:05:49] Speaker 02:
If we were to agree with the board's inherency finding with respect to finding that Hansen does have the Malliard reaction, if we were to agree with that,

[00:06:00] Speaker 02:
How does that impact the argument that you're making before us now?

[00:06:03] Speaker 02:
Because I noticed that you led with that.

[00:06:05] Speaker 02:
But I know that the board also found inherently that the Malliard reaction was occurring.

[00:06:10] Speaker 04:
Yes, Your Honor.

[00:06:11] Speaker 04:
So the history, if I may, just to answer that question, a bit of the history in this case, how we got here.

[00:06:17] Speaker 04:
The first rejection that was proposed by the re-exam requester and that the examiner initially adopted was a 102 rejection based on Hanson.

[00:06:24] Speaker 04:
And our claims at the time that they were rejected

[00:06:27] Speaker 04:
did not have any amounts of the various components in it.

[00:06:30] Speaker 04:
They were similar to the claims that were present in the last appeal that was before a panel involving Judge Raina last year.

[00:06:38] Speaker 04:
We've since amended those claims to overcome that inherency rejection that we received.

[00:06:45] Speaker 04:
Because the rejection based on Hanson, Hanson too did not explicitly teach this Mellanoit or Maillard chemistry.

[00:06:51] Speaker 04:
But the rejection was basically there'd be a side reaction

[00:06:55] Speaker 04:
that would be happening.

[00:06:56] Speaker 04:
It's undisclosed and it would be present in small amounts, but the rejection was that it would be present.

[00:07:02] Speaker 04:
Well, we disagreed with that.

[00:07:03] Speaker 04:
We decided to amend the claim to put in these amounts to claim more specifically.

[00:07:07] Speaker 04:
We're not talking about trying to claim a side reaction.

[00:07:10] Speaker 04:
We're claiming specifically this is the main reaction that's taking place, the proportions of the reactants present to get the claims that we have now in appeal.

[00:07:19] Speaker 04:
What the PTO did in response when we amended those claims was

[00:07:23] Speaker 04:
It took, it went and found this Worthington reference that specifically taught the amount of carbohydrate we now claim is 73 to 96%.

[00:07:31] Speaker 04:
And it proposed that it would modify the, the allegedly inherent side reaction in Hansen to modify that based on the 73 to 96% to arrive at our claims.

[00:07:44] Speaker 04:
So to answer your question, your honor, even if the panel were to agree that that reaction did take place or was inherent in a side reaction,

[00:07:51] Speaker 04:
We're not just talking about an anticipation context here.

[00:07:54] Speaker 04:
We're saying the board's reasoning is that it would have been obvious for a person of skill in the art, that a person of skill in the art would have been motivated at the time of the invention, based on an inherent side reaction that's not explicitly taught in Hanson, to modify it based on another reference Worthington that teaches a completely different type of chemistry, both from Hanson's primary teachings and this inherent side reaction.

[00:08:18] Speaker 04:
We believe that that is improper under 103 under cases like Honeywell from last year and cases that say in the obviousness context, adherency really must be circumscribed and things that are inherent are not obvious.

[00:08:34] Speaker 04:
Again, the PTO is talking about a person's skill looking to some inherent side reaction and wanting to then go and have some motivation to optimize that based solely on a teaching another reference that teaches

[00:08:47] Speaker 04:
that a certain amount of carbohydrate might be good for a different type of binder.

[00:08:50] Speaker 02:
Asking you, moving to a different topic for a minute, Worthington, it does say that having a certain amount of carbohydrate is preferred.

[00:08:59] Speaker 02:
Is there anything in the record that you're aware of for why it's preferred, or do you have a view on that?

[00:09:08] Speaker 04:
Your Honor, in the record, there

[00:09:10] Speaker 04:
To our knowledge, there is not anything in the record about why it's preferred.

[00:09:14] Speaker 04:
And that's one of the issues that we believe also shows the obviousness combination here is improper, because the PTO pointed to that statement about preferred in Worthington as reasonable.

[00:09:25] Speaker 04:
Why would you pick out that teaching?

[00:09:27] Speaker 04:
And they say, well, it says it's preferred.

[00:09:29] Speaker 04:
And our response to that will be, preferred for what?

[00:09:32] Speaker 04:
The reference doesn't say why it's preferred.

[00:09:34] Speaker 04:
To the extent that one were to infer,

[00:09:37] Speaker 04:
what it's preferred for.

[00:09:38] Speaker 04:
It would be preferred for the binder system of Worthington.

[00:09:41] Speaker 04:
Again, this binder system that involves dehydrating sugars as a binder.

[00:09:46] Speaker 04:
Just because a teaching is preferred for one type of reference, one type of chemistry, does not mean that it would be preferred for another type of chemistry.

[00:09:55] Speaker 02:
And this is why the board, if I understand correctly, this is why the board then said in response, well these are both

[00:10:01] Speaker 02:
thermostat binders and these are both binders that are used for these same purposes and there's other similarities and that's where all of this discussion of similarity comes from.

[00:10:12] Speaker 02:
They're saying because Worthington says it's preferred and these are so similar, it would have been preferred also, one of ordinary skill in the art would have been motivated to modify the primary reference in view of the teaching that is preferred in the secondary reference.

[00:10:26] Speaker 02:
If that's the reason why they got into that, I think

[00:10:29] Speaker 02:
not because you're arguing that these references are not analogous or anything.

[00:10:33] Speaker 04:
Is that right?

[00:10:34] Speaker 04:
That's correct.

[00:10:34] Speaker 04:
We have not specifically advanced a non-analogous argument here.

[00:10:39] Speaker 04:
The focus has more been, from our point of view, on what's the motivation in the first place?

[00:10:44] Speaker 04:
What's the motivation to take that teaching from Worthington and apply it?

[00:10:47] Speaker 04:
The chemistries are significantly different.

[00:10:50] Speaker 04:
And again, we're not talking about modifying the reaction that Hansen II explicitly described.

[00:10:57] Speaker 04:
We're talking about supposedly modifying

[00:10:59] Speaker 04:
an undisclosed, supposedly inherent side reaction.

[00:11:03] Speaker 04:
And what's the motivation to do that?

[00:11:07] Speaker 04:
And with regard to the similarities, Your Honor, in our view, in terms of an analogy here, the rejection is similar to if the PTO, if we were looking at maybe the pharmaceutical context and just using two basic drugs like acetaminophen and ibuprofen, they both may be used.

[00:11:27] Speaker 04:
They're both drugs.

[00:11:28] Speaker 04:
They're both taken orally.

[00:11:30] Speaker 04:
They both are used to treat headaches in many cases.

[00:11:34] Speaker 04:
But just because those two drugs have a similar application does not make it obvious to pick and choose any teachings about one and apply them to the other.

[00:11:43] Speaker 04:
They're very different drugs in terms of the actual chemistry that makes them up, what their modes of action are in the human body.

[00:11:50] Speaker 04:
And that's evidenced by the fact that you have people who are extremely allergic to one or the other.

[00:11:55] Speaker 04:
It's safe for them to take one and not the other.

[00:11:57] Speaker 04:
The two things are not the same just because they're used for similar purposes, just because we have two binders here that may be used to bind sand.

[00:12:05] Speaker 04:
The actual differences in how those references work show why the art is very different, wouldn't have been combined.

[00:12:13] Speaker 04:
In the same vein of the PTO ignoring what the actual teachings of those references are, we've pointed out in our brief, not only is there a lack of a link between the two, but the two references actually teach away from their combination.

[00:12:26] Speaker 04:
In the first case you've got Hanson, and Hanson does teach a system in which an acid, an amic acid specifically, that would not be able to participate in a maniart reaction, is reacted with a carbohydrate, and they produce their binder from that.

[00:12:41] Speaker 04:
Hanson specifically says that you can use up to 40% carbohydrate in his binder, give several examples.

[00:12:49] Speaker 04:
But beyond that, the examples given show that the properties of the binder, specifically its delamination strength, how well it holds.

[00:12:56] Speaker 03:
Did you make this argument to the board?

[00:12:59] Speaker 04:
Yes, Your Honor, we did.

[00:13:00] Speaker 04:
We specifically pointed out to the board that Hanson only provided for carbohydrate percentages up to... But you didn't make that delamination argument before the board, right?

[00:13:13] Speaker 04:
We, not in the same detail that we have here, your honor, but we were advancing that same argument that Hanson too teaches away from the combination because of its focus on limiting the amount of carbohydrate that's present.

[00:13:26] Speaker 04:
And so in that sense, you have Hanson, which teaches that it uses a limited amount of carbohydrate.

[00:13:33] Speaker 04:
And the board's reasoning there, the PTO's reasoning was you would take this reference over here, teaching a different type of chemistry, Worthington,

[00:13:42] Speaker 04:
that has a high carbohydrate percentage.

[00:13:44] Speaker 04:
It's more of a carbohydrate-focused chemistry.

[00:13:47] Speaker 04:
And apply that.

[00:13:47] Speaker 04:
Just apply that to Hanson, regardless of the fact that Hanson says use up to 40%.

[00:13:52] Speaker 04:
In response to that, the board said, well, even though it teaches up to 40%, there's nothing in it that says you can't use more.

[00:13:58] Speaker 04:
And in our view, that's backwards, Your Honor.

[00:14:01] Speaker 03:
There has to be a motivation.

[00:14:03] Speaker 03:
You're into your rebuttal time.

[00:14:05] Speaker 03:
You can continue on and use it up or stop now.

[00:14:08] Speaker 04:
I would like to save the remainder of my time for rebuttal.

[00:14:09] Speaker 04:
Thank you, Your Honor.

[00:14:17] Speaker 03:
Councilor Rundt.

[00:14:26] Speaker 00:
Good morning, Your Honors, and please, the Court.

[00:14:29] Speaker 00:
Worthington and Hanson, too, are very similar references.

[00:14:33] Speaker 00:
They are directed to the same primary reactants.

[00:14:36] Speaker 00:
They have similar processes.

[00:14:38] Speaker 00:
They are directed to overcoming the same problem of finding an economical binder solution.

[00:14:44] Speaker 00:
And they bind similar components.

[00:14:47] Speaker 00:
to include the same component of foundry sand.

[00:14:50] Speaker 02:
How do you respond to the argument that one of them is more in a powder form and one of them is in a liquid form?

[00:14:57] Speaker 02:
I think it's Hanson's in a liquid form and Worthington's in more of a powder form.

[00:15:02] Speaker 00:
Well, Worthington does have the embodiment that allows for a precondensed aqueous solution.

[00:15:09] Speaker 00:
So while some of the embodiments of Worthington are in a powdered form, in at least one embodiment, Worthington does have

[00:15:17] Speaker 00:
an aqueous solution that's similar to the aqueous solution Hanson.

[00:15:20] Speaker 00:
It's the amine and the carboxylic acid added together with water first.

[00:15:26] Speaker 00:
And then it's still down a little bit, but it's still 60 to 40% water.

[00:15:31] Speaker 00:
And then that's added together with the carbohydrate and the sand.

[00:15:35] Speaker 00:
So the only real difference is when the carbohydrates added.

[00:15:38] Speaker 00:
Do you add that first to the solution, or do you add it with the stuff that you're trying to bind?

[00:15:43] Speaker 00:
Which isn't that much of a difference.

[00:15:46] Speaker 01:
Well, now, your opposing counsel says that these are in two entirely different chemical reactions.

[00:15:53] Speaker 01:
And you've just said they're not.

[00:15:56] Speaker 01:
Can you help us try to figure out which of you is right?

[00:16:00] Speaker 00:
Sure, and I will do that.

[00:16:01] Speaker 00:
Because there wasn't a whole lot in the briefs.

[00:16:03] Speaker 00:
But I will say that I think that's waived, because I think that's why there's not a whole lot of discussion about it in the board's decision, because that's not, just to the extent that these are such different reactions, really they argued before the board that Hanson binds elongate materials like fibers, and Worthington binds sand, and that's why one wouldn't combine them.

[00:16:26] Speaker 01:
But in terms of whether... Was there, in fact, no discussion of the difference in the reactions between Hansen and Worthington?

[00:16:35] Speaker 00:
I guess it depends on for what portion of the decision.

[00:16:38] Speaker 00:
So there was certainly a discussion in the question of the Hansen-Worthington water teaching away.

[00:16:43] Speaker 00:
There was some discussion of is that sufficiently different?

[00:16:46] Speaker 00:
So in that context, yes, there was.

[00:16:49] Speaker 00:
In the context of is the carbohydrate level teaching away?

[00:16:56] Speaker 00:
There was not a discussion of these examples, as the court noted, but there wasn't much of a developed argument on that point.

[00:17:03] Speaker 00:
And are these such different reactions in the inherency analysis that was for the arguments that were actually made on inherency on whether or not there would be sufficient alkanol amine available after the pre-reaction in Hansen II?

[00:17:19] Speaker 00:
That was made.

[00:17:20] Speaker 00:
But there was not an argument that

[00:17:23] Speaker 00:
Well, this is, you know, these are entirely different chemical reactions made to the board.

[00:17:30] Speaker 00:
In terms of whether they're different, the Hansen II, until now, I'm not sure that there was much of a dispute of whether Hansen II inherently teaches melanoidins.

[00:17:41] Speaker 00:
The Hansen II, for now, if I'm sort of comparing them now from the two references,

[00:17:46] Speaker 00:
So now plus everything, except for the exact carbohydrate proportion of dry weight and whether the melanoidin reaction is there.

[00:17:56] Speaker 00:
There's no limit to the amount of melanoidins present in the claim.

[00:18:01] Speaker 00:
So it doesn't matter if there's some other reactions also happening, as long as you have the reaction that produces melanoidins also happening for the purposes of this claim.

[00:18:14] Speaker 00:
The Maillard reaction, there isn't a whole lot of discussion about what it is, but there isn't a specification, a somewhat of a detailed analysis of what it is.

[00:18:23] Speaker 00:
But I mean, it's adding carbohydrate to an amine and usually heating it.

[00:18:28] Speaker 00:
It's what happens when you make bread.

[00:18:29] Speaker 00:
It's what happens when you brown steak.

[00:18:31] Speaker 00:
It seems like a very complicated thing, but it's something that is well known and that for long periods of time, if you add an amine and you add carbohydrate, everybody people have known, it browns and you create

[00:18:44] Speaker 00:
So that's what's going on.

[00:18:47] Speaker 00:
And in Hanson, even if other, Hanson too, even if other things are going on.

[00:18:52] Speaker 00:
In Worthington, in terms of exactly how that chemical reaction unfolds, it, Worthington is, as our council admitted, is a little unclear about that.

[00:19:04] Speaker 00:
It sort of says the reactions taking place are complex and not thoroughly understood, column two, line 50.

[00:19:11] Speaker 00:
But given that they have the same reactants,

[00:19:14] Speaker 00:
it's likely that, and there's heat applied, there may very well be a Maillard reaction taking place, but the board and the examiner didn't rely on Worthington for teaching inherent production of a Maillard reaction.

[00:19:28] Speaker 00:
It relied on it simply to say one could have a binder that's with similar reactants, similar reactions, where the carbohydrate level, the dry weight of carbohydrates is a little bit higher.

[00:19:40] Speaker 00:
And what's interesting too is the molar ratios of

[00:19:44] Speaker 00:
of acid to carbohydrate are taught in Hanson too.

[00:19:50] Speaker 00:
And one would expect for chemical reaction purposes that the molar ratios are the more important thing.

[00:19:55] Speaker 00:
That's not even what Worthington is relied on for.

[00:19:58] Speaker 00:
It's relied on for just the dry weight.

[00:20:02] Speaker 02:
Increasing the dry weight.

[00:20:04] Speaker 02:
So Worthington says that that particular percentage for carbohydrate is preferred, but doesn't say why it's preferred.

[00:20:14] Speaker 02:
Does the government have a position on why it's preferred or is that in the record anywhere?

[00:20:19] Speaker 02:
And is that required?

[00:20:22] Speaker 00:
Those are three good questions.

[00:20:24] Speaker 00:
I'll try to end with is it required and start with is it in the record.

[00:20:30] Speaker 00:
Worthington doesn't say anywhere explicitly why

[00:20:34] Speaker 00:
Specifically, the carbohydrate portion is what it is.

[00:20:39] Speaker 00:
It does say what the advantages of the binder overall are, which are that it's more economical than priorite binders, it doesn't have fumes, it's easy to prepare.

[00:20:50] Speaker 00:
One can tease out a little bit from Worthington, because Worthington talks about the acids being expensive, potentially,

[00:20:57] Speaker 00:
And it talks about the amines being useful for strength, but you don't get any strength advantages from having more than 5% dry weight of amines.

[00:21:07] Speaker 00:
So from reading that, I would expect that the carbohydrate percentage is probably so much cheaper.

[00:21:15] Speaker 00:
But it doesn't because the whole advantage of the binder is an economical binder.

[00:21:22] Speaker 00:
And some of the other components, the advantage of those components are listed while the carbohydrate may not be specifically listed.

[00:21:30] Speaker 00:
But then where the binders are so similar, that is a fair variable to look to.

[00:21:38] Speaker 00:
Going back to is that required, if we go back to KSR, we have one technique that's being used to improve one

[00:21:46] Speaker 00:
device or one product and it would be expected to use that technique in a similar product unless it's beyond the skill in the art.

[00:21:55] Speaker 00:
There's no allegation here that it's beyond the skill in the art.

[00:21:58] Speaker 00:
As my friend had mentioned, this limitation was added after re-exams

[00:22:04] Speaker 00:
where there's not a whole lot of discussion in the specification of why it even matters in now subvention.

[00:22:10] Speaker 00:
It seems it's mainly added to distinguish and for some variable that you could somehow distinguish the prior art, there's no, the specification is really about the Maillard reaction and doesn't suggest that there's any

[00:22:24] Speaker 00:
real meaning to having a higher or lower dry weight of carbs.

[00:22:27] Speaker 00:
The initial claims didn't have those limitations whatsoever.

[00:22:31] Speaker 00:
So I think that the advantages overall of the binder of Hansen can be imputed somewhat to the carbohydrate range, but beyond that,

[00:22:45] Speaker 00:
I don't think it's required here where you have sort of like the two brake systems.

[00:22:51] Speaker 00:
You have some whole bunch of well-known options where you could really do it one way or the other way.

[00:22:57] Speaker 00:
And it doesn't seem to particularly matter too much which one you choose.

[00:23:01] Speaker 00:
And maybe they don't have any advantages.

[00:23:04] Speaker 00:
Maybe there is a well-known advantage to using that level of carbohydrate dry weight versus the slightly lower level of carbohydrate dry weight.

[00:23:12] Speaker 00:
You could really pick either one.

[00:23:13] Speaker 00:
And that's what the record indicates here.

[00:23:22] Speaker 00:
You have Hansen II, which has everything in claim except for a slightly lower dry weight of carbohydrates.

[00:23:31] Speaker 00:
And then you have Worthington, which does have a substantial amount of similarities.

[00:23:37] Speaker 00:
And you have that slightly higher dry weight preferred.

[00:23:42] Speaker 00:
I would, you know, again, this is not in the record, but I suspect that carbohydrates are cheaper than acids and amines.

[00:23:49] Speaker 00:
And the cheaper rationale is the rationale of both of those references, especially Worthington.

[00:24:01] Speaker 00:
Moving on to some of Matzos' other points.

[00:24:05] Speaker 00:
Again, on the teaching way of Hansen II for carbohydrate levels, there's nothing in Hansen II that suggests that higher carbohydrate weights would be unsuccessful.

[00:24:21] Speaker 02:
Am I correct in understanding that

[00:24:23] Speaker 02:
the tables that were being compared there in the delamination argument were comparing no carbohydrate at all versus a set amount of carbohydrate.

[00:24:33] Speaker 00:
Yes, so if you get to that argument, which we argue was waived, but if you get to that argument, that's all they're doing, is they're comparing no carbohydrate to one single set amount of carbohydrate.

[00:24:42] Speaker 00:
So they don't show anything about increasing levels of carbohydrate.

[00:24:46] Speaker 00:
They also don't show anything about a higher level of carbohydrate.

[00:24:50] Speaker 00:
They just have the one

[00:24:51] Speaker 00:
level of 25 percent, which is within the Hansen II range, and show that in some respects, but certainly not in all respects, the binder that lacks any carbohydrate is in certain respects stronger.

[00:25:10] Speaker 00:
But even that is overstated because the table shows that the binder with carbohydrates actually has a higher initial strength and a higher strength after

[00:25:21] Speaker 00:
after aging and the climate change burn and after the other denomination test performed.

[00:25:29] Speaker 00:
Hanson 2 teaches using carbohydrates.

[00:25:34] Speaker 00:
If Hanson 2 were to find that carbohydrates were weak, why would it claim using carbohydrates?

[00:25:42] Speaker 00:
The whole point of Hanson 2 is to use a formulation that includes carbohydrates.

[00:25:48] Speaker 00:
There really is no teaching away in Hanson 2 of using carbohydrates or using higher levels of carbohydrates.

[00:25:57] Speaker 00:
It teaches to use carbohydrates.

[00:26:02] Speaker 02:
You think that the discussion of putting no more than 40% or not that it's no more than 40%, but that's not a limitation.

[00:26:10] Speaker 02:
It's just an example.

[00:26:13] Speaker 00:
Well, Hanson does earlier on, not in the examples,

[00:26:16] Speaker 00:
say that for most applications, it suggests it uses 40% or less, and preferably 5% to 40% of carbohydrates.

[00:26:26] Speaker 00:
But there's nothing that discourages from using more or suggests that using more wouldn't work, or using more would not have a desirable outcome.

[00:26:38] Speaker 00:
There's nothing that says it would, not that it's necessarily required, but there's nothing that suggests

[00:26:43] Speaker 00:
that using more would render the binder inoperable either.

[00:26:46] Speaker 00:
It's just what it used.

[00:26:52] Speaker 00:
And if in every case, we wouldn't have an obviousness, in the obviousness cases, if that were a teaching away since, you know, you're always claiming something and the thing that you're not claiming, simply the fact that you're not claiming it or you're saying it can't be itself a teaching away.

[00:27:10] Speaker 00:
For Worthington-2, in terms of the water, we discussed that somewhat, but there is the embodiment that uses a substantial amount of water.

[00:27:23] Speaker 00:
And while there's a lot of complicated jargon, it's still fairly simple reaction.

[00:27:33] Speaker 00:
It's adding the carbohydrate to the acid, mixing that up with water,

[00:27:38] Speaker 00:
and then putting in the saline and the carbohydrate.

[00:27:40] Speaker 00:
And then anything else that you might add some cross-linking agents, you might add some of the other components at that point if you chose to do so, like the coupling agents that are in some of the undisputed claims.

[00:27:54] Speaker 00:
I guess beyond that, if on the inherency question, I'm not sure how interested the court is in that.

[00:28:04] Speaker 00:
It really is waived beyond the arguments that they made below.

[00:28:08] Speaker 00:
And their arguments below were very specific.

[00:28:11] Speaker 00:
And the board addressed those arguments.

[00:28:13] Speaker 00:
The reason that the board didn't talk about a lot of the things that they talk about here now is because they weren't raised at the board.

[00:28:20] Speaker 00:
So it's not unusual for the board not to discuss them because they were on disputed issues.

[00:28:25] Speaker 00:
If, for inherency, the board addressed the argument that alkanol amines

[00:28:32] Speaker 00:
and that there would be insufficient alcohol amine after the first reaction in Hansen II to react with the carbs to produce an L9 reaction.

[00:28:41] Speaker 00:
That's not the argument they're making here.

[00:28:42] Speaker 00:
They've already addressed the argument that other things would be present, which is brought up in another context here, that other things would be present in Hansen II, other reactions going on, so that we can't think that a Maillard reaction would have taken place.

[00:28:55] Speaker 00:
They said, no, that's not the case.

[00:28:58] Speaker 00:
It doesn't matter that there are other things also going on.

[00:29:00] Speaker 00:
All you need is the melanoidins.

[00:29:03] Speaker 00:
In terms of the new inherency argument that's being made, Hansen II teaches inheritance production of melanoidins.

[00:29:11] Speaker 00:
One ordinary skill in the art, and I actually didn't hear them talk about it, but one ordinary skill in the art would understand to keep the molar ratio of Hansen II the same by adding acid to maintain a ratio.

[00:29:25] Speaker 00:
And even if one of ordinary skill near it wouldn't understand that, we calculated out molar ratios that would still meet the molar ratios of the claim, even if you just increase the dry weight of carbohydrates.

[00:29:37] Speaker 00:
That's something that really should have been before the board and before the executive.

[00:29:45] Speaker 03:
Can we thank you?

[00:29:52] Speaker 03:
Ms.

[00:29:52] Speaker 03:
Swarson, you have close to two minutes.

[00:30:08] Speaker 04:
So one of the discussion points that we talked about and my opposing counselors talked about was the similar components and the similar whether or not these references had similar reactions.

[00:30:19] Speaker 04:
That was something that we argued about below.

[00:30:21] Speaker 04:
It was in the context of whether or not primarily Hanson and whether or not there would be this inherent production of melanoidins, because the board relied on the allegedly identical or nearly identical chemistries between our claim and Hanson.

[00:30:36] Speaker 04:
to determine in their view that there'd be production melons.

[00:30:38] Speaker 04:
We have disagreed with that and been pointing out the differences between Hansen and our chemistry all along.

[00:30:44] Speaker 04:
The issue of the similarity between Worthington and Hansen was not discussed extensively below because the PTO never relied on that as a basis for its obvious miscombination.

[00:30:56] Speaker 04:
The examiner's sole statement was that the two references were used to bind similar composite components.

[00:31:03] Speaker 04:
And that was the same analysis relied on by the board.

[00:31:06] Speaker 04:
They didn't rely on the alleged similarity.

[00:31:08] Speaker 04:
We disagree completely with that alleged similarity.

[00:31:11] Speaker 04:
But that wasn't the rationale used by the board.

[00:31:14] Speaker 04:
And that can't be the rationale that the PTO uses today to defend that decision when it wasn't even part of the decision.

[00:31:22] Speaker 04:
Finally, on the issue of the molar ratios that my opposing council just mentioned, we've also argued that not only would

[00:31:30] Speaker 04:
that the proposed combination doesn't even arrive at the invention.

[00:31:33] Speaker 04:
The board never engaged, and the PTO never engaged in an analysis of this combination of these references.

[00:31:39] Speaker 04:
They said, well, you just take Worthington's carbohydrate percentage, apply it to Hansen.

[00:31:44] Speaker 04:
But again, we're talking about a undisclosed, allegedly inherent side reaction in Hansen.

[00:31:52] Speaker 04:
I heard my opposing counsels argue that PTOs argued one of the skill in the art would have known to take those molar ratios.

[00:31:58] Speaker 04:
Those molar ratios aren't disclosed in Hanson.

[00:32:00] Speaker 04:
That's something that the requester in this case and the PTO came up with using their own calculations.

[00:32:05] Speaker 04:
And so again, this undisclosed reaction, the board is saying it would have been obvious to modify that based on the different chemistry of Worthington.

[00:32:12] Speaker 04:
In your eyes, we submit that that is not a proper basis for obviousness.

[00:32:15] Speaker 04:
Thank you.

[00:32:16] Speaker 03:
Okay, thank you.

[00:32:17] Speaker 03:
We thank all the parties today for their