[00:00:09] Speaker 01:
Our next case is 2017-1433, Knopf Insulation versus Johns Manville Corporation.

[00:00:42] Speaker 03:
Mr.. Larson, please proceed Thank you your honor Please the court my name is Joshua Larson, and I'm representing the opponents can often salation

[00:01:06] Speaker 03:
Your Honors, the board made two fundamental errors in reaching its conclusion that GOGEC anticipated claim one of the 210 patent and its dependent claims.

[00:01:15] Speaker 03:
First, the board failed to address all of the claim language and find that claim language in the reference as it is required to do in an anticipation analysis.

[00:01:24] Speaker 03:
After the preamble of claim one of a substantially formaldehyde-free binder solution and the partially closed transition of consistent essential... How do you... Did you pronounce that GOGEC?

[00:01:33] Speaker 03:
We've been saying GOGEC, Your Honor.

[00:01:34] Speaker 02:
GOGEC.

[00:01:35] Speaker 02:
Okay.

[00:01:36] Speaker 02:
You argue that the PTAB erred by ignoring the refractory materials of GOGEC.

[00:01:42] Speaker 03:
That's correct, Your Honor.

[00:01:43] Speaker 02:
But the PTAB determined that the binder solution was distinct from the refractory materials.

[00:01:50] Speaker 02:
What language in GOGEC shows that the PTAB was incorrect to treat the binder solution as distinct from the refractory materials?

[00:01:59] Speaker 03:
Yes, Your Honor.

[00:02:00] Speaker 03:
So the disclosure in GOGEC does not ever disclose an example or an embodiment

[00:02:06] Speaker 03:
where the binder solution exists separately from the rest of the materials that are used to form his refractory books.

[00:02:11] Speaker 03:
In each of the four examples in GOGEC, which are in column two of that reference, and just pull over into column three, GOGEC describes the manufacturing method as slurring together all of the components.

[00:02:24] Speaker 03:
That includes the sugar and the adjunct material, the ammonium sulfate, but also other materials, the refractory materials like rock wool,

[00:02:32] Speaker 03:
the binding clay that's used in that reference as best dose finds and other materials that he lists.

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And so Gogec's method that he teaches is to combine all of these materials in a slurry.

[00:02:43] Speaker 03:
She describes as slurried in 600 to 1,000 parts of water.

[00:02:47] Speaker 03:
And your honor, where the board erred in terms of applying our claim to that language is that it looked, as you just said, the board seemed to say, well, you can take the solution or there is a solution.

[00:03:01] Speaker 03:
determined that, found that there was a solution there that is somehow conceptually separable from the rest of what Gogack teaches.

[00:03:08] Speaker 03:
He doesn't teach that.

[00:03:09] Speaker 03:
He teaches that all these materials are mixed together.

[00:03:11] Speaker 00:
What about the fact that he says that the binder is just two of those ingredients?

[00:03:17] Speaker 03:
Well, Your Honor, in that respect, he does, in column one, does describe the binder as consisting essentially of a sugar and an adjunct, and the board did focus heavily on that.

[00:03:27] Speaker 03:
But that statement, as explained by

[00:03:29] Speaker 03:
the evidence in the record is not exclusive.

[00:03:33] Speaker 03:
That's not the only binder of GOGEC.

[00:03:35] Speaker 03:
That is a dispute, a factual dispute, we've had between us and the petitioner and the board addressed.

[00:03:41] Speaker 03:
And in particular, the testimony in this case, we submitted extensive expert testimony from our expert, Professor Smith, who is an expert in refractory materials and the type of bricks that GOGEC is describing.

[00:03:54] Speaker 03:
And as he testified, he explained that,

[00:03:57] Speaker 03:
These type of materials, these bricks, are always made with clay as a binder as well.

[00:04:02] Speaker 03:
That Gogec's invention was not to eliminate the clay, it was to instead replace a transient, there's kind of a transient binder that's used before the bricks are fired to help hold the material together in a mass so that it can be fired in the kiln.

[00:04:16] Speaker 03:
And the prior art before Gogec used starch, which unfortunately gave off lots of obnoxious gases, tear gas.

[00:04:23] Speaker 03:
And he replaced that with this transient sugar adjunct binder.

[00:04:27] Speaker 03:
But he didn't eliminate the clay from bricks.

[00:04:29] Speaker 03:
He didn't invent bricks made without clay.

[00:04:31] Speaker 03:
Clay was still a part of his bricks.

[00:04:32] Speaker 03:
That is shown in all four of the examples in Gogek.

[00:04:36] Speaker 03:
And he confirmed this fact.

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Gogek himself confirmed this fact during prosecution.

[00:04:41] Speaker 03:
I point the court to appendix 1836, which is an excerpt from the prosecution history of Gogek.

[00:04:48] Speaker 03:
In Gogek, there's a claim too that says,

[00:04:52] Speaker 03:
which was mentioned by the board as well, a refractory insulating block consisting of a cemented mass obtained by baking 100 parts of refractory materials consisting essentially of rockwool and a sugar inorganic adjunct binder.

[00:05:06] Speaker 03:
The board also relied on that disclosure in Claim 2 as supposedly disclosing a brick made without clay.

[00:05:12] Speaker 03:
During prosecution of the Gogak reference, the Patent Office rejected that claim under 112 and said, you haven't explained how to make a brick without clay.

[00:05:22] Speaker 03:
to which gogak responded, and again, that's an appendix 1836, his representative responded, no, we haven't claimed a brick made without clay in claim two.

[00:05:32] Speaker 03:
That consisting essentially of, and that claim is open to the inclusion of other common refractory materials and explain that it was old in the art to use things like clay and iron oxide and various other materials as part of the bricks.

[00:05:43] Speaker 03:
That that's not what gogak had invented and he wasn't excluding those.

[00:05:47] Speaker 02:
I think that's in Exodus.

[00:05:49] Speaker 03:
I'm sorry, you're out.

[00:05:50] Speaker 02:
I think that's in Exodus.

[00:05:52] Speaker 02:
Bricks without straw.

[00:05:55] Speaker 03:
My co-counsel reminded me that Sherlock Holmes also demanded data, data, data.

[00:05:59] Speaker 03:
I can't make bricks without straw.

[00:06:04] Speaker 02:
In the blue brief, you cite to a couple of articles to argue that formaldehyde may very well be present in gogah, you say, so that it doesn't teach the substantially formaldehyde-free limitation.

[00:06:20] Speaker 02:
And you cite two articles.

[00:06:22] Speaker 02:
One is in the McDonald Farm Journal, and one's in the Louisiana Planter.

[00:06:28] Speaker 02:
And the Louisiana Planter one discusses the presence of formaldehyde in sugar at a particular Louisiana farm in an experiment in which formalin was used.

[00:06:43] Speaker 02:
And there are other reports finding some formaldehyde in certain untreated sugar syrups such as maple sugar, corn syrup, and clover honey in relation to a maple tree taphole experiment.

[00:06:59] Speaker 02:
The Louisiana Planter article was published about 50 years prior to Golgik.

[00:07:05] Speaker 02:
And one, I want to know why that's relevant to what was understood and disclosed.

[00:07:13] Speaker 02:
by Golgak, do either of those articles speak generally to the presence of formaldehyde in dextrose, which is the primary reducing sugar disclosed in Golgak, and if so, where?

[00:07:26] Speaker 02:
And why are either of those articles more probative than Herksohn's declaration?

[00:07:31] Speaker 02:
Yes, sure.

[00:07:32] Speaker 03:
I'll try to hit each of those questions.

[00:07:34] Speaker 03:
And if I may, I'd like to just briefly, when I'm answering your questions, briefly state

[00:07:40] Speaker 03:
The issue, the primary issue in our view with the board's analysis there, they agreed that substantially formaldehyde-free was a limitation of the claim, although it appears in the preamble of claim one.

[00:07:55] Speaker 03:
But they found the primary error that they made of shifting the burden to Knoff insulation to disprove the absence of formaldehyde from GOGAD.

[00:08:06] Speaker 03:
The statute here, Section 315, says that... Well, time out.

[00:08:09] Speaker 01:
I really thought they just relied on JM's expert and said, look, who said GOGEC doesn't disclose formaldehyde anywhere in it, nor does, and this is where the expert opinion matters, nor does it disclose any components that under the claimed processes would produce formaldehyde.

[00:08:24] Speaker 01:
So that doesn't seem like a burden shifting.

[00:08:27] Speaker 01:
That seems like an acknowledgment that JM's expert made an affirmative case that GOGEC doesn't disclose formaldehyde or any components

[00:08:35] Speaker 01:
that would be known under the claim processes to produce formaldehyde.

[00:08:39] Speaker 01:
So what's wrong with that?

[00:08:41] Speaker 01:
I mean, it's a fact finding.

[00:08:43] Speaker 01:
The expert did say all those things, so.

[00:08:46] Speaker 03:
The expert did say those things.

[00:08:48] Speaker 03:
As we argued to the board, Your Honor, his opinion, in our view, is conclusory on that point.

[00:08:53] Speaker 01:
Yeah, but the only thing you produced for these, he's an expert.

[00:08:57] Speaker 01:
He says, in my expert opinion, none of these components would produce formaldehyde in the claimed composition or in the claimed process steps.

[00:09:05] Speaker 01:
We say it's conclusory.

[00:09:06] Speaker 01:
I mean, how would he prove a negative?

[00:09:09] Speaker 01:
He has to go find an article that shows here are these processes.

[00:09:12] Speaker 01:
These particular sugars used in this process.

[00:09:14] Speaker 01:
And look, no formaldehyde was produced.

[00:09:16] Speaker 01:
He's an expert.

[00:09:17] Speaker 01:
This is exactly the kind of thing that experts are relied upon for.

[00:09:23] Speaker 03:
Your Honor, you're correct.

[00:09:24] Speaker 03:
He is an expert.

[00:09:25] Speaker 03:
But in this case, he is an expert in the area of chemistry.

[00:09:28] Speaker 03:
There's no evidence that he has expertise in

[00:09:31] Speaker 03:
what was or was not included in industrial sugars.

[00:09:33] Speaker 01:
Did you challenge, dobbled him basically?

[00:09:36] Speaker 01:
Did you say he isn't qualified to give this expert testimony and therefore it can't be relied on by the board?

[00:09:41] Speaker 01:
And did you appeal such a challenge if you made one?

[00:09:44] Speaker 01:
We did make a challenge.

[00:09:45] Speaker 01:
Because now you're challenging his credentials on appeal and I didn't understand there to be an appeal issue related to whether or not the board was permitted to rely on his testimony.

[00:09:54] Speaker 03:
Your honor, we did make a motion to exclude his testimony as being failing with the requirements of Rule 701 and 702 below with the board.

[00:10:02] Speaker 03:
We lost that motion with the board.

[00:10:04] Speaker 03:
They did not exclude his testimony.

[00:10:05] Speaker 03:
That was based on credentials.

[00:10:08] Speaker 03:
We did not specifically raise that issue in our briefing.

[00:10:10] Speaker 01:
Hopefully you can't really argue that.

[00:10:15] Speaker 03:
Judge Walker, I can't recall if you had another question in that regard that I didn't get to.

[00:10:20] Speaker 02:
Yeah, you never got to anything about the articles and why they were in any way relevant or useful.

[00:10:27] Speaker 01:
Sorry.

[00:10:27] Speaker 01:
I stole them.

[00:10:28] Speaker 01:
I'm sorry about that.

[00:10:30] Speaker 03:
Well, Your Honor, in this case, we had submitted those articles to show that just that Gogek, as described, he uses industrial sugars, industrial syrups to supply sugar, and that around that time period, I agree that there are several decades between one of the refs of those articles and Gogek, but that

[00:10:45] Speaker 03:
It wasn't uncommon or unheard of for industrial sugars to use formaldehyde as a preservative.

[00:10:51] Speaker 03:
That was why we had submitted that evidence.

[00:10:54] Speaker 03:
Your Honors, in this case, the board also erred in making a finding that Gogek also did not require clay in his bricks, as we've discussed.

[00:11:06] Speaker 03:
And as we've explained in our briefs, we believe that that finding, in fact, is contrary to the evidence of the record, not supported by substantial evidence.

[00:11:14] Speaker 03:
In this case,

[00:11:15] Speaker 03:
We submitted an expert declaration from Professor Smith, who explained why that couldn't be the case, that the bricks would not have held together, that the sugar adjunct binder would get burned off when the bricks were fired in the kiln.

[00:11:26] Speaker 03:
And the other side, Decker versus Korn, agreed with us on that.

[00:11:29] Speaker 03:
He agreed that that sugar adjunct binder would not withstand the furnace conditions and therefore couldn't be the permanent binder of GOGEC.

[00:11:41] Speaker 03:
And, Your Honors, I'd like to reserve the remainder of my time for rebuttal, if that's OK.

[00:11:44] Speaker 01:
Yes, you may.

[00:11:45] Speaker 03:
Thank you.

[00:11:46] Speaker 01:
Let's hear from Mr. Reed.

[00:12:02] Speaker 01:
Please proceed.

[00:12:03] Speaker 04:
Good morning, Honors.

[00:12:04] Speaker 04:
May it please the Court.

[00:12:04] Speaker 04:
Christopher Reed on behalf of Appalese.

[00:12:10] Speaker 04:
The binder solution disclosed in GOGEC

[00:12:14] Speaker 04:
is the sugar inorganic salt.

[00:12:16] Speaker 04:
That is the only binder solution disclosed in GOGAD.

[00:12:20] Speaker 00:
Isn't the binder disclosed in GOGAD, the dry ingredients are the two components that are claimed?

[00:12:28] Speaker 00:
But what support do you have for the idea that relying on the consisting essentially of language in the claim, what is your best argument to support the conclusion that the binder solution only includes those two components?

[00:12:44] Speaker 04:
That's with respect to that Ngogek honor.

[00:12:46] Speaker 04:
It does disclose the Ngogek, the two binder components, what identifies as the binder components are subsequently slurried in the 600 to a thousand parts of water.

[00:12:57] Speaker 00:
Where does it say that they're slurried alone without the clay and other elements?

[00:13:01] Speaker 04:
It doesn't say they're slurried alone.

[00:13:03] Speaker 04:
They are in a mixture that involves the insoluble ingredients, the refractory materials, but it does go on to describe after saying it's slurred in 600 to a thousand parts of water.

[00:13:13] Speaker 04:
It goes on to describe how it's pressed, and the excess water comes off of that.

[00:13:18] Speaker 04:
The pressed water comes off of that.

[00:13:20] Speaker 04:
And that pressed water is then recycled so that you can use the sugar and the inorganic salt that are contained in it.

[00:13:29] Speaker 04:
And the insoluble ingredients remain in the pressed brick that has been formed.

[00:13:35] Speaker 04:
So that demonstrates that the only things that are dissolved in that water, and thus the only things that form a solution, are the sugar

[00:13:43] Speaker 04:
in the inorganic salt, exactly what GOGEC characterizes as the binder.

[00:13:49] Speaker 00:
The board didn't really discuss that aspect in its opinion, did it?

[00:13:53] Speaker 04:
It did not go into that level of detail.

[00:13:55] Speaker 04:
It cited that passage talking about the 600 to 1,000 parts of water.

[00:14:01] Speaker 04:
And it relied on Dr. Hirsikorn's testimony that that quantity of water, given the relative amount of binder that's used, three to seven parts, depending on the example,

[00:14:12] Speaker 04:
versus the 600 to 1,000 parts of water, that that's a vast quantity of water.

[00:14:18] Speaker 00:
Do you know offhand what that page number is in the appendix that you're referring to in the PTABS decision?

[00:15:15] Speaker 04:
So if we turn to page appendix 26, the PTAS summarizes the arguments presented by us by petitioner, reflecting that the GOGATE discloses the in-water limitation because it discloses the 600 to 1,000 parts of water.

[00:15:44] Speaker 04:
an amount of water that would easily dissolve the binder components.

[00:15:47] Speaker 04:
And that is referencing back to Dr. Hirsikorn's testimony, which was Exhibit 6, 1006 below, where he said that that quantity of water would easily dissolve the quantities of sugar, or sugar and organic salt that are involved in GOGAG.

[00:16:14] Speaker 02:
in a passing way, 23 and 24, you challenge the PTAB's conclusion that the preamble, which contains substantially formaldehyde free language, is limiting.

[00:16:25] Speaker 02:
Shouldn't that have been raised in a cross-appeal, if you didn't like it?

[00:16:29] Speaker 04:
That may be correct, Your Honor, and for purposes of this particular appeal, even though we stand by that position, we think it's effectively moot based on substantial evidence on which the border lied, finding that it was formaldehyde free.

[00:16:50] Speaker 02:
We don't need to read too much if we find the claims anticipated.

[00:16:54] Speaker 02:
That's correct.

[00:16:55] Speaker 02:
Yeah.

[00:16:57] Speaker 02:
Including the Graham factors.

[00:17:00] Speaker 04:
That's correct, Your Honor.

[00:17:04] Speaker 04:
So your question, Judge Stoll, raises a good point in the sense that what we need to focus on here is the binder solution.

[00:17:12] Speaker 04:
And one of the things that gets confused, at least on the appellant's briefs, is the idea

[00:17:18] Speaker 04:
We're talking about a brick, but we're not talking about a brick.

[00:17:20] Speaker 04:
We're talking about a binder solution.

[00:17:22] Speaker 04:
And the refractory materials that are described in GOGEC, their own experts conceded are insoluble.

[00:17:30] Speaker 04:
And by being insoluble, they can never form part of a solution.

[00:17:34] Speaker 04:
And a solution implies things that are dissolved in water.

[00:17:37] Speaker 04:
Their own experts said that, yes, you're right.

[00:17:39] Speaker 04:
Adding a clay or adding asbestos to water never creates a solution.

[00:17:43] Speaker 04:
At most, it creates a suspension.

[00:17:45] Speaker 04:
So the only solution, despite the fact that they're all mixed together at one time, the only solution that's created by that process is the sugar and the inorganic salt being dissolved in water.

[00:17:55] Speaker 04:
And that's the exact binder solution that's claimed and claimed want of.

[00:18:00] Speaker 01:
Can you go through again with me on this appendix page 25 and 26?

[00:18:04] Speaker 01:
The question that Judge Stoll asked is the hardest part of this case for me as well, which is namely whether

[00:18:14] Speaker 01:
Go get discloses a binder solution that meets with the consisting essentially of language So tell me again that sentence at the top which begins petitioner argues, and then it cites your brief I mean is it your view that that's a fact-finding by the board a sentence that begin petitioner argues Where is the fact-finding by the board about the solution?

[00:18:35] Speaker 01:
Because that sentence is clearly just articulating your argument

[00:18:40] Speaker 01:
not adopting your argument.

[00:18:42] Speaker 01:
It doesn't even say a petitioner argues persuasively.

[00:18:45] Speaker 01:
There's nothing that would make me think that.

[00:18:48] Speaker 01:
So is it a different sentence that you think makes it clear that they've adopted your solution argument?

[00:18:56] Speaker 04:
Well, Your Honors, with respect to the board and how it constructed its analysis of this particular decision, it tended to set forth the evidence presented by both sides

[00:19:06] Speaker 04:
and then make a decision based on that evidence.

[00:19:08] Speaker 04:
And that's what we see here.

[00:19:09] Speaker 04:
So although it doesn't say Petitioner's persuasively argued X or Y, what it does, it does.

[00:19:15] Speaker 02:
What's this patent owner argues?

[00:19:18] Speaker 02:
I'm sorry.

[00:19:19] Speaker 02:
It says patent owner argues, and Petitioner replies, and then they say, we've addressed patent owner's argument above.

[00:19:28] Speaker 02:
If we're looking at the same paragraph.

[00:19:32] Speaker 04:
In the sense that it lays out the evidence,

[00:19:35] Speaker 04:
And then it makes a decision based on the evidence.

[00:19:38] Speaker 04:
And that's a substantial evidence.

[00:19:40] Speaker 04:
And the implication there, that's substantial evidence on which you were lied.

[00:19:43] Speaker 00:
It's just this sentence here on page A26 where you say, we have addressed patent owners' claim argument above and are persuaded that GoGet enables a binder as claim to claim one.

[00:19:55] Speaker 00:
And you're saying that's what should be understood by this court to be

[00:20:01] Speaker 00:
an agreement with the statement that is at the top of page 826.

[00:20:07] Speaker 04:
That's right.

[00:20:08] Speaker 04:
And since we're talking about the same point, did you even point to exactly where you're reading from, Your Honor?

[00:20:14] Speaker 00:
OK.

[00:20:14] Speaker 00:
So on page 826, the last sentence in the first full paragraph.

[00:20:25] Speaker 04:
Correct.

[00:20:25] Speaker 04:
It does reference back to the more fulsome clay

[00:20:29] Speaker 04:
Discussion play that had taken place earlier on the prior page.

[00:20:33] Speaker 02:
Yeah I'm pretty says claim one and then goes through the amounts and what's a binder and what's?

[00:20:41] Speaker 04:
going back to plate page 10 okay, where it talks about the Starting page 10 and continuing on I Mean wouldn't a better sentence even?

[00:20:54] Speaker 01:
The one at the bottom of the next paragraph, also on page 26, where it says, as discussed above, we are persuaded by petitioner's argument on this point that gogex binder consists essentially of reducing sugar in a material which can be ammonium sulfate salt in water, and that the best dose fines are not required.

[00:21:11] Speaker 01:
Maybe.

[00:21:12] Speaker 04:
Yes, and that's where I was going next, Your Honor.

[00:21:14] Speaker 04:
Thanks for highlighting that.

[00:21:16] Speaker 04:
By virtue of saying that, it's referencing back to that argument that we made and effectively adopting that argument, a sense of the evidence in which it relied in finding that

[00:21:25] Speaker 04:
the binder was dissolved in water.

[00:21:28] Speaker 04:
It couldn't reach that conclusion without that evidence we cited previously.

[00:21:33] Speaker 00:
And the expert testimony that you think that this is referring back to is on page, appendix page 1224, paragraph 70.

[00:21:40] Speaker 00:
Do I have that right?

[00:21:44] Speaker 00:
Dr. Hirschkorn's testimony.

[00:21:47] Speaker 04:
That's correct.

[00:22:00] Speaker 01:
I think we have your argument.

[00:22:01] Speaker 01:
Do you have any other points that you want to make before you sit down?

[00:22:05] Speaker 04:
I just want to address claims 13 and 14, which have not gotten much attention yet.

[00:22:11] Speaker 04:
That is a claim construction issue.

[00:22:12] Speaker 04:
Everything we've talked about thus far previously, it really is fact-finding.

[00:22:16] Speaker 04:
It's a question of fact.

[00:22:19] Speaker 04:
should be given deference to the board on their substantial evidence on which they rely.

[00:22:23] Speaker 04:
This is a claim construction argument.

[00:22:24] Speaker 01:
Just to be clear, you're free to do that if you think you need to, but you know, if they don't address something in the opening position, and then you do address it in the opposition, they get to address it in their rebuttal.

[00:22:34] Speaker 01:
If you don't address it and you sit down now, they don't get to actually talk about it in their rebuttal.

[00:22:39] Speaker 01:
Fair enough.

[00:22:40] Speaker 01:
I was on your honor on that point.

[00:22:41] Speaker 01:
Very good.

[00:22:41] Speaker 04:
Let me raise one more point, and then on the initial... We'll see if it's necessary.

[00:22:44] Speaker 01:
Go ahead.

[00:22:44] Speaker 01:
What's your next point?

[00:22:45] Speaker 04:
Next point goes to the idea of Clay, which was raised in the opening.

[00:22:50] Speaker 04:
And that's the point that the 210 patent itself, we're talking about the 210 patent itself, talks about using a sugar inorganic salt binder on a variety of materials.

[00:22:59] Speaker 04:
And one of those materials is what's called foundry sands.

[00:23:03] Speaker 04:
And why is that important?

[00:23:04] Speaker 04:
Because foundry sands, the main component of foundry sands is bentonite clay.

[00:23:08] Speaker 04:
So if clay affected the material properties of the solution, then what's described in the 210 patent itself isn't correct.

[00:23:17] Speaker 04:
And that can't be the case.

[00:23:18] Speaker 04:
The point is Benson like play does not affect the material properties of the binder solution It can't be dissolved.

[00:23:25] Speaker 04:
It doesn't affect the binder solution solution is inorganic salt sugar That's what's in go back for that reason of course your firm.

[00:23:32] Speaker 01:
Thank you.

[00:23:33] Speaker 01:
Thank you very much.

[00:23:34] Speaker 02:
You have some time Mr.. Larson You know you had the opportunity to quote Sherlock Holmes about the 2% solution or elementary

[00:23:53] Speaker 03:
Your Honor, I'd like to frame my rebuttal with something I heard opposing counsel say that I think the parties are somewhat in agreement about.

[00:24:01] Speaker 03:
I can at least agree with his statement that the 210 patent in this case is what it's about.

[00:24:06] Speaker 03:
It's not about a brick.

[00:24:08] Speaker 03:
It's about a binder solution.

[00:24:10] Speaker 03:
The 210 patent claims a binder solution.

[00:24:12] Speaker 03:
And GOGEC does not disclose that binder solution.

[00:24:15] Speaker 03:
While it discusses various binders, it does so in the context of its bricks and in the context of a slurry that includes

[00:24:23] Speaker 03:
binding clay, sugar, adjunct, asbestos, and many other materials.

[00:24:30] Speaker 03:
That's important for purposes of anticipation because the SSO of anticipation is prior invention and the board had to find, and JM had to find, an embodiment in GOGEC that discloses the same invention arranged as in our claim.

[00:24:46] Speaker 01:
But just go to the heart of it.

[00:24:47] Speaker 01:
Don't beat around the bush.

[00:24:48] Speaker 01:
I mean, your problem is Hirsch-Gorn's testimony, namely in paragraph 70, where he basically says a solution is inherently present because this amount of water would easily dissolve all the binder components.

[00:24:58] Speaker 01:
I mean, that's your problem.

[00:24:59] Speaker 01:
You've got to overcome that testimony or explain to us why it was inappropriate for the board to rely on that testimony for its finding.

[00:25:09] Speaker 03:
So, Your Honor, on that point, with his testimony there,

[00:25:14] Speaker 03:
Respectfully, I think that the issue is slightly different, because even with his testimony, if the board credited his testimony that there's inherently a solution present, it still does not meet the language of our claim.

[00:25:25] Speaker 03:
And the reason why is that we claim that we have a binder solution consisting essentially of another solution, namely a solution obtainable by dissolving two components, a sugar and an ammonium salt in water.

[00:25:38] Speaker 03:
If our claim was open-ended, if it said comprising, we'd have a different situation here.

[00:25:43] Speaker 03:
Then you could look at the binder solution, the slurry of GOGEC.

[00:25:47] Speaker 01:
But what does the solution in GOGEC contain?

[00:25:50] Speaker 01:
The solution contained that exceeds the consisting essentially of problem.

[00:25:55] Speaker 03:
So Your Honor, even with the sugar in the adjunct being dissolved in water in GOGEC, if that's present, that may potentially, for the sake of argument, meet our solution obtainable by dissolving those two components.

[00:26:10] Speaker 03:
We think there's scant evidence of that in the record.

[00:26:13] Speaker 03:
But even with that fact, then the claim says that the binder solution, that's claimed, has been substantially free from aldehyde-free binder solution, has to consist essentially of that other solution.

[00:26:23] Speaker 03:
There can't be other things present in the binder mixture that are going to affect the basic analogic characteristics.

[00:26:29] Speaker 01:
Not in the binder mixture.

[00:26:30] Speaker 01:
In the binder solution, let's be precise, because a mixture could imply something that remains solid

[00:26:36] Speaker 01:
being present in there, whereas a solution cannot.

[00:26:40] Speaker 01:
A solution requires stuff that dissolves, or at least that's what this record suggests.

[00:26:45] Speaker 03:
Your Honor, I think the word solution, as we use it actually in the first instance, is a little broader.

[00:26:50] Speaker 03:
And the distinction there is, in the second instance, we say a solution obtainable by dissolving, meaning the components have to be fully dissolved in the solution.

[00:26:57] Speaker 03:
We're talking about molecular disassociation in the solution.

[00:27:01] Speaker 00:
Right.

[00:27:01] Speaker 00:
How does one of Ordinari's felony art understand the word solution as opposed to a mixture?

[00:27:07] Speaker 03:
Your Honor, I think with the solution, it means that there's actual at least some dissolution of the components, maybe not full.

[00:27:14] Speaker 03:
My understanding would be that the word solution can include both dissolved and undissolved components by itself, as opposed to where as a mixture, there isn't really any dissolution of one material and the other.

[00:27:24] Speaker 03:
It's just a mixture of those components together.

[00:27:29] Speaker 02:
So Your Honors, in this case, GOGEC fails to... Doesn't that necessarily imply at least soluble, if not dissolved?

[00:27:39] Speaker 02:
Your Honor, I'm not sure I followed your question.

[00:27:41] Speaker 02:
When you said a solution, it doesn't have to be entirely, I'm trying to remember the word from chemistry, but that is 100%.

[00:27:55] Speaker 02:
But the stuff that hasn't actually dissolved has to be soluble to be part of the solution.

[00:28:05] Speaker 03:
I'm not sure that I know the answer to that question, Your Honor, but I believe that

[00:28:09] Speaker 03:
The other material does have to be dissolved.

[00:28:11] Speaker 03:
I see my time is out.

[00:28:13] Speaker 01:
OK.

[00:28:14] Speaker 01:
I thank both counsel for their argument.

[00:28:16] Speaker 01:
I have to be honest, I didn't think a brick case could be as complicated as this particular one has turned out to be.

[00:28:22] Speaker 01:
But I thank both counsel for their helpful arguments to the court.

[00:28:25] Speaker 00:
Thank you very much, Rob.

[00:28:26] Speaker 01:
It's not a brick case.