[00:00:05] Speaker 02:
Our next case is Brax Air Technology v. Air Liquide, Large Industries, 2017, 13, 18, and 19.

[00:00:15] Speaker 02:
Mr. Castanhas, good morning.

[00:00:18] Speaker 00:
Thank you, Judge Lurie, and may it please the Court.

[00:00:21] Speaker 00:
In this case, the Board found claims 1, 3, 7, and 8 of the 011 patent to be obvious.

[00:00:29] Speaker 00:
One of the core disputes between the parties in this case is whether the claims require both the storage and supplying of pure hydrogen, or whether the claims only require the supplying of pure hydrogen as it exits the salt cavern.

[00:00:42] Speaker 00:
The board held, and this is at pages 28 and 62 of the appendix,

[00:00:46] Speaker 00:
The board held that, quote, the claims do not require storage of purified hydrogen in the salt cavern, end quote.

[00:00:53] Speaker 02:
That's a rather minor point here.

[00:00:56] Speaker 02:
It was in the prior op that one could store hydrogen in a cave and that CO2 was a known contaminant.

[00:01:06] Speaker 02:
The claim certainly looks pretty obvious.

[00:01:09] Speaker 00:
Judge Lurie, the point here is that the storage has to be of the pure hydrogen.

[00:01:13] Speaker 00:
And what I wanted to get to is at page 28 of the red brief, our friends there look, we concede that at least as to claim three, claim three does require the storage of pure hydrogen.

[00:01:27] Speaker 01:
And understand that... Your view is that claim three in that respect is no different from the other claims.

[00:01:32] Speaker 00:
Well, Claim 3 has other differences because Claim 3 also has the... In that respect.

[00:01:38] Speaker 00:
In that respect, that's right.

[00:01:39] Speaker 01:
But Claim 3 also has... And nobody argued before the board that Claim 3 was different from the other claims in this respect, right?

[00:01:47] Speaker 00:
I'm not sure that there was a distinction drawn before the board, but of course that's because this issue of claim construction never came up until the board's decision.

[00:01:58] Speaker 00:
The board in the institution decision, Judge Dyck, said that no construction was required.

[00:02:04] Speaker 00:
And in the final written decision, the board, and importantly, not in the claim construction portion of its decision, decided that the storage of pure hydrogen was irrelevant.

[00:02:16] Speaker 00:
But of course, we now have a concession on appeal.

[00:02:18] Speaker 00:
Again, this is where I point you to page 28 of the red brief, that at least as to claim three, pure hydrogen is required.

[00:02:26] Speaker 00:
That, it seems to us, at least gets us a remand back to the board, and probably judgment in our favor, because there is no showing that anywhere in the prior art was there a disclosure, not in any of the references, of the storage of 99.99% pure hydrogen.

[00:02:44] Speaker 00:
And recall, Judge Dyke, that that's also what the board took us to task for with regard to our expert on secondary considerations, Mr. Oates.

[00:02:54] Speaker 00:
Uh, the board took us to task because he said, well, Mr. Oates, the board said, well, Mr. Oates testimony only went to absolutely pure hydrogen.

[00:03:02] Speaker 00:
And that was a, that was an error of law that infected all of the claims, but particularly with regard to claims three and eight.

[00:03:08] Speaker 01:
What the board said was that based on the prior art, you would know that contamination would occur from storing this in a salt cavern.

[00:03:19] Speaker 01:
and that there would be motivation to scrub it when you took it out, right?

[00:03:27] Speaker 00:
Well, what the board did not find is the combination of all of the elements.

[00:03:32] Speaker 00:
Because remember, what the invention here is is the combination of a supply pipeline.

[00:03:37] Speaker 00:
The supply pipeline supplies pure hydrogen.

[00:03:40] Speaker 00:
And in times of high demand, that

[00:03:43] Speaker 00:
hydrogen goes directly to the customers.

[00:03:45] Speaker 00:
In times of low demand, that pure hydrogen that goes into the pipeline and that's conceded to be pure that goes into the pipeline, at least with regard to claim three, then gets stored in a salt cavern.

[00:03:55] Speaker 00:
And what the board never took account of are all of the reasons why a person of ordinary skill in the art not knowing that the source of contamination was going to be hydrogen dioxide would not have attached, if you will, the salt cavern to the direct pipeline.

[00:04:12] Speaker 00:
Quite the contrary, all of the prior art that existed and that was cited against these claims, and it's also important to note this was fairly ancient art relative to the time of the patenting.

[00:04:25] Speaker 00:
This was 1979 to 1995 art and the time of the patenting is 2004.

[00:04:30] Speaker 00:
None of that said you're going to get carbon dioxide into hydrogen gas.

[00:04:36] Speaker 00:
The closest they come

[00:04:38] Speaker 00:
is the Scott reference, the 1981 patent that's only at issue in the 1071 patent.

[00:04:43] Speaker 01:
But your problem is the board found that the prior art would teach you that there was a risk of contamination from the storage.

[00:04:53] Speaker 00:
The board found that there might be a risk of contamination as a general proposition, yes.

[00:04:59] Speaker 00:
The board did not find, however, that the risk was carbon dioxide, that it was carbon dioxide from storage in a salt cavern.

[00:05:08] Speaker 00:
And I come back to Scott, because that's the closest that you have of a disclosure of carbon dioxide being off-gassed, as the 011 patent calls it, into something that's being stored in a salt cavern.

[00:05:21] Speaker 00:
But look at what Scott is teaching.

[00:05:22] Speaker 00:
Scott's not talking about gaseous hydrogen.

[00:05:25] Speaker 00:
Scott's talking about liquid hydrocarbon.

[00:05:28] Speaker 00:
And the board actually agreed with our expert that the physics of the transmission of carbon dioxide from a salt cavern into

[00:05:37] Speaker 00:
a liquid that's stored there, like the liquid hydrocarbons of Scott, was fundamentally different.

[00:05:43] Speaker 00:
The only thing the board said is that it was a matter, citing our own expert, was that it was a matter of the amount that was given off.

[00:05:51] Speaker 00:
But the amount that was given off in this case is what matters to the patent, because it's the purity of the hydrogen.

[00:05:58] Speaker 00:
And again, with regard to claim three, what we have is, coming back to at least claim three and claim eight, with regard to claim three,

[00:06:07] Speaker 00:
We have a concession by our friends on the other side that it requires pure hydrogen going into the cavern.

[00:06:15] Speaker 00:
There is no reference that teaches that.

[00:06:18] Speaker 00:
There is no finding by the board based on that claim construction.

[00:06:23] Speaker 00:
And that also infects the board's failure to take into account claim eight with regard to the secondary considerations because this claim eight deals with 99.99% purity hydrogen

[00:06:34] Speaker 00:
And the board dismissed our secondary considerations arguments on the basis that we were only focusing on 99.99 so-called ultra high purity hydrogen.

[00:06:50] Speaker 00:
And of course, that's at least wrong with regard to claim eight, but even under this court's decision in Rambas, there only has to be a reasonably commensurate relationship of the

[00:07:04] Speaker 00:
secondary considerations, obvious evidence, excuse me, to the scope of the claims.

[00:07:10] Speaker 00:
So without, I can certainly answer more questions with regard to the other claims, but our position is that the preamble of the claims sets forth the requirement of both storing and supplying under a product purity specification.

[00:07:29] Speaker 00:
We say that the board was wrong.

[00:07:32] Speaker 00:
with regard to that because the storing also has to be under a product purity specification.

[00:07:37] Speaker 00:
Our friends have said that's true as to claim three but not as to the other claims.

[00:07:42] Speaker 00:
We say that it's true as to all of the claims.

[00:07:44] Speaker 00:
In that case, as I said, the same analysis that applies to claim three now applies to all of the claims because there is no evidence that there was storage of ultra-pure or pure hydrogen in a salt cavern prior to this invention.

[00:08:00] Speaker 00:
And the secondary considerations are powerful in this case, particularly when coupled with the ancient nature of the art.

[00:08:09] Speaker 00:
Does this court set forth in Leo that citing old art, nobody came up with this idea.

[00:08:15] Speaker 00:
Why didn't they come up with this idea?

[00:08:17] Speaker 00:
Well, the answer is that there was no reason for them to come up with the idea because no one thought that you could store ultra pure hydrogen in a salt cavern and combine it with a pipeline that was supplying ultra pure hydrogen.

[00:08:30] Speaker 00:
And that's what this intention is.

[00:08:32] Speaker 00:
And as the examiner got it right back 10 years ago when it said that there was no disclosure of this combination of elements, and we should be entitled to our claims back, but at the very least with regard to claims three and claim eight.

[00:08:47] Speaker 00:
Unless the court has further questions for me, I'll return on rebuttal.

[00:08:51] Speaker 02:
Thank you, Mr. Stanius.

[00:08:53] Speaker 02:
We'll save you time.

[00:08:54] Speaker 02:
Ms.

[00:08:55] Speaker 02:
DeBrow?

[00:08:59] Speaker 03:
Good morning.

[00:09:02] Speaker 03:
The board's findings that a person of skill in the art would have known that hydrogen could be contaminated by carbon dioxide when stored in a salt cavern and would thus also have known that it would require purification before delivery to comply with the product purity spec are subject to review for substantial evidence.

[00:09:19] Speaker 03:
In an effort to escape that deferential standard of review, Praxair attempts to manufacture legal issues by arguing that the board misconstrued the claims.

[00:09:28] Speaker 03:
In addition to being inconsistent with the claim language of the claims and inconsistent with the specification, both of Praxair's claims construction arguments have been waived for failure to raise them before the board.

[00:09:39] Speaker 03:
But regardless, even under Praxair's proposed claim constructions, the result here would be the same.

[00:09:46] Speaker 03:
Praxair first argues that the board erred in interpreting claim one, the only independent claim, to permit storage of hydrogen at any purity level.

[00:09:56] Speaker 03:
Praxler instead contends, as you heard him argue, that the preamble of claim one should be construed to require both the storage and supply of hydrogen that complies with the product purity specification.

[00:10:08] Speaker 03:
But even adopting this claim construction wouldn't change the result.

[00:10:12] Speaker 03:
The board expressly found that the prior art discloses to a person of skill in the art that hydrogen stored in a salt cavern could become contaminated with carbon dioxide, either through mixing with the gas already present in the cavern

[00:10:25] Speaker 03:
or through exposure to residual brine in the cavern.

[00:10:29] Speaker 03:
And the board correctly found that that disclosure would have put a person of skill in the art on notice to monitor for carbon dioxide impurities and to purify the gas before delivery to comply with the product purity specification.

[00:10:42] Speaker 03:
And that's true regardless of the purity of the hydrogen when it's put into the salt cavern.

[00:10:47] Speaker 03:
Second, Praxair contends that the product purity specification limitation of claim two

[00:10:54] Speaker 03:
should be construed to require 95% purity or greater hydrogen, and that the board erred in declining to impose that numerical limitation.

[00:11:05] Speaker 03:
Under this claim construction also, the result here wouldn't change.

[00:11:09] Speaker 03:
It's undisputed that at the time of the 011 patent, 95% purity hydrogen was already being stored in a salt cavern at the ICIT site facility, as is disclosed in both the Faux and the Potier references.

[00:11:23] Speaker 03:
It's also undisputed that it was known in the art to supply hydrogen complying with the product purity specification, including 95% or greater hydrogen, as is disclosed in the CGA references.

[00:11:36] Speaker 03:
The board's decision sets forth in detail the substantial evidence supporting its findings that a person of skill in the art would have known that hydrogen could be contaminated during storage, and that regardless of the purity when it was put into the cavern, it would have known to then purify the hydrogen

[00:11:53] Speaker 03:
to remove those impurities before delivery to a customer in order to comply with the product purity specification.

[00:12:01] Speaker 02:
Unless the panel has questions, I am happy to cede the remainder of my time.

[00:12:24] Speaker 00:
I heard my friend here say that claim is something about claim two.

[00:12:29] Speaker 00:
Claim two is not in this case.

[00:12:30] Speaker 00:
That was part of the IPR that they appealed but then dropped.

[00:12:38] Speaker 00:
So the court should not be deciding anything about claim two.

[00:12:42] Speaker 00:
With regard to claim three, as I mentioned earlier, I was surprised not to hear anything about the language at page 28 of their brief.

[00:12:52] Speaker 00:
And I quote,

[00:12:53] Speaker 00:
This is their brief.

[00:12:54] Speaker 00:
Claim 3 expressly recites storage of purified hydrogen.

[00:12:58] Speaker 00:
It is hard to square that language with the board's holding that the claims do not require storage of purified hydrogen in the salt cavern.

[00:13:08] Speaker 00:
I also didn't hear anything about claim 8.

[00:13:10] Speaker 00:
And finally, with regard to the faux reference, the faux reference mentions 95% purity hydrogen.

[00:13:18] Speaker 00:
It does not, however, say anything about hydrogen being subject to a product purity specification.

[00:13:24] Speaker 00:
And unless the court has further questions, that's what we have to submit.