[00:00:00] Speaker 02:
The first case is BASF versus Ingevity, South Carolina, 2022-1129.

[00:00:08] Speaker 02:
Mr. Mazzina, is it?

[00:00:10] Speaker 02:
It is, yes.

[00:00:19] Speaker 00:
In the time I have today, I'd like to focus on two fundamental legal errors in the board's decision.

[00:00:25] Speaker 02:
First, on indefiniteness, the board failed... Do you want to very briefly talk about standing?

[00:00:31] Speaker 00:
Sure, Your Honor.

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

[00:00:34] Speaker 00:
So I think here, Mr. Mungeli's affidavit establishes that BASF has concrete plans to sell a potentially infringing product in the United States, which is all this court's precedent requires.

[00:00:45] Speaker 00:
I think the party's dispute about standing has significantly narrowed from the motion to dismiss phase.

[00:00:50] Speaker 00:
At this point, I understand that Ingevity's main argument is that we have not sufficiently shown that we will sell the ABTRA product in the United States.

[00:01:00] Speaker 00:
But if you look at paragraphs 29 and 30 of Mr. Mungeli's affidavit,

[00:01:04] Speaker 00:
He says that customers have expressed interest in purchasing the product for vehicle platforms in the United States.

[00:01:10] Speaker 00:
He says they've gone as far as to request specific pricing information and provide information about potential purchasing volumes.

[00:01:18] Speaker 00:
And he also says in paragraph six that this is a product that was designed specifically to help car manufacturers meet United States emissions regulations.

[00:01:29] Speaker 03:
Is the product available now?

[00:01:32] Speaker 03:
Does the affidavit address that?

[00:01:34] Speaker 00:
Yes, in fact, I think in paragraph 30, Mr. Mugelli says the ASF is presently able to provide the product at the volumes that are requested by customers.

[00:01:47] Speaker 02:
We want to deal with indefiniteness.

[00:01:49] Speaker 00:
Yes, Your Honor, so I'll start there.

[00:01:51] Speaker 00:
So I said two fundamental legal problems.

[00:01:54] Speaker 00:
On indefiniteness, I think the board's legal error was that it failed to recognize that a discrepancy between two measurement methods makes a claim indefinite if that discrepancy is potentially material to infringement, regardless of whether those skilled in the art might not have considered the discrepancy significant in every experimental context.

[00:02:13] Speaker 00:
So here the evidence is clear.

[00:02:15] Speaker 00:
The 553 patent teaches two different methods of measuring incremental absorption capacity, the gravimetric and volumetric methods.

[00:02:23] Speaker 00:
And all of the evidence shows that those two methods produce different results.

[00:02:27] Speaker 04:
When you say all of the evidence, what about the various peer-reviewed articles that were provided?

[00:02:35] Speaker 04:
Those suggest otherwise, right?

[00:02:37] Speaker 04:
I mean, what do you mean by all of the evidence?

[00:02:40] Speaker 00:
I don't think they do, Your Honor.

[00:02:41] Speaker 00:
Actually, I think that those articles confirm that those skilled in the art knew there was a discrepancy between those methods.

[00:02:49] Speaker 00:
At most, what they show is that in particular experimental contexts, artisans didn't consider that discrepancy significant for particular purposes.

[00:02:58] Speaker 00:
but that doesn't speak to whether the discrepancy is material to infringement.

[00:03:02] Speaker 00:
The question under this court's case law, as the court put it in doubt, is whether the choice of measurement method could affect whether or not a given product infringes the claims.

[00:03:11] Speaker 00:
Here I don't think that's disputed.

[00:03:13] Speaker 00:
Even, for example,

[00:03:15] Speaker 00:
the Belmaco article that Ingevity cites, those authors did everything humanly possible to try to reduce the disparity between these methods, and they couldn't get it any closer than 3%.

[00:03:27] Speaker 00:
And of course, that was across the entire range.

[00:03:28] Speaker 00:
Our evidence showed that in the critical range for the 553 patent, the disparity was even higher, as high as 12% to 14%.

[00:03:35] Speaker 03:
So maybe 3% isn't significant.

[00:03:39] Speaker 03:
I don't understand that there's an argument that 12 to 14 percent isn't, but the argument is that the Board could properly find that it was in fact a three percent disparity and that wasn't significant.

[00:03:55] Speaker 03:
But what do you make of the Board's statement on

[00:03:59] Speaker 03:
appendix 31 that we need not address petitioners' allegations just to the measurement differences reported by Interreg.

[00:04:08] Speaker 03:
Is that Interreg exhibit, which I think is not in the joint appendix, is that the one that deals with the 12 to 14 percent?

[00:04:16] Speaker 00:
It is, Your Honor, and if it's not in the Joint Appendix, Mr. Lyon's declaration describing and analyzing the UNITEC results is in the Joint Appendix.

[00:04:23] Speaker 00:
I can get you a cite for that if you need it.

[00:04:27] Speaker 00:
So yes, at a minimum, as we've argued in the briefs, the board's failure to address our evidence about the size of the disparity would require a remand.

[00:04:34] Speaker 00:
But I'd like to address your first point, which is I don't think the board could properly find under the correct legal standard that a 3% disparity was not material to infringement.

[00:04:43] Speaker 00:
There's no evidence of that.

[00:04:45] Speaker 00:
The only evidence is that, in particular context, it might not have been viewed as significant, but that is not addressed to this court's standard.

[00:04:52] Speaker 04:
Even if it is material to infringement, why does that show indefiniteness?

[00:04:56] Speaker 04:
Why doesn't it go to the question of infringement?

[00:04:58] Speaker 04:
And then a jury could determine, based on the evidence presented before it, whether there was infringement or not.

[00:05:05] Speaker 00:
What this court has said, Your Honor, in cases like Dow, and Teba, and Honeywell, is that if there are two known methods to measure a particular parameter, and those methods produce different results, such that the choice of measurement method could dictate whether or not a product infringes, that renders the claims indefinite.

[00:05:21] Speaker 03:
That's important.

[00:05:22] Speaker 03:
No, they don't say that.

[00:05:23] Speaker 03:
They don't say a different result.

[00:05:24] Speaker 03:
They say significantly.

[00:05:27] Speaker 00:
Fair enough, your honor, but I think in the context where this court uses that, it uses significantly to mean potentially affecting infringement.

[00:05:35] Speaker 00:
That is the line the court has consistently drawn in Dow, whether it could affect whether or not a given product infringes.

[00:05:42] Speaker 00:
In Takeda, whether it could be outcome determinative in the infringement analysis.

[00:05:45] Speaker 00:
So I think that's the only barometer for significance this court has ever articulated.

[00:05:50] Speaker 00:
If it's all right, I'd like to move on to obviousness.

[00:05:54] Speaker 00:
On obviousness, the board found teaching away because it read Klantz SAE as suggesting that higher capacity honeycombs might perform better at low purge than low capacity honeycombs.

[00:06:06] Speaker 04:
I don't recall.

[00:06:07] Speaker 04:
Did the board actually use the words teaching away?

[00:06:10] Speaker 00:
I believe it did, Your Honor.

[00:06:12] Speaker 00:
Okay.

[00:06:12] Speaker 00:
I'll check and confirm that, but that's certainly how I, and I think the longevity as well, read the decision.

[00:06:18] Speaker 00:
And I thought they used those words.

[00:06:20] Speaker 00:
But in any event, I think the board's legal error on obviousness was that it failed to appreciate that under this court's case law, a reference doesn't teach away from a solution that's known in the art to be suitable, just because it suggests that another solution might work even better.

[00:06:36] Speaker 00:
So for example, this court in Ethicon said that the reference didn't teach away from a particular polymer by suggesting that another polymer was, quote, probably more desirable for the given application.

[00:06:49] Speaker 00:
And in GE, this court reversed the board with the same error.

[00:06:52] Speaker 00:
There, the board had wrongly found that the prior art taught away from a two-stage turbine design by expressing a general preference for a one-stage design and suggesting that a one-stage design might perform better.

[00:07:04] Speaker 00:
And this court has said, in those cases and many others, if a solution is known in the art to be suitable, you don't have teaching away just because a reference suggests another solution might be superior.

[00:07:14] Speaker 00:
I think that's exactly what happened here.

[00:07:17] Speaker 03:
Well, how does the SAE reference suggest that it's suitable?

[00:07:21] Speaker 00:
So SAE, in Figure 6, which is at page 2269 of the appendix, tested the Hiltzik Example 2 honeycomb, which it called the baseline honeycomb, under low purge conditions.

[00:07:35] Speaker 00:
And it found that the Hiltzik honeycomb met the low purge performance limitation at 100 bed volumes, which is the level specified in the 553 patent.

[00:07:43] Speaker 00:
It also found that when heated, which is not inconsistent with the 553 claims, that honeycomb met the limitation even at 50 bed volumes, which is just half as much purge.

[00:07:53] Speaker 00:
Now, the Hiltzik honeycomb was just slightly above the range claimed in the 553.

[00:07:58] Speaker 00:
It had a BWC of 4, whereas the claimed range is 3 or below.

[00:08:05] Speaker 00:
Given how well that honeycomb was performing at low purge, an artisan certainly would have understood that if you just tweaked it slightly, it would still meet that low purge performance limitation.

[00:08:15] Speaker 00:
And the board didn't make any contrary finding on that point.

[00:08:19] Speaker 00:
And of course, Hiltzik taught and claimed the entire range of vent side absorbance that are claimed in the 553 patent.

[00:08:26] Speaker 00:
There's no dispute that the 553 range is a subset of the Hiltzik range.

[00:08:32] Speaker 00:
And as this court said in DuPont, where it also reversed the board on this issue, a disclosed range does just that.

[00:08:39] Speaker 00:
It discloses the entire range.

[00:08:41] Speaker 00:
So these absorbance were both taught and claimed in Hiltzik.

[00:08:45] Speaker 00:
And then Klontz would have communicated to those skilled in the art that they could easily meet the low purge performance limitation.

[00:08:52] Speaker 00:
That was further confirmed by Klontz WIPO, the second Klontz reference, at appendix 2252, which tested much smaller and therefore lower capacity honeycombs with just 66 milliliters of volumes, about a third of the size.

[00:09:07] Speaker 00:
and found that those honeycombs with heating were crushing the low bird performance limitation even at just 75 dead volumes, again below the level required in the 553 patent.

[00:09:19] Speaker 00:
Now, of course, we also think that the board misunderstood what Klontz was saying about

[00:09:26] Speaker 00:
capacity versus low capacity.

[00:09:28] Speaker 00:
In fact, if you read Klontz, it's talking about the capacity of the entire configuration of honeycombs, which could include multiple honeycombs in sequence, whereas the 553 is specifically talking about the very last adsorbent in sequence, the one that's exposed to the atmosphere.

[00:09:44] Speaker 00:
So there's no inconsistency between saying that the whole configuration should have higher capacity, but the very last adsorbent at the end should have low capacity.

[00:09:54] Speaker 00:
But the court doesn't even have to reach that issue about how to read Klontz, because at most, if you read it the way the board read it, it suggests a preference that

[00:10:02] Speaker 00:
higher capacity honeycombs might potentially, subject to further research, as the author said, might potentially work better at low purge.

[00:10:11] Speaker 00:
But it doesn't refute that those skilled in the art would have understood that even the low capacity honeycombs would be a suitable solution at low purge.

[00:10:20] Speaker 04:
Do you agree that this issue that you're raising here is an issue that we view for substantial evidence, right?

[00:10:29] Speaker 00:
So I don't think so, Your Honor.

[00:10:31] Speaker 00:
I think that, as I understand this court's cases, teaching away is a factual question that's reviewed for substantial evidence.

[00:10:38] Speaker 00:
But the board has to apply the right legal standard, the right understanding of what it means to teach away.

[00:10:43] Speaker 00:
And I think this court's case has established that a reference does not teach away as a matter of law just by suggesting that some other solution might be preferable.

[00:10:52] Speaker 04:
I agree with you on that.

[00:10:53] Speaker 04:
My problem is, where does the board say it teaches away?

[00:10:57] Speaker 04:
Because the board, to me, seems to say that a person born in Erie is killing the Earth wouldn't have been motivated to modify the references in a way to reach the claimed invention, given the teaching in Clance SAE.

[00:11:11] Speaker 04:
That's different, I think, than technical teaching away.

[00:11:15] Speaker 04:
So I'm still not seeing where the teaching away is.

[00:11:17] Speaker 04:
That's why I asked you about that earlier.

[00:11:19] Speaker 00:
Sure, I think that's how the parties understood what the board was holding.

[00:11:23] Speaker 00:
But if it's in fact about motivation rather than teaching away, I think that just makes it stronger for us.

[00:11:28] Speaker 00:
Because this court has been very clear in cases like Dupont, and going all the way back to Peterson, that it is presumptively obvious.

[00:11:38] Speaker 00:
There is presumptively a motivation to explore

[00:11:42] Speaker 00:
claimed range through routine experimentation.

[00:11:45] Speaker 00:
Here, Hiltzik claimed this entire range of vent-side absorbers.

[00:11:49] Speaker 00:
So there's no additional motivation that's needed for somebody to explore that claimed range.

[00:11:55] Speaker 00:
And in fact, both parties' experts said an engineer working in this field would have all the motivation they need from Hiltzik to explore the claimed range.

[00:12:03] Speaker 04:
But one of the experts said, but not necessarily a low purge environment.

[00:12:07] Speaker 00:
That's right.

[00:12:08] Speaker 00:
And that's where we get to the issue of Klontz shows that this was suitable in a low purge environment.

[00:12:14] Speaker 02:
Counsel, you don't take your time.

[00:12:16] Speaker 02:
You can continue or save it.

[00:12:18] Speaker 00:
I'll save it.

[00:12:18] Speaker 00:
Thank you, Your Honor.

[00:12:20] Speaker 02:
Mr. Bureau Clerk.

[00:12:23] Speaker 01:
Good morning, and may it please the court.

[00:12:25] Speaker 01:
I'll start with standing, because that's where Your Honor started.

[00:12:28] Speaker 01:
Your Honor, there does have to be concrete plans.

[00:12:30] Speaker 01:
And in this case,

[00:12:32] Speaker 01:
There are no concrete plans to commit an act in the United States.

[00:12:35] Speaker 01:
And that's the point we've tried to emphasize.

[00:12:37] Speaker 01:
All of the activity they've alleged is vague.

[00:12:40] Speaker 01:
They don't say.

[00:12:40] Speaker 03:
Do you agree there are concrete plans outside the United States?

[00:12:44] Speaker 01:
Well, in order for there to be an actual concern about infringement, there needs to be something that's going to happen in the United States.

[00:12:49] Speaker 03:
You're not answering my question.

[00:12:50] Speaker 01:
Oh, I'm sorry.

[00:12:50] Speaker 01:
What was your question?

[00:12:51] Speaker 03:
My question is, do you agree there were concrete plans outside the United States?

[00:12:57] Speaker 01:
We agree that there are activities that have occurred outside of the United States.

[00:13:00] Speaker 03:
But are they concrete and would be sufficient for standard if they occurred in the United States?

[00:13:06] Speaker 01:
If they occurred in the United States or that they were intended or would happen in the United States.

[00:13:11] Speaker 03:
In other words, the answer is yes.

[00:13:12] Speaker 01:
Yes.

[00:13:14] Speaker 01:
But again, this court's emphasis is on likelihood of being sued for infringement in the United States.

[00:13:19] Speaker 01:
This is a component.

[00:13:21] Speaker 01:
of the claims.

[00:13:22] Speaker 01:
The claims are system claims that require multiple components.

[00:13:25] Speaker 01:
They only make or are going to make a single component.

[00:13:29] Speaker 01:
So somebody else would have to put together the actual canister

[00:13:35] Speaker 01:
and imported in the United States, which there's no concrete plans that have been alleged.

[00:13:39] Speaker 01:
Unlike in GE and these other cases where the court has said there's plants being made in the United States, this case is much more like the JTEKT case in which the product was developed but was still being worked on.

[00:13:53] Speaker 01:
I'd like to turn to indefiniteness.

[00:13:56] Speaker 03:
So with respect to indefiniteness, do you agree that a 12% to 14% variability in measurement methods would be a problem?

[00:14:07] Speaker 01:
If that were established in the art as being what the two methods would yield, that could be a problem.

[00:14:13] Speaker 01:
But in this case, the evidence showed that that was a result of experimental error.

[00:14:17] Speaker 01:
That's the evidence that was before the board.

[00:14:20] Speaker 03:
Okay, but I have difficulty in seeing the board as agreeing with that point because

[00:14:27] Speaker 03:
On A31, they seem to refuse to address those allegations about the 12% to 14% measurement difference.

[00:14:38] Speaker 03:
We need not address petitioners' allegations.

[00:14:41] Speaker 03:
But they did need to address them, didn't they?

[00:14:43] Speaker 01:
Well, no, Your Honor, we don't think that they actually did.

[00:14:45] Speaker 01:
And what they're saying in that passage is, well, you have peer-reviewed articles and industry standard publications that establish that these two methods of measuring absorption capacity yield comparable results, that any differences that may occur are a question of whether or not there's infringement.

[00:15:02] Speaker 01:
And that's why they cited the Presidio case just before the second.

[00:15:05] Speaker 03:
You mean they can completely refuse to look at the experimental data because they're peer-reviewed articles that come out, in your view, the other way?

[00:15:12] Speaker 01:
They didn't completely refuse to look at it.

[00:15:14] Speaker 01:
If you look at appendix page 27, you see that they went through all of the party's arguments.

[00:15:20] Speaker 01:
And they said that they understood that BASF was arguing that there was evidence from a third-party intertech and also other evidence.

[00:15:30] Speaker 03:
Sure, they understood that the evidence was before them, but they say we don't need to address it.

[00:15:35] Speaker 04:
Isn't this just, it does read, it's problematic because it does read as if they're identifying, here's the petitioner's evidence, here's the patent holder's evidence.

[00:15:47] Speaker 04:
Now had they said, we find

[00:15:49] Speaker 04:
You know, we find the evidence of the patent owner more credible.

[00:15:57] Speaker 04:
We think that the peer-reviewed articles, which were not litigation-inspired material, is more credible than the test results.

[00:16:06] Speaker 04:
But they didn't.

[00:16:07] Speaker 04:
They simply said, we need not address.

[00:16:09] Speaker 04:
Why isn't that in the APA program?

[00:16:11] Speaker 01:
I think that is what your honor said is exactly what the board did say.

[00:16:14] Speaker 01:
Because on appendix page 30,

[00:16:17] Speaker 01:
It says they find that the evidence submitted by patent owner as to the gravimetric and volumetric techniques established as well established in the yard as comparable methods.

[00:16:28] Speaker 04:
But they don't say anything about the petitioner's contrary evidence.

[00:16:32] Speaker 01:
That's true.

[00:16:33] Speaker 04:
They find the patent owner's evidence

[00:16:35] Speaker 04:
is, you know, establishes something, but they need to weigh it then under the APA against the other party's evidence.

[00:16:45] Speaker 04:
Isn't that what's required?

[00:16:47] Speaker 01:
They did weigh it, Your Honor.

[00:16:48] Speaker 01:
Where did they weigh it?

[00:16:49] Speaker 01:
On page 29 of the appendix, they note that one of the peer-reviewed articles, the very bottom, was written by Dr. Zielinski.

[00:16:57] Speaker 01:
He's the fellow at Intertech that they asked to do this testing.

[00:17:00] Speaker 01:
And Dr. Zielinski is the one who oversaw the testing

[00:17:04] Speaker 01:
reported in Intertech 1020.

[00:17:07] Speaker 01:
And so they're saying the same gentleman who issued a peer-reviewed article that says these methods should come out the same is the one that did the report.

[00:17:16] Speaker 01:
And we weighed that.

[00:17:17] Speaker 01:
I believe the way that you read this decision is they weighed all the evidence and believed his peer-reviewed publication

[00:17:23] Speaker 01:
over the one report that he did.

[00:17:25] Speaker 01:
Plus, there's other evidence in the record from Dr. Rockstraw to explain why the Intertech results were the way they were, and which was that the report itself indicated that there were problems with the way in which the samples were prepared.

[00:17:39] Speaker 03:
So this is not evidence that- There's no indication that the board agreed with that.

[00:17:43] Speaker 03:
That's the problem you have.

[00:17:45] Speaker 03:
I mean, the board could have said, there's this evidence that this testing that was done isn't reliable.

[00:17:52] Speaker 03:
And we're not going to give it any weight.

[00:17:53] Speaker 03:
They could have said that, and we'd probably sustain that.

[00:17:57] Speaker 03:
But they didn't say it.

[00:17:58] Speaker 03:
They said, we don't need to address it.

[00:18:00] Speaker 04:
They didn't make a credibility determination based on Mr. Zelensky or any of that.

[00:18:05] Speaker 04:
There's nothing in here.

[00:18:08] Speaker 04:
How do we infer that that's what they meant?

[00:18:12] Speaker 01:
All you need to do is find that there is a path to their outcome.

[00:18:15] Speaker 01:
And the path to their outcome is pretty clear, that they found the peer-reviewed articles and other industry publications, unbiased materials, as Your Honor pointed out, to be more compelling.

[00:18:26] Speaker 01:
And as a result, any inconsistency.

[00:18:28] Speaker 03:
That's the problem.

[00:18:29] Speaker 03:
They don't say more compelling.

[00:18:34] Speaker 04:
You would say that we have to infer that, and we're allowed to do that under a case law that says if you can reasonably infer what they thought.

[00:18:44] Speaker 04:
The problem is, for me, is that I don't know if they thought that the measurement differences were not credible, or if they just thought that the petitioner's evidence was more credible, or if they really relied on Mr. Zielinski being on both.

[00:19:02] Speaker 01:
Your honor, I think that this decision, when you read it in its whole and not pick it apart, does explain it understood all of the party's arguments.

[00:19:11] Speaker 01:
It then went through and pointed out that it found

[00:19:14] Speaker 01:
the peer-reviewed materials and other evidence that we submitted, the patent owners submitted, to be essentially unrebutted.

[00:19:20] Speaker 01:
Because that was establishing that those of field and the art recognized the equivalence of the two different methods of measurement.

[00:19:29] Speaker 01:
And so any evidence to the contrary on an individual test couldn't disprove that point.

[00:19:35] Speaker 01:
They say this evidence is essentially unrebutted.

[00:19:37] Speaker 01:
That's their way of saying, in our understanding, that any individual test that comes out with discrepancies can't rebut the fact that the industry recognized the equivalence of the two different methods.

[00:19:49] Speaker 01:
So that's our way of reading this part of the opinion.

[00:19:53] Speaker 01:
And we believe then, under the APA, they have fulfilled their obligation to explain the rationale and consider all the evidence.

[00:19:59] Speaker 01:
Again, there's no evidence that they didn't consider it.

[00:20:02] Speaker 01:
It's specifically cited in the decision.

[00:20:06] Speaker 01:
On obviousness with respect, there's no indication that the board found a teaching away.

[00:20:13] Speaker 01:
What it said was there's no motivation to modify HILSEC to lead to lower adsorbent properties, the lower BWC value and lower gram total.

[00:20:25] Speaker 01:
That's a PINIX 47.

[00:20:28] Speaker 01:
The bottom, they say, we find persuasive patent owners' argument that Klantz SCE teaches

[00:20:33] Speaker 01:
contrary to their proposed combination, et cetera.

[00:20:37] Speaker 04:
Not a teaching away, but a teaching that you would do A versus B. Mr. Broecker, Mr. Mazzina earlier said that both parties agree that they viewed the board's opinion as a teaching away, as saying there's a teaching away, the reference teachers away.

[00:20:52] Speaker 04:
Do you agree with that?

[00:20:53] Speaker 01:
I don't believe so, Your Honor.

[00:20:54] Speaker 01:
I believe we were arguing that there was no motivation.

[00:20:57] Speaker 01:
They started with Hiltzik as their primary reference.

[00:21:00] Speaker 01:
They had to show a motivation to modify Hiltzik, which doesn't explicitly have anything to do with low purge.

[00:21:06] Speaker 01:
And it also doesn't explicitly disclose the BWC and grand total BWC limitations of the different claims.

[00:21:13] Speaker 01:
So they need to have a motivation to make that modification.

[00:21:17] Speaker 01:
Again, yes, the BWC in Hiltzik is 4.

[00:21:20] Speaker 01:
The gram total BWC is 8.

[00:21:22] Speaker 01:
These claims are at 3 and 6, respectively.

[00:21:26] Speaker 01:
That's not an insubstantial change.

[00:21:27] Speaker 01:
That's a 25% difference.

[00:21:29] Speaker 01:
And in this field, that can make a huge difference.

[00:21:31] Speaker 01:
So we don't agree that we were arguing that there was a teaching away.

[00:21:35] Speaker 01:
We were arguing there was no motivation to make a modification.

[00:21:39] Speaker 01:
and that the strong teaching at Klontz SAE, that you would not be motivated to decrease the working capacity, it was the compelling piece of evidence that the board relied on in making its finding.

[00:21:53] Speaker 03:
What about the Rock Straw District Court testimony?

[00:21:57] Speaker 01:
Again, they weighed that evidence.

[00:21:58] Speaker 01:
The question here is whether they weighed it.

[00:22:00] Speaker 01:
They weighed it in the context in which it was presented.

[00:22:04] Speaker 01:
He was giving testimony about the Hiltzik patent, which doesn't have anything to do with low purge.

[00:22:09] Speaker 01:
And he clarified it in his deposition in the PGR proceeding to explain that in a low purge environment, with all the evidence in front of the person of skill in the art, the person would have been motivated to use higher working capacity, i.e.

[00:22:24] Speaker 01:
greater EWC,

[00:22:26] Speaker 01:
greater gram total BWC and not lower.

[00:22:29] Speaker 01:
And so they specifically said, yes, that is evidence that could support a finding, but they weighed the evidence and disregarded the testimony from Dr. Rostroff.

[00:22:40] Speaker 01:
So again, the SAE, Clonset SAE information was viewed to be more persuasive to the board, and that's exactly what their opinion says.

[00:22:53] Speaker 01:
Now, there was also argument about the board

[00:22:56] Speaker 01:
misapplying the legal standard.

[00:22:59] Speaker 01:
That's just not the case.

[00:23:00] Speaker 01:
They clearly understood what they needed to do in terms of applying all of the art and starting with the parameter of the claims that requires a low purge.

[00:23:11] Speaker 01:
And that given that low purge environment, they needed to look at the totality of the evidence, including CONSSAE.

[00:23:17] Speaker 01:
And as a result, their argument or their finding of non-obviousness is supported by substantial evidence in the record.

[00:23:30] Speaker 01:
I think I've addressed the points that Mr. Mazzina raised.

[00:23:33] Speaker 01:
If there's no other questions, I can cede my time.

[00:23:37] Speaker 02:
Thank you, Mr. Bureau.

[00:23:40] Speaker 02:
Mr. Mazzina has three minutes or so.

[00:23:43] Speaker 00:
So first, on the question of teaching away, whether the parties agree, I refer to page two of Ingevity's brief, their summary, which says, the board rejected the ASF's sole obviousness ground based on a factual determination that the prior art, in fact, teaches away from the solution claimed.

[00:24:00] Speaker 00:
They also framed their statement of the issues in terms of teaching away.

[00:24:05] Speaker 00:
in terms of why the parties thought that.

[00:24:07] Speaker 00:
One place I point to is Appendix 51, where the board talks about whether Hiltzik alone would suggest the claim limitations.

[00:24:15] Speaker 00:
And it says that BSF does not overcome Klantz SAE's strong suggestion that honeycombs with higher capacity than Hiltzik's would be desirable for achieving the emissions at low perch.

[00:24:26] Speaker 00:
I think we both understood that as a teaching away finding, which is contrary to this court's precedent about when a reference teaches away.

[00:24:33] Speaker 00:
Now, if we are talking about motivation to combine, then I'd refer the court to the decision in DuPont v. Sinvina, where this court reversed the board.

[00:24:42] Speaker 00:
saying the board did not consider the normal desire of scientists or artisans to improve upon what is already generally known, which provides the motivation to determine where in a disclosed set of ranges is the optimum combination.

[00:24:54] Speaker 00:
Of course, that's the principle this court has applied going back to Henry Peterson.

[00:24:58] Speaker 00:
which was actually very similar, selecting the range of 1 to 3 percent rhenium from the broader range of 0 to 7 percent rhenium.

[00:25:05] Speaker 00:
Here you have the range of 0 to 35 IAC, and the limitations in the 5 to 3 effectively just pluck out the range of 0 to 7 IAC.

[00:25:16] Speaker 00:
So I don't think there's any real question about whether there should be a motivation here.

[00:25:21] Speaker 00:
Switch back to indefiniteness.

[00:25:24] Speaker 00:
Obviously, we agree that the board didn't properly consider our evidence and make the necessary findings, so the court at a minimum should send it back to the board to look at that evidence.

[00:25:33] Speaker 00:
But I hope that if the court does that, that it will go further and also provide guidance about where the board got the law wrong.

[00:25:39] Speaker 00:
The board focused on qualitative statements in those prior articles that Ingevity submitted that suggested for some purposes artisans didn't consider this significant, but that's highly context dependent.

[00:25:52] Speaker 00:
So just to take one example, the Anson article that Ingevity cited

[00:25:56] Speaker 00:
Anson starts out at the beginning of the article, he says it is, quote, difficult to find good correlation between these two methods.

[00:26:02] Speaker 00:
And he says this has led to controversy in the art and uncertainty about the true adsorption capacity about various materials.

[00:26:09] Speaker 00:
He goes on to say what he was working on

[00:26:11] Speaker 00:
He was studying hydrogen absorption by carbon nanotubes, different from what's at issue here.

[00:26:17] Speaker 00:
And he says in that context, the absolute values of hydrogen absorption are so small that the difference between these two measurement methods fell within the range of permissible experimental error.

[00:26:27] Speaker 00:
That's completely dependent on context.

[00:26:28] Speaker 00:
It does not speak to

[00:26:30] Speaker 00:
the correct legal question under this court's precedent, which is, would the choice of measurement method potentially affect whether or not a product infringes the claims?

[00:26:39] Speaker 00:
On that, I think there is no evidence that it would not affect infringement.

[00:26:43] Speaker 00:
All of the evidence suggests that even a disparity in the range the board suggested would affect the infringement analysis.

[00:26:51] Speaker 00:
With that, thank you very much.

[00:26:52] Speaker 00:
We'd ask that the board's decision be reversed.

[00:26:54] Speaker 02:
Thank you, counsel.

[00:26:56] Speaker 02:
Appreciate both arguments.

[00:26:58] Speaker 02:
The case is submitted.