[00:00:04] Speaker 02:
Mr. Herman, please proceed.

[00:00:11] Speaker 04:
Thank you, Your Honor.

[00:00:13] Speaker 04:
May it please the court?

[00:00:16] Speaker 04:
BASF came up with a new way.

[00:00:19] Speaker 03:
Mr. Herman, do you admit that the prior teaches each of the limitations of the challenge claims the 107?

[00:00:26] Speaker 03:
That is, your challenge is limited to motivation to combine and reasonable expectation of success.

[00:00:32] Speaker 04:
No, Your Honor.

[00:00:33] Speaker 04:
And that's based on the slurry-coated wash coat limitation.

[00:00:37] Speaker 03:
Well, in the Blueberry Fit 29, you argue that the term slurry-coated wash coat imparts structural characteristics into the claim system.

[00:00:48] Speaker 03:
But you cited me to 755, 56 JA, and 1567 to 72.

[00:00:55] Speaker 03:
When I looked at them, those were attorney submissions rather than submitted evidence.

[00:01:03] Speaker 03:
What do you have that's not attorney argument?

[00:01:07] Speaker 04:
Sure, Your Honor.

[00:01:07] Speaker 04:
For the slurry loaded wash coat, we have the Ferratto declaration.

[00:01:16] Speaker 03:
Give me a site of it.

[00:01:20] Speaker 03:
Has that citation was not helpful?

[00:01:23] Speaker 04:
It's appendix 2403, Your Honor.

[00:01:27] Speaker 04:
And there, Dr. Ferratto, who's a witness for BISF,

[00:01:32] Speaker 04:
explains about the language and the claims, and how the patent uses slurry over 20 times, and what a person of ordinary scope of the art would understand slurry-loaded wash coke to mean.

[00:01:45] Speaker 03:
That's at 24.06.

[00:01:46] Speaker 03:
I have an underline.

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

[00:01:49] Speaker 01:
And Dr. Blakeman was on the other side, right?

[00:01:51] Speaker 01:
That's correct.

[00:01:54] Speaker 01:
And he disagrees with your expert?

[00:01:57] Speaker 01:
He does, Your Honor, but if you look at the history of the... I'll just back up one point.

[00:02:01] Speaker 01:
You have a claim construction hurdle to mount here, right?

[00:02:05] Speaker 01:
Because if you don't win on the claim construction, then there's no argument on the 103.

[00:02:10] Speaker 04:
No, that's not correct, Your Honor.

[00:02:12] Speaker 04:
We have two separate arguments.

[00:02:13] Speaker 04:
We have a claim construction argument which says that the slurry-loaded wash coat is not disclosed in Ono.

[00:02:19] Speaker 04:
And therefore, to Judge Law's question, then all the elements aren't there.

[00:02:24] Speaker 04:
Then we have a secondary argument that does not rely on the claim construction, that there is not substantial evidence to combine Ono

[00:02:31] Speaker 04:
with either Sparonello or Schafferson?

[00:02:35] Speaker 01:
On the claim construction of the fort?

[00:02:39] Speaker 04:
Having nothing to do with the claim construction, Your Honor.

[00:02:42] Speaker 04:
Oh, no.

[00:02:43] Speaker 04:
And I'm happy to go to this, but I don't want to leave the slurry-loaded washcoat issue.

[00:02:49] Speaker 04:
But oh, no.

[00:02:51] Speaker 01:
Well, the reason why I raised it is your adversary read your blue brief to say that your 103 argument hinged on you prevailing on your claim construction argument.

[00:03:02] Speaker 01:
I see you rejecting that in your bravery.

[00:03:06] Speaker 04:
I don't believe that JMI Johnson-Mathie is arguing that if we lose the claim construction argument, we lose our entire arguments about patentability.

[00:03:16] Speaker 04:
Because there's a complete separate question, and both of us briefed it in detail, as to whether one of ordinary skill in the art would combine Ono with the secondary references.

[00:03:27] Speaker 03:
That was my first question.

[00:03:29] Speaker 04:
So with respect to Ono, Your Honor, and I think it's really important for the panel to look at Ono.

[00:03:37] Speaker 03:
Look, why all your arguments on that seem to me to be simply request us to reweigh the evidence?

[00:03:45] Speaker 03:
Absolutely not, Your Honor, and I'll tell you why.

[00:03:47] Speaker 04:
Because if you look, and this came even more clear in the briefs, if you go to Ono, page 28, which is appendix 1951, and this is where

[00:03:58] Speaker 04:
JMI relies almost entirely on this supposed alternative that not only does ONO describe oxidation catalysts, but ONO also describes in the alternative this SCR catalyst reduction.

[00:04:15] Speaker 03:
Sure.

[00:04:16] Speaker 03:
JMI expert testifies why a person of skill in the art wouldn't have limited the teaching of Sparinello to flow through substrates.

[00:04:27] Speaker 03:
And he says,

[00:04:28] Speaker 03:
A person of skill, I'm quoting, looking to load an SCR catalyst on a wall flow filter would have looked to SCR catalyst used in any substrate, even if the catalyst was used on a flow-through substrate such as Sparonello because the catalytic functional requirement is the same.

[00:04:47] Speaker 03:
So you cite me to evidence the other way.

[00:04:49] Speaker 04:
Correct, but you're out.

[00:04:51] Speaker 03:
That's a weighing of evidence.

[00:04:52] Speaker 04:
Well, no, because if you look at ONO, and they've taken this position in the brief, they're

[00:04:58] Speaker 04:
that it does not disclose oxidation and the SCR.

[00:05:03] Speaker 04:
It is an alternative.

[00:05:05] Speaker 04:
And that's why I'd like you to please look with me at ONO.

[00:05:09] Speaker 04:
In the section they rely on, this is on page 28 of ONO, which is appendix 1951.

[00:05:13] Speaker 04:
It says, the DPF itself would have had the function of only accumulating particles, but when it carries a catalyst, the hydrocarbon and carbon monoxide in the exhaust cast could be oxidized.

[00:05:27] Speaker 04:
And that is what Ono is describing throughout the entire thing.

[00:05:30] Speaker 04:
And then the next sentence... Well, look what it says, Your Honor.

[00:05:33] Speaker 04:
It says, also, even in an oxidized atmosphere, such as the diesel exhaust gas, if it carried a NOx selective reduction catalyst.

[00:05:42] Speaker 04:
So there's two things to look at there, Your Honor.

[00:05:44] Speaker 04:
Also, so it's saying it is oxidizing.

[00:05:47] Speaker 04:
And then it says, since if it carried a NOx.

[00:05:51] Speaker 04:
So it doesn't even tell you how the heck you would do this

[00:05:53] Speaker 04:
or that you actually are doing it.

[00:05:55] Speaker 04:
And the reason that no one from JMI, there is no evidence that says that you can actually do both of these at the same time, because you can't, because these are competing chemical reactions.

[00:06:09] Speaker 04:
So when you look at what the oxidation reaction is going to consume ammonia and the reduction of the NOx, it requires ammonia using these SCR catalysts.

[00:06:22] Speaker 04:
So the only other thing they can point to, Your Honor, in ONO, there's two things.

[00:06:26] Speaker 04:
There's the abstract, which is on 1924, which all it says is that oxidation of CO and HC and reduction of nitrogen oxide, NOx, contained in exhaust gas.

[00:06:40] Speaker 04:
And they put a lot of cream in it, but it never tells you where to do it except for what I just read.

[00:06:45] Speaker 04:
The only other thing they point to, Your Honor, is a laundry list of catalysts that

[00:06:52] Speaker 04:
have in them vanadium and a couple other ones, but there's nothing in that section that says that they are going to act as SCR catalysts.

[00:07:00] Speaker 04:
There's nothing in any of this that says that they are going to act to reduce the NOx.

[00:07:10] Speaker 04:
There's nothing in ONO that says you're going to do this.

[00:07:13] Speaker 04:
So the entire decision of the board is premised on a misreading of ONO that we believe that

[00:07:22] Speaker 04:
JMI, some of the witnesses, really took liberties.

[00:07:25] Speaker 04:
I'm going to give you an example, if you'd let me.

[00:07:33] Speaker 03:
While you're looking, in the Blue Brief 47, you argue Tennyson teaches away from arrangement of the SCR catalyst by teaching that the catalyst is positioned upstream of the filter.

[00:07:47] Speaker 03:
It certainly teaches some advantages.

[00:07:50] Speaker 03:
of its arrangement.

[00:07:53] Speaker 03:
But how is that necessarily discouraging another solution?

[00:07:56] Speaker 04:
Well, Your Honor, if you look at ONO, when ONO actually is doing the oxidation, okay, and you look at the BASF patents, they have the oxidation first, but then they have the ammonia put in, and then they're doing the removal of soot and the removal.

[00:08:11] Speaker 04:
So you're basically, you're rewriting, you're redoing the ONO invention, which says you're going to do oxidation.

[00:08:18] Speaker 04:
And then you're taking JMI's argument, which would say you can do oxidation or you can do SCR.

[00:08:26] Speaker 04:
And you have to buy that in order to buy that any combination would actually disclose what's in the 597.

[00:08:32] Speaker 04:
If you agree with us, with BASF, that ONO doesn't disclose an alternative, ONO discloses an oxidation reaction with a throwaway ephemeral

[00:08:45] Speaker 04:
or vague passage about nitrous oxide reduction without anything to do with it.

[00:08:51] Speaker 04:
Now, Your Honor, I wanted to point you to Walker, which is appendix 2846.

[00:08:57] Speaker 04:
And if you look at paragraph eight, Mr. Walker, who is JMI's witness, says, although ONO does not expressly indicate the amount of SCR catalyst, ONO makes clear that the catalyst composition

[00:09:13] Speaker 04:
should be provided so as to not clog the pores in the walls of the monolith."

[00:09:19] Speaker 04:
And, Your Honor, it quotes, it cites to Ono page 13, lines 2 to 17.

[00:09:27] Speaker 02:
Are you appealing a story-coded wash code in 107 and wash code in 597 both?

[00:09:36] Speaker 04:
Yes, Your Honor.

[00:09:37] Speaker 02:
So what is the standard of review you think applies to us?

[00:09:41] Speaker 02:
Because in at least the 597,

[00:09:43] Speaker 02:
I see an extraordinary amount of expert testimony, which I think the lower court relied on.

[00:09:48] Speaker 02:
So do you understand that that morphs this into a question of substantial evidence for us instead of de novo?

[00:09:54] Speaker 04:
The case law seems fairly clear that it is a de novo question.

[00:09:57] Speaker 04:
But if it relies on underlying questions of fact, that those would be considered by the substantial evidence standard.

[00:10:05] Speaker 04:
It's fair to say that it's fairly clear.

[00:10:07] Speaker 04:
Yeah, thank you.

[00:10:09] Speaker 04:
But Your Honor, I would suggest that our

[00:10:11] Speaker 04:
Particularly with respect to the 107, the arguments were largely based on the intrinsic evidence with confirmatory, extrinsic evidence, as opposed to what we believe, especially in the federal circuit briefs.

[00:10:22] Speaker 02:
Well, I understand, and I found this point to be a little confusing in the briefs.

[00:10:25] Speaker 02:
So there is no doubt in my mind that in the 597 discussion, the district court very clearly analyzed and relied on the expert testimony, which would cause that to be something we have to review for substantial evidence.

[00:10:39] Speaker 02:
In the 107 patent, while there was extrinsic evidence, the analysis seems more focused or tailored to the intrinsic evidence.

[00:10:46] Speaker 02:
Yet you kind of want these terms to have the same meaning, right?

[00:10:49] Speaker 02:
So I'm not positive I understand the nature of exactly what our review should be.

[00:10:55] Speaker 04:
Well, we would prefer that you think- And I mean the board, not the district court, by the way.

[00:10:59] Speaker 04:
Sorry.

[00:10:59] Speaker 04:
I was going to say I wish it was the district court and not the board.

[00:11:02] Speaker 04:
We would prefer that you look then at the 107 and look at claim one.

[00:11:06] Speaker 04:
and the slurry-loaded washcoat there.

[00:11:08] Speaker 02:
Well, you'd prefer I do that because you think I have de novo review there.

[00:11:11] Speaker 02:
Correct.

[00:11:12] Speaker 02:
But then what do I do with the 597 patent?

[00:11:14] Speaker 02:
Say, oh, well, they have to be given the same meeting, and I'm going to choose the one that's de novo so I can figure it out myself?

[00:11:19] Speaker 04:
Well, Your Honor, my understanding from reading the amended claims in the 597 is that it just claimed a washcoat, whereas in the 107... But you've argued the meaning is the same.

[00:11:30] Speaker 04:
I know we did, but when I was reviewing this last night, I noticed that the 107, it's the slurry-loaded washcoat.

[00:11:35] Speaker 04:
And in fact, importantly,

[00:11:37] Speaker 04:
When the claim was first amended, it was amended to washcoat and the examiner rejected it.

[00:11:42] Speaker 04:
And then it was amended again and it included the term slurry loaded.

[00:11:46] Speaker 02:
So does that mean that you now hold the view that these limitations could very well have different constructions or should have different constructions?

[00:11:53] Speaker 04:
I'm not saying that, Your Honor, but I'm saying if you look at the way these came up, the examiner allowed our claims in the 107 patent and the examiner did not allow the claims in the 597.

[00:12:05] Speaker 04:
So they did come up in a different form.

[00:12:09] Speaker 01:
The 107 got amended.

[00:12:10] Speaker 04:
They both were amended, Your Honor, but the 107 patent was originally accepted by the examiner.

[00:12:17] Speaker 04:
And then JMI appealed.

[00:12:19] Speaker 04:
The 597 was not... It comes in time after the 107?

[00:12:27] Speaker 01:
Correct.

[00:12:27] Speaker 01:
And the same examiner?

[00:12:30] Speaker 04:
I don't know the answer to that, Your Honor.

[00:12:33] Speaker 04:
I don't think it was the same examiner, but I don't know.

[00:12:36] Speaker 04:
But if I could go back to the point about ONO and what I read from Walker on 28th.

[00:12:42] Speaker 02:
You're into your rebuttal time.

[00:12:43] Speaker 02:
If you want to use it, that's your prerogative.

[00:12:45] Speaker 04:
Thank you, Your Honor.

[00:12:46] Speaker 04:
This is important.

[00:12:47] Speaker 04:
I do want to say it.

[00:12:47] Speaker 04:
It says they refer to ONO and they refer to page 13, lines 2 to 17, as not expressly indicating the amount of SCR catalyst.

[00:12:58] Speaker 04:
And if you read,

[00:13:00] Speaker 04:
on appendix 1936 that that section of ONO, the last sentence is say, consequently, oxidation of the CO and HC in the exhaust gas can be facilitated.

[00:13:13] Speaker 04:
So ONO does not disclose, and this is really just positive to this whole thing, and it doesn't affect Judge Moore's question about slurry load and wash coat.

[00:13:27] Speaker 04:
ONO does not disclose the ability to do oxidation and, alternatively, the ability to do NOx reduction.

[00:13:34] Speaker 04:
And that is fatal to the combination of ONO and the secondary references.

[00:13:38] Speaker 04:
And I'll save the rest of my time for a bottle, please.

[00:13:41] Speaker 02:
Let's hear from Mr. McCann.

[00:13:50] Speaker 00:
May it please the court?

[00:13:52] Speaker 00:
I guess I'll begin by saying I do believe that this case is involving a reweighing of the evidence

[00:13:57] Speaker 00:
Obviously, this, of course, is an issue of law supported by fact.

[00:14:01] Speaker 00:
And the board did a careful review of the facts of this case, weighed the competing views of the experts inside of it, Johnson and Mathey.

[00:14:09] Speaker 00:
And I think what those facts show are as follows.

[00:14:11] Speaker 00:
First, with respect to the 107 patent in Ono, it discloses the wall flow filter.

[00:14:16] Speaker 00:
It discloses the use of the wall flow filter with an SCR catalyst to reduce NOx.

[00:14:23] Speaker 00:
that identifies some specific SCR catalysts, and they include copper and iron.

[00:14:28] Speaker 00:
And the expert testimony in the record was that copper and iron are very good SCR catalysts, but they're poor oxidation catalysts.

[00:14:39] Speaker 00:
It did not, of course, as we know, disclose metal-promoted zeolites, because if it did, we'd have an issue of anticipation here.

[00:14:47] Speaker 00:
But that was supplied by sparinello.

[00:14:49] Speaker 00:
And so the board's conclusion, looking at all those facts, was that if

[00:14:54] Speaker 00:
The person of ordinary skill in the art... Conclusion based on expert tests.

[00:14:58] Speaker 00:
It was, Your Honor.

[00:14:58] Speaker 00:
The person of ordinary skill in the art, being taught by Ono, you can use an SCR catalyst on a wall flow filter and capture bulk particles and reduce NOx, would have asked herself, what are some SCR catalysts I can take advantage of?

[00:15:13] Speaker 00:
And from Speranello would have learned that the metal promoted zeolite catalyst is very good because of its hypothermic stability, its resistance to sulfur poisoning,

[00:15:23] Speaker 00:
I guess I'll briefly address just some of the comments that Council made with respect to the 107 patent.

[00:15:33] Speaker 00:
The issue of whether ONO requires the oxidation catalyst, and if that's true, does that mean then that one could not put an SCR catalyst in with the oxidation catalyst?

[00:15:48] Speaker 00:
I thought the Board, Your Honor, summed that up pretty well.

[00:15:52] Speaker 00:
First, they did look to the testimony of Johnson-Matthews experts, and I think it was specifically Blakeman, and the board said, you know, Blakeman says that reading O&O, a person of skill would understand, at least it suggests you could use the filter and the alternative, either with the oxidation catalyst or with the SCR catalyst.

[00:16:10] Speaker 03:
And the board went on to say... Say to the page, I have a bunch of underlining here.

[00:16:16] Speaker 00:
The requirement issue, Your Honor, is

[00:16:21] Speaker 00:
If you look, it's mostly, I think, on board appendix.

[00:16:25] Speaker 00:
It's page 22 of the appendix.

[00:16:28] Speaker 00:
And in that discussion, they cite to Blakeman, I think, paragraphs 12 and 13 of his second declaration in the first re-exam.

[00:16:35] Speaker 00:
They also go on to say, gee, if the oxidation catalyst was actually required, wouldn't it be in the claims of Ono?

[00:16:41] Speaker 00:
And it's not.

[00:16:43] Speaker 00:
So I mean, I think that that is, I think, a good summary of the facts.

[00:16:47] Speaker 00:
It is supported by substantial evidence.

[00:16:49] Speaker 00:
The contest we're having today is really a reweighing of those facts, and I believe then the appropriate thing for the court to do is to affirm.

[00:16:57] Speaker 00:
I wasn't going to spend much time on the claimant construction.

[00:16:59] Speaker 00:
I understood Your Honor's question about it.

[00:17:02] Speaker 00:
I have to tell you candidly, Your Honor, I didn't write the breach.

[00:17:05] Speaker 00:
My law firm came in later.

[00:17:07] Speaker 00:
I understood our argument to be the board of the claimant construction right.

[00:17:12] Speaker 00:
But I don't recall us saying that the entire case turned on the claimant construction.

[00:17:17] Speaker 00:
I think our view maybe more fairly said was,

[00:17:19] Speaker 00:
even if you agree with their claim construction.

[00:17:21] Speaker 01:
Well, your brief says if we agree with the Morse-Clenkins record, it moots their argument that ONO teaches a way.

[00:17:28] Speaker 00:
Oh, on that specifically, yes, I agree.

[00:17:30] Speaker 00:
I do recall that.

[00:17:31] Speaker 01:
That's from page 26.

[00:17:33] Speaker 00:
Yes, the teaching away issue, Your Honor, I think, relates to this idea that ONO had problems wash coding in a wall flow filter.

[00:17:43] Speaker 01:
Well, isn't that basically there are, I mean, ONO exists, right?

[00:17:48] Speaker 01:
And so they don't have to find a way to get ONO not in a combination?

[00:17:53] Speaker 00:
I think that's why slurry loaded Wasco was probably added to the claims and reexam, Your Honor.

[00:17:56] Speaker 01:
Well, it sure looked to me like somebody saw ONO and thought they would then amend to slurry loaded, thinking that basically ONO isn't going to teach the kind of slurry loading they mean, because they want a slurry loading that has some solids left in it.

[00:18:12] Speaker 01:
Solids left in it, how do you show a method of applying the slurry in ONO that will achieve that?

[00:18:18] Speaker 01:
That's what I thought their argument to be.

[00:18:20] Speaker 01:
So that's why it seemed to me, to make sense, when they let off in their blue brief by saying, applying the correct construction of the term WOSCA implies the applicability and the references considered by the board, it seemed to me that their argument really was based and hinged entirely on the claim construction.

[00:18:40] Speaker 00:
The claim construction, Your Honor, certainly would dispose of the issue of the teaching away.

[00:18:45] Speaker 00:
But I guess the point I was trying to make was,

[00:18:48] Speaker 00:
You adopted their claim construction.

[00:18:49] Speaker 01:
It's not... You could then question whether or not there was any other basis on which you would reject ONO.

[00:18:56] Speaker 00:
Yes, Your Honor.

[00:18:57] Speaker 01:
And I think here what we're saying is that ONO... What do you understand to be their basis for rejecting ONO other than TeachAway?

[00:19:11] Speaker 00:
I don't think they have one.

[00:19:11] Speaker 00:
They do make the argument with respect to motivation to combine

[00:19:15] Speaker 01:
If it's taught away, then there's no motivation to combine.

[00:19:20] Speaker 01:
So I didn't understand their argument on ONO to be anything other than it teaches a way.

[00:19:25] Speaker 01:
It teaches a way because their definition, their preferred definition of slurry loaded, delivers you a kind of a slurry that can't get the job done the way ONO teaches its differing methods of

[00:19:41] Speaker 01:
of applying this stuff, right?

[00:19:43] Speaker 00:
Yes, Your Honor, but I think that even if that were the construction.

[00:19:47] Speaker 00:
So first, let me take one step back.

[00:19:49] Speaker 01:
I was thinking about if we write an opinion, if it's true that the claim construction resolves the 103 issue, you don't have to go any further.

[00:19:58] Speaker 00:
I think you could take that position, Your Honor.

[00:20:00] Speaker 00:
But even if you were to adopt their construction, the slurry loaded, for us to take a step back, slurry loaded wash coat was, of course, added during the re-examination.

[00:20:10] Speaker 00:
And as a result, you can see this problem with it.

[00:20:13] Speaker 00:
The whole phrase does not even appear in the specification other than to the extent of the claim.

[00:20:16] Speaker 02:
Is the only board interpretation of slurry-loaded wash coat on page 20 of the appendix?

[00:20:23] Speaker 02:
Is that where I should look?

[00:20:25] Speaker 00:
I believe that's correct, Your Honor.

[00:20:27] Speaker 02:
So do you believe that I review this construction de novo, or is there some sort of evidentiary finding that you think requires substantial evidence deference?

[00:20:40] Speaker 00:
I think with respect to slurry loaded wash coat, that's de novo.

[00:20:43] Speaker 00:
There was a little bit of, I think, reference to the board to some extrinsic evidence in its construction there on page 20.

[00:20:50] Speaker 02:
Where?

[00:20:50] Speaker 02:
Can you pull it up and look at it and tell me?

[00:20:53] Speaker 02:
I guess I'm just trying to understand what my standard of review is.

[00:21:05] Speaker 00:
I think in that section on the construction,

[00:21:11] Speaker 02:
The first two sentences seem to be the entire construction, and there is no reference to anything in terms of any evidence at all.

[00:21:18] Speaker 02:
But then they say, nevertheless, and they go into whether or not Ohno teaches away, and then they have sites.

[00:21:24] Speaker 00:
I agree with you, Your Honor.

[00:21:24] Speaker 02:
I was remembering that there were facts on the page, but I forgot.

[00:21:27] Speaker 02:
But I think it's de novo.

[00:21:30] Speaker 02:
I don't see any fact-finding distinguishing between expert testimony on the construction at this point.

[00:21:37] Speaker 02:
Now, the 597 is a little different.

[00:21:39] Speaker 02:
Because I think they actually do, on page 57, rely on expert testimony for the definition of wash coat.

[00:21:45] Speaker 02:
So that leaves me just a tiny bit confused about which one to evaluate and under which standard.

[00:21:52] Speaker 00:
Your Honor, I guess I certainly agree with you as to your understanding of the law.

[00:21:56] Speaker 00:
And I also think that the board's construction, it can be the same for both.

[00:22:02] Speaker 00:
I think what they were really saying was, look, what you're talking about as a result of this is catalytic material on the substrate.

[00:22:08] Speaker 00:
That's a wash coat.

[00:22:09] Speaker 00:
I suppose for infringement of the 107 pad, you would have to show it was loaded by a slurry, and for infringement of the 597, you wouldn't have to show that.

[00:22:17] Speaker 00:
What's the difference between a slurry and a solution?

[00:22:20] Speaker 00:
A solution, though, everything would be dissolved completely into the solution.

[00:22:24] Speaker 02:
It's like the difference between a slurpee and diet coke, right?

[00:22:26] Speaker 00:
I think that's correct, Your Honor.

[00:22:28] Speaker 00:
A slurry is thicker.

[00:22:31] Speaker 00:
Yes, the material is not dissolved.

[00:22:33] Speaker 00:
It is there.

[00:22:33] Speaker 00:
It's a suspension of particles in an aqueous solution.

[00:22:37] Speaker 00:
Yes.

[00:22:39] Speaker 00:
So can you have a thin slurry and a thick slurry?

[00:22:42] Speaker 00:
I think you could.

[00:22:43] Speaker 00:
And some of the expert testimony in this case was, on this issue, could you actually load a wall flow filter?

[00:22:50] Speaker 00:
Did one know how to do it with a slurry?

[00:22:53] Speaker 00:
One thing the board pointed to, relying on Walker's declaration, was this Hashitomo reference that said, people know how to put slurries into wall flow filters.

[00:23:03] Speaker 00:
And Walker went on to say, and of course,

[00:23:05] Speaker 00:
have to understand the wall flow filter.

[00:23:07] Speaker 00:
You know, they're both these honeycomb substrates.

[00:23:09] Speaker 00:
It's just the wall flow filter's checkerboard plugged on one end.

[00:23:13] Speaker 00:
And that does make it a little bit different because the gas has to go through the channels.

[00:23:17] Speaker 00:
Obviously, for the other one, it could be no gas penetrating any channel.

[00:23:20] Speaker 00:
It would still work.

[00:23:22] Speaker 00:
So what Walker says is, and Blakman, one of the two, says is, you would understand

[00:23:28] Speaker 00:
though, that when you're loading a wall flow filter, because it has to do its job and allow the penetration, you would avoid clogging all the pores.

[00:23:35] Speaker 00:
And that's what Ono taught to do.

[00:23:38] Speaker 01:
He puts the alumina in.

[00:23:40] Speaker 00:
Yes, right.

[00:23:41] Speaker 00:
So what he experienced was a wash coat of alumina film was too thick and it caused clogging.

[00:23:47] Speaker 00:
And he says, OK, well, I'm going to put the alumina in first by growing it in situ.

[00:23:51] Speaker 00:
And then I will insert the catalyst, perhaps by incipient wetness, for example, which would

[00:23:55] Speaker 00:
be catalyst in an acquiesced delivery vehicle.

[00:23:58] Speaker 02:
But you do agree that the slurry-loaded language does impart a structural limitation to the claim, don't you?

[00:24:03] Speaker 02:
I mean, you said one is slurry-loaded and the other's just a wash coat, and then I gave the example of the 7-Eleven Slurpee, which I'm glad you know.

[00:24:12] Speaker 02:
So often, I give these examples, and people have no idea what I'm talking about.

[00:24:17] Speaker 02:
Yesterday, I referenced Waterboy.

[00:24:19] Speaker 00:
Okay, I know that reference to your honor.

[00:24:22] Speaker 02:
To complete dead silence.

[00:24:24] Speaker 00:
So this just means, your honor, that I'm not going to get the compliment of being a young attorney arguing unsuspected.

[00:24:30] Speaker 02:
Well, you're younger than two of the three of us.

[00:24:34] Speaker 00:
I agree that a slurry is a slurry and the claim requires that there be a slurry.

[00:24:40] Speaker 02:
So the wash coat has to be made by a slurry as opposed to an aqueous liquid type thing, right?

[00:24:48] Speaker 02:
Yes.

[00:24:49] Speaker 02:
So there is some possible difference, but not relevant to this particular case.

[00:24:55] Speaker 00:
Exactly.

[00:24:55] Speaker 00:
It's not relevant to the determination ultimately of obviousness.

[00:24:58] Speaker 00:
Your Honor, I won't say, unless you have specific questions about the 597, I wasn't really going to say much.

[00:25:04] Speaker 00:
I thought the briefs joined the issue well.

[00:25:07] Speaker 02:
OK.

[00:25:07] Speaker 02:
Thank you very much.

[00:25:08] Speaker 00:
Thank you, Your Honor.

[00:25:09] Speaker 03:
Sit down, young fella.

[00:25:16] Speaker 02:
Mr. Herman, please proceed.

[00:25:20] Speaker 04:
Your Honor, a couple of things.

[00:25:21] Speaker 04:
First of all, Judge Clevinger, you are correct on our claim construction position and actually articulated it better than I think we did in our briefs.

[00:25:28] Speaker 04:
But to be very clear, the claim construction position is separate and apart from the motivation to combine Ono and the two secondary references.

[00:25:37] Speaker 04:
So if we win on the claim construction, we win.

[00:25:39] Speaker 04:
If we don't win on claim construction, but we win on the failure to combine, we still win.

[00:25:43] Speaker 04:
So we've got two chances here.

[00:25:46] Speaker 04:
Judge Welk, you talked about competing evidence.

[00:25:49] Speaker 04:
I don't think there is competing evidence.

[00:25:51] Speaker 04:
And let me tell you why.

[00:25:52] Speaker 04:
If you read the brief, for instance, as the board found, Ono does not state that its filter would be unsuitable for Spironello's SCR zeolite catalyst.

[00:26:04] Speaker 04:
Of course Ono doesn't say that.

[00:26:05] Speaker 04:
It doesn't know about Spironello.

[00:26:08] Speaker 04:
And as observed by the board, Ono does not criticize or otherwise disparage the use of the SCR catalyst disclosed in Spironello.

[00:26:15] Speaker 04:
And then, nor does Spironello indicate that its catalyst

[00:26:18] Speaker 04:
could not be provided with a wall flow filter.

[00:26:21] Speaker 04:
And there's plenty of testimony, Your Honor, that we have about the fact that Spirinello and Schaefer-Sinlinger are dealing with a flow-through substrate which is much different and has much different considerations than wall flow filter.

[00:26:33] Speaker 04:
But then Mr. McCann talked about this quote from Blakeman.

[00:26:38] Speaker 04:
And I know you were a litigator, Your Honor.

[00:26:39] Speaker 04:
This quote to me is just unbelievable.

[00:26:42] Speaker 04:
He says that a person of ordinary skill in the art would have understood, oh no,

[00:26:47] Speaker 04:
to at least indicate the filter disclosed therein could have been provided with SCR catalyst, but without oxidation catalyst.

[00:26:55] Speaker 04:
And then he says, and then using a system downstream of an oxidation catalyst and ammonia injection.

[00:27:02] Speaker 04:
He basically is saying, and mind you, he is a Johnson-Mathen employee.

[00:27:07] Speaker 04:
He's basically saying their invention is obvious.

[00:27:10] Speaker 04:
It's a total conclusory statement.

[00:27:12] Speaker 04:
There's no basis to say in the record

[00:27:16] Speaker 04:
to say that ONO would do both at the same time.

[00:27:19] Speaker 04:
And there's no basis to say that ONO is going to move its oxidation over to downstream and do something completely different, i.e.

[00:27:29] Speaker 04:
do something which BASF did.

[00:27:31] Speaker 04:
Your Honor, this is the definition of hindsight.

[00:27:33] Speaker 04:
And when you have experts from the company that's been accused of infringing, you've got to take that with a grain of salt.

[00:27:43] Speaker 04:
We submit a huge grain.

[00:27:45] Speaker 04:
We submit that the board didn't do that.

[00:27:47] Speaker 04:
The examiner in the 197 case got it right, and the board got it wrong.

[00:27:52] Speaker 04:
And if you dig into ONO even a little bit, you'll see that there's no reason and no reason that one would combine ONO with the SCR catalyst from Spirinello and Safer Similitude.

[00:28:07] Speaker 01:
Can you save your green and salt argument for when it works in your favor?

[00:28:11] Speaker 04:
Thank you, Your Honor.

[00:28:12] Speaker 04:
I will do that.

[00:28:13] Speaker 02:
Okay, thank both counsel, the case is taken under submission.