[00:00:00] Speaker 01:
Good morning.

[00:00:01] Speaker 01:
The first argued case this morning is number 191349, Blackley Agenda of Emulsions Against Asphalt Products.

[00:00:12] Speaker 01:
Mr. Triggs.

[00:00:13] Speaker 02:
Good morning, Your Honor.

[00:00:25] Speaker 02:
May I please support?

[00:00:26] Speaker 02:
My name is John Triggs, along with Ryan Levy,

[00:00:29] Speaker 02:
And Seth Ogden, we represent Blackledge Emulsions on the instant appeal.

[00:00:35] Speaker 02:
The purpose of my opening remarks is simply to set the table.

[00:00:38] Speaker 02:
We will show, after we've concluded all of our remarks, that the board erred in its obvious determination as to both claims.

[00:00:48] Speaker 02:
Now, there are two sets of claims.

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There are the settlement claims that have rheology, and there are the cure time claims which have rheology.

[00:00:56] Speaker 02:
That is a common limitation that appears in all of the claims.

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And the board repeatedly ignored the importance of those at real logical value in its analysis.

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Have they looked at these claims as a whole?

[00:01:09] Speaker 02:
The real logical values?

[00:01:11] Speaker 02:
Real logical properties, excuse me, Your Honor.

[00:01:13] Speaker 02:
And had they done that, they would have found there was no substantial evidence.

[00:01:17] Speaker 01:
But where is that in the claim?

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And I think that one of the things that bothered the board

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was it the claim just seemed to state the standard conditions that exist in laying asphalt?

[00:01:34] Speaker 02:
Your Honor, well, that's exactly what I was getting to.

[00:01:36] Speaker 02:
That's the problem.

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Those standards are, first of all, for road building.

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But what is ignored here is that our rheological properties have to do with two critical components in the tack coat as it's cured on the road.

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And those properties are settlement value and pen value.

[00:01:52] Speaker 01:
Where are the distinctions in the claim for the rheological properties?

[00:01:59] Speaker 02:
They're spelled out in the claims, Your Honor, that you have to achieve.

[00:02:03] Speaker 02:
This is an asphalt competition selected to provide the claimed rheological properties.

[00:02:09] Speaker 02:
And those rheological properties are set forth in the patent.

[00:02:11] Speaker 02:
There's two rheological properties.

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There's softening point and penetration.

[00:02:17] Speaker 01:
But you're claiming anything that works.

[00:02:19] Speaker 02:
Excuse me?

[00:02:20] Speaker 01:
You're claiming anything that works without specificity as to product or what's sold.

[00:02:27] Speaker 01:
It seemed to me that this was where the board was having difficulty, as am I. The board is telling you we didn't tell you how to achieve these results.

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And I have to stress here, that's what's unique about the patent because

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For decades, it's been what goes in is what counts.

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And what this patent teach you is what comes out at the very end.

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And I mean at the very end, after you've prepared the emulsion, you've stored the emulsion, you've transported the emulsion, and you've applied it, and you achieve those rheological values.

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Before we go any further, I just want to make sure I understand.

[00:03:05] Speaker 03:
Rheological properties.

[00:03:06] Speaker 03:
Pasquere.

[00:03:06] Speaker 03:
Yes.

[00:03:08] Speaker 03:
Pasquere, the prior art reference.

[00:03:10] Speaker 03:
Yes.

[00:03:11] Speaker 03:
I didn't see your brief disputing that Pasquere has the

[00:03:16] Speaker 03:
It's more about the settlement rate and the cure time.

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When I read the patent specification, it seems like the contribution that the inventors were allegedly making was the idea of using a hard pen asphalt in making these bonding layers and making these tack coatings.

[00:03:59] Speaker 03:
And then it turns out, well, Pascua Air was already doing these hard pen asphalt bonding layers.

[00:04:06] Speaker 03:
And so then you pivot it to these settlement rates as being the key to the invention.

[00:04:13] Speaker 03:
But when I looked at the patent specification, it says really almost nothing about stability as well as cure time.

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They make little cameo appearances

[00:04:24] Speaker 03:
in the midst of this patent specification.

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But the patent specification is really more about going with a hard pen asphalt, and that was something that was already in the prior art.

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And so I'm just wondering why in the face of the prior art, in the face of the expert testimony from the petitioner,

[00:04:43] Speaker 03:
Why wouldn't it just be obvious to optimize whatever kinds of additives you're using so that you do reach these common standards of settlement as well as common standard of a cure time of one hour or less?

[00:05:00] Speaker 02:
There's a lot of questions in there.

[00:05:01] Speaker 02:
Let me try to take them in order.

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First of all, when you go to columns 8, 9, and 10, you'll see that we actually say you can also use a soft pen asphalt.

[00:05:10] Speaker 02:
The specification teaches.

[00:05:11] Speaker 02:
It gives you lots of

[00:05:12] Speaker 02:
specific information.

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It goes in such detail, it tells you who we used as an emulsifier.

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They give you a name.

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So to say that we didn't teach you what you needed to know is wrong.

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Now, I think the next question, if I've got this right, is you're talking to me about the ability to optimize Pasquier.

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If that's the case, the problem with that is very simple.

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In order to optimize, you have to have predictability.

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And we know from the test values, unrebutted test values, that not only does this

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emulsion has horrible settlement values, but those settlement values are all over the board.

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You have one that's so bad you can't even test it.

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It's just settling already, and you have them all over the place.

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So you have a bad emulsion in terms of stability and a bad emulsion in terms of predictability, and the case law makes clear that you have to have predictability.

[00:06:04] Speaker 03:
And Antoine discloses the settlement rate, right?

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The claimed settlement rate?

[00:06:10] Speaker 03:
No, Your Honor, respectfully.

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The table doesn't report out settlement rate that falls within the claim settlement rate?

[00:06:19] Speaker 02:
It does.

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But it's hearsay, Your Honor.

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It's hearsay of the rank is kind.

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And what's important about it, and what the tests show you, is if you somehow thought that Antoine, which uses a standard we don't know anything about, it's internal.

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It may be good, bad, anything.

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We don't know.

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And secondly, it is hearsay.

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It's a prior art reference, and we're trying to understand whether a skilled artisan would believe there was a reasonable expectation of success in using a prior art hard pen asphalt like Pasquere to get certain kinds of common standard settlement rates.

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And then if that skilled artisan read Antoine, that seems to be something that would suggest to the mind of the skilled artisan that, OK, Antoine says he can do it.

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And Antoine says he's performed certain tests.

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So therefore, it stands to reason that we can do a hard pen asphalt like Pasquere with these kinds of settlement rates.

[00:07:27] Speaker 02:
All right.

[00:07:29] Speaker 02:
I respectfully remind you that I've advanced a hearsay argument with language from, I think it's Wojak, that says the one thing you certainly can't do is use a prior art reference to say it did these tests, it got these results.

[00:07:42] Speaker 02:
That's not here.

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We don't know that at Antoine.

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Now the second thing about Antoine

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Well, are you not suggesting that everything in every prior art United States patent is hearsay, are you?

[00:07:54] Speaker 02:
Absolutely not.

[00:07:56] Speaker 02:
Absolutely not.

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But when you have a critical fact that you need to prove, and you prove it with hearsay, and that's what Wozniak says, that's incorrect.

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And there's a second prong to the Anton problem.

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And that is that he is also a sticky asphalt, to keep it simple.

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And Pasquier is supposed to be a non-sticky asphalt.

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So those two don't go together.

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They're not going to help you in any way.

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And then if you did think you had a reasonable expectation of success, you would do precisely the test we did.

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And you would have seen at that point that I have no reasonable chance of success because I can't even stabilize my emulsion, let alone use it.

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And remember, this has been, I think, the argument all the way along.

[00:08:43] Speaker 02:
Our claims as a whole have a limitation

[00:08:46] Speaker 02:
and a rheological set of properties.

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And they have pure time and rheological properties.

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And those are always together.

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And you don't find those two things anywhere in the prior art.

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You don't find any place in the prior art that would give you a sense that you have a reasonable chance of success in achieving both sets of values, just properties rather.

[00:09:06] Speaker 03:
What are we supposed to make of the fact that the patent, your patent spec, doesn't really provide any details?

[00:09:14] Speaker 03:
Your patent specification

[00:09:16] Speaker 03:
just says there's a bunch of ingredients you can throw in and here are the results that we desire.

[00:09:23] Speaker 03:
We want this kind of rheological property.

[00:09:26] Speaker 03:
We want this kind of cure time.

[00:09:29] Speaker 03:
We want this kind of stability rate.

[00:09:32] Speaker 03:
Doesn't that suggest?

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I mean, you provide some details on how to get the rheological properties, but you provide pretty much zero details when it comes to getting the stability rate.

[00:09:46] Speaker 03:
So it makes me wonder.

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Why wouldn't these common standard stability rates just be something that's something within the skill of artisans' abilities?

[00:09:57] Speaker 02:
To get the stability rates without the rheological properties is to not practice the art.

[00:10:01] Speaker 02:
I'm going to keep saying that.

[00:10:02] Speaker 02:
That's what's so important.

[00:10:03] Speaker 02:
That's my fundamental argument.

[00:10:04] Speaker 02:
You may not agree with it, but these came as a whole continually.

[00:10:08] Speaker 02:
Either they'd be the cure time set, have cure and rheology, or the limitation, which is the limitation and the rheology.

[00:10:17] Speaker 02:
And also, the other problem is that we do teach you what you need to know, but we're forgetting, somebody put it in this case along the way, having something very specific hobbles you when you're dealing with such difficult emulsions.

[00:10:35] Speaker 02:
The genius of this patent is that for decades, everybody said, what goes in is what's important.

[00:10:40] Speaker 02:
And we've told you no.

[00:10:41] Speaker 02:
You could have flexibility.

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If your asphalt supplier changes, you're not left out in the cold because you've got a formula that you have to follow when you followed it with his asphalt.

[00:10:49] Speaker 02:
No.

[00:10:49] Speaker 02:
You know that whatever ingredients you have that you need, that you can find, that you can put together to give you these properties, both of them, both sets of them, you're going to have a trackless tack coat.

[00:11:00] Speaker 02:
And that's the core of the patent.

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And I understand that it may sound like I'm saying every time there's a priori here say it's not available, no.

[00:11:10] Speaker 02:
Exactly what we did below we didn't object to the introduction of the document We only objected to it when they attempted to use the settlement values in a In a from an unknown source in terms of what the testing values are we know it was internal We don't know what it was and we just don't know Much about that at all.

[00:11:30] Speaker 02:
So you've got to recognize we we stress that

[00:11:33] Speaker 02:
that what this patent does is tell you where you need to go.

[00:11:36] Speaker 02:
You need to arrive.

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You need to arrive at these particular values in both sets of claims to practice the art.

[00:11:44] Speaker 02:
And that's the clear message of the patent.

[00:11:46] Speaker 02:
And it doesn't tie you down to a particular asphalt, to the most fire we recommended.

[00:11:52] Speaker 02:
You can do whatever you want.

[00:11:53] Speaker 02:
And you have to remember, like Mr. O'Leary, these formulators are part science and part art, because asphalt is an incredibly difficult thing to deal with.

[00:12:03] Speaker 02:
And as you know, hard pen asphalt is even harder.

[00:12:07] Speaker 02:
For example, when you're dealing with emulsions, one of the things I want to stress, as the Sheldman-Tumen handbook says at 1167th of the appendix, it's critical.

[00:12:17] Speaker 02:
It is virtually impossible to alter one property of an emulsion without altering others.

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And that's why this is such a complex process.

[00:12:26] Speaker 02:
And that's why, as simple as it sounds,

[00:12:31] Speaker 02:
Oh, I'm in my, can I answer this question and then reserve time?

[00:12:36] Speaker 02:
Okay.

[00:12:36] Speaker 02:
It's your time, go ahead.

[00:12:37] Speaker 01:
Thank you.

[00:12:38] Speaker 01:
Okay, now finish your sentence and then we'll proceed.

[00:12:42] Speaker 02:
That's why it's so important to look at this and understand where the patent takes you, which is an end result.

[00:12:48] Speaker 02:
You arrive where you need to be.

[00:12:51] Speaker 02:
And to get there, the formulator, who as I said is a bit scientist and a bit creative, has lots of tools and lots of people are practicing this now.

[00:12:59] Speaker 02:
to get there, to get to those critical two sets of values.

[00:13:02] Speaker 02:
And now I'll stop and reserve the rest of my time.

[00:13:04] Speaker 01:
Thank you.

[00:13:06] Speaker 01:
Thank you.

[00:13:23] Speaker 01:
Mr. Leachman.

[00:13:24] Speaker 00:
Good morning, Your Honors.

[00:13:27] Speaker 00:
May it please the Court.

[00:13:29] Speaker 00:
The original inventive theory set forth in these patents was the purported discovery of the ability to use a hard pin asphalt to create a trackless tack coat.

[00:13:41] Speaker 00:
That was the inventive theory set forth in the patents themselves.

[00:13:44] Speaker 00:
That was the inventive theory advanced during prosecution of these patents.

[00:13:49] Speaker 00:
It was only in this proceeding when petitioners set forth numerous prior references that had not been considered by the patent office showing

[00:13:57] Speaker 00:
that hard-pin asphalts had been used in these types of emulsions.

[00:14:01] Speaker 01:
Let's just talk about the merits of this appeal.

[00:14:05] Speaker 00:
Yes, ma'am.

[00:14:07] Speaker 00:
I believe this is relevant, though, in that it shows that in this proceeding, there has been a shift of what is the actual invention from the start.

[00:14:18] Speaker 00:
So originally, the invention was the use of hard-pin asphalts.

[00:14:21] Speaker 01:
Well, they have an adverse decision that they need to respond to.

[00:14:25] Speaker 01:
Let's talk about the merits.

[00:14:26] Speaker 00:
Yes, ma'am.

[00:14:27] Speaker 00:
Pasquet forms the heart of the invalidity challenge that was set forth for the board.

[00:14:36] Speaker 00:
Both Pasquet and the patents at issue disclose the use of hard pin asphalts in an emulsion to make a trackless tack coat.

[00:14:45] Speaker 00:
Both Pasquet and the patents at issue disclose using an emulsifier and stabilizers to provide a storage stable emulsion that can be used as a trackless tack coat.

[00:14:57] Speaker 00:
And lastly, both Pasquet and the Blackledge patents teach that the temperature susceptibility of the actual residual tack coat that's on the road is an important factor for providing that trackless feature.

[00:15:12] Speaker 00:
That last point, the fact that Pasquet does indicate in its disclosure that its residual tack coat should not be soft at temperatures below 70 degrees Celsius, is effectively the same exact teaching

[00:15:26] Speaker 00:
that the Blackledge patents set forth when they talk about softening point and pin values of the residual tack coat.

[00:15:33] Speaker 00:
The reason is because softening point is nothing more than a measurement of an asphalt's consistency at elevated temperatures.

[00:15:41] Speaker 00:
What you do when you're testing for a softening point of an asphalt is you're heating the asphalt to the point when it starts to deform.

[00:15:48] Speaker 00:
And that gives you the softening point.

[00:15:50] Speaker 00:
It tells you when it starts becoming soft at elevated temperatures.

[00:15:53] Speaker 00:
So when PASCA indicates in its specification that the residual tack coat that is creating using its hard pin asphalt should remain hard at temperatures below 70 degrees Celsius, it is effectively saying the same thing that the Blackledge patents are saying when it's disclosing the end result softening point that one would want to achieve to have the trackless feature.

[00:16:19] Speaker 00:
The correlation between the starting input asphalt that you put into the emulsion and the residual tack coat properties, the Shell-Bittman handbook, which was advanced in the underlying proceeding, the asphalt manual, and the Gordillo reference, all three indicate that when you make an emulsion, the properties that you put into the emulsion, like the asphalt characteristics, are going to show up in the residual tack coat.

[00:16:48] Speaker 00:
That's something that all three references say that is typical and expected.

[00:16:52] Speaker 00:
That is something that both parties testing showed.

[00:16:57] Speaker 00:
It showed that the pin values of the starting asphalt that was used to make these experimental emulsions also had similar pin and softening point values after the emulsion was cured.

[00:17:12] Speaker 00:
Regarding cure time.

[00:17:13] Speaker 00:
The potty reference discloses that its hard pin asphalt emulsion that was used commercially as a track coat prior to these patents being filed cured within 30 to 60 minutes.

[00:17:25] Speaker 00:
And lastly, regarding storage stability.

[00:17:29] Speaker 00:
Both parties' experts acknowledge that a hard pen asphalt emulsion could be made storage table as of 2005.

[00:17:36] Speaker 00:
Dr. Alan James, who is the expert for the Petitioner and the Appellee Asphalt Products Unlimited, is one of the foremost experts in asphalt emulsion chemistry.

[00:17:48] Speaker 00:
He had worked at Axon Nobel for over 30 years.

[00:17:51] Speaker 00:
He testified that he himself had made hard pen asphalt emulsions that were storage table prior to 2005.

[00:17:59] Speaker 00:
We also have numerous references, Recasens, Potty, Duenos, that reported commercially usable storage stable emulsions in Europe prior to 2005.

[00:18:12] Speaker 00:
The notion that a hard pin asphalt emulsion, well, let me start over.

[00:18:19] Speaker 00:
The notion that these patents at issue invented the idea that you could create a hard pin asphalt emulsion as storage stable

[00:18:28] Speaker 00:
is a farce.

[00:18:30] Speaker 00:
There's nothing in the disclosure that tells you how to do it.

[00:18:32] Speaker 00:
And the reason is, and their own expert says, emulsion formulas already knew how to do it.

[00:18:38] Speaker 00:
The enablement of these patents at issue stands on the notion that one already knows how to create a storage stable hard pen asphalt emulsion.

[00:18:47] Speaker 00:
And when you compare Pasquet's teachings, which are substantially similar to the patents at issue, it's undisputed that Pasquet could also be enabled.

[00:18:58] Speaker 00:
If you're going to accept the principle that these patents are enabled, working on the principle that everyone already knew how to do it.

[00:19:06] Speaker 00:
With that, I'll answer any questions you have.

[00:19:09] Speaker 00:
Otherwise, I'll yield my time.

[00:19:11] Speaker 01:
Any questions?

[00:19:12] Speaker 01:
Thank you.

[00:19:21] Speaker 01:
Mr. Triggs.

[00:19:23] Speaker 02:
Yes, Your Honor.

[00:19:23] Speaker 02:
Thank you.

[00:19:24] Speaker 02:
I think you just heard Mr. Leishman tell you that

[00:19:28] Speaker 02:
According to the Scheldt-Bittman handbook, the input equals the output.

[00:19:32] Speaker 02:
That's exactly what our patent tells you.

[00:19:34] Speaker 02:
We're not teaching you.

[00:19:36] Speaker 02:
We're teaching you that the input does not tell you what the output is.

[00:19:40] Speaker 02:
You have to arrive at those two sets of properties, or you don't practice the art.

[00:19:46] Speaker 02:
And in terms of optimization, there's a materially limiting step.

[00:19:50] Speaker 02:
I'm moving quickly down.

[00:19:51] Speaker 02:
Materially limiting step in our patent, which

[00:19:54] Speaker 02:
stops the effect, for example, of Southwire.

[00:19:57] Speaker 02:
Why?

[00:19:57] Speaker 02:
Because we've got those rheological properties.

[00:20:00] Speaker 02:
There's three claims, but if you view it that way, the fourth limitation is the rheological properties.

[00:20:07] Speaker 02:
And we also heard that, as I told you before, the handbook tells you that with emulsions, they're very complicated.

[00:20:18] Speaker 02:
And you change one property, it's almost impossible to not change other properties.

[00:20:23] Speaker 02:
So this notion of, well, we know what our formula is, and that'll just come out at the other end is not it.

[00:20:28] Speaker 02:
And that's why no one was able to do a trackless tax code for all those years.

[00:20:32] Speaker 02:
They were focusing on what goes in and not what goes out.

[00:20:35] Speaker 02:
In terms of the hearsay, I'll give that up.

[00:20:38] Speaker 02:
But I'll tell you that I have another reason, respectfully.

[00:20:40] Speaker 02:
And that is that Rule 703 of the Federal Rules of Evidence would make this document, whatever it is, from Antoine, inadmissible because there's no description of the methodology used.

[00:20:53] Speaker 02:
He uses an internal test about which we know nothing.

[00:20:56] Speaker 02:
So if we don't know the methodology of evidence like this, rule 703 says it's not admissible.

[00:21:03] Speaker 02:
And that's not hearsay, because I think I've lost that one.

[00:21:05] Speaker 02:
But I'd like to bring that up as well.

[00:21:08] Speaker 02:
And one last thought.

[00:21:12] Speaker 02:
We taught you that you could use a hard pen and a soft pen.

[00:21:18] Speaker 02:
using medium and soft pens, so long as you adhere to the achieved tack coat rheological properties.

[00:21:25] Speaker 02:
And the last thing I'll leave you with, I think, is that you have to understand that once you know about these rheological properties, and you know that's critical and that you need to maintain them, as I told you, all the way to the end of the game when it's put on the road, then once you know those, you can work on limitation values and come to practice, come to the claims

[00:21:44] Speaker 02:
as they've taught you to come.

[00:21:46] Speaker 02:
Thank you.

[00:21:46] Speaker 02:
I have nothing else.

[00:21:47] Speaker 02:
Thank you, Your Honor.

[00:21:48] Speaker 02:
Thank you.

[00:21:49] Speaker 01:
Thank you both.

[00:21:50] Speaker 01:
The case is taken under submission.