[00:00:32] Speaker 03:
Okay, the next argued case is number 18, 1773, in Ray Houston, Mr. Coles.

[00:00:49] Speaker 01:
If you please record, Your Honors, the Board affirmed an anticipation rejection based on the reference of Thacker.

[00:01:00] Speaker 01:
The ultimate question here seems to be, is there substantial evidence in the rule record that supports the anticipation rejection?

[00:01:12] Speaker 01:
If I can, just briefly let me touch on what I consider to be the relevant portions of the claims.

[00:01:19] Speaker 01:
This is an oral realization process for treating rule leachate, where the leachate contains suspended solids

[00:01:31] Speaker 01:
The idea is to aerosize the leachate and the suspended solids and to send them over a solids collection area where the suspended solids fall out onto the solids collection area.

[00:01:53] Speaker 01:
Now, that pertains to claims 8 and 15.

[00:01:57] Speaker 01:
Claim 18 says that the solids

[00:02:00] Speaker 01:
collection area is the landfill.

[00:02:06] Speaker 02:
So what you're relying on, it seems to me, almost entirely the idea that Thacker discloses one micron particles.

[00:02:19] Speaker 02:
But in fact, if we were to read Thacker as disclosing larger particles, why wouldn't that be a problem for your argument?

[00:02:30] Speaker 01:
What Thacker does, he takes out all of the particles that are one micron and above.

[00:02:40] Speaker 02:
No, because the claims of Thacker contemplate performing only the first step without getting to the filtration step.

[00:02:48] Speaker 02:
There are two steps in Thacker.

[00:02:51] Speaker 02:
And if you look at the claims in Thacker, some of the dependent claims make clear that Thacker

[00:02:59] Speaker 02:
is addressing also a situation in which the particles are greater than one micron.

[00:03:04] Speaker 02:
Isn't that correct?

[00:03:06] Speaker 01:
Your Honor, I don't see that in Thacker.

[00:03:12] Speaker 01:
What I see in Thacker is that they have one micron of filters that

[00:03:21] Speaker 01:
filter all of this suspended solids.

[00:03:25] Speaker 02:
That's true, that's one embodiment, but Thacker also involves situations where that filtration step is left out.

[00:03:37] Speaker 02:
It discloses a system in which there's no filtration step.

[00:03:41] Speaker 02:
That's part of the claims.

[00:03:48] Speaker 01:
I think it's possible to

[00:03:50] Speaker 01:
draft a broad claim that is not supported, you know.

[00:03:55] Speaker 01:
But in terms of the basic teachings of Tucker, it seems to me and to my client, the idea is that these suspended solids have to be removed.

[00:04:11] Speaker 01:
And they will remove all of them down to one microal.

[00:04:16] Speaker 02:
Let me look at Paige.

[00:04:19] Speaker 02:
301 of the appendix, claim three of Thacker covers a situation in which the solids are greater than about one micro.

[00:04:37] Speaker 02:
So if that's the dependent claim, the independent claim must be broader in which that step isn't performed.

[00:04:58] Speaker 01:
I'm sorry, Your Honor.

[00:04:59] Speaker 02:
301.

[00:05:01] Speaker 02:
It's our dependent.

[00:05:02] Speaker 01:
Which Claim 3?

[00:05:03] Speaker 02:
3.

[00:05:10] Speaker 02:
And then Claim 2 is a dependent claim where the second step, that is the sand filter, is performed, suggesting again that the first claim is broader than that and doesn't require performance of the second step.

[00:05:26] Speaker 01:
If I read...

[00:05:28] Speaker 01:
clean threeses, wherein the raw legit is filtered to remove all suspended solids, having an average diameter of greater than one millimeter.

[00:05:38] Speaker 02:
Right.

[00:05:38] Speaker 02:
That's correct.

[00:05:39] Speaker 02:
So if that's the dependent claim, the independent claim must include something in which that additional step doesn't take place.

[00:05:48] Speaker 01:
You know, for an anticipation analysis, I'm not familiar with authority

[00:05:56] Speaker 01:
that can look at the scope of the claim.

[00:05:59] Speaker 01:
And if the scope is broader than what the reference discloses, you use that in anticipation analysis.

[00:06:10] Speaker 01:
I'm just not familiar with that.

[00:06:14] Speaker 01:
But in any event, there are some claim construction issues in this case.

[00:06:21] Speaker 01:
And one of the claim construction issues is,

[00:06:25] Speaker 01:
or there's a solid collumension area.

[00:06:28] Speaker 01:
That term was effectively defined and construed in the original prosecution.

[00:06:35] Speaker 01:
It's a designated area.

[00:06:38] Speaker 01:
In other words, it's a marked area or a signed area.

[00:06:41] Speaker 01:
And the board also construed an algorithm to say, this requires particular

[00:06:55] Speaker 01:
material to be suspended in air and directed to a particular location.

[00:07:04] Speaker 01:
It seems to me that the director's position and the position of the board is that there was a modeling exercise factor where they modeled it.

[00:07:18] Speaker 01:
And they said at 45 meters out from the atomizers,

[00:07:26] Speaker 01:
that this is safe in terms of air pollution.

[00:07:29] Speaker 01:
I think in terms of the safety of threshold set by the WHO, it says it was safe.

[00:07:39] Speaker 01:
And it's based on this that it appears that the examiner and the board construed that to mean that that would be substantial evidence that there are suspended solids

[00:07:54] Speaker 01:
aerosolized in the stacker and directed to a designated solids collection area.

[00:08:02] Speaker 01:
And I believe that there is a huge gap between that.

[00:08:06] Speaker 01:
I do not believe that's relevant evidence of delivering suspended solids to a solids collection area.

[00:08:23] Speaker 01:
I think it's based on speculation and assumption, and I'd like to tell you why I believe that.

[00:08:31] Speaker 01:
It is clear there was an issue of really what constitutes a suspended solid.

[00:08:38] Speaker 01:
And the examiners were able to convince the board that a suspended solid could go down to 0.7 microns.

[00:08:50] Speaker 01:
So if we are correct,

[00:08:53] Speaker 01:
And Thacker is removing 1-micron solids and all about that.

[00:08:58] Speaker 01:
The only thing that is left that could possibly be a suspended solids is those that are 0.7-micron up to 1, if that is right.

[00:09:08] Speaker 01:
And for the anticipation argument to stick and have traction, it seems to me

[00:09:22] Speaker 01:
that you have to assume.

[00:09:25] Speaker 01:
You have to assume that there were, in fact, microns of suspended solids that small that reached the atomizer.

[00:09:34] Speaker 01:
I don't think that you can assume that.

[00:09:37] Speaker 01:
It looks like that my time is up.

[00:09:39] Speaker 01:
I'd like to reserve some time for rebuttal.

[00:09:42] Speaker 01:
If there's no questions.

[00:09:44] Speaker 03:
No, not at the moment.

[00:09:45] Speaker 03:
All right, we'll save the rest of your time.

[00:09:58] Speaker 03:
Ms.

[00:09:58] Speaker 03:
Silfin.

[00:09:59] Speaker 00:
Thank you.

[00:09:59] Speaker 00:
May it please the court?

[00:10:02] Speaker 00:
The issues in this case boil down to one dispute, which is where is Thacker's spray going?

[00:10:08] Speaker 00:
And that question is answered in Thacker's Figure 1, which indicates that the things inside the bottom outlined box are said.

[00:10:17] Speaker 02:
No, it's not true.

[00:10:17] Speaker 02:
It's just one question.

[00:10:19] Speaker 02:
There's the question of whether, on their assumption that Thacker only discloses particles below one micron, which I'm skeptical about.

[00:10:27] Speaker 02:
as to whether those particles would settle out in this area if they rely on this barren chart to suggest that they wouldn't.

[00:10:37] Speaker 02:
And they're saying that the board couldn't make the finding that it did in the light of the barren evidence, I guess.

[00:10:45] Speaker 00:
Well, it still comes down to where the spray is going, right, whether the solids are settling out in a designated area.

[00:10:56] Speaker 02:
And they're saying that they wouldn't settle out because they're too small.

[00:10:59] Speaker 00:
Right.

[00:10:59] Speaker 00:
And in addition to what you mentioned, Judge Dyke, there's also this problem that the spray that's coming out is not these dry particles.

[00:11:09] Speaker 00:
It's droplets that are bigger than the solids that are encased in them.

[00:11:14] Speaker 00:
So the bigger droplets don't necessarily follow the same principle that a one micron sized particle would follow.

[00:11:23] Speaker 00:
in terms of whether it can fall or not.

[00:11:27] Speaker 00:
Excuse me?

[00:11:28] Speaker 00:
They would settle out sooner.

[00:11:30] Speaker 00:
That's right.

[00:11:30] Speaker 00:
That's right.

[00:11:31] Speaker 00:
So it's not that this evidence that says that it might float for days if it were one micron means that these droplets might float for days.

[00:11:46] Speaker 00:
But on top of that, the reference certainly indicates that it is

[00:11:52] Speaker 00:
intending to have this effect where outside of a certain area, the air is clean and there aren't a lot of particles floating around.

[00:12:04] Speaker 00:
And it makes sense that you would want your spraying water that is contaminated into the air, you would want it to be sprayed over a landfill, not a neighborhood or park or something.

[00:12:22] Speaker 00:
If the court doesn't have any other questions, I'm happy to.

[00:12:25] Speaker 03:
Any questions for myself?

[00:12:27] Speaker 03:
No more questions?

[00:12:28] Speaker 03:
OK.

[00:12:28] Speaker 03:
Thank you, Ms.

[00:12:29] Speaker 03:
Silver.

[00:12:30] Speaker 03:
Thank you.

[00:12:34] Speaker 01:
Mr. Coates.

[00:12:37] Speaker 01:
Thank you, Your Honors.

[00:12:39] Speaker 01:
It is clear that the rector didn't have any qualms with our claim construction.

[00:12:47] Speaker 01:
But the problem here is that when they talk about the

[00:12:53] Speaker 01:
particle suspension 45 meters from the atomizers, that doesn't tell us anything about what's in the air.

[00:13:01] Speaker 01:
That doesn't tell us what size you are, what is the concentration.

[00:13:05] Speaker 01:
It doesn't even tell us what the threshold level is, you know.

[00:13:09] Speaker 01:
So I'm urging that that cannot be a basis for taking that and concluding that Thacker does what our claims call for.

[00:13:19] Speaker 01:
taking suspended solids in wastewater or legit aerosolism and directed them to a designated solids collection area.

[00:13:32] Speaker 01:
Now, let me turn a second to this question about the landfill.

[00:13:37] Speaker 01:
To the landfill, you know, this is a schematic drawing.

[00:13:42] Speaker 01:
It does not purport to give the landscape or the environment to the landfill

[00:13:49] Speaker 01:
has an arrow drawn from the backfielders, which is a residue.

[00:13:55] Speaker 01:
And that's the only thing in figure one that's going to the landfill.

[00:14:01] Speaker 02:
Well, except that the leachate itself is at the landfill.

[00:14:04] Speaker 02:
So the processing of the leachate probably is occurring at the landfill, right?

[00:14:11] Speaker 01:
Yes.

[00:14:12] Speaker 01:
The leachate is occurring at the landfill, and then it's put in the

[00:14:18] Speaker 01:
leachate pond.

[00:14:19] Speaker 01:
In an air client, it is put from the leachate pond or to a container container leachate where it's sprayed over the solids collection area.

[00:14:28] Speaker 01:
In Thacker, Thacker's atomizers serve one purpose.

[00:14:33] Speaker 01:
They're to evaporate that leachate.

[00:14:37] Speaker 01:
There would be no reason to put the atomizers on the landfill.

[00:14:43] Speaker 01:
They could be anywhere because the idea is to evaporate the

[00:14:48] Speaker 01:
And one of the arguments made in the director's brief was that if the air quality is safe, that must mean that the suspended solids have fallen out.

[00:15:06] Speaker 01:
Respectfully, that's wrong.

[00:15:08] Speaker 01:
What that means is that there were no suspended solids entered into the air, you know.

[00:15:14] Speaker 01:
It doesn't mean that they were falling out.

[00:15:16] Speaker 01:
The Thacker never talks about suspended solids falling out.

[00:15:20] Speaker 01:
Never.

[00:15:21] Speaker 01:
Not one time.

[00:15:22] Speaker 01:
The other important point here is even the board didn't have great confidence in relying on figure one.

[00:15:33] Speaker 01:
They dropped back and argued that a person of ordinary skill in the art would have an understanding that the Thacker atomizers would be placed on a landfill.

[00:15:45] Speaker 01:
And by the way,

[00:15:46] Speaker 01:
The board says, and the reason for doing that is that would assure that the adjoining land is not contaminated.

[00:15:56] Speaker 01:
Your Honors, that's an obviousness.

[00:15:58] Speaker 01:
That's an obviousness case.

[00:15:59] Speaker 01:
That can't be anticipation.

[00:16:02] Speaker 01:
And the other point is, and even the board was uncomfortable in relying on that.

[00:16:08] Speaker 01:
And they said, by the way, in the DACA, they talk about a prior process.

[00:16:16] Speaker 01:
where you irrigate over the landfill and re-inject.

[00:16:22] Speaker 01:
And what they said is that a person with ordinary skill in the art, knowing that particular prior art, would envision.

[00:16:31] Speaker 01:
These, now we get into those envision cases of kena metal, not a motor, that they could envision our client's claim of invention.

[00:16:41] Speaker 01:
Again, you cannot write a

[00:16:44] Speaker 01:
limitation out of the claim by saying it can be envisioned by a personal risk if the grounds is anticipation.

[00:16:53] Speaker 01:
This is an anticipation case, and I respectfully urge that the patent claims of this case are not anticipated.

[00:17:03] Speaker 03:
Thank you both.

[00:17:04] Speaker 03:
The case is taken under submission.

[00:17:06] Speaker 03:
And that concludes our argued cases for this morning.