[00:00:34] Speaker 04:
Our third case this morning is number 18-1810.

[00:00:40] Speaker 04:
Mouth Insulation Inc.

[00:00:42] Speaker 04:
versus Rock Rule International.

[00:01:00] Speaker 02:
Mr. Morrison.

[00:01:01] Speaker ?:
Yes.

[00:01:03] Speaker 02:
Good morning.

[00:01:06] Speaker 02:
May it please the Court.

[00:01:06] Speaker 02:
My name is Joshua Larson and I'm here today representing the Appellants, Knopf Insulation Inc.

[00:01:12] Speaker 02:
and Knopf Insulation SPRL.

[00:01:15] Speaker 02:
Your Honors, today we are asking the Court to reverse the decision of the Patent Trial and Appeal Board that held claims 16-22 of the 445 patent and claims 29-32 of the 347 patent to be unpatentable under Section 103.

[00:01:35] Speaker 02:
And Your Honors, the primary issue here with the board's decision is that it ultimately failed to enunciate in its decision a reason to combine the references at issue here.

[00:01:48] Speaker 02:
There's three prior art references, the Helbing reference, the Worthington reference, and the Wallace reference.

[00:01:54] Speaker 02:
And the board failed to articulate a reason that was both factually supported by the record as well as legally sufficient under this court's precedent.

[00:02:04] Speaker 02:
for what can constitute a motivation to combine prior art.

[00:02:09] Speaker 02:
The board's stated reason for combining the prior art was that it had similar disclosures.

[00:02:15] Speaker 02:
Specifically, the board asserted that the three references at issue taught similar reactions using similar components, particularly that the references each had the components necessary to engage in a Maillard reaction.

[00:02:31] Speaker 02:
which is a reaction that's common in baking.

[00:02:34] Speaker 02:
It's the same reaction that happens on the outside of bread when it's baked and it browns, forms the crust.

[00:02:40] Speaker 02:
That's one example, toasting marshmallows and actually the same reactions involved in... It's much too close to lunch for you to be doing this.

[00:02:46] Speaker 02:
The same reactions actually involved in when you have a suntan.

[00:02:50] Speaker 02:
The same reaction happens in your skin.

[00:02:54] Speaker 02:
What Kanoff came up with in this case was quite novel in the sense that it thought of applying this chemistry

[00:03:01] Speaker 02:
from the baking arts to the idea of using it as a chemical binder to bind together mineral fibers, particularly fiberglass, as a replacement for formaldehyde-based binders that had traditionally been used to create insulation that would be placed in the walls of a home or a business.

[00:03:19] Speaker 02:
The board found that all three references in this case disclosed the reactants necessary to engage in that reaction.

[00:03:28] Speaker 02:
None of those three references recognized that those reactants were present in a way that would actually engage in Maillard chemistry.

[00:03:36] Speaker 02:
All three references taught different types of reactions to create different types of binders.

[00:03:42] Speaker 01:
Just tell me if I'm wrong.

[00:03:43] Speaker 01:
I guess my recollection is that the board really didn't rely on any notion that people had the Maillard reactions in mind, but rather that there were

[00:03:55] Speaker 01:
Those reactions would inevitably occur if certain steps were taken, and those steps were significantly enough overlapping between the two W references in Helbing, including the nature of the chemical reaction, that a skilled artisan would have had a reason

[00:04:22] Speaker 01:
the helbing process but with the inputs from the W references.

[00:04:30] Speaker 02:
Your Honor, I think that the board agreed that the references did not expressly teach Maillard chemistry.

[00:04:38] Speaker 02:
I don't think there's any dispute there.

[00:04:40] Speaker 02:
And I agree with you that it did rely on the supposed inherency of that process.

[00:04:46] Speaker 01:
For that proposition.

[00:04:46] Speaker 02:
For that proposition that because the reactants were present,

[00:04:50] Speaker 02:
And they were present together that even if there were other reactions taking place, and each of the references teach other types of chemistry, their disclosures are about different types of reactions, the sterification reactions, other types of polymerization.

[00:05:04] Speaker 02:
But the board found that because those three reactions that were needed for a Maillard reaction were present, some amount of Maillard chemistry would go on as a side reaction and that there would be some production of melanoidins.

[00:05:18] Speaker 01:
And you have a separate argument about a number of the claims about the amount of that.

[00:05:24] Speaker 01:
Correct.

[00:05:24] Speaker 01:
But that's not the argument you're making right now.

[00:05:26] Speaker 02:
No, correct, Your Honor.

[00:05:27] Speaker 02:
I've begun with the overarching argument that applies to all of the claims, which is just the motivation to combine the references being lacking.

[00:05:37] Speaker 02:
There's a couple of issues with the board's finding, Your Honor.

[00:05:39] Speaker 02:
The first is that even if the

[00:05:43] Speaker 02:
that the Maillard reaction is inherently present.

[00:05:47] Speaker 02:
We've disputed that, but even assuming that that were true for the sake of argument.

[00:05:51] Speaker 02:
There's no findings by the board that a person of skill in the art would have appreciated that from the teachings of the reference.

[00:05:59] Speaker 02:
And as this court found in par pharmaceuticals, what's unknown cannot be the basis for obviousness.

[00:06:06] Speaker 02:
If the Maillard reaction is inherently present as a side reaction of these references,

[00:06:12] Speaker 02:
but was unknown to the person of skill and the art, that can't provide the motivation to the person of skill for combining because it's unknown.

[00:06:21] Speaker 02:
So the board is relying on a allegedly inherent reaction with no evidence that would have been appreciated at the time of the invention that that was present in these references and saying that that's the motivation why a person of skill and the art would have combined.

[00:06:36] Speaker 02:
But the person of skill and the art had no awareness of that.

[00:06:39] Speaker 02:
There's no evidence in the record

[00:06:41] Speaker 04:
что человеку Скилу бы предпочитал предпочитать предпочитать предпочитать предпочитать предпочитать предпочитать предпочитать предпочитать предпочитать предпочитать

[00:07:11] Speaker 04:
and as a matter of collateral estoppel, these cross-appeal claims ought to fall because of the other proceeding.

[00:07:19] Speaker 02:
Yes, Your Honor, I'd be happy to address that.

[00:07:21] Speaker 02:
So the cross-appeal concerns the other claims from the re-exam, not the ones I've been discussing, but claims 1 through 15 of the 445 and then 1 through 28 of the 347, which the examiner and the board found to be allowable and patentable.

[00:07:39] Speaker 02:
And the cross-appellant, Rockwell, has appealed

[00:07:41] Speaker 02:
that decision.

[00:07:44] Speaker 02:
First, Your Honor, I'd just like to note that we have challenged Rockwell's standing.

[00:07:48] Speaker 02:
Yeah, we'll get to that.

[00:07:50] Speaker 04:
I understand that.

[00:07:50] Speaker 04:
We'll give you time to address that, but let's assume for the moment standing.

[00:07:55] Speaker 04:
What's wrong with the suggestion that there's a serious collateral estoppel issue here?

[00:07:59] Speaker 02:
Yes, Your Honor.

[00:08:00] Speaker 02:
So moving to the collateral estoppel issue, the issue is that one of the prerequisites for collateral estoppel is not present, which is that it has to be the same issue that was previously litigated.

[00:08:11] Speaker 02:
And I think both parties agree on the law that that's a requirement and that under this Court's precedent that looks at whether there are material differences between the claims.

[00:08:22] Speaker 02:
Rockwell made no attempt to point out or analyze what those differences were until its reply or surreply brief in this case.

[00:08:31] Speaker 02:
But they have eventually come forward in their last brief before this argument by saying that they believe the claims are narrower because the

[00:08:42] Speaker 02:
As we pointed out in our reply, there's a difference in the transitional phrases, both in between the preamble and the body as well as within the body.

[00:08:49] Speaker 02:
The claims previously held invalid by the board and by this court, or unpatentable, used comprising or including as open-ended transitions in terms of what the binder reactants could involve, that the binder reactants comprised certain things, comprised an acid, an amine, and a carbohydrate.

[00:09:11] Speaker 02:
The claims at issue, in this case that the Board affirmed, used a consisting essentially of language, which is narrower, it's partially closed, it excludes other components, as Your Honors know, that would affect the properties of the reaction.

[00:09:26] Speaker 03:
But didn't the Board say that it was going to treat that the same because there wasn't a basis to make that change?

[00:09:35] Speaker 02:
The examiner said that, Your Honor, that the examiner was going to treat that as similar to comprising or not give it a narrow meaning.

[00:09:44] Speaker 02:
Knopf did dispute that with the examiner, responded to that and disagreed with that construction.

[00:09:50] Speaker 02:
But ultimately those claims were allowed for other reasons based on other limitations that were present, particularly some molar ratios of certain components.

[00:09:59] Speaker 02:
And so that issue then never got further addressed.

[00:10:02] Speaker 01:
Is the estoppel argument that Rockwell makes here one that it could make in a still pending proceeding in the PTO?

[00:10:12] Speaker 02:
Yes, Your Honor, and in our view that would be the proper resolution of this.

[00:10:16] Speaker 02:
I mean, we do think that the appeal should be dismissed for standing, but ultimately what will happen

[00:10:20] Speaker 02:
Your Honor, this is going to go back to the PTO after this case.

[00:10:24] Speaker 02:
The PTO has already indicated in the re-exam certificates that from the ex parte re-exams that have been fully adjudicated that it is keeping the issues open in this inter partes re-exam and does plan to revisit those once the case returns to it.

[00:10:41] Speaker 02:
So the PTO has indicated in those certificates that says there is still these inter partes re-exams pending.

[00:10:48] Speaker 02:
We are going to reconsider claims that come out of that.

[00:10:50] Speaker 02:
They are going to need to be narrower than what was disallowed in the ex parte case.

[00:10:56] Speaker 02:
We believe the claims that have been allowed here are narrower.

[00:10:58] Speaker 02:
But ultimately, that's going to be something that the PTO has not yet addressed.

[00:11:02] Speaker 02:
It will address on remand after the case returns to it.

[00:11:06] Speaker 02:
And ROC will have the full opportunity to respond to any filings we make and to contest that issue in front of the PTO.

[00:11:14] Speaker 04:
So the only issue here is whether we should be deciding the collateral stopple issue.

[00:11:19] Speaker 04:
We're leaving it to the PTO.

[00:11:20] Speaker 02:
Yes, Your Honor, and in our view, it would be entirely proper to leave it for the PTO to decide in the first instance.

[00:11:25] Speaker 02:
This issue hasn't been addressed by the lower body, and this court, you know, is a court of review to review that.

[00:11:31] Speaker 02:
It's proper for it to head back down, let the PTO examine that issue, let both parties be fully heard on it, and then if necessary, the court, the board will decide that, and it may come back to the court if that's, if either side is dissatisfied.

[00:11:47] Speaker 02:
that's the proper procedure for both parties to be fully heard.

[00:11:51] Speaker 04:
And so the standing issue wouldn't make any difference in terms of the PTO's consideration of the Clarell-Lost Opel issue?

[00:11:58] Speaker 02:
Correct, Your Honor.

[00:11:59] Speaker 02:
Yeah, the appellee in this case will not need to have standing to participate at the PTO because of the Article 1 status of that body.

[00:12:10] Speaker 02:
And if I may, Your Honors,

[00:12:13] Speaker 02:
I just want to briefly address a point Judge Taranto raised earlier.

[00:12:17] Speaker 02:
In addition to the arguments in our appeal that we've already discussed, there are a number of claims that have limitations that we feel were never addressed properly by the PTO.

[00:12:28] Speaker 01:
Do I understand?

[00:12:29] Speaker 01:
Just tell me if this summary is correct.

[00:12:33] Speaker 01:
There are five or six claims in which, one of which talks about above an impurity level, a board

[00:12:42] Speaker 01:
Others talk about other things.

[00:12:44] Speaker 01:
Substantially, substantially all, a majority of melanoidin-based, I think, are the different terms.

[00:12:52] Speaker 01:
And the board said your expert, Stamson?

[00:12:58] Speaker 01:
Hamson, your honor.

[00:12:59] Speaker 01:
Hamson, sorry.

[00:13:01] Speaker 01:
Hamson said nothing more than above the impurity level.

[00:13:07] Speaker 01:
Take it your point is if you read the next sentence actually he went on to say more than that and so the board's decision on that simply cannot stand except as to the single claim of that group that is limited to being at the above the impurity level correct your honor I think that's an accurate summary I would add that yes the the board failed to engage in a proper interpretation of the claims that have other language in them things like you mentioned of

[00:13:34] Speaker 02:
substantially all of the polymer that binds the matter of fibers being made of melanoidins and a majority of the fibers being bound by melanoidins.

[00:13:43] Speaker 02:
Things that require, each of these claims is different, so I don't want to... And haven't been construed.

[00:13:49] Speaker 02:
They haven't been construed, except to the extent that the board kind of implicitly construed them as all just meaning something greater than an impurity level, which is what I believe the appellees argued in defense of the board's decision.

[00:14:00] Speaker 02:
To the extent that was the board's implicit construction, that can't be correct with the different claim language that was presented, as well as Dr. Hampson's explanation of what the different meanings and how those were supported by the patents in his declaration.

[00:14:16] Speaker 02:
And the last point I'll make too, Your Honor, is with regard to the inherency point is we think there's a claim interpretation issue there, but also

[00:14:23] Speaker 02:
The Board's analysis on inherency there is even more flawed than just generally finding that some amount of melanoin would be present, because they've jumped all the way from the side reaction that's not mentioned, not discussed, not appreciated in any of the prior art, all the way to the idea that you're going to be having binders where a majority or substantially all of the binder is made of this unappreciated material from the prior art.

[00:14:50] Speaker 02:
they got there by saying that well there's a substantial amount of reactions or reactants present in the references but your honor we'd submit that that's not enough because it fails to account for

[00:15:01] Speaker 02:
all of the other reactions that are taught in those references that would be competing, and we submit out competing any potential side reaction that was unknown and unappreciated of Maillard chemistry to produce melanoidins.

[00:15:14] Speaker 02:
So jumping to the conclusion that 90% or 50% of the binder would be made up of the substance, which is never even mentioned in the prior art, clearly goes beyond... Well, they didn't say that anyway, right?

[00:15:27] Speaker 02:
I'm sorry, Your Honor.

[00:15:28] Speaker 02:
They didn't say that anyway.

[00:15:30] Speaker 02:
They didn't use those numbers.

[00:15:32] Speaker 02:
They did not use those numbers, but the claim language that we have... I understand, I understand.

[00:15:37] Speaker 02:
Thank you, Your Honors.

[00:15:38] Speaker 02:
I'll reserve the rest of my time for... Well, we'll give you two minutes for rebuttal.

[00:15:41] Speaker 02:
Thank you.

[00:15:43] Speaker 02:
Mr. Holloway?

[00:15:49] Speaker 00:
May it please the court.

[00:15:50] Speaker 00:
I'll begin with the idea that the board failed to articulate motivation to combine here.

[00:15:55] Speaker 00:
And I would note that council started by saying they failed to do it, but then shifted and said they failed to rely on NAF's facts as to whether a person of ordinary skill in the art would have combined the references.

[00:16:07] Speaker 00:
Knopf on appeal does not dispute three important things.

[00:16:11] Speaker 00:
First, that Worthington and Wallace teach creating a binder

[00:16:16] Speaker 00:
of the same ilk that is claimed in the claims at Barr through use of a Maillard reaction, even though those references don't say Maillard reaction, starting with the same materials that the claims at Barr start with.

[00:16:30] Speaker 00:
So they all start with the ammonium salts of a carboxylic acid, you react it with a reducing sugar, and you get a formaldehyde free binder.

[00:16:37] Speaker 04:
Okay, but the problem is that all they said was that these

[00:16:42] Speaker 04:
references were similar.

[00:16:46] Speaker 04:
They didn't say there would be a motivation to combine them, right?

[00:16:47] Speaker 00:
Respectfully, Your Honor, appendix pages 28 to 29, the way the board couched this was it came to the board on a different rejection, and the board instituted a new ground.

[00:17:02] Speaker 00:
And the way they did that was to make a long list of factual findings about the references.

[00:17:08] Speaker 00:
And then at pages 28 to 29,

[00:17:11] Speaker 00:
They shift to describing how you would combine these references together.

[00:17:16] Speaker 00:
And the obviousness law about why or how the references should be combined is laid out there.

[00:17:21] Speaker 00:
You would look at the claim here.

[00:17:23] Speaker 00:
The problem to be solved is a formaldehyde free binder.

[00:17:28] Speaker 00:
Wallis and Worthington both teach formaldehyde-free binders for bulk material.

[00:17:34] Speaker 00:
So you don't need more of a statement of a reason to motivate to combine.

[00:17:38] Speaker 00:
You're doing the same things in the Worthington and Wallis references as you are in the claims at issue.

[00:17:45] Speaker 03:
Helbing comes in... But not with respect to glass fibers.

[00:17:48] Speaker 00:
Helbing comes... Right where I was going, Judge Lin.

[00:17:51] Speaker 00:
Helbing is a formaldehyde-free binder for fiberglass fibers.

[00:17:58] Speaker 00:
And the difference between Helbing and the 2W references, as Judge Toronto put it, is it still describes starting with the same starting materials, except that Helbing refers to the reducing sorter in its genus form as a polyhydroxide.

[00:18:15] Speaker 03:
Isn't that a significant question?

[00:18:20] Speaker 03:
The genus is enormous.

[00:18:23] Speaker 00:
The genus can't be anticipatory, but when you have a genus that's described as polyhydroxy, as big as the genus could be, you then look at Worthington and Wallace, which are at the same problem, formaldehyde-free bulk binders, starting with the same two materials reacting in ammonium

[00:18:40] Speaker 00:
salt of a polycarboxylic acid with a species of polyhydroxide reducing sugar.

[00:18:47] Speaker 00:
So it's not a leap to take the express reactions of the 2W references and plug it into a genus of one of three reactants that are expressly described in Helbing.

[00:19:00] Speaker 00:
And that's the analysis at appendix 28 to 29.

[00:19:06] Speaker 03:
That conclusion, it seems to me, to be entirely based on hindsight appreciation for the fact that if you make that kind of a combination, you might come up with something.

[00:19:21] Speaker 03:
There's nothing I see in helbing that suggests at all that you select from this enormous genus the sugar that would result in a Maillard reaction.

[00:19:36] Speaker 00:
Your Honor, I would agree, and I think that's why Appendix 28 to 29, the board doesn't start with Helbing.

[00:19:41] Speaker 00:
And this court's law is pretty clear.

[00:19:43] Speaker 00:
We don't really care what we consider a primary reference or a secondary reference.

[00:19:47] Speaker 00:
The question is, on the table in the bench in front of the person of skill and the art, they've got Worthington and Wallace, which are formaldehyde-free binder of the exact reactions that are at the claim here.

[00:19:59] Speaker 00:
That's not disputed.

[00:20:00] Speaker 00:
They argue there's other stuff there, and we can come back to that.

[00:20:03] Speaker 00:
But they don't dispute that that reaction is taking place and is taught by those references.

[00:20:07] Speaker 00:
And as Your Honor pointed out, the only thing missing is that it's not put on fiberglass.

[00:20:12] Speaker 00:
So what Helbing is offering you is the same categories of reactions to create the claimed binder.

[00:20:20] Speaker 00:
You don't need to then start with the genus to find the species.

[00:20:24] Speaker 00:
Worthington and Wallace teach you the species.

[00:20:27] Speaker 00:
All Helbing is doing is expanding on the applicable use.

[00:20:31] Speaker 00:
Worthington and Wallace aren't fiberglass.

[00:20:33] Speaker 00:
Helbing is.

[00:20:34] Speaker 00:
So you could plug the reactions that are specific in the 2W references into the genus reaction of Helbing and its intended use for formaldehyde-free fiberglass binders.

[00:20:46] Speaker 04:
Could you address the cross-appeal issue?

[00:20:49] Speaker 04:
Is it the case that

[00:20:50] Speaker 04:
For example, even if we held that you had no standing here on the cross appeal, that the PTO is still going to do what you'd like to have done, and that is to consider the collateral estoppel issues.

[00:21:03] Speaker 00:
The basis of the appeal is to make sure the PTO gets it right, and because it's a legal issue, we can ask this court to do it.

[00:21:09] Speaker 04:
Yeah, but I don't think you're answering my question.

[00:21:13] Speaker 04:
Let's assume that we're not going to decide the collateral estoppel issue, that we think that the PTO ought to decide that in the first instance.

[00:21:21] Speaker 04:
Is there any difference between our saying you lack standing and this is going to happen anyway as a result of the PTO's own determination and our saying that we do have standing and we're going to require them to do it?

[00:21:36] Speaker 00:
No, Your Honor.

[00:21:37] Speaker 00:
I mean, it's not like Rockwell can lose the collateral estoppel issue because I brought it up in the cross-appeal and this court either passes on it or says,

[00:21:47] Speaker 00:
pass is on it because of standing or passes on it because we think the P tab should address it first.

[00:21:52] Speaker 00:
Why do you have standing?

[00:21:54] Speaker 00:
The statute says anyone that doesn't like what happened in the inner party's re-exam can make its appeal and this court's case law in

[00:22:05] Speaker 03:
But the statute may say that, but you still need standing to come to an Article III court.

[00:22:09] Speaker 00:
Correct, Your Honor.

[00:22:10] Speaker 00:
And that's the Bailey v. Dart case at 292 F.

[00:22:13] Speaker 00:
3rd at 1362.

[00:22:14] Speaker 00:
This court is held that a party seeking to look to expand or contract its rights from the same proceeding can do so in a cross-appeal.

[00:22:21] Speaker 03:
Yeah, but that's the basis for a cross-appeal or simply requesting an alternate ground of affirmance that has nothing to do with standing.

[00:22:31] Speaker 00:
Respectfully, Your Honor, I'm looking to, we have indicated by taking the cross appeal that we intend to fight the issue that the already invalidated ex parte claims should take the place of the currently allowed interparties reexamination claims that we asked the PTO to merge three years ago.

[00:22:50] Speaker 01:
I'm sure you're aware.

[00:22:51] Speaker 01:
We've now had about a half a dozen cases.

[00:22:54] Speaker 01:
These days we get the other kinds of IPRs, the interparties reviews.

[00:22:59] Speaker 01:
And we've said repeatedly that the fact that you put a lot of litigation resources into fighting something in the PTO, if you're the challenger, does not itself mean that you have standing to come here.

[00:23:13] Speaker 01:
And when standing is challenged, you actually need to come forward with evidence in the form of declarations or the like that says, here's why we as a company have a stake in this and you didn't.

[00:23:26] Speaker 00:
Again, respectfully, Your Honor, back to what Judge Dyke had said.

[00:23:29] Speaker 00:
We understand that this issue is something we could take at PTAB.

[00:23:35] Speaker 00:
We asked in the cross-appeal for it to be addressed on the basis that it was a legal issue that we thought this court could address.

[00:23:41] Speaker 00:
Because we are not coming forward and articulating that we think we're going to get sued or any of the other reasonable apprehension issues that the cases that Your Honor has brought up from the other IPR context, that's fine.

[00:23:53] Speaker 00:
We'll take our fight back to the PTAB.

[00:23:55] Speaker 00:
Rockwell has tried to merge these proceedings to avoid this problem.

[00:24:02] Speaker 00:
Us bringing the cross appeal is our last attempt to get that relief that we've been trying to accomplish.

[00:24:09] Speaker 01:
Can I ask you about the set of the narrower argument that

[00:24:17] Speaker 01:
now makes the one about the half dozen or so claims involving words like substantially or substantially all a majority.

[00:24:26] Speaker 01:
Why is it not right to say that the board simply misread what Dr. Hampson said and which would cover one of the claims the one about being above a impurity level but didn't

[00:24:44] Speaker 01:
otherwise have a basis for saying that these other claim elements in the other claims are met.

[00:24:51] Speaker 01:
It didn't construe what substantially or substantially all or majority meant, and it didn't recognize that there was a factual assertion in paragraph nine of his declaration.

[00:25:03] Speaker 01:
This is at 2224.

[00:25:05] Speaker 00:
Your Honor, the way I think the board approached this at appendix 51 and 52

[00:25:11] Speaker 00:
is to consider Knopf's arguments that the group of these claims, whether you word it as above impurity level or you say substantially all, because substantially all is the language addressed in appendix 51 and 52, is there's nothing in these specifications to support a lower quantity limit to something like substantially all or above impurity level.

[00:25:36] Speaker 00:
Knopf wants this to be a claim construction issue and submitted a declaration considered along with the specification and in appendix 51 and 52 the board made a factual finding that there's nothing in record to support giving a lower quantity limit to substantially all.

[00:25:54] Speaker 00:
So it was pages what?

[00:25:56] Speaker 00:
Appendix 51 and 52 your honor.

[00:26:01] Speaker 00:
And so if we make this a true claim construction challenge

[00:26:05] Speaker 00:
Before the board said that substantially all has a number to it, that Rockwell's evidence is insufficient, then under this court's decision in Teva, and subsequent to that, the factual findings by the board get deference as to whether the claim of substantially all should be construed as having some lower number or anything above impurity level, because that's what

[00:26:32] Speaker 00:
That's what the declaration says.

[00:26:34] Speaker 00:
And so if you read the declaration in line with the spec, you don't get a lower number.

[00:26:39] Speaker 00:
So how is the board going to give a broadest reasonable interpretation of some number, or even give weight to substantially all when it's not supported?

[00:26:53] Speaker 00:
And the board's factual findings, I mentioned 51 to 53, they also revisited this

[00:26:59] Speaker 00:
in a request for rehearing at appendixes page 62 to 66.

[00:27:03] Speaker 00:
That entire four pages is addressed at this issue of factual consideration and then the legal implications of what substantially all should mean and the evidence of the record, which is nothing, as to how much that amount would be.

[00:27:18] Speaker 00:
Therefore, it was proper to say, even though the claim languages have things like substantially all, if the prior art teaches it at above impurity levels, it's teaching it for these claims.

[00:27:30] Speaker 00:
The last issue I would address in similar fashion, Judge Toronto, is consisting essentially of.

[00:27:39] Speaker 00:
Knoff said that the examiner, counsel just said that the examiner made that decision.

[00:27:44] Speaker 00:
It was also made by the board at appendix 17 through 18.

[00:27:47] Speaker 00:
Again, remember, the board wrote the first version of this rejection.

[00:27:51] Speaker 00:
This was not one that started with the examiner and then went to the board.

[00:27:54] Speaker 00:
It started with the board, went back to the examiner,

[00:27:57] Speaker 00:
And the board reaffirmed it when it came back to the board at Appendix 51.

[00:28:00] Speaker 00:
And what the board has said is that consisting essentially of, in this context, does not get the limiting treatment.

[00:28:09] Speaker 00:
It adds nothing of patentable subject matter from the specification over what's found in the prior art.

[00:28:14] Speaker 00:
Therefore, we're going to read it as comprising.

[00:28:20] Speaker 00:
Unless there are other questions, I think I've covered.

[00:28:23] Speaker 04:
OK.

[00:28:23] Speaker 04:
Thank you, Mr. Noller.

[00:28:25] Speaker 02:
Mr. Larson, you have two minutes.

[00:28:29] Speaker 02:
Your Honours, unless there's any questions from the bench, we're happy to stand on the argument that's been submitted.

[00:28:34] Speaker 02:
Okay, thank you.

[00:28:36] Speaker 02:
Thank you.