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

[00:00:10] Speaker 02:
We have four cases on the calendar this morning.

[00:00:14] Speaker 02:
Three cases from the PCAB.

[00:00:16] Speaker 02:
A government employee case and a veteran's case, and the last will be submitted in the briefs and not be argued.

[00:00:30] Speaker 02:
Packers Plus Energy Services versus Baker Hughes, oil field operations 2018-1490, Mr. Cravey.

[00:00:43] Speaker 01:
Good morning, Your Honor.

[00:00:45] Speaker 03:
Do the parties agree claim one is representative for 1 through 20?

[00:00:50] Speaker 01:
No, Your Honor.

[00:00:51] Speaker 01:
1 through 20, yes, Your Honor, I do believe.

[00:00:53] Speaker 01:
With respect to the issues that are involved in this appeal, specifically the over the jetting passageway limitation, that is correct.

[00:01:00] Speaker 01:
Yes, Your Honor.

[00:01:03] Speaker 01:
With respect to claim 21, the board erred in relying exclusively on a non-existent limitation to uphold the validity of that claim.

[00:01:13] Speaker 02:
In fact, the parties agree... What's the non-existent limitation?

[00:01:17] Speaker 01:
The non-existent limitation was the over-the-jetting passageway limitation.

[00:01:21] Speaker 02:
But sealed was there.

[00:01:22] Speaker 01:
That's correct, Your Honor.

[00:01:23] Speaker 01:
Sealed.

[00:01:24] Speaker 02:
They're different?

[00:01:25] Speaker 01:
They are different, Your Honor, in that the parties actually agree that Claim 21 does not impose the same structural requirement that the other independent claims require, that is 1, 8, and 16.

[00:01:38] Speaker 01:
The parties agree that Claim 21.

[00:01:39] Speaker 02:
Don't they shut off flow?

[00:01:45] Speaker 02:
The covering?

[00:01:47] Speaker 02:
The covering limitation over the jetting essentially is covering, covering it up.

[00:01:53] Speaker 02:
And sealing, isn't that equivalent?

[00:01:56] Speaker 01:
Well, no, Your Honor.

[00:01:57] Speaker 01:
In that, well, they're equivalent in that they're directed to the same aspect of the invention.

[00:02:02] Speaker 01:
And that is sealing the fluid communication between the central passageway and the jetting passageway.

[00:02:08] Speaker 01:
Now, they use different terminology to describe that feature.

[00:02:12] Speaker 01:
Claim 21 expressly describes that feature, and that in a closed position, the shifting sleeve seals those two components, whereas claims 1, 8, and 16 use the phrase over the jetting passageway to connote that feature.

[00:02:28] Speaker 04:
But it's the same essential feature, is it not?

[00:02:32] Speaker 01:
It's the same essential feature in respect to the functional aspect, in that we're sealing the fluid communications between the central passageway

[00:02:41] Speaker 01:
and the jetting passageway.

[00:02:43] Speaker 01:
Now, the board went astray when it construed the over of the jetting passageway to impose a physical requirement.

[00:02:49] Speaker 01:
That is, when it rewrote the phrase over the jetting passageway to mean covering the jetting passageway.

[00:02:57] Speaker 01:
It's Packer's Plus position that the phrase over the jetting passageway connotes a functional relationship between the central passageway

[00:03:08] Speaker 01:
and the jetting passageway when the sleeve is in the closed position.

[00:03:10] Speaker 01:
That is, that it blocks fluid communications.

[00:03:13] Speaker 04:
With regard to 21, is there any way that the passageway could be sealed without it being covered?

[00:03:22] Speaker 01:
Well, yes, Your Honor.

[00:03:23] Speaker 01:
That's exactly what is shown in the Hutchinson-Surgeon Maja combination that was submitted to the board in Packer Plus's petition.

[00:03:33] Speaker 01:
In fact, even under Baker Hughes' physical combination of the two references, you see there that the sliding sleeve blocks fluid communication, yet it's not physically covering, it's not straddling the jetting passageways like the embodiments in the patent specification.

[00:03:53] Speaker 03:
Supposing we agree with you that there was error on 21, but we agree

[00:04:02] Speaker 03:
with Baker Hughes on its alternative grounds.

[00:04:05] Speaker 03:
Page 5 of your reply brief seems to imply that you think we could, at most, only vacate and remand the issue back for fact-finding.

[00:04:15] Speaker 03:
Am I correctly understanding your position?

[00:04:17] Speaker 01:
That's correct, Your Honor.

[00:04:18] Speaker 01:
That's the in Ray Lee decision.

[00:04:20] Speaker 01:
In fact, when the board said that, I'm sorry, where this court said it was powerless to substitute alternative grounds not relied on by the board

[00:04:27] Speaker 01:
to sustain the board's decision.

[00:04:29] Speaker 01:
That's correct.

[00:04:30] Speaker 03:
There is law to the contrary, though.

[00:04:36] Speaker 01:
Your Honor, I think that I didn't see any law to the contrary cited in Baker Hughes's brief.

[00:04:43] Speaker 01:
And in that NRA lead decision, this court cited the Supreme Court's chenry doctrine for that proposition.

[00:04:52] Speaker 01:
And even if, Your Honor, that assuming arguendo that there is, and I don't doubt you, that you perhaps found cases

[00:04:58] Speaker 01:
suggesting the other.

[00:04:59] Speaker 01:
I think in this case the appropriate remedy is in fact to vacate because the board committed other errors and specifically with respect to the over the jetting passageway limitation, even if we were going to assume that it imposed a physical limitation, the board's construction of covering was too narrow and certainly the board's

[00:05:18] Speaker 01:
interpretation of its covering construction was too narrow.

[00:05:22] Speaker 01:
As we pointed out in our briefs, the board construed its covering limitation as requiring the sleeve to physically cover the jetting passageway, that is straddle the jetting passageway.

[00:05:35] Speaker 01:
What the board effectively did was import the preferred embodiments from the specification into the claims.

[00:05:41] Speaker 03:
Picker 2 illustrates a partial cutaway of the assembly.

[00:05:45] Speaker 03:
and illustrates that when it's in its closed position, the shifting sleeve 22 straddles jet holes 23 and jet nozzles 24, right?

[00:05:59] Speaker 03:
And that embodiment, yes, sir.

[00:06:00] Speaker 03:
That indicates to me that over, quote that word, does mean more than just positioned above the jetting passageways.

[00:06:14] Speaker 01:
Well, the problem I have with that is that we know that the claims use different terminology than what the patentee used in the spec.

[00:06:22] Speaker 01:
The patentee chose to describe that configuration in figure two that you pointed to using the language attached to the housing and straddling.

[00:06:31] Speaker 01:
When it came time to claim, the patentee used a broader word.

[00:06:34] Speaker 01:
The patentee used the word over, not straddling.

[00:06:37] Speaker 01:
The patentee understood how to describe that configuration but didn't do so in the claim.

[00:06:42] Speaker 01:
The question is whether or not we're going to give some effect to the patentee's presumably intentional choice to use broader, different terminology than what was used in the patent specification.

[00:06:52] Speaker 01:
And I think here it's instructive to look at claim 21.

[00:06:56] Speaker 01:
Claim 21 doesn't recite any physical limitation on the position of the sliding sleeve with respect to the jetting passageways.

[00:07:05] Speaker 01:
So what that tells me is that the patentee did not view that specific physical configuration that's described in the spec to be a key aspect of the invention because it's absent from claim 21.

[00:07:18] Speaker 01:
In fact, the parties agree that that feature is not present in claim 21.

[00:07:25] Speaker 01:
So standing back, we know that claim 21 is, in fact, broader

[00:07:30] Speaker 01:
than the specific embodiments described in the patent specification.

[00:07:34] Speaker 03:
Let's talk about Claim 21 some more, because the parties heavily dispute how we should address the lack of individualized analysis.

[00:07:45] Speaker 03:
The PTAB says, I'm quoting from them, because the issues in dispute are essentially the same, we address the independent claims together.

[00:07:55] Speaker 03:
And despite the way both parties treat

[00:08:01] Speaker 03:
the issues surrounding claim 21.

[00:08:03] Speaker 03:
I'm not so sure that the PTAB was acting in such clear error and making its initial statement that I just quoted.

[00:08:11] Speaker 03:
I'm saying this because turning to Packard Plus's petition, even the claim chart for each element of claim 21 exclusively cross-references arguments already made with respect to claim elements for claims 1 and 16.

[00:08:31] Speaker 03:
And then Packers Plus says, and I'm quoting, claim 21 is a slightly reworded rendition of method claim 16.

[00:08:45] Speaker 03:
So taken together, it seemed to me that the PTAB was adhering at minimum to Packer Plus' request to treat claim 21 together with the other challenge claim.

[00:09:00] Speaker 03:
How do you respond to that?

[00:09:01] Speaker 01:
And there's a good reason for that, Judge Wallach.

[00:09:03] Speaker 01:
The reason for that is, if you read the petition and specifically the reply, Packers Plus was looking at these claims in terms of fluid communication.

[00:09:13] Speaker 01:
These would be the central passageway and the jetting passageway.

[00:09:16] Speaker 01:
And under that aspect, if the claims are properly construed to all be directed to fluid communication, and that is not imposing a physical requirement in the position of the sleeve, then they can be treated together.

[00:09:30] Speaker 01:
And under that, I think the Hutchinson and Sergio Maduro reference clearly shows a shifting sleeve that blocks fluid communication between the central passageway and the jetting passageway.

[00:09:43] Speaker 01:
And I think that's why, in the claim charts, you see the claims being argued together.

[00:09:50] Speaker 03:
So what you're saying is, if we disagree with you about 1 through 20, we need to send back 21.

[00:09:58] Speaker 01:
I think that's under in Rayleigh.

[00:09:59] Speaker 01:
I think that this court's of the proper remedy is to vacate and remand.

[00:10:04] Speaker 01:
But again, I think even if we were going to look at claims 1 through 20 as imposing a physical limitation on the positioning of the shifting sleeve versus the jetting passageway, I think it's appropriate for this court to give some effect to the patentee's use of different language in the claim.

[00:10:23] Speaker 01:
I think over is broader than straddle.

[00:10:26] Speaker 01:
I think if the patentee wanted

[00:10:28] Speaker 01:
In fact, none of the claims, not one single claim in the 838 patent uses the word straddle.

[00:10:37] Speaker 01:
Instead, they use the word over in these claims.

[00:10:39] Speaker 01:
And if the patentee had intended, as Baker Hughes is arguing, to limit this invention to the specific embodiments in the spec, the patentee could have used the word straddle.

[00:10:50] Speaker 01:
I mean, the specification shows the patentee understood how to describe that specific arrangement.

[00:10:57] Speaker 01:
There are several places in this specification where the patentee expressly says this disclosure and the specification should not be treated as limiting to these claims.

[00:11:08] Speaker 01:
I think a person of skill in the art, reading the spec, taking that experience.

[00:11:12] Speaker 02:
That's just standard boilerplate.

[00:11:14] Speaker 01:
Well, Your Honor, I know that this court has held that in different cases about standard boilerplate.

[00:11:19] Speaker 01:
But I think in this case, it's a little bit different.

[00:11:22] Speaker 01:
Here, in this case, focusing the court's attention specifically on APPX 54, column 2, lines 55 through 57, the patentee says, therefore, the described, there's a typo here, the described assembly and method of using the same to selectively stimulate producing zones in a well bore are meant to be illustrative and not limiting.

[00:11:50] Speaker 01:
This isn't the standard situation where a patentee just boilerplately says, hey, there's lots of other ways you can do this, and a person with skill in the art would know how to do it.

[00:11:59] Speaker 01:
And so you should hear the patentee's expressly saying, what I'm teaching you and showing you in the spec should not be treated as limiting on these claims.

[00:12:09] Speaker 01:
Taken together with a different use of over versus straddle, I think it should be given some effect.

[00:12:15] Speaker 03:
I don't want to let you sit down without asking you about this, because it matters to me.

[00:12:19] Speaker 03:
Packers Plus cites its expert testimony at appendix 325 to support its assertions as to Hutchinson disclosing tailpipe string.

[00:12:34] Speaker 03:
I want you to cite to surrounding expert testimony pages what's the expert's evidentiary basis for that conclusion.

[00:12:57] Speaker 02:
If it's not readily at hand, you might save your rebuttal time and come back with the answer.

[00:13:03] Speaker 02:
Sure.

[00:13:05] Speaker 01:
I would just say that I think the specific sites that we relied on in our petition and our declaration, we relied on our petition, we relied on APPX 96.

[00:13:14] Speaker 01:
And in our declaration, we relied on APPX 325, paragraph 51.

[00:13:20] Speaker 01:
And in our reply, we relied on APPX 976.

[00:13:24] Speaker 01:
And I think the big thing to take away from, there's two things to take away from the tailpipe string argument that Baker Hughes is advocating.

[00:13:31] Speaker 01:
One, the limitations that they want to inject into tailpipe string are specified in depending claims.

[00:13:39] Speaker 01:
That is, a packer, tubulars hung from a packer, that's in a dependent claim, and the open hole concept that

[00:13:47] Speaker 01:
that Baker Hughes wants to read in the tailpipe string is also specified in the dependent claim.

[00:13:52] Speaker 01:
So under the doctrine of claim differentiation, tailpipe string should not be so limited.

[00:13:57] Speaker 01:
But even stepping back from that, Baker Hughes' proposed construction of tailpipe is tubulars or other components extended below a packer.

[00:14:07] Speaker 01:
That's exactly what Hutchinson shows.

[00:14:10] Speaker 01:
It shows a cup-type packer in figure one, and tubulars and other components

[00:14:15] Speaker 01:
extending down into the well below the packer.

[00:14:18] Speaker 01:
So even under Baker Hughes's proposed construction from tailpipe string, they lose.

[00:14:24] Speaker 02:
We'll save the rest of your time for a puddle.

[00:14:26] Speaker 01:
Yes.

[00:14:29] Speaker 02:
Mr. DeProw.

[00:14:37] Speaker 00:
Good morning, and may it please the court.

[00:14:39] Speaker 00:
I'd like to start with addressing the Chenery argument that Packers Plus raises in its contention that there's not case law contrary to Lee.

[00:14:47] Speaker 00:
As an initial matter, the quote they rely on from Lee is taken out of context.

[00:14:51] Speaker 00:
In the cited portion of Lee, this court rejected the appellee's proposed alternative grounds, not because those arguments were an appropriate basis for the court to rule on necessarily, but because they were grounds that had never been raised before the agency.

[00:15:06] Speaker 00:
Ruling on those bases would have deprived the other party of an opportunity to respond.

[00:15:11] Speaker 00:
The court was declining to address them because it would have been an APA violation, not because it was a violation of Chenery.

[00:15:17] Speaker 00:
And in fact, this court has said on numerous occasions, one of the best examples in Enrique Comiskey, that Chenery permits this court and, in fact, counsels this court should affirm on alternative basis, as long as doing so doesn't require the court to make a factual finding.

[00:15:35] Speaker 00:
One of the primary reasons that Chenery itself advises for that is that it would be inefficient for this court to send a case back to the board to rule on an issue that is clearly within this court's purview to address and that rings particularly true in this case where without some guidance from the court on these legal issues that the board clearly erred on with respect to claim 21 a remand to the board would end up with a

[00:16:02] Speaker 00:
virtually the same result from the board.

[00:16:04] Speaker 00:
And we will be back here.

[00:16:05] Speaker 03:
Let me ask you about 21, since you've agreed with my positive statement regarding authority.

[00:16:14] Speaker 03:
I don't need it anymore.

[00:16:17] Speaker 03:
So did the parties below initially agree that claim 21 was nearly identical to the other claims on appeal?

[00:16:27] Speaker 00:
I think the parties agreed that the claims were similar.

[00:16:30] Speaker 00:
There were some different arguments that were made.

[00:16:31] Speaker 03:
What did Baker Hughes argue?

[00:16:34] Speaker 00:
So in Baker Hughes' patent owner response, Baker Hughes argued with respect to claim 21 or with respect to all the claims that the Hutchison-Surgeon-Motta combination doesn't disclose the tailpipe string as required by all the claims.

[00:16:48] Speaker 00:
We also argued that the Hutchison-Surgeon-Motta combination

[00:16:53] Speaker 00:
a person with skill in the art would not have been motivated to combine those references for a number of reasons.

[00:16:58] Speaker 00:
One is that the use of the cup-type Packers, which appear in the combination that Packers Plus asserted in its petition, would be inappropriate for use in an open-hole well borer.

[00:17:08] Speaker 03:
You're going to merits and alternative merits as well.

[00:17:13] Speaker 03:
But what I'm interested in is,

[00:17:15] Speaker 03:
What did you argue about whether or not the board should consider claim 21 separately or not?

[00:17:22] Speaker 03:
Did it even come up?

[00:17:24] Speaker 00:
I personally was not involved in the IPR.

[00:17:26] Speaker 00:
I have reviewed all the pleadings in that case.

[00:17:30] Speaker 00:
One distinction that was made in Baker Hughes briefing below is that Baker Hughes didn't present arguments relating to the over the jetting passageways limitation for claim 21 because that specific language doesn't appear in claim 21.

[00:17:41] Speaker 00:
So there was a lot of argument about

[00:17:43] Speaker 00:
what that limitation means in the context of 1, 8, and 16, and whether that limitation was present in the combination, that Baker Hughes didn't address that argument to claim 21, because that specific language doesn't appear in that claim.

[00:18:01] Speaker 03:
In its reply brief, Packers Plus argues that Baker Hughes focuses on cup-type Packers and is misplaced.

[00:18:10] Speaker 03:
They say because your expert admitted

[00:18:13] Speaker 03:
the few types of Packers that a person of skill would have used with a multi-zone simulation tool were all known prior to the patent filing date.

[00:18:23] Speaker 03:
What's your best response about how we should treat type Packers?

[00:18:28] Speaker 00:
Your honor Packers Plus did not assert a combination in its petition in which the cup type Packers of Hutchison were removed.

[00:18:36] Speaker 00:
In fact, they stated repeatedly

[00:18:37] Speaker 00:
that the only modification to Hutchison and Sergeant Mata in that combination would be to replace or substitute, is the language that they used, Hutchison's annular chamber with Sergeant Mata's jetting nozzles and jetting passageways.

[00:18:53] Speaker 00:
They said nothing about whether you would replace the cup-type packer with any other type of packer.

[00:18:58] Speaker 00:
It's irrelevant that other types of packers were known in the prior art because Packers Plus didn't make an argument that it would have been obvious to replace those cup-type packers with another type of packer.

[00:19:09] Speaker 00:
And the undisputed evidence here shows that a person of skill in the art would not have used those packers in an open-hole wellbore one because they wouldn't have sealed properly given the unevenness of the wellbore walls

[00:19:22] Speaker 00:
And two, they would have possibly damaged the well bore when you were putting the tool string into the well.

[00:19:28] Speaker 00:
Packers Plus didn't address that evidence at all.

[00:19:30] Speaker 00:
Neither did the board because the board improperly relied on a combination not asserted in the petition in which the cup-type packers had been removed.

[00:19:39] Speaker 00:
It was wholly inappropriate for the board to do that because Packers Plus never made the argument that those would have been removed or the argument that it would have been obvious to replace them with something else.

[00:19:49] Speaker 00:
That is a legal error that this court can rule on because there is no evidence that those packers would have been replaced and the undisputed evidence is that a person of skill in the art would in fact not have used those in an open hole well born.

[00:20:05] Speaker 00:
The argument with respect to the alternative basis with respect to the tailpipe string is similarly situated in that as you pointed out there's no evidence that they can really cite to other than

[00:20:17] Speaker 00:
their unsupported expert testimony that this tailpipe string was basically the same.

[00:20:22] Speaker 00:
I looked at the pages that.

[00:20:24] Speaker 00:
So did I. And it's just, it's their attorney argument and then their unsupported expert testimony is the extent of that.

[00:20:31] Speaker 00:
It was improper for the board to shift the burden to Baker Hughes on that element and they didn't even cite Packers Plus unsupported expert testimony.

[00:20:41] Speaker 00:
That evidence is just insufficient as a matter of law to support a finding.

[00:20:44] Speaker 00:
that that element is disclosed by the Hutchison and Sir Jatmata combination.

[00:20:51] Speaker 00:
And I'd like to address a couple of issues with respect to claims 1, 8, and 16, unless you have more questions on claim 21.

[00:21:02] Speaker 00:
Packers Plus, at different times during his argument, one conceded that claims 1, 8, and 16 over the jetting passageways imposes a structural requirement, but then later argued that it doesn't impose a structural requirement.

[00:21:14] Speaker 00:
They seem to be making the argument that it's structural when it suits them, and it's not structural when it doesn't.

[00:21:20] Speaker 00:
It's clear when looking at this claim language that the patentee knew how to claim a functional relationship when it wanted to, and it knew how to claim a structural relationship when it wanted to.

[00:21:31] Speaker 00:
Just comparing claim 21 with claims 1, 8, and 16 demonstrates that claim 21 recites

[00:21:38] Speaker 00:
this ceiling in the closed position, and 1-816 recites that it has to be covering the jetting passageways.

[00:21:45] Speaker 00:
Under the doctrine of claim differentiation, the board was correct to construe over the jetting passageways to require something more than just sealing the jetting passageways.

[00:21:56] Speaker 00:
And that's consistent with the description and the specification, which consistently describes the sleeve as physically covering the jetting passageways.

[00:22:05] Speaker 00:
Baker Hughes' invitation for the court to ignore that claim limitation and the physical and structural relationship that it imposes is improper.

[00:22:15] Speaker 02:
Does claim differentiation apply to a claim that isn't a dependent claim?

[00:22:22] Speaker 00:
Yes, Your Honor.

[00:22:23] Speaker 02:
It's a separate independent claim?

[00:22:25] Speaker 00:
Yes, Your Honor.

[00:22:25] Speaker 00:
I believe that it does.

[00:22:27] Speaker 00:
The patentee intentionally chose different language here.

[00:22:30] Speaker 00:
And there's case law that says that we don't

[00:22:33] Speaker 00:
We shouldn't ignore that, the patentee's choice of language.

[00:22:37] Speaker 00:
As for Packers Plus' argument that over should be concluded as above, Packers Plus concedes in its reply brief that the very first time it raised that argument was an oral argument.

[00:22:48] Speaker 00:
It didn't brief it to the board.

[00:22:50] Speaker 00:
So our contention is that its failure to raise that in any of its briefing before the board constitutes a waiver.

[00:22:56] Speaker 00:
Aside from that, the argument is

[00:22:59] Speaker 00:
inconsistent with the way that this invention is described in the specification.

[00:23:04] Speaker 00:
There's no description of the sleeve being located merely above the jetting passageways.

[00:23:11] Speaker 00:
In fact, when the patent describes vertical orientation of components, it uses up-hole and down-hole as opposed to above and below.

[00:23:19] Speaker 00:
And so over would not have been used to describe above and below either.

[00:23:24] Speaker 00:
It's clear in the context of the specification when the inventor was describing the location of the shiftable sleeve covering the jetting passageways that that's what they were referring to in the claim reciting over the jetting passageways.

[00:23:55] Speaker 02:
Anything further?

[00:23:58] Speaker 02:
No one gets penalized for not using all their time.

[00:24:01] Speaker 00:
I'm well aware of that, Your Honor.

[00:24:03] Speaker 02:
But it's yours if you want it.

[00:24:07] Speaker 00:
I would leave you with this closing thought that Packers Plus hasn't identified any legal error whatsoever in the board's claim construction or its obviousness analysis with respect to claims 1, 8, and 16.

[00:24:19] Speaker 00:
It doesn't even challenge

[00:24:21] Speaker 00:
the factual determinations underlying the board's analysis with respect to those claims.

[00:24:25] Speaker 00:
So there's simply no basis for a reversal as to the board's patentability determination on those claims.

[00:24:32] Speaker 00:
As to Claim 21, Packers Plus is just wrong that you all cannot reach that issue under Chenery.

[00:24:38] Speaker 00:
There is plenty of case law, which you have pointed out yourselves today, that not only permits but encourages you to reach those issues.

[00:24:46] Speaker 00:
And importantly, the alternative grounds presented by Baker Hughes do not present any factual issue that would prevent you from reaching those issues.

[00:24:54] Speaker 00:
They all present purely legal issues where there are undisputed facts that are merely applied to the statute.

[00:25:01] Speaker 00:
And it's apparent in light of those undisputed facts that Packers Plus has completely insufficient evidence to support its argument for unpatentability.

[00:25:12] Speaker 00:
For those reasons, we would ask that you affirm the board's decision.

[00:25:16] Speaker 02:
Thank you.

[00:25:17] Speaker 02:
Mr. Cravey has some rebuttal time.

[00:25:23] Speaker 02:
A minute plus.

[00:25:25] Speaker 01:
Just very quickly, Your Honor.

[00:25:26] Speaker 01:
I do want to take issue in that we do dispute the conclusions of the board.

[00:25:32] Speaker 01:
And basically, just taking a step back, I think that what the board did here, did wrong, is contrary to this court's decision in Enre Moet and Enre Keller, the board relied on a bodily physical incorporation of the features of Sir Jamaja into Hutchinson.

[00:25:50] Speaker 01:
That's an improper obviousness analysis.

[00:25:53] Speaker 01:
And Enre Moet, this court said, the test for obviousness is what the references combined would suggest to a person of skill in the art.

[00:26:02] Speaker 01:
Taking that even further into KSR, the Supreme Court said that the combination of familiar elements using known techniques are usually obvious when they do nothing more than produce predictable results.

[00:26:16] Speaker 01:
And that's exactly the case here.

[00:26:18] Speaker 01:
20 years before the filing of the 838 patent, Hutchinson was filed.

[00:26:23] Speaker 01:
It was known to use multi-zone stimulation in a well bore.

[00:26:26] Speaker 01:
Even Hutchinson itself talks about that you could use that steam injection into the well was known.

[00:26:32] Speaker 01:
The claims at issue in the 838 patent are obvious.

[00:26:34] Speaker 01:
I do want to touch on very quickly the tailpipe string argument, because I think it's important that, as this court pointed out, that Baker Hughes's expert acknowledged that it was known to stimulate wells and open hole well bores.

[00:26:52] Speaker 01:
And Baker Hughes's expert acknowledged that all these different types of packers were known in the art prior to the filing of the 838 patent.

[00:27:00] Speaker 01:
Under Enre Mouette, the board is entitled as, I'm sorry, under Rivalma, cited in our reply brief, the board is entitled to draw its own inferences from arguments by the parties.

[00:27:12] Speaker 01:
And that's exactly what the board did here, relying on Baker Hughes's own statements to find that tailpipe string was disclosed by the Hutchinson elements.

[00:27:21] Speaker 01:
Thank you.

[00:27:22] Speaker 02:
Thank you, counsel.

[00:27:23] Speaker 02:
The case will be submitted.