[00:00:00] Speaker 02:
This is Mark.

[00:00:49] Speaker 02:
We're ready whenever you are, sir.

[00:00:56] Speaker 02:
So by a pleasant coincidence, this case is a Minnesota case, is it not?

[00:01:00] Speaker 02:
Yes, it is, Your Honor.

[00:01:01] Speaker 02:
OK, so we've got an interference here.

[00:01:03] Speaker 02:
But can you just tell us for a minute about there's a pending district court proceeding that might be affected by this?

[00:01:11] Speaker 03:
Our position is it will not be affected by this, Your Honor.

[00:01:13] Speaker 03:
The district court case is on a trade secret breach of contract claim.

[00:01:17] Speaker 03:
And so our view is this will not affect that district court case.

[00:01:23] Speaker 02:
OK.

[00:01:23] Speaker 02:
Thank you.

[00:01:30] Speaker 03:
May it please the court.

[00:01:32] Speaker 03:
The decision below should be reversed because the evidence the board relied on consists entirely of impermissible evidence, including expert testimony that fills in the gaps in toner.

[00:01:45] Speaker 03:
Such evidence can't satisfy the substantial evidence standard.

[00:01:49] Speaker 03:
So if you look at toner, toner does not disclose culturing cells in ambient gas.

[00:01:55] Speaker 03:
Toner doesn't disclose it anywhere, not once, not in the specification, not in the drawings.

[00:02:02] Speaker 03:
So Corning can't point to any such disclosure.

[00:02:05] Speaker 03:
So what does Corning do?

[00:02:06] Speaker 03:
That's why they used Crespi.

[00:02:09] Speaker 02:
Well, are you saying that's a question of law?

[00:02:11] Speaker 02:
that the board, or is this a question of just based on the facts and circumstances here, the expert testimony was insufficient to fill the void?

[00:02:19] Speaker 02:
Or are you saying, as a matter of law, the board is not allowed to use expert testimony to understand how unskilled in the art would read the reference?

[00:02:29] Speaker 03:
No, Your Honor.

[00:02:30] Speaker 03:
The board could use expert testimony, but this is more like Chudik, where what the expert is doing is modifying the reference.

[00:02:38] Speaker 03:
So the law, very clear in this circuit,

[00:02:40] Speaker 03:
saying if it's going to be anticipatory, the reference has to disclose it exactly as arranged in the claims.

[00:02:47] Speaker 03:
And if you look at the claims in this case, the claims are to a method of culturing cells that require incubation in ambient gas, where the gas resides in the air passage.

[00:02:59] Speaker 03:
And so ambient there goes to the source of the gas, because it's a cell culture device that's put somewhere, and it's the gas that's surrounding it, which

[00:03:09] Speaker 03:
interpretation that's used.

[00:03:11] Speaker 03:
The gas that's surrounding it is what's used to culture the cells.

[00:03:16] Speaker 03:
If you look at toner, there's no disclosure of that.

[00:03:20] Speaker 03:
What toner does is completely different.

[00:03:23] Speaker 03:
They have, in fact, in the example Dr. Crespi uses... Can I just ask you to keep your voice down?

[00:03:29] Speaker 02:
We're all pretty close.

[00:03:30] Speaker 02:
Sorry.

[00:03:30] Speaker 02:
It's my... I know you feel passionately about this case, so I appreciate that.

[00:03:36] Speaker 03:
If you look at Crespi's declaration and he uses example one, it drives this point home.

[00:03:42] Speaker 03:
In example one, they have, toner has the device of toner and they put it in an incubator.

[00:03:48] Speaker 03:
But the gas that's surrounding it is not what's used to culture the cells.

[00:03:55] Speaker 03:
They then connect it to a gas tank.

[00:03:58] Speaker 03:
And so the difference between toner's approach and what we're talking about in the claims is that

[00:04:05] Speaker 02:
Toner never uses... But wait, but the board, among other things, the board said that toner does not require that it be attached to a gas tank, right?

[00:04:16] Speaker 03:
Again, and that would, the board did say that, but that's based on Crespi's declaration.

[00:04:21] Speaker 03:
And the problem for the board is that's a modification of Crespi.

[00:04:25] Speaker 03:
I mean, that's a modification of toner.

[00:04:28] Speaker 03:
And the only way they get to that is through Crespi's declaration.

[00:04:33] Speaker 03:
Toner itself,

[00:04:35] Speaker 03:
only discloses having a, it's basically a liver support system that's a corporeal so you can put patients to it.

[00:04:44] Speaker 03:
But what it discloses is a cell culture device that is hooked up to a gas tank.

[00:04:52] Speaker 04:
Can you remind me, I apologize, I can't remember right now as I sit here, what, I think the board didn't construe the term and there's just two different proposed definitions of ambient air.

[00:05:03] Speaker 03:
There were two different proposed definitions, but they're not very different.

[00:05:07] Speaker 03:
Both go to the idea that it's the gas that surrounds the device.

[00:05:13] Speaker 03:
And so the key to the reason the board didn't really have to make a decision is it's really going to the gas that surrounds the device that's used to culture the cells.

[00:05:23] Speaker 03:
And the problem is there is no disclosure in toner.

[00:05:27] Speaker 03:
They don't point to any disclosure in toner.

[00:05:30] Speaker 04:
Other than the reference to air.

[00:05:31] Speaker 03:
And so we can talk about the reference to air.

[00:05:34] Speaker 03:
So the reference to air in toner is a sentence in toner that says, here are all the different oxygenated fluids you can use.

[00:05:43] Speaker 03:
And so what that says is, here's a bunch of examples of oxygenated fluids you can use, but you would always still use it in only one way, which is in the tank, to then use it to culture cells.

[00:05:55] Speaker 03:
That sentence alone doesn't say you would then culture cells

[00:06:00] Speaker 02:
in ambient gas.

[00:06:01] Speaker 02:
Wait a minute.

[00:06:01] Speaker 02:
So Dr. Crespi says, and this is what the board relied on, one skilled in the outward recognized that a gas pump or fan circulating gas inside an incubator and sharing the same gas in the gas space may be used.

[00:06:14] Speaker 02:
That's the expert testimony.

[00:06:15] Speaker 02:
So is it a matter of whether we construe that as gap filling or whether we construe that as being a legitimate analysis by a person skilled in the art as to how the reference would be understood?

[00:06:30] Speaker 02:
Because the latter is appropriate, right?

[00:06:32] Speaker 03:
The latter would be appropriate.

[00:06:34] Speaker 03:
But in this case, it's clearly gap-tilling.

[00:06:36] Speaker 03:
Because if you look at your cases, Chudik and NIDAC, which are both cited, here's a good example.

[00:06:43] Speaker 03:
In Chudik, you're very clear to say, you look at the reference, but if you modify the reference, that's out of bounds for anticipation, which is all we're talking about here.

[00:06:52] Speaker 03:
And here, if you look at Toner, the reason

[00:06:58] Speaker 03:
Dr. Crespi says one would recognize, or sometimes he says toner contemplates.

[00:07:02] Speaker 03:
The reason is toner doesn't actually disclose such an embodiment.

[00:07:07] Speaker 03:
In the narrowest sense, toner never discloses culturing cells where the source of the gas is the ambient gas around the device.

[00:07:16] Speaker 03:
It's always with connection to a gas tank.

[00:07:19] Speaker 02:
Yeah, but sometimes if we were dealing with going back to claim construction of toner with the reference in front of us,

[00:07:25] Speaker 02:
we would rely on the claim language.

[00:07:27] Speaker 02:
It doesn't necessarily have to be a specific embodiment that embraces this option.

[00:07:33] Speaker 02:
The claim language can still be broader than any of the specific embodiments, right?

[00:07:38] Speaker 02:
So why isn't the board, is it fair for the board here to rely on an expert, one skilled in the art, to say one would have been able to re-toner in a broader fashion to include this alternative?

[00:07:52] Speaker 03:
Because the alternative has to be, this is anticipation, and it's got to have the disclosure as it's arranged in the claims.

[00:08:00] Speaker 03:
That's what Chudik says.

[00:08:01] Speaker 03:
In fact, in NIDAC, they tried to make that same kind of argument where they say somebody could kind of envision it based on this reference.

[00:08:08] Speaker 03:
And in NIDAC, there was a specific type of signal that wasn't disclosed.

[00:08:12] Speaker 03:
And what this court came down and said is, exactly, you can't just, for anticipation, it's got to be disclosed.

[00:08:21] Speaker 03:
It's completely absent.

[00:08:23] Speaker 04:
You've got a definition of ambient gas where you say it can't be pumped in.

[00:08:28] Speaker 04:
And as I understand it, the board found that there were two different ways in which toner disclosed ambient gas.

[00:08:37] Speaker 04:
One was through ports and relying on the expert's testimony and static flow embodiment.

[00:08:44] Speaker 04:
And the other one is that there could be ambient gas in a gas canister and pumped into the device.

[00:08:51] Speaker 04:
Am I misunderstanding that second reasoning that was provided by the board?

[00:08:57] Speaker 03:
Yep.

[00:08:58] Speaker 03:
And so when they say ambient gas there, I think they're saying composition.

[00:09:03] Speaker 03:
And so when we say ambient gas, whether it's pumped in from the incubator or not, it's whatever is surrounding that device is what's being used

[00:09:14] Speaker 03:
to culture the cells.

[00:09:16] Speaker 03:
In toner, that never happens.

[00:09:19] Speaker 04:
So you're saying ambient air could be pumped in.

[00:09:23] Speaker 04:
Hypothetically.

[00:09:25] Speaker 04:
That's something that could be pumped in.

[00:09:28] Speaker 03:
By having the same composition.

[00:09:29] Speaker 03:
It could have the same composition as what's outside.

[00:09:32] Speaker 03:
It could be pumped in.

[00:09:33] Speaker 03:
But that's in the context of when you look at the claim, it's a method for culturing cells.

[00:09:38] Speaker 03:
It's being incubated.

[00:09:39] Speaker 03:
And it's that gas that's being used to culture the cells.

[00:09:45] Speaker 04:
Not just any air, but the air that's exactly right outside.

[00:09:48] Speaker 03:
Right outside.

[00:09:49] Speaker 03:
It's a passive way of doing it.

[00:09:52] Speaker 03:
In toner, you never have a embodiment.

[00:09:56] Speaker 03:
In fact, it's basically tied away.

[00:09:58] Speaker 03:
Corning even argued that when it was trying to get its patent over toner, but it never discloses a toner device, even when it's put in an incubator,

[00:10:09] Speaker 03:
It's not using the air in the incubator that surrounds that device.

[00:10:14] Speaker 04:
What do you think the reference is to air in column eight, line five?

[00:10:19] Speaker 03:
Yep.

[00:10:19] Speaker 03:
So the reference to air there is, if you read the sentence, it's a list of oxygenated fluids that may be used in toner.

[00:10:28] Speaker 03:
So the oxygenated fluids would be the different substances you could have in that tank to be able to pump into toner.

[00:10:37] Speaker 03:
You know, in that incubator example, you'd have the incubator, whatever substance you wanted in the, in that list you could have in the tank.

[00:10:44] Speaker 03:
And so again, the difference is, and it's very narrow because it's anticipation is the difference here is toner never discloses.

[00:10:53] Speaker 03:
There is not a sentence in toner.

[00:10:55] Speaker 03:
And I can talk about the static flow sentence in one second, but there's never a sentence in toner that ever discloses taking the air, the air that's surrounding that device.

[00:11:07] Speaker 03:
and using that as what's going to be culturing the cells.

[00:11:11] Speaker 03:
It's always a separate tank.

[00:11:13] Speaker 03:
Now when you look at the static flow sentence, and we cite further down in that column, but when you look at the static flow embodiment, what that is is they've now pumped in air and they close all of the ports.

[00:11:26] Speaker 03:
And that's important because if you close all of the ports, then by definition, the air that's surrounding the device is not going to go in.

[00:11:35] Speaker 03:
And so that is not the embodiment by which you can get the air that's surrounding the device to culture it.

[00:11:41] Speaker 03:
And that's exactly what the claims require.

[00:11:43] Speaker 03:
That's the arrangement in the claims.

[00:11:46] Speaker 03:
And that's never disclosed.

[00:11:48] Speaker 03:
The other sentence that you refer to, the other ports that the board relies heavily on,

[00:11:52] Speaker 03:
doesn't provide for substantial evidence because the board's theory when they put that together was to say, here's the device, look at figure eight, it's got all these ports.

[00:12:00] Speaker 03:
It surely must let some of the environmental air in.

[00:12:04] Speaker 03:
And that's what's helping the culture cells.

[00:12:07] Speaker 03:
Corning doesn't defend it in its response papers because the only disclosure in toner is all those ports are for exiting air.

[00:12:18] Speaker 03:
Nothing brings the air in.

[00:12:20] Speaker 03:
Because toner is a closed oxygen chamber.

[00:12:24] Speaker 03:
The only thing it does is it allows for air to come in that's in that tank that they can control.

[00:12:30] Speaker 03:
The air that surrounds the device, the ambient gas, the source, that air never goes into the device and toner to culture cells.

[00:12:40] Speaker 03:
And that's exactly the method that's in the claims.

[00:12:44] Speaker 02:
All right.

[00:12:44] Speaker 02:
We're into your rebuttal.

[00:12:45] Speaker 02:
So why don't we hear from the other side and we'll reserve the remainder of your rebuttal time.

[00:12:55] Speaker 00:
Good morning.

[00:12:56] Speaker 00:
Good morning.

[00:12:56] Speaker 00:
May it please the court?

[00:13:00] Speaker 00:
The standard of review here is substantial evidence.

[00:13:02] Speaker 00:
And that's dispositive, because the evidence supporting the judgment here is more than substantial.

[00:13:08] Speaker 00:
And I'll start with toner itself, if I may.

[00:13:10] Speaker 00:
Toner discloses that the gas in the device can be air.

[00:13:16] Speaker 00:
Toner discloses that the gas in the device can be static.

[00:13:20] Speaker 00:
That's in column 17.

[00:13:22] Speaker 00:
Toner says that.

[00:13:24] Speaker 00:
Its device has defined openings or ports that, quote, communicate between the interior and the exterior.

[00:13:33] Speaker 00:
That's column 8.

[00:13:34] Speaker 00:
And figure A shows ports that are open and not physically connected to anything.

[00:13:39] Speaker 00:
And the description of figure 8A does not refer to a physically connected gas source.

[00:13:46] Speaker 00:
The reply brief suggests that it does.

[00:13:48] Speaker 00:
That's just not correct.

[00:13:50] Speaker 00:
The description of figure 8A does not refer to a physically connected gas source or tank.

[00:13:57] Speaker 00:
And Dr. Crespi testified that that's exactly how a person of ordinary skill in the art would understand figure 8A.

[00:14:06] Speaker 00:
They would understand that it can be used as a freestanding device or in an incubator, perhaps with fans or things moving the ambient gas in the incubator around.

[00:14:16] Speaker 02:
So what's the best site for toner, isn't it?

[00:14:19] Speaker 02:
Paragraph 47, is that the key, I'm sorry, the key expert testimony?

[00:14:26] Speaker 00:
Yes, and also 89 and 90 as well of Presby.

[00:14:30] Speaker 00:
That's on Appendix 1385.

[00:14:33] Speaker 00:
And that's where we know from his testimony that a person with ordinary skill in the art would look at Figure 8A and know that it can be used on a freestanding basis.

[00:14:46] Speaker 01:
Help me understand something that I guess I'm still

[00:14:49] Speaker 01:
somewhat confused about look at figure 8a and when we're talking about the the the gas that Cultures of cells we're talking about gas inside of I guess what's identified as 10 or 11 the cylinders and

[00:15:13] Speaker 01:
No, Your Honor.

[00:15:14] Speaker 01:
We're also, or are we, it seems to me your argument is that it's within the chamber itself and not necessarily within those cylinders.

[00:15:22] Speaker 00:
Those cylinders are actually filled with something else.

[00:15:24] Speaker 00:
They're filled with fluid, with a nutrient liquid.

[00:15:29] Speaker 00:
I shouldn't say fluid because that's ambiguous.

[00:15:31] Speaker 00:
A nutrient liquid that actually, because you couldn't just have cells in air.

[00:15:36] Speaker 00:
You need cells and liquid.

[00:15:37] Speaker 01:
We're all on the same page that we're talking about.

[00:15:39] Speaker 01:
that gray shadow area in figure 8A?

[00:15:45] Speaker 01:
Correct.

[00:15:46] Speaker 00:
And the little inlet, if you can see on the left, inlet three communicates with the exterior of the device and whatever's outside flows in.

[00:15:58] Speaker 00:
Now that could be connected to a tube or an external gas source, but it doesn't have to be.

[00:16:04] Speaker 01:
There's nothing in... This may be kind of

[00:16:07] Speaker 01:
Why is it, for example, look at 5.

[00:16:10] Speaker 01:
You have 5, which is an inlet, right?

[00:16:14] Speaker 01:
And then you have 5 dash or apostrophe.

[00:16:18] Speaker 01:
That's the outlet.

[00:16:20] Speaker 01:
And then when you look at 3, it doesn't seem that 3 is open.

[00:16:24] Speaker 00:
So it is.

[00:16:27] Speaker 00:
But there's a line.

[00:16:28] Speaker 01:
It's not like 5.

[00:16:29] Speaker 01:
There's no line that shows 5 being closed in any way.

[00:16:37] Speaker 00:
So 5 looks different because those are manifolded together.

[00:16:41] Speaker 00:
So what happens with the 5 and 5 prime is that a liquid, a nutrition-enriched liquid, flows into the manifolded scheme.

[00:16:53] Speaker 00:
And if you can see, you see that even on the top and bottom of 5, there's a solid line.

[00:17:00] Speaker 00:
But still, the material is flowing.

[00:17:02] Speaker 00:
So the fact that that's a solid line doesn't indicate that it's closed.

[00:17:06] Speaker 00:
The reason it looks different is because five is connected with those pipes, those manifolds around.

[00:17:13] Speaker 00:
We all agree, and Toner clearly discloses, that three and three prime and five and five prime are all things that do communicate with the outside.

[00:17:26] Speaker 00:
Now, where we disagree is whether three and three prime have to be connected to tubing in an outside tank, and we say,

[00:17:34] Speaker 00:
They don't, and nothing in toner says they have to be connected to external gas source.

[00:17:42] Speaker 04:
And this is part of their judicial stop argument, right?

[00:17:45] Speaker 04:
Their judicial stop argument is that you are stopped from arguing that anything other than a canister or tubing could be connected to three.

[00:17:57] Speaker 00:
Correct.

[00:17:57] Speaker 00:
And the board rejected the judicial stop argument twice.

[00:18:00] Speaker 00:
Because first of all, the statements were in the context of a different record and a very different claim.

[00:18:05] Speaker 00:
And we never argued that toner precludes using ambient air.

[00:18:10] Speaker 00:
And in this respect, I think it's really important for the court to examine what we actually said in the 859 prosecution, because it's not reported accurately in the appellee's briefs.

[00:18:22] Speaker 00:
If you would look at appendix 2934 to 60,

[00:18:29] Speaker 00:
We never used the term ambient gas.

[00:18:31] Speaker 00:
It appears in the reply briefing quotation marks, suggesting that we used that term.

[00:18:36] Speaker 00:
We didn't use that term.

[00:18:38] Speaker 00:
The reply also says we argued that toner structure requires a gas-tight seal.

[00:18:42] Speaker 00:
What we actually said is toner can be sealed.

[00:18:46] Speaker 00:
It can be airtight.

[00:18:47] Speaker 00:
And that's a really important distinction.

[00:18:49] Speaker 00:
The issue in the 859 prosecution was structure.

[00:18:53] Speaker 00:
Our structure in 859 was an open structure with peripheral supports to make a plurality of gaps.

[00:19:00] Speaker 00:
It's a totally open device.

[00:19:03] Speaker 00:
Toner describes a closed oxygen chamber with defined entry and exit points.

[00:19:11] Speaker 00:
Now, if I could use an analogy, the 859 structure will start with toner.

[00:19:16] Speaker 00:
Toner is like a house with windows and an air conditioning system.

[00:19:21] Speaker 00:
So you can either open the windows

[00:19:24] Speaker 00:
Or you could close the windows and turn on the air conditioner.

[00:19:27] Speaker 00:
The 859 device is more like a carport or a pavilion at a park.

[00:19:32] Speaker 00:
It's totally open.

[00:19:33] Speaker 00:
It cannot be closed.

[00:19:35] Speaker 00:
And to illustrate that distinction, we made the argument that toner's structure allows for it's capable of being used in an airtight manner to control the flow.

[00:19:47] Speaker 00:
So for example,

[00:19:49] Speaker 00:
We said the toner ports are arranged to allow for a controlled flow of oxygenated fluid, which may be pressurized oxygenated fluid.

[00:19:57] Speaker 00:
We said that the toner reference discloses that the oxygenated fluid compartments can be sealed, can be airtight.

[00:20:06] Speaker 00:
And because the toner device, with its closed oxygen chamber connected via ports to an oxygenated fluid source, can be used to manipulate the type of gas

[00:20:16] Speaker 00:
and can be used to manipulate hepatocyte function.

[00:20:20] Speaker 00:
So all of those are permissive.

[00:20:23] Speaker 00:
Every one of them says that toner is capable of being sealed up and used with a tank.

[00:20:29] Speaker 00:
None of them say that it has to be.

[00:20:31] Speaker 00:
And because of what toner expressly discloses with air, static, embodiment, et cetera, and the fact that 8A does not

[00:20:42] Speaker 00:
show a connection.

[00:20:44] Speaker 00:
Some of the figures show a tank.

[00:20:47] Speaker 00:
8A doesn't show a tank.

[00:20:49] Speaker 00:
And Crespi said, appropriately, that a person with ordinary skill in the art would understand that 8A can be used in a freestanding manner, with the port simply left open to whatever is on the outside.

[00:21:06] Speaker 00:
Now, obviously, it's important.

[00:21:07] Speaker 00:
The court mentioned earlier that the construction of ambient gas

[00:21:11] Speaker 00:
The broadest reasonable interpretation of ambient gas is just that it's the kind of gas that surrounds the device.

[00:21:18] Speaker 00:
And that's exactly what the board concluded.

[00:21:21] Speaker 00:
If you look at the claims themselves, they say the apparatus is incubated in the presence of ambient gas suitable for animal cell culture.

[00:21:32] Speaker 00:
And ambient gas resides within each said gas space.

[00:21:36] Speaker 00:
So the claim itself uses the term ambient gas to refer to a kind of gas, the gas that's around and suitable for animal cell culture.

[00:21:45] Speaker 00:
That's the kind of gas.

[00:21:48] Speaker 00:
And it claims a method of using that same kind of gas, both around the apparatus and inside the gas spaces.

[00:21:55] Speaker 00:
There's no limitation based on pressure, based on flow, based on how the gas got there, based on whether it was passive or active, as I just

[00:22:06] Speaker 00:
heard in my friend's argument.

[00:22:08] Speaker 00:
Then if you look at the specifications, in column 9, the specifications of the 044 patents say that the gas base need not have forced gas flow or be adapted for forced gas flow in order for the device to function.

[00:22:24] Speaker 00:
In its simplest and preferred form, it is just ambient gas in contact with any or all of the gas permeable portions of the device.

[00:22:33] Speaker 00:
Well, that's permissive language.

[00:22:35] Speaker 00:
It shows that ambient gas in the gas space can have forced gas flow.

[00:22:40] Speaker 00:
It's just not preferred that way.

[00:22:43] Speaker 00:
And so what Wilson is doing in this appeal is trying to use his own expert declaration to add limitations to his own patent.

[00:22:54] Speaker 00:
And that is not a permissible use of an expert declaration in a case like this.

[00:23:01] Speaker 00:
It's also important to note the prosecution history.

[00:23:04] Speaker 00:
of the 044 patent.

[00:23:05] Speaker 00:
During the prosecution of the 044 patent, there was a dependent claim that was later canceled that required ambient gas that is not forced to flow into said gas space.

[00:23:18] Speaker 00:
And the board concluded appropriately that the filing of that claim indicates that ambient gas could either be forced to flow into the gas space or not.

[00:23:30] Speaker 00:
So that's a distinction that the board found important and stands as part of the substantial evidence that supports the conclusion that Toner discloses these claims.

[00:23:43] Speaker 00:
It is true that there were two claim constructions offered, and that both of those constructions actually referred to the characteristics of the gas.

[00:23:53] Speaker 00:
Wilson's construction did not.

[00:23:55] Speaker 00:
offer a limitation based on pressure or flow or active or passive or anything like that.

[00:24:00] Speaker 00:
And what the board concluded was it was enough to say air passing from the exterior of the device into the interior of the device is ambient gas under either one of the proposed constructions.

[00:24:12] Speaker 00:
And as the rehearing panel indicated, that was essentially an interpretation of the term ambient gas that encompasses the broadest reasonable interpretation and that supports

[00:24:25] Speaker 00:
the conclusion that toner discloses all of those limitations.

[00:24:29] Speaker 00:
It's a reference to the same kind of gas that surrounds the device.

[00:24:34] Speaker 00:
Now if I could speak for just a second about the idea of ambient gas being put in a tank.

[00:24:40] Speaker 00:
Air is air.

[00:24:41] Speaker 00:
Air is air whether it's blowing, if there's a fan, if there's a pump.

[00:24:46] Speaker 00:
Air is also air if you put it in a tank.

[00:24:49] Speaker 00:
And in the reply brief, Wilson argues that air stops being ambient if you put it

[00:24:56] Speaker 00:
in a tank and deliver it with a pump.

[00:24:59] Speaker 00:
And that's not how the 044 patent uses the term ambient gas.

[00:25:04] Speaker 00:
If a gas stops being ambient when it's put in a tank, then it can't be ambient when it's inside Wilson's device.

[00:25:13] Speaker 00:
And yet Wilson's own claim describes the gas that resides within the gas space as ambient gas.

[00:25:21] Speaker 00:
So he must be when he's using the term ambient.

[00:25:24] Speaker 00:
referring to the type of gas, the kind of gas, a gas suitable for cell culture that exists outside the device.

[00:25:35] Speaker 00:
All that matters, to go back to my analogy, for Wilson's claim, Wilson's claim is about what kind of air is in the structure.

[00:25:44] Speaker 00:
It's not about how the air got there, whether it was pumped or forced, whether it flowed in a

[00:25:51] Speaker 00:
natural and unimpeded and passive way.

[00:25:55] Speaker 00:
It's not about that at all.

[00:25:56] Speaker 00:
It simply refers to the fact that the gas is in the device, and the same gas is on the outside of the device.

[00:26:04] Speaker 00:
And that by itself, I think, defeats the argument that Wilson is making on appeal.

[00:26:12] Speaker 00:
Unless the court has further questions, we will stand on our argument.

[00:26:16] Speaker 00:
Thank you very much.

[00:26:34] Speaker 03:
I'm going to make one point using figure eight.

[00:26:38] Speaker 03:
So a preliminary point is figure eight, if you look at it, if you look at the whole patent, it's actually just another embodiment of what they show as the device in figure one, and it's a different embodiment.

[00:26:53] Speaker 03:
That's the only reason figure eight is not hooked up to the full system that's shown in figure one.

[00:27:00] Speaker 04:
lots of different figure eights.

[00:27:01] Speaker 04:
I'm sorry, just tell me which one you're pointing out, 8A, 8B, 8C?

[00:27:05] Speaker 03:
Oh, I'm sorry, I'm in 8A.

[00:27:06] Speaker 03:
Okay.

[00:27:07] Speaker 03:
And, because 8A is what they rely on, is the only reason I'm pointing to 8A.

[00:27:10] Speaker 02:
Right, because 8 does show the gas change.

[00:27:12] Speaker 03:
I'm sorry?

[00:27:13] Speaker 02:
Because 8 shows something else, right?

[00:27:15] Speaker 03:
No, 8 just shows the bioreactor, just shows one.

[00:27:17] Speaker 02:
Oh, figure one has the gas change.

[00:27:19] Speaker 03:
I can't say, yeah.

[00:27:20] Speaker 03:
So, and it's connected, so it's just an embodiment.

[00:27:22] Speaker 03:
But here's, so that

[00:27:26] Speaker 03:
Ambient gas that the claim is referring to is the gas that surrounds the device and that's the air that has to be in here.

[00:27:34] Speaker 03:
All toner discloses is getting gas in here from the tank, never from what's surrounding it.

[00:27:41] Speaker 03:
Now when she's talking about forced gas or anything else, it's the same principle that I just said applies.

[00:27:48] Speaker 03:
If you put the device in an incubator, which is what the claim is talking about,

[00:27:52] Speaker 03:
the gas that's surrounding it might have been forced into the incubator.

[00:27:56] Speaker 03:
But then it's that gas that's then used to culture the cells.

[00:28:01] Speaker 03:
Here, when they put this device into the incubator, it's not the gas that's in the incubator that was in the examples that are being used to culture these cells.

[00:28:13] Speaker 03:
Here, even though this entire bioreactor, in example one, is in the incubator, they still

[00:28:21] Speaker 03:
to Inlet 3 connect a gas tank.

[00:28:24] Speaker 03:
And that is the only disclosure.

[00:28:27] Speaker 03:
And the reason I keep bringing that up is this is really just a 102.

[00:28:31] Speaker 03:
And what they did with Crespi, the reason it's different from what they did when they were in the patent office to get their own patent is they used Crespi to modify that.

[00:28:41] Speaker 03:
So they're using words to change that disclosure to say, now someone can recognize, someone can contemplate, you can put a fan there.

[00:28:50] Speaker 03:
None of that is disclosed.

[00:28:53] Speaker 03:
In fact, it cuts against everything Toner says.

[00:28:56] Speaker 03:
And the best example of that is Corning's own statements about Toner when they wanted to get their patent on the exact same type of device.

[00:29:04] Speaker 04:
Can I ask you, I mean, you agree that experts can interpret specifications and what they teach one of ordinary skill in the art.

[00:29:15] Speaker 04:
So if it's viewed from the perspective of one of ordinary skill in the art would understand this

[00:29:20] Speaker 04:
patent toner to teach a certain thing.

[00:29:24] Speaker 04:
That's legally okay.

[00:29:26] Speaker 04:
On the other hand, I think what you're saying is that the expert, there is no support for the expert saying that one of ordinary scaleneur would understand the reference to work in a particular way, and that's why it's not an anticipatory reference, because for anticipation, it has to teach every element of the claim.

[00:29:45] Speaker 03:
As arranged, exactly.

[00:29:47] Speaker 03:
when they're making the interpretation, if you look at your case law, and that's the reason I went to Chudik and NIDAC in particular, is if you're modifying it, so when the expert says, I would understand something, there's an example that we put in one of the cases where the product is already there and the expert looks at the product and says, that's made of X material.

[00:30:07] Speaker 03:
That's part of it and the expert's explaining that it's made of whatever material that's there for that product.

[00:30:12] Speaker 03:
Here, what the expert is doing is literally taking

[00:30:16] Speaker 03:
an embodiment where it's all connected and saying, I'm going to change it.

[00:30:20] Speaker 03:
I'm literally taking the tubes off.

[00:30:22] Speaker 03:
I'm going to now put it in the incubator, which is the opposite of what it taught me, and take everything off and see if it'll incubate, I mean, see if it'll culture cells.

[00:30:31] Speaker 03:
That's a hypothetical.

[00:30:33] Speaker 03:
That is one that's not disclosed.

[00:30:34] Speaker 03:
That's what your case law says as in Chudik or

[00:30:38] Speaker 03:
where it's a modification.

[00:30:39] Speaker 03:
That's a clear, bright line where, for anticipation, the expert is now modifying the disclosure.

[00:30:46] Speaker 03:
There is no disclosure in here that will teach you to culture cells using the gas that's surrounding the device.

[00:30:54] Speaker 02:
We have your argument.

[00:30:55] Speaker 02:
We thank both sides.

[00:30:56] Speaker 02:
The case is submitted.

[00:30:57] Speaker 02:
That concludes our proceedings for this morning.