[00:00:01] Speaker 01: Okay, thank you. [00:00:02] Speaker 01: The next case, the next argue case is number 19, 1530, Chevron USA incorporated against University of Wyoming research. [00:00:12] Speaker 01: Mr. Coyne. [00:00:14] Speaker 04: Thank you, your honor, and may it please the court. [00:00:17] Speaker 04: With us on the line on the public line is Frank Turner and Camille McHale, who are with Chevron USA in Houston. [00:00:24] Speaker 04: The theme that I'd like to present to the court this morning is this case presents a recurring problem of the board reaching a broadest construction that under QOZO that is simply not reasonable in view of the common ordinary meaning of the term and the specification. [00:00:40] Speaker 04: Now superficially, it may seem that what the board's done here saying that the dissolving step occurs in the column so that the gradually changing step must also be in the column. [00:00:50] Speaker 04: That might make sense, but that's not what the specification says. [00:00:54] Speaker 04: The limitation is gradually and continuously changing the alkane mobile phase solvent to the final mobile phase solvent. [00:01:02] Speaker 04: And where that occurs is at the solvent inlet. [00:01:05] Speaker 04: That is undisputed. [00:01:06] Speaker 04: The claim language is clear. [00:01:09] Speaker 04: It's the common ordinary meaning of gradually and continuously changing to be incrementally reducing the first while simultaneously incrementally increasing the second over the same period of time without interruption. [00:01:22] Speaker 04: That's how someone of ordinary skill would understand it. [00:01:24] Speaker 04: And that is exactly how the specification describes it. [00:01:29] Speaker 04: Instead, the board latched on to 24 words out of about an 800-word description at pages 682 to 684 of the appendix. [00:01:40] Speaker 04: It's paragraphs 37 to 41 that describe this step. [00:01:44] Speaker 04: The board ignored the rest of it and latched on to only those 24 words and said, oh no, you've given it some unique lexicography. [00:01:51] Speaker 04: Granted, that board's decision is inconsistent with the common ordinary meaning, but there was no clear intent to redefine this term in that way. [00:02:00] Speaker 04: That four, three pages describes it very clearly as this incremental reduction and incremental increase, going on simultaneously. [00:02:12] Speaker 04: Let's look at what isn't disputed here. [00:02:15] Speaker 04: There are a number of things the parties have actually agreed upon in the briefs. [00:02:18] Speaker 04: So let's try to get that out of the way. [00:02:20] Speaker 04: First off, the claim construction here appears to be dispositive. [00:02:23] Speaker 04: The board thought so, and the parties think so. [00:02:27] Speaker 04: The canons of construction that apply are very clear. [00:02:30] Speaker 04: You can't rely on the extrinsic evidence because the intrinsic evidence is ample here. [00:02:35] Speaker 04: The meaning that you give this phrase needs to be consistent with the common ordinary meaning of the term. [00:02:40] Speaker 00: Mr. Coyne? [00:02:41] Speaker 04: Yes, Your Honor. [00:02:42] Speaker 00: Excuse me, this is Judge Scholl here. [00:02:44] Speaker 00: Thank you. [00:02:45] Speaker 00: Let me ask you, the claim speaks, and I'm looking now at 695 of the Joint Appendix, paragraph B, gradually and continuously changing the alkane mobile phase solvent, et cetera. [00:03:04] Speaker 00: And we also have, is that the nub of the claim here, gradually and continuously changing? [00:03:11] Speaker 04: Yes, Your Honor, it is. [00:03:15] Speaker 00: We have, I think, it seems to me that the key specification provisions here are paragraph 37 and paragraph 38 with respect to this part B. And paragraph 37 talks about defining gradually and continuously adding, I think. [00:03:41] Speaker 04: Yes, Your Honor. [00:03:42] Speaker 04: That is how the inventors described it, is you're going to change it by adding, by incrementally reducing the amount of the first solvent and incrementally increasing adding the second solvent at the solvent inlet. [00:03:54] Speaker 00: So you're saying the claim talks about gradually and continuously changing, but that that gradual and continuous change [00:04:03] Speaker 00: is obtained or comes about as a result of gradually and continuously adding. [00:04:09] Speaker 00: Is that what you're saying? [00:04:10] Speaker 04: Yes, Your Honor. [00:04:10] Speaker 04: Gradually, continuously adding the second in increasing amounts while you're reducing the amount of the first that you're adding. [00:04:17] Speaker 04: And you have to do it continuously over a period of time. [00:04:20] Speaker 04: That's what the specification describes. [00:04:23] Speaker 04: The description of paragraphs 38 that you pointed out and at paragraph 40 are the same in terms of the process. [00:04:30] Speaker 04: What's exemplary about those two examples? [00:04:32] Speaker 04: is one is the first solvent change, and it gives a sample solvents you can use. [00:04:37] Speaker 04: And the second one is the second solvent change, and it uses different solvents. [00:04:41] Speaker 04: But the process is identical in both. [00:04:44] Speaker 04: It's the same incremental change, the same incremental addition. [00:04:48] Speaker 04: That's how the inventors described this invention. [00:04:53] Speaker 04: So what is also agreed is that the specification provides ample additional description that both Wyoming and the board ignored. [00:05:01] Speaker 04: And what the board has done here is come up with a construction of gradually and continuously changing the alkane mobile phase solvent to a final mobile phase solvent that would cover any type of change. [00:05:14] Speaker 04: They stay right in their opinion. [00:05:15] Speaker 04: Even a sudden, abrupt, immediate switch of 100% of one solvent to 100% of a different solvent would, in the board's view, be gradually and continuously changing. [00:05:27] Speaker 04: That just doesn't make sense based on this specification. [00:05:31] Speaker 04: The board, what we think happened here is that the board was led into error by Wyoming. [00:05:37] Speaker 04: They relied on the extrinsic evidence of experiments done by Professor Labadie and his testimony. [00:05:43] Speaker 04: And although they say they didn't rely on it for claim construction, it's abundantly clear that they relied on it for the written description issues. [00:05:52] Speaker 04: There really are five reasons why we say this is wrong. [00:05:56] Speaker 04: Number one, [00:05:57] Speaker 04: The Chevron inventors didn't provide a unique contrary definition of gradually. [00:06:03] Speaker 04: Basically, the sentence they latch onto talks about incremental removal of the first solvent. [00:06:08] Speaker 00: Klein, let me ask you, this is Judge Schaller here, please. [00:06:13] Speaker 00: Again, the claim says dissolving the first amount and the second amount by gradually and continuously changing [00:06:24] Speaker 00: So what you're seeking to achieve here is a gradual and continuous change. [00:06:30] Speaker 00: That's what's claimed. [00:06:32] Speaker 00: But the adding isn't really claimed, is it? [00:06:35] Speaker 04: Well, it is, Your Honor, because the adding is described in the study. [00:06:38] Speaker 04: You accomplish the gradual and continuous change by slowly reducing the amount of the first solvent while you're, at the same time, increasing the amount of the second solvent. [00:06:48] Speaker 04: You're making this gradual, continuous change. [00:06:51] Speaker 04: Present tense verb. [00:06:52] Speaker 04: It didn't say effecting a change downstream in the column, it says gradually and continuously changing the first solvent to the second. [00:07:01] Speaker 00: Where does the solvent that you, and I'm parading my ignorance here, Mr. Coyne of chemistry, so forgive me, okay? [00:07:09] Speaker 00: Where do these solvents come from? [00:07:13] Speaker 00: They're sitting outside the column and then put into the column? [00:07:17] Speaker 04: Yes, Your Honor. [00:07:18] Speaker 04: A supply of multiple solvents typically in these setups, for example, the patents both show a diagram, a schematic of the setup. [00:07:27] Speaker 04: You'd have vats of solvents with tubing coming out of it to a valve, and then that would supply the column. [00:07:35] Speaker 04: You'd also have an injection point in that tubing for the sample you're putting in, and you run the surfer solvent through the tubing, through the column, [00:07:44] Speaker 04: inject the material, some of it will precipitate out on the beads in the column, and then you run another material solvent through it to try to re-dissolve some of that. [00:07:53] Speaker 04: That's what you're trying to do to measure. [00:07:55] Speaker 04: You're precipitating these asphaltines and then re-dissolving them with a series of stronger solvents. [00:08:01] Speaker 00: Just so I make sure I completely understand you, paragraph A of the claim, or limitation A, that's what's described [00:08:10] Speaker 00: in paragraph 35 of the Joint Appendix, is that correct? [00:08:15] Speaker 04: I'm sorry, paragraph 35? [00:08:16] Speaker 00: Yeah, paragraph 35 of the Joint Appendix at 682, as I understand it, and correct me if I'm wrong, please, is speaking to limitation A, precipitating an amount of the asphalting from a liquid. [00:08:32] Speaker 04: Is that correct? [00:08:33] Speaker 04: Yes, Your Honor. [00:08:34] Speaker 00: Okay. [00:08:35] Speaker 04: And then 37, 38, 39, 40, and 41, [00:08:39] Speaker 04: are talking about this process for gradually and continuously changing. [00:08:43] Speaker 04: The problem here with the board's construction is that it's relying on lexicography, yet this court's authority in Olson, Thorner, Murk V. Teva, and Cora, there's dozens of cases that make it clear in order to have specific lexicography, there has to be a clear, deliberate, precise intent to yield an uncommon definition. [00:09:05] Speaker 04: There's nothing in this case that does that. [00:09:07] Speaker 04: Yes, Your Honor. [00:09:08] Speaker 02: Mr. Coyne, Judge Laurie here. [00:09:10] Speaker 02: As you know, I am a chemist, but there isn't much chemistry here. [00:09:14] Speaker 02: It's trying to figure out what these unclear documents say. [00:09:21] Speaker 02: And we've got an expert board that made a judgment. [00:09:26] Speaker 02: And why shouldn't we rely on it? [00:09:28] Speaker 04: Well, Your Honor, because first off, this is an issue of de novo. [00:09:31] Speaker 04: This is claim construction, and it's reviewed de novo by this court. [00:09:35] Speaker 04: based on the intrinsic record, and all the parties and the board agree that the intrinsic record is sufficient to resolve this. [00:09:43] Speaker 02: What about the definition in the A14 application? [00:09:47] Speaker 02: The term gradually is used herein to be understood to mean that the alkane mobile phase solvent is incrementally removed by continuously adding a phase [00:09:58] Speaker 02: So it's incrementally removed. [00:10:01] Speaker 02: That's the gradual part, isn't it? [00:10:03] Speaker 04: Well, no, Your Honor. [00:10:04] Speaker 04: It's part of it. [00:10:06] Speaker 04: Literally, it's not possible to incrementally remove only one solvent from the column. [00:10:11] Speaker 02: Well, it's incrementally removed because of what has happened earlier. [00:10:15] Speaker 04: Right, it's incrementally removed because you're incrementally decreasing the amount of that first solvent while you're increasing the amount of the second so that you're going to be, that's what the rest of the four paragraphs explain. [00:10:29] Speaker 04: What the board did is latched on only that and gave it a meaning that interpreted it. [00:10:34] Speaker 04: It itself does incrementally modify only the removal or does incrementally in that sentence also modify the addition? [00:10:42] Speaker 04: And we think it modifies both because the next four paragraphs explain that in detail. [00:10:47] Speaker 04: What the board did is adopted one of those two interpretations in a way that's inconsistent with the balance of this portion of the specification and say, no, no, we're going to look at it downstream after all the mixing and all the turbulent mixing has occurred in the column where it's going to naturally get mixed up. [00:11:07] Speaker 04: But what the specification tells you is you're going to do this in a very deliberate fashion because you're trying to get a specific kind of profile out of it. [00:11:14] Speaker 04: You don't want just random mixing in the column. [00:11:17] Speaker 04: You may not be hitting the sample that's precipitated with the right concentration. [00:11:22] Speaker 04: What you're trying to do is do a very controlled mixing so that that precipitate is seeing a very specific mix of solvents over a period of time. [00:11:33] Speaker 00: Judge Shaw here again. [00:11:35] Speaker 00: How does the word, in your view, how does the word continuously play into the discussion we're having here? [00:11:43] Speaker 04: Well, it plays in two ways. [00:11:45] Speaker 04: One, it has to be continuously changing. [00:11:47] Speaker 04: What Wyoming does isn't a continuous change. [00:11:50] Speaker 04: It's a sudden stop. [00:11:51] Speaker 04: So even if the board could somehow continuously adding, it says. [00:11:55] Speaker 04: Yes, that's how the inventors describe their invention. [00:11:59] Speaker 04: I'm going to make this change by continuously adding less of the first [00:12:03] Speaker 04: and adding more of the second, and that's what they say in paragraphs 38 and 40. [00:12:08] Speaker 04: There's multiple other reasons why it's incorrect. [00:12:11] Speaker 04: Number one, it ignores the continuously changing. [00:12:13] Speaker 04: You just asked about Judge Shaw. [00:12:15] Speaker 04: You're not continuously changing, and I see that I'm into my rebuttal time. [00:12:20] Speaker 04: No, finish your thought, Mr. Klein. [00:12:22] Speaker 04: The continuously changing alone is a reason why it's wrong, because in Wyoming's process, there is no continuous change. [00:12:28] Speaker 04: It's a sudden, abrupt change, and that's undisputed. [00:12:31] Speaker 04: I'll reserve the rest of my time, Your Honor. [00:12:33] Speaker 01: Okay, thank you. [00:12:35] Speaker 01: We'll hear from the other side, Mr. Santangelo. [00:12:38] Speaker 05: Good morning, Your Honors. [00:12:39] Speaker 05: Luke Santangelo on behalf of the Appellee, the University of Wyoming Research Corporation. [00:12:45] Speaker 05: We request that this court affirm the decision below. [00:12:48] Speaker 05: I think this is an interesting case that I actually believe ought not be that difficult. [00:12:53] Speaker 05: It's a case where Chevron set out an express definition in their specification that it now doesn't like. [00:13:02] Speaker 05: As Judge Lurie pointed out, this expressed definition is set out with the words shall be understood to mean, very mandatory words. [00:13:13] Speaker 05: And so the question becomes, was the P-tap correct below in applying that explicit intrinsic definition to construe the claim element and then to decide the two motions? [00:13:28] Speaker 05: It applied that is... Mr. San Angelo. [00:13:31] Speaker 05: Excuse me. [00:13:31] Speaker 05: They're all here. [00:13:32] Speaker 00: Mr. Coyne said, and I think you'll correct me if I'm wrong if you understood him differently, he said, look, what we're doing here, we're claiming gradually and continuously changing the solvent, and that's what's in the claim, and we do that, and then he would point to [00:13:55] Speaker 00: Paragraph 37 and 38, and we do that by gradually and continuously adding, okay? [00:14:04] Speaker 00: And he says the Wyoming process doesn't do that because all of the solvent goes in in one lump, so to speak. [00:14:13] Speaker 00: What's wrong with that? [00:14:15] Speaker 00: There seems to be a certain logic to what he says there. [00:14:19] Speaker 05: Well, Your Honor, I think it was, as you pointed out in your questioning of Mr. Coyne, [00:14:24] Speaker 05: The definition of the term gradually explicitly states that it involves continuously adding the solvent to achieve a change. [00:14:35] Speaker 05: The change is something that exists in the context of the claim element, which is dissolving a first amount and the second amount of the asphalt peens [00:14:48] Speaker 05: by gradually and continuously changing the solvents. [00:14:53] Speaker 05: That change must, of necessity, occur where the asphaltenes will be dissolved. [00:15:00] Speaker 05: As was questioned earlier, this is a situation where solvents are fed into a column. [00:15:08] Speaker 05: The column has, in essence, beads inside of it. [00:15:12] Speaker 05: That's called a stationary inert. [00:15:14] Speaker 00: Well, let me ask you this, Mr. Santangelo. [00:15:17] Speaker 00: The language at the bottom of page 682 says, the term gradually is used here and should be understood to mean the alkane mobile phase solvent is incrementally removed from the column. [00:15:29] Speaker 00: Okay. [00:15:31] Speaker 00: Then though, you're having, you have in paragraph 38 on page 683, gradually and continuously added to the column. [00:15:43] Speaker 00: Now here, gradually is being used [00:15:46] Speaker 00: in a different context, before it was being used with respect to gradually removing, now it's being used with respect to gradually adding to the column. [00:15:58] Speaker 00: Doesn't that sort of suggest that you gradually remove by gradually adding? [00:16:07] Speaker 05: No, I would disagree, Your Honor, because I believe the explicit definition [00:16:11] Speaker 05: sets out, and it only makes good logical sense because we're talking about dissolving the asphaltenes that are in the column, the definition sets out that gradually as used herein shall be understood to mean that the alkane solvent, the first solvent, is incrementally removed from the column over a period of time. [00:16:34] Speaker 05: That's in fact what defines whether there is a gradual change or not. [00:16:40] Speaker 00: Let me, and I apologize for jumping in, but a thought comes to mind and I don't want to lose it, Mr. Sanangelo. [00:16:50] Speaker 00: Do you continuously add, how do you fit in up at the top of page 683 there, we're still I guess in paragraph 37, by continuous, I'm sorry, by continuously adding a final mobile phase solvent, et cetera. [00:17:10] Speaker 00: Do you think that the Wyoming process can be said to continuously add when it puts it all in at once? [00:17:19] Speaker 05: Unquestionably, it is. [00:17:20] Speaker 05: The put it all in at once is not an accurate statement. [00:17:24] Speaker 05: In fact, what happens, and there is a discussion throughout both the 425 patent, its specification, as well as the two priority cases that talk about continuous flow systems. [00:17:38] Speaker 05: Yes. [00:17:39] Speaker 05: continuously added, there's a transition from a first solvent to a second type of solvent. [00:17:47] Speaker 05: But throughout the whole process, it is a continuous flow process. [00:17:51] Speaker 05: So yes, there is continuously adding. [00:17:55] Speaker 01: But there's a difference, isn't there, between continuous flow and continuous adding? [00:18:04] Speaker 05: The continuous adding [00:18:07] Speaker 05: is what causes the continuous flow in the column. [00:18:11] Speaker 05: So I don't know how to answer your question, Judge Newman. [00:18:14] Speaker 05: Judge Newman, the continuous adding is what causes the continuous flow. [00:18:21] Speaker 05: So yes, we have a continuous flow system because we are continuously adding solvent to the column. [00:18:30] Speaker 05: And it's that continuous addition that in fact, as the definition requires, [00:18:36] Speaker 05: causes the incremental removal of the first solvent from the column. [00:18:41] Speaker 01: But couldn't incremental adding provide continuous flow? [00:18:50] Speaker 05: Incremental adding could be presumably in steps. [00:18:54] Speaker 05: The challenge I have, Judge Newman, is in understanding the word incremental. [00:18:59] Speaker 05: And so would... Well, that's our challenge as well. [00:19:04] Speaker 01: We need your help. [00:19:05] Speaker 05: Well, incremental was defined by the PTAB in this instance as having some amount of change positive or negative. [00:19:17] Speaker 05: That was in the PTAB decision, and that's not the focus of the appeal. [00:19:23] Speaker 05: But in this instance, the question becomes, is there incremental removal, which is in the definition? [00:19:30] Speaker 05: And indeed, there is incremental removal, as is shown [00:19:34] Speaker 05: both by the fluid dynamics of the column and by the test result that explains what transpires inside the column just to confirm that understanding. [00:19:44] Speaker 05: So what the invention involves is a precipitation of beads, a precipitation of asphaltenes, excuse me, onto the beads in the column and then sequentially dissolving off those beads the asphaltenes. [00:20:03] Speaker 05: That sequential dissolving is where the gradual and continuous change of the solvent is necessary so that you can glean the information that shows, that tells you what type of crude oil you're dealing with. [00:20:23] Speaker 05: In this instance, the claim itself sets out in the particular element [00:20:29] Speaker 05: dissolving first and second amounts of the asphaltenes by gradually and continuously changing the first solvent to the final solvent. [00:20:40] Speaker 05: In fact, what does it involve? [00:20:43] Speaker 05: It involves dissolving a specific substance, the asphaltenes, which only exist inside the column. [00:20:50] Speaker 05: How are those dissolved? [00:20:52] Speaker 05: They are dissolved by gradually and continuously changing the solvent within the column. [00:20:59] Speaker 01: How do we know? [00:21:01] Speaker 01: I mean, there's a problem here that I have. [00:21:03] Speaker 01: Here we have a matter of interference priority, which is being determined not on which side did what, at what point of time before the other, but whether a particular claim can be construed in a way that may or may not be supported by the specification. [00:21:27] Speaker 01: We don't really get into that, and priority is decided [00:21:33] Speaker 01: without really knowing which side did which experiment or provided what conception evidence or all the rest of it. [00:21:42] Speaker 01: This seems to me to be unusual. [00:21:47] Speaker 05: I would disagree, Your Honor, that we don't know what side did what in this instance. [00:21:54] Speaker 01: Exactly. [00:21:55] Speaker 01: Exactly the problem. [00:21:56] Speaker 01: We don't know. [00:21:58] Speaker 05: No, I would disagree with that statement, Your Honor. [00:22:01] Speaker 05: Because in this instance in 2005, the University of Wyoming Research Corporation applied for a patent explaining exactly the situation of this continuous flow system flowing through the beads and changing the solvents. [00:22:20] Speaker 05: And indeed, in 2005, four years before Chevron even applied for their patent application, we know that [00:22:30] Speaker 05: the beads were causing that gradual change in the solvent, even in the particular instance, which is only one example, that there was a step change from one solvent to another. [00:22:45] Speaker 05: In fact, we do know that four years before, the University of Wyoming was achieving gradual and continuous change of the solvent. [00:22:57] Speaker 05: Pardon? [00:22:59] Speaker 01: How do you say we know? [00:23:01] Speaker 01: How do we know that? [00:23:02] Speaker 05: Because we know that even when there is a step change, something that is unequivocally disclosed in the 2005 priority filing, we know that even when there's that step change, as the solvents come out of the column, which is where the explicit definition requires the determination to be made, the first solvent, [00:23:30] Speaker 05: is incrementally removed so that there is a gradual and, in fact, continuous change of the solvents. [00:23:40] Speaker 00: Mr. Santangelo, if Judge Scholl, if I could ask you, please. [00:23:45] Speaker 00: Judge Lurie was focused on paragraph 37, bridging 682 and 683 with Mr. Coyne, and in paragraph [00:23:57] Speaker 00: 37 on page 683 at the top, we have some references to time periods. [00:24:04] Speaker 00: You're no doubt familiar with that, OK? [00:24:07] Speaker 05: Yes, sir. [00:24:08] Speaker 00: How does that, in your view, inform or help us in the analysis which we're going through here? [00:24:16] Speaker 00: In other words, in your view, how do these references to five minutes to about 120 minutes in any way [00:24:25] Speaker 00: give an answer to the question we're struggling with here? [00:24:29] Speaker 05: Well, I think perhaps the underlying that question is some sort of intuitive sense with respect to whether those time periods are slow enough or such. [00:24:41] Speaker 05: The challenge is there's no time periods specified in the Chevron specification with respect to gradual. [00:24:50] Speaker 05: The gradual is something that just achieves [00:24:55] Speaker 05: incremental removal. [00:24:56] Speaker 05: So to answer your question Judge Shaw, I believe that the time periods are not something that are necessary to understand whether there is gradual or not. [00:25:07] Speaker 05: The gradual change is explicitly defined by Chevron and we're simply tracking that definition because that's something that Chevron said shall apply. [00:25:20] Speaker 00: Let me ask you this, do both the Chevron [00:25:24] Speaker 00: This refers to gradually and continuously changing from the alkane mobile phase solvent to the final mobile phase solvent. [00:25:33] Speaker 00: And it says, can occur during the period up. [00:25:36] Speaker 00: And it goes on. [00:25:37] Speaker 00: Do both the Chevron process, purportedly gradually putting material in, and the different Wyoming process, [00:25:50] Speaker 00: yield a change within these time periods? [00:25:56] Speaker 00: Is that an understandable question? [00:25:58] Speaker 05: Well, I'll try and answer it this way, Your Honor. [00:26:01] Speaker 00: Do you understand what I'm asking? [00:26:02] Speaker 05: I believe I do. [00:26:04] Speaker 00: Okay. [00:26:04] Speaker 05: And I would say, do they tie to these particular time periods? [00:26:11] Speaker 05: Certainly they could, because there's no time period specified. [00:26:15] Speaker 05: But more importantly, as I would urge the court to consider, [00:26:20] Speaker 05: the definition and the use of the word gradual is as the PCAP acknowledged in their decision below. [00:26:29] Speaker 05: The challenge is there are no time periods for that. [00:26:32] Speaker 05: So what is gradual and what is continuous? [00:26:37] Speaker 05: There's no quantified threshold to apply to, and that's a bit of a challenge with the Chevron definition, but the truth is [00:26:49] Speaker 05: It's the Chevron definition and they are stuck with it because they said it shall be understood to mean and indeed the Wyoming process meets exactly that. [00:27:02] Speaker 05: So to answer your question, yes, both processes meet those requirements and indeed while Chevron wants to distance from their own definition, they try to do it by using two examples, both of which acknowledge [00:27:19] Speaker 05: that the change is in the column and they try to use those examples as situations where they can distance themselves from an explicit thing that's in the specification. [00:27:35] Speaker 05: There's no inconsistency. [00:27:36] Speaker 05: The board followed exactly the definition of Chevron's specification and so the decision below should be affirmed. [00:27:47] Speaker 01: Okay. [00:27:49] Speaker 01: Any more questions for Mr. Santangelo? [00:27:52] Speaker 00: No. [00:27:53] Speaker 00: No, I'm fine. [00:27:54] Speaker 00: Thank you. [00:27:54] Speaker 01: Okay. [00:27:55] Speaker 01: Thank you. [00:27:56] Speaker 01: We'll hear from Mr. Coyne. [00:27:57] Speaker 01: Thank you, Your Honor. [00:27:59] Speaker 04: Returning to the last question on this 5 to 120 minutes. [00:28:02] Speaker 04: No, Mr. Santangelo is just flat wrong. [00:28:05] Speaker 04: And I would direct you to page 10 of the Red Brief. [00:28:09] Speaker 04: The experiments that they're relying on, post-hoc, extrinsic experiments, show a change over in the column [00:28:16] Speaker 04: of less than one minute. [00:28:18] Speaker 04: That is outside the range that is disclosed in the specification, the Chevron specification, which is the smallest is five minutes. [00:28:27] Speaker 04: And getting back to Judge Newman's question on, is this unusual? [00:28:31] Speaker 04: Yes, very highly. [00:28:33] Speaker 04: And we do know that whatever it is that Wyoming's doing does not satisfy the descriptions in page and paragraphs 38 and 40, the only process for the gradual and continuously changing that Chevron gives. [00:28:45] Speaker 04: because they don't do it that way. [00:28:47] Speaker 04: They put in extrinsic evidence showing they do it in less than a minute, and they don't do it with this process. [00:28:53] Speaker 04: Instead, what they do is a sudden immediate switch of one solvent to the other, and they've admitted that. [00:29:00] Speaker 04: In their red brief at page 36, lines 11 to 12, it is not itself that gradual and continuous change. [00:29:08] Speaker 04: And this is throughout the brief at 3, at page 9, 15, two places on 36, 40, [00:29:15] Speaker 04: 43, 45, 47. [00:29:16] Speaker 04: So when Mr. St. [00:29:18] Speaker 04: Angeles says, no, they haven't admitted it, they have. [00:29:22] Speaker 04: What they rely on is to try to backfill it with continuous or with mixtures, but there's no mixture that shows anything like what's in 38 to 40 and nothing that shows the kind of timeframe that we're talking about. [00:29:34] Speaker 04: In conclusion, really there's a lot of red flags here about the board's construction and what Wyoming is arguing. [00:29:41] Speaker 04: There is no clear disclaimer disavowed to support any argued lexicography. [00:29:46] Speaker 04: Sure, what the board did is inconsistent with the common ordinary meaning, but that wasn't a definition we gave. [00:29:52] Speaker 04: Starting at 37 and continuing down to 41, that description is entirely consistent. [00:29:57] Speaker 04: They're taking one set of 24 words out of context and ignoring the balance of the spec. [00:30:03] Speaker 04: They're ignoring the continuously changing. [00:30:06] Speaker 04: That's a criteria in the claim itself. [00:30:08] Speaker 04: It's a limitation. [00:30:09] Speaker 04: It doesn't say downstream in the column. [00:30:11] Speaker 04: It says continuously changing and where that change occurs is where you have to look at that. [00:30:16] Speaker 04: The construction that we're arguing of this incremental reduction with an incremental, simultaneous increase is what's described in the spec and the board's construction renders that term meaningless. [00:30:26] Speaker 04: Under area, the extrinsic evidence should not have been used. [00:30:29] Speaker 04: I see that I'm out of time, Your Honor. [00:30:31] Speaker 01: Thank you. [00:30:33] Speaker 01: Let's see if there are any more questions. [00:30:35] Speaker 01: Judge Laurie? [00:30:36] Speaker 01: No, no. [00:30:37] Speaker 01: Judge Shaw? [00:30:38] Speaker 02: No. [00:30:39] Speaker 01: Okay. [00:30:40] Speaker 01: All right. [00:30:41] Speaker 01: Thank you both. [00:30:42] Speaker 01: The case is taken under submission.