[00:00:00] Speaker 00: One case has been already submitted on the briefs. [00:00:05] Speaker 00: Our first case this morning is Interpol LLC versus Schlumberger Technology Corporation 19-10-79. [00:00:12] Speaker 00: Mr. Courtney, you reserve four minutes of your time for rebuttal. [00:00:18] Speaker 00: Is that correct? [00:00:19] Speaker 00: Yes, Your Honor. [00:00:20] Speaker 00: Okay, you may begin. [00:00:22] Speaker 02: Thank you, Your Honor. [00:00:24] Speaker 02: In Interpol's view, the core issue of this appeal is that the District Court's construction can't be reconciled with the clear internal grammar structure of the claim. [00:00:34] Speaker 02: Grammatically, our term is polymer continuous liquid phase. [00:00:38] Speaker 02: That's two adjectives, polymer continuous and liquid, modifying an object noun, phase. [00:00:44] Speaker 02: The district court's construction, respectfully, doesn't line up that way. [00:00:49] Speaker 02: The district court's construction treats as the central object noun, polymer. [00:00:52] Speaker 02: And then it modifies polymer with additional language addressing the liquid and polymer continuous restrictions. [00:00:59] Speaker 02: In our view, that is not the same as the structure our patentee gave in his claim. [00:01:05] Speaker 02: By analogy, if a claimant writes, I claim as my invention a red truck, [00:01:10] Speaker 02: bearing a hose for fighting fires, that's categorically different from claiming a red hose on a truck for fighting fires. [00:01:18] Speaker 02: All the concepts are in play, but the structure is different. [00:01:20] Speaker 02: And respectfully, we think that's the type of error the district court made. [00:01:25] Speaker 04: What is your construction? [00:01:28] Speaker 04: So for the term liquid phase, we urge... We're talking about a single phase, a single phrase. [00:01:35] Speaker 04: What is the totality of your construction? [00:01:38] Speaker 02: So the totality would be a phase, which is polymer or a mixture of polymer and water, or I'm sorry, polymer and carrier fluid, that takes the shape of its container and has a fixed volume, that's the liquid side, and is characterized by an accumulated network of polymers so that you can go from one side to the other in the polymer. [00:01:55] Speaker 02: That's the polymer continuous portion. [00:01:57] Speaker 04: So any given polymer, say, that has 15 monomers in it would be in itself continuous, and yet [00:02:06] Speaker 04: I assume you think that this term does not include a carrier fluid polymer combination where all the polymers, each one is continuous but highly dispersed. [00:02:23] Speaker 04: Why? [00:02:24] Speaker 04: First, do you agree that that would not come within the term? [00:02:29] Speaker 02: I don't think that would come with the term. [00:02:30] Speaker 04: And what is it about your construction that would exclude that? [00:02:36] Speaker 02: Respectfully, Your Honor, I don't think it's our construction that excludes that. [00:02:38] Speaker 02: I think it's the claim that excludes that. [00:02:40] Speaker 02: We're construing polymer continuous liquid phase. [00:02:43] Speaker 02: That phase is going to be, in this claimed method, displaced into the formation. [00:02:47] Speaker 02: So it's that we look at what we're displacing, and we say, does it meet the definition of a polymer continuous liquid phase? [00:02:56] Speaker 02: So if what we're displacing is polymer or a mixture of polymer and carrier fluid, [00:03:02] Speaker 02: that has a fixed volume, takes the shape of its container, and is characterized by an accumulation of uninterrupted polymer across this region of interest, then we would say that aspect of the claim is satisfied, Your Honor. [00:03:20] Speaker 03: I mean, there's a lot of different uses of the word phase in the patent specification. [00:03:25] Speaker 03: Polymer phase, a liquid phase. [00:03:28] Speaker 03: You know, phase has a general understanding of being liquid, gas, solid. [00:03:34] Speaker 03: What do you think phase means? [00:03:36] Speaker 03: Because phase is the thing, I guess the noun you're saying, that is modified by those adjectives. [00:03:44] Speaker 03: It seems like a weird use of the word phase. [00:03:46] Speaker 02: So certainly there are dictionaries in the record that use phase as a noun to describe a liquid, a solid, some homogenous material reference. [00:03:54] Speaker 02: That's not the use in this patent. [00:03:56] Speaker 02: There are many instances of phase, as Your Honor noted. [00:03:59] Speaker 02: I wouldn't say they are all different. [00:04:00] Speaker 02: I would say they all use phase the same. [00:04:02] Speaker 02: But in every instance, it's restricted by some attached modifier, polymer phase, continuous phase, external phase. [00:04:08] Speaker 02: The phase itself is used as a general term of reference to identify some component of the well system, some material component. [00:04:14] Speaker 02: If we're addressing a single component, we could just say the polymer phase. [00:04:18] Speaker 02: If we're addressing some broader component, we might address the entire liquid phase. [00:04:22] Speaker 02: We might address an external phase if it's dispersed. [00:04:25] Speaker 03: We might address an internal phase if the thing we're talking about is continuous. [00:04:33] Speaker 03: discontinuous and says or internal and then it says continuous or external what I don't understand what internal and external is in that context are those synonyms I think within this discussion of analyzing a mixture for a discontinuous aspect and the continuous aspect they are synonyms internal means the [00:04:55] Speaker 02: fit the phase or the aspect of the system that doesn't extend uninterrupted. [00:05:00] Speaker 02: It's broken up in some way like oil droplets in water. [00:05:04] Speaker 02: External means the larger, kind of more extensive phase. [00:05:11] Speaker 02: If our mixture of oil, droplets, and water, it's the water. [00:05:14] Speaker 02: There's a name. [00:05:17] Speaker 02: It's not solvent. [00:05:19] Speaker 02: containing fluid is called the external phase or the continuous phase in those instances. [00:05:25] Speaker 03: I think that they have ordinary meaning in this field. [00:05:31] Speaker 02: I don't think the patent is using either continuous or internal or external in any kind of new or non-standard fashion. [00:05:39] Speaker 02: Before the district court, we had some dictionaries that went into continuous. [00:05:44] Speaker 02: I don't recall if they made it into the record up here. [00:05:46] Speaker 02: I'm not sure they were cited by the parties, but they were in the record before the district court. [00:05:51] Speaker 04: The dictionaries about the little ant or little man walking along? [00:05:57] Speaker 02: I think we may have colored that in a little, but I do recall one dictionary did describe tracing a path. [00:06:03] Speaker 02: from one place to the other. [00:06:04] Speaker 02: I think the ant may have been color I added at one point. [00:06:07] Speaker 03: What is your best support and specification for your interpretation of continuous? [00:06:13] Speaker 02: within the specification. [00:06:15] Speaker 02: I think we have a lot of support for continuous. [00:06:16] Speaker 02: I think Chief is figure 2E and 2D, show the polymer in uninterrupted fashion, moving around or extending around. [00:06:24] Speaker 02: I think also the bottom of column seven and the top of column eight describe how this invention works by accumulating polymer, bringing it together. [00:06:31] Speaker 02: When it goes in the well bore, it's in pellets or particles that are not brought together. [00:06:36] Speaker 02: They must be brought together below. [00:06:38] Speaker 02: And column eight at [00:06:41] Speaker 04: Is that one embodiment that's described, or is this the patent? [00:06:45] Speaker 04: Always talk about putting the polymer in essentially solid form. [00:06:52] Speaker 02: Certainly the claim requires putting the polymer in solid bulk form. [00:06:55] Speaker 02: That's step A of the method. [00:06:57] Speaker 02: I believe all embodiments describe putting it in solid bulk form. [00:07:01] Speaker 02: Column seven and eight specifically, I would say it's one embodiment with several variations. [00:07:05] Speaker 02: There's a variation where the accumulation is by packing the particles together, that close packing. [00:07:11] Speaker 02: That's how you get solid particles into this configuration. [00:07:14] Speaker 02: You pack them together in some way. [00:07:16] Speaker 02: Column 8, line 33, describes using solid-liquid separation to accomplish it. [00:07:20] Speaker 02: You're going to separate the liquid, move the carrier fluid off this way. [00:07:23] Speaker 02: You're going to have your polymer particles over here. [00:07:26] Speaker 02: They're going to be brought together. [00:07:27] Speaker 02: They're going to accumulate. [00:07:28] Speaker 02: That, in bottom of column 7 and the top of column 8, is practicing the invention. [00:07:33] Speaker 03: Your schlumberger characterizes in their brief your, you know, [00:07:40] Speaker 03: ability to travel across and not have to go off the polymer as meaning uninterrupted. [00:07:48] Speaker 03: Do you agree with that characterization? [00:07:50] Speaker 03: It seems to me like it's probably a more technical way to describe being able to travel across. [00:07:55] Speaker 02: We feel good about uninterrupted. [00:07:57] Speaker 02: I actually think at this stage, between these parties, the ordinary meaning of continuous is not disputed. [00:08:03] Speaker 02: I think we agree it means uninterrupted, or we said accumulated network, which I think is getting at the same idea. [00:08:10] Speaker 02: Clearly, we have a dispute over applying that adjective, what it applies to, and how it applies to it. [00:08:16] Speaker 02: I think the patent, and we put this in a table on page 27 in our yellow brief, has a lot of evidence saying that applying an adjective to the [00:08:23] Speaker 02: phase, as the claim does, is different from applying an adjective to the polymer, as the district court did. [00:08:30] Speaker 04: Let me just try to ask the question that I was trying to formulate right at the beginning. [00:08:35] Speaker 04: How much of the polymer needs to be uninterrupted? [00:08:41] Speaker 02: Again, I think it's a region of interest type inquiry. [00:08:44] Speaker 02: We look at what's being displaced. [00:08:47] Speaker 02: And then in that volume that's being displaced, does the polymer extend uninterrupted across it? [00:08:52] Speaker 02: I don't think there's a quantitative measure of so many particles, so many milliliters, something like that. [00:08:58] Speaker 02: I think this is true jury inquiry, where it's going to look at the displacement from the well bore into the formation, as the claim describes, and say, is what's being displaced a polymer continuous liquid phase? [00:09:09] Speaker 03: How would a jury do that? [00:09:11] Speaker 02: I think a jury would take technical evidence that we would gather from Schlumberger about its operations. [00:09:18] Speaker 02: They would look at the materials going in, the timing, the act of displacement, how it's accomplished. [00:09:23] Speaker 02: And then they would hear expert testimony and fact testimony about whether what's being displaced is, in fact, a polymer continuous liquid phase under the appropriate construction. [00:09:31] Speaker 02: I think that's classic jury. [00:09:32] Speaker 03: So like evidence, for example, that the polymer encapsulates the fluid [00:09:39] Speaker 02: I think if there were evidence of that kind, technical material that said, yes, in the Schlumberger operation, the polymer is going to encapsulate the fluid, I think that's something the jury would take into account. [00:09:49] Speaker 03: I think if there were... What if it was percent value of the amount of polymer? [00:09:55] Speaker 03: I think percent volume, which is where the district court went, then you have to start taking- And the way part was distinguished in the prosecution history, right? [00:10:02] Speaker 03: At least one way. [00:10:03] Speaker 02: Anyway, I'm sorry I didn't- I'm not sure I agree with that latter part, but as to the percent volume, I think at that point, one would have to think about some things like, well, what's the character of the polymer that's going down? [00:10:13] Speaker 02: What's its shape? [00:10:14] Speaker 02: I think if it were 52% by volume, and these are spheres which pack very closely, I think at that point you could say, yeah, that probably is uninterrupted. [00:10:22] Speaker 02: We can imagine other pellet or particle shapes where the given percent volume might not be as informative as to whether it's polymer continuous or not. [00:10:31] Speaker 02: This is the kind of thing that is classic jury function, is to look at the evidence, have a clear understanding that polymer continuous means uninterrupted. [00:10:38] Speaker 02: and then try to weigh from the technical material, is it in fact uninterrupted at the time it moves from the well bore into the formation that created the refraction pressure. [00:10:46] Speaker 00: What about liquid phase? [00:10:47] Speaker 00: What exactly does that mean? [00:10:50] Speaker 00: Are we talking about a phase that exhibits only liquid characteristics? [00:10:55] Speaker 00: And isn't there support in the patent for the 50 percentage number that the court decided on? [00:11:03] Speaker 02: So I think there's two questions there. [00:11:05] Speaker 02: I'll take the second one first. [00:11:07] Speaker 02: The 50% limitation, certainly there is a reference to the 50% limitation in the middle of column 8. [00:11:13] Speaker 02: I was just discussing that with Judge Toronto. [00:11:15] Speaker 02: That's one embodiment of the patent. [00:11:16] Speaker 02: It's an embodiment specifically where he says these particles are close packed. [00:11:20] Speaker 02: That's in the immediate preceding sentence. [00:11:22] Speaker 02: For close-packed particles, I think the 50% restriction makes sense. [00:11:26] Speaker 02: We can readily imagine that. [00:11:28] Speaker 02: We imagine a different particle, say a long fibrous particle, which would be one available for use here. [00:11:35] Speaker 02: Then you could get a fishnet-type structure, where you have the necessary uninterruptedness, but the volume percentage is lower. [00:11:42] Speaker 02: I think the patent here does not articulate a quantitative restriction like the district court did. [00:11:46] Speaker 02: We think that's an aspect of the district court's error. [00:11:49] Speaker 02: I'm running short on time. [00:11:50] Speaker 02: May I answer the question about liquid? [00:11:53] Speaker 02: As to the meaning of liquid, we've given what we think is a classic physical definition. [00:11:57] Speaker 02: It has a fixed volume. [00:11:59] Speaker 02: It takes the shape of its container. [00:12:00] Speaker 02: I don't hear the EPILEE disputing that that's the classic physical definition of a liquid. [00:12:06] Speaker 02: We would then say, for the inquiry here, is there a phase that is liquid? [00:12:12] Speaker 02: If there is, then that aspect of the claim is satisfied. [00:12:15] Speaker 02: If there isn't, then it isn't. [00:12:17] Speaker 02: In our view, a phase could be polymer or a mixture of polymer and carrier fluid. [00:12:21] Speaker 02: So the liquidity could come from the polymer that's available, but it could also come from some other aspect of the system, such as from carrier fluid. [00:12:29] Speaker 04: Can I ask you, what, if anything, does the patent or anything else in our record tell us about the temperatures that would [00:12:40] Speaker 04: be assumed or possible either at the top of the well or down at the bottom of the well near the perforations? [00:12:51] Speaker 04: I think the answer could be really not much. [00:12:55] Speaker 02: I think the answer is not much, but it's not zero either. [00:12:58] Speaker 02: I think what this patent does is incorporate by reference a previous patent by the same, one same inventor, some other inventors too. [00:13:05] Speaker 04: The lactide one? [00:13:06] Speaker 02: The polylactide? [00:13:08] Speaker 02: The 964 patent, right. [00:13:10] Speaker 02: And that patent was doing benchtop experiments looking at how these polymers would behave in relevant temperatures. [00:13:16] Speaker 02: And the relevant temperatures, I mean, this was ExxonMobil at the time doing the work, their relevant temperatures were the underground temperatures. [00:13:22] Speaker 02: So we can glean something there. [00:13:23] Speaker 04: Which are in what kind of range? [00:13:25] Speaker 04: Well, you made a point about the difference between the glass transition temperature of 55 degrees centigrade and the melting temperature, at least I think, of that one at 180 degrees centigrade. [00:13:38] Speaker 04: And so I'm trying to understand if we can infer anything [00:13:42] Speaker 04: about the liquid or non-liquid state of the polymer from any information we have about the expected temperatures? [00:13:51] Speaker 02: So, respectfully, Ryan, I think this is part of the reason why we say this claim is not about the liquidity of the polymer. [00:13:57] Speaker 02: This claim is about the liquidity of the phase. [00:13:59] Speaker 02: And in that context, this issue of how polymer behaves at temperature kind of moves to the side. [00:14:05] Speaker 02: We do take the point. [00:14:07] Speaker 02: I think the point we're making in the briefing is that polymers are not like classical crystals. [00:14:12] Speaker 02: As they are heated, they don't do an immediate phase transition from solid to liquid. [00:14:17] Speaker 02: There's a softening that occurs over time. [00:14:21] Speaker 02: My understanding of the physics here is that these wells, underground it gets pretty hot, but it doesn't necessarily get hot enough to melt a polymer. [00:14:30] Speaker 02: And I think it's because of this that we think the references here to liquid are properly assigned to the phase and not to the polymer. [00:14:38] Speaker 03: And the phase, just to make sure, I'd asked you earlier what the phase was. [00:14:42] Speaker 03: I think your view is that the phase is the whole mixture, including the disbursement fluid and the polymer and any profit that might be there. [00:14:51] Speaker 03: Is that true? [00:14:52] Speaker 03: I'm just trying to understand what you mean by phase. [00:14:55] Speaker 02: I think phase is always used as a term of reference. [00:14:58] Speaker 02: I don't think there's any place in the patent where it just says, let's talk about a phase. [00:15:02] Speaker 02: It always says, let's talk about a specific phase, modified some way. [00:15:06] Speaker 02: Phase is the reference used to receive that modifier. [00:15:09] Speaker 02: So it refers to well material. [00:15:11] Speaker 02: Potentially, it could include all the well material. [00:15:13] Speaker 02: It could go that broad, depending on what modifiers attach to it. [00:15:16] Speaker 02: But for a term like polymer continuous phase, it is addressing an aspect of the well system that is polymer continuous. [00:15:23] Speaker 00: OK. [00:15:24] Speaker 00: Let's hear from the other side now. [00:15:30] Speaker 00: Mr. Grant, you reserve two minutes of your time. [00:15:34] Speaker 00: Is that putting it in cross claim? [00:15:36] Speaker 01: uh... it's for the cross-appealing of the jurisdictional issues are forward and i would imagine for going out here okay thank you just a lot when i see your question because you ask the right one discontinuous in internal are synonymous continuous and external are synonymous another question is what does that mean in the context of the phrase that we're dealing with a liquid phase what that means is in a liquid phase where everything's liquid the continuous [00:16:05] Speaker 01: component is the one that's doing the carrying, and the discontinuous is the one that's being carried. [00:16:11] Speaker 01: That's why, if all you're measuring is a liquid, the 50% turnover point between continuous and discontinuous makes sense. [00:16:19] Speaker 01: So if I can describe what the patent claims and what's set out clearly in the specification. [00:16:24] Speaker 01: You have a well bore. [00:16:25] Speaker 01: They're putting polymer pellets in at the top. [00:16:28] Speaker 01: That's described in Claim 24 as a slurry. [00:16:32] Speaker 01: And that, the patent makes clear, the polymer is in a discontinuous phase because you've got this fluid, carrier fluid, usually brine or water, that's carrying the pellets. [00:16:43] Speaker 01: That's why it's discontinuous at that stage. [00:16:46] Speaker 01: And then what the patent teaches is those pellets will then accumulate at a specific place in the well bore where the perforations are. [00:16:53] Speaker 01: The perforations are in the [00:16:55] Speaker 01: metal and concrete plate, you're then going to go into the formation and fracture the formation. [00:17:01] Speaker 01: At that stage, what the patent teaches in column 8 is it expressly describes the transition from discontinuous to continuous, and it says that you know your polymer phase becomes a continuous liquid phase when the polymer liquid becomes more than 50% by volume. [00:17:18] Speaker 00: You also asked a question about figure... What requires [00:17:23] Speaker 00: the polymer to be 50% of the polymer to be in a liquid state. [00:17:27] Speaker 01: Yeah, it's the continuous component. [00:17:29] Speaker 01: So my friend on the other side said, well, it's really a question of looking at the claim. [00:17:33] Speaker 01: We have a phase. [00:17:35] Speaker 01: What kind of a phase? [00:17:36] Speaker 01: Solid, liquid, or gas? [00:17:37] Speaker 01: It's liquid. [00:17:38] Speaker 01: Okay, now what's the modifier? [00:17:40] Speaker 01: It's a continuous liquid phase. [00:17:42] Speaker 01: So what that means is, within this liquid component, this overall mixture of liquid, [00:17:47] Speaker 01: The thing that we're talking about needs to be continuous, and that means it needs to be more than 50% by volume, because at this stage, that continuous component is going to do the carrying of what happens next, and it describes its polymer. [00:18:02] Speaker 03: Your view, as I understand it, is that that polymer can encapsulate and carry the water or whatever other liquid it is. [00:18:10] Speaker 03: unless it itself is at least 50% viable. [00:18:13] Speaker 01: That's right. [00:18:13] Speaker 01: And in fact, I think you asked a question about figure 2E, and it's important. [00:18:17] Speaker 01: I want to refer, my friend referred to the yellow brief at 27. [00:18:20] Speaker 01: Let's look at the yellow brief at 25. [00:18:22] Speaker 01: There's a statement in here that I think sets up some of the confusion, and it's candidly just an erroneous quote from the patent. [00:18:30] Speaker 01: If we look at the last sentence of the yellow brief at 25, it says, figure 2E depicts a, quote, polymer continuous liquid phase 29. [00:18:39] Speaker 01: That's erroneous. [00:18:41] Speaker 01: You'll find that nowhere in the patent. [00:18:43] Speaker 01: But if you go to the next page, immediately following 26 of their yellow brief, you see figure 2e as we colorized it. [00:18:51] Speaker 01: And then you see a correct quote, which explains and I think will answer your question, Judge Stoll. [00:18:56] Speaker 01: It's a correct quote, but with an incorrect emphasis. [00:19:00] Speaker 01: What it says is, figure 2e illustrates element 29. [00:19:03] Speaker 01: That's emphasized. [00:19:04] Speaker 01: Now the emphasis goes away. [00:19:05] Speaker 01: Of what? [00:19:07] Speaker 01: Of the propant-laden, then it tells us, polymer continuous liquid phase, fracturing fluid. [00:19:13] Speaker 01: 29 is not the polymer continuous liquid phase. [00:19:16] Speaker 01: And I think, candidly, it's my fault for not explaining this well enough below. [00:19:20] Speaker 01: I think that's why Judge Gilstrap misapprehended our position a little bit. [00:19:24] Speaker 01: 24. [00:19:26] Speaker 01: is the polymer continuous liquid phase. [00:19:28] Speaker 01: 29 is the prop and laden polymer continuous phase fracturing fluid. [00:19:34] Speaker 01: What is it made up of? [00:19:35] Speaker 01: It tells us. [00:19:36] Speaker 03: Can I interrupt you for a second? [00:19:39] Speaker 03: The patent doesn't say, though, that 24 is the polymer. [00:19:43] Speaker 03: I think it does say it's polymer continuous, but I don't see where it says it's the liquid phase. [00:19:48] Speaker 03: I believe it says it's [00:19:50] Speaker 03: Sure. [00:19:51] Speaker 03: Let me see if I can clarify. [00:19:55] Speaker 01: No, no, I think, respectfully, you're just mistaken. [00:19:58] Speaker 01: So what it says in column nine is the polymer continuous liquid phase fracture fluid is formed when the polymer 24 [00:20:06] Speaker 01: Now if you look at figure 2C, you see the pellets. [00:20:10] Speaker 01: Those are the ones that go in at the top. [00:20:12] Speaker 01: And then it says it becomes the continuous or external phase that carries the propant. [00:20:17] Speaker 01: Now if you look at column 4, column 4 is describing this. [00:20:22] Speaker 01: And column forces, figures 2a through 2e, illustrate pellets of degradable polymer with and without prop and before and after the coalescence of the pellets to form the polymer continuous liquid phase. [00:20:37] Speaker 01: And that's not just notable for what it says, Your Honor, it's even more notable because in the [00:20:42] Speaker 01: Provisional application, that's not what it said. [00:20:45] Speaker 01: In the provisional application, this is in the appendix at 2229, the original application said that figures 2a through 2e were depictions of a polymer continuous phase. [00:20:57] Speaker 01: And the patent examiner said, that's not good enough. [00:20:59] Speaker 01: You're not telling us what the state of matter is. [00:21:02] Speaker 01: You need to define it. [00:21:03] Speaker 01: And the patentee changed the language describing figures 2a through 2e and changed it from polymer continuous phase to polymer continuous liquid phase. [00:21:15] Speaker 01: So if you look at figure 2e, what you see is a continuous phase of polymer, 24. [00:21:21] Speaker 01: It used to be rigid solid pellets. [00:21:24] Speaker 01: It has now become liquefied in that continuous phase. [00:21:28] Speaker 01: It's carrying the propant. [00:21:29] Speaker 01: And it's also going to carry some of that carrier fluid as it does the fracturing. [00:21:35] Speaker 01: That's precisely what's described in column eight, that distinction and transition from discontinuous to continuous phase. [00:21:44] Speaker 01: And it's exactly what's set forth in claim one as well as in claim 24. [00:21:49] Speaker 01: When it talks about the conversion of the slurry, the slurry is the discontinuous polymer pellets with carrier fluid. [00:21:55] Speaker 01: conversion into a continuous liquid phase. [00:21:58] Speaker 01: And that's exactly what column four tells us that figure 2e is. [00:22:03] Speaker 01: There's another important point. [00:22:06] Speaker 00: What do you get the support for that continuous means liquid? [00:22:10] Speaker 00: It has to be liquid. [00:22:11] Speaker 01: No, no. [00:22:13] Speaker 01: So I get it from two places, your honor. [00:22:15] Speaker 01: So first of all, [00:22:17] Speaker 01: What is continuous, a liquid phase? [00:22:21] Speaker 01: That's in the claim language itself. [00:22:23] Speaker 01: Second of all, if the court looks, in addition to the one place in the prosecution history that I already pointed out, there's a second place in the prosecution history. [00:22:31] Speaker 01: So as the court is probably aware, at column seven, [00:22:34] Speaker 01: It talks about a PLA, which is just a type of degradable polymer. [00:22:39] Speaker 01: It says it's initially a rigid solid. [00:22:42] Speaker 01: It degrades into a compliant thermoplastic mass, then to a sticky semi-solid, then to a viscous liquid, and then it talks about it goes from the well bore into the formation as a liquid. [00:22:55] Speaker 01: Now, if you look at the prosecution history again, this is again appendix at 2229, [00:23:01] Speaker 01: The provisional application originally said the gradable polymer may begin as a rigid solid that's placed in the well bore where it becomes a thermoplastic having a selective viscosity. [00:23:15] Speaker 01: And so gels have a viscosity, but gels aren't necessarily liquids. [00:23:20] Speaker 01: the patent examiner said that's not clear enough and so there was an amendment and that very language thermoplastic was changed and it said that the present invention starts as a rigid solid is placed in the well bore where it becomes a viscous liquid that can be injected into the perforation so [00:23:38] Speaker 03: It's the provisional application. [00:23:54] Speaker 01: So the provisional application had that language. [00:23:57] Speaker 01: and then it was required to be changed and the site for that is 2232 with the first one that I talked to you about on the figure 2e and the one that I've just been discussing is at 2233. [00:24:11] Speaker 01: So your question your honor is the claim language talks about what is continuous. [00:24:16] Speaker 01: It's a liquid phase. [00:24:17] Speaker 01: By the same token if you look at the clarification which is in our view just a clarification of the plain meaning of what the word [00:24:25] Speaker 01: continuous means in a phase where the phase is entirely liquid. [00:24:31] Speaker 01: Well, how does something become the majority, the external, or the thing that's doing the carrying when what you have is entirely liquid? [00:24:39] Speaker 01: Well, it's got to be more than 50%. [00:24:40] Speaker 03: Can I ask you something? [00:24:42] Speaker 03: Of course. [00:24:42] Speaker 03: You talk about entirely liquid, but I'm not sure that Judge Hillstrap agreed with the entirely liquid. [00:24:47] Speaker 03: I think he said that it's liquid, but not entirely liquid. [00:24:51] Speaker 03: At least 50% of the polymer has to be liquid. [00:24:54] Speaker 01: So this is what goes back to the yellow brief, Your Honor. [00:24:57] Speaker 01: What I think is, there was a straw man put out that number 29, we argued, allegedly needed to be all liquid. [00:25:06] Speaker 01: We never said that. [00:25:07] Speaker 01: What we said is 24. [00:25:10] Speaker 01: in figure 2e needs to be polymer that's in a liquid state, which is what the judge found. [00:25:16] Speaker 01: Now, I think what the judge confused was that characterization, which we note in the red brief at 26 and footnote 9 was not our position. [00:25:27] Speaker 01: But what I think the judge thought was, well, you're saying, Slumberge, all of figure 2e needs to be liquid. [00:25:33] Speaker 01: That can't be right, because there's propenter sand in there. [00:25:35] Speaker 01: That's a misstatement of our position. [00:25:37] Speaker 01: Our position was that the polymer needs to be liquid, and that's what the court found. [00:25:42] Speaker 01: I want to raise one other point, and this is the 50% point, Your Honor. [00:25:46] Speaker 01: I would refer the court to the appendix at 2421. [00:25:50] Speaker 01: What the court will see is that's a transcript from the claim construction hearing. [00:25:55] Speaker 01: And we've had some discussions about waiver and those sorts of things. [00:25:58] Speaker 01: And what I want to make sure that the court sees is that the district court on 2429 expressly asked Interpol's counsel about this place, Judge Raina, that you're asking about in column 8. [00:26:10] Speaker 01: And then the court said, well, look at the next sentence. [00:26:13] Speaker 01: When the degradable polymer becomes the continuous or external phase, the fraction of the degradable polymer will have increased to greater than 50% by volume. [00:26:21] Speaker 01: By volume, of course, means that they're both liquids. [00:26:24] Speaker 01: And so the district court asked Interpol's counsel this during the hearing. [00:26:27] Speaker 01: What does Interpol's counsel say over the next page and a half? [00:26:31] Speaker 01: He says, well, this tells us that it's accumulated sufficiently so that we have a concentration of 50% by volume. [00:26:37] Speaker 01: The fraction of the degradable polymer would increase to greater than 50%. [00:26:41] Speaker 01: And then he says, at line 18 on appendix 2422, [00:26:47] Speaker 01: That's what it means to be continuous. [00:26:49] Speaker 01: And then it says that line 21, what your honor pointed out in column eight where it talks about the concentration is exactly the point. [00:26:57] Speaker 01: So this discussion about what it means to be continuous was raised with the district court by Interpol's counsel, and he affirmed in open court [00:27:06] Speaker 01: that that interpretation is correct. [00:27:08] Speaker 01: Now, to the extent my brother gets up and says, well, the court misunderstood what we meant by that. [00:27:13] Speaker 01: We were talking about it doesn't necessarily have to be liquid. [00:27:17] Speaker 01: I would submit to the court to look at that component of the transcript and make its own judgment about that. [00:27:24] Speaker 01: But regardless, if there was an issue with the 50%, it was either expressly addressed by counsel during the claim construction hearing or should have been taken up afterwards. [00:27:34] Speaker 00: So let's go back. [00:27:37] Speaker 00: Your argument is that in the liquid phase that it cannot include any amount of solid polymer. [00:27:44] Speaker 00: There's no solid polymer. [00:27:46] Speaker 01: Our view is the polymer continuous liquid phase should be liquid polymer. [00:27:51] Speaker 00: It's all liquid. [00:27:52] Speaker 01: It's all liquid polymer. [00:27:54] Speaker 00: Where do you get the support for that? [00:27:55] Speaker 00: It must be all liquid. [00:27:57] Speaker 00: There cannot be any solid polymer. [00:27:59] Speaker 01: Well, sure. [00:28:01] Speaker 01: So where we get it from is from the claim language itself. [00:28:07] Speaker 01: And to be clear, there are numerous embodiments in the specification, many of which are unclaimed. [00:28:13] Speaker 01: Polymer phase, polymer continuous polymer phase. [00:28:16] Speaker 01: The only ones that are claimed are continuous liquid phase. [00:28:19] Speaker 01: And so what the specification describes... [00:28:22] Speaker 04: Of course. [00:28:23] Speaker 04: Focus on the specific, put aside the claim language and just take as an assumption that if only because of the little dash between the word polymer and the word continuous that I don't think that the claim language expressly indicates that the polymer has to be entirely liquid. [00:28:41] Speaker 04: What else is there that pushes us in that direction? [00:28:44] Speaker 01: Sure. [00:28:45] Speaker 01: So if we look at column 7, lines 12 to 18, the one that I briefly already described, the polymer starts as a rigid solid, becomes a thermoplastic mass, then a sticky semi-solid, and then transitions into a viscous liquid. [00:29:01] Speaker 01: If we see column 9 at lines 44 to 46, it talks about using softening agents or solvents to accelerate the polymer [00:29:10] Speaker 01: becoming a continuous phase of fluid. [00:29:15] Speaker 01: Fluid obviously is liquid. [00:29:17] Speaker 01: And then I would also submit to the court column 5, lines 6 to approximately 10, where it talks about the fracturing fluid used herein is quite different [00:29:28] Speaker 01: from fluids that are normally used in which the degradable polymer is dispersed in the liquid to increase the viscosity. [00:29:35] Speaker 01: Here what we're doing is fundamentally different from that. [00:29:38] Speaker 00: You haven't cited anything that gives support that all polymer must be liquid, that there cannot be any solid polymer in the liquid phase. [00:29:49] Speaker 01: So I believe, Your Honor, that those sites and the specs support a plain meaning. [00:29:55] Speaker 01: And additionally, prosecution history in the two places where I've discussed, where the applicant was required to change polymer continuous phase to polymer continuous liquid phase, and where the applicant changed thermoplastic into viscous liquid. [00:30:12] Speaker 01: What the patent repeatedly talks about different [00:30:18] Speaker 01: But the embodiment that's claimed, the polymer continuous liquid phase, it talks about solely in connection with it being a fluid or a liquid, and it talks about its transition from that rigid solid that starts out at the top of the well bore and transitioning into a viscous liquid. [00:30:36] Speaker 00: Okay. [00:30:36] Speaker 00: Let's stop there because you're out of time. [00:30:41] Speaker 00: And let's hear on the cross-across. [00:30:44] Speaker 00: Thank you. [00:30:44] Speaker 00: You used up your time. [00:30:45] Speaker 00: You said you were not going to address cross-across. [00:30:47] Speaker 01: If the court has no questions on the jurisdictional issue, then I would ask the court to affirm. [00:30:53] Speaker 00: Yes, we have a question. [00:30:54] Speaker 03: I'm sorry, one question. [00:30:56] Speaker 03: So, I'm just wondering, on page A21, the court, this is the district court's opinion. [00:31:04] Speaker 03: It says the person who ordered Scalming Art would understand that at least a percentage of the reviewed polymer must change from a solid to a liquid. [00:31:13] Speaker 03: However, there's no requirement that all degradable polymer be in liquid form. [00:31:18] Speaker 03: If I agree with that, and I think that that's how this term was construed and that it's consistent with the construction of the district board, [00:31:29] Speaker 03: I don't understand what the problem would be if why it has to be the entirety of the polymer is in liquid form. [00:31:38] Speaker 01: Look, I don't pretend to tell the court it's business. [00:31:42] Speaker 01: It certainly needs to be substantially in liquid form. [00:31:45] Speaker 01: And the point you're raising, Your Honor, and you're questioning is, here's the problem. [00:31:48] Speaker 01: I think what Enterpol is hoping to do is get a remand where it can argue that some metaphysical amount of collected polymers... Is it that there's some sort of stipulation here? [00:31:58] Speaker 01: Well, so the problem with the stipulation again relates to the issue. [00:32:02] Speaker 01: I mean, the problem with the stipulation is we have a general judgment that was entered over our objection. [00:32:08] Speaker 01: In my opinion, it's no different than a general jury verdict. [00:32:11] Speaker 01: If we had had a situation where Interpol had refused to issue special interrogatories to a jury, [00:32:17] Speaker 01: asked for a general verdict, and there were three alternative bases for us to have a finding of non-infringement. [00:32:22] Speaker 01: This court wouldn't entertain it coming here and saying there's not substantial evidence for one of those, and therefore you should remand. [00:32:29] Speaker 01: That's effectively what they've done here. [00:32:31] Speaker 01: They by choice sought a general judgment that doesn't differentiate the basis of non-infringement of these three different components of the claim construction, each of which we believe is independently dispositive, [00:32:44] Speaker 01: and they've come up here and they're either, which I don't believe because these are knowledgeable counsel that know this court's law, they're either asking for an advisory verdict on two of those components or those components are dispositive. [00:32:55] Speaker 01: So I would submit, Your Honor, substantially liquid, majority liquid, but what we have to avoid is the construction that creates a purported fact issue out of metaphysical, insignificant amounts of polymer. [00:33:08] Speaker 01: And if you look at the appendix, if you look at the appendix at [00:33:14] Speaker 01: It's 3153 slide 24. [00:33:17] Speaker 01: It's about 11 minutes and 40 seconds in. [00:33:20] Speaker 01: What you see is part of the tech tutorial. [00:33:23] Speaker 01: This is Interpol's tech tutorial. [00:33:25] Speaker 01: This isn't a picture from a treatise. [00:33:27] Speaker 01: This isn't a picture from the patent. [00:33:29] Speaker 01: This is from our product literature. [00:33:31] Speaker 01: And what I think is unfair on the equities, Your Honor, is the court, it's referenced in the record, although it's not expressly in the record. [00:33:40] Speaker 01: But before discovery even started in this case, before there was any discovery whatsoever, we went to Interpol with a detailed sworn declaration, 66 paragraphs, 14 exhibits. [00:33:51] Speaker 01: And we provided 135 pounds of polymer for them to test. [00:33:55] Speaker 01: And we explained why we believed, under any kind of a reasonable construction, [00:33:59] Speaker 01: This case shouldn't go forward. [00:34:01] Speaker 01: So to the extent the court says, well, maybe there wasn't enough fact development. [00:34:05] Speaker 01: I'm not sure that the parties knew enough to understand how to clarify the claim construction issue. [00:34:10] Speaker 01: So these three separate components were clear enough. [00:34:13] Speaker 01: That's just not true. [00:34:14] Speaker 01: We did that as officers of the court to try to avoid inexpensive litigation. [00:34:19] Speaker 01: And Interpol, having told the district court, [00:34:21] Speaker 01: These questions about the specificity of judgment are issues for the Federal Circuit, not for you, Judge. [00:34:27] Speaker 01: And then to come here and say, well, these questions about claim construction, to the extent there's ambiguity, you should remand. [00:34:32] Speaker 01: And those are fact issues for the jury. [00:34:34] Speaker 01: I would submit that that's not the right result. [00:34:37] Speaker 01: The right result is each of these three independent bases should be requirements and separate bases for the court to affirm. [00:34:43] Speaker 01: Thank you. [00:34:44] Speaker 01: Thank you. [00:34:49] Speaker 00: Mr. Courtney, you have four minutes. [00:34:50] Speaker 00: I'm really sure you have four minutes. [00:34:53] Speaker 02: Thank you, Your Honor. [00:34:54] Speaker 02: I'd like to begin kind of at the end there on the stipulation. [00:34:59] Speaker 02: Council for the Appellee repeatedly said there's three separate issues here. [00:35:03] Speaker 02: There's not. [00:35:03] Speaker 02: There's one construction with these interrelated issues. [00:35:06] Speaker 02: There has to be polymer in a liquid state that exceeds 50% volume by weight. [00:35:12] Speaker 02: Or I'm sorry, 50% by volume of the fluid that does the fraction. [00:35:16] Speaker 02: These are all interrelated. [00:35:17] Speaker 04: Just to double check something, you would agree, would you not, that if the claim construction were revised, [00:35:23] Speaker 04: And that summary judgment remains a procedural possibility that certain elements actually where the question would be, what does the evidence show as opposed to what you agreed to? [00:35:39] Speaker 02: Certainly, Your Honor. [00:35:40] Speaker 02: I will note discovery had not closed in this case. [00:35:42] Speaker 02: So we would expect discovery to conclude. [00:35:44] Speaker 02: And then if we don't ever like to stand on, we expect a rapid summary judgment motion. [00:35:49] Speaker 04: Can I just ask you on the merits? [00:35:51] Speaker 04: And I may have misunderstood Mr. Grant. [00:35:55] Speaker 04: But if I understood, here's what I guess I want you to address. [00:36:00] Speaker 04: I sort of understood him to say continuous and external are the same once the polymer is continuous. [00:36:08] Speaker 04: that is plain on the language of the claim, then it is also therefore external. [00:36:15] Speaker 04: And if the whole thing is liquid in character, the thing that's external must be liquid in character too. [00:36:22] Speaker 04: Therefore, the continuous column must be liquid in character. [00:36:27] Speaker 02: I think that is the logic that the appellee is presenting. [00:36:30] Speaker 02: I think there's several problems with it. [00:36:32] Speaker 02: I think the first is that it – I would challenge the appellee and we challenge in the briefs to identify what it thinks phase means in this claim, because as far as I can tell, appellee's position reads identically if the claim read polymer continuous liquid as if it reads polymer continuous liquid phase. [00:36:45] Speaker 02: This is why we think structure is so important. [00:36:47] Speaker 02: The claim here is to a polymer-continuous liquid phase. [00:36:50] Speaker 02: The patent teaches that's broader than just a single element. [00:36:54] Speaker 02: Judge Stoll, you had some question about why the appellee is so vigilant to try to argue that it must be entirely liquid, and this is the nature of its difficulty. [00:37:03] Speaker 02: Patentee's definitions point to phase and say a phase must be homogenous. [00:37:07] Speaker 02: So if the patentee thinks this claim is to polymer-continuous liquid and phase just means homogenous, [00:37:13] Speaker 02: homogenous polymer and continuous liquid, then that leaves no room for anything that's not polymer and not liquid. [00:37:19] Speaker 03: I asked about Judge Gelstrap's interpretation. [00:37:24] Speaker 03: Do you think that that interpretation means that the entire polymer must be liquid? [00:37:33] Speaker 02: Certainly Judge Gilstrap's holding was that 50% had to be liquid. [00:37:37] Speaker 02: We don't agree with that. [00:37:38] Speaker 03: And I'd like to have some discussion of... I just wanted to make sure I understood. [00:37:42] Speaker 02: I'd like to have some discussion, two points on that. [00:37:45] Speaker 02: Number one, I think counsel for the Appellee represented that column eight with a 50%, he said that's all liquid. [00:37:51] Speaker 02: That's not what collimate says, and I would hope the panel would review collimate. [00:37:54] Speaker 02: Collimate says the particles there are closely packing, and it is upon that closely packing that you get the 50%. [00:37:59] Speaker 02: It does not say liquid anywhere in collimate. [00:38:01] Speaker 02: The words liquid polymer are nowhere in this patent. [00:38:04] Speaker 04: Can I just return you to the question that I asked, because I'm not quite getting the answer. [00:38:09] Speaker 04: Do you disagree that if there is this external material that's the component of whatever this liquid phase thing is, [00:38:19] Speaker 04: that and the whole component wrapped in this external thing behaves like a liquid that that wrapping has to be liquid. [00:38:36] Speaker 02: The claim says liquid phase. [00:38:37] Speaker 02: It requires a phase that is liquid. [00:38:40] Speaker 02: it requires that there be continuous polymer. [00:38:43] Speaker 02: It does not require that that polymer be liquid. [00:38:46] Speaker 02: It is possible, and the patent teaches, how to have continuous solid. [00:38:49] Speaker 02: The 50% that the district court erroneously over relied on, it imported this embodiment into the specification, is expressly describing particles. [00:38:58] Speaker 02: Our presentation at the Markman hearing was expressly explaining to Judge Gilstrap, yes, that 50% limitation is present in the patent. [00:39:08] Speaker 02: But it is not describing that material becoming liquid. [00:39:10] Speaker 03: You said that it describes the continuous, right? [00:39:15] Speaker 02: Those are the words the patent uses. [00:39:17] Speaker 02: It says it describes continuous, but the patent is saying these are particles that are becoming continuous. [00:39:22] Speaker 02: In this embodiment, are those particles reaching a volume percentage of 50%? [00:39:26] Speaker 02: Yes. [00:39:26] Speaker 02: Are they liquid? [00:39:27] Speaker 02: No. [00:39:28] Speaker 02: I think, respectfully, there's a suggestion that we were saying the judge misunderstood this discussion. [00:39:34] Speaker 02: There's no requirement. [00:39:35] Speaker 02: I believe the misunderstand. [00:39:36] Speaker 00: There's no requirement that the polymer be liquid. [00:39:39] Speaker 00: But it could all be liquid. [00:39:41] Speaker 00: There's no requirement, right? [00:39:42] Speaker 02: There's no requirement in the claim, and there's no teaching anywhere in the patent that the polymer is all liquid. [00:39:47] Speaker 03: Is it possible to? [00:39:50] Speaker 03: meet these claim limitations and not have some of the polymer be liquid since the claim is requiring that this phase be displaced from the wellbore into the formation at pressure greater than the fracturing pressure of the formation. [00:40:07] Speaker 03: Is it even possible to accomplish that if the polymer isn't at least part liquid? [00:40:14] Speaker 03: Considering that it's continuous, meaning that it's wrapping around liquid. [00:40:18] Speaker 02: I think as a matter of claim interpretation, it is possible. [00:40:21] Speaker 02: The claim does not restrict the state of the polymer. [00:40:23] Speaker 03: As a technical matter... [00:40:33] Speaker 03: like you want it to. [00:40:34] Speaker 03: I'm wondering whether what you're propositioning makes sense scientifically. [00:40:37] Speaker 02: I think as a technical matter, the patentee, my client, believed it was possible. [00:40:41] Speaker 02: And I also believe it's possible. [00:40:43] Speaker 02: However, I am not an oil field expert. [00:40:44] Speaker 02: And as this case moves forward to trial, I have no doubt there'll be fact finding on this point. [00:40:50] Speaker 02: I'd like to briefly discuss this point that you're out of time. [00:40:54] Speaker 02: So why don't you sum up? [00:40:57] Speaker 02: Sure. [00:40:57] Speaker 02: I think the final point I made, we heard that after the counsel for the appellee relied heavily on column 8, he said, all that stuff in column 8 is unclaimed embodiments. [00:41:06] Speaker 02: And respectfully, that's not a self-proving assertion. [00:41:10] Speaker 02: I think to demonstrate that these are unclaimed embodiments, the burden would be on the appellee to sow some language of restriction or exclusion. [00:41:16] Speaker 02: That's not present here. [00:41:17] Speaker 02: This court from GE Lighting and other cases generally construes claims to cover the description. [00:41:22] Speaker 02: There's extensive description of polymer not degrading. [00:41:25] Speaker 02: It's in our table. [00:41:26] Speaker 02: Column 13, the middle of column 13, expressly describes a zero-degradation embodiment, where there is no degradation of the polymer at any time while it's in the wellbore until it is in the rock. [00:41:36] Speaker 00: Thank you. [00:41:37] Speaker 02: We have you already. [00:41:38] Speaker 02: Thank you.