[00:00:10] Speaker 00:
The next case for argument is 191564 in Ray Chason.

[00:01:06] Speaker 01:
Good morning, Your Honors.

[00:01:07] Speaker 01:
May it please the court?

[00:01:07] Speaker 02:
Let me ask you a quick housekeeping question.

[00:01:10] Speaker 02:
In the red brief at three, the government contends that you argued that both proposed claims 16 and 18 are representative, but you didn't distinguish between them.

[00:01:23] Speaker 02:
Is claim 16 representative?

[00:01:27] Speaker 02:
Is claim 18 representative?

[00:01:29] Speaker 02:
And the government says they were argued together and without distinction, and they stand and fall together.

[00:01:36] Speaker 01:
They all essentially use the same language, so I think they are representative, Your Honor.

[00:01:42] Speaker 01:
Thank you.

[00:01:42] Speaker 01:
There are slight differences, but for the issue that's before the court, yes, I believe so.

[00:01:48] Speaker 01:
Thank you.

[00:01:51] Speaker 01:
My name is Michael Doan on behalf of Appellants Mark Chason, Daniel Roman Gamata, Rick Letella, and DMR International.

[00:01:58] Speaker 01:
With me is A.J.

[00:02:00] Speaker 01:
Jacketani, also Miles and Stockbridge.

[00:02:03] Speaker 01:
At its core, the issue before the court is whether the discussion of blending various components in the Sacraponte reference to make a powder composition renders obvious the requirement in the various claims of the 581 application that antimicrobial organometallic additives such as zinc stearate would be dispersed homogeneously throughout a thermoset polymer host matrix once it is cured, forming a substantially homogenous solid solution.

[00:02:31] Speaker 01:
How is blending not

[00:02:33] Speaker 01:
suggest a homogenous mixture?

[00:02:36] Speaker 01:
No, Your Honor, I don't believe so.

[00:02:37] Speaker 01:
Blending homogenous is a defined state of being.

[00:02:44] Speaker 01:
It's an end result.

[00:02:46] Speaker 00:
Homogeneity is defined in the claims or in the spec?

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Is there a definition?

[00:02:51] Speaker 01:
It is referred to in the spec at paragraph 60.

[00:02:58] Speaker 01:
Well, it's referred to as distributed homogeneously throughout the polymer.

[00:03:01] Speaker 01:
We do not give a specific definition ourselves of homogenous.

[00:03:04] Speaker 01:
But in our brief, we've given various dictionary definitions for homogenous.

[00:03:11] Speaker 02:
Powder compositions, I'm reading, may also optionally be blended with flow-promoting and flow-control agents, such as external additive particles and so on.

[00:03:22] Speaker 02:
Is it no longer homogenous?

[00:03:26] Speaker 01:
If the flow-control

[00:03:28] Speaker 01:
Excuse me, are you saying if the flow control additives are?

[00:03:33] Speaker 01:
Blended.

[00:03:33] Speaker 01:
Blended?

[00:03:35] Speaker 01:
I don't know.

[00:03:36] Speaker 01:
From this, I don't know whether it would be homogeneous ultimately or not.

[00:03:39] Speaker 01:
Because one thing to be clear about is what Sakrapani is discussing is a powder composition.

[00:03:47] Speaker 01:
What is claimed in the application is a, at least in the part of the claim that's relevant here, that we're directly involved with here,

[00:03:58] Speaker 01:
is homogeneity in the polymer host matrix once it has been cured to form a substantially homogenous solid.

[00:04:06] Speaker 01:
Whether the powder is homogenous or not is something that we don't claim.

[00:04:10] Speaker 01:
We don't claim a powder.

[00:04:10] Speaker 01:
We claim a homogenous polymer that coats a substrate used, for example, in hospitals or whatever on metal surfaces.

[00:04:20] Speaker 01:
And it's important to this state of the product

[00:04:25] Speaker 01:
to be homogenous throughout with the antimicrobial additives because as the product wears on the doorknob or on a metal surface in a hospital you want it to maintain the antimicrobial.

[00:04:36] Speaker 02:
When Sacraponte, I think I'm saying it right, describes blending the additives and polymer with a homogenizer, does that imply that it's homogenous?

[00:04:48] Speaker 01:
I don't know.

[00:04:48] Speaker 01:
I believe you're referring to page 734 of the appendix.

[00:04:54] Speaker 01:
I am, yes.

[00:04:55] Speaker 01:
The Brinkman homogenizer is a product.

[00:05:00] Speaker 01:
It's a product name.

[00:05:01] Speaker 01:
It does more than just homogenize.

[00:05:04] Speaker 01:
I believe it can do a dispersion.

[00:05:05] Speaker 01:
It can do an emulsion homogenization.

[00:05:09] Speaker 01:
This is just one thing.

[00:05:10] Speaker 01:
This description, although it says in here that a Brinkman homogenizer was used at one stage in this example three, it does not state what level it was

[00:05:23] Speaker 01:
placed at, whether it was set for homogenization or some other form.

[00:05:28] Speaker 01:
Also, I would note that it does not include zinc stearate at this rate.

[00:05:32] Speaker 01:
It's mixing something here, certainly.

[00:05:33] Speaker 01:
But we do not know where zinc stearate is added in.

[00:05:37] Speaker 01:
This example, this entire patent, is silent as to when or how these additives would be added.

[00:05:43] Speaker 01:
Does it teach how much to add?

[00:05:45] Speaker 01:
It doesn't teach when to add.

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It doesn't teach how long to stir it.

[00:05:48] Speaker 01:
It is silent as to all of this.

[00:05:50] Speaker 01:
It teaches nothing.

[00:05:52] Speaker 01:
Zinc stearate, in fact, is mentioned once in this entire application, only to state that it might optionally be added.

[00:06:00] Speaker 01:
It does not teach how to obtain what is ultimately achieved in the 5.8.1 application, once claimed in the 5.8.1 application.

[00:06:21] Speaker 01:
As I said, basically what the PTO has done is it cobbled together pieces from the Sacraponte reference and made conclusory statements about what it teaches.

[00:06:33] Speaker 01:
But it simply does not teach how to mix the zinc stearate or any other additive into to reach homogeneity.

[00:06:44] Speaker 01:
In fact, it doesn't even discuss homogeneity at all in this application.

[00:06:58] Speaker 01:
In short, they just don't provide one necessary skill in the art to obtain a polymer host matrix with antimicrobial organic additives such as zinc stearate dispersed homogeneously throughout the polymer host matrix.

[00:07:11] Speaker 01:
You'd have to experiment extensively to try and figure out how to reach this level of homogenization once the product is cured.

[00:07:20] Speaker 01:
Just because something in a powder form might be homogenous, and that's not even clear from

[00:07:27] Speaker 01:
The Sacraponte reference is referred to, they say, if I may, I'll read from the reference here, paragraph 62 on page 732 of the appendix.

[00:07:48] Speaker 01:
The government relies heavily on the statement such as external additive particles, which are usually present on the surface of the powder composition.

[00:07:57] Speaker 01:
It says, usually.

[00:07:58] Speaker 01:
It does not say always.

[00:08:00] Speaker 01:
Usually would indicate that it is not homogeneous throughout, that it therefore lacks homogeneity.

[00:08:11] Speaker 00:
Well, I don't know.

[00:08:11] Speaker 00:
I mean, your complaint, although it cuts both ways, I guess, is you're saying the board should have and did not construe dispersed homogeneity throughout, right?

[00:08:22] Speaker 01:
Correct.

[00:08:23] Speaker 00:
Your complaint.

[00:08:24] Speaker 00:
What's your claim construction for that term, for that phrase?

[00:08:28] Speaker 01:
For homogenous throughout?

[00:08:31] Speaker 00:
Dispersed homogeneously throughout.

[00:08:33] Speaker 00:
Your complaint is that the board didn't construe it.

[00:08:35] Speaker 00:
Well, did you offer construction, and what is that construction?

[00:08:37] Speaker 01:
To the board, we offered definitions of homogenous from our briefs to this court as well.

[00:08:47] Speaker 01:
For example, from Colin's English dictionary, and this is also in our brief,

[00:08:51] Speaker 01:
composed of similar or identical parts or elements of a uniform nature Similar in kind or nature having a constant property such as density throughout It's it's an end result offered that to the board as a proposed claim construction for the term dispersed homogeneously throughout I Cannot I cannot give you an answer to that and whether we really you know if a claim construction was offered Yes, it was

[00:09:20] Speaker 00:
And what did the board do?

[00:09:22] Speaker 02:
Where is that in the record, please?

[00:09:27] Speaker 01:
I'm sorry.

[00:09:27] Speaker 01:
I don't have that citation in front of me, Your Honor.

[00:09:32] Speaker 00:
And the claim also talks about substantially homogeneous.

[00:09:37] Speaker 00:
Did you offer construction for that?

[00:09:40] Speaker 01:
I believe we did, Your Honor.

[00:09:42] Speaker 01:
But once again, I don't have a citation for that.

[00:09:46] Speaker 01:
Well, you might want to come up with it.

[00:09:50] Speaker 01:
We certainly will, Your Honor.

[00:09:52] Speaker 01:
But just to get back to your question about how blending, whether blending necessarily indicates homogeneity, blending is not a state as homogenous.

[00:10:02] Speaker 01:
Blending is a process which can have a number of end results.

[00:10:06] Speaker 01:
It can be lightly blended or strongly blended.

[00:10:11] Speaker 02:
For example, so if it's like- Can it be blended until it's substantially homogenous?

[00:10:20] Speaker 01:
Yes, you could blend.

[00:10:23] Speaker 01:
Everything has to be mixed.

[00:10:26] Speaker 01:
It has to be mixed to the state so it meets the definition of homogenous.

[00:10:30] Speaker 01:
And once again, it has to be homogenous in the end product, not necessarily in the powder form.

[00:10:37] Speaker 01:
Homogeneity in the powder does not necessarily indicate homogeneity in the substantially homogenous solid solution.

[00:10:54] Speaker 01:
So if you blend lightly, if you want some examples of different types of blending, for example, if you want to mix, flour may in and of itself be homogeneous.

[00:11:08] Speaker 01:
But if you want it to be a different color, you might mix some dye in.

[00:11:10] Speaker 01:
But you have to mix it sufficiently for the dye to be dispersed throughout the powder in order to ultimately have a baked product of your

[00:11:21] Speaker 01:
of the right color.

[00:11:22] Speaker 00:
So you just use the words mix sufficiently.

[00:11:25] Speaker 00:
And that's different than blend?

[00:11:29] Speaker 00:
I mean, is mix sufficiently in the claim?

[00:11:33] Speaker 01:
No, it is not.

[00:11:36] Speaker 01:
But blend is not in the claim either.

[00:11:39] Speaker 01:
The claim language is dispersed homogeneously throughout.

[00:11:46] Speaker 01:
It does not talk about mixing or blending.

[00:11:51] Speaker 00:
Well, you just used the word mix for what I think you were describing the claim.

[00:11:55] Speaker 00:
I'm not making that up.

[00:11:57] Speaker 01:
No, I apologize if I was unclear on that.

[00:11:59] Speaker 01:
I'm not saying that that's part of the claim.

[00:12:01] Speaker 01:
I'm just saying I was using that to describe different types of blending that might not necessarily result in homogeneity in the end product.

[00:12:10] Speaker 01:
Blending can achieve various levels, depending on how it is done.

[00:12:16] Speaker 01:
And it does not necessarily equate to a homogenous end result.

[00:12:21] Speaker 00:
And the claim describes or the patent describes how you achieve the results of being dispersed homogeneously throughout.

[00:12:29] Speaker 00:
It tells you how to get there, not just that you get there.

[00:12:32] Speaker 01:
Yes.

[00:12:42] Speaker 01:
So to wrap up, the important issue, like I said, is the fact that,

[00:12:52] Speaker 01:
is that if one follows Sacraponte, if one follows teachings of Sacraponte, you learn that it talks about various stages of mixing various elements.

[00:13:04] Speaker 01:
It does not ever teach how to mix zinc stearate.

[00:13:07] Speaker 01:
It does not teach how much to put in.

[00:13:09] Speaker 01:
It does not teach how long to put in.

[00:13:11] Speaker 01:
It doesn't tell you what stage to put in.

[00:13:13] Speaker 01:
It simply does not enable one to obtain the product that is claimed.

[00:13:22] Speaker 01:
in the 581 application without undue experimentation.

[00:13:27] Speaker 02:
Thank you.

[00:13:31] Speaker 02:
Come up with those sites when you stand back up, OK?

[00:13:36] Speaker 01:
Yes, Your Honor.

[00:13:37] Speaker 02:
Thank you.

[00:13:42] Speaker 03:
Morning.

[00:13:42] Speaker 03:
Morning.

[00:13:42] Speaker 03:
May it please the court?

[00:13:44] Speaker 03:
I think the court understands the issue that blending it

[00:13:50] Speaker 03:
either discloses the claimed homogeneity or at least renders it obvious and certainly substantial evidence supports that finding by the board.

[00:14:03] Speaker 03:
I'm happy to talk about anything else.

[00:14:06] Speaker 02:
Many of us in our youth were able to sufficiently homogenize margaritas.

[00:14:11] Speaker 03:
I'm sorry.

[00:14:12] Speaker 02:
I said many of us in our youth were able to sufficiently homogenize margaritas using a blender.

[00:14:18] Speaker 03:
Using a blender, right.

[00:14:20] Speaker 03:
a homogenizer.

[00:14:21] Speaker 03:
I know that's also disclosed.

[00:14:23] Speaker 00:
Can you enlighten us a little about the issue of claim construction and your friend raises it on appeal that there should have been a claim construction.

[00:14:32] Speaker 00:
What was the back and forth on claim construction if any before?

[00:14:37] Speaker 00:
Did they ask for one?

[00:14:38] Speaker 03:
My reading of the record didn't have, I don't recall seeing any requests for a claim construction.

[00:14:44] Speaker 03:
There's discussion of construing terms in the prior art, which is really just a matter of

[00:14:51] Speaker 03:
finding out what the prior discloses.

[00:14:53] Speaker 03:
But in terms of the terms in the claim, I don't have any.

[00:14:58] Speaker 00:
OK, so the terms in the claim are dispersed homogeneity.

[00:15:02] Speaker 00:
So you don't recall any of that.

[00:15:04] Speaker 00:
So was there an effort to get someone to construe what blending means?

[00:15:09] Speaker 03:
I know there was a request or an argument that blending was misconstrued.

[00:15:17] Speaker 03:
I don't know that there was any.

[00:15:20] Speaker 03:
Dictionary definition is cited.

[00:15:23] Speaker 02:
Definition is different than a construction.

[00:15:24] Speaker 03:
Right.

[00:15:24] Speaker 03:
But I don't recall seeing any construction proposed for either the claim terms or the terms in the prior act.

[00:15:35] Speaker 03:
So I think that the claim construction issue hasn't really been raised at the board or even here.

[00:15:43] Speaker 03:
So it seems a little bit of a red herring.

[00:15:53] Speaker 03:
Thank you.

[00:16:08] Speaker 01:
Thank you.

[00:16:10] Speaker 01:
It is at paragraph 60060, appendix 520 and 520-21.

[00:16:33] Speaker 01:
That's where is it 520 to 21 is from from the Response and it's paragraph 60 on page Page 60 dying of the appendix the antimicrobial organic metallic additives form a solid solution with the polymer host matrix and are dispersed are distributed homogeneity throughout the polymer and request for a claim construction

[00:17:03] Speaker 01:
That's what we asked for.

[00:17:04] Speaker 01:
The request for a claim construction.

[00:17:06] Speaker 01:
Yes.

[00:17:07] Speaker 01:
Well, it is argued here at page 520 to 521, is my understanding.

[00:17:13] Speaker 01:
Wait, wait.

[00:17:15] Speaker 02:
We want you to construe this phrase as this meaning.

[00:17:20] Speaker 02:
Where does it say that?

[00:17:27] Speaker 02:
We want you to construe.

[00:17:30] Speaker 02:
You're correct, Your Honor.

[00:17:31] Speaker 01:
It does not say that at this point.

[00:17:40] Speaker 01:
Is there any other questions?