[00:00:30] Speaker 02:
Okay.

[00:00:32] Speaker 02:
Ms.

[00:00:32] Speaker 02:
Gardner?

[00:00:34] Speaker 00:
Good morning, Your Honors.

[00:00:35] Speaker 00:
Thank you.

[00:00:37] Speaker 00:
We're here today to contest the board's decision regarding the invalidity of Infinium's patent directed to a novel combination of antioxidant and

[00:00:50] Speaker 00:
and detergent used in an oil formulation that provided improved and unexpected advantage.

[00:00:57] Speaker 02:
On page 42 of the red brief, Afton says that for the first time on appeal, you raise a new argument that the prior art did not recognize the claimed optimized parameter to be a resolved effective variable.

[00:01:11] Speaker 02:
Where in the record was this raised below?

[00:01:15] Speaker 00:
All throughout the record, we never cited the particular case, but all throughout the record we've contended that the invention is the novel combination.

[00:01:24] Speaker 00:
of the antioxidant and the magnesium that overcame the boar polish result.

[00:01:29] Speaker 00:
We maintained that it wasn't taught by the prior art.

[00:01:33] Speaker 00:
And I don't believe that we are precluded from citing a new case that wasn't cited originally.

[00:01:40] Speaker 00:
It's simply a case that shows what has to be shown for purposes of obviousness that wasn't shown here.

[00:01:47] Speaker 00:
We certainly didn't anticipate that the board would make a decision that was effectively

[00:01:54] Speaker 00:
a decision on anticipation in support of its obviousness conclusion.

[00:02:00] Speaker 00:
So if it's – and I can address obviousness a little bit more later.

[00:02:05] Speaker 00:
I'd first like to address anticipation.

[00:02:07] Speaker 02:
On page 11 of the Red Gray, Afton says it's uncontested that a person of skill would formulate compositions that meet industry standards, including those set forth in ACEA 2004.

[00:02:21] Speaker 02:
Do you agree with that?

[00:02:23] Speaker 00:
We agree that the whole point of innovation in this industry by all of the parties and all the players is try to formulate to meet specifications that doesn't address anything having to do with how you meet those specifications.

[00:02:39] Speaker 00:
So again, if you'd like to discuss obviousness first, we can go to obviousness.

[00:02:44] Speaker 00:
The ACIA specification is a specification with performance goals.

[00:02:49] Speaker 00:
It's a challenge.

[00:02:50] Speaker 02:
What I'd like to do is address my questions.

[00:02:52] Speaker 00:
Okay.

[00:02:53] Speaker 00:
Thank you, Your Honor.

[00:02:54] Speaker 02:
On page 14 of the Red Brief, Afton says, it's undisputed that Nicholson teaches an example for a formulation comprising a magnesium detergent and a combination of aminic and phenolic antioxidants.

[00:03:11] Speaker 02:
Do you dispute that?

[00:03:13] Speaker 00:
We dispute that it teaches the combination claimed.

[00:03:17] Speaker 02:
Okay.

[00:03:17] Speaker 02:
Those are sort of housekeeping

[00:03:19] Speaker 02:
I want to know whether they're disputed or not.

[00:03:21] Speaker 02:
Go ahead.

[00:03:22] Speaker 00:
Thank you, Your Honor.

[00:03:24] Speaker 00:
Turning to anticipation, there is no substantial evidence cited by the board nor existing in the record to support the board's holding of anticipation by examples five and six of the COPA reference.

[00:03:39] Speaker 00:
So the COPA reference is, and just to be clear, these formulations that we're talking about use

[00:03:48] Speaker 00:
ingredients that people can get off the shelf and combine in varying amounts.

[00:03:53] Speaker 00:
However, the fact that the components are known components doesn't negate against invention.

[00:03:59] Speaker 00:
Both parties employ 50 to 100 PhD scientists to constantly

[00:04:05] Speaker 00:
come up with formulations that can meet the new and ever challenging performance criteria that are put forth by regulators.

[00:04:15] Speaker 00:
So the challenge is always to meet the performance goals of specifications

[00:04:20] Speaker 00:
to meet the performance goals presented by new innovations in engine technology, and how do we combine the various components to do that.

[00:04:30] Speaker 00:
So Copla is a reference from 1988, which is about 20 years before the idea of more polish was even appreciated.

[00:04:40] Speaker 05:
It is directed – yes, Your Honor.

[00:04:56] Speaker 05:
Maybe even the only dispute between you and the other side is whether this reference to a commercially available product does the trick on a particular claim element or doesn't do the trick.

[00:05:11] Speaker 00:
That's correct, Your Honor, because we're only focusing on a particular example in the specification of COCA.

[00:05:17] Speaker 00:
We're not focusing on the overall teaching as some sort of prior invention.

[00:05:20] Speaker 00:
or a teaching that is describing and enabling an invention, the question is whether or not this particular comparative example that was run in 1988 happened to have coincidentally fallen within the scope of what Infinium has now claimed, and thereby it's an anticipation almost by accident.

[00:05:39] Speaker 00:
So the burden for Afton is to demonstrate that each element is either expressly present in that example or inherently present.

[00:05:48] Speaker 00:
During its... Well, let me ask you that.

[00:05:51] Speaker 02:
Yes, sir.

[00:05:52] Speaker 02:
Cole-Claude discloses examples that include a base stock of lubricating viscosity, antioxidants, and magnesium sulfonate detergent having a TBN of 400 and contributing 0.15 weight percent magnesium to the total mass of the composition.

[00:06:12] Speaker 02:
You'd agree with that?

[00:06:13] Speaker 00:
Yes, the only dispute with respect to COCLA is whether or not the antioxidant component of the claims is met.

[00:06:21] Speaker 02:
So COCLA discloses antioxidant limitations.

[00:06:25] Speaker 02:
The components F and G of the examples 5 and 6 met the claim range of at least 0.6 mass percent up to 3.0 mass percent.

[00:06:40] Speaker 02:
Yes?

[00:06:41] Speaker 00:
No.

[00:06:42] Speaker 00:
So that is where the dispute lies.

[00:06:44] Speaker 00:
So with respect to the antioxidant limitation, there are two antioxidants recited in examples five and six of COGLA.

[00:06:52] Speaker 00:
Antioxidant F and antioxidant G.

[00:06:57] Speaker 00:
And there's no dispute about antioxidant F. It's antioxidant G. And I have to also say that we need a correction on page 12 of our brief where we say it's 1% of G and 0.4% of F. It's actually 0.4% of G and 1% of F. But that is reflected throughout all of the briefing.

[00:07:16] Speaker 00:
But the issue is whether or not, what is 0.4% of G?

[00:07:20] Speaker 00:
What is taught by that?

[00:07:21] Speaker 00:
And is that teaching an amount of aminic antioxidant

[00:07:26] Speaker 00:
such that when you add F and G, the total amounts of those antioxidants falls within the scope of the claimed range.

[00:07:34] Speaker 00:
And so that's the issue.

[00:07:35] Speaker 00:
And it has to either be expressly stated or it has to be inherently stated.

[00:07:40] Speaker 00:
Now, in its petition and in its expert declarations, Afton took the position that component G is the commercial product Ergonox L57.

[00:07:53] Speaker 00:
They took that position.

[00:07:55] Speaker 00:
They said it's clearly

[00:07:56] Speaker 05:
taught by Coca, in fact the reason...

[00:08:08] Speaker 05:
Because it says the name of the substance commercially available from.

[00:08:15] Speaker 05:
And that's a little hard for me to see how that cannot reasonably be read, even if it's not unambiguously read, to refer to the substance as opposed to the particular version of it that at a given moment is available from that company.

[00:08:33] Speaker 00:
So there's no dispute that COCLA says use an aminic antioxidant.

[00:08:38] Speaker 00:
in G. It does.

[00:08:40] Speaker 00:
It says use an aminic antioxidant.

[00:08:42] Speaker 00:
And these aminic antioxidants are available from different sources.

[00:08:47] Speaker 00:
They're cited in this Infinium specification, the types of antioxidants that you can use.

[00:08:53] Speaker 00:
They come off the shelf, and they have different amounts of aminic components in them off the shelf.

[00:09:01] Speaker 00:
Now, in stating that you use 0.4% of an aminic antioxidant,

[00:09:08] Speaker 00:
that specification does not state how much whether or not that's pure aminic antioxidant or not.

[00:09:17] Speaker 00:
And the reason CoCLA doesn't state that is because it's completely unimportant to CoCLA.

[00:09:22] Speaker 00:
This is a comparative example and all CoCLA is reporting on is what they made when they made example five to compare it to the nice things that it was happy about in the other examples.

[00:09:33] Speaker 00:
So they're reporting on what they made and they said we used an aminic

[00:09:37] Speaker 00:
Antioxidant, commercially available is Ergonox L57.

[00:09:43] Speaker 00:
When Mr. Steyer, Afton's expert, repeated the example, he did not use 0.4% of puraminic antioxidant, which is what's required by the claims.

[00:09:56] Speaker 00:
He grabbed Ergonox L57 off the shelf.

[00:09:59] Speaker 00:
He never tested it to find out what its purity was before he used it.

[00:10:04] Speaker 00:
He used 0.4% of it.

[00:10:06] Speaker 00:
He added it to the composition, and then he didn't test the composition at the end to find out how much aminic antioxidant was actually in the end product.

[00:10:15] Speaker 00:
He used 0.4% of the commercial product per what Afton says is COCLA's clear teaching.

[00:10:23] Speaker 00:
They say this in their reply brief to the board at A385.

[00:10:28] Speaker 00:
Mr. Steyer made the example in COCLA per COCLA's clear teaching.

[00:10:34] Speaker 00:
Dr. Lam states that component G, in his expert report, component G is Ergonauts L57, and that's at appendix 896 to 897.

[00:10:50] Speaker 00:
So there's no dispute amongst the facts in the case that all of the experts, when they read COCLA, red COCLA is teaching that we use B, aminic antioxidant,

[00:11:02] Speaker 00:
commercially available is Ergonox L57 when we made this example.

[00:11:08] Speaker 00:
And there's no teaching beyond how much you should use or other things you could use, because there's no teaching about this example at all.

[00:11:15] Speaker 00:
It's a comparative example of one thing.

[00:11:19] Speaker 02:
Chancellor, you're well into your rebuttal time.

[00:11:22] Speaker 00:
You might want to touch obviousness before you sit down.

[00:11:27] Speaker 00:
So just quickly, Nicholson is a very similar thing.

[00:11:32] Speaker 00:
We're talking about an errant example in an old prior art reference here, a reference from 1995.

[00:11:38] Speaker 00:
The analysis with respect to Nicholson is virtually the same as the type of analysis with respect to Coca.

[00:11:47] Speaker 00:
The difference is, and this highlights the significance with respect to Coca, the difference is that Afton had to acknowledge that nothing like Ergonaut's L57

[00:11:57] Speaker 00:
was mentioned in the example with respect to the magnesium-containing detergent.

[00:12:03] Speaker 00:
The only statement with regard to the magnesium-containing detergent was that it is an alkali-benzing magnesium sulfate and not any specific compound.

[00:12:17] Speaker 00:
So Dr. Lam

[00:12:18] Speaker 00:
had to take the position since he couldn't just take Ergonaut's L57 off the shelf like he did for, or like Dr. Steyer did for COCLA, he was going to have to talk about all the different possible magnesium sulfonates that might have been able to be used in that example.

[00:12:37] Speaker 03:
You said something about a 400 TBN over-based magnesium detergent, right?

[00:12:43] Speaker 00:
Yes.

[00:12:44] Speaker 00:
And there are many different ways to get that.

[00:12:48] Speaker 00:
And he goes through four pages of summary as to how you might get that by using various commercial products.

[00:12:55] Speaker 00:
He identifies commercial products that are not even prior art and basically draws the conclusion of obviousness from that.

[00:13:03] Speaker 00:
And I'd like to reserve time if I may.

[00:13:16] Speaker 01:
May it please the court, Matias Ferraro for Afrin Chemical.

[00:13:20] Speaker 01:
In attempting to retry this case, Infinium seeks to take from the marketplace compositions that have used high amounts of magnesium and high amounts of anionic.

[00:13:34] Speaker 01:
These are two common additives for HDD or heavy duty diesel lubricants that are seen throughout the art.

[00:13:43] Speaker 01:
So in my time today, I'd like to address three things.

[00:13:46] Speaker 01:
One is the board was correct when it found that cold cloth expressly disclosed using 0.4 weight percent of alkylated diphenylamine.

[00:13:57] Speaker 02:
I want to do a little housekeeping question for you.

[00:14:00] Speaker 02:
I asked your opposing counsel about your statement on page 42 of the red brief that for the first time on appeal they raised a new argument.

[00:14:08] Speaker 02:
And she says it's not newly raised, and I want to give you an opportunity to address that before you get into your argument.

[00:14:17] Speaker 01:
Thank you, Your Honor.

[00:14:17] Speaker 01:
Yes, it is newly raised.

[00:14:19] Speaker 01:
So from our perspective in the E.I.

[00:14:22] Speaker 01:
DuPont case where it sets forth a variety of ways or a number of different arguments that somebody can raise in an obviousness inquiry,

[00:14:32] Speaker 01:
Result effective variable is its own thing.

[00:14:35] Speaker 01:
It has its own attendant requirements, namely that you need to show or point to prior art that understood that the result effective variable existed in the prior art, sort of an attendant requirement to that type of argument.

[00:14:50] Speaker 01:
We never had that.

[00:14:51] Speaker 01:
We never had the opportunity to show and explain to the board that there is no result effective variable because they never raise it in that fashion.

[00:15:00] Speaker 01:
Now, there is and the board never had an opportunity to make the finding because it wasn't in front of them.

[00:15:07] Speaker 01:
So that, from our perspective, is a waiver.

[00:15:10] Speaker 01:
Now, even if there isn't a waiver, we believe that there still is no result-effective burial because Dr. Lam explained that people of skill in the art knew that magnesium caused oxidation, and oxidation could be ameliorated by antioxidants.

[00:15:29] Speaker 01:
That's fun.

[00:15:30] Speaker 02:
From my perspective, the gray brief sort of flapped around in response to your

[00:15:35] Speaker 02:
your waiver argument, and I wanted both sides.

[00:15:39] Speaker 01:
Now, with respect to Kolkhoff, Your Honors, we believe that it could not be clearer that the express grammar within the four corners of the document that it's

[00:15:56] Speaker 05:
The reason there's an argument is that it's not as clear as it might be, whether it's referring to a commercially available product or to the substance, which might be available a number of places or might have to be created, but is, by the way, if you're interested, how we got ours from the commercially available place.

[00:16:20] Speaker 01:
And from our perspective, with all due respect, component G is, uses that verb first, so from the grammar, it says it is an alkylated diphenylamine.

[00:16:31] Speaker 01:
The phrase commercially available indicates the one potential source of that chemical, not the amount, not the 0.4 weight percent of a particular chemical.

[00:16:44] Speaker 03:
Was your original theory and your petition predicated on

[00:16:49] Speaker 03:
Ergonox L57 meeting being additive gene?

[00:16:54] Speaker 01:
No, absolutely not.

[00:16:55] Speaker 01:
In fact, I thought I heard Infinium state that, but in A94, our petition says that these examples use ashless aminic and sulfur-free phenolic antioxidants.

[00:17:08] Speaker 01:
not that they use urbinox.

[00:17:11] Speaker 01:
And the statement with respect to Dr. Lamb that was referenced is not as clear as I think Infineum would have you believe, because in fact,

[00:17:23] Speaker 01:
It says, what I believe, is something quite different.

[00:17:28] Speaker 01:
There are two sentences in Dr. Lam, where he talks about Ergonox, and does not say, I'm sorry, where he talks about the antioxidant.

[00:17:38] Speaker 01:
And in one sentence he says, the antioxidant is an alkylated diphenylamine.

[00:17:42] Speaker 01:
And you can find that at 897, 897.

[00:17:51] Speaker 01:
alkylated diphenylamine antioxidant, which is used as component G by Colt Clough.

[00:18:02] Speaker 01:
Now, importantly, we think the board understood and considered all this evidence.

[00:18:09] Speaker 01:
They looked at the four corners of the reference.

[00:18:12] Speaker 01:
They then, we don't think you need to go outside to the extrinsic record, but they then did.

[00:18:17] Speaker 01:
And we were the only ones that provided

[00:18:21] Speaker 01:
product technical data sheet from the relevant time period, and that product technical data sheet said that the anti-accident, the commercial one, was not diluted.

[00:18:32] Speaker 01:
And not diluted, or contained no diluents.

[00:18:37] Speaker 01:
Now, that's the only evidence of record from the time frame, and that's a product technical data sheet.

[00:18:46] Speaker 01:
And the board considered all that evidence, including the evidence that Infinium raised, out-of-date MSDS data sheets, which our experts said people don't rely on to understand the purity of an antioxidant.

[00:19:00] Speaker 01:
And it considered all that, and it weighed that.

[00:19:03] Speaker 01:
And it made the findings very clearly in its final written decision that Colclough disclosed an alkalinated diphenylamine at 0.4 weight percent.

[00:19:14] Speaker 01:
And when that 0.4 weight percent was added to the other antioxidant that was disclosed in Kolkhoff, it adds up to the 0.7, which falls right within that.

[00:19:25] Speaker 05:
Is that a finding, in your view, a finding of inherency, a finding of expressed disclosure, or some third thing which may not doctrinally exist?

[00:19:35] Speaker 01:
Well, my belief is it's an expressed disclosure.

[00:19:38] Speaker 01:
And Kolkhoff says 0.4 weight percent of an alkylated diphenyl amine.

[00:19:42] Speaker 05:
And what was the evidence you said said no dilutants?

[00:19:49] Speaker 01:
That was a product technical data sheet for the commercially available organoxyl 57, which was the trade name, which was identified as a potential source for the out-deleted diphenyl amine.

[00:20:03] Speaker 05:
And is it the express meaning of no dilutants, that this is 100% of the aminic substance?

[00:20:19] Speaker 05:
Or might that mean something different?

[00:20:22] Speaker 01:
Yes, our view is that it does not mean something different, that it is an express... But... Leaving aside your view, what record evidence is there that says that?

[00:20:32] Speaker 01:
So there is testimony from Mr. Steyer, who says that based on his

[00:20:41] Speaker 01:
experience in the field, when he sees that something says no diluents, that it's effectively 100 percent active.

[00:20:48] Speaker 01:
Dr. Lam, I believe, similarly recognized that the product data sheet said no diluents and that it was effectively a neat amount, I think, is what he said in his – during his deposition.

[00:21:01] Speaker 01:
So – Is it a printing term?

[00:21:03] Speaker 01:
No.

[00:21:04] Speaker 01:
Neat without a diluent.

[00:21:06] Speaker 01:
Yeah.

[00:21:08] Speaker 01:
I think it's actually a chemical term as well.

[00:21:11] Speaker 01:
Okay.

[00:21:12] Speaker 01:
Now I want to address Nicholson and ESEA 2004 as we have been pronouncing it.

[00:21:22] Speaker 01:
So ESEA 2004 refers to or relates to European marketplace.

[00:21:31] Speaker 01:
is a large commercial marketplace, and sets limits on a variety of parameters, including bore polish, including fluoroelastomer seal protection, and including cylinder wear.

[00:21:45] Speaker 01:
These limits are important for people that want to sell nucleotidating oils in this market.

[00:21:52] Speaker 01:
Now, Nicholson is a reference which specifically

[00:21:59] Speaker 01:
talks about a lubricant that passes a fluoroelastomer seal test, the same test that's part of ASEA 2004.

[00:22:11] Speaker 01:
Nicholson tells you, and the board found this, that Nicholson is a good fluid for cylinder wear, that it shows excellent properties and dispersancy, and recognizes that these characteristics are important for somebody who wants to sell to a marketplace.

[00:22:30] Speaker 01:
So in light of those findings, which the board made, we think it was absolutely

[00:22:36] Speaker 01:
permissible for the board to combine those references.

[00:22:40] Speaker 01:
Now Nicholson, I think, is important to note that it has everything that is part of the composition of the 274 claim.

[00:22:55] Speaker 01:
Everything.

[00:22:55] Speaker 01:
It has the detergent, it has the antioxidant, it has the lubricating base oil.

[00:23:03] Speaker 01:
Why is Nicholson a 103 obviousness combination?

[00:23:07] Speaker 01:
And the reason for that, and the board understood this, and the board followed Dr. Lam's reasoning here and our reasoning, is that when it comes to the magnesium detergent, and I just want to make clear, I think I heard reference to Ergonox L57, those are two different things.

[00:23:22] Speaker 01:
The Ergonox L57 is the antioxidant, and then the magnesium detergent is a separate thing.

[00:23:29] Speaker 01:
When it comes to the magnesium detergent in Nicholson, it's described in that specific example as having a particular TBN, total base number.

[00:23:40] Speaker 01:
And that refers to

[00:23:42] Speaker 01:
sort of basicity.

[00:23:44] Speaker 01:
It's a measurement of how basic this thing is.

[00:23:48] Speaker 01:
And what is missing from Nicholson, as we stated, is that in that example, it doesn't tell you what is the weight percent of the magnesium.

[00:23:56] Speaker 01:
How heavy is it?

[00:23:58] Speaker 01:
How much physical stuff are you putting in there?

[00:24:01] Speaker 01:
And that's a limitation of the claim.

[00:24:03] Speaker 01:
The claim in the 274 patent says you use 0.05 weight percent of magnesium.

[00:24:08] Speaker 01:
So to understand how Nicholson or what Nicholson is disclosing, Dr. Lam went through the exercise very clearly of explaining TBN because it refers to a certain amount of activity, the basicity of activity.

[00:24:23] Speaker 01:
You have to and can and he did calculate different flavors of magnesium detergent that one could use to understand how much magnesium would be delivered.

[00:24:37] Speaker 01:
and he goes through that exercise and what he and what he shows and what the board accepted was that on the lower end you must have a certain minimum amount of magnesium to get to 400 TBN and sort of your most permissive type of detergent and that he calculated I think I believe it was some 8.2 weight or percent of some type of

[00:25:04] Speaker 01:
magnesium, and that would get you a minimum amount, the right amount that was disclosed in the claim.

[00:25:12] Speaker 01:
Now, he also showed how most conventional detergents that were out there, including detergents sold by Infinium, including detergents sold by us, they all tend to gravitate at about the 9.2 range.

[00:25:29] Speaker 01:
All of those are considered 400 TBN detergents.

[00:25:32] Speaker 01:
So you've got these class of detergents out there that are sold commercially and used regularly.

[00:25:37] Speaker 01:
And they're all sort of zeroed in on 9.2.

[00:25:40] Speaker 01:
They deliver 400 TBN.

[00:25:43] Speaker 01:
All of those get you the right amount of magnesium if you carry through the calculation.

[00:25:49] Speaker 01:
The reason we did not argue that Nicholson was an anticipatory reference was the simple fact that we could envision theoretically at the max end

[00:26:03] Speaker 01:
of some theoretical exotic species of magnesium detergent, where one might deliver so much magnesium, even at 400 TBM, that the other constraint in the claim, the sash limitation, could get exceeded.

[00:26:22] Speaker 01:
In other words, then we'd be hearing arguments about, well, Nicholson can't anticipate because we've come up with some exotic species of detergent that, if used,

[00:26:33] Speaker 01:
delivers 400 TBN, but then exceeds the sash value.

[00:26:36] Speaker 01:
And that's it.

[00:26:38] Speaker 01:
That's it.

[00:26:39] Speaker 01:
Nicholson is right on top of this.

[00:26:42] Speaker 01:
It is an obviousness combination with ASEA.

[00:26:46] Speaker 01:
ASEA provides some light guidance in terms of don't exceed the sash value.

[00:26:53] Speaker 01:
All the conventional detergents used at this time would have delivered the right amount of magneticity.

[00:26:59] Speaker 01:
that meet the limitation of the claim.

[00:27:00] Speaker 04:
No other parts of Nicholson are contested or... So the theory is if you use a conventional 400 TBN magnesium detergent, not only is that going to lead you to the weight amount limitation for magnesium, it's also going to meet the sulfated ash limit as well?

[00:27:20] Speaker 01:
Yes.

[00:27:24] Speaker 01:
I'd like to reserve the rest of my time for rebuttal, unless there are further questions.

[00:27:28] Speaker 01:
Oh, I don't get rebuttal on that.

[00:27:30] Speaker 01:
Sorry, no sir reply.

[00:27:32] Speaker 01:
All right, well then I'll continue, because I want to address unexpected results, and I know I don't have much time.

[00:27:36] Speaker 01:
I want to say that really it was Infinium's burden to identify the closest prior arc here, and they didn't do that.

[00:27:44] Speaker 01:
Even notwithstanding that, our view is the board did, in fact, consider those results and found them not persuasive.

[00:27:52] Speaker 01:
We note that they said at APPX 2010,

[00:27:58] Speaker 01:
that the results were weak at best, and that's because there's all kinds of problems associated with the data.

[00:28:05] Speaker 01:
You can see that reflected in the oral transcripts at A624 to A628 and A645 to A648.

[00:28:13] Speaker 01:
The data simply does not support any unexpected results.

[00:28:17] Speaker 01:
Thank you, Your Honor.

[00:28:24] Speaker 00:
Your Honor, I would like to direct your attention to the Infinium patent, column 6, lines 41 to 44.

[00:28:31] Speaker 00:
This is the portion of the patent where Infinium lists the types of aminic antioxidants that one might be able to use for the invention.

[00:28:39] Speaker 00:
And it lists various antioxidants, one of which is Ergonox, an Ergonox product, L135, I think, at that point.

[00:28:47] Speaker 00:
But importantly, it says, for the purposes of comparisons below, meaning the comparisons to the

[00:28:53] Speaker 00:
the other examples and specification.

[00:28:57] Speaker 00:
The concentration and weight percent of each is based on a hundred percent active material.

[00:29:02] Speaker 00:
So Infinium is teaching in this patent and is claiming when it says 0.4 percent of aminic antioxidant, the types of antioxidants specified, it's saying 0.4 percent of that active material, not 0.4 percent of whatever commercial product you might pull off the shelf.

[00:29:19] Speaker 00:
That is the problem with COCLA.

[00:29:21] Speaker 00:
COCLA doesn't do that.

[00:29:23] Speaker 00:
And it is not correct that until we took the depositions of the experts that Afton Everett took a position other than Ergonauts L57 was described by Component G. In fact, the passage that counsel referred your honors to

[00:29:47] Speaker 00:
on 897, he omitted the first part of the sentence, which is, Dr. Lam, their expert states, further, the specific aminic antioxidant used by COCLA as component G is Ergonox L57, an antioxidant exemplified by the claims.

[00:30:10] Speaker 00:
It is an aminic antioxidant.

[00:30:12] Speaker 00:
The issue is how much is COCLA teaching you to use.

[00:30:16] Speaker 00:
COCLA's not teaching you to use anything.

[00:30:18] Speaker 00:
It's just an example.

[00:30:20] Speaker 00:
So the question is, is it necessarily 100% pure aminic antioxidant?

[00:30:25] Speaker 00:
No, it's not.

[00:30:26] Speaker 00:
This diluent argument is a straw man.

[00:30:29] Speaker 00:
There's no argument here.

[00:30:31] Speaker 00:
that Ergonox L57 should be diluted or was diluted.

[00:30:35] Speaker 00:
It's undiluted pure Ergonox L57 is not going to meet this claim.

[00:30:41] Speaker 00:
Quickly on obviousness, no obviousness analysis was done in this case.

[00:30:46] Speaker 00:
No assessment of the scope and content of the prior art, the known problem of using magnesium detergents.

[00:30:52] Speaker 00:
No fact-finding of the motivation to change or assess the examples in Nicholson.

[00:31:01] Speaker 00:
And quickly, the analysis that was done by Dr. Lam is not prior art.

[00:31:07] Speaker 00:
If you look at his expert reports, he's citing to art that post-dates the invention for these conventional magnesium detergents.

[00:31:16] Speaker 00:
Thank you, Your Honor.