[00:00:00] Speaker 04:
The first case for argument is 191579, Volkswagen Group versus Americana.

[00:00:06] Speaker 04:
Mr. Meyer, whenever you're ready.

[00:00:13] Speaker 02:
Good afternoon, Your Honors.

[00:00:14] Speaker 02:
May it please the Court?

[00:00:16] Speaker 02:
The Board erred by not finding claims 3, 16, and 20 to be unpatentable over section 103, over some or all of the prior references

[00:00:27] Speaker 02:
previously found to invalidate the other claims.

[00:00:37] Speaker 04:
Recite secondary components of the regenerating gas just to cut to the chase perhaps because it's the afternoon what this is about is whether or not the board correctly construed our mandate as we not require or not allowing the Discussion of the other piece of prior art which one is it styles yes, so that's that's the question right there are no there are two issues and

[00:01:05] Speaker 02:
One is that whether or not the claims are invalid underground for as remanded by the first panel based upon the Campbell

[00:01:19] Speaker 02:
558 patent.

[00:01:20] Speaker 03:
This is your substantial evidence argument regarding SATO, correct?

[00:01:24] Speaker 02:
Yes.

[00:01:24] Speaker 03:
Okay.

[00:01:25] Speaker 03:
So there's that.

[00:01:25] Speaker 02:
There's that.

[00:01:26] Speaker 02:
And then there's an alternative argument that the claims are that the board erred by not considering styles on remand as a secondary reference.

[00:01:37] Speaker 02:
So I would like to address as the first issue whether or not the claims are invalid based upon the Campbell 558 patent and Sato, with Stiles limited to evidence of motivation to combine.

[00:01:55] Speaker 02:
I'm sorry.

[00:01:56] Speaker 03:
But in order to use Stiles as evidence of motivation to combine, it would have had to have been one of the references that you listed for these claims in the petition.

[00:02:05] Speaker 02:
And we did.

[00:02:05] Speaker 03:
And in fact... But that's exactly what we held you didn't do in the last case.

[00:02:10] Speaker 02:
No.

[00:02:10] Speaker 02:
You held that we did not sufficiently provide notice that it was to be used as a secondary reference.

[00:02:19] Speaker 02:
And in the decision at 859 F.

[00:02:24] Speaker 02:
3rd, 1352, it says, we note that Volkswagen's petition did identify styles as a motivation to combine.

[00:02:34] Speaker 03:
As for other claims?

[00:02:36] Speaker 02:
No.

[00:02:37] Speaker 02:
It was part of that claim as well.

[00:02:40] Speaker 03:
Well, you're saying that, but that isn't what we held.

[00:02:43] Speaker 02:
No, you did hold that.

[00:02:46] Speaker 02:
You held that we could, it was still evidence of motivation to combine, but the one sentence in Stiles that the board relied upon.

[00:02:55] Speaker 01:
Where do you think to?

[00:02:57] Speaker 01:
I'm confused about what point you're arguing.

[00:02:59] Speaker 01:
Are you trying to get Stiles back in play?

[00:03:01] Speaker 02:
I would like to.

[00:03:02] Speaker 02:
That's our second argument.

[00:03:03] Speaker 01:
Well, what's the first argument now?

[00:03:06] Speaker 01:
Because I understood that your colloquy with Judge Moore had to do with Stiles.

[00:03:11] Speaker 02:
Just Stiles as evidence of motivation to combine.

[00:03:15] Speaker 02:
It's always been in as motivation to combine.

[00:03:19] Speaker 02:
Americam admits that in its appeal brief at pages 7 and 12.

[00:03:25] Speaker 02:
And this court previously found that.

[00:03:27] Speaker 01:
So you're saying that sort of backdoors into the 103 assessment based on SIDA.

[00:03:32] Speaker 02:
Yes, you got a back door for pushing styles back in through the motivation to combine like we're not using because that's you are trying to put Styles back in play it is but it was always back in play as motivation to combine not as evidence of secondary considerations the sentence that the board cited in its ruling on claims 3 16 and 20 and

[00:04:01] Speaker 02:
I'll repeat.

[00:04:03] Speaker 01:
But apart from the motivation to combine, you're trying to get styles back in to the analysis for what it teaches as a reference for purposes of 103.

[00:04:12] Speaker 02:
Yes.

[00:04:13] Speaker 02:
That's the second issue.

[00:04:15] Speaker 02:
The first issue.

[00:04:16] Speaker 01:
What do you mean the first issue?

[00:04:18] Speaker 02:
The first issue is just based upon Campbell and Sento.

[00:04:22] Speaker 01:
Well, I saw the brief, the way this case is being briefed was there were two issues.

[00:04:25] Speaker 01:
One, could the board

[00:04:27] Speaker 01:
pay any attention to styles at all on the remand, yes or no?

[00:04:31] Speaker 01:
And the second question I understood was, assuming the answer is no, you can't consider styles, then was the board incorrect in saying that SATO failed to teach the limitations?

[00:04:43] Speaker 01:
Yes.

[00:04:44] Speaker 01:
Those are the two issues I came prepared to argue with you about today.

[00:04:48] Speaker 01:
OK.

[00:04:48] Speaker 02:
I will address the first issue.

[00:04:49] Speaker 01:
No, but I mean, you've put a third issue in play?

[00:04:52] Speaker 02:
No.

[00:04:53] Speaker 02:
As we understood it, the board, I'm sorry, the panel.

[00:04:56] Speaker 01:
Can you show me in your brief where you make this segue argument out of the motivation to combine point?

[00:05:02] Speaker 01:
It was never at issue.

[00:05:03] Speaker 01:
Can you show me in your brief where you build this argument that's now your lead argument today?

[00:05:09] Speaker 01:
The lead argument is.

[00:05:11] Speaker 01:
In your brief, show me where you're making this argument about how you can get styles back into the fundamental 103 analysis, backdoor it through the fact that we said that it was OK to consider it on the motivation to combine.

[00:05:27] Speaker 01:
Item I just want you to breathe cuz you know I feel real bad if I come to an oral argument I'm not prepared I feel bad about myself and I feel bad about my obligation to you Okay, when you're making a new argument, I'm saying move away.

[00:05:40] Speaker 02:
No, I am NOT making a new argument Issue three on page eight whether the board erred in determining that we have blue brief Yes, our blue brief AJ AJ

[00:05:56] Speaker 01:
Okay, our Campbell and Sayles, that doesn't say anything at all about styles.

[00:06:00] Speaker 01:
Yes, but- But you say you mean styles comes in on your question number three?

[00:06:06] Speaker 02:
Yes, as motivation to combine.

[00:06:09] Speaker 02:
There was never an objection to styles being used as motivation to combine.

[00:06:16] Speaker 01:
And in fact, this- Well, the short answer is whether you use styles to

[00:06:21] Speaker 01:
combined Campbell and Sato, the board's holding is that Sato doesn't, neither Campbell nor Sato, disclose the limitations of the dependent claims.

[00:06:30] Speaker 02:
Okay.

[00:06:30] Speaker 02:
I would like to address that point, what Sato discloses, if I could.

[00:06:35] Speaker 01:
Well, I assume that you lose on that point.

[00:06:39] Speaker 01:
Okay.

[00:06:39] Speaker 01:
Then what's left of your attempt to somehow get Stiles back in play?

[00:06:44] Speaker 02:
Well, we're not relying upon Stiles in the first ground.

[00:06:49] Speaker 02:
The first issue, it's whether

[00:06:51] Speaker 02:
The issue comes down to whether SATO's disclosure of a prior art non-selective catalytic reduction methods for reducing NOx in the exhaust streams to elemental nitrogen that uses hydrocarbons, hydrogen or carbon monoxide as the reducing agent.

[00:07:13] Speaker 02:
And Sato further explains that this prior art non-selective catalytic reduction method was being used to remove NOx in exhaust gas from internal combustion engines and primarily automobiles under reducing atmospheres having almost no oxygen.

[00:07:32] Speaker 01:
So the question is, what does Sato teach, right?

[00:07:34] Speaker 02:
Yes.

[00:07:35] Speaker 01:
And that's a question of fact.

[00:07:37] Speaker 01:
Yes.

[00:07:38] Speaker 01:
And it's reviewed here on what standard of review?

[00:07:42] Speaker 02:
It's, uh, of use of discretion, I guess.

[00:07:44] Speaker 02:
Substantial evidence?

[00:07:45] Speaker 02:
Substantial evidence, yes.

[00:07:47] Speaker 01:
Which is an unfriendly standard of review for your appeal, right?

[00:07:50] Speaker 02:
Yes.

[00:07:52] Speaker 02:
Okay.

[00:07:52] Speaker 01:
And the, the board, in its rehearing this issue... Still puzzled by the way you began the argument and trying to get styles back in play for what it teaches.

[00:08:03] Speaker 02:
Not what it teaches.

[00:08:04] Speaker 04:
I've got our original opinion in front of me, so I didn't have the sites or whatever.

[00:08:11] Speaker 04:
Can you just point to us what you were pointing to at the very beginning?

[00:08:14] Speaker 02:
Sure.

[00:08:15] Speaker 02:
At 859 F3rd, 1352.

[00:08:19] Speaker 04:
So can you just give me a little more guidance because I don't have the page numbers here.

[00:08:29] Speaker 01:
We're on 1352, left column, right column.

[00:08:33] Speaker 01:
Where are you?

[00:08:36] Speaker 01:
It's the last.

[00:08:38] Speaker 01:
Okay.

[00:08:54] Speaker 04:
Oh, I hear you say the fact that neither party mentions styles.

[00:08:58] Speaker 04:
helps make the point that neither party was on notice that Stiles was at issue.

[00:09:02] Speaker 04:
We note that Volkswagen's petition did identify Stiles as a motivation to combine, as the parties debated this issue in the patent owner's response and the petitioner's reply.

[00:09:14] Speaker 04:
However, the party's discussion of Stiles was not in the same context as the board using it specifically as grounds.

[00:09:22] Speaker 04:
So that's your differentiation between the motivation and the figure.

[00:09:27] Speaker ?:
Yes.

[00:09:30] Speaker 02:
So the 758 patent incorporates the Campbell 558 patent by reference.

[00:09:37] Speaker 02:
And the 558 patent in turn presents the chemical formula is that the NO in the exhaust gas reacts with oxygen also present to form NO2.

[00:09:51] Speaker 02:
Next, that NO2 then reacts with the absorber material

[00:09:56] Speaker 02:
so as to be stored in the absorber in the form of an NO3 ion.

[00:10:02] Speaker 02:
Now, as discussed in our petition in the opening appeal brief, this very same absorption reaction is graphically depicted in figure 4a of the PriorArt Heroda patent.

[00:10:14] Speaker 02:
And I'm just using this as an example.

[00:10:17] Speaker 02:
If you could turn to page 13 of our blue brief,

[00:10:24] Speaker 02:
There we have a picture, a figure 4X, of parotus.

[00:10:30] Speaker 02:
And it shows the NO reacting with the O2 to form NO2, which is then stored in the barium absorber in the form of an NO3 ion.

[00:10:42] Speaker 02:
Now, after performing this NOX absorption for a period of time,

[00:10:47] Speaker 02:
Americam recited catalysts become saturated with the NO3 ions and needs to be regenerated.

[00:10:55] Speaker 02:
They don't explain exactly how that's done.

[00:10:58] Speaker 02:
But it is, we did discuss it in our petition and in our appeal brief in connection with both Haroda and Takashima.

[00:11:09] Speaker 02:
And again, I'm just using this as an example.

[00:11:12] Speaker 02:
So if you could turn to page 14 of VW's opening appeal brief, the blue brief.

[00:11:21] Speaker 02:
On that page, figure 4B is reproduced.

[00:11:25] Speaker 02:
At the top of that page, VW quotes Herota's explanation that when the oxygen concentration is lowered, the reaction within the barium absorber, which is BAO,

[00:11:40] Speaker 02:
It is reversed, and the NO3 ions reverts back to NO2, which is released back into the exhaust stream in the form of NO2.

[00:11:54] Speaker 02:
As shown in the figure, it's released back into the exhaust stream in the form of NO2.

[00:12:02] Speaker 02:
And then it's reduced to nitrogen, elemental nitrogen N2, by the carbon monoxide and the hydrocarbon reducing agents in the exhaust stream in the presence of the platinum catalyst P2.

[00:12:18] Speaker 02:
Just to be perfectly clear, this reduction reaction takes place in the exhaust stream, not within the barium absorber, which is shown in crosshatches.

[00:12:32] Speaker 02:
This configuration is what is recited in the independent claim 1 and 13 of the 758 patent.

[00:12:40] Speaker 02:
That is, those claims both recite that the regeneration gas is passed over the devitalized absorber, not passed into it or through the devitalized absorber, but over it.

[00:12:55] Speaker 02:
Reduction reaction depicted in figure 4b of Heroda is the same as the prior art non-selective catalytic reduction method used to remove NOx from the exhaust gas and internal combustion engines and primarily automobiles as disclosed in Sato under reducing atmospheres having almost no oxygen.

[00:13:20] Speaker 02:
Both have low oxygen exhaust, a reducing agent such as hydrogen, carbon monoxide, or hydrocarbons that reduces the NO2 in the exhaust stream.

[00:13:32] Speaker 02:
and discussed on page 18 of our opening brief in connection with Takashima.

[00:13:39] Speaker 02:
Again, this reduction reaction takes place in the exhaust stream, not within the absorber.

[00:13:45] Speaker 02:
It is the same reaction that is disclosed in Hirota as the prior or non-selective.

[00:13:55] Speaker 01:
What did Moore have to say about Hirota on the remand?

[00:14:00] Speaker 02:
I'm using this as an example to graphically show... In the remand, I was just looking at the remand decision.

[00:14:05] Speaker 01:
I didn't see any discussion.

[00:14:06] Speaker 01:
It seemed to me you're pitching your argument today almost entirely on Heroda.

[00:14:11] Speaker 02:
No, I'm just using that to show what is done in a regeneration of a... Right, but what's that got to do with what Sado teaches?

[00:14:24] Speaker 02:
Sado teaches a

[00:14:27] Speaker 02:
It teaches two things.

[00:14:31] Speaker 02:
It teaches the prior art, which was the non-selective catalytic reduction of NO2 in the exhaust stream.

[00:14:43] Speaker 02:
And we relied upon that.

[00:14:45] Speaker 01:
But you're asking saying that we should read Heroda into Sado?

[00:14:49] Speaker 02:
No.

[00:14:49] Speaker 02:
I was just using this as education to show you exactly what they do.

[00:14:55] Speaker 01:
I understand.

[00:14:57] Speaker 01:
And educating me is very helpful.

[00:14:58] Speaker 01:
And I thank you for that.

[00:14:59] Speaker 01:
But I'm trying to figure out how that bears on a misunderstanding by the board.

[00:15:08] Speaker 01:
of whether CITO taught the limitations of the dependent claims.

[00:15:11] Speaker 01:
Because I thought that was the question that was being litigated.

[00:15:14] Speaker 02:
Yes.

[00:15:15] Speaker 02:
The board misunderstood that the prior art non-selective catalytic reduction is the same thing that is done in the regeneration of a saturated catalytic absorber.

[00:15:35] Speaker 01:
Did you present that argument to the board?

[00:15:37] Speaker 02:
Yes, we did.

[00:15:39] Speaker 01:
How'd they miss it?

[00:15:41] Speaker 01:
Why doesn't the discussion of that show up in their opinion if you presented it to them?

[00:15:46] Speaker 02:
They did say it.

[00:15:47] Speaker 02:
And what they said was that it is a stretch to say that catalytic reduction methods are the same as renewing a devitalized catalyst.

[00:15:59] Speaker 02:
And that's at APX 00022.

[00:16:04] Speaker 02:
And we repeatedly said that it is the same.

[00:16:09] Speaker 02:
And they just did not grasp that.

[00:16:12] Speaker 02:
And what I'm using as an example to show it is the same.

[00:16:17] Speaker 02:
And not only that, as I just mentioned, their position is that it is not the same because the regeneration gas has to go into the absorber

[00:16:30] Speaker 02:
and reduce the NOx within the absorber, whereas the prior art discussed in SATO, it's done in the exhaust.

[00:16:39] Speaker 02:
And their patent doesn't show that it is done in the absorber material.

[00:16:46] Speaker 02:
The claims itself recite that the reduction reaction is not done within the spent absorber itself.

[00:16:57] Speaker 02:
because the claims recite that the regeneration gas must pass over the devitalized absorber.

[00:17:05] Speaker 02:
Not that it goes into it, but that it passes over it.

[00:17:08] Speaker 01:
And the way that it would... Was there expert testimony on whether or not it's a stretch to treat these two things as the same?

[00:17:15] Speaker 02:
No, the first time that they characterized it as being a stretch was in the rehearing decision on remand.

[00:17:25] Speaker 02:
So we never had an opportunity to explain this.

[00:17:28] Speaker 04:
OK.

[00:17:29] Speaker 04:
We're way over your time.

[00:17:30] Speaker 04:
So we'll restore a little.

[00:17:31] Speaker 04:
Let me bottle.

[00:17:32] Speaker 04:
Let's hear from the others.

[00:17:33] Speaker 04:
Thank you.

[00:17:41] Speaker 00:
May it please the court, as you know, this is the second time we're here with the Federal Circuit on this case.

[00:17:46] Speaker 00:
After the first appeal was finished on this matter, really everything in the IPR was finally adjudicated except one simple and specific question, and that's whether Sado taught the limitations of claims 3, 16, and 20.

[00:18:01] Speaker 00:
In the decision on remand, the board did exactly what it was supposed to do.

[00:18:05] Speaker 00:
It looked at the petition.

[00:18:06] Speaker 00:
It looked at Sado.

[00:18:09] Speaker 00:
And it found that the SATA reference does not teach the limitations of claims 316 on 20.

[00:18:17] Speaker 00:
Volkswagen really doesn't argue that what it presented in its petition does not show those limitations.

[00:18:27] Speaker 00:
Really, the gist of Volkswagen's argument is the board should have considered a host of other materials, not what's in the petition.

[00:18:35] Speaker 00:
They sorted the first assert that the board should have revisited the Stiles reference, despite the court's prior holding that Stiles was not raised in the petition.

[00:18:44] Speaker 00:
They state that the board should have allowed Volkswagen to submit new arguments in briefing on Sado, despite having had a petition and a reply in the IPR.

[00:18:54] Speaker 00:
They state that the board should consider arguments on Sado submitted first time in the IPR reply, which is not proper.

[00:19:02] Speaker 00:
And today,

[00:19:05] Speaker 00:
There's new arguments on Hirota that are raised.

[00:19:09] Speaker 00:
Hirota is not mentioned on remand.

[00:19:12] Speaker 00:
Hirota is raised for the first time in the appeal briefs.

[00:19:15] Speaker 00:
Takashima was not cited as a ground for obviousness against him.

[00:19:21] Speaker 01:
His argument is that Hirota is being used to show that it was incorrect to say it's a stretch to say that catalytic reduction methods are the same as renewing the catalyst.

[00:19:33] Speaker 01:
That's his argument.

[00:19:34] Speaker 00:
I mean, I still think that's inappropriate.

[00:19:37] Speaker 00:
These are issues.

[00:19:38] Speaker 03:
Did he make that argument to the board?

[00:19:40] Speaker 00:
No.

[00:19:40] Speaker 03:
So if he didn't cite to the board, you'll be wrong if you decide this because look at this other reference.

[00:19:46] Speaker 03:
It shows you'd be wrong.

[00:19:47] Speaker 03:
You're saying it wouldn't be proper for him to make that argument to us and have us overrule a fact finding by referring to a reference the board wasn't asked to consider.

[00:19:55] Speaker 00:
That's exactly what I'm saying.

[00:19:56] Speaker 00:
Thank you.

[00:20:00] Speaker 00:
So.

[00:20:03] Speaker 00:
And Volkswagen asserts in their briefs that the SAS case supports their argument here.

[00:20:11] Speaker 00:
But I mean, SAS is pretty clear, in my opinion, in what it says.

[00:20:16] Speaker 01:
It states that the IPR status is- This is on the question of whether Stiles is still in play?

[00:20:19] Speaker 00:
Yeah, this does address that.

[00:20:23] Speaker 00:
And I mean, I'll just paraphrase.

[00:20:25] Speaker 00:
It says the petition defines the IPR.

[00:20:30] Speaker 00:
The director doesn't have leeway.

[00:20:35] Speaker 00:
They say doesn't have a license to depart from a petition and institute a different inter-party review of his own design.

[00:20:40] Speaker 00:
And it says the petition has its layout, each claim challenged and the grounds on which to, has to go through with each claim and say A, B, and C, this is what we're challenging it on.

[00:20:50] Speaker 00:
And this is really what we all discussed in the first appeal.

[00:20:54] Speaker 00:
And so the petition rules.

[00:20:57] Speaker 00:
And Stiles was not raised in the petition.

[00:21:02] Speaker 00:
And it was not raised in the reply.

[00:21:03] Speaker 00:
It was not raised in the oral argument.

[00:21:05] Speaker 03:
Well, with regard only to these three claims, it was certainly raised in the petition.

[00:21:08] Speaker 00:
Oh, correct.

[00:21:09] Speaker 00:
I'm sorry.

[00:21:09] Speaker 00:
That was too broad of a statement.

[00:21:14] Speaker 00:
But in line with that directive, in its decision for remand, the board did exactly what it's supposed to do.

[00:21:21] Speaker 00:
And it didn't consider anything outside the petition.

[00:21:24] Speaker 00:
It didn't consider Stiles, and it did not consider the arguments in the reply.

[00:21:29] Speaker 00:
But then Volkswagen asked for a request for a rehearing.

[00:21:32] Speaker 00:
And on the rehearing, it did look at Stiles.

[00:21:35] Speaker 00:
And they did look at the reply argument on Sato.

[00:21:39] Speaker 00:
Because a very significant portion of Volkswagen's brief addresses it was incorrect for the board to believe that it was barred from consideration of Stiles.

[00:21:52] Speaker 00:
But on page five of the decision for rehearing, the board looked at Stiles.

[00:21:56] Speaker 00:
And in view of the SAS decision, which it issued after our first appeal, they found independently that Stiles was not raised against claims 316 and 20.

[00:22:05] Speaker 00:
They didn't say, we're bored from looking at Stiles.

[00:22:08] Speaker 00:
Instead, they looked at Stiles and the petition.

[00:22:10] Speaker 00:
And they said, you didn't raise it.

[00:22:13] Speaker 00:
So the board and this court have both held that Volkswagen did not raise Stiles in the petition.

[00:22:18] Speaker 00:
So in my view, this should be a moot issue.

[00:22:21] Speaker 00:
and finally adjudicated at this point.

[00:22:23] Speaker 00:
Now turning to Sado, I don't think there's really any argument to the inventive embodiment of Sado cited by Volkswagen Expedition fails to teach the limitations of claims 316 and 20.

[00:22:35] Speaker 00:
The exhaust gas of a Sado that includes carbon dioxide and steam is not flowing during regeneration.

[00:22:43] Speaker 00:
Claims 316 and 20 of the 758 patent require steam and carbon dioxide during regeneration.

[00:22:51] Speaker 00:
Again, Sado doesn't teach that.

[00:22:53] Speaker 00:
And that's why there's this new argument that focuses on a prior art method mentioned in Sado's background on catalytic reduction methods.

[00:23:02] Speaker 00:
That was raised for the first time in the IPR reply.

[00:23:06] Speaker 00:
But Volkswagen says, well, that's OK, because we were just responding to the patent owner's response.

[00:23:12] Speaker 00:
Well, that's actually not what was occurring.

[00:23:15] Speaker 00:
And the petition laid out why they said Sado teaches claims 316 and 20.

[00:23:20] Speaker 00:
And patent owner's response, we showed why they were wrong.

[00:23:24] Speaker 00:
And so then the reply, they cite to a brand new argument.

[00:23:27] Speaker 00:
That's not responding to what the patent owner says.

[00:23:30] Speaker 00:
That's, oh, I was wrong.

[00:23:31] Speaker 00:
I'll raise something new.

[00:23:32] Speaker 00:
That's a new argument.

[00:23:33] Speaker 00:
And that's not what's allowed on a reply.

[00:23:37] Speaker 00:
And in any event, it's not a substantively valid argument.

[00:23:40] Speaker 00:
Now, all this wasn't allowed to be developed

[00:23:43] Speaker 00:
So there's not a lot of evidence on this and that's why you know they're trying to go to herota and talk shima But a catalytic reduction method is different than what's going on in the 758 patent And there's there's no suggestion to use a catalytic reduction method to regenerate a catalyst in Sato and the board recognized this in its rehearing decision said it's a stretch and

[00:24:07] Speaker 00:
The 758 patent has a catalyst and then it has an absorber on it.

[00:24:10] Speaker 01:
No, saying it's a stretch doesn't mean it's wrong.

[00:24:14] Speaker 00:
Well, but they later, they also say it's wrong.

[00:24:16] Speaker 01:
Maybe when it says it has reasonable minds to differ, in which case on this standard of review, it wouldn't be helpful to vote for it.

[00:24:23] Speaker 00:
Well, but page 12 of the rehearing decision states that their argument is lacking in substance.

[00:24:29] Speaker 01:
Show me where on page 12.

[00:24:32] Speaker 01:
I see moreover it's a stretch.

[00:24:34] Speaker 00:
Yep.

[00:24:36] Speaker 00:
So it's appendix page 22.

[00:24:39] Speaker 01:
Yep, I got it right in front of me.

[00:24:41] Speaker 00:
It's at the top.

[00:24:42] Speaker 01:
Where were those words?

[00:24:44] Speaker 00:
The first sentence at the top.

[00:24:45] Speaker 01:
We find a position to be lacking in substance.

[00:24:48] Speaker 00:
And so the background, the Sato background that's cited for the first time in the reply.

[00:24:56] Speaker 01:
Well, it could be lacking in substance because it's a stretch.

[00:25:03] Speaker 03:
Just say okay, then sit down.

[00:25:07] Speaker 00:
Yes, I agree.

[00:25:09] Speaker 00:
And they also point out that in the reply of Sado, they only cite a partial quote.

[00:25:15] Speaker 00:
And that's why they say that the complete quotation from Sado is here.

[00:25:18] Speaker 00:
And it shows that they're talking about the catalytic reduction method is something different than what's in Sado.

[00:25:26] Speaker 00:
So in Sado, and in the 758 pattern, there's an absorber.

[00:25:30] Speaker 00:
And that absorber absorbs NOx.

[00:25:33] Speaker 00:
And so what's happening is there's a regeneration.

[00:25:36] Speaker 00:
They send in a regeneration gas, and it regenerates that absorber once it's full so it can absorb more NOx.

[00:25:44] Speaker 00:
And in a catalytic reduction method, there's no absorber on the catalyst.

[00:25:49] Speaker 00:
Instead, they pump in a reducing agent.

[00:25:52] Speaker 00:
And in the presence of a catalyst, it reacts with the NOx for nitrogen and water so it doesn't harm the environment.

[00:26:03] Speaker 00:
But there's no absorber.

[00:26:05] Speaker 00:
And so they're asserting now that, hey, you could take a catalytic reduction method that operates completely differently and use it to regenerate the absorber.

[00:26:15] Speaker 00:
And there's no suggestion to do that in Sado.

[00:26:18] Speaker 00:
There's no suggestion to do that in Hirota.

[00:26:22] Speaker 00:
And there's no suggestion to do that in Takashima.

[00:26:24] Speaker 00:
I mean, it's completely just redoing the regeneration system of Sado.

[00:26:33] Speaker 00:
And so, and as I said, the board understood that to be the case.

[00:26:43] Speaker 00:
They correctly, on the decision of remand, they did the right thing.

[00:26:49] Speaker 00:
They looked at the petition.

[00:26:50] Speaker 03:
You're kind of just repeating yourself a lot.

[00:26:52] Speaker 03:
You don't have to use every single second.

[00:26:55] Speaker 00:
I know.

[00:26:55] Speaker 03:
Just because your red light's not on.

[00:26:58] Speaker 00:
OK, I'm done.

[00:27:00] Speaker 00:
Thank you, Judge Warren.

[00:27:13] Speaker 02:
I'd like to address several points quickly.

[00:27:15] Speaker 02:
First, Heroda was part of ground four, which is the ground on remand originally.

[00:27:22] Speaker 02:
Sato is not a new argument.

[00:27:24] Speaker 02:
VW quoted the sentence from Sato about the content of the exhaust gas in its claim charts for claims three, 13, 16, and 20.

[00:27:34] Speaker 02:
In its patent owner's response, Amerikem challenged VW's correlation of Sato's diesel exhaust with the regeneration gas recited in claims 3, 16, and 20.

[00:27:47] Speaker 02:
VW then responded in its reply.

[00:27:50] Speaker 02:
This back and forth explanation to Amerikem's argument in its patent owner's response was the proper subject matter of a reply.

[00:28:01] Speaker 02:
And I'd cite to the end the case for that.

[00:28:04] Speaker 02:
And now, again, they sort of touched on it.

[00:28:08] Speaker 02:
There is no difference in the chemical reaction, the reduction reaction done in a regeneration of a catalyst absorber and in the non-selective reduction.

[00:28:21] Speaker 02:
It is the hydrocarbons, carbon, and carbon monoxide reacts with the NO2 to form nitrogen.

[00:28:30] Speaker 02:
It doesn't occur inside their

[00:28:33] Speaker 02:
their absorber.

[00:28:35] Speaker 02:
It occurs in the exhaust.

[00:28:37] Speaker 02:
And that is what Sato discloses that the non-selective catalytic reduction is.

[00:28:43] Speaker 02:
And that's why Sato was explaining it, because he used that reaction to regenerate his saturated catalyst absorber.

[00:28:54] Speaker 02:
He didn't just talk about this for the heck of it.

[00:28:56] Speaker 02:
He was explaining the development of his invention.

[00:29:00] Speaker 02:
And now I'd just like to touch on styles.

[00:29:03] Speaker 02:
Under Section 706 of the Administrative Procedure Act, it is the court itself that must determine the proper legal remedy.

[00:29:12] Speaker 02:
Per the Supreme Court's came-in decision at 500 U.S.

[00:29:15] Speaker 02:
90 at 99, this court cannot apply an improper construction of governing law via a purported waiver.

[00:29:24] Speaker 02:
The governing construction of the law on remedy for a violation of the notice provision of the APA was remand, not reversal.

[00:29:33] Speaker 02:
And that's the Henry Nuvacev case and the Del V. Acceleron case.

[00:29:38] Speaker 04:
We have your argument.

[00:29:39] Speaker 04:
Thank you.

[00:29:39] Speaker 04:
Thank you.