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The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and this honorable court.

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Our first case today is 20-1800, Ingevity Corporation versus the ITC.

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Mr. Perry, please proceed.

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Thank you, Judge Moore, and may it please the court.

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The Delphi engineers never conceived of the subject matter claimed in the 844 patent, and therefore the ALJ's determination of invalidity should be set aside.

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The 844 patent claims an emission control device with quantified adsorptive capacities of the different volumes.

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The first volume has a high capacity adsorbent

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and the subsequent volumes have a quantified low capacity adsorbent.

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The Delphi engineers had no knowledge of the adsorptive capacities of the components of the DECS when they created that device.

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And that is established in Dr. Labine's testimony at appendix 1516 and elsewhere.

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In fact, the ALJ found that they were unaware of and indeed agnostic to

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the adsorptive capacity of the quote-unquote honeycombs that they used in their device.

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Mr. Perry, this is Judge Toronto.

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Can I just explore a little bit this with you?

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I know that the better part of your brief is about a legal proposition, and I'm going to accept for current purposes that you're quite right that what the 102G2 inventors must

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have is an awareness in substance of each of the now claimed claim elements.

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Nevertheless, I will also, I guess, accept that the ALJ did not expressly find that the three Delphi inventors recognized the presence in the relevant honeycomb

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of the BWC of 3.7 grams per deciliter.

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Nevertheless, how was the absence of that finding prejudicial under APA 706?

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And if you look at 147 to 148 of the appendix, there's a block quotation of a letter from Westvaco that supplied these honeycombs that list

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the BWC of 3.7 grams per deciliter addressed to Mr. Myler CC to the two other Delphi inventors.

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How is it that they did not recognize the property in the letter sent to them?

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Three answers, Judge Toronto.

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First, there's no evidence that the adsorptive properties as set forth in that letter

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were reflected in the actual honeycomb used in the DECS.

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Westbaco provided a number of samples.

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There is an inference there.

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Second, more importantly.

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I'm sorry, I thought, I guess I'm remembering maybe something from the respondents brief that the October 28th letter is the letter that contains those numbers and then there's a letter

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on December 7th saying here's some more same honeycombs as the last batch plus some aluminum foil.

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And then the decks start getting created, what is it, December 8th to early January.

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I thought it was clear that the, in fact I think on maybe page 18 of your brief you say,

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that that set of honeycombs was what went into the decks.

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Your Honor, it is clear that the October 28, 1999, letter identifies the honeycombs having a BWC of 3.7 grams per deciliter.

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The more important point is that the Delphi engineers

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had no appreciation of that fact or the significance of that fact at the time they built... I'm sorry to keep interrupting.

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To some extent, I think there's an important ambiguity about the term appreciation.

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Appreciation can mean think it important and it could also mean recognize the presence of.

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I'll stipulate that thinking it important is something that they did not do, because they didn't put it in their own patent.

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Nevertheless, it seems to me it's legally irrelevant, and the only question is whether they recognize the presence of a property, namely the BWC property, that you now don't dispute implies the presence of the claimed IAC property.

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And Judge Toronto, I point the court to Appendix 1516, which is

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Dr. Levine's testimony, page 95, lines 15 to 20, in which she was expressly asked, did Delphi ever perform tests on the BWC of the honeycombs?

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And she said no.

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Why not?

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Quote, it wasn't critical to what we were doing.

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so that while the information may have been available in the letter from WestVaco, it was not known to, appreciated by, important to, critical to, significant to, or otherwise pertinent to the DECS development because they were taking these products supplied by WestVaco, putting them into the device of their creation.

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And of course, we know from the record of invention and the subsequent patent, the Mylar patent, that they thought their invention was based on the shape

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the elongate nature of the secondary canister rather than any absorptive quality of the subsequent volume.

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And so we have here the case where we have two different inventions, right?

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The Delphi engineers worked on shape while the Ingevity inventors developed properties.

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And so, you know, I think I'm, to answer your question directly, whether or not that letter was, you know, in the record, and of course it is,

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It was not known to the Delphi engineers at the time that that property had any significance to... But I guess I just want to push back on that.

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I don't understand why under any relevant case law it matters whether they thought it was significant if indeed they were aware of the property.

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Because property.

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Conception requires that they had at that time, at the time of the claimed conception, the entire invention in mind.

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And the invention there is the claim of the 844 patent, not their invention, not the Delphi's invention, but the 844 invention, which describes a quantitative numerical threshold for the subsequent volume.

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Delphi engineers, the record is undisputed, had no knowledge of that, had no appreciation of that, and that's why it's significant is because they never had the mental state requisite to make the invention as required.

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It is one of those cases where they created a different invention and went on to claim it.

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We know exactly what their invention was because they have a patent on it.

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It is not our invention.

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And so there is no, there's no interference between these two claims.

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You know, if this were a patent to patent interference under section 291, it would be dismissed out of hand because there's no conflict between claim one of the Mylar patent and claim one of the 844 patent.

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And so all of the ALJ's analysis and the arguments being made by the respondents in this appeal are based on sort of hindsight reverse engineering to what might have been

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known, but with absolutely no evidence.

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And remember, because this goes to inventorship, it requires corroborating evidence of what was actually known, subjectively known by the inventors.

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And Dr. Levine, in her deposition, disavowed any such knowledge.

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And the documentation, the record of invention, does not reflect any such knowledge.

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So we have here a hindsight recreation of something that didn't actually happen.

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Counsel, you said Dr. Devine disavowed any such knowledge.

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Where did that occur?

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Is that the Appendix Page 1516 that you were referring us to?

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That is one place where she said that the working capacity was not critical to what they were doing.

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There is no evidence anywhere in the record that the... Counsel, I don't think that that's a fair characterization of what she said.

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The question is, did Delphi ever perform tests

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on the honeycomb samples that Wes Savakos sent to determine the volumetric butane working capacity.

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Did they ever perform tests to determine the capacity?

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And she said in that, you know, in that timeframe in 2000, no, why not?

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It wasn't critical to what we're doing.

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But they didn't necessarily, so what she's saying is we didn't perform tests

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to determine the BWC, but they had already been told what the BWC was of the samples they were receiving, and it was 3.7.

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So she didn't think it was critical to perform tests, I guess, maybe among other things to verify what the BWC was.

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But there doesn't seem to be a dispute that the ALJ

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found that they knew or had been informed of what the BWC is.

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So I guess, how do you read this section as communicating that she didn't think the BWC mattered at all?

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Judge Moore, I think the key point in your question is the difference between new and been informed.

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The letter from Mead Westbaco says what it says.

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There is no evidence

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that the Delphi engineers knew the BWC or cared about it.

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Well, actually, isn't the guy who got the letter one of the inventors?

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Yes, Your Honor, but the letter contains many other things, including the specification of the product.

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And the record of invention and Dr. Levine's deposition go on and on that what they appreciated as the importance of this product was its shape, its longitudinal characteristic with the channels running through it that allowed flow of air, purge gas, to reduce the heel.

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And at no point did they focus on the BWC or the IAC or any other measure of the absorptive capacity because there was no interest at the time in that.

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They were focused on the

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difference in shape and that of course is what the Record of Invention reflects.

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So are you telling me that it is your view under the law that if they knew they had a honeycomb structure with a BWC of 3.7 and they ultimately knew that structure was effective at reducing emission,

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that it's your view that the appreciation standard requires them to know that it was, in fact, the 3.7 BWC characteristics that was behind the reduced emission in order for it to qualify?

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Two answers to that, Judge Moore.

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Not only they had to know that the absorptive capacity of the subsequent volume was related to the reduced emissions.

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And remember, claim one has two components.

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It's also in series with a prior volume of a high absorptive capacity.

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They had no knowledge, and there's no evidence to record that they had any knowledge of the absorptive capacity of the primary volume.

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We have a two element, two limitation claim here, method claim here.

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So Mr. Perry, I don't remember you ever making this argument to us that they didn't know of the first or primary.

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Is that an argument that appeared in your briefs to us?

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Your Honor, we have taken the position that the knowledge of the subsequent volume is the critical one, because it is the one that the... No, but you just said for two reasons, and your first reason was they didn't know about the first volume.

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Is that in your brief to us?

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Yes, Your Honor.

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Where?

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Your Honor, we have made clear that claim one involves two steps.

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Where did you argue to us that they did not have an appreciation of the invention because they didn't appreciate the first volume as opposed to the second volume?

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Your Honor, our argument has been that they did not appreciate the adsorptive capacity period full stop.

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Both volumes have adsorptive capacity limits.

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They knew nothing about adsorptive capacity.

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And so, you know, I don't want to get hung up on semantics, but I think that has been our argument the entire time is that having failed to appreciate the adsorptive quality of the subsequent volume or for that matter the primary group.

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Is there anything you can point me to in your brief?

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that would support this, what I feel like is honestly something I've never heard before, this argument that they didn't appreciate the first IAC requirement as opposed to the second.

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And Your Honor, to be clear, we have focused on the second IAC requirement precisely because of the ALJ's determination of the

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I didn't ask what you focused on.

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I said, is there anything at all in your brief that you can point me to that should have alerted me to the fact that you were on appeal arguing that they didn't appreciate the first IAC limit?

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Your Honor, I can only say this and I'll say it again.

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I'm asking you to point me to something in your brief.

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I don't think that's the same as what is your position right now.

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Point me to a page in your brief.

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Your Honor, at reply brief 25 and elsewhere, we have said that the fact that they were agnostic to or did not know the absorption capacity of the subsequent volume

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is critical.

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The absorption capacity of the subsequent volume is critical for two reasons.

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One is because they didn't know it, and the other is because the claim itself requires a two-step comparison.

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I actually thought that was clear from the claim language.

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I don't have a page in the brief where it says exactly what I just said, but it is certainly the fact remains that they did not know

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the BWC, the IAC, or any other adsorption characteristic of the subsequent volume, which is what the ALJ found could be found by inference.

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He never actually found knowledge.

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And to go back to the court's question between knowledge and, you know, what information is in the record, they did not know, there's no evidence that the, you know, that the letter got into the knowledge as they were making the invention.

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And this is a conception question, not a can we reverse engineer what might have been in the record.

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Okay, Council, thank you.

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We'll restore your rebuttal time.

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Let's hear from Mr. Trout.

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Are you going first?

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Yes, Your Honor, I'm going first.

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Okay, let's hear from Mr. Trout.

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So, just going back to ALJ's findings here, we don't think that the ALJ found that

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that Delphi was agnostic to BWC or IAC, but rather the AOJ's finding was regardless of, like, even if they were agnostic, it doesn't change the result.

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And going back to that letter that you were talking to, that you were talking about, yeah, I think it's clear that Delphi knew the BWC was,

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3.7, and it's also important to notice that this letter indicates that.

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Just to be clear, this is Judge Gerando.

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I assume what you mean by Delphi or Delphi is the three Delphi inventors, not the company Delphi.

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Yes.

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Right.

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And the letter, the Dear Tom letter, is addressed to one of the three co-inventors, Myler, and it is cc'd to the other two.

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Correct, yes.

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Right at 1160, that's where that letter appears in full and it says CC.

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So there's clearly evidence that the three of them knew, though did not think important, the 3.7 figure, the BWC figure.

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Why did the, I realize this is not quite a kosher question, but why did the ALJ not find that?

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So the AOJ analogizes to TIVA, and under TIVA, he didn't think that it matters whether they knew the BWC.

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In TIVA, the problem is... Right, but part of the... I mean, just speaking for myself, part of the problem is it's truly not clear to me what TIVA stands for, and whatever it stands for, it is a little bit, or maybe even more than a little bit,

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hard to fit into the otherwise quite large body of law that says to conceive or same thing, appreciate an invention, you have to in substance have in mind all the elements.

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So I don't think that's completely true.

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If you look at

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So this is a situation where you have a predating actual reduction of practice.

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And if you look at what the test for conception is, it's that you have a sufficiently clear idea that a person with ordinary skill in the art can make the invention without, or can actually.

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So put aside the TEVA case.

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What case, and I'm not asking about the words used, because the words used in a lot of these cases have a certain generality that could mean a number of different things.

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What other case might involve facts that would say, yes, you can meet the appreciation of your reduction to practice standard without having in mind in substance all of the elements of the claim now at issue?

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So two very good cases for that are Silvestri, Silvestri v. Grant.

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And the facts of that case, the claims recited a limitation where there was a certain amount of water that was in a bound state.

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And it was undefeated, or the court found that.

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The prior inventors had no idea whether or not the water was in the bound state.

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But they knew that the invention met the elements of the claim.

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And they knew that it worked for its intended purpose.

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And they recognized that it was something new.

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And that was enough.

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I'm sorry.

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They knew that it met the elements of the claim.

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So that's not a counter.

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Right.

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OK.

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Sorry.

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I'm not sure I've seen any case, again, putting Teva aside, that would allow some higher degree of generality of awareness of properties of the reduction to practice without awareness in substance

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of each of the elements that are in the claim that is at issue.

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Now, obviously, I mean, you're obviously right that the words used don't matter.

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What matters is the substance.

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And hence, no material difference here between BWC and IAC.

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I'm not questioning that.

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Yeah.

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Yeah.

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So to clarify, at the time of,

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The time the prior inventors made what they made, they didn't know that it met the water limitation.

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But after the fact, whenever it was challenged, it was an interference case, but they relied on their actual reduction of practice for their priority date.

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And whenever they went back to look at it closely, they determined at that point that it did meet the claim limitation.

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So there wasn't knowledge.

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at the time of the invention of the water limitation, that was later.

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And mycogen is another example.

[00:21:44] Speaker 02:
In mycogen... But mycogen, isn't mycogen the one where you're just talking about the difference between thinking in codons and thinking in nucleotides?

[00:21:54] Speaker 02:
Yeah.

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I would view that as a non-substantive difference.

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Well, here, a material and its properties are inseparable, and they're intrinsically related.

[00:22:05] Speaker 04:
They knew that it was the material that was important to them that these honeycombs being made with, they have the shape of a honeycomb, and they're made from activated carbon.

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And these materials intrinsically have these properties.

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So, I mean, there's a very close relation.

[00:22:25] Speaker 04:
I mean, like, this cortisol material and its properties are inseparable.

[00:22:30] Speaker 02:
Right, and in the ordinary 102 case that we get from 102A, mostly 102B, from the titanium metals line of cases, if something is out there in the public domain, or at least the knowledge of it is out there in the public domain, it really doesn't matter what anybody recognized at the time.

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But we're talking about something that is

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advanced only under 102G, so there's no public domain issue.

[00:23:03] Speaker 02:
It's just invention.

[00:23:10] Speaker 02:
Can I take you back outside the doctrinal question?

[00:23:14] Speaker 02:
So we were talking extensively with Mr. Perry about, I guess the way that I might have put it at some point,

[00:23:24] Speaker 02:
Has any prejudice been shown here by Ingevity from the absence of a finding by the ALJ that, based on the October 28th letter, the three Delphi inventors were in fact aware of the 3.7

[00:23:52] Speaker 02:
BWC property of the honeycombs they put into the decks?

[00:23:59] Speaker 04:
Um, have they been turned back, right?

[00:24:04] Speaker 00:
Mr. Trout, this is Ms.

[00:24:05] Speaker 00:
Gills.

[00:24:06] Speaker 00:
I can take the question, given the switch in time, if you like.

[00:24:10] Speaker 04:
Yes, sure thing.

[00:24:14] Speaker 00:
Um, if it would please the court, um, Judge Scholl, um, there is no prejudice here.

[00:24:20] Speaker 00:
And I disagree with Ingevity's characterization of what the Delphi inventors knew or appreciated.

[00:24:29] Speaker 00:
I think it's important to go to the language of claim one, which is the only claim before the court on this appeal.

[00:24:35] Speaker 00:
That claim is a method for reducing fuel vapor emissions in automotive evaporative emission control systems using a low capacity carbon and a high capacity carbon.

[00:24:50] Speaker 00:
The Delphi inventors set out it was their goal.

[00:24:54] Speaker 00:
The documentation contemporaneous at the time from October of 1999 set forth their goal of a system that would reduce evaporative emissions.

[00:25:08] Speaker 00:
And that's what they did.

[00:25:10] Speaker 00:
They acquired carbons from Mead West Vaco, a carbon manufacturer.

[00:25:16] Speaker 00:
The carbons themselves were not new.

[00:25:19] Speaker 00:
And that's important.

[00:25:20] Speaker 00:
This is not an invention to the honeycomb.

[00:25:23] Speaker 00:
The honeycomb was known.

[00:25:26] Speaker 00:
The initial absorbent volumes, either the Bax 1100 or Bax 1500, were also known.

[00:25:35] Speaker 00:
Those were carbons that were sourced.

[00:25:38] Speaker 00:
And the acronym for Bax 1100 and Bax 1500 refers to the BWC, because that is how an industry at the time

[00:25:48] Speaker 00:
People of skill in the art characterize these carbons by their absorbative properties, by their BWC.

[00:25:55] Speaker 00:
Fax 1100 is a BWC of 11 or approximately 11.

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Fax 1500 is a BWC of approximately 15.

[00:26:08] Speaker 00:
And the letter in the record that the judges have referred to at appendix 1160 to 11161

[00:26:17] Speaker 00:
This is correspondence from West Vaco to the Delphi inventors communicating properties of the honeycomb, which in fact was used as a subsequent absorbent volume in the auxiliary canister that they built.

[00:26:38] Speaker 00:
So I think it's incorrect on the record that these inventors didn't do and achieve what they set out to do.

[00:26:46] Speaker 00:
They built the DECS containing an initial absorbent volume, a BACS 1100 or BACS 1500, and an auxiliary canister with a low working capacity carbon, the honeycomb.

[00:27:04] Speaker 00:
And even beyond the communications that went back and forth, and Your Honor has also pointed to appendix 11162 to 11163,

[00:27:14] Speaker 00:
Which says, we're sending you six of these honeycombs with the same characteristics as the one we identified in October with a BWC of 3.7.

[00:27:25] Speaker 00:
There's no question here.

[00:27:27] Speaker 02:
This is Judge Randolph.

[00:27:28] Speaker 02:
That letter refers to something over and above the carbon.

[00:27:33] Speaker 02:
Is that at all relevant to the BWC property?

[00:27:36] Speaker 02:
I can be more specific as I think I was earlier, but do you know what I'm asking?

[00:27:41] Speaker 02:
It's all yellow in the Joint Appendix, so I don't really know how much of this is confidential.

[00:27:52] Speaker 00:
The December 7, 1999 correspondence, and I think at least as to these documents, the confidentiality has been waived.

[00:28:01] Speaker 00:
At least we were able to speak to it in our brief.

[00:28:03] Speaker 02:
OK, so it says we got some carbon and we got aluminum foil, one of those two words

[00:28:10] Speaker 02:
Does that aluminum thing have any bearing on the BWC capacity?

[00:28:16] Speaker 00:
No, no.

[00:28:18] Speaker 00:
How do we know that?

[00:28:20] Speaker 00:
I think what's key here is the Delphi inventors are requesting honeycombs to use in a system they were creating to reduce evaporative emissions.

[00:28:31] Speaker 00:
So they're asking the West Vaco team for honeycombs.

[00:28:36] Speaker 00:
And the second sentence of the letter says,

[00:28:39] Speaker 00:
These honeycomb parts have been given the sample number, and the third sentence says they were made with the same carbon formulation and cell density as the previous parts you tested, which are on appendix 11161, where the BWC is referenced.

[00:28:57] Speaker 00:
And what the ALJ did is he said, what's the essence of the invention?

[00:29:01] Speaker 00:
The essence of the invention is the ability of that honeycomb to regenerate during purge.

[00:29:08] Speaker 00:
And this is something that the Delphi inventors recognized.

[00:29:13] Speaker 00:
Language regarding the ability of that honeycomb to regenerate during purge is referenced in their record of invention.

[00:29:21] Speaker 00:
It's referenced in the patent application.

[00:29:25] Speaker 00:
And we have numerous sites to that effect in our brief.

[00:29:29] Speaker 00:
If you look at the record of invention where they talk about properties of the invention using a honeycomb,

[00:29:37] Speaker 00:
at appendix 1448 and 1509.

[00:29:43] Speaker 00:
They talk about their invention had much greater bleed emissions efficiency than a scrubber made with a granular or pellet media and requires about one-tenth of the carbon.

[00:29:56] Speaker 00:
So they're recognizing differences between what they were using and other carbon pellets on the market.

[00:30:04] Speaker 00:
I also want to just flip to Mycogen briefly because that's the case I'm familiar with.

[00:30:09] Speaker 00:
I actually was personally at that trial in 1998 in front of Judge McKelvey because at the time I represented Pioneer Hybrid.

[00:30:18] Speaker 00:
But that case is instructive.

[00:30:20] Speaker 00:
That case involved more claim limitations with quantitative aspects than the claim one at issue here.

[00:30:29] Speaker 00:
And if I direct the court to claims three and four of the Mycogen 600 patent,

[00:30:34] Speaker 00:
which talk about a method having at least 32% of the codons in the coding sequence of the native BT gene that has been modified, or 11%.

[00:30:48] Speaker 00:
The court didn't require those quantitative elements to be appreciated by Monsanto, only that they had created a BT gene that expressed highly implants.

[00:31:05] Speaker 05:
Anything else, counsel?

[00:31:07] Speaker 05:
We're restoring Mr. Perry's rebuttal time.

[00:31:09] Speaker 05:
So if you want, if there's anything else you'd like to say before you conclude, you can go ahead.

[00:31:16] Speaker 00:
Are you speaking to Ms.

[00:31:17] Speaker 00:
Gills or to Mr. Perry?

[00:31:18] Speaker 05:
To you, Ms.

[00:31:20] Speaker 05:
Gills, since we're restoring his rebuttal time.

[00:31:22] Speaker 05:
Even though your little bell went off, we're giving him extra time.

[00:31:25] Speaker 05:
So if you want extra time... Oh, sure, sure.

[00:31:28] Speaker 00:
So again, going back to the MyKitchen case where I highlighted claims three and four,

[00:31:33] Speaker 00:
which you can see in the opinion in Mycogen at pages 1333 to 1334 of that opinion, there was no requirement by the federal circuit that the Monsanto team in proving that they had reduced to practice a synthetic BT gene that expressed highly in plants.

[00:31:52] Speaker 00:
The whole goal was to make these plants more resistant to insects.

[00:31:55] Speaker 00:
There wasn't a requirement in their documents that they proved at the time when they developed the genes

[00:32:02] Speaker 00:
that it met this at least about 30% of the codons or at least about 11% of the nucleotides.

[00:32:09] Speaker 00:
So I disagree that it's simply characterizing an invention in terms of nucleotides or codons where there was some differences there.

[00:32:18] Speaker 00:
They're the same.

[00:32:19] Speaker 00:
But the court found that the evidence there was legally sufficient under 102G.

[00:32:27] Speaker 00:
And I submit that the evidence of record, and there was an extensive record, lots of documents, testimony by the Delphi inventors, testimony by the Ingevity inventors that support the one OTG finding by the ALJ in this case, much more than what the court found legally sufficient in Mycogen.

[00:32:46] Speaker 05:
Ms.

[00:32:46] Speaker 05:
Gill, I just want to kind of understand what you view the standard that has to be met as.

[00:32:54] Speaker 05:
The record shows that the inventors knew about the BWC, but it doesn't necessarily show that they appreciated that the BWC was the reason for the reduction in emission.

[00:33:10] Speaker 05:
Is that fair?

[00:33:14] Speaker 00:
What I would say is that they appreciated the significance of the honeycomb being used as the subsequent absorbent volume.

[00:33:22] Speaker 00:
That's what they asked for.

[00:33:24] Speaker 05:
I understand, but there isn't a fact finding by the ALJ, for example, that says the inventors realized the BWC in particular was the reasoning for the reduced emission.

[00:33:37] Speaker 05:
Is that fair?

[00:33:37] Speaker 05:
There's no fact finding by the ALJ to that extent.

[00:33:41] Speaker 00:
I believe that that is fair, but what the ALJ found was that the technical matter, the ways in which the Delphi inventors characterized and understood their invention and what they were using was the same.

[00:33:57] Speaker 00:
And Ingevity's made up term of IAC, IAC was not a term used by people of skill in the art.

[00:34:04] Speaker 05:
No, Council, I understand, but I guess what I'm trying to get at is what do you think

[00:34:09] Speaker 05:
the standard is for appreciation in order to satisfy our case law.

[00:34:16] Speaker 05:
Do you believe that there has to be evidence and a fact finding that they appreciated that the BWC was the reason for reduced emissions or is it in your view sufficient that they appreciated the honeycombs caused the reduced emissions and one of the many properties of the honeycomb was that it had a BWC of 3.7?

[00:34:40] Speaker 00:
It would be the latter.

[00:34:42] Speaker 00:
The Delphi inventors here appreciated that they made something new and novel and that it worked for its intended purpose, which here was to reduce evaporative emissions.

[00:34:53] Speaker 00:
And they also knew that the honeycomb used as a subsequent absorbent volume, which reduced purge, allowed the to regenerate during purge was specifically recognized by them.

[00:35:08] Speaker 00:
For Ingevity to suggest that they had to quantify, or specifically quantify, the BWC or IAC, which are the same, of that honeycomb, is not the standard, not the law, and certainly not with accorded mycogen found, nor Teva, nor Hinkle, or any of the other cases we cite in our briefs.

[00:35:31] Speaker 05:
Okay, thank you.

[00:35:31] Speaker 05:
Council, let's have Mr. Perry back for his rebuttal, please.

[00:35:35] Speaker 03:
Thank you, Judge Moore.

[00:35:36] Speaker 03:
To answer your last question, quote, the inventor must contemporaneously appreciate that the embodiment worked and that it met all the limitations of the interference count.

[00:35:47] Speaker 03:
That's from Cooper.

[00:35:48] Speaker 03:
Noor says the same thing and many other cases do.

[00:35:51] Speaker 03:
You have to not only know your invention works, but that it meets the limitations of the claim.

[00:35:56] Speaker 05:
Well, I guess that the Council, the question there is if they knew it reduced emissions, which they seem to have known, and if they knew it had a BWC of 3.7, then it seems to satisfy that quote because the quote doesn't go further and say they had to know the BWC of 3.7 was the cause of the reduced emissions.

[00:36:18] Speaker 03:
judge more they did not know the bwc with three to point seven this goes just run this question this we had a trial this was hotly contested there was lots of evidence on both sides the judge made no finding that they knew in fact uh... the bad guys the other side expert testified that dr levine didn't know the bwc and that and the and those letters in the record the author of the letters testified that the three point seven did not apply to the honeycombs that were in

[00:36:47] Speaker 03:
the DECS.

[00:36:48] Speaker 02:
There is no evidence that... These are incredibly important details.

[00:36:53] Speaker 02:
I need a citation for each of the things you just said.

[00:36:56] Speaker 03:
They're all collected, Judge Toronto, at Appendix 1765 to 1766 with further citations to Mr. Miller's testimony and so forth.

[00:37:07] Speaker 03:
And for example, one example, and there are many

[00:37:10] Speaker 03:
at Appendix 1364.

[00:37:12] Speaker 05:
Mr. Perry, slow down.

[00:37:14] Speaker 05:
I'm not going to cut your time off.

[00:37:15] Speaker 05:
As long as we have questions, we're going to let you keep going.

[00:37:18] Speaker 06:
I apologize, Judge Moore.

[00:37:20] Speaker 05:
No, that's OK.

[00:37:21] Speaker 05:
No, I want to give you a chance to answer the questions.

[00:37:23] Speaker 05:
Why don't you take us through those statements you were making?

[00:37:27] Speaker 05:
And in particular, I am currently at 1765.

[00:37:31] Speaker 05:
Show me what you go through these things one at a time, like Judge Toronto suggested.

[00:37:36] Speaker 05:
And don't worry about your time.

[00:37:37] Speaker 03:
Thank you, Your Honor.

[00:37:39] Speaker 03:
This is a place where we have collected part of the dispute about what they knew about the BWC.

[00:37:47] Speaker 03:
At the top of 1765, we discussed this earlier.

[00:37:50] Speaker 03:
Dr. Labine testified that they never tested the BWC because it wasn't critical.

[00:37:54] Speaker 03:
We talked about that earlier.

[00:37:55] Speaker 03:
Then we know that they did not know about the BWC.

[00:38:01] Speaker 03:
Mr. Lyons, who was the respondent's expert, was specifically asked, did Dr. Labine know?

[00:38:07] Speaker 03:
Not exactly.

[00:38:08] Speaker 03:
And the testimony shows that.

[00:38:12] Speaker 05:
Then on the next... Where is that part?

[00:38:15] Speaker 05:
Maybe I'm missing that.

[00:38:16] Speaker 03:
That's in the middle of 1765, Your Honor.

[00:38:19] Speaker 03:
And the citations here are to the administrative record rather than to this court's record.

[00:38:23] Speaker 03:
And I apologize.

[00:38:24] Speaker 03:
I can sync those up later.

[00:38:25] Speaker 03:
I don't have them.

[00:38:27] Speaker 02:
And can you say what is this document that, which is obviously secondhand, what is this document that

[00:38:34] Speaker 03:
This is our petition to the Commission, Your Honor, where we collected the evidence on these points.

[00:38:41] Speaker 05:
It's just handy to have everything in one place.

[00:38:47] Speaker 05:
rely or conclude that an inventor who received a letter telling him what the BWC was didn't know what the BWC was because your expert said not exactly.

[00:39:00] Speaker 03:
No, no.

[00:39:01] Speaker 03:
I'm sorry, Judge Moore.

[00:39:02] Speaker 03:
I was going to get to that point next.

[00:39:04] Speaker 03:
On the next page of 1766, it collects the evidence on that.

[00:39:07] Speaker 03:
Remember, there are two letters.

[00:39:10] Speaker 03:
The question is whether the honeycomb used in the DECS had 3.7 BWC.

[00:39:18] Speaker 03:
And the author of those exhibits testified that that was not the one they use.

[00:39:23] Speaker 03:
They use the honeycombs from the December letter.

[00:39:26] Speaker 03:
The 3.7 was in the October letter and the December letter did not have a VWC and Mr. Miller testified

[00:39:34] Speaker 03:
that the December honeycomb did not have a BWC of 3.7.

[00:39:38] Speaker 03:
So it is not true.

[00:39:39] Speaker 03:
There is no evidence.

[00:39:40] Speaker 02:
And would you mind just, since where in our joint appendix is the Miller testimony itself, not your assertion, not 1766?

[00:39:52] Speaker 03:
And Judge Toronto, I apologize.

[00:39:53] Speaker 03:
I don't have a concordance.

[00:39:54] Speaker 03:
I believe it is in there.

[00:39:55] Speaker 03:
I just don't have it at hand.

[00:39:57] Speaker 03:
And I can certainly get that to the court.

[00:39:59] Speaker 02:
And this is the 08-9

[00:40:03] Speaker 02:
Is that what we're looking at?

[00:40:07] Speaker 03:
The 0896C and 0902C are the two letters, the October and December letter.

[00:40:14] Speaker 03:
And then Dr. Miller testified about those letters and specifically whether the second letter was referring to the same BWC as the first letter.

[00:40:22] Speaker 03:
And he said no.

[00:40:24] Speaker 03:
And the BWC 3.7 does not apply to the honeycomb used in the DECS.

[00:40:31] Speaker 03:
And to go back to Judge Toronto's question to my friend Mr. Trott, why didn't the ALJ make a finding?

[00:40:36] Speaker 03:
Because there was no evidence that the Delphi engineers knew of the BWC.

[00:40:41] Speaker 03:
There is a paper trail from which an inference could be drawn that they might have known, but not that they did know.

[00:40:48] Speaker 03:
And conception requires actual knowledge, subjective knowledge.

[00:40:52] Speaker 03:
They had to prove, the respondents had to prove by clear and convincing evidence that the Delphi engineers actually knew.

[00:40:59] Speaker 03:
Not that they could have known, not that it was in a file or a paper or a letter, but that they actually knew.

[00:41:06] Speaker 03:
And not only that they knew, but they appreciated the significance for the invention.

[00:41:09] Speaker 03:
And that's the disconnect, I think, here.

[00:41:11] Speaker 03:
And the reason the ALJ had that disconnect is that he never focused on appreciation in the legally

[00:41:18] Speaker 03:
appropriate sense, he focused on the device itself.

[00:41:22] Speaker 03:
He thought the DECS was the invention.

[00:41:25] Speaker 03:
The commission does that in this court.

[00:41:27] Speaker 03:
But a device is not an invention.

[00:41:28] Speaker 03:
Invention is a mental step.

[00:41:30] Speaker 05:
And the... The difference... I think one of the critical differences for your case is what level of appreciation is required.

[00:41:41] Speaker 05:
And I asked Ms.

[00:41:42] Speaker 05:
Gills, is it that he has to appreciate, suppose that the inventors were aware of the BWC of 3.7.

[00:41:52] Speaker 05:
Suppose that that was the BWC of the honeycombs they were using, okay?

[00:41:56] Speaker 05:
Just take that as a hypothetical.

[00:41:59] Speaker 05:
And now the question is, do they have to appreciate

[00:42:03] Speaker 05:
that the BWC is the characteristic of the honeycomb that is actually creating the reduced emissions, or is it enough for them to know that they have a honeycomb of 3.7 BWC and that it's reducing emissions?

[00:42:19] Speaker 05:
Do you understand the distinction I'm trying to draw?

[00:42:21] Speaker 03:
I do, Judge Moore, and I think the correct answer is somewhere in the middle, which is they have to appreciate the subject matter of the claim.

[00:42:29] Speaker 03:
which is that the absorptive capacity of the second volume, whether measured by BWC or IAC, has some contribution

[00:42:37] Speaker 03:
to the reduction in bleed emissions.

[00:42:39] Speaker 05:
In other words... Okay, so I totally understand your test now, but how do you reconcile that with TEVA?

[00:42:44] Speaker 05:
That's probably, I think, the hardest case for what you're asking for.

[00:42:49] Speaker 05:
And to be clear, I think what you're suggesting is not unfair in light of other cases of ours, but in light of the decision in TEVA in particular, I'm struggling to reconcile how I could adopt the level of appreciation you want with what actually got decided in TEVA.

[00:43:07] Speaker 03:
Yes, Your Honor, and I think the line of cases that led to Teva is important because Teva didn't overrule them.

[00:43:12] Speaker 03:
But as to Teva itself, I think it's important to recognize that the claim in Teva was not to the stabilizing compound.

[00:43:21] Speaker 03:
It was to a stable composition that treated high cholesterol that contained A, an API, and B, an AGCP compound.

[00:43:31] Speaker 03:
The prior inventor knew it had a stable composition that treated high cholesterol that contained both the API and the AGCP compounds.

[00:43:39] Speaker 05:
So we didn't have... But, counsel, the compound in TEVA contained lots of stuff.

[00:43:45] Speaker 05:
That's a comprising claim.

[00:43:46] Speaker 05:
And so we know that those are the two things that were necessary to produce a stabilized pharmaceutical composition.

[00:43:54] Speaker 05:
That's what was claimed.

[00:43:56] Speaker 05:
But what our court found in the TEVA case, it is uncontested

[00:44:01] Speaker 05:
that AstraZeneca included cross-povedone in the AstraZeneca formulation as a disintegrant, but did not understand cross-povedone to have a stabilizing effect.

[00:44:14] Speaker 05:
So we held that of the many things in the AstraZeneca compound, it was in fact the cross-povedone that was meeting the claim limitation of a stabilizing effective amount,

[00:44:26] Speaker 05:
But we also held that the person, AstraZeneca, the company that was making the compounds didn't appreciate that that was the particular ingredient in the composition that was achieving that.

[00:44:37] Speaker 03:
Yes, Your Honor.

[00:44:39] Speaker 03:
Because AstraZeneca conceded to infringement, the court said that six times in its opinion so that the amount limitation was taken out of the case.

[00:44:49] Speaker 03:
And this is a comprising claim, as the court points out, and it is to a stabilizing effective amount

[00:44:54] Speaker 03:
whereas what AstraZeneca did not appreciate was that the cross-pavadone was the stabilizer.

[00:45:02] Speaker 03:
So that it appreciated it had an amount of cross-pavadone and the concession made clear that it was a stabilizing effective amount, but the fact that it was the stabilizer was not claimed.

[00:45:13] Speaker 03:
There's no claim to what is the stabilizer in Teva.

[00:45:16] Speaker 03:
Here, in sharp contrast, claim one of the 844 patent requires

[00:45:21] Speaker 03:
the subsequent volumes and the numerical limitation on IAC below it.

[00:45:26] Speaker 03:
And I think it is important.

[00:45:27] Speaker 03:
A chemical composition is different than a mechanical invention.

[00:45:30] Speaker 03:
If we go back to NOR, for example, which talks specifically about mechanical inventions, where it has a feature recited as a positive limitation, conception requires a recognition of that feature.

[00:45:42] Speaker 03:
And here we have a claimed limitation, a quantitative low adsorption capacity,

[00:45:49] Speaker 03:
that was never appreciated, never known, never contemplated by these engineers at Delphi.

[00:45:55] Speaker 03:
And that's the difference between Teva and here is our claim is different than the Teva claim.

[00:46:00] Speaker 03:
It's much more like the herd versus burden situation where the claim or the count in an interference case requires a particular limitation that the alleged prior inventor never had possession of.

[00:46:13] Speaker 05:
I'm sorry, I was going to say, unless my colleagues have any other questions, but obviously Judge Toronto, you do.

[00:46:18] Speaker 02:
I've got two, and I hope they're quick.

[00:46:22] Speaker 02:
Just on TEVA, the claim language was a stabilizing, effective amount of AGCP, not just

[00:46:35] Speaker 02:
an amount, but a stabilizing effective amount, so that the actual claim limitation, and then it went on to do what was, I think, probably equally important, was, and no other stabilizer.

[00:46:48] Speaker 02:
Slightly more words than that, but that doesn't, I'm not sure that matters.

[00:46:53] Speaker 02:
But we held in TEVA that the requirement of a stabilizing effective amount of an AGCP, even though it was

[00:47:05] Speaker 02:
met for appreciation purposes, even though AstraZeneca didn't, wasn't aware of that at the time.

[00:47:14] Speaker 03:
Well, it was aware of the AGCP, and it was aware of the stability.

[00:47:18] Speaker 03:
What it wasn't aware of was the connection, and the connection was not claimed.

[00:47:21] Speaker 03:
And again, the linkage, the stabilizing effective amount, was made up in that case by the concession.

[00:47:28] Speaker 03:
And this argument, this was Teva's argument, in fact.

[00:47:30] Speaker 03:
It's at page 1385 in the right-hand column.

[00:47:32] Speaker 03:
And the court said, we don't have to resolve that point because of the concession.

[00:47:36] Speaker 03:
Here we have no concession.

[00:47:37] Speaker 03:
In fact, these respondents leaned into the subsequent volume IAC limitation as their non-infringement position, right?

[00:47:45] Speaker 03:
That was their position before the commission, is that that is the critical limitation.

[00:47:49] Speaker 03:
And so it's the contrary of TEVA.

[00:47:54] Speaker 02:
OK, can I just ask quickly my second point?

[00:47:58] Speaker 02:
When I was looking at, this is I guess at 11503 of the appendix, which is where the 102G section of your post-trial hearing brief in the commission, that section of your post-trial hearing brief, I read that to say the thing that we think is missing from the relevant appreciation is an awareness of

[00:48:26] Speaker 02:
the relevant adsorption capacity of, you know, let's just call it the second honeycomb.

[00:48:33] Speaker 02:
I don't read that as making any reference at all to the causal responsibility either alone or in combination for the bleed emission reduction.

[00:48:49] Speaker 03:
Your Honor, the claim of the 844 patent is a method for reducing bleed emissions

[00:48:56] Speaker 03:
by having the subsequent volume that has the low threshold.

[00:49:01] Speaker 02:
I understand what the claim says.

[00:49:03] Speaker 02:
And if it had been raised, there would be an interesting claim construction argument about whether each of the two steps has to make a contribution to the overall preamble claimed result.

[00:49:18] Speaker 02:
My only question is, where in before the commission in your relevant filing did you make

[00:49:27] Speaker 02:
any kind of causation argument of that sort as opposed to simply saying the Delphi inventors were not aware of or at least didn't care about absorption capacity of the low capacity half of the process.

[00:49:48] Speaker 03:
Well certainly that was the thrust of all of our arguments including today is

[00:49:52] Speaker 03:
having no appreciation of the absorptive capacity, they could never have appreciated the claim.

[00:50:01] Speaker 03:
That is our argument, start, middle and finish really, is that they don't know anything about absorption and its relation to bleed emissions, therefore they could not have made our invention.

[00:50:12] Speaker 03:
They made a different invention.

[00:50:15] Speaker 03:
And that's what the ALJ failed to appreciate, understand.

[00:50:19] Speaker 03:
And that's what we took to the commission, and the commission let his opinion stand, and that's why we're in this court.

[00:50:24] Speaker 03:
I mean, I'm not sure I'm answering your question, but I think that is the thrust of the entire argument is that the lack of appreciation of adsorption means that these Delphi engineers never conceived, never made the invention claimed, and therefore 102G, which is an interference provision, has no role to play here.

[00:50:47] Speaker 05:
Do you have anything further?

[00:50:49] Speaker 02:
Not that I'm going to ask.

[00:50:51] Speaker 02:
Thank you.

[00:50:52] Speaker 05:
Very good.

[00:50:53] Speaker 05:
Okay.

[00:50:53] Speaker 05:
Well, we're about to say this case is taken under submission, but before I do, I want to say, Mr. Perry, you slipped and you said something rude and, you know, I'm going to put my mom hat on for a minute and say,

[00:51:03] Speaker 05:
It would behoove you at a later date, not in front of me, because you're not satisfying me by doing it, but you apologize to opposing counsel for calling them bad guys.

[00:51:12] Speaker 05:
I know it was a slip.

[00:51:13] Speaker 05:
I'm sure you wish you could take it back.

[00:51:15] Speaker 05:
It's not to me or the court you owe an apology.

[00:51:17] Speaker 05:
That's all I'm going to say.

[00:51:18] Speaker 05:
I'll never know whether you do or not.

[00:51:20] Speaker 05:
It's on you to figure out how to handle that.

[00:51:23] Speaker 05:
But I did want to let you know that it didn't go unnoticed.

[00:51:28] Speaker 03:
It is to you and to them, Your Honor, and I'll make it on the record.

[00:51:31] Speaker 03:
It was a slip and an unforgivable one.

[00:51:34] Speaker 03:
And thank you for calling me on it.

[00:51:35] Speaker 03:
And thank you for reminding me of my obligations to my friends and to the court.

[00:51:39] Speaker 03:
I do apologize to all of you.

[00:51:42] Speaker 05:
All right.

[00:51:43] Speaker 05:
This case is taken under submission.