[00:00:00] Speaker 01:
and International Corporation versus Nitro Fluids LLC 211183.

[00:00:08] Speaker 01:
Mr. Kevil, please proceed.

[00:00:15] Speaker 00:
Thank you, Your Honor.

[00:00:16] Speaker 00:
May it please the Court, the Board here erred by finding an ambiguous block diagram could anticipate specific claims that require a manifold, a plurality of fracturing trees,

[00:00:28] Speaker 00:
and a single rigid fluid conduit connecting each tree to the manifold.

[00:00:33] Speaker 00:
Tolman's blocks were intended to illustrate his invention, which was a way to sequentially stimulate multiple wells.

[00:00:41] Speaker 00:
Tolman did not care about nor disclose any form of connection between the manifold and the wells.

[00:00:48] Speaker 00:
Nitro should no more be able to argue, and the board should not be able to rely on this block diagram of figure 2 as showing a single rigid fluid conduit.

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Any more than Cameron should be able to argue the pipe blocks don't show that fluid can flow because they have solid edges or that the figure only discloses square Christmas trees.

[00:01:08] Speaker 00:
It is a block diagram and it is not intended to show the specific connection.

[00:01:14] Speaker 00:
But anticipation, which is what Cameron raised, requires that a single reference describe the claimed invention with sufficient precision and detail to establish that the invention was in the prior art.

[00:01:27] Speaker 00:
Tolman's manifold has been colored six different ways by Nitro in order to make its arguments, ultimately ending with the green colored drawing first seen on appeal, which Nitro now says is the accurate one.

[00:01:40] Speaker 00:
That's at their red brief at 14.

[00:01:42] Speaker 00:
But that completely destroys its institution position, which is at appendix 132, because Nitro there said the manifold ended at the horizontal block right below number 208, but now says

[00:01:57] Speaker 00:
that all of the pipes are in the manifold, completely destroying that there is any connection.

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Nitro also admitted here for the first time that where the manifold begins and ends is somewhat arbitrary.

[00:02:10] Speaker 00:
That's their red brief at 18.

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So by definition, that makes the block diagram of figure two ambiguous.

[00:02:17] Speaker 00:
If a claim requires a manifold and a specific type of connection, a rigid fluid conduit, only one rigid fluid conduit,

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in addition to the manifold, when nitro says the manifold where it begins and ends is arbitrary, it must be ambiguous.

[00:02:35] Speaker 00:
And as a matter of law, yes.

[00:02:38] Speaker 04:
Do you agree that for figure two, we're really looking to determine whether there's one fluid pathway between the manifold and each tree?

[00:02:45] Speaker 04:
That's kind of the portion we're focused on.

[00:02:47] Speaker 04:
Do you agree with that?

[00:02:49] Speaker 00:
I agree in that what we're looking for is what's claimed, which is one rigid fluid pathway with rigid fluid conduit.

[00:02:57] Speaker 00:
And what you have here is a manifold 206 that includes a set of pipes 208, which is plural, and then pipes 203, piping 203, which is drawn exactly the same way and described as maybe high pressure steel lines or low pressure hoses.

[00:03:17] Speaker 00:
And then piping 228 is described as high pressure steel lines, plural.

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and then claim 49 uses the term piping interchangeably for the pipes in 206.

[00:03:29] Speaker 04:
So as Beth... So that's kind of our focus, Council.

[00:03:34] Speaker 04:
Why would it matter if the rest of the figure had like blocks and the like?

[00:03:38] Speaker 04:
Because you've been making your block diagram argument.

[00:03:40] Speaker 04:
I just want to understand why the rest of it would be important.

[00:03:46] Speaker 00:
Well, because the point is that the whole figure

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is just a block figure.

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It's not intended to show the specific structures because Coleman didn't care about the specific structures.

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Just like 106 is a block, and that's a Christmas tree or oil field tree, 208 is a block, and that's described in multiple different ways as pipes.

[00:04:09] Speaker 00:
And it's unrebutted evidence that what was used at the time was these multiple smaller frac iron lines.

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And the invention was a specific connection that got away from the multiple frac ion lines.

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So at best, Tolman is ambiguous about whether it's disclosing one pipe or multiple pipes, steel lines or hoses, and that make up the manifold.

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And it's totally silent on how that manifold connects to the production trees.

[00:04:40] Speaker 03:
Is it your view that, for example, valve 214, as shown in Tolman figure 2,

[00:04:48] Speaker 03:
is really just representative of multiple valves?

[00:04:53] Speaker 00:
It could be, because it talks about you could have multiple lines.

[00:04:57] Speaker 03:
Well, the problem is your argument is asking us to read a pretty straightforward looking illustration as could be representing this, could be representing that.

[00:05:12] Speaker 03:
We're not really sure, but the board already made a fact finding and just

[00:05:17] Speaker 03:
basically went with the illustration as is, and it's very hard at this point when it has expert testimony and took into the context, the description in Tolman, why we must say that that was just unreasonable and lacked substantial evidence.

[00:05:34] Speaker 03:
And that's really the challenge you have is trying to convince us of that when the illustration shows us what it shows us.

[00:05:44] Speaker 00:
Right.

[00:05:45] Speaker 00:
And where that falls, Judge Chan, I think, is that it's not really a substantial evidence question.

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The question is really, what's the proper legal standard for anticipation if you have a block diagram?

[00:05:57] Speaker 00:
The block diagram just generally projects a prior art system that cannot anticipate, if it's subject to multiple interpretations, a later specific invention.

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And there's unrebutted testimony that, at the time,

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multiple lines were what were used.

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Both experts agreed that that was, at the time, what was used.

[00:06:20] Speaker 04:
And the reference itself, if you look within the reference, doesn't make any... If we were to agree with you that that was a block diagram, what's your best case that says that can't be used to anticipate?

[00:06:34] Speaker 04:
What's your best case on that?

[00:06:36] Speaker 00:
Best case would be Meng.

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Meng had a diagram that was found to have exactly what was later claimed but not used for the specific purpose of the invention and also had two sections of the diagram in Meng, one with the offset slices, one not with the offset slices.

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And that's very similar to here where we have a diagram

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that has pipes 208, which are undefined and maybe plural.

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They're defined as part of the manifold.

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There is no definition of the connection.

[00:07:09] Speaker 00:
And then we have piping 203, which is used interchangeably, and maybe high-pressure steel lines or low-pressure hoses.

[00:07:18] Speaker 00:
So much like Meng, where Meng had a diagram that could be read in two different ways, and they said, that's not enough.

[00:07:24] Speaker 00:
You can't use the later invention and then look back

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and try and read it into what is claimed later.

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And that's exactly what happened here.

[00:07:36] Speaker 00:
Nitro trying to find something that disclosed the invention of a single line connecting the manifold and the trees came up only with a block diagram.

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That was the best that they could find.

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And then using the invention, read that back onto.

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The other case I would point to

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is Wasika.

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Wasika is a case where the reference could be read two different ways, much like here, where the reference could be read multiple ways because it's a block diagram.

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And what this court said in Wasika is ambiguous references do not, as a matter of law, anticipate a claim.

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In Wasika, it was said that you could find it was constant transmission or non-constant transmission.

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And here,

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you could find that what is shown in 206 is one pipe, multiple pipes, hoses, flexible hoses, steel lines.

[00:08:39] Speaker 00:
You can look at it multiple ways.

[00:08:41] Speaker 00:
And at the time of the prior art, it's unrebutted that what was being used at that time were multiple lines.

[00:08:49] Speaker 00:
Hopefully that answered your question, Judge Cunningham.

[00:08:53] Speaker 04:
You can continue.

[00:08:57] Speaker ?:
OK.

[00:08:57] Speaker 00:
I think the Henry Meng case is binding precedent and should be controlling here, just like the pathways are not defined here.

[00:09:08] Speaker 00:
If you look to the spec of Tolman, it says to couple, I'm reading from appendix 1178, paragraph 30, to couple the stimulation fluid pumping system 202 to the trees 106A to C, the pumping system manifold is utilized.

[00:09:27] Speaker 00:
And then it says the pumping system manifold may include a set of pipes to interface with the trees.

[00:09:33] Speaker 00:
There is absolutely no reference to how the manifold is actually connected to the trees.

[00:09:40] Speaker 00:
Now, the way Nitro dealt with that originally in their petition was to say the manifold ended at the block shown right under 208.

[00:09:50] Speaker 00:
That was the end of the manifold.

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And now, here, after multiple times

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coloring in different ways, now colored everything green and set everything up to the trees of the manifold, which is an admission this can be read to say there is no connection outside of the manifold.

[00:10:09] Speaker 00:
But the claims specifically require a connection outside the manifold.

[00:10:13] Speaker 00:
So that gets us back to the Wasika case.

[00:10:16] Speaker 00:
It's an ambiguous reference.

[00:10:18] Speaker 00:
It can be read multiple ways.

[00:10:20] Speaker 00:
And it cannot, as a matter of law, anticipate.

[00:10:24] Speaker 00:
And that's really the question.

[00:10:26] Speaker 00:
What would one of skill in the art at the time without the benefit of Cameron's patent have read looking at figure two of Tolman or looking at the spec?

[00:10:38] Speaker 00:
And it can be read so many different ways as is evidenced in this case by its multiple colorings and as evidenced by its spec and its use of piping, a set of pipes, high pressure steel lines, low pressure hoses, it can be read so many ways

[00:10:54] Speaker 00:
So it's not a substantial evidence question.

[00:10:56] Speaker 00:
It's a question of, if you have a block diagram that's ambiguous or capable of multiple readings, as a matter of law, it can't be anticipation.

[00:11:11] Speaker 01:
We can save the remainder of your time if you wish, Mr. Kevil, or you can continue.

[00:11:19] Speaker 00:
I would save the rest of my time, Your Honor.

[00:11:21] Speaker 01:
We will do that.

[00:11:23] Speaker 01:
Thank you.

[00:11:25] Speaker 01:
Is it Mr. Cabello or Cabello?

[00:11:29] Speaker 02:
Cabello, Your Honor.

[00:11:31] Speaker 01:
Please proceed.

[00:11:33] Speaker 02:
Thank you, Your Honor.

[00:11:35] Speaker 02:
May it please the court.

[00:11:37] Speaker 02:
First of all, I want to address Mr. Cabello's argument that there's unrebutted testimony that

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that this cannot be a single line.

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And that's just not right.

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The record reflects that Mr. DeMong at Appendix 1990 had a single line.

[00:12:04] Speaker 02:
So single line was clearly, I'm sorry, at paragraph nine of Appendix 1990,

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This demand clearly shows the use of a single line.

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So the record has evidence of use of a single line.

[00:12:23] Speaker 02:
Now, Mr. Kevil also talks about, well, you can look at this reference multiple ways.

[00:12:31] Speaker 02:
What Mr. Kevil has done is he has argued exactly that to the board.

[00:12:35] Speaker 02:
He has argued unsuccessfully that the board should look at Coleman

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to reflect something other than what it clearly reflects.

[00:12:50] Speaker 02:
Mr. Kevill focuses only on Figure 2 without looking at the specification.

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I think when you read the specification and Figure 2, there is substantial evidence to support the board's determination that Tolman anticipates, Claim 1.

[00:13:12] Speaker 02:
Mr. Kevin is also very critical about the various colorings.

[00:13:16] Speaker 02:
There has been various iterations of the coloring, but that's not because Tolman's teachings are different or because we're taking different views of Tolman.

[00:13:28] Speaker 02:
We offered a preliminary coloring of the manifold.

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And once we had the benefit of construction by the board, we offered

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one that was consistent with that construction.

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I don't believe that there's anything wrong with offering that second view.

[00:13:50] Speaker 02:
Now, Mr. Kevill also relies on Meng, and I'd refer the court to Inray Kramlet, which is found at 62F2nd, 358.

[00:14:05] Speaker 02:
It's a 1932 CCPA decision.

[00:14:09] Speaker 02:
And in that, the court said,

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Kramlet does not stand for the broad proposition that any reference capable of more than one interpretation is not a valid reference.

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And Mr. Kevil would have us believe that Kramlet stands, I'm sorry, that men stands for this broad proposition when in fact a later court, specifically Kramlet, disabused us of that notion.

[00:14:35] Speaker 02:
Now, if I may proceed, I want to discuss very briefly this

[00:14:41] Speaker 02:
fluid pathways, because I think it's very important to focus on those fluid pathways.

[00:14:48] Speaker 02:
And we turn to the teachings of Coleman, where just bear with me, Your Honor.

[00:15:03] Speaker 02:
Coleman talks about a single fluid

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a pathway that is created by the opening of the valves 214, 216, and 218.

[00:15:20] Speaker 02:
So clearly, those valves are being opened to create a fluid pathway to each one of the trees.

[00:15:35] Speaker 02:
We believe that there are

[00:15:37] Speaker 02:
substantial evidence in the record to find that the board's decision is proper and that Coleman is an anticipating reference.

[00:15:50] Speaker 02:
Now, with respect to the fluid pathway that I just mentioned, at Appendix 1179, paragraph number 44, Coleman says, the main manifold valve 210

[00:16:05] Speaker 02:
and the first manifold well valve 214 are in the open position, while the second manifold well valve 216 and the third manifold well valve 218 are in the closed position to create a first well flow path.

[00:16:23] Speaker 02:
Now, Tolman talks about a well flow path.

[00:16:28] Speaker 02:
Not paths, but a single path.

[00:16:31] Speaker 02:
Clearly, what we have in Tolman figure two

[00:16:35] Speaker 02:
Thank you.

[00:16:35] Speaker 02:
I apologize for the interruption.

[00:16:37] Speaker 02:
First of all, I just want to pause a moment to see if the court has any questions before I proceed.

[00:16:43] Speaker 01:
You know, Council?

[00:16:46] Speaker 04:
Oh, I'm sorry.

[00:16:47] Speaker 04:
I had a question, if that's OK.

[00:16:49] Speaker 01:
Yes, Your Honor.

[00:16:51] Speaker 04:
So your opposing council spent some quality time on this block diagram argument and then contended that really there couldn't be anticipation as a matter of law.

[00:17:01] Speaker 04:
Can you respond to that argument that they raised?

[00:17:06] Speaker 02:
Yes, Your Honor.

[00:17:08] Speaker 02:
First of all, it's our contention, and we believe that it's fully supported by the record, that the block diagram is fully enabling for this particular invention, and particularly when it's read in light of the specification.

[00:17:28] Speaker 02:
There is no case law that we've been able to find that stands for the general premise that a block diagram in and of itself cannot be anticipated.

[00:17:36] Speaker 02:
And if you consider the teachings of the specification and Figure 2, you clearly establish a single line between the manifold and each one of the fractories.

[00:17:56] Speaker 02:
Does that address your question, Judge Cunningham?

[00:18:00] Speaker 04:
Yes.

[00:18:00] Speaker 04:
Yes.

[00:18:00] Speaker 04:
Go ahead and continue with your argument.

[00:18:02] Speaker 02:
All right.

[00:18:03] Speaker 02:
First of all, well, secondly,

[00:18:07] Speaker 02:
We believe that the court should affirm the invalidity of claims 1, 3, 4, 5, 7, 8, and 17 based on Toleman.

[00:18:17] Speaker 02:
We'd also believe that the court should affirm the board's construction of factory, which is supported by substantial evidence.

[00:18:28] Speaker 02:
We believe that the court should reverse the findings of the non-obviousness

[00:18:37] Speaker 02:
of claims 11, 12, 13, 14, and 18, based on the board's determination that because NYCHA did not anticipate claim 11, it didn't proceed to the obvious analysis.

[00:18:50] Speaker 02:
We think that that is a legal error on the part of the board.

[00:18:55] Speaker 02:
And with that, I'll reserve the rest of my time for rebuttal.

[00:19:01] Speaker 01:
We will save it for you, Mr. Cabello.

[00:19:03] Speaker 01:
Mr. Cabello.

[00:19:06] Speaker 00:
Yes, Your Honor, thank you.

[00:19:08] Speaker 00:
A couple of points.

[00:19:10] Speaker 00:
One is, counsel pointed when we talked about that there was unrebutted testimony that these can be read multiple ways.

[00:19:20] Speaker 00:
Counsel did what the board did in error and essentially flipped the burden.

[00:19:25] Speaker 00:
He put it on us to show that it cannot be a single line in a tollman, but that is not the case.

[00:19:32] Speaker 00:
it's their burden to show that it unambiguously is a single line.

[00:19:37] Speaker 00:
They have to prove Tolman does not represent frac iron.

[00:19:42] Speaker 00:
And the point that was unrebutted is that it clearly does.

[00:19:45] Speaker 00:
That's what it discusses in the specification.

[00:19:48] Speaker 00:
So Judge Cunningham, when your question was just asked and counsel said you must read Tolman in view of the specs, what the specs specifically says, and what I read in paragraph 30 at appendix 1178, is that the manifold

[00:20:02] Speaker 00:
is coupled to the trees, it doesn't say anything at all about any connection between the manifold and the trees, and then it just talks about the manifold being a set of pipes, and we've talked about how that is described.

[00:20:15] Speaker 00:
Council then pointed to Damong and said, well, Damong provides what you need, but that's an obviousness case that he didn't make.

[00:20:23] Speaker 00:
If he's going to rely on Damong for proof, then he should have raised it as an obviousness case.

[00:20:30] Speaker 00:
What happened here

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is they made an anticipation argument only on Coleman and Sergio Mata and then briefly said for claims five and 13, you can combine them for obviousness without any specifics under than the two vows.

[00:20:46] Speaker 00:
And the reason they did that is because there would be a tremendous amount of secondary considerations that would have been brought in if they raised this as an obviousness case for the main claims.

[00:20:58] Speaker 00:
because even Tolman, which isn't in the record, but if it was an obviousness case, it would have been evidence that Tolman, which is assigned to Exxon, Exxon uses the Cameron invention.

[00:21:09] Speaker 00:
And then when he points to Demong, what Demong shows in figure two is clearly flexible lines, and it shows two lines.

[00:21:17] Speaker 00:
So what Tolman is showing is two lines going to the tree.

[00:21:21] Speaker 00:
And then if you go to the Demong spec, Demong at appendix

[00:21:26] Speaker 00:
1-9-9-1, page 2, column, paragraph 20, it says the first flow line may be, for example, flexible hose, flexible metal line, formed rigid metal line, or other type of line used in hydraulic fracturing operations known as ChickSan.

[00:21:44] Speaker 00:
So the Mong, even if you look at it, does not support the position they're arguing.

[00:21:50] Speaker 01:
Counsel, in your remaining time, do you want to specifically address the cross-appeal claims 11 to 14 and 18?

[00:21:58] Speaker 00:
Yes.

[00:21:59] Speaker 00:
There was no specific argument made to the board in the petition except for claims five and 13 in ground three.

[00:22:11] Speaker 00:
And that is why the board, both in the institution decision and in the final decision, recognized

[00:22:18] Speaker 00:
that there have been no obvious in this case put forward for those claims.

[00:22:23] Speaker 00:
The claims have not been addressed in any meaningful way down below and they couldn't be because it wasn't in the petition.

[00:22:35] Speaker 00:
The other point I would make is on the cross appeal on the manifold definition, the manifold

[00:22:46] Speaker 00:
has to, by definition, have the ability to direct the fluid to the multiple trees, to each tree.

[00:22:54] Speaker 00:
That's the purpose of the manifold.

[00:22:58] Speaker 00:
And the board made error in that.

[00:23:00] Speaker 00:
Now, if you agree with us that Tullman doesn't unambiguously disclose the one and only one rigid fluid pathway, you reverse and render, we'd like to correct the claim constructions, but you don't have to get there.

[00:23:15] Speaker 00:
If you disagree,

[00:23:16] Speaker 00:
And it goes back, then it needs to be properly construed both for frac manifold and frac tree, which frac tree was unrebutted as a specific type of tree, not a general Christmas tree.

[00:23:30] Speaker 00:
Both experts agreed.

[00:23:32] Speaker 00:
And that would be relevant to certain of the claims that specifically require a frac tree.

[00:23:39] Speaker 01:
Thank you, Mr. Kevill.

[00:23:41] Speaker 01:
Mr. Cabello has some time on the cross appeal only.

[00:23:46] Speaker 02:
Yes, Your Honor.

[00:23:47] Speaker 02:
With respect to the cross-appeal, we don't believe that it's necessary to reiterate the limitations and the application of the art that was made.

[00:23:57] Speaker 02:
It was applied to Claim 5, and we pointed the board to that recitation and that explanation.

[00:24:07] Speaker 02:
The art applies equally.

[00:24:09] Speaker 02:
The claims pretty much map in the same way.

[00:24:16] Speaker 02:
Absolutely no reason that we can understand why the board didn't just apply the art, the claims that it rendered non-obvious.

[00:24:30] Speaker 02:
With respect to the frac manifold, we believe that the board erred in its construction of frac manifold because it inserted a valve.

[00:24:43] Speaker 02:
If you look at both the

[00:24:46] Speaker 02:
The specification of the 800 patent and the abstract, it does not require a valve in the manifold.

[00:24:53] Speaker 02:
It provides for a valve.

[00:24:56] Speaker 02:
And the dependent claims recite both the outlet branches and the valves as additional limitations.

[00:25:07] Speaker 02:
Finally, with respect to the FracTree, we believe that that construction is proper.

[00:25:13] Speaker 02:
Both Coleman and the 800 patent use a frac tree to produce and to fracture a well.

[00:25:23] Speaker 02:
Those are the teachings of both Coleman and the 800 patent.

[00:25:28] Speaker 02:
And we don't believe that there's any claim limitations with respect to pressure, materials, weight of the tree.

[00:25:36] Speaker 02:
So the board construction with respect to frac tree is correct.

[00:25:41] Speaker 02:
And the frac manifold should be re-construed so as not to include a valve.

[00:25:56] Speaker 02:
Mr. Kevil, let me just end by closing that Mr. Kevil refers to frac iron multiple times.

[00:26:04] Speaker 02:
There is no mention of frac iron in the 800 patent.

[00:26:08] Speaker 02:
There is no mention of frac-iron entombment.

[00:26:12] Speaker 02:
The board considered the argument with respect to frac-iron, rejected it.

[00:26:16] Speaker 01:
Is this relevant to the cross-appeal?

[00:26:22] Speaker 02:
No, Your Honor.

[00:26:23] Speaker 01:
All right.

[00:26:23] Speaker 02:
And with that, we'll rest once on our brief.

[00:26:28] Speaker 01:
Thank you, Mr. Cabello.

[00:26:29] Speaker 01:
We thank both counsels.

[00:26:31] Speaker 01:
The case is submitted.

[00:26:33] Speaker 01:
That concludes your argument for today.

[00:26:38] Speaker 03:
The Honorable Court is adjourned until tomorrow morning at 10am.