[00:00:00] Speaker 01:
Our next case is 21-2372, DionX software on GMBH versus Agilent Technologies, Inc.

[00:00:09] Speaker 01:
Mr. Smithsford, you have reserved six minutes of your time.

[00:00:14] Speaker 03:
And Your Honors, thank you for having me back so quickly.

[00:00:16] Speaker 03:
May it please the Court, representing the Appellants of DionX.

[00:00:23] Speaker 03:
Unless the Court has questions regarding priority,

[00:00:26] Speaker 03:
I propose not to address that issue in these remarks.

[00:00:30] Speaker 03:
The priority issues are essentially identical.

[00:00:34] Speaker 03:
What I would like to do instead, the court's leave, is move straight to the question of standing.

[00:00:42] Speaker 03:
This arises only in the 2372 case.

[00:00:46] Speaker 03:
In that case, in the interference below, the 109 interference, Dionics

[00:00:54] Speaker 03:
moved for judgment on the grounds that Agilent could not support the claims of the involved Agilent application with the specification of the Agilent application.

[00:01:11] Speaker 03:
That motion rested upon a particular claim construction, focusing on the word determining, and the board rejected the Dionics claim construction, found that

[00:01:23] Speaker 03:
a broader claim construction was appropriate and therefore denied Dionics' motion.

[00:01:31] Speaker 03:
Had the board accepted Dionics' claim construction, it seems indisputable that the result would have been a finding of lack of written description for the Agilent claims, the claims therefore not allowable, Agilent lacked standing and judgment for Dionics.

[00:01:50] Speaker 03:
So I'm going to focus on

[00:01:52] Speaker 03:
the claim construction issue alone.

[00:01:55] Speaker 03:
And of course, that's an issue that the court is readily familiar with.

[00:01:59] Speaker 03:
We start with the plain English, as with any claim construction issue.

[00:02:05] Speaker 03:
So there are two elements, and we have them numbered in the briefing.

[00:02:11] Speaker 03:
Element three, which describes a step of determining a movement amount of the piston.

[00:02:19] Speaker 03:
And then a second element, element five,

[00:02:22] Speaker 03:
that specifies decreasing the sample loop volume by advancing the piston by the determined amount.

[00:02:34] Speaker 03:
And in both instances, you see careful construction of an antecedent basis and then use of that antecedent basis.

[00:02:44] Speaker 03:
Claim elements five uses the phrase the determined movement amount, clearly intending to refer back to the movement amount determined in element three.

[00:02:58] Speaker 02:
This case comes down to the meaning of the?

[00:03:03] Speaker 03:
It comes down to the meaning, your honor, of determining.

[00:03:07] Speaker 03:
And in assisting us in understanding what determining means,

[00:03:12] Speaker 02:
We can look at... My understanding is you believe that because it says the determined movement amount referencing the earlier statement in the claim of determining a movement amount, that therefore the determining step has to occur before the forwarding the piston step, right?

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

[00:03:34] Speaker 02:
An alternative way to understand it is that by saying the determined movement amount, it's just trying to reference what had been stated earlier in the claim without actually demanding or suggesting that one particular step occurred before the other.

[00:03:54] Speaker 02:
That's an alternative.

[00:03:56] Speaker 02:
And that's what the board went with.

[00:03:58] Speaker 03:
Yes.

[00:03:59] Speaker 03:
And what the board did not explain, though,

[00:04:02] Speaker 03:
is why that second use of the determined movement amount added anything to the claim.

[00:04:10] Speaker 03:
Indeed, if one accepts the board's interpretation that one can advance the piston by some amount unknown that creates a pressure that's sufficient to do the job, then the system has simultaneously both

[00:04:29] Speaker 03:
determine the movement amount and move the piston by the determined amount.

[00:04:34] Speaker 03:
And what the board didn't explain is why that second part of that language is required.

[00:04:41] Speaker 03:
Claim language, of course, claims are to be interpreted so as to give claim language meaning.

[00:04:47] Speaker 03:
And under the board's interpretation, element five, moving the piston by the determined amount becomes completely superfluous.

[00:05:03] Speaker 03:
We don't believe that any other interpretation of the claim than the one we have provided is consistent with the plain and ordinary meaning, the English on the page.

[00:05:16] Speaker 03:
But if we do want to go to the next step of construing the claim in light of the specification, the question arises, does the adjuvant rule apply?

[00:05:28] Speaker 03:
And I'd like to remind the court that

[00:05:31] Speaker 03:
When Agilent filed the preliminary amendment that introduced these claims into the 402 application, the first sentence of the remarks reads, the claims presented herein are substantially copied from US patent number 15596738.

[00:05:51] Speaker 03:
That's the Dionics patent application.

[00:05:56] Speaker 03:
And that's found in the appendix at 2591.

[00:06:02] Speaker 03:
The Agilent rule requires that claims be construed in light of the specification from which the claims originated.

[00:06:11] Speaker 03:
It is clear that the board erred in construing the Agilent claims in light of the Agilent specification when the claims clearly originated from the 738 application.

[00:06:24] Speaker 02:
But what should we take from the fact that the board refused to order an interference?

[00:06:32] Speaker 02:
between your earlier patent and this claim that was substantially copying the claim in your patent?

[00:06:43] Speaker 03:
Well, bear in mind that the board was, now here I think we're talking about the interference branch of the examining level of the PTO, not the board itself.

[00:06:55] Speaker 03:
And so when you go through the file history of the 402 application,

[00:07:03] Speaker 03:
it lacks the submission requesting the declaration of an interference.

[00:07:10] Speaker 03:
Although Agilent included, as it is required to under Rule 56 in duty of candor, the statement that I just read, Agilent never then stated that it wished to prompt an interference.

[00:07:27] Speaker 03:
The case went to issuance.

[00:07:31] Speaker 03:
And at that point, the examiner said,

[00:07:33] Speaker 03:
But for the fact that these claims are substantially copied from the 738 application, the claims are allowable.

[00:07:40] Speaker 03:
I'm going to now refer the case to the Interference Branch.

[00:07:49] Speaker 03:
That happened.

[00:07:51] Speaker 03:
And in the meantime, Dionics had filed an application that's the child of the 738 that exactly copied the now pending Agilent claims.

[00:08:03] Speaker 03:
and the interference that was declared was between that child application on Dianix's part and the Agilent application.

[00:08:13] Speaker 03:
But neither party specifically asked for an interference to be declared.

[00:08:17] Speaker 03:
The interference only arose because the examiner said, these allowed claims, these patentable claims, would be allowable, but for the interference issue, I am referring this to the interference branch.

[00:08:32] Speaker 03:
What do we make of that?

[00:08:34] Speaker 03:
Somewhere in the interference branch, somebody said rather than declare an interference between the 402 application and the issued 112 patent, which was now the state of the 738 application, I'm going to use this child application from the 738 application as the basis for the interference when the interference was declared.

[00:08:53] Speaker 03:
We do not know why the record is silent on the point.

[00:08:56] Speaker 01:
How would it make a difference which originating disclosure, which specification we viewed as the originating disclosure?

[00:09:04] Speaker 03:
In the Dionics application, the only embodiment that shows a step of determining a movement amount and then moving the piston by that movement moving amount describes algorithms, lookup tables, and other techniques

[00:09:24] Speaker 03:
that are different from the feedback mechanism, which is the only mechanism that's described in the Agilent specification.

[00:09:31] Speaker 01:
So you don't believe you have disclosure in the Dionics specification for essentially real-time embodiment, where you determine it basically at the same time that you are doing it?

[00:09:47] Speaker 03:
There is an embodiment in the Dionics application that does use a feedback loop.

[00:09:54] Speaker 03:
And it's virtually identical to the system, hence the interference, I suppose, that's disclosed in the Agilent application.

[00:10:02] Speaker 01:
Why would that not be adequate, even if we took your view that we should look to the Dionics disclosure as the originating disclosure?

[00:10:10] Speaker 03:
It isn't necessary for a claim to cover every embodiment in the specification.

[00:10:17] Speaker 03:
There is an embodiment in the specification of the Dionics application.

[00:10:21] Speaker 03:
that clearly requires determining the movement amount by a specified distance and then moving the piston that much.

[00:10:29] Speaker 03:
That is the embodiment to which these claims refer.

[00:10:34] Speaker 03:
A feedback mechanism would be phrased in very different language.

[00:10:37] Speaker 03:
And for instance, you would need the second reference to moving the piston by that determined amount.

[00:10:44] Speaker 03:
Your honor, if you have no further questions, I will reserve the balance of my time.

[00:10:48] Speaker 03:
OK, we thank you.

[00:10:49] Speaker 00:
Good morning again, Your Honors, John Scangiferagilent.

[00:10:53] Speaker 00:
On the priority issue, I just want to mention briefly that there was a slightly expanded record in the second appeal.

[00:11:00] Speaker 00:
Some of these follow-up questions of the witnesses that never were asked by Dionics, we supplemented in the declaration to say that, yeah, now that you've pointed out some of these arguments, Dionics, that doesn't change any of our views, and that's in the Bowerly declaration

[00:11:18] Speaker 00:
in the second appendix at 2194 and 2195.

[00:11:21] Speaker 00:
It discusses why he didn't need to see the hydraulics, why the plot was sufficient.

[00:11:27] Speaker 00:
Again, just further support for the arguments that we made and won on in the first appeal.

[00:11:32] Speaker 00:
Likewise, Mr. Kretz added to his declaration in the second appendix

[00:11:39] Speaker 00:
5 through 59, again refuting a number of the arguments that we've heard today.

[00:11:45] Speaker 00:
What is very interesting, again, these are questions that were never asked in the first depositions of the witnesses, and after submitting these slightly supplemented declarations in the second interference, no further depositions were sought.

[00:12:00] Speaker 00:
We think that's telling.

[00:12:02] Speaker 00:
Also, I do want to mention the estoppel issue.

[00:12:09] Speaker 00:
that hasn't been addressed, the interference estoppel issue based on the loss count and the prior art.

[00:12:17] Speaker 00:
The argument that was addressed for the first time in the gray briefs here was that this is an issue that should have been raised by Agilent across the field as opposed to as an alternate ground for affirmance.

[00:12:32] Speaker 00:
I just want to point out that we are seeking the same relief.

[00:12:35] Speaker 00:
We are seeking an affirmance of the same judgment, the judgment being that priority is not awarded to Dionics.

[00:12:44] Speaker 00:
So whatever the ground is, that would be the same judgment either way, and we think it's... You're saying as a technical matter, if you're right on interference to stop all that wouldn't

[00:12:56] Speaker 02:
lead to a vacatur of the decision and an order to dismiss the interference?

[00:13:04] Speaker 00:
Correct, Your Honor.

[00:13:05] Speaker 00:
It's essentially a ground of unpatentability that we raised at the board.

[00:13:12] Speaker 02:
Yes, the question is, if interference of stock in fact did apply, why would there be any kind of, wouldn't that moot out the priority dispute?

[00:13:23] Speaker 00:
That's why we consider it to be an alternative ground.

[00:13:25] Speaker 02:
The board could have gotten... The meetings would thereby deprive the board from the ability to render a decision on a priority.

[00:13:34] Speaker 00:
No, Your Honor.

[00:13:35] Speaker 00:
I look at it differently from the point of view that, again, either argument would have led to the result that we are the party with priority.

[00:13:46] Speaker 00:
And whether it's essentially an unpatentability ground or a priority ground, we get to the same place.

[00:13:51] Speaker 00:
And we saw that

[00:13:53] Speaker 00:
There's two appeals here today.

[00:13:54] Speaker 00:
There was a prior appeal in May of 2020 where it was a Section 112 written description issue, an unpatentability issue, and the board's judgment that was affirmed by the Federal Circuit there, same exact wording.

[00:14:10] Speaker 00:
The judgment is that priority is denied.

[00:14:15] Speaker 00:
to Dionics, and the case that was raised by Dionics, the Hamilton Beach versus Ferreo case, is an example, Your Honor, where the alleged alternative ground would have caused the need for a vacature.

[00:14:34] Speaker 00:
There was an appeal from an IPR, and the Federal Circuit

[00:14:41] Speaker 00:
both affirmed the patentability decision on the merits of the final written decision.

[00:14:47] Speaker 00:
And the appellee said, well, you know, by the way, the patentee appellee said, by the way, the IPR never should have been instituted in the first place.

[00:14:58] Speaker 00:
And not only did I win on the merits at the final written decision stage, but it never should have been instituted in the first place.

[00:15:04] Speaker 00:
And this court said, well, that's a different relief.

[00:15:09] Speaker 00:
the relief would have been, the proceeding never should have started in the first place.

[00:15:13] Speaker 00:
Whereas here, interference estoppel was raised by motion, the result being that, again, effectively a determination that the count would be unpatentable.

[00:15:25] Speaker 00:
So we're seeking the same relief and therefore it's an alternate grounds.

[00:15:32] Speaker 00:
And part of the reason why we raised this, again, we're now third appeal after three interferences of these cases.

[00:15:40] Speaker 00:
Patent families are still pending.

[00:15:42] Speaker 00:
There's no other pending interferences, but we'd certainly like to streamline any future proceedings if we have them.

[00:15:54] Speaker 00:
I'd like to turn now to the claim construction written description issue, unless there's any further questions.

[00:16:02] Speaker 00:
We believe that the board correctly construed the claim to not require a sequence of steps, to not require predetermining the movement amount.

[00:16:14] Speaker 00:
That was the correct application of the general rule that sequence or order is not implied into method steps.

[00:16:21] Speaker 00:
And here, in connection with this determining limitation, there is no language associated with the timing or sequence, whereas we do see some sequential language with respect to some other steps.

[00:16:40] Speaker 00:
There's expressly a reference to while the sample loop is isolated in one of the limitations, so we're talking about doing something contemporaneously.

[00:16:51] Speaker 00:
with the isolating step.

[00:16:54] Speaker 00:
We talk about moving from a first position to a second position, so we have a sequence there.

[00:17:00] Speaker 00:
But no similar language with respect to determining.

[00:17:05] Speaker 00:
Really what it comes down to is this antecedent basis reference to the determined movement.

[00:17:13] Speaker 00:
The determining was referenced earlier in the claim.

[00:17:18] Speaker 00:
That is all we have in it.

[00:17:20] Speaker 00:
It simply makes sense that the antecedent basis is respected.

[00:17:25] Speaker 00:
It doesn't make the entire limitation superfluous.

[00:17:29] Speaker 00:
If we look at the analysis from information, we look at logic and grammar.

[00:17:37] Speaker 00:
And here, logically, we know that the system works from a technological perspective if it is doing the determining in real time.

[00:17:48] Speaker 00:
We've got embodiments in both party specifications that do just that, so there's no question that it will work if it's construed the way we ask, which is that there's no time sequence implied.

[00:18:04] Speaker 00:
The experts agreed to the plain and ordinary meaning of determining as including making a real-time assessment.

[00:18:16] Speaker 00:
In fact, when we look at the grammar of the claim, the fact that we are ending up addressing the antecedent basis as thoroughly as it was in this disputed clause makes sense.

[00:18:32] Speaker 00:
because the way the claim is written is steps are introduced, for example, isolating is introduced, and then a few sub-paragraphs later, there's yet another clause about isolating.

[00:18:48] Speaker 00:
isolating the sample that comprises and some more detail.

[00:18:51] Speaker 00:
And we see this later on.

[00:18:54] Speaker 00:
Decreasing the volume of the metering device.

[00:18:56] Speaker 00:
There's a subparagraph on that.

[00:18:58] Speaker 00:
And then in the disputed subparagraph, wherein decreasing the volume includes and more specific detail.

[00:19:06] Speaker 00:
So by virtue of laying out these steps, getting progressively narrower and adding more to them and referencing back to the

[00:19:18] Speaker 00:
antecedent basis, it makes sense grammatically that we refer to the determined movement in this disputed claim and are simply doing that to refer to the movement that we talked about earlier, but not to suggest any kind of sequence.

[00:19:34] Speaker 00:
And the ED at the end of determined, well, we see that in this step while the sample loop is isolated ED.

[00:19:45] Speaker 00:
Initially, it's

[00:19:47] Speaker 00:
isolating is the verb tense used.

[00:19:50] Speaker 00:
Well, okay, now that we've introduced it and we're referring back to that same thing, we're going to use the past tense.

[00:19:59] Speaker 00:
But if we're talking about when it happens, it would be express.

[00:20:04] Speaker 00:
And so we disagree with Dionics that that entire clause is superfluous.

[00:20:12] Speaker 00:
It not only ties together all of the

[00:20:16] Speaker 00:
prior background and foundation that's been established in the preceding subparagraphs, but it is the first time that we're actively claiming the step of moving the piston.

[00:20:29] Speaker 00:
We're saying forwarding the piston.

[00:20:30] Speaker 00:
We talk about a direction and we're doing it here in this step from the first position to the second position.

[00:20:39] Speaker 00:
And if we want to parse it a little further, did we have to say the determined amount and from the first position to the second position?

[00:20:48] Speaker 00:
Both of those terms were introduced earlier.

[00:20:50] Speaker 00:
Did we have to repeat them?

[00:20:52] Speaker 00:
Well, thorough respect for antecedent basis.

[00:20:56] Speaker 00:
But what I think is important here is even adopting Dionix's construction.

[00:21:01] Speaker 00:
Their construction would say, we need to pre-calculate.

[00:21:05] Speaker 00:
And that's the only way that this claim makes any sense.

[00:21:09] Speaker 00:
that doesn't resolve this alleged redundancy and superfluousness problem that they're talking about.

[00:21:16] Speaker 00:
We still have this reference to determined amount and from the first to the second.

[00:21:24] Speaker 00:
So the argument about redundancy doesn't trump here, especially when we look at the result that comes out of this and the fact that what

[00:21:34] Speaker 00:
Dionics is doing is saying, well, make this rule about redundancy, trump the fact that this is the only embodiment in the Agilent specification.

[00:21:46] Speaker 00:
So we certainly should be construing the claim in light of the specification.

[00:21:51] Speaker 00:
And they're saying, well, you could have wordsmithed this a little better.

[00:21:56] Speaker 00:
I think virtually every method claim you could go back with a red pen and maybe reduce the word count a little bit.

[00:22:03] Speaker 00:
But the general rule isn't that being able to do that means imply a sequence.

[00:22:09] Speaker 00:
The general rule is no sequence unless we specifically see it.

[00:22:14] Speaker 00:
And I want to respond to a point that

[00:22:18] Speaker 00:
Mr. Ispester raised, which is that it was described differently in their specification when they talked about the real-time embodiment.

[00:22:29] Speaker 00:
I believe he said that it was described in a different way, and actually I think it's quite instructive the way they describe it.

[00:22:37] Speaker 00:
It's very consistent with our approach.

[00:22:38] Speaker 00:
So even if we are applying the Dionics specification, and I'll get to why that may not make sense under the Agilent rule, but even under their specification, if we look in the second appendix at the sentence that spans from pages 2682 to 2683, their

[00:22:59] Speaker 00:
Summarizing, okay, we've got these two approaches.

[00:23:01] Speaker 00:
We can calculate the amount of travel that they refer to, the movement they call travel.

[00:23:08] Speaker 00:
We can calculate it, or they can do the real-time embodiment, and here's what they say.

[00:23:15] Speaker 00:
Or that amount of travel, quote, can be, quote, or determined by measuring and controlling the pressure.

[00:23:25] Speaker 00:
So they use the determined

[00:23:27] Speaker 00:
word themselves to describe the active step of the real-time monitoring, and they mix determined with measuring and controlling, so these verb tenses don't resolve things and it makes, again, much more sense to read the claim consistent with our approach that determining includes real-time.

[00:23:53] Speaker 00:
Well, again, we don't think it changes the outcome here as far as what was the source of this claim and which spec should apply.

[00:24:03] Speaker 00:
Well, the verbatim claim that is now the count first appeared in Agilent's patent application.

[00:24:14] Speaker 00:
The word determine was for the first time showed up in Agilent's

[00:24:22] Speaker 00:
patent application.

[00:24:23] Speaker 00:
Dionics below acknowledged that Determined was first used by Agilent.

[00:24:27] Speaker 00:
That's the second appendix at 487.

[00:24:30] Speaker 00:
So we made that change, very deliberate change, but Dionics claims that Determined, I'm sorry, Dionics claims that Calculate, we changed it to Determined.

[00:24:43] Speaker 00:
And what we don't see is any law from Dionics saying, well, okay, when we apply this Agilent rule to look at whose spec applies

[00:24:52] Speaker 00:
Let's go back in the history.

[00:24:53] Speaker 00:
Let's go back to parent cases.

[00:24:55] Speaker 00:
Let's think about what motivated the claim drafter to put that term in there in the first place.

[00:25:02] Speaker 00:
And there isn't any such law.

[00:25:04] Speaker 00:
But again, like I say, if it's our spec, we think their reading is strange because that's the only embodiment.

[00:25:12] Speaker 00:
And it makes sense to interpret in view of the spec and in view of the one and only disclosed embodiment of our spec.

[00:25:21] Speaker 00:
But even if we're using the Dionics Spec, they use the word determined to reference that real-time action, and that's what we're claiming and we think should apply.

[00:25:32] Speaker 00:
Thank you, Your Honor.

[00:25:33] Speaker 00:
Thank you.

[00:25:34] Speaker 03:
Your Honor, if I may pick up where Mr. Sanger left off, the top of page, APX 2683, where the words determined by measuring and controlling the pressure appear in the Dionics Specification,

[00:25:50] Speaker 03:
This is the alternative embodiment that Judge Stark and I discussed.

[00:25:55] Speaker 03:
What is happening there is the pressure on the sample loop is being measured, and that is determining.

[00:26:04] Speaker 03:
You are increasing the pressure in the sample loop, and you are measuring the pressure.

[00:26:11] Speaker 03:
And when it is equal, then you have achieved that full pre-compression.

[00:26:17] Speaker 03:
So there is a measurement component to determining.

[00:26:21] Speaker 03:
In the feedback loop approach, the only measuring that is done is of the pressure in the sample loop.

[00:26:31] Speaker 03:
That's not what the count is directed to.

[00:26:33] Speaker 03:
That's not what Agilent's claim is directed to.

[00:26:36] Speaker 03:
Agilent's claim is directed to determining the movement amount.

[00:26:41] Speaker 03:
And there is nothing in the Dionics feedback mechanism in which Dionics describes calculating

[00:26:52] Speaker 03:
Excuse me, determining the movement amount.

[00:26:55] Speaker 03:
That's part of the algorithm approach where you calculate how much you need to advance the piston in order to achieve the pressure you're looking for.

[00:27:05] Speaker 03:
So we actually think that that language from the Dianic Specification enhances our claim construction position.

[00:27:14] Speaker 03:
When a person's feeling the art is referring to actually

[00:27:18] Speaker 03:
measuring something, they can use the word determinate.

[00:27:21] Speaker 03:
When it's not being measured, such as in the Agilent specification, the travel or the movement amount of the piston, which is never measured, never recorded, nobody knows how much it did move, you don't use the word determinate.

[00:27:37] Speaker 03:
I also think that there is a parallelism in the claim language between the progressive

[00:27:46] Speaker 03:
isolating, determining, and in the past participle, isolated and determined.

[00:27:52] Speaker 03:
The first step in the Agilent claim is isolating the sample loop.

[00:27:59] Speaker 03:
Thereafter, it is the isolated sample loop.

[00:28:03] Speaker 03:
It has already happened.

[00:28:05] Speaker 03:
And therefore, the sample loop is isolated.

[00:28:09] Speaker 03:
Similarly, there is a step for determining the movement amount.

[00:28:14] Speaker 03:
Thereafter, it's the determined movement amount.

[00:28:18] Speaker 03:
So I think we can move past whether or not this case revolves around the word the to whether it revolves around the two letters ED.

[00:28:29] Speaker 03:
But they are significant, and there is parallelism in the claims that exactly shows that there is a sequentiality intended by the use of isolating, isolated, determining, determined.

[00:28:49] Speaker 03:
Mr. Skanga, my friend revisited some priority questions, and in particular, he noted that the Agilent witnesses provided additional declarations in the 2372 case, and Dionics declined to take their depositions.

[00:29:10] Speaker 03:
Why did that happen?

[00:29:12] Speaker 03:
Mr. Sanger argues, well, it's because the evidence is already so replete.

[00:29:16] Speaker 03:
But what we had was sworn testimony that, excuse me, what we had was sworn testimony from Mr. Bowerly that he did not know the hydraulic details of the prototype.

[00:29:31] Speaker 03:
He had never seen the modified pump.

[00:29:34] Speaker 03:
He had never seen the modified valve.

[00:29:38] Speaker 03:
We have sworn testimony from Mr. Bauerle that he'd seen a pressure plot on the column side, but he'd never seen a plot of the pressure on the sample loop side.

[00:29:51] Speaker 03:
And we had sworn testimony from Mr. Kretz that 2152 included make before break in addition to some form of pre-compression.

[00:30:02] Speaker 03:
And we had Mr. Bowerly testifying in deposition that make before break allowed for equalization of the pressure in the sample loop to the pressure on the column side.

[00:30:12] Speaker 03:
So what was there left to take a deposition about?

[00:30:17] Speaker 03:
Finally, I'd like to address the alternative grounds.

[00:30:20] Speaker 03:
And I'm not quite sure whether we're speaking here about simply the 2372 case or 1794 as well.

[00:30:29] Speaker 03:
If we're speaking to 1794, I'd like to point out that even if the argument is successful and claim 25 should have been found unpatentable by virtue of interference with Stoppel, that still left all of the dependent claims the most that this court could do.

[00:30:50] Speaker 03:
is remand back to the board for consideration of the dependent claims, which was never presented to the board by Agilent in the first instance.

[00:30:59] Speaker 03:
And with respect to 2372,

[00:31:02] Speaker 03:
What the board did was say, you haven't met your prima facie, your burden of creating a prima facie case of obviousness with respect to the Dionics claims over the lost count.

[00:31:14] Speaker 03:
So we're not even going to get to Dionics' response.

[00:31:17] Speaker 03:
Again, the most this court could do, unless it wishes to become a court of first instance, is remand to the board for further proceedings.

[00:31:27] Speaker 03:
And that being the relief, a cross appeal would have been necessary.

[00:31:32] Speaker 03:
If the court has no further questions, we arrest.

[00:31:34] Speaker 03:
We thank you for your time.

[00:31:36] Speaker 02:
OK.

[00:31:36] Speaker 02:
We thank all the parties for their arguments this morning.

[00:31:39] Speaker 02:
That concludes our arguments of today.

[00:31:41] Speaker 02:
This court now stands in recess.