[00:00:00] Speaker 02: Our next case for argument is 21-1902, in-ray asset guard products. [00:00:06] Speaker 02: Miss Cameron, please proceed. [00:00:09] Speaker 01: Good morning, Your Honors. [00:00:10] Speaker 01: May it please the court? [00:00:12] Speaker 01: There are two issues before the court this morning. [00:00:15] Speaker 01: First, the cited references are not analogous art. [00:00:19] Speaker 01: And second, even if they were analogous, the board still erred in finding the claims obvious. [00:00:27] Speaker 01: The big picture context is important in this case. [00:00:30] Speaker 01: The claims of the 302 patent, which is the subject of the re-examination, relate to a corrosion-free, load-bearing tank base for an above-ground storage tank used to store produced water at an oil or gas well site to protect against spills and leaks of highly corrosive and hazardous material. [00:00:52] Speaker 01: In response to this disclosure, the board cited references related to hot tub pads, auto repair ramps, [00:01:00] Speaker 01: and modular shipping pallet. [00:01:03] Speaker 01: On the whole, these are very different art areas, and at a fundamental level, the board's rejection cannot stand. [00:01:09] Speaker 02: Council, why don't you focus for me, if you don't mind, on the Noble reference, because as I understand, that could be affirmed all by itself. [00:01:19] Speaker 02: Is that right? [00:01:21] Speaker 01: That's correct, Your Honor. [00:01:22] Speaker 01: The examiner and then the board did have an obviousness rejection based on Noble alone. [00:01:27] Speaker 01: However, noble is not analogous art. [00:01:31] Speaker 01: And even if it was, it still does not obviate all of the claim limitations. [00:01:36] Speaker 01: And I can take those on in two parts. [00:01:38] Speaker 01: So first, whether noble is analogous art. [00:01:41] Speaker 01: It's not. [00:01:42] Speaker 01: This court has articulated time and time again that to determine whether a reference like noble is analogous, we first look to see if it's in the same field of endeavor. [00:01:51] Speaker 01: And the second path is to see if it's reasonably pertinent [00:01:56] Speaker 01: to the particular problem of central importance in the disclosure that it's being used against. [00:02:02] Speaker 01: It's not analogous under either of those tests in this case. [00:02:06] Speaker 01: That's because noble is not the same structure, not the same function, and it's not related to the same particular problem of central importance disclosed in the 302 patent. [00:02:20] Speaker 01: What I mean by that is the particular problem of central importance that's addressed in the 302 patent is the corrosive nature of above ground storage tanks. [00:02:31] Speaker 01: As the 302 patent explains, these above ground storage tanks [00:02:35] Speaker 01: cold, produced water at an oil or gas tank. [00:02:38] Speaker 02: Council, doesn't the 302 patent actually disclose two different needs that it's identified in the prior art, which it is satisfying by its invention? [00:02:49] Speaker 02: The first one is certainly what you're describing, the safer environmental and green waste, but doesn't it also identify a second one, which is a more conveniently portable installation process? [00:03:01] Speaker 01: It does. [00:03:01] Speaker 01: It does describe both of those benefits. [00:03:04] Speaker 02: So if that's one of the benefits for the 302 patent, why isn't Noble reasonably pertinent to that problem? [00:03:12] Speaker 02: The second one. [00:03:14] Speaker 01: Because even though that is a benefit that's described in the 302 patent, the 302 patent, from the first sentence of the abstract to the language of the claims, makes clear that the problem of central importance is this corrosivity that is [00:03:31] Speaker 01: prevalent in above ground storage tanks because they're holding this produced water. [00:03:35] Speaker 01: that contains minerals and some oil and gas, that if that water leaked into the environment would pose hazardous problems. [00:03:43] Speaker 02: Do you have any case law to support the idea that if a patent says it's addressing two problems in the prior art, that we can't, for analogous arts purposes, look to art that could be relevant to each of them individually, but rather we have to identify a single central problem and only look to art relevant to that? [00:04:03] Speaker 02: Do you have any case law that would suggest that? [00:04:05] Speaker 02: Because my instinct tells me, for analogous arts purposes, if there's two discrete and different things that this patent is addressing, we ought to be able to look at two discrete and different bodies of analogous art. [00:04:19] Speaker 01: Your Honor, the cases say that there may be multiple problems addressed in a patent, a patent application or a patent that's being subject of the re-examination. [00:04:28] Speaker 01: But for example, in Psy Week, [00:04:31] Speaker 01: This court may have said that not only do we look at what all problems and benefits are described when we determine whether the art is analogous, we look to see whether the reference cited is reasonably pertinent to the particular problem of central importance. [00:04:50] Speaker 01: And in this case, what the 302 PAC makes clear is that that central important problem that's being addressed is the corrosivity of this tank base. [00:05:01] Speaker 01: What it describes is that purchasers of hot tubs are wanting instant ratification. [00:05:07] Speaker 01: They want to take their hot tub home and be able to install it that same day. [00:05:11] Speaker 01: They don't want to wait the six to seven day period to have a concrete slab board to have a plumber from the other line. [00:05:17] Speaker 02: Two questions, counsel. [00:05:19] Speaker 02: Isn't it correct that SIWE, which you're referring to, is a non-prec decision and therefore does not set out binding law on the court? [00:05:27] Speaker 01: You're correct, Your Honor. [00:05:28] Speaker 01: Sideway is not a published or presidential opinion. [00:05:32] Speaker 01: It was one example where this court has talked about looking for not just any- Go ahead, please continue. [00:05:40] Speaker 01: Not just any problem, but a problem of particular, the problem of central importance. [00:05:46] Speaker 01: I believe this court said the same thing [00:05:48] Speaker 01: In cases like Arexel and Airbus where we were also looking at analogous art and determined that we don't just look at whether there's any problem that overlaps, but whether the reference is designed to solve the same problem. [00:06:01] Speaker 02: I don't even see this central importance concept in PsyWii that you're claiming is there. [00:06:08] Speaker 02: In fact, what PsyWii does explain [00:06:10] Speaker 02: is that a reference need only be reasonable pertinent to one or more of the particular problems to which the invention relates. [00:06:18] Speaker 02: So I don't understand, Cy, we need to be supporting this central importance concept that you're advocating, as opposed to looking as I understand the law to be for analogous arts, as the analogous art only has to be reasonably pertinent to one or more of the problems identified in the patent. [00:06:38] Speaker 01: So I I don't know if if I'm right about the law isn't noble reasonably pertinent pertinent to the problem of conveniently portable installation Noble is related to in portable and easily installable portable pads for hot tubs but those pads for hot tubs are very different and we still have to look at a [00:07:03] Speaker 01: whether the function, what the context is, and whether it is related to the same particular problems. [00:07:10] Speaker 01: And in the instance of the hot tub in Noble, the whole point of Noble is that purchasers want to be able to install it instantaneously. [00:07:20] Speaker 01: There's nothing in Noble that says that easily installable hot tub pad would help with problems of corrosivity. [00:07:28] Speaker 01: from the hot tub to the ground. [00:07:32] Speaker 00: Can I just ask, I guess this is shifting grounds to I think what you described as your second point that it's not obvious over Noble in particular and I think the other two references can largely be disregarded even if [00:07:49] Speaker 00: noble is part of the relevant prior art to or analogous prior art to consider. [00:07:57] Speaker 00: The thing that I guess I was focusing on is this which I think picks up on what you were saying. [00:08:02] Speaker 00: I do not see in noble, tell me if you disagree or can elaborate on this, anything where noble says the seam that we have in our [00:08:19] Speaker 00: you know, two-part pad, either always functions as or was designed to function as or would have the property of allowing moisture from the tank that sits on top to flow down away from the base of the tank to minimize corrosion. [00:08:41] Speaker 00: The paragraph, I forget what paragraph it is, there's just one little section that talks about moisture, seems to me to talk about moisture from the ground going up [00:08:58] Speaker 00: And that doesn't say anything about the seam. [00:09:02] Speaker 00: It says, rather, that the coating around the pad will prevent that from happening. [00:09:10] Speaker 00: And I'm not sure quite what to do with those perceptions of the limitation of noble. [00:09:20] Speaker 01: Well, Your Honor, I think you're exactly right. [00:09:22] Speaker 01: And your analysis is consistent with our positions before this court today. [00:09:26] Speaker 01: And the reason for that is, [00:09:28] Speaker 01: You're exactly right. [00:09:29] Speaker 01: What Noble describes is that there are, there may be, I guess, these alleys between pieces of the spa pad support in reference. [00:09:42] Speaker 01: However, those pieces are taped together and that tape would prevent this very moisture seepage away from the bottom of the tank or the hot tub in that case so that it avoids this corrosion problem. [00:09:55] Speaker 01: And you're exactly right. [00:09:56] Speaker 01: The only reference to moisture seepage anywhere in Noble is this idea that there may be moisture that comes up from the ground to the pot tub pad that could result in molding and give some noxious odors because of it. [00:10:11] Speaker 01: But what we have in the claims of the 302 patent that's before this court is very specific. [00:10:17] Speaker 01: It says, a first seen form between the first and second encapsulated substrates [00:10:23] Speaker 01: to allow for moisture to pass between the first and second encapsulated substrates so that moisture is allowed to seep away from the bottom of the tank. [00:10:33] Speaker 01: So we address that very directionality that even if we give Noble every benefit of the doubt and look at that, what would be kind of a scene maybe between the two pieces that's covered intentionally with tape there, there is no teaching [00:10:49] Speaker 01: or any suggestion that would lead a person of ordinary skill in the art that would motivate them to modify or combine noble in any way to address this moisture seepage for the very purpose of reducing the potential for corrosion at the bottom of these aboveground stores. [00:11:08] Speaker 00: Why wouldn't having a seam [00:11:11] Speaker 00: I'm not quite sure what scene means, but why wouldn't having a scene, whether having chosen it for this purpose or any other purpose, in fact, just allow that cleaned property to be present? [00:11:31] Speaker 00: That is, water or more liquid from above, once you have a scene, will find its way down and out. [00:11:41] Speaker 01: The answer to that question in two parts, Your Honor. [00:11:43] Speaker 01: First is that what Noble says is that if there was that scene present, if we give Noble that benefit of the doubt, that that scene has been covered with tape. [00:11:54] Speaker 01: But also to Your Honor's point and question is, we don't look at references to see what they could allow under any circumstance. [00:12:03] Speaker 01: The test this court has articulated time and time again is not what could happen, what would be allowed to happen, [00:12:11] Speaker 01: It's what a person of ordinary skill in the art would be motivated to do. [00:12:17] Speaker 01: And there's nothing in Noble that suggests that a person of ordinary skill in the art would be motivated to use seams if they were present in the spa pad of Noble to allow for moisture to seep away from the bottom central portion of the tank [00:12:34] Speaker 01: so that we don't have this pooling that contributes further to the corrosive nature of above-ground storage tanks and the bases they're under. [00:12:42] Speaker 02: Turning back... Council, you're into your rebuttal time. [00:12:48] Speaker 02: Do you want to continue? [00:12:50] Speaker 01: No, if the court has no further questions, I'll give my time for rebuttal. [00:12:54] Speaker 01: Thank you. [00:13:00] Speaker 02: Council, how do I say your name? [00:13:03] Speaker 03: Okay, please proceed. [00:13:10] Speaker 03: I just want to address the last issue that Judge Toronto was talking to my opponent about, and it is effectively the directionality of the moisture flow in the seam in noble. [00:13:29] Speaker 03: It is true, if you look at [00:13:34] Speaker 03: It doesn't specifically address explicitly the direction of the flow. [00:13:51] Speaker 03: The issue at the board. [00:13:53] Speaker 00: Sorry, and just to join with that, tell me if this is wrong. [00:13:57] Speaker 00: It does address, actually, the direction of the flow, but it addresses it in the wrong direction, namely, I. And it also doesn't say that this has anything to do with the scene. [00:14:08] Speaker 00: Is that right? [00:14:09] Speaker 00: This is just about the coding. [00:14:12] Speaker 00: Am I wrong? [00:14:13] Speaker 03: It is about the coding. [00:14:14] Speaker 03: It doesn't talk about the scene the way the patent does, but it does talk about [00:14:20] Speaker 03: why you want to prevent moisture in the seams. [00:14:26] Speaker 00: And I would say... I'm sorry, I want to be really careful. [00:14:29] Speaker 00: Does it say anything about preventing moisture? [00:14:35] Speaker 00: You said preventing moisture in the seam. [00:14:38] Speaker 00: Just tell me, I thought that this made only one point. [00:14:41] Speaker 00: When you have foam and you don't want it to get moldy or rotten or start crumbling or smelly, put a nice water prevention coat around it so that when it's sitting on the ground, the moisture from the ground won't do those bad things to the foam. [00:14:56] Speaker 00: Does it say more than that? [00:14:59] Speaker 03: That's a fair reading, but it also talks about moisture in general and the fact that the influx of too much moisture is not good, but that some moisture is to be tolerated. [00:15:31] Speaker 03: on top of the seam prevents moisture from going into that seam. [00:15:39] Speaker 03: And I think the relevant fact findings by the examiner and the board here were that there was nothing in noble preventing the tape from being removed after installation because [00:15:52] Speaker 03: Noble says it is applied during installation. [00:15:56] Speaker 00: On that point, how do you remove the tape once the hot tub is sitting on it? [00:16:02] Speaker 03: Well, if you look at figure three of Noble, there are two hinges. [00:16:06] Speaker 03: There's the hinge where the seam is, and there's also a big hinge where the tub of water lifts up and comes back down. [00:16:17] Speaker 03: So when you're finished installing and the [00:16:22] Speaker 03: seen between the two hinges is closed, there's a possibility to put tape there before the big tub comes back down. [00:16:31] Speaker 00: Oh, so you're using the idea of when installation hasn't been completed [00:16:41] Speaker 00: Or is in your view completed when the tub is still tilted? [00:16:46] Speaker 00: But the two pieces of the base are now flat. [00:16:49] Speaker 00: I thought that the talk was about Installation is completed when the tub is now sitting on the thing at which point it's hard to see how you remove the tape In the part where Noble is talking about installation [00:17:12] Speaker 03: really speaking to is the pipes that have to go under the half of the section while it's being hinged. [00:17:21] Speaker 03: And the rest of the spec supports that because Noble says in various places that the hinges are temporarily adhered and supports the board and the examiner's fact finding that Noble has brought enough to say, you remove the tape, [00:17:41] Speaker 03: Or you can remove the tape. [00:17:43] Speaker 03: And what I think is important here is that tape discussion speaks to the directionality of the moisture, even though the discussion didn't explicitly use the term directionality. [00:17:57] Speaker 03: Because the tape only matters if the water is flowing from the top of the seam downward. [00:18:09] Speaker 03: And it sounds like the court understands the issues. [00:18:12] Speaker 03: Are there any other questions from the court? [00:18:16] Speaker 02: OK, thank you, counsel. [00:18:17] Speaker 02: Ms. [00:18:17] Speaker 02: Cameron, you have some rebuttal time. [00:18:20] Speaker 02: Ms. [00:18:20] Speaker 02: Cameron? [00:18:22] Speaker 01: Yes, Your Honor. [00:18:23] Speaker 01: Thank you, Judge Moore. [00:18:25] Speaker 01: I think what's important is even now, opposing counsel says the tape can be removed. [00:18:31] Speaker 01: But whether the tape can be removed is not the question. [00:18:35] Speaker 01: The question is whether a person of ordinary skill in the art [00:18:39] Speaker 01: would be motivated to modify Noble in some way to expressly have these seams recited in the claim limitations of the 302 patent to allow moisture to seep away from the bottom of the tank to reduce the likelihood of any corrosion that would occur. [00:18:59] Speaker 01: And there is nothing in Noble that would suggest that. [00:19:02] Speaker 01: If the court has no further questions, it's for these reasons that we would ask this court [00:19:07] Speaker 01: to reverse the finding of the board and find that claims one through 27 are not obvious in view of these wholly non-analogous preferences. [00:19:16] Speaker 02: Thank you. [00:19:17] Speaker 02: Okay. [00:19:17] Speaker 02: I thank both counsel for their arguments today. [00:19:20] Speaker 02: This case is taken under submission.