[00:00:00] Speaker 02:
Our last case for argument is 21-2101, NRA Intelligent Packaging.

[00:00:06] Speaker 02:
Mr. Cox, please proceed.

[00:00:07] Speaker 03:
At place of court, my name is Don Cox, counsel.

[00:00:13] Speaker 03:
I represent Intelligent Packaging, and this is a very straightforward case in our view.

[00:00:23] Speaker 03:
Intelligent was the first entity to develop a process for packaging.

[00:00:29] Speaker 03:
a non-pasturized wine in a two-piece aluminum can, comprising the process of independent claims 17, 22, 25, and 30.

[00:00:42] Speaker 03:
In fact, Intelligent has patents in virtually every major country in the world.

[00:00:50] Speaker 03:
It has patents in over 13 countries.

[00:00:55] Speaker 03:
at least 18 licenses.

[00:01:01] Speaker 03:
This is a well-received, well-recognized process that is used all over the world by our clients.

[00:01:16] Speaker 03:
The primary reference relied on, out of the patent office,

[00:01:22] Speaker 03:
is, I don't know if these names are all right, representations of Italian, it's horrible, but that's Ferranini.

[00:01:31] Speaker 03:
And that's the base reference.

[00:01:35] Speaker 03:
And then that is combined with Rubio Gaon said to result in the obviousness of a

[00:01:52] Speaker 03:
an aluminum can product which does not have pasteurization.

[00:02:03] Speaker 03:
And those two references cannot be added up to arrive at that process.

[00:02:14] Speaker 03:
If you look at figure seven of the primary reference, Varanini,

[00:02:20] Speaker 03:
it specifically.

[00:02:22] Speaker 05:
Council, I read your briefs, and I understand what you're saying.

[00:02:27] Speaker 05:
But what about the fact that, and I'm going to say this incorrectly as you, what about the fact is Ribereau, Guion, volume two, talks about using techniques other than pasteurization in order to stabilize the wine.

[00:02:44] Speaker 05:
Isn't that a direct teaching of not using pasteurization?

[00:02:50] Speaker 05:
did the PTO err in relying on that disclosure?

[00:02:56] Speaker 03:
Well, the statement says the wine has not been stated.

[00:03:07] Speaker 03:
I'm sorry.

[00:03:07] Speaker 03:
It states, other stabilization techniques, especially sulfuric and sterile filtration, none of those are non-pasteurization.

[00:03:18] Speaker 03:
And then it goes on to say,

[00:03:20] Speaker 03:
prior to bottling, bottling are easier to use.

[00:03:26] Speaker 03:
Now why would you use bottling technology, which bottling doesn't have the same problems that aluminum does.

[00:03:36] Speaker 03:
So this isn't even in the same area of the art.

[00:03:42] Speaker 05:
I want to interrupt you for a minute.

[00:03:44] Speaker 05:
You said the phrase, especially sulfuric and sterile filtration prior to bottling, you say that's pasteurization.

[00:03:52] Speaker 05:
What evidence do you have of that?

[00:03:55] Speaker 03:
No, I don't say that's pasteurization.

[00:03:57] Speaker 03:
That's something entirely different.

[00:03:59] Speaker 03:
Sulfuric and sterile filtration, what I say

[00:04:04] Speaker 03:
is that if you go through Rubio Gaon volume two, there are numerous references to pasteurization.

[00:04:17] Speaker 03:
So this one little sentence out of all the, there are eight or nine different references to pasteurization.

[00:04:27] Speaker 03:
This one sentence which doesn't say don't

[00:04:31] Speaker 03:
use pasteurization.

[00:04:34] Speaker 03:
It talks about other products.

[00:04:37] Speaker 03:
And it talks about modeling.

[00:04:38] Speaker 03:
So I don't see how you can take a reference that says pasteurize and combine it with something which is silent.

[00:04:49] Speaker 03:
It doesn't say don't pasteurize.

[00:04:52] Speaker 03:
So I don't see how, if you look at the John Deere and the other cases,

[00:05:02] Speaker 03:
how this adds up to do not use pasteurization.

[00:05:10] Speaker 03:
That's my interpretation of Rubio Gaon.

[00:05:18] Speaker 03:
And when you read the whole of the reference and all the references to pasteurization in the reference,

[00:05:30] Speaker 03:
I don't see how you get to this saying, don't use pasteurization.

[00:05:41] Speaker 03:
It doesn't say one way or the other in this one sentence.

[00:05:46] Speaker 03:
So I don't think that gets us there.

[00:05:49] Speaker 03:
And then when we get to the secondary,

[00:05:53] Speaker 03:
considerations.

[00:05:55] Speaker 03:
I mean, they're monumental.

[00:05:59] Speaker 03:
The number of patent licenses that we have,

[00:06:05] Speaker 05:
I want to ask you about that, the secondary considerations and specifically the licenses.

[00:06:13] Speaker 05:
When I looked at that evidence, one concern I had was about nexus.

[00:06:18] Speaker 05:
And specifically, the claim that you identified as being the basis for the license, and I suppose the claim that is supposed to be similar to the claim at issue here, doesn't have the pasteurization

[00:06:31] Speaker 05:
limitation that you're focusing on here as being the reason for distinguishing the prior, or the no pasteurization limitation, I should say.

[00:06:39] Speaker 05:
So how is there a nexus?

[00:06:43] Speaker 03:
Well, I don't think there has to be perfect correspondence between the two.

[00:06:53] Speaker 03:
There's the Fox case about that.

[00:06:57] Speaker 03:
But one of the differences, or one of the

[00:07:00] Speaker 03:
is that the European patents and the foreign patents are all broader than the patent we're seeking here in the US.

[00:07:14] Speaker 03:
I understand.

[00:07:15] Speaker 05:
But there are some cases that we have that talk about secondary considerations can't be directed to things that are just in the prior art.

[00:07:24] Speaker 05:
So I'm not sure that the claim is broader

[00:07:29] Speaker 05:
is really helpful to you.

[00:07:31] Speaker 05:
And I do think that this no pasteurization limitation matters in terms of showing nexus.

[00:07:38] Speaker 05:
So do you have anything else?

[00:07:41] Speaker 03:
Well, there are a number of other secondary considerations in addition to sales of our product, commercial success, a claim and recognition by others.

[00:07:57] Speaker 03:
long felt but unresolved need.

[00:08:01] Speaker 03:
Why would people take all these licenses?

[00:08:05] Speaker 03:
Why would they go to the trouble of giving us awards if this weren't a successful

[00:08:22] Speaker 03:
invention.

[00:08:23] Speaker 03:
So the idea that we are seeking a patent on a narrower invention doesn't mean that we can't look to the impact that our European sales had on the market.

[00:08:46] Speaker 03:
I mean, I do not believe, as I said before, you don't have to have an absolute overlap in terms of what the product is that provides for secondary considerations.

[00:09:12] Speaker 03:
One of the arguments raised here was there was no

[00:09:16] Speaker 03:
proof of significant license fees being paid.

[00:09:20] Speaker 03:
Well, we went out and got 13 European patents, and if anybody has dealt with foreign patent prosecution, you know that's tens and tens of thousands of dollars.

[00:09:34] Speaker 03:
Why would we spend all that money to get European patents and then only get a farthing in return?

[00:09:45] Speaker 03:
as the Patent Office argued.

[00:09:54] Speaker 03:
The final argument they made was that the licenses didn't deal with the invented concept, but the licenses, if you read through what's in the record, they show that these are licenses on EP 142,

[00:10:15] Speaker 03:
9968, which is the parent, if you will, of the US application.

[00:10:25] Speaker 03:
So these are all of a part.

[00:10:30] Speaker 03:
And we believe that, first off, the references were inappropriately combined, and second,

[00:10:44] Speaker 02:
There are numerous examples of... Council, what do you allege are sort of the non-obvious limitations of the 823 patent claims?

[00:10:54] Speaker 02:
What is the heart of the invention here that's claimed, in your view?

[00:11:00] Speaker 03:
Well, you have to look at the claim as a whole, not just one part, but certainly

[00:11:13] Speaker 03:
pasteurization.

[00:11:15] Speaker 03:
That's, that's, and nobody else has done it before.

[00:11:21] Speaker 03:
Look through the phrase non-pasteurization in any of the references in the record, and it's not bound.

[00:11:31] Speaker 02:
And did you link the licenses or your commercial success to that non-pasteurization?

[00:11:40] Speaker 03:
I linked

[00:11:41] Speaker 03:
the overall invention which includes non-pasturization because the foreign claims would read on something that's non-pasturized.

[00:12:00] Speaker 03:
So that's why it's important that the foreign claims are broad because they read on the non-pasturization

[00:12:11] Speaker 03:
which is the factor we're primarily arguing about today.

[00:12:17] Speaker 02:
But if the key component of this invention that helps withstand an obviousness challenge is the non-pasteurization, then the non-pasteurization has to be a significant factor in the secondary considerations.

[00:12:36] Speaker 02:
You have to be able to show that the licenses or the commercial success

[00:12:40] Speaker 02:
was due in part, at least, to that non-pasteurization, because that's what really distinguishes your claims from the prior art.

[00:12:49] Speaker 02:
So the problem is, I just see sort of broad assertions that we have licenses.

[00:12:55] Speaker 02:
And I don't see any linkage, which is what we call the nexus, between those licenses and these claims.

[00:13:03] Speaker 02:
And in particular, what allowed you to get these claims, arguably?

[00:13:09] Speaker 03:
Well, I mean, first,

[00:13:10] Speaker 03:
Let me first start with the, you know, you don't, in my view of patent law, pick out one part of a claim and have your invention or the secondary considerations

[00:13:29] Speaker 03:
rise and fall on that single point.

[00:13:32] Speaker 02:
Yes, but if you're selling something, if you have commercial success or a license and the thing that you're selling is exactly what it was available in the prior art, then you can't argue that that is in fact what gives you

[00:13:46] Speaker 02:
the non-obviousness arguments for your claims, you have to be able to demonstrate that the thing that drove the sales, the thing that people licensed, the thing that mattered, was the thing that does, in fact, distinguish your invention from the prior art, not something fully contained within the prior art.

[00:14:07] Speaker 03:
Well, it's not fully contained within the prior art.

[00:14:09] Speaker 03:
There's no place in the prior art where non-pasturization

[00:14:16] Speaker 03:
is disclosed.

[00:14:17] Speaker 03:
And I guess we have to just disagree on that.

[00:14:22] Speaker 03:
But neither of the combined references show that.

[00:14:25] Speaker 03:
So the idea that we are using something in the prior art is not supported by the record.

[00:14:34] Speaker 02:
OK, Council, why don't we hear from Council for the government, and then we'll restore some rebuttal time for you.

[00:14:41] Speaker 02:
Thank you.

[00:14:42] Speaker 02:
Thank you.

[00:14:44] Speaker 01:
Good morning, Your Honor.

[00:14:44] Speaker 01:
May it please the court.

[00:14:46] Speaker 01:
I'd like to address two things that my friend has said.

[00:14:50] Speaker 01:
First is, he has said that the program does not disclose the use of techniques other than pasteurization.

[00:15:01] Speaker 01:
But in fact, we grew a diome too, which is a treatise on etiology.

[00:15:09] Speaker 01:
It says there are other techniques and that these other techniques are easier to use than pasteurization.

[00:15:15] Speaker 05:
And this is specifically, Councilor, you're relying on page 8, 3040 of volume 2, is that right?

[00:15:22] Speaker 05:
I mean, I'm sorry, it's appendix page 34, 3040, volume 2 of the treatise.

[00:15:29] Speaker 05:
Is that right?

[00:15:31] Speaker 01:
I'm looking at appendix 3049, and it's just before the, in the left-hand column before the paragraph, before the heading to 12.2.4.

[00:15:43] Speaker 01:
It says, of course, wine may be pasteurized in the bottle of just before bottling, but other stabilization techniques, especially sulfuric and sterile filtration prior to bottling, are easier to use.

[00:15:55] Speaker 01:
So there are, Ribero Gayong, which is a textbook on etiology, is teaching us that there are other techniques known in the art to stabilize wine.

[00:16:12] Speaker 01:
And that these other techniques, though admittedly less popular than pasteurization, are, in fact, easier to use.

[00:16:20] Speaker 01:
And something that's easier to use, that is certainly a statement in the prior art that something's easier to use, should fulfill this court's requirements for a motivation to combine.

[00:16:37] Speaker 01:
And the second thing that I would like to respond to

[00:16:41] Speaker 01:
is part of the invention idea that Judge Moore and Judge Stoll were discussing with my friend.

[00:16:52] Speaker 01:
What happened here below, and this is the reason why the lack of pasteurization is so important, is claims very similar, nearly identical, to those in intelligence European patents and these other foreign patents

[00:17:12] Speaker 01:
that had no requirement as to pasteurization were rejected by the examiner over Ferrarini and Kata and Kojima.

[00:17:25] Speaker 01:
And those claims went up to the board, and the rejection was affirmed by the board.

[00:17:33] Speaker 01:
And rather than seeking those claims, you know,

[00:17:39] Speaker 01:
to patent those claims to challenge that rejection before this court.

[00:17:43] Speaker 01:
What Intelligent did was it reopened prosecution, and it amended claims 17, 22, and 30 to include the unpasteurized limitation.

[00:17:55] Speaker 01:
And it amended claim 25 to include the headspace gas mix.

[00:18:02] Speaker 01:
Now, what that says to, I think, any observer is that

[00:18:09] Speaker 01:
intelligent belief that its patentability lies in the fact that its process involves the canning of unpasteurized wine, and that in fact it also involves, at least with respect to Climb 25, a particular headspace gas mixture.

[00:18:30] Speaker 04:
Ms.

[00:18:30] Speaker 04:
Kelly, I agree that one can view this claim change

[00:18:37] Speaker 04:
As some sort of disclaimer, can you hear me?

[00:18:42] Speaker 04:
Yes, I can.

[00:18:43] Speaker 04:
Okay.

[00:18:44] Speaker 04:
As some sort of disclaimer, but we're talking about the patentability of what's left in the United States, not what might arise in some foreign country, depending on what we decide here.

[00:19:01] Speaker 04:
So why would that affect

[00:19:04] Speaker 04:
The obvious is determination in a straightforward manner, looking at the prior art.

[00:19:13] Speaker 01:
Well, Intelligent appeared to accept the rejection of claims without the no-pasteurization limitation when it did not appeal the board's prior rejection of its claims.

[00:19:33] Speaker 04:
That's what they're objecting to on this appeal.

[00:19:40] Speaker 01:
No, they didn't appeal that court decision.

[00:19:44] Speaker 01:
Instead, they came back, they filed a request for continued examination, added in the amendment about no pasteurization, and then moved forward.

[00:19:55] Speaker 01:
And so the heart of the invention, as Judge Moore was characterizing it,

[00:20:02] Speaker 01:
this lack of pasteurization, which is taught by River O'Biall, too, and which has not been demonstrated by intelligent to be a feature of any of its secondary considerations evidence.

[00:20:17] Speaker 01:
None of their license agreements are directed to patent claims where the wine is unpasteurized or where the wine has a specific headspace guest mixture.

[00:20:30] Speaker 04:
The burden is on the office, not the applicant.

[00:20:34] Speaker 04:
I agree that this is how the argument has evolved.

[00:20:40] Speaker 04:
But the burden is entitled to a patent unless and now that the claims have been significantly narrowed, we need to know why.

[00:20:51] Speaker 04:
And although there may be commercial considerations that are included,

[00:20:57] Speaker 01:
Well, with all due respect, Your Honor, under this Court's decision at In rei Wong in cases like In rei Meemark, the burden to establish a nexus is initially on the applicant, the person asserting the secondary considerations evidence.

[00:21:17] Speaker ?:
Unlike what has been written in Appella's gray brief, there's no presumption of nexus.

[00:21:26] Speaker ?:
Mr. Pox cites for a support for that argument are all cases from district court litigation.

[00:21:34] Speaker 01:
We're talking about a patent application here, not something that carries a presumption of validity.

[00:21:40] Speaker 01:
And under cases like Law and Remark, the burden of showing a nexus is initially on Mr. Pox, the burden of production, the burden of demonstrating a nexus.

[00:21:56] Speaker 04:
Let's say that the nexus doesn't apply and the secondary considerations are diminished in effect.

[00:22:08] Speaker 04:
How does this affect the consideration of the obviousness of combining these references?

[00:22:19] Speaker 01:
Well, Your Honor, this court has case law stating that when there is a strong

[00:22:25] Speaker 01:
If we're setting aside the whole lack of nexus issue, the office has stated that when there is a strong crime of, I'm sorry, this court has stated that when there is a strong crime of age case of obviousness, as is here, then it becomes very difficult.

[00:22:44] Speaker 01:
A larger amount of second year's considerations evidence is necessary to then push the burden back on the office.

[00:22:55] Speaker 01:
Certainly that wasn't done here.

[00:22:57] Speaker 01:
If you look to, for example, some of the evidence, you have a declaration by Mr. Stobbs, who is one of the owners of Intelligent, or the Bar Oaks.

[00:23:09] Speaker 01:
Mr. Stobbs and Mr. Barracks, their names were combined, I'm assuming, to make the Bar Oaks label.

[00:23:16] Speaker 01:
He, as an interested party, he states that he tasted his wife's, you know, canned according to the claim process,

[00:23:24] Speaker 01:
compared to wines produced in cans according to prior art methods.

[00:23:33] Speaker 01:
And he tasted, I think, three of them over a period of time.

[00:23:39] Speaker 01:
And his personal taste was he didn't like the other wines.

[00:23:43] Speaker 01:
They tasted like they were being, to use the term, skunked.

[00:23:50] Speaker 01:
That sort of evidence is not the sort of evidence that the court typically accepts as sufficient to shift the burden back to the patent office.

[00:24:03] Speaker 01:
We have other testimonies.

[00:24:06] Speaker 04:
So where is your prime official suggestion of pasteurizing the line

[00:24:13] Speaker 04:
in the aluminum cans, this evidence you've just told us about goes in the opposite direction, that the pasteurization and heating changes the wine.

[00:24:29] Speaker 01:
No, Your Honor.

[00:24:30] Speaker 01:
The point of the pasteurization is simply to stabilize the wine.

[00:24:34] Speaker 01:
So the yeast that produce the wine don't continue growing and explode the cans, et cetera, et cetera.

[00:24:41] Speaker 01:
The prior art,

[00:24:43] Speaker 01:
teaches a low corrosion wine in being packaged with an epoxy resin coating that's taught by both Malin and Kana.

[00:24:54] Speaker 01:
And it's that epoxy resin coating that prevents the acidic wine from breaking down the aluminum can and skunking the wine.

[00:25:06] Speaker 01:
And it's that coating, if anything, that is important to preventing

[00:25:13] Speaker 01:
that aluminum corrosion.

[00:25:16] Speaker 01:
The thing is that Kana teaches, specifically teaches a Kodi that prevents other acidic liquids like beer and soft drinks from eroding the aluminum can.

[00:25:36] Speaker 01:
And even if you look at the account specification, they state that beer and soft drinks have a pH

[00:25:43] Speaker 01:
of between three and four, and that wine has a pH of three.

[00:25:48] Speaker 01:
So that still falls within the same range.

[00:25:51] Speaker 01:
And then if you look at Malin, Malin teaches that his epoxy resin is suitable for preventing aluminum corrosion when you have talking about canned things such as beer and soft drinks and tomato juice.

[00:26:09] Speaker 01:
So it's reasonable to assume that these prior art epoxy resins that prevent the skunking of the wine, of the aluminum corrosion, with things having similar pH, will also prevent the corrosion of something with the same pH, pasteurized or unpasteurized wine.

[00:26:39] Speaker 01:
There's nothing in the record that says that pasteurization or filtering alters the pH of wine in any way.

[00:26:52] Speaker 02:
Council, how does, for question of secondary consideration, how does, for example, what was being sold in Japan, Korea, China, Canada, how does what was being sold differ from what's being claimed in this case?

[00:27:10] Speaker 01:
We don't know.

[00:27:11] Speaker 01:
We simply don't know.

[00:27:14] Speaker 01:
These wines, for example, if you look at the awards and the praise evidence, all the classifieds the wine has is as bubbly or not bubbly.

[00:27:29] Speaker 01:
That doesn't tell us about the nature of the wine, whether it's the low corrosion wine as required by the claims, whether it's been pasteurized or not pasteurized,

[00:27:38] Speaker 01:
It doesn't tell us anything about the head space gas mixture.

[00:27:42] Speaker 01:
The same is true for the licensing evidence.

[00:27:47] Speaker 02:
Was there nothing introduced that showed the particular wines that got awards corresponded to a particular one, and it had these characteristics?

[00:27:58] Speaker 01:
No.

[00:27:59] Speaker 01:
They never presented any evidence like that.

[00:28:01] Speaker 01:
And in fact, if you look to, I believe it's the May decoration.

[00:28:08] Speaker 01:
actually says that a big part of the reason that these wines in these cans succeeded and performed so well was, she says, one, because of the wine itself, the quality of the wine itself, which is not something that's plain.

[00:28:34] Speaker 01:
And she says, two, the epoxy resin

[00:28:38] Speaker 01:
which coats the inside of the can and prevents the skunking.

[00:28:43] Speaker 01:
But again, that's not a feature of claim 22, 25, and claim 30.

[00:28:54] Speaker 01:
So even their own expert witness points to the primary reasons for the success being something outside of the claims.

[00:29:07] Speaker 01:
And this court's case law is very clear that for secondary considerations evidence for an applicant to succeed on that, they must at least first show that the thing being praised and copied and licensed and showing unexpected results must be the thing that is actually claimed here.

[00:29:33] Speaker 01:
Not something found in the prior art, as is the case here.

[00:29:37] Speaker 01:
Not something that you may disclose, but not put it right side of your claims, but what you actually claim here.

[00:29:46] Speaker 01:
And in this case, intelligence simply has not met that burden.

[00:29:52] Speaker 05:
The board, in its opinion on the licenses, talks about a lack of nexus.

[00:29:57] Speaker 05:
But it also says, in its opinion, something like, for all we know, the reason that they took the license was to avoid litigation.

[00:30:05] Speaker 05:
Does the PTO defend that second reason?

[00:30:13] Speaker 01:
We agree that that could have been worried better.

[00:30:16] Speaker 01:
What I think it was perhaps some

[00:30:23] Speaker 01:
Additional commentary on the lack of a monetary showing by intelligence and maybe some frustration with that because they talk about having this large market share, et cetera, but yet they provide no financial information to explain

[00:30:45] Speaker 05:
They didn't know the amount of the licenses or anything like that.

[00:30:48] Speaker 05:
There was no sales figures for commercial exploitation or anything.

[00:30:53] Speaker 05:
And in addition, there was a challenge to access, right?

[00:30:57] Speaker 01:
They have one exhibit.

[00:30:58] Speaker 01:
I'm sorry for interrupting, Your Honor.

[00:31:01] Speaker 01:
I see that my time is low.

[00:31:04] Speaker 01:
I'm over my time.

[00:31:06] Speaker 01:
And so I apologize.

[00:31:08] Speaker 01:
But they do have one piece of data

[00:31:13] Speaker 01:
showing sales figures and projected sales, but it doesn't contain any units.

[00:31:18] Speaker 01:
So you can't discern how many dollars of sales there are or anything like that.

[00:31:26] Speaker 01:
And you don't know what's being sold.

[00:31:29] Speaker 01:
All it says is FinSafe technology.

[00:31:31] Speaker 01:
And there's not anywhere in the record any explanation of what FinSafe technology is.

[00:31:38] Speaker 01:
dispensing technology related to pasteurized wines, does it relate to unpasteurized wines?

[00:31:44] Speaker 01:
A particular headspace gas mixture, we don't know.

[00:31:49] Speaker 02:
OK, thank you.

[00:31:51] Speaker 02:
Thank you, Ms.

[00:31:52] Speaker 02:
Kelly.

[00:31:53] Speaker 02:
Mr. Cox has some rebuttal time.

[00:31:55] Speaker 02:
How much time does he have left, Michael?

[00:32:01] Speaker 02:
None?

[00:32:02] Speaker 03:
Huh?

[00:32:03] Speaker 02:
I'll give him two minutes, please.

[00:32:06] Speaker 03:
Claim 30 doesn't require non-pasteurization.

[00:32:13] Speaker 05:
But it does require particular head space, right?

[00:32:16] Speaker 03:
Yes, but it does not require non-pasteurization.

[00:32:21] Speaker 03:
With respect to what product is, I believe, the Ben Safe, if you look at the license, the license defines the Ben Safe product as

[00:32:34] Speaker 03:
the European patent.

[00:32:41] Speaker 03:
Opposing counsel cited Milan and Cordova, but those aren't aluminum canned wines.

[00:32:54] Speaker 02:
Does the European patent have the same headspace limitation as this patent?

[00:33:07] Speaker 02:
So the problem is, if the license that is in record is key to the European patent, and if we have no idea whether the European patent includes the same limitation here, we don't know if what was being sold there falls clearly within these claims, right?

[00:33:24] Speaker 02:
That's my concern.

[00:33:25] Speaker 03:
Well, we have in the record it's a European patent.

[00:33:31] Speaker 03:
which we can look at, and it can be determined.

[00:33:47] Speaker 03:
There's a claim, claim nine, of the European patent, which talks about the head space.

[00:33:57] Speaker 03:
And there's another claim, claim seven,

[00:34:00] Speaker 03:
which says headspace has a certain amount of nitrogen.

[00:34:05] Speaker 02:
Right.

[00:34:06] Speaker 02:
But again, you had the obligation to show nexus in the first instance.

[00:34:11] Speaker 02:
And if it's not clear what the headspace is of the products you're selling, then we can't tell if it falls within the claims.

[00:34:22] Speaker 02:
And therefore, we don't know if that evidence is meaningfully linked to whether or not these claims are not obvious.

[00:34:30] Speaker 03:
But the license agreement, which they're paying for, refers directly to the patent.

[00:34:42] Speaker 03:
So they wouldn't have a license under any of the claims and subclaims of the European patent.

[00:34:51] Speaker 03:
I want to deal with one of your honors referred to a straightforward

[00:35:00] Speaker 03:
application of obviousness.

[00:35:05] Speaker 03:
And if you just take the page, and remember in Rubio Gaon volume two, they're relying on a single sentence, on a single page, and it's appendix 3040.

[00:35:28] Speaker 03:
And on that page,

[00:35:30] Speaker 03:
They, I will read, it said it refers to planting.

[00:35:36] Speaker 02:
Council, we know what it says.

[00:35:37] Speaker 02:
You don't have to read it.

[00:35:39] Speaker 03:
Oh, I was just going to make a point that there are at least half a dozen different references to pasteurization and the claim

[00:35:52] Speaker 03:
which isn't straightforward at all, that when you say that there are other stabilization techniques, that automatically reads non-pasturization.

[00:36:10] Speaker 03:
And I submit that's not a straightforward application of the obviousness criteria.

[00:36:19] Speaker 02:
Okay.

[00:36:20] Speaker 02:
I thank you, Mr. Cox.

[00:36:21] Speaker 02:
I thank both counsel.

[00:36:22] Speaker 02:
This case is taken under submission.