[00:00:00] Speaker 04:
The case for argument this morning is 21-2184, Novo Zines, North America versus Denisco.

[00:00:08] Speaker 04:
Mr. Cushin, whenever you're ready.

[00:00:21] Speaker 01:
Good morning, Your Honors.

[00:00:24] Speaker 01:
There were two errors the board made that compel reversal in this case.

[00:00:29] Speaker 01:
The first is that it found anticipation under Novizheim's construction, even though there was no evidence that the liquefied mash formed in the first step of the 179 two-step process.

[00:00:42] Speaker 01:
The board recognized this had to happen because the proteases are dead before the second step of this process.

[00:00:49] Speaker 01:
And it's an explicit claim requirement that the protease treat the liquefied mash.

[00:00:55] Speaker 01:
So the board handpicked a set of conditions it thought would thread this needle.

[00:01:00] Speaker 01:
It said, performing 179's first step at 65 degrees with certain grains would completely gelatinize the slurry, and that would render the starch in the slurry, quote, susceptible to liquefaction by the alpha amylase.

[00:01:12] Speaker 01:
That's in appendix 49.

[00:01:15] Speaker 01:
But being susceptible to liquefaction doesn't prove that the liquefied mash formed.

[00:01:20] Speaker 01:
The board tried to gloss over that evidentiary fact by saying,

[00:01:24] Speaker 01:
there was no question that the BATS alpha amylase, that's the only alpha amylase described in 179, was active at 65 degrees.

[00:01:34] Speaker 01:
There's two problems with that.

[00:01:35] Speaker 01:
That's not the right question.

[00:01:37] Speaker 01:
The question is, was it active enough to produce the liquefied mash?

[00:01:42] Speaker 01:
And the second question, second error is that it is wrong.

[00:01:45] Speaker 01:
It was definitely disputed at trial whether the BATS alpha amylase would produce the liquefied mash.

[00:01:51] Speaker 01:
That was also a dispute that Denisco lost.

[00:01:54] Speaker 01:
It was a factual dispute.

[00:01:57] Speaker 01:
Our expert explained that BATS is barely active at 65 and will not break down enough of the starch to produce the liquefied mash.

[00:02:07] Speaker 01:
Their expert, Dr. Clark, came up and tried to dispute that.

[00:02:12] Speaker 01:
And his testimony was basically, here are these different enzymes.

[00:02:17] Speaker 01:
They were not the BATS enzyme.

[00:02:20] Speaker 01:
That testimony that he offered was thoroughly discredited in cross-examination.

[00:02:24] Speaker 04:
And did the board then rely on that?

[00:02:26] Speaker 01:
No.

[00:02:27] Speaker 04:
OK, so where are we in the board opinion?

[00:02:30] Speaker 04:
What did the board say?

[00:02:32] Speaker 01:
So if you look at the board decision, that's at 49, appendix 49.

[00:02:38] Speaker 01:
All it says about whether there will be sufficient look-with-action is that the produce was susceptible to look-with-action.

[00:02:47] Speaker 01:
It doesn't make a finding that the enzyme, BATS enzyme, actually did hydrolyze enough of that starch to produce a liquefied mash.

[00:02:56] Speaker 01:
And that's why there's an error here.

[00:02:58] Speaker 01:
There's a gap.

[00:02:59] Speaker 01:
They found that the starch would be fully gelatinized, but gelatinization doesn't produce liquefied mash.

[00:03:08] Speaker 01:
You have to do the second step.

[00:03:09] Speaker 01:
which is break it down with the alpha amylase.

[00:03:12] Speaker 00:
So what are you looking for in this process?

[00:03:15] Speaker 00:
Is that a certain temperature or are you looking for the release of the free amino nitrogen?

[00:03:21] Speaker 01:
It's an interesting... there's two enzymes in play here.

[00:03:25] Speaker 01:
One is a protease and one is an alpha amylase.

[00:03:28] Speaker 01:
The protease works at a low temperature in the 179 process.

[00:03:32] Speaker 01:
That's up to 65 degrees or 70.

[00:03:35] Speaker 01:
The alpha amylase works at a high temperature, up at 90 to 95 degrees.

[00:03:40] Speaker 01:
So these two enzymes had these optimal activities at those different temperatures.

[00:03:45] Speaker 01:
The problem was that the first step, the alpha amylase, isn't active enough.

[00:03:50] Speaker 01:
It barely does anything to break down the starch.

[00:03:53] Speaker 01:
And that was the factual dispute.

[00:03:56] Speaker 01:
Again, their expert tried to counter that, counter our expert's testimony about that.

[00:04:01] Speaker 01:
We showed why that was wrong, and then it disappeared from the record.

[00:04:05] Speaker 01:
That evidence isn't used by Denisco either.

[00:04:07] Speaker 01:
Denisco actually

[00:04:09] Speaker 01:
distinguishes it in thread brief, they say they don't rely on it.

[00:04:12] Speaker 01:
That's at 55.

[00:04:14] Speaker 01:
So this creates, as I said, an evidentiary gap.

[00:04:18] Speaker 03:
Mr. Christian, one of the concerns I have is the board said even if it adopted your claim construction, the prior reference expressly says that it applies a protease to a liquefied mash.

[00:04:30] Speaker 03:
I believe that's even claimed.

[00:04:33] Speaker 03:
And I think your argument has to be something like, well, the way liquified mash is used in the prior art must be different than the way liquified mash is used in the patent itself.

[00:04:44] Speaker 03:
So it just seems, given a substantial evidence standard of review, your argument is a bit complicated.

[00:04:51] Speaker 03:
And I wanted to know what your response was to that.

[00:04:53] Speaker 01:
Sure.

[00:04:54] Speaker 01:
Well, the prior art, obviously, for anticipation, you have to look and see what the prior art teaches.

[00:04:59] Speaker 01:
And that goes beyond what words it uses.

[00:05:02] Speaker 03:
Now importantly, in the 179 reference... Under a substantial evidence standard, why isn't it enough for the board to look at a reference that expressly says we're going to apply the protease to a liquefied mash and understand it?

[00:05:16] Speaker 03:
Why isn't that enough combined with all the other evidence that was before the board to support its fact-finding?

[00:05:22] Speaker 03:
Why isn't that enough?

[00:05:24] Speaker 01:
You'd have to dig into the dispute that was engaged in this proceeding.

[00:05:28] Speaker 01:
We showed that the meaning of the liquefaction step in 179 was different.

[00:05:33] Speaker 01:
It was a broader process than the word liquefaction as it was used in our patent.

[00:05:39] Speaker 00:
But it's still with the aid of an amylase N or endoprotease activity.

[00:05:44] Speaker 01:
Correct.

[00:05:45] Speaker 01:
And the problem again, Your Honor, is that... That's in the claim.

[00:05:50] Speaker 01:
It's in the claim, but the 179 reference is when you look at what the different steps are doing, and that's what the subject of the testimony in front of the board was, the alpha amylase was not active enough to break down enough of the starch in that first step.

[00:06:09] Speaker 01:
And 179 does describe treating liquefaction

[00:06:12] Speaker 01:
the liquefied mash in after the second step.

[00:06:15] Speaker 01:
Remember in the 179 there's two steps, low temperature, high temperature, and then they take the temperature down again and do something called secarification.

[00:06:24] Speaker 01:
It's taking me a while to get that pronunciation.

[00:06:26] Speaker 01:
The secarification step is outside the scope of the claim.

[00:06:30] Speaker 01:
Our claims explicitly exclude treating the liquefied mash during secarification.

[00:06:37] Speaker 01:
So what you see in the 179 reference is

[00:06:40] Speaker 01:
Protease treatment before the liquefied mash forms, that's treating the slurry, and you see protease treatment after the liquefied mash forms during scarification, but our claims explicitly exclude both of those.

[00:06:55] Speaker 01:
So there was a mismatch between what is described substantively in the 179 reference and what the claims require.

[00:07:04] Speaker 03:
So, as I said, this was an- You're arguing now that the key distinction for the 179 patent

[00:07:10] Speaker 03:
is the fact that it applies protease during securification.

[00:07:16] Speaker 01:
When it does treat the liquefied mash, it's at that securification step outside the claim.

[00:07:23] Speaker 01:
So as I said, this is an evidentiary gap.

[00:07:26] Speaker 01:
They have the burden of proving anticipation.

[00:07:28] Speaker 01:
They didn't prove this element that was necessary to find anticipation, and that warrants reversal.

[00:07:33] Speaker 01:
There's no evidence in the record to support affirmance on that.

[00:07:38] Speaker 00:
If we were to find

[00:07:40] Speaker 00:
We look to affirm the board's finding on anticipation.

[00:07:45] Speaker 00:
And would that resolve all the issues in the case?

[00:07:51] Speaker 01:
I'm sorry, Your Honor.

[00:07:52] Speaker 00:
If we affirm the board's anticipation finding, would that resolve all the issues in the case?

[00:07:59] Speaker 01:
No.

[00:07:59] Speaker 01:
There are separate deficiencies on the obviousness finding for claims eight and nine of the patent.

[00:08:05] Speaker 01:
And so even if you did that, you would still have to deal with the errors that were made in claims eight and nine.

[00:08:11] Speaker 01:
but I would first urge you to consider my second error.

[00:08:15] Speaker 01:
The second error that justifies a reversal is how the board got to the reading they did of heating to 65 degrees with a certain type of array of options.

[00:08:27] Speaker 03:
Can I ask you a question?

[00:08:28] Speaker 01:
Sure.

[00:08:28] Speaker 03:
My question is, you seem to be focusing on the anticipation issue, but does your anticipation issue require us to adopt your claim construction or agree with your claim construction?

[00:08:40] Speaker 01:
So that's a great question.

[00:08:43] Speaker 01:
What the board did was it found anticipation applying our construction in an attempt to kind of short-circuit a dispute we were having about the meaning of it.

[00:08:52] Speaker 03:
Well, first, it's disagreed with your claim construction.

[00:08:54] Speaker 01:
Yeah, so definitely it is.

[00:08:55] Speaker 03:
It said, we're going to give it the plain and ordinary meaning, and the specification intrinsic evidence says the plain and ordinary meaning means this.

[00:09:02] Speaker 03:
And then it said, we're not going to require the gelatinization and other elements that you're reading into the claim, right?

[00:09:08] Speaker 01:
That was the board's reasoning, but when you look at what they did to prove anticipation, they used those elements we identified in our claim construction to make out the case.

[00:09:18] Speaker 01:
They were trying to, like I said, short circuit the dispute between whether their ordinary meeting needed to be clarified any further

[00:09:26] Speaker 01:
and whether that was needed to use our construction as opposed to that one.

[00:09:32] Speaker 01:
One thing they didn't do is use Denisco's construction.

[00:09:34] Speaker 01:
I think that's fairly clear.

[00:09:35] Speaker 01:
There's no basis for firmness on Denisco's construction in their decision.

[00:09:40] Speaker 03:
So just to be clear, your view is that the board should have adopted your claim construction?

[00:09:45] Speaker 01:
Absolutely.

[00:09:47] Speaker 01:
And that goes to the reason why you do claim construction is to figure out what the scope of the claim is, and you do that first so that you can assess whether it captures prior art or captures an infringing thing.

[00:09:58] Speaker 01:
And the construction they employed doesn't help do that.

[00:10:01] Speaker 01:
It misses some information that was in dispute.

[00:10:05] Speaker 01:
So I want to just touch on the problem.

[00:10:09] Speaker 01:
The second error that they made was getting this reading or reaching this reading that you would read 179 as a skilled person and see the particular combination that they came up with.

[00:10:21] Speaker 01:
That was the predicate of their anticipation finding.

[00:10:23] Speaker 01:
It was that combination of barley at 65 degrees with all the other parameters they picked.

[00:10:30] Speaker 01:
That's how they got to the foundation of their findings of anticipation.

[00:10:34] Speaker 01:
And that was an error.

[00:10:36] Speaker 01:
And the problem is, in your court's precedent, there has to be some evidence that the prior art lets the skilled person at once envisage the combination that's being read into the reference.

[00:10:50] Speaker 01:
And here, there wasn't evidence.

[00:10:51] Speaker 01:
In fact, there was contrary evidence.

[00:10:54] Speaker 01:
What the board said to justify its reading was one sentence.

[00:10:58] Speaker 01:
It's at appendix 50 to 51.

[00:11:01] Speaker 01:
And what they said was,

[00:11:02] Speaker 01:
179 is clear that it completes the combination and mixing or matching of its separately disclosed materials and processing parameters.

[00:11:11] Speaker 01:
All that says there are a lot of possible combinations for carrying out that first step.

[00:11:17] Speaker 01:
Other parts of the record contradict that reading of the award.

[00:11:21] Speaker 01:
179 itself says that its first step should be run between 45 and 55 because that's where the proteases are active.

[00:11:29] Speaker 01:
That's the appendix 1024, page 7, 10 to 13.

[00:11:35] Speaker 01:
Denisco and its expert in its petition echoed that point.

[00:11:39] Speaker 01:
They said 179 says to conduct protease treatment at conditions optimal for the protease.

[00:11:46] Speaker 01:
That's the appendix 158 and appendix 945 to 946.

[00:11:50] Speaker 01:
Denisco's petition also read 179 is running that first step at 50 degrees.

[00:11:56] Speaker 01:
They never mentioned 65 degrees.

[00:11:59] Speaker 01:
That's an appendix 141 and 159 to 60.

[00:12:03] Speaker 01:
Dr. Cole reached the same conclusion.

[00:12:05] Speaker 01:
That's appendix 2553.

[00:12:09] Speaker 01:
And Dr. Cole also explained that the 179 teaches that the type of grain in the slurry influences the temperature choice.

[00:12:17] Speaker 01:
And that's appendix 2595, paragraph 158.

[00:12:21] Speaker 01:
So all this is evidence in front of the board that is contradicting

[00:12:26] Speaker 01:
their reading as using 65 degrees with barley.

[00:12:31] Speaker 01:
And as your court's recent decision has recognized, and Merck, you need something that tells the skilled person that this particular combination is being described, and that's what's missing.

[00:12:44] Speaker 01:
Again, this is a second reversible error because this is the predicate of their finding of anticipation.

[00:12:52] Speaker 01:
Last point you asked about,

[00:12:54] Speaker 01:
I mentioned claims eight and nine.

[00:12:56] Speaker 01:
Just to very briefly point out that claims eight and nine, on claim eight, what Donisco argued in their petition was that claim eight was obvious, and they then pointed to, and the claim eight has a requirement of heating above the initial gelatinization temperature.

[00:13:13] Speaker 01:
Donisco said in their petition that to meet that, 179 teaches heating to 90 to 95 degrees.

[00:13:21] Speaker 01:
They didn't say heat to 65 degrees.

[00:13:23] Speaker 01:
The board's reasoning for claim eight being obvious was essentially it's almost identical anticipation conclusion.

[00:13:33] Speaker 01:
And that's a different rationale, not only in form, but in substance, because the board said 179 tells us to heat to 65 degrees.

[00:13:41] Speaker 01:
That's based on that wrong reading of what 165 or 179 is telling you.

[00:13:47] Speaker 01:
And I mention this because both of these claims have a process requirement where you have to heat to a certain elevated temperature before you start using the alpha amylase.

[00:13:58] Speaker 01:
And undoubtedly, with that sequence, the protease is going to be killed explicitly before you perform that test.

[00:14:06] Speaker 03:
Unless it's a heat-resistant protease, right?

[00:14:08] Speaker 01:
Pardon?

[00:14:08] Speaker 03:
Unless it's a heat-resistant protease?

[00:14:11] Speaker 01:
Yes, unless it's heat-resistant protease, but that's not what is in 179.

[00:14:16] Speaker 01:
I'll reserve the balance for my time.

[00:14:18] Speaker 01:
Thank you.

[00:14:18] Speaker 02:
Thank you, Your Honors.

[00:14:21] Speaker 02:
May it please the Court, the judgment below should be affirmed.

[00:14:24] Speaker 02:
In its comprehensive 72-page decision, the Board found that W.O.

[00:14:28] Speaker 02:
179 rendered the claims unpatentable in three separate ways as anticipation, anticipation under no design zone construction, and obviousness.

[00:14:37] Speaker 02:
This decision was supported by substantial evidence every step of the way and clearly correct.

[00:14:42] Speaker 02:
I'd like to first address the point my counterpart made about inactive or dead enzymes.

[00:14:48] Speaker 02:
As the board found, W0179 discloses repeatedly that liquefied mash is produced in the presence of and treated by protease.

[00:14:57] Speaker 02:
That's in Appendix 42.

[00:14:58] Speaker 02:
The board then quoted two full pages of portions of W0179 disclosing those features.

[00:15:06] Speaker 02:
And indeed, starting as early as its abstract on the very first page, W0179

[00:15:12] Speaker 02:
discloses liquefaction of cereal material with the aid of alpha amylase and protease activity to obtain a liquefied mash exactly as claimed.

[00:15:22] Speaker 02:
And based on those disclosures in Dr. Clark's testimony at appendix 908-910, his paragraphs 80 to 85, the board cited all of that in finding that W179 expressly states that its process obtains a sufficient liquefaction and calls the product a liquefied mash.

[00:15:39] Speaker 03:
Can I ask you, is this analysis that you're referring to at the board, is that based on the board's construction or based on even assuming that your adversary's construction is correct?

[00:15:52] Speaker 02:
That was under both, Your Honor.

[00:15:55] Speaker 02:
And the board, in fact, credited Dr. Clark's testimony as more credible than Novizam's expert's testimony that W179 is somehow not scientifically correct.

[00:16:05] Speaker 02:
I mean, that's kind of the crux of their position.

[00:16:07] Speaker 02:
W179 isn't disclosing treatment of liquefied mash, it's disclosing treatment of slurry.

[00:16:13] Speaker 02:
It's just disagreeing with what the reference actually says.

[00:16:16] Speaker 03:
Do you see a difference between liquefied mash and liquefaction?

[00:16:21] Speaker 02:
Yeah, well, W179 expressly says it obtains sufficient liquefaction, and it calls the product liquefied mash, and that's exactly what's claimed.

[00:16:31] Speaker 02:
I mean, we're talking about using the same alpha amylase and protease enzymes.

[00:16:36] Speaker 02:
And it's in the same alcohol production process in the same step.

[00:16:39] Speaker 00:
With two opponents arguing on the basis of degrees and heat, and he says that there's a difference.

[00:16:44] Speaker 00:
That's the difference between the elements that we're looking at.

[00:16:48] Speaker 02:
Well, the claim doesn't require any temperature.

[00:16:50] Speaker 02:
Claim one doesn't require any temperature at all.

[00:16:53] Speaker 02:
And in fact, the 409 patent specifies that its preferred temperature for carrying out simultaneous liquefaction and protease treatment is 50 degrees, as in column five.

[00:17:02] Speaker 02:
And that's the same identical preferred temperature.

[00:17:05] Speaker 02:
as in WO 179.

[00:17:08] Speaker 02:
But we don't even have to get into what ifs about protease activity because the proof is in the pudding with the empirical examples of WO 179.

[00:17:17] Speaker 02:
Example one, a short quote clearly shows that the protease was active.

[00:17:21] Speaker 02:
It produced 344% more fan than the control.

[00:17:26] Speaker 02:
And example four directly compared the use of the protease during liquefaction compared to in-sacrification

[00:17:33] Speaker 02:
which is when Novasine contends the liquefied mash is actually present because it's after the higher 90 to 95 degree cooking step.

[00:17:41] Speaker 03:
I believe that Novasine, I think they argue that the difference there is because for W179, it's not a heat resistant protease.

[00:17:51] Speaker 03:
What's your response to that?

[00:17:53] Speaker 02:
Well, actually at appendix 1019, I believe it's towards the bottom of page two of W179, it actually encourages using preferably thermostable exopeptidases.

[00:18:02] Speaker 02:
which is a type of protease.

[00:18:04] Speaker 02:
And in fact, in example four, comparing the treatment of liquefied mash during liquefaction versus in saccharification, the results showed better performance in liquefaction.

[00:18:16] Speaker 02:
And that's empirical evidence confirming, as Dr. Clark explained, that the alpha amylase more than sufficiently broke down the starch into liquefied mash, releasing the full amount of protein for the protease to treat.

[00:18:27] Speaker 02:
As Appendix 1795, this paragraph 109,

[00:18:31] Speaker 02:
accredited at appendix 45 and 47.

[00:18:35] Speaker 02:
I'd also like to address the claim construction.

[00:18:39] Speaker 02:
You didn't really hear much about that in the opening argument, but it's kind of the necessary first step in Novozheim's case.

[00:18:47] Speaker 02:
And starting with the majority and solution requirements, the board correctly determined that these are nowhere to be found in the claims, in the specification, in the file history.

[00:18:56] Speaker 02:
The board was correct at appendix 29 saying the 409 patent does not once use the term

[00:19:01] Speaker 02:
doesn't say a solution is required.

[00:19:03] Speaker 02:
There's just no disclosure of these requirements at all, much less than any clear lexicography that requires reading them into the claims.

[00:19:10] Speaker 02:
And the board further went on and resolved the extrinsic evidence, everything you heard about Dr. Cole.

[00:19:16] Speaker 02:
His testimony was rejected in favor of Dr. Clark.

[00:19:19] Speaker 02:
Under Teva v. Sandoz, that's reviewed for substantial evidence.

[00:19:22] Speaker 02:
In Donisco's favor.

[00:19:23] Speaker 00:
What about the construction of a liquefied mesh?

[00:19:30] Speaker 02:
Yeah.

[00:19:30] Speaker 02:
NOVA's items had three requirements for that, majority, solution, and a gelatinization step.

[00:19:36] Speaker 02:
And so the majority and solution requirements are nowhere in the specification, the claims, or the file history.

[00:19:42] Speaker 02:
Is the board correctly determined?

[00:19:44] Speaker 02:
And that should be the end of the analysis because a construction that's unsupported by the intrinsic evidence cannot be correct.

[00:19:50] Speaker 02:
And then for gelatinization, I'd refer you to the explicit instructions and the specification at column five for carrying out the simultaneous embodiment.

[00:19:59] Speaker 02:
And it nowhere mentions gelatinization.

[00:20:02] Speaker 02:
The temperature depends on the enzymes used.

[00:20:05] Speaker 02:
No reason related to gelatinization is mentioned at all.

[00:20:08] Speaker 02:
The temperature can be anywhere from 25 to 90 degrees, just as recited in Claim 14, and that expressly includes temperatures too low to gelatinize starch.

[00:20:19] Speaker 02:
And it also specifies the especially preferred temperature of 50 degrees that is identical to the preferred temperature of the WO 179 reference, confirming anticipation.

[00:20:31] Speaker 02:
I'd also like to address my counterpart's arguments about the so-called immediately envisage theory.

[00:20:40] Speaker 02:
Here, the board relied on W-179 and Dr. Clark's testimony and spent four pages at appendix 47 to 50 walking through how W-179 discloses a cohesive alcohol production process.

[00:20:55] Speaker 02:
It has the same steps.

[00:20:56] Speaker 02:
It's combined the same way, as in claim one.

[00:20:59] Speaker 03:
And then the board found that for each... So you're saying that the board said it didn't have to... This is not a case where the immediately envisioned or envisaged doctrine doesn't come into play?

[00:21:09] Speaker 02:
I think that's exactly right, Your Honor.

[00:21:12] Speaker 02:
This isn't a case like Lilly v. Zenith where you have a single generic compound formula that encompasses millions of different

[00:21:20] Speaker 02:
chemical compounds.

[00:21:21] Speaker 02:
Here, it's a pretty simple question.

[00:21:24] Speaker 03:
I would say the immediately envisaged doctrine doesn't apply there either.

[00:21:28] Speaker 02:
Yeah, I say this case is closer to your decision in Purdue, which holds that a disclosure requiring use of a compound, and here this is W179's liquefaction step, requires conducting liquefaction on a serial starch.

[00:21:41] Speaker 02:
What starches are those?

[00:21:43] Speaker 02:
Dr. Clark testified the list of six of them.

[00:21:46] Speaker 02:
It's a really short list.

[00:21:47] Speaker 02:
It's on the immediately preceding page, page four of W-179.

[00:21:51] Speaker 02:
Serials in the context of this invention include sorghum, wheat, barley, oat, rice, and corn.

[00:21:56] Speaker 02:
And those two disclosures are directly linked.

[00:21:58] Speaker 02:
Of course, you can't conduct like the faction on a cereal starch unless you pick one of them.

[00:22:02] Speaker 02:
So that's at Appendix 1797, paragraph 114.

[00:22:06] Speaker 02:
That evidence was credited by the board at Appendix 49.

[00:22:09] Speaker 02:
And this is all a factual issue under Blue Calypso and supporting expert testimony.

[00:22:15] Speaker 02:
and a direct link like that within the reference is more than substantial evidence to affirm.

[00:22:20] Speaker 02:
And this is even under Novozyme's own construction.

[00:22:24] Speaker 03:
What about obviousness in claims eight and nine?

[00:22:28] Speaker 02:
Yeah, the same is true for obviousness.

[00:22:30] Speaker 02:
The claim construction really doesn't matter here.

[00:22:33] Speaker 02:
The obviousness combination for claims eight and nine clearly teaches the same features Novozyme seeks to read into the claims.

[00:22:41] Speaker 02:
For example, with W-895, it discloses dark

[00:22:44] Speaker 02:
jet-cooking starch and completely gelatinizing the starch before you start liquefaction.

[00:22:50] Speaker 02:
And then in liquefaction, W-179 instructs one to use alpha amylase and protease simultaneously to treat liquefied mash during liquefaction.

[00:23:00] Speaker 02:
This is on the petition at appendix 157-158 and Dr. Clark's testimony at 944 and accepted by the board at page 69.

[00:23:08] Speaker 02:
And Novazyme's even conceded in its reply brief in this court at page 8.

[00:23:13] Speaker 02:
that it's a proper way to claim that, to carry out the claimed invention.

[00:23:17] Speaker 03:
Just to be clear, it has to be prior to step A, right?

[00:23:20] Speaker 03:
It has to be prior.

[00:23:21] Speaker 02:
Yeah.

[00:23:22] Speaker 02:
And that's what WO 895 disposes.

[00:23:24] Speaker 02:
It even has a figure one with a jet cooking box before liquefaction.

[00:23:28] Speaker 02:
So you've completely finished gelatinizing the starch and then you go into liquefaction.

[00:23:34] Speaker 02:
And on page eight of their brief, they say, if you do it that way, you can even use low temperatures in liquefaction.

[00:23:49] Speaker 02:
Do you have any other questions?

[00:23:53] Speaker 01:
Thank you.

[00:23:55] Speaker 01:
I'll try to be efficient.

[00:23:58] Speaker 01:
There are a few things that we just heard which need to be fixed.

[00:24:02] Speaker 01:
First, if you look at appendix 50, the board itself recognizes that the protease used in 179 is only active up to 70 degrees.

[00:24:10] Speaker 01:
There's no dispute that those proteases won't live until the second step of 179.

[00:24:16] Speaker 01:
Second thing you heard was that

[00:24:21] Speaker 01:
a lot of emphasis on the word liquefaction, sufficient liquefaction.

[00:24:26] Speaker 01:
I'll point you to A 1021 page, line 20, I'm sorry.

[00:24:32] Speaker 01:
A 1021, A 22 is the 179 disclosure.

[00:24:37] Speaker 01:
And what that does, it says explicitly that the liquefaction step includes preparation of the slurry and then some initial steps before you move into the step where you then liquefy the slurry.

[00:24:49] Speaker 01:
That's broader.

[00:24:51] Speaker 01:
than the meaning in our patent, which says liquefaction is the process of alpha amylase hydrolysis of the starch.

[00:24:59] Speaker 01:
So you can say it as many times as you want, liquefaction or sufficient liquefaction, it's a different thing than what is in our patent.

[00:25:07] Speaker 01:
On the clang destruction point, one other small point, the last thing you heard was the

[00:25:14] Speaker 01:
rearrangement of the Board's Obviousness Conclusion.

[00:25:18] Speaker 01:
If you look at the Board's decision, what the Board found for Obviousness of Claims 8 and 9 was that you would start with a 179 slurry, which has a proteus in it, and then you would add the jet cooking step to that.

[00:25:33] Speaker 01:
So that's what the Board found.

[00:25:35] Speaker 01:
If their position is different, then that's not what the Board found.

[00:25:39] Speaker 01:
Finally, the one thing to take away from claim construction is that it is

[00:25:44] Speaker 01:
Very clear that the intrinsic evidence and the claim language distinguishes the slurry from the liquefied mash.

[00:25:52] Speaker 01:
One turns into the other.

[00:25:55] Speaker 01:
The claim language says the slurry is milled grains and water.

[00:26:00] Speaker 01:
The liquefied mash in the claims is what is produced when you liquefy the slurry.

[00:26:05] Speaker 01:
That's the same thing it says in the specification.

[00:26:08] Speaker 01:
The board found that the slurry

[00:26:13] Speaker 01:
transitions into the liquefied mash.

[00:26:17] Speaker 01:
It said it goes through a different way of getting there, but the thing to take away from it is that it recognized that it is a transition.

[00:26:25] Speaker 01:
It may take time, but in that transition recognition aligns with the intrinsic evidence that they're different.

[00:26:33] Speaker 04:
All right.

[00:26:34] Speaker 04:
Thank you very much.