[00:00:00] Speaker 02: The last case this morning is Canopy Grace Corporation versus GW Pharma, 2022-1603. [00:00:10] Speaker 02: Mr. Willie? [00:00:12] Speaker 01: Yes, Your Honor. [00:00:13] Speaker 01: May it please the court? [00:00:16] Speaker 01: Thank you, Your Honor. [00:00:18] Speaker 01: The district court acknowledged Canopy's argument that GW's proposed construction would exclude a disclosed embodiment in the specification. [00:00:29] Speaker 01: but then failed to weigh that factor in its analysis. [00:00:34] Speaker 01: Now, without weighing that factor, the district court concluded this was an extremely close call. [00:00:42] Speaker 01: When that factor is properly considered in the analysis, the record, the intrinsic record and the extrinsic record, point to reversal. [00:00:53] Speaker 01: In fact, the district court's own findings when that factor [00:00:59] Speaker 01: is included, 0.2 reversal. [00:01:02] Speaker 04: Can I just ask? [00:01:03] Speaker 04: So I know that we've had at least one statement that I think over broadly says that it's strongly disfavored to adopt an interpretation that excludes an embodiment at that level. [00:01:20] Speaker 04: That's what happens every single time a specification covers a number of embodiments. [00:01:25] Speaker 04: And in the prosecution, [00:01:27] Speaker 04: Things are narrowed to, not every single time, but quite commonly, exclude a number of embodiments. [00:01:35] Speaker 04: And what we have here is language that, on its face, naturally suggests that the modifier covers both of the things that come after the modifier, and then an extraordinary prosecution history that sure looks like it says, we're excluding two of the three possibilities here. [00:01:55] Speaker 04: So of course, it [00:01:57] Speaker 04: narrowing in the prosecution will, maybe not every time, but very, very commonly exclude a specification embodiment. [00:02:06] Speaker 01: Absolutely, Your Honor. [00:02:08] Speaker 01: And there are cases where the court has found that the claim cannot reasonably be construed to cover what the claim says. [00:02:19] Speaker 01: For example, here, there is a supercritical embodiment in the specification. [00:02:24] Speaker 01: That's excluded when you put the word subcritical in. [00:02:28] Speaker 01: I take issue with your honor's statement that the prosecution history is illuminating here. [00:02:35] Speaker 01: The district court certainly didn't think the prosecution history was more illuminating than the specification. [00:02:41] Speaker 04: We're under de novo review here. [00:02:43] Speaker 04: So forget about what the district court said. [00:02:45] Speaker 04: Why is this winnowing down? [00:02:49] Speaker 04: of possibilities through several different stages, but not just an unmistakable narrowing to where the district court ended up here as a construction. [00:03:01] Speaker 01: OK. [00:03:02] Speaker 01: So I think where I would take issue with that is a couple of things first. [00:03:09] Speaker 01: I would take issue with that in that the three alternatives that are stated in the specification and that were included in the claim [00:03:17] Speaker 01: I think Your Honor's question assumes that those are mutually exclusive alternatives. [00:03:23] Speaker 01: And as the district court found, there is no statement that they are necessarily mutually exclusive alternatives. [00:03:35] Speaker 01: So they were put as three alternatives in the claim. [00:03:40] Speaker 01: Yeah, they continued to take several of those out, and when they took [00:03:47] Speaker 01: the two out and they got down to subcritical pressure and temperature conditions, the examiner still wouldn't allow the claims over a prior art that is just supercritical extraction prior art. [00:04:00] Speaker 01: And so what did they do then? [00:04:02] Speaker 01: They put some specific temperature and specific pressure limitations into the independent claim that were both subcritical. [00:04:15] Speaker 01: And the examiner still would not allow the claim. [00:04:20] Speaker 01: There would have been no reason to amend the claims to put those additional temperature and pressure limitations in if the original claim language, subcritical pressure and temperature conditions, already covered where both pressure and temperature had to be subcritical. [00:04:40] Speaker 01: That wouldn't have given any advantage versus the prior art. [00:04:45] Speaker 01: Those were taken out, and the claim broadened out again to focus on subcritical pressure and temperature conditions. [00:04:55] Speaker 02: Doesn't the final claim recite subcritical pressure and temperature? [00:05:02] Speaker 01: The final claim recites subcritical pressure and temperature conditions. [00:05:07] Speaker 02: Yes. [00:05:07] Speaker 02: Well, adding both doesn't change the meaning. [00:05:13] Speaker 01: Adding both does change the meaning, your honor, because persons of ordinary skill in the art understand subcritical pressure and temperature conditions to refer to either the pressure or the temperature being subcritical. [00:05:28] Speaker 01: In fact, the district court, focusing on the claim language at appendix 14, said that was one way to read the language. [00:05:38] Speaker 02: People of ordinary skill in any art still speak the language. [00:05:42] Speaker 02: English language under subcritical pressure and temperature. [00:05:48] Speaker 02: Subcritical temperature includes temperature as well. [00:05:53] Speaker 01: What the district court found at appendix 14 and what we contend is if you read the phrase as a whole, subcritical pressure and temperature conditions, what all that recognizes is that it's both pressure and temperature conditions that affect whether the CO2 is subcritical or not. [00:06:12] Speaker 01: And in Appendix 14, the district court found that you could read the claim language that way. [00:06:18] Speaker 01: All this court's case law requires when you are excluding an embodiment, which is undisputed here, is that the claim language can be reasonably read to cover that embodiment. [00:06:29] Speaker 01: It doesn't even say it's the best reading of the claim language. [00:06:33] Speaker 01: It just says, can the claim language be reasonably read to include the excluded embodiment? [00:06:40] Speaker 01: That's the Odie case. [00:06:42] Speaker 01: I'm going to use the claim language in a sentence. [00:06:47] Speaker 01: Subcritical pressure and temperature conditions include both where the pressure and temperature is subcritical or where only one is. [00:06:57] Speaker 01: Clearly in that sentence, subcritical pressure and temperature conditions, it's reasonable use of the term, covers all three possibilities. [00:07:08] Speaker 01: And that's what a person of ordinary skill in the art [00:07:11] Speaker 01: would understand reading the language. [00:07:15] Speaker 01: The district court's construction really hinges on two things. [00:07:20] Speaker 01: It's the word and and the word or with the three embodiments in the specification separated by the word or. [00:07:28] Speaker 01: With respect to the word and in the claim, well, the word and in the claim doesn't indicate much because we concede that, yeah, pressure and temperature conditions are what determine [00:07:42] Speaker 01: whether CO2 is subcritical or not. [00:07:45] Speaker 01: So that's not illuminating. [00:07:47] Speaker 01: So when we turn to the specification and we see three examples listed in the specification, the word or is used to separate those. [00:07:57] Speaker 01: Neither this court nor any grammar dictionary or grammar treatise that I'm aware of has ever said that things that are separated by the word or [00:08:09] Speaker 01: are necessarily mutually exclusive alternatives. [00:08:13] Speaker 01: They can be genus and species. [00:08:17] Speaker 01: And in our brief, we give you five examples of patents where people include genus and species in the specification and genus and species in the claim. [00:08:31] Speaker 01: So people do this in patents. [00:08:33] Speaker 01: People put things that are not mutually exclusive [00:08:38] Speaker 01: genus and species in the same claim. [00:08:41] Speaker 01: There may be a claim scope reason to do that. [00:08:44] Speaker 01: It's sort of like you get self-claim differentiation within the same claim as one reason to do that. [00:08:49] Speaker 01: There may be some written description reasons to do that. [00:08:53] Speaker 01: But we gave you examples where people do that. [00:08:56] Speaker 01: So if you look at the specification and you look at those three examples and you say, well, can I reasonably read [00:09:06] Speaker 01: that third alternative to be a genus of including any example where it's subcritical pressure and temperature, then the claim language can reasonably be read to cover any example that is subcritical pressure and temperature. [00:09:26] Speaker 01: And in this case, [00:09:30] Speaker 03: extrinsic evidence is relevant to consider? [00:09:52] Speaker 01: he acknowledges the argument, but then he doesn't address how it impacts the claim construction. [00:09:57] Speaker 03: Don't we normally, in that circumstance, assume that the district court, in fact, did consider it and give it the weight that he thought it deserved? [00:10:06] Speaker 01: I don't think you can assume that a district court has addressed something that's not addressed in their opinion. [00:10:11] Speaker 03: But it is addressed in the opinion. [00:10:12] Speaker 03: You just said that. [00:10:14] Speaker 03: but not many analysis he just acknowledged that we may be argument he doesn't address what basis or what authority would you say that would allow us to say after expressly recognizing your argument address and discussing it and his opinion but not giving it express uh... discussion in his analysis it's just elsewhere opinion what would allow us to say he he overlooked it [00:10:40] Speaker 01: This court has said that the presumption is a strong presumption, that a construction that excludes an embodiment is rarely, if ever, correct, and also that the construction need only be reasonable. [00:10:56] Speaker 01: The fact that he did not do an analysis that determined whether the construction was only reasonable as opposed to what the plain, ordinary meeting was, this court's [00:11:10] Speaker 01: cases under excluding an embodiment do not require the construction to be the best construction from the intrinsic evidence. [00:11:21] Speaker 01: It need only be a reasonable construction. [00:11:23] Speaker 01: So I think the fact that he didn't do an analysis of what construction was most reasonable suggests that he overlooked this. [00:11:34] Speaker 01: And I'm now into my rebuttal time. [00:11:35] Speaker 02: We will save it for you, Mr. Willing, Mr. Flapman. [00:11:39] Speaker 00: Your Honors, may I have your seat? [00:11:43] Speaker 00: Please. [00:11:43] Speaker 00: May it please the court. [00:11:44] Speaker 00: This is a straightforward construction of the plain language of the claims, putting an adjective subcritical before a noun, pressure, and using the word and as it's used in common usage. [00:11:58] Speaker 00: Canopy wants to import different language into the claim in the guise of not excluding a disclosed embodiment. [00:12:06] Speaker 00: But this is not an excluded embodiment case. [00:12:09] Speaker 00: It's a case, as this court has ruled upon in several other instances, where an embodiment is not claimed and is expressly not claimed. [00:12:20] Speaker 04: What do you think is the noun or are the nouns in this phrase? [00:12:26] Speaker 00: The nouns in issue are pressure and temperature. [00:12:29] Speaker 04: Why aren't those words serving as adjectives for the only noun in the conditions? [00:12:34] Speaker 00: I'm not a grammarian, Your Honor, but I understand that they can form something known as noun adjuncts, where you can put nouns together with an adjective before them in front of another noun as well. [00:12:46] Speaker 00: But here we have all of those nouns in parallel, and they say subcritical. [00:12:52] Speaker 04: They're not in parallel. [00:12:56] Speaker 04: Even distributing them, there's pressure conditions and temperature conditions. [00:13:02] Speaker 00: And subcritical pressure. [00:13:04] Speaker 00: and subcritical temperature. [00:13:05] Speaker 04: And then subcritical clearly modifies something that's coming afterwards. [00:13:10] Speaker 00: We know one thing for certain, regardless of how this is parsed, and that's that subcritical. [00:13:14] Speaker 04: No, but this is not, I don't think that this is minor in the other side's argument. [00:13:21] Speaker 04: I thought the other side's argument, as I was hearing it, was that there are a set of conditions, pressure conditions and temperature conditions, and what has to be subcritical are [00:13:33] Speaker 04: Those conditions, not each of them, just the conditions that end up producing the results that the word subcritical identifies. [00:13:44] Speaker 00: And to do so, they create a new phrase for out there brief subcritical conditions, which doesn't appear in the claim language at all. [00:13:52] Speaker 00: when the claim wants to talk about, when the claim language or the patent wants to talk about that sort of situation where there's a mixed condition, it does sell very expressly. [00:14:02] Speaker 00: It uses the term subcritical range. [00:14:06] Speaker 00: And it then defines that as having a super critical pressure and a subcritical temperature. [00:14:12] Speaker 00: So these applicants knew very precisely how to define their invention when they wanted to. [00:14:17] Speaker 00: They also knew how to define [00:14:19] Speaker 00: conditions where both pressure and temperature were either supercritical, and that was alternative one. [00:14:26] Speaker 00: That's in the specification at column five, lines 10 to 20, and also in the pressure conditions there on column seven, or in parallel fashion, subcritical, and alternative three, also in the specification where both pressure and temperature conditions are called out [00:14:46] Speaker 00: as being subcritical. [00:14:47] Speaker 00: When they wanted to say something different, they were very definitive about it and called it a subcritical range, which could be akin to what the plaintiffs appellants are calling subcritical conditions or subcritical phase or subcritical range throughout their brief. [00:15:04] Speaker 00: But that's not a term that the patent applicant used. [00:15:08] Speaker 00: They used a very plain and ordinary term. [00:15:10] Speaker 00: And throughout the specific, and if we look at the specification in the file wrapper, we see that they very expressly failed to claim alternative one or alternative two in their patent. [00:15:20] Speaker 00: In fact, they expressly omitted those options, those alternatives from their, from their claims. [00:15:27] Speaker 00: Whereas they had expressly claimed those very same options in the parent patent, the 078 patent. [00:15:34] Speaker 00: And the district court did take note of this. [00:15:37] Speaker 00: I do take issue with one thing that my colleague said earlier. [00:15:40] Speaker 00: that the district court did not address this genus species argument of the possibility of alternative three being a genus that encompasses alternative two. [00:15:51] Speaker 00: He very expressly did so, in his opinion, at A21 to 22. [00:15:57] Speaker 00: And he weighed that argument, and he decided that it was a more strained argument [00:16:02] Speaker 00: than the one that found that there were alternatives based on the way that those alternatives were laid out in the specification and the file wrapper. [00:16:08] Speaker 00: And also based on grammar. [00:16:09] Speaker 03: Is that the same thing as the excluding embodiments argument, in your view? [00:16:14] Speaker 03: And if not, where did the district court take account of the excluded embodiments argument? [00:16:19] Speaker 00: That is certainly part of it, where you found that those were, in fact, separate alternatives that were not claimed and therefore not excluded embodiments, but rather unclaimed embodiments, Your Honor. [00:16:30] Speaker 00: Where he also takes note of it is of course in there. [00:16:32] Speaker 04: What's the difference between a not claimed and excluded? [00:16:37] Speaker 00: Sure. [00:16:37] Speaker 00: It's much like this case precedent in the, uh, in the tip systems case where, um, the court, um, decided that it was okay or were held that it was okay not to claim all embodiments that had been disclosed when the intrinsic language of the claim in that case, the word and, uh, clearly did not claim, um, purposely did not claim those other embodiments. [00:16:59] Speaker 00: which did not require conjunctive elements. [00:17:04] Speaker 00: In that case, I think it was a phone system. [00:17:06] Speaker 00: And the claim language said that it had to connect to one thing and another thing. [00:17:11] Speaker 00: And this court found that and meant both. [00:17:14] Speaker 00: Now there were embodiments in that case where the phone system only connected to one or the other. [00:17:19] Speaker 00: So were they technically excluded embodiments? [00:17:22] Speaker 00: One could say so. [00:17:24] Speaker 00: But I think the more apt way to put it is that they were unclaimed. [00:17:27] Speaker 00: just as they were unclaimed here and even more tellingly were claimed in the parent patent. [00:17:35] Speaker 00: So there was a choice here that was made that's evident from the file wrapper along those lines. [00:17:42] Speaker 03: Fair to say unclaimed embodiments are a subset of excluded embodiments. [00:17:47] Speaker 03: It's one way to exclude an embodiment is to just fail to claim it. [00:17:51] Speaker 00: I think that's the way the court actually put it in the TIP systems case, Your Honor, and also in the other precedent that follows those lines. [00:17:59] Speaker 00: Here, I think it's even more of a stretch, because it's unlike the cases where embodiments were truly excluded as a matter of error, such as the one cited in the defendant's brief, [00:18:13] Speaker 00: the Katz case, the OD case that we heard about earlier, where there was a full-throated discussion of the embodiments that were actually excluded in the specification. [00:18:23] Speaker 00: In contrast, here we have, it's just an item in a list, and it appears one more time in the list later in the patent. [00:18:29] Speaker 00: There's no example. [00:18:30] Speaker 00: There's no example of any sort of mixed conditions in this patent. [00:18:36] Speaker 00: It's all about supercritical to tell you the truth, Your Honor. [00:18:40] Speaker 00: So there's no true excluded embodiment here, I would argue. [00:18:44] Speaker 00: It's not like those other cases where the court did find error because there was no reason in the intrinsic evidence to exclude an embodiment, given the language that was used in those cases. [00:18:55] Speaker 00: There was no and or situation, for instance. [00:18:58] Speaker 00: It was just a technical term in each of the Katz case and the Otzi case that could have read on any of, say, the four embodiments [00:19:06] Speaker 00: and one or two were improperly excluded, even though those were fully described. [00:19:11] Speaker 00: So I do think there's a distinction, even though they could be called unclaimed but excluded. [00:19:18] Speaker 00: Now, the other point I would take issue with in the council's argument, he used a sentence and once again said that subcritical liquid CO2 [00:19:33] Speaker 00: that subcritical pressure and temperature conditions can include either subcritical pressure or temperature or the other way around, I believe. [00:19:44] Speaker 00: And then supercritical pressure or temperature on the other side. [00:19:48] Speaker 00: And that's not just wrong. [00:19:50] Speaker 00: A person of ordinary, as a matter of grammar, a person of ordinary, because the word supercritical doesn't appear anywhere in the claim to begin with. [00:19:58] Speaker 00: We have to import that word in the claim to make that even possible. [00:20:01] Speaker 00: And we have to put it in the first position. [00:20:03] Speaker 00: In other words, we have to take out subcritical and put supercritical in its place to make that work. [00:20:09] Speaker 00: Because you need supercritical pressure and subcritical temperature to have liquid CO2. [00:20:15] Speaker 00: You can't have subcritical pressure and supercritical temperature. [00:20:21] Speaker 00: That's a gas. [00:20:23] Speaker 00: So it's a scientifically impossible situation. [00:20:26] Speaker 00: So then, [00:20:27] Speaker 00: to get to the only alternative in his hypothetical that might work, you now have to take the term subcritical and move it from the first position in that phrase, before pressure, and move it to before temperature, and have the claim rewritten as calling for a supercritical pressure and a subcritical temperature. [00:20:55] Speaker 00: If you turn it around, [00:20:56] Speaker 00: It also doesn't work. [00:20:57] Speaker 00: I'm sorry, I just misspoke. [00:20:59] Speaker 00: If you had a subcritical pressure and a supercritical temperature, you'd have the same problem. [00:21:06] Speaker 00: You'd have a gas. [00:21:07] Speaker 00: So this doesn't work as a matter of grammar or science. [00:21:10] Speaker 00: And a person with skill in the art would understand it both ways. [00:21:14] Speaker 00: They've taken a shifting sands approach to their construction in this case, and I think it's telling. [00:21:19] Speaker 00: They believe the reason they filed this case is evident from their complaint at appendix 320. [00:21:24] Speaker 00: is that they believed that we had both subcritical pressure and temperature. [00:21:29] Speaker 00: And that's in the amended complaint as I've cited. [00:21:32] Speaker 00: When they learned in discovery that that was not the case, they shifted positions and came up with this claim construction and urged that your honor should or that the district court should interpret the claim to use and or effectively instead of and in the claim term to allow for this mix of conditions. [00:21:54] Speaker 00: And they asserted 10 times, I believe, in the brief before your honors, that that was the proper interpretation of the claim, allowing a mix and match of either condition. [00:22:05] Speaker 00: When we pointed out in our brief that that was scientifically impossible with regard to subcritical pressure conditions with supercritical temperature conditions, they pivoted again, said that our position was absurd, not theirs, but ours, and that this court [00:22:20] Speaker 00: should go ahead and take the one alternative that scientifically works and put the term supercritical before pressure, where it just is not in the claims. [00:22:32] Speaker 00: So we submit that that's a shifting sands approach that this court should not adopt. [00:22:39] Speaker 04: Your Honors, there was... Can you address the point that I think your opposite number made about one of the things that happened in the prosecution, which was having reduced the three options down to one. [00:23:01] Speaker 04: There was then some additional limitations, I think as I understood [00:23:07] Speaker 04: hurt him, maybe incorrectly, adding some particular temperatures before eventually taking those particular temperatures out, but that even the addition was an important sign that the remaining category, which is the one we have in the claim, doesn't require that both of the conditions be subgrouped. [00:23:33] Speaker 00: It certainly wasn't argued that way in the prosecution history, Your Honor. [00:23:36] Speaker 04: What was the point that they're adding the particular temperatures? [00:23:39] Speaker 00: I think they just claimed more narrowly at first as they had with option B where they had included specific temperatures and pressures in the first instance before deleting that and ultimately they deleted the C with the limitations, option three with the limitations. [00:23:57] Speaker 00: They put in the one that we have today along with dependent claims that actually have those limitations but they're all consistently [00:24:04] Speaker 00: They're all consistently subcritical pressures and temperatures throughout. [00:24:09] Speaker 00: So I don't think it cuts one way or another, Your Honor, and certainly nothing was made of it in the prosecution history. [00:24:17] Speaker 00: And Your Honor, in terms of the extrinsic evidence, I don't think any mention has been made of it. [00:24:26] Speaker 00: So I'll just remark that the district court did consider it and found it non-persuasive and certainly [00:24:32] Speaker 00: I'm not contradicting in any way the intrinsic evidence in the plain meaning of the claims. [00:24:38] Speaker 00: I'm happy to answer any questions your honors might have. [00:24:41] Speaker 02: I think not. [00:24:42] Speaker 02: Thank you, Mr. Flatman. [00:24:44] Speaker 02: Mr. Willie has some more time. [00:24:49] Speaker 01: When this court has looked at a prosecution history, it has looked at the prosecution history as a whole, and it has looked at the substance of what has occurred in the prosecution history. [00:24:59] Speaker 01: Looking at the substance of this prosecution history as a whole, the prior art was distinguished on the ground of subcritical versus supercritical. [00:25:09] Speaker 01: That was the only distinction. [00:25:11] Speaker 01: There was no distinction made as to why the CO2 was subcritical. [00:25:16] Speaker 01: Moreover, the excluded embodiment is the very embodiment that the applicant contrasted. [00:25:22] Speaker 01: It said in contrast in the specification contrasted it with the supercritical embodiment. [00:25:28] Speaker 01: So what GW is suggesting here is that the lawyer for Canopy deliberately excluded the embodiment that they contrasted with the supercritical embodiment, and for a reason that had nothing to do with the prior art they were distinguishing, and where the specification does not reveal any functional difference as to why the CO2 is supercritical. [00:25:59] Speaker 01: Council said, well, I use the term subcritical conditions at some point during my argument. [00:26:04] Speaker 01: That's not in the specification. [00:26:07] Speaker 01: It is in the file history, though, Your Honor. [00:26:09] Speaker 01: In fact, the last office action that got this allowed, we talk about the Gregg reference, not disclosing, doesn't provide any teaching or suggestion to use CO2 in liquefied form under subcritical conditions. [00:26:26] Speaker 01: And the undisputed extrinsic evidence on this point is that term subcritical conditions is used to refer to both liquid that is subcritical due to both pressure and temperature being subcritical, and due to temperature being subcritical and pressure being supercritical. [00:26:47] Speaker 01: Can we find the term subcritical conditions in the patent? [00:26:51] Speaker 01: Can you find the term subcritical conditions alone in the patent? [00:26:55] Speaker 01: Correct. [00:26:57] Speaker 01: I believe it may be in there once when it's talking about the separation step. [00:27:02] Speaker 03: Isn't it true that it more often says subcritical range? [00:27:07] Speaker 01: So it says subcritical range. [00:27:09] Speaker 01: And that was one of the things the district court keyed on. [00:27:11] Speaker 01: It said, well, you said subcritical range. [00:27:14] Speaker 01: That somehow distinguishes conditions. [00:27:16] Speaker 01: But in the very next column, the term range is used for the supercritical range. [00:27:25] Speaker 01: I think the district court was reaching for some sign to resolve this dispute. [00:27:32] Speaker 03: What about Mr. Flavin's argument that you've made up the term, essentially, subcritical conditions, use it in your briefs, use it here today, and yet that's just not what's in the patent? [00:27:42] Speaker 01: Well, no, Your Honor, subcritical conditions, to be clear, that was what was argued during prosecution. [00:27:48] Speaker 01: That was the term used during prosecution. [00:27:50] Speaker 01: I'll cite you where subcritical conditions was used in the prosecution history, appendix 141, appendix 157. [00:28:01] Speaker 01: Similarly, the term subcritical CO2 was used during prosecution. [00:28:08] Speaker 01: To distinguish the other reference, you can find that. [00:28:16] Speaker 01: That's the Webster reference. [00:28:18] Speaker 01: You can find that in appendix 108, 109, 140, and 157. [00:28:24] Speaker 01: And then what you'll find in our reply brief and in our opening brief are multiple references that use the term subcritical CO2 and use the term subcritical conditions to refer to the multiple possibilities. [00:28:41] Speaker 01: I want to make one last point, if I may. [00:28:44] Speaker 02: One thing that is critical here is time. [00:28:47] Speaker 02: OK. [00:28:48] Speaker 02: We'll give you a sentence or two. [00:28:51] Speaker 01: Yeah, just a sentence or two. [00:28:52] Speaker 01: So counsel talked about the scientific impossibility issue. [00:28:57] Speaker 01: He quoted my sentence. [00:28:59] Speaker 01: I think if you go back and look, I didn't include the word liquid in the hypothetical sentence I gave. [00:29:05] Speaker 01: And this is the same thing they did in their brief. [00:29:07] Speaker 01: They tried to make it look like we were trying to claim a scientific impossibility. [00:29:11] Speaker 01: We're not. [00:29:11] Speaker 01: We acknowledge our proposed construction includes liquid in the claim. [00:29:15] Speaker 01: Our only point is that if you look at the term subcritical pressure and temperature conditions on its own, that that refers to all three possibilities. [00:29:26] Speaker 01: The term liquid is in the claim to exclude one of those three possibilities. [00:29:31] Speaker 02: Thank you, counsel. [00:29:33] Speaker 02: The case is submitted. [00:29:34] Speaker 02: And that concludes our arguments for today.