[00:00:00] Speaker 04:
Our first case for argument today is 21-2371, Chemco Systems versus RDP Technologies.

[00:00:08] Speaker 04:
Mr. Johnson, please proceed.

[00:00:10] Speaker 00:
Good morning, Your Honors, and may it please the court.

[00:00:13] Speaker 00:
There are two issues that I'd like to discuss with you this morning, the first being a motivation to combine matter, which I think has an interesting key to have procedure wrinkled to it, and the second being a claim construction matter.

[00:00:24] Speaker 00:
On motivation to combine, the panel erred in finding no motivation to combine the Underwood and Pesatini references when it only very briefly considered just one of the three reasons we presented for modifying the Underwood reference.

[00:00:39] Speaker 00:
Specifically, Chemco noted three compromises in Underwood that I think are maybe most succinctly stated in the oral argument excerpt shown at page 34 of our blue brief that notes, one, the slurry density motivation,

[00:00:52] Speaker 00:
two, the wear on equipment, the bearings and seals motivation, and three, the complex system design motivation.

[00:01:00] Speaker 00:
Now the final written decision discussed only one of those three reasons for modifying Underwood, where it only very briefly addressed the motivation number one, the slurry density motivation, at appendix 30 to 31.

[00:01:14] Speaker 00:
As we detailed in our briefs, we think that the panel misapprehended or overlooked some evidence in support of that first motivation.

[00:01:21] Speaker 00:
But I think maybe more interesting for our discussion this morning, the decision wholly failed to acknowledge or address the second and third motivations.

[00:01:30] Speaker 00:
And that overlooked evidence implicates the rehearing procedural issue that I alluded to.

[00:01:36] Speaker 00:
Here, ChemCo availed itself of all possible avenues for getting the PTAB to consider the entirety of those three lanes of evidence for the motivation to combine.

[00:01:46] Speaker 02:
Mr. Johnson, you somehow read the regulation 37 CFR 42.71D as requiring the board, at least on reconsideration, to expressly address every ground that you raised.

[00:02:01] Speaker 02:
I'm not seeing that in the language of the regulation.

[00:02:04] Speaker 02:
How do you read that in?

[00:02:05] Speaker 00:
And I agree that we're not necessarily seeking a blanket rule that every point that a party raises in a motion for rehearing needs to be addressed.

[00:02:16] Speaker 00:
I can think of some situations where you're balancing on a preponderance of the evidence standard, and one side has a mountain of evidence, and the other side brings three pebbles of evidence on the other side and asks for rehearing.

[00:02:28] Speaker 00:
And the panel only gets the two of those in the rehearing request.

[00:02:31] Speaker 00:
And that's not cause for us to run here and ask for a remand or a relief to get that third pebble considered.

[00:02:39] Speaker 00:
But in an instance here where the issue is whether a finding of no motivation to combine and us having presented in our rehearing brief two unconsidered motivations to combine, I think the board would be required

[00:02:56] Speaker 00:
consider those two pieces of evidence in order to show that there's substantial evidence for their finding, no motivation to combine.

[00:03:03] Speaker 02:
But if it's not the regulation, do you point to any authority finding on us that would have required the board to address what you contender to other motivations?

[00:03:13] Speaker 00:
I think two points.

[00:03:15] Speaker 00:
One, the finding of no motivation to combine has to be supported by substantial evidence.

[00:03:20] Speaker 00:
And to have a finding that's based on the absence of evidence and to have not considered two pieces of evidence that we had brought forward, I think that would be one source, and perhaps the APA as well.

[00:03:34] Speaker 00:
you know, having presented evidence and not having it be considered would have opportunity to be heard.

[00:03:41] Speaker 04:
To what extent were these arguments presented throughout the proceedings or were they first presented during the rehearing?

[00:03:49] Speaker 00:
Of course.

[00:03:49] Speaker 00:
So these are theories and evidence that we've provided throughout the course of the proceedings.

[00:03:56] Speaker 00:
Starting with the petition, our petition cited Mr. Benson's expert report

[00:04:01] Speaker 00:
Appendix 979, particularly paragraph 208 there, where Mr. Benson identifies compromises that Underwood made in its system to deal with grit, even in its improved system that had the three beaters to try to keep the grit stirred up.

[00:04:24] Speaker 00:
it recognized that there were limitations even in its solution, including the need to have the mixing apparatus to agitate the slurry from the slurry tank, and expressly the slurry density limitations where underwood could only make fixed slurries to prevent the grit from settling out.

[00:04:47] Speaker 00:
In the patent owner response at appendix 392 to 393,

[00:04:51] Speaker 00:
RDP argued that Underwood had taken care of the grit issues on its own and that there was no motivation to further improve its system.

[00:05:04] Speaker 00:
Then in our reply at appendix 518 to 519, we've worked through each of those three motivations.

[00:05:13] Speaker 00:
You see the picture of the triple beater mixing tank.

[00:05:17] Speaker 00:
Then at the bottom of page appendix 518, note the wear on equipment, the motivation wear.

[00:05:28] Speaker 00:
The bottom of column 2 of Underwood states that it keeps all of its bearings and seals above the level of slurry in the tank.

[00:05:35] Speaker 00:
And then at appendix 519, we again reiterate the lower density slurry argument.

[00:05:44] Speaker 00:
All three of these motivations were in play and discussed throughout the proceeding, as well as that oral argument in the oral argument excerpt, which is, again, excerpted at page 34 of our blue group.

[00:06:07] Speaker 00:
So we included those three arguments in our 15-page rehearing request.

[00:06:11] Speaker 00:
Fourteen and a half of our pages of our argument were directed towards the motivation to combine issues.

[00:06:16] Speaker 00:
Half a page noted the claim construction issue.

[00:06:20] Speaker 00:
The PTAP opted not to address the motivation to combine and instead only addressed the claim construction issue, saying, in order for petitioner to prevail on rehearing, it must show that both conclusions were incorrect.

[00:06:32] Speaker 00:
Accordingly, we need only address this lorry tank issue.

[00:06:36] Speaker 00:
We submit that the PTAB's handling of the motivation to combine and the rehearing request was an error.

[00:06:42] Speaker 00:
Our rehearing requests were not meant to be limited to case dispositive issues.

[00:06:48] Speaker 00:
They allow parties to request modification of a decision based on all matters the party believes the board misapprehended or overlooked.

[00:06:56] Speaker 00:
I think the policy reason behind that is clear.

[00:07:00] Speaker 00:
It's important for all of the evidence in a matter to have been considered at the trial level.

[00:07:04] Speaker 04:
Well, they did in the final written description, right?

[00:07:07] Speaker 04:
In the final written description, they found no motivation to combine.

[00:07:12] Speaker 00:
Correct.

[00:07:12] Speaker 00:
At page 30 to 31 of the final written decision, they find no motivation to combine, but they only mention and discuss the first motivation, the slurry density motivation.

[00:07:25] Speaker 04:
So your argument is that you think it's not sufficient for them to do it in the final written description.

[00:07:32] Speaker 04:
They also have to do it

[00:07:34] Speaker 04:
in the re-hearing decision as well.

[00:07:35] Speaker 04:
That's your argument, right?

[00:07:38] Speaker 00:
No, respectfully, Your Honor.

[00:07:40] Speaker 00:
Our argument is that they have to address the second and third motivations for modifying Underwood somewhere.

[00:07:49] Speaker 00:
In the record, they've

[00:07:50] Speaker 00:
They found no motivation to combine, but only on one of the three paths, the three tasks for motivation to combine that we presented through the matter.

[00:08:00] Speaker 00:
They misapprehended or overlooked the second and third motivations completely, not having addressed them or even mentioned them in the final written decision or in the rehearing request.

[00:08:12] Speaker 02:
But that's speculation.

[00:08:14] Speaker 02:
They didn't expressly discuss it, but normally we would assume that the board considered all the evidence in front of it, wouldn't we?

[00:08:21] Speaker 00:
The way PTEB decisions are typically laid out, it actually makes that explicit where they'll, in a final written decision, they'll lay out all of one side's argument, the petitioner's arguments, all the patent owner's arguments, and then they'll discuss the evidence.

[00:08:36] Speaker 00:
In this case, in laying out the arguments in the final written decision, they never mention the bearings and seals or the wear on equipment motivation or the cumbersome

[00:08:49] Speaker 00:
nature of Underwood's solution, that triple beater mixing tank.

[00:08:53] Speaker 04:
It appears that the... This cumbersome thing that you're talking about, is this your design constraints argument about Underwood?

[00:09:02] Speaker 00:
It's one of two.

[00:09:03] Speaker 04:
I think that there's... Where's your expert testimony for that?

[00:09:06] Speaker 04:
Because that's a problem.

[00:09:07] Speaker 04:
I see nothing but attorney argument about it.

[00:09:10] Speaker 00:
So in paragraph 208, Mr. Benson does mention the Underwood utilizes these mixing apparatuses to agitate the slurry.

[00:09:19] Speaker 00:
And I think additional evidence towards this being a compromise in Underwood is the bottom of column two of Underwood, where he says they avoid wear and tear on the equipment.

[00:09:33] Speaker 00:
by presenting all of the bearings and seals in their tank above the level of the slurry.

[00:09:39] Speaker 00:
So this is a compromise that even Underwood recognized.

[00:09:43] Speaker 04:
But he doesn't say there's a motivation to combine it with Pezzettini in light of this.

[00:09:50] Speaker 00:
Not specifically based on that on that on that second motivation.

[00:09:56] Speaker 00:
That second motivation came in.

[00:09:58] Speaker 04:
You didn't provide evidence to the board of an actual motivation to combine Underwood with Pezzettini.

[00:10:04] Speaker 04:
You provided some design related statements at Mr. Benson's testimony at 2 0 8.

[00:10:11] Speaker 04:
paragraph 28 about Underwood, but you didn't link it to why those design constraints would cause someone to be motivated to combine it with the other thing.

[00:10:20] Speaker 04:
And that's the heart of the issue, motivation to combine.

[00:10:23] Speaker 00:
And I think Mr. Benson's testimony with the petition is some evidence that there were compromises made in the Underwood system that Underwood recognized.

[00:10:34] Speaker 00:
And then I'd point you again to the

[00:10:38] Speaker 00:
to the petitioner reply at 518 and 519, where Underwood's recognition of its own limitations is also evidence in favor of our motivation.

[00:10:51] Speaker 03:
Well, I mean, Matt, the question isn't whether you put on evidence.

[00:10:54] Speaker 03:
It's a question of whether or not the board had substantial evidence to reach its conclusions.

[00:11:00] Speaker 03:
So fine, you put on evidence.

[00:11:02] Speaker 03:
But why is that persuasive in any way to a reversal of this case?

[00:11:07] Speaker 00:
Again, the finding is a finding of no motivation to combine, so the absence of evidence.

[00:11:13] Speaker 00:
So we submit that all of the evidence that petitioner put forward in favor of that motivation to combine needs to be considered in order for there to be a proper finding of the absence of evidence.

[00:11:26] Speaker 03:
Yeah, but that assumes that they didn't consider it at all, or they didn't consider it.

[00:11:33] Speaker 00:
Agreed.

[00:11:33] Speaker 03:
And that's your position.

[00:11:35] Speaker 00:
Yeah, agreed.

[00:11:36] Speaker 00:
We submit that the language of the final written decision is the best evidence on what was considered.

[00:11:43] Speaker 02:
As I think you've recognized, you have to overcome the claim construction as well.

[00:11:48] Speaker 02:
What would you have us do if, just for the sake of the argument, we agreed with you on they overlooked two out of three motivations to combine, but you're wrong on claim construction?

[00:11:58] Speaker 02:
What does our opinion look like at that point?

[00:12:00] Speaker 00:
Agreed that we need to win on both issues.

[00:12:04] Speaker 00:
So it would be a difficult advisory opinion to write on the proper handling of re-hearing requests.

[00:12:16] Speaker 00:
Maybe moving briefly to the construction issue, the parties had agreed at least in part on the meaning of claim construction of a slurry tank as a tank for holding slurry produced through a lime slaking process.

[00:12:30] Speaker 00:
The PTAB accepted that agreed upon construction but

[00:12:34] Speaker 00:
added a caveat based on arguments from our friend at RDP, added a caveat that a lime slaker into which lime and water are charged are different from a slurry tank.

[00:12:47] Speaker 00:
While we agree that those are different words with different meanings, the PTAB erred in finding that there's no overlap in the meaning of those terms.

[00:12:55] Speaker 00:
That is, while not all slurry tanks are slakers, slakers can provide the required function of slurry tanks.

[00:13:02] Speaker 00:
I think the best evidence of this in the intrinsic evidence is the language of claim one itself.

[00:13:08] Speaker 00:
Limitation A has broad language.

[00:13:10] Speaker 00:
A slurry tank for watery lime slurry, having lime particles and grit particles therein.

[00:13:15] Speaker 00:
There's nothing in that language or elsewhere in claim one that would indicate that certain prior art tanks that meet the plain meaning of limitation A should be excluded.

[00:13:25] Speaker 00:
There's nothing in that language that suggests that the slurry tank cannot be this location where the slurry creation reaction takes place that has to take place somewhere.

[00:13:35] Speaker 00:
There's no language that requires the slurry tank receive slurry from an external source.

[00:13:40] Speaker 00:
Cleveland's agnostic as to the source of the slurry, and the PTAB actually agreed with us on this point at appendix 43 in their rehearing decision, but they opted to retain the slaker caveat in their construction.

[00:13:55] Speaker 00:
I think the second point of confirmation is dependent claim seven, which recites the apparatus of claim one, including a lime slaking device for providing lime slurry to the slurry tank.

[00:14:05] Speaker 00:
This adds two requirements to dependent claim seven.

[00:14:10] Speaker 00:
One, the lime slaking device is where the slurry creation reaction takes place, and that the lime slaking device is the source of the lime slurry that goes to the slurry tank.

[00:14:25] Speaker 00:
Because narrower Claim 7 counsels against reading a separate lime slaking device into Claim 1, as informed by this Court's precedents in Phillips, SRIB, Matsushita, we submit the proper construction of slurry tank as the agreed upon portion without the added caveat that excludes a slaker from falling within the scope of a slurry tank.

[00:14:46] Speaker 00:
So to conclude, we think this matter could be gracefully returned to the PTAB with the ruling that the proper construction of slurry tank as the parties agreed to construction without the slaker caveat and an instruction for the PTAB to consider the overlooked motivation to combine evidence as detailed in our first rehearing request.

[00:15:08] Speaker 04:
OK, Council, I'll reserve.

[00:15:18] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:15:20] Speaker 01:
I'd like to step back just for a moment to set some context.

[00:15:24] Speaker 01:
In the red brief at page 11, we provided an annotated copy of figure one of the invention.

[00:15:32] Speaker 01:
And it shows quite clearly that underlying the invention is the desire to separate the slaking process from the slurry recirculation loop.

[00:15:44] Speaker 01:
So if we look at claim one, which is mapped there, these are means plus function limitations, and they're mapped in that annotated version to the corresponding structure in the figure.

[00:15:55] Speaker 01:
The claim begins with element A, which recites a slurry tank for a lottery line slurry having line particles and grit particles therein.

[00:16:04] Speaker 01:
The slurry tank is shown as figure element 14 in figure one.

[00:16:09] Speaker 01:
The slurry tank is separate from the slaker, which is shown as figure element 11.

[00:16:15] Speaker 01:
Claim elements B through D work their way around the structure of the slurry recirculation loop in a counterclockwise direction, ending up with element E, which recites recirculating means for recirculating the rest of the slurry to the slurry tank.

[00:16:29] Speaker 01:
This completes the structure of the claimed loop, which begins and ends with the slurry tank.

[00:16:34] Speaker 01:
Claim seven depends from claim one and adds a lime slaking device for providing lime slurry to the slurry tank.

[00:16:43] Speaker 01:
Lime slaking device is shown as Figure 11.

[00:16:47] Speaker 01:
Claim 7 adds the remaining feature depicted in Figure 1 slaker, which provides slurry to the slurry tank where the slurry loop recited in Claim 1 begins and ends.

[00:16:57] Speaker 02:
So does Claim 1 not require a lime slaker anywhere in the system?

[00:17:02] Speaker 02:
It does not.

[00:17:04] Speaker 02:
So where do you charge the water in the line?

[00:17:07] Speaker 02:
How do you even practice anything about your patent under claim one if there's no slicker anywhere?

[00:17:14] Speaker 01:
So from the system level consider two processes one is slaking Recharging lime and water into a tank mixing it up There are different kinds of slakers some of them are continuous slakers that as you're adding water and lime it kind of spills out the back and

[00:17:28] Speaker 01:
and into the process.

[00:17:30] Speaker 01:
There are other slakers that are batch slakers.

[00:17:32] Speaker 01:
You put all the lime in and all the water and you mix it all up and you dump the whole batch out.

[00:17:37] Speaker 01:
That's one process in a water treatment system.

[00:17:41] Speaker 01:
This is a process

[00:17:44] Speaker 01:
slurry.

[00:17:45] Speaker 01:
There's a recognition that there's problems with grit in slurry.

[00:17:48] Speaker 01:
What our inventors came up with was an approach to get a persistent slurry to use in the process for its intended purpose.

[00:17:56] Speaker 01:
By taking the result of the slaker, be it a continuous slaker or batch slaker, putting that into a slurry tank, which is a separate system from the slaking system, recirculate that slurry from and back to the slurry tank and

[00:18:11] Speaker 01:
Do the grit removal as part of that process, which allows you to more tightly control the grit removal, and then dose to the use from there.

[00:18:19] Speaker 02:
I think I understand it, but what I'm confused on is under claim one, if the board's construction is correct, there is no separate slaking device.

[00:18:30] Speaker 02:
That's correct.

[00:18:31] Speaker 02:
And so everything's just done in the slurry tag?

[00:18:34] Speaker 02:
Well, the claim reads on the slurry loop.

[00:18:38] Speaker 02:
So does the loop require necessarily that a slaking device is external to the slurry tank under the board's construction?

[00:18:46] Speaker 01:
It's a separate device that would feed the slurry tank as recited in claim seven.

[00:18:54] Speaker 01:
We have both.

[00:18:55] Speaker 01:
We have a slaker for creating the slurry, feeding the slurry tank, and then claim one.

[00:19:00] Speaker 02:
is the loop.

[00:19:01] Speaker 02:
But someone could infringe claim one without a separate slaking device.

[00:19:05] Speaker 01:
Correct.

[00:19:06] Speaker 01:
You could buy a slurry recirculation loop.

[00:19:09] Speaker 01:
Through a loop.

[00:19:10] Speaker 01:
OK.

[00:19:10] Speaker 01:
And put it in your plant.

[00:19:12] Speaker 01:
And you'd say put slurry in there and run the loop and feed the process.

[00:19:17] Speaker 01:
You'll have better slurry than you would had you been feeding the process directly from the slaker.

[00:19:22] Speaker 01:
That's a major part of the invention here.

[00:19:26] Speaker 01:
So turning to the board's claim construction,

[00:19:29] Speaker 01:
The 175 patent itself explains that a lime slaker creates the slurry from lime and water.

[00:19:35] Speaker 01:
It also makes clear that in the context of the invention, the lime slaker and the slurry tank are distinct structures.

[00:19:43] Speaker 01:
And under Phillips,

[00:19:44] Speaker 01:
The claim terms must be given the meaning they would have to a person skilled in the art in the context of the entire patent.

[00:19:51] Speaker 01:
Chemco argues that the board erred by not adopting a construction of slurry tank as simply meaning a tank for holding slurry produced through a lime slaking process.

[00:20:00] Speaker 01:
The board recognized that throughout the IPR, RDP had consistently maintained that in the context of the invention described in the 175 patent, the slurry tank is different from the slaker.

[00:20:13] Speaker 04:
RDP's position is that while a slaker includes a tank... Is it your view that if we affirm on the claim construction we need not reach the motivation to combine issue?

[00:20:23] Speaker 01:
That is correct because under the board's construction Underwood has a single tank which is a slaker into which lime and water are charged and therefore Underwood does not dispose a story tank.

[00:20:34] Speaker 04:
Why don't you nonetheless go ahead and address the motivation to combine issue?

[00:20:37] Speaker 01:
I'm sorry?

[00:20:38] Speaker 04:
I said why don't you nonetheless go ahead and address the motivation to combine issue?

[00:20:41] Speaker 01:
Yes.

[00:20:42] Speaker 01:
So just to put a bow on the plant construction, this is an O2 microissue.

[00:20:48] Speaker 01:
The dispute between the parties was whether the slaker and the slurry tank can be one in the same.

[00:20:55] Speaker 01:
They cannot.

[00:20:55] Speaker 01:
And it was RDP's position that they cannot in the board agreement.

[00:21:00] Speaker 01:
So turning to the motivation to combine here, Underwood is indisputably directed to a slaker.

[00:21:10] Speaker 01:
It is entitled Lime Slaker.

[00:21:13] Speaker 01:
And it includes a single vessel where lime and water are charged and mixed together to form a lime slurry.

[00:21:19] Speaker 01:
We provided an annotated figure from Underwood in our red brief at page four.

[00:21:26] Speaker 01:
Lime and water are added to the vessel where it is mixed together, and the lime slurry is dumped out of the slaker through a weir box.

[00:21:32] Speaker 01:
I had mentioned continuous slakers before.

[00:21:35] Speaker 01:
This is an example of a continuous slaker.

[00:21:37] Speaker 01:
If you add more lime and water in, more slurry will get dumped out the back end of the weir.

[00:21:45] Speaker 01:
Underwood is designed to eliminate problems caused by grit buildup.

[00:21:49] Speaker 04:
Do you agree with Opposing Council's argument that they presented

[00:21:54] Speaker 04:
three different motivations to combine?

[00:21:58] Speaker 01:
No.

[00:21:58] Speaker 01:
They did, but the density of the slurry argument, while there was a comment in Mr. Benson's declaration of paragraph eight, the last sentence of that paragraph, that comment was neither argued nor addressed in the petition.

[00:22:14] Speaker 04:
Is this the high slurry versus low slurry, low density slurry thing?

[00:22:16] Speaker 04:
Low density slurry, yes.

[00:22:17] Speaker 04:
Yeah, okay.

[00:22:19] Speaker 01:
You go ahead.

[00:22:20] Speaker 01:
That statement was not argued in the petition as providing a motivation to combine.

[00:22:27] Speaker 01:
So it was just a comment in the declaration that was not in the petition, so there was no argument developed around it.

[00:22:35] Speaker 01:
It was only in the reply where ChemCo first raised the low-density slurry argument, and the board addressed that, which I can get to.

[00:22:50] Speaker 01:
But that was a reply argument, and the board did not need to consider it.

[00:22:56] Speaker 01:
But it did, and addressed it and found it unperspasive and uncorroborated.

[00:23:04] Speaker 01:
So with respect to what was in the petition,

[00:23:09] Speaker 01:
Chemco argued that because Underwood itself discusses and recognizes that there are problems associated with grit in a slaker, that that recognition would have led... Well, your expert testified and the board even cited it, right, that Underwood itself addressed the grit problem.

[00:23:28] Speaker 01:
That's the point.

[00:23:29] Speaker 01:
So Chemco had argued that the recognition of a grit problem

[00:23:34] Speaker 01:
would have provided motivation to go get them.

[00:23:36] Speaker 04:
This is just a substantial evidence review that we do.

[00:23:38] Speaker 04:
So if the board found it and cited your expert, and your expert said it, and they see it in the case, it doesn't matter if they have contrary evidence, right?

[00:23:46] Speaker 01:
Whether we have contrary evidence, it was their motivation to come by.

[00:23:50] Speaker 04:
Great.

[00:23:50] Speaker 04:
It doesn't matter whether you prevail.

[00:23:53] Speaker 01:
Yes.

[00:23:53] Speaker 04:
It doesn't matter whether they presented contrary evidence because

[00:23:57] Speaker 04:
we reviewed the board decision for substantial evidence.

[00:24:00] Speaker 04:
And if your evidence was deemed sufficient, then that's the end of the case.

[00:24:05] Speaker 01:
Correct.

[00:24:09] Speaker 01:
The board looked at Underwood and said, Underwood itself recognizes their grip.

[00:24:13] Speaker 01:
And Underwood itself states that it eliminates.

[00:24:15] Speaker 04:
OK, so we've covered two of the three motivations that they articulated.

[00:24:18] Speaker 04:
Is the third one the design choices concept?

[00:24:21] Speaker 04:
Or is that part of the one we just talked about?

[00:24:24] Speaker 01:
It's part of the low-density slurry

[00:24:27] Speaker 01:
wear on the bearings.

[00:24:29] Speaker 01:
And again, this stuff was all presented late in the reply.

[00:24:33] Speaker 01:
There's no expert testimony on it.

[00:24:35] Speaker 01:
There was no deposition on it.

[00:24:37] Speaker 01:
It was in the reply.

[00:24:38] Speaker 01:
So what the board did was it took the low density argument and considered it.

[00:24:47] Speaker 01:
It identified it in the final written decision as a reply argument, but it nevertheless considered it and stated that

[00:24:59] Speaker 01:
It was based on only that single sentence within Mr. Pence's declaration that grit may still accumulate, for example.

[00:25:07] Speaker 04:
Well, this is the low-density argument, or is this also the same?

[00:25:12] Speaker 04:
I have trouble understanding the three distinct motivations to combine.

[00:25:17] Speaker 04:
So which one is this that we're talking about?

[00:25:19] Speaker 01:
As do I, Your Honor.

[00:25:20] Speaker 01:
So the motivation to combine that was clearly set forth in the petition was, Underwood recognizes that grit is a problem.

[00:25:28] Speaker 01:
Therefore, combine it with festini.

[00:25:30] Speaker 01:
We refuted that.

[00:25:33] Speaker 01:
We said, no, Underwood solves the grit.

[00:25:34] Speaker 04:
We've been over that grit.

[00:25:36] Speaker 01:
Then these other arguments were not developed, but presented and suggested in the reply about the wear and tear on the bearings and the low density slurry.

[00:25:47] Speaker 01:
And I view them all as kind of a Hail Mary in the reply because we refuted the motivations presented in the petition.

[00:25:57] Speaker 01:
So it was all about the complexity of the design.

[00:26:00] Speaker 04:
But despite the fact that they were in reply, the board went ahead and addressed it anyway and said it was just unsupported.

[00:26:05] Speaker 01:
Yes, unsupported, uncorroborated.

[00:26:08] Speaker 01:
The board cited to TQ Delta and stated that obviousness determinations cannot be based on conclusory and unsupported expert testimony.

[00:26:19] Speaker 01:
And to the American Academy of Sciences case, which provides that the board is entitled, the way the declarations conclude the lack of factual corroboration

[00:26:27] Speaker 01:
Warns discounting the opinions which is what it did here.

[00:26:31] Speaker 01:
So our position is substantial evidence more than supports the board's finding the chemco Failed to carry its burden with those skill new art would have combined Under what it because the team Okay, thank you counsel anything any further I would just note

[00:26:52] Speaker 01:
relating to Judge Stark's comments.

[00:26:54] Speaker 01:
We read the CFR the same way, but CFR imparts no requirements on the board.

[00:26:58] Speaker 01:
The CFR is about requiring the party to set forth its grounds for rehearing, to the extent it thinks there are.

[00:27:07] Speaker 01:
And the fact that you only get one, the CFR is consistent.

[00:27:11] Speaker 01:
It states that if you have a number of reasons, they all need to be set forth in that one single request.

[00:27:17] Speaker 04:
Thank you.

[00:27:26] Speaker 00:
Very briefly.

[00:27:28] Speaker 00:
All three of the motivations to combine were properly presented in the, at least as soon as the reply, if not before.

[00:27:40] Speaker 00:
Under Genzyme, this court's precedence in Genzyme, this is proper reply evidence and argument.

[00:27:47] Speaker 00:
These issues were clearly in play.

[00:27:51] Speaker 00:
Our reply at appendix 518 to 519

[00:27:54] Speaker 00:
The oral argument.

[00:27:55] Speaker 04:
Do you think that it's proper in the reply to raise an entirely different motivation to combine than what you had in the petition?

[00:28:00] Speaker 04:
And you think Genzyme supports that?

[00:28:03] Speaker 00:
I think the motivation to combine presented in the petition was that Underwood recognized that compromises, even its system wasn't perfect, that compromises needed to be made.

[00:28:15] Speaker 00:
You could only put forth certain types of.

[00:28:18] Speaker 04:
The petition focused on grit.

[00:28:21] Speaker 00:
Right, and the slurry density is related to grit.

[00:28:24] Speaker 00:
In Underwood, it says that it needs to keep its slurry sufficiently thick and dense so that the grit doesn't fall out.

[00:28:31] Speaker 04:
That's what Underwood says, but your petition didn't say anything about that, which would have alluded to the low density, high density differentiation.

[00:28:40] Speaker 00:
Note that our petition does cite Mr. Benson's testimony at paragraph 208 that does point out the

[00:28:50] Speaker 00:
that Underwood recognized that it needed to make compromises.

[00:28:57] Speaker 00:
So each of these three motivations were clearly in play from our reply from the petition paragraph 208, the reply at appendix 518 to 519, that oral argument at appendix 735,

[00:29:14] Speaker 00:
RDP had full and fair opportunity to respond, which is the guiding principle under Genzyme.

[00:29:21] Speaker 00:
There was no motion to strike filed, no argument for waiver in the briefing here.

[00:29:27] Speaker 00:
And so we submit that these were properly presented motivations to combines that needed to be considered in order to make a finding of no motivation to combine that's supported by substantial evidence.

[00:29:39] Speaker 04:
Okay, thank you, counsel.

[00:29:40] Speaker 04:
Your time has expired.

[00:29:41] Speaker 00:
Thank you very much.

[00:29:42] Speaker 04:
I thank both counsel.