[00:00:00] Speaker 01:
22-1356 McEvans v. B.A.

[00:00:04] Speaker 01:
Etta.

[00:00:05] Speaker 01:
Mr. Evans, please proceed.

[00:00:07] Speaker 01:
Thank you, Your Honor.

[00:00:10] Speaker 03:
May it please the Court.

[00:00:12] Speaker 03:
The final written decision under review here presents several intersecting issues that cannot be reconciled.

[00:00:19] Speaker 03:
When this Court first remanded this

[00:00:22] Speaker 03:
issue back to the board, it said the central issue is whether, in view of Ohling, a physito would have been motivated to replace either bar stats or Morrissey suppressor with the BSF catalog tectronic surfactant copolymer.

[00:00:38] Speaker 03:
And this made sense.

[00:00:39] Speaker 03:
The petition cited Ohling 26 times for the proposition that tectronic should be used as a suppressor for superfilling.

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In particular, when they explain things, it pages

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that the appendix at 1721 and 27, they particularly pointed out that Alling taught Tetronic as the motivation to combine and the difference in the prior art, as well as in the claim chart where the claim elements were supposed to be found.

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But when the board looked at Alling again, it found that Alling didn't hold up.

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At page 34, it found that Alling does not expressly teach that Tetronic products are available, are suitable suppressors.

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for a superfilling process.

[00:01:20] Speaker 01:
Well, I think, counsel, the one question I have for you is, in the Petitions Claim Chart, it expressly cited the BASF expert declaration, quote, the use of tetronic polymers as suppressors in electroplating baths was known before the 99 new patent, C, ailing, and bar stat, end of quote.

[00:01:42] Speaker 01:
And that's at page 807 of the appendix paragraph 22.

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So given that, why isn't that sufficient

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to conclude that the petition itself did allege that this particular limitation was disclosed by either or both of Alling and Barstadt?

[00:02:02] Speaker 03:
Because when you read it in context, it was Alling that was supposed to use teptronic as a suppressor for superfilling.

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And Barstadt just taught a suppressor, but it didn't teach which one.

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And Borstad certainly didn't teach Tetronic as a suppressor for superfilling.

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Those words are simply not in Borstad.

[00:02:20] Speaker 01:
OK, hold on, time out.

[00:02:21] Speaker 01:
There's two different questions here.

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One is like the APA-type challenge that you've made where you say it wasn't proper because what the board ultimately found was outside the scope of the petition.

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And that's what I'm focusing on.

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I think what your answer focused on

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was whether or not the board was correct in concluding anything about one of these particular references.

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But my position or my question to you was, why wasn't it sufficient for the board to consider both Alling and Barstead

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In the APA context, why wasn't it sufficient for that to be considered given that the petition expressly referenced both of them with regard to this particular element?

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I'll grant you it didn't go into as much detail and everything as it otherwise could have, but it did reference both of them expressly.

[00:03:06] Speaker 03:
Well, I think when you change theories, and we cite, I believe it was the M&K case, when they went from two prior references to anticipation, this court found that was a change in theory that

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that couldn't be done as a new argument.

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And here, I believe they've dropped, the board dropped Alling out and just went with Barstet.

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Because even though nowhere did they say Barstet alone teaches Tetronic as a suppressor for superfilling, the board made that finding here at pages 17, 21, and 27 of its final written decision.

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And so the board switched places, didn't need Alling anymore, found Barstet, taught Tetronic as a suppressor for superfilling.

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And so they've changed the theory.

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And so I believe that's support.

[00:03:48] Speaker 01:
You say they changed the theory.

[00:03:50] Speaker 03:
The board changed the theory.

[00:03:51] Speaker 01:
And whose theory did the board change?

[00:03:53] Speaker 03:
The board changed the petitions theory.

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The petitions theory originally was that Barstet taught a suppressor, but that Tetronic had to be used to find the suppressor for super filling.

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And if you look at the petition, for example, at page 17, appendix 106,

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It says, a person of audience feel in the art, using tectronic polymers as suppressors, as taught by Olling, would have arrived at the claim.

[00:04:19] Speaker 01:
But the institution decision itself, the very institution decision on page 323 and 324 said Barstead discloses surfactant-type suppressor agents and, quote, also discloses particularly suitable surfactants, including, I'm answering the word, including tectronics.

[00:04:40] Speaker 01:
So I guess I'm just not finding persuasive at this point, your argument that neither that the petition nor the board was approaching this from the position that this could be found in this reference.

[00:04:55] Speaker 03:
Okay.

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The statement you just quoted was that it found that Tronek a particularly suitable surfactant that does not say it's a suitable suppressor.

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It's certainly not a suppressor for superfilming.

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If I could, I'd like to.

[00:05:11] Speaker 04:
Are you trying to argue that the board didn't rely on Owling at all and the motivations combined?

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What I'm trying to say is that when you look at Morrissey, it's found that Owling does not teach Tetronic as a suppressor for superfilling.

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That was the reason that Tetronic was cited in the petition.

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Couldn't teach it explicitly.

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Apologies?

[00:05:29] Speaker 03:
Couldn't teach it explicitly.

[00:05:31] Speaker 03:
That's what it said, yes.

[00:05:33] Speaker 02:
What about implicitly?

[00:05:35] Speaker 03:
I don't believe so, because it also said Alling does not link the use of tectronic products as suppressors to a superfilling process, and fails to cure the deficiency of warranty.

[00:05:44] Speaker 04:
Didn't the board also say that when Alling talks about dimensions at the level of 200 nanometers, therefore it's necessarily suggesting that tectronic is appropriate to be used as a suppressor for superfilling?

[00:05:59] Speaker 03:
It did not say that.

[00:06:00] Speaker 03:
The 200 nanometer dimension in Alling was in the historical background where it talks about why are we using copper now instead of aluminum.

[00:06:09] Speaker 03:
Answer, because it's so narrow.

[00:06:10] Speaker 04:
Okay, so I'm misremembering.

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The board didn't point to the 200 nanometer dimension disclosure in Alling?

[00:06:18] Speaker 04:
It pointed... Go ahead, I'm sorry.

[00:06:21] Speaker 04:
Well, then what did it talk about when it... What was it trying to say with regards to 200 nanometers in Alling?

[00:06:27] Speaker 04:
it was it was saying that may have been the allen talks about two hundred nanometers and and two hundred and there's a something that is known where you can use the superfill correct instance right yes okay and allen is also talking about how tectronic can be a suppressor that's correct okay so then you agree when you put it all together knowing talks about

[00:06:52] Speaker 04:
doing using tectronic as a suppressor in when in interconnect dimensions of 200 nanometers, which we both just agreed the board indicated means that we're talking about super filling as being super.

[00:07:07] Speaker 03:
The plating, the plating bath and allying had two metals in it, copper and nickel.

[00:07:12] Speaker 04:
and the point there was that copper would be conducted and that would not have to try to get to what the board found i mean if you if you drag me all the way into the science you know and try to retry the case here uh... uh... it's not going to work only got ten minutes left i'm just trying to find out what the board said and it sounds like my memory of what the board said is correct no about now with the board found out

[00:07:36] Speaker 03:
is that Owling does not teach Tetronic as a suppressor for superfilling, because Owling had a two-component bath.

[00:07:42] Speaker 04:
So where did it say that?

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That we reject an argument that Owling discloses Tetronic as a suppressor for superfilling?

[00:07:54] Speaker 03:
Page 34 of the decision.

[00:07:58] Speaker 03:
Owling does not expressly teach that Tetronic products... What page?

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34?

[00:08:02] Speaker 03:
34.

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i think that's expressly but the point the board was trying to make is that implicitly that is what is going on in house and that is supported by substantial evidence it didn't say that because of page thirty five says thus allen does not link the use of tectronic process products as suppressors to a super filling out of the everything in this decision in context i think it's there at the first reading is that the board is saying it doesn't expressly say the very words that

[00:08:33] Speaker 04:
about tectronic being a suppressor in superfilling literally.

[00:08:38] Speaker 04:
It doesn't literally say that, but when you put it all together in context, that's what it suggests.

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That is, I think, the fairest reading.

[00:08:45] Speaker 03:
But when you look at Morrissey, Morrissey had the same spec.

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as Morstat.

[00:08:50] Speaker 04:
Well, that's going a little far, don't you think, to say it had the same spec?

[00:08:54] Speaker 04:
It didn't have the same spec.

[00:08:56] Speaker 04:
It didn't talk about a surfactant type suppressor.

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It didn't talk about grouping chloronic and tectonic together.

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It didn't talk about chloronic as being used as a suppressor, again, in 200 nanometers.

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So it's not the same specification.

[00:09:11] Speaker 04:
This court last time affirmed the board's finding on unpredictability that if two chemistries differed in any material respect... This court also found in the original decision that the board was being inconsistent and self-contradictory when it said that Barstead doesn't teach using tectonic as a super filler suppressor.

[00:09:35] Speaker 03:
In the context of an unpredictable art like here, OSI said that even where there was a teaching that allotinib was active against non-small cell lung cancer, that was the teaching.

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They looked at the underlying support for the statement and found it wasn't there.

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They found that therefore the teaching that allotinib

[00:09:58] Speaker 03:
was active and useful against non-small cell lung cancer.

[00:10:03] Speaker 03:
Didn't count, and therefore, it wasn't obvious to use erlatinib against non-small cell lung cancer because it was an unpredictable art.

[00:10:10] Speaker 03:
Just like here, this court has found very strongly that if two chemistries differ in any material respect in their properties and structures, you can't assume one will behave as the other.

[00:10:22] Speaker 03:
And in this case, you pointed out the pleuronic suppressor for superfilling

[00:10:27] Speaker 03:
in barstead the pleuronic does not have any nitrogen tetronic has an at diamond core of nitrogen bss experts said that nitrogen core would be expected barstead also teaches that tectronic is can be used in superfilling and that is what the board found and barstead does not think that tectronic can be used in superfilling it said pleuronic but it also said

[00:10:57] Speaker 04:
It identified tectronic and pleuronic as to be used in Barstead's invention, which is about superfilling, which is about bottom-up deposition.

[00:11:08] Speaker 03:
Barstead had conformal as well as superfilling.

[00:11:11] Speaker 04:
Right, but there's nothing in the reference that excludes the use of tectronic in the superfilling context.

[00:11:19] Speaker 04:
And that's what the board found, and we're not going to revisit that here at this level.

[00:11:26] Speaker 04:
You've lost that on below.

[00:11:28] Speaker 04:
There's substantial evidence to support that understanding of Barstead.

[00:11:32] Speaker 04:
And then Barstead groups together, Pluronic and Tectronic in one passage.

[00:11:38] Speaker 04:
And so again, the problem is it's reasonable for the board

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to look at the overall reference and talk about how it talks about the grouping of chloronic and tectonic, and by extension say, tectonic can also be used as a suppressor in superfilling.

[00:11:55] Speaker 03:
Barstat put tectonic together with chloronic as surfactants, not as suppressors.

[00:12:02] Speaker 02:
OSI... A surfactant-like suppressant, isn't that what they said?

[00:12:05] Speaker 03:
But every suppressor is a surfactant.

[00:12:07] Speaker 03:
A surfactant is a very broad term.

[00:12:09] Speaker 02:
It's like saying a round ball... When they say surfactant-like suppressor, isn't that a suppressor that has surfactant capacity?

[00:12:19] Speaker 03:
Every suppressor has surfactant capacity.

[00:12:22] Speaker 03:
I understand that.

[00:12:23] Speaker 03:
So to say that is like saying, I want a human being who's alive.

[00:12:26] Speaker 03:
All human beings are alive.

[00:12:28] Speaker 02:
On the question of what Howling teaches,

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And you said it didn't teach tectronic, calling copolymers as suppressors.

[00:12:38] Speaker 02:
What do we do at the top of page 21 in A21, the board's opinion?

[00:12:45] Speaker 02:
We agree with BASF that Alling identifies an industry demand for plating interconnects that require supervillain and discloses various plating bath additives that include tectronic copolymers as suppressors.

[00:12:59] Speaker 03:
It's inconsistent with their conclusion, pages 33 and 34, that that's not true.

[00:13:04] Speaker 03:
And the last time we were here, such an inconsistency caused a remand.

[00:13:08] Speaker 03:
Here, they've reached it.

[00:13:10] Speaker 02:
I don't think you're arguing that in your briefs, are you?

[00:13:12] Speaker 03:
I did, yes.

[00:13:13] Speaker 02:
That there's inconsistency on this very point between these two things?

[00:13:16] Speaker 03:
Yes.

[00:13:17] Speaker 02:
Where?

[00:13:19] Speaker 03:
I will get that for you in my rebuttal.

[00:13:21] Speaker 01:
OK, why don't we save the rest of your time for rebuttal?

[00:13:23] Speaker 03:
Thank you.

[00:13:25] Speaker 01:
Mr. Blythe?

[00:13:26] Speaker 00:
Yes, Your Honor.

[00:13:27] Speaker 00:
Please proceed.

[00:13:28] Speaker 00:
Good morning, and may it please the court.

[00:13:30] Speaker 00:
Enthone plainly disagrees with how the board resolved certain disputed questions of fact, underlying the board's obviousness decision.

[00:13:37] Speaker 02:
Why don't you start with the APA issue?

[00:13:41] Speaker 00:
Did we raise the argument that Barstead teaches to try?

[00:13:45] Speaker 02:
Your theory here of why there is invalidity.

[00:13:50] Speaker 02:
Yes, our theory, Your Honor, has been- Certainly, allying played a major, major role in the petition, right?

[00:13:56] Speaker 00:
We did.

[00:13:56] Speaker 00:
We did cite Alling a number of times.

[00:13:58] Speaker 00:
But if you look at the petition, the primary theory is that the barstead reference teaches tetronic copolymers as suppressors for superfilling.

[00:14:09] Speaker 02:
Now the barstead reference, as we discussed... Which would lead to say that barstead anticipates?

[00:14:14] Speaker 00:
Well, I don't know that we could say anticipation.

[00:14:18] Speaker 02:
What else do you need if that's the case?

[00:14:20] Speaker 00:
Well, the reason for that is there are certain technical descriptions or aspects of the Tetronic suppressor that are claimed for which we need the BASF catalog to confirm.

[00:14:30] Speaker 00:
So it couldn't be a straight anticipation argument, but you could look, Your Honor, just at Barstead to find

[00:14:36] Speaker 00:
that the prior art disclosed to try copolymers for use as a suppressor in superfilling, and that's what the board found.

[00:14:43] Speaker 04:
Right, but as soon as you get there, then the need for alling drops out.

[00:14:47] Speaker 00:
It could.

[00:14:49] Speaker 00:
You wouldn't have to get to Olling, but the board did rely on it.

[00:14:51] Speaker 02:
You need the catalog for the other issues?

[00:14:54] Speaker 00:
That's correct.

[00:14:55] Speaker 00:
You need the catalog for the technical aspects of a tectronic copolymer.

[00:14:59] Speaker 04:
Are you trying to say your petition was kind of like a belts and suspenders thing?

[00:15:03] Speaker 04:
Like it was relying on both barstead and Olling for the notion of using tectronic as a suppressor in a super filling context?

[00:15:13] Speaker 00:
Yes, that's correct.

[00:15:14] Speaker 00:
In fact, it cites both, as the court pointed out in the claim chart, we cite both Barstead and Olling for that proposition.

[00:15:21] Speaker 00:
Barstead uses this, a primary reference does not have to sort of spell out everything explicitly, take account of the knowledge and ingenuity of a person's binary skill in the art, but Barstead uses this surfactant type suppressor language to identify Teutronic as a suppressor.

[00:15:38] Speaker 00:
in the full context of the disclosure in Barstad.

[00:15:42] Speaker 00:
But in order to make sure that was clear, we also have the benefit of the Ohling reference.

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And the Ohling reference, as the court noted, deals with 200 nanometer interconnects, which would require superfilling.

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There was no dispute on that amongst the experts.

[00:15:56] Speaker 00:
And specifically says that tetronic copolymers are useful as a suppressor.

[00:16:03] Speaker 00:
And so if you start with that understanding,

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in awling.

[00:16:07] Speaker 00:
It says tetronic copolymers are useful or can be used as a suppressor.

[00:16:11] Speaker 00:
And then you read Barstead where it talks about surfactant type suppressors and identifies tetronic along with pleuronic.

[00:16:18] Speaker 00:
It's that sort of full context belt and suspenders approach that we presented.

[00:16:22] Speaker 02:
I'd rather deal with the board statement on page 35 that your colleague has pointed to.

[00:16:28] Speaker 00:
that Olling does not sufficiently link.

[00:16:30] Speaker 02:
No, the tectronic products doesn't link the use of tectronic products with suppressors and superfilling.

[00:16:37] Speaker 02:
Yes, so our argument to the board was that... Isn't that inconsistent with cleanness finding?

[00:16:43] Speaker 00:
No, there is no inconsistency.

[00:16:45] Speaker 00:
Olling... I believe in Tom's argument.

[00:16:47] Speaker 02:
One says Olling teaches this and the other says it doesn't.

[00:16:52] Speaker 00:
No, I think that the board

[00:16:54] Speaker 00:
had a consistent set of findings on OLLing.

[00:16:56] Speaker 00:
So the board's findings on OLLing were that OLLing discloses tetronic as a suppressor, and that OLLing relates to superfilling by virtue of its reference to 200 nanometers.

[00:17:05] Speaker 02:
But... What does it mean, which does not link the use of magic language?

[00:17:12] Speaker 00:
Right.

[00:17:12] Speaker 00:
The board found... We disagreed with this, argued to the contrary below, but the board did not go with us on this.

[00:17:17] Speaker 00:
But we argued that the reference to 200 nanometer interconnects required superfilling.

[00:17:22] Speaker 00:
And therefore, a person wondering if he's feeling the art would put that together and find that all of it.

[00:17:27] Speaker 02:
You're not helping me, because as I understand it, what your adversary colleague says is that at one point in the board opinion, they say ALLEN teaches the use of tectronic products as suppressors in superfilling.

[00:17:40] Speaker 02:
And then at the end, they say it doesn't teach that.

[00:17:43] Speaker 00:
I don't think that the board said in its opinion that Eiling teaches to tronics as suppressors in a super filling context.

[00:17:50] Speaker 00:
The board found three things on Eiling that are consistent.

[00:17:53] Speaker 00:
One.

[00:17:54] Speaker 02:
Look on page 21 in that sentence that I read.

[00:18:02] Speaker 02:
We agree with.

[00:18:03] Speaker 02:
You got that sentence?

[00:18:04] Speaker 02:
Do you have the board opinion in front of you?

[00:18:06] Speaker 00:
I do.

[00:18:07] Speaker 00:
And what sentence were you referring to, Your Honor?

[00:18:08] Speaker 02:
I'm referring to the unit you weren't listening.

[00:18:11] Speaker 02:
I read it.

[00:18:12] Speaker 02:
We agree with me that Alling identifies industry demand for plating and discloses plating additives that include tectronic as suppressors.

[00:18:23] Speaker 00:
Yes, that's correct.

[00:18:24] Speaker 00:
But that's not inconsistent with me.

[00:18:26] Speaker 02:
So you can include it as suppressors, but at the same time it doesn't link the use of tectronic suppressors as suppressors.

[00:18:34] Speaker 00:
As suppressors for superfilling.

[00:18:36] Speaker 00:
So that's why it's consistent.

[00:18:38] Speaker 02:
But it discloses them as copolymers as suppressors.

[00:18:42] Speaker 00:
Yes.

[00:18:43] Speaker 00:
Ohling discloses tetronics.

[00:18:45] Speaker 00:
There's no dispute that Ohling discloses tetronic copolymers as suppressors.

[00:18:50] Speaker 00:
And Ohling discusses the need for platelet nanometer interconnects, which relates to superfilling.

[00:18:55] Speaker 00:
But what the board did not find, contrary to our argument, but what the board did not find is that it connected.

[00:19:00] Speaker 02:
Ohling indirectly teaches that you use superfilling in at least the tiny

[00:19:06] Speaker 00:
That was our argument.

[00:19:08] Speaker 00:
But the board found there wasn't a sufficient link in OLLing between superfilling and Tetronic as a suppressor.

[00:19:16] Speaker 00:
But Barstead did have that link.

[00:19:18] Speaker 00:
And that's why the treatment of OLLing across the Barstead and Morrissey references is consistent.

[00:19:24] Speaker 00:
Because those same three principles that I reiterated are what the board found in OLLing.

[00:19:28] Speaker 02:
In the final decision, what use is the board making of OLLing in the combination?

[00:19:33] Speaker 02:
What the board is finding is that allene confirms that... You answer my question if you could.

[00:19:39] Speaker 02:
Yes.

[00:19:39] Speaker 02:
What role does allene play in the ultimate combination of barstead and allene?

[00:19:47] Speaker 00:
Yes, the board used allene to confirm that a tetronic copolymer is a suppressor.

[00:19:53] Speaker 00:
So in the barstead reference, the way that the barstead taught tetronic is a suppressor for superfilling is through this discussion of surfactant type suppressants.

[00:20:02] Speaker 00:
But there is no sort of sentence that actually says tetronic is a suppressor in barstead.

[00:20:08] Speaker 00:
Olling includes that sentence, clarifies barstead by saying tetronic is a suppressor.

[00:20:15] Speaker 00:
Barstead takes that a step further in its discussion of subtractive type suppressants and confirms that a tetronic and pleuronic can be used as a suppressor in a superfilling context.

[00:20:26] Speaker 00:
Because barstead, there's no dispute, is about superfilling.

[00:20:30] Speaker 00:
And so that's the connection.

[00:20:31] Speaker 00:
That's how awling was used, just as a clarifying reference, essentially, as to what's disclosed in bar stat.

[00:20:39] Speaker 02:
Well, once we get past the APA issue and have substantial evidence on what does bar stat teach, and assume that we agree with you and agree with the board that bar stat does teach what it needs to teach, then the case, to me, boils down to whether there's a reasonable expectation of success.

[00:20:56] Speaker 02:
And on that one, your adversaries are arguing, well, there's a difference between tectronic and pleuronic, and all the arguments that he's making.

[00:21:04] Speaker 02:
And it didn't seem to me that the board really came to grips with the distinction between nitrogen and oxygen, the two.

[00:21:13] Speaker 02:
Had they have a conclusory statement that one of skill and the art would have found, in fact, for reasonable expect.

[00:21:26] Speaker 02:
Why is the board's conclusory statement sufficient?

[00:21:32] Speaker 00:
So the board addressed both motivation combined and reasonable expectation of success on page 21 explicitly.

[00:21:39] Speaker 00:
But I think it's important, as Judge Chin noted, that you have to read the board's entire opinion in context.

[00:21:44] Speaker 00:
Because by the time you get to the board's discussion of reasonable expectation of success.

[00:21:48] Speaker 02:
What the board's relying on is your expert's testimony at page 813, I believe, famous paragraph 39.

[00:21:55] Speaker 00:
29, I believe.

[00:21:58] Speaker 00:
That's right.

[00:21:59] Speaker 02:
And what the board says... And 29 concludes by saying, Opposite would have used tectronic polymers as suppressor agents in superfilms.

[00:22:09] Speaker 00:
That's correct.

[00:22:11] Speaker 02:
He wouldn't have said used.

[00:22:12] Speaker 02:
I suppose he's trying to say would have

[00:22:14] Speaker 02:
had a reasonable expectation of success in doing so.

[00:22:17] Speaker 00:
That's correct.

[00:22:17] Speaker 00:
And if you look at the entire disclosure and discussion from the expert and the opinion from the board in its full context, that's made even more clear.

[00:22:25] Speaker 00:
So it's not just paragraph 29 of the expert's declaration.

[00:22:29] Speaker 02:
What the board says for... What else?

[00:22:31] Speaker 00:
Yeah, what the board says for reasonable expectation of success is that Barstead, the reason it was an expectation of success is because Barstead teaches tetronic polymers with superfilling.

[00:22:41] Speaker 00:
And so

[00:22:42] Speaker 00:
That discussion comes after the board's previous discussion, in its opinion, of why Barstead.

[00:22:47] Speaker 02:
And there are different tectronic products that meet the limitation of the claim.

[00:22:52] Speaker 00:
Right.

[00:22:53] Speaker 00:
And so there's a lengthy discussion about why Barstead taught that, why Barstead taught tectronic copolymers for superfilling.

[00:22:59] Speaker 00:
And as part of that discussion, there is further elaboration on the overlap and connection between tectronic and pleuronic.

[00:23:09] Speaker 00:
So like why a person where he's going there would expect them, have a reasonable expectation of success, that they would behave similarly.

[00:23:15] Speaker 00:
And that's on appendix page 14, which cites to the petitioner's briefing on remand pages 11 and 12, that's appendix pages 675 and 676, that cites additional portions of Dr. Pound's declaration.

[00:23:30] Speaker 00:
So it's also paragraph 28.

[00:23:32] Speaker 00:
Paris 33 through 35.

[00:23:34] Speaker 00:
That starts on appendix page 1217 and 1221 through 1223, where Dr. Pound, BASF's expert, talks about how both tetronic and fluoronic copolymers are block copolymers of ethylene oxide and propylene oxide.

[00:23:52] Speaker 00:
The two copolymers are marketed together.

[00:23:54] Speaker 00:
Tetronic and fluoronic are referenced together, combined in each of the

[00:23:59] Speaker 00:
prior art references.

[00:24:00] Speaker 00:
Dr. Pound discussed how the two, tetronic and ferronic, have similar properties.

[00:24:05] Speaker 00:
It would be expected to behave similarly for scientific reasons that he elaborates on.

[00:24:10] Speaker 00:
So the board, in its discussion of barstead, cites that discussion in BSS briefing, which then cites to Dr. Pound's testimony.

[00:24:19] Speaker 00:
And so there's more than substantial evidence in the record.

[00:24:22] Speaker 00:
the reasonable expectation of success.

[00:24:25] Speaker 00:
The only thing I would caution is that you do is just to note that you have to read the opinion in its full context.

[00:24:29] Speaker 02:
That's the evidence that's in your favor.

[00:24:31] Speaker 02:
It's not all one way street because the other side in the case has got some evidence that says that the tectronic material is less likely to have the non-stick characteristic that you want so when the glop goes down it doesn't stick on the wall.

[00:24:47] Speaker 00:
The board considered both sides.

[00:24:50] Speaker 02:
Why is it in this technology that the chosen suppressant, when you imagine the slot that you're trying to fill up and you want to make certain that it fills from the bottom up so there's no air pocket, why is it that the favorite suppressant has this capacity of sort of lubricating the wall so there's not a lot of stick

[00:25:16] Speaker 02:
on the wall as the stuff goes down, but it also doesn't lubricate the bottom, so it sticks well on the bottom.

[00:25:23] Speaker 02:
Why is it that the suppressant doesn't have the non-stick capacity throughout the entire trench?

[00:25:31] Speaker 00:
These compounds have been found to adhere to the sidewalls and not to the bottom.

[00:25:36] Speaker 00:
I think you also have to consider there are other additives that are at play also, a brightener or an accelerator, which are the same

[00:25:44] Speaker 00:
different terms for the same thing, and the Breitner accelerator I think syncs to the bottom as the general understanding of where the copper is being added and sort of helps accelerate the addition of copper at the bottom while it's generally being suppressed on the sidewalls and at the top is the general understanding of how that would work.

[00:26:03] Speaker 00:
I would say that the Board, further to your point, Judge Cleverger, did consider Antham's arguments on the technical issues, whether it's cationic or not, and rejected those arguments with a thorough and reasoned analysis.

[00:26:16] Speaker 00:
And that's all that's required.

[00:26:17] Speaker 00:
There's substantial evidence to support the Board's conclusion.

[00:26:20] Speaker 02:
Well, we don't know for your point on the opinion.

[00:26:23] Speaker 02:
I'm not going to say we call that an analysis.

[00:26:26] Speaker 02:
They recognize the argument on the other side, and then they reject it summarily.

[00:26:31] Speaker 00:
They do, citing to BASF's contrary arguments, I believe.

[00:26:34] Speaker 00:
So, for example, one of the arguments Enthon has made repeatedly is that a person who is going to be out would not have expected a cationic suppressor to work.

[00:26:42] Speaker 00:
A couple of points I want to make clear, because there was an issue raised in the reply brief that I think is incorrect, which is, first of all, the claims, Enthon's claims in the 992 patent don't claim a cationic suppressor.

[00:26:55] Speaker 00:
Enthon suggests in the reply brief, well, it would be cationic in an acid solution.

[00:27:00] Speaker 00:
Claims don't include an acid requirement either.

[00:27:03] Speaker 00:
So there's nothing to suggest a cation suppressor.

[00:27:05] Speaker 00:
And you have to consider reasonable expectation of success and what's actually claimed.

[00:27:09] Speaker 00:
And so there's no basis for extinction of the claims in that regard.

[00:27:16] Speaker 01:
Thank you, counsel.

[00:27:17] Speaker 01:
Thank you, your honor.

[00:27:18] Speaker 01:
Mr. Evans, you have some rebuttal left.

[00:27:21] Speaker 03:
Thank you, your honor.

[00:27:23] Speaker 03:
Judge Clevenger, you asked where we explained, are we asserted that there was a conflict in how Allen was treated.

[00:27:29] Speaker 03:
That's in our reply brief.

[00:27:31] Speaker 03:
Section 3 starts at page 13 and goes to page 15.

[00:27:33] Speaker 03:
Thank you.

[00:27:36] Speaker 03:
I just want to address a few points that just came up.

[00:27:41] Speaker 03:
This court affirmed the... I didn't remember it in the main brief, so thank you.

[00:27:46] Speaker 03:
This court affirmed the unpredictability standard when you have an unpredictable art, which they found this to be, confirmed this to be.

[00:27:54] Speaker 03:
To be, you have to look at structure and properties of the two chemistries.

[00:27:58] Speaker 03:
That did not happen here.

[00:27:59] Speaker 03:
Had they done that here, their expert, Dr. Pound, testified that the nitrogen core in the tetronic would be expected to adsorb more strongly to the bottom of that channel than fluoronic.

[00:28:15] Speaker 03:
Different structure.

[00:28:16] Speaker 03:
Nitrogen and tetronic, no nitrogen and pleuronic.

[00:28:19] Speaker 03:
Different outcome, stronger adhesion.

[00:28:22] Speaker 03:
Their scientist, Dr. Brockman, published a paper five years after the priority of this case where he looked at suppressors that contained nitrogen.

[00:28:32] Speaker 03:
He said those suppressors will be cationic, they will bind to that bottom floor of the

[00:28:37] Speaker 03:
of the substrate, they will not release, and you will get conformal plating.

[00:28:41] Speaker 03:
They won't work as a suppressor for superfilling.

[00:28:43] Speaker 03:
So five years after this patent was filed, BASF scientists were still publishing papers saying a tectonics-type molecule that has nitrogen in the suppressor will not work because it won't release.

[00:28:53] Speaker 04:
Assuming that the BASF person said that, and there's some question of that,

[00:29:00] Speaker 04:
Does a statement five years after the filing date matter?

[00:29:04] Speaker 04:
Aren't we supposed to look at obviousness from the time of the invention and the time of the invention as the filing date?

[00:29:09] Speaker 04:
So this is post-filing date information.

[00:29:14] Speaker 03:
Dr. Pounce said at the time, a posita would have expected it to stick more firmly than pleuronics.

[00:29:20] Speaker 03:
They were different structures that led to different properties.

[00:29:25] Speaker 03:
As far as it being cationic,

[00:29:30] Speaker 03:
The claim requires an electrolytic plating bath.

[00:29:34] Speaker 03:
You need the acid in order for it to be electrolytic to work.

[00:29:37] Speaker 03:
And their expert, Dr. Pound, testified that it would be cationic.

[00:29:41] Speaker 03:
The nitrogen would be cationic as used in the claim.

[00:29:45] Speaker 01:
OK, Mr. Evans, I think that our time has expired.

[00:29:47] Speaker 01:
And we've gone beyond it.

[00:29:48] Speaker 01:
I thank both counsel, but this case is taken under submission.

[00:29:51] Speaker 03:
Thank you, Your Honor.