[00:00:09] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:00:11] Speaker 02:
Maximilian Gianelli on behalf of UPLNA.

[00:00:14] Speaker 02:
In the decision on appeal, the Board made two errors.

[00:00:17] Speaker 02:
First, the Board erred in its construction of the claim term fillers.

[00:00:21] Speaker 02:
Second, and it's an obvious misanalysis... Ms.

[00:00:24] Speaker 00:
Gianelli, let me ask a few questions to sort of get the lay of the land here.

[00:00:28] Speaker 00:
Is this an expired patent?

[00:00:30] Speaker 02:
I believe it either has expired or will expire shortly.

[00:00:34] Speaker 00:
I think the date is 2022, I think.

[00:00:41] Speaker 00:
Right, it would expire.

[00:00:43] Speaker 00:
And is there other litigation going on at Jamila?

[00:00:48] Speaker 02:
Yes, there is a district court litigation that's been staged pending the resolution of the IPR.

[00:00:53] Speaker 00:
Right, have other parties been sued?

[00:00:56] Speaker 02:
No, Your Honor.

[00:00:57] Speaker 00:
Now this is a strange patent.

[00:01:01] Speaker 00:
It's a consisting of patents excluding other unstated components and yet every example has both a binder and a filler and it looks like claim one doesn't include any of the examples.

[00:01:24] Speaker 00:
That's a very strange patent.

[00:01:27] Speaker 00:
That's basically true, isn't it?

[00:01:29] Speaker 02:
It is, Your Honor.

[00:01:30] Speaker 02:
Claim 1 does have support.

[00:01:31] Speaker 02:
Claim 1 was an originally filed claim with the non-provisional application that issued as a 685 patent and also in the claims that were submitted with a preliminary amendment in the priority non-provisional application.

[00:01:44] Speaker 00:
Okay, but of course, entrenchment isn't an issue here.

[00:01:47] Speaker 00:
we're talking about the validity and doesn't Missalbrook disclose fillers and otherwise everything else that's in the claim including asafate and so why isn't that virtually a 102 reference?

[00:02:07] Speaker 02:
The issue with Missalbrook is that

[00:02:11] Speaker 02:
is that the exemplary fillers, apart from one exception, are binding agents.

[00:02:18] Speaker 02:
And so that the issue is not whether or not you would include a filler.

[00:02:21] Speaker 00:
But they are stated to be fillers in Mistletoe Brook.

[00:02:23] Speaker 02:
I'm sorry, Your Honor?

[00:02:24] Speaker 00:
They are stated in Mistletoe Brook to be fillers.

[00:02:27] Speaker 02:
Yes, Your Honor, but it's undisputed in this case on appeal that when you put them in an acetate granule, they function as binders.

[00:02:34] Speaker 02:
And the plain and ordinary meaning of the term fillers is a non-functional ingredient that's just added to make 100%.

[00:02:39] Speaker 02:
It's not an umbrella term to encompass all the other ingredients in the claim.

[00:02:44] Speaker 03:
Do you disagree with the board's fact-finding that there's at least one non-binding filler disclosed in Misselbrook?

[00:02:52] Speaker 03:
That's the inorganic Walder soluble salts.

[00:02:55] Speaker 02:
No, Your Honor, we do not dispute that there's no evidence, at least in this record, that inorganic water-soluble salts are likely non-binding, non-functional.

[00:03:02] Speaker 02:
They would be fillers.

[00:03:04] Speaker 02:
So you can have those as fillers.

[00:03:06] Speaker 02:
The key issue on appeal is whether or not a person of ordinary skill and the art had any scientific rationale to prepare an asphate granule that did not include a binding agent.

[00:03:15] Speaker 02:
And neither the board nor TIDE ever articulated any rationale to exclude, to not include, to not have a binding ingredient

[00:03:23] Speaker 02:
in an acetate granule.

[00:03:25] Speaker 02:
The prior art taught, in fact, that such agents were required, and that's in Chan, where Chan says that when you're preparing an acetate granule, a minimum amount of a binding agent is required, and that's specific to acetate.

[00:03:38] Speaker 02:
We also have Knowles, that basically it's a textbook on agrochemicals, and it assumes that all granules must have a binding agent.

[00:03:45] Speaker 03:
Can I try to say what I think your argument is?

[00:03:47] Speaker 03:
Your argument is that acetate is not described in one of the examples in Mr. Brook.

[00:03:51] Speaker 03:
Now, you agree that Miss Elbrooke has a non-binding filler, and it has the other elements in the claim, including not specifying a binder.

[00:04:01] Speaker 03:
But your view is nonetheless, because the reference teaches these things in disparate parts, there has to be some sort of motivation to have asaphate without a binder.

[00:04:13] Speaker 02:
Yes, Your Honor, that you would need to pick and choose from a lot of different things.

[00:04:16] Speaker 02:
Mistlebrook's disclosures are quite broad.

[00:04:18] Speaker 02:
You could have any water-soluble pesticide.

[00:04:21] Speaker 02:
You could even have a wettable powder.

[00:04:23] Speaker 02:
So there's a lot of picking and choosing to get at the granule that is in claim one.

[00:04:28] Speaker 02:
And Mistlebrook doesn't precisely disclose the amount of a stabilizer, which may be why it was not asserted as a 102 reference.

[00:04:39] Speaker 02:
Sorry, Your Honor.

[00:04:40] Speaker 03:
No, I have no further questions on that.

[00:04:43] Speaker 02:
So if the only prior art reference that a person of ordinary skill in the art was aware of was Mistlebrook, then maybe with those blinders on, one of ordinary skill in the art would think that it would be obvious to make the granule of claim one to use these inorganic salts.

[00:04:59] Speaker 02:
But when read in the context of the prior art as a whole, there was very strong motivation to include a binding agent in an asphate granule and no motivation to exclude one.

[00:05:13] Speaker 02:
I'd like to, if I may, address the board's error on claim construction.

[00:05:17] Speaker 02:
So the board erred when it determined that anything, including a binding agent, can be a filler in the context of the 685 patent.

[00:05:23] Speaker 02:
So binding agents assist in the binding of articles together in a formulation.

[00:05:28] Speaker 02:
The plain and ordinary meaning for fillers in the context of the 685 patent is exactly as one would expect.

[00:05:33] Speaker 02:
It's a non-functional ingredient to make 100%.

[00:05:37] Speaker 02:
This plain meaning is reflected in the 685 patent examples and in its identification of exemplary fillers.

[00:05:45] Speaker 02:
First, the patent examples consistently list fillers and binding agents as separate and distinct components of the granule.

[00:05:53] Speaker 02:
For example, in example one,

[00:05:56] Speaker 02:
The granule includes 97% asifate, 0.1% binding agent, and other functional ingredients, and 0.24% filler.

[00:06:06] Speaker 02:
So the amounts of the functional ingredients can be optimized for the properties of the granule.

[00:06:10] Speaker 02:
The filler, by contrast, is simply there to make the final concentration of asifate exactly 97%.

[00:06:19] Speaker 02:
Now, the patent teaches adding these fillers to make 100%, not adjusting the amount of a binding agent to make 100%.

[00:06:25] Speaker 03:
If we agree with your claim construction, you still have to show that the board entered in itself, right?

[00:06:37] Speaker 03:
And that is specifically, as I see it, the board didn't rely on obviousness with respect to the non-binding filler.

[00:06:45] Speaker 03:
and instead says, Misselbrook teaches a non-binding filler, so I don't need to rely on obviousness for that.

[00:06:53] Speaker 02:
In our view, that was error by the board.

[00:06:55] Speaker 02:
The board seemed to be looking for mere disclosure rather than a rationale for combining all of these things to arrive at the granular claim one.

[00:07:01] Speaker 02:
Is it?

[00:07:05] Speaker 03:
Where do you draw the line between obviousness and anticipation?

[00:07:09] Speaker 03:
For example, we've got kind of metal in different cases that say if a person of ordinary skill in the art can immediately envisage, you know, the combination of the different elements, then that would be

[00:07:21] Speaker 03:
appropriate for anticipation.

[00:07:24] Speaker 03:
I realize this is obvious because of the stabilizer, but setting that aside, you know, we're looking at whether a reference teaches, you know, scope and content of the prior art and the gram factors.

[00:07:35] Speaker 03:
Why couldn't the board just rely on the scope and content of this prior art reference?

[00:07:41] Speaker 02:
Thank you, Your Honor.

[00:07:42] Speaker 02:
The issue that what Mistletoe teaches is that you can include these as fillers.

[00:07:47] Speaker 02:
And we actually didn't dispute that.

[00:07:49] Speaker 02:
It would have been obvious to put fillers in a granule.

[00:07:52] Speaker 02:
The key issue that we disputed was whether or not it was obvious to prepare an asphate granule without a binding agent.

[00:07:58] Speaker 02:
So even if you have those inorganic salt fillers, you still need a rationale to not also have a binding agent.

[00:08:04] Speaker 02:
Misslebrook doesn't provide any reason for disregarding the teaching of Chan, that in the ACIPATE granule, a minimum amount of a binding agent is required, or any reason to disregard NOLS.

[00:08:15] Speaker 02:
That taught that it was just generally expected that granules contained binding agents, and you just needed to figure out how much to include, not whether to include one at all.

[00:08:23] Speaker 03:
I don't recall, but I assume you did have expert testimony on this, and there was contrary expert testimony on this point?

[00:08:32] Speaker 02:
Your Honor, I believe that it was undisputed and all experts agreed that there was a motivation to add a binding agent to an acid-fake granule.

[00:08:41] Speaker 02:
So that part was undisputed.

[00:08:42] Speaker 02:
Expert testimony on both sides said that a person of ordinary skill in the art would want to add sugars to an acid-fake granule specifically because they hold the particle together.

[00:08:53] Speaker 02:
Now why is that?

[00:08:54] Speaker 02:
It's because Tide actually asserted the same prior art against claim one, no binding agent,

[00:08:59] Speaker 02:
anchoring seven that required a binding agent.

[00:09:02] Speaker 02:
So Tide's expert and UPLNA's expert, everybody agrees.

[00:09:05] Speaker 02:
Yeah, you would have included a binding agent.

[00:09:07] Speaker 02:
There was a strong motivation to do so.

[00:09:09] Speaker 02:
And nobody ever articulated a rationale to not do so.

[00:09:13] Speaker 02:
Not the board, not Tide.

[00:09:21] Speaker 02:
So putting Misslebrook in context, Misslebrook is in all of the disclosures in Misslebrook where a granule is being prepared.

[00:09:29] Speaker 02:
binding agents are used.

[00:09:31] Speaker 02:
Those are lactose, sucrose, and glucose, and it's undisputed that those ingredients are binding agents.

[00:09:39] Speaker 02:
They're stated to be fillers because Mistlebrook provides a specialized definition of fillers.

[00:09:43] Speaker 02:
Mistlebrook does not apply the plain and ordinary meaning of fillers.

[00:09:46] Speaker 02:
Mistlebrook, in fact, defines fillers at the top of column six.

[00:09:51] Speaker 02:
Mistlebrook's disclosures are focused on the solubility of the ingredients, so they provide a definition, an expressed lexicographical definition, where water-soluble fillers means, basically, any agent that's soluble or dispersable.

[00:10:03] Speaker 02:
And that's at the top of column six in Mistlebrook.

[00:10:07] Speaker 02:
So that is not the plain and ordinary meaning of fillers.

[00:10:10] Speaker 02:
In addition to the 685 patent, Maier reflects the plain and ordinary meaning of fillers.

[00:10:15] Speaker 02:
Where Maier identifies conventionally used fillers, and it's a long list, very similar to the ingredients in the 685 patent of non-functional ingredients like clay and kaolin.

[00:10:29] Speaker 02:
And that is the plain and ordinary meaning of fillers.

[00:10:32] Speaker 00:
Of course, what a reference teaches is a question of fact.

[00:10:35] Speaker 00:
and the board decides that, and we owe deference to that.

[00:10:42] Speaker 00:
So you've got a hill to climb.

[00:10:44] Speaker 02:
Yes, Your Honor.

[00:10:45] Speaker 02:
The question of facts that I think, and I think here the board erred because it really was looking at whether the board, on page 30, the board's error is essentially that it would have been obvious to use both non-binding and binding fillers

[00:11:03] Speaker 02:
So they're really trying to address the question of, was it obvious to include killers?

[00:11:08] Speaker 02:
Without ever getting to the ultimate question of, was there a reason to not include a binding agent?

[00:11:13] Speaker 02:
Was there a reason to disregard the teachings of the prior art that binding agents for acetic granules were required and very important for non-dustiness and were for safety?

[00:11:25] Speaker 00:
No unexpected results were asserted.

[00:11:29] Speaker 00:
Is that right?

[00:11:31] Speaker 02:
That's correct, Your Honor.

[00:11:33] Speaker 02:
We did explain that the world of pesticide formulation is somewhat unpredictable, which had particularly proven the case for asafate.

[00:11:41] Speaker 02:
Asafate, the molecule, was registered back in the 70s, and people had very difficult times developing granules with high concentrations of asafate, but we did not argue unexpected results.

[00:11:52] Speaker 02:
And I'd just like to make one last point, that if you're adding a binding agent in an amount to make 100%, you're adding a binding agent to make 100%.

[00:11:59] Speaker 02:
It doesn't somehow convert the binding agent into a filler.

[00:12:02] Speaker 02:
those molecules, the sugars, they still have binding properties.

[00:12:06] Speaker 00:
But it serves the purpose of a filler, if it makes up to 100%.

[00:12:11] Speaker 02:
But it doesn't fit the plain and ordinary meaning of the term fillers.

[00:12:16] Speaker 02:
Thank you.

[00:12:17] Speaker 02:
I'll reserve the rest of my time for a battle.

[00:12:19] Speaker 02:
Thank you, Counselor.

[00:12:22] Speaker 02:
Ms.

[00:12:22] Speaker 01:
Benedict.

[00:12:23] Speaker 04:
Good morning, Your Honors.

[00:12:25] Speaker 04:
May it please the Court, I'm Bailey Benedict on behalf of Appellee Tide International.

[00:12:31] Speaker 04:
Before I start, Your Honors asked my colleague a couple of questions that I wanted to provide Tide's perspective on.

[00:12:40] Speaker 04:
The first one, fairly simple, was the expiration date of the patent.

[00:12:45] Speaker 04:
Yes, the patent has expired at this point in time.

[00:12:48] Speaker 04:
The second question that was asked was, why isn't Miss LeBroca 102 reference?

[00:12:55] Speaker 04:
The answer to that is that Misselbrook did not disclose the specific concentration ranges, for example, for the limitation of a stabilizer.

[00:13:08] Speaker 04:
And so CN588 was combined because it disclosed specific ranges and examples of stabilizers.

[00:13:14] Speaker 04:
that would work to bolster that.

[00:13:17] Speaker 04:
JP-902 was specifically added to bolster Missalbrook's disclosure of high-concentration aciphate granules.

[00:13:27] Speaker 04:
JP-902 contains several working examples of high-concentration aciphate granules.

[00:13:33] Speaker 04:
But those are not the issue on appeal today.

[00:13:38] Speaker 04:
The issue of whether there is a stabilizer, the issue of whether a person who already has skill in the art could make a high concentration acetate granule, that's not on appeal today.

[00:13:48] Speaker 04:
So for the purposes of this appeal, it almost is like Mistelbrook acts as a 102 reference.

[00:13:58] Speaker 04:
There were a few other points I wanted to address.

[00:14:01] Speaker 04:
The first was that the motivation to add a binding agent was undisputed.

[00:14:08] Speaker 04:
And that is to a certain extent correct The plain and ordinary meaning of fillers is any substance that is added to To a formulation to make 100% and the board the board Laid this construction out I believe at page Yes, 29

[00:14:37] Speaker 04:
It's just an ingredient added to make 100%.

[00:14:41] Speaker 04:
There is no requirement that it be non-functional.

[00:14:46] Speaker 04:
The requirement is that it is an ingredient that a person of ordinary skill in the art would understand is added to a formulation to reach 100%.

[00:14:55] Speaker 04:
That can include some known binding agents.

[00:15:01] Speaker 04:
Those binding agents are often also added just to make up the difference.

[00:15:07] Speaker 04:
my colleague's statement of what the function, the purpose of a filler is, just to make 100 percent so you can keep the asphate percentage at the same level, was correct.

[00:15:20] Speaker 04:
The distinction they're trying to draw that's incorrect is that fillers must be non-functional.

[00:15:28] Speaker 04:
And in fact, in drawing that distinction, council pointed to the definition of

[00:15:35] Speaker 04:
fillers in Misslebrook and that is at Misslebrook column 6, lines 1 through 13.

[00:15:47] Speaker 04:
And she said that Misslebrook has special lexicography.

[00:15:51] Speaker 04:
to explain that a filler really is focused on the water-soluble nature of the filler.

[00:15:57] Speaker 04:
But that's actually not true.

[00:15:59] Speaker 04:
The term that Misselbrook is describing there is the term water-soluble filler.

[00:16:06] Speaker 04:
And in the definition, Misselbrook discloses examples of things that are water-soluble.

[00:16:11] Speaker 04:
But Mistlebrook was not using special lexicography to say that all fillers must be water soluble, merely that the fillers that Mistlebrook was concerned with were water soluble.

[00:16:24] Speaker 04:
Now, Mistlebrook, it is worth mentioning.

[00:16:28] Speaker 04:
Mistlebrook at no point mentions the binding properties of these

[00:16:36] Speaker 04:
Preferred fillers lactose etc.

[00:16:38] Speaker 04:
The fillers that are also binding agents Misslebrook does discuss fairly briefly, but it does discuss the importance of of making granules that are not dusty

[00:16:51] Speaker 04:
But Mistelbrook never says, and we like the use of lactose as a filler because lactose is a binding agent.

[00:16:58] Speaker 04:
Instead, what Mistelbrook discusses is the advantages of lactose because it is easy to handle, because it is

[00:17:10] Speaker 04:
Dissolvable in water to form a clear solution because it is biologically derived and so the it has less environmental impact Understand that some of those Characteristics you just described would also apply to the inorganic water soluble salts as well.

[00:17:29] Speaker 04:
That is correct.

[00:17:30] Speaker 04:
Yes Inorganic water soluble salts typically would dissolve to form a clear solution They would be easy to measure by volume

[00:17:40] Speaker 04:
I can't speak to the environmental impact of them.

[00:17:43] Speaker 04:
I don't believe we have anything in the record on that one way or the other but But yes, that is correct that inorganic water soluble salts would also meet those qualities of fillers that Missalbrook discussed as important It is not the binding properties of the fillers that Missalbrook ever discusses as important and that undercuts the

[00:18:04] Speaker 04:
that undercuts UPL's argument that the binding nature of the preferred fillers is a key element of Missalbrook's disclosure.

[00:18:14] Speaker 03:
How do you respond to the argument that, you know, I think the argument is that given the evidence and the argument presented to show the obviousness of Claim 7,

[00:18:24] Speaker 03:
specifically ensuring that it would have been obvious to add a binding agent to asaphate, that then for this rejection or this proposed ground that applies to a different claim that is not, in their view, not supposed to have a binding agent, how do you respond to that?

[00:18:42] Speaker 03:
That the board had to then present or the petitioner had to present evidence of obviousness to not have a binding agent.

[00:18:49] Speaker 04:
I would disagree that you need evidence to exclude a binding agent and looking at the prior art and looking at the 685 patent, for example, shows that you don't actually need specific evidence to exclude a binding agent.

[00:19:07] Speaker 04:
There is testimony, there's nothing conflicting about the position that in some circumstances you would be motivated to include a binding agent and in some circumstances you would not be motivated.

[00:19:18] Speaker 04:
to include a binding agent.

[00:19:21] Speaker 04:
And there is testimony.

[00:19:22] Speaker 04:
What is that explanation?

[00:19:24] Speaker 04:
Yes, there is testimony from Mr. Geigel that the board relied on in its decision that a person of ordinary skill would be motivated to optimize the granules and would be motivated to include ingredients in order to optimize them and at the concentrations needed.

[00:19:45] Speaker 04:
And so if a granule

[00:19:48] Speaker 04:
that you may did not have adequate binding properties, then you would be motivated to add a binding agent to that granule.

[00:19:57] Speaker 04:
It's part of the process of pesticide formulation.

[00:20:02] Speaker 04:
And Mr. Geigel also testified that that process, that formulating granules, was known in the art.

[00:20:08] Speaker 04:
And that, again, was relied on by the board in its opinion.

[00:20:14] Speaker 04:
And so it is not necessary, the two situations are not mutually exclusive.

[00:20:22] Speaker 04:
You can be motivated both to make a formulation without a binder and you can be motivated to include one if one is needed.

[00:20:32] Speaker 04:
the process a person of ordinary skill would undergo in formulating a granule.

[00:20:36] Speaker 04:
Dr. Rockstraw also testified to that effect, that he would agree that a person of ordinary skill in the art would not be motivated to include a binding agent if the granule had good enough binding properties without a binding agent.

[00:20:52] Speaker 01:
And I don't.

[00:20:54] Speaker 01:
I find the definition of the word filler to be difficult, and I don't

[00:21:01] Speaker 01:
I struggle a little bit because both of you, patent owner and petitioner, said it should be given its plain and ordinary meaning, but then of course there's a dispute, apparently, over what that plain and ordinary meaning was.

[00:21:12] Speaker 01:
And neither of you introduced, it seems, expert testimony, for example, that explains whether it does, in its plain and ordinary context, include a binding agent or not.

[00:21:20] Speaker 01:
Am I missing something there?

[00:21:22] Speaker 04:
With respect, your honor, you are.

[00:21:25] Speaker 04:
Ty did include expert testimony explaining that the plain and ordinary meaning of filler would include known binding agents.

[00:21:34] Speaker 04:
And that is in... But the board didn't rely on that.

[00:21:38] Speaker 04:
The board did rely on that, your honor.

[00:21:40] Speaker 01:
Is that Mr. Gigler?

[00:21:41] Speaker 04:
Mr. Gigler, yes, your honor.

[00:21:43] Speaker 04:
It's Mr. Gigler's opinion at...

[00:21:45] Speaker 04:
The board relied on it twice actually.

[00:21:48] Speaker 04:
Once on I think page 28 and once on page 29 and it's Geigel paragraph 95.

[00:21:53] Speaker 01:
You introduced evidence that the claim in ordinary meaning of filler includes things that would be known to have binding properties.

[00:22:03] Speaker 01:
The board relied on that and we have to

[00:22:06] Speaker 01:
give that potential out of its deference, correct?

[00:22:09] Speaker 04:
That is correct, Your Honor.

[00:22:10] Speaker 01:
What do you do with the fact that the patent seems to distinguish between binding agents on the one hand and fillers on the other?

[00:22:18] Speaker 01:
I'm not suggesting it rises to the level of some sort of disclaimer of this plain, ordinary meaning, but it does seem to do so.

[00:22:25] Speaker 01:
In column two in particular, it lists the things that are included, and it has a binding agent, and then it has separately fillers.

[00:22:34] Speaker 04:
Yes, Your Honor.

[00:22:35] Speaker 04:
There is a difference between a binding agent and a filler.

[00:22:39] Speaker 04:
A filler is something that a person of ordinary skill in the art would add to dilute the pesticide, to keep it at whatever concentration of asifate you wanted.

[00:22:49] Speaker 04:
And a binding agent is something that has binding properties for the granule.

[00:22:54] Speaker 04:
Now, some binding agents can be used as fillers.

[00:22:57] Speaker 04:
A person of ordinary skill in the art would

[00:23:00] Speaker 04:
use some binding agents as a filler.

[00:23:04] Speaker 04:
There is nothing at all in this that reads out the limitation of binding.

[00:23:11] Speaker 03:
Do you have evidence?

[00:23:12] Speaker 03:
Just think about, where's the intrinsic evidence for what you're saying?

[00:23:16] Speaker 03:
Where in the record are you relying instead of just telling us your view?

[00:23:19] Speaker 03:
If you could cite the record evidence, that would be a lot more persuasive.

[00:23:23] Speaker 04:
Yes, Your Honor.

[00:23:24] Speaker 04:
I apologize.

[00:23:24] Speaker 04:
I'm still on.

[00:23:28] Speaker 03:
Appendix 765, which is Mr. Geigel's declaration at paragraph 95, where he... How do you respond, though, to the point made by Judge Moore about the specifications seemingly distinguishing binding agents from fillers?

[00:23:49] Speaker 03:
Response... Is it relying on expert testimony?

[00:23:53] Speaker 04:
It does.

[00:23:54] Speaker 04:
So Mr. Geigel's testimony on this point that some binding agents would be considered fillers is the evidence that is in the record about whether or not it is appropriate or whether or not fillers and binding agents are different.

[00:24:09] Speaker 04:
I will note that the 685 patent also discloses or also requires a stabilizer in claim one and in claim seven, just as they require a filler in claim one and claim seven.

[00:24:23] Speaker 04:
And the definition, the construction of a stabilizer, which was actually originally proposed by UPL and the district court, is any agent that promotes the chemical or physical stability of a granule.

[00:24:36] Speaker 04:
And so by UPL's own definition, all binding agents are stabilizers.

[00:24:41] Speaker 04:
Because all binding agents promote the stability of a granule.

[00:24:45] Speaker 04:
They promote the ability of a granule to stay together.

[00:24:48] Speaker 04:
But that's not a point at issue in this appeal.

[00:24:53] Speaker 04:
But it is further evidence in support of the fact that there is nothing contradictory about listing filler and binding agent and stabilizer and wetting agent all differently.

[00:25:06] Speaker 03:
There are ingredients.

[00:25:07] Speaker 03:
Your point is that even if there's some overlap

[00:25:13] Speaker 03:
in what's a binding agent and a filler.

[00:25:16] Speaker 03:
So long as you're not double counting to reach your 100%, you think that it's OK if there's some overlap.

[00:25:22] Speaker 03:
Do you understand what I'm saying?

[00:25:24] Speaker 04:
Yes.

[00:25:24] Speaker 04:
And you said it better than I did.

[00:25:26] Speaker 04:
Yes, Your Honor.

[00:25:26] Speaker 04:
That is what we are saying.

[00:25:28] Speaker 04:
And that is, in fact, also what the board said.

[00:25:31] Speaker 01:
Do you think that you advocated for a motivation to combine

[00:25:43] Speaker 01:
water-soluble filler that's the salt, the inorganic salt, I don't know if I'm saying it right, but it's disclosed in Misslebrook with the rest of the claim elements, or did you argue there was a motivation to combine, or was your argument that a motivation to combine was unnecessary?

[00:26:03] Speaker 04:
So specific to the issue of combining the water-soluble salt, I believe the argument would be that the motivation to combine is not necessary.

[00:26:15] Speaker 04:
As I mentioned earlier, Mistletoe standing alone by itself discloses

[00:26:21] Speaker 04:
Discloses all of the five claimed ingredients it discloses that an appropriate filler is an inorganic water-soluble salt There is nothing that we need to be motivated to combine there.

[00:26:33] Speaker 01:
It is missile brook being combined with itself This is your so so please help me understand it's

[00:26:43] Speaker 01:
Is the water soluble salt discussed in a separate embodiment from the embodiment that really does contain all of the other elements but for the percentage of stabilizer?

[00:26:57] Speaker 04:
No, Your Honor.

[00:26:58] Speaker 04:
It is not discussed in a separate embodiment.

[00:27:01] Speaker 04:
The embodiment that discusses all of the elements, including stabilizer, simply says that, let's see, I'm looking at

[00:27:12] Speaker 04:
appendix 815 missile brook at 261 through 65 and similarly at 653 through 57 both places State that in addition to the pesticide the water-soluble filler the wetting surfactant Right now I'm at 653 through 57

[00:27:36] Speaker 01:
is at page 815 of the appendix.

[00:27:38] Speaker 04:
Yes, I apologize.

[00:27:40] Speaker 04:
It's appendix page 817, column 6, lines 53 through 57.

[00:27:48] Speaker 04:
In addition to the pesticide, the water-soluble filler, the wetting surfactant, dispersing surfactant, and de-foaming agent, the instant pesticidal compositions may also appropriately contain stabilizer synergists, coloring agents, et cetera.

[00:28:01] Speaker 04:
There is a similar disclosure at

[00:28:04] Speaker 04:
page 815, which is column 2, line 61 through 65, that lists the water soluble pesticide, water soluble filler, wetting surfactant, dispersing surfactant, and an optional de-foaming agent.

[00:28:21] Speaker 01:
Okay, thank you, Ms.

[00:28:22] Speaker 01:
Benedict.

[00:28:23] Speaker 01:
We've exceeded your time.

[00:28:24] Speaker 01:
Ms.

[00:28:25] Speaker 01:
Gianelli, you have two bubble times.

[00:28:29] Speaker 02:
I just have a couple of points to make.

[00:28:32] Speaker 02:
First is that there is testimony in the record on the plain and ordinary meaning of fillers in the context of the 685 patent.

[00:28:39] Speaker 02:
And that was from Dr. Rockstra's deposition and the joint appendix at page 1437, where he explains that a filler in the context of the 685 patent, quote, has no function in the performance of your chemical system if the material offers binding capabilities

[00:28:57] Speaker 02:
It is a binder not a filler.

[00:28:59] Speaker 01:
The problem is you're pointing to alternative evidence, but the board on pages 29 to 30 adopted a construction of filler which is based upon Mr. Geigel's testimony that I have to give substantial evidence deference to.

[00:29:14] Speaker 01:
So you may have had a different expert that said the opposite.

[00:29:18] Speaker 01:
But the board credited this expert over your expert.

[00:29:20] Speaker 01:
I don't know why.

[00:29:21] Speaker 01:
They don't tell me why.

[00:29:22] Speaker 01:
But I have to give substantial evidence deference to that.

[00:29:25] Speaker 02:
But the ultimate question on what a filler is in the context of a 685 patent, I believe, is still a matter of law.

[00:29:32] Speaker 02:
And the construction that was adopted by the board and advanced by times.

[00:29:36] Speaker 00:
What a filler is is a question of law?

[00:29:38] Speaker 00:
I'm sorry?

[00:29:39] Speaker 00:
What a filler is is a question of law?

[00:29:42] Speaker 02:
It's a matter of the ultimate conclusion is a claim construction, Your Honor, correct?

[00:29:48] Speaker 02:
So there are underlying facts that the ultimate question on the interpretation in the context of the 685 patent is a question of law.

[00:29:59] Speaker 02:
And the construction adopted by the board essentially erases the word fillers and just says anything to make 100%.

[00:30:06] Speaker 02:
And so that itself is basically taking that word out of the claim, and it's untethered to the 685 patent specification.

[00:30:17] Speaker 02:
So to conclude, if you add a binding agent to make 100%, it is still a binding agent and it is still an ingredient excluded from claim one.

[00:30:26] Speaker 01:
Thank you.