[00:00:00] Speaker 01:
The next case is Leiton Enterprise versus AgroFresh Solutions, 2022-22-69.

[00:00:07] Speaker 01:
Dr. Crampy.

[00:00:08] Speaker 00:
Good morning, Your Honors, and may it please the Court, Casey Crane, on behalf of Appellate Leiton Enterprises.

[00:00:21] Speaker 00:
This case rests on a fundamental error that infected the Board's Obviousness Analysis.

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The Board feared

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when it thought that the kind of effectiveness or release of 1cp gas was not recited in the claim, that it was therefore not relevant to the obviousness analysis.

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But as this court's precedent shows, that's not the case.

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The board has to look at the considerations that skilled artisans would have had and what would have motivated them.

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This case is very similar to the facts in Arquette Cat and Polaris, where the court found that safety concerns

[00:00:57] Speaker 00:
were relevant to the motivation of the mind, even though the safety concerns were not a recited element of the claim.

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Counsel, there are two references here, and they're both in the same field.

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And it looks that there's simply a substitution of one item, methyl cycle

[00:01:22] Speaker 01:
propane for STSM for the same purpose.

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So why wasn't this obvious?

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So this is not the case of a mere substitution, Your Honor.

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We can start with ground two and the histone reference, which has the disclosure of the STS.

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STS is a powder substance that will readily dissolve in water.

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What AgriPress tries to do is to say it would be using a substituting

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1MCT, which is a caged gas.

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And for the board's analysis in Agri-Refresh, they treat that product as though it is just a power solution, or a power substance, but it's not.

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It's a caged gas that requires more to release the gas from the cyclodextrin cage than just dumping it in the water like we would sugar.

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So it also changes the nature of the

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the treatment of the plants.

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So SDS is treated in the water.

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It takes up through the roots and the cut stems.

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The once you can cast doesn't do that.

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It has to get into the atmosphere and it treats the plants on the leaves.

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So it's a completely different treatment mechanism than SDS.

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So it's not feasible near substitution, your honor.

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So here, there are sort of different motivations for ground two and ground three.

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So I'm going to start with ground two, where your honor started with the silo.

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As I mentioned, that's treating plants, cut plants in a vase with an effervescent tablet.

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So you're treating it through the roots, and that's what you're doing.

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If you sell them that gas, now, all of a sudden, you're not treating it at the root.

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You're waiting for that gas to dissolve in the atmosphere.

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And then, who knows whether it's going to treat the plant or not.

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And what Evrofresh says in their brief,

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is that, well, a skilled artist would know to put it into a sealed container, because that's what Daily says.

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But the board did not make that argument or that special finding.

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I'd like to direct Your Honor's attention to Appendix 33.

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I think this is one of the most telling errors that the court made.

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So what they said on Appendix 33.

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What page are you on?

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I'm sorry.

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What page are you on?

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33, Your Honor.

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Let me know when you're there.

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Okay.

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So in the first paragraph it says that because no effectiveness or release level is decided, we are not persuaded that the skilled artisan would have believed creating the recited dosage form would have required a closed chamber.

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So right there the board says that you don't have to have any treatment because you don't even have to have the closed chamber.

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And there's no dispute that without a closed chamber

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the one institute has is not going to reach the level to treat the plant on any level of effectiveness.

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So that is ground two.

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We're going to briefly talk about ground three, which is not simply the inverse as the board would have how you believe.

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Ground three, we start with daily, which is a cage one institute powder substance.

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And Daley doesn't tell you that there's any problems with the handling.

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It says it's actually a more convenient way to treat with 1-HCT gas.

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But what AgriPress says is, oh, let's put it into a tablet, because that makes it easier to distribute.

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But they never tell us how you get the gas back out.

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We know from Daley and from other participants in the record that changed 1-HCT gas is not a simple gas to get out.

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So why would you put it into something that would make it even harder to get back out?

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And agrofreshen and boron never answer that, because they always revert to, oh, well, you don't need a certain amount of release or treatment.

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But as field artisan, the only thing they would have cared about was treating the plants.

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But why isn't it the case that it was understood that the gas would be released from the cage upon being entered into a solution, and the powder is entered into solution?

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So it seemed to be pretty well accepted.

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So it was not well accepted, Your Honor.

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So first, this product had been on the market for about a year.

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And the nature of the cyclodextrin cage that holds the gas creates solubility issues.

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It's not soluble in water.

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So what happens is you end up with an issue of release kinetics, where once you start having a little bit of gas come out, you have empty cyclodextrin.

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And it creates this equilibrium.

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The equilibrium involves some release of the one MCP, right?

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Right.

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So the fact that you don't get a complete release of the MCP is just a matter of degree, right?

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It's a matter of degree, but it's a matter of important degree.

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Because you still have to have enough release such that a skilled artisan would be motivated to modify the reference.

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If you weren't going to get at least the same amount of release, why would a skilled artisan modify the reference at all?

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That's really the nature of the issue that the board really failed to grapple with.

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They just ended the discussion that we don't really need any level of effectiveness or release because it's not in the claims.

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But fundamentally, this was what was important to a skilled artisan.

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That's the real world facts that Arctic Cats as the board and the court should look at.

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I would say there's no complete evidence in this record to demonstrate, kind of, what amount of release was sufficient to motivate a skilled artisan to modify the reference.

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And there also was no evidence or factual finding about what amount of release would have been known to be achievable if you modified either the style or daily, depending on which variety you're starting with.

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And it doesn't exist in the record, and here's why.

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The petition said virtually nothing about getting the 1MCT gas back out.

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It was all focused on showing that 1MCT gas could be tabulated without releasing the gas.

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So that's all their experts said.

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In our response, we brought in our expert who talked about the difficulties of releasing the 1MCT gas from a tablet.

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Then, because their expert had not really got time on release, she submitted a supplemental declaration that was very conclusory that addressed release.

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Importantly, the board never

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relied upon or cited to that part of the experts' declaration.

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The only evidence that the board relied on was what was in the ground references themselves.

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And ultimately, even if the board had considered Dr. Waldo's supplemental declaration, again, it was conclusory.

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It cited nothing, and it was provided by really important documentary evidence.

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And that evidence is in the form of the Rome and Haas patent.

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which is Agri-Fresh's predecessor in interest.

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And the board basically refused to consider any of the disclosures in the 1.5.3 patent as part of its analysis.

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It has one sentence where it said, you know, we've cited no precedent to say that we have to hold Agri-Fresh accountable for an application and a predecessor.

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But that's not what we were asking the board to do.

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The 1-5-3 patent has specific disclosures that talk about the difficulty of releasing the lens to gas from that cage, and specifically on how it got higher when we had larger quantities.

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And the 1-5-3 patent talked about if you use the effervescent tablet, it was surprising that it worked, because the effervescent tablet didn't let alka-seltzer.

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You drop it in water, it bubbles for a few minutes, and then it stops.

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But yet, that was enough for the release of the gas to continue on for hours.

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And that was surprising.

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And so that is contemporaneous, independent evidence from Agri-Fresh's predecessor that the board flatly refused to consider.

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And that alone is legal error that would constitute at least fincage or remand, if not reversal.

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This error also affected

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the obvious-to-try analysis as well.

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So as we laid out in our brief, the board's analysis here really amounted to obvious-to-try.

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They used some variation on that language to basically say, based on the references, you would try it.

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But what the board didn't do is they didn't get to the final part of the KSR test.

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They said, OK, there's a problem that needs to be solved.

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There's a finite number of solutions.

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But they never addressed whether those solutions were predictable.

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And because this was a new product, because there was nothing in Hisano about releasing a gas... Do they have to be predictable?

[00:10:11] Speaker 01:
Sorry?

[00:10:11] Speaker 01:
Do they have to be predictable?

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So absolute predictability is not required, but a reasonable expectation of predictability is.

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And here, there was nothing to either

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Hisano or daily, that would suggest that it was predictable that you'd get sufficient release that would have motivated a skilled artisan to make the modification.

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Wasn't there in this case a finite number of predictable results?

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So out of cabinet, it was a finite number of solutions, but there was no finding of predictability.

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And that's where the board's analysis fell down.

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So yes, there was a finite number, but it was not predictable.

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And that's not enough.

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Under KSR, you have to be able to show it's predictable.

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Otherwise, you're back in the traditional motivation to buy reasonable expectations of success situation.

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And again, there's nothing in the record that suggests that you could get the 1-in-2-gass back out of the tablet after tabulating it, or that you could use that in the sono and effectively

[00:11:08] Speaker 00:
treat plants, because one, you don't know if it's coming out, and two, you don't know if it's really getting onto the plant to block the athlete receptors.

[00:11:21] Speaker 01:
So coming up to your rebuttal time, you can continue or save it as you wish.

[00:11:26] Speaker 00:
Unless the Your Honor has any additional questions, I'll save the rest of my time for rebuttal.

[00:11:30] Speaker 01:
All right.

[00:11:35] Speaker 01:
Mr. Nimrod.

[00:11:43] Speaker 03:
Thank you, Your Honor.

[00:11:46] Speaker 03:
Rainier Mott on behalf of Acrofish, please escort.

[00:11:49] Speaker 03:
I'd like to start with ground three, if I could.

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Turning to ground three, it starts with the Daly reference, which discloses that one MCP gas is a superior ethylene receptor blocker than what was the current standard STS.

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STS, however, was known to have a severe waste disposal problem as Daly taught explicitly.

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That's at appendix page 816.

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But as a gas, it was difficult to deliver.

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Daly invented MCP gas caged in a cyclodextrin powder so that MCP could be treated and handled as a powder.

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Daly also thought that one could use the powder to treat multiple plants at one time in a sealed container or entire room set at appendix page 821.

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Daly also taught that mixing with water results in dissolution of the powder and therefore the release of the gas, for example, in appendix page 824.

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So the analysis here with Daly is very straightforward.

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Daly taught success on a larger scale than a single plant, put it in a container, seal it up, put it in a room, and that the key to dissolution was to, the key to release was to simply dissolve the powder in water.

[00:13:00] Speaker 03:
And the board?

[00:13:01] Speaker 02:
No, but your opposing counsel is suggesting that that was not really understood to be an effective way to release the guest.

[00:13:11] Speaker 02:
I wanted to address that issue.

[00:13:14] Speaker 03:
Yes.

[00:13:14] Speaker 03:
Your Honor, at appendix page 15, Daly discloses.

[00:13:17] Speaker 03:
So Daly was already out in the market called Appleblock.

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So it was there.

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And people were taking the powder.

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and they were putting it in there, and it was releasing into these containers, rooms, and it was effective to release there.

[00:13:28] Speaker 03:
So the issue is not whether once the powder hits the water, it's going to release.

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It did.

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And the board didn't ignore it.

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It said, for example, in Appendix Page 15, to solve this issue, the board says, quoting Daly, quote, a method of incorporating these gaseous compounds, which inhibit the ethylene response in plants,

[00:13:46] Speaker 03:
in a molecular encapsulation agent complex in order to stabilize the reactivity and thereby provide a convenient and safe means of storing, transporting, and applying or delivering the active compounds to plants.

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The application or delivery methods of these active compounds can be accomplished by simply adding water to the molecular encapsulation agent complex.

[00:14:09] Speaker 02:
What page again are you on?

[00:14:10] Speaker 03:
That's at appendix pages 15 to 16, quoting Galey, Your Honor.

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And then there's other examples throughout.

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The board made multiple findings on this.

[00:14:21] Speaker 02:
Well, I think everybody agrees that there's some release of the gas upon being put in a solution, even a solution of water.

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The question is, is it enough to matter?

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And the argument your opposing counsel is making is that because you rapidly reach an equilibrium state, there isn't enough gas coming out that has the potential to be effective in the manner that the

[00:14:45] Speaker 02:
the invention requires.

[00:14:47] Speaker 03:
You're right.

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So the issue here is we're starting with daily.

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So daily would have the same problem.

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Daily is a powder that's being sold in the market.

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Daily teaches that if you put this powder in a bucket of water, it's going to go out and treat the plants, the fruits, apples, et cetera, in the container.

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So that's already a done deal, so to speak.

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Daily is teaching that.

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Ethyl block teaches that you can use this in rooms that go from anywhere to what would be a four by four by five container up to

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hundreds and hundreds of thousands of square feet of application.

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And that's the powder.

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So if the powder can be dissolved in a bucket and go out and treat things as a powder, as a daily top, then the only question is whether or not if you then take it and you put it into an effervescent tablet, will that be better?

[00:15:33] Speaker 03:
And so if we go back to ground three, as we were talking about, posano is the second half of it, of course.

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Hosano, which is in appendix page 810, taught that using a tablet with effervescent agents improved dissolution as compared to powders.

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So, again, the starting point is Daley says, this works with powders.

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It's fine.

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Ethyl block says the same thing.

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Put it in a room, it's going to work.

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And Hosano says, well, one of the problems with powders is they don't get complete dissolution.

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And so what I've invented now is not just to put it in a tablet.

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So it's not just any old tablet you might put like

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a medicine tablet into a thing of water.

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This is an effervescent tablet that's meant to make dissolution better than a powder.

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So Daly teaches that if you use an effervescent agent, Appendix Page 810, you get improved dissolution compared to powders, and that you get superior handling characteristics as compared to powders.

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It's easier to take a tablet than to measure on a scoop.

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You know exactly how many to put in.

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And the board found a clear motivation and a reasonable expectation of success

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in starting with Daly's powder and putting it into an effervescent tablet form as taught by Hosano.

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The board found that Opposa would have, quote, chosen.

[00:16:41] Speaker 03:
I'm sorry, this is at appendix pages 39 to 40.

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The board says Opposa would have

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Quote, chosen to package the one MCP in an effervescent tablet as taught by Hosano for the improved dissolution benefits realized by use of effervescent ingredients.

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So you have Bailey that says, this works as a powder.

[00:17:02] Speaker 03:
And you have Hosano saying, well, if you want to make it better, then use an effervescent tablet.

[00:17:06] Speaker 03:
Because as the thing is dissolving, of course, it's generating gas right there, dissolves the thing, you get better dissolution.

[00:17:13] Speaker 03:
So the board found that you would expect to get improved dissolution from Hasano, not just as good as the powder.

[00:17:19] Speaker 03:
Now, Lightone in its brief says its expert testified that a skilled artist would not have wanted to put Daley's powder into a tablet because they would have expected that to inhibit release.

[00:17:32] Speaker 03:
The board considered that and rejected that argument and made the contrary finding that I just read, that they would expect improved dissolution.

[00:17:39] Speaker 03:
That was the point of Hasano.

[00:17:41] Speaker 03:
There's substantial evidence.

[00:17:42] Speaker 02:
It's improved with the effervescence.

[00:17:44] Speaker 03:
With the effervescent tablet, Your Honor, yes.

[00:17:45] Speaker 02:
And is the idea behind the effervescence that it turns the solution and exposes the water more readily to the cages?

[00:17:54] Speaker 03:
That's correct, Your Honor.

[00:17:55] Speaker 03:
So it's breaking everything up in a better way than just throwing the powder would be and getting that thing dissolved.

[00:17:59] Speaker 03:
So you have an improved solution.

[00:18:02] Speaker 03:
The board actually quoted the specific portion of Hosano.

[00:18:06] Speaker 03:
It says that Appendix Page 27 where Hosano teaches that when you use an effervescent tablet, well the board says, quote, Hosano's teaching that an effervescent tablet, which when dissolved in water creates, and then they quote Hosano, quote, generated carbonic acid gas that will promote assimilation action.

[00:18:24] Speaker 03:
which will be effective for cultivating and preserving the freshness of the cut flowers of plants close paren.

[00:18:30] Speaker 03:
So, as Anna was teaching, you get promoting a better assimilation by using the amphibicin, and the board adopts that as part of its finding.

[00:18:40] Speaker 03:
So, it's better than a powder.

[00:18:41] Speaker 03:
So, they had a perfectly valid ground to reject Lytone's expert, but the real important point here, of course, is that the issue is substantial evidence, and there's substantial evidence to support the board's findings here.

[00:18:52] Speaker 03:
regardless of what their expert said and that the board addressed all of it.

[00:18:56] Speaker 03:
And just if I can just for a moment address an issue that came up in their briefing.

[00:19:01] Speaker 03:
The board did not impose a burden of dissuasion on Lightone as the patent owner.

[00:19:06] Speaker 03:
They put the burden squarely on AgriFresh.

[00:19:09] Speaker 03:
Appendix pages two to three

[00:19:11] Speaker 03:
The board states, in this final written decision, after reviewing all the relevant evidence and assertions, we determined the petitioner has met its burden of showing by proponents of the evidence that claims 3 and 11 of the 185 pattern patentable.

[00:19:24] Speaker 03:
And then for each of the two different sections that are at issue here, which is motivation and reasonable expectation of success, at pages 19 to 21, this is for ground two, the board says, quote, 19 to 20, they look at the evidence and they say, quote, after reviewing the record and the arguments of the parties, we find the weight of the evidence supports petitioner's allegation that one of skill in the art at the time of the invention would have been motivated to combine the teachings of Hizano and Daley to make the subject matter of claims

[00:19:55] Speaker 03:
three and eleven.

[00:19:56] Speaker 03:
So they found that we provided sufficient evidence to show that it was a motivation to combine.

[00:20:01] Speaker 03:
And then on the next paragraph they go on and say, quote, the patent owner argues that petitioner fails to meet its burden to show that skilled artisan would have been motivated to combine the teachings of Osano and

[00:20:12] Speaker 03:
to make the claim subject matter.

[00:20:13] Speaker 03:
So they've already found that we met our burden.

[00:20:16] Speaker 03:
They found there was motivation.

[00:20:17] Speaker 03:
And they said, now we're going to look at their arguments.

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And they say that petitioners said that we didn't meet our burden.

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And the board says, we are not persuaded.

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They go through all the evidence and explain why they weren't persuaded.

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And then turning to expectation of success, the board analyzes the evidence from pages 29 to 31 and then says, quote, this is an expectation of success.

[00:20:38] Speaker 03:
Having reviewed the record, after having reviewed the record,

[00:20:42] Speaker 03:
and the arguments of the parties, we find the weight of the evidence supports the petitioner's conclusion that one of skill and the art at the time of the invention would have reasonably expected success in making the claim subject matter for the reasons set forth above."

[00:20:53] Speaker 03:
So they made that finding.

[00:20:54] Speaker 03:
Then they go on and say, we address patent owners' arguments against a reasonable expectation of success below.

[00:21:00] Speaker 03:
And they go through and explain why that doesn't change their view as to the fact there was a reasonable expectation of success.

[00:21:06] Speaker 03:
So the burden was squarely on

[00:21:08] Speaker 03:
I aggrifest as it should be, and the board found the evidence supported both motivation and reasonable expectation of success.

[00:21:15] Speaker 02:
Now, Litone argues that, in effect, what the board and, in effect, and in text, to some extent,

[00:21:23] Speaker 02:
the board really indulged in an obvious-to-try analysis.

[00:21:29] Speaker 02:
You want to address that question?

[00:21:30] Speaker 03:
I would, Your Honor.

[00:21:31] Speaker 03:
Can I first say that the obvious-to-try language is only found that they cite it with respect to ground two.

[00:21:37] Speaker 02:
With respect to, yes.

[00:21:38] Speaker 02:
Right.

[00:21:38] Speaker 03:
There's nothing in ground three that says it all, so I'd like to get that out of front.

[00:21:42] Speaker 02:
Let's focus on what exactly the board said about ground two with respect to obviousness to try.

[00:21:47] Speaker 03:
OK.

[00:21:47] Speaker 03:
So Your Honor, just I won't answer that one here.

[00:21:49] Speaker 03:
There's two things I would say to that.

[00:21:51] Speaker 03:
One is they did not apply obvious-to-try.

[00:21:54] Speaker 03:
Then two, even if they did, it would be perfectly fine under this court's law.

[00:21:58] Speaker 03:
On the first point, Your Honor, they didn't use the words obvious to try.

[00:22:01] Speaker 03:
They didn't cite the law that women cite on obvious to try.

[00:22:04] Speaker 03:
Instead, the board said at appendix page nine that the standard is

[00:22:08] Speaker 03:
Quote, the obvious inquiry typically requires an analysis of whether there was an apparent reason to combine the known elements in the fashion claimed by the patented issue.

[00:22:20] Speaker 03:
The board did use the word try, not obvious to try, in I think three instances.

[00:22:25] Speaker 03:
And it was always in the context of the reasons for the motivation to combine, because there's straightforward motivations here.

[00:22:31] Speaker 03:
For example, at appendix page 26, the board says,

[00:22:35] Speaker 03:
daily's teaching of using a cyclodextrin cage stabilized and powdered version of one MCP to inhibit ethylene binding in plants would have motivated the skilled artisan to try this stabilized version in Hisano's effervescent tablet preparation because of the benefits of effervescent ingredients for dissolution

[00:22:57] Speaker 03:
and dispersion to treat plants on a larger scale.

[00:23:00] Speaker 03:
They are simply giving the reason for a motivation there.

[00:23:03] Speaker 03:
In fact, the next paragraph they go on, and they have a paragraph where they go through at appendix page 26 to 27, three reasons why there was a motivation to go by.

[00:23:13] Speaker 03:
It's actually numbered one, two, three.

[00:23:16] Speaker 03:
One is

[00:23:16] Speaker 03:
Daley's teaching that STS is problematic for and has problems with waste.

[00:23:21] Speaker 03:
Two is Daley's teachings that cyclopropene and its derivatives are commercially acceptable replacements for STS and that powder complexes provide advantages over compressed gases for safety control.

[00:23:32] Speaker 03:
And three, Hazano teaches that the tablet will, again, they quote, generated carbonic acid that will promote assimilation.

[00:23:41] Speaker 03:
This is a straightforward motivation to combine finding here.

[00:23:44] Speaker 03:
They used the word to try but it was in the context of identifying the reasons why there was a motivation to do that.

[00:23:50] Speaker 03:
But again, even if there was though, they had applied obvious to try.

[00:23:55] Speaker 03:
I don't think that would be a problem at all because they made the findings that there was a limited number of compounds to be used.

[00:24:04] Speaker 03:
In fact, the big three ones were MCP was just on the market, the new powdered one.

[00:24:09] Speaker 03:
SDS and then you have a eo a ea excuse me those that's it and Daily teeth talks about the other two and say why they're problematic, but there's only there's a finite number of Options out here the board may define that the two were known to be substitutable for each other And the board also found that you would have an expectation of release addressing for example the

[00:24:36] Speaker 03:
reply declaration that our expert put in.

[00:24:38] Speaker 03:
I think counsel made the comment that our expert's declaration on reply, she stated, did get into the reasons why a post would expect release, which is pretty straightforward.

[00:24:49] Speaker 03:
Daly already teaches that if you throw the powder into a bucket, it's going to release.

[00:24:54] Speaker 03:
Now you've got Hizano, and it says you're going to get more.

[00:24:57] Speaker 03:
But the board did not ignore our expert's declaration.

[00:25:01] Speaker 03:
At appendix page 26, the board said, quote,

[00:25:05] Speaker 03:
Daly's teaching of using a cyclodextrin cage stabilized and powdered version of 1MCP to inhibit ethylene binding in plants would have motivated the skilled artisan to try the stabilized version in Hizano's effervescent tablet preparation because of the benefits of effervescent ingredients for dissolution and dispersion to treat plants on a larger scale.

[00:25:24] Speaker 03:
And they cite the opening declaration, but then also cite appendix exhibit 1035, paragraphs 11 to 18,

[00:25:33] Speaker 03:
which is exactly where that's our expert's reply declaration.

[00:25:36] Speaker 03:
Those are the paragraphs where she explains and the board cites her paragraphs that the gas is going to release.

[00:25:45] Speaker 03:
And if one molecule touches, it's going to have an effectiveness.

[00:25:48] Speaker 03:
And the board goes on and says, well, and she goes on, excuse me, and says, but of course, if you want more effectiveness, you just tent it, which is exactly what Ethyl Block taught.

[00:25:58] Speaker 03:
I mean, daily taught that if you want better effectiveness, you tent it.

[00:26:01] Speaker 03:
Ethyl Block taught.

[00:26:02] Speaker 03:
You tent it.

[00:26:03] Speaker 03:
So they didn't ignore her declaration.

[00:26:05] Speaker 03:
They cited it and relied on it.

[00:26:09] Speaker 03:
Your Honor, we submit the decision of the PTAB to be affirmed on both grounds, two and three, if Your Honors have no further questions.

[00:26:17] Speaker 01:
Thank you, Counsel.

[00:26:18] Speaker 01:
Thank you, Your Honors.

[00:26:21] Speaker 01:
Dr. Browning has a little bottle time.

[00:26:29] Speaker 00:
Thank you, Your Honor.

[00:26:30] Speaker 00:
So I'd like to start where my friends started, that is with the ground three analysis.

[00:26:36] Speaker 00:
And I think that the analysis was dramatically overstated.

[00:26:40] Speaker 00:
If you go to the board's opinion and you look at how much page space they've kept for ground three, it's a paragraph.

[00:26:47] Speaker 00:
And so I think that my friends spent more time on ground three than the board in its analysis.

[00:26:52] Speaker 00:
So I want that to be clear, Your Honors.

[00:26:55] Speaker 00:
nothing that I think he just said grapples with the Roman Haas evidence.

[00:27:00] Speaker 00:
I think it would be helpful to actually look at this.

[00:27:02] Speaker 00:
It's at Appendix 1698.

[00:27:04] Speaker 00:
So guys, I think a fundamental issue here is what Daley taught and what a skilled artisan would have understood from that.

[00:27:16] Speaker 00:
And it's important to know what skilled artisans who are working with that product faced.

[00:27:21] Speaker 00:
And so on Appendix 1698, what you see outlined

[00:27:25] Speaker 00:
how a line, line 51, that says, however, 1MTP release from a larger quantity of the powder can be very slow and incomplete, sometimes taking days.

[00:27:36] Speaker 00:
This is especially true for the large quantity of powder complex needed to treat full-scale fruit storage rooms.

[00:27:42] Speaker 00:
Stirring the powder water mixture does not appreciably speed up 1MTP release when large quantities of the complex are involved.

[00:27:49] Speaker 00:
This is the problem that was still being faced after Daley's disclosures.

[00:27:54] Speaker 00:
And that has not been addressed at all by the board or by Agribrush.

[00:27:58] Speaker 00:
That's the true use in practice.

[00:28:00] Speaker 00:
Now, the other point I want to make is that Hisano does not say anything about how effervescence would affect the release of a gas from a cytodextrin cage.

[00:28:09] Speaker 00:
It's purely about how

[00:28:10] Speaker 00:
effervescence would affect the release of a solid or liquid active agent.

[00:28:15] Speaker 00:
And in fact, if you look at Daley's disclosure, where there is one or a couple passing references to bubbling, it doesn't say that bubbling improves the release at all.

[00:28:24] Speaker 02:
Isn't that a very simple proposition that effervescence tends to mix the solution and therefore produce a higher rate of solubility in any solution?

[00:28:36] Speaker 00:
But to your point, to that point, Your Honor, Nixon wasn't enough.

[00:28:40] Speaker 00:
What I just read in the Ad Refresh, the Roman Hoss patent says stirring it is not speeding up the release, because this is a complex system.

[00:28:48] Speaker 00:
It's not just a matter of stirring it up to have more turnover.

[00:28:51] Speaker 00:
You're still facing the release case of the empty cyclodextrin and the full cyclodextrin.

[00:28:56] Speaker 00:
So respectfully, Your Honor, it's not a natural result of the effervescence.

[00:29:00] Speaker 00:
And even in Daley's disclosure, it's more of a reference.

[00:29:02] Speaker 02:
Well, you don't think that's true generally, just

[00:29:04] Speaker 02:
As a matter of ordinary basic chemistry, that if you mix things, you tend to get solutions.

[00:29:14] Speaker 02:
Things tend to get solubilized more quickly.

[00:29:19] Speaker 00:
It depends on the level of solubility of the material that you're working with.

[00:29:23] Speaker 00:
So the solubility of a cycle gesture is highly insoluble in water.

[00:29:27] Speaker 00:
That's why I say that.

[00:29:28] Speaker 00:
And our expert talks about this, appendix 2108 to 2109.

[00:29:34] Speaker 00:
about how the kinetics here are different than any other sort of classic solid or liquid ingredient, where your honor is absolutely correct, where the mixing would improve solubility.

[00:29:44] Speaker 00:
It doesn't work with this kind of product, because this is an in-cage gas that the solenoid did not contemplate at all.

[00:29:54] Speaker 00:
And one last point I wanted to make, your honor, is that we're not – we believe that the board legally aired its obvious analysis, because it did not have

[00:30:02] Speaker 00:
the private requirement to show that a skilled artisan would have been motivated to modify either a design or a daily, because there was no showing that they would have enough release to make the modification in the first place.

[00:30:17] Speaker 00:
I'm happy to answer any other questions at the end of my time is out.

[00:30:20] Speaker 01:
Thank you, both counsel.

[00:30:23] Speaker 01:
The case is submitted.