[00:00:00] Speaker 03:
The next case for argument is 24-1098, Rida versus ITC.

[00:00:56] Speaker 03:
Good morning.

[00:00:57] Speaker 03:
Whenever you're ready.

[00:01:11] Speaker 03:
Welcome back.

[00:01:12] Speaker 03:
Good morning.

[00:01:13] Speaker 02:
Good morning, Your Honors, and may it please the court.

[00:01:15] Speaker 02:
Deanne Maynard on behalf of Brita.

[00:01:17] Speaker 02:
I'd like to reserve three minutes for rebuttal.

[00:01:20] Speaker 02:
The commission's decision should be reversed.

[00:01:22] Speaker 02:
I'd first like to start with enablement and written description, and then shift to indefiniteness.

[00:01:27] Speaker 03:
On the first two- Just on a technical point, you've got to win on all three.

[00:01:31] Speaker 02:
That's correct, Your Honor.

[00:01:32] Speaker 02:
So I would like to try to talk about them all.

[00:01:34] Speaker 02:
On the first two, though, issues, the commission's decision hinges on a plain misreading of column 26.

[00:01:41] Speaker 02:
The commission relied on the passage that begins at the bottom of 26, line 55.

[00:01:48] Speaker 02:
And throughout, it's Wands Factor and else.

[00:01:51] Speaker 04:
What issue are you addressing?

[00:01:53] Speaker 02:
Enablement and written description at the same time, Judge Raina.

[00:01:56] Speaker 02:
Because the commission read this passage in column 26, starting at line 55, as repeatedly interpreted as a failure of the inventors to apply their invention to non-carbon block filters.

[00:02:13] Speaker 02:
Over and over and over again, the commission relies on that rationale.

[00:02:17] Speaker 02:
And it's a plain misreading of this paragraph.

[00:02:20] Speaker 02:
So all this paragraph says is the inventors tested

[00:02:24] Speaker 02:
the prior art commercially available filters, and they don't practice the invention.

[00:02:29] Speaker 02:
Well, that's nothing more than showing novelty.

[00:02:31] Speaker 04:
And they tested it using this FRAP formula?

[00:02:33] Speaker 02:
Yes, they did, Your Honor.

[00:02:34] Speaker 02:
And none of them met it.

[00:02:36] Speaker 02:
That's shown in table five.

[00:02:38] Speaker 02:
Those are the results.

[00:02:39] Speaker 02:
But it's not surprising that the prior filters don't practice the invention.

[00:02:42] Speaker 02:
That's why this is new and novel.

[00:02:45] Speaker 02:
But the commission, again and again and again,

[00:02:47] Speaker 02:
in its analysis.

[00:02:49] Speaker 04:
I find it odd, and I'm not quite sure yet what to do with it.

[00:02:54] Speaker 04:
I find it odd that only your client's products pass the FRAP test and nobody else does.

[00:03:02] Speaker 02:
So to be clear, we tested our product as well.

[00:03:06] Speaker 02:
That's the British product in table five.

[00:03:07] Speaker 02:
And it also did not pass.

[00:03:10] Speaker 02:
What the inventors came up with here was a new way to arrange

[00:03:15] Speaker 02:
known filter qualities in order with the key constraint of

[00:03:21] Speaker 02:
350 or preferably less than 200.

[00:03:24] Speaker 05:
Where did this formula come from?

[00:03:26] Speaker 05:
I mean, it feels like it's something out of thin air.

[00:03:30] Speaker 05:
And so I'm just curious, what's the origin story of this formula that the patent owner has created?

[00:03:37] Speaker 05:
It feels like some performance metric that it just divined and then is using as a measuring stick.

[00:03:46] Speaker 02:
Dr. Knitmeyer testified.

[00:03:48] Speaker 02:
that she distilled her testing of the various filters into this formula as a way to capture balancing off the different traits.

[00:03:57] Speaker 02:
So the challenge was how to have a filter of a certain size that would filter lead quick enough to satisfy consumers with a decent lifetime.

[00:04:09] Speaker 02:
And she figured out that if you use the 350 factor as a constraint, and preferably 200, and then you modify these known characteristics of a filter, and everybody agrees, Dr. Hatch, their expert and our expert, that persons of skill in the art know how to modify the various components of the filter in order to adjust these relative characteristics.

[00:04:29] Speaker 02:
And if you aim for 350 or 200,

[00:04:31] Speaker 02:
If you design your product to be 350 or 200, you will have a well-running, gravity-filled filter.

[00:04:38] Speaker 05:
I guess the problem that the ITC identified is that when you just play around with one of the variables, it's going to affect the other variables in this FRAP formula in a nonlinear and unpredictable manner.

[00:04:53] Speaker 05:
And that's fact-finding.

[00:04:56] Speaker 05:
And now we realize we're something in a shape-shifting environment, where you've touched filtration time.

[00:05:05] Speaker 05:
And then that's going to affect volume.

[00:05:07] Speaker 05:
It's going to affect lead concentration.

[00:05:09] Speaker 05:
It might affect the lifetime of the filter.

[00:05:12] Speaker 05:
And so everything is on the move.

[00:05:14] Speaker 05:
And that's what made it hard for the ITC to see and understand why, based on this spec,

[00:05:21] Speaker 05:
that inventors actually invented filters beyond carbon block filters that could meet your created FRAP standard.

[00:05:31] Speaker 02:
So there's a lot packed into your question.

[00:05:34] Speaker 02:
So if I can sort of take pieces of it.

[00:05:36] Speaker 02:
Very Justice Breyer.

[00:05:37] Speaker 05:
Sorry.

[00:05:38] Speaker 02:
So one is, so first, the commission didn't purport to upset any of the factual findings of the ALJ in terms of credibility.

[00:05:46] Speaker 02:
The commission says, we recognize the ALJ

[00:05:49] Speaker 02:
observed the witnesses in a six-day trial and made credibility findings and discredited Dr. Hatch and credited our expert Dr. Freeman.

[00:05:55] Speaker 02:
But no matter, because the intrinsic record and the undisputed evidence gives us the answer here.

[00:06:03] Speaker 02:
This is not a situation where they made they countered the the ALJ's factual findings and made their own factual findings and they did Go ahead.

[00:06:12] Speaker 05:
You want to yeah.

[00:06:13] Speaker 05:
Well, I didn't see your briefing anywhere challenge the ITC's fact-finding that this FRAP formula is unpredictable in the sense that when you

[00:06:25] Speaker 05:
play around with one variable, it's going to impact the other variables in this FRAP formula.

[00:06:30] Speaker 02:
Well, everyone agrees, Judge Chan, our expert, their expert, the inventor, that the factors in the FRAP formula are interrelated.

[00:06:39] Speaker 02:
Everyone agrees about that.

[00:06:40] Speaker 05:
But then to put a finer point on it, the ITC said,

[00:06:43] Speaker 05:
it's going to change the other variables in a non-linear and unpredictable manner.

[00:06:49] Speaker 05:
So that's the part that has me concerned about exactly how do you just plug in different variables or make adjustments to particular variables and then ensure yourselves that for other types of filter designs you're going to get a frat under this

[00:07:05] Speaker 05:
random 350 number.

[00:07:06] Speaker 02:
Well, the testimony was, so the patent itself says in column 13 that while the discussion will focus on carbon block filters,

[00:07:15] Speaker 02:
the person with the skill and the art will understand this can be applied to any media filter.

[00:07:20] Speaker 02:
And the patent says that in multiple times.

[00:07:22] Speaker 03:
Yeah, that's kind of canned language that doesn't help.

[00:07:24] Speaker 03:
It doesn't get us very far.

[00:07:27] Speaker 02:
So with respect, Judge Post, I think it's not the kind of like boilerplate language that you sometimes see at the Amherst, where it's like, and this will apply to all embodiments.

[00:07:35] Speaker 02:
Because it's actually in column 13.

[00:07:37] Speaker 02:
It's repeated in column 25.

[00:07:39] Speaker 02:
It's repeated in column 26.

[00:07:40] Speaker 02:
The original claims 20 and original claims 21.

[00:07:43] Speaker 03:
Just because you say something multiple times doesn't get you to the result that you need to get to.

[00:07:48] Speaker 02:
But the evidence here show they have working prototypes.

[00:07:51] Speaker 02:
They made working prototypes of carbon block.

[00:07:53] Speaker 02:
And the evidence was overwhelming before the ALJ, who credited our expert testimony, that a person's skill in the art could readily challenge, sorry, excuse me, readily translate the teachings

[00:08:10] Speaker 02:
patent and the examples to other forms of media, that it would be easy to do, that this was old science, that yes, the factors are interrelated, but one could put it together.

[00:08:20] Speaker 02:
The only thing that is on the other side of that, we did challenge Judge Chen both that the commission's decision is not supported by fact or law.

[00:08:30] Speaker 02:
throughout our brief.

[00:08:31] Speaker 02:
And I do think it hinges on this wrong reading of column 26.

[00:08:34] Speaker 02:
I think the whole decision falls on that.

[00:08:36] Speaker 02:
But their expert testified, Dr. Hatch, who was discredited by the ALJ, he testified, yes, the factors would be interrelated, and that presents a conundrum.

[00:08:48] Speaker 02:
But you can't go from that, that there's working examples of cardian blocks, to the factors are interrelated, to that it would be undue.

[00:08:55] Speaker 02:
The only thing he said, as the ALJ recognized,

[00:08:59] Speaker 02:
about it being how undue it would be was that it would be a lot.

[00:09:03] Speaker 02:
And that, one, isn't a factual.

[00:09:05] Speaker 02:
The commission didn't report to upset those fact findings the way that I read the decision.

[00:09:11] Speaker 02:
It said, we rely on the undisputed facts and on the intrinsic record.

[00:09:16] Speaker 02:
And two, a lot isn't enough on that a lot.

[00:09:18] Speaker 02:
A conclusory statement like that isn't enough under this court's case law for them to meet their clear and convincing burden that in this well-established field where both experts acknowledge that persons of skill in the art know how to adjust the relative factors and make them work in the way they want and to have performance.

[00:09:38] Speaker 05:
That final phrase is really the nub of the problem here, because there's an inherent tension

[00:09:44] Speaker 05:
and trying to keep the volume low, and trying to keep the filtration time low, and trying to keep the lead concentration low.

[00:09:51] Speaker 05:
I mean, as soon as you play with one, the other ones are going to move and move in the wrong direction.

[00:09:57] Speaker 05:
And when you look at this pattern, you'll see that in the background section, it identifies different kinds of problems for different kinds of filter media.

[00:10:08] Speaker 05:
For carbon block, the problem is getting a good filtration time.

[00:10:13] Speaker 05:
For granular activated carbon, it's a completely different problem.

[00:10:19] Speaker 05:
It's like, how do you get the lead concentration down?

[00:10:22] Speaker 05:
The filtration time is fine.

[00:10:24] Speaker 05:
But then it says, if you want to try to bring down the lead concentration, guess what?

[00:10:29] Speaker 05:
The filtration time is going to get jacked up, and maybe the volume too.

[00:10:33] Speaker 05:
So those are the elements of problems where then the question is, are there any solutions to those problems expressed in this specification?

[00:10:42] Speaker 05:
Like there's a solution provided for carbon block.

[00:10:45] Speaker 05:
And the patent is devoid of any proposed solutions for the particularized problems that you get with the granular

[00:10:52] Speaker 05:
activated carbon media.

[00:10:54] Speaker 02:
So two points.

[00:10:55] Speaker 02:
One, I think the background of the invention shows that persons of skill and the art know exactly how to modify these things in order to get the desired characteristics they want, which Hatch agrees at A23467268.

[00:11:05] Speaker 02:
Two, Dr. Freeman testified and explained, and the ALJ credited, that from the carbon block examples, a skilled artisan would know the volume of the filter, would know the components that had gone into it,

[00:11:19] Speaker 02:
the lead scavenger, the activated carbon, how closely compressed the activated carbon and lead scavenger had been.

[00:11:26] Speaker 02:
And that would give them an idea of the pore size.

[00:11:29] Speaker 02:
And a person of skill in the art could use those same starting materials and apply them to a different geometry to get comparable performance because the components and the raw materials that go into the filter are going to perform their function in any filter media that they're put into.

[00:11:42] Speaker 02:
The ALJ credited that testimony, A290,

[00:11:46] Speaker 02:
And that testimony is A23, 521, and 522.

[00:11:50] Speaker 02:
And there's multiple similar places like that.

[00:11:53] Speaker 02:
And the reason the commission went a different way is because it repeatedly cited this paragraph on the bottom of 26 as a failure of the inventors to apply their invention to non-carbon block filters.

[00:12:05] Speaker 02:
And it's just simply not that.

[00:12:07] Speaker 04:
It sounds to me that what you're claiming is the formula.

[00:12:12] Speaker 04:
And that's something I couldn't shake loose when I was reading through the briefs here that what you're actually claiming is a formula.

[00:12:20] Speaker 04:
You're not claiming certain filters.

[00:12:24] Speaker 02:
So just to explain how I understand it, Dodrina, what we're claiming is a filter with activated carbon and a lead scavenger that's arranged

[00:12:35] Speaker 02:
using this formula.

[00:12:36] Speaker 02:
So in other words, this distills the choices that you want to make, the design choices that you want to make.

[00:12:41] Speaker 04:
The field of water is really crowded here, right?

[00:12:47] Speaker 04:
I mean, it's no secret that you can pour water through different elements, and gravity will pull it through, and you have filtered water.

[00:12:59] Speaker 04:
What's different about your invention is that it meets a certain specification that's expressed by the application of a mathematical formula.

[00:13:10] Speaker 02:
So I agree with the first part of what you said, which actually proves my point, which is this is a way to arrange well-known, well-studied attributes

[00:13:20] Speaker 02:
And it's critical that the formula laid out, the frat factor, it gives a critical constraint, which is that you want to arrange the elements, which everybody agrees persons of skill and the art know how to do with all sorts of media filters, in order to meet the critical constraint of 350 in the frat factor.

[00:13:40] Speaker 02:
That's the guidance it's telling you.

[00:13:42] Speaker 02:
That's the discovery they made.

[00:13:44] Speaker 02:
And the testimony overwhelmingly shows, and ALJ credited,

[00:13:49] Speaker 02:
that persons of skill in the art could modify the carbon block examples, and there are lots of them in patent, and use the information from that and apply it to other filter media.

[00:13:59] Speaker 02:
Because as you say, Judge Raina, it's really well studied, old, well-known art.

[00:14:04] Speaker 03:
On your point about the evidence, though, I mean, it doesn't conclusively result in a win for you just because you've got some evidence on your side.

[00:14:15] Speaker 03:
I mean, it's a substantial evidence review.

[00:14:19] Speaker 03:
That doesn't carry the day for us.

[00:14:20] Speaker 03:
So we agree.

[00:14:21] Speaker 03:
I mean, you have some expert testimony that says what you want it to say.

[00:14:25] Speaker 03:
But that's not sufficient to reach the result you want us to reach, right?

[00:14:30] Speaker 02:
Well, I think it is here, Your Honor.

[00:14:32] Speaker 02:
So in this case, the only rationale the commission gave for its decision was that the intrinsic record alone and the undisputed testimony was enough

[00:14:47] Speaker 02:
to hold that they had met their clear and convincing burden.

[00:14:51] Speaker 02:
It acknowledged

[00:14:52] Speaker 02:
that the ALJ had made credibility findings and other findings of fact that said, never you mind.

[00:14:58] Speaker 02:
I don't have to worry about that, because there is an admission in the patent at the bottom of column 26 that they tried and failed to put.

[00:15:05] Speaker 02:
OK, you can take your point on that.

[00:15:06] Speaker 02:
But you're running out of time.

[00:15:07] Speaker 03:
I'm sorry.

[00:15:08] Speaker 03:
I want to make sure you're way into your rebuttal.

[00:15:12] Speaker 03:
But I want to make sure you have time to reach the other issues here, because as you noted at the outset, you've got to prevail on all three.

[00:15:17] Speaker 02:
So I'll give you another three minutes to deal with the other issues in this case.

[00:15:22] Speaker 02:
Thank you, Your Honor.

[00:15:23] Speaker 02:
I greatly appreciate it.

[00:15:24] Speaker 02:
I can deal with indefiniteness pretty promptly, which is in this industry, the common understanding of claimed lifetime is a validated or verified lifetime.

[00:15:36] Speaker 02:
The commission went wrong by looking at American heritage and regular dictionaries instead of what a person of skill in the art would understand.

[00:15:43] Speaker 02:
As the patent explains, typically in this health-related industry, manufacturers and sellers aren't going

[00:15:49] Speaker 02:
just make up claims about when you should replace your filter, they're going to validate and verify in some way.

[00:15:55] Speaker 02:
So that's an ordinary meaning.

[00:15:56] Speaker 02:
And nobody, not the commission, not the other side, suggests that if it does mean validated, it's indefinite.

[00:16:01] Speaker 05:
Is there some extrinsic evidence to support that?

[00:16:05] Speaker 02:
To support that that's what it means?

[00:16:08] Speaker 02:
Right.

[00:16:08] Speaker 02:
Well, I think you can get that from the patent itself.

[00:16:11] Speaker 02:
But the patent incorporates by reference the NSF

[00:16:16] Speaker 02:
ANSI standard 53, which requires that you can't claim it unless it's validated.

[00:16:25] Speaker 02:
And so it's incorporated by reference in a couple places in the patent, and then that standard itself is in the record, and it requires validation and verification.

[00:16:36] Speaker 02:
But even if you don't think that the ALJ's claim construction is correct, even if it means claimed by the

[00:16:43] Speaker 02:
claimed in the American heritage sense, that's not indefinite.

[00:16:47] Speaker 02:
That's an objective fact.

[00:16:49] Speaker 02:
Whatever the manufacturer or seller claims the lifetime of their filter is, is not aesthetically pleasing.

[00:16:57] Speaker 02:
It's either 40 or 60 or 80 or 100.

[00:17:00] Speaker 02:
You look on the box.

[00:17:01] Speaker 02:
You see what it is.

[00:17:03] Speaker 02:
There's no indefiniteness to that.

[00:17:06] Speaker 02:
So either way, that piece of the judgment should not stand.

[00:17:12] Speaker 02:
save whatever time you might be willing to give me back to trust.

[00:17:16] Speaker 02:
Thank you so much.

[00:17:27] Speaker 00:
Good morning and may it please the court.

[00:17:30] Speaker 00:
The Commission didn't only rely on column 26 and line 55 in making its recent description findings.

[00:17:37] Speaker 00:
What the Commission relied on was inventor testimony.

[00:17:41] Speaker 00:
We did.

[00:17:42] Speaker 03:
We did mention that.

[00:17:46] Speaker 00:
We relied on the disclosure, as well as inventor testimony, as well as expert testimony.

[00:17:51] Speaker 00:
So the evidence the Commission relied on is more than sufficient

[00:17:57] Speaker 00:
for the court to affirm the commission's written description finding.

[00:18:01] Speaker 00:
This is what the inventors testified to.

[00:18:03] Speaker 00:
The inventors were asked how they came up with this FRAP formula, which is all the patent really claims.

[00:18:09] Speaker 00:
The patent claims a mathematical equation which purportedly helps with filtration of water.

[00:18:18] Speaker 00:
The inventors were asked how they came up with this FRAP.

[00:18:21] Speaker 00:
This was the response.

[00:18:22] Speaker 00:
The response was that they switched from using granular mixed media to using carbon blocks.

[00:18:30] Speaker 00:
That was the only way they were able to come up with this invention, which means that at a minimum, they did not possess mixed media.

[00:18:39] Speaker 00:
That alone dooms their appeal.

[00:18:41] Speaker 00:
Now, they went further, because they were also asked, how could you come up with this trap factor using

[00:18:48] Speaker 00:
in the other filter media.

[00:18:50] Speaker 00:
What the response was was, you would have to come up with new technology.

[00:18:55] Speaker 00:
That was the response from the inventors.

[00:18:57] Speaker 00:
And they also testified that they did not invent this new technology.

[00:19:02] Speaker 03:
So what we have here was- What did the ALJ do with that testimony?

[00:19:06] Speaker 03:
Did she discredit it?

[00:19:06] Speaker 03:
Did she credit it?

[00:19:07] Speaker 00:
No, she didn't discredit that evidence.

[00:19:09] Speaker 00:
She did not.

[00:19:09] Speaker 00:
The error the ALJ made, which the commission found, was ALJ considered this invention at a very high level of generality.

[00:19:17] Speaker 00:
The ALD is simply considered as activated carbon leg scavenger, as opposed to what this court case law requires, the claimed invention, which is simply a functional claim directed to a performance result, which is unknown in the industry.

[00:19:34] Speaker 00:
That is what is, I don't want to say made up because it doesn't sound too nice, but it's effectively what the invention is.

[00:19:42] Speaker 00:
And for the inventors,

[00:19:45] Speaker 00:
describe and arrange in their patent, the only disclosure in the patent as achieving this frown is carbon blocks.

[00:19:54] Speaker 00:
That's it.

[00:19:55] Speaker 00:
Now, the commission also credited expert testimony.

[00:19:58] Speaker 00:
Dr. Hatch testified that one of ordinary skill, reading this patent disclosure, would only understand that the inventors only possessed carbon block filters.

[00:20:09] Speaker 05:
It's not just any carbon block filter.

[00:20:13] Speaker 05:
It's a multi-core, multi-block core with a particular structure, particular size particles, a particular porosity based on a particular type and amount of binder, et cetera, et cetera.

[00:20:27] Speaker 05:
So they cracked a code for carbon blocks on how to achieve some wonderful frac value.

[00:20:34] Speaker 00:
That's correct.

[00:20:34] Speaker 00:
That's very correct, Your Honor.

[00:20:36] Speaker 00:
That's exactly what we're doing.

[00:20:36] Speaker 00:
It took me 20 columns to tell us that.

[00:20:38] Speaker 00:
And over there in their pattern, they actually, it provides elaborate and detailed description and disclosure on how to arrive at the carbon block, on how to achieve this crop with carbon blocks.

[00:20:51] Speaker 00:
It does absolutely nothing else with any other filter.

[00:20:54] Speaker 03:
What about the, and you know the provisions that,

[00:20:57] Speaker 03:
Numerous provisions in the spec which say otherwise.

[00:21:06] Speaker 00:
There's really no numerous provisions in the spec.

[00:21:09] Speaker 00:
The spec mentions different filter media were known in the art.

[00:21:13] Speaker 00:
It mentions that

[00:21:14] Speaker 00:
What she's referring to, I believe, is where they say they tested mixed media.

[00:21:19] Speaker 00:
And none of the mixed media they tested actually satisfied this framp.

[00:21:24] Speaker 00:
And I believe the argument is that what they tested was a prior art.

[00:21:27] Speaker 00:
But if we go back to what the inventors actually tested, what the inventors testified to, they switched from this very same mixed media.

[00:21:36] Speaker 00:
The inventors were able to switch from that to carbon blocks.

[00:21:41] Speaker 00:
And that is the only way they were able to achieve this framp.

[00:21:45] Speaker 00:
So whereas that disclosure goes to the prior art, it also discloses exactly what the inventors were not able to achieve.

[00:21:51] Speaker 05:
But I guess to follow up on Director Prost's question, which is what the opposing council was talking about, it could be that the ITC put too much emphasis on column 26.

[00:22:03] Speaker 05:
Sure, the prior art mixed media filters did not achieve this particular performance metric.

[00:22:10] Speaker 05:
But it would be an improper shortcut to say, and therefore, a skilled artist would not know how to make and use a mixed media filter that would accomplish this performance metric.

[00:22:22] Speaker 05:
Do you see the problem?

[00:22:24] Speaker 00:
I see.

[00:22:24] Speaker 00:
I see the argument.

[00:22:26] Speaker 00:
But the Commission didn't rely, the Commission did mention that disclosure, but the Commission didn't rely exclusively on that.

[00:22:34] Speaker 00:
The Commission mentions various also sections of the patent, right, where the Commission makes clear that carbon chemistry and the shape and the size were all instrumental in achieving this front.

[00:22:46] Speaker 00:
So the Commission's decision didn't rest on this one specific disclosure in the background.

[00:22:53] Speaker 00:
Moreover, the commission also relied on the inventor testimony as well as expert testimony.

[00:22:59] Speaker 00:
And the commission's written description, finances review for substantial evidence.

[00:23:04] Speaker 00:
And in this case, evidence the commission relied on was very strong.

[00:23:09] Speaker 00:
And if I may quickly also mention enablement,

[00:23:13] Speaker 00:
Dr. Hatch testified that all of these variables are interrelated, such that, and the only expert also agreed with that, such that you can change one variable and expect any linear or corresponding results for the frou.

[00:23:28] Speaker 00:
What happens is when you change one variable, you don't know what happens to the equation.

[00:23:33] Speaker 00:
Despite that, the patent gives you no teaching guidance on how to achieve this frappe with any other filter media outside of carbon blocks.

[00:23:45] Speaker 00:
The commission actually went with each of the one's factors in its enablement, and each of the one's factors to show that it would take undue experimentation if one afforded every skill in the arts to practice this invention outside of carbon blocks.

[00:24:02] Speaker 00:
If I may briefly, quickly touch on indefiniteness, the problem for Britain for the patent with respect to indefiniteness is that the claim limitation, which is the lifetime, all it says is lifetime, that is claimed by a manufacturer or seller of the filter.

[00:24:19] Speaker 00:
It is not tied to any inherent quality of a filter.

[00:24:23] Speaker 00:
It's an open-ended claim limitation.

[00:24:26] Speaker 00:
And one of ordinary school reading this limitation wouldn't know it meets and bounds.

[00:24:31] Speaker 00:
What the patent suggests is for you to go to advertising material.

[00:24:35] Speaker 00:
And the commission is unaware of any case law from this court, which suggests that product data or advertising material is somehow sufficient to delineate the scope of a claim limitation with any reasonable certainty.

[00:24:54] Speaker 04:
Thank you.

[00:25:01] Speaker 01:
Morning, Your Honor, and may it please the Court.

[00:25:03] Speaker 01:
Adam Swain from Alston Bird on behalf of the intervener respondents.

[00:25:07] Speaker 01:
I'd like to start briefly where my colleague left off with indefiniteness.

[00:25:11] Speaker 01:
Now, my friend from Brita here mentioned that this is an aesthetically pleasing, datamized situation.

[00:25:19] Speaker 01:
That may be true.

[00:25:20] Speaker 01:
What it certainly is, though, is a Dow situation, where you have infinite ways of coming at what this lifetime is.

[00:25:27] Speaker 01:
It can be something you validate or not.

[00:25:30] Speaker 01:
It can be something you put on your packaging or not.

[00:25:33] Speaker 01:
It can be something you claim covertly or overtly or not.

[00:25:37] Speaker 01:
And we know this from the patent itself.

[00:25:39] Speaker 01:
If you look at Table 5, every embodiment is given a lifetime of 40.

[00:25:43] Speaker 01:
It doesn't mean it was claimed, verified, validated, put on packaging, advertising.

[00:25:48] Speaker 01:
It doesn't say how they came up with it.

[00:25:49] Speaker 03:
What about Ms.

[00:25:49] Speaker 03:
Maynard?

[00:25:50] Speaker 03:
And I recall this being the case, that she mentioned there's something.

[00:25:53] Speaker 03:
I don't know if it's in the spec or there was evidence about this.

[00:25:57] Speaker 03:
I don't know.

[00:25:57] Speaker 03:
Is it the NSF standard or that there's a standard that's used in the art?

[00:26:03] Speaker 01:
There's a standard called NSF 53, which gives you some guidance as to how to test for lead.

[00:26:07] Speaker 01:
Now, that has evolved over time.

[00:26:08] Speaker 01:
But in no way did the construction of the ALJ or the patent itself limit that lifetime to validation under NSF 53.

[00:26:16] Speaker 01:
It could be validated under chlorine, chromium, all sorts of other contaminants.

[00:26:19] Speaker 03:
But aren't there rules of the game in terms of manufacturers putting lifetime stuff on their packaging?

[00:26:25] Speaker 01:
Depends.

[00:26:26] Speaker 01:
Yes, there should be.

[00:26:27] Speaker 03:
It's not anything and everything in the world.

[00:26:29] Speaker 03:
I assume there's guidance and there are requirements in terms of representations.

[00:26:34] Speaker 01:
Quite correct, Your Honor.

[00:26:35] Speaker 01:
In the real world there are, but not in the world of the 141 patent.

[00:26:38] Speaker 01:
They arbitrarily put the lifetime as 40 on their prototypes, which they haven't validated for any lifetime.

[00:26:45] Speaker 01:
haven't put on any manufacturing label at all.

[00:26:48] Speaker 01:
So yes, in the real world, yes, there are ways you can challenge someone's lifetime.

[00:26:51] Speaker 01:
Brita, Pure, Lyserol, no one's gonna put a lifetime that they haven't verified on their product.

[00:26:56] Speaker 01:
The problem is, when it comes to prior art, when it comes to embodiments of the patent, when it comes to ascribing a lifetime to a filter,

[00:27:05] Speaker 01:
Anything goes in the 141 patent.

[00:27:08] Speaker 01:
They just arbitrarily choose 40.

[00:27:10] Speaker 01:
And I think it's best shown that in their blue brief on page 51.

[00:27:13] Speaker 05:
If they choose 40, then that's what they've claimed.

[00:27:18] Speaker 05:
behind whether it's accurate or not and maybe that's not even what the claim calls for.

[00:27:23] Speaker 05:
If the claim just simply calls for the lifetime is whatever, go reference another document and you'll get that number.

[00:27:30] Speaker 05:
And then if that number is different from a second document that claims yet a different lifetime value, then you'll have an indefiniteness problem because then you'll have multiple documents or multiple standards indicating different values.

[00:27:43] Speaker 05:
Then there's an

[00:27:45] Speaker 05:
indefinite in this problem.

[00:27:46] Speaker 05:
But just the mere fact that they claimed a number, whether it is truly scientifically accurate or not, is nevertheless the number that they claimed.

[00:27:54] Speaker 05:
And if it happens to be in a document, whether it's on their website or the materials that come with the product, that's the number.

[00:28:01] Speaker 05:
So it's not unclear or unbounded or uncertain as to what the meaning is.

[00:28:06] Speaker 01:
So the problem is, you're correct.

[00:28:08] Speaker 01:
They can claim it, and that's something you can objectively see, but it's the way you get at it.

[00:28:12] Speaker 01:
How did they verify it?

[00:28:13] Speaker 01:
Just like in doubt, how did they come to this lifetime?

[00:28:15] Speaker 01:
Is it what they wrote down on the packaging?

[00:28:18] Speaker 01:
Did they use NSF 53?

[00:28:20] Speaker 04:
Why does it matter if what we're talking about here is a claim as to what the lifetime of the product is?

[00:28:26] Speaker 04:
And if the claim is 30 days, or it's 100 days, or 150, you satisfied that, right?

[00:28:33] Speaker 01:
Sure, but that certainly matters as to what the scope of the patent is.

[00:28:36] Speaker 01:
If the lifetime is 20, that impacts where you measure your effluent lead, which impacts the FRAP factor, right?

[00:28:43] Speaker 01:
So if you say your lifetime is arbitrarily 20, that changes your FRAP value, not just in a linear sense by doubling it, but it also impacts when you measure your outgoing lead, the CE in the numerator of the FRAP equation.

[00:28:54] Speaker 01:
It changes that because that's when you measure it.

[00:28:56] Speaker 05:
Are you going to talk about written description?

[00:28:57] Speaker 01:
I'd love to talk about written description.

[00:29:00] Speaker 01:
Now, one thing before I do, though, my friend at Brita did mention that in their reply brief that this was not a functional patent.

[00:29:09] Speaker 01:
This is only a functional patent.

[00:29:13] Speaker 01:
TRAP stands for the Filter Rate and Performance Factor.

[00:29:16] Speaker 01:
The patent tells us in this column that we've been talking about, column 26, lines 61 through 65,

[00:29:23] Speaker 01:
that no mixed media filters tested met to the claimed FRAP factor range due to their inability to remove particulate lead.

[00:29:30] Speaker 01:
The formulations of the gravity-fed carbon blocks disclosed are unique in their ability to meet the required FRAP factor.

[00:29:37] Speaker 01:
The reason the patent says this is because it's the truth.

[00:29:41] Speaker 01:
The inventors came up with specific carbon blocks.

[00:29:45] Speaker 01:
that involved binders and minced up carbon, very different than mixed media filters, to crack the FRAP equation, to get that really low reduction of lead that gives them the difference in the FRAP.

[00:29:57] Speaker 01:
The reason it tells the truth is because every inventor confirmed this in their depositions.

[00:30:01] Speaker 01:
Every inventor testified, no, we did not come up with mixed media.

[00:30:05] Speaker 01:
The secret to this was moving from mixed media to the carbon block.

[00:30:08] Speaker 01:
It gave us more service area.

[00:30:10] Speaker 01:
They even tried to patent their carbon blocks in the parent applications and giving the various cylinder sizes, the compression rates, all of the different types of carbons you would put in it.

[00:30:19] Speaker 01:
And it was turned down by the patent office for lacking written description and enablement.

[00:30:24] Speaker 01:
And so they turned, they figured out, what can we patent here that's the difference between what's out there in the art and what we have?

[00:30:30] Speaker 01:
And that's where FRAP came in.

[00:30:31] Speaker 05:
Didn't the ALJ credit Dr. Freeman over Dr. Hatch in terms of whether a skilled artisan would be able to use activated carbon and lead scavenger and these other types of media to get the good FRAP value?

[00:30:45] Speaker 01:
See, there's a key distinction in there, Your Honor.

[00:30:48] Speaker 01:
The distinction is that they credit the ability that it's known in the art to change these variables to use activated carbon in a lead scavenger in a filter.

[00:30:55] Speaker 01:
There's no question that skilled artisans could do that.

[00:30:58] Speaker 01:
There's no question that people could change volume and change the inputs, at least volume as an input and change your carbon as an input and change your filter shape as an input and then test it to see how it does with the frat.

[00:31:10] Speaker 01:
But that's not the question.

[00:31:11] Speaker 01:
The question is, can a skilled artisan, including Brita, including people skilled at art at the time, take a known filter and get to that exceptional FRAP filter rate that was the point of novelty of this patent?

[00:31:22] Speaker 01:
And the patent tells us they couldn't.

[00:31:24] Speaker 01:
None of the mixed media filters that Brita had in its possession that they tested or tested on the market, pulled off the shelf or tested themselves, could meet that FRAP limitation.

[00:31:32] Speaker 01:
So they switched to carbon block, tried to patent those, didn't get those, and then came up with the FRAP equation and tried to patent that.

[00:31:39] Speaker 01:
covering all filters, not just mixed media, not just depth media.

[00:31:44] Speaker 01:
Any filter out there that has carbon block and something that reduces lead that meets the FRAP equation, regardless of who invented it.

[00:31:50] Speaker 01:
And I think it's telling, Your Honor, that in the actual specification, they tell the world that mixed media filters cannot meet the FRAP limitation because they cannot reduce particulate lead.

[00:32:00] Speaker 01:
And every accused product in this investigation is a mixed media filter.

[00:32:06] Speaker 01:
I think that is a good point.

[00:32:07] Speaker 01:
poster child for violations of equipment.

[00:32:09] Speaker 05:
How did your clients figure it out?

[00:32:11] Speaker 01:
It's many, many, many years, Your Honor.

[00:32:14] Speaker 01:
And trying new and old ingredients, it took, speaking here, just knowing myself, I would say 10,000 hours almost to get there.

[00:32:24] Speaker 04:
So I know that this issue's not before us, but I'm still interested in the Section 101 decision.

[00:32:31] Speaker 04:
Was a determination ever reached by the I2C on that?

[00:32:35] Speaker 01:
No, Your Honor, the Commission took no position on it.

[00:32:37] Speaker 01:
So if you were to reverse on all three, it's going to be remanded to the Commission to not only look at 101, look at 102 for anticipation, look at 112 again, because not only do we have to change those issues.

[00:32:50] Speaker 01:
She did reach those issues.

[00:32:52] Speaker 01:
She found a patent eligible, right?

[00:32:54] Speaker 01:
She did.

[00:32:54] Speaker 01:
But in doing so, she also found that there's a problem with all of the factors involved, that they are interrelated and that they have unpredictable results.

[00:33:02] Speaker 01:
But all of that has been vacated and taken no position on by the commission.

[00:33:06] Speaker 01:
And so if it gets remanded, if we get through all three of these hurdles today, it's going to go back to the commission.

[00:33:11] Speaker 05:
When does this patent expire?

[00:33:13] Speaker 01:
December 20, 2026.

[00:33:14] Speaker 01:
And I'm hoping my friend will correct me if I'm wrong on that.

[00:33:22] Speaker 04:
What was the focus of the one on one?

[00:33:26] Speaker 04:
argument or discussion?

[00:33:27] Speaker 04:
Was it the frat formula or the carbon black filters?

[00:33:32] Speaker 01:
Well, it's the idea that they've come up with this equation that by its application preempts an entire field of water filtration.

[00:33:40] Speaker 01:
The only structure that's given in the equation is activated carbon, which every filter has had since the Romans, and a lead scavenger, which has a very broad definition, which is anything that reduces lead from drinking water.

[00:33:52] Speaker 01:
Very broad definitions.

[00:33:54] Speaker 01:
And all that's limited by is the performance of that filter.

[00:33:56] Speaker 01:
Can it get?

[00:33:57] Speaker 01:
Can it be fast?

[00:33:58] Speaker 01:
Can it be reducing lead enough to get under that trap of 350?

[00:34:02] Speaker 01:
So the idea is they are preempting an entire field of gravity-fed water filtration in the future, regardless of the format, the size, and the type of media that it actually uses.

[00:34:12] Speaker 01:
So that's the gist of it all.

[00:34:13] Speaker 01:
Thank you.

[00:34:14] Speaker 01:
Thank you very much.

[00:34:22] Speaker 02:
Thank you for your indulgent honor.

[00:34:24] Speaker 02:
I'll be quick.

[00:34:25] Speaker 02:
So to the commission's arguments, the commission's decision cites, it says it is relying on only express disclosures in the patent and the undisputed record.

[00:34:37] Speaker 02:
That's at A38 and A35 to 37.

[00:34:40] Speaker 02:
There's something similar about enablement on A57 to 58, the undisputed record.

[00:34:45] Speaker 02:
So they did cite, in a couple of places, Dr. Hatch and Dr. Freeman, but for undisputed points.

[00:34:52] Speaker 02:
undisputed points that there are only carbon block working examples in the patent and that the factors are interrelated.

[00:35:01] Speaker 02:
But they didn't undo the finds of fact by the ALJ who credited our expert and discredited Dr. Hatch on the things that matter.

[00:35:10] Speaker 02:
Could a person of skill in the art take the teachings of the patent and apply them to other filter media?

[00:35:18] Speaker 02:
And despite what my friend on the other side says, the ALJ repeatedly found that and credited Dr. Freeman saying it would be relatively easy to do.

[00:35:26] Speaker 02:
It's old science.

[00:35:28] Speaker 02:
It would take a short while.

[00:35:29] Speaker 02:
It's routine.

[00:35:30] Speaker 02:
Persons with skill in the art can do it.

[00:35:32] Speaker 05:
I mean, wasn't it true, though, that in the prior art, for mixed media filters, there was already a known desire and goal to have good filtration time and low lead concentration?

[00:35:45] Speaker 05:
But then when it turned out for mixed media, it couldn't have both.

[00:35:50] Speaker 05:
You'd either have a good filtration time and high lead, or you'd have an acceptable amount of lead, but then a high filtration time.

[00:35:59] Speaker 05:
And now the invention is, go do both, figure it out.

[00:36:03] Speaker 05:
That's kind of the nub of the problem here, where it's

[00:36:08] Speaker 05:
Meet this formula by having a low filtration time and a low lead concentration.

[00:36:14] Speaker 05:
I figured it out for carbon box.

[00:36:16] Speaker 05:
Now, you do it for mixed media and non-wovens and hollow fibers and ligands and whatever else are known.

[00:36:25] Speaker 02:
And that's what the trial was about, Judge Shen.

[00:36:28] Speaker 02:
And the ALJ credited our expert and discredited their expert and found as fact that this was well-known science, that he teaches these principles,

[00:36:38] Speaker 02:
for 30 years to undergraduates that it's simple to do, that people of skill and the art know how to do it.

[00:36:43] Speaker 02:
And that's not the basis of the commission's decision here.

[00:36:47] Speaker 02:
The commission relied on a misreading of column 26, undisputed evidence that I mentioned, and inventor testimony to bolster its conclusion about, its wrong conclusion about column 26.

[00:36:57] Speaker 02:
And my friend on the other side cites the unique sentence in column 26 that says, the formulations disclosed here are unique.

[00:37:05] Speaker 02:
And yes, the formulations disclose the working examples are carbon blocks.

[00:37:08] Speaker 02:
Nobody disputes that.

[00:37:09] Speaker 02:
But it wasn't saying we tried to apply this or it won't work to mixed media.

[00:37:14] Speaker 02:
And just one thing on indefiniteness, well, one more point.

[00:37:18] Speaker 02:
The narrative is just not true that they cite, that we applied for the other patents, and then this one was sought and filed before any of the dates that they attach in theirs.

[00:37:28] Speaker 02:
And with that, we would ask you to reverse.

[00:37:30] Speaker 02:
Thank you so much for your indulgence.

[00:37:32] Speaker 03:
Thank you.

[00:37:32] Speaker 03:
And we thank all sides in the case this weekend.