[00:00:00] Speaker 01:
Our next case for argument is FMC Corp versus Sharda 24-2335.

[00:00:06] Speaker 01:
Tepescu?

[00:00:07] Speaker 01:
How do I say your name?

[00:00:13] Speaker 01:
Tepescu.

[00:00:13] Speaker 01:
Tepescu, please proceed.

[00:00:16] Speaker 02:
Good morning, Your Honors.

[00:00:17] Speaker 02:
May it please the Court, Yurcha Tepescu, on behalf of Sharda USA, the appellant.

[00:00:24] Speaker 02:
The district court erred in granting a preliminary injunction in this case for several reasons, but I want to focus on two in my argument, if I may.

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The first being that the district court erred as a matter of law by construing the well-known term composition with new limitations based on what we think are flawed disclaimer theories.

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The second is that the court

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overlook substantial questions of anticipation under the proper construction.

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And so none of the disputes that FMC has raised take away from the vulnerability of the claims at this stage.

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We submit that under the proper claim construction, the court should reverse the preliminary injunction given the substantial questions of vulnerability with respect to anticipation at the evidence.

[00:01:09] Speaker 01:
Well, I mean, at a minimum, we have to vacate if we agree with you on the claim construction, correct?

[00:01:14] Speaker 01:
Yes, ma'am.

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And so your claim construction argument is that they had a chance to stay stable.

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They knew how to stay stable.

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They said it in the provisional.

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They knew how to stay stable.

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They said it in the 145 patent.

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They didn't say it here.

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That's it, right?

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That is really, yes, the intentional removal of that material from the provisional.

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And that's the material they rely on for both stability

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in the exclusion, right, of the prior mixtures that they say are unstable.

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All of that was excised intentionally from the applications that led to the assertive patents.

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They knew how to keep it in the one for five, like your honor said, they didn't do it in the assertive patents.

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And we know that according to MPHJ,

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in Finjen, in DDR?

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Conscious choice.

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That exactly right.

[00:01:55] Speaker 04:
No, I'm anticipating the other side will say, despite all of the deletions of physical stability, versions of the word stable, physical degradation from the specification of the asserted patents compared to the provisional and the 145, there's still content in the asserted patents that

[00:02:19] Speaker 04:
provide a strong clue that guide a skilled artisan to still think about these claimed compositions as being stable compositions.

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I know they focus on things like insecticidal

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activity.

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Maybe the word homogenous pops up somewhere.

[00:02:39] Speaker 04:
Sure does.

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Example one is still in the assertive patent specification which if you take a peek at the provisional in the 145 it's clear that what is in example one is a stable composition.

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So could you speak to these different

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parts of the actual assertive patent specifications as to whether or not we should nonetheless still think about the claimed composition as being directed to stable composition.

[00:03:11] Speaker 02:
Absolutely, Your Honor.

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And so let me start with homogeneity.

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Your Honor mentioned homogeneity.

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Homogeneous pops up, I believe, twice or three times in the patent.

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And I take it that what they mean is that by talking about homogeneous, they are in essence talking about stability.

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And therefore, that should be a reason to read stability into the claims.

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But one thing I will mention at the outset is that in the provisional, we also have a discussion of homogeneous.

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Example one is homogeneous.

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And then we have all the test data that presumably shows why it's stable.

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So there's a distinction, even in the provisional, between homogeneous and stability.

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They are not one and the same.

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There's nothing here to suggest they're one and the same.

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Perhaps a homogeneous solution is in the unstable.

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I don't know.

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The patent doesn't tell us that.

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But what we do know is that the discussion of stability and homogeneous was in the provisional, and they removed stability left in homogeneous.

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So I don't think homogeneous rises to the level of a disclaimer of claim scope.

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especially as to stability.

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Now, they also talk, as Your Honor said, about insecticidal activity and the fact that there is a benefit to be had from what is claimed in the assertive patents.

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But let's be clear, all of the discussion of insecticidal activity, whether it's in the patents or in the prosecution history, is clearly tied to the claimed ratio.

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And that's what's claimed in the assertive patents.

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It's the claimed ratio, right?

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And so, yes, there may be a benefit

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that is to be had from using these active ingredients at the claim ratio, just like we see in the claims.

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And that may be increased activity.

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But that is not what the court has done here.

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That is, the court threatened stable, and it has excluded prior art mixtures that are unstable.

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Right?

[00:05:00] Speaker 04:
Right.

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I guess the question is, does activity equal stability?

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I don't believe so, Your Honor.

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Absolutely not.

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There's two.

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One thing we know, let me start with this, one thing we know from the PACs themselves is that when they talk about the benefit of increased activity, it is over the individual compounds.

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And I can't overstate this enough, right?

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In the provisional, they said we have two inventions or two parts of an invention.

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One is that we have ratios that provide increased activity if you use the ingredients at the claimed ratio.

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Second, we have for commercial purposes,

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formulation which is stable if you use stabilizing ingredients right and so in and then they went on to distinguish in the provisional that the as they do in the assertive patents the prior art use of individual components when it comes to the increased activity it was only with respect to stability

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where they said, oh, this is better than Priart mixtures of reactive ingredients.

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And by the way, they didn't even disclaim the clean ratios of the Priart in that case.

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But nonetheless, my point, Your Honor, is in the patents, the only discussion of increased activity and the benefit it's providing is with respect to the use of the individual compounds, not mixtures.

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That was with respect to stability in the provisional.

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That was dropped.

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So yes, even if there is something to be said about the benefit

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which again, I don't think rises of increased activity.

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I don't think that rises to the level of a disclaimer that should be imported into the claims, especially when we have the claim ratios already there.

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But even if there's something to be said about that, it is only vis-a-vis the use of the individual compounds.

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And that's not what the district court did.

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The district court excluded priority mixtures.

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So even if we agree with you on this claim construction argument, I don't see how we get to the reversal that you've asked for.

[00:06:56] Speaker 02:
Well, Your Honor, because I think on the record before this Court, we appreciate the standard, right?

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The standard is whether this Court would be compelled on this record to find that there is a substantial question of validity, because we're not asking this Court to find anticipation.

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First of all, this is a preliminary injunction.

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The question is, did we raise a substantial question of invalidity below?

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And so, yes, this Court could remand on that issue.

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ask the district court to look at the issue again under the proper claim construction or... We don't have any fact findings on the references.

[00:07:29] Speaker 01:
So you want me to dive in and make fact findings on the references?

[00:07:33] Speaker 01:
We don't have any fact findings on the references.

[00:07:35] Speaker 02:
You're right.

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You're out of the court and look at the McKenzie reference under its own claim, under the improper claim construction.

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But we think that the issues are simple and we think McKenzie speaks so clearly as to the limitations of these claims, which simply require two ingredients in a claim ratio.

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And there's a table in McKenzie that says, here are the two ingredients, the two products, CAPTUR and Mustang, which, by the way, their declarant has admitted, comprise the active ingredients.

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There's no dispute that Mustang and CAPTUR are the active ingredients, regardless of which CAPTUR you're looking at.

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I know there's an argument as to, well, this table doesn't say exactly which CAPTUR.

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Is it 2EC?

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Is it the other CAPTUR?

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It doesn't matter.

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Their declarant said CAPTUR is bifenthrin.

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Mustang is zeta-cypermethrin.

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With that admission from them, that table couldn't be more clear.

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It discloses the claim range.

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I don't know what would compel the district court to find any other way.

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And so that's what we're asking this court to do, is to look at that evidence and say, and we've provided in the appendix, we have citations to the claim charts that we provided that set forth for all the limitations on that.

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So the evidence is in the record.

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It is appendix 460 to 468 and appendix 469 to 492.

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So that evidence is in the record as to why these claims are anticipated.

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And I would submit to the court that it is an easy exercise to see why the McKenzie reference anticipates.

[00:09:11] Speaker 04:
What about the mitocidal limitation?

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So on the mitocidal limitation, Your Honor, was that argued below?

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I believe it was.

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OK.

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I believe it was.

[00:09:22] Speaker 04:
And did the district court give it patentable weight?

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I think they referenced the mitocidal argument.

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The court referenced the mitocidal argument in its opinion.

[00:09:31] Speaker 04:
I see.

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But I would say on the mitocidal, Your Honor, that first of all, it is an intended use.

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It is an intended use.

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it shouldn't be ready to, it shouldn't have weight as to, or patternable weight as to the scope of these claims.

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And we know it's intended use for one of two, for several reasons, but at the very least we have claim 11.

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We have claim one in the 416 and we have claim 11.

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Claim 11, we have one claim that says mitocidal, that's claim one.

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And we have claim 11 that says mitocidal or insecticide.

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And the limitations

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as to both of those claims are the same, identical, the same active ingredients, the same claim ratios.

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So we know by virtue of claim 11 that insecticidal and mitocidal are interchangeable.

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It doesn't matter which one it is because

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the claims require the same ratio of the same active ingredients with respect to those two.

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So I don't believe, first of all, that my title is limiting precisely because it is an intended use.

[00:10:42] Speaker 02:
We also know from FMC's own argument.

[00:10:45] Speaker 01:
You're using your rebuttal time.

[00:10:46] Speaker 01:
Did you mean to do that?

[00:10:49] Speaker 01:
Feel free.

[00:10:49] Speaker 01:
It's your time.

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If I may, Your Honor.

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I'll finish this point, and then I'll say.

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By FMC's own arguments,

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They have read mitocidal as a requirement of a certain application rate, application on the field of use.

[00:11:05] Speaker 02:
How much are you applying per acre?

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That's how they look at mitocidal.

[00:11:09] Speaker 02:
Well, there's nothing in the patent itself.

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There's actually no benchmarks for what constitutes a mitocidal composition in terms of

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that measure, which they've applied to McKenzie, to say this is how much you need for it to be mitocidal.

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Nothing in the patent tells you what that is.

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The only thing we know from the patent is mitocidal is a composition that has these ingredients in this claimed ratio.

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So there are, without those benchmarks, if I have a liquid sitting in a bottle and I tell you it's got the active ingredients in the claimed ratio, how would you know if that infringed?

[00:11:41] Speaker 02:
Because according to FMC, it depends on, well, how much you apply when you use it.

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And so for that reason alone, again, I don't think my decital is out of the way here, and it should not be a hurdle as to McKinsey.

[00:11:55] Speaker 02:
Thank you, Your Honors.

[00:11:56] Speaker 02:
With that, I'll reserve the rest of my time for Rabata.

[00:11:59] Speaker 01:
Mr. Walker.

[00:12:12] Speaker 03:
Thank you, Chief Judge Moran.

[00:12:13] Speaker 03:
May it please the court?

[00:12:14] Speaker 03:
I'll get right into the clay construction issue here.

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I don't think there's much dispute that there is a disclaimer from the very first filing in this case, the 979 provisional.

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It says unstable tank mixtures, unstable compositions of bifenthrin and zeta-cypomethrin.

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Those are the prior art.

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That is the problem that we are now solving.

[00:12:32] Speaker 04:
Can you explain why the

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applicant here deleted all the many many many references to stability in from the asserted patent specifications when compared to the provisional

[00:12:47] Speaker 03:
Yeah, so we don't know why that happened.

[00:12:49] Speaker 04:
I mean, there's only one reasonable reading of why that happened.

[00:12:55] Speaker 04:
Obviously, with the 145, they kept all of the references and discussions about stability and the stability studies and et cetera, et cetera, and then got claims to that effect.

[00:13:07] Speaker 04:
Then they've got this other line of applications where they do a very assiduous comprehensive job of deleting all of the passages and references to stability.

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So unless there is a second possible reason why they would do that that I'm not aware of, I can only think of one reason why they would do that.

[00:13:31] Speaker 04:
And that would be because the purpose we decided to undo the narrowing of having all of those stability passages in the specification.

[00:13:44] Speaker 03:
Yeah, so the record doesn't show why that happened.

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Right.

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And I'm searching.

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I'm searching.

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I'm searching for what is the possible other reason for why a patent drafter would do that.

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Yeah.

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So the 145 patent is ultimately the one that issued first.

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So it seems they prioritized securing the claims that were governed.

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They're directed to the stability aspects of the invention that's disclosed in the provisional, and then

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They proceeded with the aspects that respect the effectiveness.

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But none of what they did in the applications that led to the patents here, did anything to disavow or contradict the fact they admitted that unstable compositions with these two active ingredients would be prior art.

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And therefore, not something they invented and not something that they could purport to now be claiming as their invention.

[00:14:36] Speaker 04:
Why wouldn't it be something as simple as they tried to go for the grand slam here?

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They said okay, we got the claims that we actually invented something on and now we want to go bigger We want to go broader.

[00:14:48] Speaker 03:
We want the whole tamale I I think if there was some sort of grand plan again that of course unless there's another reason you can explain well, yeah, and I I think if we're looking for a reason what a skilled artisan might think was going on is I

[00:15:01] Speaker 03:
You know, they focused first on stability because stability is so important to effectiveness.

[00:15:07] Speaker 03:
And then they saw the claims that there were most directly affecting the effectiveness aspect of this invention.

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But they weren't hiding the ball on this.

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Remember, the very first thing that they cite in all these asserted patents, you know, column one, first paragraph is this claims prior to the 979 provisional.

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So a skilled artisan is going to read that entire intrinsic record.

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They read the entire intrinsic record.

[00:15:29] Speaker 01:
Well, your problem is we have this case that came out not long ago called DDR.

[00:15:33] Speaker 01:
And DDR expressly on point says, I think, that when you have a provisional and then you have a later application that deletes material from the provisional, that that can be disclaimed.

[00:15:46] Speaker 03:
Yeah.

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So in DDR, I don't think it was adopting any sort of rigid mechanistic rule that anytime something is deleted from a specification, that that's the ball game.

[00:15:58] Speaker 03:
I think it was saying that if you have a provisional that says merchants are purveyors of goods and services, and then you have a later final application that chooses to narrow that, apparently not to avoid prior, but to choose this to narrow it.

[00:16:12] Speaker 03:
The inference that a skilled artisan would draw is that they chose to narrow the scope of their invention.

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And here I don't think that that inference works when the inference would be that they sought to broaden their invention to cover things that they have already admitted is prior art and cannot be something that they're claiming to invent.

[00:16:32] Speaker 03:
I think that inference just doesn't make sense.

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That's not how a skilled artisan would read these claims as claiming something you said is prior art.

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And so these claims are

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invalid ab initio.

[00:16:42] Speaker 03:
I think that inference just doesn't fit under the facts of this case where supposedly they were broadening the claims to cover admitted prior art.

[00:16:52] Speaker 00:
Does the inclusion of the insecticide in other forms in the asserted patents get you anywhere?

[00:16:57] Speaker 03:
Yeah, so I think there is a lot that tethers the specification of the asserted patents to the stability that's more expressly disclosed in the provisional and the 145 patent.

[00:17:09] Speaker 03:
So it says in the beginning describing all the different ways that this composition can be done is a whole bunch of stable premixtures that can be diluted or useful if they're diluted in water, which is what creates the biggest stability problems.

[00:17:24] Speaker 03:
It describes the invention in example one, which is the same example that's in the provisional and the 145 patent that we know is a stable composition, describes it as being homogeneous.

[00:17:34] Speaker 03:
And homogeneous means it's not falling apart.

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It's not being unstable.

[00:17:38] Speaker 04:
And the unexpected as I say that at the time of the mixture.

[00:17:42] Speaker 04:
It's homogeneous Or does it say it remains homogeneous over a period of time?

[00:17:47] Speaker 03:
So there it's speaking about it's homogeneous at the time of the mixture But we know that it's remaining homogeneous with time because we have these disclosures of the unexpected Effectiveness and I think my friend might have suggested I'm sorry talking about

[00:18:03] Speaker 04:
references to the 979 provisional?

[00:18:06] Speaker 03:
So the unexpected effectiveness is in provisional and it's also in the assertive patents themselves.

[00:18:13] Speaker 03:
They disclose here is the unexpected effectiveness compared to those off-the-shelf commercial products with those individual active ingredients.

[00:18:24] Speaker 04:
Is that getting back to the superior performance and interest

[00:18:29] Speaker 04:
insecticidal activity yes yes I think that's the superior unexpected synergistic insecticide so I guess I asked the same question that I asked your opposing counsel what why should activity mean the same thing as stability so the district court found this is appendix 10

[00:18:48] Speaker 03:
Skilled artisans would understand that there was this great connection between stability and effectiveness in part because as the Provisional makes clear it was well understood in the art that if you've got an unstable composition It's going to lead to inadequate efficacy.

[00:19:03] Speaker 04:
That's 870 871 thought the activity is really more about the you know the level that you're able to kill these insects or the different types of insects that you can kill and things like that and

[00:19:18] Speaker 03:
It is.

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But as the district court recognized, that was known in the art, and this is disclosed in the provisional 145 as well.

[00:19:25] Speaker 03:
It was known in the art that there is a very close tie between stability and effectiveness.

[00:19:31] Speaker 03:
If you have an unstable composition that's going to physically degrade, it's not going to be effective.

[00:19:36] Speaker 03:
It's going to be inadequately effective, as the provisional says in 871.

[00:19:40] Speaker 03:
And you don't have to take my word for it.

[00:19:42] Speaker 03:
This is something that Shardiff and its own expert said below.

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So this is appendix 2403.

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This is paragraph 13 of their expert hunt separation.

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And he explains that if a composition is going to be significantly more effective than those prior art products like Mustang and Capture are individually, the composition would necessarily have to have been stable.

[00:20:09] Speaker 03:
Because if a phase separation were to occur

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that rendered the formulation unstable, you'd expect diminished levels of biological activity.

[00:20:18] Speaker 03:
And Sharda adopted that at 2386.

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in the record.

[00:20:22] Speaker 03:
And so I think that just reinforces what the district court found, appendix 10, based on the disclosures in the 979 provisional, that people of skill and the art would understand that there was a very intimate tie between effectiveness and stability.

[00:20:38] Speaker 03:
And now to be clear, you know, we think that alone by Charter's own reckoning.

[00:20:42] Speaker 03:
Oh, and I will note, Charter was saying that in connection with the McKenzie reference.

[00:20:46] Speaker 03:
That argument didn't work with respect to McKenzie because it was not actually more effective.

[00:20:50] Speaker 03:
as the district court found, but the principle is sound.

[00:20:53] Speaker 03:
You're not going to have a surprisingly effective composition if it's unstable in the wind apart.

[00:21:01] Speaker 04:
Can you get to the anticipation question?

[00:21:03] Speaker 04:
If I can just make one last point on this?

[00:21:06] Speaker 03:
Yeah, I just say that I think that alone might get us a disclaimer based on charges on reckoning in the spec, but the point is the things in the specs of these assertive patents

[00:21:14] Speaker 03:
tether it to the clear disclaimer that was made earlier.

[00:21:17] Speaker 03:
On anticipation, again, only necessary to reach that if you overturn the district court's claim construction.

[00:21:24] Speaker 03:
And on this one, we think we understand the standard is you could affirm despite a change in the claim construction only if that's the only outcome possible on appeal.

[00:21:34] Speaker 03:
But we think with respect to anticipation and the miticidal claims in particular, we think we can meet that standard.

[00:21:41] Speaker 03:
Now, the court disagrees.

[00:21:42] Speaker 03:
If it thinks it needs to go back down for further fact finding, then it should vacate and remand.

[00:21:47] Speaker 03:
But on the miticidal claims, we think, though, there's no disclosure.

[00:21:51] Speaker 03:
in McKenzie of mitocidal activity.

[00:21:54] Speaker 03:
We think that that's a property.

[00:21:55] Speaker 03:
We don't think it's a use necessarily.

[00:21:57] Speaker 03:
We think it's a property of the composition.

[00:22:01] Speaker 04:
Didn't it say that one of the components kills mites?

[00:22:04] Speaker 03:
Yeah, so the Mustang and Bifenthrin are miticides when used by themselves, but there's nothing in McKenzie that suggests that it's going to do that when you mix it with capture.

[00:22:18] Speaker 03:
I'm sorry, capture is the

[00:22:19] Speaker 03:
Capture is the mitocidal one.

[00:22:22] Speaker 03:
There's nothing in McKenzie that suggests that when you mix it with Mustang, which we know creates an unstable fall apart composition mixture, that it's going to have that same mitocidal property.

[00:22:35] Speaker 03:
And McKenzie wasn't trying, doesn't say anything about mites, wasn't trying to test mitocidal.

[00:22:40] Speaker 04:
Is there something in the record, something evidence-based in the record that suggests that it wouldn't continue to be a miticide?

[00:22:49] Speaker 03:
So I think what we know from the record is that control that is in the provisional, which I think also reinforces the control was just a mix of capture and mustang, which makes pretty clear the inventors were not claiming to have admitted just a mix of capture and mustang.

[00:23:03] Speaker 03:
But we know that that falls apart terribly.

[00:23:06] Speaker 03:
And so I think that's plenty of reason to think that it was not going to have that mitocidal property.

[00:23:11] Speaker 01:
Can I ask?

[00:23:12] Speaker 01:
I mean, I don't remember.

[00:23:13] Speaker 01:
And a lot of cases, a lot of records.

[00:23:16] Speaker 01:
That's only in the preamble, isn't it?

[00:23:19] Speaker 03:
It is only in the preamble.

[00:23:20] Speaker 01:
And did you argue or did the district court find, has anyone concluded that the preamble's limitation?

[00:23:25] Speaker 01:
Because you know our precedent says preambles are generally not limitations.

[00:23:30] Speaker 01:
There's actually a presumption that those are not in fact limitations.

[00:23:35] Speaker 01:
So I just don't remember, did I miss that in this record?

[00:23:40] Speaker 03:
So we argue here of course before the district court district court didn't have to raise it didn't have to to reach that issue because it found that the stability requirement wasn't met by Mackenzie regardless.

[00:23:53] Speaker 01:
So you say I can only affirm.

[00:23:56] Speaker 01:
if I reach an issue, claim construction, mind you, so question of law, but the district court didn't even reach.

[00:24:04] Speaker 03:
Yes, but it is a question of law.

[00:24:06] Speaker 03:
And so I think if the court thinks that it can make that decision, that it would be the best way to do here, maybe especially because the finding of irreparable harm is uncontested on appeal.

[00:24:16] Speaker 03:
And so if the court feels that it's in a position to affirm, we'd ask that it do that, recognizing that that's a big ask.

[00:24:23] Speaker 03:
But we did argue below that the mitocytoclines were separately patentable.

[00:24:27] Speaker 01:
Why shouldn't we potentially reverse if we agreed there's a problem with the clang construction?

[00:24:34] Speaker 01:
Why wouldn't we go the other direction and conclude McKenzie clearly on its face discloses these two elements?

[00:24:42] Speaker 03:
Yeah, so I think it does not rise to the level of that's the only possible way

[00:24:46] Speaker 03:
the district court could come on this.

[00:24:48] Speaker 01:
What is the other way then?

[00:24:49] Speaker 01:
Tell me, tell me what the problem is with Mackenzie's disclosure.

[00:24:52] Speaker 03:
Yeah.

[00:24:52] Speaker 03:
So it doesn't say anything about mites and doesn't give any indication that no, that's one back to your preamble argument.

[00:24:58] Speaker 01:
Okay.

[00:24:58] Speaker 01:
So are you going to go back?

[00:25:00] Speaker 01:
So I have to, so in order to not, in order to not reverse, I have to reach the preamble argument.

[00:25:07] Speaker 01:
Is that what you're saying?

[00:25:08] Speaker 03:
Well, no, I think

[00:25:09] Speaker 03:
If the question is just whether you can vacate instead of reversing, any of the claims on anticipation will properly be vacated rather than reversed, if those were the two choices.

[00:25:21] Speaker 01:
Well, yeah, I understand you prefer that, but why?

[00:25:25] Speaker 03:
And the reason is, in addition to the mitocidal claims, which we

[00:25:28] Speaker 03:
think would themselves sustain it, is that it's a factual question.

[00:25:34] Speaker 03:
And there are definitely factual questions bearing in mind that this is more likely to prevail under a clear convincing standard at the end of the case.

[00:25:43] Speaker 03:
Whether McKenzie actually mixed these two things together.

[00:25:47] Speaker 04:
Talks about a continuous application of two or more tank mix partners, right?

[00:25:51] Speaker 03:
It does in a very general sense, but you'll know in the tables about the different kinds of experiments.

[00:25:58] Speaker 03:
For a lot of the other experiments, it actually has a footnote that says, we tank mix these two things together.

[00:26:03] Speaker 03:
There's no similar footnote that's in the tables.

[00:26:06] Speaker 01:
So you think these things can be in separate tanks?

[00:26:08] Speaker 01:
Or arguably someone could find there in separate tanks?

[00:26:10] Speaker 03:
We think someone could find that these were being applied.

[00:26:12] Speaker 01:
And then mixed later.

[00:26:14] Speaker 01:
kind of thing.

[00:26:15] Speaker 03:
Or being sprayed from separate tanks separately like that.

[00:26:18] Speaker 03:
And if that would not involve the sort of composition, the tank mix composition that is supposedly invalidated.

[00:26:25] Speaker 03:
Now, we're not asking the court to say the only possible way someone could come out on that particular question is in our favor.

[00:26:31] Speaker 03:
But we do think that if it were necessary to get there, because you've disagreed with us on claim construction, because you disagreed with us on the mitocidal claims, that that should go down to the district court to resolve.

[00:26:44] Speaker 03:
And just on the mitocidal, I do want to point out that we didn't rely on that to distinguish the prior art.

[00:26:51] Speaker 03:
During prosecution 1104, we said we were limiting it to mitocidal claims.

[00:26:56] Speaker 03:
We struck the words insecticidal or in order to distinguish a prior art reference, Ballard, that disclosed soil-borne invertebrates and insects, but not mites, which are leaf-borne, not soil-borne.

[00:27:09] Speaker 03:
And so we did rely on that.

[00:27:11] Speaker 03:
in 1104 and 1101 in the appendix is where that amendment is to distinguish a prior and we think under Catalina marketing that's enough for the preamble to be limited.

[00:27:23] Speaker 03:
No further questions we'd ask the court to affirm.

[00:27:26] Speaker 01:
Okay, thank you.

[00:27:43] Speaker 02:
If I may?

[00:27:44] Speaker 02:
Yes, please proceed.

[00:27:46] Speaker 02:
Real quickly, on the issue of claim construction and the argument that we, through our declarants, somehow acknowledge that there's a link between stability and efficiency.

[00:27:56] Speaker 02:
That is inaccurate.

[00:27:57] Speaker 02:
And what I'd like to point the court to is the context for that statement, even in the provisional.

[00:28:02] Speaker 02:
If we look at Appendix 871, this is in the summary invention in the provisional itself.

[00:28:07] Speaker 02:
There are two inventions that are defined.

[00:28:09] Speaker 02:
The first invention is that there's a mixture of pyrothroid and cyanopyrothroid, which exhibits an increase in insecticidal activity as compared again to the individual components.

[00:28:20] Speaker 02:
For commercial use, the composition comprising the mixture requires a novel formulation, which significantly improves stability when diluting the two insecticidal compounds in water.

[00:28:33] Speaker 02:
Specifically, and then it goes on to list the ingredients that make it stable.

[00:28:39] Speaker 02:
And so, yes, if we're going to look at McKenzie and say, is it stable, right?

[00:28:44] Speaker 02:
Then we would say, does it have, according to the court's claim construction, we would have to look at the claimed ratios that have the active ingredients in the claim ratios and does it meet all these other properties.

[00:28:53] Speaker 02:
So our expert, yeah, our declarant was speaking to McKenzie meeting the court's construction, which requires stability.

[00:28:59] Speaker 02:
But if the court reverses on stability, we don't have to look at this question.

[00:29:02] Speaker 02:
And here there's a clear distinction between the two inventions, right?

[00:29:06] Speaker 02:
And there is no link as to

[00:29:08] Speaker 02:
stability and efficacy.

[00:29:09] Speaker 02:
Efficacy, the activity, is solely tied to the claim ranges.

[00:29:14] Speaker 02:
And then it says, if you want to also make it stable, go ahead and put these stabilizing ingredients in.

[00:29:20] Speaker 04:
The acid, the solvent, the surfactant, et cetera.

[00:29:22] Speaker 02:
Et cetera.

[00:29:23] Speaker 02:
We see it at appendix 871, and we see it in the claims of the 145.

[00:29:27] Speaker 02:
And again, we have on the same day FMC in the 145 carrying over the deleted material.

[00:29:38] Speaker 02:
tiling for claims that have the ingredients, the claim ratio, and the stabilizing ingredients, and calling that stable.

[00:29:45] Speaker 02:
So I don't think there's any question here as to the fact that there is no link between the two.

[00:29:49] Speaker 04:
What about their Catalina marketing argument about A1104 and their office action response, amending the claim to be at my decital complex?

[00:29:59] Speaker 02:
So on that point, Your Honor, I was going to speak after that next.

[00:30:05] Speaker 02:
If you look at that actual file history, what they did is the claim said insecticidal or mitocidal, and they struck out insecticidal, and they left it as mitocidal.

[00:30:17] Speaker 02:
And that's the argument they say, well, that shows you that we meant for this claim to be mitocidal, and that must mean something.

[00:30:24] Speaker 02:
Well, what I would tell the court is if you look at the file history,

[00:30:27] Speaker 02:
What that tells us is that what they argued with respect to that claim, it wasn't that it's mitocidal in that it has mitocidal properties to distinguish over the pryart.

[00:30:37] Speaker 02:
What they told the patent office is that because it's mitocidal, it requires a foliar application on the leaves of the plants.

[00:30:46] Speaker 02:
And the pryart doesn't teach a foliar application.

[00:30:49] Speaker 02:
And that's why this claim, along with claim 11, which on its face was a new claim that was added in the same amendment,

[00:30:56] Speaker 02:
and it required a foliar insecticide or miticide.

[00:31:01] Speaker 02:
So what they did is they said, see both of these claims, they're patentable because they're foliar.

[00:31:06] Speaker 02:
And the prior doesn't say foliar, it doesn't disclose foliar.

[00:31:09] Speaker 02:
So they never argued that miticidal was, that property was what distinguished over the prior.

[00:31:17] Speaker 02:
It was the fact that it was foliar.

[00:31:19] Speaker 02:
And so that amendment I don't think means anything.

[00:31:21] Speaker 01:
Okay, thank you, Council.

[00:31:23] Speaker 01:
We're out of time for today.

[00:31:24] Speaker 01:
I think all this case is taken out of submission.