[00:00:00] Speaker 03:
The first is number 23, 1689, US Wells Services, LLC, versus Stewart.

[00:00:06] Speaker 03:
Mr. Dowd.

[00:00:08] Speaker 00:
Good morning, Your Honors.

[00:00:09] Speaker 00:
May it please the Court?

[00:00:11] Speaker 00:
If I may, I'd like to start and jump right to the point with the Coley reference and the obviousness determination by the Board in this case.

[00:00:20] Speaker 00:
And if I could direct the Court's attention

[00:00:23] Speaker 00:
to the key aspect of that prior reference, which we believe shows the board's error.

[00:00:31] Speaker 00:
And this is at Appendix 684.

[00:00:40] Speaker 00:
And it's paragraph 69 in the Coley reference.

[00:00:48] Speaker 02:
684?

[00:00:54] Speaker 00:
So paragraph 69 is in the upper right hand column.

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And so just to give preface, the premise of Halliburton's obviousness argument and the board's decision was that one of ordinary skill in the art would have started with Coley and then added a reference to add the monitoring pressure limitation.

[00:01:16] Speaker 00:
But our point has always been that when you read the Coley reference,

[00:01:21] Speaker 00:
It provides a description that obviates any need for monitoring pressure in the well fracturing system.

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And the sentence is, by extrapolating a maximum current value from this input, electric motor does not have the available power to exceed its operating pressure.

[00:01:41] Speaker 00:
So that disclosure, one of the skill in the art would understand that

[00:01:46] Speaker 00:
Whatever else Coley is describing is describing an electric powered fracturing system that has a procedure that obviates any need to monitor pressure in the well fracturing system.

[00:02:02] Speaker 02:
But counselor, in order to determine and to set the available power to ensure that that available power does not exceed its operating pressure, why isn't that monitoring pressure?

[00:02:17] Speaker 00:
Because in our invention, monitoring pressure is the act of actually measuring the pressure in the operating well and the fluid.

[00:02:29] Speaker 00:
This is a fundamentally different approach, and it takes a different tact at perhaps solving a similar solution in terms of avoiding the overpressure.

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And Coley actually talks about that in paragraph 68 on the bottom of that page, where it's talking about a more conventional approach

[00:02:48] Speaker 00:
which is, in fact, what we're doing, or was contemplating in our patent, in terms of going out, monitoring pressure, get the feedback of the pressure of the fluid, and then adjusting as necessary.

[00:03:00] Speaker 00:
But COLE takes a fundamentally different approach.

[00:03:03] Speaker 00:
And what I'd say is that the error in the board's position and decision, and the error with Halliburton's position on this, is that their expert never addressed this aspect of the disclosure.

[00:03:18] Speaker 00:
Not once does their expert, Asani, describe or address or explain how the idea of adding a pressure monitoring aspect of it from, say, Birch or Dijkstra, is in direct conflict with the teaching of Coley.

[00:03:36] Speaker 00:
And with that, you never have any motivation to combine the references.

[00:03:42] Speaker 00:
And you're sitting at a position where you're starting with the flawed fundamental reference.

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And from our position, as the patent owner in a PTAB case, we're faced with a petition.

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And we are addressing the argument advanced by the petitioner.

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Now, the petitioner in this case, through their expert.

[00:04:00] Speaker 03:
Do you agree that Dijkstra shows monitoring pressure, right?

[00:04:03] Speaker 00:
Correct, Your Honor.

[00:04:04] Speaker 00:
We agree with that.

[00:04:05] Speaker 00:
We have several disagreements in terms of whether a person of ordinary skill would combine Dijkstra with Coley.

[00:04:14] Speaker 00:
But the most fundamental aspect

[00:04:16] Speaker 00:
is that because COLE is teaching something so fundamentally different, you don't have any motivation to add a pressure monitoring limitation.

[00:04:26] Speaker 00:
It expressly says that it avoids any possibility of an overpressure.

[00:04:33] Speaker 00:
The power is not available.

[00:04:34] Speaker 00:
And this goes to the way these systems operate.

[00:04:37] Speaker 00:
And with an electrically powered fracking system.

[00:04:39] Speaker 03:
What's the disadvantage to monitoring pressure?

[00:04:42] Speaker 00:
Pardon, Your Honor?

[00:04:43] Speaker 03:
What's the disadvantage to monitoring pressure?

[00:04:47] Speaker 00:
There are disadvantages and advantages.

[00:04:49] Speaker 03:
What's the disadvantage?

[00:04:51] Speaker 00:
According to Coley, you don't have the ability to always avoid the over-pressuring.

[00:04:59] Speaker 00:
With our system, the idea and the concept is that there's a feedback system, and you're monitoring, and you're adjusting on the fly.

[00:05:07] Speaker 03:
Well, but look, excess pressure is bad.

[00:05:09] Speaker 00:
Yes, Your Honor.

[00:05:11] Speaker 03:
And so why, as the board found, isn't there a reason

[00:05:16] Speaker 03:
to monitor pressure, even if you have this current regulation.

[00:05:23] Speaker 00:
There's a reason to monitor pressure, and that's disclosed in our patent.

[00:05:27] Speaker 00:
But when you start with Halliburton's petition, the way they framed the obviousness question, they said you start with Coley, and one of Skill in the Art would have a reason to modify Coley.

[00:05:40] Speaker 00:
Our position, and their expert never addressed it directly, is that

[00:05:43] Speaker 00:
No, you don't have a reason to modify COLE, because COLE approaches it a fundamentally different way.

[00:05:50] Speaker 00:
It solves the, I admit, it solves the over-pressure problem in fracking systems, but it does so in the way that avoids any active monitoring and feedback back and forth in terms of the pressure fluid.

[00:06:04] Speaker 03:
And again... I mean, belt and suspenders is a pretty common approach when you're worried about something that could have adverse consequences.

[00:06:13] Speaker 03:
So the fact that you have a belt doesn't necessarily mean that you would eliminate suspenders.

[00:06:20] Speaker 00:
Judge, I posit it as that, yes, you could always do a belt and suspenders approach.

[00:06:25] Speaker 00:
And I think we tried to address that in our brief, not in those words.

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But when you start adding aspects to a complicated electric powered fracking system, then there are consequences.

[00:06:36] Speaker 00:
There are costs.

[00:06:37] Speaker 00:
There are other issues.

[00:06:39] Speaker 00:
But more fundamentally, that wasn't really the emphasis of the petition.

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The basis of the petition was that Coley expressly discloses and suggests monitoring pressure the same way that we do.

[00:06:54] Speaker 00:
And our point has always been that when you look at that disclosure, particularly paragraph 69, it tells one of skill in the art, no, you don't need to monitor pressure.

[00:07:04] Speaker 00:
Because we are going to set the electrical power system.

[00:07:07] Speaker 00:
This is through the VFD that transmits the power, the electrical power, to the motors.

[00:07:12] Speaker 00:
We're going to set it in a way that avoids any possibility of overpressure.

[00:07:18] Speaker 00:
The available power is not, the power is just not available.

[00:07:23] Speaker 02:
And that's what I have a hard time understanding of your argument as to why that is not monitoring

[00:07:29] Speaker 02:
the pressure, operating pressure.

[00:07:33] Speaker 02:
Wouldn't you agree that COLE teaches setting a maximum amount of power that can be sent to an electric motor?

[00:07:41] Speaker 00:
Yes.

[00:07:42] Speaker 00:
A maximum amount of power, yes.

[00:07:44] Speaker 02:
So it seems to me that to do that, to set the maximum amount of power, you have to understand the power that's already been sent to the motors.

[00:07:57] Speaker 00:
That's the electrical power, Your Honor, not the fluid pressure in the pumps and the fracking fluid.

[00:08:02] Speaker 02:
Okay, I'm talking about the electrical power.

[00:08:12] Speaker 02:
of your view is that with COLE, you can set the system and walk away.

[00:08:19] Speaker 02:
Correct, Your Honor.

[00:08:21] Speaker 02:
Whereas with the patent that we're looking at, you don't walk away.

[00:08:26] Speaker 02:
Somebody's monitoring continuously.

[00:08:29] Speaker 00:
Yes, Your Honor.

[00:08:30] Speaker 00:
And that's the fundamental point of the U.S.

[00:08:32] Speaker 00:
Wells patent, is that there's a central monitoring system, and you're getting constant feedback back and forth.

[00:08:38] Speaker 02:
There may be two different ways to monitor.

[00:08:44] Speaker 02:
monitoring the system.

[00:08:46] Speaker 02:
One or the other is monitoring the system.

[00:08:49] Speaker 00:
Judge Ray and I agree with you.

[00:08:50] Speaker 00:
It's monitoring the system overall, but it's not monitoring the pressure.

[00:08:55] Speaker 00:
And let me touch on another point as well, too, which I think highlights the inconsistency in Halliburton's and Halliburton's argument in the board's decision, is that there are two aspects of the limitation.

[00:09:07] Speaker 00:
One is monitoring pressure of the electric generators, and one's monitoring pressure of the pumps.

[00:09:14] Speaker 00:
Now, on one hand, they say, and they point to, I believe it's paragraph 72, that Coley describes monitoring any and every aspect of the system.

[00:09:27] Speaker 00:
But that argument is inconsistent with their fundamental approach of having to bring in another reference, Birch, which is apparently directed to monitoring the pressure of the gas in the generator.

[00:09:40] Speaker 00:
So if you were to accept the board's premise and Halliburton's argument,

[00:09:45] Speaker 00:
that COLE by itself discloses, quote, monitoring all aspects of the system, then there's no reason to bring in any other reference.

[00:09:56] Speaker 00:
But this is a little circular, because again, it brings us back to paragraph 69.

[00:10:02] Speaker 00:
And if I may, Your Honor, even if the court accepts the board's argument, we still have fundamental issues with how the board treated

[00:10:13] Speaker 00:
the evidence of secondary considerations.

[00:10:16] Speaker 00:
And if I could turn to that for a few minutes.

[00:10:19] Speaker 00:
There, as we said in our brief, we think there is an inherent

[00:10:24] Speaker 00:
inconsistency in the court's case law and how it treats NEXIS.

[00:10:28] Speaker 00:
And what we did, we took the approach that's set forth in WBPI case, where if we show that as an embodiment of the claimed invention, that establishes NEXIS.

[00:10:40] Speaker 00:
And if you go back to one of the earliest NEXIS cases, DiMACO, it describes the NEXIS analysis as a procedure of shifting the burden of production.

[00:10:52] Speaker 00:
And we took an approach where we satisfied our burden of production for producing evidence of secondary considerations to overcome any prima facie obviousness case.

[00:11:04] Speaker 00:
And that should have shifted the burden to haliburton.

[00:11:07] Speaker 03:
You're saying you established Nexus?

[00:11:08] Speaker 00:
Yes.

[00:11:09] Speaker 00:
Two things, Your Honor.

[00:11:11] Speaker 00:
We established a

[00:11:12] Speaker 00:
presumption of nexus because our commercial embodiment of the clean fleet is an embodiment of the claimed invention.

[00:11:20] Speaker 03:
I'm not sure that your evidence showed that.

[00:11:23] Speaker 03:
I've read the declarations that you're relying on.

[00:11:26] Speaker 03:
It seems to me they're pretty fuzzy about that.

[00:11:30] Speaker 00:
I would push back a little bit, Your Honor, on the fuzzy characterization.

[00:11:34] Speaker 00:
The one point that the board identified was the board claimed that we didn't show that our data van does pressure monitoring.

[00:11:45] Speaker 00:
But then if you look at Appendix 2212,

[00:11:59] Speaker 00:
And 2212 is one of U.S.

[00:12:02] Speaker 00:
Wells Service's brochures describing the Clean Fleet product, which we contend is an embodiment of the invention.

[00:12:12] Speaker 00:
And what the board concluded was, well, it concluded two things.

[00:12:17] Speaker 00:
It dismissed this evidence because... Where is this show, President Jonathan?

[00:12:22] Speaker 00:
Yeah, so on 2212, let's see, one, two, three, the fourth line,

[00:12:28] Speaker 00:
If we start on the right hand side, it says analog communications with pressure transducers.

[00:12:35] Speaker 00:
That aspect, which our expert highlighted in his declaration, was never addressed by the board.

[00:12:42] Speaker 03:
I don't know what that means.

[00:12:44] Speaker 03:
I don't know what that means, pressure monitoring or not.

[00:12:46] Speaker 00:
Transducer is a standard mechanical or electrical device for measuring the pressure.

[00:12:51] Speaker 00:
And there's never any dispute about that.

[00:12:53] Speaker 00:
the other side halibut never disputed this never challenges their expert never challenges and this is another critical point here halibut expert provided no opinion about the secondary consideration evidence can you say analogue communications with pressure transducers means monitoring pressure yes sir there's no dispute your witness doesn't say that no he he does because where does he say that so if if we turn to twenty four twenty nine

[00:13:26] Speaker 00:
And this is his chart that he provided.

[00:13:30] Speaker 00:
On the left-hand side of the column, we have the relevant limitation where it says monitor at least one of pressure and temperature of the plurality of electric pumps and the plurality of generators.

[00:13:41] Speaker 00:
And the first paragraph, he starts off with the clean fleet data van, which is our commercial embodiment.

[00:13:47] Speaker 00:
And then he goes to, for example, the data van's centralized control unit.

[00:13:51] Speaker 00:
And he continues.

[00:13:52] Speaker 00:
And the penultimate line in that paragraph

[00:13:55] Speaker 00:
sites and quotes pressure transducers.

[00:13:59] Speaker 00:
And he is explicitly saying that that limitation, that disclosure, lines up with our limitation in the claim.

[00:14:08] Speaker 00:
Halliburton never challenged it.

[00:14:09] Speaker 00:
Halliburton never disputed it.

[00:14:11] Speaker 00:
The board never addressed it.

[00:14:13] Speaker 00:
And so we're left with a position where we presented this evidence to actually show nexus even beyond presumption.

[00:14:19] Speaker 03:
Well, the board did say that you hadn't established that the

[00:14:24] Speaker 03:
device includes all of the claimations.

[00:14:30] Speaker 00:
Well, correct, Your Honor, and I believe that's Appendix 52 or 53.

[00:14:40] Speaker 00:
So the bottom paragraph of Appendix 53, patent owner has also not satisfied his burden to establish nexus absent of presumption.

[00:14:50] Speaker 00:
First, they questioned the reliance on our own exhibits, complaining that, quote, they're not objective evidence.

[00:14:57] Speaker 00:
And then second, the board continues and claims that we didn't show that there's a pressure monitoring element.

[00:15:03] Speaker 00:
But 2212 expressly does.

[00:15:07] Speaker 00:
I see him into my getting closer.

[00:15:09] Speaker 00:
We'll give you two minutes.

[00:15:10] Speaker 00:
Thank you.

[00:15:17] Speaker 03:
Mr. Shahjahan.

[00:15:23] Speaker 01:
The Board's decision should be affirmed because substantial evidence supports the Board's findings about the disclosures and colleague.

[00:15:32] Speaker 01:
And second, Your Honors, the Board committed no legal error and followed long-standing case law when it determined that U.S.

[00:15:40] Speaker 01:
Well failed to establish a presumption of nexus.

[00:15:44] Speaker 01:
Turning to the question on nexus and this issue of whether or not the Clean Fleet product was an embodiment,

[00:15:52] Speaker 01:
The claims require specific monitoring, the monitoring of pressure and temperature of the generators and the pumps.

[00:16:00] Speaker 01:
The board noted that the brochure Mr. Dowd pointed the court to mentions data monitoring.

[00:16:07] Speaker 01:
It doesn't mention which data is monitored and that it's the data required by the claims.

[00:16:11] Speaker 01:
Mr. Dowd points to a disclosure about pressure transducers, but there's no disclosure whether or not those transducers are tied to the equipment that the claims require, namely the pumps and the generators.

[00:16:24] Speaker 01:
So the board had substantial basis to find a failure to show that the clean fleet product was an embodiment.

[00:16:33] Speaker 01:
Mr. Dowd also raises issues

[00:16:35] Speaker 01:
about supposed inconsistencies in the case law because he points to the Fox Factory case and says that it's inconsistent because it requires the commercial product to be an embodiment and also to be coextensive or commensurate with the claims.

[00:16:53] Speaker 01:
And US Well argues that that's inconsistent with the Demico case from 1988, but it's not.

[00:17:00] Speaker 01:
That case also articulated the coextensiveness requirement

[00:17:04] Speaker 01:
That's on 851F2, page 1392, where the court explained that when the thing that's being sold isn't coextensive, then the patentee has to make a showing of actual nexus.

[00:17:17] Speaker 01:
It has to make a prima facie showing of a legally sufficient connection.

[00:17:21] Speaker 01:
So the coextensiveness requirement has been in the case law from the beginning, and there's no inconsistency in the Fox Factory case.

[00:17:33] Speaker 01:
The board's finding on the disclosures in Colley.

[00:17:37] Speaker 01:
The board found Colley to disclose a control system that is coupled to and that monitors the pressure of the pumps.

[00:17:45] Speaker 01:
That finding was based on the explicit disclosures.

[00:17:52] Speaker 02:
Your friends on the other side, are you inherent or inherently?

[00:17:58] Speaker 02:
Can you address that issue?

[00:17:59] Speaker 01:
Sure.

[00:18:00] Speaker 01:
The board didn't rely on an inherency or make an inherency finding.

[00:18:05] Speaker 01:
The board's findings were grounded in explicit disclosures in the CALI reference and in expert testimony about what those disclosures mean, what they tell persons of ordinary skill in the art.

[00:18:18] Speaker 01:
And if we look to the disclosures, paragraph 69 of CALI, which we were just discussing, that's on page 684,

[00:18:27] Speaker 01:
that discloses that a maximum pressure value is set at the beginning of the operation.

[00:18:34] Speaker 01:
So maximum pressure is a preset parameter in the CAULE system and paragraph 72.

[00:18:40] Speaker 01:
It's the only parameter.

[00:18:43] Speaker 02:
There's no monitoring of the system under CAULE, right?

[00:18:46] Speaker 01:
In paragraph 72, Collie mentions computer monitoring for the entire operation, which facilitates the adherence to preset safety parameters.

[00:18:57] Speaker 01:
So these explicit disclosures teach

[00:19:00] Speaker 01:
monitoring for precept parameters and they teach that maximum pressure is a precept parameter.

[00:19:07] Speaker 03:
We don't even need to reach that though since Dijkstra discloses pressure monitoring.

[00:19:12] Speaker 01:
Exactly.

[00:19:12] Speaker 01:
There's no dispute that Dijkstra discloses pressure monitoring.

[00:19:16] Speaker 01:
The arguments made against the Dijkstra grounds in the briefing and by Mr. Dowd weren't made to the board.

[00:19:25] Speaker 01:
So yes, you're right.

[00:19:27] Speaker 01:
That issue doesn't need to be reached.

[00:19:28] Speaker 01:
The other issue that doesn't need to be reached is the Nexus issue because the board made an alternative analysis on appendix page 55 of its decision.

[00:19:40] Speaker 01:
It proceeded to look at the evidence assuming Nexus had been established and found the evidence to be unpersuasive to establish commercial success or praise.

[00:19:52] Speaker 01:
And the board had substantial basis to make

[00:19:55] Speaker 01:
That determination to weigh the evidence and exercise its discretion, the evidence on commercial success lacked context and lacked support.

[00:20:06] Speaker 01:
And it came from witnesses who were US Well employees and named inventors and therefore had an interest in the validity of the patent.

[00:20:18] Speaker 01:
So the board's decision should be affirmed because substantial evidence supports the findings on the disclosures in Colley and the reasons to combine the references.

[00:20:29] Speaker 01:
And the board's nexus determination was legally correct and sound.

[00:20:34] Speaker 01:
So unless the court has any other questions, we have nothing further.

[00:20:38] Speaker 02:
Can you comment briefly on the evidence that was submitted on secondary considerations?

[00:20:45] Speaker 02:
Sure.

[00:20:45] Speaker 02:
The brochures and things like that.

[00:20:47] Speaker 01:
Sure, sure.

[00:20:48] Speaker 01:
The evidence on commercial success was, it came in the form of witness testimony from Mr. Broussard, who is the CEO of US Well and an Indian inventor, and there was also evidence about licensing.

[00:21:05] Speaker 01:
The board considered the commercial success evidence, the witness testimony.

[00:21:11] Speaker 01:
It didn't dismiss it out of hand.

[00:21:13] Speaker 01:
It noted that

[00:21:14] Speaker 01:
these, that this declarant was a U.S.

[00:21:18] Speaker 01:
well employee and a named inventor.

[00:21:21] Speaker 01:
So it looked at what Mr. Broussards said on commercial success.

[00:21:26] Speaker 01:
He mentioned a 22 percent.

[00:21:29] Speaker 03:
It is a little troubling that they referred to the testimony of the employees as sort of biased and doesn't constitute objective evidence.

[00:21:37] Speaker 03:
I mean, it perhaps could be discounted on that ground, but I think

[00:21:42] Speaker 03:
Perhaps the board went a little bit overboard in dismissing it.

[00:21:48] Speaker 01:
Well, the board didn't dismiss it out of hand.

[00:21:50] Speaker 01:
The board looked at what Mr. Broussard said.

[00:21:52] Speaker 01:
It looked at what he cited.

[00:21:54] Speaker 01:
And then on Appendix Page 57, it said, after weighing it and looking at what he says and what he cites, we find it to be unpersuasive to establish commercial success.

[00:22:04] Speaker 02:
To what extent was commercial data submitted to prove commercial success?

[00:22:12] Speaker 02:
a change in price, also a market share, things of that nature.

[00:22:18] Speaker 01:
Are you asking what the evidence from US Well was of commercial success?

[00:22:21] Speaker 01:
It was of a supposed growth rate in US Well's sales.

[00:22:26] Speaker 01:
But the board looked at where this allegation came from.

[00:22:30] Speaker 01:
It came from Mr. Broussard.

[00:22:32] Speaker 01:
And I looked at what he cited.

[00:22:34] Speaker 01:
He cited the file history for the 410 patent.

[00:22:37] Speaker 01:
The board looked at that and said, I see the statement of a 22% growth rate there also.

[00:22:42] Speaker 01:
But there's no citation.

[00:22:44] Speaker 01:
There's no support.

[00:22:45] Speaker 01:
So therefore, it's insufficient support for Mr. Broussard's statement.

[00:22:49] Speaker 01:
Mr. Broussard also cited to a declaration of a Mr. O-Ring, who is another US Well employee.

[00:22:56] Speaker 01:
The board looked at that declaration and said, Mr. O-Ring, he never spoke to the 22% growth rate issue at all.

[00:23:03] Speaker 01:
So that was in support for Mr. Broussard either.

[00:23:05] Speaker 01:
So it didn't dismiss Mr. Broussard's testimony just because he was an interested witness.

[00:23:11] Speaker 01:
It looked at what he said and what he cited and found it to be unpersuasive.

[00:23:17] Speaker 01:
On the licensing evidence,

[00:23:19] Speaker 01:
The board looked at what that was.

[00:23:21] Speaker 01:
That was also Mr. Broussard's testimony.

[00:23:23] Speaker 01:
That was a press release about a license.

[00:23:26] Speaker 01:
The board looked at what they said.

[00:23:28] Speaker 01:
They said that the clean fleet technology was licensed, but it didn't say one way or another what technology that was, what patents that covered.

[00:23:37] Speaker 01:
Mr. Broussard's statement is on page 1182 of the appendix in paragraph 12.

[00:23:43] Speaker 01:
and the press releases on page 1151 of the appendix, and both failed to provide the detail that would have been needed to establish that as persuasive licensing evidence.

[00:23:56] Speaker 01:
The board noted other shortcomings in the commercial success evidence, the failure to define the relevant market and the failure to provide sales figures.

[00:24:06] Speaker 01:
That was on page 58 of the board's decision.

[00:24:09] Speaker 01:
So the board looked at the totality of the evidence, weighed it,

[00:24:13] Speaker 01:
exercise uh... performed its role as a fact-finder and it found the evidence to be unpersuasive and there was no abuse of discretion there so that that uh... that determination should be affirmed okay thank you okay thank you very much mister dad you have two minutes thank you your honor if i could just quickly

[00:24:42] Speaker 00:
talk about one piece of the commercial success evidence.

[00:24:46] Speaker 00:
And this is that Appendix 0057.

[00:24:49] Speaker 00:
And the board completely dismissed our evidence of licensing because it applied the best evidence rule.

[00:24:58] Speaker 00:
We explained it in the brief.

[00:25:00] Speaker 03:
But your licensing evidence didn't tie it to the patent.

[00:25:05] Speaker 00:
Your Honor, it tied it generally to this technology.

[00:25:09] Speaker 00:
And there is no dispute from the other side

[00:25:11] Speaker 00:
And this is a fundamental concern that I have.

[00:25:14] Speaker 03:
If you look at 1180, this is Bruce Hardt's testimony.

[00:25:17] Speaker 03:
He says the commercial success of the Clean Feet product and technology is due to the addition of the all-electric motors and electric pumps.

[00:25:26] Speaker 03:
That is not the patent.

[00:25:27] Speaker 03:
He himself is tying it more generally to something which isn't patented.

[00:25:33] Speaker 00:
It's a commercial embodiment of the claimed invention at issue here.

[00:25:37] Speaker 00:
And while his

[00:25:38] Speaker 00:
while his testimony could have been more specific, it's undisputed.

[00:25:41] Speaker 00:
It's unchallenged as a factual matter.

[00:25:44] Speaker 00:
And that's a concern when I look at how the board treated the secondary consideration evidence.

[00:25:49] Speaker 00:
It dismissed O-Ring's and Broussard's testimony.

[00:25:53] Speaker 00:
essentially because they're so-called unbiased witnesses.

[00:25:57] Speaker 00:
That's a completely improper approach.

[00:25:59] Speaker 00:
If that were the approach, a patent owner would almost always never have the opportunity to have their own witness or experts or individuals who are most knowledgeable about the testimony testify about it.

[00:26:10] Speaker 00:
That happens every day in district court.

[00:26:13] Speaker 00:
And there are multiple errors about the way the board treated the secondary considerations.

[00:26:17] Speaker 00:
And ultimately, if you

[00:26:20] Speaker 00:
If you're not persuaded by my arguments today and what we put in the brief, at a minimum, I think there's a word of caution about how the board treated and dismissed our secondary considerations evidence.

[00:26:33] Speaker 00:
Sure, perhaps it could have been tied more specifically.

[00:26:37] Speaker 00:
Perhaps there could have been more information included.

[00:26:39] Speaker 00:
It's always the case.

[00:26:41] Speaker 00:
But when we're in a situation where the other side, the patent challenger, doesn't produce any evidence, that brings us back to DeMacco, where

[00:26:49] Speaker 00:
it's a burden-shifting issue.

[00:26:51] Speaker 00:
And the patent challenger has to come forth with evidence, not attorney argument.

[00:26:56] Speaker 00:
OK.

[00:26:56] Speaker 03:
Thank you, Your Honor.

[00:26:57] Speaker 03:
Thank you, Mr. Dabb.

[00:26:58] Speaker 03:
Thank both counsel and cases.