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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`BAKER HUGHES, a GE COMPANY, LLC,
`Petitioner,
`
`v.
`
`LIQUIDPOWER SPECIALTY PRODUCTS, INC.,
`Patent Owner.
`____________
`
`Case IPR2016-01901 (Patent 8,450,249 B2)
`Case IPR2016-01903 (Patent 8,426,498 B2)
`Case IPR2016-01905 (Patent 8,450,250 B2)
`____________
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`Record of Oral Hearing
`Held: December 4, 2017
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`Before KRISTINA M. KALAN, CHRISTOPHER M. KAISER,
`MICHELLE N. ANKENBRAND, Administrative Patent Judges.
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`Case IPR2016-01901 (Patent 8,450,249 B2)
`Case IPR2016-01903 (Patent 8,426,498 B2)
`Case IPR2016-01905 (Patent 8,450,250 B2)
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`HERBERT D. HART III, ESQUIRE
`McAndrews Held & Malloy Ltd
`500 West Madison Street
`34th Floor
`Chicago, Illinois 60661
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`ON BEHALF OF PATENT OWNER:
`DOUGLAS W. McCLELLAN, ESQUIRE
`Well, Gotshal & Manges LLP
`700 Louisiana, Suite 1700
`Houston, Texas 77002-2755
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`
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`The above-entitled matter came on for hearing on Monday,
`December 4, 2017, commencing at 1:00 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`P R O C E E D I N G S
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`JUDGE ANKENBRAND: Good afternoon, everyone. We're
`here today for our final hearing in IPR2016-1901, 1903, and 1905
`between Petitioner, Baker Hughes, a GE company, LLC, and Patent
`Owner, LiquidPower Specialty Products, Inc. I'm Judge Ankenbrand and
`today I'm joined by Judges Kalan and Kaiser who are appearing remotely
`from our Denver Office.
`Counsel, can you please introduce yourselves and let us know
`who will be presenting today. We'll start with Petitioner.
`MR. HART: Good afternoon, Your Honor. My name is
`Herbert Hart. With me today are my backup counsel, Peter Lish at
`counsel table, also backup counsel, George Wheeler and Aaron Barkoff
`and, in addition, Al Riddle who is the IP counsel for Baker Hughes, and I
`will be presenting on behalf of Petitioner.
`JUDGE ANKENBRAND: All right. Good afternoon and
`welcome.
`And for Patent Owner, who do we have?
`MR. McCLELLAN: Good afternoon, Your Honors. I'm Doug
`McClellan. I represent the Patent Owner, LSPI, from Well, Gotshal &
`Manges. Also with me are my colleagues from Well Gotshal, Melissa
`Hotze, Joanna Schlingbaum, and Tim Anderson. And from LSPI, we
`have Trish Rice who's the General Counsel of LSPI, as well as Brian
`Dunn from LSPI who's the Director of Technology at LSPI and a
`technical expert in this case.
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`JUDGE ANKENBRAND: All right. Thank you and good
`afternoon to you as well. Welcome, everyone. It's good to have you
`here. We appreciate you making the effort to be here today.
`We set forth the procedure for today's hearing in our trial order.
`I'll go over a few things before we start. First, each party will have 60
`minutes to present arguments. The hearing will be divided into a public
`portion and a nonpublic portion. Material designated as confidential
`during the course of this proceeding may be disclosed only during the
`nonpublic portion of the hearing.
`Petitioner has the burden of showing unpatentability of the
`challenged claims by a preponderance of the evidence, so, Mr. Hart,
`you'll present first, followed by Mr. McClellan. Petitioner has 45
`minutes to present its case during the public portion of the hearing, but
`you can also reserve time for rebuttal.
`Would you like to do that today, Mr. Hart?
`MR. HART: Yes, Your Honor. I would like to reserve half of
`my time for rebuttal.
`JUDGE ANKENBRAND: All right.
`At the conclusion of Petitioner's opening argument, Patent
`Owner will have 45 minutes to respond to the argument and then
`Petitioner will present its rebuttal. At that time we'll close the hearing to
`the public. I will ask anyone in the courtroom who is not covered by the
`protective order to exit and I will ask the court reporter to mark the
`remainder of the transcript confidential.
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`Once we close the courtroom, Patent Owner will go first
`because we assume that the parties are going to be talking about
`secondary considerations and since Patent Owner made the first
`presentation on secondary considerations, Patent Owner will go first.
`Patent Owner will have 15 minutes, but may reserve a few of those
`minutes for rebuttal if, Mr. McClellan, you so wish to do.
`And with that, I'll just say one of our goals is to keep the
`hearing focused on the merits today, so both parties shall refrain from
`objecting during the opponent's presentation with one exception. If
`anyone during the course of the public part of the hearing discloses
`anything that is confidential, including one of us judges, please stand up
`right away and speak so that we can mark that part of the transcript
`confidential.
`One more thing before we begin, please just keep in mind that
`Judges Kalan and Kaiser will not be able to see anything that you project
`onto the screen in this room. Accordingly, when you refer to an exhibit
`on the screen, please state for the record the exhibit and page number or
`for demonstratives the slide number to which you are referring. It's also a
`good practice to do that for clarity and accuracy of the transcript.
`Also, please remember that because our microphones have
`limitations, Judges Kalan and Kaiser won't be able to hear you if you
`stray too far from the podium, so try to stay close to the podium and the
`microphone. I'll give each counsel a warning when you're reaching the
`end of your argument time.
`Does counsel have any questions or concerns before we begin?
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`MR. McCLELLAN: No, Your Honor.
`MR. HART: No, Your Honor, we do not.
`JUDGE ANKENBRAND: All right. I think we're ready to
`begin. So, Mr. Hart, you'll go first and I think you said you wanted to
`reserve half the time for rebuttal?
`MR. HART: Yes, Your Honor, that's correct.
`JUDGE ANKENBRAND: So let me just -- all right. I am
`ready whenever you are.
`MR. HART: Well, good afternoon, Your Honors. I want to
`start out by saying that the Patent Owner has not separately addressed
`any individual claim of any of the three patents, so we will address only
`the limitations found in the broadest claim in each patent.
`So with that bit of background, we see these facts as not being
`in dispute the following facts: I'll turn to slide 1. The Holtmyer
`publication discloses that it's economically profitable to reduce drag
`when transporting a fluid through an oil pipeline. Now, more
`specifically, Holtmyer discloses a polymer of iDMA, that is isodecyl
`methacrylate, and that's to be used as a drag reducer for oil pipelines.
`Now, turning to slide 2, Table 9 of Holtmyer reports that the
`iDMA polymer successfully reduced drag in crude oils. Two of those are
`Ellenberger and Cardium and also in a liquid hydrocarbon called
`QC-1156, which as reported in the footnote has an API gravity of 22.5
`degrees.
`Turning next to slide 3 -- and, again, there's no dispute about
`this -- Inaoka discloses two particularly preferable drag-releasing
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`polymers for crude oil. Those two are 2-ethylhexylacrylate or 2EHAA --
`EHA and 2-ethyhexylmethacrylate, 2EHMA. Now, I'll note that a
`polymer of 2EHMA is identified as Polymer A in the patents.
`Now, also not in dispute here is that heavy asphaltenic crude
`oils have long been known, and that's acknowledged in the specification,
`even to say that that includes oils meeting the limitations of an API
`gravity of about 26 degrees or less than about 26 degrees and an
`asphaltene content of at least 3 weight percent.
`Now, as Patent Owner stated to the Examiner, those two
`limitations simply mean that the hydrocarbon is a "heavy crude oil."
`Now, it's further undisputed that a polymer must be soluble in a
`fluid in order to drag -- reduce drag in that fluid and that solubility
`parameters are commonly used to predict solubility of one material in
`another.
`There's also no dispute that one of ordinary skill in the art
`would predict that polymers having solubility parameters close to that of
`a liquid hydrocarbon would be soluble in that hydrocarbon. And in this
`particular case, there's no dispute that the solubility parameters of the
`iDMA and 2EHMA polymers are 17.84 megapascals to the one-half and
`18.04 megapascals to the one-half respectively.
`Now, turning next to Carnahan, which is on slide 3 -- I'm sorry,
`slide 4, Carnahan discloses the solubility parameters of heavy petroleum
`fluids and he discloses that those solubility parameters fall within the
`range of 8 to 10 hildebrands, and that is in the top excerpt from
`Carnahan. And there's no dispute that that range in hildebrands is
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`equivalent to 16.4 to 20.5 megapascals to the one-half as reflected in Dr.
`Epps' testimony at the lower half of the slide.
`Now, turning next to slide 5 we have Buckley. Now, Buckley
`discloses that there's a relationship between the refractive index of a fluid
`and its solubility parameter and particularly that fluid being crude oil.
`Now, again, no dispute that based on that relationship one can readily
`estimate the solubility parameters of Buckley's four crude oils that have
`an API gravity of less than about 26 degrees and an asphaltene content of
`at least 3 weight percent.
`Now, more specifically, Dr. Epps estimated that the solubility
`parameters of those four oils are between about 18 and about 20
`megapascals to the one-half. Similarly, Dr. Dunn estimated those
`solubility parameters as being between 18.6 up to 20.1 megapascals to
`the one-half, basically an insignificant difference between those
`estimates.
`JUDGE KALAN: Counsel, now Buckley is not one of the prior
`art references that you rely on in any of the grounds, but Dr. Epps is
`using it as a reference to support his calculations?
`MR. HART: It's correct that it's not named as a primary
`reference in the grounds. It is explained fully in the Petition as providing
`a basis for Dr. Epps' testimony concerning solubility parameters.
`Now, turning next to Strausz that's depicted on slide 6, Strausz
`reports that liquids having solubility parameters between 17.1 and 22.1
`megapascals to the one-half solubilize asphaltenes. Now, as Strausz
`explains, the term solubilize means "not precipitated" and that includes,
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`according to Strausz's description, solids that are suspended in liquids.
`And there's no dispute here that asphaltenes are solids suspended in
`heavy crude oil.
`Now, as also reflected in slide 6, Dr. Epps testified that a person
`of ordinary skill in the art would have understood from Strausz that
`heavy crude oil has a solubility parameter between 17.1 and 22.1
`megapascals to the one-half.
`Now, with regard to that particular testimony, the Patent Owner
`disputes that. However, the evidence shows that that very same
`understanding of one of ordinary skill in the art is adopted in both the
`patents as shown in slide 7 and, additionally, in Dr. Dunn's testimony in
`the underlying litigation, and we've shown that on slide 8.
`Now, these teachings in the prior art are, again with the possible
`exception of that last bit of Dr. Epps' testimony, undisputed. Now, from
`those teachings, a person of ordinary skill in the art would have
`recognized that the iDMA and the 2EHMA polymers disclosed by
`Holtmyer and Inaoka respectfully have solubility parameters that are very
`close to that of the claimed heavy crude oil and also that they fall
`squarely within the ranges disclosed by Carnahan and Strausz.
`So we submit that such a person of ordinary skill in the art
`would have, based on those facts and that understanding, a reasonable
`expectation that each of the Holtmyer and Inaoka polymers would be
`soluble in the claimed crude oil and such a person would also have
`appreciated that Holtmyer and Inaoka disclose that the iDMA and
`2EHMA polymers have the other properties needed to function as
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`drag-reducing agents and, therefore, one of ordinary skill in the art would
`have had a reasonable expectation that those polymers would reduce drag
`in the claimed heavy crude oil.
`Now, none of Patent Owner's contrary arguments is consistent
`with the evidence, and we'll address Patent Owner's principal contentions
`now.
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`Now, first, with respect to obviousness, Patent Owner has
`disputed that there was a well-known economic incentive, as closed by
`Holtmyer, to introduce the iDMA or 2EHMA drag-reducing polymers
`into heavy crude oil. Yet in arguing that objective criteria weigh in favor
`of patentability, Patent Owner contends that there was "a tremendous
`economic incentive" for a DRA in heavy crude oil, and those are clearly
`inconsistent as we've explained in more detail in our Reply on page 14.
`The second point of Patent Owner is that the claimed invention
`here is the use of solubility parameters, defined polymers that would
`reduce drag in heavy crude oil, but there's nothing new about that. Prior
`art studies, such as Martin reflected on slide 9, showed that one could, in
`fact, predict that drag-reducing effectiveness of the tested polymers by
`matching polymers to oils by solubility parameters.
`Patent Owner's next contention is that not only would one of
`ordinary skill in the art not have expected to successfully reduce drag in
`heavy crude oil, but also that Patent Owner's success in doing so was an
`unexpected result.
`And what's the basis for that? Well, Patent Owner argues that
`the conventional wisdom in the art was that reducing drag in heavy crude
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`oil was "not viable," but the evidence contradicts that argument and it
`contradicts Dr. Dunn's testimony that was offered in support of it.
`First, as shown in slide 10, a 1986 article entitled High
`Viscosity Crude Drag Reduction reported successful drag reduction of
`heavy crude oil. In fact, the data from that test shows that up to 27
`percent drag reduction was achieved in a crude oil having an API gravity
`of 25 degrees.
`JUDGE KAISER: Counsel, where's the cutoff between
`medium and heavy crude oil in terms of API degrees or something else?
`MR. HART: Your Honor, we're not aware of a sharp division
`line among the weights of crude oil. For the purposes of this case, we
`have used the definition used in the patent. As I mentioned earlier, the
`explanation given to the Examiner was that the two limitations, an API
`gravity of less than about 26 degrees and an asphaltene content of at least
`3 weight percent was equivalent to the term heavy crude oil.
`JUDGE ANKENBRAND: And where is that heavy crude oil
`disclosed in the references that Petitioner asserts against claims?
`MR. HART: Well, in -- where is it disclosed in the particular
`references?
`JUDGE ANKENBRAND: That form the part of the grounds.
`MR. HART: Okay. There is not such a heavy crude oil
`disclosed in either Holtmyer or Inaoka, but our position is that based on
`the teachings of those references in combination with the teachings of the
`Strausz reference and the Carnahan reference that it would have been
`obvious for one of ordinary skill in the art to adopt the Holtmyer and
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`Inaoka polymers as drag-reducing agents for heavy crude oil and would
`have a reasonable expectation that that would work because of the
`solubility relationships that we've explained in a lot of detail.
`JUDGE KALAN: And going back to your slide 10, the title
`references drag reduction possible in the transition region. What is the
`transition region that that refers to?
`MR. HART: Again, I don't know that that is defined here other
`than by the type of flow that is going on in the pipeline. So as we've
`explained in a number of places, of course, drag-reducing agents work by
`reducing turbulence in the flow of an oil and so -- though, again, there's
`not an expressed definition in the reference here, we would just state that
`it's a functional definition. Transition region would be from a
`non-turbulent or otherwise referred to as laminar flow to turbulent flow.
`Have I answered your question?
`JUDGE KALAN: Yes. Thank you.
`MR. HART: So, again, returning to the article on slide 10, the
`Horn, et al. article, the conclusion the authors drew here is that any fluid
`in turbulent flow is a viable candidate for drag-reducing additives and
`that only makes sense because drag-reducing additives interrupt the
`turbulence that causes drag.
`Now, not only was reducing drag in crude oil viable as the
`reference says, but Patent Owner's own promotional material shows that
`it was promoting its prior art polyolefin polymers as drag reducers for
`heavy crude and examples include Exhibits 1028, 1029, which you now
`see on the screen as slide 11, and 1030.
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`Now, in the data on slide 11, the red line in the performance
`graph shows the LP 300, and that's a polyolefin, reduced drag in heavy
`crude oil. Now, Dr. Dunn argued that the API gravity of the heavy crude
`was not specifically recited in this particular document. One can see
`from Patent Owner's other promotional materials, for example, the one
`we've showed here in slide 12, that LP 300 works in oils having API
`gravities as low as 22 degrees.
`And, further, as shown in Patent Owner's own field testing, and
`that's reflected in slide 13, that showed that prior art DRAs, again these
`polyolefin DRAs, achieve drag reduction in heavy crude oil and that's
`directly contrary to the story Patent Owner told the Examiner to obtain
`allowance of its patents. Now, additional evidence of that type can be
`seen in Exhibits 1074 through 1078.
`Now, finally, Patent Owner now says that its discovery was that
`asphaltene content is the key to finding the right DRA for heavy crude
`oil. There's no evidence even suggesting that. There's nothing in the
`specification, there's nothing in the prosecution history and there's no
`evidence in these trials. In fact, Dr. Epps pointed out that the data in the
`patent itself, which we show you in slide 14, shows that there's no
`linkage.
`Specifically looking at the highlighted data in Table 1, Dr. Epps
`observed that Corocoro crude has an asphaltene content between 6
`percent and 6.7 percent and it shows no affinity for LP 300 and, again,
`Patent Owner has keyed affinity to predicted drag reduction. Yet Marlim
`Blend having a nearly identical asphaltene content between 6.6 and 6.7
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`percent shows a high affinity for LP 300, the prior art DRA. So Patent
`Owner's own data contradicts the argument that asphaltene content is the
`key.
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`So at this point I'd like to reserve my remaining time for
`rebuttal.
`JUDGE ANKENBRAND: Okay.
`MR. McCLELLAN: Your Honor, may I approach to hand up a
`hard copy of the slides?
`JUDGE ANKENBRAND: Sure, you can do that.
`When you're ready, Mr. McClellan.
`MR. McCLELLAN: Good afternoon, Your Honors. May it
`please the Court, I'm Doug McClellan from Well, Gotshal representing
`the Patent Owner LSPI and I think the place to start is on demonstrative
`slide number 3, which I have displayed, and this gives an overview of
`five issues that Patent Owner has raised, any one of which if Baker
`Hughes fails to meet its burden on any one of these five, then the Patent
`Owner wins on all grounds.
`JUDGE ANKENBRAND: Can I just stop you for a moment?
`Mr. Hart stood up and rattled off a whole bunch of facts that he
`contended were undisputed in this proceeding. Do you agree with those,
`with that recitation, or are those the issues you're about to discuss with
`us?
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`MR. McCLELLAN: Many of those issues are about -- are
`intertwined in here. We do not agree that those were all undisputed facts.
`I would rather reset this and focus on various places where we think it's
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`clear that the undisputed facts show that Patent Owner wins rather than
`run through the Petitioner's list, but we disagree with that statement by
`Petitioner.
`And I think you heard the first issue on the list. I think that you
`heard from Petitioner already that of the references that are actually relied
`upon by Petitioner in the grounds, and that's critical here. What
`references are relied upon in the grounds? Not a single one of those
`discloses the claimed liquid hydrocarbon that's in the claims, which is the
`heavy, asphaltenic liquid hydrocarbon.
`And just going back to demonstrative slide 2 for a minute, this
`is a good summary of what references are actually in the grounds and the
`Petition is very clear. It lists in the Petition here are the grounds. It lists
`the references. Those references are summarized on slide number 2 and
`there's five references in total.
`So you heard the Petitioner talk about the Buckley reference,
`not in the grounds. You heard the Petitioner rely on the Martin reference,
`not in the grounds. You heard the Petitioner talk a lot about this Horn
`reference, Exhibit 1041 and demonstrative slide 10 of the Petitioner,
`again not in the grounds.
`Under the Intelligent Bio case, the focus of the inquiry should
`be on the prior art that is relied upon in the grounds, and the reason why
`the Petitioner is focusing on prior art that's not in the grounds is because
`there's a huge hole in their case. They can't meet their burden because
`they've got no prior art that shows drag reduction of a heavy, asphaltenic
`liquid hydrocarbon and Petitioner's own documents show that that was a
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`surprising and unexpected result. And on that basis alone, the Patent
`Owner should win on every single ground.
`JUDGE KALAN: Counsel, the prior art does disclose drag
`reduction, correct?
`MR. McCLELLAN: Yes.
`JUDGE KALAN: And then the prior art also discloses heavy,
`asphaltenic liquid hydrocarbon as claimed, correct?
`MR. McCLELLAN: No. And particularly if you focus -- well,
`you've got to -- one important, critical point is that the drag reduction
`limitation in this case is tied to the claimed liquid hydrocarbon and that's
`drag reduction of a heavy, asphaltenic liquid hydrocarbon.
`And the reason why that's so important is because even though
`people knew that you could drag reduce some types of liquid
`hydrocarbons and some types of oils, it was not known in the
`conventional wisdom that you could drag reduce the special type of
`liquid hydrocarbons that are claimed that was surprising and unexpected.
`And here's an example of that looking at demonstrative slide
`number 21. This is Exhibit 2028. The Bates number is BH013806.
`Baker Hughes' own Ph.D. scientist far above the level of a person of
`ordinary skill in the art said traditional DRA doesn't work in heavy crude,
`and we'll talk more about this in the confidential session.
`But Baker Hughes certainly wasn't the only party, third parties
`included that was saying this at the time. This was the conventional
`wisdom --
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`JUDGE ANKENBRAND: But isn't there evidence in the
`record where the Patent Owner was saying the opposite, that their LP 300
`which I guess -- and you can tell me if it's not a traditional DRA, but
`what Petitioner says was a traditional DRA, the LP 300 was, in fact,
`working in heavy crude oil.
`MR. McCLELLAN: I guess I have several responses to those
`references. The first one is the Petitioner hasn't shown any of this was in
`the prior art. They're relying on a lot of documents that are either
`confidential, not public or too late, years after the invention in this case.
`Those references invariably do not contain heteroatom polymers and,
`importantly, look for -- when you look at those references, look for the
`asphaltene content because invariably it's not disclosed.
`But our position is all of the slew of references that was not part
`of the grounds that came in late that they didn't rely upon that's not
`public, it's not prior art or it was too late because they're relying on things
`from 2009, 2011, years after the December 2006 filing date. All of that
`should be excluded as being irrelevant, number one, because it didn't
`show what was in the conventional wisdom and, secondly, it's outside the
`grounds that the Petitioner relied upon. But none of those --
`JUDGE ANKENBRAND: Do you also contend that it's outside
`the proper scope of a reply, is that where those references come in?
`There's a lot of them, so I can't remember exactly where they're raised for
`the first time.
`MR. McCLELLAN: Some of them came in the Reply. But
`when a Patent Owner shows that a Petitioner has a big hole in their
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`grounds and has failed to meet their burden, it's not proper for a
`Petitioner just to come back and say, well, we're going to change the
`grounds and add a whole bunch of new prior art and add, you know, a
`dozen new references to try to fill gaps that were in the Petition, because
`a Patent Owner doesn't have -- you know, it's not fair to a Patent Owner
`to shift the goalpost after the Petition has been filed.
`But I'll also say about those references we think they're
`irrelevant, they should be excluded. But even if the Board were to
`consider them, what the evidence shows, the evidence of POSAs in the
`field, it shows that those documents didn't change the conventional
`wisdom in the field. We can see that right here in slide number 21.
`Baker's scientist believed until LSPI made this invention,
`people in the field believed that it wasn't possible, it was a surprising and
`unexpected result and that's just one reason why Patent Owner should
`win on all grounds. Let me give you a couple of other exhibits to look at
`on this same issue.
`So, Your Honor, I've just put up demonstrative slide number 47
`and here, again, is another Baker Hughes document saying that this
`invention, this product, Baker's product, which Baker never disputed,
`practices the claimed methods in this case. In the Patent Owner's
`Response, we were very clear --
`JUDGE KAISER: Counsel, can I stop you for a second?
`MR. McCLELLAN: Yes.
`JUDGE KAISER: How is it that a product can practice a
`claimed method?
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`MR. McCLELLAN: The use of this product -- thank you, Your
`Honor. Let me be a little more precise, that the use of this product for its
`advertising and intended purpose in field tests infringed, and we were
`very clear in the Patent Owner Response in multiple places that there
`were field tests that were conducted where this product practiced the
`claimed methods. There's direct nexus to all the secondary
`considerations based on that.
`JUDGE ANKENBRAND: In the same concentration that's
`required by the claims as well?
`MR. McCLELLAN: Yes, Your Honor. And this document
`shows Baker touting this years after LSPI's invention, touting this copied
`product as something that was exciting. They issued a press release
`about it. They said this is unexpected. They said -- importantly at the
`end of this document, and this is Exhibit 2054, they said this provides an
`advantage over conventional competitive DRAs that are only effective in
`lighter crude slates.
`They also importantly do say that asphaltene is important. You
`heard the Petitioner get up here and say asphaltene has nothing to do with
`this, it doesn't matter, look at this data. Well, the patent says otherwise
`and even Baker Hughes admits in this exhibit and the other exhibits we'll
`talk about in the confidential session that asphaltene is important. It
`matters in this copied product. They said it was specifically designed for
`asphaltenic crudes.
`And there are other exhibits out there to look at for the support
`and the evidence that shows that LSPI's invention went against the
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`conventional wisdom because the persons of ordinary skill in the art in
`the field believed that it was impossible and you'll see that in Exhibits
`2077, 2078, 2079, 2082, 2083, 2080, 2053, 2056, and Exhibit 1027.
`Some of those I'm going to have to defer the discussion until our
`nonpublic session, but I wanted to pinpoint critical evidence in this case
`that makes a real difference and that is dispositive on all of the grounds.
`JUDGE KALAN: Counsel, I'm going back to slide 3 and your
`item number 1. The point of the question I asked earlier is do Carnahan
`and Strausz disclose the claimed heavy, asphaltenic liquid hydrocarbons?
`MR. McCLELLAN: No, Your Honor. There's a 3 percent
`requirement for asphaltene here and the Petitioner has pointed to nothing
`in those references to show that. And another very important fact about
`the grounds, and this gets us to point number 2, is that the Peti
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