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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`PROPPANT EXPRESS INVESTMENTS, LLC, and
`PROPPANT EXPRESS SOLUTIONS, LLC,
`Petitioners,
`
`v.
`
`OREN TECHNOLOGIES, LLC,
`Patent Owner.
`____________
`
`Case IPR2017-01917 (Patent 9,296,518 B2)
`Case IPR2017-01918 (Patent 9,403,626 B2)
`Case IPR2017-02103 (Patent 9,511,929 B2)
`____________
`
`Record of Oral Hearing
`Held: November 30, 2018
`____________
`
`
`
`Before MITCHELL G. WEATHERLY, KEVIN W. CHERRY, and
`MICHAEL L. WOODS, Administrative Patent Judges.
`
`
`
`
`
`
`Case IPR2017-01917 (Patent 9,296,518 B2)
`Case IPR2017-01918 (Patent 9,403,626 B2)
`Case IPR2017-02103 (Patent 9,511,929 B2)
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`MARK T. GARRETT, ESQ.
`JEREMY ALBRIGHT, ESQ.
`Norton Rose Fulbright US LLP
`98 San Jacinto Boulevard
`Suite 1100
`Austin, Texas 78701
`(512) 474-5701
`mark.garrett@nortonrosefulbright.com
`jeremy.albright@nortonrosefulbright.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`MEREDITH ZINANNI, ESQ.
`EUGENE GORYUNOV, ESQ.
`Kirkland & Ellis LLP
`300 North LaSalle Street
`Chicago, Illinois 60654
`(312) 862-7059 (Ms. Zinanni)
`(312) 862-2010 (Mr. Goryunov)
`meredith.zinanni@kirkland.com
`eugene.goryunov@kirkland.com
`
`
`
`
`The above-entitled matter came on for hearing on Friday, November
`
`30, 2018, commencing at 10:00 a.m. at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
`
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`2
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`Case IPR2017-01917 (Patent 9,296,518 B2)
`Case IPR2017-01918 (Patent 9,403,626 B2)
`Case IPR2017-02103 (Patent 9,511,929 B2)
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`
`P R O C E E D I N G S
`- - - - -
`JUDGE CHERRY: Good morning, I'm Judge Cherry. With me
`here in the room is Judge Weatherly, and remote from our Dallas office is
`Judge Woods. Will the parties please make their appearances?
`MR. GARRETT: Good morning, Your Honors. Mark Garrett for
`the Petitioners. With me today is Jeremy Albright, and we're going to split
`up the presentation.
`
`JUDGE CHERRY: Great.
`MR. GORYUNOV: Your Honor, good morning. Gene Goryunov,
`on behalf of the Patent Order. And with me, Meredith Zinanni.
`JUDGE CHERRY: Great. And just to identify that this is the
`hearing in Proppant Express Investments versus Oren Technologies. The
`IPR is 2017-01917, 01918, and 2103. Mr. Garrett, you have the burden of
`proof, you can start when you're ready.
`How much time do you want to reserve for rebuttal?
`MR. GARRETT: We're going to shoot for ten minutes.
`JUDGE CHERRY: Okay. Let's see. I guessed 20, but I can fix
`that, all right. You may begin--
`(Off the record comments.)
`MR. GARRETT: Good morning, Your Honors. Mark Garrett, for
`Petitioners. I'm going to hand off to Jeremy Albright when we get to Mr.
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`Case IPR2017-01918 (Patent 9,403,626 B2)
`Case IPR2017-02103 (Patent 9,511,929 B2)
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`Smith's FEA analysis, and also for the secondary considerations. And we'll
`try to make that seamless.
`Slide 2 shows some background information that may be helpful
`today. The main thing to note is that in this presentation the references to
`different materials are to those of the 2103 proceeding.
`On Slide 3, we've excerpted a portion of our discussion of the level
`of ordinary skill in the art, it's in the Petition. And I'd like to point out a
`couple of things. First, this is unrebutted. The Patent Owner does not
`challenge this.
`And today I may refer to Patent Owner as PO, and I may refer to a
`person of ordinary skill in the art as a POSITA, P-O-S-I-T-A. I think, Mr.
`Albright's probably going to do both of those things as well.
`The other things to note about this, one, it, it specifies and reflects
`that the specification is very light on details and, two, it reflects Dr.
`Wooley's opinion, and you can see it there, in the second column, that a
`POSITA would've been able to apply his, or her, knowledge of engineering
`mechanics, materials selection, and welding, when figuring out how to make
`the devices that are shown in these patents.
`And that's, despite the fact, there are, there are no details about those
`things that are in these patents. And that's important to keep in mind, when
`you get to their arguments about the effects of welding.
`So Slides 4, 5, and 6, I won't spend a great deal of time on. I've
`paused here on Slide 4. These figures, from their patents, and this is a
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`common specification to all three patents, they're, they're here to just remind
`the Board just how simple these containers are.
`So I'm moving ahead now to Slide 7. This is the primary reference,
`the Smith reference. You can see, this is the two-compartment version that
`we discussed. Dr. Wooley opined that it would've been obvious to get to a
`one-compartment version, as well, and you can see that it's set up in a way
`that lends itself to that.
`Slides 8, 9, and 10, I won't spend a great deal of time on. These are
`slides showing our secondary references Hedrick and Claussen, and we've
`excerpted some of Dr. Wooley's testimony, about those on these slides.
`So where I want to spend a little bit of time is Slide 11. And this is
`a slide that some details, from the Petition that describe why it would've
`been obvious to, number one, use Smith's container for proper transportation
`and storage, and why it would've been obvious to a POSITA to reinforce it.
`So we got to back in time. We got to go back to the time of the
`invention, so that's December of 2011. Back at that time, the frack boom,
`the shell boom was well-underway. Demand for proppant had gone through
`the roof.
`And references like Krenek and Uhryn, and Uhryn, in particular -- I,
`I want to, sort of, go on a sidetrack, just a little bit. There's a second of their
`PORs, where they describe, sort of, the problems in the art and then they talk
`about their container being a solution.
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`Case IPR2017-01917 (Patent 9,296,518 B2)
`Case IPR2017-01918 (Patent 9,403,626 B2)
`Case IPR2017-02103 (Patent 9,511,929 B2)
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`
`We pointed out, in the Petition, and you can see, from just reading
`Uhryn, itself, all those problems were already described in Uhryn. Uhryn
`was first to recognize all those things and recognize that containerized
`proppant was a solution, using one box to transport and store and avoid the
`issues that otherwise come with having to do hand-offs, where you've got
`the expense of going from one container for transportation, to another
`container for storage.
`You've got the risk of spilling things, things getting spoiled, all the
`different problems that they talk about existing, Uhryn recognized those
`first. So you had this understanding that it's good to use a single container
`for transportation and storage and that's what Smith talks about.
`Smith literally talks about using one container for transportation and
`for storage. And the materials that Smith describes are particulate
`materials. Sand is an example of that. Smith also talks about using a
`single container over multiple modes of transportation.
`And he talks about stacking his containers. So a POSITA would've
`appreciated, I can use one container, take it to wherever I want it to be and
`then, I can minimize my footprint. I can literally stack these things up, I
`don't have to put them all out, like a cracked egg, all over the place. So you
`can minimize your footprint with Smith's container.
`So a POSITA would've appreciated, this is a good container for
`transportation and for storage. They also would've appreciated, if I'm going
`to put sand in this thing, it would make sense to reinforce it. Its maximum
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`payload is 52,500 pounds. Dr. Wooley goes through and excerpts the upper
`portions of the containers, shows that they can hold well-over 52,500 pounds
`worth of proppant, up to 80 to 84,000 pounds-worth of it. So --
`JUDGE CHERRY: That's the volume, because it's holding more?
`MR. GARRETT: Correct.
`JUDGE CHERRY: Okay.
`MR. GARRETT: Correct, Your Honor. And that's exclusive of
`the hoppers, even, so it can even, they can even hold more than that. So a
`POSITA would understand, gosh, I should reinforce these, if I'm going to
`take advantage of that extra space that I can put sand in.
`And they're going to recognize that while it's true that this would
`have a safety factor, I don't need to sacrifice that, I would want to preserve
`that, for just good engineering reasons, so I would reinforce it, to get to that
`upped payload.
`And the background art that we describe in the Petition, the
`knowledge, and the skill level of a POSITA, would've also told them that
`reinforcing stuff, reinforcing containers, increases its payload, because it
`increases its strength.
`That's reflected in Holbrook and as Dr. Wooley explained that's
`reflected in the fact that, you know, POSITAs have a certain level of
`education and experience and they appreciate that, if you brace things on the
`inside, you keep the walls from buckling. If you brace hoppers on the
`outside, you're going to strengthen them.
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`
`So it's obvious that Smith's a good container to use for transportation
`and storage and it's obvious that, if you're going to take advantage of the
`volume that it has, you're going to reinforce it with braces.
`And Slides 12 and 13, won't spend a great deal of time on these, but
`these are explanations, excerpts from the Petitions about using Hedrick
`braces on the inside of those container compartments, on Slide 12, and then,
`using support members, like what is show in Claussen, those blue, angled
`pieces from Claussen, in Slide 13, and why that would've made sense to use.
`Slide 14 is another excerpt from the Petition that has supporting
`citations to Dr. Wooley's testimony, about why it would've made sense to go
`to a single-compartment container. And part of that is, Smith discloses
`four, three, two compartments, it's not a great leap to think we could also do
`this with a one compartment container.
`And if you'll recall, and we'll get into it in a little bit, they make a lot
`out of the fact that there is an 80,000-pound interstate weight limit. Dr.
`Wooley says there is, and there are going to be circumstances where you're
`subject to it.
`And in those circumstances, because you can put so much sand in
`just a single compartment of one of Smith's containers, you could just get rid
`of the extra weight of that unnecessary extra compartment, which is about
`2,500 pounds-worth of metal, and you could turn that into payload that you
`could use.
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`Case IPR2017-01918 (Patent 9,403,626 B2)
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`So there's a natural logic and -- to just being able to use those
`compartments efficiently. You don't need both of them.
`JUDGE CHERRY: What is the material they usually make the
`containers out of?
`MR. GARRETT: Steel. So Slide 15. This is their -- they, they
`rebut the obviousness case in sort of three buckets. So they say, it wouldn't
`be obvious to reinforce Smith's container. That's incorrect, according to
`Patent Owner. It wouldn't be obvious to use Hedrick's bracing, and it
`wouldn't be obvious to use Claussen support members. So we'll sort of take
`those in pieces.
`And Slide 15 is sort of their first basket of arguments against the
`obviousness of reinforcement generally. And they say, look, it's an ISO
`standard-driven issue. A person of ordinary skill in the art, looking at
`Smith, would see the containers and inner-model container and they would
`think, I mean, that needs to be used in compliance with the ISO standard.
`And they say the ISO standard for a 20-footer, which is the
`two-compartment version, is 52,900 pounds. You wouldn't want to exceed
`that, as you are suggesting, Petitioners, because then you're going to have to
`use non-standardized equipment.
`JUDGE WEATHERLY: So they did -- so these ISO standards, they
`apply specifically to the container that's described in Smith? I mean, I, I, I
`have some level of confusion about which ISO standards we're talking
`about, when you talk about, for example, a 20-footer or a ten-footer.
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`MR. GARRETT: Yes.
`JUDGE WEATHERLY: Initially, I had thought for some reason
`that that applied to containers like the, you would see used for a
`containerized seagoing vessel.
`MR. GARRETT: Yes --
`JUDGE WEATHERLY: Help, help me understand, how --
`MR. GARRETT: I may not be the best on ISO standards --
`JUDGE WEATHERLY: Are there ISO standards that apply to all
`these different kinds of containers, including one -- because, Smith, for
`example, doesn't describe the container that you would put on a seagoing
`vessel and transport sand across the ocean, or does it?
`MR. GARRETT: Well -- well, he does. No, he talks about --
`JUDGE WEATHERLY: Okay.
`(Simultaneous speaking.)
`MR. GARRETT: So he talks about sticking it on a barge.
`JUDGE WEATHERLY: Okay.
`MR. GARRETT: And I think -- I mean, he, he names all the
`different modes. He names barge, rail, and --
`JUDGE WEATHERLY: I guess, what my question is --
`GARRETT: -- and road.
`(Simultaneous speaking.)
`JUDGE WEATHERLY: Is there one set of ISO standards for
`containers, like Smith that are described in Smith, and a different set of ISO
`
`MR.
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`standards for containers like the ones that you see for example, on “The
`Wire?”
`(Laughter.)
`MR. GARRETT: All of that's --
`JUDGE WEATHERLY: But --
`MR. GARRETT: -- interesting.
`(Simultaneous speaking.)
`JUDGE WEATHERLY: But --
`MR. GARRETT: I know --
`JUDGE WEATHERLY: -- that are lifted by cranes, at ports, and,
`and taken off ships and then, put directly onto trucks and --
`MR. GARRETT: I'm a little bit out of --
`JUDGE WEATHERLY: -- and trains?
`(Simultaneous speaking.)
`MR. GARRETT: I'm a little bit out of school on this, but I, I can
`tell you that, the ISO standard that they're talking about is 668. It pertains
`to ten-foot, 20-foot, 40-foot containers --
`JUDGE WEATHERLY: Okay.
`MR. GARRETT: -- different lengths, and it gives these gross mass
`ratings. I mean, their expert has said --
`JUDGE WEATHERLY: But you don't, you don't know, whether
`that's the kind of container you'd see at a port versus containers like the ones
`that are described in Smith?
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`MR. GARRETT: I, I don't, I don't really know the answer --
`JUDGE WEATHERLY: Okay.
`MR. GARRETT: -- to that question.
`JUDGE WEATHERLY: And --
`MR. GARRETT: And it --
`JUDGE WEATHERLY: -- and maybe Patent Owner will clear that
`
`up.
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`MR. GARRETT: I, I have no doubt that they'll have a strong
`opinion on the relevance of ISO standards.
`(Laughter.)
`MR. GARRETT: I, I think the challenge for them though is, would
`a POSITA looking at Smith think, gosh, I can only use these containers in
`compliance with this ISO 60, 668 standard, and the answer is no.
`I mean, their own expert said, it's not in the -- first of all, he said
`nobody has to comply with the ISO standard, it is a choice. So that's where
`the whole argument, kind of, falls apart. You do not have to use, as Smith
`states, these containers in compliance with an ISO standard. You -- I mean,
`you don't have to.
`JUDGE CHERRY: So --
`MR. GARRETT: And, and that's the problem with their position.
`Because the claims, nobody disputes, are broader enough to cover not just
`ISO-compliant containers, but non-ISO-compliant containers. So they
`extend to what's obvious that's, that's the problem.
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`JUDGE CHERRY: So maybe the ISO standard could make
`something, provide a motivation, but it doesn't necessarily teach away from
`the, the combination.
`JUDGE WEATHERLY: It doesn't --
`MR. GARRETT: Right.
`(Simultaneous speaking.)
`JUDGE WEATHERLY: It doesn't preclude you from bracing the --
`MR. GARRETT: That's right.
`JUDGE CHERRY: Okay.
`MR. GARRETT: That's exactly right. And, and we have to keep
`in mind, to the extent that they're viewed, these arguments are viewed, as, as,
`you know, sort of, backdoor teaching away from a non-ISO standard
`container. That's got to be commensurate to the scope of the claims and
`that's not -- the claims don't preclude ISO, non-ISO-compliant containers.
`So, you know, this is what we get into on Slide 16, and I won't
`belabor that a lot more. I will say one thing. One of the other points was,
`you would have this impractical container, and so it would be, there were
`would be expenses due to repair and maintenance of the trailer.
`JUDGE WEATHERLY: If I could ask you to back up a tiny bit?
`MR. GARRETT: Absolutely.
`JUDGE WEATHERLY: You only have this “impractical
`container,” give me some foundation for what kind of container you're
`talking about.
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`MR. GARRETT: Yes, so he -- this is, this is their attorney arguing.
`This is not their expert arguing. They're saying, if you take Smith and you
`reinforce it, to increase its maximum payload, with the internal bracing and
`the external bracing, you will have a container that will be capable of
`holding more than the gross-mass rating of an ISO standard-compliant
`container, which according to them is 52,900 pounds.
`For the record, it's actually 67,200. And their point is that would be
`impractical and you would damage the trailer, so there would be expense
`and maintenance costs, increased expense and maintenance costs associated
`with hauling thing around.
`JUDGE WEATHERLY: All of which would be solved if you made
`a one compartment container?
`MR. GARRETT: True.
`JUDGE WEATHERLY: Instead of a two-compartment container,
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`yes?
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`MR. GARRETT: It's true. That's correct. And, and the other
`problem is, that's attorney argument. I mean, they didn't even get their
`expert's response to that.
`JUDGE WEATHERLY: Okay.
`MR. GARRETT: So Slide 17, we have, sort of, the other basket of
`arguments, against the, the general notion of, of the obviousness of
`reinforcing Smith's container, and that's the interstate weight limits that we
`talked about. So 80,000 is the interstate -- federal interstate weight limit.
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`The argument goes like this, your semi is going to eat up 33,000
`pounds of that, you're going to have 47,000 left. Between the box and the
`sand in it, you're talking about going over 52,500 just with the sand. You're
`going to be out of compliance with the interstate weight limit standard.
`And the general answer to that is --
`JUDGE WEATHERLY: In other words, the federal regulations
`don't let you fill Smith's container with sand.
`MR. GARRETT: Correct. Correct. The federal interstate
`highway weight limit of 80,000 pounds don't let you fill Smith container,
`according to them, even to Smith's max payload --
`JUDGE WEATHERLY: That's exactly what I mean by --
`MR. GARRETT: Yes.
`JUDGE WEATHERLY: -- fill, fill Smith's container.
`(Simultaneous speaking.)
`MR. GARRETT: Yes.
`JUDGE WEATHERLY: Even Smith's container, as it's --
`MR. GARRETT: As it --
`JUDGE WEATHERLY: -- specifically described --
`MR. GARRETT: Exactly.
`JUDGE WEATHERLY: -- can't be filled with sand and driven out
`onto the highway --
`MR. GARRETT: That's correct.
`JUDGE WEATHERLY: -- in compliance with the law.
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`MR. GARRETT: That's correct. That's correct. And is --
`JUDGE WEATHERLY: And why isn't that a motive to, again, --
`MR. GARRETT: Go to the -- go to the one compartment.
`JUDGE WEATHERLY: -- go to one single container?
`(Laughter.)
`MR. GARRETT: It is, it is, and that's what Dr. Wooley explains.
`And if you go back to Slide 14 and peruse that and look at --
`JUDGE WEATHERLY: So that you can use the entire volume
`available to you.
`MR. GARRETT: You can. That's correct. But the other thing is,
`you can get permits, so their own, their inventor, John Oren, said you know
`what, we can get permits to go over that. And their expert conceded, not all
`roads are 80,000-pound-weight-limit-roads. So those are other problems.
`JUDGE CHERRY: And there's no requirement that claims it be
`hauled on an interstate highway, right? You could --
`MR. GARRETT: There are not.
`JUDGE CHERRY: -- could use it at the quarry, or at the site, but --
`MR. GARRETT: That's right.
`JUDGE WEATHERLY: Or make a container.
`(Laughter.)
`MR. GARRETT: Slide 19. So they had a rebuttal to the one
`compartment version, to get to the points we're making, Judge Weatherly,
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`and that is, don't forget about ISO. And the standard says 22,400 pounds is
`the ISO standard for a ten-footer.
`And that would leave you, according to them, with the
`reinforcements we're talking about, with the commercially-unacceptable
`dangerous to move a container. And the answer is, actually, it wouldn't be
`commercially-unacceptable. And he retreated, their expert retreated from
`that opinion.
`And it wouldn't be dangerous, because there are reach-stackers and
`there are forklifts and there are cranes, all of which, can safely move around
`a loaded, reinforced, ten-foot version of those containers. So what they
`get --
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`JUDGE WOODS: Excuse me, sir.
`(Simultaneous speaking.)
`MR. GARRETT: Yes, sir?
`JUDGE WOODS: If I may interrupt, to ask a question?
`MR. GARRETT: Of course.
`JUDGE WOODS: Okay, so if I understand the Patent Owner's
`argument correctly -- and please correct me if I'm wrong. So the Patent
`Owner's arguing that Smith, Smith's containers are designed to be
`transported on the road. And I think Paragraph 55 of Smith arguably
`supports that.
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`And so the Patent Owner's arguing that it would not have been
`obvious to increase the payload capacity of Smith's containers, because it's
`already designed to carry as much load as you could carry.
`And so it's less I think about what the claims require, it's, it's more
`about would a person having ordinary skill in the art have increased Smith's
`containers payload capacity, when it's already strong enough to carry as
`much as you can carry on the roads? So if you could respond to that?
`MR. GARRETT: Sure, Your Honor. Thank you for that question.
`The answer is, if we go back a little bit to Slide 18, there is sort of three
`answers. One is, not all roads are interstate highways, number one.
`Number two, there are permits available, for some interstate routes.
`And number three, if that's really, you know, the gist of their problem, then
`that supports our motivation to go to a one compartment version of the
`container.
`JUDGE WOODS: Okay, thank you.
`MR. GARRETT: Absolutely. So moving to Slide 21. So I'm
`going to cover two more things hopefully briefly, and then I'll turn it over to
`Mr. Albright.
`Slide 21 shows their attempt at rebutting the obviousness of using
`Hedrick's braces. These are the braces that go on the inside, the horizontal
`bracing structure. And it's a -- it's a two-part argument. The first part is,
`Hedrick is different than Smith, so they kind of catalog differences.
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`And the second part is -- well, according to them, the reason for the
`bracing is that Hedrick is missing a top. It's an open hopper. And so they
`say, look, if you had a top, like Smith has, you wouldn't need this horizontal
`bracing, so that's --
`JUDGE WEATHERLY: Wouldn't the top be a horizontal brace
`technically though?
`MR. GARRETT: Well -- it's certainly a brace, at the top, but is it a
`brace in the middle, where the walls don't have any other support, no it's not.
`JUDGE WEATHERLY: Okay.
`MR. GARRETT: And really, the, for them, the problem, and I can't
`really, I can't reconcile this inconsistency. Look at their patent, their patent
`has a top, and they put braces right in the middle, right where Dr. Wooley is
`talking about putting in them.
`And in the description of the effect of those braces, it says they
`structurally enhanced the strength of the container. Well, no kidding.
`That's what we said. That's what Dr. Wooley said. Use these braces at sort
`of the weakest, unsupported parts of the side walls of Smith's container, and
`Smith wants his sidewalls to be part of his structural frame, so there's an
`impetus to do this.
`And it will keep those walls -- it will help to keep those walls from
`buckling. And their expert conceded that. He tried to walk that back and it
`got complicated.
`JUDGE WEATHERLY: Where? Where did he concede that?
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`MR. GARRETT: So we said, look, if you do it the way our -- we
`understand that you don't believe you should do it, but if you do do it --
`JUDGE WEATHERLY: But what I'm after really is more like a
`citation to testimony.
`MR. GARRETT: Understood. So we cite in the reply, Pages 16 to
`18, his discussion of it, where he concedes that they may very well help to
`prevent buckling. And then he says, but wait, they'll cause these stress
`concentrations and problems will arise with that. And then, on those same
`pages of our reply, we also detail the shortcomings of those arguments of
`his. Those were --
`JUDGE WEATHERLY: All right.
`MR. GARRETT: Okay.
`JUDGE WEATHERLY: I'm not sure that rises to the level of a
`concession, but we're in the business of carefully reviewing things that you
`cite to us.
`MR. GARRETT: I know you are. I know you are. Okay, Slide
`23 and Slide 24, and then I'll hand it off. So their first part of rebutting
`Claussen, the use of Claussen's blue support members is, support members
`don't support.
`That's their argument. Those structures do not strengthen Claussen's
`container at all. And the answer to that is, yes they do. Your own FEA
`analysis proves that. That's the bottom line.
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`The second thing is, Dr. Wooley says, look, if you and the interval
`invite him, you could attach those support members to the hopper of Smith's
`compartments, and you can do it with the cradle, or you can do it without the
`cradle.
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` You don't need the cradle, because the function of the cradle is to
`position the containers relative to the frame. But when you're sticking
`everything together and it's all immovable, the need for that cradle goes
`away.
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`We're not saying the cradle doesn't provide support, it does, but you
`don't need it to the degree that you do, when you're just resting it in there
`and trying to make sure that it's going to line up right.
`So their argument against that, the without a cradle opinion, is to
`focus exclusively on the disclosure of Claussen. They don't ask Dr. Wooley
`in his deposition.
`Let's talk about Paragraphs 158, 159, and 160, where you describe
`this combination of Smith and Claussen. They only want to talk about,
`literally, Claussen. So they put it out in front of him. They say, Claussen's
`interval environment has that cradle in it, doesn't it? Yes.
`And you couldn't have Claussen's interval environment, without that
`cradle, right? Well, no, we're talking about Claussen. So no. That's
`Claussen's invention. So they are attacking a reference individually, instead
`of addressing it in combination.
`And now, I will hand it off to Mr. Albright.
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`MR. ALBRIGHT: Good morning, Your Honors.
`JUDGE CHERRY: Good morning.
`MR. ALBRIGHT: So I'm going to address Patent Owner's last
`rebuttal to our combination of Claussen with Smith and we are going to
`explain, one, that Patent Owner has not established that a POSITA could or
`would have used FEA and thus, that Mr. Smith's CAD models are even
`relevant.
`Two, that when Mr. Smith's CAD models are interpreted correctly,
`they show that Claussen support members do strengthen his container, and
`so they support our position.
` And, three, we're also going to address Patent Owner's rebuttals,
`including in the brief time that we have, their improper new arguments
`regarding heat-effected regions and fatigue. Notwithstanding that, we do not
`believe that those arguments should be considered.
`So what we have here is excerpted from Mr. Smith's declaration, and
`these are his two CAD models. We've got one, at the top right that is the
`container with the support members.
`JUDGE CHERRY: Which slide is this?
`MR. ALBRIGHT: I'm sorry, Your Honor, it is Slide 26. And then,
`in the bottom right, we have the container without support members. And
`before we really get into it, it's important to note that Mr. Smith's opinions
`are limited to the region of the container that he calls the blowout, which is
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`the zoomed-in box region that we have indicated in the dash red line, in the
`top right.
`And so his opinion is that in the container without the support
`members, the stress in the blowout -- the maximum stress in the blowout is
`2,500 PSI. And then, when you add the support members, the stress in the
`blowout jumps to 8,900 PSI. And because there's now a higher stress with
`the support members, you have actually weakened the container.
`JUDGE WEATHERLY: Is that because of a stress concentration?
`MR. ALBRIGHT: That's their position, yes
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