`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`VF OUTDOOR, LLC,
`Petitioner,
`
`v.
`
`COCONA, INC.,
`Patent Owner.
`
`__________
`
`Case IPR 2018-00190
`Patent 8,945,287 B2
`
`__________
`
`Record of Oral Hearing
`Held: February 28, 2019
`__________
`
`Before KRISTINA M. KALAN, CHRISTOPHER M. KAISER, and
`ELIZABETH M. ROESEL, Administrative Patent Judges.
`
`
`
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`
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`Case IPR2018-00190
`Patent 8,945,287 B2
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`KATHLEEN E. OTT, ESQUIRE
`PETER A. GERGELY, ESQUIRE
`Merchant & Gould P.C.
`1801 California Street, Suite 3300
`Denver, Colorado 80202
`
`ANDREW O. LARSEN, ESQUIRE
`Merchant & Gould P.C.
`767 Third Avenue, Suite 23C
`New York, New York 10017
`
`JENNIFER SIM, ESQUIRE
`VF Outdoor, LLC
`2701 Harbor Bay Parkway
`Alameda, California 94502
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JASON S. JACKSON, ESQUIRE
`JACOB SONG, ESQUIRE
`Kutak Rock LLP
`The Omaha Building
`1650 Farnam Street
`Omaha, Nebraska 68102-2103
`
`JEFF BOWMAN
`Cocona, Inc.
`5480 Valmont Road
`Suite 300
`Boulder, Colorado 80301
`
`
` The above-entitled matter came on for hearing on Thursday,
`February 28, 2019, 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
`- - - - -
`Proceedings begin at 1:01 p.m.
`JUDGE ROESEL: We will now hear argument in Case IPR2018-
`00190, VF Outdoor, LLC v. Cocona Inc., concerning U.S. Patent 8,945,287.
`I am Judge Elizabeth M. Roesel and with me on the panel on the screen from
`Denver, Colorado are Judges Kristina Kalan and Christopher Kaiser.
`Counsel, would you please introduce yourselves starting with the
`Petitioner?
`MS. OTT: Good afternoon, Your Honors, my name is Kathleen Ott,
`I'm the Lead Counsel for VF Outdoor. I'm joined here today with my co-
`counsel Andrew Larsen and Peter Gergely, who will be presenting oral
`arguments today. We're also joined by our client, Jennifer Sim, GC of VF
`Outdoor.
`JUDGE ROESEL: Thank you. Patent Owner?
`MR. JACKSON: Your Honors, my name is Jason Jackson, I'm the
`lead counsel for Patent Owner, Cocona Inc. I'm joined by my colleague
`Jacob Song. Also with us is a client representative, Jeff Bowman.
`JUDGE ROESEL: Thank you. I would like to remind the parties that
`this hearing is open to the public and a transcript of it will become part of
`the record. Each side will have a total of one hour to present your
`arguments. The Petitioner will be first and may reserve time for rebuttal and
`Patent Owner will argue second and may also reserve time.
`When referring to an exhibit on the screen, please tell us the slide
`numbers so that we can follow along and that will also help the court
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`reporter to prepare an accurate transcript. Before we begin, I'd like to turn
`the microphone over to Judge Kalan who will address the objections to
`demonstratives.
`JUDGE KALAN: Thank you and welcome. Thank you for flying to
`Alexandria and we hope the next time we have a hearing with this
`configuration we can do it from Denver. Regarding the objections, we know
`the Patent Owner filed objections to certain slides of the Petitioner's
`demonstratives on the grounds they contain new argument or new evidence
`not previously raised in the petition or the reply brief.
`And Petitioner has submitted revised demonstratives which we hope
`address some of those objections, but on this record we'd like to note that the
`demonstratives themselves are not evidence and they're just argument aids
`and they've been filed with the legend “Demonstrative Exhibit—Not
`Evidence.”
`So we will take into account Patent Owner's objections, which are
`preserved, and we will refer them when we prepare our final written
`decision. But for the purposes of this proceeding, Petitioner may use its
`demonstratives with the understanding that any new material or new
`argument presented in the demonstratives will not be given any weight in
`our final written decision.
`Any questions from the parties?
`MR. GERGELY: No, Your Honor.
`MR. JACKSON: No, Your Honor.
`JUDGE KALAN: Back to you, Judge Roesel.
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`JUDGE ROESEL: Thank you. So Petitioner may approach the
`podium and begin their argument.
`MR. GERGELY: Thank you, Your Honor. I'm Peter Gergely from
`Merchant & Gould on behalf of VF Outdoor, LLC. Again, with me today is
`Jennifer Sim who's the General Counsel of VF Outdoor, LLC, and that is the
`corporate name of the North Face, which is --
`JUDGE ROESEL: Okay, before you begin, would you like reserve
`rebuttal time?
`MR. GERGELY: Yes, I'll reserve 15 minutes, thank you. Ms. Sim is
`General Counsel of The North Face, which is a brand that should be
`well-known to most everyone in this room. It is a leader and has been for
`the past 50 years in the outdoor apparel, equipment, and footwear industry.
`This patent, U.S. Patent 8,945,287, concerns a waterproof
`composition and that waterproof composition has some additional
`limitations, and I'd like to go through those and highlight which ones I
`believe are at issue.
`The first element is a liquid impermeable breathable cured base
`material comprising of first thickness. The second element is the plurality of
`active particles in contact with the liquid impermeable breathable cured base
`material, the plurality of active particles comprising the second thickness.
`And wherein the first thickness comprises a thickness at least 2.5
`times larger than the second thickness but less than an order of magnitude
`larger than the second thickness. The active particles improve the moisture
`vapor transport capacity of the composition and a moisture vapor
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`transmission rate of the waterproof composition comprises 600 grams per
`meter-squared per day to about 11,000 grams per meter squared per day.
`So, what do you think about when you hear liquid impermeable
`breathable materials? I know what I think about, I think about Gore-Tex,
`which is a famous breathable material that's sold and licensed by W.L. Gore
`and Associates.
`So, it's not surprising that the key prior art in this case is assigned to
`W.L. Gore and Associates and was developed and filed for in the 1990s, and
`published years before the ’287 patent was filed for. And of course, as we
`know, that is the Dutta reference and the Halley reference.
`So, in our view, there's really three issues here. It's the issues around
`what is the meaning of first thickness, what is the meaning of second
`thickness, and what is the meaning of active particles? And number two,
`how are those elements disclosed in prior art or how would they be
`combined with the Haggquist reference?
`The Board in its institution decision construed first thickness to mean
`the thickness of a base material, in which base material may include active
`particles. The second thickness was construed by the Board to mean the
`thickness of a plurality of active particles which may be the particle size of
`the active particles.
`And the third issue concerned the construction of active particles
`themselves, which were construed as particles that have the capacity to
`cause chemical reactions at the surface or physical reactions such as adsorb
`or trap substances. That was the Board's decision in its Board order granting
`institution.
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`It's not been changed, there's been no petition for rehearing or
`reconsideration, however, the Patent Owner is now telling the Board that it
`got it wrong and its case is dependent on changing those claim constructions
`because its analysis of the prior art is completely dependent on achieving the
`claim constructions which they think are correct.
`But there is no basis to change those constructions. In our view, they
`are consistent with and aligned with the broadest reasonable interpretation of
`the claim in view of the specification and prosecution history.
`Applying the Board's claim construction of those elements that are at
`issue, all the elements of the challenged claims are shown by either Dutta or
`Halley so they're anticipated under Section 102. There is a debate in this
`case as to whether or not the particles that are in Dutta or Halley actually are
`active particles.
`In that case we also have grounds asserting obviousness which the
`Board also instituted on, and in that case, if you were to substitute the
`admittedly active particles from the Haggquist reference for the Sephadex or
`Black Pearls 2000 particles in Dutta or Halley respectively, you would have
`all the elements of the claims.
`JUDGE ROESEL: But then there's the encapsulation claims, right?
`MR. GERGELY: There is the encapsulation claims, which are
`Claims 38 and 39 and so those are challenged on grounds of obviousness
`under Section 103 and that's based on a combination of Dutta and Haggquist
`on the one hand, or Halley and Haggquist. And we're only relying on the
`Halley-Haggquist combination.
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`We're not trying to invalidate -- I'm sorry, let me take a step back.
`We're not trying to invalidate all of the challenged claims based on the
`Halley-Haggquist combination, just 38 and 39. Whereas, the combination of
`Dutta and Haggquist would invalidate all of the challenged claims.
`So, where does that leave us? I just want to address some of the
`analysis with respect to these elements. First of all, the claim construction is
`correct. The first thickness was construed to mean the thickness of a base
`material, in which base material may include the active particles.
`And that's straight out of the specification.
`JUDGE ROESEL: Once again, could you please name the slide?
`MR. GERGELY: Sure, let me just grab my version. Turn to Slide 5.
`So, this is the specification support for the first thickness element and you'll
`see up top on slide 5 there is a call-out of the ’287 patent specification which
`talks about -- actually, it's probably better to go down to Example 1 first.
`It talks about how the protective activated carbon was suspended in
`the polyurethane solution and the mixture was applied to a nylon woven
`fabric. The mixture was dried and cured, and it resulted in the membrane
`coated on a substrate, the membrane having thickness of one mil.
`So that is the cured base material and the active particles mixed
`together. And then above that it also shows a further discussion of that
`example where it discusses the membranes being produced by drawing
`down the mixture on release paper.
`Membranes were cured and dried in an oven and then removed from
`the release paper, yielding a subsequent membrane. The membrane was one
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`mil thick. Again, that is the base material and the activated particles
`combined together.
`JUDGE ROESEL: Is there any disclosure in the challenged patent of
`a layered configuration where you have base material and then the plurality
`of active particles adhered to the top of the base material?
`MR. GERGELY: No. I didn't see that in the specification at all. And
`the other point which we'll get to, which is important, is you have to look at
`the claim as a whole. And you have this first thickness and second thickness
`and those two thicknesses have to be in a certain ratio, what I've called the
`2.5:10 ratio.
`And the only support for the claim as a whole for first and second
`thickness as they're configured in Claim 27 is this particular example
`because you've got the overall membrane being one mil thick, which is 25.4
`microns, and then you've got the Asbury carbons, activated carbon, which is
`about 10 microns.
`And so that is the only support for that claim, Claim 27, for those
`elements, first and second thickness as well as the ratio. So, I don't see
`anything in the patent with respect to laying down activated particles on top
`of the cured base material in a separate layer, much less that would yield that
`particular ratio.
`JUDGE KALAN: Is there anything in any of the incorporated by
`reference patents that would indicate that there's a layered construction?
`MR. GERGELY: No, what's incorporated by reference is the
`Haggquist patent application and, no, it doesn't go into any of that kind of
`detail. And then, Kathy, if you would turn to slide 4, just back up, again, on
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`slide 4 this was the argument that accompanied the amendment in the first
`thickness element.
`And it said: Example 1, membrane comprises a thickness of about 1
`mil or of about 25.4 microns. And again, if you continue reading the text, it
`shows that the activated Asbury carbon is included in that cured base
`material. So, the Board's construction is consistent with the broadest
`reasonable interpretation.
`I would suggest it would meet the Phillips standard because it's
`straight out of the specification and consistent with the file history. So,
`there's really no basis to change this construction at this point.
`JUDGE KALAN: Can I ask if the substrate ever factors into the
`calculation of the thickness?
`MR. GERGELY: No, it doesn't. There is discussion of the
`background of the specification about applying this particular membrane to
`yet another substrate, which could be a nylon, it could be a woven, it could
`be a non-woven. But in each case, when they're measuring the membrane
`which is the cured base solution in the activated particles, in each case it's
`one mil thick.
`So there's no disclosure of any thickness of a substrate. So, you look
`at Dutta and where is that shown in Dutta? It's shown in Dutta in Example
`B. Kathy, if you could turn to slide 14? So slide 14 is Example 1B from
`Dutta, which shows the first thickness of the material, which is the cured
`polyurethane solution combined with Sephadex.
`It was measured to be 31-thousandths of an inch, which translates to
`76.2 microns. So that's the first thickness that's shown in Dutta. So that
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`element is shown according to the Board's construction. Next there is the
`second thickness element, and the issue around this is can this second
`thickness be defined by particle size?
`And the Board construed second thickness again to mean the
`thickness of the plurality of active particles, which may be the particle size
`of the active particles. And again, that comes from the file history. And so
`what happened here is there was an amendment adding the second thickness
`element.
`The only support in the specification for the second thickness was this
`disclosure of the Asbury 5564 activated carbons, which Applicant’s attorney
`stated comprises about 10 microns (the second thickness). So, it was clearly
`defined in the file history as being equal to particle size.
`JUDGE ROESEL: So how does Petitioner interpret particle size
`when it's used to refer to the second thickness? Is it the average or mean or
`the D50 or the D90? How does the Petitioner interpret that?
`MR. GERGELY: Actually, that's an interesting issue. I don't believe
`that issue is in front of the Board but I would interpret it as the size of any of
`those particles. It could be any of those particles.
`JUDGE ROESEL: So even two particles --
`MR. GERGELY: Correct.
`JUDGE ROESEL: -- that meet the range limitation is good enough?
`MR. GERGELY: Correct. It's an interesting claim because it talks
`about the plurality of active particles and then it says comprising a second
`thickness. And we all know what comprising means, it means including but
`not limited to.
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`So in this case if you have a collection of active particles, let's say for
`sake of argument a million particles, it would include a second thickness,
`any one of those particles could be the second thickness. Because I would
`include a particle that is sized to be 10 microns or less.
`JUDGE ROESEL: Normally when you talk about particle size you're
`talking about particle size of a bulk amount of particles, right?
`MR. GERGELY: I'm not sure I follow you. What do you mean?
`JUDGE ROESEL: For example, in the file history where it talked
`about the Asbury carbon and they said it was about 10 microns, that's not 1
`or 2 particles, right?
`MR. GERGELY: It says as seen in the attached product data sheet for
`Asbury 5564 powdered coconut activated carbon, the particle size for the
`Asbury 5564 powdered coconut activated carbon comprises about 10
`microns. So they're referring to individual particles. Are you saying that
`you think they're referring to an aggregate?
`JUDGE ROESEL: I'm asking.
`MR. GERGELY: I don't think so. I think when they say particle size,
`I think they mean particle size as written. If they meant an aggregate of
`particles of a collection of particles, they would have said a cluster or an
`aggregate of particles are this size.
`JUDGE ROESEL: No, I wasn't referring to an aggregate, but rather a
`bell curve. A bunch of particles, if you measure their size it will fall on a
`bell curve. Most of the particles will fall within a certain range but you get
`tails, right, on both ends often times.
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`MR. GERGELY: I see what you're saying, that there's some that
`could be below 10 and there could be some that could be above 10.
`JUDGE ROESEL: Right.
`MR. GERGELY: I hadn't considered that issue but it makes sense to
`me that they're probably not all exactly 10.
`JUDGE KALAN: A follow-up question to that, how is the second
`thickness typically measured? We have our idea of how that might happen,
`but if you can provide some clarity on that, that would be helpful.
`MR. GERGELY: I think the issue is the Patent Owner didn't provide
`any clarity beyond what's in the specification. But just based on my own
`knowledge from college chemistry, you could measure particle size through
`a Coulter counter, for example.
`You would run the particles through a Coulter counter and would be
`able to determine diameters. Or you could put it under a high-powered
`microscope I suppose.
`JUDGE KALAN: Okay, I think I'm meaning a more low-tech
`situation. I understand you can have the diameter of a particle size being the
`second thickness, but in an aggregate situation would it be like a loaf of
`banana bread with walnuts in it and you take a cross-section and somehow
`measure the presence of walnuts within that slice?
`Or when you're looking at the actual base material with the active
`particles interspersed, how are you accounting for what might be the
`plurality of active particles within that base layer at any given point to get
`your numerical value for a second thickness?
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`MR. GERGELY: I think in this case you have to look at what the
`specification says and what the file history says. And they simply said that
`the particle size comprises about 10 microns, so it wasn't based on any type
`of laboratory test measurement. They simply said here's a spec sheet and
`these particles are about 10 microns.
`And so they asked the patent office to take it on face value that this
`particles comprised about a 10 micron particle size. And there's really
`nothing beyond that. In fact, I think if you look at the file history, the
`specification sheet wasn't even tendered to the office. It's not there, it's
`missing.
`So, this is all we have, this is the only support in the entire patent and
`file record for this element.
`JUDGE KAISER: This issue of what does particle size mean when
`we're talking about possibly a distribution of particle sizes is not really
`unimportant. The Dutta reference gives range a of 20 to 50 microns and at
`the 20 micron level I think they fall within the range of the claim, but at the
`50 micron level they don't.
`So there's some line there where it's your burden to show the claim is
`unpatentable. So we need to know for sure what particle size means in that
`distribution. Is it really we can pick any arbitrary particle as long as we can
`find one or two or some plurality that are the right size, or is it the average
`size, or is it something else altogether?
`Is there anything in the record to support your argument that we can
`just pick one?
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`MR. GERGELY: So I think the issue is can you anticipate or render a
`claim as obvious based on ranges? And the argument was made -- I don't
`recall off the top of my head which particle size was picked, I'd have to look
`it up. But it was a size that met that 2.5:10 ratio. And again, it was an issue
`that was briefed.
`The argument was made and the Board instituted -- I don't believe the
`Patent Owner ever challenged anticipation by ranges or obviousness based
`on ranges so it's not really an issue in front of the Board. But I would
`respectfully submit that that range, that 20 to 50 range, is a discrete range.
`It's not a big range.
`So, yes, I think a person of ordinary skill in the art would assume that
`there are in fact particles sized from 20 to 50 in that range. Again, indulging
`your argument that it's probably a bell curve of particles. If you're creating a
`number of particles, they probably will not all be exactly the same size so I
`think that's why in Dutta they said 20 to 50.
`It's just because I think that's the size of those particular particles.
`They're not uniform. So I think a person of ordinary skill in the art reading
`Dutta seeing that it disclosed 20 to 50, the assumption, and I think it's a
`reasonable assumption, is that there will be particles in fact sized from 20 to
`50 in a range.
`Does that answer your question?
`JUDGE KAISER: Yes, I think so. I guess I'm more concerned about
`the issue you raised which is I agree with you that comprising means
`including. So it seems like if we've got range of particle sizes, we can pick
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`any arbitrary particle size within that range and that is included within
`particles that are there.
`But it strikes me as almost a little bit too facile. That seems too easy
`for a claim where the most natural reading of the claim language divorced
`from the specification and the fact that the specification doesn't seem to talk
`about layering would be some sort of a layering.
`It just seems like maybe that's a step too far and I just wondered if
`there's anything you could point to that would support that view? Because I
`think that view would help you.
`MR. GERGELY: Sure, the other point to be made, again, is if you're
`looking at this claim as a whole, it talks about the ratio of the first thickness
`to the second thickness and it has to be in a certain ratio. And the first
`thickness have to be at least 2.5 times greater than the second thickness but
`not more than 10 times thicker. So it's that 2.5 to 10 range.
`There was testimony during Dr. Daniels's deposition, and he's one of
`Cocona's experts, where he said that if you're putting these particles into a
`base material, it's unlikely that you're going to get a perfect monolayer of
`particles laid down, that they're going to tend to cluster and aggregate.
`So, in that respect, for example, if I have a bunch of 10 micron
`particles in my hand and I throw them on the floor, it's more likely than not
`they're not going to spread out in a perfect monolayer on the floor. They're
`going to tend to cluster, there's going to be some areas which are probably
`20 microns or 30 microns or 40 microns depending on how those particles
`stack up.
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`So, bringing it back to this invention, likewise if you're putting these
`activated carbon particles into a base material solution, Dr. Daniels testified
`it's unlikely that you're going to lay them down in a perfect monolayer. So,
`that being the case, you are probably going to have those particles stacked
`up and they're going to be 20 microns, 30 microns, 40 microns.
`In that case, if you're dealing with a base material that's 76.2 microns,
`you will never meet the 2.5 to 10 ratio because say you have two 10-micron
`particles stacked on top of one another, we'd have 20 microns. Simple math
`dictates that if you -- well, strike that.
`Let me get back to that point.
`JUDGE ROESEL: Doesn't the file history tell us, the part you're
`pointing to, that the particle size that's relevant here is the one of the
`particles before they're mixed with the base material?
`MR. GERGELY: Yes, I think off the shelf that's correct. I may come
`back my other point, I lost my train of thought. I need to come back to it.
`I'm sorry, I remembered, it was a math issue.
`This is my point, if you are putting the activated particles into the base
`material and they had a tendency to stack up on top of one another, we know
`that the base material plus the active particles combined when they're
`measured is 25.4 microns.
`So if you have those 10-micron particles stacking up on top of one
`another, knowing that it's unlikely they're going to be laid down in a perfect
`monolayer, if you have two of those stacked up you're going to have 20
`microns. So, you will not meet that 2.5:10 ratio because 2.5 times 20 equals
`50.
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`So, you're going to be bigger than the base material so it won't meet
`that ratio because the base material would be 25.4 microns. It's going to be
`out of that range. So the only way this claim has 35 U.S.C. Section 112
`support is if you equate the second thickness with the individual particle
`size, that's the only way it makes sense.
`And that's the only support for it.
`JUDGE KALAN: So can we retain the portion of the claim
`construction that talks about plurality of active particles?
`MR. GERGELY: So it was our contention that the second thickness
`meant the particle size but, yes, I think that could be retained because, again,
`back to my earlier example, you can have a plurality of particles, say 1000,
`10,000, 1,000,000 particles, which can comprise a second thickness.
`If you were defining the second thickness as possibly being particle
`size, then you can retain that. Because I think the Board's construction is
`broad enough to cover both examples. It actually talks about we construe
`second thickness to mean the thickness of a plurality of active particles
`which may be the particle size of the active particles.
`So I think under the Board's construction, it allows the possibility of
`the second thickness being the plurality of active particles of there's some
`ability to measure that thickness. I don't know how that would be done and
`it's definitely shown in this patent. But the Board's construction also
`allows the possibility that the second thickness may be the particle size of
`the active particles. I think you could retain it, I think probably the better
`construction if you were to apply 112 to this would be to equate the second
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`thickness with the particle size, but I could see leaving the Board's
`construction as is.
`JUDGE ROESEL: But the point you're making with your
`mathematical example is that particle size we're talking about here is the
`particle size of the individual particles, not aggregates.
`MR. GERGELY: In this case, yes, that's right, because again, we're
`just going off of what the Patent Owner told the examiner, which is just raw
`particle size. It doesn't say anything about aggregates or clustering or
`anything like that.
`I realize that it's an issue that on its face you look at it and it may not
`make particular sense but this is the argument that the Patent Owner made
`based on the support in the specification and based on the arguments in the
`file history in order to obtain the allowance. They made this argument, this
`is the language they've used, so they have to live with it.
`And is it the broadest reasonable interpretation? Absolutely. You
`look at the BRI in view of the specification and file history and it is
`absolutely consistent with the file history and it is absolutely consistent with
`-- excuse me, it is absolutely consistent with both the specification and the
`file history.
`And it's also consistent with the 2.5:10 ratio, knowing that you
`couldn't lay these down in a perfect monolayer, that there would be highly
`unlikely.
`May I go on?
`JUDGE ROESEL: Yes, please.
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`MR. GERGELY: So, the issue of the second thickness is, is that
`shown in the Dutta reference? Yes. We've discussed that Example 1B talks
`about this range of Sephadex particles as being sized 20 to 50 microns. And
`the ratio would be met as well.
`And since you asked, I am just looking up where in our brief -- so the
`particle size that was chosen was one of the end points, which was 20. And
`then it was the range of 20 to 30.
`JUDGE ROESEL: So the Sephadex particles that are sized 30 to 50
`microns don't meet those ratio limitations, is that right?
`MR. GERGELY: Actually, I take that back. If you look at our brief
`on Page 35 the math shows that any particle size from 20 to 30 microns
`within the 20 to 50 micron range meets the claim thickness ratio. So, yes, to
`answer your question I think that's right.
`If it was 31 I think you're correct, because it's 76.2 so if it was 31, it's
`62 plus, say, 15, yes, that would just be right outside it. So 20 to 30 would
`meet it, and again, that's within the range and again, that's what was said in
`the Petition which was instituted and there was no contention from the
`Patent Owner that somehow that range was not anticipatory.
`So, the third element at issue is active particles. And the active
`particles were construed as particles that have the capacity to cause chemical
`reactions at the surface or physical reactions such as adsorb or trap
`substances.
`And again, I think the Board just took that straight out of the ’287
`patent specification and it's also consistent as well. I think the Board said in
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`its institution decision that it considered Haggquist but based its decision on
`the ’287 definition.
`But it is also consistent with Haggquist and there's no reason to
`change that at this point in time.
`JUDGE KALAN: Patent Owner seems to say in their sur-reply that
`you're presenting a new argument regarding this claim construction. I just
`wanted to confirm that you're agreeing with our initial construction and not
`proposing anything new.
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