Trials@uspto.gov
`571-272-7822
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` Paper 78
`Entered: October 7, 2021
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`BLUECATBIO MA INC.,
`Petitioner,
`
`v.
`
`YANTAI AUSBIO LABORATORIES CO., LTD.,
`Patent Owner.
`
`__________
`
`PGR2020-00051
` Patent 10,338,063 B2
`
`__________
`
`Record of Oral Hearing
`Held: September 17, 2021
`__________
`
`Before CHRISTOPHER L. CRUMBLEY, JO-ANNE M. KOKOSKI, and
`ELIZABETH M. ROESEL, Administrative Patent Judges.
`
`
`
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`571-272-7822
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` Paper 78
`Entered: October 7, 2021
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`BLUECATBIO MA INC.,
`Petitioner,
`
`v.
`
`YANTAI AUSBIO LABORATORIES CO., LTD.,
`Patent Owner.
`
`__________
`
`PGR2020-00051
` Patent 10,338,063 B2
`
`__________
`
`Record of Oral Hearing
`Held: September 17, 2021
`__________
`
`Before CHRISTOPHER L. CRUMBLEY, JO-ANNE M. KOKOSKI, and
`ELIZABETH M. ROESEL, Administrative Patent Judges.
`
`
`
`
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`PGR2020-00051
`Patent 10,338,063 B2
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`MICHAEL N. RADER, ESQ.
`EMMA L. FRANK, ESQ.
`Wolf, Greenfield & Sacks, P.C.
`600 Atlantic Avenue
`27th Floor
`Boston, Massachusetts 02210
`617-646-8370 (Rader)
`MRader-PTAB@wolfgreenfield.com
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JASON SHAPIRO, ESQ.
`MARK J. DEBOY, ESQ.
`Edell, Shapiro and Finnan, LLC
`9801 Washingtonian Boulevard
`Suite 750
`Gaithersburg, Maryland 20878
`240-864-2434 (Shapiro)
`240-864-2459 (DeBoy)
`js@usiplaw.com (Shapiro)
`mjd@usiplaw.com (DeBoy)
`
`
`
`
`The above-entitled matter came on for hearing on Friday, September
`
`17, 2021, commencing at 1:00 p.m. EDT, via Video-Teleconference.
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`Patent 10,338,063 B2
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`P-R-O-C-E-E-D-I-N-G-S
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`10:00 a.m.
`JUDGE ROESEL: Okay. Good afternoon, everyone. We are
`convening by video conference this afternoon to hear argument in
`PGR2020-00051 concerning U.S. Patent 10,338,063. The case is captioned
`BlueCatBio MA Inc. v. Yantai Ausbio Laboratories Company.
`This is Administrative Patent Judge Elizabeth Roesel. And with me
`are Judges Christopher Crumbley and Jo-Anne Kokoski.
`A court reporter is here to transcribe the arguments. It's possible
`that members of the public or the press are also listening to the arguments.
`According to our August 16th hearing order, each party will have 60
`minutes of argument time. In addition, Petitioner's LEAP practitioner will
`have 15 minutes of argument time.
`Petitioner will argue first and may reserve time to present rebuttal
`limited to responding to Patent Owner's arguments. Patent Owner will
`argue second. And they reserve time to present sur-rebuttal limited to
`responding to Petitioner's rebuttal arguments.
`I will set a timer to let each counsel know when the allotted time has
`expired. But I likely will not interrupt your arguments. To keep track of
`time, I suggest that you also set a timer.
`Each party has filed demonstratives. They may be used as a visual
`aid in presenting your arguments. However, neither the demonstratives nor
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`your oral presentations may be used to advance arguments or introduce
`evidence not already in the record.
`Petitioner has not filed objections to Patent Owner's demonstratives.
`Patent Owner has filed objections to some of Petitioner's
`demonstratives arguing that they advance impermissible new arguments or
`evidence not previously presented in the record.
`The panel has reviewed Patent Owner's objections and the objected
`to demonstratives. Consistent with the hearing order, each of the objected
`to demonstratives includes excerpts from papers or exhibits in the record,
`along with citations to papers or exhibits, and does not appear to present new
`argument or evidence. And on that basis, Patent Owner's objections are
`overruled.
`Each judge has before him the entire record, including the
`demonstratives. If your argument refers to a demonstrative, paper, or
`exhibit, please identify it and pause for a few seconds to give us time to find
`it.
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`As a courtesy, counsel should refrain from interrupting the other
`side's presentations. Any objections should be stated as part of your own
`argument. And when you are not speaking, please mute your line to
`improve the quality of the audio.
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`If anyone has technical difficulties hearing or being heard, please let
`us know immediately by contacting the people who set up the video
`conference.
`With that, unless there are questions, Petitioner may begin.
`MR. RADER: Well, thank you very much, Your Honor. My
`name is Mike Rader. I'm with Wolf, Greenfield on behalf of the Petitioner,
`BlueCatBio Massachusetts Inc. My colleague, Emma Frank, will also be
`arguing today.
`And I'll just mention that on the public audio line we have Mr. Frank
`Feist, who is the principal of the Petitioner, listening in.
`Judge Roesel, earlier in the week at the prehearing conference, you
`commented on the size and complexity of the record. I just want to start
`out by addressing that.
`The record is large. The case was litigated with extreme
`aggression. But the disputes in the case --
`JUDGE ROESEL: Counsel, may I interrupt you, please? Would
`you like to reserve time for rebuttal?
`MR. RADER: Yes, Your Honor. We expect to use --
`JUDGE ROESEL: How much time?
`MR. RADER: We expect to use close to an hour for our opening
`presentation. And we'll just reserve the rest of our time, given the extra 15
`minutes under the LEAP order, for a potential rebuttal if we need it.
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`JUDGE ROESEL: Okay.
`MR. RADER: So --
`JUDGE ROESEL: Please continue.
`MR. RADER: Thank you, Your Honor. So the disputes in the
`case over the course of the proceedings have narrowed in some important
`ways such that the remaining issues are much simpler than the size and
`complexity of the record might ordinarily suggest.
`It can be challenging, obviously, to untangle a record like this. So
`we worked hard in our reply to try to untangle things and present them
`clearly, hopefully succeeded. But I view it as a big part of my job today to
`build on that and help ensure that the issues and the information are
`organized for you, the Panel, in a way that's helpful. So please interrupt me
`at any time.
`So, to get things organized, I'd like to start with a brief overview of
`how Ms. Frank and I plan to allocate our time in the argument.
`If the Panel could turn to Petitioner's Demonstrative Number 3. On
`this slide, we see a photo of the Gyro Washer, you know, with the housing
`and the rotor next to a corresponding similar image from the patent. And
`you can see that these devices are virtually identical.
`Judge Roesel correctly pointed out in the prehearing conference that
`these two limitations we highlighted here in Claim 1 are the two disputed
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`limitations, the wind limitation and the cylindrical inner surface. We're
`showing Claim 1, but the same limitations appear in Claim 12 as well.
`The key narrowing which impacts how we're going to present our
`argument today is that the Patent Owner does not contest that these
`limitations are satisfied by the Gyro Washer under the constructions that the
`Board adopted in its Institution Decision.
`Throughout the Patent Owner response, they argue only that the
`Gyro Washer fails to meet these limitations under the new constructions that
`they're offering.
`So, for example, on the wind limitation, the Patent Owner does not
`contest that in the Gyro Washer the wind drives the main part of the liquid to
`the drain, which was the Board's construction.
`Instead, they argue that the Gyro Washer leaves some drops behind
`so that, quote, unquote, all or nearly all of the liquid is not driven to the
`drain, that leaving drops behind creates a risk of cross-contamination, and
`that the device allegedly fails to accommodate microplates for certain types
`of assays.
`All of those arguments are based on --
`JUDGE ROESEL: Counsel, could I interrupt you there? As far as
`-- I understood Patent Owner to be arguing that our construction, when we
`said the main, should be further construed to mean all or nearly all.
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`But they are presenting an argument that the main part is not
`expelled or removed from the housing. But they argue that along with their
`argument that the main means all or nearly all.
`But I also understand Patent Owner to be arguing they rely on this 73
`percent figure that came out of the discovery, that 73 percent of the water
`was removed during that bucket test run by Mr. Yagi that was not disclosed
`in the initial petition or declaration.
`So I'd like -- what about that evidence? Is that the main part when
`only 73 percent of the water is removed?
`MR. RADER: Yes. Okay. Well, let me take your questions one
`at a time.
`So, first of all, you're correct. What they're arguing is a
`construction of the construction is what we said in the reply. So they said,
`well, use the main parts. And the main part should be further construed to
`have all of these different requirements, such as, one, don't leave any drops
`behind, and that's how they evaluate whether it's all or nearly all, and, two,
`make sure that it avoids virtually all or all cross, potential for cross-
`contamination such that, according to their expert anyway, it's appropriate,
`the device would be appropriate for certain types of assays.
`That's the framework of their argument. I agree with you.
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`If you turn for just a second to Demonstrative Number 12 from
`Petitioner, it might be helpful to have that in front of us while I'm addressing
`the second part of your question, Your Honor.
`In this demonstrative, this is the evidence that you're speaking about.
`So this evidence, you're right, was not part of the petition. It's not objected
`to. It's admitted into the record.
`Actually, this evidence was relied upon first by the Patent Owner as
`Patent Owner response. And so, of course, we responded to it. And
`they're not objecting to it. They're not moving to exclude it.
`So here what you had, in addition to the experiments that Yagi-san
`submitted with his opening declaration, are experiments where Yagi-san
`connected a pipe, or a hose I should say, to the bottom of the Gyro Washer
`where the drain and then snaked that hose into a small bucket and then
`monitored how much water came out through the hose.
`Obviously, to get through the bottom of the hose into the bucket, the
`liquid has to first pass through the drain and into the hose. So 73 percent of
`the liquid made it into the bucket.
`What happened to the other 27 percent? Well, obviously, some of
`it remained behind in the hose by virtue of surface tension. And some of it,
`as the Board noted in your Institution Decision, there are a small number of
`droplets that will typically be seen after centrifuging on the inner surface of
`the housing of the drum.
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`So some combination of those two things, the drum and then the
`hose, accounts for this 27 percent. We don't know how much is in the
`drum and how much is in the hose. Whatever is in the hose, obviously, did
`go down through the drain, so it's more than 73 percent that made it through
`the drain.
`But for the sake of argument, we just pointed out, well, even if it's
`only 73 percent, if ignore what went through the drain into the hose, that
`plainly constitutes the main part by any reasonable understanding, unless the
`Board were to adopt these ultra-narrow constructions of the constructions
`that the Patent Owner is urging.
`And that's really where I'd like to focus our time today because there
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`--
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`JUDGE ROESEL: Well, let me interrupt again for a follow-up
`question. And that is, is there anything in the record that tells us with these
`bucket, so-called bucket tests, what was the configuration of the Gyro
`Washer? Did it have the steel door, stainless steel door, or did it have Mr.
`Yagi's Plexiglas door?
`MR. RADER: Because these videos, sorry, because these tests
`were run just evaluating the weight of the water that's being expelled into the
`bucket, there was no reason to use the Plexiglas door. So, in these videos,
`it was just the stainless steel door.
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`JUDGE ROESEL: Okay. And let's assume that the Panel agrees
`with Patent Owner that the wind limitation is one, that the patent teaches that
`one reason that you want to remove all of the water out of the cylindrical
`housing is to prevent cross-contamination.
`So, if that's the case, then why is 27 percent of the water being left
`behind the main, not the, you know -- I should say that in reverse. Why is
`73 percent of the water being removed still removing the main part of the
`water?
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`MR. RADER: So, obviously, I want to spend significant time on
`that claim construction issue, Your Honor. That's an important point,
`because we think that construction of the construction is totally unsupported.
`And that's going to be the thrust of the argument today.
`But to answer Your Honor's question, if there was some concern
`about the cross-contamination, the question is how much concern is there.
`The patent in column 3 makes very clear, in the only place where it
`talks about what happens after you run the centrifuge, it's very clear, it very
`clearly states that the inner surface of the housing will remain wet. And if
`you would like to, you can wipe it down and manually remove that liquid
`afterwards. So there is no disclosure in this patent of a system that does
`what their construction, if you really narrowly read it, would require.
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`So, you know, when you talk about what the Board observed in the
`Institution Decision, it was 73 percent is what ultimately made it to the
`bucket in that test. Obviously, a lot of the 27 percent is in the hose.
`The Board looked at the images and the video of Exhibit 1012,
`which was Yagi-san's experiment. And, you know, the Board commented
`in the Institution Decision that there were very few droplets left behind after
`the centrifuge had run. And that's accurate. All of the evidence supports
`that.
`
`That is exactly the same thing that the patent discloses. So
`whatever level of cross-contamination avoidance that the Patent Owner
`contemplates or the Board may be contemplating, the Gyro Washer prior art
`is the same thing as the patent disclosure. And I think that's a key point to
`keep in mind.
`JUDGE ROESEL: Okay. Let me follow up again. Is there
`anything in the record explaining why Petitioner did not disclose that 73
`percent number in the petition or the declaration when it filed the petition?
`MR. RADER: Yes, Your Honor. The record is very clear on that.
`Professor Slocum in his reply declaration and Yagi-san in his reply
`declaration explain that issue.
`What happened was that Yagi-san did a number of experiments.
`He created Exhibit 1012, which is the video the Board saw and talked about
`in the Institution Decision. Here we had a number of droplet experiments
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`that the Board saw and commented on in the Institution Decision. And
`then he ran some additional experiments.
`And one of the things Professor Slocum was interested in seeing was
`what the difference would be, was what would happen, how he can compare
`the amount of water that would be expelled and the rate at which it would be
`expelled depending on how fast they ran the centrifuging, whether it was, for
`example, 1,000 RPMs or 3,000 RPMs.
`And, obviously, we were a little bit hamstrung because Yagi-san is a
`third party. We weren't there. So we were, you know, very much relying
`on whatever he was able to do and was willing, you know, voluntarily to do,
`because he didn't have to cooperate with us.
`It turned out after we got this data that we found out the data set was
`taken under some different conditions. So some of the tests that Yagi-san
`ran at some of the RPM levels were on a totally dry machine, let's say first
`thing in the morning after everything had dried out. So the inner surface of
`the drum was totally dry. The hose was completely dry.
`And so that would give you one set of data with a certain amount of
`liquid, you know, taking up some space in the hose due to surface tension.
`And then some of the other tests that he ran were not done in that
`way. They were run, you know, 15 minutes later when the system was still
`wet and there was water in the hose.
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`So those results were not apples to apples comparisons. And
`because of that, Professor Slocum made the decision that he didn't want or
`need to rely on them because the droplet test and Exhibit 1012 with the
`video through the Plexiglas were more than enough to establish that the
`wind was driving the liquid as the claim requires. Your Honor relied on --
`JUDGE ROESEL: Let me interrupt again. So does Petitioner
`agree with Patent Owner's hypothesis that the person of ordinary skill in the
`art would expect that the faster the machine is run the higher the RPMs, the
`stronger the wind, and therefore that more water would be removed?
`MR. RADER: In general, that's true. There is a caveat to that,
`which is that there is a certain point at which the flow becomes increasingly
`turbulent. And so, if you just keep increasing it, and I'm not sure exactly
`what that point is, but there will come a point where it actually may flow out
`a little bit slower despite a higher RPM.
`But in general, at least in the initial region of increase, we agree with
`that, that, you know, as you increase the RPMs, it will expel the water faster,
`yes.
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`JUDGE ROESEL: Now, some of the tests that Mr. Yagi ran were
`apples to apples comparisons, right, because some of them were comparing
`the 500 RPM under wet conditions with the higher RPM, close to 3,000
`RPM under wet conditions. Is that true?
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`MR. RADER: I think that is, I believe that is true. I believe that
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`is true.
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`What you see, for example, on slide 12, our, my recollection is that
`the N equals 1 experiment, the first one in this set, was done, you know, let's
`say earlier in the day when everything was dry. And then after that, the
`subsequent runs, you know, were continued.
`So you had what they somehow defer to as seasoning of the
`machine. And so that can change the results a little bit. But there was,
`there were two sets of experiments run.
`JUDGE ROESEL: And once again, Mr., or Professor Slocum's
`apples to oranges explanation does not pertain to the 73 percent number,
`right? That's a reason for not disclosing the comparison. But it's not a
`reason for not disclosing that 73 percent of the water remained in the drum
`or in the hose. Is that right?
`MR. RADER: Well, I think the issue is, Your Honor, Professor
`Slocum, you know, had originally -- so this is really getting into the weeds.
`But Professor Slocum had asked Yagi-san to take a video of the bucket so
`that he could watch over time and tabulate over time how quickly the water
`came out into the bucket and how that weight changed on the scale.
`And once he learned that the experiments were not apples to apples,
`he didn't feel comfortable relying on that. And we didn't have a way of,
`you know, requiring Yagi-san, you know, to rerun those.
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`So, in the end, that turned out not to be important for another reason,
`which is that the main reason for doing that was to establish that the wind
`actually, there is a wind, and the wind actually does drive liquid, and it
`drives the liquid harder at higher RPMs.
`But that issue is no longer disputed. In their preliminary Patent
`Owner response before the Institution Decision, the Patent Owner argued
`that maybe the wind is not driving liquid at all. They said maybe the
`effects you're seeing here are some vibration and gravity. They dropped
`that. They waived that argument. The Patent Owner response does not
`contest that the wind drives the liquid.
`And, Your Honor, unless you have any other questions on that, it's
`very important to me for me to jump to the claim construction issues on the
`wind limitation. Do you have any further questions, or may I proceed to
`address the claim construction?
`JUDGE ROESEL: Please proceed.
`MR. RADER: Okay. If the Panel could turn to slide 27 of
`Petitioner's demonstratives. So this slide, on the upper left-hand corner,
`shows the different aspects that they're trying to layer on to the main part.
`And this is just a threshold issue that shows the internal inconsistency of the
`argument that Patent Owner is making.
`So, as you may recall, Patent Owner argued for secondary
`considerations that their own device, the AusWasher, practices the claims,
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`and by extension that the Petitioner's device, the BlueWasher, which they
`claim was copied, also practices the claims.
`But they've provided zero evidence, precisely zero evidence that
`either the AusWasher or the BlueWasher actually meets these requirements,
`so leaving nothing behind, no evidence whatsoever of what percentage of
`the liquid comes out or anything like that.
`So, while they're asking the Board for a construction that requires
`those things, when they wanted to argue that a device satisfies the claims,
`they didn't provide any evidence of that.
`Now, I'd like to turn to slide 28, please. All of their arguments
`about the claim construction requirements that they're trying to layer on are
`based on this principle that the fundamental object of the invention claimed
`in the patent is avoid cross-contamination and that the way you do that is by
`generating this wind. That, if you read their Patent Owner response and
`their expert declaration, that's their argument. Okay.
`If you can move to slide 29, there are -- I'm going to attack both
`parts of that, both the idea that there's an object of the invention to avoid
`cross-contamination and that the wind has anything to do with it in this
`patent.
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`So, first of all, in general as the Phillips case explained, claims are
`rarely construed to be limited because there's an object of the invention,
`even if it exists. In that case, there was a clear object of the invention, that
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`the baffles in the walls, that prison wall system, would deflect projectiles.
`And the Federal Circuit said no, we're not going to construe the claims
`narrowly just because of that object of the invention.
`You can move to slide 30 of Petitioner's demonstrative. This is
`really critical. So it turns out that there is no object of the invention to
`avoid cross-contamination in this patent.
`In fact, it's particular striking, Your Honor, because there are six
`other objects of the invention that are described in the patent. Not one of
`them talks about cross-contamination. And not one of them, let alone, talks
`-- they don't talk about cross-contamination, let alone say that it's the wind
`that controls the cross-contamination.
`So, if we could turn to slide 31, please. The patent does talk about
`avoiding cross-contamination, Your Honor. It does. It just doesn't say the
`wind has anything to do with it.
`It's very clear in column 15, which we've snipped here in the bottom
`left-hand corner. It explains how do you avoid cross-contamination, which
`is when liquid from one well comes into another well. That's what their
`expert explained in his deposition. How do you avoid that?
`Well, you turn it over not too slow and not too fast, meaning
`between 500 and 1,200 RPMs. You have to hit the sweet spot. If you do
`it too fast, you'll get cross-contamination. If you do it too slow, you'll get
`cross-contamination.
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`The patent doesn't say it's the wind that prevents cross-
`contamination. It offers other strategies for avoiding it. And that's not the
`only one.
`If you turn to slide 32 from Petitioner, there's another place where
`the patent talks about contamination. And this is in the column 4.
`The patent says one way you may get cross-contamination is if you
`have liquid that vaporizes, and if that vaporized liquid then condenses back
`onto the microplate, that's cross-contamination. You don't want that.
`So how does the patent teach you to avoid that? They say, well,
`cool down the housing and promote condensation there instead of on the
`microplate, nothing about the winds. And when I --
`JUDGE ROESEL: Counsel, may I interrupt here? So what does
`the patent teach the purpose of the wind is if it's not to, and driving the
`expelled liquid to the drain, if it's not to prevent cross-contamination?
`MR. RADER: Yep, good question. So, on the very next slide, 33,
`if we can take a look at that.
`So the patent does talk about wind a couple of times. And it does
`say the same thing that the claim says, which is that the wind drives fluid
`along the inner surface of the drain, along the inner surface of the housing to
`the drain. It says that. Okay.
`But what it doesn't say is that it has to do it in any super-duper way.
`And it doesn't say that it has to do it to avoid cross-contamination.
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`So, for example, here's another place where the patent actually
`mentions cross-contamination and says that what avoids cross-contamination
`is the pump. All right. It says there is this aspiration pump. There's a
`lot of emphasis in this patent on the pump.
`The drafter was apparently quite concerned that liquid could back up
`in the drain, you know, into -- if it didn't get through the drain fast enough, it
`could back up into the rotor space then and basically be hit by the rotor when
`it's rotating.
`So it says an aspiration pump connected to the drain of the centrifuge
`allows a faster and improved clearing of the housing. And then it says this
`is important for avoiding cross-contamination.
`So I asked the Patent Owner's own expert what that referred to.
`And he agreed. That refers to the pump. That refers to the pump, not the
`wind. And this is one of the passages they rely so heavily on that their own
`expert doesn't agree with them.
`If we turn to slide 34, and I'm going to go through now all the
`material that they rely on and the key material in the specification, which
`they've effectively tried to rewrite, Your Honor, in their Patent Owner
`response.
`So, on slide 34, we snipped another piece from column 3, where the
`patent expressly says as to the Panel's test in the Institution Decision, any
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`residual liquid remaining in the housing after switching off the pump can be
`removed manually.
`This is the only place where the patent talks about what happens
`after you're done centrifuging. And it says it will still be wet. You can
`wipe it down. You can remove it manually.
`There is nothing anywhere in this patent that discloses the wind
`having the kind of effect they're trying to report in their claim construction.
`Now, if we just advance to slide 35, and we've pointed out, given the
`lack of any embodiment that does what they're suggesting, their proposed
`constructions violate a bedrock rule of claim construction, which is that the
`claim as properly construed had better cover something in the patent, right.
`And the way they are suggesting we construe it, it will cover nothing
`in the patent, because there is nothing else anywhere besides in the sentence
`that describes more effective or more complete removal of liquid.
`Now, and turn to slide 36. This is from lower down in column 3,
`important column in the patent. This is another portion that the Patent
`Owner relies very heavily on, right.
`And it talks, in the top part, starting at line 58, it talks about the gap.
`It talks about the wind, right. It does repeat that concept a couple times,
`that wind can drive liquid.
`Then in line 61, it says, thus, it's possible to withdraw completely all
`liquid contained in the reaction vessel of the reaction vessel unit. Now,
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`remember, what are the reaction vessel units, a long term? It's a
`microplate, one of these plates that still has a bunch of wells in it. What's
`the reaction vessel? The reaction vessel is each individual well of the
`microplate.
`And the concept in this patent that's repeated over and over again,
`that by centrifuging it, you actually do a very effective job of getting the
`liquid out of these wells and better than what they describe in the prior art
`background where they were using, you know, aspiration nozzles to stop the
`liquid out. So they say it's possible if you spin it to withdraw all the liquid
`completely from the reaction vessel.
`They want to read this, and I've snipped from their Patent Owner sur-
`reply in the upper right, they want to read this as saying it's possible with the
`wind to get all the liquid out of the housing. It doesn't say that. It talks
`about getting the liquid out of the wells.
`And I asked their own expert that question. In this sentence starting
`with the word thus in line 61, that's the same sentence I've snipped here, it's
`talking about withdrawing liquid from the wells, not from the housing.
`And he agreed with me.
`I mean, that's just the simple reading of the patent. There's nothing
`there about using the wind to achieve any particular level of evacuation from
`the housing.
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`Now, Your Honor, I'd like to also point out a really important
`embodiment in this patent on slide 37. Slide 37 quotes from column 8.
`This is a critical embodiment for this claim construction issue.
`So they talk, and you can see in the third line down, about stuff,
`liquid splashing back into the vessel off the roof of the housing. They say
`that's a bad thing. The patent says we want to avoid that.
`Now, this may sound familiar, Your Honor, because the Patent
`Owner's main argument in this case is that the wind will prevent that from
`happening, no splashback.
`What does the patent say? It doesn't say the wind prevents that.
`The patent offers a totally different method of avoiding splashback. It says
`to avoid splashback don't release a ton of liquid, you know, onto the top of
`the housing because it might splash back.
`So, instead, gently turn it over just 180 degrees to dump most of it
`out into the bottom of the housing, right. Then it says in the second
`paragraph shake it back and forth to get, you know, most of the rest out, the
`residual out.
`And then it says, four lines from the bottom, only then do you start
`centrifuging, then you see the phrase four lines from the bottom these
`minimal amounts. Only minimal amounts in this are even left in the wells
`by the time you start centrifuging and get any wind.
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`So, under their construction, this embodiment wo
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