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`IPR2015-00880, Paper No. 24
`July 28, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`AKERMIN, INC.,
`Petitioner,
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`v.
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`CO2 SOLUTIONS INC.,
`Patent Owner.
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`Case IPR2015-00880
`Patent 8,329,458 B2
`____________
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`Held: June 9, 2016
`____________
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`BEFORE: MICHAEL P. TIERNEY, JON B. TORNQUIST, and
`ELIZABETH M. ROESEL, Administrative Patent Judges.
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`The above-entitled matter came on for hearing on Thursday, June
`9, 2016, commencing at 1:32 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`571-272-7822
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`IPR2015-00880, Paper No. 24
`July 28, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`AKERMIN, INC.,
`Petitioner,
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`v.
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`CO2 SOLUTIONS INC.,
`Patent Owner.
`____________
`
`Case IPR2015-00880
`Patent 8,329,458 B2
`____________
`
`Held: June 9, 2016
`____________
`
`
`
`
`
`BEFORE: MICHAEL P. TIERNEY, JON B. TORNQUIST, and
`ELIZABETH M. ROESEL, Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Thursday, June
`9, 2016, commencing at 1:32 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`Case IPR2015-00880
`Patent 8,329,458 B2
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`MARC W. VANDER TUIG, ESQUIRE
`JOHN R. SCHROEDER, ESQUIRE
`Senniger Powers, LLP
`100 North Broadway
`17th Floor
`Saint Louis, Missouri 63102
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`SANDIP H. PATEL, ESQUIRE
`MICHAEL R. WEINER, ESQUIRE
`Marshall Gerstein Borun, LLP
`233 South Wacker Drive
`6300 Willis Tower
`Chicago, Illinois 60606-6357
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`ON BEHALF OF PATENT OWNER:
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`Case IPR2015-00880
`Patent 8,329,458 B2
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`P R O C E E D I N G S
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`JUDGE ROESEL: Good afternoon. Today we'll hear
`argument in case number IPR2015-00880, Akermin versus CO2
`Solutions concerning patent number 8,329,458. Would counsel
`for the parties please introduce yourselves starting with petitioner.
`MR. VANDER TUIG: Yes, Your Honor. Marc Vander
`Tuig, Senniger Powers her on behalf of petitioner, Akermin, Inc.
`With me today is my colleague, John Schroeder.
`MR. PATEL: Thank you, Your Honor. My name is
`Sandip Patel, and I'm here for Marshall, Gerstein & Borun on
`behalf of CO2 Solutions with my colleague, Michael Weiner.
`JUDGE ROESEL: Thank you and welcome to the
`Board. According to our order on June 1, 2016, each side is
`going to have 45 minutes to argue today. The petitioner will
`argue first and may reserve rebuttal time. The patent owner may
`not reserve rebuttal time. And I'll remind the parties that the
`petitioner here bears the burden of proof by a preponderance of
`the evidence on its proposition of unpatentability. I will also
`remind the parties that this hearing is open to the public and a full
`transcript of the hearing will be made and will become part of the
`record.
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`So please, as you are going through your slides, I know
`each side submitted demonstratives for today's hearing, please
`remember to mention the slide number. That helps us to connect
`your argument with the slides as we review the record.
`So if you are ready to begin, we'll start with petitioner.
`MR. VANDER TUIG: Thank you, Your Honor.
`JUDGE ROESEL: Is petitioner going to reserve time?
`MR. VANDER TUIG: Yes, I would like to reserve ten
`minutes, please.
`JUDGE ROESEL: Okay. You may begin.
`MR. VANDER TUIG: Good afternoon. So today we
`are here on four instituted grounds related to the patent at issue.
`Four of the grounds -- I'm sorry, five instituted grounds. Four of
`the grounds relate to the Bonaventura reference. One is an
`anticipation ground. Three are obviousness grounds, two of
`which are directed to specific dependent claims. Then we have a
`separate obviousness ground, 5, with two separate references,
`Dean and Rau. We'll get to all those in a minute.
`The '458 patent at issue is a catalytic reactor. It's owned
`by CO2 Solutions. It was claims priority back to a Canadian
`application in July of 2001. The main claimed features at issue
`today are summarized on this table with the figure here. There's a
`reaction chamber, a biocatalyst seen as 4 in the drawing, which
`are immobilized. There's a liquid inlet and a gas inlet, a liquid
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`Case IPR2015-00880
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`outlet and a gas outlet, and then a filter retention device which is
`hard to see and from where I stand it's number 9 at the bottom.
`That retains the immobilized biocatalyst within the reaction
`chamber.
`Now, the state of the art, and I think this is undisputed
`for the most part, is that tri-phasic, that is gas-liquid-solid-type
`bioreactors were commonly used in a wide variety of industrial
`applications long before the '458 patent application was filed.
`In addition, the use of carbonic anhydrase to catalyze
`the hydration reaction was well known, the hydration reaction of
`carbon dioxide. Immobilizing enzymes was a well-developed
`field as of the time, and in fact, carbonic anhydrase, because of its
`activity, was one of the more highly studied enzymes used in
`immobilization research. And the reactor vessel configurations
`used at the time were unremarkable. And this is illustrated in
`claim 1, which is the bioreactor claim.
`So what I have done here is we've highlighted in green
`the features of the bioreactor itself, which is the physical reaction
`chamber, the inlet, the outlet. So it's undisputed that those are
`well known and in fact, are reflected in the references that we've
`submitted.
`In yellow what we've done is highlighted that portion of
`the claim that requires using carbonic anhydrates entrapped or
`immobilized in the porous substrates in order to catalyze this
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`reaction. That too is undisputed that that was known in the art.
`So the only dispute here really is whether it was known in the art
`to have these the porous substrates that are entrapping the catalyst
`to be in suspension in a slurry reactor or in a fluidized bioreactor.
`So really that's the only dispute from patent owner's perspective
`as to whether or not that was a known feature in the prior art.
`JUDGE ROESEL: That dispute as to the in suspension
`feature, can that be resolved as a matter of claim construction or
`is it more a question of what the references disclose?
`MR. VANDER TUIG: I'll get to that in a minute, but I
`believe there is no claim construction dispute that will affect that.
`I believe that's just a factual determination as to what the prior art
`shows. There are some undisputed proposed claim constructions
`that we put in the petition. I think these are fairly unremarkable.
`They have not been disputed. To the extent in final written
`decision the Board feels that it's necessary to get into any of these
`elements, we would respectfully request that you adopt our
`proposed constructions which are undisputed.
`There were two semi disputed terms. I say semi
`disputed because the first term here, in suspension, really I don't
`think there's any practical difference between the two terms.
`Here on the slide I have highlighted with underlining the parts of
`the patent owner's proposed construction that we think are
`somewhat vague and too narrow. And that is that the particles
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`have to be, quote, nonsettling particles and that it's limited to a
`liquid. In italics what I have done is highlighted the language that
`we think is unnecessary language that just further describes the
`particles in the liquid.
`JUDGE ROESEL: Petitioner's position there was
`nonsettling. Petitioner agrees that nonsettled particles would not
`be in suspension; is that right?
`MR. VANDER TUIG: Settled particles?
`JUDGE ROESEL: Let me state the question
`differently. Petitioner would agree that settled particles would
`not be in suspension?
`MR. VANDER TUIG: Correct. This is a quote from
`patent owner's expert, Dr. Fradette, where I clarified that with
`him during cross-examination that he didn't really mean
`nonsettling particles as in like a colloid or something. It's more
`that these particles, when the reactor is functioning, are not
`settled. It doesn't meant that when you turn off the reactors they
`wouldn't settle out of the suspension. But to be in suspension,
`they have to be not settled, correct. So we think that there's little
`ambiguity there about nonsettling particles. So we think it's
`unnecessary.
`And also, we think it's unduly narrow because it's really
`a fluid that the definition supports and not just the liquid. But
`again, I don't think that any of the disputes would turn on whether
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`you pick one or the other. We just think if you need to construe
`the terms, that ours is clearer and it's more aligned with what one
`skill in the art would understand.
`The one that really matters here, the claim construction,
`and again, from a larger perspective, it really only matters to the
`fifth ground, but there's a dispute about what it means to be
`entrapped in a porous substrate. And first I would like to explore
`the similarities between the two definitions and then we'll get to
`the differences.
`So in Akermin's proposed construction we say it's got to
`be physically trapped -- this is the enzyme. It's got to be
`physically trapped within the structure of the substrate. Patent
`owner agrees that that has to be restricted in movement and that
`it's free in solution. So I think to some extent those are different
`ways of saying the same thing. And then Akermin has proposed
`that the inside has to retain at least some of its activity. The way
`patent owner has phrased it is accessible to reactants, which we
`agree with. It's accessible to reactants and it retains activity.
`What we don't agree with is the underlying portion of
`their proposed construction where they have attempted, and the
`language is, quote, within the interstitial confines of the porous
`substrate lattice network. Here they have tried to further limit
`what the porous substrate is when, in fact, the claim language in
`dispute modifies the enzyme. If we look at slide 11 here, it shows
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`Patent 8,329,458 B2
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`that claim language at issue, and there's nothing in this claim
`language that we've highlighted here that would require the lattice
`network limitations that patent owner is trying to graft on this
`claim language. It just simply requires that there's porous
`substrates. And it's clear from the claim language on slide 11 that
`the language, entrapped in the porous substrate, modifies the
`carbonic anhydrase and it doesn't further limit the porous
`substrates in which the enzyme resides. So as far as intrinsic
`evidence goes, there's nothing in the claim language that will
`support grafting that limitation.
`If we turn to the specification, we've taken a few
`snippets from the specification here where it's on slide 12 where it
`addresses the entrapped language. So in the first one, it's really
`just comparing entrapped or immobilized versus free enzyme that
`hasn't been immobilized. And later places in the specification it
`uses it broadly to generally characterize a bunch of different
`immobilization techniques.
`JUDGE ROESEL: So going back to slide 12, that
`second snippet, how does that support petitioner's position that
`entrapped includes encapsulation?
`MR. VANDER TUIG: Well, it just supports our
`position that entrapped is just used broadly. There's nothing
`definitional about the word where they wanted to narrow the --
`where patent owner, as drafting this application, tried to apply
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`some special definition outside of the understanding of one of
`skill in the art. In fact, Dr. Fradette, during his deposition,
`admitted that there was nothing special about the definition that
`was being used. And that's Exhibit 1027 at page 62, lines 15 to
`20.
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`JUDGE ROESEL: So in that snippet on slide 12 where
`it says the biocatalyst may also be entrapped in a porous
`substrate, is it petitioner's position that porous substrate there
`could be, for example, a semipermeable membrane or a capsule
`around the biocatalyst? Is that accurately characterized?
`MR. VANDER TUIG: Yes, it accurately characterizes
`our petition. And I believe that patent owner agrees that the
`membranes that would encapsulate in a microencapsulation
`situation would also be, quote, porous substrates that would
`qualify to the claim language. Again here, there's nothing
`definitional about how entrapped is used here.
`Now, patent owners argue that based on these two
`dictionary definitions shown on slide 14 that these are
`incompatible definitions and that they are mutual exclusive. We
`disagree. Although there's a connotation in encapsulate that has a
`narrower meaning and that it's encased as if in a capsule, from
`petitioner's perspective, that's just a species, if you will, of
`entrapment. Entrapment broadly describes physically capturing
`the enzyme in some manner to immobilize it. Encapsulate is one
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`particular method of doing so. It's unremarkable when you have
`one broader definition that would encompass a narrower
`definition.
`JUDGE ROESEL: I'm sorry, counsel, if we could back
`up once more to slide 13, so in this specification excerpt you
`omitted the sentence that comes right before that that talks about
`encapsulation. I wonder if you could comment on patent owner's
`position that that particular part of the specification uses the two
`words to mean two different things.
`MR. VANDER TUIG: Yeah, I would say simply it's
`just like the dictionary situation where you have two separate
`words. Encapsulation is a narrower subset, if you will, of
`entrapment. The fact that both words show up in the
`specification to me is unremarkable and entrapped is still a genus
`that encompasses the narrower term encapsulation. And the
`Whiteout there was just simply so we could see what's going on.
`I don't know if the encapsulation is what shows there, but we
`wanted to make it visually easier to see those things we are
`relying on.
`Going to slide 15, so patent owner has argued in its
`patent owner response that there's nothing in the literature that
`supports the fact that entrapped would encompass encapsulation.
`That's just simply not the case. Here is Exhibit 1024 at page 181
`where it clearly shows the genus species relationship where
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`there's entrapment which there is physical capturing of the
`enzyme versus binding which is sort of a chemical tying down of
`the enzyme, if will. And microencapsulation, as you can see, is
`one of the species or subsets of entrapped. We see that again on
`slide 16, Exhibit 1028. Again, this represents the broadest
`reasonable interpretation that one skilled in the art at the time of
`2001, the priority date, would have understood entrapment to be a
`physical immobilization of enzymes.
`And this goes to Your Honor's point earlier, that porous
`substrate. So here is a reference that was before the Patent Office
`when the examiner was examining the application. So it's
`intrinsic evidence for purpose of claim construction. And it
`clearly shows that this is a porous microsphere. So it's a
`microencapsulation situation where -- so if we look at Figure 1 on
`the right-hand side, that's the microsphere. Figure 5 below it is a
`blowup of the wall of the microsphere, and it's clearly porous.
`And in fact, that's what's reflected in the title of the patent itself.
`So there's no dispute that these are porous substrates.
`JUDGE ROESEL: So there on slide 17, counsel, what
`is the relationship between the disclosure there and that '545
`patent and the microencapsulation that's discussed in the Dean
`reference?
`MR. VANDER TUIG: What is the relationship
`between the techniques?
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`JUDGE ROESEL: So you have put forth this slide that
`talks about these porous substrates and it shows these
`membranes, but the question we are facing is whether entrapped
`includes this microencapsulation that's disclosed in Dean. So I
`wonder what is the relationship between the porous substrates in
`this '545 patent and the microencapsulation in the Dean reference.
`MR. VANDER TUIG: It a similar situation where it's
`encapsulated and there's a membrane surrounding an internal
`space, I guess sphere, if you will. So it's a similar encapsulation
`technique. This just shows that one of ordinary skill in the art
`would understand that membrane to be a porous substrate. So in
`other words, the limitation that patent owner is trying to graft on
`to the porous substrate that's called out in claim 1 is improper
`because one of ordinary skill in the art would understand that this
`is what porous substrate means. It includes these kind of porous
`membranes that are used in encapsulation techniques.
`If we go to slide 18, so patent owner also said in its
`patent owner response that in none of the prior art that petitioner
`relies on does it suggest that entrapped would include
`encapsulation. And the Badjic reference that we rely on in
`ground 3, in fact, clearly shows that the title of the paper is
`encapsulation. It is an encapsulation technique. It describes the
`proteins as being entrapped at one point, later embedded. These
`are all terms that are used to broadly describe immobilization
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`techniques. So we would contend that patent owner is incorrect.
`In fact, they accuse us of misleading the Board by using this kind
`of language, and we think that this is consistent with what's
`shown in the prior art.
`Again, here on slide 19, this is the very Dean reference
`that we rely on. A later paper, Exhibit 1029, summarizes what
`Dean was doing and uses both microencapsulation to describe the
`carbonic anhydrates and also calls it the, quote, entrapped
`enzyme. So some scientists summarizing the Dean references
`years after Dean published his paper called it entrapped. So we
`would contend that this is pretty straightforward that entrapped is
`clearly a genus that includes encapsulation. And other scientists
`in the field have described Dean as entrapping the carbonic
`anhydrate.
`JUDGE TIERNEY: Counsel, can you help me
`understand the Perry's Chemical Engineering dictionary basically,
`Exhibit 2006, where it talks about entrapment is one form of
`immobilizing enzyme and then it specifically says encapsulation
`is another means of capture.
`MR. VANDER TUIG: I think in that particular
`reference, I don't have it right in front of me, but I believe that
`that was a reference that used a narrower connotation of
`entrapment to be more of a lattice entrapment. But it certainly
`isn't -- as we've seen with all the other references, it certainly isn't
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`evidence that one skilled in the art wouldn't automatically
`understand there to be two separate categories. I think the
`terminology, as is often the case, is somewhat loose as far as how
`they describe these things. But it certainly describes a certain
`subspecies.
`If we go back to slide 15, so in Exhibit 1024, we see the
`polymer entrapped is one of the species of entrapment. I believe
`the reference you referred to, Exhibit 2006, I believe that's using
`entrapment in that sense, in the polymer entrapped sense and not
`the broader connotation that would be understood by one skilled
`in the art as the two different types, the bound and entrapped.
`JUDGE ROESEL: Counsel, how do we know that the
`'548 patent is using it in the broader sense and not in that
`narrower sense in your slide?
`MR. VANDER TUIG: Under the broadest reasonable
`interpretation, I believe there's nothing in the specification that
`supports the notion that patent owner tried to limit this to a
`special meaning. There's nothing -- I mean, if we were facing a
`situation where entrapped in a porous substrate was the invention,
`perhaps, and you were distinguishing the prior art on that basis,
`but if we look at the '458 patent, it sort of throws out you can use
`a free enzyme, you could use all these different entrapment
`techniques, encapsulation. These are all known techniques.
`There's nothing special about microencapsulation versus
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`entrapment. So I think in that sense and given that record, that
`intrinsic record, there's nothing definitional about entrapment that
`would slide it down to this narrower meaning of entrapment. I
`think under the broadest reasonable interpretation, that would be
`improper to narrowly construe in the way patent owner presents.
`JUDGE TIERNEY: Going back to Perry's Chemical
`Engineering Handbook where it says, is another means, does that
`show that the term has different meanings and they are dependent
`upon how you want to use it? As you say, it could be in some
`instances genus species but other people believe it to be separate
`and distinct species altogether?
`MR. VANDER TUIG: No. In fact, Mr. Schroeder just
`handed me the patent owner's slide 4 where it quotes from that
`section where it says encapsulation is another means of capture.
`So if we look at the language, it says the method of
`immobilization -- this is the fourth line down in that paragraph.
`The method of immobilization can be adsorption, covalent
`bonding or entrapment period. Three kinds it introduces. And
`then it goes on to talk about different ways of entrapment,
`semipermeable membranes, gel, other similar materials for
`entrapment. And then encapsulation is another means of capture.
`But to me that's more of another means of entrapment, capture.
`It's not necessarily saying that this is -- if encapsulation was
`considered by the author to truly be a separate means, maybe in
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`the first sentence that I read from it would include that there. But
`instead it said method of mobilization can be adsorption, covalent
`bonding or entrapment. So I think although there may be
`arguments about what exactly this author meant, I think there's
`nothing in this reference that will support the notion that we need
`to graft that scenario meaning on to the broad claim language.
`JUDGE TIERNEY: At least when I'm looking at
`Perry's, it seems to imply that the term is not as clearly defined as
`you are making it sound here. We can interpret it somewhat your
`way from this or we can interpret it the way that the patent owner
`suggested given this definition because the sentence prior, the
`highlighted sentence says encapsulation is another means of
`capture. The prior sentence reads, polyacrylamide gel, silica gel
`and other similar materials have been used for entrapment in
`biologically active materials, including enzyme. I mean, it seems
`like it's open to interpretation in this reference.
`MR. VANDER TUIG: I disagree. I think that it's clear
`that this is talking about another method. There's gel, there's
`silica gel for entrapping, there's encapsulation as a means of
`capture. I think this extrinsic piece of evidence, although it uses
`the terminology somewhat vaguely, I don't think it justifies then
`pulling this out of one reference in the extrinsic record to
`narrowly construe the claim language before us.
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`JUDGE TIERNEY: I will point out that at least in
`Perry's it implies that the term is not a well-defined, definitive,
`one-size-fits-all definition, that it can be used in a vague sense.
`MR. VANDER TUIG: I would agree that we've seen
`papers where the terminology is somewhat loose as far as what
`exactly everything means, but the broadest terminology that
`we've been able to find at least is what's shown on slide 15.
`JUDGE TIERNEY: The question I have for you now is
`we have broadest reasonable interpretation, we have Phillips
`construction, is this a case where it will make a difference
`between broadest reasonable and Phillips or do you believe that
`both constructions line up at the same place?
`MR. VANDER TUIG: I think both constructions line
`up at the same place. I think that as Dr. Fradette admitted, the
`patent was not trying to apply some sort of special meaning
`beyond what the common understanding would be. I don't think
`that anything in this extrinsic record, especially the Perry's
`reference they talk about, would justify under Phillips or the
`broadest reasonable interpretation of grafting this limitation.
`JUDGE TIERNEY: You are putting up extrinsic
`evidence yourself to demonstrate what the term entrap means?
`MR. VANDER TUIG: Sure, yeah. We've put up
`extrinsic evidence to try to provide the Board with an
`understanding of what one skilled in the art would apply to this
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`term. But there's nothing in the intrinsic record which I -- my
`understanding of Phillips is more -- the difference between
`Phillips and broadest reasonable interpretation somewhat escapes
`me, but my understanding is it's more if you have disavowal or
`something like that, it would be more intrinsic record based, in
`my opinion. So if you look at the intrinsic record, there's nothing
`there that would justify under either standard.
`JUDGE TIERNEY: Under the broadest reasonable
`interpretation, are we required to construe to preserve validity?
`MR. VANDER TUIG: To preserve validity? I think
`that -- I have not thought about that, but I don't believe so.
`JUDGE TIERNEY: Wouldn't that be a difference
`between the two where under Phillips you are trying to preserve
`validity whereas, broadest reasonable interpretation you are not
`required to?
`MR. VANDER TUIG: I believe that Phillips actually
`said the idea of preserving validity through construction is not a
`proper basis for claim construction. That's like the final, if you
`can't resolve it on the intrinsic record, there might be a final pinky
`on the scale, but I don't think it was -- it somewhat downgraded
`the importance of that doctrine, in my opinion.
`JUDGE ROESEL: Just one more point on the
`entrapment thing, is it fair to say that the intrinsic record does not
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`resolve the dispute here as to the meaning and that we need to
`turn to the extrinsic evidence?
`MR. VANDER TUIG: No. I think that the intrinsic
`record is clear that entrapped is use generally throughout the
`specification. There's nothing special about the different
`immobilization techniques. So I think based on the specification
`it's clear.
`So moving to ground 1, this is the anticipation ground
`based on the Bonaventura. Ground 1 focuses on Figure 6 of
`Bonaventura. Bonaventura discloses a number of different
`inventions, but the invention that's probably the most important
`for our purposes today is the system that was designed to remove
`carbon dioxide from incoming streams.
`So the reaction chamber released in one of the
`embodiment of Figure 6, this is on slide 21, is shown. Just like in
`the patent, we have a reaction chamber, we have immobilized
`biocatalysts, we have all the inlets and outlets for the gases and
`liquids and we have a filter or retention device for making sure
`that the mobilized biocatalysts don't flow out of the reaction
`chamber. So we think that this reference teaches every single one
`of the limitations of the claim.
`It's clear that Bonaventura teaches the entrapped and the
`porous substrate. In fact, it uses that very language here. On
`slide 22, we pull out a portion of the specification that shows that
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`other immobilization methods such as, quote, entrapment of the
`enzyme in a porous substrate is the exact same language.
`This was cited in the specification itself, so it's possible
`that the drafter was, in fact, looking at Bonaventura when it was
`deciding how to characterize in words what this immobilization
`technique was. So I think that's fairly undisputed.
`It also depicts that these porous substrates are, in fact, in
`suspension. Now, patent owner has taken the position that based
`on the shading of the Figure, the immobilized substrates 24 have
`to be either a solid mass or a packed column. And they pull all
`the shading from the earlier 416 Bonaventura to try to make this
`point. They say the shading is similar. But if you look at the
`shading even in Figure 4 of the '987 patent it's clear that the
`shading is identical from the 24 shown in Figure 6 and the 7
`shown in Figure 4. In the 7, the grains that are marked 7 in
`Figure 4 are described as complex of an oxygen binding
`compound and oxygen. Very small particles. And it describes
`them as streaming through conduit 11, as you see it going down
`there. So it's clear that these particles are in suspension.
`JUDGE ROESEL: Counsel, this Figure 6, I mean, the
`description of that figure talks about different ways of
`immobilizing the enzymes, right, including attaching it to the
`walls and on a solid substrate fixed in the chamber or these gel
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`particles flowing. You agree. So Figure 6 is really generic to all
`three of those, would you agree?
`MR. VANDER TUIG: I agree. So it's a depiction that
`would be general enough to encompass all situations.
`JUDGE ROESEL: So in view of that, that it's generic
`to all three of those modes, how much credence should we give to
`the fact that these dots 24 look like they are kind of evenly
`distributed? I mean, it's also supposed to depict enzyme attached
`to the walls. So that's not shown, right?
`MR. VANDER TUIG: That is not shown. So I think
`that the shading one -- and the point I'm making with Figure 4 is
`simply that patent owner's argument that the shading means that it
`must therefore be packed or must therefore be -- I think they
`argue it's attached to the wall, is incorrect, because obviously, the
`same shading is used to show a streaming particle in suspension.
`So from the figure alone you can't tell. But as you
`pointed out, so here however, this is slide 24, however, in the
`event that the support material is small, for example, gel particles
`capable of flowing with water, the means for entrapping the
`substrate such as screens are required. So it's clearly describing
`in words that that drawing includes situations where each of those
`particles is in suspension.
`Now, they also focus on the term hemosponge --
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`JUDGE ROESEL: Counsel, if we could go back to the
`slide 24, this quote here, gel particles c
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