trials@uspto.gov
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`571-272-7822
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`IPR2015-01265, Paper No. 33
`IPR2015-01266, Paper No. 34
` IPR2015-01267, Paper No. 34
`September 22, 2016
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`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - -
`JOHNSON MATTHEY INC., and JOHNSON MATTHEY PLC,
`Petitioners,
`vs.
`BASF CORPORATION,
`Patent Owner.
`- - - - - -
`Case IPR2015-01265, IPR2015-01266, IPR2015-01267
`Patent 8,899,023 B2, 9,039,982 B2, and 9,032,709 B2
`Technology Center 3700
`Oral Hearing Held: Tuesday, August 23, 2016
`
`
`BEFORE: CHRISTOPHER L. CRUMBLEY, JO-ANNE M.
`KOKOSKI, and JEFFREY W. ABRAHAM, Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Tuesday,
`August 23, 2016, at 1:00 p.m., Hearing Room D, taken at the U.S. Patent
`and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`REPORTED BY: RAYMOND G. BRYNTESON, RMR,
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`CRR, RDR
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`571-272-7822
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`IPR2015-01265, Paper No. 33
`IPR2015-01266, Paper No. 34
` IPR2015-01267, Paper No. 34
`September 22, 2016
`
`
`
`
`
`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - -
`JOHNSON MATTHEY INC., and JOHNSON MATTHEY PLC,
`Petitioners,
`vs.
`BASF CORPORATION,
`Patent Owner.
`- - - - - -
`Case IPR2015-01265, IPR2015-01266, IPR2015-01267
`Patent 8,899,023 B2, 9,039,982 B2, and 9,032,709 B2
`Technology Center 3700
`Oral Hearing Held: Tuesday, August 23, 2016
`
`
`BEFORE: CHRISTOPHER L. CRUMBLEY, JO-ANNE M.
`KOKOSKI, and JEFFREY W. ABRAHAM, Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Tuesday,
`August 23, 2016, at 1:00 p.m., Hearing Room D, taken at the U.S. Patent
`and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`REPORTED BY: RAYMOND G. BRYNTESON, RMR,
`
`CRR, RDR
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`DOROTHY P. WHELAN, ESQ.
`Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, Minnesota 55402
`612-335-5070
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`MARTINA TYREUS HUFNAL, ESQ.
`PATRICK D. COONEY, ESQ.
`Fish & Richardson P.C.
`222 Delaware Avenue
`17th Floor
`P.O. Box 1114
`Wilmington, Delaware 19899
`302-652-5070
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`DEREK C. WALTER, ESQ.
`Weil, Gotshal & Manges LLP
`201 Redwood Shores Parkway
`Redwood Shores, California 94065-1134
`650-802-3934
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`ANISH DESAI, ESQ.
`MEGAN H. WANTLAND, ESQ.
`Weil, Gotshal & Manges LLP
`1300 Eye Street, N.W.
`Suite 900
`Washington, D.C. 20005
`202-682-7000
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`P R O C E E D I N G S
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`(1:00 p.m.)
`JUDGE CRUMBLEY: All right. We have the oral
`hearing today in three related IPRs: IPR2015-1265, 1266 and
`1267. So I'm Judge Crumbley. To my right is Judge Kokoski
`and to my left is Judge Abraham.
`Let's get the parties' appearances, starting with the
`Petitioner first, please.
`MS. WHELAN: Good afternoon, Your Honors.
`I'm Dorothy Whelan. I am lead counsel for Petitioner. I'm
`joined by backup counsel, Martina Hufnal. Ms. Hufnal will
`handle the oral argument today.
`I'm also joined by my colleague Patrick Cooney
`from Fish & Richardson. And from Johnson Matthey we have
`Jimmie Johnson, Ross Oehler, and Sarah Dixon.
`JUDGE CRUMBLEY: Welcome, everyone. And
`who do we have for Patent Owner?
`MR. WALTER: Derek Walter of Weil, Gotshal &
`Manges for the Patent Owner BASF. Here with me is
`Mr. Anish Desai, lead counsel, Megan Wantland, also from
`Weil, Gotshal. And then from BASF, Anna-Lisa Gallo,
`Tanuja Garde and Joe Patchett.
`JUDGE CRUMBLEY: All right. Very good.
`Thank you, everyone, for joining us today. We will get
`underway.
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`I note that both parties submitted demonstrative
`exhibits but we didn't receive any objections to those so I
`assume that everyone is happy with those and we will just use
`the copies that were submitted to the Board.
`All right. So if there is nothing else before we get
`underway, we will start with the Petitioner's argument.
`As we set forth in our hearing order, each side is
`going to have one hour of total hearing time. You may
`allocate it between the three cases as you wish, but we're not
`going to break up the arguments. So it is going to be just one
`record that will be entered in the records of all three cases.
`Petitioner has the burden, so will go first. You
`may reserve rebuttal time, if you wish. Just let me know so I
`can set the clock at the beginning. And then, of course,
`Patent Owner will respond, and then you will have your
`rebuttal time.
`Any questions before we get underway? All right.
`MS. HUFNAL: Your Honor, we have hard copies
`of the slides if you would like a copy.
`JUDGE ABRAHAM: I'll be using the electronic.
`JUDGE CRUMBLEY: You will have to carry them
`home with you, I'm afraid.
`How much time did you want to reserve?
`MS. HUFNAL: Your Honor, I would like to
`reserve 15 minutes for rebuttal time.
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`JUDGE CRUMBLEY: All right. Start when you
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`are ready.
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`MS. HUFNAL: I apologize. Is there a clock in
`here or should I just follow the --
`JUDGE CRUMBLEY: I would use that. The
`lights will come on at some point.
`MS. HUFNAL: Oh, I see.
`JUDGE CRUMBLEY: There is a wrap-it-up time
`that I cannot set so I don't know exactly when that comes on.
`So I always prefer that you keep your eyes on the clock. I
`will try and give you a warning when you are getting close.
`MS. HUFNAL: Okay. Thank you, Your Honor.
`So, again, Your Honors, my name is Martina Hufnal,
`representing the Petitioner, Johnson Matthey.
`And as Your Honor noted, there are three IPRs at
`issue. I have on slide 2 claim 1 of the '982 patent. And there
`are -- I'm going to walk through the components of this claim
`and focus largely on the '982 patent. On slide 3 I will touch
`on the claim 1 of the '709 and '023, but I believe that there is
`no dispute that the claims and the patents will rise and fall
`with the issues that arise in the '982 patent.
`So in the '982 patent claim 1, it really boils down
`to the combination of two known emission components,
`combined onto one substrate. And so what I've tried to do and
`tried to be consistent through the presentation is to do a little
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`color coding on the issues. The first I have highlighted in
`green on slide 2 is a wall flow monolith. That is the first
`component of an emissions system. Your Honors may see the
`terms wall flow filter or DPF, a Diesel Particulate Filter.
`I also believe there is no dispute that those terms
`mean the same thing. So when we're talking about the wall
`flow monolith of claim 1, that is the same thing as the wall
`flow filter and the diesel particulate filter.
`So I boxed in in green the part of the claim that
`details the particulars of the wall flow filter which we will
`certainly talk about.
`The second known component in this claim is the
`catalytic material, again, something that is used in emissions
`systems. And I have boxed in in red the bottom that details --
`the bottom part of claim 1 that details what that catalytic
`material is. And specifically it is an SCR catalyst.
`Your Honors, I have highlighted in yellow in the
`middle there the language that is really what the heart of this
`claim gets to, which is that the wall flow monolith contains a
`catalytic material and the catalytic material comprises an SCR
`catalyst. And that, again, was disclosed by the Huthwohl
`reference in the prior art back in 1999, loading the SCR
`catalyst onto a wall flow filter.
`As we go through the argument, what really I think
`we will see is that the Patent Owner ignores Huthwohl as a
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`prior art reference. But with Huthwohl's teachings, really
`what it comes down to then is which catalyst and which filter
`would a person of ordinary skill in the art find it obvious to
`use in that arrangement.
`So I said I would look at claims 1 in the '709 and
`the '023. I have them up on slide 3, and just as a visual
`depiction here that the components we will be talking about,
`the wall flow monolith, the same language is boxed in in
`green in both claims 1. The catalyst material, same language
`that we saw in claim 1 of the '982 also boxed in in red.
`There are additional limitations. The '709 patent
`claim 1 is directed to a method of treating emissions and the
`'023 is an emission treatment system. We detailed out in our
`petitions for the respective IPRs how those claim limitations
`are met and specifically in the Huthwohl reference.
`Again, BASF hasn't raised any issue with those
`additional limitations that they overcome the obviousness
`ground raised. So I won't be touching on those unless Your
`Honors have any questions about them.
`So the only ground raised by Petitioner and the
`one instituted by this Board is the claims are obvious over
`Huthwohl, Speronello, Hashimoto and Teraoka.
`Huthwohl is the teaching of putting the SCR
`catalyst onto a wall flow filter. And not just does he teach it,
`Dr. Huthwohl and his colleagues made such a system, tested
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`such a system, and then was recommending that it be put into
`a city bus in Germany.
`At the time the Speronello reference details a
`specific catalyst, which are called zeolite catalysts, which
`were known in the art to be the best suited for temperatures of
`this range that we are talking about and well suited for use in
`wall flow filters. We see one discussion of a prior art
`reference describing these as the best, most stable SCR
`catalysts that were known at the time.
`And then, finally, the Hashimoto reference which
`discloses, and this is the most recent, discloses the filter that
`allows for a washcoat loading taught in the Speronello
`reference. So Speronello teaches these SCR zeolite catalysts
`and that they need to be applied at a certain washcoat level.
`Hashimoto designed a filter that was porous
`enough to allow for a catalyst loading at the levels taught by
`Speronello. And just by way of some explanation, the wall
`flow filter which we detailed in our petition, it is a filter that
`air comes in through one channel and then there is a stop at
`the end of blockage.
`So the air is forced to permeate through the walls
`of the filter and then there is an exit so the air can get out. If
`the walls of the pores are too small or not porous enough, then
`the air won't be able to get through, it backs up, and that is
`what is referred to as the back pressure problem that
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`Hashimoto was trying to solve. If the pores are too big, then
`air goes through but there is no filtering effect. There is no
`particulate matter that is caught on the filter so it doesn't
`work very well as a diesel particulate filter.
`So Hashimoto was addressing the specific issue of
`making a filter that allowed for a catalyst coating, but still
`allowed to have -- to overcome the back pressure issues. So
`you put a catalyst on there. The pores are going to start
`getting a little clogged up.
`You need to have a porous enough and a specific
`pore diameter to allow the catalyst to be loaded on to still
`allow the filter to work. That was the problem Hashimoto
`faced and that was the solution that he came up with in his
`reference.
`So all of these, a person of skill in the art knew
`from Huthwohl to load an SCR catalyst onto one of these
`filters. Speronello taught the catalyst, the best, most suitable
`catalyst at the time, and then Hashimoto taught the filter,
`specific porosity and pore sizes that are claimed -- or that the
`claims read directly on.
`And I will note that the patent, the BASF patent
`incorporates by reference the Speronello catalyst and uses in
`its examples the Hashimoto filter exactly. There are no
`changes to the filter. There are no changes to the catalyst.
`And they use the same orientation in the Huthwohl.
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`So there is no additional teaching or realization
`that the BASF patent brought to the table. It simply put
`together the pieces in the prior art in the way the prior art
`taught to do. This is almost a classic KSR-type situation.
`So I will get into the details of each of the prior
`art references and, Your Honors, I apologize, going back to
`slide 4, Teraoka, which I did not bullet point out. There is
`one -- and I will show it here on slide 2 -- the very end of the
`claim, talking about the SCR catalyst, says that in the
`presence of which the catalytic material in the wall flow
`monolith catalyzes the oxidation of soot.
`So the SCR catalyzed -- catalyst, which is
`reducing the NOx component. So the use of the SCR catalyst
`also has to catalyze the oxidation of soot, which is basically
`lower the temperature so the soot on the filter can burn off at
`a lower temperature.
`The Teraoka reference taught just that, that these
`copper and iron zeolites had this additional property of being
`able to oxidize soot in addition to being the SCR catalyst. So
`that is how Teraoka plays into the obviousness ground.
`So going into the details of Huthwohl, this is a
`paper that was presented and published in a 1999 conference
`in Germany. And Dr. Huthwohl and his colleagues explained,
`and the figure, Your Honors, on slide 6 comes from JM 1005,
`which was the Huthwohl reference. The figures on page 4 of
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`that reference and the text describing the figure shows,
`appears, on page 3 of JM 1005.
`But as Huthwohl very clearly states, the soot filter
`of the CRT system -- I will go back to CRT system in a
`moment -- has been impregnated with SCR active material.
`He explains his system right there, that the soot filter, the
`wall flow filter, the diesel particulate filter, all the same
`filter, is impregnated with this SCR active material. That is
`the teaching. That was what was in the prior art.
`And as to whether or not it worked or what Dr.
`Huthwohl thought or taught to the art what was going to
`happen, he says through this, the volume of the soot filter is
`going to be utilized for the SCR reaction. So you can have a
`soot filter and then, in series, an SCR catalyst.
`The problem that Huthwohl details in his paper is
`that that is going to take up more room. It's going to be more
`room in the emissions treatment system that has to go in the
`vehicles. So his solution to that problem was to put some of
`the SCR catalyst on the soot filter.
`So you could have -- use the volume of the soot
`filter to do some of the SCR reaction, and he says,
`consequently, only a proportionally-smaller SCR catalyst has
`to be connected in series. So he is teaching, telling a person
`of ordinary skill in the art that that soot filter that is coated
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`with the SCR catalyst is doing some SCR. As a result, you
`will need less SCR or smaller SCR in series.
`So I mentioned that this paper -- and this is the
`entire system just for reference, the entire picture which
`details the other elements of the system and method of
`treatment claims, and then looking at slide 7, which is from
`page 4 of JM 1005, figure 1.
`But Huthwohl not just had this idea. He had built
`it and he tested it. And we see that he reports testing data on
`both the soot that comes out of the entire system and the NOx
`amount that comes out of the entire system. Both levels were
`reduced.
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`And, in fact, you have seen I'm sure reference to
`this in the papers, the emissions standards that had come out
`in 1998, they were going to be implemented years later, and
`that's what people were working to try to find systems that
`were going to meet these emission standards.
`And Dr. Huthwohl talks about that in his paper.
`And he reports that these values in his system, the study has
`shown that using this SCRT system, not only the Euro-III
`norm but also the Euro- IV norm can be met.
`Now, one of the critiques that BASF raises on the
`Huthwohl paper is that there is no data reported in this little
`area between the CRT and the SCR. And, Your Honors, I
`actually apologize, I was going to explain what the CRT
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`means. That is Continuous Regeneration -- Continually
`Regenerating Trap. And what that means, that was actually
`some technology developed by Johnson Matthey years earlier.
`This is in German.
`But that's an oxidation catalyst is placed upstream
`of the soot filter. The oxidation catalyst creates NO 2 and that
`helps produce the temperature so the soot can burn off in the
`filter continuously.
`Okay. So one of the critiques that Johnson
`Matthey -- or BASF raises is that we don't have any data on
`the NOx reduction that is going on after the SCR-coated filter.
`And to that we agree that he did not -- "he" being Dr.
`Huthwohl and his colleagues -- didn't report on that.
`He tested the entire system, recommended that the
`entire system was going to be placed into a bus, so reporting
`that it was a successful system. And in terms of whether or
`not there is SCR going on in the filter, he said you only need
`a smaller SCR in series, meaning that some SCR is going to
`be happening on the filter, and saying that he is using the
`volume of the filter to do SCR.
`So on this, not even BASF's expert would say a
`person of skill in the art reading that would think that no SCR
`is going on. There really is no evidence in the record that a
`person of skill in the art would read the Huthwohl reference
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`and say, yeah, we don't think there is any SCR going on in the
`filter, and Huthwohl's teaching suggests the opposite.
`And here on slide 9 is just where Dr. Huthwohl
`was reporting that they were going to -- they already had a
`contract with Leipzig, a city in Germany, and they were going
`to put this system into a bus.
`The problem of saving space, which is what
`Huthwohl was discussing and teaching, is described in the
`background of the BASF patent, the '982 patent, and
`specifically this is column 2, lines 54 through 64 on slide 10.
`The Patent Owner explained that the use of fewer
`substrates is desirable to reduce the overall size of the system,
`and then this is also explaining that with this approach the
`catalyzed soot filter assumes two catalyst functions:
`Removing the particulate component of soot and then doing
`the conversion of the NOx component, the SCR.
`So I can move on to Speronello, unless the Board
`has questions on Huthwohl.
`JUDGE CRUMBLEY: No, and actually I was
`going to ask you to do that. One of the concerns I have is that
`the teaching in Huthwohl is very general when it comes to the
`specifics of the catalyst being used. And your argument is, of
`course, you would go to Speronello and, in fact, BASF's
`patent uses Speronello.
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`Case IPR2015-01265, IPR2015-01266, IPR2015-01267
`Patent 8,899,023 B2, 9,039,982 B2, 9,032,709 B2
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`
`But how do you -- why would a person of ordinary
`skill in the art select Speronello out of all the potential
`catalysts that were out there, because that's crucial to what we
`are doing here, because you can't just say, well, BASF does it
`in their patent, because that is hindsight.
`MS. HUFNAL: Absolutely, Your Honor.
`JUDGE CRUMBLEY: So we need to get there
`another way.
`MS. HUFNAL: Yes.
`JUDGE CRUMBLEY: So why don't you get us
`
`there.
`
`MS. HUFNAL: Okay. So Huthwohl is general,
`absolutely. And that's actually one of the -- it is not teaching
`any specific catalyst or teaching away from any other catalyst,
`but what would a person of ordinary skill in the art know.
`Skip over -- I'm going to skip forward to your
`question, Your Honor. A very easy place to start is the Heck
`treatise. This is JM 1010. I'm now on slide 16 of our
`presentation. And the Heck reference, which was a
`well-renowned, well- respected treatise in this area, charts
`temperature versus NOx conversion.
`And Your Honor said that there were many other
`catalysts. There really have only been three that are in the
`record: This platinum, which is really an oxidation catalyst,
`so in the CRT before the filter to reduce the soot oxidation,
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`Case IPR2015-01265, IPR2015-01266, IPR2015-01267
`Patent 8,899,023 B2, 9,039,982 B2, 9,032,709 B2
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`vanadium, this V2O 5, and then the zeolites, which is the
`Speronello catalyst that we're talking about.
`JUDGE CRUMBLEY: Well, Speronello is a
`zeolite catalyst but there are many zeolite catalysts.
`MS. HUFNAL: Speronello is -- it's not just one, it
`is a group, but, I agree, it is not all, it is not exchangeable
`with the term zeolite. So I will get to Speronello specifically
`in one moment.
`But so Heck, the Heck treatise tells us, a person of
`skill in the art, for exhaust temperatures 200 or 300 degrees
`use vanadium, while above this temperature range a
`metal-exchanged zeolite catalyst is required. So at the
`temperatures that we are talking about a person of skill in the
`art knew that you have to go up to a metal zeolite catalyst.
`So Speronello specifically -- I apologize here for
`jumping around -- while we can look at Speronello, the
`language of Speronello, the reference on slide 15, JM 1008 is
`the Speronello reference, and it says that its catalysts are
`particularly well suited for the SCR process and excess or
`residual ammonia oxidation at temperatures above about 400
`degrees C.
`So Speronello is teaching that its catalysts are
`particularly well suited for SCR at these higher temperatures.
`And then we also have JM 1032, which is a reference that we
`cited in our Paper 23, the reply, on this point. This is actually
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`Case IPR2015-01265, IPR2015-01266, IPR2015-01267
`Patent 8,899,023 B2, 9,039,982 B2, 9,032,709 B2
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`Engelhard, which was a predecessor to BASF, reporting on
`one of the best, most stable SCR catalysts of the zeolite type.
`And this is the iron beta zeolite, one of the Speronello
`zeolites.
`
`And in this particular -- in JM 1032 they were
`looking for a zeolite that would work at low operating
`temperatures. So they actually -- and I actually apologize.
`The word "unfortunately" is here redacted out. It says:
`Unfortunately, one of the best, most stable SCR catalysts is of
`the zeolite type, the iron beta zeolite.
`They say it also has the highest optimum operating
`temperature. They were looking for something with a low
`operating temperature. That's why I said it was unfortunate.
`But there is in the record multiple places of Speronello,
`zeolite specifically, being where a person of skill in the art
`would go if you are looking at these high temperatures,
`Speronello teaching, saying, iron zeolites are particularly well
`suited.
`
`We have other references like 1032 saying that
`these beta zeolites are the most stable zeolites to look at. And
`then in response and really what is in the record that's
`contrary to that is just a discussion about one specific zeolite,
`the ZSM-5, and then an out- of-context statement from Dr.
`Harold which I can address, but let me talk about ZSM-5 first.
`It is one of the group of Speronello zeolites that has the --
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`Case IPR2015-01265, IPR2015-01266, IPR2015-01267
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`probably the least thermally -- resistant to thermal
`degradation.
`And that's the claim language. And I think that is
`important to take note. It is just some of the claims. But they
`require a resistance to thermal degradation temperature up to
`650. Could you jump me to slide 42 and I can avoid having to
`flip through 40 slides?
`Your Honors, slide 42, this is another prior art
`reference, JM 1030. It was cited in our papers, at Paper 23 at
`13 or 14. This is a paper actually by Dr. Crocker, BASF's
`expert in this IPR, in these IPRs.
`And what Dr. Crocker did was take ZSM-5, the
`very zeolite catalyst from Speronello that BASF is relying on
`to say a person of skill in the art would never go to a
`Speronello catalyst. And what he did was aged it at 48 hours
`at 650 C.
`
`And that is the issue, and Dr. Crocker testifies to
`this in his deposition, which we cite at Paper 23 at 14, that is
`the resistance to thermal degradation test. So he ages it and
`then he sees if it still performs NOx conversion. And he
`concludes, again, in his testimony, when asked, he said, yes,
`that ZSM-5 would be resistant to thermal degradation based
`on this data.
`So does that answer Your Honor's question? Is
`there a specific aspect that I did not address?
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`Case IPR2015-01265, IPR2015-01266, IPR2015-01267
`Patent 8,899,023 B2, 9,039,982 B2, 9,032,709 B2
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`
`JUDGE CRUMBLEY: No, that was sufficient. I
`just wanted you to move to that.
`MS. HUFNAL: Yes, absolutely. All right. So
`just to hit on -- could you go back to slide 12, please? Just to
`kind of make sure I have hit this issue, the claim language in
`claim 1 of the '982 which is shown on slide 12 requires a
`zeolite and base metal selected from copper, and it specifies a
`loading, a washcoat loading, this 2.4 -- up to 2.4 grams per
`inch cubed.
`So other than the last part which I will talk about
`with respect to Teraoka, that is what the claim is claiming in
`terms of details of the SCR catalyst. And just looking at
`Speronello, which is JM 1008, it is directed to zeolite catalyst
`compositions, specifically iron or copper, and I should note
`some of the claims do say iron or copper but they all have
`copper in there, and that's why I'm talking about copper.
`So Speronello is directed exactly to zeolite
`catalyst compositions, iron or copper, and Speronello loaded
`these onto a substrate and then tested them for SCR activity
`and reports -- and we have this, at slide 14, is an excerpt from
`our Paper 1 at page 39. We just bullet pointed out the
`washcoat levels and the seven examples of Speronello. They
`range from 1.5 grams per inch cubed up to 2 grams per inch
`cubed. So right in the range of what was later claimed by
`BASF.
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`Case IPR2015-01265, IPR2015-01266, IPR2015-01267
`Patent 8,899,023 B2, 9,039,982 B2, 9,032,709 B2
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`
`So the limitations are met, and here we already
`looked at slide 15, what does Speronello teach about the
`thermal stability of these zeolite catalysts. Speronello says
`that these catalysts are well suited for these temperatures
`above 400. We have the Heck reference saying essentially the
`same thing.
`JUDGE ABRAHAM: What about the language in
`Speronello that seems to indicate a temperature of 600 degrees
`as some sort of cutoff?
`MS. HUFNAL: Your Honor, I do not think there is
`language that suggests 600 as a cutoff. I agree that there is
`data, if you look at the figure in Speronello, it only goes up to
`600 degrees, and that is the one excerpt from Dr. Harold that
`BASF relies on where Dr. Harold made a comment saying,
`looking at Speronello in isolation, then it would look to deal
`with applications limited to 600 degrees.
`And in light of all of the prior art, where Heck, for
`example, zeolite, saying that if you are going above a
`temperature of 300 you have to use zeolite. And this only
`goes up to 500 but it is a flat line going across there. They
`haven't shown -- BASF certainly hasn't shown anything that
`suggests that a zeolite stops working at 600 or 650. And I
`don't think there is anything in Speronello that suggests that.
`It reports data up to 600. It says that they will be
`active at those temperatures. And other than Dr. Harold's one
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`Case IPR2015-01265, IPR2015-01266, IPR2015-01267
`Patent 8,899,023 B2, 9,039,982 B2, 9,032,709 B2
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`out- of-context statement, which is contrary to how you look at
`the prior art as a whole, there isn't anything to suggest --
`nothing to suggest that the catalyst would stop working at
`650.
`
`Even the data in Speronello, figure 2, which was
`shown on slide 15, I mean, it is leveling out at these 550 and
`600 values. It is not dropping off at all like you see in
`vanadium and platinum at the critical temperatures.
`JUDGE ABRAHAM: In column 6 of Speronello,
`around line 17 through 20, it says: However, by utilizing
`stable zeolite catalyst in accordance with the teachings of the
`present invention, high temperature gaseous streams, for
`example, gaseous streams at temperatures up to about 600
`degrees C, may be treated without seriously adversely
`affecting the life or efficiency of the catalyst.
`So it is not just in the figure itself. I mean,
`Speronello actually mentions that 600 degree point. Is there
`any additional argument as to that language specifically?
`MS. HUFNAL: Other than there is nothing to
`suggest -- I mean, yes, there is data and Speronello is
`reporting data of 600 degrees and that's what they say in their
`patent, we have data up to 600 degrees, but I don't think that
`that language suggests that after 600, no, and if you look at
`what would a person of skill in the art think obvious to try,
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`Case IPR2015-01265, IPR2015-01266, IPR2015-01267
`Patent 8,899,023 B2, 9,039,982 B2, 9,032,709 B2
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`we haven't seen anything from BASF that there is some other
`catalyst that is better at these higher temperatures.
`If you look at the teachings of Heck and
`Speronello you know you have an application at, even above
`600, what is the obvious-to-try catalyst for a system, and I
`suggest that that would be zeolite, specifically the beta
`zeolites that Speronello teaches.
`JUDGE ABRAHAM: Thank you.
`JUDGE CRUMBLEY: And your response to Patent
`Owner's argument regarding Dr. Harold's testimony was
`that -- because in his answer he says if you look at Speronello
`in an isolated way, that would confine you to applications.
`And you are saying that that is too restrictive a view of the
`prior art because we are not looking at Speronello in an
`isolated way?
`MS. HUFNAL: I'm suggesting that Dr. Harold was
`limiting his answer in saying, if you are just looking at
`Speronello in isolation then, yes, the data goes to 600. And in
`light of the fact that we have shown other prior art references
`saying that these Speronello catalysts are the most stable, the
`most -- the preferred for these types of systems, that they are
`the ones you have to use if you are going with these high
`temperatures, it is not appropriate to look at that one excerpt
`talking about Speronello in an isolated way to do the obvious
`analysis.
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`Case IPR2015-01265, IPR2015-01266, IPR2015-01267
`Patent 8,899,023 B2, 9,039,982 B2, 9,032,709 B2
`
`
`JUDGE CRUMBLEY: I guess
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