UNITED STATES PATENT AND TRADEMARK OFFICE
`___________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________
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`HYDRITE CHEMICAL CO.,
`Petitioner,
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`v.
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`SOLENIS TECHNOLOGIES, L.P.,
`Patent Owner.
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`___________
`
`Case IPR2015-01592
`Patent No. 8,962,059
`___________
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`DECLARATION OF SCOTT D. KOHL, PH.D
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`SOLENIS EXHIBIT 2003
`Hydrite v. Solenis, IPR2015-01592
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`I.
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`TABLE OF CONTENTS
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`Introduction and Qualifications ....................................................................... 1
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`II. Materials Reviewed ......................................................................................... 2
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`III. Background and Qualifications ....................................................................... 2
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`IV. The Law ........................................................................................................... 6
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`V. Overview of the Petition and Rockstraw Declaration ................................... 10
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`A.
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`B.
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`Prior Publications ................................................................................ 10
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`Summary of the Proposed Grounds of Rejection ................................ 11
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`VI. Description of the Invention of the 059 Patent .............................................. 12
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`VII. Corn-to-Ethanol Processing and the Level of Skill in the Art ...................... 14
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`VIII. Grounds Based on Winsness (Grounds 1-6) ................................................. 16
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`A. Winsness is Not Directed to Handling Emulsions .............................. 17
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`B. Winsness Discloses an Efficient and Effective Oil Recovery
`Method ................................................................................................. 18
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`C. Alther Does Not Suggest the Use of Polysorbate 80 for Use in
`Winsness’s Process.............................................................................. 20
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`D. Hydrite’s Reliance on ICI and the Alleged Predictability of Using
`HLB Values to Form or Break an Emulsion is Misplaced ................. 24
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`E.
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`Hydrite’s Arguments Regarding Claims 4 and 5 ................................ 28
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`F. Martin is Not Relevant to the Challenged Claims .............................. 31
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`G.
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`The Remaining References ................................................................. 33
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`IX. Grounds Based on Bonanno and ICI (Grounds 7-9) ..................................... 34
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`A. Hydrite’s Combination of Bonanno and ICI Would Not Lead to
`the Challenged Claims ........................................................................ 34
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`B.
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`The Remaining References Do Not Cure the Deficiencies of
`Bonanno and ICI ................................................................................. 39
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`X. Objective Considerations ............................................................................... 40
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`XI. Conclusion ..................................................................................................... 41
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`I.
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`Introduction and Qualifications
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`I, Dr. Scott D. Kohl, declare as follows:
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`1.
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`I have been retained by Solenis Technologies, L.P. (“Solenis”) to
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`offer technical opinions regarding U.S. Patent No. 8,962,059 (“059 Patent,” Ex.
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`1001) and certain references relating to its subject matter. This Declaration
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`contains my opinions on this matter and the reasons and bases therefor. I
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`understand that this Declaration is being submitted together with a Patent Owner’s
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`response to the Petition by Hydrite Chemical Co. (“Hydrite”)seeking inter partes
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`review of claims 1-16 of the ‘059 patent, and a declaration by Jennifer Bailey,
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`Solenis’s Global Strategic Product Director for Biorefining.
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`2.
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`I have been asked to testify regarding the views expressed in
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`Hydrite’s Petition and the accompanying declaration of Dr. David A. Rockstraw,
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`Ph.D., P.E. (“Rockstraw Declaration”) (Ex. 1005). This declaration provides a
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`rebuttal of the proposed grounds of rejection set forth in the Petition and
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`Rockstraw Declaration. It further provides an analysis of the 059 Patent and its
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`validity in light of the law of obviousness as it has been explained to me and in
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`light of the references upon which the Petition and Dr. Rockstraw rely and
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`information regarding Solenis products and their use in methods claimed in the 059
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`Patent.
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`3.
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`I do not believe that the methods that are claimed in the 059 Patent
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`would have been obvious to those of ordinary skill in the relevant technical field at
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`the time that the 059 Patent was filed. Specifically, I do not believe that the
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`claimed methods would have been obvious in view of the prior publications that
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`Hydrite and Dr. Rockstaw have identified. In my view, the modifications to those
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`publications that Hydrite and Dr. Rockstraw have proposed are ones that a person
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`of ordinary skill either would not have had a reason to make or that would have led
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`such a person to a method that was different than those claimed. This declaration
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`provides the opinions that I have formed to date. I may modify my opinions, if
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`necessary, based on further review and analysis of information provided to me
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`subsequent to the filing of this declaration.
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`II. Materials Reviewed
`4.
`I have reviewed the Petition, the Rockstraw Declaration (Ex. 1005),
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`the Rockstraw deposition transcript (Ex. 2005), and each exhibit cited therein. I
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`have also reviewed the Declaration of Jennifer Bailey (Ex. 2004) and certain
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`exhibits cited therein.
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`III. Background and Qualifications
`5.
`I hold a Bachelor of Science degree in chemistry from South
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`Dakota State University, which I earned in 1994. I also earned a Ph.D in chemistry
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`from South Dakota State University in 1999. I obtained further training in
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`Fermentation Technology and Downstream Processing at the Massachusetts
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`Institute of Technology under the direction of Dr. Daniel Wang and Dr. Charles
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`Cooney in 2006.
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`6.
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`I am currently the Vice President of Technology and Process
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`Improvement for White Energy, Inc., where I have been employed for the last year.
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`White Energy owns three fuel ethanol plants having a combined capacity of 280
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`million gallons per year (MMGY), as well as a vital gluten food ingredient
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`production plant.
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`7.
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`Prior to joining White Energy, I worked at ICM, Inc., a process
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`design engineering firm that designed over 100 new fuel ethanol plants and over 25
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`major retrofits of other process technology systems during the twelve years of my
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`employment. During my tenure at ICM, I served as a Principal Scientist,
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`Laboratory Manager and Technical Director. In those roles, I was involved with
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`the development of several new technologies related to oil recovery in ethanol
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`production, including ICM’s SMT™ (Selective Milling Technology™) system,
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`FST™ (Fiber Separation Technology™) system, and BTSTM (“Base Tricanter
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`SystemTM) system (which became the most widely purchased oil recovery system
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`in fuel ethanol plants in North America). I also was involved in the development
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`of the AOSTM (Advanced Oil SeparationTM) oil recovery system, which was
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`designed for use in fuel ethanol plants having oil recovery challenges.
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`8.
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`Prior to working at ICM, I worked at Glacial Lakes Energy, LLC,
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`as Plant Chemist and Environmental, Health and Safety Manager on a 40 MMGY
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`fuel ethanol plant. I was hired when the plant was under construction and was
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`involved with the initial setup of the physical laboratory equipment as well as
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`testing procedures. After construction was completed, my responsibilities included
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`selection and hiring of production staff, training for operations, managing and
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`operating all equipment for the laboratory and successful startup of the facility to
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`full operational rate.
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`9.
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`In total, I have approximately fourteen years of experience in the
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`fuel ethanol industry including experience with oil recovery at over 20 ethanol
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`facilities. I have been involved with startup and/or ongoing operations of over 30
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`ethanol facilities. My experience includes day-to-day operations to plant upset
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`issues in the areas of laboratory systems, cook, yeast propagation, fermentation, oil
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`recovery, enzyme systems, wastewater treatment, distillation, drying, whole
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`stillage centrifugation, air emissions, and CO2 scrubber process. I have optimized
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`oil recovery systems at ethanol facilities, worked with SSSTM (Selective Solids
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`SeparationTM) systems in front of the oil recovery systems, and worked with plants
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`to alter their whole stillage decanter operations to increase the performance of the
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`oil recovery system. I have also helped plants understand the cause and effect for:
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`thin stillage retention time, evaporator body operation, feed temperature to oil
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`recovery system, buoyant suspended solids effect on oil recovery, fermentation
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`performance on oil recovery, amylase dosing on oil recovery, protease dosing on
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`oil recovery, total solids in centrate effect on oil recovery, suspended solids in
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`centrate effect on oil recovery, oil centrifuge weir placement on oil recovery, trash
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`recycling within oil system on recovery purity and amount.
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`10.
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`Additionally, I have taught at over 30 training courses in the U.S.,
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`Canada, and Europe on ethanol production. After earning my doctorate in 1999,
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`and until 2002, I worked as a post-doctoral research associate in South Dakota
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`State University’s chemistry and biochemistry departments. From 2000-2002, I
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`also served as an adjunct professor in the Department of Chemistry at the
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`University of South Dakota.
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`11.
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`I am a named inventor on two issued patents and on four pending
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`patent applications that are related to fuel ethanol production or equipment for use
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`in fuel ethanol production. I also co-authored two textbook chapters in the Alcohol
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`Textbook (5th Edition) and one chapter in Advanced Biorefineries for the
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`Production of Fuel Ethanol, and authored 26 trade journal articles covering major
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`unit operations in dry grind fuel ethanol production and corn wet milling. My
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`curriculum vitae, which includes a list of my publications, presentations, patents,
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`and professional activities, is attached hereto at Appendix A.
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`12.
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`I am being compensated at my normal consulting rate of $325 per
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`hour for my work in this matter.
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`IV. The Law
`13.
`I am not an attorney and do not purport to provide any expert
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`opinions on the law. I have, however, been advised of certain basic legal
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`principles applicable to the analysis set forth in this report. I have assumed these
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`principles to be correct and applicable for purposes of my analysis. I set forth
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`these principles below.
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`14.
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`I understand that a petitioner in an inter-partes review has the
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`burden of showing that a patent claim is unpatentable and that this burden requires
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`a showing (by a preponderance of the evidence) that the claimed invention would
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`have been obvious to persons of ordinary skill in the relevant technical field at the
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`time that the invention was made. I also understand that “preponderance of the
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`evidence” basically means “more likely than not.”
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`15.
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`For purposes of assessing whether or not the claimed subject matter
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`of the 059 Patent would have been obvious, I understand that the time of invention
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`was on or before May 27, 2011, which is the earliest filing date listed for the
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`patent.
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`16.
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`I understand that a patent claim is unpatentable if, at the time the
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`invention was made, the differences between the patented subject matter and the
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`prior art are such that the subject matter as a whole would have been obvious to a
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`person having ordinary skill in the relevant technical field.
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`17.
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`I understand that an obviousness inquiry involves a four-step
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`analysis that includes determining:
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`(1) the scope and content of the prior art at the time that the claimed
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`invention was made;
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`(2)
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`the differences, if any, between the claimed invention(s) and the prior
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`art;
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`(3)
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`the level of ordinary skill in the art at the time that the claimed
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`invention was made; and
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`(4) whether or not there is evidence of certain objective considerations
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`relating to the obviousness or non-obviousness of the invention.
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`18.
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`Once these determinations have been made, I understand that one
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`must decide whether or not the invention, considered as a whole, would have been
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`obvious to one having ordinary skill in the relevant technical field at the time that
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`the invention was made.
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`19.
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`I understand that it is not permissible to use hindsight in assessing
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`whether or not the claimed invention would have been obvious. For example,
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`someone assessing the issue of obviousness may not consider information that is
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`known today but was not known at the time that the invention was made. Rather,
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`one must place oneself in the shoes of a person having ordinary skill in the patent’s
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`technical field at the time the invention was made.
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`20.
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`I understand that there are no factors that must be considered in
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`determining the level of ordinary skill in the 059 Patent’s technical field, but I have
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`been instructed to consider the following, to the extent that I can, in making this
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`determination:
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`(1) The educational level of the inventor;
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`(2) Types of problems encountered in the relevant technical field;
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`(3) Prior solutions to those problems;
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`(4) Rapidity with which innovations are made;
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`(5) Sophistication of the technology; and
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`(6) Educational levels of active workers in the field.
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`21.
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`Regarding the fourth step in the above-noted process for assessing
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`obviousness, specifically the step involving “objective considerations,” I have been
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`told that some of the factors that may be considered are copying of the claimed
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`invention, a long felt but unsolved need for it, failure by others in achieving the
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`results of the claimed invention, commercial success of the claimed invention,
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`unexpected results created by the claimed invention, unexpected properties of the
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`claimed invention, licenses showing industry respect for the invention, and
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`skepticism of skilled artisans before the invention was made.
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`22.
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`I also understand that where a claimed invention is a combination
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`of several elements, each of which previously had been separately known, there
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`had to have been some objective reason to combine or modify those elements in a
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`way that would achieve the claimed invention. In addition, known disadvantages
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`of the prior elements that might have taught away from the claimed combination
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`may be taken into account in determining whether or not the claimed invention
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`would have been obvious.
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`V. Overview of the Petition and Rockstraw Declaration
`A.
`Prior Publications
`23.
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`The Petition and Rockstraw Declaration assert that the claims of the
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`059 Patent would have been obvious in view of various combinations of the
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`following publications:
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` U.S. Patent No. 4,702,798 (“Bonanno”) (Ex. 1006);
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` George Alther, “Put the Breaks On Wastewater Emulsions,” Chemical
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`Engineering, Vol. 5, No. 3 (March 1998) (“Alther”) (Ex. 1007);
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` “The HLB System a time-saving guide to emulsifier selection,” ICI
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`Americas Inc. (March 1980) (“ICI”) (Ex. 1008);
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` Pasupati Mukerjee and Karol J. Mysels, “Critical Micelle
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`Concentrations of Aqueous Surfactant Systems,” Nat. Stand. Ref.
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`Data Ser., Nat. Bur. Stand. (Feb. 1981) (“Mukerjee”) (Ex. 1009);
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` U.S. Patent No. 5,283,322 (“Martin”) (Ex. 1010);
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` U.S. Patent No. 5,558,781 (“Buchold”) (Ex. 1011);
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` U.S. Patent Application Pub. No. 2008/0110577 (“Winsness”) (Ex.
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`1012);
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` U.S. Patent No. 7,309,602 (“David”) (Ex. 1013);
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` U.S. Patent Application Pub. NO. 2007/0210007 (“Scheimann”) (Ex.
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`1014);
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`B.
`24.
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`Summary of the Proposed Grounds of Rejection
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`I understand that inter partes review of the 059 Patent was
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`instituted on the following grounds:
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`1) Claims 1-5 and 9 as obvious over Winsness, Alther, Martin, and ICI.
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`2) Claims 13-16 as obvious over Winsness, Alther, Martin, ICI, and
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`Buchold
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`3) Claims 6 and 7 as obvious over Winsness, Alther, Martin, ICI, and
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`Scheimann
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`4) Claim 8 as obvious over Winsness, Alther, Martin, ICI, Scheimann,
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`and Mukerjee.
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`5) Claims 10 and 12 as obvious over Winsness, Alther, Martin, ICI, and
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`Bonanno
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`6) Claim 11 as obvious over Winsness, Alther, Martin, ICI, Bonanno,
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`and David
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`7) Claims 1, 6, and 10 as obvious over Bonanno and ICI
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`8) Claims 2 and 3 as obvious over Bonanno, ICI, and Martin
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`9) Claim 11 as obvious over Bonanno, ICI, Martin, and David
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`25.
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`For reasons explained below, I do not believe that those of ordinary
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`skill would have made these combinations and/or that the combinations would not
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`have led them to the challenged claims.
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`VI. Description of the Invention of the 059 Patent
`26.
`The 059 Patent is directed to methods of extracting oil from a
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`byproduct stream of a bio-based ethanol production process. The patent explains
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`that dry milling methods for producing ethanol through fermentation create a
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`byproduct stream commonly known as “whole stillage” (Ex. 1001 at col. 4:5-8).
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`The whole stillage byproduct stream may be separated into a high-solids byproduct
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`stream (“distillers wet grains”) and a liquid stillage byproduct stream (“thin
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`stillage”) that contain valuable oil (id. at 4:9-17). The thin stillage may then be
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`further concentrated, e.g., via evaporation, to create a “syrup” byproduct (id. at
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`4:38-40). The syrup is typically re-combined with the distillers wet grains and
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`dried to produce animal feed, commonly referred to as dried distillers grains with
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`soluble (DDGS) (id. at 4:17-25).
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`27.
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`The 059 Patent further explains that it is common for byproduct
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`streams to include oil-sequestering components that emulsify and/or stabilize the
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`oil within the liquid solution (id. at 5:9-13). For example, a syrup byproduct
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`stream may include soluble starches, proteins, gums, and waxes that interact with
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`the oil (primarily triglycerides) to prevent its separation from solution (id. at 5:13-
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`16). The overall oil profile may include a relatively diverse range of triglycerides
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`having a diverse range of fatty acids bound thereon (id. at 5:21-23). The result is a
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`potentially broad distribution of lipophilicity amongst the population of
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`triglycerides that makes up the oil profile of a given source (id. at 5:23-25).
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`Furthermore, the oil profile varies according to the source species, breed, and even
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`with variable environmental and seasonal factors under which the source grew (id.
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`at 5:25-28).
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`28.
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`As the 059 Patent explains, the oil-sequestering components
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`interact with the triglycerides to prevent the triglycerides from interacting with
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`each other in a manner which would result in the formation of a distinct oil phase
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`(id. at 5:28-31). Instead, the oil tends to remain dispersed in the aqueous phase,
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`stabilized by the starches, proteins, gums, and waxes (id. at 5:31-33). Accordingly,
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`the 059 Patent discloses the use of an oil concentrator to enhance oil recovery by
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`interfering with the interaction between the naturally occurring oil-sequestering
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`components and the triglycerides so that the triglycerides are capable of interacting
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`with each other so as to form a distinct oil phase (id. at 5:34-39).
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`VII. Corn-to-Ethanol Processing and the Level of Skill in the Art
`29.
`Dr. Rockstraw alleges that a hypothetical person of ordinary skill in
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`the art would be someone holding a degree in chemical engineering with
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`approximately five years of post-graduation experience in the design and
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`application of chemical processes, and having before him/her all of the relevant
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`prior art (Ex. 1005 at ¶ 25).
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`30.
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`Although I agree with Dr. Rockstraw that a person of ordinary skill
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`may have a chemical engineering degree, or closely related technical degree, I
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`believe that, given the unique problems that one encounters when converting corn
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`to ethanol, a person having ordinary skill in this field would have had actual
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`experience with corn-to-ethanol processing. This experience would include first-
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`hand familiarity with at least the majority of the production equipment and normal
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`operational parameters for that equipment in corn to ethanol production. In
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`addition, one of ordinary skill in the art would also have familiarity with the
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`chemistry of the constituents that make up a corn-to-ethanol process stream.
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`31.
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`As stated in the 059 Patent, there are a number of constituents in a
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`corn-to-ethanol byproduct stream, including soluble starches, proteins, gums, and
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`waxes (Ex. 1001 at 5:13-16). The overall oil profile may include a relatively
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`diverse range of triglycerides having a diverse range of fatty acids bound thereon
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`(id. at 5:21-23). The oil profile varies according to the source species, breed, and
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`with variable environmental and seasonal factors under which the source grew (id.
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`at 5:25-28). In other words, the chemistry of one product stream as compared to
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`the next may vary widely.
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`32.
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`A corn-to-ethanol production process is a complex system. There
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`are a number of different plant (facility) designs used in the industry that can affect
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`the ease of oil recovery. And even within plants that have the same design, owner-
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`defined operational parameters will alter the ease or difficulty of oil recovery from
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`the system. For example, the grind size, enzyme package, solids loading, nitrogen
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`addition for fermentation, yeasting practice, pH, temperature, unit operation
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`residence time, pump style, and length of piping between pumps and tanks can all
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`have an effect. In fact, these parameters often determine whether an emulsion
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`problem exists or not at a given corn to ethanol plant.
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`33.
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`Without any practical experience with a corn-to-ethanol production
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`process, it may be tempting to focus on corn oil emulsions in the theoretical way
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`that Hydrite and Dr. Rockstraw did. This approach, however, does not take into
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`account the actual constituents of the various types of corn-to-ethanol process
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`streams that one might encounter, or the complexities that those constituents, along
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`with the processing conditions, can produce. There is more to evaluating your oil
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`recovery options than simply identifying your continuous (water) and oil phase
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`(see Ex. 2005 at 99:13-22; 100:8-24).
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`34.
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`Prior to May 2011, there was not much publically available
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`information on the chemistry or assessment of emulsions in the byproduct stream
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`of a corn-to-ethanol process. This is borne out by the fact that the only reference
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`cited in the Petition that refers to an emulsion in a corn-to-ethanol process stream
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`is the Winsness reference, which devotes only two sentences to it (Ex. 1012 at
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`[0007]). In addition, the Bonanno, ICI, Alther, and Martin references were
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`available since 1998, but no one arrived at the claimed methods for many years,
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`despite a general desire to increase efficiency. It simply was not as easy to arrive
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`at the claimed methods as Hydrite proposes.
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`VIII. Grounds Based on Winsness (Grounds 1-6)
`35.
`In Ground 1, Hydrite asserts that claims 1-5 and 9 would have been
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`obvious over Winsness in combination with Alther, ICI, and Martin (see Pet. at 8-
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`23; Ex. 1005 at ¶¶78-109). In particular, Hydrite argues that one of skill in the art
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`would have used Polysorbate 80 (TWEEN 80) disclosed in Alther in the process
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`disclosed in Winsness based on ICI’s guidance that the hydrophilic-lipophilic
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`balance (HLB) of Polysorbate 80 will demulsify an emulsion of corn oil and water
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`(id.). I do not believe that a person of ordinary skill would have combined these
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`publications. Even if they had done so, I do not believe that they would have
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`produced a claimed method.
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`A. Winsness is Not Directed to Handling Emulsions
`36.
`Winsness is said to disclose a method of recovering oil from a
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`byproduct stream resulting from the production of ethanol from corn (Ex. 1012 at
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`[0039]). Dry milling methods for producing ethanol through fermentation, as
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`disclosed in Winsness, create a byproduct stream commonly referred to as “whole
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`stillage” (Ex. 1012 at [0039], [0043]). The whole stillage byproduct stream may
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`be separated into a high solids byproduct stream (“distillers wet grains”;
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`approximately 35% solids) and a liquid stillage byproduct stream (“thin stillage”;
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`approximately 8% solids) (id.). Moisture is then removed from the thin stillage
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`through evaporation to create a concentrate or syrup (id.). Usable oil is then said to
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`be “easily recovered from this concentrate through mechanical processing, without
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`the prior need for multiple stages of filtration or other expensive and complicated
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`forms of processing” (id. at [0039]).
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`37.
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`Winsness discloses that its disk stack centrifuge “is able to separate
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`oil in usable form from the concentrate in an efficient and effective manner,
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`despite the relatively high level of solids present” (Ex. 1012 at [0040]), and results
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`in a syrup “which is substantially free of oil” (id. at [0045]). The reference does
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`not disclose or suggest any means for oil recovery other than mechanical
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`(centrifugal) means, nor does it indicate that emulsions are a problem within its
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`process.
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`38.
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`The only reference in Winsness regarding an emulsion that requires
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`further processing relates to a technique that uses a centrifuge to spin the thin
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`stillage prior to the evaporation stage (Ex. 1012 at [00007]). No other information
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`concerning this emulsion is provided. Winsness’s technique does not involve
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`spinning thin stillage, and it might be for this reason that Winsness does not
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`describe an emulsion that requires further processing.
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`B. Winsness Discloses an Efficient and Effective Oil Recovery
`Method
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`39.
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`Regarding the technique for oil recovery set forth in Winsness, I
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`concur with Dr. Rockstraw that the disclosure of a syrup “which is substantially
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`free of oil” is an indication that a significant amount of oil, i.e., at least 90%, has
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`been recovered (Ex. 2005 at 309:11-21). Indeed, Winsness exemplifies a 95%
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`recovery of oil based on Figure 2 (566 lbs oil in syrup, 538 lbs oil recovered, 28 lbs
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`oil residual in de-oiled syrup). At the time the 059 Patent was filed, this result, if
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`true, would have been considered a high recovery. At the time, rates of recovery in
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`the 40 to 50% range were common and anything over 70% was considered high.
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`40.
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`Even very efficient oil recovery processes will produce syrup that
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`contains some oil, due largely to the fact that it is nearly impossible to remove all
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`the oil and almost always impractical to do so. For this reason, those working in
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`the industry generally do not try to remove all the oil. As stated in the 059 Patent,
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`dried distillers grains with soluble (DDGS) is a primary byproduct from corn-to-
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`ethanol production facilities and is used as a feedstock for animals (Ex. 1001 at
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`1:58-65). The market has an expectation of a certain level of fat/oil in the DDGS
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`for animal nutrition purposes. Although the desired amount of oil in the DDGS
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`can vary, it typically averages about 10-12%, and today the generally accepted
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`lower limit is about 7% in the DDGS.
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`41.
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`Given Winsness’s stated oil recovery, there would have been no
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`motivation to try to recover the small percentage of remaining oil. In fact, the cost
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`of doing so would be greater than the value of the remaining oil. For example, to
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`recover the small percentage of oil remaining, one would typically need to rely on
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`hexane extraction (see 059 Patent at 13:1-16). This process requires the material to
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`be dried to near anhydrous conditions (expensive) and then run through a solvent
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`extraction system, most likely a hexane system. A hexane extraction system does
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`not scale down well and the costs for the small recovery needed would be
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`impractically high.
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`C. Alther Does Not Suggest the Use of Polysorbate 80 for Use in
`Winsness’s Process
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`42.
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`Although Hydrite cites Alther for its reference to Polysorbate 80,
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`the publication’s disclosure is much broader. In fact, unless a person of ordinary
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`skill already knew about the challenged claims, I do not think that they would have
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`had any reason to select Polysorbate 80 from the multiple and varied options that
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`Alther provides. Also, I think that such a selection would be inconsistent with
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`Alther’s teachings.
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`43.
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`As an initial matter, Alther is not directed to separating corn oil
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`from corn stillage but to handling emulsions in wastewater treatment facilities.
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`Although Alther indicates that fats, oils, and greases (FOGs) are major constituents
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`of an emulsion (Ex. 1007 at 82, first column), and that this could include corn oil,
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`FOG encompass a vast number of compounds found in a large number of
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`industries. In fact, Alther is geared toward industrial applications that need to
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`recycle water and meet discharge limits (id.), whereas corn-to-ethanol plants are
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`animal feed manufacturing facilities, and the types of chemicals used for
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`wastewater processing are not likely to be approved for animal feed ingredients.
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`44.
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`For example, to the extent Alther does describe a process stream, it
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`describes wastewater process streams that are said to contain “metal shavings, silt,
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`surfactants, cleaners, soaps, solvents, metal particles and other residue that will
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`accumulate in the rag layer [emulsion layer] unless it settles out by gravity” (Ex.
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`1007 at 84, third column). Among the constituents of these emulsions “may be
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`fats, lubricants, cutting fluids, heavy hydrocarbons such as tar, grease, crude oils
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`and diesel oils, and light hydrocarbons, including gasoline, kerosene, and jet fuel”
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`(id.). Accordingly, the wastewater streams of Alther are quite different from the
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`corn to ethanol byproduct streams of Winsness, which include soluble starches,
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`proteins, gums, and waxes that interact with the oil, primarily a diverse range of
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`triglycerides (Ex. 1001 at 5:13-25). In view of these differences, I do not believe
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`that a person of ordinary skill in the art dealing with problems presented by the
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`byproduct streams of Winsness would have consulted Alther for solutions. Hydrite
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`never addresses the differences between the hydrocarbon-based wastewater
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`streams described in Alther and the corn-based byproduct streams of Winsness, nor
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`does Hydrite explain how the differences would have affected a decision on
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`whether or not to combine the references’ teachings.
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`45.
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`Not only are the targeted process streams of Winsness and Alther
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`different, but Alther provides, at best, a generic description of different options for
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`emulsion breaking that lacks any level of specific guidance. For example, Alther
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`divides emulsion breaking into several processes: gravity separation of free,
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`nonemulsified oil; chemical treatment and separation of emulsified oil; and
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`electrolytic methods (Ex. 1007 at 84, second column). Alther goes on to identify
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`many strategies for “emulsion breaking”:
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` decompose the emulsion, using dissolved air flotion, ozonation or
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`other oxidation process (id. at 84, third column);
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` chemically react the emulsion, modifying the surfactant’s charge so
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`that it no longer acts as an emulsifier, typically by adding acid, base,
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`or ionizer (id.);
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` increase the solubility of the surfactant in either bul