UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`REACTIVE SURFACES LTD,
`Petitioner,
`
`v.
`
`TOYOTA MOTOR CORPORATION,
`Patent Owner.
`____________
`
`Case IPR2016-01914
`Patent 8,394,618
`____________
`
`Record of Oral Hearing
`Held: January 9, 2018
`____________
`
`
`
`
`Before CHRISTOPHER M. KAISER, JEFFREY W. ABRAHAM, and
`MICHELLE N. ANKENBRAND, Administrative Patent Judges.
`
`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`REACTIVE SURFACES LTD,
`Petitioner,
`
`v.
`
`TOYOTA MOTOR CORPORATION,
`Patent Owner.
`____________
`
`Case IPR2016-01914
`Patent 8,394,618
`____________
`
`Record of Oral Hearing
`Held: January 9, 2018
`____________
`
`
`
`
`Before CHRISTOPHER M. KAISER, JEFFREY W. ABRAHAM, and
`MICHELLE N. ANKENBRAND, Administrative Patent Judges.
`
`
`
`
`Case IPR2016 01914
`Patent 8,394,618
`
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`DAVID O. SIMMONS, ESQUIRE
`Innoventions
`P.O. Box 26584
`Austin, Texas 78755
`(512) 345-9767
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JOHN D. LUKEN, ESQUIRE
`Dinsmore & Shohl, LLP
`255 East Fifth Street, Suite 1900
`Cincinnati, Ohio 45202
`(513) 977-8200
`
`
`
`
`The above-entitled matter came on for hearing on Tuesday, January 9,
`
`2018, commencing at 1:30 p.m., at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia.
`
`
`
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`2
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`Case IPR2016 01914
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`P R O C E E D I N G S
`- - - - -
`JUDGE ANKENBRAND: Good afternoon, everyone. Today we
`have our final hearing in IPR2016-01914 between Petitioner, Reactive
`Surfaces Ltd., LLP and Patent Owner, Toyota Motor Corporation.
`I'm Judge Ankenbrand. I'm joined by Judge Abraham and Judge
`Kaiser, who is appearing remotely from our Denver hearing room.
`Counsel, can you identify yourselves and let us know who will be
`presenting today. Start with Petitioner.
`MR. SIMMONS: Yes, Your Honor. David Simmons, here on behalf
`of Petitioner, Reactive Surfaces. And I have with me Mark Fasold.
`JUDGE ANKENBRAND: Thank you. And counsel for Patent
`Owner.
`MR. LUKEN: Good afternoon, John Luken from Dinsmore Shohl in
`Cincinnati. I'll be arguing for Patent Owner, with me is Oleg Khariton, from
`our Cincinnati office and also present is Brian Walker, a member of the
`patent bar from our D.C. office.
`JUDGE ANKENBRAND: Thank you. Welcome everyone. Good to
`have you here today. I'm glad everyone made the effort to be here and got
`here safely, with the weather we've been having lately.
`We set forth the procedure for today's hearing in our trial order, but
`just to remind everyone of the way it will work. Each party will have 45
`minutes of total time to present arguments. Petitioner has the burden of
`proof and will go first.
`Please keep in mind that Judge Kaiser will not be able to view
`anything that you project onto the screen in this room. Accordingly, when
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`you refer to an exhibit on the screen, please state for the record the exhibit
`and page number, or if you're referring to a demonstrative, the slide number
`to which you are referring. It's also important to do so for the accuracy and
`clarity of the transcript.
`Also, just remember that because our microphones have limitations,
`Judge Kaiser won't be able to hear you if you stray too far from the podium,
`so try to stay close to the microphone.
`I will try to give each counsel warning when you're reaching the end
`of your argument time. Does counsel have any questions or concerns?
`MR. SIMMONS: No, Your Honor.
`MR. LUKEN: No, Your Honor.
`JUDGE ANKENBRAND: I think we're ready to begin. You can
`start, Mr. Simmons. How much time did you want to reserve for --
`MR. SIMMONS: I'd like to reserve 15 minutes for rebuttal.
`Good afternoon Judges. David Simmons here for Petitioner, Reactive
`Surfaces, to present arguments today. And to get started, moving to slide
`number 2, just want to set out the points of oral argument that I'll be
`presenting today.
`The first is that Buchanan was a publicly accessible printed
`publication. And I note here Buchanan is not a prior art reference upon
`which the ground of unpatentability was presented. It's actually a prior art
`reference that's relied upon by Petitioner's expert in forming his opinion.
`JUDGE ANKENBRAND: I'm going to stop you for just a moment.
`I'm getting a word from Judge Kaiser that he can't hear anything.
`(Off the Record)
`MR. SIMMONS: Slide number 2, Judge Kaiser. Pointing out the
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`Petitioner's points of oral argument that I'll be presenting today.
`The first is that Buchanan was a publicly accessible printed
`publication, and make note that Buchanan is actually a prior art reference,
`solely that the Petitioner's expert relied upon in forming his opinion. And
`second oral argument, grounds of unpatentability do not rest upon
`Buchanan. Third, the facilitating limitation which is the limitation in claim
`number 1 of the '618 patent is not patentably distinguishing. The fourth
`point is the prior art relied upon catalytic activity and evaporation. And the
`fifth point is prior devices anticipate the claimed invention.
`So, moving on to slide number 3, starting off with respect to
`Buchanan was a publicly accessible printed publication.
`The Patent Owner has made the assertion that the record lacks any
`evidence that a copy of the proceeding publications in which Buchanan
`allegedly appeared was received and cataloged by any library, and I have it
`highlighted here, any library or online databases prior to the relevant date.
`And moving on to slide number 4, part of the evidence presented by
`Petitioner is a declaration of Mr. Eric Pepper, who is the publications
`director for the organization that published the Buchanan reference. And he
`was asked to provide this declaration in support of certain dates, including
`publication date, publication facts, and public accessibility.
`And moving on to slide number 5, we see here that contrary to Patent
`Owner's assertion, Petitioner believes that it did present a sufficient showing
`of evidence that this printed publication of the Buchanan reference actually
`was cataloged and submitted to a library, which was the Library of
`Congress, as supported by the printed publication, including the Library of
`Congress card catalog number.
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`So, here we see that this is part of the evidence of record and it does
`show that the document printed publication was provided to the Library of
`Congress with this card catalog number.
`JUDGE KAISER: Where's the card catalog number?
`MR. SIMMONS: On the right-hand side of the screen, just above the
`box having Library of Congress card catalog number.
`Moving on to slide number 6, second point of oral argument that I'd
`like to discuss or discuss here is the grounds of unpatentability do not rest
`upon Buchanan. And here we see that the Patent Owner has asserted that
`Petitioner's case, I'm going to paraphrase here, Petitioner's case rests not on
`the disclosure of any of the seven prior art references included in the
`grounds of unpatentability by which this proceeding was instituted.
`And they go on to state that, rather than any of those prior art
`references, that this case is predicated on Dr. Rozzell's testimony and Dr.
`Rozzell relies exclusively on that Buchanan reference. That's actually
`inconsistent with the record. Dr. Rozzell's testimony is actually based on a
`number of references that support unpatentability. And in the red we see
`that I have highlighted, Buchanan is the only alleged piece of prior art of
`record in this proceeding that even deals with fingerprints. And I'll speak to
`this a little further. I just want to point out here that from a factual
`standpoint, it's actually an incorrect statement in that, at the time of the
`proceedings at which Patent Owner's Response was filed, there were several
`prior art references that spoke to the topic of fingerprints and some of them
`were actually included in the record by Patent Owner with their Patent
`Owner Response, such as the Bartlet, Craig, and the Mong references. And
`the Mong reference is notable because the Mong reference is actually
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`asserted by the Petitioner as supporting many of the findings of the
`Buchanan reference. So I'll speak to that.
`Another point I will speak to is, in the next slide, is the context in
`which fingerprints need to be considered in these proceedings. And so if we
`look at slide number 7 we see that the term a fingerprint is recited numerous
`times in the claims. And I have here as an exemplary claim, claim 1.
`And as asserted in the Petition, the applicant actually served as its
`own lexicographer as far as the term a fingerprint. So a fingerprint as
`defined in the '618 patent is much broader than the mark or residue
`remaining after touching of a person's finger. As we see on the right-hand
`side, a fingerprint is actually defined as a stain or bioorganic stain mark or
`residue left behind after an organism touches a substrate.
`And the applicant in the '618 patent actually went on to define a
`fingerprint as being not limited to marks or residue left behind after a
`substrate touches the finger.
`And, lastly, at the bottom of that passage we see that that bioorganic
`stain is defined very broadly to include fatty acids from any other source.
`The importance of this is that as we look at the claim language and
`look at the prior art in this case, we have to keep in mind that the term
`fingerprint has a much broader definition than solely the marker stain left as
`a residual from the residue of a finger. It's actually considered to be a
`bioorganic stain. And, again, important from the standpoint of how the prior
`art is assessed in view of the claims, the claims of the '618 patent, and
`important from the standpoint of considering Patent Owner's arguments as
`far as how they're looking at the term fingerprint as it relates to prior art
`claims and disclosures of the '618 patent.
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`JUDGE KAISER: How broad is that? I'm just curious, the wording
`at the end there, fatty acids from any other source, is that limited by having
`to be deposited through touching of some part of an organism to the
`substrate, or could that be cooking oil spatter?
`MR. SIMMONS: I looked at that. And if you look at the second
`sentence, a fingerprint is not limited to marks left after a substrate is touched
`by a finger. So it is broader than just the finger, but if you look at the first
`sentence the bioorganic stain is left after an organism touches a substrate or
`coating. So I do believe that it is limited to an organism needs to touch a
`surface or a coating, but you have a person's finger touching a surface or
`coating is an organism touching a surface or coating. You also have a bug
`hitting the front of a car being an organism touching a surface or a coating.
`So it's a fairly broad interpretation. That bug could actually, which is
`well-known, bugs often do have fatty acids esters and lipids as a part of their
`composition, but a very broad definition as how fingerprint needed to be
`looked at in these proceedings.
`So moving to slide number 8, if you look at the top, the Buchanan
`reference was actually this is very well set forth in the Petitioner's Reply, it
`was also discussed in a previous hearing, a hearing that Patent Owner
`requested with respect to motion to strike information or evidence from the
`Petitioner's Reply, is that Buchanan was actually set forth in the Petition
`solely as a footnote. It was the only instance in which Buchanan was
`actually referenced in the Petition.
`And as we see here, the extent of Buchanan as Petitioner set forth in
`its Petition was simply to show that it was well-established that fingerprints
`disappear from surfaces over time without having to be contacted by an
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`enzyme such as a lipase.
`That's important because the scope of Buchanan is fairly limited in
`Petitioner's position. And down below here we actually see that substance
`of Buchanan was actually confirmed by Patent Owner's expert, Dr. Dordick,
`who confirmed or testified that, yes, Buchanan does actually teach that
`aspect of fingerprints disappearing over time and those components of
`fingerprints disappearing by evaporation, not under any influence of lipase
`enzyme.
`So, I mention this just that the Patent Owner has predicated largely its
`case on this Buchanan reference, but the Buchanan reference is really a
`reference that is very much limited in scope of how it's used. And as I
`mentioned previously, it is used by the Petitioner's expert in forming his
`opinion. It's not part of any ground of unpatentability as the prior art used in
`any ground of unpatentability that was instituted by the Board.
`So, moving on to slide number 9, left-hand side of the slide is the
`institution decision language that relates to the Buchanan reference. And a
`couple of things I'll point out here that are important, again, for how the
`Petitioner believes the claims need to be construed relative to the prior art
`and how the prior art of record -- how the evidence of Dr. Rozzell is actually
`much broader in what he relied upon than solely Buchanan.
`Briefly, I'll point out that at the top part of the screen we show the
`Petitioner relies on the disclosure of the '618 patent and the testimony of Dr.
`Rozzell to show that lipases facilitate the evaporation of fingerprints and
`fingerprints are bioorganic stains.
`The second highlighted section we see that the Board actually found
`that it says that the '618 patent does not support a finding that it would have
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`been known by a person of ordinary skill in the art. The fingerprints contain
`low volatility lipids or that fingerprint lipids can be broken into smaller
`higher volatility molecules by contact with the lipase. Here's the important
`part, is because the disclosure cited refers to the inventor's discovery of these
`facts, not the general knowledge of the art. And on the right side of the
`screen are those disclosures.
`And if we go to the next slide, slide number 10, we actually see that
`the Patent Owner’s expert and the Petitioner's expert both disagree with that.
`So, both are saying that -- if go back to slide number 9, both are saying that
`the disclosure that the Board actually indicated was part of the inventor's
`discovery is actually very well-known. If we look at the right-hand side of
`slide 9, it's those two passages that the Board said and it's critical because
`those are the passages that talk about the effect of a lipase, that lipases are
`well-known to provide catalytic activity, et cetera, that that actually was
`well-known to a person of ordinary skill in the art.
`I'll go back to slide number 10. Slide 10 includes testimony from
`Patent Owner's expert Dr. Dordick that actually supports that position and
`specifically he was testifying with respect to those passages of the '618
`patent.
`So, moving on to slide 11. This shows examples of -- one example of
`other evidence that Dr. Rozzell, Petitioner's expert, relies upon in forming
`his opinions. So contrary to Patent Owner's assertion that Dr. Rozzell's
`testimony is exclusively based on Buchanan, we see evidence right here at
`the top of screen, we see that the Board actually recognized paragraph 35 of
`Dr. Rozzell's declaration, and in that paragraph he specifically sets forth
`various aspects of the effect that lipases actually have on hydrolyzing lipids
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`and fatty acid esters and this provides one example of a reference that he
`uses as evidence disclosing those facts.
`So, pointing out that it's inconsistent with the record that Dr. Rozzell's
`testimony relies exclusively on Buchanan with respect to the facts of lipase
`functionality and the effects of those lipases on various components, such as
`lipids, triacylglycerols, fatty acids, esters, et cetera.
`So, now I'm going to move on to the next slide, which is slide 12, and
`here the -- this is a point raised by the Patent Owner in its Response with
`respect to construing the claim. This goes to, again, an inconsistency in
`many aspects of the record and how the Patent Owner's actually attempting
`to create patentably distinguishing language or patentably distinguishing
`content in claim 1 of the '618 patent that is inconsistent, not only with patent
`law, but also with the record.
`Moving to slide 13, on the left-hand side -- I'll start on the right-hand
`side. We actually see claim 1. We see claim 1 as a method claim. It
`actually starts off with providing a substrate and a coating, associating a
`lipase with the substrate or coating, and then a third step of facilitating
`removal of a fingerprint.
`If we look at the left-hand side, we see what Patent Owner's
`attempting to do to establish patentably distinguishing language is to state
`only the first two steps, the providing step and the associating step, are
`manipulative steps.
`And to that effect, saying that those two steps must be performed for a
`specific purpose, which is facilitating the removal of a fingerprint through
`vaporization, and that's inconsistent with actually the manner in which the
`claims are written, and as I'll show, it's inconsistent with the claim
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`construction itself for the facilitating step. And that the facilitating step as
`well, facilitating language is a step, it is not language that defines a specific
`purpose that the first two steps must be performed; it itself is a manipulative
`step. I will speak about the importance of that.
`Moving to slide 14. Contrary to Patent Owner's position, on the
`left-hand side, this is an office action response that was filed by the applicant
`in the '618 patent. And we see that an amendment was made for the as-filed
`claims to actually add the facilitating language. On the right-hand side we
`see there was an admission that, in fact, that facilitating language was
`admitted as being a step. So it's written as a step, it is admitted as being a
`step and, in this respect, it's inconsistent with the manner, as I'll speak to in a
`moment further, the manner in which the Patent Owner is attempting to use
`this to be some type of characterizing language that's not a step but rather
`characterizes the functionality that the first two limitations, the providing a
`substrate and the associating limitations must be performed.
`JUDGE KAISER: Let's say you're right here and this third limitation,
`the limitation that begins with facilitating the removal, is a method step as
`opposed to the purpose for which the only two other method steps must be
`carried out, why is that third step not something that adds patentable weight
`to the claim?
`MR. SIMMONS: Let me go to slide number 15. In that respect, if
`you look at slide 15 on the left-hand side, we actually see the Board's
`construction for that facilitating step. And the red highlighted box, I think,
`goes largely to answer your question, which is Petitioner -- based on the way
`the claim is written, there are some issues with the claim that limit the scope
`or limit the breadth of that step. So, in the Petition, the Petitioner actually
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`set forth that the removal of a fingerprint is not necessarily dependent on the
`enzymatic degradation of a fingerprint.
`If we go back to slide 13 and look at the right-hand side, the impact of
`that is that if you look at the second limitation, the associating limitation,
`you'll see that it's associating a lipase with a substrate or coating such that
`the lipase is capable of enzymatically degrading a component of a
`fingerprint. When we go to the third step, the third step is silent on any
`language that actually ties back in functionally to that capable of
`enzymatically degrading a component or fingerprint.
`So on slide 15 at the bottom in yellow, we actually see that the Board
`did consider this as how that language impacts the patentable aspect of that
`language. And notably we see that the Board says we do not adopt the
`Petitioner's proposed construction to the extent, that's the key language, to
`the extent that it extends the permissible means of fingerprint removal
`beyond vaporization.
`And Petitioner reads this to mean that the Board actually has
`construed this to be, on the right-hand side, that the facilitating language
`only requires that the bioorganic material deposited by the organism be
`reduced from an initial quantity of visually impaired bioorganic material to a
`lesser quantity by vaporization and that vaporization is not predicated on the
`enzymatic functionality of the lipase.
`JUDGE KAISER: What about the facilitating language though? The
`limitation is facilitating the removal, not removing.
`MR. SIMMONS: Right. In the breadth of the disclosure, facilitating
`is very broad. So, the disclosure discloses, for example, heating the
`substrate to promote evaporation.
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`So, in the breadth of the disclosure, facilitating could be exposing to
`heat, facilitating could be exposing to an environment. I don't think there's
`any support and I think it's inconsistent with the claim construction that the
`facilitating language actually mandates that it be through the lipase action.
`JUDGE KAISER: Maybe not mandates, but would you suggest that
`the lipase performing some action on the components of the original stain to
`cause those components to vaporize more quickly or more readily or more
`completely somehow falls outside the scope of this claim.
`MR. SIMMONS: I think that is based on -- I do believe that's the
`case, based on how the claim is written. So go back to claim 13.
`I'm just looking at how the claim is constructed in that what it's saying
`here is being removed is not the component that has been enzymatically
`degraded, it is the removal of a fingerprint. And there are components in a
`fingerprint, such as water or carbocyclic acid that are not acted on by a
`lipase.
`So, in the way that the claim is written, there actually is no
`requirement and it somewhat recites away from the lipase actually having to
`have an effect on the components of the fingerprint to facilitate evaporation.
`So I think part of this goes back to the manner in which the claim's
`drafted. I don't see that there is a requirement or a necessity, again, for the
`facilitating language to be predicated on or to be required by the lipase.
`JUDGE KAISER: So, is what you're saying that as long as you've got
`a substrate and a lipase associated with a substrate in some way that it is
`capable of acting on some component of the stain that gets deposited on top
`of a substrate or coating, that as long as there's something else that facilitates
`removal of the fingerprint that's performed, it just doesn't have to be the
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`lipase that does that facilitating function, it could be something else.
`MR. SIMMONS: That is correct. I'm saying exactly that, that it
`doesn't have to be the lipase that is providing for the facilitating.
`And I would say that that is consistent with the Board's claim
`construction for this. If we look at the right-hand side of the claim
`construction, there's nothing in the Board's claim construction for the
`facilitating that brings in the lipase.
`And if we look at the bottom of the Board's explanation of creating its
`claim construction, the Petitioner, actually if we go up to the red box above
`that, specifically said in its Petition based on how the claim is drafted, based
`on the specification, is that removal of a fingerprint by vaporization is not
`necessarily dependent on enzymatic degradation of a fingerprint. So, that's
`directly to your question.
`And if we look at the Board's construction, it says, we do not adopt
`the Petitioner's proposed construction to the extent that it extends the
`permissible means of removing a fingerprint beyond vaporization, and that's
`because Petitioner actually presented a proposed claim construction that did
`not include vaporization. So, what the Board is saying here in Petitioner's
`reading is that it is added back in on the right-hand side that the enabling
`must be by vaporization, but the Board's language to the extent means that
`we're just saying that it has to be by vaporization. This construction does
`not require or have any necessity for it to be as a result of the enzymatic
`activity.
`So I'm just looking at the Board's construction, I'm looking at the
`claim language as issued in the patent and I'm looking at the argument that
`the Petitioner set forth in the Petition regarding the removal of a fingerprint
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`by vaporization is not necessarily dependent on the enzymatic degradation
`of fingerprint, to answer your question. I'm looking at the facts of record
`and applying that to the question that you asked. And that's the argument
`that Petitioner has maintained throughout the proceedings. And I'll go to
`another slide and show how that impacts how the prior art reads on claim
`number 1 in view of that construction.
`JUDGE KAISER: I see that. Let's assume you're right about that that
`you could have, for example, a structure that had a lipase associated coating
`on top of a substrate, as well as a heater or something that performed the
`facilitating the removal by vaporization function. That extra element, that
`heater or whatever else it is, other than just the presence of a lipase within
`the coating or the substrate, I don't think that's present in any of Van
`Antwerp or Schneider or Drevon. So, in those, isn't it just the lipase, the
`presence of the lipase, doing something to the components of the stain that's
`performing the -- facilitating the removal of a fingerprint function.
`MR. SIMMONS: In those primary references, yes. In Drevon,
`Schneider, and Van Antwerp, they are a device having a substrate with a
`lipase association of it, yes, for facilitating removal of a bioorganic stain.
`So, to answer your question, they -- to my recollection -- I take that
`back. Actually one of them, which I believe is Schneider, discusses actually
`exposing that lipase to sunlight, I believe it said applying this coating on a
`picnic table or a surface that can be heated. So there is disclosure, and I
`don't remember exactly which one, but there is disclosure in one of those
`references that would provide for heating of the substrate or coating.
`JUDGE ABRAHAM: Is that an argument you made in the Petition?
`MR. SIMMONS: It is an argument we made in the Petition.
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`JUDGE ABRAHAM: That facilitating can come from other sources
`than the lipase.
`JUDGE KAISER: And specifically that it does in these references.
`MR. SIMMONS: I don't recall that, Your Honor. I don't have that
`fact in front of me. I don't remember that, as far as where the facilitating
`comes from.
`I believe the core of the argument was that the facilitating language,
`and this goes to another point of argument, is completely separate from that,
`is inherently met by the lipase.
`So, the point of the evaporation, I'll move us a few slides forward
`here, the point that I was making as far as the facilitating language not being
`predicated on a lipase was the breadth by which the prior art can be read, but
`even in the case where the Board were to say that, well, that facilitating must
`be performed by the lipase, in the next -- actually in the next point of
`argument, I'll actually speak to that and actually I'm going to move forward
`very quickly to show that completely separate from that the prior art still
`accomplishes that third limitation of facilitating removal of a bioorganic
`stain by evaporation from the lipase associated surface. So, I will move to
`that just after this one point on this slide is based on --
`JUDGE ABRAHAM: For the record, can you identify the slide
`number.
`MR. SIMMONS: I'm sorry, yes. I'm on slide number 18, Judge
`Kaiser. So slide number 18, top of the slide. This slide goes to, and this is
`in Petitioner's Reply, that based on Petitioner's reading of that claim
`construction, this goes to showing the various modes by which that
`facilitating could actually occur, whether it's by evaporation of a chemical
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`constituent, chemical component that's not affected by the enzyme, such as
`water, by evaporation of a breakdown component resulting from naturally
`occurring decomposition of a component of a bioorganic stain, which is
`disclosed as being various types of lipid components of a fingerprint residue
`and, lastly, enzymatic -- evaporation of a breakdown component resulting
`from enzymatic degradation of a bioorganic stain, such as, for example, fatty
`acid esters that produce fatty acids and alcohol products of lower molecular
`weight than the starting fatty acid ester.
`If we look at and say that the facilitating language is not predicated on
`the lipase, there are three different modes by which that facilitating language
`can actually be met. I'm going to move --
`JUDGE ANKENBRAND: Where did you argue in the grounds that
`that's the way that you're applying the art to the claims? I'm just taking a
`quick look through the grounds in the Petition, every time I see that
`facilitating the removal, dot, dot, dot, there's a discussion about enzymatic
`degradation and the lipase.
`MR. SIMMONS: In the Petition, which is the slide I'm going to go to,
`in the Petition we argued the point of that the facilitating language was met
`by the prior art via the enzymatic activity.
`So, in the Petition, the argument was that the facilitating language is
`met by the lipase association of each one of those prior art references,
`Drevon, Van Antwerp, and Schneider, by the lipase actually degrading the
`component of the fingerprint, the bioorganic stain, and that resulting in that
`component evaporating.
`It's in the Petitioner's Reply that we looked at the claim construction
`that was made in the institution decision and based on that claim
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`construction presented this argument, which is a broader argument, based on
`the claim construction. Obviously, at the time of the Petition, we didn't have
`that claim construction.
`JUDGE ANKENBRAND: Are you abandoning the argument you
`made in the Petition? That's what I'm not understanding. Or are you
`arguing it both ways?
`MR. SIMMONS: No, this argument encompasses -- item number 3 is
`the argument of the Petition. So if we look here, the third mode, evaporation
`of a breakdown component resulting from enzymatic degradation of a
`component of a bioorganic stain, that is the mode by which you're asking
`your question. That is the lipase facilitating the removal of the bioorganic
`stain. So item number 3 here --
`JUDGE ANKENBRAND: That's what we said you were reasonably
`likely to prevail on at trial, correc
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