UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`RIMFROST AS,
`Petitioner,
`
`v.
`
`AKER BIOMARINE ANTARCTIC AS,
`Patent Owner.
`_____________
`
`Case IPR2018-01178
`Case IRP2018-01179
`Patent 9,375,453 B2
`_____________
`
`
`
`Record of Oral Hearing
`Held: October 16, 2019
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`
`
`Before ERICA A. FRANKLIN, TINA E. HULSE, and
`JOHN E. SCHNEIDER, Administrative Patent Judges.
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`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`RIMFROST AS,
`Petitioner,
`
`v.
`
`AKER BIOMARINE ANTARCTIC AS,
`Patent Owner.
`_____________
`
`Case IPR2018-01178
`Case IRP2018-01179
`Patent 9,375,453 B2
`_____________
`
`
`
`Record of Oral Hearing
`Held: October 16, 2019
`
`
`
`Before ERICA A. FRANKLIN, TINA E. HULSE, and
`JOHN E. SCHNEIDER, Administrative Patent Judges.
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`Case IPR2018-01178
`Case IRP2018-01179
`Patent 9,375,453 B2
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`APPEARANCES:
`
`ON BEHALF OF PETITIONER:
`
`
`JAMES F. HARRINGTON, ESQUIRE
`MICHAEL I. CHAKANSKY, ESQUIRE
`HOFFMANN & BARON LLP
`6900 Jericho Turnpike
`Syosset, NY 11791-4407
`516-822-3550
`
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`J. MITCHELL JONES, J.D., Ph.D
`CASIMIR JONES S.C.
`2275 Deming Way, Suite 310
`Middleton, WI 53562
`608-662-1277
`
`
`
`The above-entitled matter came on for hearing on Wednesday, October
`16, 2019, commencing at 9:57 a.m., at the Silicon Valley USPTO Hearing
`Room at 26 South Fourth Street, San Jose, California 95113.
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` (Proceedings begin at 9:57 a.m.)
` THE CLERK: All rise.
` JUDGE HULSE: Please be seated. Great.
` Good morning, everyone. I'm Judge Hulse. Appearing
`remotely are Judge Schneider on the left and Judge Franklin on
`the right. We are here for the final hearing in IPR2018-01178 and
`IPR2018-01179.
` Let's begin with appearances, please, starting with
`Petitioner, Rimfrost.
` MR. HARRINGTON: Yes. James Harrington on behalf of
`the Petitioner, Rimfrost AS.
` MR. CHAKANSKY: Michael Chakansky on behalf of the
`Petitioner, Rimfrost AS.
` JUDGE HULSE: Thank you. Welcome.
` And Patent Owner?
` MR. JONES: Mitchell Jones on behalf of Patent
`Owner, Aker Biomarine Antarctic AS.
` JUDGE HULSE: Great. Can you all hear me okay,
`Judges?
` JUDGE SCHNEIDER: We can now.
` JUDGE HULSE: Sorry.
` JUDGE SCHNEIDER: We missed the very beginning.
` JUDGE HULSE: Yeah. I just realized that I didn't
`have my microphone on. Apologies.
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` Okay. Now, before we begin, Petitioner, I just
`wanted to confirm with you that you do not have demonstrative
`slides for today's hearing; is that correct?
` MR. CHAKANSKY: No, we do.
` MR. HARRINGTON: We do.
` JUDGE HULSE: You do?
` MR. HARRINGTON: Yes.
` JUDGE HULSE: And did you email those to the Trials?
` MR. HARRINGTON: Yes.
` JUDGE HULSE: Because we did not receive them.
` MR. HARRINGTON: They were emailed.
` JUDGE HULSE: Did you receive them seven days prior?
` MR. JONES: Yes, we exchanged slides.
` JUDGE HULSE: Okay.
` MR. JONES: And I think I was also -- sorry. We
`exchanged slides, and I believe I was also copied on Friday on
`their submission to PTAB trials.
` JUDGE HULSE: Okay. I was afraid that might be the
`case.
` So we did not receive them. We double checked with
`our paralegal today. Perhaps the email address was
`incorrectly typed?
` MR. HARRINGTON: No.
` JUDGE HULSE: No?
` MR. HARRINGTON: It's automatic, no.
` JUDGE HULSE: Hmm.
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` MR. HARRINGTON: And I sense -- well, I can't -- I
`don't have any --
` JUDGE HULSE: Okay. Well, let's see.
` So, Patent Owner, do you object if we just adjourned
`shortly and had the Petitioner email the slides again to
`Trials and try and get this thing settled?
` MR. JONES: Yeah, no objection.
` JUDGE HULSE: Great. Thank you.
` MR. HARRINGTON: Maybe the IT person can help me get
`into wireless?
` JUDGE HULSE: Sure.
` MR. CHAKANSKY: So I can just email it?
` JUDGE HULSE: Oh, sure.
` Is that possible?
` IT TECHNICIAN: Yeah.
` JUDGE HULSE: Okay.
` THE COURT REPORTER: Judge, are we off the record?
` JUDGE HULSE: Yes. We can go off the record for a
`little bit.
` (Off the record.)
` JUDGE HULSE: Can we go back on the record, please?
`Thank you.
` Okay. Looks like you all have your slides now.
` As we stated in our hearing order, each party has 60
`minutes of argument time. We'll start with Petitioner and
`arguments with respect to the grounds on which we instituted
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`trial. Petitioner may reserve up to half of its time for
`rebuttal. Then we'll hear Patent Owner's response to
`Petitioner's argument and its argument regarding its motions
`to amend.
` Patent Owner, you may also reserve time for
`rebuttal.
` Then assuming both parties reserve time, we'll hear
`from Petitioner -- Petitioner's rebuttal and opposition to the
`Patent Owner's motion to amend.
` And then we'll end with Patent
`Owner's surrebuttal. I will be keeping track of time.
`Unfortunately, we don't have one of those timers with the
`fancy lights, but I'll give you a five-minute warning, if you
`would both prefer.
` And as we stated in our hearing order, the judges
`unfortunately -- our remote judges can't see what's being
`presented on the screen, so please be explicit as to what
`page, slide, et cetera, you're referring to, so they can
`follow along.
` Does anyone have any questions?
` MR. HARRINGTON: No.
` MR. JONES: No.
` JUDGE HULSE: No? We will wait for Judge Franklin
`to come back online hopefully soon, and then we can get
`started.
` JUDGE FRANKLIN: Judge Hulse, I'm back on the line.
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` JUDGE HULSE: Okay. Okay. Excellent.
` JUDGE FRANKLIN: I think that technical support was
`trying to call me.
` JUDGE HULSE: Oh, I see.
` JUDGE FRANKLIN: Sorry.
` JUDGE HULSE: Okay.
` Petitioner, you may begin.
` MR. HARRINGTON: Okay.
` JUDGE HULSE: How much time will you be reserving?
` MR. HARRINGTON: I'd like to reserve 20 minutes for
`rebuttal, if I could.
` JUDGE HULSE: Go ahead.
` Judge Franklin, you're still there, right? Good.
`Okay. Okay. Now, we can go again.
` MR. HARRINGTON: Okay. Thank you very much.
` Good morning and good afternoon. I'm James
`Harrington, lead counsel on behalf of Petitioner, Rimfrost AS.
`I'm here with my first backup counsel, Michael Chakansky, and
`we're here again for another one of what we call the krill oil
`IPRs.
` This is our third oral hearing on the same
`specification, essentially the same claims and many of the
`same references.
` And, excuse me, if we go to Slide 2, this is a slide
`that everyone has seen already, but I thought was worth
`reiterating. I'm not going to go through all of the old
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`slides, but this one I think is helpful. It's a slide from a
`PowerPoint presentation from Dr. Hoem, who is the Patent
`Owner's expert witness and chief scientific officer, and he
`has identified the natural lipid components of krill and has
`identified the various lipid structures or lipid classes. And
`you'll see, they're essentially broken down into two classes:
`neutral and polar. Neutral is in white; polar is in blue.
`And we see there that in the neutral fraction, there is 34
`percent triglycerides, and the polar fraction, there's 44
`percent phospholipids, both of which fall within the claimed
`ranges.
` And to the right, we have some additional details on
`the various lipid classes. And, again, in blue, you'll see
`the polar lipids listed there, the subclasses.
`Phosphatidylcholine, what we abbreviate as PC, is the largest
`component in the polar fraction at 38 percent. You'll also
`see there, phosphatidylethanolamine, what we abbreviate as PE,
`is also present. And later on, when we discuss the ether
`phospholipids, you'll see the (indiscernible) varieties of the
`PA and the PC, what we're referring to as the ether
`phospholipids. So those would also be subcomponents that
`would be naturally present in the lipid.
` If we move forward to Slide 6, this is an
`independent claim summary of the claims. We have Claims 1 and
`33. These method steps are essentially the same as those that
`were found obvious in the '877 Patent. And, again, in this
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`particular case, the Patent Owner has focused on the
`composition elements to try to argue for novelty, but, again,
`all of these various elements have already been found obvious
`by the Board.
` Moving to Slide 12. These are the amended claim
`summary. There, you'll see the Patent Owner added the
`elements of freshly caught and grinding, cooking, and drying,
`and -- excuse me -- changed or proposed to amend the ether
`phospholipid and astaxanthin levels, ether phospholipids at
`four to eight and five to eight, and astaxanthin from 100 to
`700. Again, those were found obvious in -- by the Board, the
`final written decision.
` And, again, for both the original claims and the
`proposed claims, there's been no demonstration of a
`criticality for any of those composition ranges.
` If we move forward to Slide 15, we think this slide
`is helpful because it shows where the various composition
`elements were discussed in the prior decisions. We have the
`-295 final written decision, which related to the '765 Patent;
`that was the one that we discussed in Dallas. Then we have
`the -746 and -745, and the final written decision for the -746
`and -745 were recently affirmed by the Federal Circuit.
` And with regard specifically to the ether
`phospholipid level, in the final written decision, what we
`call the -295 final written decision, the Board has held with
`regard to the ether phospholipid level, we conclude that it
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`would have been obvious to prepare a krill oil composition
`having from greater than five percent to eight percent ether
`phospholipids.
` And, again, on the astaxanthin level, in the -295
`final written decision, the Board concluded it would have been
`obvious to one of ordinary skill in the art to prepare a krill
`oil composition with -- between 100 milligrams per kilogram
`and 700 milligrams per kilogram of astaxanthin.
` If we move forward to Slide 29 -- I'm not going to
`go through all of the prior art. The Board is familiar
`already with all of the prior art that we're relying upon.
`But, again, in connection with the Catchpole reference,
`specifically, we again wanted to highlight that the Board has
`concluded that Catchpole teaches krill extracts with greater
`than five percent ether phospholipids. And the decision again
`from the -295 final written decision is highlighted there,
`indicating a five to eight percent ether phospholipid would be
`obvious.
` Moving forward to Slide 37. This is another issue
`that we just wanted to highlight. Again, it's been gone over
`already, but we wanted to highlight the fact that Extract 2 of
`Catchpole contains the proper triglyceride level. This
`relates to what we call, the no triglycerides argument, that
`Patent Owner has put forward. This is the notion that in
`Example 18, the first step would remove all of the
`triglycerides, so that there'd be no triglycerides left in
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`Extract 2 and then to meet the triglyceride element,
`triglycerides would be added, which would, in turn, dilute the
`ether phospholipid level.
` The Board has already rejected that, and in the -295
`final written decision again held the evidence of record
`supports the conclusion that Extract 2 contained a significant
`amount of triglycerides. That's on Page 37 of that final
`written decision.
` So moving forward to Slide 57. We also wanted to
`highlight the Board's previous finding on astaxanthin level,
`relying upon the Randolph reference. Randolph discloses a
`composition that includes krill oil and can include any amount
`of astaxanthin ingredient. And as we discussed in Dallas, if
`we take the lower range of the astaxanthin level and the
`higher range of krill oil, we wind up with 158 milligrams per
`kilogram of astaxanthin esters, which overlaps with the
`proposed ranges.
` Okay. Moving forward to Slide 67. We wanted to
`point out that the admitted prior art also discloses a krill
`oil with astaxanthin within the proposed claim range at 472
`milligrams per kilogram. This was identified by the Patent
`Owner as the closest prior art; that would be the Neptune
`krill oil commercial product.
` And if we see -- if we move to Slide 68, we see
`highlighted there, the Neptune krill oil again highlighted in
`table 16 of the '453 Patent.
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` And on Slide 69, we wanted to emphasize Patent
`Owner's admissions regarding the specific NKO formulation
`described in the '453 Patent are binding and can be considered
`by the Board in its unpatentability analysis. And we just
`wanted to emphasize here that contrary to what the Patent
`Owner has suggested, we are not relying in any way on
`inherency to make this argument.
` This is a natural product, and so there would be
`natural fluctuations in some of these ranges. So we would
`never say that every NKO formulation is necessarily going to
`have 472 milligrams per kilogram of astaxanthin, but what we
`are arguing is that this particular NKO product that was being
`commercially sold at the time the application was filed, was
`admitted -- not only admitted prior art but the closest prior
`art, and, therefore, makes a krill oil with that range between
`100 and 700; obvious, this would be literally right in the
`middle of that proposed claim range.
` So if we go back to Slide 59, in light of everything
`that we've just discussed, really, the only element that the
`Board has not already addressed that is pending is the
`grinding, cooking, and drying element that's proposed, and
`that is clearly disclosed in the Yoshitomi reference.
` And we wanted to highlight the fact that this was a
`reference that was known and considered by the Patent Owner
`before making their motion. In fact, Dr. Tallon, in his
`original declaration spends 10 paragraphs explaining
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`Yoshitomi, what's in there, and also the grinding, cooking,
`and drying elements.
` Then Dr. Hoem, in his declaration and support of the
`motion, confirms that he considered Dr. Tallon's declaration,
`and yet there was no mention at all in either Dr. Hoem's
`declaration or any of the motion papers of the Yoshitomi
`reference, which did put the Petitioner at a disadvantage.
` So if we move forward to Claim (sic) 60, we see that
`Yoshitomi relates to a krill product that has all of the
`components of krill. They do this by perfectly disabling the
`proteolytic enzymes by boiling, and Dr. Hoem has acknowledged
`that this process would also disable the lipases.
` Moving to Slide 62, we see that Yoshitomi not only
`discloses the grinding, cooking, and drying elements, but also
`discloses the benefits of the grinding step, which is to
`improve the thermal efficiency during the heating and drying
`process.
` And moving to Slide 65, the Patent Owner argues that
`a person of ordinary skill in the art would ignore the
`teachings of Yoshitomi because of the acid value, peroxide
`value, and crude fat content of the resulting product. They
`make these statements without any support in the literature,
`that these values would discourage a person of ordinary skill
`in the art from grinding, cooking, and drying, as taught in
`Yoshitomi. The Patent Owner also makes no connection between
`these particular values that they say teach away and the
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`grinding, cooking, drying elements disclosed.
` The Patent Owner refers to acid values of 18.1 and
`19.2 in Table 3 of Yoshitomi, saying without support that
`these values are too high. But Dr. Hoem has acknowledged that
`the acid value of a krill extract equals about twice the
`extract's free fatty acid content.
` In Table 2 of the '453 Patent, it reports that the
`krill meal produced in accordance with the patents teachings
`had a free fatty acid content of nine. So based on Dr. Hoem's
`testimony, this corresponds to an acid value of 18, which is
`comparable to the acid values in Table 3 of Yoshitomi.
` And moving to Slide 66, we see highlighted here the
`fatty acid level of nine in the '453 Patent. This is the
`Patent Owner's product after drying with a level of nine
`percent, which would equate to 18 percent acid level. We also
`highlighted the Ukrainian commercial product, which has a
`level of 5.9, which would equate to an acid level of almost
`12. There's been no indication by the Patent Owner as to
`whether that would be too high.
` In addition, the Patent Owner argues that the
`peroxide values are -- in Table 3 are too high in Yoshitomi.
`Those levels would be 1.8 and 4.1, again, without any support.
`However, Enzymotec's GRAS Report, that would be Exhibit
`1048, states that an acceptable peroxide value for krill
`extracts are less than five, and this is consistent with
`peroxide values of 1.8 and 4.1 reported in Table 3. In fact,
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`Dr. Hoem admitted that krill oil with peroxide values less
`than five are acceptable.
` In addition, Table 4 in Yoshitomi shows peroxide
`levels of zero, and those levels were ignored by the Patent
`Owner.
` With regard to crude fat, the Patent Owner argues
`without support that the fat content of seven percent would
`also be too low and would teach away from using Yoshitomi.
`However, the commercialization is not claimed, and the seven
`percent would only relate to the quantity of the yield that's
`being extracted. It would not affect the percentages claimed,
`and tellingly, Dr. Hoem agreed that phospholipids and neutral
`lipids could be extracted from Yoshitomi's seven percent
`course fat krill product.
` So, in general, we feel that the Patent Owner's
`reference to some of these specific figures within the tables
`of Yoshitomi in no way would detract a person of ordinary
`skill in the art from focusing on really what Yoshitomi is
`teaching, which is, you can obtain a better product by
`perfectly disabling the degradative enzymes, and they do that
`by grinding, cooking, and drying.
` Moving forward to Slide 86. The only remaining
`argument that Patent Owner puts forth with regard to a lack of
`motivation is the selective -- not what we call the
`selective/non-selective argument. This is an argument that
`certain references identified by the Patent Owner use solvents
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`that would be selective or more general.
` Again, the Board has already rejected this argument.
`All of the solvents used in the various references that we
`have cited extract both neutral and polar lipids.
` Moving to Slide 89. We just wanted to highlight the
`fact that the -295 final written decision has already rejected
`this argument, and, in fact, the -295 final written decision
`actually has a sub-heading titled, combining selective and
`non-selective extraction techniques, and, there, the Board
`held, We are not persuaded that one skilled in the art would
`not have combined the teachings of the references to produce
`the claimed compositions.
` Okay. Moving to Slide 90. Again, relating to this,
`sort of, the selective/non-selective argument. In the -746
`final written decision, which related to the '877 Patent,
`which was the earlier patent that also related to method
`claims, there, the Board correctly combined Breivik,
`Catchpole, and Fricke to find those claims invalid.
` And the Patent Owner has identified Breivik and
`Catchpole as being selective. They've identified the Fricke
`reference as being non-selective. They use what's known as
`the Folch Method, which is a method that's also used by
`Bottino II, which is another reference relied upon in this
`particular IPR.
` And, again, the Board has correctly identified the
`fact that those claims would be obvious in view of that
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`combination. And, again, that decision, the -746 final
`written decision was affirmed by the -- recently affirmed by
`the Federal Circuit. And I'd actually like to go back if I
`could.
` One thing that I meant to mention earlier regarding
`the Federal Circuit's affirmance of the -746 and -745 final
`written decision, just that there's been a little bit of an
`update, in a joint status report to the District Court --
` MR. CHAKANSKY: What slide?
` MR. HARRINGTON: This is -- I'm referring to Slide
`16. But I'm just making the Board aware that, you know, since
`we submitted the slides, there's been an update.
` A joint status report has been filed to the District
`Court in Delaware on October 11, and in that, counsel for Aker
`has indicated that as a result of the Federal Circuit
`decision, the USPTO will cancel all claims in the patent suit.
`And also, in a press release dated October 4th, the Patent
`Owner has disclosed that they will not be appealing and will
`close the case.
` So in light of that, it's our position that the
`Patent Owner cannot take any position that's inconsistent with
`that Federal Circuit affirmance pursuant to 37 CFR 42.73
`(d)(3).
` Okay. So I'm jumping forward all the way to the
`other end. At Slide 90 -- I'm sorry -- Slide 93, we'll finish
`up with the PAF argument.
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` Again, we think that the Patent Owner has decided to
`drop this argument. This, again, what we call, the PAF
`argument, you may recall, is the argument that because of
`concerns of platelet-activating factor, a person of ordinary
`skill in the art would not use a krill oil with elevated
`levels of ether phospholipid. And, again, that argument was
`rejected by the Board in all three final written decisions,
`-295, -746 and -745 and was affirmed by the Federal Circuit,
`who particularly noted the real world evidence of the NKO oil
`being sold safely at the time.
` So, again, this is another issue where we feel the
`Patent Owner cannot take a position inconsistent with the
`adverse judgment of the Federal Circuit.
` So in conclusion on Slide 108, the challenged claims
`1 to 61 of the '453 Patent and proposed amended claim, 62 to
`84, would have been obvious to a person of ordinary skill in
`the art, based on the teachings of the prior art record.
` Yeah. One additional point on Catchpole, again, I'm
`not even sure if it's still an issue anymore. But with
`Catchpole, I guess there was some question as to whether a
`person of ordinary skill in the art would be directed to use
`the particular feed that was used in Example 2 and -- yes, and
`Example 18. And I think we've explained in our papers how
`Catchpole not only discloses or teaches the use of a feed
`material with a higher ether phospholipid level of at least
`0.3.
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` Out of all of the examples, it was the marine
`animals that had the highest ether phospholipid levels and
`krill oil, in particular -- or, I'm sorry -- the krill meal in
`particular was the best source of lipids and ether
`phospholipids as a source material for an ether -- for a
`phospholipid composition.
` So we just wanted to highlight the fact that, you
`know, one -- reviewing Catchpole would be led to a krill meal
`composition as a starting material.
` Okay.
` JUDGE HULSE: So before you finish up then, could
`you just sort of summarize for us what Petitioner contends is
`still at issue, given the prior decisions, given the Federal
`Circuit affirmance, and all that. It seems like we're just,
`kind of, all over the place.
` MR. HARRINGTON: Yeah. As far as I can tell, the
`only elements that the Board has not considered in both the
`original claims and even the proposed claims is the grinding,
`cooking, and drying element in the proposed amendment. And,
`that, we believe, is clearly disclosed by Yoshitomi.
` Again, it was curious to us why that was not
`discussed in the original motion to amend, but it wasn't so we
`needed to deal with it when we could. But those elements are
`clearly there. And like I said, they're not only disclosed,
`but the reason why they produce a benefit is also disclosed,
`to increase the thermal efficiency in both the denaturing
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`process and the drying process.
` JUDGE HULSE: Okay.
` MR. HARRINGTON: Okay. Thank you.
` JUDGE HULSE: How much time will you be reserving?
` MR. JONES: I'd like to reserve ten minutes.
` JUDGE HULSE: Okay. Go ahead.
` MR. JONES: Good morning -- good afternoon. I'm
`Mitchell Jones. I'm here on behalf of Aker Biomarine
`Antarctic AS.
` I'm going to be spending most of the time on the
`motion to amend, specifically addressing the grinding,
`cooking, and drying limitations that were just discussed, and,
`especially, the data in Yoshitomi.
` But before I start, I did want to point out that I
`believe in Petitioner's response on the main claim set, on the
`original claim sets. They indicated that at that point, that
`the issue of the selectivity and non-selectivity in regards to
`motivation to combine is still an open issue. So I would like
`to take a few minutes to discuss that.
` The claims as a whole are directed to process where
`a polar solvent is utilized to contact a krill material, to
`extract a krill oil, define what the components. And here,
`I'm referring to Slide 4. And we made the argument in our
`papers that, you know, that there was no motivation to combine
`for that particular method, references that use selective
`extraction processes with references that use non-selective
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`extraction processes.
` You know, Petitioner argued, and here, I'm referring
`to Petitioner's reply at 14 and 15, and that's -- 14 and 15
`for both the 1178 and 1179 replies. And I'm on Slide 6 now.
`The distinction between selective and non-selective lipid
`extraction techniques is a straw-man and litigation-induced.
`And our position is that those arguments are based on
`hindsight.
` When we -- and here, I'm moving to slide 7. When
`Dr. Tallon was deposed, you know, I specifically asked him if
`he had ever used the term non-selective describing an
`extraction, and he confirmed that he had.
` And then in the second cite here from his
`deposition, which is on Exhibit 2026 at Page 34, he confirmed
`Yeah, if you're talking about solvent systems for all lipids
`and a solvent system like chloroform and methanol, which is
`the Folch system that was used in Bottino II, you can define
`that as one that doesn't differentiate. It's not selecting
`between those different lipid components that are being
`extracted.
` And then moving on to Slide 8, he confirmed that --
`in his deposition testimony, Exhibit 2026, Page 35, that it
`was fair to describe the chloroform methanol system as being
`non-selective.
` Moving to slide -- and then staying on Slide 8,
`exhibit -- referring to deposition testimony Exhibit 2026 at
`21
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`Page 36, he confirmed that if you used solvent systems that
`extract some of the components but not others, that those are
`-- it's fair to call those selective systems.
` So in summary on motivation to combine, these
`arguments regarding selectivity and non-selectivity that we've
`made, in referring to solvent systems like those that were
`used in Catchpole, which would be a selective system, and
`Bottino II, which are non-selective processes, that that's not
`a litigation-induced distinction or straw-man distinction.
` You know, their expert actually, you know, confirmed
`on that when he was deposed; that it's fair to describe those
`systems as being selective or non-selective, and that he had
`actually used those terms to describe those types of
`extractions himself as being selective and non-selective. And
`I think that goes, you know, directly to the credibility of
`his testimony that was presented in his expert report that a
`POSITA would make no distinction between selective and
`non-selective extractions.
` All right. So that's, I believe, all I have to say
`right now on the --
` JUDGE HULSE: Actually, can I ask a question about
`that though?
` MR. JONES: Yes.
` JUDGE HULSE: So what is your response to
`Petitioner's argument that we've already considered that issue
`and already decided in favor of Petitioner?
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