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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`TENNANT COMPANY,
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`Petitioner,
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`v.
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`OXYGENATOR WATER TECHNOLOGIES, INC.,
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`Patent Owner.
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`Patent No. RE45,415
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`Reissue Date: March 17, 2015
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`Title: FLOW-THROUGH OXYGENATOR
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`DECLARATION OF DR. MARIO TREMBLAY
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`Petition for Inter Partes Review of U.S. Patent No. RE45,415
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`TABLE OF CONTENTS
`INTRODUCTION ........................................................................................... 1
`I.
`II. QUALIFICATIONS ........................................................................................ 1
`III. MATERIALS CONSIDERED ........................................................................ 6
`IV. DEFINITIONS AND STANDARDS .............................................................. 7
`V.
`STATE OF THE ART ................................................................................... 10
`VI. THE ’415 PATENT ....................................................................................... 11
`VII. CLAIM CONSTRUCTION .......................................................................... 11
`A.
`“Critical Distance” .............................................................................. 11
`B.
`“Microbubble” ..................................................................................... 12
`C.
`“Nanobubble” ...................................................................................... 12
`D.
`“Supersaturated” .................................................................................. 13
`VIII. ANALYSIS OF PRIOR ART ........................................................................ 15
`A. U.S. Patent No. 4,917,782 (“Davies”) ................................................ 15
`i.
`Overview of Davies .................................................................. 43
`ii.
`Davies Cell Embodiment #1 ..................................................... 44
`iii. Davies Cell Embodiment #2 ..................................................... 50
`Faithful and Accurate Reproduction of Davies Cell
`iv.
`Embodiment #1 ......................................................................... 57
`Testing of Water Electrolyzed by the Reproduced Davies
`Cell #1 ....................................................................................... 60
`Faithful and Accurate Reproduction of Davies Cell
`Embodiment #2 ......................................................................... 70
`vii. Testing of Water Electrolyzed by the Reproduced Davies
`Cell #2 ....................................................................................... 73
`B. U.S. Patent No. 5,324,398 (“Erickson”) ............................................ 83
`C. U.S. Patent No. 5,439,576 (“Schoeberl”) ............................................ 85
`D. U.S. Patent No. 3,984,303 (“Peters”) .................................................. 86
`E.
`U.S. Patent No. 3,891,535 (“Wikey”) ................................................. 15
`i.
`Overview of Wikey ................................................................... 15
`ii.
`Faith and Accurate Reproduction of Wikey Cell ..................... 20
`iii.
`Testing of Water Electrolyzed by the Wikey Cell .................... 25
`Aquariums for Dummies, First Edition, 1999 (“AFD”) ..................... 40
`F.
`G. U.S. Patent No. 4,039,439 (“Clark”) ................................................... 41
`-i-
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`vi.
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`H. U.S. Patent No. 6,296,756 (“Hough”) ................................................. 89
`I. Wendt .................................................................................................. 90
`J.
`Han ...................................................................................................... 90
`K. Glembotsky ......................................................................................... 91
`L.
`Burns .................................................................................................... 94
`M. Motivation to Combine the Prior Art .................................................. 97
`N.
`The Grounds for Challenge ...............................................................113
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`-ii-
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`Petition for Inter Partes Review of U.S. Patent No. RE45,415
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`I, Dr. Mario Tremblay, make this declaration in connection with the
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`proceeding identified above.
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`I.
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`INTRODUCTION
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`1.
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`I have been retained by counsel for TENNANT COMPANY
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`(“Tennant”) as a technical expert in connection with the proceeding identified
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`above. I submit this declaration in support of Tennant’s Petition for Inter Partes
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`Review (“Petition”) of United States Patent No. RE45,415 (“the ’415 patent”),
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`Exhibit 1101.
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`II. QUALIFICATIONS
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`2. My complete qualifications and professional experience are described
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`in my curriculum vitae, a copy of which is attached as Exhibit 1104 to the Petition.
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`Following is a brief summary of my relevant qualifications and professional
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`experience:
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`3.
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`I received a Bachelor of Science degree in 1983 from the University
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`of Florida. I also received a Ph.D degree in Chemistry from the University of
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`Florida in 1987. My Ph.D. emphasis was in analytical chemistry.
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`4.
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`After obtaining my Ph.D., I worked at Procter & Gamble Company
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`(“P&G”) for nearly 30 years from 1987-2017, developing products for the personal
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`care industry, including skin care, cosmetics and household care products. From
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`1987 to 1990, I worked as a Principal Scientist Group Leader responsible for
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`Petition for Inter Partes Review of U.S. Patent No. RE45,415
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`leading analytical lab work for food and beverage research and product
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`development. From 1990 to 2010, I worked as a Principal Scientist & Section
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`Head responsible for leading analytical lab work for research and product
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`development for various of P&G’s global business units in the personal care
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`industry. From 2010 to 2017, I worked a Research Fellow responsible for
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`providing technical leadership to various product development initiatives for
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`several of P&G’s brands in the personal care and household care industries. After
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`leaving Proctor & Gamble in 2017, I became a self-employed consultant working
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`in personal care and household care industries.
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`5.
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`Over the course of my career, I have developed a deep understanding
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`of electrolysis cell design. For example, I designed various electrolysis cells for
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`disinfection and water purification. I also developed more than a dozen different
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`electrolysis cell designs to electrolyze water and/or water with different salts that
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`resulted in the decontamination of liquids, hard surfaces, fabrics or air.
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`Additionally, I designed electrolysis cells for the purpose of water purification of
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`both drinking and bathing water in developing geographies. These systems were
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`connected to water purification and/or wash machines and dishwashing machines.
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`Further, I worked directly with the Pentagon, DARPA and other government
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`agencies for three years in developing electrolysis cells for the purpose of forming
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`chlorine dioxide for decontamination and biological countermeasures. Even
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`further, I developed various electrolysis cell designs where the gap size was critical
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`for performance and for maximization of efficiency. Finally, I have developed
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`electrolysis cell design with different geometry, cell sizes, cell gap, flow rates and
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`efficiencies so that they can be operated with batteries or AC power converted to
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`DC. I also have experience with different cell coatings that delivered high
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`efficiencies with various electrolysis cell designs.
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`6. My work has led to the filing of numerous U.S patent applications,
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`resulting in over fourteen U.S. patents related to products in the personal care
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`industry. Some of these U.S. patent applications and resulting U.S. patents relate
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`specifically to electrolysis cell design. I am a named inventor on the following
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`U.S. patents and U.S. patent applications:
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`Patent No. 6,921,743, titled “Automatic Dishwashing Compositions
`Containing a Halogen Dioxide Salt and Methods for use with
`Electrochemical Cells and/or Electrolytic Devices,”
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`Patent No. 7,048,842, titled “Electrolysis Cell for Generating Chlorine
`Dioxide,”
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`Patent No. 7,413,637, titled “Self-Contained, Self-powered Electrolytic
`Devices for Improved Performance in Automatic Dishwashing,”
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`Patent No. 7,816,314, titled “Automatic Dishwashing Compositions
`and Methods for Use with Electrochemical Cells and/or Electrolytic
`Devices,”
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`Patent No. 8,333,873, titled “Apparatus for Electrolyzing an
`Electrolytic Solution,”
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`Patent No. 9,358,085, titled “Device and Method for Cleaning Dental
`Appliances,”
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`7.
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`Patent Publication No. 20030213505, titled “Energy-Efficient
`Automatic Dishwashing Appliances,”
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`Patent Publication No. 20030213503, titled “Signal-based
`Electrochemical Methods for Automatic Dishwashing,”
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`Patent Publication No. 20050067300, titled “Electrolysis Device for
`Treating A Reservoir of Water,”
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`Patent Publication No. 20040231977, titled “Compositions, Devices
`and Methods for Stabilizing and Increasing the Efficacy of Halogen
`Dioxide,”
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`Patent Publication No. 20040149571, titled “Halogen Dioxide
`Generating System,” and
`Patent Publication No. 20030042134, titled “High Efficiency
`Electrolysis Cell for Generating Oxidants in Solutions.”
`I am the first named inventor of U.S. Patent Publication No.
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`20030042134, titled “High Efficiency Electrolysis Cell for Generating Oxidants in
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`Solutions” (“Tremblay”), Exhibit 1146. Tremblay discloses a method for killing
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`microorganisms in water. As water passes between electrodes, the microorganisms
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`are killed and the water is sterilized. Further, Tremblay teaches generating mixed
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`oxidants and that a higher concentration of oxidants provides even higher
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`disinfection and oxidation of numerous compounds. Tremblay teaches a cell for
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`electrolyzing an aqueous feed solution comprising water. The aqueous feed
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`solution passes in and out of the cell. Figure 4 shows a tubular housing having an
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`anode 21 and a cathode 22 contained in the housing.
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`anode
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`cathode
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`inlet
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`outlet
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`Ex. 1146, Fig. 4 (emphasis added). Tremblay discloses examples where the water
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`flow rate is less than 12 gallons per minute. In Example 1, Tremblay discloses a
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`flow rate of 300ml/minute (equal to 0.0793 gallons per minute). Id., ¶ [0088].
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`Tremblay teaches that the anode and cathode are in close proximity, “preferably
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`0.5 mm or less, more preferably 0.2 mm or less.” Id., ¶ [0001]. Tremblay teaches
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`that a preferred electrical current supply is a battery or set of batteries, and that the
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`batteries can have a nominal voltage potential of 1.5 volts, 3 volts, 4.5 volts, 6
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`volts, or any other voltage that meets the power requirements of the electrolysis
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`device. Id., ¶ [0069]. Tremblay discloses multiple examples where the power
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`source provides a voltage below 28.3 volts and an amperage below 13 amps. For
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`example, in Example 1, Tremblay discloses a voltage of 4.5 volts in combination
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`with a current of 0.43 amps. Id., ¶ [0088]. Thus, Tremblay discloses a tubular
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`water electrolysis emitter having an anode separated from a cathode by the claimed
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`critical distance in combination with the claimed voltage, amperage and flow rate.
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`I therefore have direct experience with the claimed features of the ʼ415 patent.
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`8.
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`In summary, I have extensive experience with electrolysis cell design,
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`including electrolysis cell design to electrolyze water. I had first-hand experience
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`with these technologies at and before the time of the application that resulted in the
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`ʼ415 patent was filed.
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`III. MATERIALS CONSIDERED
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`9.
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`In preparing this declaration, I have reviewed, among other things, the
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`following materials:
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`(a) The ʼ415 patent and its prosecution history (Ex. 1101, 1102);
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`(b) U.S. Patent No. 3,891,535 (“Wikey”) (Ex. 1112);
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`(c) Aquariums for Dummies, published in 1999 (“AFD”) (Ex. 1114);
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`(d) U.S. Patent No. 4,039,439 (“Clark”) (Ex. 1106);
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`(e) U.S. Patent No. 4,917,782 (“Davies”) (Ex. 1105);
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`(f) U.S. Patent No. 6,171,469 (“Hough”) (Ex. 1141);
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`(g) U.S. Patent No. 5,324,398 (“Erickson”) (Ex. 1107);
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`(h) U.S. Patent No. 5,439,576 (“Schoeberl”) (Ex. 1108);
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`(i) U.S. Patent No. 3,984,303 to Peters (“Peters”) (Ex. 1109);
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`(j) WENDT, H. and Kreysa, G. (1999), Electrochemical Engineering:
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`Science and Technology in Chemical and Other Industries, Springer-Verlag
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`Berlin Heidelberg, ISBN 3-540-64386-9 (hardcover) (“Wendt”) (Ex. 1117);
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`(k) HAN, M.Y., PARK, Y.H., and YU, T.J. (2002), Development of a
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`New Method of Measuring Bubble Size, Water Science and Technology:
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`Water Supply Vol 2 No 2 pp 77–83 (“Han”) (Ex. 1137),
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`(l) GLEMBOTSKY, V.A., MAMAKOV, A.A., SOROKINA, V.N.
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`(1973), Size of gas bubbles forming during electroflotation. Elektronnaya
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`Obrabotka Materialov 5, 66–68. 1973 (“Glembotsky”) (Ex. 1123, 1124);
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`(m) Burns, S.E., Yiacoumi, S. and Tsouris, C. (1997), Application of
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`Digital Image Analysis for Size Distribution Measurement of Microbubbles,
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`Imaging Technologies: Techniques and Civil Engineering Applications
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`Engineering Foundation, Davos, Switzerland, May 25-30, 1997 (“Burns”)
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`(Ex. 1131); and
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`(n) The Petition.
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`IV. DEFINITIONS AND STANDARDS
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`10.
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`I have been informed and understand that claims are to be given their
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`ordinary and customary meaning as understood by a person of ordinary skill in the
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`art (“POSITA”) at the time of the invention in light of the claims, the ’415 patent’s
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`specification, and the prosecution history.
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`11.
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`I have been informed that if the patent specification provides a
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`particular definition for a term used in the claims, or uses a term in a special way,
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`the claims will be construed in accordance with the special meaning given to the
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`term by the patent specification, even if that special meaning contradicts the
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`normal definition of the term.
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`12.
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`I have been informed and understand that a claim is invalid because of
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`anticipation when every element of the claim is described in a single prior art
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`reference, such that the elements are arranged as required by the claim. I have
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`been informed and understand the description of a claim element in a prior art
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`reference can be express or inherent. For a prior art reference to describe a claim
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`element inherently, the claim element must be necessarily present. Probabilities
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`are not sufficient to establish inherency.
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`13.
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`I have also been informed and understand that the subject matter of a
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`patent claim is obvious if the differences between the subject matter of the claim
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`and the prior art are such that the subject matter as a whole would have been
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`obvious to a POSITA at the time the patent application was filed. I have also been
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`informed that the framework for determining obviousness involves considering the
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`following factors: (i) the scope and content of the prior art; (ii) the differences
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`between the prior art and the claimed subject matter; (iii) the level of ordinary skill
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`in the art; and (iv) any objective evidence of non-obviousness. I understand that
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`the claimed subject matter would have been obvious to a POSITA, for example, it
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`results from the combination of known elements according to known methods to
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`yield predictable results, the simple substitution of one known element for another
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`to obtain predictable results, use of a known technique to improve similar devices
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`in the same way or applying a known technique to a known device ready for
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`improvement to yield predictable results. I have also been informed that the
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`analysis of obviousness may include recourse to logic, judgment, and common
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`sense available to a POSITA that does not necessarily require explication in any
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`reference.
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`14. Based on my experience in the field, a POSITA pertaining to the ʼ415
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`patent in the 2003 time frame would have been someone with a degree in
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`chemistry, chemical engineering, or a similar discipline and at least two years of
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`experience with electrolysis systems. Alternatively, a POSITA could have
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`equivalent experience in industry or research, such as designing, developing,
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`testing or implementing electrolysis systems. Also, as noted in the ʼ415 patent, a
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`POSITA “can readily fabricate any of the emitters shown in FIG. 4 or 5 or can
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`design other embodiments that will oxygenate flowing water.” Ex. 1101, 9:20-22.
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`15.
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`I have been informed that the earliest priority date for considering the
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`patentability of the claims of the ʼ415 patent is December 10, 2003. I have not
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`analyzed whether the ʼ415 patent is legally entitled to this filing date. I shall refer
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`to this time frame as the “relevant date” or the “relevant time frame.” Based on my
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`education and experience in the field of electrolytic cell designs, I believe I am
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`more than qualified to provide opinions about how one of ordinary skill in the art
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`in 2003 would have interpreted and understood the ʼ415 patent and the prior art
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`discussed below.
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`V. STATE OF THE ART
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`16. Methods for producing an oxygenated aqueous or water composition
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`using an electrolytic cell were well known in the art at the time of the ’415 patent’s
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`alleged invention. The ʼ415 patent admits that “[t]he production of oxygen and
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`hydrogen by the electrolysis of water is well known.” Ex 1101, 2:5-11. Further,
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`prior art references such as Wikey and Davies show it was well known to provide
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`an anode and cathode separated by the so-called “critical distance.” These
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`references also show it was well known to provide this anode and cathode
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`separation distance in combination with the claimed voltage, current and flow
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`rates. It was also well known to use electrolysis to increase oxygen content in
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`water as shown in Hough. Further, it was well known that electrolysis systems
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`produce very fine bubbles of oxygen in water with sizes less than 50 microns as
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`shown in Wendt, Han, Glembotsky and Burns.
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`VI. THE ’415 PATENT
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`17. The claims of the ’415 patent are directed to “a method for producing
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`an oxygenated aqueous composition” comprising “producing a suspension
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`comprising oxygen microbubbles and nanobubbles, the microbubbles and
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`nanobubbles having a diameter of less than 50 microns.” Ex. 1101, Claim 13. The
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`method includes “flowing water… through an electrolysis emitter comprising an
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`electrical power source electrically connected to an anode electrode and a cathode
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`electrode contained in a tubular housing… wherein: the anode electrode is
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`separated at a critical distance of 0.005 inches to 0.140 inches from the cathode,”
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`with “a flow rate no greater than 12 gallons per minute,” “a voltage no greater than
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`about 28.3 volts and an amperage no greater than about 13 amps.” Id. It was well
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`known to provide an anode and cathode separated by the “critical distance”
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`identified in the ’415 patent. It was also well known to provide this anode and
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`cathode separation distance in combination with the claimed voltage, ampere and
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`flow rates.
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`VII. CLAIM CONSTRUCTION
`A.
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`“Critical Distance”
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`18. Claim 13 recites an “anode separated at a critical distance from the
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`cathode such that the critical distance is from 0.005 inches to 0.140 inches.” The
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`’415 patent explicitly defines the term “critical distance” as “the distance
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`separating the anode and cathode at which evolved oxygen forms microbubbles
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`and nanobubbles.” Id. at 4:1-6. Accordingly, based on the explicit definition
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`provided by the ’415 patent, I understand the term “critical distance” means “the
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`distance separating the anode and cathode at which evolved oxygen forms
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`microbubbles and nanobubbles.”
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`B.
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`“Microbubble”
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`19. Claims 1, 13, 19-22 and 25 recite “microbubbles.” The ’415 patent
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`explicitly defines the term “microbubble as “a bubble with a diameter less than 50
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`microns.” Id. at 4:10-11. Accordingly, based on the explicit definition provided
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`by the ’415 patent, I understand the term “microbubble” means “a bubble with a
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`diameter less than 50 microns.”
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`C.
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`“Nanobubble”
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`20. Claim 13, 19-22 and 25 recite “nanobubbles.” The ’415 patent
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`explicitly defines the term “nanobubble as “a bubble with a diameter less than that
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`necessary to break the surface tension of water.” Id. at 4:12-13. Accordingly,
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`based on the explicit definition provided by the ’415 patent, I understand the term
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`“nanobubble” means “a bubble with a diameter less than that necessary to break
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`the surface tension of water.”
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`D.
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`“Supersaturated”
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`21. Claim 21 recites the term “supersaturate.” The ’415 patent explicitly
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`defines the term “supersaturated” as “oxygen at a higher concentration than normal
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`calculated oxygen solubility at a particular temperature and pressure.” Id. at 4:16-
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`21.
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`E. Other Teachings
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`22. The ʼ415 patent teaches a “critical distance” of separation between the
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`electrodes that produces microbubbles and nanobubbles. The abstract notes that,
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`“when the anode and cathode are separated by a critical distance, very small
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`microbubbles and nanobubbles of oxygen are generated.” Id., Abstract. The
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`patent further indicates, “[i]n order to form microbubbles and nanobubbles, the
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`anode and cathode are separated by a critical distance.” Id., 3:13-16. “The critical
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`distance ranges from 0.005 to 0.140 inches.” Id. The preferred critical distance is
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`from 0.045 to 0.060 inches.” Id.
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`23. The ʼ415 patent also explains, “the anode and cathode were set at
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`varying distances” and that at a “distance of 0.140 inches between the anode and
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`cathode, it was observed that the oxygen formed bubbles at the anode. Therefore,
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`the critical distance for microbubble and nanobubble formation was determined to
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`be between 0.005 inches and 0.140 inches.” Id., 4:45-46, 4:50-54.
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`24. The ʼ415 patent teaches the critical distance is the “special
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`dimensions” of the invention that produces microbubbles and nanobubbles:
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`In the special dimensions of the invention, as explained in more detail
`in the following examples, O2 forms bubbles which are too small to
`break the surface tension of the fluid. These bubbles remain
`suspended indefinitely in the fluid and, when allowed to build up,
`make the fluid opalescent or milky. Only after several hours do the
`bubbles begin to coalesce on the sides of the container and the water
`clears. During that time, the water is supersaturated with oxygen.
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`Id., 4:27-38.
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`25. Therefore, based on the teachings of the ’415 patent, a POSITA would
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`have understood that an anode and cathode separated by the critical distance
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`produces microbubbles and nanobubbles, and that those bubbles “remain
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`suspended indefinitely in the fluid,” “make the fluid opalescent or milky,” and
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`“supersaturate” the water. The patent specification discusses performing
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`electrolysis on water with different levels of conductivity. See Ex. 1101, 1:35-40
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`(ponds, lakes, marshes, reservoirs, and contaminated water); 8:11 (tap water). It
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`was well known to perform electrolysis on any form of water, and that water that
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`contains more dissolved solids is more conductive and would be suitable for low
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`voltage systems. Furthermore, it would have been obvious to a POSITA to
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`perform electrolysis using water containing varying amounts of dissolved solids
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`and therefore varying conductivity.
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`VIII. ANALYSIS OF PRIOR ART
`A. U.S. Patent No. 3,891,535 (“Wikey”)
`i. Overview of Wikey
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`26. Wikey discloses an electrolysis apparatus for electrolytically treating
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`the water in aquariums, fish tanks, or fishponds. Ex. 1112, Abstract, 1:23-25,
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`1:37-39, 1:67-67, 2:1 and 3:38-39. Wikey states that the apparatus acts to kill
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`bacteria, aerate and increase the circulation of the water thereby improving the
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`general environment of the aquarium. Id., Abstract.
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`27. Wikey teaches causing water to electrolyze and break into its
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`constituent gases, i.e., two parts hydrogen and one part oxygen. Id, 2:46-49.
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`Wikey reports that his cell produces a “plethora” of oxygen bubbles that are
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`extremely small. Id, 2:49-51, 3:18-21. A POSITA would have understood that
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`Wikey discloses a method for producing extremely small oxygen bubbles in water
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`and thus a method of producing an oxygenated aqueous composition.
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`28.
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`In Wikey, water flows through a tube 41 as shown in Figure 1 below.
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`Id., 3:10-11 and Fig. 3.
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`A POSITA would have understood that Wikey’s tube 41 is a tubular housing.
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`29. Moreover, with reference to Figure 1, Wikey teaches an electrode unit
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`13 contained in the tube 41. Id., 3:1-8. Wikey also provides a power supply 12
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`that feeds power to the electrode unit 13. The power supply 12 is shown in Figure
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`1 as a D.C. source, such as a battery 28. Id., Fig. 1 and 2:22-24. Electricity flows
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`from the power supply 12 to the electrodes 16, 17. Id., 2:9-11. A POSITA would
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`have understood that the electrode unit 13 is an electrolysis cell.
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`30. Also as shown in Figure 1, the electrode unit 13 comprises a plurality
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`of juxtaposed electrode plates 16, 17. Id., 2:1-8. The consecutive plates are
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`oppositely polarized; for example, when plate 16 is positively polarized, plate 17 is
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`negatively polarized. A POSITA would have understood that Wikey discloses an
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`electrical power source electrically connected to an anode electrode and a cathode
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`electrode.
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`31. Wikey’s tube 41 has an inlet (at the bottom 42), an outlet (at the
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`junction with tube 44), and a tubular flow axis extending from the inlet to the
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`outlet. Id., Fig. 3 and 3:10-18. Water flows in the inlet, along the electrolysis unit
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`13, and out the outlet. Id., 2:42-44. A POSITA would therefore have understood
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`that Wikey discloses a tubular housing where water flows along a tubular flow axis
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`from an inlet to an outlet while being in fluid connection with electrodes.
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`32. Water flows through tube 41 in Wikey. Id., 3:10-11 and Fig. 3. A
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`POSITA would have understood that Wikey discloses a method of flowing water
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`at a flow rate through an electrolysis emitter. Although Wikey does not mention a
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`particular flow rate, it was well understood that the arrangement of Wikey would
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`result in flow rates less than 12 gallons per minute.
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`33. Wikey states that an object of the invention is to provide low voltage,
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`low current water electrolysis. Id., at 1:40-43. Wikey teaches a 6 volt D.C. source
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`as the power source. Id., 2:39-41. In addition, Wikey teaches a preferred
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`amperage being ½ amp. Id., 2:44-46. However, Wikey also states that the
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`amperage depends on the size of the electrode plates and the conductivity of the
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`water in which the electrodes are placed. Id., 2:42-44. A POSITA therefore would
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`have understood that the Wikey system causes electricity to flow from a power
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`source to its electrodes and that a current of ½ amp in combination with a voltage
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`of 6 volts can be used. A POSITA also would have understood that the current can
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`be higher than ½ amp depending on the size of the electrode plates and the
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`conductivity of the water.
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`34. Wikey teaches that the electrode plates 16, 17 are separated by a
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`distance of 1/64 inch, i.e., about 0.016 inch. Id., 2:39-41. A POSITA would have
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`understood that Wikey discloses an anode electrode separated from the cathode
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`electrode by about 0.016 inch, which is in a range of the critical distance from
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`0.005 inches to 0.140 inches identified in the ’415 patent.
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`35. Additionally, a POSITA would have understood that since Wikey’s
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`electrodes are separated by the same distance the ’415 patent says is critical,
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`Wikey’s electrodes would produce microbubbles and nanobubbles having the same
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`size and properties as those disclosed in the ’415 patent. For example, Wikey’s
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`electrodes would produce bubbles having a bubble diameter of less than 50
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`microns or less than 0.0006 inches. Likewise, Wikey’s electrodes would produce
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`bubbles that are too small to break the surface tension of water, and therefore
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`remain suspended in water indefinitely, or at least for some period of time up to
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`several hours, during which time the water would be supersaturated with oxygen.
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`Regardless of the type of container the water is contained in, oxygen bubbles will
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`remain in water for some period of time.
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`36. Wikey’s apparatus is used in aquariums, fish tanks, or fishponds.
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`Id.,3:38-39. A POSITA would have understood that aquarium water, fish tank
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`water, and fishpond water contain dissolved solids. Wikey also indicates that the
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`water processed by the apparatus increases the oxygen in all levels of the tank and
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`contributes to the health of fish in aquariums. Id., 3:28-30. A POSITA would
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`have understood that the water would have had a conductivity resulting from the
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`presence of dissolved solids that would support plant or animal life. Further, a
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`POSITA would have understood that, as with any electrolytic water treatment
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`process, water temperature is a factor in the electrolytic process of Wikey’s
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`electrolysis apparatus. Wikey does not teach heating the water prior to delivering
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`it to the electrolytic cell. The water in Wikey therefore has a temperature no
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`greater than about ambient temperature at the inlet.
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`37. As noted above, Wikey includes a plurality of electrode plates 16, 17.
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`Id., 2:1-8 and Fig. 1. With reference to Figure 1, eight electrode plates of solid
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`design are shown. Accordingly, a POSITA would have understood that Wikey
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`discloses multiple anodes and cathodes of solid design.
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`38. With continued reference to Figure 1, the Wikey electrode plates 16,
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`17 are all mounted on an insulated rod 26 and separated from each other with
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`insulated washers 27, such as washer 27. Id., 2:18-20 and Fig. 1. In a preferred
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`embodiment, Wikey teaches that the washers are made from Teflon®. Id., 2:20-21.
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`A POSITA would have understood that the washers 27 maintain the separation of
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`electrodes, and that the washers are formed of nonconductive material since they
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`are formed of Teflon®, which is nonconductive.
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`ii. Faithful and Accurate Reproduction of Wikey Cell
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`39.
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`I was asked to faithfully and accurately reproduce the Wikey
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`electrolysis cell having the general design shown in Figure 1 (“reproduced Wikey
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`cell”).
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`8 electrode
`plates
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`insulated
`washers
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`insulated
`rod
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`40. The Wikey cell has eight (8) juxtaposed circular electrode plates 16,
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`17. Wikey does not provide a specific size or dimension for the electrode plates.
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`However, Wikey discloses the electrodes being platinum coated titanium plates.
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`Id.,2:49-50. Wikey also teaches that the electrode plates are separated by a
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`distance of 1/64 inch