Tennant Company v. Oxygenator Water
`Technologies, Inc., IPR2021-00625
`
`Patent Owner’s
`Hearing Demonstratives
`
`Carlson, Caspers, Vandenburgh, Lindquist & Schuman, P.A.
`Attorney-Client Privileged & Work Product
`
`1
`
`
`Technologies, Inc., IPR2021-00625
`
`Patent Owner’s
`Hearing Demonstratives
`
`Carlson, Caspers, Vandenburgh, Lindquist & Schuman, P.A.
`Attorney-Client Privileged & Work Product
`
`1
`
`
`
`RE45,415
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Paper 34 (“Response”) at 3-4.
`
`2
`
`
`
`RE45,415
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex.1101 at 11:20-45.
`
`3
`
`
`
`Ground 1:
`Anticipation Based on Wikey
`
`Carlson, Caspers, Vandenburgh, Lindquist & Schuman, P.A.
`Attorney-Client Privileged & Work Product
`
`4
`
`
`
`Wikey
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 1112 at Fig. 3.
`
`5
`
`
`
`Wikey Outline
`
` “Flowing Water . . . Through An Electrolysis Emitter”
`(Response at 5-10, 18-19; Sur-Reply at 8-10.)
`
` Microbubbles and Nanobubbles
` No Evidence Wikey Creates Nanobubbles (Applies Equally to
`Davies) (Response at 20-27; Paper 45 (“Sur-Reply”) at 1-8.)
` Petitioner’s Reproduction of Wikey Was Not Faithful (Response at
`27-30; Sur-Reply at 10-13.)
` Dependent Claims 18, 21, and 25 (Response at 30-32; Sur-Reply at 13-
`15.)
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`6
`
`
`
`Construction of Flowing Water Phrase
`
`Claim 13:
`“flowing water at a flow rate … through an electrolysis
`emitter”
`
`‘415 Patent at Claim 13
`
`District Court’s Construction:
`“moving water through an electrolysis emitter by means
`other than electrolysis”
`
`Ex. 2111 at 30, 34
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 5-10.
`
`7
`
`
`
`District Court Analysis Should Be Given Weight
`
`District Court Opinion Analyzes:
` Claim Language – Ex. 2111 at 31.
` Specification – Ex. 2111 at 33-34.
` Prosecution History – Ex. 2111 at 32.
`
`Record in Court was the same as in IPR
`- Paper 34 at 9.
`
`Need to construe phrase is the same
`- Paper 34 at 10.
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 5-10.
`
`8
`
`
`
`Claim Language
`
` “flowing water through
`the emitter” is recited
`as a separate step from
`“producing the
`composition… in the
`water”
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 7; Ex.1101 at 11:20-45.
`
`9
`
`
`
`Specification Describes Two Categories of
`Processes
`
`Ex. 1101 at Fig. 2A
`
`Ex. 1101 at Figs. 7A-7B
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 3-4.
`
`10
`
`
`
`Specification Distinguishes Flowing Water
`Processes
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`11
`
`Response at 4; Ex.1101 at 3:25-36.
`
`11
`
`
`
`Flowing vs. “At Rest” Water is Independent of
`Electrolysis
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`12
`
`Response at 3-4; Ex.1101 at 3:25-36.
`
`12
`
`
`
`Prosecution History Indicates “Flowing Water”
`Recitation Excludes Static Water Processes
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 2118 at JA1143; Response at 9.
`
`13
`
`
`
`Prosecution History Indicates “Flowing Water”
`Recitation Excludes Static Water Processes
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 2118 at JA1132-35; Response at 9.
`
`14
`
`
`
`Microbubbles and Nanobubbles:
`Inherency Standard
`
` “Inherency may not be established by probabilities or
`possibilities. The mere fact that a certain thing may result
`from a given set of circumstances is not sufficient.”
`Cont’l Can Co. v. Monsanto Co., 948 F.2d 1264, 1269 (Fed. Cir. 1991); see also
`Transclean Corp. v. Bridgewood Servs., 290 F.3d 1364, 1373 (Fed. Cir. 2002)
`
`
`
` “[The patent challenger] urges us to accept the proposition that if
`a prior art reference discloses the same structure as claimed by a
`patent, the resulting property . . . should be assumed. We decline
`to adopt this approach because the proposition is not in
`accordance with our cases on inherency.”
`Crown Operations Int’l, Ltd. v. Solutia Inc., 289 F.3d 1367, 1377 (Fed. Cir. 2002)
`
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 20; Sur-Reply at 8.
`
`15
`
`
`
`No Evidence of Nanobubbles: Tremblay’s Test
`
`0.1
`
`Size of Bubbles Dr. Tremblay Testified
`Meet Definition of Nanobubbles
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 23; Ex. 1103, ¶64.
`
`16
`
`
`
`No Evidence of Nanobubbles:
`Tremblay’s Admission
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 23; Ex. 2172 at 69-70.
`
`17
`
`
`
`No Evidence of Nanobubbles:
`Petitioner Knew How to Test for Nanobubbles
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 24-25; Sur-Reply at 2; Ex. 2195.
`
`18
`
`
`
`Nanobubbles—Petitioner’s Excuse 1:
`Burden Shifting
`
`
`
`
` Burden Shifting Does Not Apply
`Fan Duel, Inc. v. Interactive Games LLC, 966 F.3d 1334, 1341-42 (Fed. Cir. 2020)
`Tietex Int’l, Ltd. v. Precision Fabrics Group, Inc., IPR2014-01248, Paper 39 at 10-12
`(P.T.A.B. January 27, 2016)
`Dynamic Drinkware, LLC v. National Graphics, Inc., 800 F.3d 1375, 1378-79 (Fed. Cir.
`2015)
`In re Magnum Oil Tools Int'l, Ltd., 829 F.3d 1364, 1375 (Fed. Cir. 2016)
`
`
`
`
`
` Institution ≠ Prima Facie Case
`Fan Duel, Inc., 966 F.3d at 1340-41.
`
`
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Sur-Reply at 3-5.
`
`19
`
`
`
`Nanobubbles—Petitioner’s Excuse 2:
`Test in Specification
`
`Example Petitioner
`Relies On
`
`Senkiw’s Nanobubbles
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 1101 at 5:40-67.
`
`Ex. 1101 at 4:12-37.
`Sur-Reply at 5-6.
`
`20
`
`
`
`Nanobubbles—Petitioner’s Excuse 3:
`New Proxy Tests Added in Reply
`
`Proxy Test 1: Dissolved Oxygen/Supersaturation
`
`Based on flawed logic
`Specification Says:
` Nanobubbles Build Up → Milky
` Milky → Supersaturation
`This Does Not Mean:
` Supersaturation → Nanobubbles
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Sur-Reply at 6-7; Ex. 1101 at 4:12-37.
`
`21
`
`
`
`Nanobubbles—Petitioner’s Excuse 3:
`New Proxy Tests Added in Reply
`
`Proxy Test 1: Dissolved Oxygen /Supersaturation
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 25-26; Ex. 2172 (Tremblay Dep.) at 76-78.
`
`22
`
`
`
`Nanobubbles—Petitioner’s Excuse 3:
`New Proxy Tests Added in Reply
`
`Proxy Test 2 (Wikey Only): Bubbles Survived to End of Tubes
`
` Bubbles surviving seconds ≠ “bubble with a diameter
`less than necessary to break the surface tension of
`water”
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 2179 at 23; Sur-Reply at 7.
`
`23
`
`
`
`Nanobubbles—Petitioner’s Excuse 3:
`New Proxy Tests Added in Reply
`
` Dr. Tremblay admitted none of his tests showed
`presence of nanobubbles
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 2172 70:1-4; Sur-Reply at 7.
`
`24
`
`
`
`Nanobubbles—Petitioner’s Excuse 4:
`Specification’s Alleged Admissions
`
` Nothing in the specification suggests microbubbles
`or nanobubbles are inherent
`
` “Critical distance” defined functionally, so the
`specifics of what distance will create nanobubbles
`depends on other factors
`
`Ex. 1001 3:13-16, 4:1-3
` Petitioner’s witnesses and prosecution history show
`factors other than critical distance affect bubble size.
`See Response at 22.
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 20-22.
`
`25
`
`
`
`Nanobubbles—Petitioner’s Excuse 4:
`Specification’s Alleged Admissions
`
` Petitioner’s expert agrees bubble size is not inherent
`result of electrode gap
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 20-22; Ex. 2172 at 30-31.
`
`26
`
`
`
`Nanobubbles—Petitioner’s Excuse 4:
`Specification’s Alleged Admissions
`
` Prosecution History: many things affect bubble
`formation
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`27
`
`Ex. 1102 at 169; Response at 22.
`
`27
`
`
`
`Nanobubbles—Petitioner’s Excuse 4:
`Specification’s Alleged Admissions
`
` Petitioner’s argument that meeting structural
`limitations of claims is sufficient is not supported by
`the specification.
`
` Argument was directly rejected by Federal Circuit:
` “[The patent challenger] urges us to accept the proposition that if
`a prior art reference discloses the same structure as claimed by a
`patent, the resulting property . . . should be assumed. We decline
`to adopt this approach because the proposition is not in
`accordance with our cases on inherency.”
`− Crown Operations Int’l, Ltd. v. Solutia Inc., 289 F.3d 1367, 1377 (Fed. Cir.
`2002).
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Sur-reply at 7-8.
`
`28
`
`
`
`Petitioner’s Reproduction of Wikey Not Faithful:
`Opposite Electrode Orientation
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 27-28; Sur-reply at 11-12.
`
`29
`
`
`
`Petitioner’s Reproduction of Wikey Not Faithful:
`Opposite Electrode Orientation
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Sur-reply at 12; Ex. 2172 at 29.
`
`30
`
`
`
`Petitioner’s Reproduction of Wikey Not Faithful:
`Opposite Electrode Orientation
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Paper 1 at 45; Sur-reply at 12.
`
`31
`
`
`
`Petitioner’s Reproduction of Wikey Not Faithful:
`Current 10x Too Large
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 1112 at 2:42-46; Ex. 2179 at 23; Response at 28.
`
`32
`
`
`
`Petitioner’s Reproduction of Wikey Not Faithful:
`Current 10x Too Large
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 2172 at 147-148; Response at 28.
`
`33
`
`
`
`Petitioner’s Reproduction of Wikey Not Faithful:
`Current 10x Too Large
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 2172 at 31-32; Response at 28.
`
`34
`
`
`
`Dependent Claim 18
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 30-31, Sur-reply at 13-14.
`35
`
`
`
`Dependent Claim 18
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 2111 at 49; Response at 11-12.
`
`36
`
`
`
`Dependent Claim 21
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 1101 at 4:16-18, 12:26-27; Response at 31-32; Sur-reply at 14-15.
`
`37
`
`
`
`Dependent Claim 21
`
` Dr. Tremblay: Bubbles ≠ Supersaturation
`
` Specification does not say it is inherent
`
` Above identified flaws in Petitioner’s Wikey testing prevent
`it from establishing Wikey necessarily and inevitably
`supersaturate
`
` Additionally, high dissolved oxygen content in Petitioner’s
`small container not representative of larger Wikey fish
`tanks/ponds
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 31-32, Sur-reply at 14-15.
`
`38
`
`
`
`Dependent Claim 21
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 1103 at ¶45; Response at 31-32; Sur-reply at 14-15.
`
`39
`
`
`
`Dependent Claim 25
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 32.
`
`40
`
`
`
`Ground 7:
`Anticipation Based on Davies
`
`Carlson, Caspers, Vandenburgh, Lindquist & Schuman, P.A.
`Attorney-Client Privileged & Work Product
`
`41
`
`
`
`Davies
`
`Serpentine
`
`Straight Through
`
`‘
`
`‘
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 33; Ex. 1105 at Figs. 2, 11.
`
`42
`
`
`
`Davies: Not Meant to Create Bubbles
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 2172 at 100-102; Response at 38-39.
`
`43
`
`
`
`Davies Outline
`
` Microbubbles and Nanobubbles
` No evidence Davies creates nanobubbles (see slides 15-28 supra) (Response at 39,
`47; Sur-Reply at 1-8.)
` Davies did not Disclose Petitioner’s Creations (Response at 39-49; Sur-Reply at 18-21.)
` Both Creations Have Independent Problems
`
` Davies does not teach electrodes separated by “0.005 inches to 0.140
`inches” (Response at 34-36, 47; Sur-Reply at 15-17.)
`
` Davies does not teach an Amperage “No Greater than About 13
`Amps” (Response at 36-38, 47; Sur-Reply at 17-18.)
`
` Davies Straight Through Embodiment Does Not teach “Flow Rate No
`Greater than 12 Gallons Per Minute” (Response at 46-47, Sur-Reply at 20-21.)
`
` Dependent Claims 18, 21, 22 and 25 (Response at 49-52; Sur-Reply at 21-22.)
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`44
`
`
`
`No Evidence Davies Creates Nanobubbles
`
` See Slides 15-28 supra
`
` Petitioner failed to test for nanobubbles
`
` Petitioner’s excuses fail
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`45
`
`
`
`Davies Did Not Disclose Petitioner’s Creations
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 2172 at 86-87; Response at 39-42.
`
`46
`
`
`
`Davies Did Not Disclose Petitioner’s Creations
`
`Variable
`Electrode
`dimensions
`
`Davies’ Disclosure
`“For most purposes the plate width should be 3 to
`5 inches” and the length of the plate is preferably
`“in the range of 5 to 10 inches” (Ex. 1105 at 3:43-
`59)
`
`Tremblay’s Choice
`3” x 5”
`
`Electrode
`gap
`Voltage
`
`From one-eighth to one-quarter inch (id.)
`
`“[A] low voltage such as 12V or 24V, depending
`on the particular type of installation for which the
`clarifier is to be used” (id. at 8:68-9:9)
`
`One-eighth inch (0.125
`inches)
`12V
`
`Current
`
`No guidance
`
`10.2 amps (Operation 3)
`8.8 amps (Operation 4)
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 40-41.
`
`47
`
`
`
`Davies Did Not Disclose Petitioner’s Creations:
`The Variables Matter
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 2172 at 24; Response at 41-42.
`
`48
`
`
`
`Davies Does Not Disclose Petitioner’s Creations:
`Federal Circuit Law – No Anticipation
`
`Galderma Labs., L.P. v. Teva Pharms. USA, Inc., 799 Fed. Appx. 838, 846 (Fed. Cir. 2020)
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 43-44.
`
`49
`
`
`
`Serpentine Creation:
`What are the particles?
`
` Straight Through Creation: 1400 counts
`
` Wikey Creation: 250 Counts
`
` Serpentine Creation: 40 counts
`
` No control, so no evidence 40 counts weren’t in the
`water without electrolysis
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 45-46.
`
`50
`
`
`
`Straight Through Creation:
`Tested the Wrong Flow Rate
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 46.
`
`51
`
`
`
`Straight Through Creation:
`Tested the Wrong Flow Rate
`
` Dr. White explains that Davies suggests straight
`through uses higher flow rate than serpentine. Ex.
`2116 at ¶¶ 65-66.
`
` Petitioner’s expert Dr. Tremblay agrees: Ex. 2172 at
`105:16-107:20.
`
` Nevertheless, Petitioner tested straight through at
`same or lower flow rates than serpentine
`
` Evidence suggests higher flow rates yields fewer
`bubbles
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 47-48; Sur-Reply at 20-21.
`
`52
`
`
`
`Davies Does Not Teach Electrodes Separated By
`“0.005 inches to 0.140 inches”
`
`Claimed Spacing v. Davies
`
`415 Patent, Claim 13
`
`Davies
`
`0
`
`0.05
`
`0.1
`
`0.15
`
`0.2
`
`0.25
`
`0.3
`
`Atofina v Great Lakes
`
`Prior Art
`
`Claim
`
`120
`
`170
`
`220
`
`320
`270
`Temperature (C)
`
`370
`
`420
`
`470
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 34-36; Sur-Reply at 15-17.
`
`53
`
`
`
`Davies Does Not Teach Electrodes Separated By
`“0.005 inches to 0.140 inches”
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 1105 at 3:43-49; Sur-Reply at 17.
`
`54
`
`
`
`Davies Does Not Teach Electrodes Separated By
`“0.005 inches to 0.140 inches”
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 1103 at ¶84; Sur-Reply at 16.
`
`55
`
`
`
`Davies Does Not Teach Amperage “No Greater
`than About 13 Amps”
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 2179 at 9, 17; Response at 36-38.
`
`56
`
`
`
`Davies Does Not Teach Amperage “No Greater
`than About 13 Amps”
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 2172 at 98-99; Response at 37-38.
`
`57
`
`
`
`Straight Through Disclosure:
`Does Not Disclose Flow Rate Less Than 12 gpm
`
` Slides 51-52 supra.
`
` Response at 46-47.
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`58
`
`
`
`Dependent Claim 18
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 49, Sur-reply at 21.
`
`59
`
`
`
`Dependent Claim 18
`
` See slide 36 supra.
`
` Davies straight through embodiment used in pools and
`hot tubs, no temperature disclosed. Response at 49.
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 49, Sur-reply at 21.
`
`60
`
`
`
`Dependent Claim 21
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 1101 at 4:16-18, 12:26-27; Response at 49, Sur-reply at 21-22.
`
`61
`
`
`
`Dependent Claim 21
`
` Dr. Tremblay: Bubbles ≠ Supersaturation
`
` Specification does not say it is inherent
`
` Above identified flaws in Petitioner’s Davies
`testing prevent it from establishing Davies
`necessarily and inevitably supersaturates
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 49; Sur-reply at 21-22.
`
`62
`
`
`
`Dependent Claim 22
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 50-52
`
`63
`
`
`
`Dependent Claim 22
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 1103 at ¶131; Response at 51.
`
`64
`
`
`
`Dependent Claim 25
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 32.
`
`65
`
`
`
`Obviousness
`
`Grounds 2-6 and 7-24
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`66
`
`
`
`Obviousness Outline
`
` Global Failures
` No Prima Facie Case (Response at 53-55; Sur-Reply at 22-23.)
` No Cure for Lack of Microbubbles and Nanobubbles (Response at 56-57, 61-62; Sur-Reply
`at 23-34.)
` Unrebutted Objective Indicia of Non-Obviousness (Response at 64-68; Sur-Reply at 24-25.)
` Failures of Specific Combinations
` Wikey + AFD (Response at 55-57; Sur-Reply at 25-26.)
` Wikey + Clark (Response at 57-59; Sur-Reply at 26-27.)
` Davies + Hough (Response at 59-60; Sur-Reply at 27.)
` Davies + Erickson (Response at 60-61; Sur-Reply at 27.)
` Davies + Scheoberl (Response at 62-63; Sur-Reply at 27.)
` Davies + Peter (Response at 63-64; Sur-Reply at 28.)
` Wikey/Davies + General Knowledge/Treatises (Response at 56-57, 61-62; Sur-Reply at 23-34.)
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`67
`
`
`
`No Prima Facie Case
`
`Insufficient Rationale for Combining
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Paper 9 at 27; Response at 53-54.
`
`68
`
`
`
`No Prima Facie Case
`
`Insufficient Explanation of Combination
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Paper 9 at 27; Response at 54-55.
`
`69
`
`
`
`New Argument is not Allowed
`
`“Petitioner may not submit new evidence or argument in
`reply that it could have presented earlier, e.g., to make
`out a prima facie case of unpatentability.”
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Consolidated Trial Practice Guide at 73; Sur-Reply at 22.
`
`70
`
`
`
`No Cure for Lack of Microbubbles &
`Nanobubbles
`
`None of the References Teach or Suggest Nanobubbles
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Paper 1 at 40-41; Sur-Reply at 24.
`
`71
`
`
`
`No Cure for Lack of Microbubbles &
`Nanobubbles
`
`None of the References Teach or Suggest Nanobubbles
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Paper 1 at 42-43; Sur-Reply at 24.
`
`72
`
`
`
`No Cure for Lack of Microbubbles &
`Nanobubbles
`
`Petitioner Did Not Propose Any Modifications to
`Wikey/Davies to Create Microbubbles and Nanobubbles
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Reply at 15; Sur-Reply at 23.
`
`73
`
`
`
`Objective Evidence of Non-Obviousness
`
`DEMONSTRATIVE -NOT EVIDENCE – PROTECTIVE ORDER MATERIAL
`
`Ex. 2176 at 52-53; Response at 66.
`
`74
`
`
`
`Objective Evidence of Non-Obviousness
`
`DEMONSTRATIVE -NOT EVIDENCE – PROTECTIVE ORDER MATERIAL
`
`Ex. 2176 at 69-79; Response at 66.
`
`75
`
`
`
`Objective Evidence of Non-Obviousness
`
`Petitioner’s Product Matches Features in Patent
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Response at 67.
`
`76
`
`
`
`Wikey + AFD
`
`Petition Relied on AFD for Flow Rate Only
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Petition at 40; Response at 55-56.
`
`77
`
`
`
`Wikey + AFD
`
`Petitioner’s New Argument in Reply
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Paper 42 (“Reply”) at 13; Sur-Reply at 25-26.
`
`78
`
`
`
`Wikey + AFD
`
`No Support for New Argument in Expert Declaration
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 1103 at ¶182; Sur-Reply at 25-26.
`
`79
`
`
`
`Wikey + AFD
`
`Wikey Teaches Away from Newly Proposed Rationale
`for Combining
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 1112 at 1:18-22, 1:37-39; Response at 55; Sur-Reply at 25.
`
`80
`
`
`
`Wikey + Clark
`
`Only Asserted Against Claims 26 and 27
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Petition at 44; Response at 57.
`
`81
`
`
`
`Wikey + Clark
`
`Mere Similarity of Field is an Insufficient Rationale for
`Combining
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Petition at 45-46; Response at 57-58.
`
`82
`
`
`
`Wikey + Clark
`
`Electrodes from Clark Create Bubbles Larger than 100
`Microns
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 1106 at 5:33-53; Response at 58.
`
`83
`
`
`
`Davies + Hough
`
`Does Not Remedy Missing Elements of Davies
`Identified re: Ground 7 (anticipation)
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Sur-Reply at 27.
`
`84
`
`
`
`Davies + Hough
`
`Mere Similarity of Field is an Insufficient Rationale for
`Combining
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Petition at 71; Response at 59.
`
`85
`
`
`
`Davies + Hough
`
`No Explanation of What Would be Modified
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Reply at 22; Response at 60.
`
`86
`
`
`
`Davies + Erickson
`
`Mere Similarity of Field is an Insufficient Rationale for
`Combining
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Petition at 73; Response at 60.
`
`87
`
`
`
`Davies + Schoeberl
`
`Only Asserted Against Claim 24
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Petition at 75; Response at 62.
`
`88
`
`
`
`Davies + Schoeberl
`
`Schoeberl Teaches Away from Creating Microbubbles
`and Nanobubbles
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 1108 at 1:44-49; Response at 63.
`
`89
`
`
`
`Davies + Peter
`
`Only Asserted Against Claims 26 and 27
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Petition at 79; Response at 63.
`
`90
`
`
`
`Davies + Peter
`
`Significantly Different Structures and Objectives
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`Ex. 1109 at FIG. 2; Response at 63.
`
`91
`
`
`
`Wikey/Davies + General Knowledge/Treatises
`
`None of the References Teach or Suggest Nanobubbles
`
`See, Slides 70-71 Supra.
`
`Petitioner Did Not Propose Any Modifications to
`Wikey/Davies to Create Microbubbles and Nanobubbles
`
`See, Slide 72 Supra.
`
`Mere Existence of Microbubbles Insufficient to Prove
`They are Produced by Wikey/Davies
`
`Response at 57.
`
`Nothing Suggests Microbubbles are Always Produced
`
`Sur-Reply at 24.
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`92
`
`
`
`END
`
`END
`
`
`
`DEMONSTRATIVE EXHIBIT-NOT EVIDENCE
`
`93
`
`
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