throbber
CASE 0:20-cv-00358-ECT-HB Doc. 88 Filed 06/10/21 Page 1 of 22
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MINNESOTA
`
`OXYGENATOR WATER
`TECHNOLOGIES, INC.
`
`Plaintiff,
`
`v.
`
`Civil Action No. 0:20-cv-00358
`
`TENNANT COMPANY
`
`Jury Trial Demanded
`
`Defendant.
`
`EXPERT DECLARATION OF RALPH E. WHITE
`
`I, Ralph E. White, declare as follows:
`
`I.
`
`INTRODUCTION
`
`1.
`
`The following report contains my opinions and bases concerning certain
`
`issues in the present Investigation. I am over the age of twenty one (21) and am
`
`competent to provide this report. I am a citizen of the United States. I reside in the State
`
`of South Carolina and maintain an office located at the University of South Carolina,
`
`Columbia, South Carolina, 29208.
`
`2.
`
`I am a Professor of Chemical Engineering in the Department of Chemical
`
`Engineering at the University of South Carolina.
`
`3.
`
`I have been retained by Carlson Caspers on behalf of Oxygenator Water
`
`Technologies, Inc (OWT) in the above-captioned matter as an independent technical
`
`expert. I have been asked by counsel for OWT to review U.S. Patent Nos. RE45,415,
`
`1
`
`

`

`CASE 0:20-cv-00358-ECT-HB Doc. 88 Filed 06/10/21 Page 2 of 22
`
`RE47,092, andRE47,665 (respectively "the '415 patent", "the '092 patent", and "the
`
`'665 patent", collectively, "the Patents").
`
`II.
`
`QUALIFICATIONS, EXPERIENCE, AND PUBLICATIONS
`
`4.
`
`I have almost fifty years of experience in the field of chemical engineering
`
`with research interests targeted to electrochemical systems, mathematical modeling,
`
`electrolysis, batteries, corrosion, and electrodeposition.
`
`5.
`
`In 1971, I graduated with a B.S. in Engineering from the University of
`
`South Carolina. In 1973, I obtained my M.S. in Chemical Engineering from the
`
`University of California at Berkeley. In 1977, I obtained my Ph.D. in Chemical
`
`Engineering from the University of California at Berkeley.
`
`6.
`
`I worked as a Chemical Engineer for Ethyl Corporation in the summer of
`
`1970, as a Nuclear Engineer for Mare Island Naval Shipyard in the summer of 1971, and
`
`as a Research Engineer for Chevron in the summer of 1972. Since obtaining my Ph.D., I
`
`have worked as a consultant for over 15 companies, including Dow Chemical, Boeing,
`
`Celgard, and Energizer.
`
`7.
`
`I worked at Texas A&M University from 1977 through 1993, during which
`
`time I held the positions of Assistant Professor, Associate Professor, and Professor,
`
`before serving as the Associate Head of the Department of Chemical Engineering. I then
`
`moved to the University of South Carolina, where I have been since 1993. I have held
`
`the roles of Chair of the Department of Chemical Engineering, Director of the Center for
`
`Electrochemical Engineering, and Dean of the College of Engineering and Computing. I
`
`am currently a Professor and Distinguished Scientist at the University of South Carolina.
`
`2
`
`

`

`CASE 0:20-cv-00358-ECT-HB Doc. 88 Filed 06/10/21 Page 3 of 22
`
`8.
`
`I have received numerous honors and awards throughout my career,
`
`including the Battery Division Research A ward from The Electrochemical Society, Inc.
`
`in 1991, the Best Paper of the Conference at the Fifth Annual Battery Conference on
`
`Applications and Advances in 1990, the E. H. Brockett Professor of Chemical
`
`Engineering honor in 1990, the Scientific Achievement Award by the American
`
`Electroplaters and Surface Finishers Society in 1999, and several major awards from The
`
`Electrochemical Society (Olin Palladium, Vittorio de Nora, and Linford).
`
`9.
`
`I am a member of several societies including the American Institute of
`
`Chemical Engineers, the National Society of Professional Engineers, The
`
`Electrochemical Society, and the National Association for the Advancement of Science.
`
`10.
`
`I worked for Dow Chemical as a consultant from 1979 to 1993 on the
`
`electrolysis of brine to produce chlorine gas, hydrogen gas, and aqueous sodium
`
`hydroxide. This work resulted in several publications on this subject. I also served as a
`
`consultant to other companies for the electrolysis of water to produce hydrogen and
`
`oxygen gases. This consulting work was not related to any litigation.
`
`11. A detailed description of my professional qualifications, including
`
`publications and a listing of my specialties/expertise and professional activities, is
`
`contained in my curriculum vitae which is attached as Exhibit A.
`
`III. COMPENSATION
`
`12.
`
`I am being compensated on an hourly basis at the rate of $400/hour for my
`
`work performed in connection with this proceeding. I have received no additional
`
`compensation for my work in this case, and my compensation does not depend upon the
`
`3
`
`

`

`CASE 0:20-cv-00358-ECT-HB Doc. 88 Filed 06/10/21 Page 4 of 22
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`contents of this report, any testimony I may provide, or the ultimate outcome of this
`
`proceeding.
`
`IV.
`
`PRIOR TESTIMONY
`
`13. During September and December 2020, I served as a consultant and expert
`
`witness in the matter of: CERTAIN LITHIUM-ION BATTERY CELLS, BATTERY
`
`MODULES, BATTERY PACKS, COMPONENTS THEREOF, AND PRODUCTS
`
`CONTAINING THE SAME, Investigation No. 337-TA-1181, UNITED STATES
`
`INTERNATIONAL TRADE COMMISSION and provided testimony at a deposition and
`
`a hearing.
`
`14.
`
`I served as an expert witness in connection with the following two inter
`
`partes review petitions filed on July 6, 2020 with the United States Patent and Trademark
`
`Office: SKI Innovation Co., Ltd. v. LG Chem, Ltd., Case Nos. IPR2020-01239 and
`
`IPR2020-01240. I submitted a declaration in support of each of the two petitions.
`
`15.
`
`From May 2018 to March 2019, I served as a consultant and expert witness
`
`in Multi Service Technology Solutions Inc. v. Lifeshield LLC, U.S. District Court for the
`
`Western District of Missouri, Case No. 17-cv-0696-HFS, which involved a dispute
`
`involving lithium-ion battery defects in a tablet computer. I submitted an expert report
`
`and provided testimony at a deposition.
`
`V. MATERIALS REVIEWED
`
`16.
`
`In connection with submitting this declaration, in addition to my general
`
`experience, I considered the following materials:
`
`• U.S. Patent No. RE45,415
`
`4
`
`

`

`CASE 0:20-cv-00358-ECT-HB Doc. 88 Filed 06/10/21 Page 5 of 22
`
`• U.S. Patent No. RE47,092
`
`• U.S. Patent No. RE47,665
`
`• U.S. Patent No. 6,689,262
`
`• U.S. Patent No. 7,369,441
`
`• U.S. Patent No. 7,670,495
`
`• The file histories for the above identified patents
`
`•
`
`Investigation of electrical conductivity of different water liquids
`and electrolyte solutions, H. Golnabi, M.R. Matloob, M. Bahar,
`M. Sharifan (OWTOO 18617)
`
`• What is TDS in Water & Why Should You Measure It? John
`Woodard (OWT0081879)
`
`• Analysis of Water Quality for Livestock, Clell Bagley, Janis
`Kotuby-Amacher, Kitt Farrell-Poe (OWT0081896)
`
`• The New IEEE Standard Dictionary of Electrical and Electronics
`Terms, Page 995
`
`• U.S. Patent No. 8,025,787
`
`• Tennant's IPR Petitions and the supporting declarations of Dr.
`Mario Tremblay
`
`• U.S. Patent No. 6,251,259
`
`• An Experimental Study on the Effect of Electrolytic
`Concentration on the Rate of Hydrogen Production
`(OWTOOl 7879)
`
`• Electrical Conductivity Protocol (A WP_ OWTOOOOO 1)
`
`• Water Cell Functionality (ASP _OWT000015)
`
`• Flow Chart (TC00033231)
`
`5
`
`

`

`CASE 0:20-cv-00358-ECT-HB Doc. 88 Filed 06/10/21 Page 6 of 22
`
`• Other materials cited in this declaration.
`
`VI.
`
`RELEVANT LEGAL PRINCIPLES
`
`1 7.
`
`I have been asked to offer my opinion on the meaning of certain claim
`
`terms in dispute in the Patents.
`
`18.
`
`I have been informed that the claim terms should be construed as they
`
`would have been understood by one skilled in the art at the time of the invention who is
`
`deemed to have read the intrinsic record. For the purpose of this declaration, I will
`
`assume that the applicable date of the invention for the Patents is sometime between
`
`February 2002 ~nd December 2003. My testimony about the below claim terms would
`
`not change ifthe date of invention was at the beginning or end of this two year time
`
`period. To be clear, I offer no opinion about what date the Patents are entitled to for their
`
`date of invention.
`
`19.
`
`I have been informed that the proper context for construing the meaning of
`
`claim terms is the language of claims, the disclosure in the patent, and pertinent
`
`statements in the relevant prosecution history. I understand that in construing claim
`
`terms, the most important evidence is intrinsic, which includes the claims themselves, the
`
`written description of the patent, and the prosecution history.
`
`VII. BACKGROUND OF PATENT SPECIFICATION
`
`20.
`
`The Patents have nearly identical written descriptions. 1 They describe
`
`novel techniques for creating micro and nanobubbles of oxygen in water through the
`
`1 If I cite a particular portion of a patent without specifically identifying which patent I
`am citing, I am citing the '415 patent.
`
`6
`
`

`

`CASE 0:20-cv-00358-ECT-HB Doc. 88 Filed 06/10/21 Page 7 of 22
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`electrolysis of water, which means the production of oxygen and hydrogen from water
`
`Electrolysis of water is done by placing oppositely charged electrodes in water to produce
`
`an electric current through the water from the Anode to the Cathode, which breaks the
`
`chemical bonds between the hydrogen and oxygen atoms in water thereby forming
`
`oxygen at the Anode and hydrogen at the Cathode as shown in Fig. 1 below.
`
`Anode
`
`Cathode
`
`(Fig. 1 (annotation added).)
`
`21.
`
`The Patents describe efficient devices that can be used to conduct
`
`electrolysis of water in a way that creates microbubbles and nano bubbles of oxygen in
`
`water. (Abstract; 2:64-3:42.) These extremely small oxygen bubbles are valuable
`
`because they "remain in suspension, forming a solution supersaturated in oxygen."
`
`(Abstract.) The devices the Patents disclose fall into two general categories that are
`
`useful in different applications.
`
`22.
`
`First, the Patents discloses a "button" emitter that can be set in water that
`
`houses live animals such as fish:
`
`7
`
`

`

`CASE 0:20-cv-00358-ECT-HB Doc. 88 Filed 06/10/21 Page 8 of 22
`
`.---
`
`1
`
`(Fig. 2A; 4:42-45 ("The first objective of this invention was to make an oxygen emitter
`
`with low power demands, low voltage and low current for use with live animals. For that
`
`reason, a small button emitter was devised.").) The Patents disclose that exemplary uses
`
`for this button category of emitters include aquariums and bait buckets (5:24-25)),
`
`hydroponic cultures (7:48-54), and containers of water that are later used to water plants
`
`(8:20-24).
`
`23.
`
`Second, the Patents disclose "a flow-through emitter" that was used to
`
`"oxygenate running water efficiently." (9:7-11.)
`
`8
`
`

`

`CASE 0:20-cv-00358-ECT-HB Doc. 88 Filed 06/10/21 Page 9 of 22
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`(Figs. 7A, 7B.) In this embodiment, electrodes are appropriately sized to be placed within
`
`a tube or a hose such that the water flows through the tube in contact with the electrodes.
`
`(3:27-29; 9:11-15.) Exemplary uses for the flow-through embodiment include agricultural
`
`applications. For example, the specification discloses using this embodiment in watering
`
`hoses, drip irrigation systems, and hydroponic circulating systems. (3:24-42; 9:9-11.)
`
`VII. OPINIONS REGARDING MEANING OF CLAIM TERMS
`
`A.
`
`"water"2
`
`24. A POSA reading the intrinsic record would understand that the Patents
`
`were not limited to conducting electrolysis with some specialized type of water, and that
`
`instead this patent was directed to conducting electrolysis on everyday water like tap
`
`water and natural water from a lake or river. Indeed, nearly all the applications the
`
`Patents disclose are related to conducting electrolysis on these types ofwater. 3 The
`
`words of the claims, the specification, and the prosecution history all support the
`
`conclusion that a POSA would understand the word "water" to mean normal water.
`
`2 This term appears in the following claims: '415 Patent, Claims 13, 18, 19, 20, 21, 25,
`29; '092 Patent, Claims 13, 27, 60; '665 Patent, Claims 13, 55.
`
`3 The other applications deal with "waste water." (See e.g., 10:11-18.)
`
`9
`
`

`

`CASE 0:20-cv-00358-ECT-HB Doc. 88 Filed 06/10/21 Page 10 of 22
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`25. Claims. The plain meaning of the claim term "water" does not include the
`
`limitations that Tennant asks the Court to read into the term. Moreover, Claim 13 of the
`
`'415 patent explicitly recites a limitation related to the resistivity and dissolved solids
`
`content of the proposed water, suggesting the term does not inherently include the type of
`
`limitations proposed by Tennant. Specifically, the claim states that "the water flowing
`
`into the inlet has a conductivity produced by the presence of dissolved solids such that
`
`the water supports plant or animal life." As discussed below, a POSA would understand
`
`this longer claim term to include normal tap water because normal tap water supports
`
`plant or animal life (e.g., pets routinely drink tap water, which is also used to water
`
`plants). Therefore, a construction of the broader term "water" that excludes normal tap
`
`water would be inappropriate.
`
`26.
`
`Specification. The specifications of the Patents disclose conducting
`
`electrolysis in water to create microbubbles and nanobubbles so that the resulting
`
`suspension can be used to (1) water plants (manually, through drip irrigation, or as part of
`
`a plant culture) (e.g., Abstract), (2) improve the water quality of ponds, lakes, marshes
`
`and reservoirs (e.g., 1:34-38), and (3) detoxify water that is used to house aquatic animals
`
`such as fish (e.g., 1 :38-44). The water that is electrolyzed in all of these applications is
`
`tap water or natural water that houses fish. None of the examples or embodiments in the
`
`patent indicate that the disclosure does not work with tap water or natural water, or that
`
`the invention is limited to using the electrolysis on specialized water.
`
`27.
`
`Prosecution History. During prosecution of the Patents the applicant
`
`added a limitation to Claim 13 of the '415 patent requiring that the water have "a
`
`10
`
`

`

`CASE 0:20-cv-00358-ECT-HB Doc. 88 Filed 06/10/21 Page 11 of 22
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`conductivity produced by the presences of dissolved solids such that the water supports
`
`plant or animal life." When adding this claim language, the applicant clearly informed
`
`the public and the examiner that this claimed subset of water was not a specialized water,
`
`and was instead intended to cover tap water, potable water, well water, lake water, and
`
`irrigation water:
`
`The alternative phrase "tap water" had formerly been recited by these claims.
`The PTO questioned the kind of water this phrase referred to. While the
`specification at Example 5 (8:4-10) discloses the words "tap water" from a
`municipal source (Minneapolis Minnesota where the inventor lives and
`conducted his experiments), the descriptive phrase recited above has been
`used in place of tap water. The current phrase describing the water covers
`potable water delivered by a municipal water treatment plant in addition to
`well water, lake water and irrigation water. Water used to clean clothes, wash
`floors and water plants is included in this phrase.
`
`(Applicant Remarks Made in Amendment, Jan. 21, 2014 ('415 patent prosecution history).)
`
`Neither the examiner nor the applicant ever suggested that the claimed water did not
`
`include tap water or that type of water claimed by the patent was critical to overcoming
`
`any prior art.
`
`28.
`
`In this context, a POSA reading the intrinsic record would understand that
`
`the term "water" claimed in the Patents was not meant to limit the claims to conducting
`
`electrolysis with some specialized type of water, and that this term was meant to include
`
`tap water.
`
`29.
`
`The description of water contained in the "Definitions" section of the
`
`specification (4:22-26) does not change my above conclusion about the term water.
`
`Additional technical background related to resistivity, dissolved solids, and electrolysis of
`
`water is necessary to understand this description. (See, for example, OWT0018617 at
`
`11
`
`

`

`CASE 0:20-cv-00358-ECT-HB Doc. 88 Filed 06/10/21 Page 12 of 22
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`19.) Conductivity is a measure of how easily electrical current can flow through a
`
`specified material. Resistivity is the inverse of conductivity and is a measure of the
`
`resisting power of a material to the flow of an electrical current. In other words, if a
`
`material has a really high resistivity, it is very difficult for electricity to flow through that
`
`material. In general, water with a lot of dissolved solids has a low resistivity and water
`
`with very few dissolved solids has very high resistivity.
`
`This is because the dissolved solids in water produce ions that move through the solution
`
`carrying the current through the water. (ASP_ OWTOOOOOl at 02.) As a result of this
`
`inverse correlation, water with a low level of dissolved solids (such as deionized ("DI") or
`
`distilled water) has a high resistivity and water with a high level of dissolved solids (such
`
`as brine) has a low resistivity. (ASP_OWTOOOOOl at 02; OWT0018617 at 19.) Water
`
`from natural sources includes some dissolved solids such as calcium, magnesium, iron,
`
`12
`
`

`

`CASE 0:20-cv-00358-ECT-HB Doc. 88 Filed 06/10/21 Page 13 of 22
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`salt, and other minerals. The resistivity of these natural waters typically falls somewhere
`
`between brine and DI Water. (See, ASP _OWT000015 at 15; OWT0018617 at 19.)
`
`30. As discussed above, the electrolysis of water is caused by electrical current
`
`breaking the bonds between hydrogen and oxygen in water molecules so that these atoms
`
`then form hydrogen and oxygen. The electrochemical reactions and the net reaction
`
`caused by electrolysis of water are shown in column 2 of the specification of the Patents:
`
`AT THE CA.THODE:
`AT THE ANODE:
`NET REACTION:
`
`4I{~O + 4c- -ii> 40H- + 2H1
`2H20 -ii> 0 2 + 4H+ + 4e-
`6H20 - 40H- + 4H+ ++ 2H2 + 0 2
`
`(2:12-15.)
`
`31.
`
`These reactions do not readily occur when the water has too few dissolved
`
`solids to transfer the current through the water from the anode to the cathode.
`
`(ASP _OWT000015 at 15.) If there are too few dissolved solids in the water (for example
`
`in DI or distilled water), the resistivity of the water is too high and electrical current
`
`cannot readily pass through the water. (ASP_ OWT000015 at 15; TC00033231.)
`
`Without adequate electrical current passing through the water, the electrolysis reactions
`
`will not occur at the electrodes. For this reason, it is widely understood that DI water is
`
`not used in electrolysis of water.
`
`32. On the other hand, if a solution includes too many dissolved solids (like in
`
`brine, which is water containing a large amount of salt), other issues with the electrolysis
`
`of water can occur. {TC00033231.) For example, the electrical current will cause other
`
`electrochemical reactions to occur rather than the electrochemical reactions that create
`
`13
`
`

`

`CASE 0:20-cv-00358-ECT-HB Doc. 88 Filed 06/10/21 Page 14 of 22
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`oxygen and hydrogen. (See, OWTOOl 7879 at 80.) In one well known example, the
`
`electrolysis of brine produces chlorine rather than oxygen as shown by the following net
`
`reaction:
`
`2 NaCl+ 2 H20-+ 2 NaOH + H2 +Ch
`
`33.
`
`This background information supports the paragraph in the Patents that
`
`includes the definition of water. The paragraph includes two sentences:
`
`(1) "Water" means any aqueous medium with resistance less than one ohm
`per square centimeter; that is, a medium that can support the electrolysis of
`water. (2) In general, the lower limit of resistance for a medium that can
`support electrolysis is water containing more than 2000 ppm total dissolved
`solids.
`
`( 4:22-26 (bolded numbers added).)
`
`34. A POSA would understand the first sentence of this paragraph to be stating
`
`that "water" includes any aqueous (i.e., water-based) medium that can support the
`
`electrolysis of water. Mediums that meet this limitation include water such as tap water
`
`and lake water as taught by the rest of the specification and the prosecution history,
`
`whereas mediums with extremely high resistance (such as DI water) or extremely low
`
`resistance (such as brine) are not included in the Patents description of water.
`
`3 5. A POSA reading the first sentence wound understand that the phrase
`
`"resistance less one ohm per square centimeter" is not technically correct. The units of
`
`14
`
`

`

`CASE 0:20-cv-00358-ECT-HB Doc. 88 Filed 06/10/21 Page 15 of 22
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`"resistance" are ohms. Ohm per square centimeter is not a unit of resistance (or
`
`resistivity). 4
`
`36. Despite the fact that the units are not correct, the intent of this language is
`
`clear. It is written to exclude aqueous medium with a very high resistance due to a high
`
`resistivity. Given that the units are not correct, a POSA would look to the rest of the
`
`paragraph as well as the rest of the intrinsic record to help understand what was intended
`
`by this first clause. Both the rest of the paragraph as well as the rest of the specification
`
`show that the invention used ordinary water (such as tap water) that can carry a current.
`
`The second portion of this sentence uses "that is" to indicate that the second clause is
`
`used to repeat the definition provided in the first one. The second clause is clear. Water
`
`is "a medium that can support the electrolysis of water."
`
`3 7.
`
`The second sentence is not definitional. It states that: "In general, the lower
`
`limit of resistance for a medium that can support electrolysis is water containing more
`
`than 2000 ppm total dissolved solids." By stating that a medium that supports
`
`electrolysis has a specific property "in general", the specification is indicating that the
`
`medium does not need to have that property.
`
`38. Moreover, the second sentence is intended to reflect the known fact that
`
`water with too much dissolved solids would not support the electrolysis of water. In
`
`other words, it is teaching that the dissolved solids should be below 2000 ppm for
`
`4 Resistance and resistivity are related. Resistance is the total resistance of a body of
`material. It is measured in Ohm's. Resistivity ( p) is the resistance ( R) per unit length (
`l) of a cross section (A) of that material ( p = R; A). It has units of ohm-meter.
`
`15
`
`

`

`CASE 0:20-cv-00358-ECT-HB Doc. 88 Filed 06/10/21 Page 16 of 22
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`electrolysis of water to occur, not above 2000 ppm. As discussed above, resistance and
`
`dissolved solids are inversely proportional. Therefore, in a solution with low dissolved
`
`solids, resistance is high. And as the dissolved solids content in water rises, the
`
`resistance decreases. (A WP_ OWTOOOOOI at 02.)
`
`Low dissolved solids, high
`resistance
`
`Increasing dissolved
`solids, decreasing
`resistance
`
`High dissolved solids, low
`resistance
`
`At some point, there will be too much dissolved solids to support the electrolysis of water.
`
`(TC0003 3 231.) The second sentence of the definitional paragraph discloses that this lower
`
`limit of resistance is generally reached when the total dissolved solids in the water is 2000
`
`ppm or higher, and therefore solutions with less than 2000 ppm dissolved solids generally
`
`support the electrolysis of water:
`
`16
`
`

`

`CASE 0:20-cv-00358-ECT-HB Doc. 88 Filed 06/10/21 Page 17 of 22
`
`Lower limit of
`resistance
`
`39. Notably, lake water, river water, and municipal water typically have
`
`dissolved solids content that is well below the 2000 ppm threshold. (See, OWT0018617.)
`
`B.
`
`"conductivity produced by the presence of dissolved solids such that
`the water supports plant or animal life" ('415 Patent, Claim 13)
`
`40.
`
`In my opinion, this term does not need any additional construction. A
`
`POSA would understand that this term states that the water that flows in the inlet must
`
`have a conductivity that allows it to support plant or animal life. In other words, the
`
`water needs to be the type of water that pets can drink or that can be used to water plants.
`
`41. As explained above, the claims of this invention do not cover DI water or
`
`brine because these types of water do not support the electrolysis of water. Similarly,
`
`water with too many dissolved solids (such as brine) will not support plant or animal life.
`
`For example, the limit for dissolved solids in drinking water in Utah is 2,000 ppm.
`
`(OWT0081896.) Another analysis suggests that the ideal dissolved solids for drinking
`
`17
`
`

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`CASE 0:20-cv-00358-ECT-HB Doc. 88 Filed 06/10/21 Page 18 of 22
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`water is between 300-500 ppm. (OWT0081879.) Many animals begin to have negative
`
`health effects at approximately 3000 ppm total dissolved solids. (OWT0081896.)
`
`Therefore, a POSA would understand that the plain and ordinary meaning of
`
`"conductivity produced by the presence of dissolved solids such that the water supports
`
`plant or animal life" is water that does not have such a high conductivity (due to a large
`
`number of dissolved solids) that it prevents plants or animals from surviving.
`
`42.
`
`The intrinsic record supports this conclusion. As stated above, the
`
`specification of the Patents describes using tap water or natural water that houses fish.
`
`Moreover, when this claim language was added to the claims during prosecution the
`
`applicant explained that this phrase was "used in place of tap water" and "covers water
`
`delivered by a municipal water treatment plant in addition to well water, lake water and
`
`irrigation water." (Applicant Remarks Made in Amendment, Jan. 21, 2014 ('415 patent
`
`prosecution history).) The applicant explained that "All of these kinds of water are
`
`suitable for supporting plant or animal life and will contain dissolved solids." (Id.)
`
`C.
`
`"tubular flow axis from the inlet to the outlet" (415 Patent, Claim 13)
`
`43.
`
`In my opinion, this term does not need any additional construction. The
`
`plain meaning of the term "tubular flow axis from the inlet to the outlet" would be well
`
`understood by a POSA. Another way of stating this language would be to state that this
`
`language required there be a main line of flow through the tubular housing from the inlet
`
`to the outlet.
`
`44.
`
`I understand that Tennant has proposed the construction of"a straight line
`
`defining a path through which water flows through the tubular housing and extending
`
`18
`
`

`

`CASE 0:20-cv-00358-ECT-HB Doc. 88 Filed 06/10/21 Page 19 of 22
`
`from the inlet to the outlet." In my opinion a POSA would not understand the phrase
`
`"tubular flow axis from the inlet to the outlet" to be so limited when this phrase is read in
`
`the context of the specification and the prosecution history.
`
`45.
`
`A POSA would be particularly bothered by the suggestion that this term
`
`required water to flow in "a straight line" from the inlet to the outlet. In electrolysis
`
`systems, water rarely flows in a straight line. Electrodes in the system distort water flow.
`
`46.
`
`I would note that Tennant did not apply its "flow in a straight line"
`
`limitation when it argued this claim of the patent is invalid in its IPR petition. Tennant
`
`and its expert Dr. Tremblay both argued that the below blue dashed line that forms a thin
`
`elliptical region within the left side fluid flow portion of Fig. 11 in the prior art reference
`
`Satoh (U.S. Patent No. 6,251,259) met the tubular flow axis limitation:
`
`+
`
`s -
`
`19
`
`

`

`CASE 0:20-cv-00358-ECT-HB Doc. 88 Filed 06/10/21 Page 20 of 22
`
`(Tennant's IPR Petition 2021-00602 at 44; Dr. Tremblay's Supporting Declaration at if 63.)
`
`The inlet in this figure is identified by the number 111 at the bottom right and the outlet is
`
`identified by number 112 at the top left. The elliptical region does not show a straight line
`
`flow from the inlet to the outlet. In fact, liquid cannot flow in a straight line from the inlet
`
`to the outlet in this reference because the yellow electrode in the middle blocks that flow
`
`path. (Ex. 12.)
`
`4 7.
`
`Therefore, in my opinion a POSA reading the specification and the
`
`prosecution history would reject Tennant's claim construction and would apply the plain
`
`and ordinary meaning of this claim term.
`
`D.
`
`"an electrical power source" ('415 Patent, Claim 13) and "a power
`source" ('092 Patent, Claims 13 and 27; 665 Patent, Claims 13 and 67;
`'665 Patent, Claim 13)
`
`48.
`
`I understand that Tennant has disclosed that it will argue that the control
`
`board in its accused devices are not part of the "power source" or "electrical power
`
`source" that are recited in the claims. In my opinion, a POSA would understand that the
`
`term "power source" and "electrical power source" recited in the claims of the Patents
`
`include the equipment that converts power to the form provided to the electrodes.
`
`49.
`
`The Patents are focused on the electrolysis of water. The power source that
`
`is important in this technology is the source that is used to apply current to the electrodes.
`
`The initial power can be provided by any means (for example, the electrical grid, a diesel
`
`powered generator or a battery) so long as that power is controlled properly before it
`
`reaches the electrodes. Therefore, a POSA would understand the claimed "power source"
`
`to include equipment that converts power to the form used by the end device.
`
`20
`
`

`

`CASE 0:20-cv-00358-ECT-HB Doc. 88 Filed 06/10/21 Page 21 of 22
`
`50.
`
`This understanding is supported by the specifications in the Patents, which
`
`state that the current can be provided by an AC (Alternating Current)/DC (Direct
`
`Current) converter. An AC/DC converter converts AC power (like that provided by a
`
`wall outlet) into a DC current. An AC/DC converter does not generate electrical power,
`
`it only converts it from AC to DC.
`
`51.
`
`This understanding of the term power source is also supported by a Tennant
`
`patent application related to its scrubbers that employ electrolysis, which states that "The
`
`power supply can provide a constant DC output voltage, a pulsed or otherwise modulated
`
`DC output voltage, or a pulsed or otherwise modulated AC output voltage to the anode
`
`and cathode electrodes." (U.S. Patent No. 8,025,787 at 7:7-15.) "Pulsed or otherwise
`
`modulated" DC or AC voltages can only be created by equipment that converts power
`
`into the form desired.
`
`52.
`
`In my opinion, the IEEE dictionary definition of power source that states
`
`that a power source is "the electrical and mechanical equipment and its interconnections
`
`necessary to generate or convert power" provides a clear definition of a power source that
`
`is consistent with the understanding a POSA would have of the terms "power source" and
`
`"electrical power source" as they are used in the claims of the Patents. (The New IEEE
`
`Standard Dictionary of Electrical and Electronics Terms, Page 995.)
`
`21
`
`

`

`CASE 0:20-cv-00358-ECT-HB Doc. 88 Filed 06/10/21 Page 22 of 22
`
`I declare under penalty of perjury that the foregoing is true and correct.
`
`Executed on: t, /; 0 / :J-t
`
`~2__{,,j~
`
`Ralph E. White
`
`22
`
`

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