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` UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
`--------------------------------------------------------------
` ) COURT FILE
`Oxygenator Water Technologies, Inc., ) NO. 20-CV-358 (ECT/HB)
` )
` Plaintiff, )
` )
` vs. )
` )
`Tennant Company, ) Courtroom 3B
` ) Thu., August 5, 2021
` Defendant. ) Saint Paul, Minnesota
` ) 9:00 A.M.
`--------------------------------------------------------------
`
`CLAIM CONSTRUCTION HEARING
`
`BEFORE THE HONORABLE ERIC C. TOSTRUD
`UNITED STATES DISTRICT JUDGE
`
` TIMOTHY J. WILLETTE, RDR, CRR, CRC
` Official Court Reporter - United States District Court
` Warren E. Burger Federal Building & U.S. Courthouse
` 316 North Robert Street - Suite 146
` St. Paul, Minnesota 55101
` 651.848.1224
`
`
`
` UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
`--------------------------------------------------------------
` ) COURT FILE
`Oxygenator Water Technologies, Inc., ) NO. 20-CV-358 (ECT/HB)
` )
` Plaintiff, )
` )
` vs. )
` )
`Tennant Company, ) Courtroom 3B
` ) Thu., August 5, 2021
` Defendant. ) Saint Paul, Minnesota
` ) 9:00 A.M.
`--------------------------------------------------------------
`
`CLAIM CONSTRUCTION HEARING
`
`BEFORE THE HONORABLE ERIC C. TOSTRUD
`UNITED STATES DISTRICT JUDGE
`
` TIMOTHY J. WILLETTE, RDR, CRR, CRC
` Official Court Reporter - United States District Court
` Warren E. Burger Federal Building & U.S. Courthouse
` 316 North Robert Street - Suite 146
` St. Paul, Minnesota 55101
` 651.848.1224
`
`
`
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`A P P E A R A N C E S:
`
`For the Plaintiff: CARLSON CASPERS VANDENBURGH &
` LINDQUIST, P.A.
` By: J. DEREK VANDENBURGH, ESQUIRE
` AARON W. PEDERSON, ESQUIRE
` NATHAN LOUWAGIE, ESQUIRE
` 225 South Sixth Street - Suite 4200
` Minneapolis, Minnesota 55402
`
`
`
`For the Defendant: FREDRIKSON & BYRON, P.A.
` By: ADAM R. STEINERT, ESQUIRE
` LORA MITCHELL FRIEDEMANN, ESQUIRE
` 200 South Sixth Street - Suite 4000
` Minneapolis, Minnesota 55402-1425
`
`* * * *
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` (9:00 a.m.)
` P R O C E E D I N G S
` IN OPEN COURT
`THE COURT: Good morning, everyone. Please be
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`seated.
`
`All right. This is Oxygenator Water Technologies,
`Incorporated versus Tennant Company, Civil File Number
`20-358.
`
`Let me invite appearances from counsel, starting
`with the plaintiff.
`MR. VANDENBURGH: Thank you, Your Honor. For the
`plaintiff, OWT, Derek Vandenburgh from the Carlson Caspers
`firm. With me today is Aaron Pederson and Nate Louwagie
`from our firm.
`THE COURT: Good morning. And how about for
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`Tennant?
`
`MR. STEINERT: Good morning, Your Honor. Adam
`Steinert, Fredrikson & Byron. With me is Lora Friedemann --
`MS. FRIEDEMANN: Good morning.
`MR. STEINERT: -- and Mary Dean from our client.
`THE COURT: Good morning.
`All right. I'm going to begin by throwing a bit
`of a curve ball at all of you here, I think.
`Let's take the terms in the following order. I
`spent a little bit more time with this last night. I spent
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`a fair amount of time with it before last night, but I spent
`more time with it last night and here's how I'd like to
`cover the terms if we could:
`So let's sort of throw in group one "water" and
`"nanobubble."
`Then let's cover in a second group "aqueous
`medium," "oxygenated aqueous composition," and "conductivity
`produced by the presence of dissolved solids such that the
`water supports plant or animal life."
`In a third group let's put what I'll call the
`moving water dispute, if that makes sense. So there we've
`got "flowing water ... through an electrolysis emitter,"
`"deliver electrical current to the electrodes," et cetera,
`"a flow-through oxygenator," and "passing water through the
`tubular housing." So all of those terms, as I understand
`it, are part of what I'm calling the moving water dispute.
`Fourth, we'll do "tubular housing."
`Fifth, "tubular flow axis from the inlet to the
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`outlet."
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`Sixth, the "power source" terms.
`Seventh, "incapable of breaking the surface
`tension of the water."
`Eighth, "microbubbles and nanobubbles remain in
`the water at least in part for a period up to several
`hours."
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`Ninth, "the water temperature is a factor" term.
`Tenth, the rather lengthy term beginning "wherein
`the period for which the microbubbles and nanobubbles at
`least in part remain in the water," et cetera, et cetera,
`and then lastly, "a first anode electrode portion that is
`non-parallel to a second anode electrode portion."
`Let me ask -- start with Mr. Vandenburgh. Does
`that order make sense? Is that okay?
`MR. VANDENBURGH: It does, Your Honor, and I have
`a slide that will show that your order is very similar to
`the order -- strikingly similar to the order the parties had
`tentatively agreed to before this morning.
`THE COURT: Okay. Mr. Steinert, same question.
`Does that make sense?
`MR. STEINERT: Yes, Your Honor. I agree with
`opposing counsel that your order and our proposed order is
`nearly identical.
`THE COURT: Okay, good. All right. So we're that
`
`far.
`
`Let me sort of then -- so stay seated for your
`argument. Make sure your microphone's on. When you're
`arguing, please feel free to remove your mask. If you're
`not comfortable doing that you can leave it on, but if you
`do leave it on, please up the volume.
`Know that I have read everything. Know that I
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`think I kind of get it, but obviously this is your case and
`you all have been living with this a lot longer, so you make
`your argument as you're going to make it. I'll try my best
`to interject the questions I have where they seem to fit.
`And know right off the bat that with technology
`we're dealing with here and everything, I'll just apologize
`up front if I ask a question that doesn't make sense or that
`it -- if it doesn't, you tell me that and I'll do my best to
`try to explain why I'm asking it.
`All right. So, do the parties agree on who ought
`to go first here? I don't have a strong opinion about it.
`All other things being equal, I would have OWT go first, but
`if you have a different order in mind, that's fine too.
`MR. VANDENBURGH: Your Honor, that's certainly my
`experience in these type of hearings is that the patentee
`generally goes first. We're prepared to do so, but we'll --
`and it sounds like that's your preference as well.
`MR. STEINERT: We're fine with that as well, Your
`
`Honor.
`
`THE COURT: Great. All right. So let's start
`with "water."
`MR. VANDENBURGH: We do have a PowerPoint, so with
`Your Honor's permission we'll put that up on the screen.
`Your Honor, do you have a preference for whether I
`stand or sit?
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`THE COURT: Sitting is just fine.
`MR. VANDENBURGH: Okay.
`THE COURT: Yes. So just so everybody knows, I'll
`use this to follow along today. I will not take it back
`with me when I go back into chambers and deal with this.
`It's something that I wasn't quite as keen to or aware of
`earlier on, and now I am aware that there are lots of
`concerns about whether that's an additional brief or what
`have you, and so I will not intend to take it back with me.
`MR. VANDENBURGH: Understood, Your Honor.
`THE COURT: Okay.
`MR. VANDENBURGH: So I will to start with cover
`the first two terms, "water" and "nanobubble," in that
`order. With Your Honor's permission, I'd like to just
`start, though, with a brief kind of background summary, make
`sure we understand the technology we're dealing with here.
`Of course, OWT has brought suit for infringement
`of three related reissue patents, all of which relate to
`devices and methods for using electrolysis to create very
`small bubbles, microbubbles and nanobubbles, in water.
`Now, one thing that's I think important as we get
`into the other terms to keep in mind is that the inventor,
`Mr. Senkiw, didn't invent electrolysis. That's something
`that's been around for a long time. It's well-known. It's
`basically the phenomena of putting electrodes inside a bath
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`of water, applying electricity, and you can actually break
`down the water into various components, not only the oxygen
`and hydrogen that are the water itself, but also there's
`other impurities that are going to then come into play in
`that subsequent reaction. So, that's electrolysis.
`What Mr. Senkiw did discover was that if he used
`the right combination of electrodes, power with voltage and
`amperage, as well as what the patent calls a critical
`distance, he could control the size of the bubbles and in
`particular within that critical distance he could create
`these extremely small microbubbles and even nanobubbles that
`would result in oxygenated water having unusual properties.
`He then went on to find applications for this and
`the first application that's disclosed in the patent was for
`use as a bait keeper, something to oxygenate water to keep
`bait fish alive longer. And so that's what's shown in,
`like, Figure 2A of the patent where you have what's called a
`button emitter that oxygenates water within a stationary
`tank.
`
`THE COURT: Once a volume of water goes -- or once
`a volume of an aqueous medium goes through this process, can
`you repeat the process on that same quantity or volume of an
`aqueous medium?
`MR. VANDENBURGH: Yes. There's no reason -- and I
`think the way these things typically work is the button is
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`going to be put into the bait bucket or the live well and
`just left on, and it's just going to continue to produce
`oxygen. There may be -- it's not something I think we've
`really gotten into. There may be a limit to the amount of
`these tiny bubbles that the water can hold, but for the most
`part there is no you have to turn it off at some point in
`time.
`
`THE COURT: Okay.
`MR. VANDENBURGH: Okay. So then the -- of course
`the second, then, embodiment, the one that's perhaps more
`relevant to the claims at issue here, is, Mr. Senkiw then
`was looking for other applications and he designed a
`flow-through emitter, something that you could put, for
`example, in a hose where you have flowing water that's put
`through it oxygenated and then used for other purposes. One
`that they looked at heavily was for agricultural and
`hydroponic uses. They actually worked with the University
`of Minnesota and did studies to show that they could grow
`plants bigger and faster and better with this oxygenated
`water, and again, those results are discussed in the
`patents-in-suit.
`And then, of course, the reason we're here is
`because this technology had yet other uses; for example, the
`one that Tennant has adopted, where they are using
`oxygenated water with these extremely small bubbles as a
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`replacement for detergent in traditional floor scrubbing
`machines.
`So with that background, let me just jump ahead to
`the first term and I'll stop on what's my slide 5 just
`briefly to see that we weren't making it up. You did in
`fact order the terms very similar to how we had tentatively
`ordered them. We had put the tubular housing terms
`together, and I don't know if Your Honor would be open to
`putting those two terms together after the flowing water
`terms. We certainly defer to whatever your preference is.
`But moving on to slide 8, which is the beginning
`of my presentation on water, the issue here -- of course,
`you wouldn't think ordinarily you would have a dispute in a
`patent case about what the word "water" means. We all deal
`with it every day. We all know what it is.
`The reason we of course have a dispute is because
`the specification of the patents contains a section called
`"Definitions," and there's a purported definition of "water"
`in that section. And the real reason we have a dispute --
`and now I'm on slide 9 -- is because the first sentence of
`that purported definition doesn't make sense. I mean, it
`comes down -- it's as simple as that. It purports to define
`water in two equivalent ways, and this is really important,
`I think, when we get to the dispute between the parties.
`It's telling you I'm going to tell you the same thing twice
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`separated with the words "that is," so A; that is, B, same
`thing I'm telling you twice. The first one has this phrase
`"any aqueous medium with resistance less than one ohm per
`square centimeter."
`The problem we have is that that sentence, that
`clause I'll call it, everybody agrees doesn't make sense,
`doesn't make sense particularly to a person of skill in the
`art who knows what resistance is, knows what ohms and --
`what an ohm per square centimeter would be suggesting, and
`it just doesn't make sense to that person. They recognize
`that on its face it is erroneous.
`But the second clause is perfectly clear, "a
`medium that can support the electrolysis of water." Again,
`people skilled in the art -- and this is undisputed -- know
`that not every type of water works for electrolysis. It's
`this concept that you need dissolved solids in the water,
`you need some, but not too much. If you don't have enough,
`if you have something like distilled water, there aren't
`enough ions in the water to make electrolysis work. And
`then if you get too much dissolved solids, the chemical
`reaction just sort of breaks down, so there's a limit on the
`low side, limit on the high side. So when the patentee
`would say a medium that can support the electrolysis of
`water, that makes sense to a person skilled in the art, and
`that second clause is also what is consistent with the rest
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`of the specification. And I'll get to that in more detail
`later, but if Your Honor just reads the patents from
`beginning to end, you will see there's no indication they
`were trying to define some special type of water. They were
`talking about using ordinary, everyday water.
`So it really comes down to what do we do when
`we've got a situation like this with a sentence half of
`which is erroneous and the other half makes sense.
`That's where we move to the so-called canons of
`claim construction, and I've got the one that Tennant relies
`on at the top of slide 10 where they cite -- and this is
`commonly cited case law -- "When a patentee defines a claim
`term, the patentee's definition governs, even if it is
`contrary to the conventional meaning of the term." That's
`the canon of lexicography. If you define a term in the
`specification, that generally applies to your claims.
`The thing is, Tennant says that that's an absolute
`rule. There are no exceptions. It doesn't matter if it's
`screwed up. It doesn't matter if one skilled in the art
`would know that it's messed up. It's just a rule and you
`have to apply it.
`The fact is these canons of claim construction,
`none of them are absolute. We cited some of these cases at
`the beginning of our reply brief. I've got one of them
`again on slide 10 that says: "None of these canons are
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`themselves dispositive but rather exist as a tool to aid in
`assessing meaning." There are no absolute rules.
`And in fact, for this particular issue of
`lexicography, there are some exceptions, including the one
`that is particularly applicable here at the bottom of my
`slide 10. The Federal Circuit has said that lexicography
`rule applies only if -- well, they say: "[T]he patentee's
`lexicography must, of course, appear 'with reasonable
`clarity, deliberateness, and precision' before it can affect
`the claim."
`So they're basically saying if one skilled in the
`art sees something that looks like a definition, but knows
`that it's not particularly clear, that it's not precise,
`that person skilled in the art is not going to rely on that
`as a definition and the lexicography doesn't apply.
`And I submit, Your Honor, that this first issue
`really turns on the case law. We've cited this
`particular -- this Abbott v. Syntron case is really very
`close to our facts, two definitions in a specification that
`were inconsistent with one another, and the court said as a
`result of that we're not going to adopt this one that seems
`contrary to the ordinary meaning, because it doesn't have
`the necessary clarity, deliberateness, and precision to the
`lexicography. We've cited other cases. Probably between
`our opening and reply brief we've probably got eight cases
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`on this point that all are cases that back away from
`lexicography when it's not clear. So far we've seen nothing
`in opposition from Tennant. All we've seen from Tennant is
`the statement of the rule. But as I said, the rules aren't
`absolute, they haven't dealt with this situation, so we win
`this issue on the law.
`Now, I think perhaps Tennant recognizes that if
`Your Honor concludes that it's just irretrievably confusing,
`that they're going to lose their argument on this claim
`construction, so in their reply brief they make a new
`argument. They basically say, "Well, we can make sense of
`that sentence. We're going to make it make sense." The
`thing is, the correction that they ultimately choose itself
`is arbitrary, self-serving and doesn't make sense, so how
`are they going to convince Your Honor that it's the right
`one to somehow change it to.
`Well, what they do in their reply brief -- and I
`have this on slide 11, I believe -- yes, slide 11 -- they
`try to attribute the correction to us. They've got a
`statement in the reply brief -- and I'm going to read it.
`It says:
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`"The basis for OWT's argument is its expert's
`contention that the applicant used the word 'resistance'
`when he meant 'resistivity' and expressed its numerical
`limits using the wrong units."
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`They're saying, "Well, OWT's saying it's just
`about changing it to resistivity and correcting the units
`and then it'll all make sense." Your Honor, that is not our
`position. To be clear, that sentence, we all agree, is
`erroneous, doesn't make sense, but there is no logical way
`to correct it and we have never suggested otherwise. This
`is their argument, not ours.
`So then what do they do next in their reply brief
`on the next slide? They purport to provide the correction
`for you. They change the words of the definition so it
`says: "Water means any aqueous medium with resistivity less
`than one ohm-centimeter," which is the traditional -- well,
`it's -- actually, ohms-meters would be the traditional units
`for resistivity, but they make it ohm-centimeter. And they
`say: We would not object to that correction.
`And, of course, there's a good reason they
`wouldn't object to that correction, Your Honor, because as I
`show on the next slide, it would mean nothing. They brought
`out a chart showing resistivity of various types of water at
`our expert's deposition and they walked through and
`everybody was in agreement that, yes, this is generally how
`it works and confirmed that if you said, well, let's call it
`resistivity less than one ohm-centimeter, we would have the
`saltiest salt water you can have, or maybe as we said in our
`reply brief saltier than the saltiest salt water. It would
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`cover nothing. And that's frankly further reason why this
`correction doesn't make sense, because it's an idea that
`would still be inconsistent with the rest of the
`specification that is telling us just use ordinary water.
`So -- and I have some slides on that. I guess I
`won't take the time to go through it this morning, but
`again, if you go through the abstract, the background of the
`invention, the summary of the invention, the specific
`embodiments, you see again and again just saying use
`ordinary water, use tap water, use lake water, use well
`water. We see that in the specification as well. All those
`are indications that we're not looking for some special type
`of water.
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`So I've been talking really about the first
`sentence of the purported definition in the specification
`and what the effect of that is on lexicography, and the
`conclusion is simply because the first part of it doesn't
`make sense it shouldn't be adopted as part of the
`construction.
`We then have a second sentence and I've got that
`on slide 17 I'm going to jump ahead to, and that's the
`sentence that reads: "In general, the lower limit of
`resistance for a medium that can support electrolysis is
`water containing more than 2000 [parts per million] total
`dissolved solids." So this raises different issues.
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`First of all, our fundamental point is that when
`you have two sentences like this in a specification, one of
`which is purporting to be definitional, water means blank,
`but the second one doesn't, the law says that the intent --
`not only do the words need to be clear, but the intent to
`define it needs to be clear and unambiguous -- and we have a
`sentence that starts with something like "In general," that
`is not sufficiently definitional to be included as part of
`the claim construction.
`Again, on slide 17, law: "Intent to engage in
`lexicography must be clear."
`And the other reason that we are resistant to
`adding this sentence to the construction, we actually don't
`believe there's anything wrong with that general statement,
`that general proposition, as long as you understand, as long
`as you're a person of -- looking at it from the viewpoint of
`a person skilled in the art who knows how this works and
`therefore can interpret it correctly. It is a little bit of
`a confusing sentence, and the reason it's confusing is
`because there's an inverse relationship between dissolved
`solids and resistance.
`As dissolved solids goes up -- and that's what
`I've shown and reproduced in our chart on slide 18 -- as
`dissolved solids go up, resistance goes down. And what that
`means, understanding that sentence, is that the lower limit
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`of resistance is the upper limit of total dissolved solids.
`So when the sentence says: "In general, the lower limit of
`resistance for a medium that can support electrolysis is
`water containing more than 2000 ppm," what it's really
`saying is don't have more than 2000 ppm. If you go above
`that, you're going to drop your resistance below the lower
`level. So the reason that we think this shouldn't be added
`to the construction is because Tennant's already shown --
`and we're going to see this in connection with one of the
`other terms -- that they want to argue this means the
`opposite, that you have to have more than 2000 ppm, and that
`would just be wrong.
`So again, I guess in summary, the patent as a
`whole tells us we're not looking for a special type of
`water, just the type of water that can support electrolysis.
`The last point -- I don't want to lose sight of
`this, it comes up with a lot of terms today -- Your Honor I
`believe is aware they filed for inter partes review of the
`'415 patent.
`THE COURT: I am.
`MR. VANDENBURGH: And, of course, one of the
`things you have to do in those is explain to the Patent
`Office what the proper constructions are.
`THE COURT: But what does the law say the
`significance of that is? I mean, it seems to me like you're
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`arguing judicial estoppel and they haven't prevailed yet.
`MR. VANDENBURGH: You're right, Your Honor. At
`this point -- and we've actually been looking at the law and
`there's dispute over whether it's intrinsic evidence or
`extrinsic. It's -- I'm not going to tell Your Honor it is
`binding. As you say, it's not an estoppel until they've
`succeeded on it, but it certainly calls into question the
`credibility of what they're arguing before Your Honor today,
`that they're basically saying, yeah, interpret it narrowly
`here, but we didn't tell the Patent Office that.
`THE COURT: I get the point, but you ought to know
`up front that I'm not too persuaded by that argument. I
`think they've got the right to take competing positions or
`alternative positions in two different places and I get that
`that is a concern for you and it's on some level a
`reasonable concern, but I don't understand the law, which is
`what I got to worry about here, to be telling me that I get
`to consider that.
`MR. VANDENBURGH: Understood, Your Honor. I
`haven't actually seen how this is played out in the law, but
`it would be -- you know, we're going to get decisions on
`institutions of those IPRs here in a month or so, and it
`would be -- you know, one of those canons, it's probably --
`one of the most solid canons of claim construction is that
`we interpret claims the same for infringement as validity.
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`So it would be extremely inequitable if an IPR moves forward
`under one set of constructions while this district case goes
`forward under a totally different set of constructions.
`So I understand -- and frankly, Your Honor, I
`really don't think you need to give weight to this.
`we're -- for all the reasons I've stated, you know, I think
`we are 100 percent on the right side of this issue.
`THE COURT: Let me ask you a different question
`about your proposed definition of water here.
`So, if I understand it right, your proposal is to
`define water to mean, quote, any aqueous medium that can
`support the electrolysis of water, right?
`MR. VANDENBURGH: Correct.
`THE COURT: Okay. Any concern about using "water"
`in the definition of "water"?
` (Laughter)
`MR. VANDENBURGH: In some sense, Your Honor, we
`are -- we're trying to use the part of the definition from
`the spec that makes sense. I understand there is a bit of a
`concern here, but the jury I think is going to know what
`water is, and so -- and I think as a course of the testimony
`it's going to come out that there is this concept that you
`need -- you can't have distilled water, you can't have salt
`water. You need something that's in between. So I don't
`think it would be confusing to the jury.
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`You know, frankly, I don't think it's going to be
`a dispute, actually, when we get to trial of whether, you
`know, it needs to be any particular type of water. So to
`some extent, if Your Honor said no construction required, we
`would not object to that result. We're just trying to give
`some acknowledgment to what is a definition, to the attempt
`to define that term in the specification.
`THE COURT: I am not suggesting no construction
`required. It seems to me -- and maybe this is just one way
`to confirm that I either do or do not understand the issue.
`It seems to me that "aqueous medium," that term
`itself, presumes the presence of water.
`MR. VANDENBURGH: Correct.
`THE COURT: And it seems to me that it's enough to
`say any "any aqueous medium that can support electrolysis."
`MR. VANDENBURGH: Agreed, Your Honor.
`THE COURT: Because you're not doing electrolysis
`on dissolved solids.
`MR. VANDENBURGH: Correct, Your Honor.
`THE COURT: Or are you?
`MR. VANDENBURGH: No. The one hesitation I have
`is that there is a bit of a term of art. For example, there
`is something called electrolysis of brine, I believe it is,
`and brine might loosely be considered to be a type of water.
`It's very salty water. That is to at least some people
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`skilled in the art not considered to be electrolysis of
`water and it results in a different reaction.
`But in some sense I don't -- I do understand your
`point, and as long as we understand what Your Honor is
`saying -- and that's part of the challenge in these claim
`construction hearings -- I think how you phrased works
`perfectly fine.
`THE COURT: Yes. I don't -- I'm asking a question
`about something I'm not sure either party really expressed a
`concern about. It just seemed a bit odd to me and I wanted
`to be sure that I wasn't missing something.
`MR. VANDENBURGH: Right, right. I do think the
`most important part on this term, Your Honor, is that it be
`made clear that the patent doesn't require some special type
`of water, that it's not super salty water, it's not
`distilled water. It's ordinary water. And what words are
`used to express that concept, it's really going to come down
`to, you know, making sure the parties -- it would perhaps be
`a motion in limine -- are restricted from not making those
`sort of arguments.
`THE COURT: Okay.
`MR. VANDENBURGH: All right. Then just -- we did
`agree -- well, I'm done with water unless Your Honor has
`more questions. We were going to cover nanobubble as well?
`THE COURT: We are, but let's ping-pong on these
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`if we can.
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`MR. VANDENBURGH: Okay. All right.
`THE COURT: So, Mr. Steinert, let me turn to you
`if that's all right.
`MR. STEINERT: Yes, absolutely, Your Honor.
`THE COURT: And let's talk about water.
`MR. STEINERT: All right. We do also have a
`PowerPoint presentation which we have copies of we can hand
`up to help follow along.
`THE COURT: Thanks.
` (Document handed to the Court)
`MR. STEINERT: The parties are in agreement --
`THE COURT: Can you pull your mike a little
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`closer?
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`MR. STEINERT: Certainly.
`THE COURT: Thank you.
`MR. STEINERT: The parties are in agreement that
`Mr. Senkiw -- and we learned at his deposition that that "w"
`is pronounced as a "v" -- Mr. Senkiw did not invent
`electrolysis of water. The patent acknowledges that
`electrolysis of water is old. In fact, it goes back to
`Michael Faraday in the 1800s.
`Before Mr. Senkiw and his co-founders started
`their company, Aqua Innovations, they used to work for a
`pool company that made an electrolysis system, and I
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`actually have one here. And I'm happy to hand it up if the
`Court would like to look at it, but this (indicating) would
`literally go in the piping of your pool cleaner or the water
`supply for your house. You'd put a current across these
`electrodes and that current would separate the H2O into
`hydrogen bubbles and oxygen bubbles to put hydrogen and
`oxygen bubbles into water. Because hydrogen is more
`volatile than oxygen because it weighs less, the hydrogen
`bubbles bubble out of the water faster and usually you're
`left with water with more dissolved oxygen. That is really,
`really, really old technology, 1850s technology.
`That's what was around long before. And this is a
`piece (indicating) of prior art and it's what Mr. Senkiw and
`the co-founders of his company were selling at their prior
`employer before they ever started Aqua Innovations.
`Now, Mr. Senkiw's idea was to take that old
`technology and stick it in a minnow bucket to keep some fish
`alive. They made this (indicating), Your Honor. It's an
`electrolysis emitter that would dunk into a bucket full of
`water with some fish in it, powered by some double A
`batteries, and it would put bubbles of oxygen and hydrogen
`into the water. The hydrogen bubbles would just precipitate
`out really quickly and you'd be left with oxygen in the
`water, applying very old technology to what the patent
`suggests is a new u
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