problem here i mean this to me seems like it should have been considered prior or it's upon the role of that you know context and circumstances but the board made a contrary factual conclusion and it's a substantial evidence and how can we overturn that well i think the reason is that down the board's factual conclusion was based on a pair of independent legal errors either one of which would compel make it or in this case and in fact it's undisputed that these errors if committed would be legal there was compelling baker the only  whether they happened so let me go over them the first is the board assess the evidence and factor supporting public accessibility in isolation from one another letter and that's i mean hall's really going to assess the different pieces of evidence except to go through them and discuss you know whether they're good or not they may not have made the ultimate solution that you know even put together they're not good enough but they've looked at all of the evidence well there's two thousand side making that specific error and of course there's a second i'll get to in a moment the first is that the board identified fo categories of evidence so if that had exhausted the field the point that they didn't consider all of them you might know their argument that they didn't make the final statement might be a stronger argument but the four categories of evidence in themselves do not exhaust the field and particularly the board did not consider the big picture question which is what kind of article is this what kind of publication is this is a print publication that is to say this is a article in a scientific journal each of the four factors but they were clearly aware of that they looked at all of that they knew that this was a you know whatever evidence was on the record and they decided that put together it wasn't enough i think they're wrong but it's a substantial evidence standard and they certainly did say that they also said though with regard to each one of them for example on page sixteen of the board's opinion it  that they stand you can't rely simply on the dates and you need more than that of the copyright without more coverage ration without more is not sufficient evidence but they didn't put it all together in particular in the context for second you've referred to leary article as being part of a scientific journal a couple times yes and so are you saying that these proceedings are something that every member of this is cited receives and it's something that's published on a monthly or quarterly basis record reflects that it is  regularly published set of proceedings with a continuous set of volume numbers one after another right there it's not a there's no evidence that it's like a journal like a monthly journal or a quarterly journal like how i typically think of a scientific technical journal that's published by society in terms of what the record has in terms of the regularity we have two things i would point to one is the receipt of three one of the receipt by a serials department which is to say that that's where it would have been shelved so it's consistent with the journal the second is the fact that it has an i a s s n number which is to say not merely an international standard book number but an international dental standard serum we know that the society this engineering society received a block of i assess and numbers and i as being a numbers and assigned an individual unique number and i assess a number to this particular publication in this particular proceeding what we don't know right now is what did they do with it is this something that they push out they make ten thousand copies of this publication and then push it out every single member of this is citing assuming there's ten thousand right or is it something that they keep and then anybody that somehow learns about that particular technical conference which this publication compiles all the articles that were presented can call up the society and get access to it that way if they know about the technical conference so if you think first you certainly don't need ten thousand copies in the whole case you had a single thesis not freiburg university enjoy where we're trying to figure out what in dish or do we have guests that they what they do with it after they give it number and after they assign a copyright date to it right so the in disha we have in terms of how far it goes include number one the copy that we have in the record is from carbondale illinois the conference was in san jose california so we know that at least one copy traveled halfway across the country additionally on the copyright page of the ever university copy it's in the morris library of southern illinois university additionally we have it page thirty three eighty one of the joint appendix a statement on the copyright page that interested researchers are free to copy the article if they wish so long as they send a fifteen dollars check to a cut rate clearinghouse so i can't tell you that there are ten thousand copies out there i can tell you that at least one travelled across the country and that anyone who took it out from the library which was free to make a copy but i like also to get to the second independent legal error that even if you were not persuaded that the board failed to consider the evidence in the aggregate this second error would necessarily compel make it are independent of that which is of a particular date what if we were to read the board decision of making a finding that they just couldn't assign any particular publication date in terms of public accessibility because the evidence and argument pre sented to it on that score was just too meager and underdeveloped for it to have any confidence that it actually got pushed out and was made publicly accessible via any given certain day so i think that if that one statement was  possibly it would be possible perhaps to read it or the opinion in that way but the board then repeated this particular date requirement and expressly articulated it as a burden to establish a particular date five additional times there after  burden to establish that it was prior to you know how the burden to establish a date range and all they were responding to at least in the pages you cited were the notion that the date stamp was sufficient and so they're saying you have to show more than just the date stamp because that doesn't necessarily correlate with the public accessibility so i mean i don't read their decision as saying in order to establish a print publication you have to show the  it became publicly excess will you have to show a date before the you know priority date when it was publicly accessible that could be a range of dates that can be likely you know anything it's going t or date generally certainly it's a particular page and eventually they didn't i mean if they'd said well work we're convinced that this was probably publicly available prior to the priority date but for the relevant  so they didn't say any taken off the pages i cited at fifteen sixteen that was in the context of the date stamp but then they repeat it on page eighteen in connection with the copyright and then on twenty twenty two twenty three twenty five and they don't get just use particular date although i think that's quite telling they work it's the same issue with the copyright copyright doesn't necessarily correlate to public accessibility and so they're faulting you for not enjoying public access ability by pointing to a date that doesn't prove that it doesn't prove public if they'd stop the public access except except i would agree but what they said was accessibility as of a particular date again that's on sixteen it's an eighteen with the cop rate again twenty twenty two twenty three twenty five and to the extent that it particularly when looking at twenty know the problem your argument is it's the same thing that they're responding to if you put forward all these different dates connected to events and they said none of these it events are sufficient for us to find that it was publicly accessible because he could draw the equal inference that mere copyright were your deposit in the universal good library doesn't show public accessibility to the again i think that the statement particular data is quite clear but if that one isn't they also say and i forget exactly which of those pages that i just mentioned they also use the formulation date certain might be twenty might be twenty two but the point is that now if you thought the opinion is unclear and could be read either way the point still be the same the result would be the same which is that this court has repeatedly held they want a board decision can be read in multiple ways one of which would be based on an impermissible basis based on legal error the correct course is simply to vacate and remain to allow the board to more clearly articulated its reasons and more clearly apply that to the correct legal standard let me ask you this when the when the paper was presented on the inside cover the proceedings live journal says papers were selected by the conference program committ prefer senate in oral or coaster format was in the paper presented in poster form the record doesn't reflect which one it is and we are not relying on a poster in the way th the date was january of two thousand and two our argument is that that indication in the inside cover reflects the practices of the organization particularly that the timely dissemination point and it's clear that the purpose of this is something that the court has emphasized in multiple cases that when the purpose of a particular reference is for the public dissemination to interested in skills members of the art then it's more likely to be a point of public let me ask you as i soon enter a petition and you pointed to does the board accepted this as prior art for purpose institution in the reply or in the kind of response a disputed this why didn't he comes after the additional evidence in forms of an affidavit or something either from somebody at the library or somebody at the society or something that said you know this is publicly available in the ordinary course of business in terms of back to david's what we had in the petition supporting petition was the affidavit or declaration of our expert who's a member of the society and offered the opinion that it was publicly available as of june of two thousand and two that point wasn't disputed by their expert also a member of the society but it's just not in that they did dispute that it was publicly available they did dispute that it was publicly available and in light of this court's cases and in light of the nature of the reference that we had we thought the rep that record was sufficient and i just like to close by pointing out that there's where you what what's the specific inference you want us to accept is it that this society had a website that announced that it had this publication of these proceedings from two thousand and two as of two thousand and two and then therefore anybody can find we read through some electronic index of their publications on the web or do you want us to accept some inference that every member of the society just gets copies of these publications and so therefore it was distributed to every single member or do you want us to accept the inference that something else happened that introduced this publication into the storehouse of public knowledge what is the specific inference you want us to accept other than just saying it was time to disseminate it that's t conclusion what's the specific act the society did you want us to believe is inferred from this record i don't think that we're asking the court to make any of those specific inferences i think that we're asking the court to follow the guidance in the during that footnote indicating that when you have a scientific journal article and all of the evidence points in the same direction in the absence of contrary evidence consistent the stamps dot com case you should conclude that it's a print of publication upwards of one point which is lots of the theory of how it became publicly accessible is not just suddenly magically public excessive publicly accessible because it's a scientific journal i would have thought your answer would have been we offer proof that it was deposited in a university library where it was catalogue and made available that would be  of lancaster draw i don't think cataloguing is necessary i certainly think the evidence would support a conclusion that it is in a university library again halfway across the country from the conference and that it is the sort of article that would be treated well and there is little to understand i just like make one point which is that if there had been a single case in which this court had ever treated a scientific journal article as something other than a printed publication ingrown would have cited it no such case exist board is free to draw inferences you know those images from that question could it does the word require or do you think the board should require direct evidence rather than looking at it can textual side of that evidence and being able to draw the final and prin i don't think it necessarily requires direct evidence but the point here i was so is that again let me ask you given that this is a apparently respected society that both of the experts in this this case belong to that they both publish have said well i don't i didn't get it in the mail well your honor i think that would flip the burden and i think we would look first to their expert which did address public accessibility in his affidavit and all he said was this was received by a library that's the riveted of the date stamp if you want to rely on expert evidence the way that a b s should have proven this case was to have its expert actually say i was a member of speak at this point in time our expert was not in two thousand and two but have their expert who was a member of the since one thousand nine hundred ninety eight actually say i've received this or i know that speed is well known and reputable those are the types of things that are missing in this case and i think this is this this case is similar to the lister case in which it is certainly possible that the story that was told based on the evidence somebody could have made an inference about public accessability but the court said that that would be pure speculation and that we need more of a record basis and so here i think there are just too many inferences to make be be made we don't know what the publishing practices are we don't know what the membership is we don't know why it ended up in the library enter and i have with your argument i think lie on publishing these are foreign times but they rely on all kinds of non patent literature and you know take your position to the logical extreme every single time an examiner wants to rely on patent literature it's going to have to do some kind of extra level of fact finding to develop a declaration from the publishing house of that particular article guarantee that not only was it published on a given day but it was actually somehow publicly disseminated by that date and that just feels like a lot of make work and it doesn't really make any common sense so what's your response to that sure i would point to two things the first is that we're not asking the board to abandon common sense or we're not trying to restrict its ability to make inferences here and i would point to that erickson versus i what's the answer don't don't talk about right now to talk and so one one i think that depending on the record it is possible that for example in the dermot case just since they brought that up there we don't know exactly why because the court didn't know was that that scientific journal quote unquote was a december nine hundred ninety five issues so i think there you might be able to draw the inference that look it's a december night in ninety five it looks like a monthly periodical it's regularly distributed here we don't have that this is a conference we don't know if they distribute after every conference or how often they do we don't know what their publishing practices are this is not a regular publication in the sense of a monthly periodical the other thing i would say is that very much that if a patent examiner were to find an article in particular long in the scientific american that they could just take official so it would depend on sort of this common sense point and i think your official notice point is right because if it were scientific american i do think that the board is free to draw inferences based on official notice so for example in the  membership is large we know that it is well known and reputable so we're going to take official notice of that fact and i would point out here that they didn't do that you'd taken the i don't have contradictory view on with the board in that erikson  membership and it's been publishing all kinds of things journals as well as these publications compiling articles presented at technical conferences for decades and decades and decades with that have been a problem for the board to take  and what they seem to have done is and with they've seen them in doing another of these kind of publication cases is imposing a much more strict standard of requiring some type of direct evidence either through affidavit or actual evidence of public accessibility rather than just allowing a factual do you in the context well your honor my response is that is is actually to go back to the process point and so here i would point the board to appendix six ninety nine whe imposed some type of direct evidence requirement that they have to have an affirmative evidence of actual public accessibility and can't rely on an princes and that would be legally correct yes your honor but there would still need to be a record for each inference that we think of that is the critical link here and if i could just go back to restore quickly there it says we need at least some evidence of general practice that tells us when and we're fine with that that's the type of inferential thing that i think you could get to you know or you could have official notice there are other ways to get there through inference but you need to have some sort of record basis and just go back to the process point and the sort of holistic inquiry i think it's very telling here what happened s at appendix five eighty one said these are the categories of evidence we're going to rely on and in this particular case the board asked repeatedly this is from six ninety seven to seven hundred it asked several times you've given us publication information what else do you have to link publication to public accessibility and they rely only on them specifically the i s d n the copyright date the date stamp and the speed website print out with the publication date so the board asks again and i was hate that seems to be hurting your case it seems like they're asking over and over again for direct evidence of public accountability which is the problem is down the standard they're imposing their legally incorrect aggregate all these facts support each other and the only facts that they actually give to the board one is asking tell us how we get from public sorry from publication to public accessibility it points to only those parts of the record and so i  all all i would say is that when the point i feel for is making is that the petitioner didn't present any evidence of either regular practice from the southern no noise university library how long  ordinarily takes upon receipt of a book to get it up on the show of an index has had a lot of good to be publicly accessible to anybody that visits a library nor did they present any kind of general practice information from the society that once it publishes one of these publications of the technical conference that it does something extra with it in terms of trying to get it out to the public does it distribute and how many does it distribute it who does it distribute to and so on and so on and because there isn't that kind of general information knowledge of the practice of acceptability there's a problem there that's correct you can't name because that you can't make an inference of well w ith out by june two thousand and two or may thirty one two thousand and two or july fourth two thousand that's correct your honor both those questions were supposed were specifically asked at the hearing six ninety nine seven hundred two you have the indexing do you have the publication you know general practice evidence and they said no both times and so in the end what the board did and i think it's very clear from that the final written decision is a first recounts a very carefully and specifically at appendix thirteen to fourteen that a that there was no such evidence in this record and then goes through the pieces of ever of of evidence that a b s proffered and says you know we don't know what to draw for example from the i s p and i ascend numbers we have neither argument nor evidence to explain the significance of those items to us and it also made leaking the students with that commonsense allow us to take some sort of notice that all of these scientific organization exist in some sort of deal atmosphere where part of their purpose is to set a standard for their members publications their members submissions and then push them out into the community and that's a large part of their purpose well your honor to response is what i don't think it would be discourse rule to make that judicial notice i think that would be the board's role to make in the first instance and for this court to review the second thing i would say is that i think that would be a very sweeping statement there are different types of organizations out there right there's there's not going to be an organization that both the parties experts belong to you in public and not journal s i don't just not a unrelated professional organization that's correct your honor but we are looking at a specific time frame of two thousand and two our our expert was not a member at that time i believe and we don't know if you know that was the nascent period of this organization we should have some basis to be able to draw a conclusion to say that this was in fact a well known and reputable scientific organization that was succeeding and all of the things that it wanted to do in terms of timely disseminated and the board has a clear profit on this that if you are going to argue about weight and you can do it in your patent response or in yourself to freeze if you're going to move to exclude altogether then you can do it in a motion to exclude and so here i just don't think it matters because there was ultimately no exclusion by the final written decision and so all you have is the board saying very clearly at the very least we believe it's hearsay but we just don't know what to draw from it and so we don't think that here is a point really you know sort of shakes  two would be sufficient to get behind the march two thousand and three priority date and that's why the board's apparent reliance on a particular date requirement is so significant here now i'd like to emphasize that not only did both experts publish in this journal the experts c v twenty percent of his publications are in this journal so there is no doubt that this is the kind of journal that at least these experts point back to when what going back to one two thousand and four is his earliest this is two thousand two but we have something before that in the argument from the board that fair to say it's fair to say that the specifics we're going to see in the publications those were not specifically mentioned the broader point about the speech being a well known and reputable organization has presented both in five eighty one of the appendix right  sentence that was drafted by the attorney for the client it wasn't something that was supported by anything by pointing to something in the record to establish that as a fact the fair to say the record we had is just professor robinson's declaration that this was