earlier conception date then you must find for senior party brain because it hasn't really or by a gate if junior party miller who's an earlier conception date then it must also have proved that rand derived from miller let's look at the dates that the work help the border help that you near the border how the junior partner was limited to an earliest possible conception date of october twenty seventh one thousand nine hundred four the board also held that junior partner miller had at mit that brand's conception drawings were made at least as circumstance as a binding admission no discretion at all they were outside their jurisdiction when they gave him a pass so to speak your honor they may have a part in some areas but in this area where there is an adversarial relationship and the parties are setting the issues especially conception they are not under the authority to disregard a factual admission made by one of the parties but that hardly a mission was made there was  no further opportunity for brain and to introduce any more evidence on this issue right at the time that the emission was made by miller you are branded and procedurally have any right to at least if you look at the rehearing thing is there's two things on the enablement of the miller disclosure one they said that it is that someone skilled in the army would have understood miller to be describing paul in dogs which is seems to me to be questionable if it is that they've explained why a person of skill with skill in the art of understood that but the second one is that they thought that a person of skill in the art would have known to use man sufficient to provide the necessary stabilization might that correct yes your honor i want to clarify we're now talking about miller's conception disclosure and we're talking about whether or not what miller whether miller's disclosure was enabled that's basically what they've done right they said someone skilled in the art there may not be any testimony here that would show that a bugle headed dog could be used for this purpose but we know about the  art and we think it could be right in my reading the decision to write that to the decision set but first of all that's not what was in the record first of all there is merely his own testimony the only testimony in the r says that in addition there was miller's testimony at a three sixty three that says my sole reason for explaining that you had ruled out was to allow me to cut their testimony say that it was used for a different purpose and in addition there was testimony by those still in the art the midnight party brand that the board disregarded late they were there saying that it would not have worked  done in this situation and it didn't do that it relied on mill evidence in the record it made assumption and that is legally incorrect well i'm not sure what you're saying are you saying they can never rely on their own knowledge of the art they can only rely on the testimony of an artisan put in by one side or the other that describes what the artisans kno that if we isolate the issue of the contrary evidence the country testimonies are they simply disallowed from using any expertise they might have in an there was also evidence by yes the writer but judge michele asked me for the purposes of his hypothetical to exclude that is but as far as our and maybe i misunderstood it but i thought he was asking  what evidence there was to support your point of view that contradicted what before i'm sorry can you rephrase the question what evidence did you introduce to show that the cut regular flinches and girls the evidence was in the record by inventor brand that the bugle had it dance would not work well for three reasons that's it one minute for two and two of the record in addition there is no miller drawn in the record that shows every element of the count until you get to miller's patent application there is no any other big mirror uncorroborated corroborated but there's more honor there's more because of the admission of the fact that rand its conception was complete on october twelfth two nineteen and because of our the testimony in honor and that is the completion issue there are two legal at least two legal errors here the first legal error upon which first you can reverse that neither party has met its burden to show an earlier conception da because brand is the senior party in brand and brand has the earlier filing date however in addition because of the admission of fact on part of partner you can reverse because bridge has proven a conception da that is corroborated by the first operation of cars which just state that the brand driving be x one zero zero one which has that october twelfth date on a was made about the date shown in the drawing and includes a tape or flips that's in his declaration but the board ignore that fact in addition to the admission and the corroboration by price and the testimony by the inventor himself all of that corroborates graham's invention that is one reason to reverse but in addition to that the board legally err when it raised this completion date in its decision that the parties had not addressed and that is legal error because neither party raised an open issue about bridge conception date as we just discussed miller admitted and in fact miller didn't take issue with brains conception date but rather miller tried to get behind rand's conception date by filing a late preliminary statement that the board disallowed so nobody was contesting these dates from twelve to the nineteen until the boer found this issue with the  drawings let lowing ask you about this completion the issue is that as i understand it the groin the started on the date so none of which i believe was october twelfth and that there after various additional things were added to the growing now suppose that that process continued for six months then we would say that the completion date was at the end of six months but that doesn't seem to be the relevant it seems like the relevant data is when enough things have been added to the drawing to show partner and is fact if you look at the dryness the x one zero zero one and a ninety one shows the twelve and it doesn't have any of the handwritten patients that bothered the board in the serial dates that bothered boards and it shows all of the hours that count the board also mentions the x one zero zero six which actually does have the handwritten notation that bothered the board but it doesn't show all the elements of account so that shows that scan written occasions that were concerning the board out of completion date actually aren't relevant to the completion date of the count and not in the or if it was going to raise this issue that the parties recognize will answer my question because i'm trying to figure out where you're going here where i'm going is that it's exhibit b s one zero one zero is an exact copy of b s one zero zero one but for the fact that there are handwritten notations added by robert the brand that state that the last one then to that drawing occurred in august of ninety nine so what if it's not relevant to the invention of the count it could have been done yesterday that would have no of that document one zero one zero which showed that it had been amended but they didn't mention that did that yes where specifically they mentioned it in the discussion of the means the document that was produced without intimidation as brand exhibit one zero zero one is identical to a document produced as one zero one zero having a blast and then to be an august of ninety ninety five now that means last saved date on it and that was the line that brand was testifying about when he said he believed that this one was completed within a week correct all right so that doesn't seem to me that the fact that there are other drawings with one hundred ninety five  sounds awfully speculative let me let me ask you about the miller conception the argument is that the board the miller's evidence in which miller had the burden of proof was deficient  say well we're going to supply that deficiency because we think a person skilled in the art would know enough to do this and that and the argument is that the board can't do that what's the response to that the board did not step in and supply evidence the board clearly did they saw that there was a document that showed the bugle had a dog but the but the but the question of whether that would provide the stabilization of the stable and is something that comes entirely from their expertise right no but the question is would it work and and bran didn't testify that it wouldn't work diddy brand did not testify it was not what grant said ok but the question the question is what's the support the board seems to step in and based on its own expertise to supply support for the idea that one skilled in the art would know that it would work right and would be motivated to use the correct correct what happened in the case in the declaration of w system and that's what led him to the stable arm which is shown in their construction documents they show he said i'm going to put little dogs but i'm going to fix them so that the confused the way i read the board decision you show me where in the board decision they're relying on testimony at this point but for the enablement point that the people of the dogs would work they seem to be relying on their own expertise are present at pages fifty nine sixty one of the decision in fifty nine to sixty one of the original decision they talk about how someone skilled in the art would understand of the evil had a dialogue would work and ok so that leads to my question which i thought you said there wasn't any basis for the in the opinion relies on the board's understanding the question is can they do that when miller's testimony wasn't sufficient the testimony of robert d brand i don't care what your position is right now i mean what the board's position is at fifty nine to sixty one they talk about them their own expertise years and i think they are entitled to  do that ok the council how can that be true in this adversary proceeding with proceeds much more like a trial than an expert examination in the context of interference why shouldn't the board have to a huge role of being the experts in the case and simply function as if they were judges and not witnesses gets appointed to sit on a panel that hears and interfere i'm talking about when three administrative patent judges have been so assigned whether they can play the role simultaneously of expert witness and adjudicator or stars i thought you agreed with judge dyke that in addition to relying on certain testimony they also relied significantly on their own sense of what an artisan would conclude are you changing your position are you saying that they didn't rely on anything in their own mind they only relied on the testimony of the witnesses it's my belief that they looked at the evidence that was put into the record concerning the single bugle head view that that's an if you look at tory roll or testimonial and i've explained it i think it's it's within the province of the board to make that decision if you look at page a sixty two of the original method of attachment that would work would be the state you are as illustrated in brand exhibit one zero zero one that state law was generated by robert de rand after studying thomas miller's declaration because he said he studied it he didn't say it wouldn't work because it would hold it wouldn't work because it was intending to work well because it was and that evidence was before the board and from that testimony to show that what was communicated was enabling however inventor brand is one of extraordinary skill in the art and he's not talking about what was communicated he was talking about his own studies his own experimentation and his own work to develop his own state laws so that in itself refutes what was communicated could have possibly been enabling and we're not sure what was communicated turning out to you my conclusions brands conception is clear and corroborated at age three eighty five of the record branch set forth in its brief that its drawings were made at least as early as october twelfth to nineteen one thousand nine hundred four not refuted by party miller until the board's decision on the completion date miller's conception as we've been discussing is not proven so even if branch conception was not proven because bra