while disclosing the use of the both wedges for formulas one being three v did not disclose the same boat with which stereo chemistry for formula two however it is argued that this was an incorrect seventeen they have not the not the genus well i would argue that it's still an issue as when you say that the council described generically that is their position however it's our position that when and let me explain a little bit further leaving aside the merck index i think that's important evidence that should have been considered by the work which they did not look at in terms of how some of the schoolyard would interpret the count and the claims but the reason you have to consider the straight line point upward as being evidence of a beta stereo chemistry is because of the interaction between the independent and the dependent claimants this is a written description much you're saying our claims don't have and the only way to get there is through to be correct as right so what you would say is that to be is inherent in the ratification but not a generic formula to it that is correct in the context of the b formulation but i would argue that even in the context of what they call the three or the one of the two formulation because of the way the interaction played between independent and the dependent client that that also has to be stereo specific because  think so the issue there is that this was a new issue raised by the board a cake they never attack the state or chemistry of twenty or two b when they brought their motion they had to burn fruit and they never said anything about the state of chemistry have to be and if you look at the decision on the rehearing the judge said you are correct that they never raised that issue and so we said if you're going to get into what formula to be is all about we told well those words aren't against him only in the standpoint of time so what happened was they never argued anything about the state or chemistry of to be and the reason was because their witness  precursor i should mention that's when but so what happened was that all professor gross was talking about was this is how the stereo chemistry conventions came about people used straight lines point straight up words before the introduction of these computer programs such as kendra they come back in their reply brief and now say oh no wait a minute after from the standpoint of the evidence it's there that you could use an exterior parents pre convention and the board did not reject professor gross in fact they said he was a highly qualified witness it was only a temporal issue a timing issue and we dealt with the timing issue and show that even after that went that there was still the use of mixed area of chemistry conventions so that's the issue for the independent claim in the dependent planes with respect to what additional motion should be allowed to bring and on this level there were several instances where we had requested permission to file motions related to patentability as related to the  issue was that they had i made some admissions in another proceeding in europe about an opportunity of some of the claims and we asked for permission to present that evidence judge  not allow us to do that and that's contrary to the precedents of this court about patently determinations being nearly mandatory in the context of the interferences and the second issue came up because in one of their motions they acknowledged that certain solvents didn't work and we said well and white exactas also utility issues there and then the word sag we should have brought that earlier but it's impossible for us to approach that earlier because the admissions on their part came into play when they brought their motion so on those grounds we think that there's reason for reversal as it's been from a panel doesn't have any other questions all reserve it please the court the board decision should be affirmed and i want to jump right into the issue of claim construction here as we're asking about the board's construed the claims of independent independent where they have straight line denoting a stereo generic formula and that conclusion is supported whatever your decision about agilent is as it pertains to these claims because the first source that is common to these claims is the claims themselves no matter what you decide about agilent and it's a put debility to non identical claims because counsel opposite says agilent does not apply to the independent claims the claims themselves of constantino can be referred to to construe that and of course in those claims the stereo chemistry at position seventeen is described differently independent claim thirty for example for formula one with straight lines then it is in dependent claim thirty two and i see only differences between but there that you have those arse right right and then for one b have actual substitution you see that right but i'm so when you when you take formula as to the aerial chemistry of seventeen that is the only difference to the three formula three in color is distinguishable only i take it not correct probably a typographical error because if you look at the very next line an a one a one are sixteen together with our fifteen is a speech to a group which is what turns it into three b between thirty and thirty two if you take constantino as a claim construction but we don't need to get there because the formula as your owners know or like the series of words and you can write it out and i pack a statement of the compound and when you get to seventeen you say nothing meaning generic or you say alpha or beta meaning a specific stereo chemistry and when you draw your own words comments on the so looking at the structures themselves we get there from what the board held as the common understanding of what straight lines mean as of the priority dates of these claims but we also get there from constantino as disclosure even if agilent doesn't apply we think it should you address the inherent c argument with respect to the think you are yes council opposite is arguing that because in the dependent claims formula one b and three b are selected formula two which is generic in the independent claim and as you observed it is generic i don't think they can establish their written description case must be interpreted to be to be and here we have a real problem but if it is to be then there's room disruption  support for it and there's little who maybe don't agree that it would be an error in the specification correct your honor if it is to be they still have failed to produce any evidence that to be is inherently formed from the experiments in their description it's their description that's important for written description here's the problem judge price and i was getting to in connection with the claim construction what they have done is completely obliterated the line between claim construction and written description and formula two means and then they commit a cardinal mistake of claim construction which is they go to college nine in ten of our patent and they say this is the only embodiment between one b and three and then they commit a sin that's been around for decades in this court and  it's predecessor of attempting to construe the claim as limited to the sole disclosed in body without any express statement by the patent the that's us now because we're an agilent without any express statement by the patentee that the claim should be so limited when in fact the plain language of the claim and the fact that formula two is always distinct from to be in the disclosure teaches us that even in the dependent claims that is a generic formula there's no evidence that silas and his disclosure limited it it gets worse though when they go to a written description because now what they try to do is say that because we disclose a reaction of one b to b to three b that somehow provides the inherent written description for them but written description is from their specification and their specification doesn't recites any formula two and no expert in any experiments on their specification showing that formula to be was inherently formed in their reactions and that's exactly the problem of these alleged admissions from fact dr cholesky our expert dr collected was redo experiments from our specifications and all he is doing in the single page they give us a three twenty from his declaration is repeating there's no evidence in the record whatsoever and constantino at every opportunity to provide this evidence and i have to point out that they've said repeatedly that we brought stereo chemistry of formula two up for the first time that is literally true in that we never said formula to his generic you know what we said was straight lines means generic we said it over and over again in connection with the independent claims and we said you lack written description for formula two w lines means generic right below formula one in claim theory is formula two with the exact same straight line it's not a surprise to anybody that when you say straight lines means generic that straight lines means generic for formula two and then the written description problem clicks right into place and there's no surprise to anyone because their own expert did not provide the testimony necessary to provide a written description for th dependent claims thirty two because thirty two and inherently provide a return to scripture and sufficient for into for purposes your honor i'm afraid i don't know the answer to that question bet this is where i get jealous of those of you in the audience in here today that have patent bar numbers i do not and i don't know the answer that question certainly not been raised by either party in the briefing i'm sorry are in the chain of only contains t formula to to the only disclosed in bottom and without any express statement by the patsy that's wrong then they want to use our disclosure to provide their missing evidence of written description that's using the wrong description the board got that exactly right they've got to find their written description in cost and tino's disclosure which is silent as to formula to they've known that all along they have to go to inherent written description and that means somebody somewhere needed to do the experiments from constantino this disclosure well nobody did that our expert didn't do that collapsed in do that and certainly will not find insurance in collapse they give you one page of a three twenty we give you the whole thing at eight twenty thirty six you will not find words in collapse like inherent necessary always or anything like that they could provide the necessary inherent written description for formula to be and even if they got that claim construction judged they still lose because there's no evidence in the record their experiments produce a formula to be coming down just briefly sounds as though you've written description problems of your own with respect to generic formulas to your honor that's exactly what constantino said of the board correctly observe that issue is totally separate because we actually recite formula two in our specification we don't need to rely on inherent written description and that's a battle for another day but i thought you said you only described for milk to be that's not true your honor involving the same compound from several years ago one of the issues in that case disappearing and the case was a fire sharing pharma versus far right in that case that compound or spirit is known to have summarized in acidic conditions a set of conditions called out in nine and ten for spirit on i summarize it at that position in acid so i'm not in any position to tell you that that it doesn't do something between one being three b under some circumstances and i don't know one is because testimonial period the issue is twofold one this was like i said no surprise to constantino and point out only as an aside that if they really wanted supplemental testimony they could have filed one forty six action and gotten supplemental cannot file its patentability motion that it automatically had to accept that at the beginning of the case gartside i don't purpose we kwon do not hold that they talk about what the board should do at the end of the case on a full record those decisions do not say that the board is has no discretion to say this motion doesn't address all claims and i don't want to hear it and then the second time they brought the motion was on the basis of an alleged admission at a fifty six the board says that's not fig leaf of excuse valuate sit thank you your honor we have not made any errors in terms of claim construction or the written description issues on the claim construction issue which i think the p t o did yes i think the people and i start with the proposition here that agilent says that the claim construction aspects are supposed to look to the spec of the patent for which you copied or put in similar claims so you start with their specifications and when i go to their specifications and look at formulas one b and three b the only way of getting to that is by to be and is just as tight pointed out that is the only disclosure they want to say well there's some generic disclosure earlier but that's not a political to one seems to be and three so it is a matter of claim construction that that's what it means and the reason that it's also a matter of claim construction for the independent claims is that when they say in their appellate grief that the only way that they work together is the independent independent claims have to mean the same thing so if the dependent claim means formula to be because that's what the says they're also means the same thing in the independently and if that means your honor that the independent claim has to be construed so that the straight line means the same thing as a bulk wedge so be it that's the problem with their pointed out there is an error in their patent but it goes through the claim construction in terms of making it make some kind of sense and the only way it makes sense is the way i've described in terms of being too now in terms of the written description challenge what my opposing counsel says is well there's no evidence in the record to show what's in constantino description and i disagree with that i mean professor gross explained that formula two was the stereo chemistry of formula two was provided by their witness professor class and what he says is look professor cholesky was only being introduced to reproduce some test results but as we pointed out in a reply brief chol never did those test results someone else did it what he put in his declaration was some indication of the mechanisms of the reactions before even getting into reporting and some test results from his assistant and what those mechanisms show that we used so on both levels the number one claim construction and number two what's in the record we have that evidence so the point is when they start the a joint credit going and yet when they start out in their original motions and put in this evidence from professor cholesky that formula to be is there they've acknowledged it and we don't have to deal with it because at that point they're the ones with the version of proof they're the ones that are coming forward and saying well you don't need to read the scripture requirement because a b c has and because they acknowledged that to be was indeed there we didn't have to get into the details of the story of chemistry it was only after the board then  original decision and looked at all of the independent claims we brought to the planet claves their attention and their hearing and then they said well they did not consider the cholesky evidence and so we said they even acknowledged that to be it was not an issue before in the original motion so we said cholesky doesn't do it we're entitled to a certain amount testament period and he says well you could just bring on one forty six action one forty their if you set aside all the procedural requirements for stuff and i believe i did they say that the ask for testimony period it has to be a miscellaneous motion and i have to answer tough on conference i think that was the argument the request for rehearing by definition under the board rules is deemed a miscellaneous motion a telephone conference the word rule says you do not need for a request for a here so we did follow the rules so to what extent is the greeting or denial of a supplementary separate testimony period discretionary with the board i guess i haven't really seen that before in my view they didn't you know exercise their discretion with the other they just ignore the let's assume that we we assume that they did exercise their discretion and do they have discretion they have some discretion but i think that if we come forward with new right but in my view as why should the board at less than a district judge who's in a well my point is that think the views that discretion then because in essence we started this interference as i say they have the burden of proof showing the consignors claims lack written description support and their initial position right out of the box was to be is there if you have formula two it's in the form a structure to be issue that's been invented by the board because they were defined in my honest opinion a way out to not get into the details of the interference so they came up with a new argument when i raised it they didn't give me an opportunity to present evidence