personal comments i was thinking about robert this morning and this is a compliment not an insult but if you think you've been here for a lot longer than the and that's a lie see because at least been involved in an enormous number of issues that have com and i don't know what i would've done without him but i'm also really excited to see him go out in the world and learn to be a lawyer because i think he's going to be a terrific attorney and he's going to be a great asset to the legal world and to our  morning this is an appeal from the decision final decision by the patent trademark office patent trolling appeal board in i p r proceeding we think that that decision should be overturned because a fundamental mistakes with regard to claim interpretation and also analytical errors with regard to how the ford handled the evidence it had in front of it first of all start with a claim interpretation from the board doesn't appear  testimony is reliable and one of the ways to determine that is whether it meets scientific method and they are to that it is one of those methods to test whether it's reliable but you have to start with what the claims are you can't do it in a vacuum just limitation it says nothing about r squared and that the spec says nothing about r squared of the prosecution history says nothing about r squared in a week if you want to look at extrinsic evidence you can look at our square but there's no  evidence of record in our square was being used to interpret the claims you've made but the problem is that there's all sorts of scientific methodology for mention different things and patents just don't doesn't match up with that isn't the word entitled to disregard and you have never came in and said i did a test and it's ninety five percent and and the other side type person comes in and gives a report showing good testing is not done with clients with according to the proper scientific surety testing  isn't the board allowed to credit that other expert and say despite the fact that your evidence showed ninety five percent it's not a proper scientific method and disregard that evidence even though that method of testing was it still the purity is a much simpler question than what we're dealing with here because of security is it is the answer to that hypothetical yes that they're allowed disregard it if it doesn't follow proper i think if there's no question about how one determines purity  think the real question is why how to explain how to spell the proper scientific method for meeting whatever standards when the standards are scientifically up in the community because no one will know whether they meet the claim or not if it's open ended as far as how you judge the cure doesn't the take we don't know well because in any kind of claim whether it's a pharmaceutical claim or a claim like this there must be established scientific methods for reaching the result i to is something to look at the question is goes well beyond that the question is what how do you determine are two how do you do you count the look at the entire curve or you just ignored the zero zero point is a is something that you can subsist on within the claim limitation you have to subsume it for everything that the board is looking at there's nothing that says it's well established what numbers sufficient with regard to cure go so mentation there's nothing a stablished about what you count and what you don't count so that but that's all a judgment of extrinsic evidence of the if the plain meaning of the claim is open to whether our squared is relevant if whether our square has a test of a certain value as to whether how you calculate our square those are all we were required to show that when we replicate the prior art and test it that the claim is read on that as far as this jury goes women teaching goes that's right ok but the other side of the board can evaluate your testimony in support of that scene and evaluate what the other expert said with regard to what your expert said and read and reject your views certain that would be under substantial evidence write it to the substantial evidence test goes to whether the evidence that there is substantial relevant evidence to support the decision of the board so that the other issue with the r squared is whether it's relevant and if the claims say nothing about it and and the board relied on that too to decide the case then there's no relevant substantial evidence to support the decision we think that starts out with the claim interpretation being wrong that there's no look at the intrinsic evidence here it's ignored and the board got it backwards by saying you didn't you know they didn't look at the language of their opinion they say we didn't meet our burden so we don't have to interpret the claims how can you say we didn't get our burden of showing that the claims  that we believe that's sufficient to make our burden we there was in other words you can phone with them and in fact we didn't think there was anything to really argue but when the when the other side started presenting this are two things we can't predict where they were going to go so when they present there are two issue we came forward and we presented evidence from dr rice minus and in our in our remarks that are reply that the claims were broad and that they could be read in certainly subsumed within the burden within within the claims of under the broad is reasonable interpretation is the test method that the patents in question actually set out so that's that's how we that's  clean construction we presented that we at least met up with that and it seems reasonable that we should be able to rely on that test the only in and let's just talk a little bit about what this these patents are about their patent fast curing films what that means is page point three of our library we have a curve here on the line and that's our our plots and all the data points are up on the top of that curve so we basically and the whole idea of this is that the data points are on the top of the curve and that is very consistent with what the the d s m publication outside of the kind of the litigation show so there's nothing wrong with having data points on the top of the curve however d s m whole premise was this is bad having the data points on the top because your r squared is poor well the only we are squared is poor if you ignore those zero zero point and just say we're going to look at the points up on the top of the point and that's and that makes your data bad well the bottom line is that it wasn't bad when they went to publish it they want to publish this and the data points were very similar  threw it out with them rely on it and mistook their data for ours and said that their data was always ours and that we didn't make our case because their data showed curios outside of the claims so that was in the sticks that they clearly didn't throw it out on that  they didn't appreciate the import of what they were saying when they said that the data wasn't relevant that data was presented to show the coining did something wrong when the board figured out that the that in fact it's not a valid basis to compare corning's because they did the test different it should have been thrown out for all purposes but then they proceeded three lie on dr bowman's analysis of their data which had a very different curve why did it have a different curve you can see it's  more gentle rise why they have a different curve because they game the test they made the film that they tested six or so it cured more slowly and as a result the early data points the same data points we used found their test showed up off th own procedures horning follows their own procedures and yes those procedures in the pattern get a fast during film just like these patents are supposed to be achieving and their data is bad because now our squared which comes out of nowhere as far as these but our data was involved the it was within the claim taishan so i don't understand how that makes any sense in any event they still credited that are squared analysis to say that there was something wrong with our data the whole r squared analysis is built off this different way they did the it's just it's it's compared against theirs and theirs was against it was again the result there's nothing to say r squared is good or what is a good or bad are squared here and as dr russell honest pointed out you know if you take substantial evidence in the record to support the dorp the board's decision in determining that corning's data the evidence on which it was relying was scientifically invalid and the burden is on corning as the what corning was relying on was the testing that it had done on coatings that it had made to try to show that this sure those property was indeed inherent in the the prior art composition the the the issue of our square goes to the scientific validity and the accuracy of that data the board credited dr bowman over dr reichman and in determining that  that corning's evidence was not scientifically valid and on that on that basis and that that the board's dr bowman's testimony is well supported in the  the record referring to the record for the one of three patent appeals at ten fifty to appeal it's well supported paragraph one twenty to thirty two it is a thirty seven thirteen to twenty three in with matter here of corning has no evidence to show that the limitation was narrow and they're relying on this limitation being inherent so they're relying on their test data to show its math and the board has determined that the evidence the only evidence that they're so well up the arse the are two or r squared analysis goes to the quality of the data and it's not as we would say it is not an issue of claim construction because that's really getting into the quality of the data it's talking about what's good scientific practice not what the claims mean there's none and it's just a way to show the data that they collected that they were relying on to try to show that the property was indeed sufficiency of the data itself on which they were relying so claim construction is not going to fix the validity of the data if they have no evidence on which to rely to show that the could that this property would be inherent in is used to show two for her fitting purposes so as no there's no issue that the curve when you're doing the fitting wouldn't go through the origin or near the origin the issue is to take the data that was collected  determine the accuracy of that with that type of analysis using actual data adding in the origin which is not actual data then that will artificially inflate the r squared analysis and that was that something that dr bowman inflate it will inflate the analysis of the board looked at that issues is zero zero issue inside that zero zero using that origin as part of the r squared analysis but that would not be based on actual in the process that's going to be somewhere else and it just seems to me that knowing the part of the physical properties of whatever's going on here and the lack of energy all together you could come up with a hypothetical below a certain level it's probably more difficult to collect actual data but you could still collect some actual data that follows certain levels tend to help for get a better model do a better paragraph eighty four she isn't at a fourteen fifty nine she noted that she was she was not relying on or that the corning was taking a zero zero hypothetical zero zero point and that when you removed that that perfect point that the r squared analysis that she got was very similar to the r squared analysis that that d s m had done of corning's data as well data but that the in the results at page twenty three the that is the charla curve in trying to say that show that that d s m had had some publications that showed a curve that was similar to the result that corning had generated however that showing that there are something out there that has a similar curb certainly doesn't is not substantial evidence or something that the board in the board considered that doesn't detract from the validity of the scientific invalidity of corning's data itself and in addition the analysis that corning had done on the charlie curve that was done by and she knowledge is at paragraph eighty five in a fourteen fifty nine that that what she had done was with digitized the the curve of their own data and and without any explanation of the analysis had been done and with no underlying evidence to come up with with her own sort of our squares and to try to show how that would compare those that's simply not relevant to this curve other curves other herbes on that were in publications that's not relevant to show that the quality of coining the status was somehow scientifically scientifically ballen another issue mr goldman raised had to do with the d s m testing and that's not something as has already been know that's not something which the board relied the board was very very specific in saying that it in the request in the decision on the or the request for a hearing to say that that they were not relying on d s m testimony at eight thirty for that that they were relying on corning's analysis and with respect to coatings are r squared for having faster cheering sure encodings the r squared issue has more to do with the quality of the data analyzing the quality of the data had it doesn't have to do with what the coding is being tested substantial evidence in the record to support the board's decision clint the claim construction issues doesn't fit the validity of the data in this court should affirm unless there's any further questions i will conclude my argument and the manipulation of removing that point to say well all the data is on a flat and it doesn't meet a curve is pretty transparent all playing with numbers to get a result the other alternative was always at a data point in so the the barrier of the ninety five percent of of total modulus of the final modules and is that below the point six five values that's the only issue that matters here those point the points or that's going to happen whether your bug point six five or whether or not is to the right on the curve compared to what we're talking about which is on the left at the lower dose it doesn't matter it's not going to affect the outcome of the result when construction i don't know i guess i was stuck destruction always matters and how we can say that we did meet our burden of meeting the of showing that the art met the claims is hard to fathom going back again to the business of whether you look at the origin or whether you don't look at the origin all that is grounded in looking at a strange view of the description of the test method that's in the patents in question it says you need to fit a curve to the data point it doesn't say why you're doing it says nothing about r squared dr rice monist testified it's pretty obvious you're filling that curve you can figure out where you cross that the ninety five percent value and whether you're below or above the the sports six five number that you have to meet for the coin it's not it's often saying about fitting the data for r squared it doesn't say anything about whether you look at the data zero the number is zero zero because it doesn't matter it's well below the point six five am so it's a strain reading to say that somehow the suspect is requiring removal of the zero zero point in a day that's all dr bowman has is that strain reading because at the end of the day the zero zero point is something of value to give the logarithmic or the exponential curve to the to the data and if you pay attention to that you'll see that the r squared is perfectly proper as far as char reference that we talked about that is d s m's own data the data points are in the same place as ours they took him at the same time same six points same six those and they're all up on the top of the curve d s m didn't think that was anything wrong there and so basically the patent office ignored that and said well there's something wrong with the with corning's data because the r squared is is is off but the r squared is just as dr h minus point out the r squared is worse for for d s n data than it is for corning's as far as looking at it without considering the zero zero point so again we think claim interpretation is important we don't see how the the board can properly reach the conclusion that we didn't meet  burden when as far as whether the prior art was read upon by the claims without knowing what the claims mean and the way things are right now are left now nobody really knows what these claims mean nobody knows whether what kind of are squared you have to have how you're supposed to use to plot the data how many points you count it's all left in the air and we don't think that's an appropriate way to resolve the situation let's say for the