combination of antioxidant and and detergent used in an oil formulation that provided improved and unexpected advantage there is only page forty two dollars of the red green after he says that for the  all throughout the record we never cited the particular case but all throughout the record we've contended that the invention is the novel combination of the antioxidant and the magnesium that overcame the war polish result maintained that it wasn't taught by the prior art and i don't believe that we are precluded from citing a new case that wasn't cited originally it's simply a case that shows what has to be shown for purposes of obviousness that wasn't shown here we certainly didn't anticipate that the board would make a decision that was effectively a decision on anticipation in support of its obviousness conclusion of the parties and all the players is trying to formulate to meet specifications that doesn't address that anything having to do with how you meet the specifications so again if you'd like to discuss  claimed those are sort of housekeeping i want to know with the disputed going taking unit turning to anticipation there is no substantial evidence cited by the board nor insisting in the formulations that we're talking about you call ingredients that people can get off the shelf and combine enduring it amounts to the fact that the components are known components doesn't negate against invention both parties employ fifty to one hundred ph d scientists to constantly come up with formulations that can meet the new and ever in you know challenging performance criteria that are put forth by regulators so that the challenge is always to meet the performance schools of specifications to meet the performance schools presented by new innovations in engine technology and you know how do  eight happened to happen to have coincidentally falling within the scope of what infinium has now claimed and thereby it's mantissa patient almost by accident so the burden for after is to demonstrate that each element is either dispute about antioxidant effets antioxidant g and i have to also say that we need a correction on page twelve of our brief where we say it's one percent of g and quite four percent of that it's actually point four percent in two and one percent of that but that that is reflected throughout all of the briefing but the issue is whether or not point for what is point four percent of g what is taught by that and is that teaching an amount of a minute antioxidant such that when you add f and g the total amounts of those antioxidants falls within the scope of the claims range and so that's the issue and it has to either be expressly stated or it has to be inherently stated now in its  petition and in its expert declarations afton took the position that component g is the commercial product are going to sell fifty seven they took that position they said it's clearly taught by antioxidant or not in the recent copeman doesn't stay there just because it's completely on in court and cola this is a comparative example and all coakley is reporting on is what they made when they made example five to compare it to the nice things that it was happy about in the other example so they're reporting on what they made and they said we used in a minute antioxidant cama commercially available is ergonomics open the seven when mr expert repeated the example he did not use point four percent of cura minack antioxidants which is what's required by the claims he used he grabbed her and i was fifty seven off the shelf he never tested it to find out what his purity was before he used it he used point four percent of it he added it to the composition and then he didn't test the composition at the end to find out how much a minute antioxidant was actually in the end that we used to be a minute antioxidant commercially available as are going to fifty seven when we made this example and there's no teaching beyond like how much you should use or other things you could use because there's no teaching about this example with respect to nicholas and is virtually the same as the type of analysis with respect to coca cola the difference is and this highlights the significance with respect to coca the difference is that afton had to acknowledge that l fifty seven was mentioned in the example with respect to the magnesium containing detergent the only statement with regard to the meat make museum containing detergent was that it is an mr started for coke he was going to have to talk about all the different possible magnesium sulphate that might have been able to be used in that example so it's something  and they're right yes and there are many different ways to get to get that and he goes through four pages of summary as to how you might get that by using various commercial products he identifies commercial products that are not even prior art and basically draws the conclusion of obviousness from that and i'd like to reserve time  magnesium and high amounts of that are all these are too common additives for h d d or heavy duty diesel luger chance that are seen throughout the hour so my time today i'd like to address three things one counsel about your statement on page forty two of the red brick that for the st time on appeal they raced in a new argument and she says it's it's not nearly right and i want to give you an opportunity and press that before you get in result defective variable is its own thing it has its own attendant requirements namely that you need to show or point to prior are it understood that the result effect a variable existed in the prior are sort of an attendant requirement to that type of argument we never had that we never had the opportunity to show and explain to the board that there is no result effect a variable because they never raise it in that fashion now there is and the board never had an opportunity to make the find because it wasn't in front of them so that from our perspective is waiver now even if there isn't a waiver we believe that there still is no result effective areal because dr la we believe that it should not be clear that he expressed grammar within the four corners of the document but it could be there the reason there is an argument is that it's not as clear as it might be but it's referring to a commercially available product or to the substance which might be available a number of places or might have to be created but is by the way if you're interested how we got ours from the commercial commercially available place in it from our perspective with all due respect component jeep is uses that for so from the grammar it says me the phrase commercially available indicates the one potential source of that chemical and not the amount not the point for weight percent of a particular and we were the only ones that provided a product technical data sheet from the relevant tie period and that product technical data she said and accident the commercial one was not  based on his experience in the field when he sees that something says no dilutes that it's effectively one hundred percent active dr lam i believe similarly limits on a variety of parameters including more polish including fluoro elastomer seal protection and including cylinder where these limits are important for people that want to sell loyal so in this market nicholson is a reference which specifically talks about a lubricant that passes a think it was absolutely permissible for the board to combine those references now nicholson i think is important to note that it has everything everything that  not one of the three obviousness combinations and the reason for that and lord understood this board followed dr lamb's reasoning here and our reasoning is that when it comes to the magnesium detergent and i just want to clear i think i that specific example as having a particular keep the total based number and that refers to sort of basis is a measurement of how basic this thing is and what is missing from nic as you point five weight percent magnesium so to understand how nicholson or what nicholson is disclosing dr lam went through the exercise very clearly of explaining tb and because it refers to a certain amount of activity based society of activity you have to and can and he did calculate different flavors of magnesium detergent that one could use to understand how much magnesium would be delivered and he goes through that exercise and what he and what he shows and what the board accepted was that on the lower and you must have a certain minimum amount of magnesium to get to four hundred dollars t d m and sort of your most permissive type of detergent and that calculated i think i believe it was a eight point two weight percent of some type of m out there that are sold commercially and used regularly and they're all sort of zeroed in on one two they deliver four hundred tb and all of those get you the right amount of magnesium if you carry through the calculation limitation could get exceed and other words then we'd be hearing arguments about well nicholson can intice a paid because we've come up with some exotic species of detergent that if used delivers four hundred guidance in terms of don't exceed a sash value all the conventional detergents used at this time would have delivered the right amount to make that meet the limitation of claim no other parts of nicholson ar those results and found them not persuasive we note that they said a p x twenty church five that the results were weak at best and that's because there's all kinds of problems invention and it lists various antioxidants one of which is ergonomics ergonomics product l one hundred and thirty five i think at that point but but importantly it says for the purposes of comparisons below meaning the comparison to the the other examples in specification the concentration and weight percentage each is based on one hundred percent active material so infinium is teaching in this patent and is claiming when it says point four percent of a minute antioxidant the types of antioxidants specified it's saying point four percent of that active material not point four percent of whatever commercial product you might call off the shelf that is the problem with coca cola doesn't do that and it is not correct that that in till we took the depositions of the experts that asked in everett took a position other than ergonomics fifty seven met the what was described by the claims it is in the manic antioxidant the issue is how much is coca cola teaching you to use coke is not teaching you to use anything it's just an example so the question is is it necessarily one hundred percent finding at the motivation to change or assess the examples in nicholson and quickly the the analysis that was done by dr lam is not is not prior art if we look at his expert reports he's citing to our that coast states the invention for these conventional magnesium detergent