e s and that it's quote not much of a leap close quote to make that determination the standard for an apparency explicitly states that we can't find the can't find cannot find in the prior art and the second important part of that backdrop is that in his testimony that your zaf never said that there was another way in which you could improve and serve a control in there without attributing a focus error signal and attract an heiress ago he did say ninety nine percent plus in this portion of his deposition but he never attributed any type of remainder to a different type of system in fact when specifically questioned about whether these experts proposals could be implemented in their doctors that explained why while it's that in an open loop system could not be used in in the declaration because after all this substrate is neither perfectly round nor perfectly flat you can not use the type of predicted or feedforward control that who these ask for points to from very very precise systems like case in the board was free to accept his testimony which said that the baird system does not necessarily come back with the difference signal that we have in terms of an f e explained why that could work so it wasn't reasonable for the board to rewind of those two alternative explanations and that is why there are two basically asking is to second guess the board's assessment of the state of the we have no briefing on the meaning of the p d nobody's equated differential phase detection with determining ts or f yes as far as i can see in the record oh why is it there and when you talk about relying supportive of the notion that there it is disclosing not in so many words but disclosing calculation of attracting tourists and then the question becomes your eyes and i think that this is the full of which that the board's decision turns court can cheering the pitch thirteen seventy nine said in elementary even an entire invention is inherent if it is the natural result flowing from the explicit disclosure of the prior art so what does barrett express assume for the moment that you're correct that there is a closed loop system does that get you home so the speak i mean don't you still have to it doesn't assume have to be demonstrated that that closed loop system i inherently are necessarily operates the same way as what's claimed your honor yes we do need to demonstrate that it should all piece for inherent c and we have demonstrated that in three ways first through the prosecution history was in the records and doctors that and the petitioner did point to this this coarsening quote other statements from the prosecution history to show that the applicants for distinguishing their invention from the prior are solely based on where the calculation of task invest occurred and what the repeatedly emphasized is that conventional server processors receive on whether or not baird is an open or closed loop system it's not clear whether it is an open or closed system and as you pointed out in your questioning of opposing counsel it simply talks about focus and tracking figure one that seems to suggest and i am for size seen because you probably know more but it seems because you probably know more about than i do but that seems to look like what's going on there is some kind of or what i'll call for want of a better word closed loop operation is that wrong you have the photo detectors and then going through the servo channel then path use that predictive signal to essentially guide where you're trying to chase it was just there is it is there the state of the record as such you're saying that there's no agreement as to whether there was an open or close opine provide evidence that would be either the publisher themselves of the document stating what the book the date means or someone familiar with the routine business  cord lister makes clear that there are a platter of circumstantial evidence that v b used to prove that a print of publication is available before the critical day but the important thing is that the three pieces of evidence on testimony not competent testimony of their own expert who again used terms such as it stands to reason that a data sheet will be are released with a product when he bases that on the internal knowledge their number of ways that this can be established so that it was publicly available but that toshiba did not come forward and present evidence with respect to any of those ways because other laws relating to publication like defamation in which there has to be actual positive proof as opposed to negative inferences that there's been publication of someone other than the person to prove a negative curve positive proof is yes i publish this or yes i received it and therefore it was published to me negative proof is the absence of anyone saying that it was not a draft it was intended for public dissemination then we have only nine hundred ninety the press release announcing the release of the specific product referenced in the s c data did for that is that chip companies typically disseminating the datasheet when they introduce a new chip and you can infer from that testimony of industry practice the same thing that in these other cases that the court said you could infer from the declaration from the publisher but contrary to counsel statement this court has never held that a declaration from the publisher is required so given the volume for a from a declaration from the publisher determine if there had been publication your honor of the way or the effort to that or not there is no evidence in the record that the expert did that and you're out of me so that your answer there is no evidence that the expert did go to there's no evidence that they actually did it this court's precedent does not require such a search and and whether the burning this mat is not measured by what type of evidence conceivably may have been juice in looking at whether that's a given or it's measured by what afford persuasive weight to doctors x statement regarding your surgery bail guilty of the s to f t data sheet and it reached a conclusion according to the board because that he didn't provide any supporting evidence kind of along the lines