you're a brave man and i never let water  pation and the rd one is obviousness in starting with the st issue the issue is whether the specific subject matter in a prior art reference that's being relied on anticipation must be disclosed and enabled in this case the specific predicted methyl acetate and water concentrations that are disclosed in the pat reference it's not under speed of the disclosed the question is are they enabled you argue that claim five can't be obvious over pat and his pet is only prior art for what it teaches in n something's not there relying on the petitioner relied on the tables for teaching certain limitations if those limitations and they relied on other prior art or another argument routine optimization to get the concentration of the catalyst i believe is is what claim five is so that has that doesn't cure the defects of what's wrong with pat with the patterns it pat doesn't enable the subject matter those two limitations there's nothing in routine optimization that would get you to the concentrations reciting it in clean five wasn't pat based on actual data evidence was based on a semi empirical simulator nobody knows what was in that semi comparable simulator except for so many as they didn't identify it by trademark stay on concentrations of which are cited in another reference when essentially the same process and i repeat with the same with the same well there is something new st of all the process in a very general sense is what maybe thirty years old we agree to that in a very general sense but there are improvements made constantly in this field and the reference being relied on a relatively new reference ought not file that much before the patent issue and the reference was just a prediction it was based on a semi empirical simulator there's no testimony from there's no proof as to what that simulator was that the only evidence as to what that simulator was came from our witness because he tried to figure it out he was very knowledgeable in computer simulation and what he did was he took the the  processor the simulator that was most well known in the industry most widely used and he said i'm going to try to figure out how they got these numbers but what is different in the rougher edge from what is claimed you mean different in terms of what they actually what is it what is different in terms of what is claim you are questioning whether so with the enablement of the reference disclosure these are actual data so the data is not actual data in the reference it's predicted data one hundred percent not disputed it's predicted data there witnesses i can  to in their petition the patent i mean the petitioner admitted that the data and tables one through four which are really the tables issue but really all the tables was predicted data predicted results predicted data so that da predicted for our witness came in and said why the prediction was wrong unreliable and not enabled you can't reproduce that data without onto experimentation if at all maybe it may be impossible stream lee difficult so you look at that data that maybe on its face you're looking at a patent or a reference on a space at looks like a pretty good reference but all of that evidence as to how good it really does was submitted by our witnesses these a and rocks straw and all the evidence when you're looking at the critical data points the concentration of water and the concentration of metal acetate those data points were generated they were predicted and they were predicted using a faulty semi empirical simulator but aside from the point you're raising to they constitute a ten dollars to disclosure no because  enabled but they otherwise they would be a one up to this otherwise for claim one it would be a want to do this closure if it was enabled and all the evidence basically submitted by is that it was done the predictions were improper they were unreliable and they were not enabled because it wasn't even sure of could ever be reproduced and in real life you can't just put something out there and then block everybody else has a real invention later say i think this is going to work specially when the evidence shows that support the prediction ask us to consider lead compound analysis to avoid the use of an arbor hindsight and as you note the lead compound analysis applies to new chemical com right eight you when you're look when you're trying to get a pattern when you're trying to advance the art you look at what's best and what's good and so in our obviousness context and our witnesses testified and the arguments were that pat the reference issue consistently points to the best tables as being table six and seven that was argued over and over it was never contradicted by the petitioner so when you step back and you try to avoid hindsight you need to look at what is best in the prior art and then try to improve on it why would you take poor work quote or the less desirable tables of one before and then try to make put a certain nickel alloy for example in the flash or if you want to make a better process you start with table six and seven as that's basic argument yes the lead compound analysis doesn't directly apply but we believe it's the principle behind it helps to avoid hindsight which we believe is present here tables that's one through four and they show the composition of the flatter stream of the concentration data the expression disclose a claim ranges of temperature and pressure in the claim concentrations of metal acetate of water give you the data points by which to recreate or to practice that simulation table you mean reproduce in real life or you you will yes you are going to recreate right recreate right  and it was all through the petition and it's been all along the disclosure relied on as those data points are sort of like if you have a big broad claim to a bunch of chemical compounds and you teach how to make some of them but you don't teach of these processes both of our witnesses testified to this that in order if you're a person boarding school yard and you see a simulation you say oh that's interesting i wonder whether it's going to work so then you dig down into it and you shouldn't be able to just throw a prediction out there and assume it's it's going to prevent somebody else from getting a patent later when your predictions wrong if the prediction wasn't flawed or if the the process had been described in full detail on how to do it pat's disclosures to be reliable substantial evidence supports the board's findings on the liability and its for three primary reasons st the board credited dr haynes's testimony that the school artisan would understand the term semi empirical such simulation to mean that it was based at least in part on actual data actual data went in to inform the simulation that was performed instead because that was well known in the art at the time that's correct your honor that's another point th dr hands raised in his testimony incremental improvements are made in the field to this very old mature process and the way they're customarily done is a someone runs a simulation so that they don't have to tweak it on the ground in an actual plan and then they implement the simulation data or the computer modeling data in an actual facility and they're readily able to do so because that's what's got dr hans additionally testified here that in addition to being based on actual data the data were what you would expect to see basis in part on references he cited in part on his twenty plus years of experience and see the cast of the old he said that a skilled artisan would understand the flasher to be representative of actual real honor it's there is complicated chemistry involved but at the end of the day this is a very mature process and people know how to make changes here implement them and that's exactly what dr hans said just one brief point on the legal standard you asked about what pat needs to do to enable in terms of the data points and i think that you are correct pack is you the data is used and what you use those data to do is to modify the process on the ground you don't have to achieve a data table that has the same exact points as pat and that's exactly what the board found or that said you don't have to reproduce pap with one hundred percent accuracy instead you need only to have a skilled artisan be able to take pat's disclosures and practice are almost incidental byproducts of the claimed reaction i'm not sure if they're by products your honor but certainly what you get out of the flasher reflects what you put in the conditions of the flasher  i'm happy to answer questions about the obviousness can questions if the court has any questions i believe just about you got it right that even if it were not enabling which you believe it is that wouldn't be relevant for the obviousness inquiry and so i think  that pretty much resolves the question on claim five but if the court has additional questions i'd be happy to take them otherwise we would ask the court to affirm based on the substantial evidence that's dr haynes's testimony and words for consideration prior limits so one of the questions that came up just came up was are the methyl acetate and water important and yes they're very important in fact especially controlling water water is a very important part of the process and there are over the years have been high water processes low water processes and you this particular claim is on the low water end of the process and there's reasons there's technical reasons to do that so these are just incidental impurities they're critical  components that are intentionally part of the process and controlled to get good results they also affect the equilibrium in the system one of the other products that's in the  you can get you can actually keep the hydrogen iodide concentration very low and use a nickel alloy material and we get to claims eleven and thirteen the those are only rejected for obviousness and there's a section in our reef where we talk about hat talks about the conditions being less corrosive downstream but that's far downstream from where the plash there's so many variations of the monsanto process hundreds thousands possibly the patterns articles you can't just look at pat and say ah used to go our way in the flash or there's no suggestion if you look at the documentary evidence that was cited by di s those are strongly pointing towards a more corrosion resistant material in the flasher it's right in the references it cited in the briefs and the response by selling these to that is you know alloys out there people have been using that different vessels for the over the years and we think that's clearly hindsight also