to the supreme court opinion in s a s and general comments on the applicability of that that opinion try p r c general bent and also specifically to this particular case so what i'd like to do is i'd like to entertaining your comments beat the robot be kind of brief two i'm not going to dock your time on the marriage or the case but we would like to hear from from counsel and we're very interested in in your petitioner is no longer involved in this matter and the issue of whether the p tab should have instituted on all claims or done a partial institution has not been preserved for any type of appeal so in this particular filed the petitioner challenged all of the claims across various petitions and one one to one petition all the challenged claims are instituted in the i believe it's a one and whether that instituted an i p r is as he put it a binary choice either institute for dealt and in that claims sole is there some inconsistency there to the board act beyond its authority and is is there a question with respect to a lack of finale or with respect to whether this is just just justiciable controversy before us here at the time the institution decisions were made i believe that was how the rules were interpreted the rules were interpreted that partial institutions were permitted so at the time the decision was maybe believe it was proper of the supreme court said that's wrong that's wrong i think courts it is the supreme court i think is saying that what happened in this case shouldn't properly have happened have happened but where does that leave us i believe that leaves us with the issue that this issue of never preserved for an appeal by the petitioner in this case why would challenged at the time they were challenged it was the the and the patent offices view that they could do partial institutions that's what occurred there was never any dispute as to the merits of the institution decisions with with on that issue and the appeals that are being presently presented to the court the issue of whether the institution decisions were proper has never escape and wondering if maybe in a d j action and the district court only results in some of the validity questions for some of the claims but not all the claims finding those claims to be invalid then the pat owner appeals but the d j plaintiffs the petition here drops out and so even though those claims patent claims that were not invalidate not addressed in the district court's opinion and there's a question of whether you know we we would have a final judgment we could review if the plaintiff is gone and maybe t he challenge to those unaddressed claims as likewise gone i think that's that is this is a rough analogy i don't know if it works but it seems it seems correct as an analogy because you're the only person who  challenging the proprieties claims was the petitioner and they're no longer part of this case and no longer challenging claims any more so the issue as to i think it's clear is if you claims nine eleven and i don't exactly that were left out and and i'll admit i believe in all of the petitions and issue there was partial institution my memory it was only been for the two or three that not for the two or three because sixty six sixty seven there was a partial institution in the one one two one and one one two three for i think they would have to preserve their right in this case i mean filing a court is case that intervening law is not you know if you don't bring that issue up and certainly a lot of parties have been preserving the oil states issue so i think it was on people's minds and aware of that so i think you can make an analogy to that include there's two question lines of questions i think we would ask you one is a waiver question and the other is to jurisdictional question sticking with the waiver  is it the agency's view that a party at appellant would have to preserve the oil states question i mean sorry to say ask question literally in their briefing or given that s a s came out last week is that the agency's view that a party at this point in time to file perhaps a twenty a j letter and say aha there's been this significant change in the law and so now  in light of the significant intervening change in law with light court to send back the case to the board to do a complete i p o r on all petitions or  jurisdictional question now that we know thanks to the n s a s opinion that the board's final written decision was really only a final partial decision because it didn't actually resolve the question on the non instituted but for claims does that make the final written decision the board did the final partial decision ultra virus i don't think so mean i think this you know this is present a unique situation because we have this you know going forward we're going to have a different regime and currently we have this regime where we have these cases but i think they can be looked at as almost if if they do go back and if there is a position or that has preserved that challenge and wants to raise that sounds almost like a new getting back to waiver you know is it your view that only the petitioner can seek a remembered because there was only a partial institution or could either party either the patent owner or the petitioner at this point you know assuming they preserve it in your view raise this challenge to see that appeal that they've sent back for his opinion talked about how during the course of and i think the are on the merits it claims may be amended so the issues maybe changed and don't necessarily the final opinion doesn't necessarily mirror the petition as filed there was no discussion about whether the petitioner during the course of i p r could alter the preceding and i didn't have the time check with can you tell me does the petitioner have the right during the course of the proceeding to say well you know forget about claims nine and then i withdraw my petition not as far as i know one says or incident it on the trial goes for it and you know certainly they can't and then it claims i don't believe that the addition can change so that has control of what would be heard in terms of the initial petition but not this early after that i think that's correct knocks emissions and diesel engines despite years of skepticism and efforts by researchers to commercialize and metal shakespeare like catalyst so i'm going to begin with the legal error in the one one two one and one one two three petitions that dealt with a combination and may should not in our view the area here is clear the board adopted argument in evidence on a genius species issue that was not found anywhere in the petition or petitioners reply zones plus may seem up petitions presented a single theory of obviousness just to confirm something for a second or the last clause of claim wired of the in the catalyst a sector of the mother's reaction of ammonia with nitrogen oxides ammonia is not an actual element of the catalyst right it's a separate overcome prior art by adding that limitation and therefore i believe the prosecution in history indicates that this is considered a limitation also in the i p r proceedings below there was never any contest as to whether this was a limitation claim i think it was only discloses it with respect to using a low say our natural chavez light so in other words the petition never explained and never argue the reverse obviousness theory which is you start with a low essay are natural except for the amount of copper and that's what they went to mission before so this reverse obviousness theory where you start with the morning yes you are in may shima simply doesn't work it was not an argument in the petition and there's reasons why you wouldn't be motivated to substitute for it we never really got into because that verse obvious of three was never present in the petition so i guess the view is that it's not simple enough to say for an obvious the serious a why i can find not teach specific reactions that that reduction of oxides of nitrogen is a genius and that's all my patent mentions now there are reactions that can fall within this genus which he was saying in his view are within that gen but of course dr zones declaration never discusses the level of ordinary skill in the art he never said that this is what a person orders go in the art would understand and importantly this is not evidence that was ever submitted in advance in the petition or in the petitioners reply brief so in fact the petitioner objected to the doctor's own secularization as not reflecting the understanding and want to warners going the art now we rely on it for the purpose of showing that reduction of oxides of nitrogen right and then there's a declaration that says oh when it's a citrus it's talking about oranges and lemons and then you come back and say well that the specification doesn't explicitly say oranges really says citrus and so therefore it doesn't disclose oranges i'm not so sure that line of argument would prevail this if the board makes a finding that says well when it says citrus you know we have a declaration here that says it includes oranges and lemons so that seems like it's substantial evidence to support the idea that when you say citrus you necessarily and compass the idea of oranges the issue here though is it must be about the understanding of one of order excuse in the art and doctors zones did not in his declaration address the art he was an individual that with thirty years of experience one hundred fifteen patents who said in my view that's how his actual declaration is phrase with respect to the issue of what is in compass within the phrase reduction of  evidence to support that from the perspective of one of ordinary skill in the op and that was never made in the petition this is akin there's a decision that we cited there was a finance case where talked about it you know species issues and explained the kinds of time lapse between the the priority of the claimed invention but i don't see that you argue that below and so like in that if you make that argument blower you present full force on the blue brief and if so what difference does it make how does this those references were from one nine hundred seventy seven nights and eighty five in the intervening years between one thousand and five and two thousand and seven there was a substantial number of publications that we put into the record that individuals were struggling and unable to commercialize in metal exchange feel like b s f did do that in two thousand and seven with the claimed copper chapman's like material and the point being that invention that is commercialize was obvious as a one thousand five just to confirm this particular argument about old references and passage of time and the skepticism of others this argument on know to reduce nitrogen oxides and then based on my and the other testimony that the board relied on you would know too that reducing naginata means that you're going to do those reductions with ammonia to be referencing ammonia as they are just because a genre talks about ammonia c r it's a little bit of it feels a little bit like a revisiting of motivation to combine argument inside was a reasonable expectation of that when you combine metion and zone and if you look at a p p s fad the board votes you know three pages talking about why there would be a reasonable it the two pounds at issue here are two a very simple concept you're using a known catalyst your you've made up of known elements and known quantities and using a known process to remove nitrogen oxide pollutants from the gases you know the claims only require a catalyst which comprises the l a with this huge a structure that is effective for anyone yes you are and that has the you know broad ratios the with respect to the secondary considerations aboard considered all of these considerations that were before and also found that there was no nexus and that the claims were not to measur scope with the considerations that were provided so even if this argument of being all wasn't waves it was certainly encompassed within the board's findings that there is not it's not within the cl the full disclosure which describes court i hammers in a range of about three to fifteen and and then the essay are ratio of above about two thereby thus giving disclosure more flexibility and breath than and what you were urging and that was what the for  reduction of oxides is at least these two things and it actually covers everything even things that haven't been discovered yet and that's not substantial evidence of the size of the genus and what's disclosed within that genus and the motivation to combine that's focused on this is the issue here is not a motivation to get by on appeal the issue here is that the petition was premised on an argument that zone discloses something that it does not and the its view that sounds teaches this particular omonia s c r limitation and then the institution decision agreed with that and point it to the zones declaration that w