conflated it to some extent with the inherent see the finding of no inherent see as as well and while these two issues certainly do are connected and do have some overlap they're not necessarily not necessarily the same and i believe that is was erroneous for the board to use to conflate that issue without addressing the claim and one of them says here is a range of point one percent to fifty percent of the black acid and wherein you get a certain result and what that tells you is you'd better choose within that range of malaya gas and and any of the other conditions previously mentioned the ones that produce that result is actually narrowing it's not an assertion that the entirety of the pre but i guess another way of saying what i just said is this is not a mere intended effect it's a demand for an effect and therefore do limits but choices the other claim elements give you to some that produce that effect well and liquids made the argument and it's read brief that that other plane to variables were required in order to achieve the effect however as as argument because it was not raised below but the board only pointed to the amount of like acid in the final written the decision as the relevant to whether or not point variable can i just i realize you just i guess sort of invited me to shift to the inherent see argument i was a little confused about what your inherent to the argument was and i guess i thought there were two possibilities the one that i've heard this morning and the one that i thought i was getting from most of what i previously read was that what is in it was that the property a five percent ten percent twenty percent breakage reduction has to be and you think the patent asserts to be inherent in the entirety of the material covered by all the whether the prior art combination that whether they are teaching had these breakage reductions inherent which is a much more limited proposition can you alumina a which of those two arguments reduction in breakage across the full range of of the planes now in response to an exhibit that liquid submitted which demonstrated that that adding condition or two of bleach could reduce damage by greater than fifty percent further testified that in addition to at cheating greater than fifty percent just based for the probably liquid i'd like to start to get the record straight on non enablement this is not a ground that was listed in the petition as a grounds for the challenge that's at appendix eighteen they listed only obviousness grounds not lack of  and therefore that is the real way for in this case in terms of inherent c and material to patentability let me address those and i do think that the case law is kind of interchangeable to some extent i think the most important cases that i'm not even sure whether you directly address the point on the merits but it just just for current purposes you did not say that this was forfeited by a failure to preserve this argument to the board  to which we didn't have a further opportunities to respond but i think i can just talk to the chase and address the merits because i think that the analysis of material patentability really ducktails with the analysis of inherent s least fifty percent break introduction that's all that is in claim eighteen it in terms of material dependability if you're saying that that is not material compatibility what you'd be saying is that it means what is what you're saying is that if the claimant said where in great it is reduced without a percentage that that would just be an objective rather than a claim limitation yes yes we would make that distinction and i think that that's what judge prose concurrence in our grant said about bristol myers the distinction is that our dan involved a claim of a specific merit result whereas bristol myers was a much more qualitative result so yes your honor if if our claims had only said reduction in breakage without the numeri percentage we would have a much different case and a much weaker case in terms of what the the as i explained there was no non enablement argument made but even if one had been made a person of skill of the art as the pete had recognized this court reviews that for substantial evidence the p t recognized that what a skilled artisan would naturally know to do would be to look for the right the right concentration within that point one to fifty percent range to achieve things like the at least fifty percent breakage reduction that's the natural way that one would go about doing this and the combination of the press and to nabi references those that overlap so again our claims are twenty one to fifty percent that claim one of the numeric terms and we will get declaration which was discussed by my friends on the other side similarly discussed in industry standard condition or it didn't discuss acid it didn't discuss use of acid in the context of a bleaching treatment and this court doesn't fit to address the merits of the wicked declaration as a matter of st instance the piece have looked at all of this it looked at the arguments against the w declaration and why it didn't support l'oreal's inferences and it decided no this is not enough to establish insurance and this court again reviewing under the stansell evidence standard and recognizing that l'oreal had the burden properly rejected inherent the argument and the other thing i would point out you didn't quite get to this in my my adversaries opening argument but the specification kind of clears up this issue because it says that only in some embodiment an appendix to forty one dollars in some a body embodiments here breakage decreases by five hundred and ten etc percent that is an instruction that you have to narrow the range that's claimed and claim one in order to achieve that again prior break adric reduction in numeric terms inherent c doesn't either parse pharmaceuticals is on point in that respect so it's al again and par you had a claim of zero substantial difference in absorption of a medication into the bloodstream or other specific numeric reductions and this court said rejecting an inherent the argument that while it may be true that a reduction in particle size naturally results in some improvement in the food effect the district court failed to conclude that the reduction in particle size naturally results in no on the appeal i'd like to turn briefly to the cross appeal and on the cross appeal our lead argument is derived from the max linear and nestle cases and it is basically that the finding that was a references practice and the secondary rest the main secondary references to nabi there are a few overlapping references but overall there are certainly a different set of prior art references and the piece have the minimum in the st instance connect can i ask you this so i think our law is pretty clear that there's a host of subsidiary factual questions underlying what is suggesting that there were facts left to be decided and the weighing of a fact about copying was against all of the other underlying facts is not a factual question it's a legal question i think it's at least implicit almost explicit that other facts are relevant under this umbrella of copying and one can call those other facts nexus because our case has made clear that the particular set of circumstances surrounding a particular kind of copying have a lot to say about what bearing ultimately the particular kind of copying has on the ultimate obvious determination like did you try and fail before so why isn't it sorry for the long background wind up but why isn't it a fair thing for us to do  of seeing what it saw in the may two thousand and fifteen meeting but there are other facts having to do with the technological recognition o combination from the april nope books that tell us that what ever weight you know legal analysis the  limited fact finding has about development of a product is just minimal compared to the rest of the obviousness analysis so that it doesn't actually have to be contrary to anything done in the decision there is a finding of copy in the former and there was a finding of no copy in the letter well let me let me i grant i let me put it like copying is not a simple unitary concept what there was was a finding that factual legally relevant factual inquiries which were then made on reason and there but also in this case but what that leaves for us is a legal determination i under i understand and we have furthermore in our briefs explain that that pete has nexus discussion is erroneous under this court's liquid power decision but regardless if you have a copy fact that has to be weighed other against other facts including prior ar but on the prior art references our main argument which i'm going to simplify it to some extent is that a reasonable skilled artisan would not have been motivated to combine on the one hand high ph processes with on the other hand low ph processes and we acidic application says you wouldn't think i'm skilled artist would be discouraged from using that in a high ph context that's the argument that liquid has been making all along this new concession in an unrelated proceeding by one is doing what you describe judge toronto as this overall weighing one would consider copying nexis as well as the strength of the prior art references if the court has no further questions i'll rest on my briefs here you know further questions thank you mr i think the other side says the judgment that matters was the judgment of this court remitting the case and indeed this copying finding was not only essential to it it was being tired of the basis  very briefly nestle involved a rematch just as this court's prior decision did the collateral stop it does apply under this case because courts case law i want to amplify one point i made about the waiting that has to be done by the p tab in the st instance it's not just winning a copying finding and nexus and prior art which is different from the full for one case but it's also weighing other objective indicia of non obviousness that were timely raised and discussed by the p tab they weren't flatly rejected they may affect the balance and they would have to be weighed as part of this overall the will terminations obvious was under chancery in the st instance by the p tab finally although i don't have time to do it now we have distinguished the outcome case in our priests and i would respectfully refer the court to that in