are three cases on the calendar this morning been consolidated for argument and we appreciate the parties cooperation in that regard the cases are sixteen one three two seven zhan versus gillette sixteen one three advanced micro devices and sixteen fourteen twenty three sun versus advance micro devices whenever you're ready the board's decisions tape claim language that contains no in begin with without when we can order and introduces uncertainty substantially limiting the possibility of  uncertainties is what we should be in the well i understand what you're saying that in your view of it is this this falls into the box where we say there's a clear and ordinary meaning there's clearly clearly an understanding but doesn't the expert testimony that came in this case demonstrate that there is no clear the clear meaning of this term is not is substantially as the board concluded and not entirely i don't think so your honor what the expert testimony was that the patent teaches that when to legally hire a nice plasma or there is a quote substantial limitation of the possibility probability of marking in the chamber now but all you are doing is repeating the language of the claim in the in the question is how to read the language of claiming that in the light of the reality feeling only once addressed to the entire process i don't think that's true i think there is in fact pretty clear testimony that even have that moment  pulse creates the strongly on eyes cause not that there is no arguing not in every instance but that there are times when you can avoid it because it's not possible to eliminate that in all instances correct i've read says pretty clearly both your expert and ugh lies that it is not possible to in uniformly avoid arche at the moment that the strongly  dorie because the claim recites characteristics of a voltage pulse that have to be adhered to in order to achieve this elimination of working at the transition between the we've we've agreed to except you are the humans correct for purposes of the argument that there may be other sources of market but the claim doesn't speak about the board have the same misinterpretation of the argument the board apparently thought that we were trying to argue what i think a colleague has characterized as an absolutist construction in which every possible contingency of parking has to be eliminated but that was never the argument the argument only ever was that there were certain controls placed on  of the kinds of pulses that could be used to achieve this somehow the board read this as the idea that others got this suggesting that the claim requires absolutely no warning from any circumstance but that simply was never the case it's not the case where this court claims are directed to are hours in the programming of the power supply allows control over the rate at which the energy is delivered into the plasma that's controlled the speaks to two different him but excuse me the specification speaks to two different body types those that may minimize the probability of market and those that are limited and the use of the word or here is environment that what samus show is concerned that the board is that what is claimed is the result and that the details of how the result is achieved are not limited in the a claim that says well whatever avoids electrical breakdown is claimed or is novel that does seem to raise questions of the differences the distinctions from  you might avoid formation of an arc it's specific about the voltage pulse and in specific about which parameters of the voltage also control the electrical parts is not no forty one and claim two seven seven three certainly the thesis speaks to use of electrical pulses to create plastics yes we are said to understand the state of the art at the time that that it's existence has never been disputed your are not if the fact that it existed has not been disputed whether what was disputed was whether it was publicly accessible for purposes of the and there's no dispute that if that was on the russian state library website it was publicly accessible had it been so yes it would have been publicly accessible but there was no evidence that that website even existed at the time of the invention that the web page printout was a printout from two thousand and fourteen i believe and there was no  maybe ninety five i don't think it is at all your honor i think it merely says that this is a list of documents since nine hundred ninety five it says nothing about when the list was created certainly says nothing about when the list was posted to the internet says nothing about when the list was made available to anyone in any form it's simply a list and if we think back to nine hundred ninety five we're dealing prioritized yes however again in the absence of evidence and be just speculation to say when that list became available and this   as i understand it was that the court recognized that the manuscript dr lister it created existed it had a copyright had registered the manuscript in the copyright office but while the copyright date might show its existence it said nothing to its dissemination the court look to in fact the dissemination in the west who are in the dialogue databases perhaps akin to posting on an internet but because there wasn't any evidence in the record about when those postings occurred or the process used by west law for dialogue to incorporate the proper read office records then one could not say that the manuscript to became publicly available prior to the the other thing that judge stevens noted in her descent it was as i mentioned that there was no evidence concerning when the catalog even existed and so there is nothing that indicates that the catalog would have been available at the time of the invention it but he goes on immediately thereafter and says essentially look your question is asking about every possible instance of forming an art and that's not the claim it's about the directed to conditions that prevent plasma from forming as an arc as it for us but there's other testimony on that page one ninety eight ninety nine in the same transcript yes so in order to read the claim assertion that all possible parking is a limited all of the time now but were the quote that i read is directed to the formation of the point of formation of the strongly eyes yes and as i mentioned at the outset even during the formation the claim only speaks to the application of the focus and not all possible circumstances for our thing that might exist and i think the testimony is consistent and the board get it mr de vito at the same spot say wayne discloses a pulse d c power supply connected to the target that produces a train of negative voltage pulse  there's always a chance that a local electron density can become sufficiently high to create a short circuit to result in an hour just charge at least expert dr overset also explained that quote it's not possible to construct a perfect system there's always a possibility that the system will are every person of ordinary skill the art who testified before the board they all agreed on the structural point and the board properly concluded that one of skill the art of skill the art found nothing in the specification indicates that no parking your purse in the formation of a strong ai nice plasma start with the seven sixteen pound column three specification says increasing the power applied to the plasma ki appeal which deals with the russians they said yes and you tell us precisely what evidence was before the six that we are supposed to use to support its conclusion yes it was probably their first there's no dispute that the work these this was used for was to explain the scale on one figure both articles the contention that the article contains the necessary information has there are lines that help show with the scale as the caption gives you a scale what made out of the article i'm not understanding what your point is the article does not have the necessary information that was not argued in the article nobody contests think that it was on the russian state library website but it was publicly available nobody to contest that at some point in time it became available on the russian state library website the question is was i bailable on the website before the priority what is the evidence that supports that well the evidence is that the thesis was catalogued and then indexed by author title and subject now that shows the russian state library had an intent to make it publicly available you wouldn't do that unless you wanted to intend to make it available what happens when well that if you have an intention to make something available to the public an added state it's cataloged just one of the cases that was cited the the issue was whether or with the copyright office as was the one that we were just talking about in that case he couldn't search you can only search by name and the first word of  the title here you have the the the name you have the complete title and you have the subject matter plasma physics all in the catalog so regardless of whether this was what is a problem the first o i think the reasonable inference for that is this is a catalogue that was first created in one thousand nine hundred and it's available there after all of all of that this evidence shows again that though the russians see a library intended to make this public and there's no reason to believe that they would have waited beyond six or seven years to put this into their card catalog it doesn't make the sets the even a card catalogue misters it looks like it's was  same title and the one who had that information would be able to figure out who's this monster guy and go with him in the library that seems to be the likely place to find something he's from the soviet union let's go look in the russian state library it so i believe with that information was it was also support the conclusion that this was publicly probably be able to score to said you don't have to show a specific date that something was catalogue mr case require that we rule against you or talk about who you're here if we were talking about a two year period that no i don't think it would require that you or i think it would be a more difficult argument because we're talking about what's reasonable what's reasonable for the board whose way this evidence to to believe and to yours makes that reasonable this calculation more challenging certainly than seven years but i think seven years it seems to me there the library goes the effort and these cases involve libraries that did not go to the effort of cataloguing or indexing what elaborate goes to that effort to make a catalogue by name by date by subject matter by title all the additional information so we need to track it down the reasonable inference for that which the board true is that it was lead publicly available within reasonable thought that that catalogue entry was made within a reasonable time after the thesis was created and a reasonable time is certainly within six or seven years hypothetically that we were to either construe probability is different and you construe it or if the the that language wasn't in the spec of the spec he was the language clearly there's no possibility of parking would the expert the kind of  testimony that the board relied on here be sufficient to overcome what is arguably clear language in the spam in the claim and clear language in spam well it could i think it could be your honor it's a hypothetical it is it is it really expert testimony when it when there's agreement among the experts i pathetically that there is no way this that this is not going to happen one hundred percent of the time is that sufficient to overcome clear claim language  there can never be any argument and this will show how you can you'll never have our feet ever if that's what the specification taught it wouldn't be it would be a war difficult argument i think we would probably still say you have to interpret that the way one of ordinary it would be if it was a district court case that's correct or with that obviously the were do not consider that that issue but i think the brief explanation of the finances is not very complete when you're creating this the the we believe that the market article itself would also invalidate those claims and if this court decided that the thesis was not available th take almost any reasonable view of what that scale is like it's all one division or it's multiple divisions and we believe they will all still produce the same result it would still produce a mathematical result that's within the scope of those four dependent claims so that's the only reason logic he says was used we didn't make that argument below because we wanted to make the precise argument but certainly that was because of what you could make the argument because you want to in the proceedings we're on raise this argument and at that point all the expert separations were already in the petition has already been drafted and because they are the calculation from the i'm sure we would have done it that way but we didn't do that when i think it would be manifestly unfair of the circumstances to exclude us from being able to do that  without occurrence of marking language only applies to the strongly ionised plasma and that's simply incorrect this claim is speaking to a single pulse creating both the weekly ioni plasma and strongly on his placement both without the occurrence of barking we know this because the the use of the word and indicates that it is both plasmas that are affected by the creation in the phrase without an occurrence of arkan is how the creation done it's the prejudicial phrase that modifies the term create so this is a rather different claim than the one we looked at him earlier and here the contrast with waiting is even more striking there was reference to wings figure six in body  the fourteen twenty three appendix at pages sixteen thirty seven and thirty eight and the figure is reproduced in our brief for that appeal at page forty seven the end taishan that here petitioners expert and you can see that the figure doesn't speak to the mission phase in the creation of the weekly ionized plasma and the expert himself has indicated that well yeah during that phase there may be ar were hypothetically rule in your favor on the public availability of a thesis should we as to these report claims should we reverse or remember you should reverse your honor that was the only evidence relied upon billows the only evidence proceedings it was usually raised in the patent owners pulling in every response and raised again in the patent owners now by law i mean the specific argument we're talking about now i'm in a but apparently you first argued that wasn't publicly available because it was russia date and then there's the argument about russia which we're not raising