terminations that a reasonable expectation of success analysis be conveyed especially in connection with cases that are complex or the technology unpredictable is noticed is no dispute with respect to the complexity of that such matter this case in fact both experts have agreed and testified that they were complex and in those circumstances there is no analysis that is provided and even if it somehow implicit or indirect in the boy's opinion which we say it is not which most agree that there is no explicit analysis provided that that that still is not enough because this court's precedent also makes clear as decreased there they're actually increased they actually go up which is contrary to surfing team which are for g m appointed to go to go down and that data was ignored by the board in this do we know that because it's not metabolize because corn shows that that statement in the reference that it's not significant metabolized now with what went wrong with respect to the point of reference that is that it relied on a  that any of the material that was concentrated in the cells was actually on schildt form of foley that actually supported the opinions of god to gregory that directed ministered five l five and five  cells we're referring to functional l five because it would not make any sense to be relying on horn for a proposition that we were looking to warrant to show the accumulation of nonfunctional fully so that's why the board  case would not be for such a proposal nation and therefore would not be able to form a functional fully the board rejected that test and one of the grounds that the deposition testimony itself was really directed to his statement as of the date a deposition the evidence to a novel element in the claim there is no individual novel element what we have is a novel combination of elements that were known in the prior are and so that was a problem with the boys rationale we  together in the form of six declarations by six experts and so the notion of tying it to a novel element just doesn't work when you have a combination of a combination of prior art elements so it was one of the reasons one of the grounds and that was  a mistake on the part of the board also the boys seem to be requiring that we at the claims have to explicitly recite the specific vitamins for the vitamin combinations or the specific ingredients exactly as pamela products that we had to provide evidence showing that they would have other undefined environments would have behaved the same as each of the fine p m i products that we were working with and that is not a requirement  i'm aware of that i'm aware of and with the boy did to just to put it all together is there were references to the word unique with respect to some of our witnesses statement in the declaration but word unique he was just making a comparison to the market in terms of conventional drugs which are usually chemical entities versus what we have here is what's referred to as medical food by today's which are exempt and the unique does not at all justify this sweeping conclusion by the board that somehow the statement by themselves would stand for a proposition that every conceivable embodiment of the scope of the claims the copying the industry praise the long felt need ms in abundance amount of objective evidence that we submitted to each of these five products in this case little bit atypical we have five different products our standard of review all of those products have to behave the same across the board of the range of a claim that is not illegal that is not a requirement and there's this court's precedent here is getting all this from your interpretation of the board's explanation of what it did yes ok yes that's quite apparent from the board because they also cite the case of enrico and they focused on the section of in waco dealing with unexpected results no one expected results as a little bit as some of them does have an obligation to show that you have to show the unexpected results across it was the wrong thing with a it was a in an improper legal they did not properly applying the precedent of this court as you laid out and although they were a little more careful in how they'd written it we wouldn't you wouldn't be up that's correct your honor that's five the prior art element i mean that is a situation where perhaps maybe a factual issue but when you read the declarations as we say in our papers it's not it's just not the case they clearly the experts clearly associate the industry praise with a new venture and claim invention as a whole not with respect to one  other side  however it's clear to us that the board did engage in that analysis and that is evidence in the actual opinion itself the way the board expressed it believed that there would be a reasonable expectation of success is that it talked about and this is on page eight thirty seven of the record that the certainty reference calls for a suitable active metabolite of a late in an oral preparation that uses those words and then after in the one seven seven nine merc teel and the board found that the close similarity of purpose and disclosure between these references talking about certain senior ratha provide sufficient rationale for one and during their skill near to have combined them and it cites k s r and before it gives that statement of loss it talks about how certain team was there to correct what deficiencies and treat diseases associated with elevated levels of hom the issue of the harpy references and the primary argument they made with respect to harper references is he talked about effectiveness but down below what we were risking talking about was whether correctly recognize that whatever concerns harpy had in the beginning those concerns had been overcome in the art prior to the invention through those three references with respect to the horn and wagner you well  and wagner is being conducted in a in vitro experimental type condition there's no evidence in the record that that experimental result would translate into a similar result in vivo in the humans so we're not going to accept that evidence as persuasive teach in a way and also they recognize that to the extent that wariner and horn say that the l five m p h s is not miss significant metaboli dictionary the word is in the dictionary right but b p word you know has probably a very scientific meaning and the problem is there was no scientific paper that our expert opinion of what and how many were tabulates and how many variations right right and that's and that's at that's our contention that it is one of the where was the lack of definition can you when you do find it can you d fine it i cannot and that's the problem there was not expert testimony of what metabolise ation mean in the context of that is limited to that you're saying that in this case the word has a different meaning from the ordinary and no one was able to define it at the board's hearing so if they're going to use this is a teaching away they need to come forward and explain what it's mean i don't think it's my duty to prove what they're teaching a way reference means and what the experimental one out there this is the one you want to use we have got three actually using five mph and experimental conditions and getting good results in treating depression we have reggie's who is using an actual five m p h s product that's made by bio research malign anomaly and it's undefined it's inconclusive it's it's unpersuasive the board actually looked at this and they came up with their substantial evidence in their mind of why this to this reference was simply just not a persuasive rest  regarding the secondary factors first of all counsel suggested that the board took a strict test that well we're looking for what the novel element is in the claims and it's a single novel element and unless the commercial success or the secondary evidence is tied to that novel element then you know we're going to reject first of all they didn't ever reject any of the secondary evidence but they said the spec injury evidence was tenuous at best so it wasn't a wholesale rejection as as counsel has and by but also you know it's clear to me that the board did not limit its analysis to looking for only a single novel element as opposed to the claim as a whole because what we see on page eighty forty of the record which is the page for the final written decision in as such the objective evidence for each product lacked a clear nexus with the claims so here the it's clear to me that by saying that any element or combination of elements the board is correctly considering the claim invention  is looking if indeed there is any novel element it's not finding any i counsel just told us that there are no specific novel elements they say the claim is novel because it's a claim that the whole is what's novel but here we see the board actually did consider the combination of elements as well and expressively said that it was looking at that as well and you know counsel makes the point over and over again that you know well they don't have to prove that every single environment within that very broad scope of claims is tied to the secondary evidence and that's it's never been opposition and it was not the board's position that one hundred percent of the embodiments within a specific claim needs to be attributed to the commercial success but there has to be a nexus there has to be a a reasonable tie to the amount of products that fall products and these are five six marbles we've made them they have specific uses they have specific vitamin combinations and are five or six marbles going to throw into the point pool those are that's the claim of the hole and perfect web five eighty seven and thirteen twenty four thirteen twenty nine where they're  with respect to obviousness to facilitate review this analysis should be made explicit so to the extent that that pelly was arguing that it was in direct that the word suitable which by the way to claim  it should be made explicit to facilitate we correct assuming we can read you a matter without it being explicit there's no that issue is there to the extent that it was either an indirect error or implicit i not aware of a situation where that would be so distressing situation we have are subject matter which is so complex i mean we were in on notice i would say in terms of what the basis was and and what w what would be our recourse to that extent if we were even able to discern what the are yes analysis was done if it was done and direct your employer and you go back back with different gauges a couple things now with respect to with the h referring to as a whole slew of them that were not even addressed in them which decision no factual findings were meat for example godfrey i'm somewhat not referee there are other reference i can't hearing right now but there's a series of references that were not relied upon references he cited do not teach that and that would not be substantially at all in by the way they don't offer a single expert a single expert discuss those references which also makes a little bit more difficult because now it's just a tree argument 'm not sure where that came from but that was not something that we were had a problem with already had a problem with during the oral argument  with respect is the second of the evidence although not required gnosis did not provide or put forth an expert to rebut any of the experts in that respect all they provided with in essence was is that attorney argument they didn't address is not in a sense a case of chance eleven and let me just it really is primarily the application of the law by the board that was incorrect with respect to second considerations that is the heart of what we're saying versus the