record are undisputed and the first is that when the student became involved i started working with the miller party the device that the miller party was developing at the time had a reciprocal only motion and he was hired to actually the pneumatic component to this reciprocal only device and it wasn't until later after mr trent became involved that the idea of adding a rotational and pneumatic motor became put into place  those in the board overlooked this important factor in its decision when it seemed to assume that the tissue cutting device that mr miller the miller party would had been developing when they contacted twenty had all elements of the co and that the purchase order demonstrates that he thought up the idea it's boggle isn't this your classic he said she said and if that's the case and that's what we conclude than at the end of the day i know there's a dispute about what the burden is but there's no dispute that you have the first here so why doesn't that just resolve the matter because the test for conception requires a definite and permanent ideas a completing operative invention and there are critical motor that can be used a vein type or motor is the only one that can be used and it's under spews that mr she went contributed that aspect of it in addition he went on to design the hydraulic system shown in figures figure ten it's undisputed that he design that as well those are two elements of the count that we believe satisfy the contributing to a conception of women that mr trent was required to prove without those you don't have a complete conception that's a problem but that there's a there's a distinction between actually contributing to the conception and being hired to implement the conception and isn't that really all that just was here hired to implement someone else's conception were the case that you had a complete conception before hand then it would be that would be the hypothesis or the hypothetical you gave but the problem here is that miller never had a complete conception elective ain't type motor and they lacked the  system one that would operate a system for actually making a rotary motor and ever simple motor work and it's just a cutting device without that there's the invention doesn't work i'd like to also focus our turn to essentially was to ignore that mr misters went contribution by trying to say that miller actually conceived the invention first and the problem is that when you apply the test for conception or as a definite permanent idea of the leading operative invention as applied practice miller simply didn't have it and they admitted that that mr schwinn came up with a vein type motor and ultimately came up with a figure ten and that's that's the main error that the board made and it affects every aspect of their decision but obvious then that collaborators contribution will not be sufficient but we have a different situation here because there was never was a conception without mr whence actual contribution i mean you argue that that s board said was not so much that that's the test but that it is a factor to consider when when you're determining whether or not mr swing or his burden of proof of showing his own conception no it's not a factor it's our position that the conception test is completely distinct from the obviousness test when you're talking about the first conception the first complete picture of the complete operative invention so it's not a question of whether you can take apart individual contributions to that initial conception and say that certain contributions within the county are obvious we don't think that that's a lot of it can you point us to what exactly the statement in the board of thing when you're saying st as saying it's legal if they relied on the labor declaration very heavily and what the labor speculation is is that they that mr swint the elements he contributed they're trying to say would have been obvious to mr shaw went to have any prior experience with biopsy devices he did not but when they actually brought him on board to develop the first device as a reciprocal only they spent hours teaching him about how this worked by the time conception occurred for the later device he was i had a sworn oath that the record shows no evidence that mr shaw she went had any understanding of the benefits of a rotational motion i don't think that's the case i mean can you show me in the record where he he is the one who is initiating the value of a rotational motion here  what that's part of his testimony and it's cooperated to by the purchase order that he actually purchased that element and he was the one who actually recognized that a vein type motor is the type that you would need to use and now no it's actually very important to recognise motor isn't that right because it wrote home inventor under the hype but if we hypothetically had the named inventors telling  you to have a reciprocal and rotating motion please put this into effect would that be the end of your case no because you actually need to have the knowledge of using a van type argument you have to say mr schmidt was actually well versed in the type of motors that could be used and right off the bat initially he said use the brain type motor that's the only type it's disclosed in the patent and there was a report commissioned by those women it was commissioned by the other party by rose home inventors who looked at the type of rotary motors rotary specific rotary motors that you could use and found work it said that they either wouldn't be recommended or work or that further investigation was needed and by the way this report came out after and i think late november after the application had already been filed and change process ask you this question that if you would wouldn't mind stating again for me what would be your best evidence to cause us to reverse fact finding done down below where we're not able to contradict their facts unless you've got something really powerful what is it is actually that the all the evidence that is of you of record there's there's the first prototype even at a higher level behind beside that point you actually need to have a complete an operative conception without mistreatment contributions of the pain type motor and the actual hydraulic system of figure ten that didn't occur just as required by the count without that there is no earlier conception document of and that's admitted by the other side to be mistress whence contribution the claim is broader than just of a motor right in the motor doesn't get you very far does that and seems like the rest a lot of your case on his alleged invention of that aspect of motive it's  very typical situation that the conception that the conception evidence is a species of what's reciting the count and then asked to converse with us surgical the court made absolutely clear that it's a question of whether the species or what schwinn should not be added as a cow inventor to the eight to four patent is supported by substantial evidence and should be affirmed the board properly found that miss fish went failed to prove that he contributed to conception of any element of the carefully looked at the factual evidence regarding conception of the rotary hydraulic motor but when you say carefully looked at the evidence i mean there there really isn't anything that says that the mark miller  team came up with the concept of a rotary motor well there is your honor if you look at mr miller's testimony which is a ninety one record mr miller testi in late in the two thousand he decided that in a can you i should not only move reciprocally but rotationally and that he told mr she went to implement that concept with an  motor and that rests upon the board's finding they considered separately who came up with the idea of the use of hydraulic motors in this tissue cutting device and there was overwhelming evidence that the miller party thought of using ear monitors before they even contacted mr shaw and so the evidence that the board considered had the miller party who had memos going back as early as march nine hundred ninety eight where they outlined the party was doing testing on breast tissue they were the ones that had experience in developing these devices and she more salacious devices they were doing testing and that's what milt mr miller testified that they determined part of the goal here was to develop a biopsy device that would take appropriate samples for analysis and mr miller and mr mark after doing testing determined that they should have a rotary movement to get large in his declaration he says that he wrote a status report in may of two thousand promoting a rotating scheme and the citation is to exhibit ten twenty five and ten twenty five as listed in the but it says it's found it a two to two one and two two and those pages i don't have it do you know if you recognize some confusion there in terms of the citation well i think in an effort to not the entire record that's referred to in that index is five binders of documents and i think when the appendix was assembled only specific records pages that were stated and that there is a critical memo that you cite mr the board correctly found that there was no evidence that mr shaw went contributed to the conception of having a rotary motor in the device and everyone concedes though that figure ten was drawn up by misjudgments right that's correct and that's the only place where you see any evidence of the of the pneumatic system in the rotary motor right well no there was mr miller's testimony that when the only place in the in the written description or in the pattern itself that you see any evidence well there's reference in the patent to rotation of the device and cation and the evidence that existed on the rotary motor with mr miller declaration there was ample evidence of that the whole idea before they even went to mr shaw went was to have a device that used an air motor so it will be compatible with m r i so the determination by the inventors based on their experience with biopsies was that they were adding the rotation and they were just going to mr splint she went to implement their idea of this device being operated by an airman or how you respond to the one type would work and dr labors testified and the board accepted his testimony he was an expert in magic that there was nothing unique about mr schwinn designs of the device that ordinary skill in the in the art of the batiks and rotary motors correct well i don't think the board found that in fact the board i actually found that mr maher had worked for  art who simply reduce the end benchers idea to practice not necessarily a joint inventor even if the specification discloses that embodiment to satisfy the best not a requirement for hear the evidence the the board findings that mark millar conceived of the idea to use hydraulics before mr schwinn was involved in mr shaw and failed to present any evidence that he conceived of the rotary motor was testimony that what mr sherman shit was routine experimentation ordinary nothing special was not needed for conception so the board really considered every aspect of mr schwinn arguments in terms of it he proved that he contributed to conception of these two elements of the device and they were they found he did not and they considered pneumatic i don't think we contend that he could have designed or tried to design the circuit i think the point was it and this related this testimony went to this issue that they could have gone to ok so the reason why the status report from a two thousand isn't in the joint appendix is because it's not their birth right they don't have to stablish prior conception right that's right but what we are burden is to show that we had prior to that the patenting files that we had a control contribution to the conception the board tried to leap around our evidence say even before that miller party conceived the invention we think that there are at least needs to be substantial evidence supporting a complete conception by the miller party for them or to do that and that's that's the problem we don't have the bur do not consider because of limited torque this is a report that came out after the patent application was file the vane type rotary motor is the only rotary motor that disposed in the application so i want it shown to