industry analyst right he had a reputation in the industry he adopted as his own it accurate description that type of that incept had put forth had he not believed it he in support indicated that the analyst was very well known in the industry and had a reputation in the industry right and that he would not have adopted it as its own if you did not believe he printed this in there completely accurate now as i was saying additionally in addition actually you're so far into speculation and like a foundation i'm not even going to ask any more questions about it but if you can answer me more fulsome stated to me previously was that the declaration of your witness a stablished sufficiently that the that the publisher was a highly reputable and b as a particular priority reference in order to for the evidence to carry substantial weight yet that's i said the key word there is exclusively as you know the key word is it order to it must be time exclusively to claim us that is correct it only needs to be tied to the invention as a whole and whole combination of putting all these together and coming up with an effective dural sealant that that effectively closes the tissue and prevents that we are wired had everything other effectively see the tissue and is dramatically beneficial effect of being able to control the application of thickness to obtain a water site seal was not appreciated prior to the invention by the inventors in retrospect and hindsight if you perform this question as the board did of merely look into this it is just how do we add a dye to the gel that simple however the genius of a lot of inventions is is that and retrospect alright it may seem pretty your date but you have to look to what the problem was it was being solved there was a long commercially available years before the duracell product yet it didn't solve problems it's still which had the evidence of all that and met meat only after the inventors did their work and came up with a they did all the hard work of experimenting to show that you wouldn't have the problems that caused by young predictability in this field the invention was too full it was discovery of the potential for the addition situ without interfering with the quick gel in time it was required without causing problems such as toxicity or lack of bile compatibility now the work erred in assuming the very small going from zero point zero one percent up to fifty percent if i wait and that typically higher concentrations were needed the working examples in bass typically were fifty times greater than the minimum concentration the lack of bio compound bilby could not be simply cannot be predicted the board's conclusion of ordinary predictability and motivation to combine in groups with a recent likely to success is especially so please the court the petition claims in this case cover a trivial improvement over the prior art surgical tissue that he said and see once the only point of novelty in the claims is the combination of an off the shelf commercially available dye with a hydrogen al that was known effective as a surgical tissue coating or sealant but isn't that exactly the problem s of the shelf glue set off the shelf die there is and all of a sudden when these inventors make this combination put these components together hadn't been done before it turns out to why were all these other inferior systems in use for so many decades if this was so obvious you're out of the facts you describe are not the facts of this case the facts in this case are that there is an express teaching and bass and see that you can improve a surgical tissue it he said or sealant by adding a dye to improve its visualisation to aid in its placement engaging in praise in the record in this case but this court's precedents have made clear that praise and other secondary consideration of evidence must be tied to what is both claimed and what's novel in the claims and the merits of the invention were not addressed in any of the statements of praise or need the statements in the record concerning praise and need go only to the watertight ceiling characteristics of the was that the evidence that was offered of praise and long felt need went only to a water tight seal and now you ask why was that there was success it's important to keep in mind here that business without infringing but the choice has been made according to the record to make the product that is explicitly taught in this patent well your honor there with respect to the question of why infringe the only issue before the board of course since this is a pita that caisson out of an inner part is review was the obviousness of the claims and on this record we have undisputed evidence that the  art references disclosed every limitation of the claims relating to hydrogels and that bass and c disclose every limitation relating to color and expressly teach the combination so the question here is did the board err in applying the law or in its fact findings and what we have is a record where the only two issues that were left for insects to argue because it was such a strong obvious case where one secondary consideration and to the issue of reasonable expectation of success and the board properly applied the law on both of those issues and its fact findings are subject to deference by this court and what the record shows was that on the key issues there were five buckets of evidence offered regarding secondary considerations and the board found that the only one of those groupings of evidence that carries some weight of not obviousness was the sales data but it's important to keep in mind that at the point in time when those sales were generated incept was the only company on the market with an f d a approved durtal sealant there was mention about the co seal product and the question you posed was w take those sales co seal was approved for stealing vascular grafts for a completely different indication that dealt with vascular surgery and sealing up the stitch holes in the veins and arteries after they had been pa that indication and so the evidence in the case only shows some evidence of an obviousness with respect to sales and for a period in time when they were when incept was the only company on the market with an approved  question and then the record so that for surgical use f d a approval is not required doctors are allowed to use products off label and there is some evidence on the record that other things  reference that involves us i had ak relates the a color blue and so the fact of including a dye to improve the visualization of a surgical tissue sealant or coating is something that was well barriers to entry i'm other information that it's sixteen of your read very your honor though the argument that we're making is that that the key problem with the evidence that was offered by an insect as found by the board included hydrogen surgical c once that were uncovered for other purposes and this court's precedents have acknowledged that when that's the case whether they were on the market with an approval for the indication the instep got it's not the question that needs to be asked when the question of obviousness is addressed and i'd like to very briefly address and respond to each of the points that insets counsel has made there was reference to the importance of the indication for durable ceiling i'd like to point out to the court only in column eight in fact of the patent is there even a mention of one potential embodiment which includes daryl ceiling turning to the pre determined thickness reference made by counsel for in step there are other claims in the patent that address the requirement of a particular thickness of application and discuss how the use of a dye aid in that in that process the claims here do not include that pre determined fitness limitation and there is a mention that the bass job moving on to the question of hindsight as we've mentioned at the briefs in a case such as this one where the board made express findings that bass and c expressly teach the improvement that's at issue here that it was beneficial to add a di to a surgical tissue senior he said there isn't the problem with hindsight you might have another case and instep has never been able to overcome that turning quickly to bass there was a mention that there was no parting point for bass in terms of the guys that were relied upon by the board and it's findings of obviousness but it claims that in a range of point one to ten percent the bass patent itself points to the person of prior a person of ordinary skill to patent was indisputably biocompatible it's important to note that the board found all the claims invalid four ways over four grounds two of the grounds were the reef five hundred and eighty seven reference it minutely biocompatible instantaneous gel time that's less than five seconds that's undisputed in the record with respect to re five hundred dollars the only argument with respect to claim ten is the alleged bulkiness and low water solubility of methylene blue that issue is not a basis for any finding of reversal because dr may's incept own expert conceded on cross examination that altered to chemical company during the prior art period sold a quick solutions no question dr may's insets expert conceded that the aqueous lucian you can buy from methylene blue was in a dropper bottle and you could put it into a solution that would turn the water blue with respect to the question of bulkiness last issue i'd like to address the board's fact findings here were quite clear dr lowman hyper branches expert offered a calculation explaining that it passes concentration of one that even if you had some minor amount of sterett hindrance that the concentration of the functional groups was so much larger than the concentration of the die that no person of ordinary skill would have any expectation th gel time would be slowed meaningfully or that there would be an interference problem with the gel formation in response dr mays conceded on cross examination several important things st he emphasized was a major problem but the board found that testimony was that you live because while agreeing that concentration of the die was important to consider he conceded that he had not considered concentration of facts  developing his opinions and the reason why was pretty plain on the record if he had considered concentration of facts it would have been clear and he wanted had to concede that at the very low concentrations necessary for a die to color  all there would be no interference stare a core otherwise this is a case where the board in a carefully reasoned sixty page opinion methodically went through every issue applied the law in every issue raised by incept in this appeal raises an a substantial evidence review question other than the very preliminary question of whether the board recited and applied the law correctly on the question of secondary obviously a law we've had hundreds of cases where you deal with the problem with a sheet case of obviousness and then of course before me reach an ultimate conclusion you go to the secondary consideration as though you were asking us to did write well well your honor i would tend to disagree with that if you look on the blooper if at page six where we cited what judge saward said he says there was a strong case of obviousness secondary considerations don't leave discounted the secondary considerations contrary to that that president ok we're out of time thank you