for any sort of continuing that map location not a continuation are if we agree with you that the spec doesn't meet written description requirements for new clients on the continuing filed contemporaneously with the filing of the continuation application is treated as providing disclosure that's part of that application the consequence in this case because of the board expressly found and we certainly agree just very sensibly doesn't want to defend that position because the twenty four thousand filing date is horrible for the ira specification with claims since closure the board found disclosure going back at least to two thousand and nine in our chain of this appeal that you are you entitled it to an earlier filing that wasn't contested your honor the board accorded us an earlier filing date all the way back to two thousand and nine we'd argue for even earlier jade's we're not contesting those earlier dates for the for written description or support then your view is you get priority well we've got two different issues going on here so so judge wallach's question was about the written description if we give them a twenty fourteen written description day then they would be on patent all over our published application they'd be unpalatable over the prior art we said we wanted to apply the borg never gave his chance to interesting enough if you disagree with us on the other motion on the accorded benefit motion then they'd also be on patent all over their own disclosure under encyclopedia britannica theory so they don't argue for twenty four thousand date it would be horrible for them and we agree that the claims in part because of the order that they decided the issues and they actually in the written description issue never addressed claim that you're just confusing me and i think journey is unfair i don't understand i thought that the issue if i were to agree that the only written fourteen day there would be a host of prior art issues that would be raised against them and that the board would have to get into and we would prevail because as i said twenty fourteen days very very late date in the start we don't think you should even really confusing me a lot in this presentation and maybe it's not your fault maybe it's the dense and confusing factual nature and no doubt it is the board's inconsistent opinion but i don't understand what you  because and i don't understand anything you said there after because most of the stuff you said would require us to make fact findings on appeal i disagree with me so i do disagree what i'm trying to do is give you confidence that the facts are already in the case o don't require any further development there or there are already have in their car further development we don't need to make fact findings it doesn't matter what the record demonstrates so so if you really man there's nothing for the board to do ours never put any i don't want to get bogged down in that issue he was arrested questions herself a verbal to you the fact that you're trying to confuse us it's really not to your advantage i apologize your honor that's certainly not the intention what i would like to do though is pivot to the other issue the court of benefit because in a lot of ways minute and a half left i'd like to segue into the accorded benefit motion because that's exactly the issue that it's presented there everybody agrees that or is to not have an expressed disclosure  first of all is if you're judging this not with hindsight looking at the claims as they are now but looking at the specification as one skilled in europe would have read it at the time of filing you would face three express disclosure following the arguments of the parties the board correctly answered no what's odd is they then came up with their own theory in the a court of benefit motion pieced together their own embodiment without any disclosure and actually reached a wrong conclusion because among other things it actually doesn't meet the requirements of the count the count requires a suspension of the kind of treatment they speculate without any disclosure and analysis that there might have been a suspension at some point during the creation of the make sure that expressly ends up being the solution not a suspension so again because they sort of let out on their own theory this was never may please the court jonathan graves for horace medical the board was correct or honors and finding that the common or a specification did in fact disclose an embodiment within the scope of the interference count namely via example two in the specification that i just started to address does in fact provide adequate written description support for the remaining claim claim nothing but what about the fact that the board made its findings at least implied the board concluded that you had to amendment or you wouldn't find enough support i think the board was just simply wrong about that on the written description issue here are written descriptions a question of fact right it is a question of fact that the board also made determination and benefit for the benefit of or us to find anticipation of the autonomy claims if the court reaches that conditional cross appeal and three find written descriptions support for claim nine and here is why the board found the express teaching from example two and there's no dispute about this provides all the elements of the interference count as well as the remaining claim nine except for the suspension board made inconsistent climates in fact one as it relates to written description and then the other in connection with your request for primary they record them from the bo find for a written description appears in the amendment right yes but the board specifically seem to find that ketamine is a mandatory ingredient look for an express embodiment disclose in the specification that did not have ketamine that's an improper reading of this court's precedent that one can more broadly claim than once express holds true for claimed i as well as an expressed disclosure in example two of everything but the suspension of four when allowed and the board's correct finding that the specification expressly teaches the addition of  as well where it's not in  is a trivial task and the specification expressly discloses the three well known limited methods for mixing an active ingredient in a liquid namely dissolution and most of the mo teaching of suspension in example to something which is is not correct however the specification in the board found this in connection albeit  at page six of it's written this decision the board found there was expressed teaching in the specification which there is of these three limited well known methods of mixing in active ingredient in a liquid i'm not i'm not saying that you should lose but i can't interpret the board's decision in particular it's fact finding it's across these issues in a way that makes any darn sense at all and so i mean i don't i don't know i mean i think the best you can do is try to convince me that you know even a blind squirrel finds it out once in a while and that's what the board did here then they got it right even even though you know they made all these what seem to be inconsistent that findings lying to me it seems like the appropriate thing to do might and that is to point that out and to send it back respectfully they made fact findings about what the specification disclosed now as i was starting to explain the church or malli where they went off the reservation was in their interpretation of written description legal standard and claim nine is specifically limited to the treatment of infection that's what board noted that ketamine is are not used to treat infection where they erred on the written description analysis was saying that as a matter of law there had to be some disclosure of an embodiment without matter that is a factual questions that you're as a matter of law statement is absolutely wrong you know what i meant to say with a legal matter your honor if there is sufficient disclosure within the specification by which one of the ordinary skill can claimed combination then that's adequate written description support the fact finding is here by the board support the conclusion on priority don't we have to we have cases that say obvious is not enough to meet the written description standard that it would be the fact that it has to be actually expressly taught obvious since you guys keep using the same decision language i'll tell you i hate it it's bad language it gets people off track all the time and i don't think you're using  of ranges and undoubtedly the point later rendered described was a combination that fell within each of the ranges and that's why the in this situation which came into play it isn't a substitute for obvious taking example two and then as the specification states additional or other active ingredients specifically the one named antibiotic being floor quite alone can be added to the composition can be included in the  you don't dispute that example two doesn't teach suspension correct ok so where do you get the suspension we get the suspension from other disclosure in the specification which the board noted at page six of  decision that expressly refers to the limited well known ways of mixing an active ingredient into a liquid namely motion dissolution but that doesn't and make example t example that actually provides written description from what's in the claim correct but the law does not require that there be a specific example that has all of the elements of the claim for there to be written description support the guideposts or in the specification there isn't a lot of picking and choosing to be done here the spec says here's an example to that's got everything except suspension for example board did say that you were doing too much  claims and the oars disclosure we believe has each and every element of the autonomy claims which the board should have also found falling from its priority support finding finding an embodiment within the scope of the interference c case if it does render it obvious well they would have to move to argue that it was obvious and you know that it's too late for them to do that at this point i'd also like to point out that they keep on doing things like pointing to the dispersion language but even in the dispersion that's a contested issue among the parties whether dispersion even she teaches a suspension it's actually a superset so now we're getting into envisaging within an visit there's several levels of that that need to go on there so i think that's a problem and i thought it was very striking when he said well the claimed nine involves an infection that's exactly the problem with the analysis both by my friend and b courts here they're starting with the claims and seeing if they can use them as a template to pick and choose something within the specification that is not how these analyses are supposed to be done you're supposed to look at the disclosure and see if it's providing the guidance what are we supposed to do arms close to try to analyze the extent to which the boards actually find these are inconsistent well i just simply look at these one motion a time and if the first motion move images of each other the only one where the board actually did the correct analysis on the arguments the parties provided on the evidence the party provided with the anticipation motion they got that right because there is no basis for anticipation even if obviousness could come into play even if that had been argued obviously this is not enough to give them benefit so that they would still lose on that argument for the purposes of benefit not not written description but for the purpose of the benefit motion they'd still be stuck with the two thousand and fourteen date they'd lose for that reason because they're years and years behind us so you know again they can't i  findings apply with equal force to the court of benefit and the board's already made those findings correctly so if you agree they got it into suppression motion right they must have gotten the benefit motion wrong and they've already made the necessary factoring so that say that my friend stuck with a twenty fourteen day so so yes he will have to remain regardless but you don't have to remain for them to reopen the issues i specifically would say you shouldn't remain and the written description for them to reopen because of course horace didn't make that argument so would be an appropriate remain for the consider an argument that ours ways that doris who doesn't want to be decide with the various appendix page cites office i noted it in passing and that was my interest i don't i don't recall that at that point in the record i have it twenty three further autonomy asserts that the person having ordinary claim language that requires the treatment of tonight is that that count goes to any ear disease metal or inner ear disease your are and there's nothing