twenty seven and i'd like to confine my comments today to the more comprehensive ground of the invalidity namely the combination of cycling salsbury which was based as i said on the impact proper claim construction which we knowledge is sometimes referred to as an i v of procedure but the procedure involves finding one viable claim under a microscope and taking it into a syringe and then injecting that single  finding one of the cell under a microscope and taking it into the hypodermic needle this pattern of the disclosures entirely consistent with what we're doing here is using a machine to sort of large volumes of cells for in vitro forty four or for  would have that understanding at the time so and so now as i understand it we're moving over to the question of whether it be obvious to freeze the samples produced by sight oh yes you right yes ok and then now we have the freezing of prior art salisbury you can feel it which makes it clear from decades ago that people were freezing sperm all the time and then  don't see i'm saying that well he says pregnancy and if you skip down to it says of twenty nine females inseminated with sperm called to five degrees celsius during shipping fourteen were pregnant at four weeks of gestation and be there were there were other prior references where there was a sorting method done to sort out sperm cells and then freezing them right there well i was maybe as characterized in that way but the undisputed evidence was that those samples or sorting techniques cool was a good percentage of success and that is the best that they have as far as teaching away is concerned the it the fact is that the four to five patent is a classic example of what k s r says is obvious it combines two well known techniques uses them to perform the same functions each always performed and produces the precise result one would expect ex wife in its replied criticizes the board for   reports pregnancy rates for sorted and unsorted sperm cells that were not statistically significantly different from one another so their equivalent success rate was stored on stored so you can freeze unsorted with a high likelihood of as the board noted the prior art was full of examples of storing techniques combined with freezing producing viable sperm from now the board acknowledged that some of those techniques were not as effective that they can reliably sort but i think it's that that's not really the point the point is to their expert described these techniques as very stressful but nonetheless they were cheap in the par it was routine to use those techniques and then freeze and then have viable sperm that the issue here was not about effective sorting it was about what the stress of sorting method somehow lead somebody on not to want to freeze and clearly that was not the case i think it's worth noting also that in column for the four t name but if you look at the patent numbers there in that the list of sorting methods that this inventor said could be used with his invention you could sort using that using this technique and then freeze and that practices his invention according to the specification so there's absolutely no support for this notion that sydell teaches a way and there also was a very clear expectation of success in combining these two prior methods that the other thing to note i think and this is what the board was talking about i know pentax thirty the passage that mr miller referred to is that the motivation here and it was undisputed that one of our ordinary skill would be motivated to combine sorting and freezing and what's also undisputed and what the board was about as clear a case as obviousness as you can get now let me turn up since mr o'neill started with claim construction let me turn to that and i think the first point to note on that is that it doesn't matter because as as i think  that's for all of the reasons that the board already explained that i just alluded to no teaching a way clear encouragement of the prior art to do this and but besides that the claim construction is correct as s the court noted any time you want to gender select the offspring you're going to use starting to matter what fertilization techniques you use a so just to do if the court has no questions just to raffle off this is just too conventional methods used in a conventional way  this had been used in the past that ride that there was a clear and the board described it as routine it was routine in the prior art to use sorting methods and then to freeze and to have viable sperm cells afterwards yes your honor mentioned in the board's thirty sites decision clearly indicating that we didn't get a fair hearing part teach in the way evidence because the reference doesn't explicitly mention freezing and doesn't explicitly say you should not