think the panel would like to clear up what the agreement of the parties is about the remain and as i understand it the parties agree that there should be a review and consider this new evidence though there is a disagreement about whether we should remain in for consideration of fraud issue but putting that one side there's an s a s issue in this case because even though the board instituted as to all claims it did not be remanded for that reason the s a s reason as well as the other reason stated in our motion to remount so you anticipated my and my introduction here which is that there is agreement that the case should be remanded here are grounds for i'm trying to figure out where the light of day is between the two of you if there is any light of day because that was part of the confusion on friday so you both agree that the board should look at the new  submit well mr quinn in his letter said that they would not object to the board considering the new materials and you know i mean there are situations where the agency refuses to reopen the record and refuses to the agency in the agency had to reconsider their and so we think it would be grossly inefficient for this to go back down to the board the board to receive used to reopen the record notwithstanding the commitment to not object and then have us be right back here before you again so what we're asking for is for there to be an instruction from the court that the remand consider  instruct it instruct the eight the board here to consider to reopen the record consider the new evidence and determine whether or not in fact that there were in this for material misrepresentations made in front of the the board we have evidence well first of all we have oil dry consistently stating in their papers that a person of ordinary skill only or cannot possibly determine the composition of the two commercial letters and mixture eleven of the patent the reference reports in the ninety's the competitive the annual analysis of competitive product this is mr guy who met with maurice had until the inventor of the pengo reference and then he's sitting at the hearing in the i p r while these misrepresentations were being made not saying a word mr her first says he does a search within oil dry for documents but on the physician he says he doesn't ask a single person who does r an department that as to whether or not any annual analysis is done they have a whole library of competitive products not it not a single question about that instead he does two keyword righted to him by counsel and you know finds nothing on a document management system which is inherently in cornwall i don't understand why i mean you guys can debate whether or not it was a mistake or fraud the board to reopen the record and consider the new evidence without deciding that there was a was some kind of material misrepresentation that i think in this is to me this analogous to the real sixty b standard sixty two newly discovered you know i'm not your honor i'm not suggesting anything untoward with respect to mr quinn i don't think it was what are we arguing i think i think what we're asking for the asking the court to suppose you know there's nothing else for me to discuss on that i think the other issues that is probably worse bringing up because the i p r is increasingly on the appeal increasingly focused on the pat friends with risk because of the new evidence on the composition of the commercial one thing that the board did not consider below with our argument that next year eleven was mathematically or limitation and the greater than limitation yes and if i understand correctly you say that these new documents show that the tidy cat means less than two and you have a router for the greater then you have all of the swelling played between point six and one point one day you have about thirty percent of the non flying play in that same range and then you have seventy percent of the nonce well in class between one point one eight thing and two point three six so you know that the mean particle size limitation when you have seventy percent of that swelling that non small in clay higher than all of the swallowing clay you know that the nonce won't play must be greater in size and they don't contest that in their brief that was our second point on appeal the only thing they are going to response of compositions they did not argue size they didn't contest the point the board completely overlooked that actually only we think it would be appropriate for the court to provide some clarification on that on  we end up here yet again that that would be the cases as well based on your comments judge dyke and although it will dry agrees that the case should be reminded it's certainly not on the basis of any purported fraud on the board and so we strenuously object to their suggestion that the court should instruct the board to consider whether it will dry should be sanctioned pursuant to thirty seven c f or forty two point twelve i think that is the principal difference in that in terms of the remained issue the parties both agree that sas is a political here because there are not instituted grounds that weren't addressed and it we would be entitled to file and to update a patent on a response obviously the board only instituted on certain grounds before that necessarily is going to involve some reopening of the not just that you would not act like you said the board should be permitted i think it is appropriate when you were yes i agree with that it's not just that we do not object but i did i don't see how the record cannot be reopened in front of the board in light of the fact that there are now grounds that we would need to respond to any patent owner response because our patent on our response was previously limited to the institute of grounds which was the combination of patent gil and  let me just be clear about this i understand that you don't object to these documents be considered you connection with the new rounds is it also the case you don't object to these documents be considered and with respect to the whole ground judge like we do not object to the documents have to have this court put its imprimatur on the notion that there's been some sort of sort of fraud before the board of the specific instructions that they are asking for i think are simply going appropriate we wouldn't necessarily order the board to institute on all of the grounds and allow you to file more because even under their own practices they the director has said that they have the right to choose not to institute at all they don't want to institute on hold and that's certainly fair and this is a case where  the board only instituted on one sort of grounds after having rejected various rounds we filed a petition that is will dry filed a petition for rehearing on on those grounds and so i think the board has a number of  options that it could pursue here on remain and are modest point is that we don't have an objection if the board to the board if it's going to institute i think sas makes clear that it needs to institute with respect to all claims and as interpreted at least in palermo's all grounds and therefore we don't have an objection of the board does so then obviously the board will need to consider a record that addresses all of the grounds i would like if they're if they're further questions on this i'm obviously happy to answer those but if not i would like to address briefly the point that my colleague has made about that what they're calling on appeal now a logical certainty or a mathematical certainty of argument with respect to mean par size of the of the mixture eleven of patent the greater than women yes that's exactly right just like this goes to the greater than the limitation of course in part three of our appeal argument or the argument in our brief and that's essentially what their argument is that you can take the midpoint and their argument on mathematical certainty with respect to the compositions that are disclosures he's going to mean particle size that they attempt to calculate based on the range that is disclosed in patent kill number one it's a new argument on appeal it wasn't entirely clear to me that this was an argument that they were making as a separate argument until their their reply if you look at appendix one tend to want to leaven an appendix one fourteen they don't make the mathematical certainty argument that they were that they're making now but but if suffers from the same flaw and that is this it's not a mathematical certainty if if these particle sizes fell at the low end of the two ranges and then you do and then you do them do the math you could come up with the allegedly non swelling clay at being only at one millimeter and meanwhile the allegedly swelling clay would be at one point one eight millimeters and that within wouldn't meet the the the greater than limitation that you were referring probabilities it has to absolutely be that way and so there are there is this mathematical certainty argument they're making suffers from the same flaw of them taking in points it's just they're taking the endpoints of two groups assuming the middle of those two groups and then  doing some math with the two groups and that flaw that suffers from the same flaw because at the end of the day it depends on the distribution within each one ok if the court has no further stolen particles in this range and only thirty percent of your particles in that same range and seventy percent of the nonce falling over here much higher it's you know it is a logical possibility to have  the swelling particles greater than the non spinning that this is sometimes not addressed or rather it was not addressed by the board it was raised below and it was not addressed by the board as well you'll have an ask him to address it on the scuse me to the board on the ship so that's that's the request of course that's entirely discretionary at this point what type of instructions you provide on remand the other thing i guess i would like to point out is you know the idea that all of the particles would be on one in or one extreme or another of you know the sieves sizes it's just utterly contrary to all of the testimony from from their experts which said that no extraordinary steps are taken to refine the particle sists size distributions of the particles they will exhibit typical particle size distribution curves  and that no steps were taken to refine the particle size distribution and so in these circumstances what i'm saying is that a dull same distribution of the pericles is a certainty that air and in those circumstances and their experts agree with that they're all the articles that they cited agree with that proposition you know i think the it's the final point of clarification that i would make your honor as we filed this motion to remap and with the court as soon as we became aware of the documents that contradicted the representations and made in the i p r since that time discovery has continued and district court case in fact recently wrapped up we did not put in front of the court every single document or deposition transcript that we believe demonstrates the material misrepresentations that were made and so again on what i what i don't want i don't want there to be any confusion that these are the only documents that we're asking the that we're going to be asking the board to reopen the record with