morning ladies and gentlemen because of a number of circumstances where conflicts with the council schedule and cases go on submitted we only have to argue cases before the court today which is very unusual for the user of the device which they know who can no longer see it with his eyes to know what the thing is under their skin to have an x ray read of all identifier self identify or whatever the  about providing this to particular doctors and others but the only reference to what is one of school in the dark here in the record is a medical device that's kind of a circular thing well i'm not sure it is circular if somebody is interested in what's out there in the marketplace don't they look at what's out there in the marketplace and then they say i want to know about details and ask them the manufacture really the only thing that came out of the declaration if you if you really look at what the findings were that that was the the board found that i submit was available to any member of the relevant public familiar situation a product is out there in the marketplace somebody interested in the product would think of asking the manufactured you have literature of breath well your honor i would suggest any link you don't dispute that if procedure it should be more and the reason for that is we're not even of this issue in that really examine procedure take depositions so how are we going to check these there's a burden of proof issue in this kind of examination by the same right and i believe that's correct but i do believe that that ultimately is for the patent office to do something one declaration from one of your employees who says i used to work for a third party distributor and i gave out what several of these wasn't it was so nonspecific he court of law it would certainly be not enough to satisfy an ethical trooper gesture and i think that maybe in some circumstances that wouldn't be enough but not not in the circumstances that the declaration itself is not the only piece of evidence we have here art is asking this court to treat it as if it's the only piece of evidence but it's not actually we have a device in a man manual for a device devices are sold with product manuals a person who every living person would know that they could get a tragedy of the manual makes a lot of sense that why does spread product particularly a medical device in which for which details matter about how you use it  there were a lot of them that pretty much were always accompanied by the manual or whatever more calls this thing why should we not send it back to me i'm going to assume that those would be relatively it was ever publicly accessible and that's a really different question because we don't have any evidence other than this affidavit that the product manual was never given to anyone well and regardless of whether the product was sold a lot of times products are by the relevant public based on the totality of the evidence and i believe that the board properly credited the evidence that's provided not only by the declaration but also the manual self that shows that somebody who was interested in i assembly is power injectable that is seems to be a pretty strong phrase and you're saying the board says well it didn't have to really indicate it says it's power injectable but it could not be empower is rudimentary parts structure that was long known in the art the septum the outstanding reservoir housing all that structure existed and we've shown that in the are the other you're saying there could be not power injectable we're saying that based on guards disclosure contents of the information that was to be delivered by the radiographic marker originally the claims filed said the radiographic marker indicating information about where all of our did is go in the blank about the information it could have been any information doesn't get some of the do you think that this claim requires that the device be a power injectable or i think that bart can't simply point to know that that could can you answer i think the question i  you think that this claim requires that the device be a power injectable port the answer to that case doesn't stop at the answer to that question what's your answer to that question i don't believe that the the  define what a power injectable port is that's not that doesn't answer the question then i but i'm sorry i have those the device claimed has to be a power injectable port whatever that may me but we do not think that it has to be caring for but if it does even assuming that it was there as your honor said all of the structure that is claimed would have been found in the art of the port structure exists in the art what is your best argument that even if it has to be in power injectable that any of the boards findings could stand and his patients and i believe my friend stood up here earlier and said that there was evidence in the r and they don't dispute that some of the ports were actually being used for power injection so if you only actually point was busy chasing mary i don't think the board ever made a finding which would be required on could not stand if only for lack of findings on on that and under the e p a we have to we can only we can only infer based on the grounds of the bord relevant structure with respect to these claims is the housing that includes a housing base and how that defines the resident does not have a house and it does your honor actually the easiest way to think about it is if we look at  but if we look at appendix six zero six we can see what the board pointed to as i see ms has it simply the titanium shall it has the top portion and the bottom portion the bottom portion is its base the bottom that it didn't agree with you if you're correct but we believe that the board's error was in trying to find that partition in the claims rather than looking at the claims and trying to find the elements and i submit so if we look actually there's two reservoirs and i think that there is what's labeled as the reservoir propellant chamber and the drug reservoir that same's actually say that the housing base has to define at least one reservoir there is no reason that the for the board  limited that reservoir to only the top reservoir and not the bottom reservoir that i see that is a more complicated structure with multiple reservoirs that is your honor pointed out with that in down doesn't mean that it doesn't also same structure that's actually disclosed in  serious instruction manuals are you prepared to contest those propositions or are we talking about a kind of there isn't something in the record but it's obvious for pressurized things some are ever different strengths that others have different reinforcement whatever different well so that is a factor that has to be looked  crucial word is how you interpret indicate yes when it right millon to believe that the figures indicated that this was one cup and it was false it was actually half of that right it was the whole point of dealing with a drug or a method of using a drug with instructions on how to use the drug that could be you know that presumably the person taking the medication should know they're important much like it's important that th