when they were interviewing the prior exposures that the guidance in the prior and substantial and particularly for example when they were saying and for mabel meant the amount of experimentation necessary to mix the method was cited is being substantially identical so what rejection by saying that preference is not enabling for the board to say look the teaching of how to make in the prior art reference is really about the say there's identical what they said is it has not been shown to be the thermite process not been shown to be quote substantially different and because of that they have not shown conclusively shown that the saints mixing process does not produce creating nitr combining nitric acid and creating that's the st step then mixing with water sort of then is not there but then mixing with water and leaving the crystallize there's two differences between that and the prior art st is the individual ignore the errors in the prior art and it also did that for enablement too and there's really four facts if you look at them that the board overlooked number one is that the melon teaches no matter what strength of acid you seven of the record dr chamberlain expressly showed that the bubbling method the st method in the same cannot work is a matter of accepted science that's equations that show any product of that is not creating nitrate let's be refutable on the boards never addressed it other than p t o and there were relevance of that to the mixing method so it's to the same itself it shows that it's not the relevance is by point three which is the same as also says that what is produced by the bubbling method and was produced by why should i not credit that fact finding by the board that it converts since the same final one is just one more verse to know for three reasons st that's just hindsight based on what we now know but creating a nd is not science you can't simply divide by two and three just things do that and you know how i know it's not science that's my rd point is that the same specifically says that it's determine the formulas based on the weights the percentage of thirty two eight percent that  it's not that simple how how is a procedural matter in a x party proceeding in the board as evidence get developed contrary to the applicant or in this case patent owners but here that's exactly what examiner did which is what is so remarkable the examiner and the board the p t o didn't just have the say so they had all these modern references before to support the idea that a simple mixing they had all of them indeed when cl six was the night of starting the reject when the allowance was pulled back they added tertium to make that exact point that according to modern science you can just mix it that's exactly what they said and yet thermal life is traversed every single one of those that is not enabling and the board simply looked at thermal life method and said because it's substantially identical and you haven't shown it to be substantially different which was wrong assumption then it's not but it's doesn't overcome that's not really relevant here do you think that they had to replicate the mixing method in order to be able to prevail in this case i think yes because or they had to have some better evidence what they have is just conjecture that the or is it because of the formula which was double the formula and that the claimed invention both i mean to saints and had the double formula but i want to i want to meet you and i also want to ask you a question about i think that is really almost irrelevant here because the question is whether a person of ordinary it's only art in two thousand and seven could follow the instructions  whether or not to saints his numbers actually matched up using you know chemistry from one hundred and fifty years ago i think doesn't really matter what you want to know is if somebody in two thousand and seven could read that one sentence dissolve canard and this is going to be slightly can confuse question been one of the things that's been a little bit hard to keep straight here is the way in which at least some thermal layers side the question of what was disclosed seems to bleed into how to make and i guess increasingly have the feeling that there may not be such an independent how to make a point being made on the other side as much as we really there really wasn't substantial evidence to conclude that what is taught in terms of a compound not how to make it in the three prior references is whether to whether or not i took a placement and i think mr garces point and correct me if i'm wrong about this one of the points he made this morning is that if you look at the weights the gram measurements that that's a very good reason particularly with his expert having so testified to think that what was actually being disclosed there is not the same thing at all but then again that's not that's i don't think that's the right test i think the test is whether or not a person could read the instructions on how to make it and make it that's what we're trying to figure out what it to think that really puzzles me about that state of god is that you're saying how to make it what if it isn't the same thing as what it's claimed but then you're getting why are those instructions on how to make it even relevant because it's an express disclosure expressly said this is how that's and disclosed into saints or would they be trying to make what's in the claim so they would be trying to make pretty nitrate which is what's in the claim which is what are her unambiguous play discloses both its name and its formula and so that's the question whether in two thousand and seven someone could read these instructions and make it it's not what it's not to go through to st she try and say well i see a discrepancy here because and you know the eight one is the page sixty structure of creating which the examiner cited i think six times as the structure for creating then i think in their august put forward is only conjecture supposition as far as to if there is having on it they have one of their experts who says that i'm just not remembering the record well enough did they have somebody who said well i didn't but i ha sat right that's not right if the colleague only tried the public method and that's what most of their declaration is about what they say about the mixing method is is very very minor the other thing is  the office did not use their disclosure to filling gaps in the are we basically that the board use their disclosure simply to explain one of their arguments is there's not a lot of detail for the mixing method they don't have the concentration well actually dissents does have a concentration but they say it doesn't talk about the eye on the forms of creativity in how long you mix and so what the board did was it looked to their patent specification to show that in two thousand and seven those details weren't needed conclusions are sufficiently clear that that  it's perfectly clear the board would have drawn the same conclusion had it not use that language or how do you deal with that language which doesn't seem quite right so an a p p x twenty nine dollars the word says twice that it's using preponderance of the evidence right but a bit but it  also says conclusively and necessarily and so you wonder a little bit about what those words are doing there if they were actually part of the board's right and so it is or it was it is our position that because there are only putting forward sufficient evidence to support a finding of player error and i don't know that clear air is the right standard but they have to show something to rebut and express factual statement or reference  the answer which would seem to him which i think would include all of the six references to page sixty nine on this specific point does what happened when what happened to the i mean if they remain part of it then it seems to me the board did actually adopt the examiner specific findings about page sixty nine of barger as creating which as i say i think i also  yeah and so it's still part of the prosecution history i think it's i think it's still or it can still be on it and like you said there are real life agrees that order itself has the correct chemical structure still allow you to say that opinion that matters because that opinion this essentially like a non final office action it doesn't mean that they expressly adopted it they don't have to express it up just like they did that opinion but they didn't and the evidence is not that we didn't isn't that  and the mixing method doesn't work and it's not conjecture it's clear facts and clear science of the board has never addressed instead what they said is this is substantially similar to thermal ice method but that's not true and indeed one of the most telling things is they say that a simple high school chemistry but nothing the past one hundred and fifty years was cited to support that thermal life instead overcame every single one of the modern references that the p t o put forward to show that