morning our first case this morning is in render an invention not just possible but reasonably predictable here those elements are not met sided art does not teach all of the elements of the claimed inventions such as skilled artists and would be both motivated to develop the claimed invention and would be reasonably able to predict the success what is up to the level of skill in the art with the person that with that we're talking about i think we're talking about relatively high skill we're looking at  identify one and it is one that is used in this vaccine and in the claim of a particular mutation that could be used but both of those are not looking at combinations vaccines they're looking at full but why wouldn't high skill these people are going to know what's going on in the field why aren't they going to say well let's take meyers and helpers and put it together with two vaccines instead of one it's sure to work better because they have this high skill and in seen technology just as your honor has noted that in the chemical industry that we're drunk just because you have possibilities doesn't make it an unpredictable arc and therefore you identify possibilities but that doesn't mean that you have a reasonably predictable outcome until you actually try it and the same is true with that scene technologies in effect if it might even be more unpredictable then a chemical  understand that but wouldn't it be wouldn't one be motivated to make this effort instantly now because it's the difficult you know that and the devalue of having both vaccines instead of just  what's going to happen when you combine them and by looking at the different it what to do with our teachers which telling you you're going to reach a certain they didn't get similar outcomes for the saying site geno time for the type want you look at those results they're different even then with the modified live where they had several examples of that and i got variable result they weren't predictable if if anything a skilled artisan is going to look at that and say you know when i do this i have to test each one of these i can't predict where my outcomes point you know there's no doubt that if we were here about it and just patient you'd be right and there's no one piece of art that has everything but where are the record did you submit any kind of evidence as to what a skilled artisan would or wouldn't understand from these from these pieces of our you didn't submitted the affidavits and there was nothing that was p i think we're at the gym and maybe i'm misunderstanding your question here that why didn't you submit any affidavits from one that you claim would be of appropriate level of skill in the art to speak to this question during the prosecution and i'm i regret i don't actually know the answer that because i was prosecuting attorney on that i you know i took this after the were waiting for the response from the board so i don't f in the combination that works better with full i'm struggling here to because is there any reason that one would expect it not to work is there anything that teaches a way i see no teaching the way i think or well my or suggest alberts would need to have discussed combinations in it does not i think that one in particular had done it myers was is directed only to type one and it never mentions other types   the most logical choice if it suggested combining those together then i think i think the invention would be obvious but alvarez didn't do that let me go back to your teaching away point i mean you said that myers teaches a way because it only addresses that type one but that's not the same as teaching the way i mean the no no it's not i and i think if you had you know one hundred years of nobody ever considering type two you might be able to argue that that that is evidence of teaching way but i don't see where in vaccine one that they tested it wasn't fully effective so if you're looking at it from skilled artist point of view who's taking all the facts trying to get you know it's a vaccine you're not just trying to make a common virus trying to make a vaccine something that to prevent a disease jury have they're going to be aware of the regulatory authority that you know and also those hurdles they have to prove that both of these work actively individually and then the combination itself works each component as well as the did individually or that are in order to get you know the commercial license for that so they know that hurdle is there in addition to that skilled arson is also have to be looking at the date of your application right and at the date of the application then you're looking then myerson others are able to come in to play because they're after fault so when you're looking at myer's you know it's a teaching to the type one virus  and you know swine fever and then in l bers it does talk generally about you know d v d s that there is more than one time there is a type two out there  and that the ten us you know this principle of attenuation through deletion could be applied to either time but it never discusses and points out that when you combine different viruses together a combination you don't you can't predict you know reliably that it's going to work because the skilled arson knows that when you put two different viruses together they interact with each other you know we we don't always understand how finite number of possibilities which we can argue we've we've got half here and that those are not just possibilities of that they're you know reasonably expect reasonable expectations that they're predictable and i don't think that when you're looking at a combination vaccine that you can you can reasonably predict that the vaccine is you know your group your composition is actually going to be a vaccine that can prevent what standard is that there has to be a reasonable expectation of as success in combining those two and a motivation to combine those two prices and we have both of those here i'm sorry if you speak up a little bit yes or here it seems that arguing that if there is any possibility that the combination would not work then there claimed their claim twenty is not obvious but that's not the standard the standard is that with the prior only need to provide a reasonable expectation of success she doesn't say any possibility of what work i think the argument is is that much like other cases that we've dealt with in the past that the these are viruses are unpredictable and that's that it's not a linear as as you might have us believe in terms of putting two or three things together and knowing they're going to work well that's true here in iran it's true there are common technology might be generally class as an unpredictable heart that characterization against an arm usenets rejections have to be balanced against the scope of the claim and the teachings of the partner here in part teaches you that these two viruses can be combined there's a motivation to combine them because you get better efficacy furthermore there's a reason like vacation of success because no that's achieve viruses separately where the only question here is whether they would work if they were right and there's no evidence in the record  or about the argument that that's when you're dealing with fulton's because you're dealing with where you don't have a competent viruses that that that doesn't give you enough and in fact raises some questions fulton teaches that the type ones acting alone is not sufficient to prevent the virus or reoccurring from being caused by the typhoon virus so there is motivation to combine steps further motivation to use their common likely to revert back to wild type and you instead of using kill kill vaccines we know that the common backings are better because  wouldn't have failures with regard to vaccines you know potential vaccines are you arguing that in unpredictable arts we can never apply obvious rush no i'm not but i'm saying that to diminish unpredictability we happen to have something i think in either europe leads us into secondary considerations some unexpected results or wouldn't we need some teaching away when we need something that supports your case when they've put up a pretty good prime official case i think that we're still misconstruing that when you have possibilities they don't they're still not reasonably predictable this that case because it's a combination of two different set of viruses together and when you make a common goal tells you that works and albertson myers tells you do it with the attenuated because that works even better where is there anything that says this possibly can't work so don't do it there's no teaching way there's no unexpected result secondary considerations there's nothing after they put forth the prime official case that helps you accept your unpredictability argument but that doesn't really help you either i just i respectfully disagree that when you're looking and i think we're still confusing what the possibilities are was fixed a predictable expectation and i don't think we have a reasonable expectation here with accommodation one assuming art is going to know that that's inherent but it's your burden at that point to convince us that that the decision was wrong and yet there's nothing been put in the record support what you say i mean other than the nature of the art that you're it you haven't bought anything from the field artists and you haven't told us about secondary considerations there's nothing nothing was submitted on the record and that's what we have to work  right from the record yes you are correct that is what we have to work with and i you know i can't obviously submit evidence at this point in time so i think that  know i think i think it's still even though it's a high level of skill i think that the evidence can be interpreted on middle a either way clearly you know me chip interpreted the evidence in this case differently is there any place for a  know proposed a finite number of possibilities but just because they're fine a possibility of possibilities then when you look at tests aren't a question is do you have a reasonable expectation that any of those possibilities is going to work you know can you