these physical properties and the commission erred finding that they are invalid for lack of written description of the commission incorrectly assume that these claims are quote exceedingly broad and almost limitless in scope that assumption is based primarily on the chemical composition backbone but it doesn't have weight percentages and it doesn't have it doesn't have the specific listing of all the ingredients ok on that forty one dollars in the red rate the i q he claims that that claim twenty one  so you're out of the there is no requirement so i would push back on the commission's overarching conclusion that these claims are exceedingly broad in scope and vast in scope as i think that did underpin the commission's decision in many ways these claims are claims which we just respectfully disagree with the commission on that the fact that they all have to be achieved simultaneously makes the claims exceedingly narrow anything outside the scope of those of those claims of those physical properties outside the scope and even the commission acknowledged from our working genus but not their sufficiently so that you still have a very wide well you are on of the next one is that what's wrong with it is that they're working examples are all clustered within the narrow scope of the intersecting properties the commission came up with hypothetical examples using the extremes of the chemical ingredient ranges but there's no evidence that those hypothetical examples would fall within the scope of the claim the written limitations and yet are not described they did not meet that burden or they certainly didn't show anything in the prior art that falls within the scope of the claims and yet is outside the description and they didn't show any of the hypothetical formulations that the commission relied on would actually fall within the scope of the claim so that so they're outside of what the statute requires they require the statute requires support for what is claimed not each individual limitation taken in isolation and so in summary on that aspect of my argument i would just say the commission erred by failing to take the consideration all of the claims limitations and instead focusing on each implementation individually which is the wrong type of analysis now the other error the commission made is  finding that the chemistry involved in these claims is unpredictable the administrative law judge who sat with his trial for seven days and heard the testimony and judge the credibility of every witness at trial at the end of a seven day hearing concluded that group one claims are fully supported by the written description and fully unable for their full scope because and i'm quoting the chemistry was well known and fairly predictable and because the patents provide a sufficient disclosure that a person of ordinary skill in the art would be able to work from the examples and accomplish the full set of the claimed compositions the commission didn't observe any witness testimony and wasn't able to judge the credibility of any witnesses but it simply replace that finding avail j with the contrary finding that the chemistry is unpredictable and it based the finding on just two pieces of evidence st pointed to the witnesses this gives me the inventor's testimony that the invention took a long time and was difficult to achieve and that's true but that testimony is not relevant to unpredictability in the written description context because that britain's written description in crete doesn't focus on where the inventor started it focuses on where they ended up and what they disclose in the specification so it is true that the inventor spent two to three years optimizing these physical properties that are claimed these claims but once they finish that process they disclose their work in the patent they explain the chemistry involved and they display is the end they disclose numerous working examples and comparative examples that can be used as a roadmap to practice these claims so quo of the patent system where the person of ordinary skill in the art with the patent in hand and the working examples as a roadmap can practice this invention and so the inventors testimony about what the inventors did and how long it took them to get to the invention really isn't relevant to whether a person of ordinary skill in the art with the patent in hand in the written description would find the claims in unpredictable to practice not the other only other evidence the commission relied on was in overturning the g s finding was mr overton's testimony that the commit that the chemistry involved is predictable in a general sense but that there needs to be rounds of designed experiments to achieve the claimed combination of physical properties again that evidence doesn't support a finding of unpredictability because there's no evidence that rounds of design experiments is at all unusual in this field or that it's a hallmark of unpredictability just because you have to do rounds of designed experiments in the chemistry context to get from point a to point b does not mean that point b is unpredictable and in fact experimentation is routine is a routine part of the optimization process and many fields are also now that aside from the lack of substantial evidence supporting this finding of unpredictability weekly the commission erred as a procedural matter because it didn't point to any clear air in the ale j s finding of predictability commission rule to one thousand and forty three dollars d sets forth the criteria for granting a petition for petition for review and one of those criteria is the appearance that there is a finding or conclusion a material fact that is clearly d erroneous the commission never showed that the l g s finding of predictability is clearly erroneous and therefore we believe that a brute abuse discretion that each one of those physical properties has a predictable response it has a predictable correlation to the chemical properties itself by itself to react simultaneously to write that that might make it difficult to optimize to reach the proper point that you want to reach but it doesn't make it unpredictable they know where they're going that the testimony from the inventor was it was difficult to achieve we knew we were going but it's an optimization process so the invention here is that they focused on three physical properties that they feel they hypothesize if they could optimize to a certain point would make a better coding and they ended up being right about that they optimize those properties and they ended up with a commercially successful talk about the group three claim because i think it's an era when your in your response time i'll try to be very brief them the group three claim is different than the group one dollar and two dollars claims there is no dispute that the inventors came up with an important scientific discovery which under which overturned the conventional understanding of how to physical properties are related to modulus and their and the if thermal expansion coefficient the industry had fought for years that those two are inextricably and inversely related in the adventures found out that they are undisputed that the claimed invention is described verbatim in the specification including all of the ranges and it is undisputed on appeal that the exclaim is supported is enabled for its full scope does not require unto experimentation that was the l g is finding it's not spit can't be disputed on appeal with those unique facts those two sort of facts set in stone it cannot be the case that the claim was fully d enabled and requires no undue experimentation to practice by its full scope was fully disclose and  described verbatim in the specification and yet the inventor was not in possession of it those are not in control as facts moreover the the commission is finding that the group three claim is unpredictable which was never a finding the l j made that the commission that finding on its own is incompatible with the l j s undisputed finding that the claim can be practiced without undue experimentation if something can be practiced without undue experimentation by definition it is not unpredictable so that finding is incompatible with that your honor unless you have questions i'll save the remainder of my time you can do that claim scope without considering the physical property limitation a few agree with well the commission did look at the physical property limitations those are those limitations are just like a desired result they do limit and in that case there is also unpredictability regard around that binding vary the court looked at that looked at the claims and said that it's a bra genetic structure is unpredictable so you're just claiming it desired rate in an era desired result it didn't that it was a property look at the context nature and scope the claims predictability and it's the desired result it's there they're claiming every single composition that has these desired properties  if there is a composition that is they say ninety eight percent ileum or two percent reactive feeling and that has these properties they're going to say that they have possession of that but that they claim that but the problem is that it's not predictable there's no directions for modifying those working examples to achieve before scope of the claims and that that's a p x eleven thousand one hundred and fifty three and that is primary coding compositions using acro late chemistry is generally predictable it did not the average age did not address the simultaneous simultaneous presence of the predictability of attaining a compositions if you don't know the scope of the compositions that actually means that they only provide it forced very similar examples their expert witness said that he didn't know how many would reach how many would have in the vernacular of bang up against each other american greater problem for predictability that's what the commissions are said but they didn't explain why it was part of your earlier in the simultaneously speed if you increase the cross think density you will improve the cure speed which is good for the for the claims but you also increase the modulus and they so that's that's that's one example of the conflicts and properties that the witnesses talked about  the written script description requirement is that the specification has to show that the inventors had possession of the full scope of the claims and this clearly didn't happen here  enable the full scope of the going well how can they do that if you know the reason why you can't do it is because everything is unpredictable will st of all there were obviously no working examples of the group three claims the testimony in the case clearly show that these functional properties or in conflict they were unpredictable mr overton testified that if you change one it changes another and i can address your well the physical limitations are the functional limitations st of all it means for body metrics thermal expansion you're using a software program that supposedly shows different properties able to come up with one that satisfied the physical requirements of the claim so they had a number of examples in the patent none of which work for this particular claim so i don't see how anybody could say that the inventors had possession of the full scope of that claim with you know millions or billions of possible chemical compositions that would give you these two physical properties when they weren't even even able to come up with one in the patent red lights yeah so your honor your honors i just want to make a point about the scope of the claims identical which judge wall d was on on october th that decision came out and it was a very similar argument to what mr barney's making here that the claim scope is very narrow in that case there were billions of basis well supported in the record for this court to affirm the commission's opinion on then validity of the claims of the five only patent that independent basis is that the glass optical fiber technology itself can be used to reduce atten loss wholly independent of the influence of the primary coatings on the glass fibers the record is replete in supporting that the five await patent on appeal fails to the scribe producing  technology indeed it only describes or do sing attenuation using a primary coating on the glass optical fiber this panel may or from the commission's opinion based on the lack of support in the five hundred and eight patent for engineering the core of glass twenty one to twenty three and therefore in view of the foregoing o s s respectfully request as pale to or from the commission's opinion thank you and i'm certainly answer any questions for him thank you counsel thank you just a few points your honor with respect to the group three claims that it's clevenger was was questioning about i did want to point out because my colleague mentioned that the unpredictability finding was based on the tension between the properties and indeed that's what the commission did it took that testimony about the tension of the physical properties which only applies to the group one dollar and two dollars claims and it transplanted that to the group three claim nobody didn't do that they all j made no finding that the that claim is unpredictable the reason that's erroneous is the physical properties in the group through claim are not in tension with each other that's the whole point of the patent i was the whole discovery is that you can decouple the the modulus from the thermal expansion coefficients so they're not operating against each other so the basis for the commission finding of unpredictability is not only contrary to the l g s finding but it's contrary to the chemistry involved the only other point that i'd like to make with is whether respect to mr olson's comments on the alternative basis we brief was all just reiterate that the commission did not accept that ruling from the l j so that was the basis of the l j is ruling on the group to claims for why it found lack of written description it found that there was an inadequate disclosure of the role of the class fiber plays that when the commission reviewed that the commission opted not to accept that basis and instead ruled on an alternative basis and so we don't believe that basis is is part of this case anymore i don't believe it's properly on appeal and that's a brief and