because we have seen each other so you don't get the nonverbal cues when we start talking please listen so then you can stop and not waste your time because we're going to be wanting to ask questions so goes off i'm going to try to interject to remind you that your and your your rebuttal time and if you want to keep beating it out that's up to you but i just want to let you know so thank you if something go ahead and start   honor we based the argument on those tests just to show that at that the time of the invention the state of the n a sample with low impurities and then doped that to show that the addition of a point to weight percent lead could in fact be detrimental to  well your honor i don't know that disingenuous i think is the proper word here but i think the claim was that  want us those other issues and and gave our reasons for the this problem my question was how you define disingenuous it's stating something that might not be correct ok now let me direct you to the ground brief at twenty five where you argue that i'm quoting as most dr wayne's testimony taken to remove impurities from the base composition close quote and did not indicate quote that the starting materials used in the test were higher purity than one would have been used close quote at the time of the no i don't believe it is your honor because we also quoted from dr wang's testimony to explain that when she was talking about this base composition she explained that it was one where it was engineer to take out impurities and then from that she use that to dope it with like point two percent lead which was a known  yamaguchi eight hundred and seventy four started with those materials because we just don't know what they started with we know there were impurities in their solder alloy the board even made a finding that there would have been impurities in there saw her out of the way and then the board made a finding that those impurities would necessarily have been it very low levels such that they would not materially affect the basic and novel properties of the aloe the board only found this low level of the impurit limitation by combining yamaguchi with other evidence in the record there is no explicit showing that expressively in its disclosure has some kind of information that would tell you that at it necessarily use low level impurities and the board only got to that finding that that limitation was present by combining with yamaguchi with the record to find that overall limitation which our position is that is a by elation or a misstep allocation of the legal and when you look at the board's decision you see where it talked about its impurity findings it made multiple references to the evidence of record and its overall conclusion on impurit was considering the record as a whole were not persuaded that impurities present an example seven would cause the composition to fall beyond the scope of claim ten but that's you know that's really the point here is we all know there were impurities there we don't know what the levels were we don't know what the impurities were so you can't just was the exception not the norm we pointed out that the joint industry standard allowed for up to point to weight percent lead we also included a reference owl it's and it's specifically taught that quote lead is allowed with the upper limit of one percent this is further evidence that the norm even in japan was the presence of higher levels of impurities in electronic great solders we also had evidence a publication dated two thousand and one called lead contamination in lead free electronics assembly which stated that quote unfortunately in the past the presence of lead in lead free alloys has been presumed to be acceptable that reference also included a fifty test results table at appendix  that the board misapplied the legal standards for rantis patient by essentially combining yamaguchi with evidence of the record to read into the this limitation that the impurities were at necessarily very low levels that would not impact the basic and novel characteristics of the invention at that time know you can not look at the disclosure of the yamaguchi and find oh yeah the impurities that we all know were in there were necessarily at a very low level that just doesn't that teaching to not exist in there and in order to find that teaching with the bull or did was it took yamaguchi and it did the same thing with lee combined those please the court this is carolyn chang for appellate apple inc unless the panel has any specific questions i'd like to start by addressing what  talking about and what was characterized in the briefing as a mis application of the anticipation standard and i think the thing that we need to make clear and remember st is that when the board reviewed the prior art references yamaguchi and lee what it found was on the face of the prior art references it disclosed the listed ingredients as required by the patent claim and made no mention and no disclosures about any other ingredients so in that respect the board found correctly that the prior art references met the consisting of centrally of limitation of the listed ingredients because there was no indication on the face of these prior art references that there were any other ingredients that would affect materially affect any a basic and novel property of the invention thought he's attempt to overcome that burden and the saudis attempt to import inferences into the prior art references as to whether there were any impurities and whether those were testing was impurities added to what was actually disclosed in the comedy cheat seven for so what they were testing was not even what was disclosed in the pot in the prior art reference but a compound that h there was not an error with respect to how the board analyze the anticipation argument as to the other legal errors that asahi is claiming st with respect to claim construction there including the listed ingredients and it may include but does not have to include other ingredients that does not affect some cereal properties i think the only dispute here is that a saw he takes issue with the fact that the court did not or the board did not list specifically the fatigue resistance as a basic and novel property in the actual construction it adopted but as the board  noted it did in fact consider fatigue resistant to be a basic and novel property i don't think thought was actually in dispute apple agreed that it is a basic and novel property and the reason we didn't want so the final claim of legal error that asahi me is this idea that the board conflated the enablement and anticipation standard and found anticipation based on  finding of enablement and that is just a mis characterization of what the board was discussing in fact what the board was saying was that there was no enable my argument being made here so it couldn't make any finding with respect to that determination all i can say is on the face of these prior art references it disclosed the required angry dance and there were no disclosures or indication of any other ingredients and therefore the limitation was met and i think  with that understanding that proper reading of the board's decision we can see that there was no error in conflating enablement and anticipation with respect to the other arguments advanced by asahi those are all arguments based on the board's factual determination which we submit and there are briefs that those were all justified by substantial evidence as set forth in the board's written opinion  our guests just a couple points on the issue of anticipation there is a consisting essentially of limitation in this claim that included on listed ingredients that's part of that claim and we all know there were listed ingredients in these prior art our low voice and we know that based on  evidence from all the experts and the board made a finding that there would be impurities in the foul oil so the question is well what w those levels of impurities been we don't know the answer to that we don't know what the impurities were but it's interesting because that consisting essentially of language made into that because the examiner argued that the alloys in this state seven for what it would have included impurities at levels that could have detrimental effects on the claimed invention and by kind of ignoring this unlisted ingredients even though we know it's there and that it mattered here we're basically writing that language out of the consisting essentially of claim especially when we know why it was that it one other point i'd like to make is found based on overlapping ranges of prime this basic case of obviousness but the reference itself and there was only one reference part of this crown the reference itself said that with regard to the business limitation that if you go below five weight percent which is our that's our claim