correct methodology yes because there's no evidence that it's critical in fact the evidence is strong it's not critical the specific material examiner found differently right the exam i don't know that the examiner actually address it's made and the second time in the context of and that's  something else that the specification should not be well one of ordinary spelling art whatley the specification of think that's all the inventor came up with all that was in his possession yes and that's reinforced by for example the statement of reasons for allowance which focus on the living hinge feature of the invention that's an appendix three seventy three seventy one which was so the point is you've got to look at the inventions the invention focuses on an improved living hinge in the background it talks about the fact that in the prior art these are made with thermoplastic materials with the layering in the really enforcing ribs and if you look at figure for the way it's described they cut it to make a living in space that was where the material itself is flexible the panel itself is flexible this invention gets around that it creates a living is based on the covering layer of the fabric and when you focus on the fact of the living hinge the fabric living into the covering letter living hinge is the invention then the particular material inside the fabric is essentially not even it's not it's almost irrelevant certainly not critical the appendix like i cited you appendix three seventy three seventy one it's an seventy one the examiner is basically saying hey this this living again is paddle if you've got written description so i say that because i think the examiner is indorsing our view which is that the invention here is really about the improved living you didn't think that the examiner had done that i guess for me page three sixty nine feels like it's pretty close to finding uncritically by the examiner because he examines or says basically there are only two types of material that have routinely been used right there mo setting tiriel isn't thermoplastic materials and and then he explains he or she i don't know but they say quote this fact flies in the face of applicants argument disclose species of thermoplastic is not critical to the invention so kind of feels like the examiner is making critic calla the findings so let me clarify what i mean by that the only the only thing supporting is the fact that you identify a particular species and don't mention the other species but you don't say anything about why that particular species want to be the one used as opposed to other species the net's not enough to conclude critic simply the absence of mention of the other type of species that could have been used but how do i know that when we tell them that wasn't enough that there isn't more the examiner would then be able to pro that is fair but we do know is that the reasons for why i don't know this technology despite what appears to be relatively relative simplicity i don't understand the technology and i think i understand i'd like to add something to which is that in the background of the response to that that i understand the court's reluctance to make fact findings in fact we've been put in our brief that it's not that we get that i think it's fair though also that but our position is simply that there's no substantial evidence in the record that anyone's pointed to not not even  said regardless it doesn't necessarily the board did not you do agree on a separate point that the test for whether there's written descriptions support or not isn't whether something's critical however when somebody particular species is is not critical in fact here that we're saying the genus up isn't critical to the invention in other words whether it's plastic or thermal plastic this material itself is not critical so therefore because it's not critical and the clear evidence of records that is not critical then the reasonable you know the real person it's can they still still get the standard test applies because of the absence of any evidence of criticality but i'm not suggesting that critic ality is the new test it's just that when there's clear good morning your honor may please the court i would like to address the point that you brought up whether there is enough here to otherwise affirm the decision below and there in it you pointed to a p p x three six nine which are the examiner spine things made  and what the examiner pointed to is the fact that even though global ip had presented evidence that other types of plastic including their most setting classmates and thermal plastics were used kind of plastic would work they had to show that their specification or where they have to show that chart well once the examiner established a prima fascia case here which the examiner disallowed examiner first looked at what the broad plagiarist gree the board interest species also shows that the inventor has had possession of the broader genus and whether to chairman that you look at you first you look at us that's the case and look at the four corners the specification but you also determine whether one  based on that evidence was that in fact they had not shown that it was interchangeable to be able to use different types of plastics and that is partly because ny is it ok for us to say that it's for whom we can just i'm a little nervous about what you're asking me to do right maybe right maybe what happens at the end of the day you know in terms of the outcome but i just don't think that's my goal well i will also say that it is often the case that a disclosure of  anything else that you want to add we definitely understand your argument and i think you understand where we are to anybody else and i mean i think the only additional thing is i would say is that what a silly art would have understood the different types of p shows that it wouldn't be productive all for one of ordinary scummy art to use them at the best of lows with their most writing materials and that's because they're misleading materials cannot be melted and cannot be formed using cold cold formalising so because of that i think that isn't i could have a showing that it's not only credit hol but the other species would not be productive all so one of ordinary skill in the arts and also one other one last thing i would like to mention is that we only talk we're only talking about description is relevant to this because it's a private method of making the panel what's inside the fabric layer that's really cleaned and there's nothing that talks about the particular structure of that panel impacting the invention which is a living hinge that's created by the parameter fabric or the covering layer it's call it actually yes i'm sure there is no structure should that that argument but it seemed to me that with what the inventor is doing the pen is adopting the prior the conventional way let's say doing something and here it's advantageous to to use them of their will plastic and it's usually that upon making that decision there it's a consideration a preference i prefer the more plastic ear this is advantageous this has been shown proven out by the prior art so that part i'm going to die so it seems to me that there's other species that could be used as well it matters because the advantages aspects have nothing to do with the claim invention because the claim invention is focusing on goes to the crit argument it's not critical because the advantages that are described in the background the prior method of making don't provide any benefit to this claim invention because the claim invention has to do with the covering layer and in particular a portion of the covering layer where there is no panel whatsoever so if you look for example it you know figure six it's got that it's got that the panel we're talking about on the bottom and then the cover panel shown vertically the focus of the invention is forty four where the covering layer comes together at a point where there is no panel whatsoever which is why we say definitional and the structure of the panel is is certainly not critical to the invention in arguably it's virtually irrelevant to the invention because the invention is focusing on a place where there's no panel at all