the written description and i think that was raised in the earlier issue with some of the briefing that are some of the discussion back and forth whatever happened as the resolution was as a result of that resolution was if you took the word contrast agent and body made a contrast agent out of to fight over that and will concede priority not going to description priority for account where the contrast agent is removed parkour the parties exchange approves and they were willing to make that concession at that time but in the same exact paper at the same exact time they were just speed and expense of resolution of the interference and we think that's consistent with some of the other decisions that were made in the case too because the parties that asked at other applications for example that had claimed a related subject matter really is what went on here and i think a fair reading the record is they weren't disallowed or told you can't have the second count in that first interference because it's not patently distinct on the merits or because you're procedurally defective so what i'm saying so they were no plan really had the original count i should say had both then we come up to the point of claim ninety nine the parties came back and this is on the record with two requests and this is where i think is a what we call a reasonable liggins position and a reasonable compromise spec said we're happy to have a count that takes the contrast agent out and we would concede priority to that and that would settle that issue but we also want to continue having a fight dispute over the environment where the contracts each of those are simultaneous those are on the exact same funk are in the water resulting from that phone call in the decision was will take the adverse judgment on the first and we will continue with the second not on the merits we're even dealing with something that's a little bit more than a claim we're dealing with a count it's drafted like a claim but it defines what the dispute was in that first interference it just finds what evidence suspect could have offered the of let's say an embodiment with a drug in the contrast ages because that's irrelevant to the count isn't just like a claim defining an invention it defines what's in what's out in terms of fruit and that's very important to understand what the judgement decided and what spec had an opportunity to present issue preclusion really shouldn't fundamentally attach to the contrast agent by him it was not adjudicated on the merits spec was not told that it was procedurally deficient in presenting that and in fact the opportunity to present evidence of that environment had been in the in the preceeding that first interference from day one in till at the very last minute the board somewhat took a split decision  for what it said i don't really think i could put on my priority cruz for five to fifteen i believe was was the fact pattern so we're talking one hundred millionth of a centimeters i think but an actual was and the board said the first if you know it's nowhere to go six to thirteen and the c c p eight said well you know what's really important here is not that five is patently distinct from six in that case they said it would probably yes but the important thing is that for let could have gotten a different outcome because  the five angstroms it could have won the case with first inventor ship of five extremes apparently you couldn't win with six to thirteen but it could have one with proof of a five it asked for five to be the original count so it's not just are these the same  also have to factor in with the scope of proof that is permitted is different the outcome could have been very different then we could be having the exact same opposite argument if the board in the original case and said i'm only going to hear this about the contrast agent embodiments and the drug together the very what the outcome could have been absolutely different it would have the same exact argument will be slightly different tables and i think that's really important is this judgement it's not just about are the inventions really similar it's who had an opportunity to prove something in the outcome is really driven by what count of the board shows in all honesty they shouldn't be that shows both they should have gone with the original one that allowed the best broadest offer proof to have all the evidence go in and they just did it so the it really does say that even if it's patently distinct they have to have a chance if they request that chance to be that proves that you speak of the right judgment or at least we get the right facts into the record in that first case pro bono this court cited for board issued an order to show cause i want to stop all and specked failed to meet its burden to show that there was a new interference to be had to show that there was something significantly different from the prior interference there's really no reason to have a second interference now since what was decided in the first interference if what would go into a second inference could have been decided and was decided in first looking at the order to show cause in the current interference it's a proper action by the sense that you know there is this understanding when they took adverse judgment that claimed the nine would still standing there be an interference and claim ninety nine your honor i think that's not in the record i think the record shows that at the time made the decision not to allow a second claim in an order but i don't have the date right to hand but it wasn't until the next day that spac actually decided to request adverse judgment so there was time for  spec to look at the at the judgment to decide what it wanted to do and proceeded with claims were patently distinct from the prior subject matter in the prior interference and two that even if it had wanted to put its current claims in the first interference that would have been futile the board wouldn't have if the if the current claims would be anticipated by the by the prior count by the prior information or the subject matter found that it wouldn't but you then have to go on to a question of obviousness and that the real question before the board should provide declarations from fact or expert witnesses you should provide the declaration that the board's own standing member suggests that you provide none of that believe distinct from those in the prior case in the in the last case we talk about those we're talking about the prior counts we're talking about the prior claims for inventions spec never presented any evidence as to how its current claims were different from each claim twenty three that was involved in the in the prior interference looking at a few of the specs for the current arguments and it said in his briefing to the to the court they're just really not supportable first of all they did in the biden case or the puts paid to that argument that even if they had requested the second count properly we believe that they didn't but even if they had that doesn't affect top of my judgment so you have all of that argument is immat count that says consisting of has no will obviousness or no relation to an obviousness analysis at all it didn't provide any case lower counteracting the several cases that say even though to subject matters case of prior art it's a case of disclosure you see what the camera what the prior claims disclose you assess it in the normal manner in light of the other art in the light of the knowledge of ordinary skill and you see what provided the count and interfered they provided the first information to the to the p t o as to why an interference should be declared they propose motions they they join the issue at that when the once the interference was declared they propose motions  they voluntarily amended their claims they proceeded along and litigate you know they've admitted that what they wanted was in the interference to start at some point they made a pivot decided on a different strategy  manifestly wrong they get to the gate and they chose a course of action that they may now regret if spec means that there was no opportunity to litigate a contrast agent or no opportunity to establish that the contrast agent claims were in some way at least think they certainly didn't have to change their claims in the original interference or request adverse judgment and they certainly could have put forth evidence in the with respect to the order to show cause out of some principles of race judicata it's not the same thing it's a creature of rule and case law you know the long involved that says that once you have a judgment on account of the subject was able to be brought forward that's one distinction and then there's also footnote five which says which acknowledges that there are changes underway in the patent office in infinity proceedings and that that particular case applies to that particular spec had an opportunity in the first interference had an opportunity the second interference and voluntarily relinquished its first interference didn't make it showing the second interference this is precisely the case where interference for stop it is made for there's just no additional issue in the second interference that couldn't have been dealt with or wasn't dealt with in the first one and there said there's no reason for the start of the finale  both bates and the board actually live significant extent and claim twenty three i think this is an important point to touch on the fact that claim twenty three was in big sets of claims doesn't really mean anything to spec at this point the judgment was about the last count who invented that first what a corresponding claim this is what claims of a party it will lose in the event it loses the count at the beginning of the case claim twenty three was pro because the original formulation of that interference count included the contrast agent invited meant just like his reciting claim twenty three as the interference progressed in which narrative that the county no longer had the contrast agent environment and spec was told you're not going to be completely unreliable perspective to actually even make an issue out of that so the fact the claim twenty three was tacked onto the last count at the end of the interference is of no moment if it's at a time where suspect is the losing party cars going counts only matter to the claimant owner of the claim you know the person who has that claim that is a losing spec was out the case it didn't have a claim twenty three so that's of no moment the point on for a let actually with that notation of footnote five case fears the losing interference in that situation got authorization for a motion to add a second count that motion was litigated in heard by the board in the first difference and fears was bound by that outcome fear's got a chance to and he's correct about for let because back in those earlier days you didn't really have those debates before the court how the interference from framed was largely delegated down to the examiner and they were to appeal the ballistics so you could request an additional count and if you didn't get it you were said to have made a motion and preserve the issue this is a jewish isn't much more like for let because we're talking about what is essentially discretionary case management issues is we asked for authorization to even have a motion about this not didn't f a motion just said can we even entertain the notion of this being at this act second counts in the answer was no it was treated just like every other and right as you had been in the difference to that point that is much more like from left where an examiner says i'm not going to put that claim in the case and sent it up to the board that way so the notion that if you do re both cases they actually do talk about motions which included a motion and modern day practice is much different full of evidence the entire record by jim got that chance my client never got that chance so fundamentally what we could have here is a really bad situation in the sense that one of two things should happen the first interference we should have had a broader count that included a treat them as badly in the state to go forward and the second version was precluded and my client needs that opportunity and deserves that opportunity because they didn't get that the first time around and that should not happen as a result of what appears to be a case management decision rather than  decision or some decision that indicates procedural deficiency if you read that order those requests came on the same day and in no way you can spec be faulted for take an adverse judgment they just got off the phone with a judge received an order saying i'm going to let you go with this count which you concede you're going to lose and i'm not permitting this to go forward in told them to take at first judgment that is basically following the judge's orders and i think that's the right thing to do and that's not any quote of theirs and they have done everything they could in that case to preserve their right for a future date and all we're asking for is the right to have that future date in for a variety case before the board with nothing else needs to be done that's all i'm asking for so if there are no other questions i rest my case