i think we're ready to  but no evidence of all that the catalogue that incident has today existed before the critical date that that particular catalogue was present at the two thousand and three i the show mr shook here said that he did not actually recall seeing the catalog in fact he did not recall actually going to the booth of alpha alpha like tech where the ca supposedly publicly accessible and what instead what he said in his declaration was that it was their practice generally to go to these shows and pick up these kind of cattle alstad act there were a three well some of them were after that there was a greater new york show that was in the fall of two thousand and three and she's here to testify that without exception his words without exception and also biotech was exhibiting at those other shows also dr from right has been extinguished based on recollections from fifteen years ago where there are large gaps in the recollections of oral testimony needs corroboration but cannot someone else not good enough but you prove up a certain fact here we have two witnesses we have the date on the cover of the abt catalog saying march two thousand and three we also have dr testimony indicating that everybody knew that two thousand and three i d s conference in germany was one of the main events of the year and he was looking to get a catalogue ready for that and then there's some other evidence  the record that a catalog was prepared before march two thousand and three so i guess what i'm wondering is is is it really fair to say that everything that's going on here is not corroborated when we have data points here and there that perhaps collectively under to tally the circumstances inquiry it's fair and reasonable to conclude that there is a very reasonable inference that this catalog was in fact have any testimony of what happened there sure kier doesn't have any recollection here and there's a guess he does have some recollection which is that he never goes to these particular booths to pick up catalogues of this particular nature because for him it's it's not interest to him but he does remember hartman asking him this particular for this particular conference to go sweep up all of the catalogs for this particular category of technology and hartmann and specifically then follows from that which is that if the catalog were at this particular conference and if it were being displayed in a publicly accessible manner about all we have from the witnesses is that if it were there i would have picked it up as opposed to the fundamental issue is if it was there and it was publicly except that they have the smoking gun they have the catalog in their possession well there's always the document that's allegedly the prior art otherwise we wouldn't even be talking about say that it was that some conference post march two thousand and three what dr from a bitch said is that he was using it as a teaching and that with them in fact the main purpose of that was used as a teaching aid for clinicians that he was training how to use the cows how to use implants and his surgical procedure we've got that at the appendix at thirty four seventy seven seventy eight and so there were interests throughout israel who  were receiving this catalog in these events where again no no if that was just based that that was pretty critical day so in addition to that there were all these also testimony by ship here that he's going through these other international show and then alpha biotech with their with no exception and so that's really a stablish ing that there's there's other opportunities for that catalog to be have turned over and and back to the issue of the specific recollection that six years think i only picked up the implant catalog at that particular show i think if you look closely at that the declaration from here it really undermines that argument that in review materials relating to competitor's dental implants so he sang for years you gathering dental implant materials it's not just the one child and then we talked about the one specific show in paragraph five of his declaration next age thirty four twelve i attended the two thousand and three ideas show was on was unable quote per our practice i collected catalogs and other materials from competitors especially the booths of israeli compan so this was not just happening at the stupid thousand and three i d s conference this was a regular practice and nonetheless there were many other opportunities where this could have been collected at and the fact that the focus shifted policy in favor of this robbery shouldn't requirement and essentially what we have is a circular argument from instrument which is that if the catalogue were there they would have picked it up with no one who remembers it and no one who has any kind of documentation and the burden is theirs even though it was a long time ago that this catalogue i understand it's their curtain but it in the end it was your catalogue your si catalogue and for whatever reason your side was unable to come up with anything as to this source and nature and origins of this catalogue of what it was available and where it was and it out i mean is there their reason why that's so that whenever they ask for discovery that there turned out to be nothing available i think the answer to that is that in two thousand and three alpha biotech was a small operation  it's justified he was wearing many hats he was running this business out of a small apartment in the back of his dental clinic and the record keeping certainly isn't what you'd expect from a large company and again that was fifteen years ago  is our view is that the evidence just isn't there period and it's not in that zone between preponderance and clear and convincing them or one number two given the years of litigation and even the access to the sky every process that incident had and the fact that supposedly thousands of people or at this i d s conference that this was the best that they could come up with these two witnesses who can't match up and they presented that not only you know late in the in the overall that occasion but late in th r process as well and they're if this were handed out freely at this conference there would be some more evidence thank you good morning your honors me at least the court this court's precedent on public accessibility makes clear that actual retrieval of a publication is not even a requirement for public accessibility but here we have we've gone above and beyond that we have actual retrieval we have the actual catalog this is the actual catalog and i'm not sure what you're saying if we did not have the actual tell allowed here and we example mr chick year or mr hantman had testified that oh i walk by the alpha bio booth in two thousand and three and i saw the catalog there and that was the only testimony that we have as this court's presence makes clear declaration that he could not attend the two thousand and three i d s for personal reasons so he asked mr chip here to pick up all the dental implant catalogs that mr chip here could find at that conference this was a unique circumstance m his deposition used i was revoked seven hours proximately a three page declaration and asked multiple times about when would he pick up dental implant catalogs and he was adamant every single time that the only sure but for the in hit both in the declaration and in his deposition he made that clear that when it came to dental implants that was not his part of the business he said multiple times in his deposition he didn't care about the dental implants unless mr hantman asked him to pick up catalogues for dental implants which only happened once at the march two thousand and three i d s so that's what was his part of the business if it wasn't dental implants he's part i quite honestly can't remember i know that the business name was something like your implants yeah but i don't quite honestly recall what his deposition testimony was on what his part of the business  that there was there were other aspects of this dental implant business since it was a dentistry business including x rays and things like that that was his role that he was adamant that mr hanssen was the one who actually dealt with the dental implants and this was a unique circumstance where mr to cure was asked to pick up these catalogs it doesn't matter that he doesn't specifically remember the alphabet it's actually it feels to common sense that you wouldn't remember every specific booths that you visited fifteen years ago but the testimony is clear that he picked up a stack of catalogs on dental implants handed them to mr hanson and then mr hanson testimony and his declaration is clear that he was particularly interested in this specific catalogue the alpha bio catalog he had heard about the s p i implants and he wanted to know more about it and that is one of the reasons why he asked mr chick year to go to the conference and pick up all these catalogs upon receiving the catalog testified that some of the handwriting was done at a meeting that happened just a few weeks after the conference and the testimony between mr hand man and mr chick you're really fits together hand in glove it's also corroborated by doctor from of it just march two thousand and three date that was prominently on the front cover of the catalogue was put there in advance of the march two thousand and three i d s he testified that he distributed this catalogue made available to people that were doing training sessions with him throughout two thousand and three we also have documentation from the alpha by a website that says that there is a catalogue online into what catalogs all catalogs that would have been made available with this catalog on line designation on the l five website between early two thousand and three and the critical date and in response to that no documents were produced the only catalogue that we have from that time frame or before is this march two thousand and three catalog and so that's something that the work considered it didn't say obviously that that was despondent of just like it didn't say that the march two thousand and three eight and the catalog was dispositive but it was one of the many factors one of the many facts that the court at the board considered in coming to its determination that this was publically accessible at the march two thousand and three i d s i think your response to this  needs to be written this court made clear in the trans web case that cited in our brief that evidence of corroboration can be oral can be written can even be circumstantial evidence and here we have all three we have the oral testimony of mr hanson and mr chick your and dr from of that judge we have documentation we have the actual catalog that's sitting in mr hampton's files for the past fifteen years we have documents also documentation  the catalog on line designation on the web site and we have circumstantial evidence about mr our doctor from of edge preparing for the i d s making this catalog in preparation for that conference and dr from of edge making the catalog available to people who had training courses that that were held with him so we have literally all three types of corroborating evidence which the board considered in full and under the substantial evidence standard we would submit that any reasonable fact finder would come to the same conclusion that the board did that this under proponents of the evidence this catalog was publicly accessible at the like to discuss the the clean construction argument for a few moments since i don't have the opportunity to get out get it up again and it wasn't discussed on the in the first part of this argument otherwise the the inventors knew how to specify that an entire region must have some characteristic if you look at claim the claim nine of the  inventors in that claim state entire threaded region they don't say that in claim one and also if you look at the specification as the board acknowledged figures eight and nine in the specification have disclosed coronal regions that are only partially for us to conical in response to novell biochar is essentially making the argument that well when we said having we didn't really mean having we meant something else but this court's decision from back in two thousand and lampy as well as the m p e p have stated for multiple decades that when you use the term having it's a transitional term that could mean comprising could mean consisting of and you need to look at the context of both the claims and the specification to determine what is appropriate here the board did that and there's nothing there's no clear teaching in the basically that these two individuals are lying because they are as mr hickman now works for a competitor that the board considered that and the board rejected that proposition the board rejected the proposition that at any of these other trade shows that mr hantman and mr chief here attended that they would have picked up this particular catalog in fact i think as judge cheney pointed out there is no evidence from novell by a pair that this particular catalog was brought to any of those other trade shows so the testimony here is crystal clear mr hantman as mr thousands of people attended this particular trade show as this court has made it clear as recently as the go pro decision just from i think a couple within the last couple of weeks trade shows are a great place to find out j that claimed destruction and it was both the ale jay and then also the commission itself so even though the commission found that this was that this catalog was not a prior reference it went ahead and refute the claim construction issue yes i believe that that was one of the the it was one of the number i think every three or four different issues that the commission told the parties we want to dish and briefing on these particular issues and one of them was the clean construction issue  yes at least when it comes to the catalogue in the public accessibility we believe that the itc's decision and this court's holding that decision is not of consequence here because both of the different standard preponderance of the evidence are very convincing as well as a substantially different record because in that proceeding we didn't have the testimony from mr chips year we didn't have the testimony from mr hampton and we also didn't have at that time the catalog on line so i did not hear from my friend here was any evidence of record that there was anyone who saw this catalogue at the two thousand and three show or anyone who can describe the circumstances under which allegedly the catalogue was there are no witnesses and that's to the issue of there being some specific recollection of this particular catalogue i want to point to exhibit here to mr hartman's declaration which has a whole collection of alpha biotech catalogs spread out like a deck of cards here this is that thirty three ninety six these are all other catalogs that were in his files he had no particular recollection as to how or when he came into  highlight why we need some more corroboration here it's very unusual if you plucked out this one two thousand and three catalog and is able to say oh yeah this one i remember how it ended up in my catalog without the rest of these and  with respect to the catalog on line i think that the this court's recent decision an appetite or an instant struct of on that it's not enough for the witness to say oh i remember i've got a dated e mail with an uncertain attachment but take my word for it this attachment was the thing that was attached to the e mail that's kind of what we have here take my word for it that this is the catalog that she cure prop back to me take my word for it that this is the catalog that must have been online not enough to meet this high