disclosed in the patent your honor the the court has said that but there's no evidence that the protocol that was performed in the fish reference is the same as the protocol that was performed and i guess one  support along phosphate backbone of the single strand of d n a against the positive positively charged coating on the support and that's precisely what like try to replicate the fish experiment to show that this would be inherent property but they didn't do that but what's wrong with the theory of your disclosure it talks about coding your support with p p o you know whatever you want to call they're the same because that's important the while what you there is no protocol disclosing your patent nor does it claim it's just have the coding there's no description of how i need a certain concentration o or you have to apply it in this particular manner under this particular temperature there's nothing like that patents back it's just about apply the covering so again i'm trying to understand from you why wouldn't we have the same outcome here your honor you have there are two issues there so there are some differences between the two st of all in fisher describes coding the service at room temperature in the in the pan and actually describes code in the service  thirty seven dollars degrees celsius but going back there's just no actual evidence that that what was done in fish would result in nucleic acids cable binding because their bases where they'll want to but it only your honor for which fish would need to say or or the petitioner to come forward and show that the bases are actually available for binding and fish and that isn't in the record what you know petitioner points to is is the describes you know coatings in general of being capable of doing this but it also described how you know once these coatings were perfected they were capable of doing this but there's no evidence that you know the coatings and in fish were perfected i'd like to move to the  want to get to another point you want i just like to put a put just followup finished up with that that's a critical piece that's missing is evidence showing that actually the bases are available that's not the record i'd like to touch on the board's errors with respect to its motivation to find findings that can't be sustained by substantial evidence and that's because they either articulated an entirely conclusory reason combined or no reason to combine the disparate references at all  board ruled on was a porous system and that's key because for example noise and yelling nucleic acids are found in hybrids in the pores of a poor support which is the conventional method at the time but there's no for jumping to a non for system to take those teachings in a poor system and apply them to a non porous system and there are there are problems there because as our expert pointed out with the ports in an address you know noise specifically used this porous system because of the high capacity for binding that's not the case with a non porous support but in any event the boards are not actually address the specific reasons that and so articulated for why skilled artisan would not have even selected these references for combination in the st place and that applies to both the d p k noise and combinations in the fish and gillum competitions i'd like to move to the to the priority argument the priority issue is straightforward the boards are not apply the correct eagle standard in assessing whether the original application and the party chain provide a written description straight to analyzing the proofs that we put forward in isolation and saying it's not probative but the board couldn't assess properly whether the proof was probative before st making findings on the level predictable in the field and the using glass lives and the desirability of having something that can be used with a microscope and would allow for visualization so again there is x her testimony on this point substantial evidence supports the board's finding the motivation on the face of the board's decision it's talking about the motivation for you know specifically sat is motivated with a reasonable expectation of success perform the nucle eighteen on what it means by easy to use and the motivation to use the the glass lodz for visualization and also if we don't agree with you the fish  distribute it is a question of fact here is looking at an application that disclose some supports that happened to be non porous and other supports that happened to be porous and doing so in a manner that was not showing anything sort of special or tying together the genus is what we've talked about in terms of ways marks here nothing to say we are not just happening to discuss a few sports that happen to be non porous but rather we have this action here part of our invention is the entire genus of non porous supports our expert talked at page two  it then isn't going to that broader genus of all of the non poor solid supports you when you're right you're stuck on the premise that it's a genius application is closed automatic cars and manual stick shift cars and then four years later they claim manuals diction that would be a written description violation no but i think think the key here is they don't disclose it in those terms we're not saying you have to use the exact terms the the analogy would be they've disclosed six cars very specific make model number three of them happen to be automatic three of them happen to be stick shift to the extent the specification is same sort of what do we have possession of the focus is on transparent or charged phosphate group in the phosphate sugar backbone which then leave the bases free for hybridization and there's no challenge to the boards claim construction here which is we're not talking about requiring actual limitation that talked about the the temperature degrees but but could there be different forms that are disclosed in the end of two different pieces from two different references read that the claims themselves  reference and the expert testimony about the chemistry and the binding here gets you to the errancy on the hybridized before and looking then looking at the deal right friends looking at their own application the fact that they don't disclose any of the conditions was was confirmation that every time they looked out there to see something with this p l o coding there was hybridisation or these admissions in the prosecution history but i wonder if we were hearing a claim construction analysis and your argument was we don't infringe because we don't do it exactly the same way you'd be saying that well they inherently disclose are you did your daughter good morning may please the court stand on behalf of the government as you mentioned on the constitutional issues in the case as the panel is likely aware there's a number of pending cases where the same precise constitutional issues have already been raised before the court and there are also a number of pending appeals where the issues have been properly preserved before the board before they're raised here and so this court is obviously within its discretion to decide issues in any of those cases within this is fresh and deciding here of course we government would prefer that the court case where they were properly preserved and where  here in the federal circuit i think it's still awaiting for everything that's the one that's been preserved the number of cases totals that have raised these constitutional issues that have been argued i think we're approaching constitutional or not they can certainly do so and we think that the issue is easily resolved by this court's precedents and past likes which is materially and indistinguishable and op ex part reexamination against similar if not the exact same types of challenges and if this court doesn't have questions on the merits of that i'm happy to see the rest of my time in the board you know didn't address all of those in fact it typically just you know just maybe one swept away but there were multiple reasons including you know the erroneous you know argument the board made that somehow we're attacking the references individually we have to identify the deficiencies in the references themselves to then point out why a person in foreigner skills would not have sought to combine them and then just moving back to our arguments regarding written description the priority with respect of the p k i think it's critical that the boards and not address is required and work up close the level of predictability and the knowledge of a skilled artisan and that's critical because without those findings it jumped straight to determining that the number of species in the original application were not sufficient to identify the entire genus but but that is a is a leap without having st assess the level predictability