at risk of over simplifying my client's invention this is the true story of present inventors and the three approaches to forming a silo a silicon film from a liquid phase a composition that followed by radiation which is exemplified by the huge soccer reference just been cited against all of the claims and was referenced from a firm by the board with the inventors found when they tried to spun right off the substrate later when they tried to print the nk they found that the needed of or flowed in unwanted areas in an unpredictable way when they tried using a higher lanes they still found that without if they tried to deposit without a radiation they couldn't form a uniform film that was not continuous it didn't code much of the substrate so they rejected that they discovered that pre radio asian made it into unstable it formed of solid material and even after filtration the solid material reappeared anywhere from a few minutes to a few days later worse than that the instability of the ink was unpredictable different batches made in the same way would have different properties over time and they had no way to to know or or predict what those properties were going to be so they realize they can't use that in commercial production and they rejected that approach and thought long and hard about how to solve the problems and they invented what we called contemporaneous irradiation and deposition where  irradiated during at least some part of the deposition process the narrative hugh just provided about trying out i'm going to summarize here perhaps inaccurately trying out a results contention was that you didn't make an unexpected results comparison to aoki so how does your the narrative you just gave fit or not fit within the board's finding of the absence of evidence of a comparison to aoki which is what your narrative seems to suggest and you know there are several explanations but i think the most relevant one to answer your question is that side by side comparison with you is impossible i prefer radiation as i mentioned changes the composition over time and there's no way to  really compare apples to apples between the president mentioned and him l t it's no way to say the compositions are going to be the same if they're radiated at different times even if they are rated at different times the composition may have variances later in time so i think that's that's one one reason why we really couldn't do a comparison with a o p we also timing of the radiation whereas this aoki differs from our claims in both the timing and in the composition being the positive it's critical that when you focus on the composition being deposited  our position is that a o p is more different because of the likelihood of solid state materials forming in their composition as it's being deposited to be honest we truly don't know whether there are solid safe materials present but we do know it's possible and in some cases very likely what we do know about you to socket is better it is the same there are no solid case with aerials present when they deposit so for those reasons we felt that get a sock to it is definitely closer than a o t could someone take a position that they're equidistant are i sure i'd want to argue that one too strenuous nation changes the composition over time in unpredictable ways that approach just can't be used for any kind of reliable process that you would need in commercial production you know prior to the invention it really was no market for the port found that we didn't demonstrate it's been coding without contemporaneously radiation doesn't work other words the approach of you to socket doesn't work because we have a lot of direct side by side an affirmative statement by two different declarations saying that every time every approach that they took to deposit in without contemporaneous irradiation didn't work that was first made but in the search or declaration i film from following the procedure disclosed by you to suck up and we didn't we didn't challenge that that that's a non issue but in fact there's an affirmative statement in iraq and berger declaration that says that one could have formed a film following the soco but we had some variances in what we were doing in order to make our process work and we compared our process with the closest process representative of you to soccer that's consistent with what we're doing to minimize the number of variables we explain the differences and why one following you just suck it would have been able to form a film and why one following our process but modified conform with the process of us i thought would not have been a performer from another finding of fact for which there is no evidence was that we didn't submit evidence of unexpected results for silence other than assumed to be to have similar behavior and these are completely different compounds substantively different compounds and we think there there's there's definitely an error in deciding that there is no reasonable expectation of success because of it prior to the invention there are so many competing processes going on in simultaneous or contemporaneous radiation and deposition that we had no idea what was your wish that it would work great of the rate of and deposition takes less than five minutes so we really didn't know i think one of ordinary skill and i really would not have a reasonable expectation of success for the invention and one that i think i please the court the board correctly concluded here the rocking burgers claims were obvious over the combination of you the sock and so rode when beauty gether with the unexpected results evidence provided iraq and berger in particular board correctly found that the unexpected result offered by iraq and berger suffered from several infirmities in the first one that the court was just speaking about was that it was not compared to the closest prior art which in this case was a o p the board that the question of what works decoration is that they did test the the ink they did radiating ink for hand but they did not actually try to spin tested they did not try to perform placing it onto the substrate spinning it and seeing what the result was they just decided that they could was too unpredictable over a period of time and so they did not actually perform any test beyond the irradiation of i creating if you look at doesn't say they actually tested it they just decided that over a period of time because they have they viewed it over some extended period of time the the silent solution would continue to polymer the so i go back to that point but there's no there's no evidence and there's nothing that they said they actually used that material to do any kind of testing they just presumed that it was different enough and they didn't try to get the actual test i think they would to the substrate and test and that would be the proper test in this case here the board found that the key here is the timing of the every nation and they have looked at the ration they look to the claims and they stay they found that that the timing that the u v radiation was happening during at least part of the deposition process was keyed to the clay and unexpected results in this case and so they found that the important thing is was the placement and the presence of a silent solution that had been a radiated during the deposition process and the only prior art that provided that was  i don't have a view on that i think that i could see a scenario where it could be more than one piece of prior art but i think in most cases it would be a single piece of prior art that's identified as the whole point is that you're supposed to be showing unexpected results right relative to something   in order to do that you look for the closest piece of prior art and that way you can tell whether or not the results that were received by the applicant were truly unexpected to one of ordinary skill at the time the invention made so i don't think there's a necessary limitation on the number of references that i've used for that but here in this case again the board found that i o p was the pita to close with was a priority it's a question of fact and because of that and there's substantial evidence to support it even if to a fact finder would come to two different conclude reasonable conclusions that perhaps due to socket was closer or i o t was closer or they were equally distant to each other then discord should s with respect to the question of that's and that's not the only problem that the court found the court also i mean sorry the board found the board also found that there was the result radiation either before or after the deposition process and still get coverage on the substrate to create a thin film and get uniform coverage and then also answer road teaches that you could use  irradiation during the process of depositing a photo polymer solution and applying the u v radiation to it which then would increase the the by cross linking and that would provide coverage as well so looking at the total of the prior art you have you have prior to teaches the radiation before the positing step or radiation during the depositing step in radiation after depositing stuff all creating a substance or substrate that had a coating on it what is the relation in timing between the depositing and the spinning in the on the sloshing let's call it caused by the spinning it wouldn't you're correct it wouldn't have that and if you accept that the timing of the u v radiation is key then that would not be the closest as a priority and that that a solution that's got solids in it which is different than what they've claimed safe claimed it is a liquid solution and you said aoki teaches filtering that's correct if you just filtering and it also teaches the board found that it teaches  deposition shortly after the radiation so there wouldn't be a long period of time to allow the stress of the states to form and if you teach is that the depth that the that the radiation is that can be as quick as point one seconds i think that the board also found in addition to the problem with i and i ok again not being the closest prior art they also found that the evidence and the testing was not commensurate with the scope of the claims for example that rocker that based on his experience he would have expected the germanium silent as germanium hydrides to act in the same way this court in the green folk ace has said that that's that took a conclusory statement is not enough you need more evidence of correlation or something to tie happened why the germanium hydrides would act in the same way as the silicon hydrides here  so i thought his only option would then be to take in appeal now that there would be an option to appeal to earlier if he was going to reopen prosecutions that is if what he did i'm sorry so so in reopening prosecution and then only addressing the secondary consideration i would submit that he's waived his arguments with respect to the other claims and that they that i must it rests on the or its original decision here he did not he did not show any additional error in that second round of what does that mean we can't reach the merits of the original vision know i don't know i don't believe the prima facia case is up for grabs here i think that the panel that i think that by not challenging the prima facia case the second time around he eleven thirteen to fifteen you discuss all russian right i did yes no it was unnecessary it provides i mean i didn't have to read it and didn't have to write that i think that was in response to deposited a poly siling that was made in a different way and thus was stable and thus within the scope of the claim for composition being deposited and that that didn't kill the substrate so we do have comparative testing against the composition