both mistakes the theme of failure to follow this court's precedents the st failure to follow this court's precedent concerns the court's construction of the term of how to eighteen degrees celsius the claimed methods i'm going to i'm sorry to interrupt and all that you pick up where you are but just a sort of technical housekeeping question in connection with this in your other arguments which is you've got eight grounds here correct construction you're right on the plant construction and do you agree with that we've still got a leap that's a lot to overcome right so can you when you talk about clean construction can you be more precise in terms of which of the grounds that affirm the w o three hundred and eighty nine that would and the case completely right and we wouldn't have we would confront the claim construction question or leading with that right it would take care of the into sufficient grounds of the need to problem is an inappropriate interpretation of this court's kendall decision i think this court's kennametal decision has already been recognized to been misunderstood by the people in this court in a claim if a skilled artisan viewing the reference would at once in visage the missing women but if we go to the p tabs final written decision at appendix page seventeen group of elements from home be in the dispute concerned whether that reference disclosed to the combination of a particular item from small group a in a particular item from small group b and this court said these are very short list are being done at that temperature so then the board interpreted that as we've got the eighteen degree it's overlapping in the disclosed in the prior reference in the claimed invention and so therefore temperature and gives this range for what it considered room temperature a very chilly room the problem lies in the fact that as the board recognized at appendix page twenty that's not a disclosure one was this reference says all the stuff all the steps in w o three hundred and eighty nine are being performed at eighteen degrees to twenty five degrees celsius and so therefore that means that supported by the petitioners her that every single component of the technique is going to be done at eighteen degrees celsius including the c c f composition that's you know flowing through the c and and so that's theory number one theory number two is even if that each c c f formulation is at initially a warmer temperature then like say thirty seven degrees celsius to down to the very temperature that's being discussed so those are really two different theories one is based on reading the reference expressively and then the nd one perhaps more of an inherently theory that  is going to go down the result yes rather they did have those two headings in there so what's wrong with the st one why isn't that supported by substantial evidence we have a reference it could be clearer but then they have expert testimony explaining that no person of ordinary skill in the art understanding that they have to do this experiment according to the three hundred and eighty nine accord at a particular temperature is going to throw in some kind of formulation at a super hot temperature to throw off the entire requirements of what the temperature should be for the technique to occur in the problem with that your honor and why it's not supported by substantial evidence goes to i think the fact that the board is just quoting from the petitioners experts replied declaration and in fact when he was actually cross examined prior to submitting his reply declaration he conceded that there is no guarantee that any of this material has cooled to room temperature that makes sense given that the point of these industrial processes is to keep this moving take this material that could be getting degraded or breaking down and get it purified when it starts warm and then gets purified so he testified in cross examination that it's not inevitable that it would be cooled down and then smith's contradictory reply declaration testimony now i suppose the board could have chosen to credit the reply declaration testimony but it needs to grapple with the fact that when the man was actually put under oath to testify in response to our questions he agreed with us and i think that's a proposition that flows from ripping rick potts a case that you can weigh the evidence and come out on one side or the other but you have to actually do the winning and i think it's particularly problematic to credit an expert's reply decoration over their cross examination testimony without even so much as an acknowledgement of the contradict but we challenged it below but they made that finding so in the board found that it was therefore unknown in the are that temperature was a result effect of variable yes and so i'd like to address that is there are two different obvious rationales both of them fall under this invocation of oh this would all be routine and so they did it based on temperature in they did it based on another variable called binding capacity we'll start with temperature with temperature the problem is one incompatible fine points so yes they found that temperature affects protocol assists they also found that we chain is undesirable because it generates this very small amount of very antigen that would be bad for humans if you inject it and they also found that laboratory scale you can control the temperature of these solutions rather the problem is you can't take all of these individual findings put them together and form an ultimate conclusion of obviousness because it was unrefuted that in fact controlling temperature at the scale of industrial purification an extremely burdensome task that nobody was doing and so when you try and piece the board's findings together they don't actually add up and that's what's wrong with that that we had to invent new ways of refrigerating it's that it's extremely expensive and it adds time and equipment to the process that isn't normally there if you just proceed to  the amount of each protein and in the solution that comes out at the bottom is as we said literally measured in man agreements the only reason it is of any concern is if you're going to turn around and inject it into the patient but if you're just performing a laboratory briefly address the nd routine optimization rationale here they relied on a single paper from a decade before the priority date suggesting that temperature would also affect how much intervening decade there were multiple publications explaining how to optimize the protein a process in several of them in knowledge of the fact that this variance on paper was out there and proceeded to say that's a bad idea changing the temperature can affect product quality here are the parameters along which you should optimize your protein a process in these are the parameters that will result in a good protein a process and i think the fact out in the leo farmer case the fact that there's so much time between the purported disclosure the motivation to make this all obvious and routine and the actual invention goes to show that you can only go back and look at that earlier sets of issues surrounding them there were also obviousness determinations on multiple grounds and those obviousness determinations have several independent bases to them one is an obviousness determination based on the control of temperature for improving pretty alice's nd is the motivation to improve finally capacity and rd is obviousness that comes from the fact that there is no criticality to the claimed range fifteen degrees yes w o three hundred and eighty nine the board found that there was substantial evidence on two different bases one is the reference self satisfied all steps carried out at eighteen the temperature of all of the components would have to quell a great overtime to that eighteen to twenty five dollars degree c even if one were to assume that you didn't start with fluid at eighteen dollars to twenty five d so the st round of the board's decision dr bitsie and testified and it was dropped by the board that no one would ignore that direction from the reference to operate at eighteen dollars to twenty five when you have to make sure there is some mechanism for cooling too if the ambient temperature were higher than eighteen then there would have to be a cooling mechanism and and testified that those cooling mechanisms were in fact known in the art and dr kramer acknowledged that those cooling mechanisms were known in the art so there were steps that could be carried out conventionally and in fact the patent itself your honor the specification at certain points says to carry out at fifteen degrees and there's absolutely no mention of any special cooling equipment that would be that would be was unconventional about how one would do the cooling the patent would be expected to say what you need to do but because it's conventional to be able to cool to temperatures in this range the patent doesn't mention it and likewise one skilled in fact telling you to do something different which is no indication that it is then everything would a quill afraid as the board found there are as was pointed out three different wash staff at the referee teaches after you for the flu before you actually lose out the purified material there were three washes so it's not as though the reference was teaching something that was instantaneous far as the obviousness is concerned the motivations were well supported by the findings of the board duction of protocol assess their teaching specifically in the prior art that protein a leakage in this sort of chromatography process testified that one skilled in the art would would know to balance the benefits of improving protocol assess against the costs that might be associated of cooling needed to occur and the board credited dr testimony on this point on all of these points at appendix thirty six to thirty seven and also at appendix thirty there was some mention of a commercial process being processed where you might care more about control controlling protocol assess the claims themselves are not limited to a commercial process of course they're open to protein a chromatography generally but there also was evidence at appendix nine hundred and seventy seven  particular that it was conventional and routine optimization to in fact cool in these these larger processes you think it would be a good use rinse is just plain included all run th claims cover a commercial process your honor but they are not limited to a commercial process and and if the claim were limited you know why that makes a difference because the claim covers both a lab scale process and a commercial process council's argument for not obviousness your honor is directed to a commercial process itself but in fact the subject matter covers the noncommercial process in fact the board found that even in the commercial process it was routine to do the cooling and specifically identified refrigeration of fluid jacket cooling water baths and cold rooms and that's what appendix nine hundred and seventy seven dollars which was credited by the board at appendix thirty nine dollars a dr kramer gentex expert admitted that these techniques were in fact available in the art at appendix one thousand and eighty and acknowledge that patent doesn't provide any specialized teaching of cooling because in capacity by controlling temperature the board credits that testimony and the argument from counsel is that there were later papers from foreigner in nineteen million ninety two thousand and one that somehow discredit the vance omran teaching in fact those two papers do not discredit the vance omran teaching they specifically say that temperature control is one way of improving later papers and so while obviousness must be measured of course at the time of the invention at the time of the invention what we had was a situation where events summer and taught that temperature could improve binding capacity and that was approvingly cited by the two foreigner papers which also listed other variables that could be control and this court has made clear that simply listing multiple variables without criticizing any one particular approach anticipation by vance omran the board's ruling was in fact correct that's a very reasonable construction and the board based that instruction on the intrinsic evidence primarily the board cited to the specification which when controlling at fifteen degrees specifically cited plus or minus three degrees and then the intrinsic prosecution history there were amendments where the claim originally recited about twenty eight dollars as the upper limit there was a rejection over prior art reference that taught about twenty two dollars and ultimately the claim was amended to the upper limit of about eighteen and that was deemed to distinguish the reference and in fact in the european was both supported by the specification and the context of the prosecution history and certainly under a broadest reasonable construction standard ought to be affirmed to see that i've exceeded my time i there a retroactive i p r is not an unconstitutional taking their brief suggest but does not really develop a separate argument of the due process clause of course as your honor mentioned they have not pressed that here today to the extent that they do make a separate argument of the due process clause seldon's discussion reasoning demonstrates why that argument is and correct congress had a rational basis to apply i p r as to all patents in existence at the time and that's all that's required satisfy the due process clause i'm happy to see the rest of my time unless the court has any other question dollars degrees when loaded onto the protein a column i think that disposes of that point the presentation from which that citation comes i think looms large over this peter have been discredit didn't give it much weight because of purported insufficient evidence sherry development but i think it's really important when this court considers the ultimate conclusion of obviousness and specifically the conclusion that this work was routine because that's the basis on which all the obviousness grounds rest with this work was routine the fact that in two thousand and five the american chemical society which shows this research for a presentation  controlling temperature is a bad idea because it could affect product quality and these are the variables to look at and then lastly we heard say titian to appendix nine hundred and seventy seven that's the reply declaration of hospitals expert and i think if you it's the final sentence of the last complete paragraph in the nd call it says while changes in ph buffer conductivity or temperature could denature paper then proceeds to talk about optimizing these processes around flow rate and  lat that last point was simply the claims are not limited to a commercial scale but the movie relation of the person to ordinary skill concerns commercial operations that's why commercial thank you thank you for your side