and i have a vague recollection that we've got some sort of a motion to consolidate the argument but maybe i'm confused and i see other cases it seems to the panel having gone through the briefing that i had an opportunity it would make more sense to just sort of consolidate the purposes of architect and then we realized it might be some distinctions between the cases and you're free and we'd like you to highlight that to tell us which case you're talking about but it seems to me it makes more sense to us makes more sense than having you up and die after different cases a couple weeks we make a virus that helps else to express interferon inertia and interferon helps the human body to combat cancers we gave this virus to some professors univers gave the virus to them they promised that they would before publishing that they would tell us before publishing so we could file patents on it they don't do their work and we meet them later on and and we ask them how their work is going and they say great news we got an article published in the journal through a six urge or e and the patent attorney of course my heart was broken because i knew that all of our patent rights outside of the united states were euro vocally destroyed i looked at the  article however and i see that the articles published what had happened apparently is the professors got the results wrote a draft manuscript sent it into the journal the journal looked at it for a couple weeks  hey this is actually it's news for them we want to run the story so they accepted for publication in the journal sent the are there in manuscript for peer review which is normal for scientific publications it goes through p cell the examiner and i both make a mad rush to try and find that junior manuscript the examiner looked at national library medicine has did i neither of us could find it there examiner i both looked on google scholar the examiner and i both looked on the publisher's website and couldn't find it there i called up the publisher to say hey i need a copy of this to manuscript to see if it in fact peaches everything that my patent covers there have a record of that manuscript and the examiner i don't know if he called the publisher i'm self but he's a very thorough guy and i wouldn't i wouldn't be surprised if he said yes he did the same thing that i did and you really have a december publication something was published in june but nobody can find the june thing and so my suspicion is that all that was published in june was not the full manuscript it was merely the abstract which is typical and used to be typical in scientific publishing you publish the abstract to sort of build reader interest in a significant upcoming article but you wouldn't know that the publisher when you contacted the publisher say that  the article was published in june they said they said they had no no record of the of that june manuscript the publication of it didn't say that they just in that record they she didn't have a copy of it and she didn't have either a copy of the the publication guidelines from seven years ago today if we look on the publishers website t publishers guidelines say you send in the manuscript in the immediately put it on their website within twenty four hours but she said that the she didn't even have the copy of what the standard business practice was seven years ago so you don't know w up making a state right he was saying this was available now the publisher the publisher said that they published in press at a certain web site and and on the website there's only the december or what do you give us to undermine that other than there's nothing more behind this to prove that it happened because the administrative procedure act requires any federal agen agency cannot take take an action with say have substantial evidence to support that action and here nobody anywhere has evidence of that manuscript that was allegedly published and the fact that i can't find it in the examiner can't find it implies that regardless of what this what the december serves the inability of anybody to find the alleged june manuscript tells me that  it doesn't exist article says on its face that it was originally published third twenty eleven so the fact an office is basically saying that the prime of article was not published two things second it's impossible to prove a negative i can't give you a if the publisher had said you know i don't care what that note is as we never published anything on that da had i would hesitate to jump to that conclusion only because it took six months for peer reviewed to be complete the article was accepted in the end of may i believe in it didn't actually get put into p d f format to be typed typeset until thanksgiving day of of in november of two thousand but didn't i mean but if you look at the record and i'm not sure whether this is the examiner or the board itself but they refer to the fact that i guess tur for publication well immediately within forty eight hours accepted the perfect published online yet nobody so it seems that this was following regular order so you've got this other information it's not just the statement that he submitted out on the day but it seems like routine practice means it is going to be available and that there's guidelines are from today's there today's guidelines they're not the guidelines seven years ago  don't have any evidence of what the guidelines were seven years ago they're not archived like i can't get them from saved copies of the publisher's website the publisher doesn't have what i call the publisher a mineral i talked to doesn't have them so we don't know what their governments were seven years ago what i can say is publishing today is a different animal than it was seven years ago the news today travels much faster in the scientific community there is a much greater urgency to publish even imperfect results as compared to seven years ago when before the internet was  no i mean i think that that reflects a practical reality of happening examination which is that they're looking at something after the fact that the examiner found the reference and i want to be clear for one second here about came on appeal and in that case the only evidence in the administrative record is the article itself there is no other evidence that applicants not application to not put in any other evidence i just want to be clear about what the evidence sherry record it and so in manuscript form on march twenty eighth and accepted in final form on may thirtieth there's some additional evidence that the appellant's put in in the ten eighty eight appeal and the two zero two application got publishers guidelines which are entirely consistent with the information that is printed on sturm and so although we don't have the two thousand and eleven guidelines we do have information on storm and that's consistent with th reflected today and i did want to make one additional point which is that my friend mentioned a fair amount of facts here that are in the record and alluded to the fact that no one was able to find the the starman reference in a prior form but it also sounded like from what he was discussing that they are in touch with starman and there was no reference to reaching out to storm in for that manuscript form and i want to be clear that ad is not the examiners for an examiner made prima fascia case here but i just wanted to make that point of clarification it's unclear you know what exactly was and what they were able to find there's a statement in no words that just with what i believe that's just in the publication yeah i mean unless the court has any further question gone yes or i would say that it's not gone we have a printer publication here and we also have a reliable statement that it was available so there's there's two questions what is the printer publication and when was it publicly fax of all and we sent someone said this is available there they said this was put on a on the internet but it's gone you can't find it you might have been able to find it earlier we don't know you can't find it now it's disappeared well i think that unless there was evidence that established that there was some type of material change and there isn't in this case and in fact all the evidence establishes that at most there might have been copying you know copy editing types of changes if the information was available an relied on it and if you go online and follow that instruction which was printed by the publisher to get something a little differently where you got that you the p d f the final form producing well and i think again that the question here is is there prior art that was available one year prior to the critical date that disclose all of that that claimed all of the claims here and there's and there's no dispute as to storm in disclosing all of the elements of the claims and so the question is just was it publicly acceptable more than one year prior to the critical day and the government sitting at that director maintains that the office made out the prima fashion case and when additional evidence was introduced at the board found as a factual matter that the evidence as a whole showed that this printed publication was available more than one year part there any dispute over whether that statement was made by the publishing company or simply by the author as part of the manuscript i don't understand there to be a dispute that was i understand that to be by the publisher but i don't i don't understand it to be disputed and i believe my friend would make a difference i don't i don't know that it would make a difference it's not something that i consider it and i and i there's no question here i don't even think there's a question about a liability i think there's a question maybe president it might make a difference if i mean the publisher is putting the date on it and it has sort of all of the normal at previews of of  prior art as far as the rest of the world is concerned now here we have a publisher who in public scientific interests undoubtedly when an article is submitted so that journal puts it on the internet it may never achieve scientific publication in the routine full no matter so why is this different from whatever other internal circulation of thinking particularly of peer review where a lot of people may see the content of the scientific article why is this different when today's technology find it could reasonably find it ok but that isn't what happened and that's what's curious about this case well again i think it that part of the reason that it has the document object identifier it's who allow people to reference it in a part with a particular way so we don't have any evidence showing that there were any material changes made and we do have the article showing a publication date o was completed forty eight hours later and the article was accepted for publication that's actually not correct what happened is the article submitted within forty eight hours the journal except they recognized it as being newsworthy but that's when the article was that out around the country perhaps around the world to different professors that are in the same field so the professors can look at the data and see whether the whether the method is correct and if the data supports the conclusions that peer review process takes several months and in terms of what is added or subtracted during that we can we can infer that something in changed because there was a six month  between the time that the journal said hey this is hot news let's let's run the paper six months really between that and the time that the journal article actually came out and then two months after the journal article came out there was had come up with and that was all put in within two months of the december publication suddenly see these guys are actually working very fast building a lot of data and if they an and a bun manuscript published on the website and he said no