and the consumer watchdog case and other cases have said the standing requirements are relaxed in that situation they're not eliminated here it's very clear or we are in the process of making this coding or we are trying to decide between one of two coatings either x or per ads and therefore we need to have a freedom to operate thirteen hauer point that shows that p p g has an ongoing program to develop these kinds of ten interior codes i have the concern about that moment now because it's three years ago so can you talk about what p p t is doing now well as based on patents that are child patents to the patent at issue here yes p p g i don't want to misspeak whether they are actually selling them or they are in final stages of development in the us i'm not sure i know they well as i said i think this case can can be turned on legal issues not factual issues and i'd like to focus on two of those were my remarks here today subject to any additional issues the court would like to discus board contravened decades of this court's precedent when it relied on and admittedly unclaimed property this coding flexibility to erred as a matter of law and construing the claims by reading this coding flexibility requirement into the claims this claim construction in fact of the entire court decision and the board read into the claims this flexibility requirement well of the same time reading out of which claims what the patents at issue here the valspar patents call preferred so called coding flexibility requirement and at the end of the day there is no dispute about the meaning of the claims valspar made unequivocal statements in the spring that the claims are not limited to coding flexibility try hypothetical what if someone is doing some kind of drug discovery plan and then there is a compound that used to be a lead compound and it's really close to what is ultimately the patented compound but everybody is under the belief that that lead compound is poisonous right and you know just because the patent claim doesn't say you know the fall off the following composition that by the way is not poison it it seems like that's a relevant consideration to the inquiry in trying to figure out whether one of ordinary skill in the art would look at that prior art of the compound and want to modify it to render obvious the ultimate patented compound the hypothetical might things that are in the specification where that might be known well the comparisons how much does your argument depend on what's in the claim as opposed to what's described as a property  obviousness on desirable properties of a commercial product that are not required by the claims which is what's going on here you would never know where to stop i mean they you would be flooded with arguments and expert testimony about properties that have nothing to do with what the invention actually claims and this court has spoken to this issue and just to refer to a few comments in the intelligen patents claimed invention and evaluating the reasonable expectation of success constitutes a legal error that is reviewed without deference on that same page which was page thirteen sixty seven and think about what's being said here it is that our claims are patentable over caress because caressed allegedly doesn't have this required flexibility y and if it is that one of ordinary skill they are would know that if you're going to put a coating on the interior of a can it should be flexible so that if they can get stented it doesn't like often the person eats it so i mean why is that not supported by substantial that's being used to try to distinguish the prior art now yours your i or the claims here are extremely broad their very broad both in terms of the definition of the coding composition that used and they're very broad in terms of the applications for which that composition is used the claims redone press there's no dispute and the only ground that the work get for saying there was no motivation to combine or no reasonable expectation of success was lacked sufficient flexibility now it said it's not on the inside surface of food plan and so then there had to turn to the secondary reference i'm sorry missing here on the inside surface of the can that claim says a method of coding and insi conclusion but the work did not address that conclusion by examiner at all what the board said was how can we buy into the fact that the press coding is not sufficiently flexible say the board why doesn't it have its own findings of fact numbered one through fifteen yes and none of them have anything to do with any of this other than plex ability for the it does say that you know there's different references that say that it's particularly strange and specific requirements for coding compositions for cantors which are different from other coatings flexibility and he's in our second show and yes it was just relying on those fact findings for the idea that if you're flexibility requirement and i say they found that that requirement was in the claims and they used that requirement to distinguish the corrosive reference my point is that it's not a requirement of the claims valspar admits that's not a requirement of the client's right in the brief they say very cleanly on page nineteen that everyone involved agreed on one thing the claims were not limited to flexibility or other strange requirements now their claims cover a wide array of applications of this code they are not limited to a commercial coast or figure we move on what about very quickly the granting very declaration and the problem with the brand it was in the final decision it was in the final decision so we didn't have any opportunity to correct it it can get you this was not this didn't no one made this argument to the board the board used this argument that it came up on  with up on its own to reject dr good's testimony that ace or fact of wedding agent is important to a fusion which in turn is important to flexibility now there's a lot of lawyer argument and val no article three standing to maintain that position yes you do lie because there is no injury in fact in this case you know certainly can even with the fact that he is lying his food p p d based on related pat securely in just the concrete and particularized injury injury in fact right in the the other two are subsidiary to that in this particular case as we know the standard for case or controversy is relaxed for these kinds of here situations how would the facts have to be different than what they currently are in your view that would get p p d of over the hump and then therefore have standing at this point in it but they don't need to pass the standards for individual action of care we all know that so there's something less than that ok so what in your view would be less than that that would still satisfy the relaxed standing standards of this particular situation some indication your honor the people she has an apprehension of suit under these patents and not kind of like filing a lawsuit against on the exact same specifications that depends on she certainly could have said we have the intention of going forward with something that looks like the claims of this patent or at least that we're considering that but none of that was put into the record during the proceedings below or even the score reply three we get a letter maybe from both sides about ok what is this lawsuit that's going on and and identify the patent and what's the product and i need to understand before i can figure out what's merits on the merits of the case we view the situation somewhat differently than p p d i think fundamentally it's relatively simple we had dueling experts in this case on the question of the combined ability of the references and the board credited thousand parts expert dr brandenburger that decision was within the board's discretion and supported by substantial evidence and let me give you what i think is the core evidence in the case that allows you to affirm on the even aside from any question of simultaneous three or testing and that is first of all the board's finding that there are stringent requirements that apply in the can interior coding field which i think is supported by understated evidence at this point are largely undisputed ordinary skill new york is already approaching problems in this field a little bit differently than they would approach them anywhere else with the mindset that other coatings for other systems which is what j p three seven and for as far are not likely to work well person of ordinary skill in the art the affirmative disbelief that these references would actually meet the flexibility requirements would be formulated to be a cancer coding a strain of their own for seven decision yes the board doesn't seem to rely on that it seems to really just be focusing on the spearman's they were formed by mr printer i mean if you look at his declaration mr prager has like three or four paragraphs for he says more general things like what you're talking about but the board doesn't seem to rely on that at all and instead is just relying on this experiment which seems to have some sort of clear error in it and the it has a clear error and saying that the you know the cross thinker is also the wedding agent so how can we rely on other things mr brain to berger's decoration when the board did not so let me address that separately for the two rejections certainly for j p three and seven the testing just isn't relevant and if you read the board's opinion at appendix thirty and thirty one they prez in view of christian said i think you're correct that the board spent a lot of you know real estate in the opinion talking about the experimentation but the introduction to the analysis and the ultimate conclusion know i think that the word finding is actually scientifically accurate but we will agree that we didn't argue that we didn't put the evidence in the record to show that so if there's a substantial evidence basis for the finding it is in the vagueness of the pres have you had recognized the need to close it couldn't he have said just like he did with one of the other ingredients this is the reasonable amount pound that somebody could put in here is that at five percent ten percent twenty percent you know  whatever he did i think he did that with respect to the cross thinker he didn't have a specific amount but he used his judgment had to recognize that a wedding agent was needed what we have done that similar process is an extremely difficult thing to do in the distinction between the  surfactant wetting agent and the cross leader if they are indeed different is that the cross leader is actually named and he has some experience judging what the concentration is to be it in order to run these sorts of experiments you're talking about there are multiple dimensions in which you have to do them you have to take the known universe of surf acton's and run across that dimension you have to take the concentrations that are possible and run you know something that she thinks reasonable some range and then you have to do the application m actually improve flexibility he said it will help in the testing of flexibility but there's an important point there which is in this emotional and reservation system and i agree to disagree with mr faber on this it is required to have  initial stage both they are two seventy five and the power expected so there's a lot of surpassed in a lot of wedding already in this composition for example eighteen the second thing and this is what mr good did not testify to was that a person of ordinary skill in the that isn't don't we have to read that as being as a result and then look at the sentence before that to understand that it's being credited as a result of that testing that was done so i think that there are two different questions maybe with asking well one is can we read the board's opinion as referring to the entire brandenburger declaration right and i think given the introduction to the analysis section where they say in the u s the arguments and evidence of actually reviewing and crediting the entire brandenburger declaration as they talk a lot about the experimentation and i think that's because a lot of the parties argumentation was over the experimentation but even though it's then i think what the board is actually saying is we credit the statements made in the brandenburger declaration over the statements made in the good declaration and you can view the testimony sorry the experimentation as a credibility enhanced meant that so in other words they believe d alking about the experimentation and they concluded as a result right and so with just assume for the moment we've got a problem with the brandenburger testing example eighteen and and there was an over reliance on a misunderstanding of whether brandenburger actually you know follow the full recipe an example eighteen then when we get over that j p three eight seven analysis it looks like the board does something of a short cut to the finish line and says we look at dr brandenburg declaration we look at what judge declaration we find dr brandenburger speculation is more persuasive and so therefore  opinion which they state they credit dr brandenburg as testimony over that dr good because it's consistent with the prior art ok and there are many aspects of dr brenner berger's testimony which are consistent with what they were seeing in the prior a particularly the prior of that was coming from p p t same this is a specialty field with stringent requirements where other compositions don't work well and dr brand of berger's testimony in his declaration also addresses j v three and seven specifically and says look this is a general coding thing this is the general coding composition it's directed to things like leather processing paper processing per the expressed terms of the s a candidate or a coating they're going to say this is probably not going to work and maybe i'm going to test it or something else but they're not going to go in with a reasonable likelihood of success for the reasons you know dr graeme burgess declaration in other words you can see that would have made me more comfortable earlier fact findings regarding the stringent requirements in the field in regarding the differences between this field and other fields and other coding compositions i think you get to that point and page twenty six column twenty two lines sixteen and seventeen say that preferred codings coming when you're there i'm sorry could you  says prefer codings have one or more of the properties identified in the example section now if you read the example section properties that are emphasized and identif and flex flexibility determined by the reverse impact test they say only one or more of those is required up arrest clearly has one or more we actually think present as all of them but for purposes of this dispute for us it's admitted has one or more of those properties if you go on to the examples and we reduced the sin our brief your honor the examples clearly embodiments that failed this reverse impact test which the patent says is the test used in the patent for flexibility that i respond your question in these kinds of codes because it causes uniformity because it's good that he isn't of the coding to the substrate and he said that is important when testing for flexibility what that means is if you bend the arguments dr brandenburger made this was pointed out in dr good's declaration that these that he left out the the surf act of wetting agent he never said well i don't know what it is or i don't know how much t that about to what extent did the ort rely on things other than flexibility and other than random burgers test results the board cited to numerous paragraphs of the brandenburger declaration not one of those paragraphs that cited dealt with any of these other issues other than flexibility and the very first paragraph that just said this is a specialized field that has stringent obligation to explain what they're basing their decision on they never mention any of these other features any of these teaching away arguments anything other than the alleged insufficient flexibility and the fact that they concluded brandenburger demonstrate but he demonstrated a property that's to clarify you're out of time to figure you'll be sending in a three page letter right here because that is going to be