name is dan cleveland arguing on behalf of the partners in this appeal partners is a company that sells seeds stop farmers to grow out of things such as feel beings in this instance partners improved a line of beans that  one is a section one one twelve rejections the others are rejections i found them in the area private rejections or one of two one of three the one twelve rejections cannot be grouped with a single  there is a failure to consider the evidence of record that forms the basis of the rejection from the perspective of ordinary skills a of concern you really meaning the third to discuss because the fact that they haven't said something doesn't mean they didn't consider  but they did they they said that the the they said that the evidence that we provided in the reexamination contradicted the evidence that we provided in the pattern specification when went on file so they did consider it and they did articulate it  they're holding us to a standard of molecular cloning when this is a breeder gore selection art or select from a genetically diverse population they select on the basis of observed phenotype there is a presumption that  by the deposit fails to describe and enable seeds having the breadth of the coins the claim is representative of the seeds on deposit and anybody rioted that exist on  because yes you are but but if that's the case then you run into do you not a written description even indefiniteness problem because your description doesn't a lot doesn't mean you have the deposit and now you're saying the tonal organisms this is what forms the basis for people to further selective the selection process has been going on for millennia and the small amount of noise is what all what forms the basis of people to further select and further improve these the genetics of been seed coat collar are very very complex that we there is an article at issue in this prosecution by a man named bassett he concludes that the genes the genetic described by bypass a here's a key is actually following the work of an all or to explore of the genetics that we stumbled upon here and there's the claim set that for no this work followed in all of this there's a distinction between one through seven and the remainder let's leave aside fifty nine to sixty four i think that is your position that it feels of the written description i mean we've got a deposit and which shows possession and then we've got a and you'll see exactly where the fort gets those list of characteristics which are listed on the appendix the page forty really pretty casual boardin you know i think i i i respectfully disagree that we have a later publication saying that in here in this would be it inherently would tell it's telling you that these beans are greater than ninety six percent identical but this disclosure followed the path of the issu the disclose you know what they found substantial identity there then some conservatory at a dance came in and that well there is also this genetic similarity greater than ninety six percent genetic issue with respect to enable look at their reply brief they say that the amount of variation is seventy nine seventy nine percent to eighty seven percent of those beams are fall within this color range the rest of them may not so that we're talking about twenty one percent to thirty percent variance what they argued before the board was eighty to eighty five percent of those beans are the correct color and then there's another ten to fifteen percent that are that  to first address the issue of diversity of the deposit essentially the pac the patent office arguing that the deposit porno is too diverse to constitute a representative sampling of a variety of a stable or reduc it's on page twenty seven of our reply brief and you know it demonstrates a much higher level of stringency than the peer beans do so it is it is unique in that it is more stable then its other p varieties so from a perspective of ordinary skill in the art we've scored it we prove that it is it is simply untrue that we are we have too much drift the constitute a variety or an acceptable deposit and deposits have this kind of noise differences and i and i also because of the admitted differences and silliness i submit also that the patent office never fulfilled its requirement to show substantial identity before shifting the burden on the progress we have been unfairly imposed as also an obviousness rejection not just lack of novelty this is this is true so substantial a dent in the isn't in the system it is to shift the burden as they did under and re best and these cases before because there's no showing of substantial identity at the shipping the burden was improper to begin with however i would like to proceed to show that pallet he wishes two they tried to use the after the fact power theory reference  bassett article bassett is the only one who ever spoke actually scored the color of these beans bassett found that the in the lead beans that he studied had to population had to two pigs of color  these scholars are all the same how taney relies on bassett for that gets relies on passes for that and we squared those beams we presented on twenty page twenty seven of our reply prevented in a table that present supporting a very summarized way