success is evident in the in the final wrapper of this reexamination in particular eight different articles and memos talking about its success fourteen different declarations from customers regarding its success declaration from a manufacturer who produced the the product and a declaration from the inventor talking about the licensing the heating gauged in of the three thirty pat also the third party requester for the reexamination that ultimately occurred in two thousand and nine and two thousand and ten even produce even had a a product data sheet talking about what a great invention this is and how it about the product in other words it can't have a nexus to a novel feature if in fact that now the feature doesn't exist and yes your honor that is what the board set and i think the board was wrong for a couple of very specific reasons first of all that many many times the board didn't address that at all and what i think the court made its mistake on was that it rely primarily on two prior art references it is law reference and  public works reference and both of those references quite frankly are different products but if you want to use the phrase discussing says this other you said it may not may not sugar to gather together were your percentage and they know that that's absolutely part of it or a large part of it your honor the fact of the matter is even the daily reference and again we think the daily reference is not analogous art for a lot of different reasons but even the daily reference says that d s p and the sugar sugar people asses by definition has to be less than thirty percent sucrose less than thirty percent sugar and fat is law expressly says it's well date first of all there was no showing of what the person ordinary skill in the art who that person was or what that person would know at all and wasn't even discussed at the office and i believe as i understand it that a person sugar sugar beet molasses it was not as a result of the distillation of alcohol which is what was shown in public works that was the public works disclosure was the byproduct of the distillation of alcohol that is ask you about it i know you say this in a different field all the technological field but what does it is it have to be it precisely in the same field if if it's dealing with the sugar the chase the icing roadways and while the field for daily is tire ballast and the board essentially said well they're both used outside well that not reasonably perk to your honor the fact of the matter is somebody who is taught who is looking at the used outside when and when morton's that at it as that particular freezing point rosabelle it possibly yes i know exactly your honor and i would disagree slightly in that regard first of all merely citing two of prior art reference does not is not some admission of materiality is not some admission that it is i think if you me i'm sorry i don't know them that would pick of your definition we know that would pick up the definition of thirty percent and it's the properties of the staff and method of producing but i think if you read that entire paragraph what you see is  keep them the iced in the middle of the storm the ability to spray the material a mission and so it doesn't clogged the sprayers that you see on the roadways that was the major time but very quickly your honor i think the fact of the matter is we have to be very cautious again this court has warned the office many many times not to too broadly defined it in trans ocean  and it says that both will serve generally well in the claimed invention of the first one it describes the older centric asian process and the second one it describes the stuff and process it  but i'm speaking you have to way back i believe that less made in their brief and i believe that the points that we're making is that you can have a process and you either carry a process all the way through or you don't and you can still have two different things so you could have very making process that in the end of the day will make our own version of three to bear which is lower alcohol or you can have it at the end of the day it makes a higher alcohol content but that doesn't just because the process the basic process is the same doesn't mean the end result is the same and so how do you let's get to the fact that the end result here is fifty percent sugar how do you fifty percent sugar sugar accepting that that's what they argue because i really wasn't having looked at the record i don't believe that's what they argued and i think that argument comes from really reading about sugar processes because when preparing for this case i i did not i was aware of the distinction that you're making here and i i didn't mark and i'm trying to find these references that's part r i it's actually their response to an argument made by of the record to sugar to something called the second be hampered because i was interested in how sure can be molasses is made in the sugar that's when i discovered that in fact with the three three it becomes the same thing isn't enough as an in this case i believe it is your honor here's why because the issue in this case is whether these ranges of  calculations and found that these very broad range claims in fact the prior art overlaps overlaps what is found in the claims and that's the issue here there's never anything in the claims that talks about fifty percent su is within his claims range so here's this is where i think the argument about the objective and its most powerful and that is that you would have to make reached the conclusion that someone would look today at someone of ordinary skill in the art would look to daily so isn't it indicative of of whether they would or would not when you see how successful the product has been in other words someone of ordinary skill in the are obviously didn't look to daily and that  sorry the decorations one problem that the born identified is that there is now express teaching that this geo mt was actually added to salt farm equipment or outdoor equipment or construction equipment that is just an act you know it's just it'll serve the opposite function of being balanced it's going to be like throwing your washing machine out of balance asked about the board the examiner and the board's decision your statement that the ratios would be adjusted and what the the examiner and the board was talking about was adjusting the ratios different d p molasses product the compound person more a skill in the art based on these teachings is not going to adjust the sugar compound the sugar compound is defined as less than thirty percent the adjustment in ratios is between the sugar sugar people asses and those other compounds the other point going to what judge o'malley asked with regard to the secondary considerations i think there is ample evidence in those secondary considerations that the claimed invention was being used there's multiple references in those articles and in those memos about how geo melt is being used in combination with salt and it's reducing it's reducing the amount of the salt going off the roadway it's it's keeping the salt on the roadway it's reducing the amount of salt that has to be purchased it's reducing the labor that's involved declarations don't really say that c m l practices the invention well as i understood what the board of the examiner did or at least the board did is that it is it i think there's a statement as i recall whe long felt but unmet need says that his customers are paying an additional amount for the d s p m for use in the patent invention and further there is evidence from the inventor themselves himself i should say the inventor himself that he has a licensed a patent and then you go to the product data sheet from the third party request who specifically says produce pursuant to and it gives the patent so i think there is ample evidence to show that the secondary concern the secondary consideration evidence was specifically disclosing use of the patent use of the claimed features and that there was six that it was it was well regarded all really don't have any jew cation role in that nature or to actual facts