agency below is one thousand three hundred and thirty six pages documentation here on appeal the solicitor has tried to introduce one hundred dollars pages of new evidence that was examiner after appeal to the board of the examiner merely provides a citation to a reference that that makes the reference of record and then there's a couple sort of problems that raises cited this new these new documents that i could go on the internet for example and find this stuff because neither the examiner nor the board allows me to  you can elect to reopen prosecution or to maintain the appeal and in this case you elected not to reopen prosecution which would have allowed you to introduce additional evidence instead you decided to maintain evidence being relied on appeal by the exam or that's why you're given the option to reopen and the m p e p specifically talks about relying on  before and the examiner is permitted to do that but it allows you to reopen prosecution if you wish to and that the the the problem with me opening reopening prosecution is that if the office reopens prosecution remember we had a delay between we had a props two years delay between the time the examiner perhaps made a mistake here we the office will reopen prosecution i get that two years of delay added on to my client's patent term so i haven't really my client has really lost and we've we've got some delay initially about and we haven't mistake you don't get it extended if the applicant makes a mistake and so if i reopen prosecution one can argue well mr cole that means that you d admitted you made a mistake and so you don't get the two years of delay d added on to exactly i believe sort of the question your question behind the question is why didn't i just reopen prosecution well it's not a question of why you didn't you had the opportunity to do that and under those under th circumstances the rules are clear that the examiner can rely on new prior art and then your choice then is to maintain the appeal or to reopen prosecution you chose to maintain  understand how you can complain that he relied on new prior  basis that you would lose out on your patent term exactly exactly sir thank you the motion to strike yes yes that's what we should do ok and all these all these are the product that was not of record during prosecution even that even assuming that the court has jurisdiction to look at that taking the board at it basis you could accept my argument on that basis or if you want to be a little more thorough you can actually read rain off because it is a record and ran off as it has two parts the st part is not a claim limitation of human then it's not part of the reasonable expectation of six that all the a claim elimination that isn't there is human and you know that of course is in vivo and so we do need to have a reasonable expectation of success for it w contending that you always have to have and testing before you could have a reasonable frankly it's even worse than that there is that the field of cancer research we are banging our heads against the wall with nost models that don't really reflect put those on the hill and we spend all this money testing  it's fine in mice we try to people if else and even more to the point in the real world you know and this i'm not sure them talking in a legal concept so much as like what i see on a day to day basis and research laboratories and drug companies as scientists are just very frustrated because we have model panel models that don't really reflect human reality specifically and for this specific combination as a rant rant all as the specific combination does not work in vivo this is only concerns claim three right because that is the only plane that talks is in there for that very reason and then i that's exactly what happened here in fact there was a one hundred and thirty one declaration that was submitted to manage it one of the key references and that is why the exam that's at one thousand and eighty of the record and that's why the examiner issued the new ground when the examination of the new ground at that point the appellant had a choice and as you've indicated they had a choice to either reopen prosecution or to forge ahead with the appeal before the board and that's a choice they made  and they they did go forward with the board at the board and so there they are concerns limited to some extent in terms of what evidence they can they can present but that was a lot of new evidence so that the examiner put i it was new ground to rejection and that's that you know in two thousand and four the role came into place forty one thirty nine and the actual reason for that was that applicants on oftentimes are not oftentimes but sometimes gets the choice back to the applicant so in this case there was a one hundred and thirty one declaration that was submitted they were behind one of the key references which then basically on d s t over the the grounds of rejection of play the exam or then introduce new grounds and of course then the choice is for the for the applicant at that point and so they chose to go forward with the board they could have gone back heart but i believe if they if they prevail before the board ultimately then they would get some of that time back for the time that they were waiting before the board so i don't think that's exactly accurate  provided i mean the the examiner made their retraction within the time period that's allowed then the applicant has it's time period to respond and that's the suman they stay within their time period there's going to be no effect on patent term at the end of the day but but more importantly here it's it's about choice isn't about getting the record ready for appeal and here we have a situation where evidence in fact the applicant themselves brought a new evidence in their appeal brave and so it really wasn't a close record at that point so the examiner had needed to respond to that and they did and that that point you know that the applicant had a choice to continue with prosecution to write it to write a response to that rejections and get the the you know the record ready for appeal typically things should be sealed up and closed before they go on appeal and here what we had was some lingering issues that hadn't been resolved and it  perfectly appropriate for the examiner to open not open i mean to issue the new ground in response to the new issues that were raised in the appeal bri say even if it doesn't completely teach the way that it doesn't completely teach way and it also provides a reasonable expectation of success from the combination it's the latter part of the analysis that seems completely missing from the board's opinion i mean as i understand what the bird was saying here and let me just pull to the relevant section all it really it looks at tumor size and tumor weight and this is an figures two and three and it shows that each of the treatments t m c alone g c b or the combination all have a fact and reducing tumor size and tumor weight and actually soda sissoko significant difference between  c and the combination that's interesting but the board doesn't say and yet that doesn't the board just basically went ahead and acknowledge what what they had said which isn't the key point that i think the appellant's were making  they still teach other benefits and that's where they point to page two hundred and ninety nine of the record where the right of talks about other benefits clinical implications of the combination which include reduced toxicity towards the host and three decreased impact of acquired drug resistance so the the board says even that that alone would direct one to to pursue the combination notably i mean this isn't a case where it's criticizing our discouraging or otherwise discrediting uses a combination and fact the final paragraph does suggest a talk that summarizes the data and talks about the demonstration of synergy between the coming combination and talks about it as an attempt therapeutic energy the only disclosure is on page sixty nine dollars of the record and there's one example which describes really in text that it talks about one group having the biggest dick decrease in tumor size and other group having if that's what your yeah assuming that i could have reopened the prosecution or assuming that the examiner could reopen the prosecution of the board that's that's one issue another issue that this court has got to consider is i think the jurisdiction of this board is limited to the record before the patent and trademark office and i think everyone here agrees that the one hundred pages of no evidence opposing counsel is presented to this i don't know that it seems to me that the ball was in your court and and you chose to not not follow the regulations and even