the next case for arguments morning is thirteen sixteen thirty nine when we want  patent office failed to establish that there would have been a reasonable expectation of success in achieving the subject matter the doctor has claimed the claim is a method a claim and it has the limitations of achieving improvement in shelf life and in particular improvement in shelf life of about ten percent or greater the board the board analyzed the claim as if it were merely a composition the board's decision is clear the board says and this is a fourteen of the joint appendix the board says that combining the prior art of quote appears to yield predictably the government and they can speak for themselves obviously but i understood them to mean the two arguments one is that there is a waiver argument that this was not race it's persepolis since the limitation and two aside from the waiver argument that examination before the examiner our arguments in front of the board and arguments for this court from the center has always been the fact that we contend that the prior art would not have led to a reasonable expectation of achieving any shelf life extension so i would agree that the ten percent is not something that we were hanging your hat on because we're saying whether it's one percent ten percent or fifty percent the prior art would suggest that the combination of ingredients would make matters much worse it would lead to it had been expected of them not ten percent i understand here other arguments go to the fact that that was the motivation because we assume should have been that it makes matters worse when i'm having difficulty accommodations the board certainly recognize that we were already doing this wearing gloves that that by arguing that there wouldn't be an expectation of achieving shelf life extension we are arguing that the limitations of the wearing boss and whether that includes the ten percent or not i submit is is not really material to to deciding the issues here but even if it is the board recognize that in their opinion they refer to the ten percent limitation of the board not the difficult conclusion to draw the conclusion if i understand the question the conclusion that we're suggesting would be drawn from the prior art is that the use of these three ingredients in combination there's only one reference in the record and this is not in dispute there's only one reference in the record that has these three ingredients that's the barrett reference and it studied the precise combination of these three ingredients to see would it be possible to extend shelf life in the data from that article from that buried article shows the opposite unimpressively it shows that the combination of history and gradients of all the bread studied in that article they were the driest spreads over storage and they were the hardest spreads over storage the firmest of the stainless and that includes breads that had nothing done to them in other words compared to the control breads that have no anti staling patients whatsoever  is a method of playing and it's directed to a method of making donuts so if the question is is why does our playing work why does sort of claim achieve ten percent improvement whereas the priority suggested that that you get something different i think that the correct answer to that is is because it's a method claim it's method stats and it isn't a donut it's it's not in the bread that it was not part of the claim not part of the record it's my understanding is whether the inventor understands why the invention works has never been required under the patent law this is what's explained to me is that by by doing it in a donut for whatever reason the control over those process conditions leads to a beneficial result but that couldn't have been predicted from the prior art and there was no example in the prior art of taking these three ingredients or even two of the ingredients any of the enzymes and actually making a donut and testing to see as if we're looking at the kind of substantial evidence question about whether the high art teachers away or not you have a really good piece of prior art teaching a way in your pocket p t o of a couple pieces that may not be as  cold case and it's in the breeze but the fact of the matter is scientists when they look at data that would be particularly helpful if the data actually pertains don't instead of perhaps and particularly i think it was in marty bread and through kind of white bread so it seems to me that that may not be as good of a i think it was on that exact point we submitted the declaration of one thirty two declaration by a food scientists way he said the varied article is far more informative far more persuasive to those of skill in the arts and what he characterized as generalized teachings of williams of the other side of references and the reason that that this expert said is because verite has data and scientists reliant on data more so than just generalized teachings so in weighing this to your point judge in weighing these these you know well the teachings that we talked about that and they said the declaration just indicates that the benefit of combining these three is not significant and then they weigh that against other evidence and they analyses i don't think we can defer to the border i don't think the court can defer to to the board on an analysis that's just not supported by the evidence that the very declaration itself it's in the record and it's clear i mean d in achieving appetite anti state result and right you have a combination that the board cited that included each of the three ingredients now we have never conceded that it they are in a don ut where they provide any data whatsoever williams the primary reference has has zero data to indicate in fact the examples in a bagel and it doesn't include either reducing gradients so we have saying is you know when you look at these and you weigh and how can that which doesn't even have the combination how can that outweigh the barrier which has the combination and studied it specifically for this purpose and shows that that and you may disagree with with the way and we may disagree with that but the other references even though they don't have good data so just using all three of these ingredients in a person of ordinary skill would probably look at these and say look i can use these three ingredients let me try it out and come up with your method the board never says that there would be a reasonable expectation of achieving shelf life extension of achieving the method that dr that dr learning things they just say they would be it would be predictable that you could put them together into into a dental but but that's not what the claim is the claim with for years achieving the shelf life extension there is nothing we all have to where we started which is whether or not ten percent  page i think any improvement one percent two percent it's certainly a limitation that there has to be something proven and what the board did here is that they consider barrett they didn't consider the urbanski declaration head on they didn't say well let's take these teaching that that go against us and let's reevaluated into the mix of all these references and see do we still have accreditation case they didn't do that they just tried to take jabs at the  declaration and in the williams declaration they really said they find it unpersuasive and this is remarkable they said that they're frantically declaration isn't persuasive because it's attorney or didn't it we never established that what declaration dr advanced he said it is informative it's more informative in fact is what he said secondly this this whole thing is a new round of rejection it's an improper new brand of rejection because it's not labeled as such the thrust of the rejection the board changed entirely the board looks to the motivation from the area itself the examiner never did that we never had an opportunity to respond to that and the board says they're trying to have it both ways the board actually says barrett motivates doing this in a don't that's spent almost a direct quote and the boards are claiming maybe obvious overbearing which so when it the court i just have two things to say and i'll be happy to answer questions kilowatts vincente and williams all relate to done at doe and they set forth the claimed invention of the disputed ingredients cited i think your honor judge you sit on it as i've been thinking about it precisely that williams talks about enzymes plural and in like three lines it covers basically all three enzymes plural our families glistering and the other two references talk about once a month agenda least being a graceful anti staling agent and then the other thing i'd like to address the alpha male deal yes your honor and then the other thing i'd like to address is the board issued no new ground of rejection here it employed the same rationale as the examiner that all these record and when it came into the record it actually conflicted with the ten percent improvement the the reference according to account teaches a decay teaches some adverse res and the claim has a ten percent improvement so to reconcile those two they can't both be true they are polar opposites one way as the board and examiner said applicant could have reconciled well what is the true value of barrett and how could bread lasting for years relate to donuts lasting for hours applicant talks about donuts lasting hours and a few days at page ninety five of the record in a specification and then the board i a means of teaching the way my mind least is you've got three references they deal with donuts and they suggest that using one of the three ingredients instead i fail you have another reference that demonstrates for shows or leads to an expectation that using those three ingredients are not going to achieve anti staling why isn't that teaching the way what except for i know you're saying that bread not but other than that argument why is it not a teaching the way well it's it thank you your honor is teaching the way evidence that there was some evidence that as to bread lasting for years and what the board said and it was very legitimate is that if you have a claim that says i increase performance ten percent by using a b and c and then you have which applicant has been strongly relying on a reference that says wait a second look at this away putting aside the bread if the reference is if so just saying that the three parts of the three ingredients of the apple produce bad results that the ordinary person would not obviousness case and cases such as in bringing younger to this court say that any teaching of way to evidence and the court affirmed in that case is not eliminate the other prior art references from the prior art they are still considered and wait for the forcefulness of what they show in here you have to take each case on its merits but here you have the three separate components that have a certain effect nowness much as a ten percent improvement the only reference it puts him together so this isn't help or preserve for different purposes might think about it but that's not the motivation to get used as you believe it is your honor i think i understand your question and that is that  it prevents failing and similarly kill of law is even more substantial evidence to support the board's finding so here we might have like an enraged jolly situation where there's some evidence against and some evidence for and the board made findings  teaching the ways a finding of fact of this court is held many times over and here we have much substantial evidence supporting the board's teaching toward i'd like i like to think of it as instead of what's the inverse of teaching weights teaching t finding and the board had a lot of evidence on its side and maybe another outcome is plausible and here as the board said you know you have a chance to test your product that you're claiming percent improvement on and you could show us in two ways you could give us on expected results haven't you or you could give us evidence that transforms barrett from about military ready to eat meals lasting years in column one a very good set of we won our product the last thirty six months eighteen months and i don't want to eat a donut after several days so it was not on all fours with the claimed features of the donut and ten percent improvement in the examiner said before the appeal to the board give us you know something to connect barrett with your claim and a the math to genic emilie's plus altho i am elise combination two times and it's test data you and we made this point in our brief you three and you two hundred that and so for example in table for going down t but the board when faced with the question of fact of teaching toward or teach in a way has a lot of evidence pointing that signing in that's our position and we think that such as in cases like in re jollier so this court should not decide it no from the board's perspective which should reveal it with is there more than a scintilla of evidence supporting the board's finding and we say there is throughout till it was in chance a williams in the board's reasonable analysis about when you have a claim to something that is the bipolar opposite of a reference you're relying on at least show us how to get from that reference to your shoulders and by your language if the court has no further i'd like to address just a couple things that were said there one is that the solicitor said that we failed to we were asked to present evidence to connect barrett to what happens in a donut and failed to do that that's not the case the urbanski declaration is in it is factual evidence exactly on that point the advanced declaration it looks at barrett he reads barry he reads the references and banti state that the barrett reference would be far more informative and persuasive dr van ski in his testimony in that declaration draws that connection the second thing i want to bring up is that the solicitor just conceded that barrett teaches away from the invention now i understand that he disputes the weight to be given to it but he concedes that it teaches the way the rejection i'm reading conceded that it teaches away then this statement simply cannot be it cannot be corrected either it teaches a way where teachers toward the board said it teaches toward the solicitor just says it teaches the way now addressed this in the casing ready let me hope i get this right video on it then which says that where there are conflicting factual findings and these are irreconcilably conflicting that there is no deference given to the patent office on those finding that substantial evidence just does not apply in the morning and so i would suggest that on this record that it can just be reversed it's unrebutted by your band ski and buried that that this combination that poses priority very teaches away from this convention i see that that my time is up and i just want to address one thing one other thing which is the examiner offered several post hoc rationales there his view of