the claim seventy percent success level whether that reference is proper prior art that issue in turn centers on whether or not inventor david greene made an invented contribution to leue table three now in meeting its burden of production trends over showed that the loo reference which is authored by three of the four patent ventures including david cram expressly attributes the table three data to unpublished results provided by green the three inventors including david grann thanks green for his permission to cite his unpublished data that indicates that it was in fact green's data after all you don't need permission to publish your own data now trends of also show that before this i p r x y never contested the fact that lu table three was prior art and said it repeatedly distinguished the reference during prosecution falsely claiming that it failed to teach the seventy percent success level now that ultimately persuaded the patent office to allow the claims in this like you are however ex wife which position it once the p t o and this court to prevent all that happened during prosecution and now for the st time x y embraces the fact that lou table three does teach the seventy percent success level because now for the st time x y have produced a declaration from its  longtime patent attorney mr craig miles the man who drafted the priority application who copied the loo table three data into that application without attribution who raised green's name from the t well i i think most of craig miles of testimony is hearsay and we certainly moved to exclude it is hearsay one of the errors that were pointing out in the appeal is the board's unreasonable refusal to data into the application or the fact that he deliberately deleted green's name from that table or the fact that he deliberately omitted both ringing and cran as an inventor as without having spoken to either of the gentleman and  own knowledge of the people that coach in at the time correct yes the board claimed that it wasn't relying on anything that cran had told miles but rather was relying on  personal knowledge about green everything hinges on miles of knowledge about bringing green status as a bench technician and his alleged role in the table three experiments the the problem with that is that that is not what miles testif miles did not testify that had he had any independent knowledge about green status or his role in the table three experiments he did actually testify to the exact opposite he repeatedly testified that all of his knowledge this testimony that green was a bench technician at all because it was not predicated on my own as independent knowledge but on krantz hearsay description of green now you don't have to take my word for this you know again miles testif i understand what you're talking about as to mr green specifically there was also a lot of testimony from mr miles about his personal knowledge of the relationship between cogent and x y through a lot of legal work that he had been doing between x y and cogent and running some of these tests using x y technology x wise know how x y z trade secret information so what myles was testifying to was his knowledge of the overall structure of the relationship between x y and cogent and that cogent and its employees just wouldn't have the information to run and produce results without having all the know how from x y so i guess  to the extent you are talking and focusing about what did myles know about green specifically i understand your point but i think what you have to also deal with is that there was some circumstantial evidence as to what x y possessed in terms of knowledge and information and what x y z relationship was to co and why that could create an inference that that really x y people were the architect behind any of the experiments being run a there was some and would you agree there as to just exactly what it is that green did as it relates to that table i mean there's a lot of different ways to read it one is green was the one who took the results from all the experiments and created the table and produced and organize the data in the format that it shown in blue reference another one is that he was the guy that actually ran the tests but he didn't design any of the tests he was basically just a pair of hands that that ran the test that produced the results and then he created the table and the rd was he figured out how to run the tests and what would be the most effective way to perform these experiments and then did the tests themselves and then collected the data in the presented in that table but the reference doesn't tell us which way one of the other of those options we should really best think about this reference to green in the loo reference and so the problem is we don't have green here and so how do we deal with this ambiguity the board saw that there was this established relationship between x y and cogent which revealed that cogent was really working more on behalf of x y and that created an inference that the only way cogent could do anything and do anything correctly was based on the insights and and know how that it got from x y so given that this is a very fact specific context the sophist case where we're dealing with this mystery behind what exactly it is that green did this day we still don't know i didn't see anybody specifically tell us with any hard evidence one way or another what it is that green did how can we say with any confidence that the board got it wrong with its fin yeah i think i heard you say that green supplied the data in the table that that much we know for sure and we also know that the cran authors who are also the three of the four patent vendors thanked him for his one mission to publish y and green would not mr miles did not testify that he had that knowledge after time so most of the knowledge that mr miles testified he acquired about cochon occurred years after this he said that he acquired a lot of that through subsequent life petition and then our ship of blue table three was not an issue x y to overcome we won the merits by falsely arguing that it failed to teach the seventy percent penetration so we knew that was false and our petition focused on proving that was false the contribution of green many of the inventors and i think the case all makes clear that the onus is on them there and they're trying to show that the reference is not by another it's incumbent upon them to show that green did not materially contribute recognizes this appeal is about quote how the board balanced the evidence in finding that green did not make an inventive contribution table three of the lou reference to see that substantial evidence supports that balancing  statement that he did quote unquote due diligence and he concluded that green was not green's work was did not merit being listed as a co inventor but could you get behind that statement a little bit more an explainer to me what his thinking was it wasn't clear to me how he arrived at that conclusion other than the conclusory proclamation that he had investigated and concluded that he wasn't a convict inventor sure sure i'm i'm happy to delve into that i would point to two pieces of the record which we think are substantial evidence for the board's finding here and i think your author actually reference and counsel and specifically he dealt with the licensing relationship he says quote i handled the licensing agreements between x y and cogent and i'm sorry i meant math or something a little more specific i'm talking about when we go back in time and miles is writing up his patent application and he's trying to figure out who are the co inventors and he decides sydell and l co inventors he sees green's name written on that table what is it specifically that went through his mind that he drew the conclusion that green wasn't a co inventor what was it at that time that made him decide to go ahead strip the green name off the table and go for the patent application that did not list green as a convent or sure your honor i think the nd piece of evidence will speak more directly to that and that piece of evidence is that appendix line eighty five and this is where miles testifies that he understands the structure of coaching at the time and dr that would have come from any other source than x y and through dr krahn to conduct the experiment that was in table three and he says that he knows this specifically because of the general practice of x wired to disseminate information in terms of protocols for that work and for dr krantz participation in facilitating what would have otherwise been an unsupervised situation at cogent we think that that general knowledge of the way that the relationship worked this particular of licensing and relationship i'm sorry research relationship between x y and cogent allowed the board to make a finding and draw the inference that when miles went ahead and deleted the green at all after abuse and which is which indisputably happened before miles talked to cran that he did so because of his general knowledge of the way that the experiments would have been conducted and the inventive knowledge would have flowed from x y to cran trends over has attacked a mouse's credibility and the weight to be assigned to that testimony but i think in the end it's important to remember that this is a case about competing you start it was the board's role to weigh that evidence and what it it's important to recognize i think what the board made explicit both at the outset of its analysis at appendix fifteen and again when it conclude analysis at appendix nineteen it recognizes that trans ova has some evidence that green made and material contribution in some way there is a possibility to read the record that way but then it says we also have countervailing evidence and consistent with this court case law that says we need to weigh all the evidence together and again this is a question on which trans ova bears the ultimate burden of proof and critically here the board finds that miles credit will there's an explicit finding because trans ova challenge miles of credibility below and the board acting within its purview says that appendix ten no three miles is credible and furthermore with respect to the idea that the deletion happened for some other reason or that there was some sort of nefarious reason for miles to go forth and manufacture x solar ship or that they were trying to deprive green the inventor ship in some way those are arguments that the trans over does not renew on appeal and i think for good reason that the board has an explicit finding again that appendix seventeen to appendix eighteen that would be pure speculation it says that the record is devoid of any evidence of impropriety so what you have here is miles as testimony appendix nine record based version of the events that unfolded rather than trends over his version that that is the board's right to do any to support it here by substantial evidence now i do want to address quickly  subject so the first thing that i would say is that i think that these passages need to be read in their specific contest for example at nine hundred and eighty eight dollars the statement right before the blockquote starts about whether or not miles was present for the experiment being conducted miles says it doesn't require knowledge of his entire background to know what role he played in performing that specific set of experiments the nd thing is i think you need to read the evidence as a whole discussions with another person in order to to evaluate the diligence performed by mr green well two responses or so when he says my understanding of his supervisory roles at cochon i believe he's referring to his other knowledge we don't we don't dispute that that that myles had a conversation with crane but he also acquired knowledge independently through his own dealings as  perform what diligence and then he answers my discussions with dr crime well well your honor i would suggest that you read down to the end of ninety four as well where he is asked specifically so your determination that mr green was a bench technician was based soley on a single conversation that you had with dr grant correct and he answers i don't think that's entirely correct and i don't think i testified that it was solely based on i understand the structure of coaching at the time and i understand what dr kra with respect to to the loo table three and green's role miles performed practically no diligence on on that he admitted that he never asked to speak to either clan or green he admitted never speaking they did not tell me anything about mr green's role that was developed with my conversation with dr krahn and my own knowledge of the people at cochin at that time but what people is he talking about he never explains that he admits he's not talking about mr green because he didn't know mr green he didn't even know mr green's st name he says cran called him and said that's david greene in the point of cogent as for the notion that greene was a bench technician there is zero admissible evidence to support that that comes straight from cran at the time miles prepared the priority patent application he testified again that he didn't know greene had never met the man had never spoken to him did not know what his education level was didn't know was technical background and had no idea what experiments he performed that said appendix one hundred and twelve and at ninety eight to ninety nine again i think it is important to focus on ninety eight and ninety nine because that is the last word on this matter that this is after he said well as a general knowledge of cogent and and ten down i said what about green and what about lou table three what is the source of your knowledge about that and i said were you there when he performed experiments no so you have no personal knowledge of what experiments  performed that's correct your knowledge comes from a conversation you had with christian correct that's correct and that knowledge comes from a single conversation that you have with dr grant correct again with respect to table three experiment that would be the source of my information about green's participation he's admitted everything he knows about green status and his role in the table three experiments came from cran that conversation occurred after miles stripped the greens name from the table three caption after he made a determination to not name him as an inventor and the board's reliance on those actions and its attribution to miles of having some independent knowledge of those actions mr kelly what is what is it that you believe that mr green did that amounts to being a co author co inventor of table three i mean do you have a specific conception in mind of what it is th contribution means sure i think was undisputed because even according to miles kranz hold hands greene is the one that perform the experiments think about what those experiments are what the conception is the production of practic of what all the steps were performed by green there's no conception really required here green perform the steps he compared the data anyone can do the math and say well that's seventy percent that's the entirety of the invention that's the claimed novelty of the invention simply looking at the results and saying it's seventy percent of control will green did that he did that and now evacuated together making it sound like green invented the entire claim he's the sole inventor of the of the pat i'm not saying that not and i certainly don't have to prove that all i have to prove is what we know he did which is performed all the steps of the experiment because cran allegedly told miles that  the steps here are simply fertilising eggs that sort of semen and then comparing those results i don't think there's much conception there i would say there's very little light between testified that dr krahn was the one doing staying concentration research well no i don't know that miles testified to that at all but i mean i think the evidence in the record is that the sole experiment directed to testing stain concentration is table three and plan attributed the data from that table to miles and thanks i'm sorry to green and thanks green for his permission to use that data again why would tran sure i would say the overwhelming weight of the evidence here a stylus is a green made an invention contribution to leue table three and the board's decision to the contrary was wife with errors which are pointed out in our briefs and should be reversed for the reasons stated there and ok thank you we think the parties for their arguments just cases not tak