using a hard pen asphalt composition to obtain a trackless tack coat with good binding properties but that is exactly what the boy jeezy prior art reference discloses w the the day he claims disclose penetration value and softening points ambar d c does not disclose any suffering points is that correct not expressly ok so you've got apprised of that error he said that doesn't change the conclusion of obviousness and obviousness was always the position so you agree that based on the record as it stands now or as it stood after they came in with  after after that with a new and different theory for this case isn't it true lenny it's no it's really not a different theory the position that colors took from the get go was that the claimed invention was obvious under section one hundred three if you have the same combination of five references that there would be an expert i thought you just told me a few minutes ago that your theory was inherently and based on and you pointed out based on the evidence that the patent brought forward that inherent argument is no longer viable and you agree with that that was your theory no less it was an obvious next case then it's an obvious next case now only argument that was made it was a one or three argument the result which ok was all making an argument now about overlapping range or something like that right was that argument ever made in the petition inherent see argument in both cases you're arguing that because all or most of the board said it would just be a small fraction of the course of the math error that would fall outside the claim granges for bar d faults in both cases you're saying all or most of the of the softening points for the board d c s faults would fall within the claim range right i don't mean to me that seems to be a critical difference here in that you didn't supply that argument and you didn't supply the expert testimony you were at lying on an inherent see him when that was proven wrong yet you probably have a pretty good argument on the other point but the board didn't institute on that ground how could we find it incorrect for them to find a way for well the inherent c argument was actually a higher standard that had to be argued just you made yourself a hard case here by not arguing the lower standard of what a skilled artisan rebarbative but i mean in retrospect how do we unravel your choice on that let me give you that it is obvious but let me give you an analogy if you a civil case where a preponderance of the evidence is standard and you're so sure of your full of your facts and liability you argue well the defendant under a reasonable doubt standard would be libel and it turns out the evidence shows it's just a preponderance of the evidence well you've set too high a standard hopeful that analogy is but i would think even there if it bit you were a burden to show something and you agree that the burden is x and you want to hold yourself to that if you fail if you fail it even if you might have had a logical argument for a lower your honor the it's not materially different than the two like three or four logical steps are they say doesn't keep stopping point you then say there's some mathematical form of that someone could use to determine the softening ranges for for the asphalt and that from there you c ordinary school knew you are which would predict what they would expect reasonably expect there's lots of language that supports obviousness even if it were not in the petition at the time that dr king was deposed before the response was filed by my blackledge and he learned during his deposition that he had made a math error he said that doesn't change my conclusion on obviousness so they knew when they were when they  filed their response that obviousness was at issue they extensively this is blackledge extensively in its response argued about the obviousness of the softening points of course they said it was not obvious but the extensively argued obviousness at that point if it was not in the petition and i maintain it is then then they they waived their their position that we can't raise it because at that point we have a right to rebut we have a right to rebut the obviousness arguments that they may in their response and they didn't they didn't after we did that they didn't move to strike our reply they didn't move prevents the board from saying no these are too late it may be that if the board would said oh well this was good enough close enough they're not having any due process violation because they knew about this argument went on to decide that we wouldn't find it era by the word rules and we have said that more than once and it has a rule that you can't raise a new if you in your reply that you didn't put in the petition and the reason they do that is that when they make a decision and they want to make sure that it is based on all the best a and the other side says well we're going to address argument exit clearly wrong we think that in a come back and argue argue b which they've way but we're still going to out of the interest of our clients and diligence to address that that doesn't mean that the board can't say we're only going to rely on ebay because that's a race i mean they're not conceding anything when they when they do the extra work to rebut an argument that isn't in the case just out of caution are they well the the board's job is to cite cases and working opposite side i think that that is presented to them and i know you disagree about whether this was presented or not but just assume that we don't think this other obvious siri was present in the petition if that's their job to decide the issue presented to them and they say we're deciding this you're wrong do they have an obligation to search be on the record and find other reasons to invalidate the patent i think we made it clearly pretty clear that they're not obligated to and in some instances they're not entitled to well they don't search the record the parties both sides presented their positions of obvious or so it was it was fully developed and if i think you'll agree that the board could have entertained the obviousness argument that was being made and if they could have then they should have there's there's there is prejudice to coalesce here because of the a stop will provision that they might not be able to raise this in district court but there's no prejudice to a party that argued it was fully developed it was not denied any opportunity argument and everything was there for them to decide there was no need for them to refuse except that they easily got rid of the case from their docket by saying well we're not you could consider it but they did consider they found that it wasn't properly grading they found in the alternative that even if it had been properly raise they think that with respects and with with respect to the in re peterson argument they they never said  it wasn't raised and therefore were not decided but in the alternative they didn't say that they simply addressed it on the merits i think they even used the word on the merits and and that was in her own use decision both that it discloses ranges in fact the patterns themselves disclose that if you have a hard pan asphalt with a pen value of forty or less you're going to have a softening point of at least one hundred  forty degrees fahrenheit and here or daisy discloses ten to twenty ten to twenty it's almost a sure thing that you're going to have way over one hundred forty degrees fahrenheit as the softening point page twenty six of the decision to the extent petitioners arguments and give us a change so sorry you are excuse me i'll slow down ok to the extent arguments in the reply and at the hearing that the claim to range of softening points is typical or expected are offered as an alternative theory of obviousness in lieu of inherent see those arguments were not adequately developed and presented in the petition they went on to say that what little you gave us was of no value as well but so i think this court knows that's typical of a trial judge doing a belt and suspenders didn't have the right to make the argument and mark if you made it was no good as well that's exactly what it is and that's all it is it's proof just like it's prudent for me when in the deposition their expert comes up with this new obviousness theory i asked some questions about it probably four or five pages because i'm hearing it for the first time and i've got to protect myself but that doesn't mean i've waived what the rules spell out this is an abuse of discretion and the next point i want to make and i've only got a couple we have to remember this argument is typifies that the petitioners of these cases never want to talk about the patent they're always talking about the asphalt and they always forget to say but it's the tax code and the properties of the pure tax codes on the road that counts and that's not the asphalt that's something different and typically because this is not our only case we always hear asphalt asphalt asphalt and very little about tackle because those are the properties claimed in the invention and all the claims of the patent i've got just a couple of other points and i'll be done one that the new argument theme is one paying attention to here because we faced a new argument when it terence he blew up and so we came up with this obviousness argument which was not well pleaded that was not timely they then came up with the ranges argument and we have another new argument not to record this you can't test the properties of the tax code the way everybody does it in the industry even though everybody agreed our experts told you what the test is the test is in the patent so you get another new argument the bottom line is it on the merits and so were appealing from that decision we've got a situation here where if you follow the bar d z prior art and you do it to do and you are extremely excuse and you're going to reach the promised land you're going to find you're going to make a tackle it that is trackless and has good bonding you will inevitably do that because of the extraordinary skill in the art that the board found in this case and and you're not going to you're not even going to measure it in fact this unmeasurable the experts for both sides agreed can't measure the real logical properties of the cure tackle what you're going to do is you're going to test it as board easy told you to test it and you're going to reach the promised land because you've done the same thing that that true even though it's it's unmeasurable according to the experts for both sides and this patent is going to penalize somebody who follows the prior art and i think the court should not permit that simply because an expert made a math error and soon as was and the other side knew that obviousness was the issue was fully developed the board could have decided it and they should have decided it this would be a gross injustice