reference you're alluding oh i'm sure they've been given the effect of date of its provisional application i do and why didn't you do that didn't why wasn't that your burden to prove all of reversal one way is a noble review of the legal application of the burdens of proof but a second way then it's awful look at the evidence that was presented because we didn't present that evidence tasted to show that the e prior cabinets application was a good record let me see if we were on the same page are you do you agree that under the stat seventy statute that you get the date of the provisional for purposes of determining whether the five fifty five patent is prior art to the one nine hundred sixty you get that day yes but only if you can show that the provisional application satisfy all the requirements of one twelfth paragraph and one with respect to the claims of the five fifty five anticipation once the once the prior art is put forward it is always the junior patsy that has the burden to come forward and answered it was a decision that's come back to set the presumptions are you saying but i take it you don't disagree that to the five fifty five and then when you put the three column showing ultimately you showed how the provisional disclosure related to the one nine hundred sixty claims and one we do have support and you pointed to the relationship between the conditional disclosure and the one ninety six but that's not what you need to do and that's all i saw in the reply that that is what we did we can we gave you goes always back to its effective date and so when the when the patent owner then the burden shifts into the pattern to say no it would say we have and we can and to date that that provisional application it could so we date the utility application and here's why the five five five provisional application is no good or it could come forward and say we don't believe it's prior art for whatever reason it doesn't anticipate they abandon the doesn't anticipate argument after the use of truth in the surgeon and they have tended to swear all the way behind in all these other types of patent proof perceives the junior pad he has to swear all the way behind and in at the time he made the presented that point charles well you say anticipate as well it's not good enough i take it for that that disclosure of the provisional to anticipate because that's not in itself a patent at least under here here's what's wrong with the written description and then we absolutely agree that the burden would return to your point and that there is some weakness in your chart that you think that doesn't matter because it was your firm to have to even do a chart in the first concerned about letting one of those second patent sneak through that it created the charge i'm not advocating for a bright line rule that the board should do all the work here but the reality is the evidence if we goofed if we presented it incorrectly is as  once that there isn't a written description supporting that thing that has never been their case they've never thrown it back and given any indication that that the original application wouldn't be good enough and i think that compelled if this  it's original application date barring some some argument to the contrary to the panel or comes forward with evidence and says it's not then and then it comes back to us and we have to make the case to convince the board or this body why we're right that didn't happen if you put it in the for the fundamental rules standard of justice holmes it makes a lot of sense that it's some point the patent owner would have to say i'm first because whoever is revered looked at the provisional and one limitation that i didn't see clearly at least supported between the claims of the raymond five fifty five and the provisional was the transparent interior layer that i overlook something in the in the provision the there that then all of the independent claims of raymond fifty five i think there is a difference between the raymond you had in the one nine six pat involving that transparent talking about the one ninety six now i'm talking provisions my question is going to whether the provisional had all the limitations of the claims of the five fifty five and i thought that limitation i didn't see at least express we called out in the provision i believe it is get yes i believe the board can do it yes i think that body has done it before and i think they could arrive at that conclusion i believe i believe all the support is there which is which is in the clone charge that we didn't put together such as and it doesn't say anything in there about whether or not there has to be no one to help support in the provisional ultimately has to satisfy that by but once you have mandatory language that treats the con a as the filing date wouldn't it make sense that that if we assume the provisional guess that filing date under the statute and then you would have to say that no it shouldn't be shouldn't have been entitled to that i don't know if it would about your brief they said that i would have thought that the logical argument you would make is you know what the full burden of proof thing it may have been a mistake by the people have when it it's harmless because we think the provisional doesn't date that we were operating from the terms of how we were evaluating what you were attempting to do when you first when your current claims were first being considered by the board right in terms of what the original filing date was for purposes of their need to annotate it and then you trying to do an update that you started with the date of your provisional right because you presume to that that was the date that the law would allow you know i think that's right that's the way i read the record too i think you use your patent i think was filed in september of two thousand and you've got back to june something with your provisions and then they came in with may with their five fifty five you came back with the reduction to practice in march march twenty eighth or something and then they came back with the provision i think best to waste it am i wrong in that case right i think my understanding or recollection of that is a little different we never that this is not a case dispositive issue was presented as that with helen initial briefs however there was a diligence issue that was also tough for them and there's also the issue of a contingent motion to amend that seems to think that where time is no longer really there's not much left of war time do you take issue with that i do take issue with that and i didn't get that sense when i read through to that the they were emphasizing more this carrying over idea as opposed to the section one twelve support as a right to support the claim however the applicant in the yamaguchi case didn't seem to take any issue with that either let me let me see if i can speed through an address a few things i think the work time case is not helpful here today that was a continuation in part in the board there are people in the board doing all the work but the board acknowledge that the continuation didn't have support all the way back to the beginning but it felt like it had to give the first date as the effective date in the air there was but you acknowledge it doesn't have all the support so that makes it no good against the boarders doing the work though on them to show that we are indeed first and undocumented couldn't i find it very difficult to believe them throughout this the history of this case that they've never read the the application of the provisional application arraignment and i have every reason to believe that if it didn't contain written description support it would not be kept a secret the issue one of the issues of they raised in their brief and i think it is proven through the cases this idea that their pattern is presum different issues here one is whether the presumption carries a clear and convincing evidence standard with it which it does in the case of an issue happens in litigation versus whether there's a burden of proof on you is sufficient attacking it and challenging the patent in which case the presumption is not as powerful but it's still there right if there's a burden of proof on here that means if you don't prove it to the country the contrary then you lose that route so the only way the burden i issues we would concede that there is an amendment issue but the diligence issue was addressed there was discussed in oregon or simply wasn't any evidence i think this body can conclude the diligence there that's a that's a dead issue an inconclusive remand salute for the motion to amend but in now you're saying they have to actually make the affirmative showing all you have to do is say we claim the provisional and that's all you have to do i think the way the legal framework is set for one of the prime one once we put forth a valid 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