twenty one fifty  open up the hairs outside layer so the hydrogen peroxide can enter and remove the natural pigment from the hair it is conducted at a very high ph this was because it opens the hair and removes the pigment it has a side effect of causing damage to the hair because the hair has been swelled opened up to become somewhat rough in the prior art the process that were used to deal with that problem work after the bleaching treatment to apply a acidic or low p h solution the copying issue here as an initial matter i think it's very important to recognize that p tab found as a matter of fact and this is that appendix page forty five that l'oreal did copy liquids invention now l'oreal is the world's enough to a compass the actual specification of the patent suit both are in the record your honor i'm reading and yes to me they look to be essentially identical there might be some additional yes we believe for all intents and purposes they are sufficiently identical sister support arguments here now why did the p t have after making this actual finding reject topping it was because as dr dre mentioned the p tab said citing this court's decision an iron grip barbell you have to copy an actual product it's not sufficient to copy a patent now i think it's important to underscore this was not copying of a public patent iron grip barbell was concerned copying doctrine might get so broad if we extend it to every published patent because everyone in the world theoretically has access yes there has to be more than just a public patent and being within the scope of that patent and then you just assume the rest absolutely are good barbell said that but we do have more here what we have is we have a meeting took place in may two thousand and fifteen it's described around appendix three thirty eleven by mr kristol who's the head of liquid brain and we have and then we have we also have mr kristol saying this is an refuted that l'oreal brave you did that on public published application at this may twenty fifteen meeting and then we have l'oreal does contest the board's factual finding here we think that it's supported there is a contest on that but in terms of the ph have decision itself it in our view rested entirely on a legal analysis of what i regret barb and i think it's important to mention this court has held in other cases and i would mention the police find as well as the specialty composites case that copying of a patent can provide evidence of copying so this court has gone that far in those cases but this case we think is a for sure for most cases because this is not just copying a public patent the only people in the world who have access to this application in may two thousand and fifteen where l'oreal liquid and the p t o do the world thing and what the policy could be behind the idea that the board may have been getting at is that there's easier access to a public patent go on a website look at the patent than there might be to a product where you have to actually acquire the product but frankly if it's a publicly available product anyone could acquire that as well and i believe this board failed to do is understand the relevant legal distinction between an unpublished application and a public patent which this court again in deploying spine and in specialty composites involves a public patent and we think our case is even stronger in the that there's a stronger inference of access and copying that doesn't make copying such a broad doctrine has to apply to every public pat and i think that that is a legitimate concern so if it were easy to to have access to any going on a website and looking at the patent or any public product by just going in looking at buying a product and reverse engineering you should have to show something more but again we have done that both because it's unpublished because it was handed across the table  this may twenty fifteen meeting and because l'oreal launched its products after some eight years from the prior art that it says is so makes this invention so obvious and if if your are will permit me i'd like to just turn briefly as you another question about c correct matter there is no product produced by liquid or its licensee all the plex that uses malaysia acid so there was no product existed to be copied so that the only thing that could have been copied was the technology as describe in the patent application but to the extent i'm wrong about that the board was referring to nexus and the word nexus doesn't really even appear in that in the board's decision so i'm reluctant to make that inference but i do want to point out some strong evidence of record for nexus and i think don't take it from me take it from l'oreal itself that appendix twenty nine zero eight where in connection with its own product it talks about malaya acid having here repair effects and so l'oreal itself has made this link between mala acid being used at the same time as a bleaching formulation and having this beneficial effect that's the nexus and i can i say something if there isn't a nexus just assuming for a minute that we created that written description problem right now because if there whether there's a nexus between this parent application and the claims would be the same question is whether your current patent application has written descriptions or claims right since that specifications are virtually leg acid in a bleaching formulation at the same time as the bleaching treatment and the specification in the four one nine patent and l'oreal's advertisement and to mention one other record cited sample for in your specification yes yes yes as well as as well as the claims of quite clearly claim one is all about a method for bleaching here that's the very first words now i think it's important that we can't we obviously do focus on copying we think that's legal error it's not even implicating the substantial evidence standard because it's a legal error here and we don't even need to go back to the board either for factual findings as we already have the factual findings but is it legal there do you think that the board articulated a new standard with respect to copy and i think that the board misunderstood iron grip barbell and so i would respectfully suggest yes that the the board gave an incorrect reading to iron grip barbell which if it worked her wrecked would bring the standard in conflict with the police spine and specialty composites as well as cases involving process patents and we've cited institute pastore and the little case on that point because our case is not even a product patent it's a process patent so you couldn't infringe it but it's going to page forty five of the of the record for forty five inch thirty of the and the last paragraph i don't know if this is one of those storms reading before but if it is a i'm sorry for the repetition it says we are not persuaded where th that that appears to be a statement that reached a point in the standard of copyright in that you can never this type of evidence can never be copy and that is evidence of position is that to the extent that is the standard number one we don't think it's supported by iron grip barbell read in the context of all this court's other cases and number two that that's an incorrect standard it would do it would drastically narrow the copying doctrine to always require that you've got a product on the market you took it back to your workshop and you did some sort of reverse engineering and if that's not your argument then you're out of luck you can never present copy now very briefly i want to i want i would like to reserve some rather rebuttal time but i'll go into it for just a minute prior are our central point is that you're talking about high ph processes on the one hand and low ph on the other we think that the copying certainly informs that but we think that the board also lacks substantial evidence and we may have other some other objective indicia arguments as well one is that the long felt need and i think that that's very factually powerful in this case we the most recent prior art was in two thousand and eight this is a long felt need that was felt for decades to consider damage caused by bleaching and yet we don't have the liquid invention until twenty fourteen there's a long passage of time time there was a dispute over the exact priority date our position is that the board did not follow its precedent in polaris wireless in terms of what the petition has to do in its petition and with that unless the court has any other questions for now or serve ok thank you your question as well about how it is that you can't you can't prove copying just by showing infringement and i regret barbell does in fact say that there needs to be this is an issue that's highly disputed in the related discussion case but in this case liquid is alleging nothing more then allegedly access and then also alleging infringement one point in in regard to your point judge show about nexus is the board at appendix forty four did not find that the l'oreal products are within the scope of the claim and therefore as a matter of paragraph we do not conclude that those products necessarily fall within the scope of the claims ok so the the other point with regard to the board's finding on copying and it's it's the reliance on iron grip barbell we believe the board's argument or position here was that liquid failed in meeting its burden of production on identifying with any specificity whatsoever what was copied there is just a and this goes to the board's comments that it was the quote patent invention or quote technology generally that was copied it is under the gal derma case it is liquids burden or the   that are that are in the record i think that the cases hold that there has to be for there to be copying there has to be some some actual specific i think that it could be so so i know you don't agree but hypothetically it seems like that the board member finding to kind of support that here but got rid  they believe there had to be a product it said l'oreal had access to this to this private pad replication and that describes the process and maybe it didn't make this the next finding that it could have or should that they loreal copy the process but hypothetically if that's what happened you got out of access to a private application that described a specific process and there's on the patent application you're saying in this case the patent never hasn't shown anything specific that you copied just that generally they had that you had access to the what you came up with ultimately my imprints that but that's different than hypothetical which is you had helped the case or you had access to the application and you did actually copy a process there at it in that case wouldn't that be evidence of copying specific process from a patent application that nobody else had access to ok and and i think maybe what i'm missing here in the hypothetical i apologize i'm not trying to matins your question is are we also assuming that there is ready access plus maybe internal documentation from the warrior all that says look at this process here this is pretty good let's cocking it isn't that copy well in that hypothetical copying and that it should have looked and seen whether the evidence here is supported by the oryol as opposed to just an inference of copying because of access it didn't make any of those conclusions  i think employer on sanity you only have comping if it's copying of a product i don't think that we would even need to get to that question in this case for several reasons one of which is as i said before i believe that the board's reference or discussion of copying the technology in general generally shows that the that liquid failed to meet its burden of production on the secondary copied in this case is irrelevant because it was in the specific product it was something she was leaving the application and if that's wrong the seems to me that you believe you seem to that that that doesn't matter why loreal did it they were doing it a month ahead of time so you know how the what they already have your point as i understand it is that we shouldn't have to address this legal error by the board correct ed you think that there's sufficient evidence a record for us to conclude that the born heir and finding that you didn't copy but if we disagree with you just hypothetically if we disagreed with you you would agree that a minimum there needs to be  so i think there are several reasons why this does not need to be remanded besides the fact of the at the board or the board and i apologize that liquid did not satisfy its burden of production and the burden never shifted to l'oreal to refute that on any of the either of the two secondary indicia positions that it's a long felt need which that we're just talking about come right and copying so and either of those they  did not have any information in front of it if the board says in its in the final written terminations that we cannot consider evidence of copying if what was caught beat was information or i think that there is there are more variables that music means you cannot be a method which is not a specific product if you copy a method that can never be considered as if you know  requirements are met which they aren't here for example beat of the failure to show any actual evidence of copying and as i say lord already have and so are you essentially arguing that the word even though it might erred in the is legally described the secondary consideration it still can be or because there is insufficient evidence being to provide a secondary consideration because all we have access to patent owners nonpublic information rather than because of petitioners own independent development isn't that a den a fine a specific thing that at least at least the board's thanks was copied if i understand your other arguments i just application and beyond that though absolutely liquid made this showing satisfied its burden of production in the p tab and i prefer the court to appendix thirty twelve and briefly read it this is mr crystal's declaration concerning the meeting and may twenty fifteen this declaration was not refuted by l'oreal i told petitioners representatives the cheaper alternatives to all the places active agent were contained in the patent application that i earlier given to mr allard britishers representative spoke with dr presley and him questions miss a large ask how we determine which compounds including malenka acid were effective and which were not this is important because it's not just access yes they had access but then they asked questions about it they were very interested in this point they asked questions at the meeting and this is an access plus case absolutely and we believe that the board looked at all of that looked at this declaration which was the key evidence of copying and made its finding it page forty five the judge still referenced now there was discussion about whether if my leg acid was in the prior or how is that evidence of secondary consideration when you're considering the same thing malenka acid was not in the prior art in the way that it  in the four one nine patent let me try to explain why acid in so there's two basically the four prior art references and there's two on the one hand into on the other in both mention the lake acid but they're not using it for hair repair the key distinction in the prior why those never came together is because you couldn't mix the prior it did not teach mixing a high ph process which is ogawa in kit i bought with a low ph process but even if the court thinks that the evidence is somewhat inact i'm sorry i didn't mean to open up the obviousness argument i said tell us you might agree with the war that there's strong evidence of our obviousness and that strong evidence includes the very you know thing you're talking about was copied why is that relevant secondary i wish we would submit that case cases from this court such as millennium pharmaceuticals cited in our brief require the court always to consider secondary consider issues before reaching it in terms of a determination of obviousness but we also respectfully in the one element and i know this is all hypothetical you don't agree with all of this the one element that you alleged them to copy of late house that is in the prior are how can that ever be a strong enough secondary consideration to overcome the professional case well taking the hypothetical if there is a very strong crime facia case it might be difficult to overcome it however we don't think the case is so strong and i hesitate to resist your honor hypothetical but i have to just make clear my position we think that the prior art is far from clear on combining a high ph process and a low ph process given that at best for l'oreal eckel fois on that issue copying had to be considered it was considered as a matter of fact by the few cabs