mr johnson that's correct thank you your honor and may please the court i'd like to focus on three grounds for reversal of the board here that can't reasonably be contested on the undisputed facts they relate to the motivation to combine inkling deane's the motivation to combine england these points beginning with the first point the order here in concluding that an ordinarily skilled artisan would have combined deans with equal where dean's directly teaches away from that combination and it does so in the plainest possible terms a quote the injection rate should not be so high that the formation will fracture in addition sweat is the senate actually teach towards using it for fracking because it says if you use this in a method with a high pressure rate which is what the other reference is talking about that it will cause fracturing i think it's talking about incidental fracture your career your honor and i think it would be a classic line say to say that an ordinarily skilled artisan which the undisputed definition of an area where you want to avoid fracturing but if you're working from a reference where the whole point of that is to fracture and you go to this whole other thing about tracers and it says don't use high pressure and you know you're using high pressure because it will fracture i don't understand how teachers away at all well as i could distances away from using high pressure if you don't want to fracture but if you do it seem perfectly consistent with it i don't think that's a fair reading of the statement but i would note that the expert testimony on this jennings never denied the vet his testimony about the vast differences between water flooding operations and hydraulic fracturing and they are considerable and he was completely silent on the issue of the differences are considerable ok and the caution in diem's is directed to the water flooding process and there is no suggestion in beams that it wouldn't work for hydraulic fracturing then how is that inconsistent i think you have to read the reference as a whole honor and direct teaching like that where you're dealing with an expert who has the six parties they're not going to combine those teachings in the expert on that particular point is in fact undisputed the second basis i'd like to talk about for a verse of the board is that the examiners use the hall as an obviousness reference as a classic case of hindsight as well paul discloses the use of tracers to monitor mud circulation in a completely different field cannot be considered to be within the same field of endeavor merely because they relate to the petroleum industry there you have the facts where the court says we're not going to treat extraction of petroleum as the same field as storage of patrols here we think the same principle applies to the idea of drilling versus production through hydraulic fracturing in addition isn't that the question of how using tracers to determine how much quoting  material is left in an oil well after injection of materials into the well i'm sorry your honor i didn't quite forward is the one seventy five patent directed to addressing using  i'm then i quoted to determine how much of a given material is left in an oil well after and lip service after injection materials into the work it's it's talking about the method of determining the extent of recovery of materials injected into an oil well but you have to language is limited to hydraulic fracturing it's limited to fluids for hydraulic fracturing and so if you might take a good example from a different context if you had someone who came up with an invention and it was for a method of improving coils and the method had an application in the context of radiators and it had an application in the context of posters and and on reexamination the application as applied to radiators was related to things other than hydraulic fracturing obviously originally they thought they had an invention that have broader application but the specification is very clear that you're dealing with different different things here not similar context s returning to halt the background section of the patent but teaches that the as we discuss the field the invention is the turning the extent of recover materials injected into a well big you know constrains that all itself is not about recovering injected material all relates to monitoring with tracers the circulation of drilling mud in the well during drilling and the principal purpose of that is to measure blank time the secondary purpose also don't relate to the purposes of this venture so even if all were analogous art and we don't think it is it addresses different problems measuring how long it takes the mud to circulate mud dilution  situation where the specification talks about broader applications emitted by specification or you know saying written descriptor ect ok are aren't are now talking about applications that have been surrendered and that are really in a sense no longer relevant second has to be read as a big you know teaches in light of that amended claim language and i think that's the logical you still look at this written description and while we're doing that you still look at there is written description but i think two things are relevant on that point the first is that if you do look at the room description it's not like the written description says this is all one big happy thing where ever everything is similar it talks at length about the differences and the expert testimony is undisputed on the differences between these so parts of the oil and gas industry but edition if you look at the language of section one twelve talks about the specification the specification is designed to provide a written description that allows people to make and use the invention but it's that is the claimed invention that's relevant and so naturally if the invention that's claimed changes that has implications for how you look at the specification and that we think is that there are the build your can't look beyond the fracking field for our does it well there's a two prong test obviously for one analogous artie's one is the field of endeavor and the other is whether it's reasonably permanent that's the teaching of clay klein and several other decisions but because these these different areas of art deal with different problems they're not recently they're not just the person we think it's excuse me hindsight to suggest that they are look at look at what deans is dealing with it's dealing with a problem in the context of water flooding and it's trying to determine the saturation point ok once the stature ation the point is determined under under deans it doesn't matter yes three to five years of experience and this is undisputed right with the use of tracers in hydraulic fracturing not about the oil and gas fields a whole what's their  men i presume so your honor i can't recall what specific type of engineering it specifies but again you're dealing with different problems and so that remains a fact question dr willie that's that's true across the board is the claim construction it's true as to motivation to combine if you don't want to reach if you don't decided on the basis of analogous arc and that that is true on the level of ordinary skill even on the issue of analogous art there's much the dr really says that it's undisputed if i may have like to address one third point and it relates to the issue of secondary consideration in the issue of a nexus the the board sole reason for not considering corps evidence a secondary consideration is that it viewed mr hampton's testimony as opinion testimony that had to be corroborated and that was just a fundamental legal error the the testimony that mr hampton offered was based on his personal knowledge he was that he was course the former president the undisputed testimony that poor practice is everything step of the invention and if you look at pages a sixteen a seventeen of decision what does it say it says corroboration is required because this is opinion testimony it wasn't it was just a fundamental legal error and once you consider that then the secondary consideration these are specific evidence of the board pointed to that somebody would of ordinary skill the coated genes to fill out the hole and call yes clearly dangerous in the field of endeavor and of course you look first of all to so that's really the only difference there and then he teaches and the example he has an example for in cobb seventeen of the patent says it is simple to verify the effectiveness of these procedures whether you're successful and for action fluid you have the expertise mixing the tracers with all the stages you have the injection of the material into the well and then you have the recovery of the production fluid and then you're monitoring that for the presence of the trade  at that point you're simply in the lab you've written on your samples it's a question of ok what kind of data do i get and clearly incl is teaching you look for the tracers and he's assuring us that this procedure will be successful those tracers fall of the material so you're going to detect them question is what do you do with them angel provides repeated teaching suggestion and motivation pacifically stating that the goal of this procedure is to remove as much fracturing fluid as possible that he talks about effective for actually length and effective than saying you want to be effective to be essentially the total you want all of that material out there so he provides that motivation to do that and then you look for these other references such as deans or or hall or what have you and they all involve procedures where you're performing as tracer study for downhill procedure and if you're recovering the curial dane's doesn't just teach about you know virgin or what have you deans says that you do a tracer study and he says the sole purpose of the treasure study is for material balance purposes and the only thing deans wants to know about that is is how much food comes out that's the whole reason the tra study is being performed he also goes to some lengths to distinguish the tracer study from the procedure which he is doing he says not really material to the procedure it's not part of the procedure it's done with the procedure but the point he's making is you're injecting a fluid into the well you want to pick up an immobile flat face and carry some of that out of the well now the tracer isn't picking up that fluid it just like any other tracer in this field  small mouth you want to not be interactive with anything else you just want to follow the material out and so what these are saying is we're going to inject this fluid and it's going to carry this stuff out and they were going to do a calculation and part of that calculation is knowing how much of the injected fluid came out as well and that these going to soon that all came out that he said you know the best way to do it is to do a trace or study and just confirm that it all came out so he teaches that halt specifically teaches that you plot to trace your concentration over time and the area of that curve is going to give you the amount of the trace that is recovered and he says that isn't what you need for all is that specificity because i'm just a little  the court looked to the field of endeavor as described and they got the feel of the invention at the beginning of the path and we pointed out that all of these references that the field of endeavor in the core patents is the president ventured particularly relates to the method for determining the extent of recovery of materials injected into an oil well during the oil and gas exploration and production and production using chemical free all these references fall right within that description and then get the problem that is being addressed is in the in the core patents is that it would be desirable in the art of oil and gas production to be able to determine how much of a given material is left in an old well fracturing or any other operation requiring the injection of materials into an old well there are four other the definition of the problem itself of the relevance of drilling or other procedures but the invention subject matter in the patent application including the environment's function and structure of the client invention see woody sites there then the court has an added parenthetical comment regarding wood which is very interesting it actually states that wood the field of endeavor rather than being expansive was confined to the scope explicitly specified in the background of the invention ok for latches onto that language to look to the structure of the client invention and see if other structures might be applicable as well and by golly they add to the brushes so that is just exactly the opposite effect that's what we see here and in this case you know regardless of whether together the trace study that you use the procedures use they're all the same regardless of the procedure there is no there are no one expected or surprising results i defied of the core patents regarding  fracturing versus the other methods paths as we know from the title or about a method for determining the extent of recovery of materials injected into the wells and strangely if we accepted course made regarding corsicana contention essentially that apparently the word is required to take it face value testimony from declarations i will just no of factual corroboration warrants discounting the opinions expressed in the declarations and here mr hampton submitted a brochure which purportedly describes services but did not the concentrations of the tracer over time there was never any calculation of the amount recovered mr hampton testified regarding that report at trial pointed to the part of tracy concentrations over time and as has now been done i am in briefing here the only thing the course maybe going to get is the fact that in that particular chart that they show two curves show zero returns and t two of the two stages action of the fracturing procedure so as zero concentration the other show actual values so it's horse contention somehow that those two stages where there was no that they've indicated that spectrum has copied their procedure and pointed to a chart that the spectrum produces where all the stages of fracturing procedure work with so even in that case none of them w in our purity chief justice roberts said he never read a brief and said i wish there were the longer i'd like to do a few quick points and then i want to speak to judge hughes question about kinkel because i think it's very important particular of the same particular problem the poster wouldn't pick it up second on nexus we're talking about fact testimony here mr hampton testified from first hand knowledge of the tracer concentrations are used to determine the amounts of fluid there flowing of the record mr for wrote the founder of spectrum who spent fifteen years at core and testified to intimate familiarity with course methods didn't dispute this we would say no corroborated gratian is necessary but this but the brochure should have provided the motive to combine existed before angle dean says two decades before his goal haul is a decade before his goal the idea that you want to maximize fracturing fluid cleanup that's been known since the beginning of h fracturing we cite the record cites and page sixty one of our opening brief there are millions of dollars to be made in solving this problem angle doesn't disclose the combination why because he focused on a very different problem and doesn't i think it's