a sweet spot that optimizes the properties of a claim dandruff shampoo so that it kills dandruff but still leaves their feeling clean among several other things the novelty of not obviousness of this invention is the creation of the same standard shampoo that does not involve trade offs in conditioning performance on the one hand and clean hair feeling on the other and anti dandruff performance yet again and in the other camp and the other properties that are set forth in the index values now at the board did in this case was to decide that these four specific indices were not actually required by the claims even though they say they are set forth right there instead before told us they were merely proxies for a shampoo and i put the board here today seven column two the president mentioned relates to a shampoo composition having the four index values quote as defined here and you go to the detail description of the invention of a five forty four column three more particularly these exhibit certain characteristics which are measured by four indices defined here it in that analytical methods that are set forth to pay fifty nine a column thirty three started there the methods to be employed definite article the methods to be employed for determining the values of these indices are described in detail below and this is followed by eleven columns of detail descriptions of the methods so let me tell you something i'm concerned mean that you're reading into these claims when you construct those claims just a lot to read into the claim constructions and i'm just wondering you're aware of any cases where something like th reaction where you're going to an outside test you're going you're saying how can this index is something that's determined by this standard that's used in the industry this is a little different i don't know if it's a control each of them is compared to control and the control is basically what was as good as existed at least in these inventors minds beforehand so the idea was to come up with something that was actually that in these various categories that what existed t that was enough for a clear lexicography in that case now just to let me go back to your concern about reading in to the claim which i think is really not what's happening here the specification is used exactly as it's supposed to be used to define and help the person ordinary skills understand what the very poor index values that are in the claims means but i want to make a comment about the what the consequences of the directors arguments in the board's holding in this case might be now the of technical that cave biotechnology cases that come before the court even if you could if you were to incorporate all of this and say well this is the active part of the claim this would be a relatively reasonably link play compared to some of the biotech cases but the inventors to be less specific in their paths to not specify as much in the specification and i would have thought that such an one twelve encourage exactly the opposite honeywell situation we talked about the honeywell cases this is not indefinite this case but honeywell is and the reason the honeywell was indefinite was that they set forth a particular numerical limitation that had to be determined by a test but they didn't tell human senses which might have some variability but again the control really should should be minimized were eliminated in the subjectivity we're variability there because it's just a matter of determining whether it's better than the control with regard to the particular field or if i could just wind up very quickly here and i'll give you some time back to the court we believe that the correction of this claim construction error resolves in this case  court i have a few points to boards construction was reasonable and i can walk through the boards opinion how we dressed it in two ways one it page seven it's said with the properties are definitely part of the claim and those properties are in can the bow and other program france's as well known properties and they dandruff conditionings com ability and anti dandruff again and the board also if that wasn't enough the board compared the earlier tests and proctor and gamble only challenge two of the wearing clauses as to not having a prior art organism are analyzed and the board also discussed the only other challenge wherein clause by p and she sees me to the board and that was the feeling clean property test and both kidney bo and p g do this similarly similarly the board said the tests were comparable both kidney boeing p m g use about ten people to run their fingers through shampooed hair these are feeling clean sensory tests done by people one other point i'd like to make is that invite region it's very different from the situation on page ten seventy seven of that case the court says that it's only looking to about thirteen lines of the patent owner specification there and some of the tests there was really specific really concrete and a lot shorter than what we have here here we have  matters that are subjective for example respectfully inviting the court's attention to page five sixty of the record in column thirty six underline thirty we have something called the forced time cur force time curve is generated the sum of the integration of these forces time curves is then generated and more subjectivity in the next column and coming forces within some range of the mean and column thirty eight about line twenty three we learn about an analog digital interface to few mutilate and integrate the force time data and about twenty lines down at line forty six we now learn about that we have to use the fisher's least significant difference procedure so we property tests in the prior art and we have a very broad ranges here in the claim with no showing of critic calories for any of the claimed ranges accordingly the board's decision should be a firm unless the court has any further questions say that the specific claim limitations can be read out of a claim and instead substituted with something that's comparable secondly i heard just at the end of my friend's argument here talking about how there was no proof dandruff prevention and generally did conditioning but as we pointed out in our briefs it's not just that they're not just these four index values were available to the inventors they were at the least forty six different qualities that could have been subjected to this claim in just two references the shouty and sorkin references and with forty six different choices that's a possible seventy  upper options with regard to what could have gone into the cloning over seventy trillion even if you told the inventors what you have to pay for it would still be over one hundred sixty thousand different options it was the picking of these precise for then the design and implementation of the particular limitations that are set forth in the index values that constitute the invention what you lever was able to do before the p t at once without any testing convinced the p tab that comparable tests comparable finding made on the same sort of argument that is being made here can substitute for applying the plain clean language that's not permitted under any case that i can possibly think of and the director of the board did not cite any for that proposition either finally what i heard was that there was no showing of critic the of the claimed ranges again if there was no showing of critic alan t of the ranges that was a showing that they couldn't leave or needed to make or that they needed to show there was not critical the claim tells us what's critical here because the claim is the invention and in this case i do not see how it is possible for the board's decision to be affirmed under the broadest reasonable construction because it's not reasonable i half of the claim out it's not possible certainly wouldn't have been possible in the phillip standard and the director cites no case that suggests that comparable tests instead of the ones actually set forth of the patent can be