construction so what you're doing is you're saying that the board's fine construction is wrong in so far as the law said that and on the bottle measurement would be within the claim  correct and if i understand correctly that the board found the construction didn't make any difference with respect to the claims perhaps other than claim three is that  among the zones well so you'd have to say that the board's conclusion that under your plan construction the ending was still obvious was not supported by substantial evidence that that's correct primmer challenge the only way that they fisher was able to get there was to rely on what was found in all the references which was that there was evidence of the residual require this in this case this is a prayer will you help your heart  with this point we would not lose because there's no substantial evidence to find their no findings and find a written decision with respect to maintaining those numbers about you know often point i'm just saying in terms of the filling of that sterile package with sterile food being done in a sterile environment these kinds are directed to how to set up a sterile environment and maintain a machine that can achieve the sterilization getting the high kill level using enough them relative levels in the system with prior  conceptually now the point five is how many of those drops can remain in the bottle before you fill it and it has to be us and point five people yeah it's an entirely different concept from maintaining establishing zones with partitions establishing air flows throughout the zone having different pressure but also the migration of stereo it goes in different directions that's what these conventions claim and the claims set forth he characterized to be the nature of the invention disclosed in four five at the context of the prior art here for the patent ability just as critical mr fisher pointed to different zones partitions and air flows product and also teaches partitions just like the later for three five patent specifically to allow the packages to pass through without allowing that sterile and mixed also to pass through and in addition mr fisher noted the airflow regimes and the shoulder reference discusses the same airflow regimes the general idea of having a higher pressure air in the filling zone so that the air tends to go upstream and keeps things from migrating downstream but specifically that  line thirty seven to forty two so in the context of the prior art which shows that the general conditions claimed and students that claims were known the idea of having a higher concentration in spring just laid out that the mechanisms used to achieve these general conditions also weren't known from sholay so against that backdrop where the general conditions were known and the mechanisms were known patentability question is what it was obvious alternative analyses conducted the analysis under the construction that it adopted which we believe is correct which is not limited to airborne concentration then the board did specifically analyze obviousness under the airborne concentration construction as a whole reason for the result effect of parameter analysis and no reason for that analysis under the board's construction which just looks at what you've got thirty percent concentration sterile and being sprayed in one zone if you have less than point five parts per million residual downstream that's a six hundred thousand to one ratio that you know under the under the board's construction it's very straightforward the entire did not result silent as to the maintenance of and in particular ratio and when if you construe the claims to require an airborne concentration but that argument is wrong for  a couple of reasons first the argument really is of no moment given the result effect of parameter framework under which the board considered the evidence under this court's precedent and when the evidence shows that the general conditions claimed in an atom were known and then and that the mechanisms to achieve those conditions were known then absent evidence of unpredictability or summer and i'm sorry of critic ality or some sort of unexpected result those claims are obvious it doesn't matter specifically what those numbers are that framework says that you know as a matter of fact when and these general conditions are known you don't get credit for a patent just for quantifying one of the values that fall within a sort of you know known normal operation of these these devices i'm not sure that's true i mean  needed to achieve the kind of two ends of this machine one of the results that needs to be achieved is adequate sterilization the prior art teaches you that you need to apply for example in sholay a thirty percent concentration to end of the system you also need to maintain that residual level to achieve the f d a compliance and so it certainly factors into the fact findings made by the board that led them to conclude that this was result effect of parameter that maintaining this ratio mentioning this concentration was known and it was results effect of maintaining the residual concentration less known and was a result effect if the ratio logically follows regardless of whether the art characterizes the two as in a specific relationship or not and you maintain the two numbers the ratio is also maintained ratio naturally follows and the in making this finding the borderline in part on the testimony from dr help who testified that it would be common sense to maintain the sterile and concentration that your spring because you want to common sense assessment argue that you cannot use common sense to provide a claim limitation it's missing from the prior art but that's not what happened here the limitation is present in the art from the teachings of the stron concentration to be applied and the residue to remain dr hellman's testimony was simply how a person of ordinary skill in the art would interpret those teachings but in addition there is also nothing that the important some of the important concentrations in the systems are the concentration that used to sterilize the bottles the concentration of the sterile and that contacts are vital to kill the bugs as well as the sterile and less than about thirty five percent and ensures that the bottles have less than about point five ppm of residual hydrogen peroxide after each bottle is sterilized the board's construction accounts for the very use of  concentration terms throughout the patent specifically the words construction also accounts for prosecution history at one point during prosecution steuben attempted to argue over a prior art reference  which had some disclosures about the residual concentration is point five part per million residual and in a response to an office action steuben characterize that as a sterile and concentration level so clearly during prosecution steuben did not consider that term to be limited only to airborne concentrations and in addition the board accounted for students infringements intentions in the parallel that occasion in which  the five to one claimed limitation but the premise for students argument is incorrect so it is not separately argue for the patentability of claim three it's simply argued that the it's not an ability arguments for did mention claim three in their response correct the i think that the mention of claim three was effectively that the sort of tacked on after a discussion of the right but that so that is simply an extension of the argument that it had made before respect to the other clients but i think that may be a more important point is that the board's results active cram is not tied to any specific limitation in any specific ratio under that analysis the general conditions of the claims were known in the mechanisms to achieve those general conditions were known and so the had testified that the concentration of sterile and sprayed into the air would be yet thirty percent and there was testimony from students i've heard in a prior proceeding explaining that when you are any of those things sufficient to sell a ten thousand to one ratio required a claim three yes i'm out of time but if i remember spawn and the fact find anything relating to that consideration of students expert who analyzed what happens to the concentration of the liquid sterile and when it's turned into a spray and for that expert according to his calculations determine a thirty percent concentration of likely sterilize would be about twenty nine point seven percent concentrate when turned into a spray the reason is that you know air being so light having so little mass barely i lose concentration of this tournament at all so that is evidence that supports the board's  issued before this court's guidance in magnum oil and runs afoul of it in several respects most importantly and critically i believe is that the result effective cram it or theory that we're to satisfy the f d a standards that's in my view what they meant by that but that wasn't the challenge in and what the board did when it did not question whether such challenges the question of whether the ratios we want it would be obvious to use these would lead you to reduce that so that you out within the five to one ratio or the ratio of  owner to come forth with evidence of critic ality and unexpected results where that is that burden should have been shouldered by nestle in the petition to show that there was no critique audi and no one expected result so