potential as a simple elegant and powerful tool for editing genes in just months six different groups confirm what you see predicted in two thousand and twelve which was a crisp forecast nine could clean d n a you carry out excels also acts including road use only conventional techniques and commonsense to achieve that predictable result well i understand and i understand you are under substantial evidence if you mess you can convince them of  legal error so on the question i mentioned the word potential but the board pointed us to statements testimony declarations that used words like myth very frustrating weren't the same it's not known whether and various contemporaneous statements made at the time if you know the engine to point it to the fact that there was no reasonable expectation of success how do we get around that so i will answer honest question directly permit me to make a framing point first to find the way that the question of obviousness here including the sub question a reasonable expectation of success of course has to be decided on the basis of the entire record and the question of substantial evidence even if you're at the question of substantial evidence is based on the record as a whole now we think there were legal errors with respect to evidence other than the statements that would require of a critter and we think you have a verse on this record but let's focus just on the statements now and then i but i will i do want to focus on those others just because i think they're critical with respect to the statements i think a couple things to bear in mind first we think that with the way that the future created those statements i may agree with you but that doesn't mean there isn't substantial outcome evidence for the outcome the other side found the case you cited the fact was decided the other way and our decision affirmed that that is a major statement did not require and let me try to explain why first that standard the question of what whether inventor statements how you treated better statements in light of the prior art as a whole that standards got to run it's got to apply the same way no matter which direction it's running in and so i think it i guess i don't understand then that and i just and then it seems to me that an inventor statement made contemporaneously as a piece of evidence and it is a piece of evidence weight with all the rest of the evidence i don't think i understand why roland you are giving it and whether it's something diminished as compared to other evidence or more significant as compared to other accounts i don't think i understand your position that it has to play the same role no matter whether it supporting the outcome or and we agree it's just a piece of evidence and it gets back to the point of why you can't consider you can't resolve this case just based on the statements alone which is i would submit pretty close to what the people did if you look you'll see at the end of its discussion of the statement or the statements persuades us that there's no reason why expectation of success here but then if you actually think it's important to remember who has the burden of proof in this situation this is not a case in which is coming up to you from the district court in which the pattern is found valid and there's a clear and convincing standard and the burdens are not the burden was on the road to show the absence of a reasonable expectation of success and if one looks at the statements like that are the problem for you is that you have it turn out to be easy to do the question is was the perception of the skilled artists and at the time it was done and so you're trying to give me a lot of x post evidence which i'm not saying is irrelevant but the evidence of your very inventors at the time isn't consistent with the relief that it was going to be done easily and that's what the p t o had in front of it took three points if i may first if one looks at the way in which the peak time analyzed evidence in each instance it took a specific quote and it said this does not convince us that a reasonable expectation of success exists you can go through that three every single time that's what they did in other words they put the burden on us and not a road to disprove that's point one point two with respect to those statements i think that really the only fair characterization i can go through in one of the time if you are wants me to is that they range from neutrality and uncertainty to positive there isn't a single statement by anybody who says we don't think this is going to work and then take the bottom like statement for example just to sort of relate in iraq just because your time is running out can i move us off of the statement issued by your i'd be delighted to do that me at least is in the obvious to try context in their discussion on page twenty five and how what they say of its price compared and then there's some other stuff about their juxtaposing motivation and reasonable expectation of success sort of suggesting if you're highly motivated then you're not there's no x reasonable expectation of success which is kind of something that i hadn't heard of before so if you want to address those two might have others as well yes let me of what the six other groups did not just that they succeeded in not just how fast they succeeded but how they succeeded what techniques they used was irrelevant to the question of reasonable expectation of success they said it mind to say that this evidence is irrelevant i would submit respectfully it is the most relevant evidence and going back to something judge moore said earlier actually say it's irrelevant irrelevant that's the that's the quote from wife x the relevant on page forty seven thirty two that's exactly what they're saying they say you see points because this body of evidence we don't think it defeats a reasonable expectation of success it's irrelevant what an inventor thought before the inventor carried out the i'll show you the two other places if i could and with respect to this the prior sentence which is not a quote which is the p tab saying the ultimate results of an experiment do not indicate a one of ordinary skill in the art world thought before experiment was performed that's wrong in two ways first that if you look at a color cam martin you you look at international class you look at trustees of columbia they all say that that is strong evidence that must be considered when pressed so that that's just an error on its own terms but there's a more basic point here which i think is absolutely critical which is that we did introduce this evidence just to show success with the speed of success we introduced as evidence to show that nothing more than conventional techniques and commonsense were needed to succeed and with respect that's not post hoc evidence that is the best possible contemporaneous evidence of what persons of ordinary skill in the arts in two thousand and twelve thought all of them took off the shelf conventional techniques techniques that the people have itself on page thirty five held work inventions techniques known to persons of ordinary skill only are applied them without any modification of any variation any need to try to address at anticipate a particular problem to achieve success for salts that is how we are for evidence it goes as we call it kemp said the level of knowledge of a person of ordinary skill in the art which is the baseline for a value within a reasonable expectation of success that's just a clear absolute error and i think the other the other legal error i think this is clear as can be is the p times ruling that it was going to require here specific instructions particular to the implementation of crisper task nine in the carry on environment that's just a flat out violation of the will set forth details are exactly what tradeoffs are said that you can't do i think you can find those expectation of success are precarious are cases that are applying the teaching to suggestion or motivation test and the only one that isn't this a case where there are specific prior art of past your case pointing teaching away and so i think really what you're seeing here is what the what the people out there is and i'm looking at these cases relying on cases that now evolve and an approach that the supreme court has rejected and divining a rule that says basically what we're going to do is look for specific instructions in certain situations but that rule really has no basis and it has no basis in the law has no basis it's case law and said well cases are going to apply in certain circumstances but in other circumstances we go to a pallet of the circumstances kind of analysis but i really think that that's completely inconsistent with what the circuit said this case is nothing like that situation there are a handful of of conventional techniques the ones that you have validated as within the knowledge of person or skill you want to page thirty five of the order that the the new clay targeting the code on optimization the direct injection those are the exact techniques that the road use and no others and the exact means that every other one of the groups you moved and that's how a full contemporaneous evidence of exactly what a person the skill ordinary skill in the art thought would be needed to solve the problem of trying to introduce crisper cast nine into carry out excels i think it's quite striking if that i would urge the court to take a look at this shark which appears in volume seven of the appendix you know and it's in particular pages fifty one seventy seven through fifty one seventy nine if you look at it you'll see that you just kind of go down the list and would have been worried about these unique conditions but what are what are the reason i think it was such a grave error on the part of the p t happened not to look at this evidence as relevant to the question of expectation of success is that it refutes that inference it show she was confronted with this exact question when there is hard did not vary the parameters did not try to design around this hypothetical problem inside here the hindsight isn't that can tap analysis taking an expert who several years after the fact that well you whether it took what they were calling innovative techniques to get the invention but that is not the proper in korea it's what a pose a thought at the relevant time before the experiments were conducted we are helping to pay that every design their tests with that's an appendage paid eighteen it's not just the no guarantee dr phil wrote an article contemporaneously with the gen twenty tell publication that said the results of other systems have been discouraging willow this thing might get beaten i'm no guarantee indicates an expectation that's kind of the burden is on you all not on them and then they go on to say correctly on no they're not the absolute predictability at best dr carol statement i guess they're kind of the statement that there are no guarantees highlight some specific reasons why crisper system might feel that's the only that goes on remains the surgery low in most cases so they're not just going to be no guarantee about moments and when they say that his statements are in this article they're referring to all of these things he lists out three major one they said no guarantee about toxicity to the cell arning chopping up the getting chopped up for the system and that the results and other types of systems like this have been discouraged only low that is telling the remains to be seen but it is clearly well worth a try tri state that's right and he's just told the readers that the other ones have been worth a try there's been many systems have been worth a try and the results of those he points out and this is that the board considered his statements in the view of the entire record here including the statements of the inventors the seed were people thinking this had an expectation of success they were really the care article in its entirety and said we think carroll had no expectation twenty twenty the availability of only generalized instructions and evidence of failures that indicate the opposite so they say we look to general instructions as well and they above that set specific instructions to be relevant and they then spend ten pages going over what the record has been using general instructions and they make a finding at appendix page forty five and forty six based on the are named based systems that the failures have demonstrated there's no expectation of success they are applying that standard how have prior systems worked with generalized instructions every single army based system of record has failed that's their find even that's because they've knowledge under this court's precedent you can use general instructions but in this situation it's a fact finding it found that all fail so they did not ignore general instructions they looked at them every general instructions the other side put forward turning to the evidence of simultaneous invention the p not dismiss that as being legally irrelevant of the turn to the appendix page nineteen and they say that you see alleges that because of some research groups were immediately able to use it there was a researcher taishan success and they go on and they say regardless of how many groups achieve success in carrick self we are not persuaded  success indicates there was an expectation of success before the results from these experiments were known they don't say they're relevant that they actually are analyze the sea in this situation but this court has said  success of his or her own experiments is necessarily a reasonable expectation of success that indicates obviousness where this is true the requirement for recent less attention of success and the contents of subject matter that would have been obvious to try would be rendered meaningless so i isn't the board saying there that they are not going to consider whether a scientist believes there's reasonable expectation is that essentially because every scientist does or they wouldn't take it i don't really understand the  four yes you're right i meant property for your honor that the argument you see made below was that because the research groups undertook the experiments they necessarily had an expectation of success that was their argument they were coming with any evidence from any of the groups and said we believe experimentation but before that there was an expectation of success their argument was we don't have any evidence on that so we want to conclude p tab where they were they saying that what are you referring to here i guess  they say you understand when the p t o uses the word necessarily and age and like eighteen they're saying they're not saying it's not that they're not saying they're not considering it they're just saying it doesn't necessarily the fact that somebody tried something doesn't necessarily mean they had an expectation of the success that's right you're on and that was their only argument by only sent that was the point there at the top of the page that peter had was going over you see the only argument in their brief as to why this showed an expectation they said you wouldn't do experiments unless they necessarily nestle thought the really successful and so they go on and say no that's not the treatment of these simultaneous actions starts it paid twenty three and months to take twenty five right that's right so one of the reasons is they reject you seize argument because it doesn't necessarily provide a reasonable expectation and the only other point we seem to be making is taking the k s r quote with regard to obvious to try and even though the quote says it is likely the product not of innovation  whatever they restated to say maybe it would have been obvious and then i don't understand the second sentence starting at line ten of page twenty five real i mean there again they're making the sort of necessarily well we can't adopt what k s r week we'll juggle k s r says but we can't say that it was always or necessarily be the case so i mean i guess their analysis seems to be taking the extreme and undertook the experiments meant they had an expectation of success and that is not the case the board addressed the argument was being made the argument made was and that's what they're explained an expanded space twenty four is that you see is telling us that context of the art at the time and they spend the next fifteen pages going painstakingly and detailed least through the art of the time in the record evidence that's correct and they go through and they look at what the attempts were with our neighbor a systems and there's three a and plant cells they didn't just convert over that's right and very important to that your honor general instruction didn't work and each one of those three were part of completely different approach so you couldn't take what was learned from one and apply it to the next when you try to apply conventional techniques and there where the fact that if you were going to come up with something it could take years to get something like the group to in trance sixteen years of effort they were where all these conventional techniques and the system ended up being twenty thirty would you used to cut up the over twenty thirteen i think the board know we would lose you're out of the board would have to not know we would not lose because the board would then resolve the issue of whether entitled to twelve twelve twelve days and the answer of yes to that and i would also point out the other words the six yes your honor that's correct my point is though if you went with that date then the board would necessarily had made the determination as to whether or not we could go back to twelve so i'm told that they didn't need to because both parties agreed to use that date in these thank you your honor a couple of corrections to start my friend said that the only argument that you see made before the people have was that anybody who conducts an experiment necessarily has an expectation of success but i think that it is true that that's one of the arguments that you see made it's an aggressive argument we're not making it here but it is completely wrong to say that is the only argument that you see made and i would ask the court to reach pages two thirty five to two fifty five of the appendix was goes through our arguments and there's the key one is a carryover paragraph from two forty five to two forty six in which we make exactly the argument there that we are making here which is a different argument and which i think is critical and goes to the what it's what the expert of the expectation of success is what the scientists in the six groups actually did in that exact moment in two thousand and twelve and none of them felt any need to innovate around these supposed unique conditions that several years later rhodes experts hypothesized people would have thought about the evidence in a moment shows that nobody thought that was a problem and the peak of did refuse to consider that evidence as going to the issue of reasonable expectation of success if you're talking about page twenty three it definitely peak of death and he says on page twenty three in spans of viewing this evidence is relevant to a reasonable expectation of successful we view it as relevant to motivation specifically say symes it's fifty eight ninety five see a quote from the relevant article which talks about the consistently high levels of activity and the success with utility in medicine for that if you look at right guess what piece fifty eight ninety three sa hypothesized that a person of ordinary skill in the art in two thousand and twelve would have assumed that with respect to christopher cast nine there would be similar needs for unique tailoring and and therefore there would have had a reason why expectation of success what the evidence that the people have did not consider going to expectation success the evidence of what these six groups did shows you that that is not what people of ordinary skill in the art thought of the time because they ma no effort to anticipate and design around those kinds of problems and of course they would have if they thought that they were going to be an impediment to success because this was like the california gold rush of eight hundred forty eight people are trying to get there first on this and they would of course try to if they really thought this was going to be a problem and apparent the success of course they were designed around it none of them did the p t had never considered that evidence as relevant that to reason why expectation of success and i just think that  situation in which the civic instruction necessary in order to have a reasonable expectation of success was because of the difficulties with these three prior systems that were not even those difficulties in the if we need condition for less there were specific instructions dealing with the unique conditions of crisper traps nine there wouldn't be a reasonable expectation of success again the evidence of the six groups refutes that inference because all of them faced with this problem took th what they didn't work right so it took years and innovation that's how science works mr bradley you start with the conventional techniques and then when they don't work you spend the time energy and money coming up with a new technique so the fact that they started with the easiest off the shelf stuff doesn't mean they thought it would work it means it was what was most readily and easily available to them at the time the least cost in the least effort let's rule out the easy stuff first before we spend the time and money designing around respectfully around it but that's what the board felt mr