zero four two to meet the threshold issue in this appeal is whether section two eighty two a of the patent act constrains the decision making authority of patent trial and appeal boards in the same way that it constrains the authority of federal courts that constrained it in order for are issued claiming enough pact for a property right in the patent to be taken away without compensation a lot requires that the factual predicates of an invalidity theory be proved to a high degree of probability do you think that the which standard  of proof whether it's clear and convincing evidence or the preponderance of those the duelling standard to correct yes or do you think it makes a difference in this case i most certainly think it makes a huge difference in this case not just the comp so  time is limited that is what so are you saying that if we agree with the and i would ask your opponent the same question only the flip side that if we agree with the district court preponderance of the evidence is the correct standard you lose i was not i would not concede that after four years if your are griese because there's not as you said it makes a difference it does make a difference but it makes my case very easy because it's a very i mean i think i think quite frankly i think on the merits of the case both sides here are well within the pale of reasonable assume their argument it's not a need it's a close case i think you know so i mean seems to me to be maybe one of those situations where the standard of proof doesn't make a difference because you've got these competing points the balancing of the wet ability the oxygen factor so maybe it is a case where what standard makes a difference it absolutely does not judge on the degree of certainty that must be held by the back finder before it is authorized to take a property right away but also in who bears what burden of proof because the district judge and then the face of the government's investigation even though this was a civil action and district court treated this case as if we were in the patent office and don't with the mere applicant seeking to be granted a pass in the first time the district for over and over again said well the government has made a prime aphasia case of obviousness and therefore the burden shifts to dome to prove not business and that made a huge practical difference in terms of who had to come forward with what we have in this an unbelievable situation in which the history of the case is pretty much set up in the first phase of our life or if we have a situation in which starting in the mid nineteen seventy of trying to solve the same problem the mr nice all came up with very different solutions we have concrete wheel world evidence of what was and was not obvious at the top doesn't really come down to whether  the theory that the government presented to the trial court in that issue that's the issue isn't the issue in the case is whether or not the entire process of nice claim one as a whole was rendered obvious by the prior art the government relied on so what we have here is a process a six step process in which mr nave says what you do is create  monomer was one of the monomers used in the early pat gaylord one gaylord's two and alice the maker of the boston two lens they also worked with chris but they didn't come up with a nice solution that after ls you had no vicki and you had to knock out who proposed completely different systems for contact lens manufacture don't use trist use other monomers and to knock a specific we give various reasons why it's a bad idea to use tricks so you you know the terms used interest so long as you had enough infusion of hydrophilic elements in the whole mix i would say two things in response to that first of all the theory that you just articulated was a different one than the board adopted that was the government's mid trial change of strategy after they realized that their own experts theory was in support number one number two when you talk about teaching a way you've already shifted the burden to don't we would argue that the evans the question is not whether to knock a teach is the way the question is whether or not a person skilled in the art reading to knock as a whole would find in there is a reason to do the opposite of what the naca says to be done to knock it  like needs at all what government said was that conoco shows this huge range of cross linking agents conventional ones a novel one of his own design and of a forty year old one that had been to pick out one and then use that to go in a different direction and modify the old gaillard are we really left to really look at the state of the art seemed to be that that was kind of everyone knew what we were looking for this balance between what ability and oxygen permeable of the and doesn't it appear that people were could see there was a certain range of things that you could play around with for want of a better term to get what you were looking for well the best i can do about that is that was one skilled in your is that wrong the vet yes because the best i can do is point your honor to pages hundred eighty two and one hundred eighty three of the joint appendix and which we had in this case what the government's position was in two thousand and seven eight nine ten eleven twelve and the beginning of the trough at bottom of this today the government's position what the board said because they were mis understanding the prior art this invention was so not obvious that the government misunderstood the references to yes where the very bottom of the statement was the government's position before trial that was the position that the government took at the board level because they were misunderstanding the cross linking agent that mr  claimed in claim one is not hydrophilic it is hydrophobic that's why it was so non obvious and counterintuitive to do so this was the position the government took and then when erroneous nature of their theory was exposed for the first time a trial represented by able justice department counsel they called inaudible and completely shifted gears to what your honor was alluding to is as well it doesn't have to be hard to sell what our expert said here is wrong or rule twenty six a disclosures were all wrong and we're going to say well you could use a hydrophobic cross linking agent doesn't really matter what the government's position was before or after were reviewing the district court's decision it doesn't seem to me raise any kind of an eerie argument or that the district court has improperly relied on the legal  that's improperly changing the question the question is not whether to knock it teaches away the question of whether to knock it provides a reason in the first instance to do what mr incredible contemporaneous demonstration of non obviousness is that the one artisan that was working with triss at that time ls they were working with tryst number one they not only did not deploy  errors in finding that there was a motivation to combine these two and knock it in this way because it is not clear to me at all what you are arguing what i'm arguing is that the district court did not impose upon the government the burden to show by clara convincing evidence the patent issues they change their process to adopt an equivalent of the claim one process by deliberately and purposely putting that public across thinking agent in it so you have there a  contemporaneous proof that a company didn't see the solution the patent issues they then adopt the solution with the district court found as a fact was used in the manufacture of one of the most commercially successful contacts products of all time but the court just counted that because it was putting the burden on dome to prove the negative that there weren't other reasons why boston four was so successful other than the shift to the i think we got the source for your little time  on the court i'd like to start if i may by answering centuries of last question what is this case about this case is about whether clear air underlies the district court fact findings underlying is obvious this conclusion there is no clear air  not even really attempt to demonstrate clear in the short fact findings and that's what this case is about one hundred ten see the same question i asked mr davening when he got up does the standard of proof  here control the outcome clear and convincing evidence i'm sorry to have to the two eighty two standard or the preponderance of the evidence standard welcome to directly answer your pretty close case where the standards you could make a difference not the standard view but the standard that applied at the trial with respect your honor i think that as you've hit on exactly what is the problem with domes argument in this case capice the high involved a standard of review not a burden of proof if that's what happens when a judicial review action seeking judicial review under section one forty five is brought in the district court and it set the standard of review in such a proceeding review of the board decision is to know if new evidence is submitted it didn't say anything about the burden of proof now what does microsoft for i said it speaks only about birds of proof not standard of review why because the district court in an infringement action is not reviewing the agency's decision it is considered taking inevitable understand mr daddy says though the two eighty two clear and convincing evidence should apply right but as of post two what applies here what the district  strike the evidence could be so strong that under either standard of review the agency would win but the second case here isn't it could this be a case where one standard you win under another you lose this could be such a case but our position is  not such a case we think that there's there's a vast evidence under supply during the district court fine but assuming we disagree with the standard that the district court applied think that was clear and convincing evidence it seems like it's close enough that we would have to send it back to the district court to look at that under that i think i understand your position that that's not the right standard but it seems to me that this is not one of those cases where it's clearly on one side that we could say that standard doesn't matter i think the district court so recognizes that there is a maximum limit of press that you would want to contact once and that's about seventy percent it doesn't take go all the way to something that is almost entirely trace and what's enough is doing is trying to make it continuous where land as the district court found lens that could be worn overnight meaning while you're sleeping the oxygen that gets to your eye is much lower to about one third of the oxygen content in the air underneath your arrival as it is just in the air itself and so you would need vastly superior oxygen permeability for it to be worn overnight and that's what an awful was was aiming for in tonight with saying that if i were trying to use trips to get to a continuous wear lens that i could wear overnight i would have to use so much of it  would exceed this gaillard seventy percent number and i would end up making a lens that had problems they would said as long as you do not go above seventy percent you don't have problems with the pace of the set the lenses that gaylord made were translucent make very clear that there is an upper limit to knock a recognizes that there is an upper limit into not in order to get the result but to not go on it would have to go beyond that upper limit but to not get in no way discourages people who are seeking a prolonged daily where limbs where the your glasses for dinner and in the evening because you couldn't wear it for the entire day prolonged daily where is the transmissibility permeability around eighteen to twenty so almost twice as much and that is something that you can wear in your eye dabney says today that the claim in the pics one of those just one of these many many thousands or hundreds at least of chemical that's not the case the need of the claims formula six  or that you can be up to seventy percent of the hydrophilic monomer and still have no problems and the theory that dome had in this case was that adding point zero one percent to something as well as five percent to get five point zero one percent polymer chemists would never do that would be terrified of making that amount that flies in the face of gaylord gaillard indicates absolutely to the contrary gaillard indicates that you can go right up to seventy percent hydrophilic monomers and not even worry about whether the lens itself at the end of the day will be what a poll today says that we came up with this theory in the middle of trial that's not the case in our expert report our expert repeatedly pointed to he says it three times it was consistently throughout our case the government's position and also we believe that such use is correct they did not object at trial there is no reason why the district court's decision relying on the evidence in this case  five three five percent but consisting eventually of mean almost all traits and that is not at all inconsistent with a we're teaching that you can have up to seventy percent of what cannot be saying is that for him to get the transmissibility that he needs for overnight where he would need to go last beyond that seventy percent number that they were teachers and then that's where you run into problems with the contact lenses and i guess the to be given weight the district or properly found that from along with undercover going testimony by testifying as to the many benefits of the bus before was beyond its increased oxygen and therefore it correctly discounted the secondary consideration as evidence period of time you should use something other than what i'm proposing here but it doesn't say anything about well you can use tricks for something else he's proposing a completely different system of contact lens material so this is a contemporaneous failure not a reference that says well what you should do there's a reason here and you'll have a reasonable expectation of success in making that contact lens if you use trist monomer and use across thinking agent that that  misunderstood that the cross linking agents describe pages in the record it's column eight twenty one forty six if you read the board's decision in this case they wrongly assumed they were all h that's what their experts said and they cited that as a reason why you would do it because hydra felicity would overcome one of the well recognized problems of using trips and it was only when that error was point out to them and they didn't they didn't distinguish between alcohol and spears and al kill esther's that they started talking about corona discharge and all these other hypothetical ways of trying to arrive at a rationale for coming up with this is why the burden of proof is so important in this case microsoft with us a watershed event in patent law microsoft said to eighty two a codified a standard of proof which is part of the patent grant and iranian reduce risk of erroneous adjudication is one of the rights that a patent owner has