issue what i would like to focus on this morning is that this issue can be fully resolved as a matter of an neils a failure of proof there were two issues with respect to this this priority debate forced first our we'll never contested our priority date of august sixth two thousand and one what the fight was about was whether we were entitle to an even earlier date because of joshi's earlier date that was asserted by emil there was no because there was no dispute it didn't even have to reach the merits and it shouldn't have reached the merits because amiel didn't even t this up in our patent owner response we couldn't have been clearer to put on notice that we understood and  on a response we said at appendix twenty seven the team amiel is not contesting that the three seven six patent is entitled to priority of august sixth two thousand and one that gave any open opportunity it's applied to actually contest that and it did not and expert did not in its reply at appendix forty two ninety four it applied are august sixth two thousand and one date again there was a fight about april application sufficiently describes the three seven six invention in other words to give us the provisional priority date and we conclude by saying again and you'll never contested the relevant issue we again  just twelve through fourteen again i find out critically neither am neal nor its expert ever argued or offered evidence that produced provisional application did not support the claims of the three seven if however you want to look at it as a matter of burdens then under that lens as well we had a burden of production and we do point to our provisional specification and how it supports the claims of the three seven six patent and again paragraph that specifically acknowledges that the listed agents can be combined in mixtures and then throughout the patent it repeatedly refers to these two jelling agents as especially preferred preferred references also in the provisional but the board or at least that the p t o i guess argues that those were not raised those other sections of the provisional what's your was never raised by any old did a sort of belt and suspenders when we pointed to that paragraph as providing written description support from the provisional for our our patent three seven six patent but it wasn't so in that situation it's we're sort of in this hypo case when i was so there may be an explanation but you did to get to the first point first you didn't call the board's attention to any of the other pages of the provisional other than the one that you referred to initially that has compass what i can tell you i didn't we did not specifically refer to other passages but we did provide expert testimony who a value weighted the provisional and the the patent and said there is sufficient written description support he we didn't have notice and for it to raise this in the three in its final written decision that is not how these proceedings should operate however if the board were going to go down this path if it's going to start looking at  the obligation has to be on the board to look at the evidence as a whole and certainly in this case where you're talking about a legal document like a specification and sort of the board is going to somehow put the burden on us when it wasn't even teed up it couldn't have just put blinders on and decided that that one paragraph wasn't enough it had an obligation to look at the plain face of the specification where these two other ingredients are repeatedly called out is preferred and especially  preferred sustained release polymers this is about five lines down and we call out especially if this is in the parentheses especially hydro  one twice we call out p e o polyethylene oxide as an example and again on appendix one thousand thirty two we refer multiple that one or two of the references may just be duplicated or on the seri the board doesn't affirm the examiner based on those additional references and this quarter certainly affirm the board doing so it has never found that new ground  this issue about whether the three seventy six prayer for in support of the provisional was raised by the petitioner was a rose by the position it was not raised by the petition party's ability for ten years as litigation to be a part of the way for ten years neither party challenge the other parties entitle met to his provisional silent date and it wasn't provisional filing date based on similarities between this because their statement and the board said the droshky was not a title established that it's entitled to the priority date of it's pretty oh no they did not think that what would happen here now with the petitioners dropped out where you were to remember some sort of legal maneuvering before the pork and now you say that the first time the issue of priority for the purdue patent was raised  look at it sort of like a goose gander principle i think both parties just up until that point we're just assuming you're not going to comment on this primary challenge and i'm not going to comment on your priority challenges and board knew that its collateral stoffel findings or i think at least suspected were really you know more of an exception permitted  in rare circumstances but not your typical to know the flavor of lateral sokal and so they alternatively found that purdue had met its burden and i see that over my time is there need to show the identity of the disclosures and we believe we have done that and then the judge says that you need to show the identity of the disclosure with the claims of the gypsy public cation correct and your counsel agrees that that's what this court's case law requires ultimately carries both the burden of production and the burden of persuasion and this is where i'm going to be very clear there is no good standard rule here because for our player today what it was is it what is that in what respect if we consider the the jo respect is joshi not supported by the joshi provisional you say well or for claims that were in the provisional and i said that depends on the reading of dynamic drink where every claim has to be supported ok put that racing this but let's assume we conclude that it is probably right that the provisional is evidence what's wrong with the theory that joshi the relevant claims of junction are supported by the provisional because there are your only argument as to why it is not supported by the professional is that it's not every single client is that correct and there are different aspects of the specification and amul relied on certain aspects of the later be traced back or the other ways to say it could if the claims are identical but what difference does it make about the specification you mean that there's no written description support for the claims that were in the provisional that describe that can't be  argument it's not the same specification your honor there are additional examples in the later reference that amul relied on in this proceeding that are not in the original jo is relying on can it be traced back to the provisional because for the proof the later reference to have the benefit of the earlier date it had to have been disclosed to then it wouldn't otherwise be entitled to that doesn't need to be man it should instead reverse because joshi was critical to every ground and i can point the court specifically to the appendix of a supposed suppose we were to conclude that it wasn't critical that every ground that's the question i'm asking really arguing that under no circumstances if the reference falls out can we affirm i don't need to go that far but on shows how far are you going i'm going as far as this case because in this case joshi was always asserted this critical under your hypothetical your are premised on that you have the authority and the so the role to do that i would have to agree but i do not think that is the appropriate role particularly when the petitioner here never knowing knowing its principal prior art reference was challenged as priority never came up with the combination and the board itself did not either and i will note at the world hearing this came up the board was concerned about notice to us as to any sort of combination