after we've concluded all of our remarks that the board erred in its obvious determination as to both claims now there are two sets of claims there are the settlement claims that have reality and there are the cure time claims which have reality that is a common limitation that appears in all d of the claims and the board repeatedly ignored the importance of those at real logical value and its analysis have they were looked at these claims as the only logical value achieve these results and i have to stress you're that's what's unique about the patent because for decades it's been what goes in is what counts and what this patent teach you is what comes out at the very end and i mean at the very end after you reference yet i didn't see your brief disputing that pass clear as the pen value on the softening point limitation right it's more about the settlement rate and  it seems like the contribution that the inventors were allegedly making was the idea of using a hard hand asphalt in making these bonding layers and making  coatings and then it turns out well the pass clear was already doing these are pen asphalt bonding layers and so then you pivoted to these settlement breaks as being the key to the invention but when i looked at the patent specifications it says really almost nothing about stability as well as cure time and they made little cameo appearances in the specification but the patent specifications are really more about going with the hardpan asphalt and that was something that was already in the prior art and so i'm just wondering why in the face of the prior art in the face of expert testimony from the petitioner why wouldn't just be obvious to optimize whatever kinds of additives you're using so that you do reach these common standards of question is i've got this right if you're talking to me about the ability to optimize passkey if that's the case the problem with that is very simple in order to optimize you have to have predictability and we know from the test already and you have them all over the place so you have a bad emotion in terms of stability and a bad emotion in terms of predictability in the case law makes clear that you have to have predictability antwan discloses the settlement rate right and what's important about it and what the tests show you is if you somehow thought that antwan which uses a standard we don't know anything about it's internal it may be good or bad a thing we don't know and secondly it's not just the question as it's when it's a prior reference and we're trying to understand whether a skilled artist and would believe there's a reasonable expectation of success in using a prior art hardpan as to get certain kinds of common standard settlement rates and then if that skilled artisan read and twine that seems to be something that would suggest to the mind of the skilled artist and that ok anton says he can do it and klein says he's perform certain tests so therefore it stands to reason that we can do a hard pan as fall like past career with these kinds of settlement rights right respectfully remind you did of advance it hearsay argument with language from i think as well jack that says the one thing you certainly can't do is use a prior often art reference to say it or you're absolutely not absolutely not but when when you have a critical fact that you need to prove and you prove it with hair say and that's what rock was the excess that's incorrect and there's a nd prong to that city and town problem and that is  me and that is that he is also based a sticky asphalt to keep it simple and past a is a supposed to be announced icky asphalt so those two don't go together they're not going to help you in any way and then if you did think you had a reasonable expectation of success you would do the precisely the test we did and you would have seen at that point and i have no reasonable success chance of success because i can't even to stabilize my motion let alone use it and remember has been the i think the argument all the way along our claims as a whole have a limitation a realistic goal set of properties and they have church time and realizable properties and those are always together and you don't find those two things anywhere in the in the prior art you don't find any place in the prior art that would give you a sense that you have a reasonable chance of success can achieve ing both sets of values not just caught properties around what are we supposed to make of the fact that the pat your patent spec doesn't really provide any details of your patent specification just says there's a bunch of ingredients you can throw in and here are the results that we desire we want this kind of go property or we want this kind of cure time we want this kind of stability right doesn't that suggest i mean you provide some details on how to get the real logical properties but you provide pretty much zero details money comes to getting the stability grade so it makes me wonder why wouldn't these common standards debility rates just be something that's something within the skill of artisans abilities to get disability race without the real logical property system not practice the article because i want to keep saying that that's what's so important that's my fundamental argument you may not agree with it but these claims as a whole continually we do teach you what you need to know but we're forgetting somebody put it in this case along the way having something very specific kabul issue when you're dealing with such difficult emotions the genius of this patent is that for a decade everybody said what goes in is what's important and we've told you no you could have flexibility if you're asphalt supplier changes you're not left out in the cold because you better formally go have to follow when you followed it with his asphalt no you know it would every reading and she would have that you need that you can find if you can put together to give you these properties over them both sets of them you're going to have a tracklist tackle and that that's the core of the patent and i understand that word it may sound like i'm saying every time there's a it's not available no it's exactly what we did a lot we didn't object to the introduction of the document we only objected to it when they attempted to use the settlement values and a day from one of the unspoken known source in terms of what the testing values are we know is internal we don't know what it was and we just don't know who much about that at all so you've got to recognise we stress that what this patent does is tell you where you need to go we need to arrive you need to arrive at these particular values in both sets and claims to practice the arc and that's the clear message of the patent and it doesn't tie you down to a particular asphalt to this is the most far we recommended you can do whatever you w want and you have to remember like mr o'leary these formulators are they're part science and part art because asphalt is an incredibly difficult thing to deal with and as you know hard asphalt is even harder it for example  when you're dealing with emotions one of things i want to stress as the show bitumen handbook says at a level sixty seven of the appendix critical it is virtually impossible to alter one property of an emulsion without altering others and that's why this is such a complex process and that's why as simple as it sounds oh i mean life but because i answer this question and reserve time ok said is a bit scientist at a bit creative has lots of tools and lots of people are practicing this now to get there to get to those critical two sets of values and now i'll stop and reserve the rest of my time  gate and the blacklist patents teach that the temperature susceptibility of the actual residual pack of this on the road is an important factor for providing that trackless feature that last point the fact that passed a does indicate in its disclosure that its residual cat code should not be solved at temperatures below seventy degrees celsius is effectively the same exact teaching that the blacklists patterns set forth when they talk about softening point and pin values of the residual packet the reason is because softening point is nothing more than a measurement of an asphalt consistency at elevated temperatures what you do when you're testing for a softening point of an asshole is your heating the sun the asphalt to the point when it starts to form and that gives you the softening point tells you when it starts becoming salt at elevated temperatures so went past a indicates and it's specification is creating use in its heart an asshole should remain harbor at temperatures below seventy degrees celsius is effectively saying the same thing that the blacklist patton's are saying when is disclosing the end result solving point that one would want to achieve to have the trackless speech or regarding the correlation between the starting him put asphalt that you put into the emotion and the residual taproot properties the show but i'm in which was advanced in the underlying proceeding the asphalt manual and the gore deal reference all three indicate that when you make an emulsion the properties that you put into the emulsion like the asshole characteristics are going to show up in the residual packet that's something that all three references say that is typical and expected that is something that both parties are testing showed it showed that the pin values of the starting asphalt that was used to make these experimental motions also had similar pin and softening point values after the emulsion was cur regarding cure time the party reference discloses that it's hard pin asshole of them off and that was a use commercially as attractive prior to these patents being filed within thirty to sixty minutes and lastly regarding store stability for both parties experts acknowledge that a hard pin asshole demotion could be made storage table as of two thousand and five dr allen james who is the expert for the five the notion that i harp an asshole to mulch and it will let me start over the notion that these patents at issue invented the idea that you could create a is stance on the notion that one already knows how to create a store stable or an asshole promotion and when you compare past days teachings which are substantially similar to the patterns at issue it's teaching you that the input does not tell you what the output is you have to get those you have to arrive at those two sets of properties or you don't practice the art and in terms of optimization there's a materially limiting step and a moving quickly that surely limiting step in our pattern which stops the effect for example of south where why because we've got those those real logical properties there's there's there's three claims but it gives you with that way the fort limitation is the real logical properties and that we also heard that as i told you before that handbook tells you that with with emotions they're very complicated and you change one property it's almost impossible to not change other properties so this notion of what we don't want our form really is and that'll just come out the other end it's not it and that's why no one was able to do it trackless tackled for all those years they were focusing on what goes in and not what goes out  terms of the hearsay i give i'll give that up but i'll tell you that i have another reason respectfully and that is that rule seven hundred and three of the federal rules of evidence would make the stock to this test this documents whatever it is from want it admissible because there's no description of the methodology used if you remember he uses an internal test about which we know nothing so if we don't know the methodology of evidence like this rule seven hundred and three says it's not admissible and that's not hearsay because i think i've lost that one but i'd like to bring that up as well and one last thought we we taught you that you could use a hard pad and soft hand using medium and soft pencil long as you adhere to the itch cheat achieve tact coke realizable properties and the last thing i'll leave you with i think is that you have to understand that once you know about these real logical properties and you know that's critical and that you need to maintain them as i told you all the way to the end of the