narrowly focused simply on what we believe was the clear error of order in indicating that there was no teaching of purification in move from eighty percent to ninety percent one two three four is even refrigerant and but the board did not supply any rationale why that would not be  pump that it's compatible with lubricants it's compatible with material so it taught that it was predominately compatible and going from eighty to ninety percent there's nothing in the record that indicates that there was any unexpected result or any critical critical nature that the nine percent but in addition to showing that there was no unexpected result you have to show that it's a result for various other words that some would say well it's desirable to him more this trans i than at the time that it was not known well that at the time what was known about the translators summer was that and this is and this is what caught us a little bit by surprise because the institution decision and and the ar purified and found to be not highly facts it were me to join it so if the goal was to have a beneficial variable and using the trans i some work that supplied the necessary teaching and that is was the basis of our appeal saying look if you know this this material is not toxic and their patent made a big deal out of toxicity of the refrigerant then it was known if it was known before the date of the invention that  would be a that would be best for the town but i would point out that we are talking about compressor systems and heat pumps and automobiles and that all all refrigerants are not  but the bottom line here is that there is nothing in any teaching anywhere that teaches against going past the eighty percent barrier that this ability with people lubricants was taught it five percent ten percent fifteen percent all the way up to eighty percent and there's no surprise once you get past eighty percent that it still continues to work and be effective as a refrigerant and the prior art clearly thought that one hundred percent of the trans isomer was not toxic  percent but it's not motivation well the claim says at least ninety percent and the only information in their pattern where they talk about greater than ninety percent is with one hundred percent test in table one of their patent where they li that what they call the benefits of the of the system trans isomers along with several other refrigerants and they claim the trans eyesore of one hundred percent had better refrigeration characteristics while the suicide some are actually in that table actually has a higher coefficient of performance so i mean i don't think the information in there pat lays out a solid basis why they thought going to one hundred percent by the time of the invention was a good idea we do know that that chemists make optimizations all the time for purification purposes and we do know that if you were aware that you have a tiriel that would be not highly toxic not needed genic and that's known in the prior so the focus of our argument then is simply that the board that identified what was going to ninety percent achieved i think the board owed us at least an identification of what what this critical feature was because basically what prior art that the board is talking about that gets you to ninety percent somehow and makes this a pat of a life simply simply saying all of the prior to just one of the eighty percent i'm going to claim ninety percent of when you have a very close relationship and you're achieving all the features of the eighty percent refrigerant and goals and you make this optimization there's no significant increase anywhere in this record th criticality mexican here had the burden and on the factual issue with substantial evidence the board said you have not demonstrated any reason anyone of skill in the art would purify the trans isomer versus the  all indeed mexican argues in the direct contrary face of a critical dispositive fact the judge identified nowhere in the prior at all until the eight seven four disclosure today anyone ever talk about the performance differences between trans and sis and table one despite all of that we just heard table one of the patent specifically identifies that the trans isomer was found by honeywell to have two times the refrigeration anyone even know what the ratio in a got he was and on that basis the board decided that for the claims that were outside of the range of the unit doc a disclosure back calculating it at eighty twenty trances there is no basis for it does it is indeed never argued and waived first off it also doesn't have to be a piece of prior art to me a piece of evidence that there are more could look to determine what time i agree running the board could have looked to the board did not and so at best under that theory i guess we'd be with the remained on that for the board decided we don't have to get there and there's a couple reasons the bogen references about an entirely different chemical to forty five f a and to blowing engine and bob jim says they're off gases that com testing the limited amount of data available on trends implies it's not highly toxic community genic so far cry from non toxic to be sure but that's not a discussion of the capacity difference the benefits of trend versus are all it's  saying there's this off gas product it has to isomers and were tested both for toxicity and the reason frankly rather that that was in the record at all was not having anything to do with this issue but because we would get for a second to cross appeal this entire class of what are called h f o's unsaturated hydro for cons they were never used ever by anyone until honeywell as a refrigerant because they were thought to have a whole host of problems one of which was toxicity and they were viewed as impurities to be avoided things that we would want to have around in any refrigeration system bob dylan's relevance and why bargain was in the record at all was to show that even when it was an off gas parts per million there were still concerns about it roadmap and the board's failings on those claims are twofold first the board doesn't provide any motivation to combine and mexican didn't identify any motivation to combine at best their expert their own combinations that can be tested the boards decision is premised on the idea based on a passing reference and difference that all p o e s or part of all each of c's would be usable with and that ignores the record in the act of the evidence in the record what happened here and of course arguments around this and the board is were it is the board's determination was as a matter of semantics and the acronym an h f o is within the universe of n h f c is hydrofluoric true enough that doesn't end the inquiry and frankly we think the if you look at the board's decision that's the wrong group the board ignored is the board didn't look to whether when you read bottom because it's obvious commercially used up until the point of that work were on saturated h f c's meaning they had no double bonds and so they were less reactive less toxic and the result of those those they caused they had hardly warning attenti talk about them is each of c's one reinstates and four pad still knows where various points i can direct the court to these are unsaturated double bond compounds that's the big disclosure formula that's a discussion of every one of those compounds and that as a class whether we call it unsaturated h f c's or whether we call it follows it doesn't make a difference and so the semantics is i think where the board got on the wrong not so this concept that the board based its whole determination on around difference that all h of c's are compatible with is factually incorrect on the record and the evidence around the age of post that's thomas declaration specifically says that example one of the gati not compatible with appealing that's the nature of all as well examples two or forty three twelve thirty for example two is and so that was an unexpected result as well and the board wash right over that at base the core of the board's feelings and why we think this on the claims of the claim to should be reversed at a minimum remand is the board never took any of this the secondary consideration is your extraordinary for a decade the world every chemistry company and every government agency was looking for something that wasn't just low ozone depletion that's the h f c class but more global warming potential the prior product one thirty four hey there's a global warming  is used as a refrigerant obviously it needs to be used with a lubricant and the secretary considerations evidence there are those two that it was known to be unstable with each of those were known to be reactive they were not expected to be toxic and so you wouldn't use them in the used in a refrigeration system with a lubricant particularly one that all the evidence yours is reactive in and given self it talks about the risk of palmer station talks are at risk of sludge is forming and this combination the board doesn't even discuss if the world through the second or considerations as you are started to ask about that might be one thing here the board failed entirely there's not a single mention of this in the board's decision nor is there any reference at all to the nor they should combine and indeed here with a table one they say table one shows that z was a period refrigerant all you have to do is look at this is that a two three four all you have to do is look at that table and note that it says sis one two three four c had the lowest discharge temperature out of all those that had the highest relative c o r p which is the coefficient of performance and their own patent says the coefficient of performance is a universally accepted measure of refrigerant performance so if this table does not establish the trans one two three four is the pure was would have been the preferred refrigerant and it cannot be relied upon for that fact we're going back to this argument on each of c and so on and h f oh this was this was the whole argument from the beginning they tried very hard to argue that if each of those were a completely different thing from each of c's totally disregarding the fact that is it precisely how they refer to them in their own pa is part of the teaching that that we should look to well i think you have to look at the evidence before the invention and didn't saff to the invention and his his testimony after that before the invention he made a statement that said a blanket off the shelf what are you looking at you'll hear the look of the works of hydrogen florrie and harbor now several years later ten years later fifteen years later he wants to recant the position that he stated before before the  reactive in the sense that when he was discussing reactivity yes there hydra scopic you need to put a lid on your can when you're done using it so it doesn't absorb water from the atmosphere yes but the fact that they're more reactive they're not they're not not they're not reactive what people started to look for and what is of record in this case is for things that would break down quickly in the atmosphere so that when that was driven by regulation under the montreal protocol moving forward into the kyoto accords moving forward is being replaced by something that has less versatility one two three four is easy and one two three four why have why because it will break down quickly into the atmosphere and that it was the goal there and givens testimony as he is not a honey won't hold he was a dupont at the time he says the only commercial refrigeration systems we were talking about because the only ones that existed or not this class of unsaturated o's and on that point core is the only response to that in the board seems of credit corin is obvious to try argument course entire declaration is written from the present tense chord never says anything about two thousand and two he never says anything about  time of the invention and that's a critical failing here because this goes to did people at the time believe peel we would work with n h l in the record the only evidence in the record is that in fact it does not work with them all the thomas declaration specifically compares example one to within a gotay with p only an example two is in fact workable it's miscible and it's compatible with p o v example one which would also be under the board same