eleven one zero seven six embrace me appeals and interferences decision to up hold the examiners rejection of the claims in the application issue as obvious in view of the state your reference would like to make three main points today summarized as follows first the border area holding claimed intermediates contribute to the cause of the unexpectedly superior activity exhibited by the end products made from those claimed intermediates and finally board aired in the sting wishing the magnet the present facts from the facts in the teaches generally an intermediate that would embrace the claimed intermediates if the appropriate selections were made but there is nothing in state or that suggests that those selections would produce any  ality in an end product cross cough does not embrace the does not embrace the claimed intermediate this court has consistently held that unexpected and the board of appeals embrace these decisions on the pound spurge that crest cough or fisher were closer for the board maintain that the results must be shown as compared with st therefore in order to compel that the opponents test against the end products of state or the board should have said that state or the coast as per your there was no finding from the board of this fact  board could not make that determination because stagger is not closer prior the both cross cough and fisher we've discussed in our in detail in our brief why stay here was not closer prior art it teaches fixed in cross coffin fisher the third substitution is not fixed it's floating in the present lee claimed in the media that you have x y and z substitutions at the two four and six positions those cannot change no reason is given and none is apparent by the fact that the accounts are claiming intermediate permits the board to insist on a comparison with a reference that is not as close as the references which the comparison was actually tested against the board then tries to distinguish matter wind but magelang does not contain any exception to the applications of the law of set forth and backs are traveling along or holiday right well i will get to that your honor but i will say that the intermediate is the contributing cause of the unexpectedly superior activity right and where does the declaration specifically say that all the declaration compares end not properly drawn the causal connection between making any difference between the intermediates and the unexpected results in the end product no where how do you draw that  in the x y and z substitution pattern a skilled artisan would clearly say if there's only one difference in this molecule and that difference is this one substitution that the activity must the unexpectedly superior activity of that end product must be due to that like there for instance if you don't have a skilled artist and saying that in any decoration to you well we are relying on what a skilled artisan with understand from function of the intermediary well we have we have asserted that the contributing cause is the claimed and immediate the basis for that is that a skilled artisan would clearly understand based on the examination of these of the decade of the experiments in the decoration and in the fact that the substitution pattern in the claimed intermediate remains unchanged from  intermediate through the final product ok so you're just asserting that but again the declaration itself that you're relying on doesn't say that the declaration does not come out and say verbatim what what you just said or what you  ascribe that the superior results are due to the subset to the properties of the intermediate that's the real test it's it's what a skilled artisan reasonably ascribe this activity of is the reason the court actually does the analysis based on what a skilled artisan would reasonably ascribe additionally the board acknowledges that the decoration demonstrates a positional activity in the end products of fischer this is just another way of saying that the contributing cause of the superior results of the em products made from the claimed intermediates are due to the no change from the intermediate to the end product i would say that in this in that and in our case we've shown that there is no change between the intermediate and the end product with respect to that substitution pattern i may have to come up with a cite but  a skilled chemist understands is just as a changing structure and then the byproduct would be something like a hydrogen war or a water molecule but as you can see that x y z substitution pattern remains in the same position from the intermediate to the final product there's no change in that substitution pattern and that's the that's the point that we're trying to establish is that the intermediate is the contributing cause of the superior results of the end products again the declaration clearly shows  you know the board's decision rests on the fact simply that we have not compared the end products made from the presently claimed intermediates with n products of st that's that was the issue which the board base their decision but there's no reason under the law that the board can compel a comparison against a prior art that is not as close as the prior art that was actually  the claimed intermediate here can be used yes to make and products of the present vention and products of cross cut from fisher or an end product a theoretical one product state or second the that what you're saying but no judge that's a well i think matter mind says a lot i think that's a quite a generalization of the law of my or one there you know if in a scenario where you're claiming an intermediate and you have that intermediate has no practical utility so you can't make any meaningful comparison against any other prior intermediate or any other prayer or compound that may have practically useless in an obviousness type analysis that you can use the excuse me you can use the unexpected results of the end products because if you can you can show that the claimed intermediate is a contributing cause of the unexpected results of that in a media that end product and yours the benefit zone is it possible to determine on this based on the declaration that it is leaves intermediate that causes the unexpected result how do you respond to that to the argument in the the reply brief that it's not necessary for airline declaration to fill that gap because that the specification makes it clear that as there is no change in the intermediate through the  in their in their reactions there is no evidence here to establish that is the intermediate because of the unexpected result in the end product give me an example of what it what someone would have to show in order to establish that if they've got that intermediate that it's different they've got the intermediate not changing and they've got unexpected results in the end product what else would they have to show my honor i think garland as instructive in my garland there was the only structural difference between my garland facts are different here there are it's possible that other structural differences are causing the unexpected like like well if we look at the declaration itself the best evidence is in table say one theory  is the halogen of the liposuction the cause of the unexpected result there is no way to know based on this declaration what what you know i can't give you what a bullet proof decoration would be but i can say that the applicant can do a lot more than they did here the other can can can provide a decoration that at least provide some sort of explanation you a declaration or an affidavit from one skilled in the art or would describe what someone would understand based on these and result findings yes rather i think that would be heading at least in the right direction here there's just no explanation at all ten that we do not i'm quoting we do not disagree with the pounds that they may compare the claimed invention with prior art that is more closely related to the invention and a prior art than the prior art relied upon by the examiner  example to look at because the only difference between those two compounds is the metal rope at that six position of the  and then a cording to the invention that substitution pattern to halogens at the at the two in the fore and the metal at the sec's is exactly what's claimed in the presently claim to intermediate that is the inventive substitution pattern which is not suggested in which is not explicitly taught in state or crossbar for fischer a skilled artisan would clearly say that when you have one difference that difference must be the reason for that differ for the ninety percent mortality vs the thirty percent mortality results that are shown i don't understand how it could be argued that to the next point i would like to make is this issue about structural obviousness versus generic obviousness which is what the board and the p t o would like of applicants to test against should test their claimed product against the closest prior art results that are unexpected can rebut a prime official case of obviousness and is the same