technology to develop a b m technology so that the weren't found there was no copying this technology the seven thirty two patent for example thirty two publication is a dupont publication which is one of two prior art and so dupont has been working on this technology for  years and so these companies are involved in the commercial effort to bring this very important green technology to market and we put in testimony from from three witnesses who have direct knowledge of the plant and the process we have  spray technique for for a spray oxidation technique which is somewhat different from what's described in the one twenty one patent so there are differences in the way that the oxidation process was correct or not denying knowledge of the patent i don't have any information one and procedurally there was very little opportunity for discovery there but there is no evidence of knowledge that but the one of the reasons or didn't find happening is because the plant wasn't operational even agree that that to the extent there's anything alive about this case after today that that they could use operation of the plant as evidence of copy i don't agree because we announced opening of the we announced this collaboration in january two thousand and sixteen they submitted their paper was routine optimization theory and really the focus of our appeal is on an alternative theory which was presented and then is for overlapping ranges and again if you look at the chart on page two of our reply there is no difference between claim line and argue one seven seven if you properly interpret the claim to include it specify lower end point your air whole discussion about about presumption seems to be somewhat a straw man here because it even if there is a burden shifting the burden is only one of production racked credits and there's no doubt that at the patent owner produced evidence of unexpected results whether it was alternately submission or not doesn't change the fact that there was production of evidence of unexpected results and that whole issue of presumption seems to fall off the table well your honor in the board's analysis they did not even consider  overlapping ranges argument on the merits because in the words view the magen will case precluded from even considering the argument and that's what point is that that's not what they say what the board sad is that to the extent that they're that you're saying that the burden of persuasion ships it doesn't and and there was no issue with respect to production because production of it was already in the record but they never applied peterson in their reply armco they never again even just taking claim one is an example we think that is representative claim if you look at the board's findings on page nine of this decision you found that every single element of claim one is present the only argument known or made to try to distinguish that claim was this purported exclusion of one forty from playing one and therefore what our position is that if you look at claim one and actually accept the board's findings as to claim as to are you one seven seven they you can check off consider are you one seven seven alone as to claim one and that was around four so even though it wasn't instituted it was effectively folded into what was considered and so our point of claim construction is that this was the only argument at hand on a raised to try to distinguish are you one seven seven from claim one and it's incorrect as a matter of law because under the broadest reasonable interpretation that specified lower end point should be part of the claimed range we did argue this there were two theories presented below there was an it was a peterson type argument for overlap and there was a titanium metals argument that was also made that so in other words if the claims if the claim here even if it a budded and was reviewed as being seven and the embodiment that that falls within clean one so you're arguing that are you one seventh heaven should be considered as a stand alone reference even though the board refused to institute on that as a claim one yes because that was insufficient well the board made findings there's very little data and we're not findings were a little weird i mean what they basically said was those that evidence was not as persuasive as the of other evidence that they found against you would just as one example your honor of the claim purports to claim a range of one to ten parts from one per ten one to ten bar of partial pressure for oxygen the patents for the h m f examples only tested one partial pressure four point two which was twenty five the additional data they submitted from dr berger same thing or point two they submitted no other data to show this range of one to ten means anything from from a scientific standpoint it appears to be it's a of twenty one of the so called inventive examples are less than seventy percent which is what partan homer predicted so most of the results are quite low look at experiment three asked in table three which risk is within claim one it's concentration no on no reaction time could be any amount of reaction time so this claim is so broad on its face that it touches it sweeps in this are you one seven seven environment which uses the same starting  data points wouldn't it be more appropriate to remain and for the board to reconsider the objective in disha given the fact that the board a really didn't need to consider it since it said it already room in it simply reversed because there was a failure to follow the law and i think this is similar to this intrinsic evidence shows that the claimed brain should include one for you now is the only argue difference and that's an issue of law also for claims  against the secondary consideration evidence and perhaps the board didn't really seriously consider that evidence in the first go around that maybe it ought to honor e mail so could you answer that question no i think it's a fair question i think there is a certain amount number of reasons for the lack of unexpected results and sinn fein has even argued a lack of substantial evidence for both findings on appeal the other claims that we think we shouldn't necessarily be remanded claims three four seven eight nine there were no separate arguments for pan ability for those claims over claim one green for the claims that simply require adding an extra metal like like her cunny m and what about the  i'm sorry john but about the catalyst so the catalyst is identically described in are you one seven seven for claim one and then claim three in force basically so you can add this additional metals catalyst and since being a has never argued that that was not an obvious a it's completely bio based it starts with him after which is derived from sugars they've built the plant now they're standing no i don't believe so your honor because because i don't carry their burden of demonstrating standing which is entirely their burt they did mention that they'd open the plant and they're running it you may have seen the correspondence i'm sure in the record between myself and opposing counsel with regard to what was going on in that plant we gave them the opportunity the way they would describe the pro it seems to have essentially all of the features that are claimed to air so therefore there be no risk of infringement well i respectively disagree in terms of the record for the court your honor they describe the process as having been designed to operate in operating parameters which are broader than the temperature and pressure parameters in claim one for example which are one for between one forty and two hundred greasy and one to ten bar i believe they in their declaration put three of the men but all they said was that they were designed to operate between one twenty five and two hundred fifty degree c and point zero two two one hundred bar preferably zero point two twenty one bar so i contend that there are other we don't know what they're doing so it from the standpoint of their burden of satisfying standing my contention is that they had the obligation to inform the court about what they were doing and why that put them at risk well and they had that standing as something filing of this a that's correct or on today correct i don't believe they can walk into court today and stablished standing so i don't believe they had standing at that time and i don't believe they demonstrated with their declarations that doesn't mean that they that as we wrote in our in our brief it could be that they will infringe our patent but that would be our burden to establish that and we would go to them and say what process exactly are you running and if we determine that it was our process there could be an infringement suit but and you'd argue that they were from what ron from attacking her right it may have no standing and if we ultimately agree that the board got it right then any later infringement suit would they be able to argue not infringement but they to modify them to improve the image of the process save money well you know those are those are two things that is not what was done here i disagree respectfully your honor in fact that that's the that's the crux of the board's decision were it found fully supported by significant substantial evidence that there was not that motivation because in fact that was the position of the of the petitioners is that there would have been a motivation to optimize the seven three two publications process because remember notwithstanding that that in our view they are trying to appeal a ground that never occurred during the  temperature range so i don't see why least initially to go any further on the temperature range unless you can show unexpected results for your claims temperature range it really boils down more to the pressure  is would one of skill in the art have appreciated that fiddling with pressure and this sort of reaction would affect results and i think that's known when we see references using a lot of different pressure values that seems to suggest that there is evidence in the record that pressure not surprisingly affects results in for chemical reactions just just posed there was substantial evidence of it from both sides on those issues and you have to look at the art as a whole so if you look at the seven three to publication that's what i'm doing here when i mean when i'm looking at the references and i see the references calling out different pressure values here and there why isn't that evidence pretty real confirming evidence that yes when you change pressure you're going to impact results or there's a strong likelihood of that after all the pressure is of the oxygen which is one of the we have to it's so affecting the pressure of one of the reactance would obviously affect the result well starting with presser that's a that's a good question your honor so there's two there's two main elements that were discovered by my clients in vienna with respect to optimizing and improving you and so they were very dramatic improvements in fact part number one of the background twenty five degrees when you look at the examples examples if it was close as a temperate seventy three dude discloses a temperature range that completely encompasses your claimed temperature range i'm more interested in russia ok so i'm going to start with pressure if you look at pressure there's two pressures the total pressure which is the total pressure of the reaction and the oxygen partial pressure there not the same the oxygen partial pressure pressure is obviously the reactance and so our oxygen partial pressure of one t or mostly in a liquid face is talking about the total pressure which is not necessarily mean that the oxygen partial pressure will be within the one to ten bar of our of our claim or what even assuming that that's the case mean whole results effect a variable discussion by the board seemed a little confusing given the fact that i thought your whole point with respect to unexpected result is that they are results of back to variables and by finding that narrow range you actually got a totally different result well there's two things that we did that against the wind of the unpredictability of those results affected variables so turning to temperature in the in the seven three to publication if you compare examples twenty and twenty five in one thousand and twenty four and seventeen and thirty five for example there you have a pressure increase where the yield either stays the same or goes down and the high end even though they were oxidizing at higher temperatures one twenty five the highest yield they got was at one hundred five degrees and that was only fifty eight percent it was much lower than the results that we got so the board found case for the claims not being obvious to the unpredictability in the lack of the motivation combine and i think that's really the central focus of the board's decision as i thought it identified a couple problems one was to flip or identified which is the commensurate  with the claim concerned that your examples your experiments were limited to just using four point two bar and didn't really go across the scope for any attempt to cross to go across the scope of the range of one to ten bar at least with the temperature of the spinner you know with the experiments with on the temperature range you have a few different examples of different temperatures in years the second problem was that it didn't look like there was an apple to apple comparison in the sense that you didn't explain how you can at all the variables constant while you're doing a different experiments thereby raising the concern that didn't really fix exactly show why it was that this particular shift in temperature and this particular shift and pressure were the reasons that for that extra high yield r persuasive and might my second response would be that notwithstanding those observations of the board there is nobody that i am aware of anywhere certainly not in the prior art and has ever achieved the high yield results affect a variable issue i would seem to be more relevant to the question of whether it was truly unexpected other words the problem as is that by characterizing it as saying there's a lack of motivation to combine versus characterizing it as that as the the fact that no one really thought or understood that these could produce a difference when narrowed to such an extent that the board actually confused to the whole analysis i don't mean the board confusing analysis your honor i think it's really relevant to both i mean naturally when you submit evidence of unexpected results that squarely in the midst of a secondary consideration analysis but at the same time you have to look at the prior art as a whole and especially when you have a chemical chemical optimisation allegation or assertion by the petitioners if so why would somebody optimize the process or why wouldn't they what would be the motivations of a in a in a chemical process reaction result oriented why else would have been this you don't put limitations in a claim that don't affect the result that's what claim grafting involves absolutely  like combining two items to make a product these this is a process with variables that are in the process not a question of combining it's a question of varying you're right your honor but it and that was the ground that was instituted varying the process of setting three to publication based on are you one seven seven and the three one a publication and cost considerations as you point out and the board looked at the cost considerations analysis and said in fact that a person would not be motivated to to to lower the pressure for cost considerations which their expert contended through patents re the opposite so even if that was a cost consideration it's offset by the fact that you wouldn't expect that you could produce as much at the cia in that regard the board found that and finally the three one i did have a chance not but a three one eight publication but the board ma detail findings that notwithstanding the pressure and temperature there there's no motivation because of the catalyst use it's a fixed bed reactor you have to teach the m s f in solution the catalyst that is the catalyst if if between one hundred forty degrees to two hundred degrees includes one hundred forty degrees celsius then does argue one seven seven of every element of this temperature range because the highest point of temperature and are you one seven seven is one hundred forty degrees celsius and your claimed temperature range doesn't begin until one forty one degree celsius because you read between one hundred forty degrees to two hundred degrees as excluding one hundred forty degrees that's so if i were to repeat the claim between one hundred forty eight two hundred has actually including one hundred  forty degrees then that disclosed range and are you want seventy seven would have but and you know therefore overlap with the claimed range doesn't that mean that are you one seven seven has all the elements is the answer now the answer would be yes it has all those limitations but when you say this your honor it i need to send you data but in the sense that that's fine that was never litigated below so i we never had any expert testimony we never had any argument about that because that's not a ground that was instituted by the board and in fact there's a reason for that i think significant paged to zero five seven of the of the index a two zero five seven is their petition where they say are you one seven seven does not overlap with the temperature range they admit that so up front the board had that in front of that i guess at least at a minimum i'm trying to underscore judge lawyers question to you which is here pretty close to the claimed invention there is there are individual pieces of the prior art that have individual ranges of temperature or pressure that are close to the invention but when you look at what the invention is as a whole the specific temperature ranges the specific pressure range there's nothing in the prior art there's nothing in cost considerations that they advocated that would lead a person to precisely develop the particular ranges that we ha d and that's the unexpected result but it's also motivation to alter there's no motivation to alter a very very there are argument is that you look at seven three two and a person would have been motivated through your honor they chose to write claim one to include five and half as one of their optional starting components and there is no difference between claim one properly construed in are you one seven seven what do you do with the fact that below it was an overlapping ranges argument and it was a titanium metals type argument the overlapping ranges argument is one and overlap and that's where such as in peterson then there's a presumption of obvious and supplies but to be fair wasn't there a part in your close to the clam temperature range you know maybe it was in perfectly clear but in that same people of its senses is something like it sounds something similar to that but then if you look at the next paper your honor we continue to argue that the claim should be interpreted to include its and point one forty and we continued to press a particularly in the reply which the bourne quotes in the section when it's talking about magnum oil in a reply we did press this overlapping ranges argument and so our position is if you look at the results how do you deal with the fact that the position itself  they don't overlap and then when you say in your reply they do mean well it doesn't have to get fred it to what you said in the reply it's inconsistent with what you said in your petition right well the board instituted on the grounds that it instituted it didn't out the lack of any meaningful difference between claim one and are you one seven seven has every single element of that claim and the only argue difference and you can hear anything different from council was the temperature range and properly construed under brought substantive presumption in terms of evidentiary value it's just a question of whether that then shifts the burden to show unexpected results which would seem to be supported by frankly the findings the board did make that no one would have had the desired optimize i mean they did but they also we found the panel has not established i'm expecting results were critical of the for the claimed range that was the board's finding that is supported by substantial evidence in the board's analysis so as it stands they did consider all the factors and that's why we think this was harmful error for failing to construe the claim to include one forty if they had construed it that way and they had applied they should have applied peterson and they should have concluded