the border area as a matter of law in this case when it concluded that the a t r no dissertation was a printed publication available to the public before the critical day no evidence supports that conclusion the they presented evidence before the critical day so the evidence was that the dissertation was created it was deposited in the library and actually shelf that ivory on con page eight of the blue grave you say that dr gray's or did not explain how an individual without his personal knowledge of the dissertation could have learned of the dissertation or ordered to request it from the librarians we for the critical day if someone was seeking subject information just generally libraries generally catalog catalog means that you can search for if you can find it by subject matter you got it all i can say is what's in the record there's no evidence in the record that anyone before the critical day could have searched the university of him we take to dish on notice that library catalogs catalog by subject matter author among other  was unique understood it's hardly typical just look we have here is we the board making an inference that the cataloguing was something that was easily searchable by visitors to the library by subject matter and i guess the question is for us why isn't that a reasonable inference the reason your honor is there's in that case was catalogued in west law and this court found that unless you show that this was catalogued prior to the critical day the court reversed it or did it right lister and once again why can't no evidence of the when that actually occurred in this court said to infer that a document was catalogued before the critical day based on evidence that occurred after the critical date was pure speculation by showing that it had been checked out well your honor with respect to the check out record there's no evidence of who checked it out or how they found it so simply having a reference that was checked out simply means that someone from some unknown means was able to walk into the library it could have been if you can sell for all we know so that evidence itself doesn't suggest that than we might not be satisfied that the fact that it was checked out a couple times proves that a stranger could have come in there and reasonably found it through some kind of catalogue system but we have i think a constellation of data points here that that's more than just that that there by allows this check out history to be some type of corroborating evidence of the idea that this or some kind of national system catalog and the fact that the this book that's on the shelf looks like a book that was published by some publisher called book why don't we just think of it as a book that says on its face that it was published in two thousand and six and copyright in two thousand and six your honor with respect to to two responses to that first with respect to it looks like a book that doesn't mean that it was accessible to members of the interested public but it was published there's a document here that says it was published both online and in hard copy why can't one assume that if someone took the trouble of publishing they would make it available to the public there's hardly any point in publishing unless you try to sell it right well your honor i think the exhibit that you're referring problems well you know i think the answer your question depends on what the meaning of public place that the touchstone for this court case lies not whether a document is published its whether it is reasonably accessible to the interested public and so copyright office under international treaties and domestic legislation we can we don't have to take notice of but that's the law so i thought if in order to have a nice b n number in the front of  bar the author had to submit it to the copyright office in germany and they had to review it determine that it was a book and if you and i as pm an issue of copyright which they did as a could anyone have found this book or this manuscript by searching by subject matter that's the touchstone for all the sports cases and even if i got a book published and put it in my office that would not be interested members of the public find it and i think the answer to that question is curious did you i don't know did your side contact the publisher sugar for a lark to see if maybe there's a subset of things that they catalog that they had back in two thousand and six maybe was searchable by just the name of the author instead of by subject and i got a there's nothing in the record about us contacting a basic and library but there's cleaner simpler easier case if you would simply brought forward a declaration from the librarian or the librarian that worked at the library back in the mid two thousand and said yes we had an online catalog system yes every time we received a book from anyone including one of the students dissertations we would not only shelf that book but we would enter that book into our online catalog system and the online catalog log system at that time unquestionably was searchable by subject by title by author that that would have been easy why why didn't you do it like that instead you're creating a situation where we have to go through a chain of inferences to get to where you want us to get to church to answer the question is it was our belief that having dr oz or testified he should make more sense because not after his testimony his declaration that he had worked and familiar with the libraries and i think for that the online search feature was used and can't be could be used to find the e t i dissertation not only based on  it can be drawn either up and substantial evidence standard that's enough the board exercised its expertise it weighed the facts and it read that evidence and again it's a constellation of evidence it's not just dr graz or their circulation records someone actually went to the library and checked it out before the critical day in the united states when when a copyright is issued it includes a subject matter classification or sample this book is a novel a western american or something along those lines has it done in germany the f b i evidence that we have record is what's in the on line or which provide it is the screenshot that the board referred to and it's final written decision as part of the evidence that it believed was sufficient to establish a fifteen ninety three ninety four thousand it is them but we need to be satisfied that this was available just like this before the critical thing well whether it's not two thousand and sixteen or whether it's exactly like this  which is declaration he says he confirmed it was deposited quote quickly thereafter available for retrieval by the public on march third two thousand and six that's not a complete answer though what do we know what does he mean by available for available on the interpretation of this and it's a reasonable one he talks about the use of the library says ninety four of the next sense he says the unlink online catalog allows for easy electronic searches of all these years since it's just now he's talking about the online catalog as it was available throughout the time now when was it specifically available yes you can testify to that but he does go on and say that that online catalog which again is what is there at the library allowed any member of the public to search for to locate it so i think a reasonable inference in the inference that the board drew from ad was that his knowledge of the library is a percipient this is something that's required for all doctoral students the whole point is to make the dissertations are publicly accessible i asked you for them for the copyright certificate and you referred me to that catalogue printout do you shot so but again that at the end of the day the question is public access ability it's a constellation of information we have the actual document it has and i asked be a number and i assess and it's put in a library say they lead to why didn't you provide that information that was so easy to do i mean here we got perceiving before the board at keele here you know this could have been solved by a sentence and  additionally sure i mean hindsight is often twenty twenty that's reality here is we have a percipient witness it wasn't quite hindsight i mean and the patent lawyer knows when it comes to printed publication a public accessibility of a book in a library in ray hall is the total touchstone of that in court and you know from in re all you need to prove up that the book was indexed or index and therefore searchable and so therefore you go to the librarian and say whoever was the librarian dropped her for the critical date that book that was on the shelf that actually indexed in some way thats it and although we don't have a  declaration we do have exhibit ten thirty fourth page fifteen sixty six which is the librarian letter that provides the sheltie record and information this is something that the board didn't rely on right now actually it's it is cited in there in their e mail exhibit ten thirty four is cited at page appendix page sixteen of the final written decision and if you look at a seventeen through a twenty i don't think you'll find a citation to this particular example or am i wrong well they provide a recitation of our evidence and then they say we find this record establishes greater writers of the ever great and then step around that issue by just relying on other exhibits that didn't have those kinds of disputes i guess i don't read the final written decision that way i read them they summarize what our noted on page eighteen and nineteen so the additional issues that appellant raised including seriously demanded subsequently about which particular document was a publication but and addresses some of the case law as well but that is part of the record it's part of what they considered and against me one aspect of a constellation of things the fact that it was checked out of the library in and of itself ought to be enough being there is some question is asked like additional function the function of libraries particularly university primary is to access documents or in this case books that contain information that people are looking for th uncertain terms that it was available of trying to clean that it was available in book form and printed edition all yours for the critical date this isn't one of these situations where there's a question about you know timing was something shelled catalogued prior to the critical dates fifty years before and so part of their argument is that yes it may be catalogued as a twenty sixteen but we don't know when it was catalogued before that well whole point to make it publicly accessible now fact of the matter is that even if there is some question about cataloguing i'm a lot of the time people do research by walking over to word one book you show and looking at the other books in the section and if it was shelved with other books about welding or teaching or whatever they'd find it that way as well i would agree was developed to show that her testimony in our evidence on the issue of excessive play was incorrect it could have equally gone to the library and said hey this is this is actually the way it is nothing of that sort they never did in front of you had two minutes thank you i think to start by answering questions from a lot of the yes there are lots of ways to find things in a library and sometimes if you just go to the area where welding books are you might find some of the books but there's no evidence evident that you could have i don't know what was done that you didn't put in it's not in the record but it just showed your position that your honor is i don't know that the librarians could be made available for deposition i can't speak to whether we tried or didn't try because it's just not in this record  ask understood you know with respect to your earlier question about the copyright certificate there is no evidence in the record of any copyright certificate that i know of or any