the claim that's in the treatment to damage their focus the evidence is that they claimed the number of particles used in the inventive process fall within and order the particle concentration ranges the inventors disclose and their specifications for that no evidence has been submitted to the claim concentration is critical or that the claim process works differently at any different concentrations council even if we were to say that the term about should have been construed as plus or minus twenty percent points of written description of that that particular claim and in the incorrectly held that the disclose concentrations didn't support the claim concentration range misconstrue the term about in the claims by not adopting the broadest reasonable interpretation did not leaves me a little bit confused exactly what it was that the board said as a reason or as the reason for rejecting your amended one of the things that the board clearly said was that you hadn't shown that your seven if you claim seventy four would not have i guess would would have been to supply written description for your proposed amended claim and then it also says something about showing why it were earlier patentability problem is claim in light of sienna claim one and therefore the interference in fact and should be reflects the count at the board was wrong about that or mike what i'm trying to understand is does that matter or were there independent grounds for the limitations changes modifications so few so few one that was argued have to do with concentration and insist simple translation a translation from a particle there was no criticality count or the nine forty one patent goes from ten to the knights attend to the twenty third particles no one has ever raised the argument or suggested that  correct there were there were three separate grounds three separate reasons why the judge denied the motion to him now as you know and bork practice we're moving here the movement to bear the burden to prove t then make the showing any evidence to say here's our reclaim the light why don't they why isn't it enough for them to rely on the law that covered the peterson related law i don't know if i could quite got that right about their thing being in the range that that gives them a presumption walking into the they don't need any more than the present there's no presumption your honor when you're talking about one data point they're saying it's two fifty ot it is within the range and you claim something that's very similar but here are one data point within a giant range there's no presumption obvious there's the border walls are very clear you must at least allege obviousness you must the claim says any concentration of nanoparticles in this range is going to look for its intended purpose of the said sure it does because it was allowed it's an issue patent which includes operability non obviousness no anticipation utility so there is a presumption that attaches to any valid issued patent right would wouldn't work because of the other parameters of climate but the point is there is a large range that's resized it in the c n n claims the burden was on the movement to least make the allegations make the facial allegation that they are very narrow pinpoint within that range would have been obvious therefore meeting the two way obviousness test the board requires the movement make at least a prima facia showing of a two way the obvious this  unworkability of the rain i have to go back and look and see the declarations were i think they may have been the same declarations that were filed they're probably not part of the joint appendix was that issue wasn't wasn't on appeal it was a part of the appeal but i guess i guess i don't i don't understand because i haven't seen you allege or point to any evidence that suggests that anything with between ten to the one to ten the twenty third would work and if there is a but i don't know why they need to do more than that because the board's rules say that in order for you this give the first prong or if you don't as you claim you must at least make the allegation that there's an interference in fact between your proposed claim and did they not do that they did not do that evidence that's right so and that the point i was making earlier is that you you need at least to have evidence from a person of skill in the art from an expert to say i've looked at this evidence i've looked at the broad range it's claimed i've looked at this point and this point a person still there would have found this point to be obvious in the law the broad range that's a simple statement to make it doesn't exist in the record the and the board simply said you did meet your bird whether or not it's true or not isn't the question here the and the the law here is very clear and interference in fact is a true way obviousness test you take one claim presumes part with that the rest of the other claim obvious and then you have to do the vice verse and it's an end so what this is saying  this isn't some kind of code is that you must show there's an obvious this test and that it satisfied and then you have to go through and say that if this claim is prior art this claim that i pursed proposing is obvious and vice versa you have to make that showing and that's not just their ass to be evidence there's no question that simple a simple allegation isn't going to be sufficient to meet your bird you're the movement you have to least have some evidence to support your allegations counsel upon is whether or not they showed that there is a whether they showed that this claim that they're proposing actually corresponded to the count and so the challenge in this case is claim one they have to show again that this claim corresponds to count there was no evidence presented that the claim corresponded to the count so that's the second prong can you translate that into a different lawyer i'm sorry yes i know it's jargon so interference in fact is  first task is one of the tasks we've been discussing is taking the claim you're proposing and looking at any claim of the opponents and see if there's an interference that's the first that's one test this is a separate test now you're proposing a brand new claim you need to show that it belongs bottom of page twenty two and if they don't give any reason except that they say for the same reasons to see it's the last sentence in that paragraph for the same reasons gypsy has al failed to meet its burden of showing proposed claim seventy four would correspond to the count and so for the same reasons as the last sentence of the paragraph i assume and correct me if i'm wrong that the reason they're talking about all the reasons articulated in this paragraph is that right that's that's what i would read as well you are and so the problem is what if i have a problem with the reasons they articulated in the paragraph and i do and my problem is i'll just be very honest and clear with you fear and in bard there is a teaching away from a portion of the range we also don't have that in this record any sort of teaching way that's why i perked up and got interested when you suggested to me there was evidence that not everything in this range would work but then you said well it's not wasn't part of the evidence in front of them through this motion because this with the board cited to us is in the anticipation case followed by a teaching away from a portion of the genus case so what that suggests to me is that that creates a cloud over whether everything in a particular genus would or would not work i don't see a cloud here and so i'm not sure why when we're talking about obviousness instead of anticipation and why there is nothing that leads away from any part of the genus being operable or concentration of nanoparticles i don't see why they have to prove anything else they don't even make the need to have an expert a pint that it would have been obvious that simply as a matter of law isn't a this isn't a question of whether or not the movement could have possibly met met its burden the quote of the board here says i don't see any evan in this record to support the allegation that this would have been obvious therefore the mov fails to convince any evidence to and therefore fails to meet its burden and just show this just to be clear you all did not put any evidence of your own that claim seventy four was on that you just is the third the third element is that you have to show the claims pavel you have to show that that the claim is palpable and that includes you must you must show what a claim chart you must have a claim chart that shows where you have argument that the earlier declaration of an interference resolves a bunch of questions but the board doesn't say what those questions are well that's that's understood you wanted to mean that the fact is that our declaration of an interference doesn't resolve it that that paragraph does not say and here is why you lack the written description support as the standing order would require a basic tenet of adding a claim you have to have a claim chart you have to have your proposed claim and a claim chart showing where everything is supported they didn't do that first of a least three limitation we discussed in our briefing that when you meant address in their briefing those declarations were they related to your amended to your motion to amend it to support them or are you relying on on declarations made with respect to the written description argument thirty to forty nine  they're not you know we don't have to have those i know i know you want to number a lot of things that don't eventually make it into the bound volumes yes it's that is correct that it does correspond to that i wanted to point out let's let's just look at this from a legal point of view are you saying that you need to you don't have to meet any type of burden in a motion to amend when you move command claim somebody for it you ha and that is in fact part of our herd which when we met we also met the bird as a standing order indicate to certify that the movement is not aware of any reason why the similarity between that which we have in seventy four and sixty five this entire proceeding namely into fairfield's should continue in the substance of this is an argument over well i think the the question isn't whether you made any arguments or any type of he had any type of an intruder claim seventy four would  damage to the hair follicle case right but it but it but the board says and they say this in footnote twelve or twenty two that you failed to address for the cns claim would render obvious the proposed claim night twenty third it really cannot be important critical the operative term that of this process of the concentration this is a process to remove or address damaging hair follicle the bride to have concentrations across the board no or no for specification as expressly stated that there is any critical health associated with the concentration no motion ever filed by c and no interference in fact from the very beginning no one has disputed that there is an interference the question really should be addressed is moving forward to i think both counsel the case is taken under submission