brief outline for we should have omitted the word woe in our gray brief at age three also online for we should have omitted the same word flow turning to standing your honor the supreme court has said that the question of standing quote is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution postcode that's from the data processing case ab x certainly satisfies those two conditions subsequently in the loo hon case the supreme court set out the quote to reduce of all minimum close quote of constitutional standing in three elements injury in fact causation and redress ability a me that in the various competitor standing cases including against our symmetry contacts and the supreme court in some of the older cases arising under the a p a and the d c circuit all involve  essentially the introduction of work to government action almost always about price or new competitors where there is no question that  aspect of the government action challenge applied to the very offerings of the competitors and that's not always true about pat are features specific government actions and if you for example are making offerings in competition with your rivals but have no concrete non speculative interest in that feature then why would those competitors standing places apply those computer standing cases very even in that situation rather even the in the situation here  for example  there's the notion in patent law of convoyed sales we're not saying there's convoyed sales here but you get the sense that in the right height for example a patent owner has certain rights and violating those rights by declaration or otherwise here a specific showing to that sensually connect what you are doing not including the poor planning to do either existing or non speculative future use of the patented feature or to something else that would be a you know a relic anon speculative declaration also says that when he's aware of at least one situation where a client of the ten does a customer won't purchase because there not news to the court but article three is not limited not confined to patent infringement the data processing case the supreme court's data processing case presents a situation of which this is the  flip side if you will in data processing there was one incumbent who was providing services and there came a ruling from the from the government agency that ruling permitted many other competitors to compete and that was and economic harm that was sufficient to satisfy standing this situation is where is the flipside of that under our view of the law  of the facts excuse me this technology was in the public domain it was freely available and long we taken out of the public domain by the grant of the patent on the other holding by the by the board so the in our view the facts there were many competitors competitors who who were of the technology was available to be used by competitors then came a ruling by the patent office in the grant of the  holding by the board and that ruling said no now from now on no other competitors no one can make use or sell a device that comes within the ambit of these claims that's economic harm that's injury and the board had it accepted as it were purported teaching away without evaluating all the all the evidence what  and proceeding along that route nevertheless i was able to get a patent and we say that's not that's not a correct view of the law on u s b atoms you can't just adopt a new use for an old life and get a patent on that that's not that's not appropriate we say that what has happened here is that there is a teaching in these two references and those reference is teaching is not only not limited to its claims it's not even limited just preferred embodiment a reference is available for everything at g h is and here part of what liebowitz is teaching is available the subject of the discouragement in legal it is only as to part of what the claims here and issue in the c six three nine cover that that discouragement and to some of what's covered by the six three nine claims and therefore the analysis of the board rooney instantly narrowed its focus  about by in effect ignoring part of the coverage of the current cl frequencies so even if you were to accept that there is a teaching away with regard to high frequencies in liebowitz nevertheless the claims are not limited and it's error in our to expand it where that teaching a way that that teaching of liebowitz as and treated as a teaching a way for the whole scope of the claims the argument from presidio in the board's analysis don't don't have a limitation on frequency there are many applications for capacitors that don't involve high frequencies involved look frequencies and for those other should not be any teaching away and the claims should be able to take that away from the public thank you petitioner has not met its burden of coming forward burden of production and showing that standing is a pleasurable in this case and as judge toronto pointed out the most directly relevant recent case i'd say is the j tec critical factor during my evolution of this procedure and will soon included the opportunity and right to it so now for reasons which seem to me to com patent and this court were to find that this appeal there had been no standing would it be appropriate in the future to say that because of the finding of lack of standing and standing not being supported by the no available appeal because the petitioner having lost before the board who lacks standing that nevertheless three fifteen easiest sample provision bars that petition or from later raising a ground either raise or that could have been raised in the in the board proceeding i don't think this court has addressed that question right here we are well actually i've beg your pardon your honor but i don't think we are there yet because if this court finds that there is no standing for this appeal to proceed and then at some future point a v x actually comes out with a product for purposes of standing so we shouldn't it shouldn't be a sword and a shield as to us then that question would be raised in germane then but that's only in this hypothetical world that doesn't exist right now since you seem to  address what i think is a hypothetical question in the future whether the stoppel provision would apply to a v x i'm not sure i haven't actually considered where that should apply if you've made one kind of fifteen when read together with the right of appeal of three nineteen might be understood implicitly to incorporate that longstanding restriction on preclusion or on the other side languages with the language correctly and under all of these scenarios that we're currently discussing i think when i say there are hypothetical they only would come into play again if a v x comes out with a product which it currently thing haven't been assured that they wouldn't be sued well that is what they have sat in their briefs they'd argue that but i would suggest that if you look at the evidence in the record which the and they make no statement that they have a product that uses vias and the sixty nine patent claims require vias so they've made no allegation that they even have a product that has the feature in question they make no allegation honor a myriad of capacitor products catalogs each of the companies have literally hundreds of capacitor products the sixty nine patent claims have a specific feature that being the incorporation of  vias which are not founded any product of a v x i mean if you look at the slab declaration nowhere does he say that they have a product with that feature and nowhere to see say that they're intending to have a product that feature so unlike the deponent case your honor where the dupont actually had a plant that was ready to manufacture a product that was covered by the patent that was involved in the i p r and the court found and practitioners now refer to it as dupont standing because they met the requirements of having an actual immediate concrete plan to take action which could result of would likely result in a charge of infringement we have  of course and in the framework of your question of course really understand that this court is looking at the determination of non obviousness of the claims to know about and yet the factual findings including the teaching away finding by the board is reviewed for substantial evidence so with that framework i would suggest that if we look at the the liebowitz teaching wow maybe x again in their  to said very layers are brought to the surface through via the present invention so there's case law to the effect that once we talk about the presence invention or talking broadly about all aspects of the invention it's not just a preferred environment and saw present invention to a high frequency limitation if you look to the next paragraph down the wrong line fifty six is there anything about high frequency in the claims of the even with now the claims of label that are limited to high frequency nor are the claims and i think this is opposing counsel made it seem so because the six three nine patents don't have any mention of frequency range that somehow therefore they could cover any frequency range if the teaching away in level with was somehow limited to the high frequency portion of the spectrum then because the claims cover more than that that the teaching away is only teaching away from up portion of the scope of the claim i think that defies logic to me and i hope it does to you as well particularly when you look at the passage that's being cited which is line fifty six  useful at higher frequencies it doesn't tie the high inductance drawback of buried electrodes and vs to only the high frequency spectrum it just simply doesn't do that to a v axis argument is really trying to piggyback from a very sort of generic comments about the usage of these products hiatt to the teaching away which i priest essentially their expert had to admit that liebowitz actually says what it says it actually is telling a post not to use vs and it's not just in the specification here in column one if you look at the file history and i apologize i just noticed this if you have a day that portion of the appendix that has the file history at that appendix page numbers you notice how often i and i  sick i thought it was mysterious the file history is considered part of the published prior art well certainly it's within the scope of what a procedure would be aware of when they are looking at the what a prior sure my point is simply that the claims of labor with some say specifically that that invention and leibowitz is with out of the so that's a second you know in a patent some cases certainly find that there's a teaching away just sort of in the overall scheme of of a specification it in in the prior and i see that my time is up i've been no reason to justify just finishing the thought and that is that so there's not a whim a requirement of multiple instances of teaching the way here you have from what to me feels like one of the most explicit teaching away which is in the  seen where it says we don't use vs is are bad don't use them you look at the claims that's yet another place in the specification where it excludes vias specifically and then as a follow up if the procedure were to look at column one to the president mention included when the application was filed a claim an invention that did include vias they had to be excluded in the claim wondering prosecution  just not apply it you can though it may be a statutory second it's not hypothetical in this it's not in the future the stop will effect is effective now right now we're stop we for example could not go into the patent office and try to file another i p r on other art we are stopped we are stopped and that's a that's a current harm to us but it's a current harm to you only if you are now or have not speculative plans to engage in behavior that would be affected by the