holly we please stand i move the admission of holly kathleen victor seven who is a member of the bar and is in good standing with the highest courts of california i have knowledge of her credentials and i'm satisfied that she possesses the necessary qualifications holly has been my law clerk for a little more than a year now and she's conducted herself exceedingly well she has been smart hardworking a great writer but most importantly she's been an absolute joy to work with and have in the chambers i'm going to miss or tremendously when she moves but i know that our bar will be better off for having her in it so  clear she decide to go a different direction based on the strength of your recommendation based on your experience with mr victor soon the fact that she was able to endure a clear ship with you for over a year i the courts will kill you makes you stronger the court grants your motion just more holly please raise your right and and  know now our next matter of business is our first case this year old one six six two three four seven specialty fertilizer products vs shell oil difficult at every difficulty this mantra is invoked by the board but perhaps the most glaring error was the was to ignore fully two thirds of the disclosure of the facts and p c t reference  when all of these scenarios are considered there is an infinity of disclosed propositions outside explains moreover the ranges and extreme p c t are not designed to teach anything to a skilled artist and they have one to ninety nine percent i submit that's more of a patent lawyers range than a sign of a strange one of the things i was struck struggling with was whether your specification in any way the microenvironment to the city other words the real key to the invention or one key is certainly the fact that you get these micro environments where you can enhance the uptake of micronutrients without completely  ranges are are important for achieving that result in the first part of the case i can get to the site for you but i must admit there is no data in the application that of that supports say something l but in any event these ranges are so broad that it's difficult to get a broader range and one to ninety nine percent and so and then one to eighty on the on the other element into the situation described from the peterson case where there are a multitude of distinct compositions and accordingly we also contend that the the examiner position in the ran setting forth that the art did not establish a problem fish occasion analyzing this on the basis of a genus species is entirely correct the claims also require that the granules when applied t rush so chemistry is exceedingly complex and you can't top priority to say that something's going to work because you need to actually test a given composition to determine whether it has these properties but your because of the issue of of confrontation but that they cannot amount to substantial evidence under those under those conditions what if we disagree from them some advocate then what is your response in the record and so in other words this court cannot fill in the blanks for the now the second issue was commercial success we believe it's very important to understand what is not an issue not virtually none of the factual matters set forth in the book are that for separation are disputed  it's just one specific formulation of the patent claim composition which covers broad ranges of different ingredients that it's true but i don't so therefore the concern is is that your commercial success is not truly commensurate with the scope of the claim i mean there's so many different iterations of products that could be made with your claim composition so how do we well you how do you have any confidence that it's the full range of your claim is truly going to drive commercial success in the same way that this very specific formulation  well you're going to first of all i think the law is clear that that i forget the name of the case but this court has decided that you don't have to show commercial success to the full scope of the claims so there has to be some something reasonably commensurate with the scope of the clan i guess is what i'm concerned about and if if you have one percentage that i don't know point two five to twenty five percent another ingredient that i don't know two to forty nine percent you know these are really really broad range of them so yes you have commercial success or we could argue that you do for one particular isaac formulation of it but i don't know what that tells us i mean if you had a dependent claim for example does very specific formulation then there would be a much more tight nexus between that specific formulation claimed in a dependent claim and to commercialize products here i don't know if we can say we have that given the breadth of the claim and all the different types of compositions are actually being covered by your claim well your honor but you know commercialisation is different than talking about the scope of claims i mean if you have a the before the board of peel's and the board said no no you can't that's that is not the law now but in any case i don't understand how we can how would you  proof commercial success you would have to show everything within the range of your planes because we're talking about commercial success not some some sort of patent range so as i say you don't you don't go  and make products you know no i'm not suggesting you have to make you know four million different products and then put them out all out on the market and then show that each one of the four million enjoyed commercial success but we don't have that situation here that we have we're on the other end of the spectrum where you have one data point with three different products ok you know three may be right and then there's a whole much wider range and then in the face of all that we have a prior art reference  which teaches combining all these different elements already so now we need to try to figure out is there something specific about what's inside your claimed ranges that that's driving the commercial success of the outside from what that's been already teaches which is the broad general teaching of combining these very same elements however you see fit well all i can say is the the commercial success is real and it is for three different products at least and i guess i don't understand why do you say we don't have to go out and make forty million different products and see if they're all commercially successful how many do we have to make green we have three products and we have extraordinary commercial success with those three products that are covered by the coins but your facts are covered by the in that case is not limited to contest sheet here you have a situation where two parties are in equal evidentiary footing everything we've cited for commercial success is in the public domain nothing shall have a full and complete opportunity kind of question whether an equal adventure is hurting in the in light of your due process arguments in this case it's clear that this isn't a full blown evidentiary proceeding where both sides have an opportunity to take all of the evidence if they want so i public domain there is nothing that they that we took no discovery couldn't take any discovery we relied on public domain information they had that equal access to that same public record information so therefore the parties were for a broad genus versus specific substances that are in the claim and here we don't have specific substances that are distinct compositions the claim broadly covers anywhere from five to forty nine percent preferred ranges and i think this is clearly shown on page three of the reply brief they hear that the patent owner provides a diagram that shows the scope of what these claims cover that covers all of the compositions that are within that red box on the lower ranges that are described and this also goes to the point about the inherent sea feature and i think judge moore you pointed out that there is a declaration in the record that supports the position that in fact in baxter and the ninety eight there dr blair also addressed the argument that they're raising now an appeal that the phosphate would time to create a buffer in the soil and therefore it wouldn't lower the ph dr blair explained that no that doesn't happen in the concentrations of these elements that are in the soil that substantial evidence of that supports what we're finding on that point turning real briefly then to the commercial success argument here  board properly applied this court's law in finding that the patent or fail to provide evidence that the commercial success of micro sentients products is due to the merits of the claimed invention beyond merely what the fertilizer broad scope of the four five nine patent claims and just more as you point out this is not a contested case and so that the presumption that that applies in contested cases like this report infringement litigation or interparty to review cases it shouldn't apply in the reexamine why because as you point out we don't have the ability to go out and get the evidence that might tend to rebut these types of arguments if you think about it when the commercial success gets raised in the proceeding it would be an in the patent owners response to the office action under the statute the requester has thirty days to provide comments and that can't be extended because it's in the statute and so would make these commercial success arguments in that response and our next response would be do thirty days after that and so we would have thirty days to go out try to get some sort of evidence to rebut commercial success the presumption of commercial and as this court has indicated in other cases that evidence might be the commercial success was due to advertising or student customer support or something like that that's all information that we would have to go out and get from third parties in the market but there is no ability to subpoena third parties in inner parties reexamination proceedings so for that reason the presumption of nexus shouldn't apply and i think another reason in this specific case the presumption shouldn't this presumption because it's excess fall and it's because it's within the broad scope of the four five nine patent claims but what they're ignoring is that it's also within the scope of what's disclosed in baxter and that's why the board here was correct  applying this court case law and requiring the patent wanted to come forward with some evidence that the commercial success was due to the specific features of the four five nine patent claims namely the specific ranges over and above what was already disclosed by bets that in addition when it comes to invoking the presumption of that since it isn't there is some requirement that the commercial product has to have some kind of one to one correspondence with the claimant so the claim is the product of the product is the claim as opposed to the product being one possible embodiment that is covered by a broader scope  successful that are within the scope of the claim so i don't want to argue that far but i will argue that these claims are very broad even compared to the broader bechstein claims and they've identified with they say three products that are within those mourning your honour's please the court i'd like to address the due process issue that's been raised and our position is that that issue was fully resolved in the abbott decision which determined that section twenty four subpoenas are not available in our part reexamination proceedings which as has been discussed are not contested cases and in particular here specially fertiliser has had notice an opportunity to be heard and specifically an opportunity to rebut  the statements that were made and the hider and blair declarations there they submitted their own declarations and they had no problem identifying numerous alleged problems with the declarations and their brief into this court and to  points made and specially part of wiser's brief they primarily rely on various cases talking about more trial or adjudicatory type settings and not the type of examination proceeding that we're dealing with here and in particular they've cited the gamble case repeatedly which is a case from this court for the proposition that without the right to confrontation lower court proceedings or you know agency proceedings  nala five and that's just not the case because even in gamble the conclusion of the court was that there was even though there had been no confrontation in that particular case there was enough permanence and in that case that turned on the fact that there was no prejudice to the opponent on the range issue i'd like to briefly just point out that because this is an examination proceeding and not in a do you know a trial proceeding as  the burden is on the examiner to establish not to establish obviousness under one of three and therefore it's totally appropriate to shift the burden of production to the patent owner when we're dealing with ranges that are fully slightly overlapping ranges will give rise to that presumption and peterson says that that's even more so the case when you have a fully encompassed claimed range relative to the prior art and here i think it's important to note it's somewhat obvious especially for a wiser came back in a rehearing petition in which it had to raise all of its points of disagreement and unexpected results was not one of those points and therefore it's been waived their entire argument rests on the idea that there should not have been a prime a face a case shifting the burden back to them to establish why this was a particularly important range or would have produced unexpected results here since as a prime official obviousness typically exists when the overlapping ranges to any of our cases to your knowledge refer to it as a presumption i'm just i'm trying to make sure that these legal words that we use or are accurate in appropriate is it are you from the you're with i mean i don't see the presumption peterson like you know to keep it that point in this case and maybe in a lot of p t o cases is when the patent examiner agency invokes the notion of routine experimentation and and  and then sometimes that can feel like a short cut to get to the finish line where that agency just says oh by the way it would be routine experimentation to get to all these interesting claim rangers in the end rejection and i what i'm looking for is are there some contours or principles that you can tell us on how that you can see things about when it is right and when it is wrong to invoke the notion of routine experimentation you are so i think the routine experimentation language shows up in a two different contacts first in the context of making the prime aphasia case and there i think it's just a shorthand that the agency uses to say this is a situation where we need to put the burden of production back on the patent owner or the applicant right but the agency has to make a conclusion or invents a rationale for why it thinks it's ok to push the peterson that where you're dealing with ranges of known components known ingredients with known properties and those ranges overlap or especially when they completely encompass the claimed range then it's at that point you can assume that one of ordinary scone the art would have the motivation to design within those disclosed ranges and experiment with various percentages of those components and then again not just simply shift the burden of production back to the patent owner to rebut that usually by showing prior art is this a situation where someone is just making routine expected variations to the art that cats are talked about or is this something where an inventor discovered something truly unexpected that one would not have examination you cannot come in with affidavit your declarations from third parties particular your own employees saying that this is obvious over that you see the problem here is that they've allowed these kinds of preparations to come in without any corresponding frost examination right which we deem to be directly against the constitutional right of due process we think a lot supports us and and so  the problem here is that the proceeding is structurally in this case the proceeding was structurally unconstitutional and then mr collins you indicated that when you sat down you were going to find a site for judge still yes i find prior art you can do it bikes by routine experimentation you overhear the commercial success they say well you can find it in these it's readily available through come through routine experimentation so therefore there's no difference in the analysis and that's not  different analysis for commercial success and for a less obvious which i will close by saying further i think that if this court will take a unbiased look at what and ran versus the board and the read side by side and its inclusion is inevitable that what the examiner stated was far more nuanced and had much only review the board's determination to schedule events we don't get to review things you know you're asking us you think if you will only do this well we can't do that because the law doesn't allow us to the law requires us to review these things for deferen people the board's opinion is nothing but conclusory is nothing but a bunch of of unbiased conclusions and we submit