one two zero one one in re target training international has argued in our briefing that all of the rest of the terminology of claims one section eleven basically that begins with the gauging line is simply not met by this or felt reference anymore there is no comparable language to to that language and so we have two prongs to our argument one is that they got it wrong as in terms of assessment instrument and secondly that the rest of the cl language is simply not met under the strict identity test that money for what is anticipation i do agree that that we're here to review board properly gave that term its broadest reasonable interpretation yes got to wonder him or her yes but what was what so reasonable than what's been reasonable is that they looked at it not as one skilled in the ar test testimony in his depredations says that in this business one skill in the art understands the assessment instrument is one in which there are forced choices that you must make there are no yes no correct they're qualified to be a driver for my pizza delivery business no because the yes no test just gives you information knowledge hard data it does not give you any guidance information as an assessment instrument does as to the competencies of the individual was the only top ses i need are something that has a driver's license is over eighteen and has never been convicted of traffic offenses and it certainly gives me that information well it certainly can give you the information yes or go but maybe i misspoke when i should yes or go it might be any of those questions that or if you answer incorrectly that you're under eighteen or you don't have a driver's license or you happen today to have a try at a tropical pense then you're out that's not assessment services because that tells you nothing have them or not and if you do that tells me that they're suitable for my job that is not what people in the industry would regard as assessment instruments so you think that people in industry would only understand assessment to be aimed at some kind of high level complex job that requires all these multiple factors and talents and not a an entry level job with very minimal qualifications that you don't really require perform the job skills or even possibly have the job or forms a job office as it's going to require and assessment instrument as looked at by by the cited by the examiner in the original examination of the patent hubie uses the term assessment instrument and talks about the same kind of instruments that we are talking about that there will pass or fail in fact  use it in the context of trying to figure out a people who will be good leaders and that's who the patent is completely independent third party i mean we have nothing to do yet or its content and yet he uses  is used in our patent to me that's compelling and if so to sell really was an assessment instrument and described assessment instruments as opposed to a knowledge test he would of he would have said so but he never uses those words anywhere you will not find it in the seventy six columns of some of the anywhere in fact in his glos couldn't be clearer column seventy in his glossary he describes answers as the correct choice he's talking about correct choice questions and this art has developed that they regard those as differ in addition your honors to assessment instruments the reason i say that isn't the only issue that you have before you is because what is one six and eleven all require that you are gauging the individual's performance and gauging is defined in the claims to find the number of things that do the engaging and as well they define how you provide confidentiality because confidentiality in this business is a big important factor so that someone else can't take your test at a nickel to sell and they confidentiality is defined in the claims of different levels of access for master distributors for distributors none of that is and so it fell in my point is the examiner said this is that requires strict identity undernet money at must be everything that's in the claims arranged as a claim and it's pure guesswork to say this sort of hell has everything that's in the claims arranged as in the claim the words aren't even at the border they ask well if we accept your argument for the modern obviousness rejection well there was no obviousness rejection there never was an obvious mr rejection made as a matter of fact we invited the examiner to consider obviousness and he still didn't make an obvious rejection i'm unsure why but he chose not to and so it seems to me that we have to live via and if there is no obviousness rejection then the issue of obviousness simply isn't the matter here for review by anyone and relates to normative processing of data the invention is the same we never said the invention saying what we saw was cuti as in the same are classified the same uses the term assessment instrument and uses it in the same manner as we they he said they found dr watson's declaration a thirty year person experienced in this industry unpersuasive why didn't they say it was own persuasive well they said you didn't tell us whether he's being paid you didn't tell us whether he is a current consultant although the affidavit did say that he had consulted for the business in the past but none of that goes to the integrity of the affidavit and the integrity of a man with thirty years experience in this business telling us what people in this business call an assessment instrument and it's inconsistent i submit to you would judge for decision down in texas we're judged very you know he said plain ordinary meaning but he added very important were plain ordinary to one skilled in the art in the context of the us specifications and finally it's consistent with the prosecution history one looks at the prosecution's history all of the patents were cited were all assessment instrument to which they sit at the fact a method of distributing assessment interest and they say that any document can be distributed the next thing that you responded to when you asked him is it who the patent who  revealed as a long term consultant you didn't give any objective evidence to be his decision on and he didn't establish that there was an assessment interest instrument or at the time much last that the t instrument has been accepted meaning that excludes pack will typically when one is testifying about that subject matter person kills them you know how they would construe it it is rather who story right i mean that's the nature of testimony at often though there is a fight to peer reviewed articles or other contemporaneous evidence and he pointed to no objective evidence whatsoever and additionally as the board him you know testified of being a long time consultant on target training so i think the board properly reviewed is separate from testimony that there's no other further questions i'll be ther