engine currently in development and general electric use is described in the confidential portions of paragraph twenty four dollars in paragraph five that is the most fundamental distinction from the prior of scale where there was no there was no engine in deciding that could potentially implicate the patent the prior bill your desperation i think essentially said this is a competitive field we're likely to design we may want to design but we didn't have specific that g e plans to sign a competitive engine for the marketplace and its current design the one described two paragraphs twenty four dollars in paragraph paragraph twenty four dollars the detail must a declaration and paragraph five the cellphone declaration  are the preferred design so the prior decision said what was missing was evidence that g e is designing an engine now the prior appeal the facts refer to an engine that had been designed but was not being pursued it is now being signed and being pursued and then the other portion of the prior decision was definite plans to use claims features that are described in the declarations and c doesn't really quarrel with those facts it doesn't offer you any other facts different than those facts but actually says that's still too speculative what that actually takes you so far as to suggest that you would have to this patent against it and that is sufficient to satisfy the standing requirement to join the rest of the case the rest of the facts demonstrate that injury in fact is for acquiring it's a very there is that n b c already but that's why the case is recognised that you don't have to you only have to have a substantial risk you don't have to concede infringement you don't have to be admitted french with your wife to jennifer each and every limitation anticipated obviously you would pursue and i p r and that ought to be if you're just signing a product if it's on the box you're pursuing it and you're trying to clear the playing field for that product and you lose you should have a right to appeal so i think that there's doesn't matter what the technology is and it shouldn't matter what at the end of the day what the results going to be because particularly in this case where the design scheme and research and development type of structure but you don't seem to rely too much on that top award that you're on or if i didn't i was unclear you're right i mean we think that for the question of injuring in fact the facts that you just articulated are precisely the reason it's an injury in fact and precisely the reason that you want to clear the playing field when you have this small number of competitors in a market with a long design cycle where the investments are significant if you're not arguing that the dupont case no we are not we are arguing i think at the risk of simplification we're saying two things which is yes the standard for the supreme court's competitor standing standard we would have it but if it's not if it's the panel decision in a prior case and you look specifically at what was said to be questions i think goes to judge choose this question because there is we concede a difference between the record in the prior appeal and this appeal and the difference is what is currently occurring now and given what is currently occurring out if we followed through when i see aren't there been a one hundred claims it's going during this process one hundred claims of could relate to the engine that g e wants to design that will come to market ten years from now and then be used for twenty five more years so we're talking like a thirty five year old window this should be and not and it should be enough particularly if i move to the merits before i go into my rebuttal time and on the merits of the question of obvious says there's no dispute that when just discloses each limitation of claim ten except for three stages nd moxon discloses two stages rd for these types of engines no proof that one of organise feel they are couldn't have done that and had a reasonable expectation of success and the two best facts to indicate that is if you look at the specification of the patent the person of ordinary skill in the art here actually is a rocket expectation of success and i think the last thing i'll say to save my rebuttal time runner is that the answer to your question might have been no reasonable expectation of success the p tab says explicitly we're not relying upon no what what a b x permits them to do under the competitive standing doctrine is to have plans if they were planning something that had concrete plans that would use the claimed invention we wouldn't be able to sue them for that they haven't infringe in order to have standing you don't this particular claim is a method of designing that engine what they have to be designing though the whole the whole here is twofold number one they aren't saying they're designing the engine they haven't said clearly mean i'm not saying that that it's not the fault that i'm finding fault and i'm finding is what is it that they are designing what they have said is only two elements this claim has nine structural elements sixteen dollars to eighteen dollars limitations depending on which claim you look at they've identified only two that they say that they are considering secondly the fault is that it's still not a statement that we are designing it's a statement that we're considering we're going to continue to consider we might possibly do it we are very far from a design here at this point and the design that we are looking at includes not all the limitations that includes only two now mr lee has said oh well you're going to obviously fall within the scope of the their subjective belief that we are going to sue them they have not identified anything yet for which we could sue them for which we are likely to sue and there's got to be an element of reasonable list to this some objective reality they're basing it i do not have it at their infringing you're on you're correct they do not have to admit that they're infringing but they have to be undertaking to plan ns to do some things that would use the claimed close enough that they'd be worried about getting sued under equivalence we're not even close to that line in this case because all they've identified is that they want to use two of the nine structural elements and they haven't identified any of the limitations of the claim that they fall within so again getting back to what the score just said in a v x it's their burden to show that they are in fact have concrete plans and to do something doesn't have to have done it they don't have to have committed record would they be able to put in sure they could put in say look i spent this much to avoid this happened but they didn't do that what they've said is i've invested i think it's under the confidential record a lot of millions of dollars over the past forty years well the sutton has been around for forty years there's no nexus that what the what they put in is proof of how much they've spent has no nexus to this invention they're including things they did forty years ago on programs that they've abandoned twenty years ago so that doesn't that doesn't get them over the hurdle they still have to be doing something under under the sports holdings and in shape tact a v x g e that they are doing something or planning to do something have concrete plan to do something program for this what they call the next generation aircraft program but as i've said what it fails to do is show that their plate they have plans to use the claimed invention so getting back to judge uses point no if they start the design process and the they have to do under this court's jurisprudence is have a concrete plan not having actually undertaken the design yet but a concrete plan to design something that would likely infringe they haven't done that they said were possibly considering thinking about it and it will have only two of the nine elements that's way too far of the line they need to reach it's too speculative at this point that they will have as they fight it out themselves years of further development for the sentient come order to clear what they think is an invalid no your honor i wouldn't go that far out not right i wouldn't go that far i would say that they have to have a concrete plan to do that type of decide they don't have they started to started a thing we thank you for  i'm sorry but i appreciate when you stop too many of your colleagues and large enough i what does it mean to have a concrete plan and if they have an undertaking this is an area that is competitive there's only three engines here there are certain number of places here that we intend to design next generation and enjoy whatever you want to call them that are likely to infringe because these are the kind of depiction of their declaration is that a concrete plan i don't think it is your honor i'm just not concrete about it because they haven't said specifically they are moving forward with that plan they haven't reached the design stage yet but they haven't said they're moving forward the plan they simpl that big investment so right right now the for the program is what's insufficient in their current declaration and sense that we intend to move forward with an engine design that is likely to or it has this in central likelihood of infringement i think they had a sense that said we intend to and that's money and develop client business in an engine design that has a substantial likelihood of an infringement if they came forward with competent evidence and further said we've we've got a concrete that was sufficient to show a concrete plan a fixed plan to move forward right now that's troubling dodd said that we have a concrete plan to pursue that maybe i didn't make i'm sorry is that and if it was in the declaration sufficient if they had said we have a concrete plan and brought competent evidence of it what do you mean by competent admissible evidence that they'd have to be repeat it again not i'm not i'm not sure it would be your honor because this is what is lacking well what's lacking there is that this court has said repeatedly you have to be doing something that's covered by the patent so it has to be a concrete plan to do something that would be covered by the patent and what's lacking is they've only identified say they have a substantial likelihood of infringement that's not at all i thought that's a standing no your honor it's not enough because the substantial likelihood it's clear from the declaration  show that it implicates this claim that what they're planning on building and designing and spending money on would be covered by this claim if i could switch i'll have a minute and a half left if i can switch to the merits of the silly briefly touched on that substantial evidence to support a hypothetical finding in their favor short but there is substantial evidence to support the findings the board did make in our favor the board looked at the evidence as a whole it applied the correct legal standard and weighing the evidence moxon are fundamentally inconsistent one says go to the one stage and the other says don't even think about it so the board is absolutely on solid ground in terms of substantial evidence for all of its findings applied the correct standard and better getting back to the the this court's precedent it's very clear that the claim does present some challenges because it is a method of designing yes and that probably narrows their scope of that on that spectrum of how much space they have but we're not saying they have concrete plan here's what the declarations say paragraph nine of long declaration g e presently has a new design in development and then photons ascribed confidentially you fully expect you to she will expect to me that that's what he was saying but that seems to be a kewl your way of looking at article three standing which is not very high for it and for artifacts restating to take an appeal where the statutory scheme provides you wan to peel and where if you don't have an appeal someday you may get a stock based upon the p tabs find it doesn't make sense as a matter of policy or the way the law is articulated but even if you take mr coin with proposition concrete plans nothing of the kind it never says anything at all about one stage worse is to stage and the one place it says anything it says to stay just or better they are asking you to take a client which has now been