[00:00:17] Speaker 04:
Please proceed.

[00:00:25] Speaker 01:
Please proceed.

[00:00:27] Speaker 01:
Good morning, Your Honors.

[00:00:28] Speaker 01:
May it please the Court.

[00:00:30] Speaker 01:
My name is Janelle Walk, and I represent the appellants in this case, Intervet, Inc., and Merck & Company.

[00:00:37] Speaker 01:
Our argument will address three issues.

[00:00:39] Speaker 01:
First, Intervet established a prima facie case of priority in its original suggestion of interference.

[00:00:46] Speaker 01:
Second, Intervent fully addressed the issues raised in the show cause order, even though no further showing was required.

[00:00:55] Speaker 01:
And third, the board was arbitrary and capricious in not authorizing the motion to challenge DuPont's accorded benefit.

[00:01:03] Speaker 04:
You submitted a declaration, Williams, one of the inventors, which required corroboration.

[00:01:09] Speaker 04:
You submitted a notebook page, which you suggested was the corroboration for the reduction of practice.

[00:01:16] Speaker 04:
The problem was much of the notebook page was written in German.

[00:01:20] Speaker 04:
You didn't submit a translation as required by the regs.

[00:01:24] Speaker 04:
And you redacted a lot of stuff in that document, including the dates.

[00:01:29] Speaker 04:
So how is the board supposed to know what date, for example, that corroborates Williams' claim to reduction of practice in his declaration when you redacted the dates?

[00:01:41] Speaker 04:
Put aside whether they should have allowed you to supplement the record

[00:01:47] Speaker 04:
whether you proved good cause, let's just first focus on only what they had in front of them absent your attempt to supplement.

[00:01:55] Speaker 04:
And that's what they had.

[00:01:55] Speaker 04:
They had a notebook page in German with redacted dates.

[00:02:01] Speaker 04:
Given that I review that for substantial evidence on their fact findings with regard to what that document teaches, I don't speak German.

[00:02:09] Speaker 04:
I can't see through the blackouts.

[00:02:11] Speaker 04:
So I'm not sure how you think I could

[00:02:14] Speaker 04:
the board did not have substantial evidence for that fact-finding.

[00:02:19] Speaker 01:
Your Honor, I believe the date issue is addressed by the fact that redaction of dates in the interference context is accepted practice.

[00:02:29] Speaker 01:
MPEP 715.07a spells out the process.

[00:02:34] Speaker 01:
As long as there is a statement that the activity occurred before the critical date, you are entitled to redact the dates.

[00:02:42] Speaker 01:
The purpose of that is

[00:02:44] Speaker 01:
At the suggestion stage, you don't want to give an unfair advantage to the other side.

[00:02:49] Speaker 01:
So redaction of dates is perfectly acceptable practice.

[00:02:52] Speaker 04:
But that argument suggests that the PTO is wrong to require corroboration of your claim date.

[00:03:00] Speaker 04:
That suggestion means Mr. Williams' statement in the declaration about his date should stand alone and be enough and not require corroboration as to his claim date.

[00:03:10] Speaker 04:
Is that your position?

[00:03:11] Speaker 04:
That the regulation requires nothing more

[00:03:14] Speaker 04:
than his declaration to establish the date?

[00:03:17] Speaker 01:
Your Honor, first of all, it's Ms.

[00:03:18] Speaker 01:
Williams, who's a woman inventor.

[00:03:20] Speaker 01:
So we believe that we complied with the procedure according to the MPAP and the case law.

[00:03:27] Speaker 04:
I'm asking you a question.

[00:03:29] Speaker 04:
Is your view that there is no corroboration needed for a date of reduction of practice that is claimed in an inventor declaration?

[00:03:39] Speaker 01:
No, we think the statement in the Inventor Declaration satisfied that.

[00:03:43] Speaker 01:
In addition, the laboratory notebook did provide corroboration of the date.

[00:03:48] Speaker 01:
If you look in the study number at the block right below the project title, you see the study number has 2006 in the date.

[00:03:58] Speaker 01:
That is the year before the earliest possible

[00:04:02] Speaker 01:
DuPont filing date.

[00:04:03] Speaker 03:
So that is additional corroboration for that date.

[00:04:07] Speaker 03:
The whole thing could have been stricken for failure to abide by the rules that require a translation with a declaration that certifies that the translation is accurate.

[00:04:21] Speaker 03:
And none of that happened, right?

[00:04:23] Speaker 01:
You're correct, Judge O'Malley.

[00:04:24] Speaker 01:
A declaration was not submitted

[00:04:26] Speaker 01:
with a certified translation at the time of his suggestion.

[00:04:31] Speaker 01:
However, this notebook page provides enough information that one of ordinary skill and art could understand that the test was conducted and it worked for its intended purpose.

[00:04:41] Speaker 02:
Does that say prior to June 27th?

[00:04:44] Speaker 01:
What it says is a study number where 2006 is part of the number.

[00:04:49] Speaker 01:
You can find that right below the project title.

[00:04:53] Speaker 04:
What day in the, what spot in the appendix would I find it?

[00:04:59] Speaker 04:
I'm sorry?

[00:04:59] Speaker 04:
What is the appendix site?

[00:05:01] Speaker 01:
Appendix 587.

[00:05:05] Speaker 01:
Five what?

[00:05:06] Speaker 01:
587.

[00:05:09] Speaker 04:
Is this the redacted version or the non-redacted version?

[00:05:12] Speaker 01:
This is exhibit B as attached to the suggestion of interference.

[00:05:18] Speaker 01:
So with regard to the question about the German language.

[00:05:21] Speaker 01:
And you want me to look at what?

[00:05:23] Speaker 01:
Where you see project referencing the third party compound.

[00:05:27] Speaker 04:
The thing that says PO lowercase OF underscore MS underscore 2000, and I'll take your word on it that it's a 6.

[00:05:37] Speaker 04:
My copy is not particularly legible, underscore 01.

[00:05:40] Speaker 04:
And from that, they were supposed to assume that this was something that was produced in 2006.

[00:05:47] Speaker 01:
Yes, Your Honor, that's what I'm referring to.

[00:05:49] Speaker 01:
2006 is the year before the DuPont earliest effective filing date.

[00:05:52] Speaker 04:
But you understand that's not a date.

[00:05:53] Speaker 04:
That's a project number.

[00:05:55] Speaker 04:
And I'm supposed to find the PTO lacks substantial evidence for a conclusion that this document on its face demonstrates a date.

[00:06:04] Speaker 01:
And again, 2006 is the year before the DuPont earliest effective filing date.

[00:06:10] Speaker 01:
With respect to the German language aspect, there is much more information in this document

[00:06:17] Speaker 01:
that one of ordinary skill in the art would understand.

[00:06:20] Speaker 03:
So in addition to the project number, across the page is the... What declaration did you submit that would say that someone of ordinary skill in the art would understand this to be a year versus a number?

[00:06:33] Speaker 01:
There is no declaration supporting that, but the document speaks for itself.

[00:06:37] Speaker 01:
This is a physical laboratory record.

[00:06:39] Speaker 01:
There is no need for corroboration of the contents of the physical laboratory record.

[00:06:44] Speaker 01:
That would be an error.

[00:06:45] Speaker 01:
That would be corroboration of the corroboration.

[00:06:49] Speaker 01:
So we have the date here.

[00:06:51] Speaker 01:
Across the page, we have the company.

[00:06:53] Speaker 02:
How about at the bottom?

[00:06:54] Speaker 02:
Look at the very bottom of that, where you have a signature.

[00:06:58] Speaker 01:
Yes.

[00:06:59] Speaker 02:
This is D-A-T-A-N.

[00:07:02] Speaker 02:
Or D-A-T-U-M, rather.

[00:07:06] Speaker 02:
That means date, right?

[00:07:07] Speaker 01:
Correct, Your Honor.

[00:07:08] Speaker 02:
And those are blank?

[00:07:12] Speaker 02:
I'm sorry?

[00:07:13] Speaker 02:
Those are blank?

[00:07:14] Speaker 01:
No, they are not blank.

[00:07:16] Speaker 01:
The actual dates are in the actual laboratory notebook record, and they actually do predate the DuPont earliest effective filing date.

[00:07:23] Speaker 02:
For purposes of the suggestion of interference... This is the declaration you're relying on.

[00:07:27] Speaker 01:
This is what Judge Moore was referring to.

[00:07:29] Speaker 01:
Those dates were redacted for purposes of the suggestion of interference.

[00:07:34] Speaker 01:
And again, that's accepted practice so that our opponent does not have an unfair advantage in understanding our dates... But there's got to be something else

[00:07:42] Speaker 02:
in the declaration that corroborates.

[00:07:44] Speaker 02:
I mean, you can't just redact a date and say it corroborates.

[00:07:51] Speaker 02:
There's got to be something else evident within the document that itself would corroborate.

[00:07:57] Speaker 01:
And on that point, we're relying on the 2006 date in the study number.

[00:08:02] Speaker 01:
In addition, we have the table of... I still don't see.

[00:08:06] Speaker 02:
Point with your finger where you're talking about.

[00:08:08] Speaker 01:
Right here.

[00:08:10] Speaker 02:
Which finger, though?

[00:08:11] Speaker 02:
I mean, you're talking about your index finger?

[00:08:13] Speaker 01:
Sure.

[00:08:14] Speaker 01:
The study number is in the block just below where it says third party compound.

[00:08:18] Speaker 01:
There are four lines, and it's in the third line.

[00:08:21] Speaker 02:
Isn't that the address?

[00:08:27] Speaker 01:
That is the study number.

[00:08:28] Speaker 01:
So in addition to that... I want to try your next argument.

[00:08:33] Speaker 01:
In addition to that information, the other information that one of the coordinators still in the art would understand from this page is

[00:08:40] Speaker 01:
Tenicephalitis felis is the name of the flea.

[00:08:45] Speaker 01:
It's in Latin that refers to cat flea.

[00:08:48] Speaker 01:
In addition, we have the table of data.

[00:08:51] Speaker 01:
The first row, the first column, again you see the compound number that's reflected in the title AH252723.

[00:08:59] Speaker 01:
Then in the second column you see PO.

[00:09:03] Speaker 01:
That is the Latin abbreviation per os, which means oral administration.

[00:09:08] Speaker 01:
Then in the fourth column, you see the dosage, 10 milligrams per kilogram.

[00:09:13] Speaker 04:
Okay, this is your time.

[00:09:14] Speaker 04:
You can spend it however you want, but I don't even understand what this is going to.

[00:09:18] Speaker 01:
The point is, this laboratory notebook page, when viewed through the eyes of one of ordinary skill in the art, provided sufficient information to corroborate the Williams declaration.

[00:09:28] Speaker 04:
Except for the date.

[00:09:29] Speaker 04:
So what I suggested before was you probably want to switch to a different argument, because I know you said you had three things you wanted to cover in this oral argument.

[00:09:37] Speaker 04:
So you have not persuaded with regard to the date.

[00:09:40] Speaker 04:
Nothing personal.

[00:09:40] Speaker 04:
It's the facts that you're stuck with.

[00:09:42] Speaker 04:
So you might want to move on to a different argument because you have three different ones.

[00:09:48] Speaker 01:
OK.

[00:09:48] Speaker 01:
In the event that the court does not find a prima facie case based on the suggestion or the combination with the information provided in response to the show cause order, then we need to deal with the last sentence of rule 202D2.

[00:10:02] Speaker 01:
Under that rule, the board may authorize a party to file a motion to challenge a courted benefit.

[00:10:11] Speaker 01:
InterVet requested such a motion for interference count one.

[00:10:16] Speaker 01:
InterVet provided a detailed technical explanation why the DuPont 2000 provisional application was not a constructive reduction of practice.

[00:10:26] Speaker 01:
The board abused its discretion in denying that motion for four reasons.

[00:10:31] Speaker 01:
First,

[00:10:31] Speaker 01:
The board did not even consider the merits of Intervet's argument.

[00:10:36] Speaker 01:
If you look on Appendix 8, Footnote 2, the board even states, we have not considered the merits of these arguments.

[00:10:44] Speaker 02:
Well, they did say that you failed to show cause as to why you should not have presented or could not have presented this before at the time of the following suggestion.

[00:10:53] Speaker 01:
So the board required the request to be made in the suggestion.

[00:10:57] Speaker 01:
We believe that was an error.

[00:10:59] Speaker 01:
There's nothing in rule 202D2 that requires that request to be made in the suggestion.

[00:11:05] Speaker 01:
And in fact, in this case, it wouldn't make sense.

[00:11:08] Speaker 01:
The suggestion of interference was directed to a different count than the count that the board decided to put in the declaration.

[00:11:18] Speaker 01:
If you change the count, you're changing the analysis for the constructive reduction of practice.

[00:11:23] Speaker 01:
It doesn't make sense.

[00:11:24] Speaker 01:
I mean, how can you expect Intervet to put an explanation in its suggestion

[00:11:29] Speaker 01:
about a count that hasn't even been announced.

[00:11:35] Speaker 01:
So we believe the board erred in requiring that explanation to be put in the suggestion.

[00:11:41] Speaker 01:
In fact, that timing would contradict the rule itself.

[00:11:45] Speaker 01:
The rule refers to accorded benefit.

[00:11:49] Speaker 01:
Benefit is not accorded until the board makes its statement in the declaration.

[00:11:55] Speaker 01:
So as I said, when the board did accord benefit,

[00:11:59] Speaker 01:
In the declaration, it did so for a different count than the one in the suggestion.

[00:12:04] Speaker 01:
The suggestion proposed a count encompassing a very large genus of compounds.

[00:12:10] Speaker 01:
When the board defined the count, they limited it to compound 11-1, a species.

[00:12:18] Speaker 01:
And that matters here.

[00:12:18] Speaker 01:
You don't know if you have a constructive reduction to practice until you compare the application to the count.

[00:12:26] Speaker 01:
the application must have one embodiment corresponding to every element of the count.

[00:12:32] Speaker 01:
If the count changes, so does a constructive reduction to practice analysis.

[00:12:38] Speaker 01:
Additionally, the board's decision on the Rule 202D2 request was arbitrary and capricious in view of other board decisions regarding Rule 202D2.

[00:12:50] Speaker 01:
In the Pertiva case, the board took

[00:12:52] Speaker 01:
the opposite action and granted authorization to file a motion to change benefit in response to a show cause order.

[00:12:59] Speaker 03:
I mean, your whole argument on that is that somehow you were pushed for time.

[00:13:05] Speaker 03:
But weren't those time problems all self-imposed?

[00:13:09] Speaker 03:
I mean, you knew about this a long time ago.

[00:13:12] Speaker 01:
Well, the circumstances.

[00:13:13] Speaker 03:
A long time before.

[00:13:15] Speaker 01:
Your Honor, the circumstances were not that we were just aware of the DuPont application.

[00:13:21] Speaker 01:
We were also aware the third party had filed a notice of interference with the patent office so that an interference would be declared between the third party and DuPont.

[00:13:31] Speaker 01:
And that is the reason why no action was taken at that time.

[00:13:35] Speaker 01:
It was surprising when the patent office decided they were not going to declare that interference and instead issued a notice of allowance for the DuPont application.

[00:13:45] Speaker 01:
At that point, InterVet had the conference with the examiner

[00:13:49] Speaker 01:
during the conference, the potential for an interference between the Intervet application and the DuPont application was discussed.

[00:13:57] Speaker 01:
And right after that conference, that's when the suggestion of interference was submitted.

[00:14:02] Speaker 01:
But again, what was submitted in the suggestion of interference, frankly, is irrelevant to the motion that Intervet has requested.

[00:14:11] Speaker 01:
Again, in the suggestion of interference, an applicant is required to

[00:14:19] Speaker 01:
Proposed account, all right?

[00:14:22] Speaker 01:
The count that was proposed included a tremendous number of chemical compounds.

[00:14:28] Speaker 01:
So that was the target for the accorded benefit analysis.

[00:14:32] Speaker 01:
If you have a specification that shows one embodiment within that significantly large count, then you have a constructive reduction of practice.

[00:14:43] Speaker 01:
That changed entirely when the board issued their declaration.

[00:14:47] Speaker 01:
Instead of adopting the large genus, they picked one single compound, compound 11-1.

[00:14:54] Speaker 01:
It turned into a species.

[00:14:56] Speaker 01:
So now when you're deciding whether or not an application corresponds to the count, your target is much smaller.

[00:15:01] Speaker 01:
And if you look at the reason that... You're well into your rebuttal time.

[00:15:06] Speaker 04:
Do you want to use it all up?

[00:15:10] Speaker 01:
Well, if there are no further questions, then, Your Honor, I'm finished.

[00:15:16] Speaker ?:
Yes?

[00:15:19] Speaker 00:
Yes, your honor.

[00:15:20] Speaker 00:
May it please the court?

[00:15:21] Speaker 00:
Frank Smith on behalf of DuPont.

[00:15:24] Speaker 00:
I'd like to start with three points of emphasis.

[00:15:28] Speaker 00:
The first is that the task for this court is to not impose its judgment on what it thinks the record might show, but rather to evaluate whether, as your honors have indicated, there was substantial evidence to support what the board did below.

[00:15:43] Speaker 00:
In light of the evidence, and I use that term loosely,

[00:15:48] Speaker 00:
that was submitted initially by Intervet.

[00:15:52] Speaker 00:
Viewing the board's rules, which are well-known, published, they clearly did not follow those rules, and there was substantial evidence to support what the board did.

[00:16:03] Speaker 00:
And we all know that substantial evidence is in many ways a misnomer, because all it really means, according to the courts, is more than a scintilla of evidence.

[00:16:12] Speaker 00:
That's a phrase we all heard first year, first semester of law school,

[00:16:16] Speaker 00:
While no one ever quantified it for me, we do know that it is very small.

[00:16:20] Speaker 00:
And it was clearly substantial evidence for the board's actions.

[00:16:25] Speaker 00:
The second point is that with respect to corroboration, Your Honor, put your finger on it.

[00:16:32] Speaker 00:
There has to be something that is submitted to corroborate the evidence.

[00:16:38] Speaker 00:
And again, I use that term loosely, that InterVet submitted.

[00:16:42] Speaker 03:
You sort of take this position at one point in your red brief, and I'm hoping you don't really mean it.

[00:16:49] Speaker 03:
You're not saying that laboratory notebooks could never constitute corroboration of an inventor's declaration.

[00:16:57] Speaker 00:
Your Honor, I agree.

[00:16:59] Speaker 00:
The cases make it perfectly clear that you look at the totality of the circumstances under the rule of reason.

[00:17:04] Speaker 00:
And that is what we submit the board did here.

[00:17:07] Speaker 03:
There's some loose board cases out there that seem to say if it comes from the inventor,

[00:17:12] Speaker 03:
themselves, then by definition, it's not corroboration.

[00:17:14] Speaker 03:
And that's not how I understand the rules of government.

[00:17:17] Speaker 00:
And I'm with you on that, Your Honor, because there are some circumstances where a document can be, if you will, self-corroborating, particularly with regard to conception.

[00:17:27] Speaker 00:
And I think that's where most of those cases come from.

[00:17:29] Speaker 00:
Because if you think about it, conception can be demonstrated by words on a piece of paper.

[00:17:36] Speaker 00:
I have this idea.

[00:17:37] Speaker 00:
I put it down on a piece of paper.

[00:17:39] Speaker 00:
That would corroborate conception.

[00:17:41] Speaker 03:
So you're saying this one piece, this one page wasn't enough?

[00:17:45] Speaker 00:
This one page was not, particularly with it being in German, substantially illegible, and also undated.

[00:17:55] Speaker 00:
And the notion that this 2006 number somehow demonstrates a date, maybe so, maybe not.

[00:18:02] Speaker 00:
But that was never put to the board.

[00:18:04] Speaker 00:
That was never explained to the board.

[00:18:05] Speaker 00:
That is an argument

[00:18:06] Speaker 00:
that appeared for the first time in the briefs before this court.

[00:18:10] Speaker 00:
The board didn't have the information.

[00:18:12] Speaker 00:
They could not possibly have interpreted those four numbers as being indicative of the date on which something happened.

[00:18:22] Speaker 00:
It could as easily have been an address.

[00:18:25] Speaker 00:
So Your Honor, the notion that there was any level of corroboration in that initial submission is a complete fallacy.

[00:18:33] Speaker 00:
And I think Your Honors have put your fingers on that.

[00:18:37] Speaker 00:
The third point I'd like to note is that Internet frequently asks the wrong question and then provides its own answer based upon its interpretation of what it thinks it submitted to the board.

[00:18:52] Speaker 00:
And again, that's in problem.

[00:18:54] Speaker 00:
We've heard today that a person, and we've seen it in the briefs, that a person of ordinary skill would understand certain things.

[00:19:01] Speaker 00:
But nowhere submitted to the board and indeed nowhere to this court is there a statement of who this person of ordinary skill would be.

[00:19:09] Speaker 00:
It's not defined.

[00:19:10] Speaker 00:
Presumably someone with some relative knowledge of chemistry with the precise parameters are unknown and unexplained.

[00:19:18] Speaker 00:
And what this unknown hypothetical person might glean from this largely illegible German piece of paper is nowhere explained and certainly was not explained to the board.

[00:19:29] Speaker 00:
Now turning to the last point,

[00:19:31] Speaker 00:
uh, that Intervets Council raised.

[00:19:35] Speaker 00:
The motion is again, it's within the discretion of the board.

[00:19:41] Speaker 00:
That's what the statute says.

[00:19:42] Speaker 00:
It says may permit the filing of the motion.

[00:19:45] Speaker 00:
That's what their briefs say.

[00:19:47] Speaker 00:
And it's an abuse of discretion.

[00:19:49] Speaker 03:
Well, I mean, if, if you're looking at whether it's an abuse of discretion or something's arbitrary and capricious, consistent board practice is something to look at.

[00:19:58] Speaker 03:
Now they're arguing that the board in

[00:20:01] Speaker 03:
A lot of similar circumstances has allowed these kinds of motions.

[00:20:04] Speaker 03:
Is the board too tough on them?

[00:20:09] Speaker 03:
No, ma'am, I don't think so.

[00:20:11] Speaker 00:
No, Your Honor, I don't think so.

[00:20:13] Speaker 00:
If you look at their initial submission, they effectively conceded priority.

[00:20:25] Speaker 00:
They said, well,

[00:20:28] Speaker 00:
the DuPont patent application has an effective filing date, which is about two months after.

[00:20:34] Speaker 00:
What are you referring to?

[00:20:35] Speaker 00:
This is Appendix 549.

[00:20:36] Speaker 00:
It's about two months after the effective filing date of the DuPont application and so forth.

[00:20:46] Speaker 00:
They then say, we will prove that we were earlier.

[00:20:50] Speaker 00:
Well, that was the time for them to come forward because the rules clearly say that in your application,

[00:20:58] Speaker 00:
you are to explain in detail why you will prevail.

[00:21:01] Speaker 00:
They conceded that on this particular point, they were not going to prevail.

[00:21:07] Speaker 00:
Now, they argue in their briefs that this is a misinterpretation by the board.

[00:21:12] Speaker 00:
But the board's interpretation was clearly a rational interpretation of the words that Intervet put on the piece of paper.

[00:21:21] Speaker 00:
And that being so,

[00:21:23] Speaker 00:
It cannot possibly be an abuse of discretion to have said, why would we let you file this motion and consume our time?

[00:21:30] Speaker 00:
Because you have already conceded what you now say you're challenging.

[00:21:35] Speaker 00:
And so, Your Honor, it was clearly within the discretion of the board to do what it did.

[00:21:40] Speaker 00:
And they cite no case that has facts anywhere close to the facts that are at play here.

[00:21:47] Speaker 00:
So if the Court has other questions, I'm more than happy to try and address them.

[00:21:51] Speaker 00:
But I think I've covered the points

[00:21:53] Speaker 00:
that I wanted to cover and that you have raised.

[00:21:57] Speaker 04:
Okay, thank you, Mr. Smith.

[00:21:59] Speaker 04:
Ms.

[00:21:59] Speaker 04:
Block will restore two minutes of rebuttal time.

[00:22:02] Speaker 01:
Thank you, Your Honor.

[00:22:04] Speaker 01:
We just want to make clear we are not conceding priority.

[00:22:08] Speaker 01:
We do believe one of Ordinary Scale in the Art would be able to look at the contents of this laboratory record and understand the tests that was conducted and the results that were obtained.

[00:22:17] Speaker 03:
We're not conceding that, but you did make certain concessions, did you not?

[00:22:22] Speaker 03:
With respect to the

[00:22:23] Speaker 03:
the date that was accorded to DuPont?

[00:22:27] Speaker 01:
Our position was that the study number included the year 2006, which predates the earliest DuPont accorded benefit.

[00:22:35] Speaker 01:
And that supports the Williams declaration statement saying that all the activity occurred prior to the DuPont earliest benefit date.

[00:22:45] Speaker 01:
I also want to say with regard to viewing the lab notebook through the eyes of one of ordinary skilled in the art, that is the board's job.

[00:22:52] Speaker 01:
The Brown v. Barbicide cases cited in our brief say the board is charged with the expertise appropriate to the invention under the examination.

[00:23:01] Speaker 01:
One of ordinary skill in the art, in English language speaking one of ordinary skill in the art, could look at this lab notebook record and see that a mammal was being tested with a compound and the fleas were dying.

[00:23:14] Speaker 01:
That's all that needs to be shown.

[00:23:16] Speaker 01:
Once the flea is dead, the mammal is protected from the flea.

[00:23:21] Speaker 01:
Now, with regard to the motion under Rule 202D2, Your Honors, the Board refused to consider the merits of our request.

[00:23:31] Speaker 01:
What was said in the suggestion of interference is irrelevant.

[00:23:34] Speaker 01:
We were suggesting a motion to change the accorded benefit as set by the Board in the declaration.

[00:23:42] Speaker 01:
We could not have made that request, that analysis, or that motion until we have the declaration and knew what count

[00:23:50] Speaker 01:
the board had said.

[00:23:52] Speaker 01:
The count in the declaration was very different than the count in the suggestion of interference.

[00:24:01] Speaker 01:
If there are no further questions.

[00:24:04] Speaker 01:
Thank you.

[00:24:04] Speaker 01:
I thank both counsels.

[00:24:06] Speaker 04:
The case is taken under submission.