just want to say something to the little kids you guys were of course right you were so well behaved you were more respectful of the court than many of the lawyers that come in front of us so i want to tell you what a great job you  i'm ryan fountain i represent david thought martin plan to put this case in context this is the st of three appeals to this court this year that will be dealing with the issue of what happens when the patent office does not have evidence of the level of the issue before the district court the point is that when the patent office doesn't have evidence of the level of ordinary skill in the art creates all sorts of problems and patent cases and perhaps today we can help solve pointed out several disagreements with the commissioner's legal and factual contentions the most troubling of which is the contention that the patent examiner does not have to make a level of ordinary skill new york what we're left with is the illogic of having to eat your cake and have it too if travel trailer has no meaning then how does trailer have an meaning then how can the interpretation offered by the commissioner at any meaning at all and it fails as a matter of logic not just the issue of whose eyes we're looking through we have to look through the eyes of people seated so yes the preamble issue is an issue but before we even get there and to suppression is a question of fact to be reviewed by this court for substantial evidence but of course that means it's bounded by rules of law you can't do an interest petition to suppression analysis without st doing claims construction and claims construction has to be done through the eyes of a person of ordinary skill in the are a pursuit if you will you don't know what those eyes are until you know what the level of ordinary skill in the art is if you have no evidence of that you can't do your claims construction that's why we're starting at the start when we look at los evidence similarly when we judge by the substantial evidence standard no evidence is not substantial  since we don't know what your level of ordinary skill in the art is we don't know what kind of countervailing evidence to offer if you paid good high we would go get declarations and expert testimony if you paid that low we could go get survey evidence to show that you pegged it wrong because obviously well it only matters if they paid the level of skill wrong if somebody at the level of skill you think is appropriate would have decided the issue differently otherwise it's harmless error and th can't you you need to show in this case that their failure to articulate it affected the outcome otherwise it's harmless ever you can't hide behind what we're not sure you have to tell me why does the level of skill in the art matter and it's a travel trailer this isn't rocket science you know why does the level of skill in this art matter for this claim this claim we did do that in replying to the final references of not travel trailers the tractor trailers tractor trailers where inside the box there is an internal movable wall ok so your argument really needs to be that the travel trailer clubs so the question here is whether d it was right or wrong for the p t o to essentially delete those st few words a travel trailer and so you need to explain to me wind that was wrong for the p t o actually we did the science of tractor trailers versus travel trailers d d and the level of ordinary skill in the art i got to tell you it doesn't move me very much i mean it these and therefore the need for you to perhaps file declarations about a travel trailer versus a tractor trailer you can do that but i'm just telling you d what i'm thinking about the case ok we did that so far we did put portions in our brief both before this court and before the board of appeals explaining why refrigerator trailers i don't tell me what you did tell me what the p t o did wrong with the p t o did wrong and assume the refrigerator trailer a travel trailer with the p t o did wrong is it assumed that a blockhead divider designed to keep cargo from shifting creates two separate compartments one of which can be a learning compartment the reason that the short it was erroneous because you don't always ignore a preamble if that is a preamble you look to see whether those opening words provide meaning context for the claim and in this case you did we walk through a comparison with our cat for example to show that  travel trailer provides a structural context if by contrast you take the commission's interpretation its intended use then you put that back in the claim to read intended use having a compartment ah no structure has a structure structure can have a use but a use doesn't have a structure and that's not acceptable in even under plain english so clearly the commissioner was wrong on that point but were we come back to wall in a trailer compartment i thought that it also in the body of the claim refers to the travel trailer it is still the agency has argued that it's in the preamble and therefore not a limitation but it's not just in the prea body of the claim as well so why isn't it a limitation where it appears in the body of i think what i think regardless of whether it's in the preamble or not it's the agency's position is it's a statement of intended use it's a trailer being used for travel purposes  that there was significant extrinsic evidence in this case it was introduced to separate pieces of evidence that defined a recreational vehicle and in particular a travel trailer as having living quarters which kind of makes sense to me though i no  of evidence that were brought in by appellant one of them was the miller reference which is another cat publication from two thousand and ten and another one which comes from of actually a trademark board decision  so the recreational vehicle has a living area and it says a towed recreational vehicle as it's referred to as a trouble trailer so that it says in other words miller distinguishes travel trailers from recreational vehicles primarily in terms of the intended use namely total ability i think to differ i think that's not supported by substantial evidence and the reason is total ability is  structural component of a trailer or recreational vehicle right that the reference as a recreational vehicle can drive itself it enters a travel trailer can't it has to be towed behind another vehicle so how is that a intended use as opposed to a structural limited there's no dispute that the prior art can be towed those are told trailer no no that's what they're focusing on whether or not the board's decision makes any gosh johnson well i think i think if you see further down in appendix seven it says most travel trailer travel trailer and mentions it if you want to call it a preamble it's a preamble but it's also in the body of playing and let's say the instructor trailers weren't in the prior art would be able to use these tractor trailers of infringement based on his travel trailer kind i think that's why i think shocked if he would like think that's why the agency made the rejection or i think the point that the examiner was trying to examiners reading the claim with not enough structural limitations as a result of that term in the exam interview in the board's view when they look at the language travel trailer and then all they see in the body the claim is disk is discussion and description of the  walls and the physical structure but rather the case law that talks about you know when you use a term in the pre from the preamble in the body of the claim then that term in the preamble yes is part of the claim and should be recognizing given patentable weight will and i'm not aware of a case right where the term that was used in the preamble assuming this is a preamble here for that is also beside in the body of  the book crash correct oh what the word is trying to say i'm trying to explain it in claim to it's not much of the body that were point that if you look at the board's decision they explain that in claim one yes travel trailer comes up the end and the other claim it's not much of the body i believe that's in the the borg do the same things are going to seem to have the appropriate balance with the prior art or as in judge chen if you're going to sing with tractor trailers now you're telling us it's something else no i'm not your honor i'm sorry if if if i was interpreted that way let me try to restate it from the very beginning of this case when the examiner st picked it up in the st opposite action the examiner viewed this as a statement of intended use in other words he could have said landscaping is to the extent that there was any evidence to support that from a power when you look at that evidence even that evidence that they submitted they used the words like may and it may be used and it may have been living type of convenience isn't it none of it says mandator anything in the real issue whether it would have been obvious to put this partition in a travel trailer with a tractor trailers which otherwise are identical well such a far too well the reason its anticipation rejection your honor according to the examiner in the board is the prior art references do disclose all the structural features they as well as walls as well as movable wallace they disclose everything that these claims are wire the only thing that the i'm sorry  didn't the board focusing on whether the words in the body the travel trailer in the body of claim one is a statement of intended use i really don't understand body limitations to be presumptively intended use or to be able to even be ignored if there's intended use forget about the use of this word in the preamble this thing then the body agreed so what you're saying to me sounds like you're still arguing about whether the let's get past the dispute about preamble let's just talk about the language travel trailer the examiner call that a statement of intended use regardless of whether it's in the preamble or in the body functional language doesn't get ignored but it's not a hire argument yes here because probably the single most popular class of toll r v s is the travel trailer it doesn't take most travel trailers have certain things the word most appears in the context of recognizing that travel trailers are the most popular class of tobel r v what am i missing while the part of the board sites is a bit further down that says most travel trailers are equipped with electric and water capacities which means they don't all have some of them may most of them may but it's not a requirement that really like text and water capacities that says nothing about whether they have to have living quarters ok in a bunk bed could be living quarters and we can throw a bunk bed in the back of a arbitrate in the back of the would make a difference because why because recreational vehicle is a understood term of art and we just can't reasonably conclude that tractor trailers or refrigerator trailers tend to match and satisfy a claim for recreational vehicle right so what if we were to conclude based on the evidence that mr bott submitted at a travel trailer is a term of ar it's an actual category of recreational vehicle and then if that's the case then wouldn't we arrive at the same conclusion that a refrigerator trailer that a tractor trailer couldn't possibly anticipate a class of recreational vehicles i e a travel trailer i think that's correct your honor if you indeed examiner i think agrees with your point if you look at page thirty three of the appendix the examiner said quote the applicants were given an opportunity to either amend or both of their claims to more closely claim only travel trailers that are recreational vehicles which is basically what you're proposing or could have even introduced a new independent claim to a recreational vehicle but instead they decided to argue that the prior are not travel trailers so what the examiner is saying is he's reading the language travel trailer is merely a trailer used for travel purposes and if there would have been recreational vehicle amended in the claim that might have had an impact on the way the claim is read so i think the examiner agrees exactly with what you propose but that's not what's in the claim what's in the claim it's travel tree or he refused to amend his claim according to the or even given the opportunity to chose i guess what i'm saying is right if we read the  record and conclude that it's that the board is on the reasonable and in and failing to accord term travel trailer is an understood term of art in a recreational d vehicle field th clear that it's not such a broad statement it's more the specific question about a travel trailer as you can this claim is not just any trailer on earth where it can travel but it's and it's actually an understood term  art in the recreational vehicle arena and i agree you know it's just like a rocket ship that's a term of art a doing bug is a term of art a travel trailer is a term of art and so therefore tractor trailers refrigerated trailers can't be any of those things right then it wouldn't be anticipation then the next question would be for the agency to determine whether or not it there's some other bases that it's unpalatable for example miller reference itself appears to disclose a recreational vehicle with a movable wall which appears to be exactly what this claim requires and the miller reference itself is a two thousand and ten date on it so that itself would probably have to be considered by the agency in the event that you made that determination but i think where the agency stands today is that i views this as a statement of intended use regardless of whether it's in the preamble or the body a statement intended use and if it's merely a statement of intended use under the schreiber doctrine which is binding precedent on this court if you've got the disclosure rupture and it's keepable of that use it's good enough to anticipate and in this case according to the board in the examiner the prior are which is like you said a truck trailer or some other trailer for carrying cargo if that's capable of carrying any type of living it's like a bunk that it would qualify so just to be clear for you to say that the agency understands the term travel trailer is any trailer that can travel that's basically saying that what happened here is do a lot coined a term that it's not really it a real term and then he just sort of smashed two words d together travel trailer and that's a coin term for any trailer th can point it in the genes yes it doesn't agree with that at this point your honor i have no car for attention was requested that apparently the examiner understood it the way the applicant and the way it's written but without all the rest of  and we're not asking for anything to be revived your honor in our view what the examiner did and with the board did here is fine the claim construction was based on the language of the claim in light of the specification later appellant at during the pew before the war brought in additional evidence to try to show that this term travel trailer was like a term of art the board analyzed that evidence and disagreed and that's kind of where we're at this and the market can i ask you just your time is up and i started i'm not trying to keep you up there forever ok but  will you just address the claim that the agency must in every case articulate with persuasion what the level of skill in the art is before it can do anything else well it's almost like a some sort of  something i don't know i'm not fond of gatekeepers well you know we here's where we agree we do agree that one claim construction has taken taking place at the agency under the broad threes want to retain action that's done with the claim language in light of the specification and from the perspective of an ordinary skilled ours we understand that but we don't agree that in every case an examiner has to make a specific fact finding about the ordinary skill this is not an obviousness regional louie he has to make a fact finding about the skill level i think the question is can't actually say how the claims are construed based on a reasonable person he has to be defacto construing the claims as a skilled artist and so somewhere in that examiner brain has to be some assessment of what a skilled artisan would be in order to know what that's in our son would think agreed right but it doesn't have to be written down it specifically but you're right that actually happens in the process and if you read the junk a quote from the junk asian region or in re young if i'm mispronouncing it i apologize discussion of the theory anticipation the prior basis of the rejection in our case the two truck trailer references and then identification of where each limitation of the reject the claim is shown in the pirate references by specific common line number was more than sufficient to meet the burden so under young section one hundred and thirty two dollars requires adequate notice of that rejection which includes the claim construction where they apply the prior to the point where the sufficient to meet the notice possibly in the st instance of course had the applicant and argued that no a skilled artisan would have been this person and that person would have known this that or the other think you know saying like if there if it comes out in dispute even though not stated what the level of skill in the art is initially by the examiner if the applicant brings it into a real dispute it would make a difference certainly one and the agency would be required wouldn't it to say with a level of skill not me i agree your honor but in this case what happened was appellant made an argument saying we think that claim is more than a you state and intended you statement we think it or yours in my view that differently they presented no evidence at all the examiner looked at the claim looked at the spec disagreed later in the game what this other evidence the miller reference and this other document would all the board then did analyze that evidence and said you know we look at your evidence but we don't think it's sufficient to show an actual structural limitation we still agree with the examiner that it's basically a statement of intended use now if they would have come forth with additional evidence on top of that that said no no no no no this is affirmatively a structural feature in this term everyone of the earth knows it but that evidence isn't in the record because even if you look at this evidence the evidence  reference in the miller reference if you read them they didn't talk about the option of using these cargo spaces for cargo or living space the point is even though the evidence that they brought or contemplates using the trailer for multiple purposes so the examiner and the board eventually concluded is this is really all about how you're using a trailer with movable walls that's really what this boils down to that's the agency's position and we do agree with judge jones point if you think that constructions and reasonable that's the basis to overturn are anticipating rejection that doesn't make it patentable but it would it would take care of this and his occasional object i think that's where we're at but i don't think there's any problem in the law that has to be fixed by this case orders i'd like to address what i consider to be three mistakes that the commissioner just made the st time he said the term travel trailer is not in claim too if we look at appendix one  dollars and we look at the nd to last sentence we see that the trailer the trailer is there in that claim and obviously that represents the travel trailer referred to in the st sentence so we're talking about the trailer as having a longitudinal length defining with respect to structure in claim to as well but you are telling us that this claim can be and should be construed to total tractor trailers no i'm saying they covers travel trailers because the ne season basis for the word the trailer after the st sentences a travel trailer it does not cover trying to chose the nd mistake that i believe the commissioner just made isn't saying that the examiner viewed from the outset this was a matter of intended use not that is nowhere in the st off a section that comes up in the final office action after supposedly we had our chance to amend not knowing what we were shooting against of the issue of young in the young case a definition or articulation of the level of ordinary skill in the art was not a direct issue in that case we'd made a direct issue here when we found out th claims construction was what was going on we asked for that evidence specifically can i ask you about the miller reference the miller reference yes that travel trailer yes is it disclose movable interior wall and an interior movable wall so that you can change the relative size of two compartments in the travel trailer yes area so why does a miller disc anticipate that to be  errors but without opposing counsel here to defend himself i'd be reluctant to do that ok but you agree with me that miller discloses a travel trailer with any theory of what wall yes but doesn't have the rest of the features of the claim ok  there are there are no other features of this so good actually getting back now to the actual references in this case your tractor trailer or your fridge or a trailer park references why isn't it painfully obvious to modify a travel to have an interior movable wall like it was already known in the ark for other types of trailers very good question but to answer that we have to know what  that's movable for a travel trailer compared to an interior movable wall for other kinds of trailers that was already known in the prior art because people who design travel trailers don't design refrigerator trailers they don't know about that technology that's not within their level of skill