were the flexibility to redeploy easily the and rapidly the new prior art with the wireless technology provided by amazon and then the savings of doing so because you would not need to utilize the wires in the installation that was a very costly endeavor the board rejected both of those motivations to combine that finding lacks substantial evidence first of all the on the record before the war it was notable that in the institution decision the court the board recognized that we had demonstrated the motivation of mind at the least on the cost saving measure the board recognized in the mid prior art it was institution as this is in the institutions as is taking a sort of a quite preliminary view it is but it was a recognition that there was a description in the admitted prior art to the  saving the expensive proposition of the wiring of existing facilities the installation of the wires and the other doesn't that doesn't bind  system is expensive i don't actually think it says and everybody knew that and i also have been having a hard time finding in your pe that the patent not only says it's expensive but also it myths that the prior art recognized the costs well it's i think for the fact that the fort never  addresses a contention because i don't really think there was one that the patent itself contains an admission about prior art knowledge well you're in the happy declaration of paragraph thirty there was a reference to that page for thirty five that's were for thirty five yes in the appendix there's a reference to count five lines forty eight to sixty one and specifically happy draws from language that we relied on here in the seven thirty two patent establishes that this was known to those who were knowledgeable in the art at the time this is a question of fact on which the board then we can talk about the relationship between this case which i think is actually at least to my mind painfully comes it's and the october twenty fifth twenty seven contrast these two systems the mobile system that khan is describing and existing six plant systems the ord project that in the final written decision because it was and their language con did not specifically tie this concern to physical cables and wires but it's in this language and although he doesn't easily as words there is no requirement that he used magic identify discussion of physical cables or wire in common that's available so although we've put forward the motivation for flexibility they don't dispute that flexibility rapid redeployment would be a sufficient motivation they simply say can doesn't describe that because it doesn't talk about the problem of wires but in that passage that i've just quoted and that's clearly plants installations refers to wired that is a reference to wire if one was necessary even though we don't think one is necessary and i can and again i don't take you back to this at least to my mind quite troubling  greaves that particular decision would have come out any differently leaving therefore the question where her again putting griefs if greaves was only confirmation is there an unexplained last year we have a decision called by couric and sink or in which there were simultaneous or decisions that among other things we remain did for reconsideration because we weren't seeing the explanation for a disparity and really in result simultaneous were some impediments to your having a better job the first day which there west you just didn't get to green well i think it looked like we it would depend on what one thought the subsidiary facts were that were found but i but i do think that that prospect only heightens the need to correct the error here and i would point to the fact that grieves although it was not cited in the  was part of the record you mention that the court has to review the record the administrative records the administrative records here includes greaves because it was submitted by the pattern or so they can't claim surprise on page one of the same page that is cited by the patent owner it discusses the fact that the cost savings in applying wireless technologies this systems lay the monitoring water water plant has been established so that's on their own their own evidence what they have said with respect to the admitted prior art you heard is that no that's not a discussion of what was known by others that's a discussion of what  cannot be squared with their refusal to acknowledge the force of the same language when cited in this case because on their explanation can doesn't refer to cables and wires it did in their thirty one right into its final written decision and then it went through point by point at the cautions of caution that dr happy referenced and explained why that would not provide a motivation to the boy did a very careful analysis if you look at the final written decision in turn it in the cater that condor's not discuss course related to installation of wiring and it's little wonder why the board made that observation because khan nowhere mentions a sensor or in actually it or at all throughout its disclosure there's not one mention of a control system containing one sensor or one actually hard wired our network our sensors and actuators with the local controller and he talked about the types of systems and the prior art in the discussion of the seven three to subject of car how to talk about having a packet radio network for mobile devices not for air conditioning i mean my condition isn't mobile for example and the other thing that contacts about that the board specifically discussed is talking about the way through put in cos the intricately related because lower delay usually means higher data rates which in turn implies higher throughput in greater to make sure that there was appropriate coverage for the people having mobile devices and also states that all routes in a passage that was referenced by dr happy petitions experts all routes are assigned by the station to minimize packet radio for some complexity but that was the rector to where you're going to put the processing power in software in order to do routing in the network for instance if you had it in the packet radios and each packet radio would have to have the processing power and the software in order to determine how to run route messages in a network but if you moved that to the station then each packet radio wouldn't have to have that hardware and software thereby making the packet radio less expensive so many of these passages  wires and something mounted as opposed to in your pocket ok so those two different concepts as one is the end device so the reason why you have a network is for a purpose that has to communicate certain information so you have to separate the network packet radios that are in the network from its ultimate purpose and can the ultimate purpose was to provide a packet radio network for people that have mobile devices the vices that they could carry so that passage that you just referred to is in the context of  controlled which are mobile so you have the separate that the the devices in the network the devices that the it absolutely not because there's no mention of a sensor or an actuator anywhere in the mounting on the wall refers to the packet radios that are part of the packet radio network you can put the nintendo in a packet radio on there so people with mobile devices could communicate with the but the entirety of con and the reason why one of the reasons it doesn't provide the motivation to modify the prior art system of  in a local controller is because khan has the record to a completely different context it's the context of supporting the end user and current is people that how mobile devices there's no mention of us and you can do it yourself you have a soft copy electronic copy of current do a search on sensor do a search on actuator you won't find any hits because that's not what the article is directed to probably well i think in that the decision with respect to the other hands that the record was very different in that case it wasn't just green but there were different expert michael ration obviously the coin was different there are a lot of differences between told you there is no motivation to combine the teachings of the packet radio network with the prior art in the seven three two patent which was a hard wired system of sensors  for example he mistakenly referred to a discussion of the application of the principles of the invention of the seven three two patent to a remote irrigation control system as being prior art it clearly wasn't it wasn't anywhere near the background section which talks about the prior art he also mistakenly referred to with discussion of an application of the principles of the invention from an order made of pocking system as being prior art again that was in column thirteen of the patent that was nowhere near a discussion so that the petitioners position here is based upon expert testimony that is flawed and that was shown to be incorrect by our expert dr amora again when dr happy happy about trial which i mean how how is he saying anything there different from what he said here well i don't think i think there probably are some similarities but i think that they're all the declaration that he submitted and that as a procedural matter do you have any views about him if we were scratching our heads for purposes of this question assume that about how to reconcile these two things except for obviously the difference between greece being in one and not in the other but really it's top seventy eighty as i say confirmation support corroboration not can we well i don't think that would be appropriate and the reason is because the record in this case is different from the record in the more recent case and you mentioned greece for example and in fact if you look at the opinion outline not too late here so the record is very different and i don't think greece was just confirming i think they have only relied on greece and the and in the most recent decision to say that there was a motivation to combine a packet radio network with more recent decision explicitly indicated why the records were different and why there was a different decision reached in that case than in this case and we also believe and also be making some of the same arguments that we believe the border erd in that more recent  this one to have the board clarifying it could clarify by saying we were wrong and whatever the other orkut say no here's a crucial difference that would be judging what they would do in response that grayson one and the other well i think it's saying that it did not mistake did not make a mistake in this case that's before you said that under the record that was before in this case they ruled correctly that's in that footnote right as well as con being directed to users the end users having mobile devices very very different doesn't mention a sensor an actuator very very different from the systems that's right and seven three network i also think it's clear that grief should not be considered in this proceeding because the first argument that was made with respect to greeks was not made it over until the oral hearing and there are only one paragraph of resource mention in the briefing before this court many different parts of grieves were mentioned in the briefing from the petition so that's wrong for two reasons number that raising an argument at the oral hearing is too late and it doesn't depend on the content but the argument as the petitioner suggested rather at the pens and when the argument was made to make it for the first time in the dr happy questions about it as the position on a simple supplemental declaration it didn't do that it didn't give any reasons why it did in mention anything about reeves in the reply or in  their expert supplemental declaration so it's it's too late to raise it at the oral hearing at the pieta and it's also much too late to raise arguments the record two portions of local controller so there's a reference to cost even there in the background section but i pod as it was the other that the board had relied on in that institution decision with respect to the different record honors  i have reviewed very carefully the discussion both the invasion flexibility and rapid redeployment on pages forty to forty one  paragraph that carries over between those two pages and every quotation citation to caen or to the happy declaration in that paragraph appears verbatim and the discussion  or the citations appear similar and we hear in this case in happy that aeration in the quotations that were offered likewise with respect to the discussion of cost on pages forty four to forty five a description of the same provisions in the seven eighty and that were cited in that case as are also cited in this case where they appear in the seven thirty two patent so can't be physically sort of incorporated in toto into the admitted prior art but that's not the test this court rejected that test in new tet and so it doesn't matter that khan doesn't actuators when it talks about is the desirability to use a wireless network to achieve the goals of flexibility rapid  like and that could be used on a mobile system as some of the prior orphic system that's just geographically distributed and some of the other admitted prior  t in the end we think that the board's rejection especially of con and the basis of that rejection which is that he didn't discuss physical cables are wired cannot physical fixed plant installations but also the other reference that your honor cited that talks more generally about the desirability of this for mobile applications and for them to say that con doesn't teach what it plainly does teach because it doesn't specifically reference wires when it talks about a fixed plant installation that is a wired installation does not so does not provide substantial evidence for their ruling and it should be reversed on that ground if there are no further questions