one case which is on the record for the purposes of our recording these submitted cases two thousand and ten three zero zero eight there are two issues that are front and center on this appeal and that's the determinations of obviousness and in section one of two g anticipation neither determination is supported by the by substantial evidence in this record to focus on obviousness first the jury's verdict on obviousness cannot be sustained given the weakness of seagate's expert testimony dr wang and we might make this you mean as you say in the briefs that it was to conclude three yes particularized testimony explaining why a person of ordinary skill in the art of the time would know to use to make to make the combination in question but in the context of a jury verdict and the story this jury trial lasted for weeks right let's bring on this i presume that i'm cross examination competent consul had the opportunity to cross examine dr white so to the extent that you come up here now on appeal and we've got a hold record most require that there be some some connection between the art in the motivation to combine the art otherwise an expert as in this case can simply say here is the art in my evidence to to meet that standard  that picking up on the on the k s r case the supreme court noted that the testimony has to be a particular eyes and has to be factually supported showing some rational motivation to make to make the combination of that and that's what that was what is missing in this record i think also emphasize other at other parts of k s are continuously lead us to a non rigid cast that we apply and also to something what would be common sense to someone from ordinary you know not just the average individual walking up the street that that's exactly right your honor would have to be a person of ordinary skill the art and here there was no testimony as to what a person of ordinary skill in the art would know with respect to the to the problems that the expert of dead if i'd done if i'd corrosion which by the way had nothing to do with the with the claims and this case straight feels and then he said a person reading one of the articles part of the park in one article would would somehow know to employ the structure of that part of the structure disclosed in the article to modify the existing  sensors to come up come up with the invention there was no testimony by the experts to suggest that the structures in described and parking are what we refer to as the artificial and i for magnet the a at was known to address corrosion problems he made note that he provided no testimony of the person ordinary skill would know to use and to address the stray fields problems and so it lacks the evidence of common sense that  pool which would be people of ordinary skill in need or in order to come up with the obviousness finding or can it just a general pool of jury members come up with a number of issues finding properly instructed by the judge on the  proper evidence submitted by the parties i mean if there is evidence to show a plus b will see even though it might end up being c one rather than c o by itself is that sufficient taught away in the total way from the invention of the invention it was first sensor sensors are to be stable structures and dr wang admitted that the structure described in the parking articles rotated in the from the combination then there needs to be some explanation of how a person voters of ordinary school only are would overcome that teaching teaching way and there was no testimony in this case using the claims as as a guideline or a roadmap which is exactly what happened in this case his doctor dr wang said well i can come by you know the claims call for these elements and i can come by i could pick and choose pieces of prior art had a corrosion issue plays should play no role in motivating in a person of ordinary skill to make the combination that that she gave to suggest before your time runs out can i just turn you who knew about the parking one important to references to cite them to the patent office because they thought away from the from the invention and would not would not a person ordinary skill would not look to them to each way and therefore if dr way wants to use them in making his combination he was required to go on go go go additionally explain how and why would a person use them and no that they were very much i mean why would we necessarily and the judge just conclusion with respect materiality onto the jury well the jury wasn't asked about materiality in that sense they were court affirms obviousness i want to make a point about the general verdict decision at the district court below judge selma said the council how do you want to do this do you want specific findings on obviousness that the jury makes or if you want to do a general verdict and we all understood what that meant if you were the general verdict the standard of review is going to change it means it is a type of black box and you have a substantial evidence standard of review which is a real standard or you would have teeth that's real but it's a very different situation than if you do a special verdict that has a very special findings on obviousness council conferred and we said in an immensely let's go with a general verdict we then tried our case we had the general verdict and the jury found there was obviously necessary for the jury notwithstanding the difference if you read their brief is whether there was a motivation to combine and whether there's substantial evidence in the record to show a motivation of combining when it might show us that yes your honor well first of all what we did is is we presented three reasons for the person of ordinary skill in the art to combine and existing jim our sensor with an unknown and a half or artificial antiphila magnet and this was known prior art this was in a situation where we didn't know we're talking about a person of ordinary skill the art was highly creative and highly educated ph d with substantial experience would have started with something called the group reference that reference was a functioning sensor which measured resistance that everything is centered it and it had the first layer the second layer and the third layer which is a bias layer in which the magnetization is approximately constant it had everything you need it the only thing the prior it was missing w and this was undisputed from their expert undisputed from our expert so in that sense the trial became very narrow as siemens kept admitting meng's as the cross examination of siemens expert kept admitting things the case got narrower and narrower to the point where we were simply showing the jury that a person of ordinary skill in the art would have seen this reference that was lacking in a well known which was all over the literature common knowledge and then would have said all right i can solve this problem by adding the and our expert explained and i want to give a record cite to page three zero two three zero and we also cited in our brief a page twenty two but our expert explained what you do  is the explicit teaching of park and one and i want to be clear by the way that what siemens is doing is is misstating doctor wants testimony he did not say there's any teaching way nor did he imply there's teaching a way and he said to the jury here's the prior explicit teaching or apartment two is merely an example of how you could apply that teaching it in no way come hells how you are going to apply using artificial and affirming it's one example what seems as trying to do is say that our theory was you take purple layer and replace that with two additional layers one is non magnetic and one magnetic and that additional magnetic layer is anti ferromagnetic the coupled to the bias layer in the sandwich structure now your honor why am i raising that point why am i making that point way in other words it's an explicit teaching that says you should try this it wasn't in any way a teaching away article nor did we ever agree with that in fact our expert said there's no ambiguity now why did i talk about the fact that dr wong mentions that you put two layers what siemens keeps trying to say we set they say that we were trying to literally take a structure from the example from the teaching and force it and we've made it clear that's not what this testimony says this testimony says you and when you want to apply it it already had a biased layer so you just add those two layers now why is that important your honor because there inventor basically testified that's what he did that in other words he took an existing pirate sensor and added two layers odd when you think about it but what's interesting is this is this one time where you can actually ask that decision maker what do you make of this and what do you make of the you said this was not material can you talk about that it's not often you get to talk the decision maker and in this case the decision maker sent yeah i said that but in no way was that inconsistent with the jury or what the jury did had substantial evidence i step in trial i looked at the powerpoint presentations i watched the jury pay attention i looked at all the evidence  now we're ok there's no problem with what i did and it's rare that you have that situation where someone says something inconsistent and then you go to that very person and they agree with us which is what happened here so there is no legal inconsistency and we have a situation here where a very qualified expert from stanford university with twenty years of experience in jim our technology who had more experience than their expert their expert conceded that walk the jury through the three reasons the first reason was part and want to expose the teaching took the jury the article explain the combination did not say what siemens was saying did not say that did not force anything are going to undo it and so we really have an issue where they disagreed with what the jury if they don't like it but  what they could have done is cross examined the expert and raised all the various points they raise on appeal and they didn't do that when they did cross examine the expert they made no headway and in many instances they didn't cross examine the expert on the particular points they're trying to make in their br here the judge found that there was no materiality and no intent to deceive the jury found that there was obvious to us the judge then said it is reasonable for the jury to disagree with me reasonable people can disagree and the jury's findings trump the judge's findings on the jury verdict in other words a judge can't say i'm going to reverse the jury verdict because i disagree the judge has to say there is a lack of substantial evidence and here the judge said explicitly there is substantial evidence so we were in a situation where the judge may have disagreed with what the jury did but the judge himself said there was substantial evidence and that can occur you can have reasonable people disagree what is the stand we really think that's a reverted from georgia draw made from yes your honor and because that's because the jury verdict only needs to have substantial evidence and this judge said there can be substantial evidence essentially what he was saying is reasonable people could have sat through this trial and either agreed with what our expert was saying or disagree that's why you have a trial he said essentially if i was on the jury i would have disagreed but i understand why the jury agreed with  and i'm going to up hold that that's perfectly reasonable and perfectly consistent with the law whether ninth circuit lar any other circuit now if we were going from you know not that i'm aware of i mean i believe that it's clear that that this court reviews the jury verdict for substantial evidence and the fact that a judge saw that there was a reasonable disagreement with the jury is not a basis for overturning a jury verdict particularly where the judge said there is substantial evidence remember there's also two independent reasons the our expert also talked about the straight flux problem and our experts say that there was a problem of straight flux and that the person would have used an a f in order to solve of the straight flux problem and i do want to say in their reply brief they suggest that our expert somehow said that the solution to this reflux problem was not anti crime magnetic coupling that if somehow fell outside the claim it's an argument they make for the first time and it should be waved but if you look at it what's very interesting and magnetic and he said at from blinds one thousand to twenty one on this appendix page three zero two eight two pull it is anti feral magnetic which is what the claim is required and then on the next page they challenged him again and he said it from lines nine to twelve on page three zero two eight three he said you are wrong so they suggest in their reply brief and we did me a chance to brief this that he had conceded that it fell outside the claim in fact the pages they didn't cite and the lines they did not cite he explicitly disagreed with them and said this form of coupling was anti ferromagnetic which would have meant it fell within the claim so that's a second reason  you know you are not yet they they should be able to do that but that's where we are is there even today they are coming up with ways to cross examine dr wong but that is not what you do you have to do it at trial and then you have to show some problem with the record and he had a third reason as well which is corrosion now turning decision really controls here flex rest was not just a commercial case flex press also had a case where someone was trying to file a patent they were they were doing two things and under the flex wrist decision which which this court obviously would would apply in the court said a seventh month period is something that is so reasonable as a matter of law that we're not going to send it to a jury in other words it was a it wasn't was an unreasonable a standard but that was found to be reasonable and in our case we have a twenty three month total period from reduction to practice and from filing seaman's concedes that that's the correct standard and reasonable delay for the total period the only disagreement siemens has is with renewed activity they want to change the law on renewed activity and apply reasonable diligence that's where it gets tricky and so what we have here is an unreasonable the way standard for twenty three months and a polyp decision is seventeen months you have reduction to practice defiling  seventeen months and so we think if this court found seventeen months could be reasonable that a jury could find the entire period of twenty three months to be reasonable and if you find that period reasonable we don't even need to get to whether there should be a special standard for renewed activity we've already gone or we don't and what we look for is are is there substantial evidence for any basis and we think twenty three months is more than reasonable there was no red flags here  the before siemens entered the field i b m had reduced it to practice had also made a decision to get a patent had done a prior art search had done an invention disclosure all that had occurred and was occurring before siemens came in the field and then they got a patent a pplication within ten months and that's where we are so we don't think the court should throw out the standard on renewed activity or change the standard to say it's reasonable diligence that would really be changing the law in polic there was a three month gap and had you applied a strict reasonable diligence standard polyp which involved renewed activity you would have had a different result in pollok it seventeen months you have renewed activity they explicitly talked about it and they in no way apply to reason with diligence yes yes and so this court will be making a new law if it's that someone is a first inventor or they've reduced a practice and simply because they renewed activity we're going to change the standard treat them like a second a banner and force them to meet the reason diligence standard that would be new law and does not rise to the level of clear evincing evidence that can sustain a an obvious this rejection with regard to the anticipation of argument of flex rest was definitely  commercialisation hayes yes there were there was patenting activity but the court the court noted that there was continuous activity from the time of the reduction to practice to the to the public disclosure fall within the standard beyond three months explanation needs to needs to take place or needs and needs to be presented which which did not how did not happen in this case and one quick point is again there are lying on  the activity of a different bent event and different inventive entities for the reduction to practice they rely on one inventive entity but with respect to all of the other conduct including resumption of activity and  violence of the patent application that was that was by that was by a different invented to and i'm again not aware of any case in this court where one inventor venta t has been has been