we have for you he says this morning i think it would be helpful to get into these cases to tell us which claims are still issues because the briefing seems to cover claims that the already been held in balance i as to that question the answer is that the record plainly establishes that the board neither analyzed the evidence of record nor explained why not the nd issue is whether the board ignored common sense in reaching its findings and we submit as to that that even a layperson could understand the advantage of using a commercially available to mention for a low profile fixture was something that was already found to be scal that be good enough to support an obviousness conclusion your honor i believe that where the prior art itself as in this case zang as to the hypothetical would cover claims one dollar to three dollars and silas and as to covering claim for i'm sorry l m no more than the hypothetical where the prior art itself includes the motivation as we believe it does in this case i'm happy to explain why and where you further have the application of common sense to show that all of this is intended to suit market needs as the board also found i think it would be sufficient good enough so long as the fact finder can go running around in the prior art to find the rationale and potential reason for combining those particular elements in the same way or side of the coin and thereby cases that you can find a motivation to combine in the prior art itself and we believe that that applies here as well correct but typically again it's the challenger is responsible for putting the case together and it's and it's your burden of proof as i understand it and you know i'm guessing you're a parent moyers so you know full well that when it comes to one of three all too often the main event is the rationale for combining all of the elements that you find in the prior art to render a claim obvious it would have been obvious to take all these elements from these different references and combine them in this way because something something something and i'm looking at your petition and i didn't see the because  i didn't see the legal reasoning for why you would match these elements together and if i may your honor here's where i think we did do it and and it may be that we didn't use the word because but in reading the record and the petition let's start with that your honor will recall that we a stablished as to claim to as to which the claim for it issue in this case indirectly depends the motivation to scale the saying to fit within various different cans junction boxes because as you said there those were all widely used cans and junction boxes so it would stand to reason that you would want to in the commercial marketplace  adapt saying so that it would fit those already known already used cans that are out there but i don't see how that translates to anything with respect to  t was a motivation for and so maybe you should focus focuses on what you said in the petition and what you said in the reply that would address that because i may not be sufficient both think there's something we believe there is your honor so i will try to do that so in addition to building on what we had already argued with respect to cling to as to the motivation to scale saying to a variety of sizes which were widely used and more generally that scaling saying would allow a person of ordinary skill in the art to serve market needs which of course is one of the consideration the board found as to that that the very that that was persuasive that reasoning was persuasive and we argued that exact reasoning as to claim for it's true that we did not really recite it but it had already been established and we specifically incorporated it and that were in your petition do you think is the best place for us to look for you think you provided enough to provide a motivation with respect to claim for  soderman i would say implies those and we build upon what's already been established with respect to claim to we incorporate that and then we say all that was left were the specific dimensions which judge china asked us about and as to those those are found inside last cent stylez cent touts that it is an ultra low profile light fixture and it demonstrates in and of itself talks about implementing saying to cover the four inch boxes to have the height that is at issue in claim three claim for then builds on that on the seven as have are the specific dimensions those are clearly evidently and obviously desirable for an ultra low profile fixture which side left center itself says it touts its altro low profile benefits and a person of ordinary skill in the art who is looking to find those dimensions would look at both of those and we believe that common sense which is required in the court's analysis applies here as well honor in the reply we argued that exercising ordinary common sense and creativity it would have been apparent to a skilled artisan to follow the teachings of side lesson resulting in the low profile features that meet the failing to raise a petition even when you invoke common sense it's only with respect to the claim three limitation not for the claim for limitation i mean these might be minor differences but i think these differences make a difference when at a certain point and as a matter of form you have to actually give me a theory as to the claim you're actually attack do reference what is required for a claim for and in the reply argue the common sense point i don't believe that the cases require there is a common sense bell to be rung i think the case is a stablished that the court has to use logic and common sense when looking at any board decision even where the board did not consider commonsense this court has required that common sense be considered as part of the honor i was i i intended to be making the point that the cases do not require that common sense be used in a particular kind of argument that i mean i thought the board is not required to fish around for something but we do have to look at the totality of the evidence before the board and here there's nowhere that you have to stretch in order to apply common sense in combining these two represents when you already know that as the board found that you were scaling the primary reference to fit a variety of sizes to suit market needs and cite lessened provide mean i understand your honor and i would submit that we put together all of the evidence in hindsight maybe we didn't cross the t n a particular way that is great and it's you know a little bit angled but all of the evidence in the record a stablish is the obviousness and the further problem with the board's decision is that it never explained why it didn't consider that evidence when it found that it would have been obvious to scale zang to fit a variety of sizes including to fit market needs and it had the very reference before it that was on sale and had been sold with those exact  findings are self evident in the record the starting point for this analysis is that the finding or lack of finding the motivation behind it is a factual determination that's reviewed for substantial evidence here the board thoroughly assessed the very scant arguments and allegations that the petitioner put forth considered them and found them entirely lacking and in particular the board stated at appendix fifty petitioner does not provide any reason or motivation why an ordinarily stilled artisan would have combined the teachings of saddam and celestion with those of us saying which i have been thinking of as young in my mind so if i say it differently i apologize that's really critical because it's this wind that we're missing here is as your honour's have raised with the appellant thus far i want to go straight up and it's four hundred because i think that's the only place sas institute from the supreme court tells us that it's the petition itself that guides the proceedings all the way through from the beginning to the end if it's not in there it's not in there if it isn't there then we have to deal with it going forward if we do engage with the argument made at appendix four hundred dollars a what we have here is this allegation that in designing a light fixture that intrudes as little as possible into the room it would have been apparent to the skilled artisan to fall the teachings of celesio there are several shortcomings with that allegation that the board right we found the board's decision is that there is no tie between slots and insider men and a modification to shame and that's absolutely true even with respect to this out asian at appendix four hundred for the following reasons this year when consideration that my friend on the other side was referring to has to do with stealing the with maybe i can ask my friend since it's the honor the stealing consideration with respect to saying is over with adjustment consideration has nothing to do with the high and the limitations of claims three and four are directed to high considerations and claim four in particular so motivation to just the with others shangri saying doesn't tell us anything about stealing the hide now in appendix four hundred they have this argument that you want to protrude into the room as little as possible well that doesn't have anything to are some state cases some state cases that claim for is being it is in play it is simply are there any defendants that are not to stop from raising a one of three challenge the claim for and those state litigations it depends on the nature of the real somebody that has just a little bit better of a case i don't think it would be so easy your honor i think that sometimes things that end up being harder than they look but to your point yes i think that there are other people who could seek to challenge playing for then we would raise arguments as to whether they're they're still permitted to do that in light of the sample considerations real partisan interest and so forth but nonetheless it's certainly a possibility this is height limitation involved in that the heat sent up saying which is the high consideration here fits comfortably within a can and the only thing that protrudes is the outer ring which must always protrude and be there it doesn't protrude by any more than a fraction of an inch and so there is no high protrusion problem insane to fix or improve by switching down the high based on this common sense sort of theory that comes out of saddam and or so less and i think that's really relevant because again what we're missing here is the tie between saddam and celeste and a motivation to do anything to  market place ones that have substantially higher light dimensions that are very widely soul that was in the record you know you're suggesting that we should take things that you say here that aren't in the record no i thought you could do that maybe they could do that and that's found at appendix five hundred and twenty eight and this it is that in white in their reply the petitioners referred to when talking about exercising ordinary common sense that was its reasoning but that is inconsistent with its reasoning they didn't buy with respect to claim to where it said exactly that you should modify it would be obvious to modified saying and to answer judge dogs question earlier about the height limitation the height limitation of claim three is consistent with the height limitation of claims for not withstanding what my friend on the other side has found in stores we're dealing with four inch cans zang itself recognizes that there are a variety of sizes a four inch can is not going to have a significant height to