okubo reference and the challenge class that difference was a binary choice between regarding where to perform a basic data processing step in this case where to a locations on a map either on a server before you transmit the information on p twenty five of the blue grape you argue that he she shows that sir i'm quoting server side plotting was one of only two of the record evidence st of all starts with a five man three pattern itself which doesn't attribute any significance to this choice in the read description is totally silent about how to implement the teachings and the functionality of the five  especially with regard to the server side versus terminal side plotting it doesn't give it any significance and so that by itself or tells you that the the patent he was relying on the knowledge of the person of skill in the art to be able to to know how to do that and to know whether that would be suitable for their goals nd of all beyond the five not three pattern itself there is the references accrue boeing which disclosed two alternative implementations of the board's own findings beyond that there's the testimony of actually dr barto who explained that there were several design choices involved in implementing these systems and i believe that s this type of a situation where you have a finite number of identified predictable solutions that if that provides and i'm just going to leave it right i know you don't think there is any difference between them but they sound person of ordinary skill has good reason to pursue no not good reason that is motivation so when you have that we've established those predicate facts that there is a finite number of identified predictable solutions to that is responsive to  market pressure that is suffices to show motivation a bias so supposing they're finding predictable solutions and it will be different i think i think the fact of whether they're totally different or not is not really the right inquiry it's it's less whether they're different and more whether the difference is patently significant if the patentee here had come up with some un previously unknown advantage to server side plot and had described that and her specification then we would have a very different case even if the pen itself was silent x wanted decided introduce evidence i expected results or other secondary considerations we still might have a very different case but here there's just not of that there's nothing pointing to this choice being significant anyway so but there's no question where there's a motivation to have a map on the mobile device the only question is does the map get there because it's created the server or on the mobile device i think that's right in the to have to get on the mobile device somewhere so i think the real question is where you where you perform that plotting stuff you could either send the map separately and then do the plotting step on the device or you could do a plot except on the server and then set it all at once either way  now again there's to get back to what i just said saina did was question this is a particularly clear case because there are no secondary considerations there is no allegation of teaching way both both solutions to this problem are known the r f d research seems very very close to this case i think it was in the other side's response as far as i recall was simply disabled the parties here weren't disputing that there were only two design choices response to that it doesn't apply yet but that's the substantial evidence right exactly and that's why we have a challenge that our view is that even assuming the board is right about that it doesn't change purcell so i think that is a distinction from it's a the board found it to be a wholesale modification rather than design choice really is really a false dichotomy because it's usually going to be that you may have situations where like c r of t where the prior stressed sila and we thought that was the case here but even if even under the board approach where they would accrue bowie's during terminal psychologic it's still not it's still not a difference that actually matters and one thing that seemed to matter to the board with that a coup was successful on its own right so they they've got considerable experience and evaluating these cases including the motivation so what was this about in this case to be honest with you i don't really know the answer to that i think or d became really fixated on this on this idea that  were starting with okubo and then the quitely inquiry was whether modified it but that was never the really argument we were was making rumors are it was always that if you start with both of these references in front of you and you look at their teachings together it confirms that this is just a design choice and if you go with web i think you know i don't want to i don't want to put it on the earth my friends on the other side too much but they tried to cash argument more in the i think bought into that wrongly was successful in achieving this result that is right but what is that why does that get you to the legal conclusion that i think maybe i'll just agree that we agree that the made was that because oku was successful there would have been no motivation to look elsewhere well the board goes on to say at appendix twenty two dollars petitioner argues that the primary reference does not need modification and that's not the world the true every heart there are two design choices each of which is satisfactory you would need to modify one of those choices but you'd still have the alternative operates correctly as to design choices what the board said was this is represented in permissible hindsight and represented a wholesale modification to a kudo set out and it was twenty two and does well because in this case the design choices are not equally acceptable these are not recognised alternatives that would be equally successful the modification well as the p tab recognized what excuse me x once experts said that the modification with konishi would be unacceptable because a coup bobak to save bandwidth decrease page twenty three and we're talking about the g in your breed you spend a lot of time on your brief talking about this problem with a lot of the modified mccool right g g p s that's right but i promise you spent a lot of time on it but i don't i didn't see what you're suggesting is what the experts said i didn't see the board's adopting any of those findings i didn't see the board making any findings with respect to the g g g g p s system and you seem to rely heavily on that but i don't see where the board well if you look at appendix twenty three ok what the board teaches the fact that a reference teaches one solution doesn't foreclose the design choice right i'm not seeing the connection the board is making well the board was making the connection to the argument goober actually made me said the primary reference does not need modification guber said that okubo teaches everything but omits implementation details ok and what the board said was that's wrong which is to do on the surface what right and what the p top said was that that was rejected that design choice argument was rejected because it represented impermissible hindsight a successful implementation of a design choice with a completely separate system these were not to known design choices that were readily interchangeable and the evidence method and accepted by the recognizes that and recognizes the substantial difference in band with in the risk of incomplete data transmissions if you forced a system to send a match that suggested and kony she w system in okubo you would not have a successful implementation because you had an incomplete data transmissions it were less reliable slower that one more for the design purpose that's exactly right and that was the evidence that was only that's the only citation a reference to reliance on right in the book and they say the record supports a skilled artist since understanding that a cuckoo sufficiently teaches implementation of plotting these problems that are identified in connection with the clue she whatever the system that's never an argument that goober made and in fact the evidence that x one presented shows exactly assume just accept my hypothetical let's assume a crucial to whatever it is as close as pacelle phone system as an alternative ok let's assume that ok though these problems that you're identifying don't apply to a cell phone system right whether the crucial features a cell phone system and if it does you agree that the problems that you identified don't apply to that a cooler does not teach a cell phone system ok well that's the question type sad and substantial evidence supports that system would not work you know that it would not operate it would not operate to transmit the map data and data would be lost it would be incomplete it simply would not be used that's why it would not be provide thank you thank you updated so you not only have the transmission of a massive amount of map data you have the updating of that information which require repeated transmission of a massive amount of data which is  which is an argument respectfully that were never made and never provided evidence to support hoopers argument was that okubo teaches everything but implementation details and does not need to be modified changing the d g p a system of okubo is is what the board set a wholesale modification it completely changes the type of system the type of data and how that data would be transmitted and the evidence supports that that would be so i'd like to pick up where we left off at this d p s our events first of all the argument is sort of a red herring because even if you were to accept the idea that only broadcast one way and so x once argument was essential ie that they must be mysteriously proposing to somehow modify the g p s but that's not the reasonable beating of okubo the reasonable reading of okubo is that there's a cellular network being used for the two way communications and it was just so well known at the time that okubo didn't need to spell it out what is that what information is that transmitted that's that's where you actually transmit the the location but even if you started by saying that even at that but even if that were the case it's really it's really wrong because kony she uses selling work and so the idea when you're combining the references that you have to treat this g d p s feature if it was even