motivation to combine which was laid out what mr parker's declaration per one hundred and forty one dollars said you're going to have this desire to increase use cases for commercial viability we inquired with their everything they disclose and for everything that they disclose under the s a s case the petitioner controls their petition and they control the basis on which they're going to have a motivation to come by our position was that when they said that a person of ordinary skill and we are would be motivated to make the combination based on a desire to increase the commercial commercial viability of the st reference that that put it in play but exclusively for the issue of motivation combined not for anything else well but only for the issue of motivation to by the board i think struggled with respect to the issue of mr parker's generality with respect with that he didn't the only provided a quote juror that's the language we use gesture on i think generic reason general reason i think the squid cited to the court in our briefing the active video cases which  motivations to combine were inadequate and i think that's just part and parcel with that same one as of mine why is it relevant that there commercially i think it's i think it's relevant that an expert if they're going to proffer a motivation to come by along the lines of make it better make it safer make it more commercially appealing our reading of the case law is they need they need to orient that to the references at issue so i think of a person of ordinary schoolyards as i look at reference and discussing a race car and just doesn't it says that it's important for cornering and handling that you have good tire traction and i've got reference b that says i've got tires with great traction and maybe my analogy didn't take super well but i think from from our side if you're going to come in and offer commercial viability as a foundation for motivation to combine it needs to be oriented to the references if you're going to come in with the idea of increasing use cases you don't you don't challenge of just the you show commercial viability as a as an element that could be used to show a motivation to combine no and i don't think i don't think we're not citing active video or the other cases from this court to say that that's per se rejected what we're saying is like an active video where they wanted to make it better or they wanted to sell more units in activity i think and like here you're obligated then to develop that argument more and present more record evidence to explain why that's all we're  not saying that it's per se bad or per se off limits what we're saying is we're going to go down that road it has to be more than conclusory and unsupported the board then went and used the background of the invention and our expert mr councilman's agreement with the background of the invention to find that he agreed with the concept of making the combination based on commercial viability and there i think the board we  characterize this as a potential reversal of the burden of proof under magnum oil i think it also could be characterized as a failure to look at the record as a whole we argued that the board sort of completely didn't look at our you always argue all of you argue this every single time when they you present or experts and the board disagrees with you come in here and say either they didn't look at it improperly even though we presume they did or you argue that they've shifted the burden to you under magnum when all they're doing is looking at your evidence and rejecting it that's not a personal of the burden it's just they don't agree with you i certainly agree there is room for that absolutely i think here can you point to any place in the board's decision where they say you didn't carry your burden of proof  the right burden and all they're doing is addressing your arguments or finding them insufficient that's not a burden ship day which i choose i think that in the manner we argued it with respect to the motivation of combined i think the board was obligated to look at the fact that mr councilmen expressly disagreed with the motivation to combine this time commercial viability how do we know they didn't they didn't say it under them for that unless they clearly have not done something if they've clearly ignored something the fact that they didn't specifically address that doesn't mean they've somehow shifted the burden or ignored the evidence they breached a reason conclusion on the record and we're going to review it for substantial evidence and our position with respect to the motivation of combined is simply that they were obligated to at least comment that we have no a list look at the record it's especially word so dramatic he  disagreed point blank with a complete commercial viability reason and the board used his agreement with the background as a basis to say that he in fact agreed with the commercial viability and maybe that doesn't answer your question  just to me that the board did indeed look at your experts declaration and disagreed with the fact that they were not the other side in this case they were not obligated to reply to your arguments point obligated to look at the record and rita reach a decision that is the process i would like to move with and you're going to talk about unmet need as well i think what i'd like to talk about is this idea of under personal  unpersuasive with respect to why you'd use her powers radio motors into this they went through that i think our problem there is under personal web because the petition and mr parker in their opening declaration said that a person would put those exact motors to which is the radio motor and three a on to see that it was b m w the burden of proof to explain how to do that and why  with respect on that need our view there is simply that when the board used our general in generic statement from the back of the car invention as a basis to say that there is a desire to increase use cases for a universal or modular chassis that they needed to look at the fact that b m w filed cage in the same issue around the solving the same problem two years later simply that just that it needed to be done consistently israel so they're both directed to hybrid platforms in my last five minutes i can ship to the other appeal for a few minutes so i can reserve yes i think our positions are fairly simple with respect to the claim construction of primarily transmitted which follows the such that we offered a claim construction in past months response b m w an opportunity to offer a claim construction in the petitioners reply they did not that issues not be released here for the st time we believe it's a waiver not withstanding we believe our claim instruction is correct that the such that clause signals up indication the function of the chassis and then the environment which is found with respect to the wire issue it to a substantial evidence the board indicated that there was a stalemate you know on the issues between our and their evidence with respect to the experts to me that's five thousand and fifty dollars and so the board looked at other evidence and we believe substantial evidence supports that other evidence tipping the scale that one percent more and for that multiple use cases that design incentive is motivation but it wasn't the only motivation there was also the interrelated teachings of the patents that mr parker explained in detail and sixty three patent even confirmed that no desirability with that they had no question to look for any other evidence with respect to whether there was sufficient motivation to go by but there actually was as we said had in the bird how reference and express object of trying to optimize the use of space because batteries and fuel tanks could take up a lot of space so our car looked to put it into these background support  that you was a known desire in the automotive ards in person with respect to chassis designers wanted to design a chassis to make it available for use across multiple use cases in order to increase the commercial viability whether the bergdahl reference was commercialized that became the whole linchpin for this commercial viability commercial success commercial zation types of arguments that the patent owner has not been making but the board exam  understand what mitchell parker was trying to say was trying to say that there's a motivation to combine because if you do show your resolved in greater show wrote not exactly your honor what he's saying i marketability is that an element for motivation to combine that a market forces is is part of and is an element as is design incentive which is what we talked about as in a related teachings of the patents and all of that was set forth in several paragraphs of mr parker's declaration and again the known desirability to do this which is the motivation of your chassis designer was agreed to by the patent owners expert also noted that there was no dispute that all the elements were met in the combination of the references and then they went forth and laid out the arguments against the secondary considerations evidence for which the patent owner does have a burden of production and they did that quite clearly in the final written description of this is me final written decision over several paragraphs and  those chassis loads are described as being transmitted soley or entirely through the backbone and that makes sense from structure restructure the and then you have a central backbone there is no frame surrounding that central backbone therefore through the backbone but let's take a look at the impact crash loads because the patent owner has made an argument that the structures haven't changed the function hasn't changed but let's look at the impact crash loads and how those changed changed changes of or what has been added in the two thousand and twelve c ip so if you could read that passage in paragraph six which is up at the top and it's read about in the middle of it it states that the object loads and impact crush loads now read the blue in two thousand and twelve and they're further disclosure where they have added a lot of disclosure about crush boxes throughout the spec it now says that those chassis loads are still decoupled from body loads but also the impact crash loads are now absorbed to the backbone absorbed through the crash boxes to the backbone so the structure did change you in two thousand and twelve they are now absorbed to the backbone that's a contradiction that can't be resolved and therefore for that reason alone the impact crush loads can't find support or even primarily through the backbone from the foreign i know application and then further when you have the one hundred and sixty three filing patent you'll see that they changed the term soley to primarily for support because they had none of this only showed up within the claim they went to look at a passage in the one hundred and sixty three up location is unrelated to how the loads are handled in the chassis that passage has to do with isolating the body from the backbone using body mounts and it simply says that if you can isolate the chassis or the body from the the backbone using the body mounts you've substantially and only substantially because there's a wait and wait obviously would affect still the backbone but what they never show is and i should say the board in their findings said that well that's evidence of sharing of loads and therefore we find written description but that st of all doesn't track the claim language which isn't just sharing uploads it is primarily transmitting them from the front structure to the river structure through the backbone and that's what gave rise to what we anticipated they would argue which is that there is something some alternate load path from the front structure to the rear structure that goes through a body when the body is on the chassis two aren't two problems with that the st problem is the foreign i know application and if you look at penn dick's site fifteen this is also on page fifty four dollars of our blue brief they have a claim which is part of the original disclosure of the foreign i know their priority which says you have a body it is mounted to the backbone but it still says the chassis loads are soley i think it's entirely there are solely through the backbone so even when they try to rely on this passage of a body being mounted to a backbone their earlier disclosure is still claim eleven where again now they have a claim with the body on it which is what they've been arguing you have to read their claim one of the one hundred and sixty three patents having a body but now you have a claim that they wrote with the body and it still says the  so we believe there's no substantial evidence to support the board's findings with respect to the primarily transmitted limitation secondly with respect to the ultimate load path it's a claim construction issue only because impl had to reach that can that view otherwise the loads would still be going through the backbone because nothing else connects the front structure to the rear structure and even their own drawing three years make it clear that the body is just mounted to the front crate with them on the back and there's a hollow that hung to between them didn't we wouldn't that imply that there's a wire connecting the two it would likely imply that there may be a conductor of some sort but not necessarily a wire that you know mr parker testified that there are numerous other conductors available to couple batteries plus cars or use extensively in battery if you to take it to another level the further you have to look and say what is their actual claim which for example one of their claims talks about a wire and spanning the entire length well if you have batteries in that you're connecting to that wire isn't spanning the entire length they may be referring there to a different type of wire such as the wiring harness in the vehicle that goes from one end to the other doesn't connect to the batteries at all and in fact i think that's maybe what they were aiming at but there's no disclosure of that until they file the two thousand and twelve c ip where at that point they put in ample disclosure of not only fluid lines electrical lines how they're located the purpose  why but as of the foreign i know priority date that they're claiming or want to claim there is it may be obvious to you is one your honor i'll be the st one degree to agree with that but that's not what the laws are there's no actual disclosure there's no petition or argued that there was a lot of record of events pointing to specific things in the patents themselves that supported that combination i would direct the court to motors two and three a book of the hybrid vehicle and this argument was repeated in the petition self under personal web mr parker needed to explain right off to the sides and explain how those would be integrated into the race car for stassi and why that would be successful mr parker did not do that mr consummate explained why that would not be done could not be done wouldn't work and so therefore you know on a personal web to extent that that's used as a motivation to combine our position is this equally conclusory it's equally unsupportive with respect to commercial success commercial viability ever commercialized our questions move mr parker were very clear in the deposition and so in our brief we didn't ask him about commercial success didn't ask him whether those references qualified or did not qualify this program we asked him if there was commercially viable point like commercial viability doesn't necessarily mean it has to be sold just would anybody be interested even in your opinion and he did not have any investigation so i think that this commercial issue has i don't it is come into the case and exit at the case come back into the case and exit of the case that's come in as a basis for motivation to combine utterly conclusory utterly unsupported when we criticize it there's a step that looks like a rat felt like a rat or sums up here to us we feel like we've been whipsawed by this whole come you know it's either relevant or not i agree but if you're going to put it into play you got to support it can't it it's got to be more than simply conclusory well it's  reason he gives reasons here his you have to prove that it would be commercially viable or can he just say as an expert i think this would increase commercial viability i think and i think you have all our position is that it's got to be oriented to the references you can't arctic why i think because if that he is the skilled artist and we're not i think if it wasn't tied to the references activision would've gone the other way polaris would have gone the other way well but it is tied to the reference to the st two the st two sentences talks about what these other these references disclose it's one of scale of the art would have been motivated to use howard's motors with something and stacy and then the ultimate conclusion that this would increase commercial viability if that's the case except a hypothetical ear on one side and electric motors like you're on the other side and how that would go in so i'm not disagreeing that you couldn't use the references to the subject matter of the references themselves all i'm saying is you have to explain why in your personal web for there to be minute yes i just like to address one point made with respect to personal web what's missing in that analysis of personal web is it's not only are you having to show the combination but it's in the w claimed and here this is going to the obvious question right yes i mean we don't really treat these as cross appeals but this is his feel should he get the last word on that that's correct i mean if you have something on written i mean if they