having fun but i really think it flies even faster when you're working hard and that's exactly what's been going on with you too i think that the bar and the us legal profession stands in really really good stead having both  you in the profession and the court thanks you for the work that you brought to the court with that procedure choose a move for the admission  separately just so much she's a member of the bar good standing with the highest courts in michigan and utah knowledge of her credentials and on satisfy that she possesses the necessary qualifications and also move for the admission  three was a member of the bar and was in good standing with the highest court of colorado in illinois he i have knowledge of his credentials and i'm satisfied that he possesses the necessary qualifications began now i i submit this cases is worthy of special attention for at least a couple reasons first a number of pieces of objective evidence indicate that the board did not properly way the secondary considerations as well as art itself we need to do the analysis that it did and that analysis is predicated on so called commonsense considerations that one sumit hypothesized by the examiner and adopted by the board in direct contradiction to sworn expert evidence submitted by my client that evidence by dr floyd is undisputed and it directly undercuts and we say goes away from the so called motivation to combine or to modify which underpins the decisions in the case so let's look at the prior teach what the board said it was only in hindsight can you say that song teaches individual heating slides if you look at song and i asked the court to look at that quoted material you will see  now you talking about the three ninety two well i making a point i think it applies to both which is that the board misread songs teachers and so it cannot rely on the prior art to find the teaching that are directly contradicted by the floyd decoration ok now i'm confused we're talking about the three let's talk about the three ninety four cats talking about the three nine two chairs right in that case the board combined the song which  motivation to modify the primary reference to try to keep individual slides because if you look at the art and you look at the context of most of the song which has all the other allegedly has which  different temperature yes i r s so you agree that it shows hitting different rows what if you only put one of each row it's heating one slide to a certain temperature your honor respectfully that's exactly the improper hindsight that the because there was no type of staining that would have required that and the floyd declaration teaches and explains in detail market and technical reasons why a person of skill would not have thought that combination would be would work this this this appeal really i think has as its most important point the fact that the board is using hindsight common sense to remake sung in the in the six seven to appeal and to make up a combination with song and a totally different type of machine which does happen to have a visual sight hearing in order to come up with the claimed invention but the floyd declaration teachers why that combination would not have happened now i know sitting here you think it it would of course well that's an insight and not only do we have a floyd declaration we have two pieces of objective evidence that you know as you know the supreme court has indorsed as part of an obvious analysis showing real life reasons why this combination we're not even made the first is copy  one dr bogan put in a sworn declaration based on his personal marching and been copied the board should not have been allowed to disregard that well i don't maybe it's just a question of terminology i don't read the we think they violated the supreme court's requirements with respect to consideration of objective evidence when they required that this copying evidence be dispositive in order to overcome what we  hindsight reconstructionist fire our supreme court future disliking one sentence out of this or a decision they spent three or four pages prior to that explaining why they didn't think that evidence was sufficient to  show i understand your honor that they first looked at the technical issues and then they looked at the second or considerations we think that the use of this word dispositive suggests that they didn't do it right and when you consider all the other what all the other honor that's not are my point is that they use dispositive which isn't the standard then they disregarded the what it what is the standard well that the all of the all of the the four factors in the in the  that came out around the time and what that article teaches is that there is a need for automation of special stains and then it teaches eight different solution to that all right so that article is teaching a different solution than the one that the inventors came up with which is individualized slight feeding in an open air structure and we think that corroborates and supports our point that you can only do this combination of art or modify sung in the six seven to appeal if you do it in hindsight because at the time of the invention p per persons of skill were being taught  the secondary consideration is the same in both cases so my argument applies to all in both cases the board using almost exactly the same words improperly discounted the weight copying evidence and your column is they didn't find couple and all they gather in this image or pointing to is an alternative view that even if they have coffee yet which the board spent for ages explaining why there wasn't a preponderance of well your honor we think if you look at the doctor ration and you look at the cases that say that a sworn declaration establishing the fact in the absence of any contrary evidence can't be disregarded by the board work or it wasn't disregarded they you have a combination of references that are in the exact same field they deal with automated stating this court in my confidence for example combined references from very divergent your honor and particularly with regard to the sun reference the appendix said page eight a seven o seven column two lines twenty one through thirty one of the sun reference it states further developments that allow individual slides to be treated differently in a single batch operation and that provide an automated procedure that uses reagents efficiently remain the did in the summary of the invention and continues on i s an object of the invention to provide an automated staining apparatus that is readily programmed programmable to allow automated staining of individual microscope slides with different techniques and then see and that the two never make me is really trying to put blinders on one of ordinary skill in the art here it's undisputed that one of ordinary skill in the art has a master's degree in biochemistry has years of experience in apparatus that many slides can also do one what's the motivation to say aha i'm going to build a machine that only does one the the language that i just read from here from the sun reference and to say let me let me create a moment let me let me invention of that only does one slide well and i think the proper question there is if you create something that has the capability of performing only one one slide and one of skill in the art would be obvious how to to modify the apparatus so that it that it only treated one by eliminating those some additional raised areas but both of the references unsung specifically and this is a seven fourteen in the appendix specifically says it will be apparent that the apparatus and method at the invention can be used in any staining technique that can be along we feel and that's why we argued alternatively in our brief that you can affirm the board and score confirm the board based upon the song a lot because of the very language i read that talks about has a teaching these individual slide techniques initial slides think so that's where the support in the record comes for for this and the person the more narry skilled clearly has the dockers argument is inappropriately looking at factors and indeed the floyd that aeration is entirely talking about factors or motivation that are not within the clients they're encompassing anything that assists in stately retaining the tread base we reject icons argument so you can't try to suggest that there's no motivation to combine by relying on things that are extraneous to the claims throughput and i we also cite in the brief the snap a nephew vs rape case that says an unclaimed an undisclosed feature cannot be the basis for finding the patent to be non obvious over the prior art to look directly on point here and that's why the floyd declaration simply carries no weight with regard to criticism of the board and its findings and been supported by substantial evidence and i would just point out to the court there's been a post briefing decision that really goes right directly to this it's the alumina cambridge vs intelligent biosystems case it was decided slip opinion from january twenty ninth the twenty sixteen i will note it's it's it's a nonpresidential case i only offer it for it's persuasive weight but in that case alumina challenge the board's refusal to enter substitute claims obvious you know i have a prior art and what they did was argued an essentially what doctors are doing here they said we have an expert declaration that one of skill in the art would not have been motivated to combine these prior ar reference because of the local events of fish and sea taught by the prior art and judge laurie wrote in rejecting that argument although alumina provided an expert declaration stating that the prior art did not provide an expectation that i saw fide cleavages conditions would cleave a protecting group with greater than ninety percent efficiency the claims also do not require that the protecting group be cleaved greater than ninety percent of fish and see scope of the claims what we're looking at is the obviousness of the claims now there was a also a reference about what the purpose of son was or what the purpose of the inventor was and the k s r decision from the supreme court tells us explicitly that in determining whether the subject matter of a patent claim is obvious neither the particular motivation nor the valid purpose of the patent he controls what matters is the objective reach of the claims so we look at the references we look at the if the objective reach of the claims and here i'd submit the board's decisions are correct but they are lower tribunals did not address and did not deal with the evidence of objective in dishes here as judge issues pointed out the court went through in some detail what the offered evidence was and simply  found that it was not sufficient to prove copying and again the standard of review here is is that conclusion that finding by the board substantially supported by substantial evidence in this case clear declaration by the inventor that he had any personal knowledge about the entire anna or its device and when we pointed out that fact in the reply brief the only response was well he was working in the field during the same time   evidence with regard to object in disha the subsequent article was not pointed to the east showing of a long felt need for failure by others it was used in support of the complexity argument of six seven two the board's decision should be affirmed on both of the grounds that it reached its claim construction is entirely appropriate it's it follows the expressed language of the claim issue claim one as modified by claim to there is no requirement in those claims that each flight support have its own individual heating element well in the claim one at have a heating element that underlies multiple slides and multiple slide supports the opposite argument is that is that they think suggest that they are somehow a one to one to one comparison here that is set up and in that the case that a slight support can have multiple slides on it because the most of the visuals we saw was that every slide and every individual slide had its individual slides well it depends on how how you look at needs to be because there are claims that talk about slides having the claim says that the slide support has at least one so there is support in the specification that you can have a slight support that has multiple what if you look at the but that modifies slight support it doesn't modify the heating element and the way this claim is drafted the difference slight supports could share a heating element so you could have separate slides supports what they each have part of the heating element and the other thing that's critical here and what the board said and relied on is we're dealing here with a family of patents this one specification slide and it did it in various other claims but didn't do it with respect to this one so and i guess the other response i'd have prion or two is that language like comprised in comprising is not limit teach one of skill in the art that the that they use with individual slide treatment for the reasons i've already discussed there aren't any further questions i'll see t if you look at the disclosure for heating all of that disclosure is in the context of blocky sung teaches a laboratory device that permits individual staining and then block heating and does not have any internal teaching rate how that case stands for the proposition that this court should reverse where the board has not given proper weight to an expert declaration in that  and his personal knowledge that antenna copy the clean device it also supports our point with respect to dr floyd's declaration the board's treatment of that declaration was her saree and dismissive and it did not its facts it stands for the deeper point that this this court should reverse where expert testimony has not been properly considered and that's what the court did in the co submit the board does not have the right to discount an contradicted sworn testimony in these proceedings and that's what they did they they just refused to believe i'm contradicting facts and that's improper and then they substituted their own these these invalidity decisions are based on hindsight i'm sure you hear the word hindsight a lot in these arguments but here we have five different reasons why my insight led to the erroneous result the board misread sung it does not teach individualized heating the board discounted the copying evidence in this warrant and uncontroverted declaration of dr bogan it ignored an article teaching a different solution was what people  being led to at the time of the invention it substituted a hindsight technical capability for combination with the legally required motivation to combine and