declaration testimony not based or view from the prism of one of word mary school in new york at the time of the invention the only statement in that declaration that farm attack or the board can point to as motivation for combining when  and is an eighteen word statement that use of the known technique to improve similar devices in the same way and the results would be predictable that's the only thing they can point to is is it your position that the board could look at the two references and find motivation within the references themselves not on this record your honor this is a this is not an examination proceeding as an adjudicator proceeding and farm attack had a burden of proof a burden of coming forward with in that particular case yes your honor in this case the reason that evidence of motivation to compain is so critical again to avoid use with hindsight is this is not a case where you could just plug from one reference one element of the claim plucked from another reference an element of the claim and put them together and you have the claimed invention you first had to look at each of the references and modify each of them you had to modify mankind to come up with the strict elements of the claims you had to modify when  s to come up with the stripped elements of the claims you had to modify shillman you had to have some reason why somebody skilled in the r would have looked to show man to an instance where you had implanted blood sensors that are awash blood and would have looked at that and have fought to combine anything from shonan with these other patents that relate to disposable test test tricks to which small amounts of blood are applied and there was no evidence of the record here and i when you said you had to modify mankind the modification though there were not a broad range of possible modifications cracked well there's there's an argument to that effect obviously your honor there was another program to modification but there's no evidence in the record that somebody skilled in the art would have found each of those potential modifications to be applicable or possible it's not like one of the cases that from a tech relies upon and the board relied upon one  changes about that it would be prima facia obvious well that's not the case here in the case of a range from thirty six to forty two seventy two i know everything in that range is and there's no reason to believe that they are distinguishable from one had to be a showing of unexpected a showing of an advantage had to be shown to be unexpected in the context of an overlapping numerical range it's not applicable to a situation like mankind where the only disclosure of mankind was that the invention is not limited to what showed in the figures and from that farm attack and the board takes well somebody skilled in the art would have modified mankind to put the reference always the case your honor i think sometimes in simple mechanical inventions you can take you know an element from reference and irrelevant for reference b and put them together and there's the invention but in a complex technology like this where it's an admitted high level skill of the art actress degrees in chemistry electrical engineering and at least five years experience working with electrochemical censors something more is needed to justify or to support about the level of scale that's correct but their findings in there and as we pointed out in our brief some of their findings are simply not supported by the evidence for example with respect to going to our dept they report they referred to several lines and what are they  saying that well the narda second electrode takes measurements and what they refer to for that second electrode is a reference to an artist to taking measurements of recess since not a measurement of the concentration of a substance which is required at the second working electrodes so the board made findings that were simply not supported by the record ok thank you  that whatever the result of poor reached it's not one that you lead them to the board did not really apply an appropriate standard of burden of proof for you i mean you did not submit an expert testimony dr ranks you pretty much can see that he doesn't mention the level of skill in the art he's his his sort of it's edicts that you would have known without putting it into a time frame we're talking about the levels  clearly not enough so you fall back on well it's not complex technology so it's ok but it is complex technology and you didn't dispute that the level of skill in the art was high sell why don't we have a situation in which the board issue of skill in the art should apply to various elements of the technology here the issue we're looking at for skill of the art i think the focus here is on there is how you arrange three little blocks you don't need to be highly skilled but there's because what dr wang testified to is you can only a range the saying so many way i don't know what more evidence she would need to provide other than to say you have three blocks you can arrange it that way that way that way way that so there's really nothing else to say about how those blocks can be all right and you don't find it to be problematic that he doesn't refer to the level of skill in the art or put it into the appropriate time frame there was no i don't know because there's really no dispute i accept that and my point there are if we were talking about a complicated element of this technology then you would have an argument therefore talking about how the religion formula transfers glucose into electrons then you have an argument there but with respect to what's being discussed here on new car you're simply talking about the arrangement the reference electrode with the two working electrodes that's all we're talking about here and that does not require any significant level of skill to know  think the argument you're coming to about the level of skill in the r is that this was a critical arrangement the specifications don't support this it's a critical range look at all first of all specifications so you can arrange these these are the working electrodes anywhere you want to which we include a way to arrange it with respect to the reference electrode moreover woodruff says it talks about a range but then it also talks but any other variable or how you arrange these three blocks is a variable so you not only have expert testimony showing that it's obvious so so you have to fall back on the fact that this is simple and therefore anybody could do it so we accept what the level of skill in the art is and and your it's only because there are a limited number of arrangements that's your basis your entire basis p roc meant that it would have been obvious right of just to those two bases or one is that there are that that there is a limited number of of options and the result would be expected and the argument here that there  no motivation to combine many of these things you want to promote and achieve an accuracy which is what we're talking about here so how about is the word to look at the original prosecution here we're the ordering of the electro have we made that argument and when what they're arguing is critic howard was not of the original application for this the original application allowed any ordering and only one now because i was cited prosecution did the court did they come back and make an amendment to all the range in this particular point about the ordering being obvious and i think it's important this argue with a critic ality is not supported in the specification because the only the only advantage of this particular ordering would be in the very rare situation where both of the working electrodes are not covered completely in the exact same ma'am because if they're not you're still going to get an error and he get anyway so this ordering is not necessarily significant this aren't the argument that was also made that there was no evidence of a motivation to combine motivation come to combine is contained in all three of these patterns and i'm including i'm in one of five which specifically says accuracy here is the motivation anything you can do to improve accuracy is a motivation with respect to these patterns so if we look first to the  things you can do with multiple measurements one thing you can do with multiple measurements is you can see if there are two different and this argument that no schole misson how unique technology that someone would not be modal to motivated to combine with a test strip doesn't make any sense because life's again before the district court specifically argued that this is a modern what chairman is teaching in terms of if you have two samples that you can vary them to see if they're too far apart is well known trivial unknown devery one and that's what the board found with respect to shore when we're not talking about coleman for the purposes of anything unique it does with respect to implantable  diabetic sensors we're just talking you for the basic proposition which is what do you do when you have two measurements and that's a specific lee with the board found and one that when lifescan argues you need to look at a pattern as a whole that point is you don't need to look at the specific convention you need to look at everything the teachers and what this had teaches what sean teaches is if you are taking multiple measurements you can average german that's going to get you a more better result but the other thing you can do is look at if there are two different and why would you be motivated to combine that with mankind you already have the multiple measurements you're going to be motivated because it increases accuracy which is specifically for dr why i'm such as which is what mankind says is what  incorporated by reference it says that's the issue getting to this last issue of when are to the point judged i q you raise which is you know that the third sensor and the argument oh no one would be motivated to make that a working sensor in reference of page one on one of our application a reference to an art of one or a column five one thirty seven fifty four seven lines eleven forty two and nine forty fourteen were it is it is it it is has all the capabilities it's made the way would be adapted again is to improve accuracy if you have all of the steps of generating the current your just need to want to dish will step of taking the measurement rather than just using the current as a trigger use that current to take a accuracy you're good you can use something that is has all the elements are there to do it to just have to do it and that it would be obvious to do that because you have all of those elements having a trigger having your  last sensor act as a trigger increases accuracy because you've been short of that your sensor has been completely cover because it's not going to start measuring until you get to the other sensor but then again if you took a step further you're going to increase accuracy further if you have the other sensor also take measurements because if you can compare the two you can address the issue that was that was raised by shoulder and raised by the other priority could have an error or mistake in your sensor that would that would provide that answer and the motivation  thank you director there are a lot of moving targets here and i want to address two of them one has to do with when our time throughout the proceeding and in the patent office would be i p r from a tech took the position that the w o alecto that second electrode if we are to was capable of making a glucose match it wasn't until we got the final written description of the final written opinion decision from the board with the board acknowledge that modification would have to be made to an architect to be able to make a reading there and the board said and somebody is going the are we capable of doing that well at that point we have no evidence no opportunity to respond to that today  restatement a general statement something that is not specific to particular references so the argument now that it's found in the references is yet another example of a moving target the evidence the only evidence of record that was ever numbers a number of reasons why showmen was so different from anything that when are to which and now kyra doing the one skilled in the art wouldn't have gone there because the sensors are planted there awash with blood it's not an instance where that's all in the smith declaration and that is the only evidence of record from the standpoint of somebody skilled in the art at the time of the invention with regard to motivation and it supports life scans position that there was no evidence of motivation