improper imprinted in favor of sorenson making finding that were not supported were contradicted in the record and disregarding substantial evidence of a lack of motivation to come i can i ask you just  reason that they should have that exactly right so that would be a request for a new trial as opposed to being a reversal of that's correct your honor and that's why our primary appeal is substantial evidence argument because that would to the fact that there is no prior art of an echo canceller in a caption telephone to cancel the voice of the assistant user so there would have to be a modification of the combination to come up with the full intention and that's if one has already made the decision to place an echo pants were in a phone then the logical place would be in the form question in the film answer if one has made the decision and an echo canceller is needed in the phone yes then it has to go there that is hardly an admission that that was the logical place or obvious place it's simply a circular statement of this and there are the truly highlights of this and have a few other things but i think the two main point is you've got mr luck with as you've admitted summarized the incompatible architecture and if you look at the and why technology used in one would not be expected to work in the other i mean those are key kind of trigger words and i frankly maybe you can show me so i can find where he said that in the site and absolutely i believe that most  the talk about this wouldn't be expected to work with the other you just point me to where that is well i'm looking here at twenty two thousand six hundred sixty seven when you were developing the line phone you had to be concerned about the environment you were going to put that into in the real world world yes read that explain that thousand six hundred seventy i'll tell the first reason he gives is because of the troubles that echo cancellation was giving them at the credit in a one line system and the second reason was this difference in architecture that even if you could get us to work in one line you would have such greater variability in lack of control was th that's reached about that because any time you're going to combine the soprano are under an obviousness analysis they're going to be changes that have to be made in the prior art whether the what is is that suggestion have heard well he says well what if we're having some problem with the counselor in the one line there are other ways we could do it in a two line and we talked about actually taking the audio off the earpiece and sending it to the cia but right i think your honor under under the recently prior reference and here we have this living breathing prior art reference in the fall capsule trials and all the problems they were having including past a critical day the documents you don't even have to believe the witnesses the documents we cited is in a vault meant does not work continue to have problems but it was the number one complaint through the critical day the pozo would be charged with all of that knowledge and you can't simply look to one teaching  failing and there is no mention of a hope insulation and the data in that f c c backman it is undisputed at the data in that document was based on testing done in not in the trials themselves but in the lab they were using playing one sided tapes just the hearing users voice and having a collison to test the other technology because this was part of a much larger project pester time but we control that so i think you are let me ask you to comment briefly about the secondary consideration yes i was a little unclear on what the district court actually was doing he says that he considers them supported by substantial evidence so you don't have any problem with that correct so what's the problem i mean he's giving them credit and then he's doing no way which is arguably a legal thing to do at the end of the day so what's the problem with what he immediately after he ruled on the record that mr tutt testimony alone is substantial evidence to fine obviousness and he said that a couple of times it was only a year later when he evidence and looking to how perhaps the district court thought this case should have been tried and he looked a functional equivalent that's mr pitot same testimony and said that supports a motivation to combine so you can't do that as a district impermissible at inference for him to take perhaps sorenson could have should have argued that the jury for the record they never argued the district court stated motivation took mine to the drug they never offered functional equivalent as a reason why so the judge looked at the evidence agreed with us on substantial evidence a year later changed his mind but with respect to that question the chief was asking that initially what he said w make the factual determination of the probative value of the secondary considerations and the judge doesn't address that at all in fact he has his own view of the probative value which is improper first the prior art namely the six eighty five publication of the capital trials disclosed all the same features of the patents at issue second there were undisputed benefits of combining the two line captain telephones of system from the six eighty five with the echo cancellation feature from the caption from the capital trials and third a poor person who were very skilled in the art would find only one logical configuration to make that combination know absolutely understood your honor i mean this is the rare case and this is why we rely primarily on their experts testimony to me only yesterday just heard the dispute especially after that last yes to whether that was a fair statement for you to make from the record and frankly when when i went back and looked at what you cited i didn't think there was strong evidence for that proposition ok let me take on that ted on the two pieces of evidence that they cite that say cut the other way despite and i think th their side in our society agree with that and you should just you can read them for yourselves and see that but that there shouldn't be any dispute about that the two pieces of evidence that they cite that they say creates a substantial that say support often be the case that if you just take two pieces of parent put them together they'll be incompatible they will not work there has to be a modification here but the key point here and the reason our expert agreed it was incompatible architecture but our expert said and there were experts agreed that in order to put echo cancelation into the two line system there was only one possible way you could do it you put it in the caption telephone so the incompatible architecture legal you are irrelevant in iowa irrelevant when you think about the question that we have to be asking and you keep asking the wrong question of who actually is whether or not there was substantial evidence from which a jury could code that you didn't prove right by proof beyond by clear and convincing evidence that that there was a motivation that's a very different question than the one you want us to answer you want us to look at the record as if we are the trier of fact and decide which side we think has the better columnist but that's not what our job yet though your honor i don't want you to do that i completely agree with the task to complete we grew the everything and that is why i want to rely on their experts look there was a clear motivation to combine these two things everyone agreed it's great to have a two line system that allows greater convenience to those with hard of hearing they can call people directly they can call nine one one everyone everyone agrees that you would want these two things together you would want the benefits of that so then the question is would a person of ordinary skill in the art have been reasonable expectation of success when they have a reason to combine these two things they went on for the benefit do they have a technical way to get laid and they had a witness and your friend pointed out some of the testimony and that witness went on and on and on talking about the complexities and the difficulties in doing that show and also on twenty two six seven if you pointed us to his statement el the clear and convincing evidence sure so the reason why a couple reasons one is you have to look at the time of the question for obviousness is not as of the time of the capital trial as december and if you look at that testimony it art in the obvious inquiry it's at the time of invention february two thousand where by february two thousand and four everyone agrees that the echo canceller in the one line system had been reduced to practice and was working fine so time frame there is the two thousand and twelve in timeframe i mean here's the question it says during that time period did you have any meetings and discussions with your senior engineers about developments yes and did that occur over that entire year long period that's december two thousand one to december two thousand and two and so that is the time period in which he's talking about it and that makes sense well when they were first thinking about it at that time there was some uncertainty because they were still developing  start with our expert that i think the best pages are fifteen five seventy four to fifteen five seventy seven of the record and there is our expert talking about why it would make sense to take the time of invention that is february two thousand and four it's not february two thousand and three the cut off and the on sale bar it's not just december two thousand and one and two thousand and two when paul well was first developing when they were first thinking about it sure when they were first thinking about it they said look we're having some problems in the capital one trial are there other ways to do it and that inquest is that much we thought about the other ways but we didn't do those they ended up doing the cancellation but the question is at the time of the invention  five ninety one is look it is a natural progression when you move from a one line system to a two line system that you would want to have the echo cancellation of the assisted user's voice at fifteen five seven so that's the first part i guess to judge that expressed if i take them separately the second part is ok if you what you want down so desire right we're still talking about the re right so secure i guess if you start fifty five ninety cents i'd like to walk you through the opinions on why a person of ordinary skill in the art would have combined the teachings as you testified  cancellation it would arise naturally from the transition from a one line caption telephone to a two line caption system also echo cancellation was rb used in one line system for cancelling echoes of the voice is prior art that priority date the priority cutoff date for the public use part is february two thousand and three it doesn't matter what was happening in february two thousand and three that their argument there is it wasn't working perfectly as of february two thousand and three they don't they two thousand and four it's not the priority cutoff date for ansel bars that's the legal response as a factual matter on the f c c petition that was filed in equal two thousand and two that the timeframe we're talking about not the relevant timeframe but if we want to even talk about that time frame in that petition this is what they set this is it appendix page twenty five three to seven and this is a quote the capital trial already has proven that there is now a viable technology now what they now say cause cancer nor could they have done that because then it wouldn't be a working service a critical part of this working service is the echo canceller so that call assistant can transcribe the convert conversation so for them to come back cancellation well you wouldn't get reimbursement that was the case because the actual cancer didn't work then the service doesn't work as they represented it to the f c c but again that's irrelevant because the relevant time period is for re two thousand and four they have never contested that echo cancellation did not work nor could day since that was after the cap to let me close running so let me just have you stand a little time talking about the secondary consideration and discussion we had with your friend about exactly irrelevant he had some basis to say that i'm disregarding the secondary and considerations of evidence in that case with this court says look the district court was wrong on disregarding the secondary considerations of evidence there was substantial evidence supporting secondary considerations but ultimately it is a legal balancing under the graham factors we have to look at that airport has to decide and we need the federal circuit are going to say look even the the district court gave short shrift to that we think ultimately of places that that you couldn't connect it to the claimed features you know the praise or the licensing to commercial success and you know to me that's that's where you can draw the fact that this and then there was you know from that it is such a small time friend that jerry certainly could take a reasonable imprint that everything wasn't perfect but you know where it's well looking at this time frame and deciding whether another pose i would have been motivated to combine and if you look at our culture tex evidence there is a lot of evidence that would dissuade oppose it because of the two years of problems that can tell had during during the trial ok the other question i have is was on any evidence the are someone want to anticipate a difficulty in moving the echo canceller from wasn't there at the thought was you wouldn't be able to control the echo can't say you couldn't a strength then or decline for example the strength of the telephone signal if the aca cancer was failing if it's in every single phone thousands of phones across the country if you let lax control as opposed to one box at is really a station that he can modify as there are problems the other thing he testified to where there are varying conditions of literally thousands of telecom companies across the country he doesn't lack he doesn't have control over that and so he said that was a are a reason why they didn't even think to try to use that ok it's lation at the beginning and in fact they transfer from the relay to the caption fuck you you you pointed out to us testimony you said that doesn't stand for the opposite proposition but we're is the testimony that says that someone would have been deterred because of the difficulty can't go to ten thousand telephones across the country he also testified at length that i can't begin to do justice to you but the same site i referred to you that the varied conditions of telephone line provided by thousands of various telecon hump and he explain why that would deter someone from thinking that you wouldn't want to move the actual cancer to the phone recording telephone calls if you look to that evidence that we cited in and support of praise for example there are multiple documents from