specific arrangement these are all components there are only so many things you have to work with a fuel tank of seats in the engine but there are very very many permutations of all those components and what polaris was packaged them together you know weight they created a new category within each t v industry hugely commercially successful and copied by others main new category or a new name no it's a new category the sport side by side all terrain vehicle is recognized in the eunice tree we put in this in this evidence as as a a separate category that and literally over a billion dollars of sales for polaris now you know even if we agree with you that any is directed to him as opposed to an a p b which i don't understand when that's still doesn't make specifically on claim seven hundred ninety and the reason is there's a couple reasons but one is the sheer number well changes that you need to make to denny to get  it to claim seventeen through ninety one seventeenth or nineteen or part of a string of dependent claims that keep adding more detail to vehicle so that by the time you get to even just claim seventeen you need to make six changes to denny they're at it again this is a packaging invention you need to put all these components together in a vehicle and that placement interacts with one another so where you cited to one thing is with frank what you do with others then we came up with an overall package vehicle like the secondary reference for a hotshoe where you have that higher center of gravity instead put the seats at the very bottom of the frame where you can maximize the low center of gravity so first of all and it would simply be incorrect to characterize that as not teaching way arctic i didn't argue that it was not teaching the way and that's where i think i really want to focus the analysis on subjective preferences relative to claims sevent ninety because the boards fundamental error on that point was you know assuming that the issue for claim seven hundred ninety eight was the same as it was for claim what you think your argument without in seventeen and nineteen is stronger then the commercial success argument relating to claims in the thirty's i think i think they're both equally strong and my hope is to talk about seventeen through nineteen and then talk about thirty four and thirty six love like you h commercial success while i and i create that your honor our argument there is really quite simple the board rejected commercial success simply because it found that mechanical invention like this it shows that he performed the exact methodology required for mechanical invention you read the patent you construe the claims you look at information relative to the products he said he look at declaration that it is pretty bare about itself i looked at the patents and looked at these vehicles they're covered by the claims you know if i was a board maybe i could accept that but we're reviewing them on a pretext french a standard here on whether to deposition or something like that it's a very interesting point you are because these parties have been locked in litigation for years they have our vehicles and if they had a basis to dispute our expert they c you know what's missing in the case they had again earth the cat could have come forward and identified something so i will look for the speech or look for that feature the other thing that is that the horrible look here is that there is a lot of record and that and the issue goes to the other foot as this court said of the machall case and in this case arctic chose not to put any evidence in on the nexus issue and they chose not to put any evidence on it you know on whether the product was covered are there are cases that suggest that that might not even be enough but they can't put forth that case here because again this was a a new type of product they did not supplements and all product that that went away and made it took share away from other competitors and we put evidence of that also in the record but it wasn't just planting a polaris product they would need to show that it was something the players did it was all about it's advertising or something else like that just doesn't make sense here as and with the industry that latched onto this as a great invention and again this is a competitive industry if this were such an obvious invention any one of these other competitors would have loved to get that billion dollars plus worth of seconds and the fact that they didn't come out with it sooner makes this exactly the sort of case where commercial success should tip the scale any case what else so ultimately you're trying to create a vehicle that has the right balance of features that is you know maneuverable stable safe all those things that you're looking for a vehicle you need to to put everything together to try to maximize that and that's what polaris did and scores but if a person of ordinary skill would have thought to do that it can be obvious right the mere fact that one school new york could have done it there has to be a motivation explaining why it would be obvious to put all of that and put the fuel tank on one side but the battery on the other side and the like and if that's the case isn't that substantial evidence for that conclusion  do this because it doesn't work i mean we all have our standards for teach what if any doesn't teach a way then why is he your friend's expert testimony and off on these claims because you're not trading off one benefit for another they did there are subjective preferences analysis in the context of twenty one but we're trading off one benefits center of gravity against a different benefit four wheel drive but when you get to claim seventy three nineteen there's no trading off of a and b it's to eight they're basically saying trade off putting heavy people right at the bottom of the freight for stability purposes versus raising those seats we can put something much lighter under are or a or a battery so the whole idea to the extent subjective preferences dealt with with balancing tradeoffs and you know saying ok he teaches way from it but not that wonder under your theory basically no one would ever back him up with a new a t v that could be non obvious well i think given given these even these features that we're talking about in this patent and given the evidence about the motivation of where to locate those components in this case as true i'm not saying that there's not a instance in which a a a new arrangement where there was nothing found in the prior art or no motivation implements that  really did analyze exactly what the product showed and what the differences are between the prior art and this is claimed invention instead they just said well you would have just stuck all the stuff in there and it doesn't matter that you would have not been accomplishing  i don't think the board of saying that that you would change the whole dynamic i think the board was looking at the motivations to implement these different features and that and that they were founded for these sort of other components the drive shaft the gas tank and the battery and that there would have been known reasons to implement those in tanks frank to get the benefits of balance and the newer ability that would come but they didn't tell us that they just use this weird subjective preference of good which sounds to me like they're almost calling it a design choice but these can't be design choices because placing these different components and different parts have actually all results you agree with that it's not just a design choice to put the fuel and the battery under th or teaching our teaching that's incompatible with the combination of danny danny suggests the board specifically said that you can create this comes combination even though it is inconsistent with danny's tank with the with the drive shaft running between those components the dispute before the or it was was very limited and as i mention arctic has expert introduced evidence as to why you would have implemented these features in so there wasn't a dispute about about the benefits of this location that one of ordinary skill would have would have known of those benefits the only dispute was that it would be contrary that he said it was more than just the center of gravity in other words everything that you know there was multiple things conclusion that one of ordinary skill would weigh the preferences and fines who would have would have had the ability to bounce those preferences and implement throughout his teachings and so you don't have anything specific item seventeenth relating well what i think itself and the board could look at that and see where the engine is he said it was pretty easy to figure out where all these parts are i mean if you look at the rest of their argument which is anybody could have put all this stuff together then help put the board say that they can look and is easy as easy as the board said it was why isn't that enough well i think that's a big if because it's essentially asking the board economy entire record for this rather than having the board can have it both ways they can say we can easily put all this stuff together and decide that it's just design preferences but when you've got an expert that ties each element to each claim that we can't figure that out well i don't think the expert was tying each element to each climb and if the board's signing on the driveshaft term is up hell under our construction there is still a long straight shot that would fall in the court's construction of drive shaft that would meet the definition of extended between the given even if the drive shaft construction is up how old are are without with our construction ideas that you would have to agree though that if that construction's upheld the drive shaft is upheld then there is a one didn't require reason to seek to do require any balance they also he said you could put the front driveshaft into danny without having to raise the seats so there was no tradeoff analysis for clean one there clearly needs to be one for claim seventy to ninety because nobody saying that you can't use that you don't have to raise that denny seats in order to put these elements in and then my second point is and i believe i tried to say this before you're not trading off and if it's at that point what is the motivation ultimately there has to be a motivation there expert merely a motivation took quite a gas tank or a battery or so you didn't say there was a motivation tall left a seat up to lift four hundred pounds of passengers so you think it even if the board had done the analysis and had relied on their expert it lapsed a lot substantial and indeed and that's why we believe you shouldn't just vacate on a tissue because they didn't do the analysis you actually should reverse the board there simply said yeah that's going to knock off one way that an agency can abuse its discretion is to reach different conclusions in different cases without a basis for distinguishing between two here we again have