distinguishes between mainly doing something in kinematic the doing something that is doing something with mechanical assistance the board's decision holding the manual guiding can include can a manic mechanisms eviscerated that distinction in violates this court's basic rule that the different terms are presumed to have different meanings you think there's a difference between guiding and supporting i don't think that there is really it a difference on material difference that i can think of between guiding in guiding with can impact support in the certainly nothing in the record here that would sort of illuminate what that distinction is and the reason why is because this case was litigated to the board and was decided to the board this upon the decision between manually doing something on the one hand and kinematic me doing something on the other hand basically the whole point of the invention here was taking a hand held tool without the type of mechanical assistance that exist in the prior art and then not having the type of boundaries that would be there with mechanical arms the provided support or assistance because instead the power to the tool be turned off before the surgeon can move the laser the cutter of the drill outside the area which is supposed to be guess my understanding of the term manually guiding manually guiding the tool the cutting tool of the effector is to move the tool by hand that's that's not something that you have a dispute with is that technologies i guess what if you know if i take this name plate and i'm moving it by hand and then i move it to right here and then now it's supported by this counter is is this counter some have defeating my manual movement of the of the nameplate i know you are and that's what you were buying support it's just propping up the name plate in the place that i last left it after i've let go of the nameplate certainly are we would know what you did as you when you moved your or your nameplate and then you placed it on the counter there was not any sort of mechanical assistance at all for you to place it down and then when you placed it down then it's in its final position our position on kinematic doing something can a magic lee is dealing with something that's assisting the surgeon or it's providing sort of additional guidance for the physician and that's well supported in the record in this case it's one of thinking about mechanical arm it's not actually as i understand it assisting the falling to the ground is that a fair understanding back it is in part your honor i mean you should back in that situation is providing friction to prevent the tool from falling down which means that it's providing force it's providing force to keep the tool in position well so it leaves how is that part of i guess what i'm wondering is why is that somehow contributing to the movement of the tool by hand and the hand of man and of person well your a couple points the first is that when you're the arm requires additional force from the surgeon due to the friction in it and that's clear at appendix ten ninety five eight hundred sixty three and eleven thirty two these are all situations which explain that moving the mushnick arm or quires additional force and it also has restraints it says at appendix eight hundred sixty three involves a heavy mechanical arm that restricts  surgical range of motion to improve safety and so it's restricting the areas that the physician can move the tool the cutting tool to improve safety so that's essentially gives if i think of manual guiding as something that is contributing to the movement of the position of the tool from position x to position y if i think of the term that way then i don't backs mechanical arm is contributing at all to the movement of that tool from position x to position why is that right it still is your are because when it's holding the tool in air it's p required that's what that's what i understood by kinematic here but your honor if i could just address an additional point on this which i think i think it's important to take a step back because even the can america support that you might be describing distinguished from doing something manually if for example if we look at appendix forty five at column twelve at one twenty two the specification says the effect or two can be for example a cutter a drill guiding and guiding with can see a can america support but can also be indicates that that's an alternative there are different ways in which you can do it you can either manually guide on the one hand or you can guide it with kinematic support and so even if we say that that support is something that is not necessarily affecting movement as much as i believe it is i think that the language of the patent right here makes clear that in america support is excluded from manual guiding and that's not the only place in this patent where it distinguishes between manually doing something and doing it with kinetic support a column thirteen on the next page and appendix forty six at line seventeen it says to prevent accidental removal of tissue by the manual or can i'm at the supported arrangement and guidance in so that right there again the pattern is distinguishing between doing it manually and both comp well and comp thirteen make that clear i would also note that claim twenty six also draws a distinction between these two concepts and that's appendix forty nine where claim twenty six  that you or you can have either manually doing it or you can have can magically doing it and there's a distinction that's being drawn here and i think that again to step back to where i was in the very beginning the the whole point of this invention was to not have the mechanical assistance that existed in the prior art it was to use a handheld tool in the way that the inventor made that clear was by using the term manual gardening and that's why you find the distinction between doing something manually  lead or doing something robotically or doing something with mechanical assistance and you are to your point about there potentially are hand movements when there is something that is being supported if we turn to  column one of the patent it discusses manually moving the tool in the context of robots just in surgery that you could have robotic assisted surgery where the surgeon still might manually have the opportunity to make some movements by my hand know and believe that fell within the scope of the claim so merely the fact that there is some movement by hand doesn't mean that that falls within the scope of manually guiding in this patent dictates that the claim construction issue would be dispositive on the subpoena i would like to also mention that we do have a contingent motion to amend it was decided before aqua products and they showing the freehand motion the board did do that but what it did is it made us prove not obviousness and said that our evidence wasn't persuasive before we're quire ing the petitioner to prove obviousness over their m so did the board make specific factual findings about why you're there let so be obvious and wasn't based at least in part on the petitioners arguments i mean this isn't a case where there was no petition or the petition dropped determines that the scope of these par references that there's a motivation a mind all of that kind of stuff and it reaches invalidity conclusion why isn't that harmless error even if they use the wrong language  f products because you are the factual findings to the extent that they they made them in this case were saying that we did not prove that there was no motivation and that is the context in which of success analysis starts at the top and it just says however a reference is prayer or for all that it teaches and not simply for the invention is trying to protect and then it goes down the middle  dr have not explained sufficiently why the pantograph it features and so it's basically saying we haven't explained why there wouldn't be a reasonable expectation of success the same thing is true with respect  to motivation to combine where the board makes clear that it says we do not find this priest argument persuasive of non obviousness which means that we had to prove non obvious that's always going to be the case in a pre awkward product because that was the standard they were playing but that doesn't propose a harmless error analysis does it at twenty nine the board said quote we agree such a combination would be desirable so and then it explains why even if there is some loss of accuracy with using milk cans freehand system there's certain advantages to removing this large unwieldy mechanical arm from the process and to prolong needed because you're not using the pentagram system anymore so i guess from my point of view i'm wondering if the board if we were to read the board's decision and saying we're denying this motion to amend you didn't meet your burden of proving it's patentable because we've looked at all the references and we see why it would be obvious to combine all these references to render the claimed invention obvious under that circumstance harmless error i think that if the board made factual findings and did not in addressed the petitioners arguments and looked at the prior art references and said that there was a showing of obvious motivation and the reasonable expectation of success but but saying that aside saying that aside your honor it's clear here what happened was the board analyzed our arguments first and were part of us to prove non obvious and so when the board's decision is looked at in that whence it's impossible to disentangle the burden question when we only have to show that it affected a substantial right under harmless error and i don't think this would be a good first case for this court to at the procedural arguments that the petitioner had raised how it was the burden was on the patent owner to show that the claims had adequate written description support under section one twelve the board actually said it wasn't going to address those procedural issues and jump good products can be fully applied yeah yeah i understand the question that i believe in this case that there was a a it thorough obviousness analysis on the merits i know there are other addressing the merits addressing both petitioners arguments and patent owners arguments and they made you know significant factual findings that support their their conclusions with regard to recent combine and expectation reasonable expectation of success ok proceed ok just quickly turning to the manually guiding limitation this is three three points i'd like to make it let's focus on the intrinsic evidence you look at the claims this specification and the prosecution history here you supported i think that's a very clear disclosure you can manually guide the device and you can also have some support for your arm and as you pointed out just because you have some support for your arm that that would be a factor is actually being moved by hand s and then in the prosecution history the claims before they include the manual guiding limitation probably they were rejected over a prior art reference to glassman which was a robotic system and the and they amended the claims including the manually guiding limitation thank you are i just would like to make a couple points i'd like to first turn back to manual guiding because i think that it's it's important that ultimate should just resolve this case where i think this is a situation where the patent makes clear that there is three in two zero four four that another type of can a medic mechanism another type of can a minute mechanism which would be distinguished from doing it manually would be a support arm and that's at appendix twenty forty three and twenty forty four making very clear here that there's a distinction between doing something manually and doing something with some sort of mechanical systems whether or not it's guidance or support so i don't think that it's possible to say that manual guiding includes the ing claims there are additional steps that could occur and so one alternative would be to have manual guiding which is required by claim one but an additional step could be having kinematic support and i know it's as brick to damp or driven and driven is active that would be something that's motorized but one of the directors interpretation that means that motorized something that's tremendously driven would fall within the scope of manual guiding and that doesn't make any sense at all now lastly on the motion to amend your honor i would just note that the motivation analysis here one of the additional the third reference well can't was added there's no motivation to combine analysis with respect to back up clinic and milk and there's just some discussion of mel can't or won't under this court's decision a magnum while that's not permissible you can't just take the third reference in saying now we're going to combine it with those other two without doing an obviousness to motivation to combine an there's a true distinction was an error by them not analyzing the combination of the first two references but that was that was what the original claims that were petition for or they explained why those for invalid based on those two combination of those two so then when you added in the extra limitation that's where the third limitation comes and i don't or third reference comes and i don't understand why there was something wrong with analyzing just whether the obvious to combine the third reference to the first two references when they already concluded in the earlier part of the decision whether it be obvious to combine the first two reference your article motivation to provide analysis requires an analysis of all three references to see if there be a motivation to combine them it can't be a situation where an additional reference is just added in and is assumed that given the earlier analysis that that would be a motivation to add that third reference into the combination