standard is a manual so that manufacture tire manufacturers and remend factories can be on the same page but three of the reason we don't believe that is relevant here is the three zero seven  was already outside of the standard because this is a very this is a market for enthusiastic so while most consumers might want to make sure they're buying a tire in a room that fits in the is relatively standard we see that people in this area are working outside the preordained standards so in terms of general shape the three zero seven and the seven six six look the claim to mention was within the options to one of skill in the art what the board did find however a viewing though is that the total determination of obvious so right so you know we could disagree with the force fighting as that the board was correct in finding prime aphasia obviousness we find the board error to be in its finding of that commercial so i'm certain we believe that the bird was correct in find a prime fish obviousness the board was incorrect  didn't the the inventor in the prior art combine until we what we don't know is that the inventor didn't do this and i apologize for the double negative zero three zero seven shows figures without  dimensions and we had argued to the board the first time that if they were drawn to scale it would have been within the dimensions of the pen the board pointed out and we don't disagree with the board's finding there that because it wasn't clearly called out that it was with the the testimony of mr thompson that these dimensions were out there to want to skill in the art and that they very easily could have been combined it was just it was a design choice there in fact the these shorter sidewall heights are also listed in the standard as as possible sidewalk heights so the bird as it is required to do did look at secondary considerations and that's where we think parents decision it it looked at two issues for it first found the prime aphasia obviousness that was hotly contested alone somewhat contested here about they found the prime of asia obviousness and then they did look at the secondary consideration question of motivation or to combine is considered and that they're all supposed to inform each other and i have no i don't believe that the board get it wrong that i'm just reporting how they did it in terms of writing their decision but you'd agree the idea is that ultimately the courts are sponsibility it was to consider all the evidence taken together in the sense that the pr then now you've got to reconsider everything a new in light of rebuttal evidence to make a determination of whether in fact one of orders and they are at the time and eventually would have found these claims of absolutely we do not disagree with  that at all that in that you must look at the totality of the evidence you can weigh the relative crime of fish or engineer this obviousness with the evidence in the record of secondary considerations but we don't at all say that you shouldn't look at that point should have looked at the secondary consideration or that it's not a primary or at least a primary is a very bad word when it's a very important thing to look at when actually might my biggest concern is that what the court what the board looked at for a nexis really does not even on a surface reading of that evidence support the you can only begin with the presumption of nexus if it's shown that the commercial embodiment of the commercial product both embodied the claims of the patent and were co extensive there was never such a finding by the board here  a non drug patent could never be truly coextensive with the commercial product i'll give you three examples from the case law as to what we believe coextensive means from from this court in the demarco case it fifty one f second thirteen eighty seven it said when the commercial in body image of the patent is merely a component of what's for sale it's not coextensive in media tax licensing it looked to see if there were other reasons that the embodiment of the  three of those cases did require the additional showing up in excess it didn't present and the board here didn't presume as well the what the board did was the board looked at the board the board then apply a perception and i i don't look at all of the evidence or didn't describe it as such but there is that huge amount of industry praise that is directly tied to this feature with all due respect your your honor th not find industry proves that that's an independent secondary consideration let me let me say they didn't find it they talked about it and it is it is in compassed within a fair reading of what it is the point was looking at the articles that that were there or were talking about what was on the market some of the articles offered were buyers guides and then there were discussions of are the berries items for sale the articles when talking about the k g motors product that stamps new no tubes which was the the commercial name used talked about those product and its benefits as a wheel set with all the components articles for a nexus i don't i think we can we can disagree whether it is in effect industry praise but it was not a finding of industry praise and we don't have to have a fine human and there's a difference between a alternative ground of rejection and just finding additional support in the record for that for the actual ground of rejection that the board relied upon correct yes so we find that that the board conclusion of non obviousness it was supported along with other things by evidence of industry praise that is supported by the record and then we're free to conclude that i believe as a legal conclusion under the chair of the doctrine you that this court is not supposed to find facts that were not found below but because obviousness is it the end of the day a legal conclusion this court can make any legal and designed so with so to the consumer as a whole but there were multiple times in those various articles where those reviews zeroed in on the shortening of the cycle and then the reviewers know you can surface area of the tire to contact the road and things like that the point is there's all these different aspects of actual buttes now these tires better due to or driven by the shorter sidewalls as identified by the multiple reviewers and if that's the case why can't the board reasonably find an inference that all of these improvements in the bicycle room that flow from the shorter  indisputably in the prior art but more importantly the sum the snippet say as a fringe benefit the sidewalls and then go on to all the other reasons about the sidewalk and pinch flats as one of the article submitted by success and the success of the product the first thing i'd like to point out which is a bit confused when you read the reply brief is that the data that is presented on the sales is for sale of the rim a lo not for sale of a complete wheel sat not for sale of spokes or hubs it is exactly the ram what are these rims go for the rims the rims vary in price the i think the average price if you look at the data is somewhere around forty dollars for the rim itself some of the higher end ones like this if you are olympic maybe north of one hundred dollars but they are rather expensive and therefore elite athletes if you look at to the articles you'll see folks like lance armstrong named as one of the how do we know these are commercially successful when all you did was give us sales figures and we've said time and again the sales figures is not particularly compelling one just given to us in isolation  for at least two reasons your honor the first is it wasn't just sales figures actually there are three reasons it wasn't just sales figures that were given the first thing that the board said was these rims are the same as what claimed and there's evidence to support that if you look to mr causey addicks declaration i believe it's a one forty five he says that the rim itself is the invention and that's backed up by the engineering schematics for the rooms that are listed in the table at a one forty five and then there are inventive rooms which are are all the other rooms that get sold so all the figures that we have relate to the rent a room exactly and the engineering schematics there's an example of a one eighty the specific rim that practices the invention and you can see that by comparing the engineering schematic of the ram and a want to eighty to figure two of the claim the board did that comparison that said i believe a  justification not why this is commercially successful well then briefly or out of the second reason would be if you look to specialized evidence specialized submitted the declaration of mr buckley and mr buckley actually t which the board actually does do at a sixteen what you see is mr buckley says that and really the question here is is it commercially significant are these sales commercially significant and what he says times greater but why didn't you give us market share evidence in i believe the answer to that is that the market for this product was developing and maturing over time and the data for that for market share outside of this direct competitive relationship wasn't available to us to provide however the third point i would make is that with respect to the argument that these are saying that just by comparing th competitors you're thinking that that that is reflective essential of a market share analysis it is reflective of the fact that the sales volume is commercially significant which is what the case of say you're looking to with this market share information  actually in the tech air case which is cited in our brief it's one and ninety two you have third thirteen fifty three the quote specific lee addressed this question and said quote sales figures alone are also evidence of commercial but the question here is is the board's finding supported by substantial evidence and the evidence is the sales volume figures which show a a rapid growth they had forty three percent compound growth over the period that we're looking at i the admission from specialized that sales that are in the thousands are actually a significant commercial success in this specific market between these competitive products and we have the fact that no troops had thirty seven or as a whole the industry i don't believe that there's evidence in the record to demonstrate that but the record evidence does demonstrate that these particular products were widely market i believe it comes back to your honor to the point that i was making earlier which is that if you look to what we know of this market this market contains two products it's the specialized control room and the a this is a sub market it's not the rims that we're competing against these are mountain bike rims that are written by written by elite athletes and so it is going to no reference to lance armstrong or few other elite athletes how what in the that supports that conclusion i think the fact that we have these two particular products supports it i think that the articles which talk about who the riders are for  leave it single track magazine at a six eighty one which talks specifically about these records and it says that mr cozy attic is probably one of the most creative inventive persistent figures in the mountain bike industry it says before anyone else in the industry even thought to consider the concept of cozy attic was making rooms with short side walls and minimal you talk specifically for tubeless tires set ups the short side wall a minimal view took allows the tire to roll in conform to profile makes a lot of sense and then it identifies all of the riders who are people who are writing these rooms so being spitz lance armstrong and dave winer if it continues the point is these are elite athletes in this industry and they're why don't you argue industry place i mean what with you know apple out there it would seem like there are some some good language you could rely on for purposes of saying this isn't just commercial success there's industry pra fifteen sixty four and specifically at fifteen sixty eight to sixty nine the court says that we may however are appropriate affirm the board on grounds other than those relied upon in rendering its decision when upholding the board's decision does not depend on making a determination of fact not previously made by the court is an industry praise though a fact finding whether there was in fact industry prayer as well the blood flow we we presented those articles as praise in support of the nexus issue or commercial success or commercial success i guess the point is it was not framed to the board as a separate ground for secondary consideration of them nor did the of independent fact climbing separate from the nexus finding for commercial success that there wasn't a fact industry prayer is with regard to the merits of this claim invention if therefore we do not have a fact finding our industry praised as a as an additional factor for secondary consideration is that correct i think i would differ in that analysis only in the sense that although the secondary secondary consideration of industry praise wasn't independently presented necessarily in the course of finding the nexus they found that the praise of this article supports or was specifically for the inventive features of the  product and therefore there is the factual finding sufficient for this court to rely upon these articles as praise i don't think that the court needs to get to that point however because the nexus are finding supported independently by these articles and is itself a ground to a firm and so whether whether you need to go to the praise as a separate secondary consideration i don't think the court needs to get their nexus finding is supported by these articles as well as i will point out i'd like to come back to the issue of the nexus being presumed which i believe your honor raised  claims one in twenty three and in the g t eaton case which is cited in our brief the articulation of the presumption is is very much as i believe judge o'malley articulated it and that is when the patent he can demonstrate commercial success usually shown by significant sales in a relevant market and the successful product is the invention disclosed and claimed in the patent it is presumed that the commercial success is due to the fact that invention sports that at least for that particular case there's no there's no presumption of nexus under those and circumstances that you would have for an issue patenting that a get in district court i believe in in r won you didn't have the same level of evidence if you look to the schematics of the product sold being identical to the figure two that sold as was recognized by the board today they fifteen and so you didn't have the fact of the sales the demonstration that this thing sold is exactly the rim not anything else it's not a combination with other things so here you've got wealth the sales volume and you've got the it that the seventy six disclosed second if we look to the claim the claim of the eight for six requires it has a specific requirement about what it means to be a flat d c and that flat with respect to quote an intersection point with a respective sidewall surface so that requires you to be flat respect to the side wall in j t in the seven six six case rather the same also talks about horizontal though as well right with respect to the axis of rotation so you can have a paper a flat with respect to the side wall that's the requirement of a flat in c then there's also horizontal horizontally disposed with respect to the axis of rotation of the wheel you can be flat with respect to the side wall but not horizontal with respect to the axis of rotation of the wheel so those are independent requirements of the claim the seven six six does not disclose the plaque in the sense of the claim of eight for six what it disclosed to specifically and what the board pointed to was inclined surfaces sixty two b and a column seven winds forty three to forty five  that the inclined surface is sixty to be angled at an angle of the of between about three degrees and about seventeen degrees relative to the imaginary line l which would be horizontal and would be also perpendicular to the sidewalk so there is no disclosure in the seven six six patent of something that is flat meaning perpendicular with respect to zone clicked in figure s inclined surface that is between three and seventeen degrees relative to what is being referred to as the side wall which is along the side there i guess arrow fifty is pointing to that so throughout this pat the seven six six inclined surface sixty two b is not flat with respect to the side wall it is incline and therefore the teaching of the seven six six your honors i'd like to focus in my two minutes on the gross sales concept first the record shows that there were multiple competitors in this industry it is from the articles themselves velo news eight sixty two as the new tubes product the what market share a very interesting comment was made by counsel that they didn't have market share because it was a developing and maturing market that does suggest that if the market itself as a whole was growing we do not know that there was commercial success in relation to the market as a whole which is why this person what incredible that one would not be able to determine market share especially in the niche market i mean it could be even more difficult  large a bicycle company so it did not have this market share data or else it would but you were not impeding obviously with your product and their product that they came up with first was selling yours on a scale of one hundred to one it was but that wasn't the problem specialized cells primarily bicycle so this was a small component so speak of specialized full sail so commercially significant according your expert he thought it was that his sales were successful and he said that in the context of once you remove the patented features the product took was sold even more and at a greater rate so that was his reference to commercial success but this is not our market our market was was primarily by the last question you have the parties have a litigation in district court that made no admissions and it was it just made more sense not to litigate the matter given given the amount in dispute so it was an offer of judgment that was accepted ok thank you