page two of the great great you say oyster is a search of the ninety five to patent against over nine different companies over the past four years what's the status of those ausmus that limited schneider to one aspect of its invention and provided no rationale for how that obviated our evidence of motivation to come by so again taking a step back canadian bouche disclose all the elements of the challenge claim except for the control circuitry including digital analog converter for altering the phase of the phase modulator now in the petition you provided evidence that a person or nurse going the art would be motivated to snyder says is snyder doesn't ever say that don't ever operate the control algorithm unless you are also transmitting data at the same time in fact schneider teaches running its control algorithm and then powering down once you get the settled values you power down for extended periods of time so it clearly contemplates that you're going to be transmitting data and not running the control algorithm what the the board focussed on and again this is to take a step back this is not a claimed limitation of the challenge going here but what the board said was even though there's no dispute that you could use you could you schneider's control algorithm and its empty modulator modulation you could do that no dispute there the board didn't dispute that you still get the benefits of of compensating for aging environment temperature but the board said when using it as a phase modulator striders control algorithm would not run during data transmission and this conflicted with this one aspect of his invention and they were making that finding what they were relying on was a statement in schneider's provisional application and that that statement says one run the control algorithm unless you're also transmitting data what it does say is you want to you want to be nondestructive that's what it says and it's in it's in it's provisional so all our point is that the big board error for three reasons one schneider is not limited to operating it's control augur them during data transmission but even if you find that it that it is limited to that then what you're talking about is one aspect of schneider's invention as as its provisional says it's error not to consider schneider's other teachings including its expressed teachings about the stability benefit you would get by using its control algorithm so yes your forty eight in the conversion in order to do that in which time point data would not run for a very brief period of time but you still get all these benefits and so the point of the footnote is this court has made clear that when you're looking at a obviousness combination you're not looking for the most desirable combination or the most preferable one and even if there is some conflict with one aspect of the prior art reference that doesn't necessarily obviate motivation to combine so this is just the point that it looks like what the board was doing was saying it looks like there's this conflict with this non claims feature that yes you stability benefits there's no showing or evidence that the nine hundred and fifty two is concerned with this functionality it didn't claim it all it says is we're claiming a digital analog converter for use with aphasia modulator so you know even if the board found that this was some sort of important feature even though it's not claimed they should have weighed against the stability benefits of snyder and explained why this non simultaneous operation would somehow outweigh those but there's this one aspect of schneider that you that's not satisfied in the combination of running the control algorithm while you're transmitting data so we're looking at schneider and we're saying there's a conflict there so that's why we've decided you haven't shown motivation but the board again never went back and said yeah there's this conflict and here's why it outweighs the stability benefits you're going to get by using schneider's control algorithm it never explained why that is it just disregarded or obviated the motivation combined we present as disclosed in schneider in favor of this non claim feature of one aspect of schneider's when they never the board never addressed the intrinsic evidence or that the evidence that's directly in schneider that says this control algorithm will give you the stability benefits combined off the table and said in light of this non claim feature why would you have used it the ball but the board never addressed the motivation combined we did present it simply disregarded it without weighing substantial evidence like to begin by talking about schneider schneider discloses a closed loop algorithm for adjusting the bias in gain for a mock center modulator operating in intensity  against whatever problems the board saw in making the combination between schneider and either of the primary references certainly your honor well your honor i think the board absolutely recognized what  teaches as advantages but understood that those advantages related to environmental stability and tuning were uniquely directed to the exploitation of the transfer curve for intensive care f or modulator operating in the intensity mode really what opposing counsel is saying when they say that the board didn't give that evidence any credit what they're really asking this court to do is is to not defer to the fords fact finding which which considered all of the reference or the reference that as a whole you know the rest of the when schneider talks about a closed loop system and operating with intensity modulation those factors are what actually what gives schneider the advantages that that petitioners were trying to achieve and incorporate into the botching canadia references but as you writers can see once we get into the reply which is this this combination in this discussion recognized have to be undone because schneider according to petitioners replies has to be shut up there's actually does a sequence of events of that petitioner came forward with in their replies as how schneider could feasibly be operat take to get schneider possibly to operate with one thousand canadia there are questions whether it would actually be effective again because schneider is directed towards the intensity modulation mode of a moxon or modulator getting it to work with phase modulation is is tricky and what precision is proposed for example the conversion of the bias point simply by multiplying by two everything that schneider is designed to do is designed to recognize that a mock it's working with is not an ideal mock center it's not one that is operating in perfect conditions and is entirely stable and never changes in fact that's the whole purpose of the algorithm so when they simply take the  schneider's recognition for environmental changes and stability benefits and their undoing those because they're there simply applying a mathematical number that may or may not work in fact as as oyster showed in some of  papers to the board simply multiplying by two could actually increase the error rather than reduce it because we're talking about a curve and shifting of a curve and that sort of thing there are but do your honors don't need to reach that question about the reasonable expectation of success the process of figuring out how to make her work with canadia he hadn't done that what he called inventive work so that inventive work only comes up for the st time in reply as a separate aside here very quickly  much of the blush and say much some of the blue brief does raise the issue that the board failed to consider petitioner's reply theories and that's simply incorrect on the pages that the or the discussion that are st raised in his reply and we address that issue and are read brief pages sixty to sixty two there is no argument that petitioners or the mentum presented st the reply that the board failed to consider  it is the board had substantial evidence to reach its findings that a person of ordinary skill in the art would not have combined schneider's closed loop intensity schemes absent in permissible hindsight that finding is supported by substantial evidence and the board's legal conclusions were not erroneous they were performed properly and if your honour's have no other questions i will read the remainder of my time the swing and that was and so when they said in their part on a response well you don't have nine simultaneous operation the replies provided further context over why this would not be disruptive calculation and just for context we're talking about very very very minute millisecond level period of time where you're doing the conversion now i know that there was the point about the conflict expert testimony is that even if the board decided that yes i don't believe petitioners expert i think that this would be non disruptive i think it would it comport with this one aspect of schneider and so i don't i don't not going to credit that evidence even if that's supported then you still have a situation where there's a conflict with what schneider is would be an on doing a schneider and our expert had gone through the be inventive work again what the the board wasn't relying on any of those findings it just pointed to the non simultaneous operation that one aspect that was in schneider's provisional and match what it based its decision on so you won't find any discussion about ideal conversion for an ideal modulator or anything like that in the board written decision the inventive work point is this is something that's again on related to the board's decision what happened was they said well you haven't shown that you're actually doing the the you're running the control algorithm while you're phase modulating and we said you don't have to do that you can do the conversion to phase modulation and then you apply it and your face modulating with those stability benefits so you don't have to do it at the same time and schneider says you don't have to