the morning runners may please the more and best ways portion to appeal we're going to be addressing two issues st that the board incorrectly failed to consider the merits of ground to present in the petition by engaging in a form over substance analysis by focusing on the headings of the petition instead of the language in arguments in the petition and other papers presented before the war secondly on the merits the board erred in ignore adopted its own unsupported claim constructions in ignoring the undisputed evidence of best ways expert dr sid a to arrive at conclusions on motivation that combine that were not supported by substantial outcomes particularly when the references presented interchangeable design choices so i'd like to focus st on the st issue the petition clearly set forth alternative challenges to the claims and grounds two as permitted by law and this is the poly group case of that where the board this court determined that the board erred in failing to consider alternative arguments explicitly presented in the petition and here the petition with respect to claim eighteen makes clear that quote petersen in view of fireman taught every limitation of claim eighteen the petition then goes on to detail how peterson corresponds to the elements of claim a team and after concluding again that a combination of peterson environment teach all the limitations of claim eighteen it presents the alternative argument that if pat milner were to argue that peterson didn't teach the top and bottom walls as required by the claims those walls would be obvious in view of a common sense in your petition that's in the petition write under to it says peterson the penacoli meeting peterson you were fired taught every limitation of claim eighteen for the following reasons i'm more interested in your alternative alternatively if peterson to the extent pat milner argues that the top wall and or bottom wall are not taught by peterson your firemen those features would have been obvious when combined with the teachings of the up and up above you see where this is the the annotated fig presented by the x for that's where they're showing that peterson which is a true wall structure or spawns to the four walls claim limitation but then it goes on with respect to why after making an alternative argument then on page forty alternative to let's assume we agree with you why understanding is the board still went on and rejected the arguments on the merits and that's basically what we're talking about now right that's correct your honor the war dead alternatively say to the extent that they were presented then it went on it went on to address the merits and find that the petition did not satisfy the burden required and that's what we couldn't have argued as substantial error not correct ok so what is it that you understand or to have said in rejecting the peterson arment nomination that was only two sheets as opposed to four sheets in that each wall has to be a separate sheet the board wasn't really clear in its rationale or iran or what the board said is that we didn't demonstrate that the prior art taught the proper construction of the plans but that there was no construction offered nor was there any evidence that the ordinary meaning or b r i have of the word wall shouldn't apply so while it said that we didn't present substantial evidence showing that peterson met claim eighteen at it that can only be based on a construction or here and construction that adopted their party argued how these terms should be construed yes your honor and the issue of multiple pieces of material was never raised ironically probably the only time it was raised was in our alternative statement in the petition but that the board didn't we do said in his expert report and as submitted in the petition two sheets of material in connection with the tension members when inflated or form four walls and i and notably separate from that i mean we're not going to be looking at the prior nothing in the specification that provides any intent function or purpose to the wall as the sole purpose of the walls is to find the boundary of the air chamber create that the patent teaches two different body ments one in which has four walls and one of which has two i mean one i can take that characterization but there are two of different vitamins where there's two walls where each was made of same material or there's four walls each made of different material i think the actual detailed description of the patent doesn't make any distinction about how many pieces of material are used to denote how many walls what the two references that the word cited come from column two which is the summary which is just purely of the claims so the board is saying because we interpreted the claims the one that says inner and outer that that has to be two sheets of material the subsequent reference that says i'm sorry st and nd that's two sheets of material the subsequent reference that says in or out or top and bottom that has to be four so i disagree i don't think that the path specification explicitly defines multiple embodiments where the multiple embodiment show walls that have to be that's what the board cited as being a two wall embodiment and it just talks about a st wall and a nd wall defining the chamber i don't think that that necessarily excludes that there can be other walls that that defines the chamber but i don't know that matters whether or not it's that's a jew wall or floor wall disclosed in the specification because the there is no purpose or function that's defined the walls the sole purpose that's and it was you so you have to have a purpose for a different body think in order to be up to claim just one in body men no i'm saying there's no functional difference when you get to claim eighteen your honor the purpose of adding the two would be no walls to define the chamber at least with respect to the claim and adding the directional requirement upper lower top and bottom front back is to define where the gaps are specified and claim eighteen with respect to the tensioning member that the gap is between the upper surface of the tensioning member and up the upper surface of the or maybe it's to say that there is an actual top law and there's a bottom along and they cooperate with the inner and outer walls but i think that's your honour's assume that that's the case that's inconsistent with the bureau of the term wall and have a qualifier in his that mission did he not certainly or honor but given the opportunity he didn't challenge it or dispute it he didn't say but i this is how i think it should be in texas provided zero evidence there's no excluding the ordinary meaning of the term wall which isn't certainly limited based on the number of sheets of material that it can that can be employed there is no disclaimer there's nothing in the specification or a file history that would lean one petition and and what they went on to say that just saying it's a design choice is insufficient what's your answer to that i think that there are sufficient rationale presented and there's a separate motivation to combine th talks about the structures of peterson and being virtually interchangeable because they're inflatable pool structures that have tensioning members and as the board noted in the prior section with respect to dealing with claim one it was a well known desire to try to provide pools that were deeper that had stronger walls in that same motivation the combined section talked about the benefits provided by want of structural stability and beautiful shit and so th beautifying of the shape comes from the fact that it's got the four walls the two that are opaque and the two that are translucent that allow you to see the colored spacing members with then that would just be an obvious design choice to take the two walls of peterson and make it such that they were opaque to provide a statics there isn't any function to that and with respect to the stability component again the stability is allows for the function to make higher wall calls as a result of the tensioning members and so being able to have deeper walls which is something that the blonde says the multiple pieces allows including allowing someone to set on the edge of the pool to be able to watch children that are in it but you don't us meaning if the what i just talked about is that the when you have the four walls you have a top and bottom that are opec and then you have inner and outer that are connected between the two that are transparent that's four walls you have a inner wall connected to an opaque it's connected to an outer connected to another opec that's four walls it's the use of those four walls with the trick we use of the transparent basically substituted for the two walls that are not transparent peterson that allow model is made of a transparent material in the supporting spacers in the circular wall of are of different colors the overall appearance is refreshing and it is believed zimmer's desire to purchase can be aroused by the structural stability  one rehearing in the minor decision as written this petition was deficient on this issue while the support that a cited for motivation to combine points back to an analysis of just combining peterson and iron we submit that the board got it right when they said that it just wasn't clear st and th st and foremost that this argument was well articulated in the petition so i can we address this the cuts were the case and the cuts for the case i believe your honor which says just saying that but just looking at this point would you say like in plain speak what is it that is missing here is there for example there's nothing here saying the beautifying feature has anything to do with the four walls is there do you have an argument just looking motivation i think the board st and foremost started with the point that this petition did not well articulate this argument and that is something the board found repeatedly and i think that you know i mean just want to know why can you support it you should be able to support that stand up here and tell us where the board got it right and maybe i'm understanding your question or are going to try one more time i just want to know why do you think why did the board get it right when it said that there was no clear motivation provided in the petition for why one would use modify providing motivation the quote about just trying to have a beautiful appearance yet proposed to bill peterson already had structural stability based on its years on arguments with  structure and there you can claim one so that wasn't a problem with peterson and there was no known problem with beautifying appearances in the prior art outside i guess of this maybe one stable i mean they've they've brought light repeatedly on the strength of these materials that are used to form these types of these types of products to support all of their various arguments so then to say that  thing they're arguing isn't stable enough without any other further support just conclusion on support and that's not the type of argument that carries the day on the motivation of  your honour's to show why this material would not actually extend all the way to the perimeter throughout the entire wall firemen nor is there any evidence that somebody would cut anything on a fireman or that fireman itself is cut from any other different structure all these predicate findings are what the board had to rely upon to ultimately really each reach its conclusions they had to they didn't just say it's there they supported it with all this additional extraneous evidence that is not found in the position and that is one of the key issues here is that this is all argument that is not in the petition the st time you ever find anything in the record about this all uniform and serial is an argument best way made in their reply brief then it's relied upon in the final written solution and relied upon again heavily on this appeal it's simply not in the petition there's a lot of evidence and are you sure there's a lot of argument excuse me about in texas expert agreed about this material he agreed that hypothetically if there was a well uniform and tiriel and if that bulk uniform material a portion of it was cut and if that cut portion was used in peterson yes the claim would be satisfied but that is a hypothetical that's an objective evidence it's not persuasive and it's certainly not in the petition anywhere so that's one of the biggest issues here is that this st came up on reply and as we've shown it's not expressed nor is it inherent we injected the inherence issue just to help substantiate the point that it's not expressly disclosed there's a lot of different types of three plywood serials known in the art there's lots of different reasons why you don't want to have the middle layer go all the way to the perimeter the board even acknowledged this on the appendix page twenty two dollars but then it just ignored that finding to reach this conclusion that it's suggested environment so we've talked about the orinda case and our brief in the d s s tech case to us that's what this really comes down to your honor's is trying in missing limitation with background knowledge in the art as a ready explained that has only happened once and was the perfect web case and they said that's the exception not the rule and that's a case that we're aware of where anybody has actually done this kind of gap filling analysis just to make sure i understand exactly what you're talking about it's this substantially overlaps the outer perimeter limitation right correct not just it's not depicting what how what it actually looks like or giving the figure five a which is described as a cut away and the less the reference should have had something saying that that porous sheath forty two extends entirely along the layers forty yes or for example firemen also talks a lot of a lot of different ways the manufacture of this material and it's undisputed that using those very manufacturing methods you do not have to raise the end result after the result is not necessarily going to have something that goes all the way to the edges and there are reasons for that and again all of this comes the ultimate predicate findings here really stem from the last cards and we think once that foundation falls the rest of the falls as well so before i sit down i will make one more point going back to your question  one peterson when they're talking about this for a while construction there's no tie anywhere in the petition to you for a walk instruction and beautifying appearance that the testimony they rely on for mr coote will says that it would create a higher pool and that's what something that's something that a person of skill or a buyer would be interested in not in this translucent beautifying appearance or a higher structure right all right we'll say the remaining time is just one issue on the one you're out of the talk about what focusing on the petition but consistent with the chamberlain group we've again argued this issue in connection  petition as as they've tried to do let's the one statement i want to start with claim one as he says it's not undisputed and i think i got this right not undisputed that there are the manufacturing methods disclosed environment would have to yield substantial overlap but that's not true there is no evidence that they presented that any known manufacturing method would achieve something other than a laminate that had substantial overlap when he's referring to is council at the deposition of our expert what a hand drawn sketch that had mash slightly removed from the borders of the perimeter and said could you make this and he said sure and as the board noted this was a hypothetical manufacturing method there was no evidence presented by in tax no evidence presented otherwise by their expert that this was something that was even known to the contrary all the evidence supports that the teachings of firemen did disclose based on the methods that were discussed in there and based on the admissions of mr coo chal a substantial overlap limitation both doctors today testified multilayer materials in the or found with mash sandwiched between p v c was well known and particularly well known in the inflatable products industry in t expert notably agree that it was well known some away doctors today also testified that with the methods in firemen bulk multilayer laminate sheets were well known these were bulk sheets that were formed using the roll processes wireman described in paragraphs twenty to twenty one where they were formed in a roll and then the individual components were cut up again and when they were cut out as their expert mr crucial agreed you your honor so as my posing counsel is just as ready he was talking about three prime ministerial generally notably you never heard him say the word you know that's what this all came down to it has to be uniform or all these different predicates any way whatsoever and there's just no evidence that that's necessary their own expert said there's advantages to not welding it all the way to the edge their own expert said when talking about the bit applying the very methodology described fireman would give you what that looks like if you wanted it to look that way and he said you can make it however you want all of this is in our papers