real brief reference of the five zero three pattern it's a cable that has twisted pair transmission media so the transmission media are the twisted pairs and there's a separator that holds them apart the japanese pad is actually something different than that it is a quad and so it was a pair you find of like in the telephone lines in a home to twisted wires going like this a twist a quad is essentially the same thing it's also a transmission media except you have four twisted together that's what the japanese pad is about a snap about putting these multiple transmission media into a cable that's about the clock and what the japanese patent does is it references and  problem in the prior art so in the prior are you could have individually insulated lives twist to gether or you could have like a center insulator and you put the wires on the edges and the problem is if it's not perfectly at the corners you have electromagnetic interference so they solve that alignment problem by putting just little bitty notches in the center or for the wire to sit in and that's what they do to solve it so what is the of like sucking spaghetti and it really doesn't matter where they are because they're in the pockets it's squeezed together they'll go in and what mr parker also says because you're wrapping unwrapping you don't get the same random chance i'm just trying to visualize  have we have these four wires before they had the cord and we have something in the twister that is turning this whole thing so it's how is it that he does not turn in the four wires rotating all the way around like this before they hit the cord there must be a plane or something holding them there there's the bunch or itself it's holds everything together so why isn't it obvious that because there is going to be that inherent force from twisting to basically do as much as possible t alignment as early as possible a few things your honor there's there's no suggestion that you need to do it i mean it's not described in the reference and it's not i mean it's it's easy to come back and say should we address it but it's not described in the reference nor is it described anywhere else in any prior art or i'm sure it would be front of first the board and now your honour's what what is happening here is you've got it it's twisting back and forth so it's not like going round and round so were things that were done i mean the japanese one ten had talks about something about back stranding as another way to do it where you would actually kind of precooked in this fast whence that would be a different way to do it what's not shown in the prior art is what's in the pattern which is having this die in this location to prevent the backups so in order and again all the japanese won ten patents as is there's this alignment issue we solve it not by putting a plate in to prevent back west we as the twist no i believe that the board found that it doesn't describe that but it would be obvious to have that was the force finding and to get there what the board had to do as they said first  the japanese one tenth had says we're solving this by putting the grooves in and the board says ok but alignment is still a problem that was standing that the only solution described is putting the groove and nothing more so that's the first leave the second leap is ok and we need to address this alignment problem by stopping the centerpiece from twisting into your honor's point let's suppose you've got wires coming in the center one if this is twisting like this is going to pull the wires over to right so why would you need to actually do anything and maybe it's even harmful to do that we're getting to the obvious because again i guess what i was thinking is the pleat all by itself by having four holes corners is preventing the four wires from spinning around oh yes your honor access but that doesn't take care of the spinning of the core of the spinning in the core and need the hole in the plane to hug that core to prevent it from turning on its own so yeah that wouldn't necessarily be the case your honor because first of all because these are being held you don't know how much twist is happening relative any of these between the thing that's doing the twisting and the plate that's in front of it so you don't think you can actually be doing harm by preventing it from moving to where it would be in alignment there's no way to know this is not simple stuff and i don't know about the japanese patents one nine hundred eighty but the time of the invention these things are moving really fast that's why this invention came about some time for a lack of substantial it was the board's decision leaves one before so there's three areas that there is no substantial left and first of alignment is still a problem i mean there's there's nothing in the reference that says that and we're the court to consider mr baxter's declaration he actually doesn't explain that either as why that would be the case the second would be even if there were there's not a description in the reference or any other piece of prior art that says you need to prevent twisting of that core member the third step is if you're going to have to address twisting of that corps member when you should do it or not the way it was done in the prior ar whatever you should do it in the way that the patent does it by holding the core firm and you should do it in the location that the pattern calls for it to be done rather than somewhere else and without mr baxter there's nothing with mr baxter there still i think because he doesn't explain it and mr clarke goes on to address why you actually wouldn't do this he says the s c stranding already provides a mechanism to address that he says there's this issue with defamation which is really remarkable because what mr clark said was used to form this thing if you tried to fold it in place there what mr baxter said in responses is just the same as the patent now think about that your honour's the pan is like this you're holding this so it's like holding the four corners honor it has to make sense i would respectfully submit or if your honor simply wants to say you know it you it has to be fully explained as another way but with respect to mr baxter and this is one of the things that strikes me as fundamentally unfair about what happened in this with yes and i'd like to explain your honor so what happens is the reply goes and with this sixty page declaration with all this testimony we've never seen before mr  it was limited to five pages of single paragraph how many of us think the question is directed constantly it's to the deposition of mr baxter you had hours of the position we had the opportunity to depose him we did not have the are pretty clear as to how it works in the polls at least in the following observations if you thought the file in the observations was insufficient wanted to raise them for that it would have been sufficient had the patent office not considered new material but the patent office d to testimony doesn't do what we discovered in the course of the post i could do that to a degree i could do that to the extent it's already in the record i could have certainly not submit any response to that you didn't file a motion for permission to go to trial responsive evidence with whatever wafer and that might have required again we believe that it should have been excluded in the first place and i don't think that there's any regulation the permits that a filing i'm sorry i think i asked you whether you submitted a motion asking for permission to do that there are answer is no there was no motion of that type made your ok and again i believe the reason for that is because we were assuming that the rules would be followed but again back to the point there's not substantial evidence in the petition or with mr baxter i respectfully submit and to come in and and and i'm sorry i think that i should probably be glued i've got about thirty seconds left ok thank you should be affirmed first substantial evidence supports the board's finding that it was obvious to use the aligning board five of j p nine ten to prevent twisting to prevent twisting motion on the core that is the only limitation of the five claim one of the five or three pad and that is in dispute and that is argued is not in the prior art is preventing twisting motion of the court secondly core is that what we're talking about correct so j p nine ten has in it is shown it has what is called a wire splitting board five that is shown in j p a nine ten figure one shows a wire splitting board five through which the four conductors for a four before c and d there are four holes at the corners through which those four conductors travel and in the center there is also a hole through which thread like object one ultimately passes the the board found that that j p nine ten quote the core must be shaped so that its quote grooves are placed so that their bottom portion aligned to the vertices of a square that is eight to fifteen paragraph three and so the board ord five not the not the board board five plus have the four holes that are placed at the at the intervals of ninety degrees through which the conductor pass it also has a hole in the middle through which the thread like object or the core passes in the board found as factual matter that to one of ordinary skill in the art based on the reference itself that the whole which is simply a hole it's a hollow space it can be shaped any any way possible doesn't necessarily have to be round can be it's a whole the board found that that that would be obvious in light of the teachings of j hug that shape the way a complete kind or homes the shape of the cookie you're making like a christmas tree or something right whatever or whatever side of whatever the the core can be any any particular shape i mean in this and this particular  right that that's that that would be you know roughly the shape of the of the of the hole in the die five two to prevent that core from twisting correct the five zero three patent when when the when all of the constituent parts are finally joined together the final three pattern is tells us that when that happens in this and it's in the prior art that this phenomenon called back twist occurs which propagates back through through the process including through the course so in the prior our it's telling us that there's a problem of this back twisting and that's the whole purpose of the five hundred three pat is to  prevent twisting including back twisting so i would say that it's not just in the in the baxter declaration it's in in the patent in vision also on the right it is also in the baxter declaration also explain that j p nine ten is concerned with alignment that is that is correct that said baxter paragraph one eighteen and one twenty one and that a six ninety six through six ninety seven six ninety eight and the baxter declaration does also explain that the the only way to accomplish the alignment add di one hundred five is to prevent the twisting motion of the thread like object wine yes baxter does say that the circular shape of j p nine ten squad wire of any of the claims of the five zero three pack but but it war over the the reference that we're there we're arguing should be combined with with j p nine ten that is  canadian all four six is the exact same cable configuration as in the five zero three pattern it is for twisted pair that are separated by a cross shape separat and so each of the four twisted pairs reside within the recesses of that cross shape separator sometimes six have specific additional in the tension did you have to concentrate on those preponderance of evidence right so the the claims five and six require that the transmission media of claim one specifically be twisted pair of conductors that's the that's the in claim five it requires a plurality of twisted pairs as the transmission media of claim one and claim six requires wrong those those specific specific configuration is and is in canadian of four six canadian for six shows a message disputed fact is it not i i don't think that's actually a disputed fact i think the parties agree on that i think the our position is that the the board misapplied the law it's our position is the board the law with respect to claim five and six because of what the board did was it looked at j p nine ten and j p nine ten refers to what it calls a conventional method for manufacturing cable in j p nine ten talks about the cable that is manufactured by that process as being done by the j p nine ten process as which has that the thing the twist in paris which can and of themselves are insulated and then it has and then the then it is jacket  have the core going through the center and then you have the individually insulated conductors around it and then you have a jacket around it to hold the whole thing together and in some cases the so that's that's the purpose of the jack and what they said was well insulated twisted here that would be the motivation the jack of which he was to me not because i agree that it doesn't make any sense and it's that contrary to what's in the prior art is contrary to the five zero three pattern itself what about the third reason is the so the third our position is that in terms of the legal error that that the the board the other side's basic arguments against what the poor did on five and six was that the board didn't consider the independent force of what  prevent twisting in order to improve the possibility of a mind so we was the but the core of for its ruling on claims one through four and if you take that teaching and apply it to five and six you get to the same place and the only reason of that would didn't please everybody forgot about the independent force of the teaching about the alignment twisting connection and instead established that on their claim for claims one through four and that equally applies of course no matter what you or your assembling whether it's with repairs or anything else the insulation has nothing to do with these are the transmission medias as i talked about up front right so when we talk about combining one reference where you're talking essential about making a cable as the canadian one is similar to the car i mean they're both multiple transmission media with a separator they said you wouldn't look over here to a method of making the twisted pairs who witnesses here were absolutely convinced right so were wants right and root zone the board and i think your honor i would i would not characterize it in the same way i would respectfully the first was to the board said there's no prime aphasia case on why to do it so one doesn't start the analysis with why wouldn't you one starts with what common sense reason or one opens up a wall in a house looks of the telephone line there's usually two to twisted pairs each is the transmission is not the individual copper wire each twisted pair is the transmission media and you open up in the different colors of the intel which line a multiple transmission media of twisted pair and with a combination suggests is we're going to take a twisted pair and put a twisted pair in or we're going to take a pot and put a twisted pair in each of the elements of the quad and is talking about apples and oranges cables and are different things quads and twisted pairs and that's what the board found and that one would not simply look at how you make a twisted pair or how you make a quad and apply that and there's no reason articulated as the board bound to make a prime aphasia case to do so i mean there's nothing in any of the starting from of the in from the board about how you make a cable t v i mean a cable with multiple transmission media as opposed to how you make a twisted pair or quad me japanese montana spite explicit we're talking about twisted pairs or talking about insulating the individual iron here with a circular it's not a claim moment when it comes from combined ability on or with so in order for the obviousness rejection you need to look at the references you have as a whole you don't pick apart references under this court's precedent you look at it as a whole and you say wouldn't one combine these two things if and the answer is yes and let me i guess disagree with that it seems to me that's not what the rule against picking apart references means the rule against picking apart references is about making sure we are accounting for everything that the reference teaches and if it teaches four independent things each of those teachings counts unless it teaches that these four things really aren't independent that's why i tried to say how i was thinking about this in my my opening question five and six it seemed to me that what the board was doing here was saying we already found that nine ten japanese nine ten teaches about the alignment twisting connection now we're not going to take that to train for it own independent force we're going to tight to the particulars that nine ten talks about about uninsulated wires and quiets and other things and i don't understand what in mind can allow forces you to deny the independent force of the alignment twist connection which if you take it independently seems to me to lead to five and six having the same problem as one through four the problem  that the s references again are apples and oranges one is with respect to twisted pairs and the technology to make those in the board said it's not so simple as applying it across two or quads as applying it to these argument and at least one sentence in the institution decision said it would have been obvious to a person of skill in the art of starting with the canadian product and thinking how am i going to make this to address the problem of alignment with the separate here in exactly the way that the japanese nine ten pattern teaches i took it that that was the case for obviousness of the combination which starts with the canadian and then uses japanese word to stablish a manufacturing process for the results shown in the canadian i think actually a kind of the analysis ram both directions i agree ran both directions but that was part and the other direction is harder from the other side right and then if one's looking at the direction of of i mean there was actually no evidence about how one would go about make other than the five or three pattern about how one would make the cable described in the canadian one one could for example and in fact your honor there were there were there were cables with multiple things in them before and there were methods of addressing that for example one thing one of the prior art things i believe is you kind of build in the back twist all the way back when you're making it so rather than stop it from twisting you kind of build your thing so that it allows for the twist already that's why these things are so dangerous in the absence of of actual prior nevins because there's a lack going on in these things that's not apparent i mean nobody's describing and nobody's actually said somebody actually did it this way this cable was made effect creating cable was made before there's no evidence as to how it was actually made there's no evidence actually that you could even make that cable in this way given the material i don't know i haven't looked at that but with warts that was you would not take a reference on how to make twisted pairs and simply say ok i'm going to use or slides in the japanese pan case and i'm going to use that to make a table because it's different tech it's a different thing it's different speeds you can you don't have here wires coming in you have twisted pairs coming in you don't have all the components are actually different the jacketing is different right i mean the j p one ten one of the jacketing and it's putting on something very tight which is different than the jacket you court i just want to talk about two of the procedural issues very briefly the first is the the board's denial of the motion to exclude the baxter declaration and beldin said that that was an abuse of discretion but t contrary the board followed the officers regulations which state that a reply may only respond to arguments raised in the cars finding opposition or pat no no response then saying you may have to explain to us why we should support a regulation if we think that for some reason or other decisions until process blue or whatever it is a principle to support the  credibility and strength of this new board procedure ok if you three sixteen the statute specifically states that the petitioner is provided with a least one opportunity to file written comments with a time period of stablish by the director and so pursuant to that statute the board has allowed the petitioner to put in a reply in this case the petitioner put no reply with the baxter declaration then said well no that's not a fair reply because mr baxter didn't put in a declaration with the original petition that said it was inadequate because they were only allowed five pages and had no opportunit board has actually granted some replies and this is a few situations and you know they're complaining without having and so we don't know whether the board would have granted it in this case but they certainly didn't  something that would constitute notification to the bar that requesting permission to file a lesser reply or requesting more pages or making any of these requests is possible or is that just something that they would have to why not something that's within i don't i don't think that there's anything specifically in the trial practice guys that says that but certainly you know the board can waive its rolls and other people have asked for it so they could have asked for can i ask you question i'm sure a trial practice guide i think is the primary ma position is just not binding so that is roughly speaking who cares what it says but would you agree to have to prove the portion of the trial practice guy it seems to say that new evidence that could have been presented in a prior filing is inappropriate for replying would mean that baxter's declaration under the guide if it were binding was inappropriate you know i think what i think what the everything in baxter was materially responsive to clarke and therefore satisfy the regulations i'm talking only about the way this guide is written the guide seems to say that evidence on reply is inappropriate if it could have presented earlier put been presented earlier when in the world with that not to be true i think but what the board also says and maybe this isn't in the trial carraige correct now maybe they could have guessed those things ahead of time and put them in but that's not the way it moreover challengingly claim five and claim six and they needed to say here is w problem for that i mean it is after all the petitioners burden to make out the fact necessary to support the inferences that lead to the conclusion that by a preponderance that that relevan this new stuff is raised in a reply for example baxter responded or i must say i don't quite understand why the observations are so limited and why the patentee is not observations i don't think that that since there are proposed is a proposed rule making right now i don't think that that's one of the provisions in it but certainly you know they can put things in their observations and then they can continue to argue them at the oral hearing set up and it's supposed to be narrowing the issues and it's like i said if they needed more pages for observations they could have asked for them they could have argued at the hearing they could have asked first to reply but i've been here you can't be saying that this is how it is i think our case there was nothing brand new in the board's decision the board relied on the references and the baxter declarations belden had full notice we're not asking you as a director to defend your decision so there was certainly an opportunity for influence from the reply correct your honor but we think that that's how this trial proceedings are supposed to work the institution decision should be different from the final written decision because