good morning your honor smith police court the director statement of issues unfairly frames that was used as whether an ordinary artists in would have found it obvious to use to see humans with plastic trash  statement of issues page one that they don't fair framework also permeated the patent office analysis resulting in harmful error throughout the linchpin of the board eight was a drawing artifact that was unintentionally left in the drawing by way of contrast the board began from the very high level observation that figures one two and eight consistently pro trade drawstrings nine ten and eleven within hollow ducked six from this the board jumped to the iranians conclusion that there was support in the record for the examiners statement that one could argue that the dotted bottom line of him six is a seal that conclusion though ignores detailed teaching in meyer that channel six is a continuous channel formed by channel three on one side and jenna four on the backside that teaching is is  unexplained drawings in a figure are can't be considered in terms of what a one of skill in the art would have understood absolutely runner and if if we didn't have m affidavit makes it very clear and explains in detail why that unlabeled line is not a seal and why that position which the government has just just below and we're mr cobbler's affidavit explains that in in looking at the two figures  dot a person of ordinary skill in new york would treat that as as and as a dressed man aaron an unintended consequence that should have been removed and that a person of ordinary skill in the art would not have and so and that if you venture mr meyer had left that in and in the dispute now is whether a person of ordinary skill in the art would have taken that unlabeled their slyness to mean anything beyond a mistake mr mr ruck cobbler explains why a person of ordinary skill in  did not have an furthermore he points out the the specification for both figures one in figure eight describe channels three in channel four together making a a single channel mine around the back and he also pointed to language even in the independent claims that the actual quote is quote channels p is if three and four together to find a continuous seal if if the dotted line creates a second seal then three is no longer in five continues all the way across from from right to left but the court actually sat or agree that there was ambiguity with respect and yes you're right but that it was turned around and said that weren't the structure that is actually claimed what what it was he just it it teaches that overlap right in what what warrants shows and i think the answer to your question your honour's only with hindsight but weren't shows is is a two section to two plastic bags where as as a process a manufacturing process the they're made from a single sheet  front started twenty three you go up and come down and so the first the topic has has two full sheets the bottom of the top bag is is seemed the weight is they generalized this to the abstract idea of two tooth two ply let's just put a patch on there therefore it's obvious that's not what the claim says and i submit that the the motivation but it doesn't we've always said that that you don't have to have the same purpose as the prior art if you're doing the same thing that if the structure is disclosed right that's correct that it doesn't have to be exactly the same but absent hindsight there is no there is no motivation to make that combination going back to that meyer prior patent meyer meyer in  two describes that when you're dealing with these sort of commodity products you don't want you want be careful not to increase the cost manufacture using material and you don't want to further think correct use the word continuous channels now but if you look at the pertinent portions of the specification more column three lines four through six on four fifty six  the appendix and column five lines sixty three through sixty five four fifty seven they don't see continuous channels they just say channels three and four apart is why could you not have a channel with a break in it and you'd have the you'd have the string of the drawstring of the court in the upper part you'd still have one channel three and the other side four but it wouldn't be i would grant you continue to be saying that correct it and in that hypothetical your honor  top seal and so what you would have this channel six on the front communicating with channel four on the back when mr cotton went when you pointed to language correctly but mr cobbler's affidavit says a person of ordinary skill in new york seeing that language and the claim language that's the first limitation and each of the independent claims about channels three four and six thinking i'm looking at appendix i think you provided these are helpful appendix to seventy one you have these drawings and on the left hand side more thirteen is a drawing with line x left out and you're saying that's the way it should be and then you're saying here's what we would have in the second drawing marked thirteen with the x why couldn't you have the i mean why can you have the channel in the area that's in that when marked up at six in the top and three is in compassing all from thirteen to five but it's just been have you have separate it channel three below from channel six above in the figure immediately to the right shows that drawstrings nine and ten pass yes and on the figure on to seventy one on the right are our position is the seal is the dotted line which is labelled at five while on in figure one  the counterpart seal is the solid line label five ok let's hear from  the declaration by mr cobbler said well there's no other express teachings other than this line of this drawing that it's a seal so the examiner said all right even if it's not explicitly a seal and even if it's ambiguous it would have been obvious to put one  there and the examiner and you say well why when he looks at the secondary reference which i think everyone discussed the warrants reference and you look at that and yes it is a different type of package it's not a garbage bag but it's it's a it's a loose  flexible bag with a draw string with a hymn and sure enough there's a seal up by where the chords are the words are in the examiner note identify that reference and look at that episode you know they knew to put an extra seal up there to keep those chords from falling down if they get slack so to make sure there was easy access for the cords the examiners rationale was if you didn't have a seal in figure eight of mine or of where that numbered dash line is the one that's not mentioned but shown he says without a seal there there'd be a problem because then what about it is his it's argument that warrants really was for a totally different purpose right now i don't think that's a problem you're on because the you know one reason the examiner is looking to warrants is it's another flexible bag with a drawstring and a ham and up around the top it and sure enough they've got two seals they've got an upper seal to hold those cords up there in place and then there's a lower seal further down here when you look at meyer the examiner says well this teaching from words would motivate an already artisan to actually have another seal up where that unnumbered dash line is and the reason why is if you didn't have that seal there if these chords were in a loose and state for example when your trash bag isn't completely taut let's say you take your big bag and you put it into a smaller can it's going to be not taught it's going to be loose the drawstring could drop down if you drop down because there was no seal there all the way down to seal five which is a big gap and when you reach in through the opening what they call apertures for accessing the drawstrings you would have difficulty accessing the strings accordingly in the examiners view based on that evidence an ordinary person looking at figurative mire would've known and would have been motivated to put an extra seal where the a number dash line is and he says in light of the teachings of words that shows a seal up by that upper hand area to keep the cord from drooping down it would have been obvious to do that that's the examiners rationale so i think you know the examiner didn't just pull that out of the air the examiner did look at other prior art but once reference saw that yes seals were used up closer to the channel or the dock where the c passed through and that's exactly what you've got here with meyer you have a bagful you're saying that to the extent that there were any yaps in the motivation to combine analysis that doesn't matter because it really wasn't a pure what the ordinary are misunderstood by looking at the evidence in the record what's the evidence in the record the teachings of these other flexible bags that show him with seals up near where the pool cords are and the examiner took that knowledge that an ordinary would have from that evidence and said therefore if you didn't have a seal here you have this problem the drawstring dropping and therefore in the examiner made a finding and said therefore an arson would have known to have a seal there and that's why i reject obvious that i think that's the ultimate lee the rationale that we're really disagreeing about and i think it is based on evidence it is based on evidence in the record that's where the examiner got the teachings and i think you can see that also reiterated in the board decision where the board reiterates that rationale that the examiners reasoning is you don't want to have a draw string that's an excessive in this trash that you want to be able to get it and all the references teach that every one of the references i think meyer wor there no there was no affidavit by the examiner but this is the findings of the examiner in our view based on this record those findings are based on evidence in the record and that's what that's why those and you know support the rejection so i think i think that's are there any other questions that you might have but i think we've addressed at least what appellant has argued here today and this is the focus of the entire rejection is the placement of the lower and it lives in sat there yeah i think i think the problem is is as i mentioned when we look at figure eight on page appendix four fifty four there's a nice big picture of it and when you look at that picture you can seal number five is into it's undisputed that that's a seal and then it's that gap between number five and the bottom  of ducks six where there's this unnumbered dash line that we actually created this is a picture of this in our brief and we point to this one number dash line if you look at page of page twenty four of our brief we reproduce this picture this picture of this drawing from appendix four if you don't work and we have an arrow pointed to the unnumbered dash line that we're talking about that's a line that isn't described specifically in the specification of the prior art meyer reference cords number nine number twelve number ten if they were loose in a loose and state they would drop down all the way down to dash line number five and then if you the user were to put your hands through this what they call opening aperture eight fourteen you point your honor and i've read confusing and i've read this with my reference probably four or five times and what i've learned is that they do they are a little bit loose with the language that they aren't really precise where they use certain words in different ways and for example if you go to column three on page appendix four fifty six of meyer at the very top and they use that language seemed flap eight it seemed for example welded to the side panel as schematically shown at five so what they're saying is seeming more sealing or welding or heat sealing these are all interchangeable terms so they take two pieces of plastic flat piece of plastic they put it next to each other they run to a heat beam across there is a ceiling we see seam and seal there kind of interchangeable as distinct from the word channel correct i think channel they also used the word duct for they talk about a duck number six they also call it champ a six and as you pointed out earlier when we look at the ducks six in figure eight it's the place where the drawstrings can pass and they can kind of sit inside this dock so then when you go to pick up this trash bag at the end of the week when it's filled with eight reflects the examiners point is you wouldn't be able to get those strings are easily there for an ordinary is would want to have a seal up at that upper rim just like words has a seal at the upper rim make sure the drawstrings don't fall down too far that's seal and then when you get up by three right so you know it's a well that's kind of an opening that that's kind of an open area where three is and then when you get up to duck six that's an open area where the strings pass and what the examiners are saying is if you didn't have this extra seal from that lines four five and six each one of the channels three and four defines a duct or a hollow number six between the sidewall portion seventy so what they're saying is this channel seems three for look at the year eight the drawings reflect pretty clearly that there's drawstrings in the upper portion of the bag that their purpose is to cinch the back that's what they're there for and the examiners point is keeping those drawstrings with any duck six that's reasonable in height a prevents them from dropping down too low accordingly in the examiners view and based on the private references it would have been obvious to have a seal if you want to call it a seam a seal concern about the drawstring dropping because the strings are collected outside of the bag meyer says nothing about a draw string draw we're there without worrying about some hypothetical one so the drawstrings already solve this problem which is really a search for rationale to combine the references but it's your own you heard mr mark argue that that in fact this really isn't a combining of references they're saying that words teaches the fact that th she doesn't have a problem with drawstrings drooping and meyer doesn't have a problem with drawstrings trooping they both have their own solution myra myra was concerned leo pharmaceutical case the court did note that twenty two years of silence as is is indication of hindsight and i mentioned that in response to your honor's question about chaos or if if the court has no other questions