extension of the cruise of the helix it is this curvature that's the focus of the appeal the board committed legal error and it's also meant obviousness conclusion and its failure to conduct the analysis using the actual language  picking from several options some portions have some benefit and some not then some not and it's gains in costs and i don't see it teaching away here just because someone law that you're referring to that's a different factual situation than here here we have a reference that specifically discredits the primary reference of berg and also other references well no it doesn't discredit berg it only says that the c shape had it is uncomfortable right now it actually gives it criticizes berg stating that it has more problems or sounds traps rat it's uncomfortable and it and try to cure one or more of these problems with a different version that is similar to her but i think i can cure discomfort by doing this my can cure cover sweat or smell or whatever by doing this like it me do you think that you could make  improvements on bergen and wouldn't those actually be suggested by this reference that it would be good for people to take birth and make some for months on it and we think this isn't as situation that you're referring to that requires a waiting of advantages and disadvantages as posited by the board of harmer i would bar farming as actually suggesting that somebody should undertake the process of making for more comfortable so i don't i actually put it as providing the motivation to combine these things you think it teaches away and i think it's telling you there is a problem with this reference and that you somebody needs to fix these problems and that's what in this case did it fix one of the problems we're environment though it fixes that it gives a solution to this problem because if there are other solutions right i mean it's too hot here or it's too cold in here there are two solutions you can put on a jacket or you could turn the heat up it specifically criticizes and distinguishes over devices like the prior art like a continuous earpiece or c shape or similar it seems to be the epitome of a teaching away reference in unity the it express distinguishes over the primary reference it's how it's the actual importance of maintaining these gaps especially at an area right where our patent claims are directed to having a curved surface that fits closely and substantially conforms farming on the other rather he stated i don't know exactly what paper intended with a difference of the words personally embrace versus partially surrounding claim membership however partially surrounded can and know sure i think the context of us saying that that or quoting that testimony in part you know in part is because it gets to the root of this issue and that's how it's it's ambiguous and he said in effect says that i don't know when he left that out we took that to mean in our quoting of that particular quote if i remember correctly that was your source on pics thirty nine because if you look at his testimony in the full context the problem is we're relying on this accommodation term and there's no definition of this term it's not in the claim limitations if that's not might be ok i'm sorry maybe i misunderstood my beef either it can be partially embrase or touching par or not touch at all and so getting back to the the teaching away reference and going back to some of your honor's other questions we again we think that the case law for instance like bear and cases like that are not on point because this isn't a situation where new ways simultaneous advantages and disadvantages berman teaches no advantages of a continuous contact service it only criticises it it only insists on avoided the crews of the helix and it only teaches advantages associated with its two or three pad configuration when this isn't a matter of preference here when you look at prior art farming says a large continuous contact surface like berg is workable  you know where he says it's workable but the preference for the disclose solution with gaps so it's not a situation where there's a better or a vast situ best solution here barring solutions and criticisms and discouragement against the references like bird teach away and we think takes that outside of the case law where maybe it's not clear like the medical the disclosure isn't clear with respect to teaching in a way we think it puts it squarely  the references are proper if they are properly combinable we believe the board erred in finding that the claim elements are met aged aber teaches that more like extension as what produces the secure holding a fact of the ear unit and according to aber because the grooves are that are labelled eighteen and twenty partially surrounded partially embrace the portions of the year that also assist in retaining the earpiece so the board found that the disclosure of this partially surrounding arm bracing air portion  satisfies both of freebase claim limitations such that abers groove substantially conforms and fits closely to the crews of the helix but this finding isn't supported by the substantial evidence this is in i if this may be referring to the groove that only partially touches or doesn't touch that your anatomy at all does not substantially conform or clip that closely to the to the contra wall and the board we think met both introduce this an accommodating term in the underlying proceedings to try to force prior art to read on the curvature free of its claims and throughout its analysis the board errors by adopting this approach focusing on whether accommodation is a chieved but none of the claims are directed to accommodating a cruise of the helix in fact that accommodation word is not even present in any of the claims and in the board's analysis there is no indication of what accommodation actually means and sometimes it means a gap sometimes it means to partially surround or embrace sometimes it means to straddle sometimes it means touching or not touching and sometimes it means aligned with and so this accommodation term cannot be a substitute for the actual claim language substantially conforms and fits closely and certainly not when it has all these various meanings and when the the board in the expert and of both are applying a different meaning at different times it's i'm defining and this is this use of the term to conduct the john deere analysis and to find obviousness is so far removed from the actual claim language that it and logic dictates that when you have a straight piece that's being in a that's interfering with the ridge but you have to and likely only two solutions one is to just remove the part of the flap ea and the other is to form some sort of groove in it so that it conforms to the ridge and this is exactly the kind of situation where their work to find its solutions that yielded nothing more than predictable results aber opted for the group solution and farming opted for the gap solution so you have to groove in the gap to solution is known in the prior art well before the time  something i'm picking and choosing here for you i think that's correct your honor you know obviously the standard here is substantial evidence not preponderance and the board's  i would like to keep for a moment about the teaching away issue i think it's important to note that farming never criticizes  aber or the prior or group solution they never criticize that instead of forming criticizes the the bergerac for it's and he criticizes it on the basis that it doesn't do any solution for the course of felix problem it doesn't do it does neither groove nor a gap so that's what so the fact so i think the criticism that free bit relies on is misplaced because lack of addressing this issue causes instability and discomfort that's at appendix two thousand three hundred and eighty five in the reference and there's really no debate that the criticisms environment are leveled directly  itself for not proposing any solution in opting for his gaps in the ocean in farming as opposed to the prior art group solution it's because he wants to maximize airflow and he wants to create a near piece that allows more venerable ventilation to avoid perspiration but also to let ambient sound penetrate the ear and that's fine that's a designer's choice but he explicitly recognizes the balance that he's and obviously from that dr casale opined that a person of ordinary skill in the art seeking to and to focus instead d on stability and comfort would be clearly drawn to the salute of the solutions involving more contact think is a very good case for us in that most states that this had to do with a chemical composition and it states the teaching that a composition may be up to more standard does not criticize discredit or otherwise discourage investigation into all this and that's exactly what we have here at most i think varney does provide the motivation to combine but even if you look at it is somehow  then the police find i won't dwell on it but again this is this is a case that stands for the proposition that a reference doesn't teach a way if it merely expresses a general preference for one alternative over another and that's exactly what we have and he went on to make this concession or partial concession and i actually think it's consistent with the remainder of his testimony for instance at appendix three thousand two hundred and fifty seven and so i just wanted to make the record if the record somehow indicated that what we quoted was incorrect when i thought it was misleading i really did have an idea and i as i said when i was attorney argument i'm not slamming you and i would if i that this is the usual teaching way argument we think that this there's an express discrediting in discouraging way from previous invention and i just would like to it with respect to the claim construction issue i would just like to direct your attention to appendix thirteen through fourteen and sixty three through sixty four i don't have time to read it now but i think it's very very good snapshot of how the board's proper findings and all of the testimony and all of th argument is premised on whether there's motivation to in the ability to accommodate the extension of the crews of the helix not whether there was substantial confirmation or close fit to the concho which are actually the claim limitations and so we respectfully submit that this fact alone constitutes reversible error at a minimum a remained so that the board can evaluate the r and the obviousness of using the actual claim terms thank you