in the caterpillar reference that would suggest against doing all of the modifications that he proposed well it was founded on a single sentence ie splines y ou have been within the ability of someone skilled in the art to combine the two he does say that he believes it would have been within the skill level but your honor said that he explained why and i disagree with that i don't think i see anywhere in mr raymond's declaration where he explains any reason why a person skilled in the art of would have made the changes and that's what we're looking for in the obviousness analysis is not just that someone could conceivably have done these things but that someone would have found it obvious to do so well that's a different question but he explains how someone would have known have been doing i disagree i think he does just pick apart portions of caterpillar and suggest that somebody would have for example separated part of the lower jost from the mounting mechanism but he does not actually articulate anyway that well first they launch a moment when he doesn't articulate why a person would do any of these also doesn't articulate how a person would have done that in any way that results in an  device and that's another problem that we have with the judge here we have on the one hand declaration from mr raman who have explained after a sincere effort trying to follow the reasoning set forth by the board why one could not disassemble caterpillar in this manner and turn it into a workable device because of the support plate interfering and the need to remove one or the other would both cause other crippling defects to the device but i actually think that's further along than where the board error really lies which is in starting with caterpillar in the first instance when you look at caterpillar it is fundamentally incompatible with the ideas that are pulled out of the rest of the secondary references because in terms of how to mount and pivot the jaw set in caterpillar it teaches the advantages of doing that in the exact opposite way that the secondary references in the record show specifically caterpillar reference teaches a job set that retains the pivot pin the connect the jobs to each other when that job set is being switched for one versus another removing a pivot pin caterpillar is described as a quote very labor intensive and time consuming activity and that's a one thirty three so not having to remove that pivot pin when you're replacing a job that is what makes caterpillar a quick change device it's literally what takes the process from hours down to minutes and when we look at every other reference in the record none of them have any quick change feature like that because they all require removal of that pivot pin in order to char the we're talking about the combination of yes yes but when we're looking at the combination of the two the board did not actually consider the full context of all the references on which it relied caterpillar is it's a feature in caterpillar to immobilize one job because that is the solution in the in the caterpillar's teachings for how to avoid the need to insert and remove the pivot pin as part of the job mounting and  yes but so yes your honour's right caterpillar teaches don't use the pen and the attachment point but the only way the caterpillar teaches to achieve that goal and still have an operable device is to attach the job that some other way and caterpillar solution was well attachment via one of the jobs that way you have the job connected to each other via the pivot pin but you have to just set as a full as a whole device attached to the one of the jobs and to do that you had to immobilize that one job in the process so view that is a core foundational principle of a caterpillar teaches and it goes against that very very principle a caterpillar to suggest that one would change caterpillar to then make the second job movable when immobilizing the job is what gets you to the quick change feature that caterpillar was seeking to achieve in the first place as i mentioned every other reference in the record including of our is not a quick change about device either the requires that pins to be removed and inserted when the j it or dismounted and caterpillar is very critical of those designs it overcomes the deficiencies of those designs in the way that i just described and so immobilizing one of those jobs in caterpillar really is the solution to those primary reference caterpillar is defective because it teaches a core principle of operation that goes contrary to what the board says the device should be modified to do now the board also says that because other devices such as the old gal reference have to move a bill jaws it would be obvious as your honor said to combine those teachings and make caterpillar have to move a billion dollars as well assuming that a person still in the market overlook the fact that this does depart dramatically from caterpillar the problem that we have with the board's reasoning here is that it determined that one job vs two jobs being movable was just a quote design choice that is well known in the art the problem is that the record simply doesn't bear that out neither caterpillar nor any other reference teaches how you could permanently retain the pivot pin between the job as when having both jobs movable every to move a job reference in the record also that one vs two jobs is a design choice is well understood in the art that is only true for non quick change devices where the pivot pin have to be used also as a mounting mechanism when the sole teaching operability issues yes they did and we think that was error because mr raymond went to a sincere effort to try to combine those teachings and the response from mr jacobson was so high level as to be meaningless it's the kind of conclus threshold issue here is whether the caterpillar reference is even a proper primary reference given what it teaches and it teaches away from the combination and that the combination from the board goes contrary to the principle of operation of caterpillar so i think before we even get to the secondary references and the combination and the operability issues there's a threshold question of what a person reading the prior art as a whole looking at caterpillar what a person proceed down the path of  and and looking at caterpillar looking at the entirety of what caterpillar criticised in the prior art and its solution to overcoming those deficiencies we submit no person still in the art would see any would begin down that path at all so regardless of the operability issues that occur later on down the path once the person feeling aren't supposed to get over that initial issue we still think that the primary reference is fatally defective and can't support the obvious misjudgment so to get back to just waltz question i think stating that in the desperation of these modifications just within the skill level of a person skilled in the art that's a kind of conclusory an unhelpful assertion doesn't get to the issue of obviousness and obviousness is supposed to be about what a person would have done and particularly in a field where the level of skill is high such as that the context really matters and i think it's just not true that that's all he said finders they chose jacobson over rahman you know something they're entitled to do well conclusory aspect of mr jacobs declaration and i misspoke i apologize it's not that he didn't articulate some way that he would combine it he never articulated any basis why a person feeling out would have started down that path in the first place and would have made these changes at all there's nothing about caterpillar that suggest what he said and he says various points it is well known in the arts that for example he's an expert he lays the foundation for his expert conclusions how do you say the board can consider that because if you look at the patents that he was actually relying on the underlying evidence all those patents that he's pointing to to suggest that it is just a simple matter of switching one to two jobs and vice versa he's twenty only to the non quick change devices where the main pivot pin is still having to be inserted and removed there's a very very critical constraint that added to the equation by have to take it with the pin so yes mr jacobson says that it would be obvious to do that but what he's pointing to doesn't support what he is saying and otherwise what to simply say that these changes in his mind are our core basic set against a very detailed analysis of why these changes are anything but basic and why they run into serious structural defects at every turn along the way we don't see how the board can rest its judgement on these very high level of abstraction assertions f mean please the court my name is ryan massey i represent a third party requester genesis attachment in this appeal the board of appeals concluded that it would have been obvious to modify caterpillar to include to move the blades as taught by  although i intend to talk about the evidence supports their finding that a rational basis existed as to why to modify caterpillar to have two mobile blades and the evidence to support their finding that it is within the level of ordinary skill in the art to modify cancer caterpillar to have to move a bullet before i start you may find it helpful to reference the equation the time page two of the appellee brief but i believe its document number twenty one figures is in the middle on the left hand side and you can see that those two blades are opened a hundred eighty degrees the board also recognizes that two movable blades have improved operability it's much like we have  thumbs if you want to grasp something you can reach out center of the device and bring both your fingers and your thumb towards the device to grasp it or basically recognized you you have that improved operability with two missiles of labor instead of one if you imagine your thumb being fixed and not movable it would take a little bit more concentration to pick up an item by just being able to move your fingers and not being able to move and this is a real question is  distinct very unique mounting system and it allows for quick removal of the toolset and so when with caterpillar it has just one movable blade and one fixed blade and i don't think that that is in any way relevant to the quick connect system that caterpillars disclosing it just happens to be that they implemented their quick connect system on a tool set having one movable blade so when one having ordinary skill in the art would look at it and say boy that would be n if i could use that thing quick connect system with two movable blades i think it would readily appear to a person having ordinary skill in the art that would be an obvious combination of miracle i didn't do it out of this is really what concerns me in this case actually much quicker to assemble and disassemble them then i believe that that the patent system would be because it has multiple patented system has multiple pins multiple range alignments that have to be made so there are clearly is not using the patent system my client is using an automated system that actually has automated pins that come out and engage it just so happens that they had they have interpreted the bridge housing in their yes but here we have a clear teaching in caterpillar of all the benefits of a quick connect system that reads on the device of the patent except for the second movable blade proceedings so moving forward with establishing the rational basis for the for the modification the board recognize the two mobile blades have the improved operability board noted that the prior art itself clearly demonstrates that there exists a market for tools in which both of the jaws are movable in addition to a god or the board recognize them the bounty for one three pattern which is shown in the middle row at the center has two movable blades they also the substantial evidence it is clear that a proper rational basis has been established which refutes the patent owner's argument that the combination is based only upon impermissible hindsight and with regard to the level of ordinary skill in the art  the board found that the prior record demonstrates that the level of skill in this art is high and i just heard mr breen say the level of skill natarus high has headed here in particular the board found that the bounty for ninety three reference specifically demonstrates and i'm quoting not only the level of skill of one of ordinary skill in the art as to the ability to alter jaws but also demonstrates that implementing a jaw so that one or both blades are moveable system with two jaws in one environment of this patent they show that lower jaws is mounted to a strut that holds that lower jaw in a fixed position and they also disclose an alternative embodiment where a hydraulic cylinder can be employed to allow movability in that second job so there's clearly a teaching there of great skill in the aren't high level of skill in the arts to make modifications like what we proposed in this this rejection there's also the declaration of dan jacobsen he shows in his declaration he shows the drawings that's reproduced at the bottom of that equation that i that i referred you to in his proposed modification  his modification yes yes he basically took a drawing that was in the raymond declaration and the raymond declaration removed the fixed draw and left it hanging out in space and then jacobson looked original hydraulics on so that the modifications that mr jacobson proposed are not anything other than what you would see on any one of these other pieces of prior art where there is a movable job so the evidence of record clearly establishes the modification of caterpillar to include to move a plate is clearly within the level of ordinary skill in the art and is not a major reconstruction there is clearly a discrepancy between the two declarations one that says this is a very simple modification and i think that that is shown when you look at how he proposed to modify the second movable jaw to employ that in caterpillar he was simply using what was already known in all the other movable jaw systems the patent owner would argue that none of these efforts and changes would have been obvious to forsee the person having ordinary skill in the act and yet i think those differences are clean coley taught and i think here the board obviously looked at both declarations they consider them in detail i think they weighed more heavily to the to the convincing evidence of th e jacobson declaration i have two more issues to discuss and that is that the path no one argues that caterpillar teaches away from the modification with the device of caterpillar what they're looking to do is isolate the pivot pin so that you don't have to disconnect the job when you want to disassemble the whole tool i think that's clear caterpillar does not teach anything about or teach away from anything about adding a second job it simply wants to make sure that you isolate the pivot pins when you when you disconnect the whole tool set so adding a second pivot draw to that to that mean pivot pin will not change the principal operation the device doesn't  teach away from that at all and i guess that gets me to my last point which is the past no one argues that the proposed modification changes the principle of operation of caterpillar again caterpillar discloses a quick connect system for mounting a tool set to a piece of construction equipment without requiring removal of the pivot pen the modification to include two movable jaws no way in effect the principle of operation of the quicken access to it only has another pivoting draw out at the end of the  the equation referenced by mr massey in the red brief here i think is a good indication of how disconnected the teachings relied on by the board are from the actual prior art references as a  whole mr matthew began by talking about the idea of having two movable blades and certain operational advantages that might come from that and that may all be well and good but the issue is would it have been obvious starting from caterpillar as the board did to incorporate that feature and i don't think any person building our can read caterpillar and see how that one job being immobilised as a central feature of caterpillar would then proceed down a path that leads to two movable jobs had you on the other hand looked at the teachings in the prior art of those two movable jobs you would also see that they are fundamentally incompatible with caterpillar because of the way the pin mounts the jaw set so just looking at the idea of two movable jobs is not the same as looking at the actual teachings and caterpillar and the actual teachings in the prior art of record at the level of skill in the art i certainly agree with mr massey that it is high as i mentioned a moment ago that's exactly what the context in these references matters and why the reasoning has to account for the realities of the technological tradeoff in the structural engineering that goes into these very heavy duty devices mr massey mentioned live bounty as a conclusive proof that using one job versus two movable is a well understood routine matter in the in the art and that is simply not true because look bounty includes want to include the feature a change from one to two but only in the context of a non quick change device is a major constraint added for caterpillar and for the four eight nine patent that have to be quick change it has to avoid tinkering with the pivot pin so to say that the bounty teaches this interchangeability from one to two jobs is error there's no support for that assertion in the record  given the scope and content of the prior art and the differences between the prior art and the claimed invention it's very important to consider those in their full context to avoid the kind of high level of abstraction reasoning that was employed by the board here  if we do not require more detailed analysis of the prior art and its teachings as a whole then we are inviting the kind of conclusory high level reasoning that makes it difficult for any invention to be