thinking errors may please support the board here erred as a matter of law in finding claims one five in six of the it based on a combination of three references that date between ten and eight years before arlington's invention the board made a number of significant errors but i would like to add to the just the following three areas with the court this morning first the board failed to compare shoemakers multi component restricts retaining structure to the actual claim limitation of retainers secured in the opening of the inbound then second the board failed to establish that its knickers retainer alone or in combination with grendel it would achieve the guiding and advancing limitation and finally it improperly reject limitation is really key and that is cause see that we're really going to be fun focusing on this morning the fact is clause c of claim one requires several different limitations none of which the board found with in respect of these limitations first and is in fact i think it would help the court if you referred to created twenty three and twenty four of our brief we're talking about snickers retainer so the claim same one requires first that there has to be two spring retainers secured in each of said openings in the impound that those retainers must have in really extending tanks that receive an engage separate cables from the inbound and that those tanks have to be capable of guiding and advancing separate cables in a manner that advances the cables toward the pond and those tanks also have to be cable a capable of the restricting removal of the cables from the inbound end and finally the retaining the retainers must be made of spring steel now the district court erred in committing clear error by disregarding those express limitations in the out in their obvious determination looking if you look to snicker snicker as disclosed is a grounding ring and as we show on page twenty three it's shown in red in figure for the board focus solely on figure four in the exploded view and called that basically but it's acknowledged in its finding of fact a four which is found at eight fifteen it acknowledged that the grounding ring of snickered does not work as a retainer unless it is combined with the grommet and the gland does perform some retraining and only after it's been in s four where they say that it's only due to the grommet interference fit that they retain that the grounding ring has any kind of resistance against the cable and then secondly they say that again it's a fifty four in the rejection of the onto the grounding rein until after the cable already inserted in the conductors are outside the outbound and if you look at figure two you'll see that the conductor is basically out before the ground that is able to be  and that's because of course the big shaker described it is slightly inserted so it's basically loose within the connector until after there is this compression and that you don't even have to find that the board aired on that particular kind of back because they actually found that contrary to bridgeport argument that the board ever found that the retainer for the grounding ring by itself could be a retainer and the board did not find that at the finding of fact for it the typically said it was due to the granite and if you look at column seven in the shaker reference it's typically described how there's two separate tightening and it's not until the second tightening that there's any securing whatsoever i mean i can i can understand your argument and it would make more it would be more relevant to me if we were talking about one or two rejections and suspicion but this is one of three so we're looking at these various references for what the teach not  structure or the precise operation or the precise nature of all of the components were looking to the references for what they teach when the warden are still in the art and i seems to me that's exactly what the board did here arlington's expert and bridgeport expert said that those killed in the art would not look fishnet or to actually combine with brindle so the only evidence that we have on the record is that those killed in the art would not find the teachings of shikhar to actually be combin specific that's mr kiley bridge for their own expert actually stated that in a deposition in this in the underlying litigation in this case and the fact is that schnitzer is while it's true your honor that it isn't obvious and determination there still has to be is  found in the in ray wilson case and in the recent case of generally that says that there's at least some motivation to combine or that it would at least be obvious that somebody and it's black letter law that if it requires substantial reconstruction of the reprise mary reference in order to combine these two references then there wouldn't be obvious to come to combine and so here's the situation when you look at snicker snicker is a threaded connector and you're talking about a single retainer that is a that is used with a grommet in atlanta there is no evidence in any of the references that anyone skilled in the art would find it obvious to take a a connector that's w and then combine it with a noncredit connector of grendel and actually have to restructure the entire housing of grendel in order to then try to hold this retainer function of snicker but when you combine that also with the second half of the retainer clause of squad c you see that the reason why it also can't meet the guiding advancing limitation is that the guiding advancing have to be done from the opening of the invalid end and it has to be done by the tank not the shoulders of grendel that's what the claim requires the specification makes it very clear that that isn't in function that those cables are being guided in advance at the outset of the opening of the inbound  end and we know that that cannot happen with a combination of chick or with brindle because the fact that the way this plan that works the cable would already be fully inserted before there's any securing mechanism and so because of that you can't have any guiding advancing if the cable is already all the way through to the outbound then before there is then the second tightening of the delay in the grommet more importantly we know that shikhar was only concerned with going to directing the cable straight down the bore of the connector and because they only can is only concerned with that as the board actually recognized it would not have been considering the fact that we have two separate cables that have to be  guided in advance towards the offset outbound and of the claimed invention or in grendel and because it's not considering that it wasn't actually it doesn't have any teaching to that effect and in fact that it would seem to be arguing that it provides some sort of guiding guided to turn some now right well that is the claim construction is that it has to guide or permit the forward movement and then the in the court and even the board actually recognize that it was an inherent quality of a duplex connector that because you're necessarily provided by the time the little time certainly will will guide you in the forward direction retained it from backing out but then something else is going to move it along a central section well actually the claims and the specification actually specifically discusses how the time the tank should actually be doing the guiding in advancing to prevent the mutual interference of the separate cables and that's very clear  the orientation i'm just trying to figure out what it is about the time that well does that and why that's any different than the times in the in this discussion if the reference they both seems to me some evidence that there is guiding and advancing from the tank and i would decide i would disagree with the fact that she may care shows that whatsoever because we know that she knickers kind are not actually engaging the cable until after the conductor is specifically through the connector and that is at i believe column seven i believe it's thirty three hundred thirty seven or somewhere to that effect and moreover the fact that we know for a fact that the board actually relied on brindle shoulder because it acknowledged that snicker would not have actually been guiding it advancing towards enough to set out on it and so it relied upon the shoulders in combination the problem is that the claim six forty eight was since the angle leading times engaged irregular car gated outer surface twenty eight of the cable a force tending to pull the cable out of the the grounding ring cannot really of the connector due to the engagement of the grommet with the grounding ring in the water right that's after the full and if you look above that your honor that's what that is after the conductor is already completely through then the grommet has a second tightening and then it does the securing so we absolutely agree that there is securing after the cable very few but if you look straight if you look above to the inserting of the cable is at twenty two through twenty seven  about the fact that during the insertion the electrical current conductors will just pass through the closure pass through the grommet pass through the grounding ring is that same thing that happens with grounds no in fact ingress because of the it actually are under there not all the way through they actually have to be in fact that the description of the specification all discusses in the patent and the claim requires that it actually engages and guides the cable that are separate toward the know as a finding of fact as i said your honor because that's not even something that you have to reverse the fact is that you just have to look to see whether or not the board in its own findings of fact applied that to the actual plane limitations which they did not more importantly they didn't actually give any consideration arlington's established secondary considerations and that was their error of law as well especially in a case like this where the showing of obviousness was we would consent wasn't even made let alone it at a minimum it was a very weak shelly and so you have  and yes in the board's determination that this was clearly is a clear air as of factually has no substantial evidence on the record arlington submitted several different aspects that shows in excess number one they submitted a claim chart which the board failed to even consider silent a arlington's claim chart showing step by step of the fact that these products are rejected the customer declarations that went through sides one by one as to why they bought it for the patented features the patent features clearly show that it's a snap in connector right in the field of the connect in the field the invention it called the connector a snap in cable connector with to snap and cable retainers on the back and all the customers talk about that plus they had advertisements and the great article which is a trade journal article talking about these particular patent features at the customers may please the court all the evidence before the board before the patent examiner has been considered through four rejections in this case of claims one five and six by the board  on its original hearing and by the board in its denial of rehearing arlington has a different view of the evidence than the board had and arlington is asking to substitute arlington's view of the evidence for that mechanism is used the the claim does not recite any particular mechanism for holding the ring in place and i can never have had every opportunity to add a recitation of the mechanism for holding the ring in place and chose not to correct construction which includes permit forward movement the board found that the times as combined would permit forward movement there's nothing in this claim that says  school and you are correct one of these armored cables has wires sticking out the front end about this far beyond the purgation section so in all of these connectors those wires are going to be already going to be out the front end before the cable correct correct it's it's it's it's a metal wound shell basically so and the electrician actually said there was a hacksaw and cut into the metal and pulled you know an the meeting of the client a matter that you know was not addressed  pointed to included an underpass and didn't feature the board found now there was one reference that one piece of evidence that arlington submitted that was not prepared precisely for this the insulator the insulated throat as a major plus and that's the feature that is a ninety six percent of the devices that that are we can point to is showing commercial success or way back and said if this is commercial successes it's weak at best and weighed that in light of all of the arguments and found correctly is they're comparing the sales of a conventional duplex connector to what they claim is a patent duplex connector so the market is duplex connectors and the evidence shows that there are besides these two players six other players in in the duplex connector market and so without market share you can consider the eight you have to consider all the evidence of sale but if you had market share it would be a stronger showing here without market share it's a weak showing and even with market share ninety six percent that were refused consideration based on the effect of filing today so claim four is still a tissue and the cross appeal would allow the patent office to consider new grounds claims three is also not currently rejected and you're correct both sides agree that the border area and in that case this court must remand remand claim three to the p it describes that improvement was getting rid of this insert the grandparents of six six one patent shows a house and it shows a single opening oval shaped opinions that there is there is arlington has been awarded lost profits based on a two supplier market the only market is the fact that there is only arlington and bridgeport that makes the step in connectors and the evidence with unrebutted that every single year from zero sales in one nine hundred ninety nine to two thousand and seven arlington sales increase in this brand new market eighty seven percent that by the time they got to two thousand and seven they had made seventeen million dollars in these commercial products mr kiley arl own expert discussed the fact that it was only in two supplier market and that that arlington and bridgeport customers request and pay a premium in order to get these patented features arlington w that this court in the re man that you instruct the board to reconsider the secondary considerations in light of the fact that they failed to consider these and their nexus determination was incorrect and we the court can take into consideration these judicial findings that were not before the board but that have been found and are a matter of record that there is a true supplier market arlington practices of invention and arlington and bridgeport only because of that arlington could not submit and judge laurie and could not submit typical market share because arlington did not have bridgeport sales but clearly as this court has previously found seventeen million is considered success substantial commercial success number two mister unger mint incorrectly showed that the advertisements showed that is specifically anytime there is an a in front of the proper after the product it had been in place or no customers with spend seventy five percent more to get the insulator when the insulators were in the conventional duplex connector