place your honor may please the court this case is about whether it's obvious to use dynamic braking in a programmable pitching machine where that machine needs to deliver pitches of different speeds and just a very short time a few seconds in between each and i'd like to start by talking about why the name of breaking is the obvious choice here and then go back to discuss some of the problems in the district court's findings on the individual gram factors if you start from the prior art floyd patent it case the original prosecution a decade in the court in that novice reexamination there's no practical alternative to dynamic braking it's been suggested they could achieve this and so if if you can a nd to that end i'd like to point out page fifty seven of pro batters three for not our brief a preventive brief they rely on the fact that sports tutor has to use dynamic braking in order to in order  to operate the accused infringing home plate machine so if that's true of sports tutors machine today the only way to do this quickly is with dynamic braking that's also how it would have been done in the have not only is that what a perv more control better hypothetically would have done that's in fact what was done there is evidence that these drives were shipped to a baseball pitching machine manufacture and that this sort of circuit we're relying on to make our case today we're saying if you start from the printed record from floyd from these final office actions that the the bad examiners made the reexamination so they set out where all these teachings are in the evidence that you're relying on it so it feels as if you're telling us we should just ignore that and just go right to the printed documents i'm not telling you to ignore her credibility to write determinations that there is no credibility determination through witnesses that were rejected well the witnesses were rejected completely she did find that everyone working in this field would work with a motor control vendor in designing a fiction machine and we had a lot  we should pay attention to these witnesses who said that the prior use dynamic specifically but you're saying that the prior art show a short interval between pitches and that  the finance regarding what the witnesses said we think those are wrong but you don't need to get to that to reverse here starting from the prior patents that you have that you can change the speed of this quickly and the district court finding that a person of skill t so every few seconds every ten seconds all of that is more than twice per minute it's just exactly what they would recommend example all of these all of the elements are there other than dynamic braking so if you start from that and the only missing piece is dynamic braking and the prior art says you change the speed in just a few seconds and the person of skill has access or works with a motor control been or there's a motivation it's you need to do it in a few seconds the motor control vendor will recommend dynamic braking as the method to you that you need to  u and the final point i want to say about the office action final office actions from the reexamination is that these were men without objection and there's no evidence that infringe the other aspect i want to focus on briefly of the district court's findings is secondary considerations the fundamental problem with these findings that were adopted is there's no nexus to the invention there's no law what if there's something that has praise for the video screen but also had praise for the ability of the device to change to changes and pitch quickly that would be good evidence your honor if there was evidence of praise relating to changing the pictures quickly that relates to this claim and mention all the president is in this case relates to the video system they talk about simulating a real picture they talk about you know looking them in the eye and having the timing of seeing a person pi it in terms of when they swing so if there is something that even a couple sentences in the article or something that refers to the changing of the picture and the speed of which doing that you would say that that is  maybe that's not clear enough but i just want to make sure i understand it and i think it's already clear in the record thank you we're not saying just because something there's praise for a video screen and then something that's claimed that the court can't rely on  numerous structural wrists route all of them but remember your honor there's sixteen in french claims there's no challenge to claim construction there's no challenge to the infringement findings if there's  one fringe claim if your honor would like to focus on one for example claiming eight is a particular claim that includes a programmable pitching machine that's designed to throw multiple pitches within a short period  for the motors which said if you use dynamic braking you want to change quickly and that makes it obvious to combine two more of course you need motivation to combine those two pieces of prior art in the way in which was claimed ration and in the manual which says if you want to do this use dynamic braking you know it does it does not especially does not say that so in order to get to the claimed invention from those two pieces of prior art for one of the claims this was not argued below it wasn't pointed to the just report below it's done for the first time here sixty one thank you or dynamic braking my point about motivation to combine your honor which is a critically important one in the obviousness equation is that where is the language on this page sure it's right at the very tough for the very first paragraph on rap way dynamic braking was known there's no question about that that the point of it but the prior art necessarily involves braking don't absolutely not know so changing pitches quickly did not require braking of the wheels you could have just pitches with out rapid deceleration of wheel speed and these invent doors discovered that there are times when you're throwing a fast ball like roger clemens at ninety five mph in the bottom wheel it's going it for example twenty five hundred r p m s you might want to change it up to a slow pitch sinker like tommy john and that would require very rapid deceleration of that bottom wheel to fifteen hundred for example fifteen hundred r p m so thousand r p m s in a very short period of time nobody appreciated the benefits of doing that other yes changing dramatically hitches like i just described absolutely not so professional major baseball pitchers do what i just described nobody appreciated that rapid still ration of wheel speed could accomplish that would accomplish that these adventures did accomplish that and they employed dynamic freaking to do so further your own and nobody appreciated that using  center pivot would allow very small but accurate adjustments of the power head so that the batter would not appreciate the subtle movements of that machine and therefore could not predict what machine what it what pitch be not about absolutely not because there is no evidence of a motivation to combine all of the evidence that came forth on this particular point about the motivation to combine came from discredited interested uncorroborated testimony the judge weighed and looked each witness in the eye determine their credibility determine there was not for example sports shooter brought into the courtroom a machine an actual pitching machine that they proclaimed under oath was assembled and was in the public domain in one thousand nine hundred six he was prior art under cross examination it was determined that the machine actually had motors which remain for manufacturing in the year two thousand he's does that there's absolutely no evidence of a motivation to combine dynamic breaking into a programmable pitching machine nor is there any motivation or knowledge with of the benefits of their limited based on the manual  combined perspective the judge found explicitly no motivation to combine you would have to find that that was clear that the rivers the no way in the world changed could she rejects any evidence of one of the signs and respectfully you  cannot do that on this wreck but by acknowledging that the machines and the way she did you know lies wouldn't trust factors cannot be reviewed successfully here it's impossible for you to reverse those findings was there you never briefed anticipation nor did you provide any proposed findings of fact with respect to anything and so i believe they've waived or banded there into spatially defense which was an affirmative defense so it's clear that change pitches which gives you that real life professional experience further able to simulate a professional full of player and they come from professional ballplayers people who know well so there's an acknowledgement from the c e o of course tutor that he thought the machine when he saw it for the first time at a trade show was pretty cool he's from california have been directed to the video director over the reality with the picture so he didn't so limited that where the district court judge didn't so limited that way she determined that it was it in knowledge meant that the entire system which includes the ability to dramatically change history is was impressive and they copied it the month thereafter and they've been capitalizing on it ever since immediately from their baseball  so you're in atlanta in the background of our brief we talk about secondary factors and on page twelve one former professional baseball player proclaimed it's an incredible piece of equipment it will throw forty two hundred miles an hour and it will throw any pitch that you can possibly ask for i mean it is absolutely amazing to the success it contributes to the praise it gets credited just like the district court did here which did not clearly err in any of your findings she does clearly care in finding no motivation to combine she did not clearly  credibility determinations and talking about copying and some of those things in the sheen that was at trial those motors were replaced in two thousand apparently based on the dates but even if you give it the two thousand date that's still years prior to sports tutor allegedly seen it at the trade show and that's when they decided to use dynamic great sports tutored knew about dynamic breaking from the tennis business  the delivery cycle for example one pitch every ten seconds is designed to be constant so that it does not have a clue of any pitch sequence or result of the variation in time to just reach different pitch likewise the motor systems are quiet so that it is not hear any audible adjustment clearly the time interval aspect is in the prior band and that is what provides the motivation to use a dynamic braking element in that completed system i'd like to briefly touch on something else