bank your honor ok so the technology in this case now utility patent is still pretty simple we're dealing with gravity feed dispensers where you live can't shoot they roll down a ramp and there dispense gravity feed dispensers have been known in the art for decades and if i don't understand it at the end of the day the tie goes to the patent office to the patent board can you explain your position of why the board was incorrect on the forward edge portion yes your honor so you have a figure or anything but yeah it probably will help your honor to keep three figures relatively candy so page thirty seven of our degree page thirty nine and forty one so taking them in reverse order page forty one is what the patent owner presented and what the board seems to have cite page thirty nine is the patent owner's infringement intentions and page thirty seven is our illustration of how it's about the prior reference meets that claim element so element ten is kind of it's right in conjunction with elements  nine eleven and those three together for the return feature which is basically just a way that you can take a can out of the rack and then put it back in by setting it on top of something in the lower chute so element ten is it we have element nine which which refers to the panel right which so element nine talks about the distance between the the stop structure of the second shoot being offset from the first shoot that's where you put the can back it then  nine goes into tenet says and said panels having a forward edge portion and so we know the panels are the basically the sides of the dispenser the sides of the dispenser have a full ridge portion and what we know about the forward edge gammons infringement contentions on page thirty nine and you see the green line what they what gammon contended there is what we say the proper construction is which is th formed so what the petitioner presented for purposes of infringement is consistent with how we're saying this claim language should be construed here so the panels are the sides of the dispenser the forward edge portion is what claim limitation we do a same i'm sorry go back to forty one of course your what is it that you think is wrong about how this picture is drawn ok you don't think it would recesses that think in the middle you think it's down below what's wrong is that the purple lines kind of confuse things but what what the patent owner proposed and up the board never actually expressly construed claim ten they just said well we think that point why don't you just tell me what's wrong with it ok so what's wrong with it your arm with the board seems to have agreed with is the board construe the front edge portion to be only the part that's vertically adjacent the loading openings and then they draw a straight line there they just paste made that a plain or cut off so they drew a straight line down and cut off the bottom part of the  panels i don't understand that to be the board's opinion at all i don't understand that to be that with the board construed so what the board said is that the again they what they defeat the board to find a recess of element ten they started from so with the board and i am actually looking at fifty four so at fifty three and fifty four so the board defined the recess basically from the base of the loading area to behind the second stop structure oh i'm sorry fifty four is turning to the discussion of why i sold the right ok are you understanding that discussion to contain the claim construction it to see that again the word never fully construed the claim so what they did is they agreed there towards the second shoot structure structure so to the board the recess seems to end at the second second shoot stop structure ok even if that is correct wouldn't the horizontal distance limitation also result in the formants in this case so if you have to get over both of it seems to me to get a firm and so tell me what's wrong with the horizontal distance a horizontal distance at the stop structure of the second she is offset we're really from the stop structure of the first shoot sufficient that a product or move to be replaced so with the board found in this we think they did get correct is that that limitation is defined in embodiments i meet that limitation and that's something that gammon actually admitted it at the hearing except that your problem is that whites obama says throw out in multiple places that you could use different size can size accordingly so why would one of skill in the art have modified white's a bomb to use molar cans without also then following its teaching that if you're going to use smaller cans you're going to want to button vary the rest of the size of the structure and then you wouldn't have that feature you wouldn't have a device capable of right so we're dealing with here is it's not a modification of mike's about it's not the device is the device the question is what can you put into what it is a device because it claims scans the became claims this this utility found to be capable of serving as the top of the popcorn dispenser so that wasn't a modification of that final the final was what it was he didn't need any motivation for someone of skill in the art to modify what is disclosed in my wife which includes cans that have a particular die size compared to the device because of the pictures and you're saying don't use cans like that use much smaller cans then it would work the same way that's what you're saying that is a modification of what is disclosed in whites for sure  i don't think that's judge moore's point nor was the the p tab judge who wrote this it's because what the way he construes weiss a bomb is the statement there is directed towards altering the size of the display device shelves for seventy five years or that's been in it is a reading why some of the teaches you put smaller cans and so therefore you can have this claim limitation once about notes that it can be used with different sized cans if you change their mention of the voice there's no where it says it can be used with smaller si for what it discloses we're going to take the structure for what it teaches you take a reference for all that it discloses correct your honor it does but as you said once about doesn't teach away from putting any particular size commands in there so what's a bound teaches a device that's been in the public domain for seventy five years and basically what we're hearing and what we're seeing is that if you put dog poop cans into it maybe it doesn't have a term for feature functionality if you put the cans into it it will and so you know that what your fridge is if comes earlier can a friendship later ok the operation of this device will just be fairly clever one of it's designed to have cancelled the top and the the designer noticed that people tend to take out cans from the bottom first for some reason  second maybe somebody would like to hear you explain the front edge portion discussion but for me if i can affirm this case based on the night element nine which is the horizontal distance portion i'm just wondering if there's any need for me to wade into that front edge portion at all given that affirms is an affirmative but let me just tell you i'm probably sending this case back for sas so keep that in mind so now do you need me to because if that's what it that's what i was trying to go where she goes given that i would have sent it back is there is there see here's your problem rogers they argued the rogers i went through every ground and i made a table so you can see i'm pretty invested in my current position because i went through every ground they alleged and we made a table to look and for claim eighteen they also allege that in addition to weisel bomb disclosing the horizontal distance of play nine rogers also discloses it so there is one claim and only one claim which is claim eighteen of all the claims they've argued for all the petitioned arguments that weren't addressed there seems to be only one place where horizontal distance is argued in a manner this case of ours will not resolve everything before so technically i think you're right i think i could actually preserve all the other grounds for the p t o and save on the hassle but i don't know what to do about rogers and cl just just for edification on the sas issue you know the board used to decline to institue not just because they are now sufficient grounds because of redundant that i saw that with some frequency and when i look at so that's a pretty significant day and then when campbell soup we've got tired of paying my client for these racks they start copying it and they've fisted easly copied it so it's very much like it striking commercial success only on the issue of whether how much how much are actually contributed to the increase in sales of campbell soup that doesn't go the copying of this which they basically admitted by not none not a mission mission and the of this page that's right there's actually one two three four five six seven eight nine different places where campbell's annual reports attribute the increase in their s arguably two claims in the hope titian seems to me that everything else is entirely resolved if we would if we were to far in this case across the board everything else is entirely resolved if you were to affirm this case across the board media for example every single there's sometimes we no need to make any change that to the device at all to still achieve the same type of blocking and guiding functionality that it teaches so second i think where that takes you more broadly is you have to look at the question before the court is whether a person of ordinary skill in the art would have been motivated to combine teachings weichselbaum with the teachings of now so to arrive basically a dispenser having to shoot and we put evidence into the record that there are two reasons why a person of ordinary skill would be motivated to do that dispute either of those reasons and the board's rejection of them is not supported by substantial evidence in the record and lastly on the issue of secondary considerations and on closed out of time what's missing here is an important nexus you can't tie commercial success to the gravity feed dispensers generally they were out there in the are there has to be something patently distinct about this claimants claimed invention that contributed to the commercial success the only thing that seems to be even arguably patent here and we submit that it's not is that return feature functionality and there's nothing in the record to suggest that anyone thought that that particular functionality had anything to do with the success that campbell's may have achieved in using gravity feed dispensers generally