good morning your honest may please the court to convince the patent office to re examine the one hundred and three patent at issue here you us i admitted that it would have been obvious to arrive at the claim feature at issue here based on the teachings of  they credited testimony of one person over another why should we be reversing let me explain why just laurie i think there are a number of reasons if you could start with the motivation to combine and i think we can go right to the issue of why w look at the teachings of course i do you make allegedly is a reference not only teaches single point systems so if we can start here we believe them or legally are by misapplying least this court standard on analogous art as this court has made clear multiple times that prior art is analogous if the art is from the same field of endeavor and if you look at the revenue evidence here starting with the one hundred and three pattern at issue we can look at the claims we can look at the that they even admitted would map to the keypad by evaluating the extent of interference at a given signal frequency and selecting a different frequency when a substantial interference is attacked and asked top my graffiti that is precisely the same rationale that sanson relied upon before the board in the i p r i wonder if there's a claim construction issue here that underlies some of the differences between the parties and underlies the board decision which and in some respects it seems to me the board is saying that you have to have a different frequency for each key and that that's not shown in the primary or not sure that that construction of would require make it your and be man just like if that's how you read the board's decision and we think you're going back to that point if you look at again the underlying evidence you know starting with our expert dr subramanian certainly the board look at it from that perspective we think that that's certainly one way to look at it but we we disagree of course with that reasoning as we've explained in our briefs and we think at a minimum make it your would be  combine the cited references well all of a sudden that the final decision stayed that testimony became clews conclusory according to the board we think the board was applying misapplied this court's case line but going back to the testimony at issue if you actually interference negation into a system that's increment call now what do we have from their expert in rebuttal their expert does not come back and say well it was not known to have an issue of electrical interference their expert never said that that's telling the testimony that the board did rely upon we believe it's legally irrelevant for example the board looked at when it was looking at the motivation to combine it kept on going back to the problem solved by the one  just because one problem is solved by the wanted three patent that that's certainly not dispositive the prior art needs to be looked at for everything that he teaches and here they themselves admit during reexamination for the same reasons that sampson advance that it would have been obvious to combine good fighting even if you say it's a single point system with a multiple point system of buoy which was a reference that was at issue in reexamination and what's more here is the war not only aired with respect to the  be combining the legal requirements of motivation to combine and predict is in question it isn't just whether it would have been obvious to go from the single point touch pad to the multiple but how it was john using the skill set of wonderful interest in the art to implement such functionality based on the teachings of care fighting and again we don't have any rebuttal evidence from the other side from the your expert there he came in and said ok yes invention the because the prior art doesn't say anything about using multiple frequencies to differentiate between they wouldn't touch patterns which again same stand the had to have wit claim construction that that's what the invention requires that's what the claims require the so you are to responses that one is exactly what you said there you're obviously reading more in the claims than and what's actually stated in the claims anything at a minimum success if that's required the different frequencies for different keys that that wasn't shown in the proper or certainly you know if you go to that level we don't think the evidence goes to that level in terms of but we don't think that's required by the claims again if you look at their specification and the intrinsic evidence nowhere do they actually disclose talking you know they talk about dynamically changing their frequencies all the different mayor is that disclosing the one a three pack and we think it would be legal there and therefore this court at least with that point should make it and remain but the nd point here just like in terms of the testimony that you're referring to again i one of the issues as you well know that we have with respect to the reasonable expectation of success is that the board legally erred by the acquiring physical incorporation and that's exactly what the expert is doing here in  good morning me please the court in this case so isn't there or isn't the board's decision here rest on a implicit claim construction which your expert suggested the two had to have different different weeks and if that is the claim construction then there's a problem at least with a reasonable expectation of success because the priority doesn't show that but maybe that's not the correct planning construction not exactly the implicit claim construction was raised at the institution stage and carried over the claim construction that petitioners argued was that the that different frequencies needed to be selectively provided to the arrange with the board set which i think is correct is that yes you have to claim language is selectively provide signal output frequencies to a rate of multi touch bit what i said meaning what is that and it does that mean that you have to have different frequencies for different keys or just that you have to select among recurrences to selectively providing signal output frequencies but it does it for a different purpose and a much different way than what is what liam into the remote in terms of motivation combined it's ready for a different purpose because if the if the purpose is to avoid frequency interference that's certainly provides a motivation to use why it makes a difference because the way that or friday  selectively provides the signal up at frequencies is that it monitors the frequencies this is the single path is operating and measures electrical interference and when it finds a certain level of  interference it performs an algorithm and then adjust the frequencies on the backend and what if centrally does is because there are multiple rows within the single touch pad is that it ties them all together to create a rests on the clinton structure and which it seems to me may not be pereira the claim construction was correct and what the claim construction said independent claim supported this was that as long as you have different frequencies available from which the micro processor can select to give to the array to reduce crosstalk and prevent unintended actuation that's what the claims require and there are fact dependent claims one of which says that the microprocessor selects different frequencies for each row and another dependent claim says that the microprocessor selects the same frequency for each row so both are encompassed within the claim construction but the reason why it matters in terms of looking at grp height is because if you take  procedure for determining which frequency of many to provide which rose the undisputed testimony is that it does not work in the one thousand eight hundred and three patent where you have multiple touch pad devices because in group a we're just looking at frequencies and cars will give us everything else but that's wrong because kabul doesn't teach selectively provided what codd will teach is that you have a single frequency and what you mean by selectively providing what you mean by selectively providing is that you select the appropriate frequency for the array now it can be and you have to have multiple frequencies available the only artificial key correct the only art maybe that's not the right point in stride i disagree i think that it is the right claim construction because as long as you can select a modern multiple among multiple frequencies that is all that the claim language requires and that's what the board set so you can select the same frequency for the array or you can select different frequencies for each row as long as you have multiple frequencies of vailable but kabul can't make that selection because kabul never has more than one frequency available instead what kabul does is it sequentially runs the single frequency through each row one at a time right that's not selectively provided question is whether that is selectively provided which is a claim construction i agree that that is potentially a claim construction issue but that selectively providing plain construction issue was never raised by either party and what the board said when the board describes cadwell and this is  i believe page thirteen to fourteen what the board said is that cadwell sequentially runs each frequency through the each individual row that can't be selectively providing frequencies plural maybe it be yet but i mean that's the question of whether that's what the claim requires and that is what the claim requires but that's not what countable does because it can't there are multiple frequencies to select from it selectively providing sequentially what they're fighting teaches is selecting the appropriate frequency to nullify electrical interference ok so there's never a nice there's no question as to whether that's what the  why the claim language requires selectively providing frequencies but if you're going to look at whether it would work when you combine your fight easy with cogswell you have to consider how you're fighting does it because of the selectively providing requirement and there's no evidence in fact the only evidence in the record is that if you take out your five he does it the back end procedure that will not work in the together the only evidence in the record and this is a factual finding that the board makes which without some evidence can't be revisited on appeal the only evidence that the board found as a factual matter was that when you consider how terrified he selects frequencies to the back in procedure that will not work in the combination that is undisputed and for that reason alone this panel construct correct it's specific to the particular it's it's specific to those claims but it's still a requirement so in other words in the prior art if this combination this three way combination is going to work there has to be some way of selectively providing frequencies as opposed to what was already encountered while which is sequentially running the same frequency through each line that has to be the i i admit grp i teaches that purp i teach a selectively providing frequencies but it does so by a back end algorithm procedure that everybody agrees won't work in the combination so therefore there would have a no to have different frequencies for different you need to have that available you need to have the ability to select different frequencies for each key the only way that  work in the combination and therefore a person of work marry skill in the art would not have been motivated to make the combination that's essentially what the board found as a factual matter in the board said look there is substantial evidence to support the fact that a person skilled new york would not have been motivated to make this combination and expected it to work because grp ideals was single pads the other two deal with multiple pads grp i use as a back end algorithm and monitoring procedure that won't work with the other chip that was the board's factual finding and there was more than substantial evidence to support it and no matter what argument that the it titian or makes about legal error it was proper under general vs i'm sorry over under graham vs john deere to consider the scope and content of the prior art and the differences between that art and the claimed invention and those differences include how gurps calculates and determines which frequency to apply to each drop and again the board found that doesn't work in this combination therefore there has to have been substantial evidence to support the board for i have three minutes but unless the colonel has for the questions for me actually just quickly if i could briefly raise this admission issue one of the ways that they try to get around the fact that group hide won't work and the combinations say well wait a minute that it would but that admission again was that burke hygd teaches so if we providing the frequencies and we said that raises a question patentability and it but if you're going to hold that as an admission even though we think it was way you have to take the admission as a whole including not just the frequency part of your pie but the selectively providing the keys grp high can provide different frequencies well it in the context of a single paddock can because it ties all the rows together to form a swing single electrode and that's why  when it does provide different actually doesn't provide different frequencies i apologize your honor i misspoke it provides one frequency for i think thirty two cycles and it can change that frequency through further m you take the reexamination that was exactly what happened the reexamination we said this raises a substantial question of patentability but when you try to combine high with the other art it won't work and therefore than they set it would have been obvious to want to portray skill in the art to modify a system in the type one system in that case it was only to implement the teachings of their fighting and when you say something is obvious it would have been obvious those were their statements they meant more they said more than they perhaps needed to but they have to look at those admissions when they said it would have been obvious that obviously encompasses both motivation to combine and reasonable expectations and in terms of the measuring aspect if you look at eighty three th current with respect to the one of three patent again today again and throughout their briefing and before the board to keep on going back to the problem solved by the one a three part in terms of what the board looks at or what this court looks at from an obvious this perspective certainly did not address that issue and it certainly had not had no issue with the ingram called accommodation selectively providing a frequency and that's where they're fighting came in where it teaches providing multiple frequencies and provides the motivation why you would change