i'm going to try to do that in about sixty seconds or less if i may first reports final written decision like clears up your positions below fundamentally misapprehended the technical problem that is addressed by the leak surveys past the technical problem was not imaging a gas under some conditions the problem is how to adapt or modify prior art imaging devices to overcome the known deficiencies that made all prior systems unsuitable for detecting weeks under real world conditions that's the technical problem addressed in these patents second the more relied upon fundamentally flawed claim constructions to essentially rewrite the patent claims the words ronnie's constructions a women a critical elements and realigned the patent claims to coincide with the board's misguided view of the technical problem the board's erroneous claim construction rendered other findings erroneous particularly its finding that fear had met its burden of proof should the prior accommodation to disclose or practice all elements of the claims as well as the board's decision to ignore the extraordinary compelling evidence of objective factors such as long felt need in the failure of others it's all the same technical problem there the words finding a motivation to combine are both legally erroneous and not supported by substantial evidence the board misapprehended the evidence regarding principle of operation and intended use and again ignore all evidence of secondary considerations there is no competent evidence to support the board's findings that the combinations would have been an obvious design choice to a person of ordinary skill or the pose that would have expected or predicted the results for and finally these errors require that you reverse the board's decision and render judgment for alice i after five i p r petitions and three instituted trials failure has failed to meet its burden of proof and we don't believe that they are entitled to another bite at the apple on any sort of but all of these points that you're making turn on the on are agreeing with your claim construction positions cracking absolutely that is correct and event either one of them right i believe that essentially taking that position how they didn't violin as one of the reference in the piece have perhaps because it was in the prosecution history but the conclusion there would be that after almost nine years of examination that the patent office allowed claims respect to the independent claims and they point out in their brief that they have that lease there would be one claim that limits the bandwidth of the filter specifically enough for one so with respect to that one claim you're correct but with respect to the other sui think that  we would acknowledge that under the board's claim constructions the more limited camera with the two thousand micron filter practices these claims when we all know that it was completely unsuitable for leak detection  in the field very often in fact maybe at most times you don't have a sufficient altitude instruction system for example didn't work when the ambient temperatures below about eighty five degrees so if you're an oil man in baytown texas and you want to g you can do better than eighty five degrees you can go lower so that's why isn't that exactly what the merlin mid did so putting the filter in the cold refrigerator section with the emission that is the speculation or prediction if you will from strucken however we don't believe that if you took the actual filter that was instructed and certainly there's no evidence of a record that would indicate that if you put that in the early mid with a higher  limited camera there is no evidence in the record one way or the other that anyone in this courtroom can begin to know whether it's going to work and i think there's really good evidence just you really raise an argument with the board about that about having an upper limit on the w absolutely both in our briefs and if they hear this was discussed extensively that it was unable to the cameras that had a filter that was too wide would suffer from the washout problem that you would that ability to  absorption within the narrow bands of interest would be overwhelmed by infrared radiation that was coming in from these adjacent bands and so that's really the that finding the sweet spot that the right with the filter is a combination of wanting to detect multiple gases of interest so it can't be the sort of micro filters like the forty nanometer filters in winners that are calibrated to one particular gas of interest that's why you get at least about one hundred or at least about two hundred demonstrated that as small as forty was good and that the narrow narrower is better but it's the teaching from us and so we get in our path and we get at least about one hundred or early about two hundred specifically so that the camera will be able to detect multiple gases of interest ok so that's the lower limit the upper limit then is at some point the filter is going to get too wide and it's going to suffer from the washing up prosecution in this in terms of going after multiple gases or multiple absorption lines for single gas and some of which often fall within a fairly narrow range isn't that just very pedestrian kind of a determination from the catalog well known catalog of emission absorption lines to look at the at where the lines fall and then design your filter according to which gases you want to pick up so much stronger than anything new i don't disagree with the idea that it's a chemical gas of interest using a single filter  correct and i believe i want to check this but i believe that that particular claim is not operating in the midway region but it's at the large window that i'm going to i want to carry it on and i don't think it's terribly important the point is that you that by nature of the physics will have the practical effect of imposing upper limit on how big the filter can be that's just the physics and they'll the cleaner taishan that requires you to be able to produce a visible image of the gas under very many conditions well in practice but the maximum is determined by whether it works or not that is exactly correct and so if it works then you are claiming it so for example if we were trying to bring friends went for a camera we would test it single filter cold in the machine if my if i have a really good imaging camera and improvement on the merlin and i can use a thousand nanometer filter wide filter and i get an image of a gash then  e kind of claims that have lots of upper and lower limits but did you discuss it in the context of claim construction relating to the producing a visible image term so no it was not discussed in terms of going construction by either  side we from our preliminary response and then our full partner response have made the argument that they have failed to meet their burden of proof as this element we think the proof of visible image has a very plain ordinary meaning there's nothing to be construed there i think everyone in this room knows what that means  and so the question is if you take a particular device or a particular proposed combination of prior art references and what to do that and you don't know until you test it clear knows how to do this by the way because after they learned of  limited and done a field test and there are some very sophisticated laboratory where they could have done it less than a day they chose not to do that and that's why the evidence isn't in the record you want to get back to claim destruction i didn't mean to get away from that but to answer his question we didn't address this as a claim construction issue because we think it's plain and ordinary that we have all along from our first paper and in every paper and particularly in the oral argument i have challenge them by saying you did not meet your burden of proof on this element and the cameras caught up with shrek and all that mr fury did here is what stratton told him to do he took an off the shelf millimeter camera that had a cold filter which was art recognized as a type of filter is what for this type of application because  image gasses more than one gas because they have overlapping absorption bands so you know i don't want to screw size examiner but he probably could have wanted to do some of the broader claim that mr pickett is right is he not that with respect to let's say a two thousand wouldn't producing why when the common ordinary meaning of producing a visible image include that the concept that you have to have and an upper limit on wet because otherwise you're not going to have th think common sense speaking the problem is some practical upper limit somewhere but it's well above the strap in filters we know that the merlin camera could image jet exhaust that's two thousand animators white so  relied on when they were talking about the maximum filter with they we're talking about the for what half maximum but the minimum is they're talking about aggregate bandwidth whatever it is at the bottom of the curve so it's indiscernible i mean you can't who knows what it is right so so is a practical other limits it's going to be well above the strike and filter size because if you go to depend a claim third seven which depends from claim one that's where there is an express upper limit it says the claim thirty seven narrows claim one so they have to be within the scope of claim one despite whatever upper maximum limit may be implicitly exist and claim one if you look at the record at a twenty eight  that it wouldn't work that's new that's new one appeal and argument is not able  pretty successful both in terms of its reception in the the detection community if there is one and and also and in terms of just the the fact that if it succeeded where prior efforts the least it did better than some of the prior efforts some of the active detectives why why isn't the secondary considerations actually right about that because at the end of the day all that mr fairlie did was take a step of the our camera more limited prior camera and put a custom hydrocarbon filter in there and struck in time we can't run from that into the bork said prima is so powerful here that all this other stuff even though we've said repeatedly that's not the proper way to do the announcing well i think they did it simultaneously i don't think it came to that decision saying it's obvious and they own the secondary considerations in talking out of did that all the systems tested at the environ tests did that everybody tested had to that the detection limit they were looking for so that the hawk that the decoration advocates the little from the petroleum industry doesn't really match with the the secondary consideration were unable to overcome that but it seems to me that the more you it will lie on the strength the biasness and the the question that pops up and pops up in my mind all the time if that's the case was basically take pieces and parts of the prior art that were not really top being this combination product but in that case any time you have an obviousness case and you can wipe out poppy mean it in other words it's a circular argument the whole point is if you had to copy that then it's more likely that you couldn't pashley pick it out of the prior art at least not so  mr furey brought a business opportunity to where he was somebody out there who's using the old method of detecting gas he was the one out there who was familiar with the people in the industry who had business contacts and he came to us and said hey your camera you know i put this filter on here i can use my relationships and we can see if we can't do business with this industry so it was a new business opportunity for technology is a scone we started the argument awfully with with the acknowledgement that the case turns on the construction right and i'm interested in the construction of the travel leak how does the construction of the travel leak  talks about the type of components that you can use the invention of clay one for detecting leaks it and she explicitly says of column thirty one for you can look at whether or not you got a blow off valve leaking to your point filter would not wash out until you get to some larger upper limit right but what would be that upper limit well it have an intrinsic evidence of the figures and so well so it depends on what you're trying to image and i think the answer is  we really without doing testing we don't know we don't know it precisely what the upper limit we give me a rough estimate of what you think that rough roughly what would be the maximum the cover so with a very highly sensitive detector like the more limited when you get not very beyond the overlapping range it's not working more because that more limited is going to do sector it is very sensitive and it's going to see all those adjacent and it's going to come in and wash out the image remember when they were interested in the gases that you're outside the overlapping the overlapping area right now you're getting it for a red radiation that's coming in that's going to wash out what would otherwise be the image if the if the radiation that's coming in is coming in from gas in practice i'm sorry but that's the problem so your claim construction basically says there's an upper limit that's implied and the implied upper limit depends on whatever your purpose happens to be so how does one know what the claim really means if it depends on an individual users purpose right so with respect to the method claim since you're not going to infringe those until you started taking the steps method then you'll know what you're trying to inference for those who respect the apparatus claims we think that you have to do some testing and so that's what we would do if we were proving infringement in this record and it's what they failed to do in trying to make up their ability case i'm down to my last forty five seconds or so and so i guess i'll close with this what if there's a reason why that you look at all of the factors together including secondary considerations in hindsight this does that appear to be a simple substitution but in practice it was not and the fact that the entire well and gas industry