obviousness combination and then finally the failure to properly consider u b s s objective and issue of non obviousness with the court's permission i'd like to start with lateral transfer as clean construction issue which is and then you seem to give that up in your reply brief you say that's not what we're contending and i'm not sure what you are contending could you look at the figure that you have a think forty two of your opening gr is where the the trap of the board has fallen into lateral is from the side of the patient is directly but try to answer my question even agree that lateral would be within ninety to forty five degrees as long as it's approaching from the patient side i'm not sure there's a particular number with the with the experts as testified about is that lateral is from the side was minor when i found out what that means in term of there's all sorts of testimony referring this to a clock and you know heat and what i'm asking is lateral ninety to forty five degrees it's certainly about the ninety degrees i'm not sure it goes as far as ninety but i'm not to be honest you're on i'm not sure that's that's necessary to reach to exclude the urban chain reference which is the reference that's being employed here anderson the question and this is something the board clearly struggled with they wanted a bright interpretation which again this is a hypothetical obviously is that all we need is the side of the patient but even that if that's the case there's no indication that open chain falls within the scope of this is his preferred approach right yes and what he's talking about this in the early labor twelve years where he's excess in the smile right yes that's the channel right so and his this figure were to be taken to scale if that were moved it would look about forty five degree angle but that's really i would submit that that is not the way people look at this in the yard the way people look at this in the yard is looking at what type of procedure open chains describing they're very explicitly describing the procedure as an entire abdominal puncture right describes when the patent is allowed well he describes it in the abstract he's referring to correct right so all so but from what angle from what aspect of the patient and how is he getting there again it's the open chain technique is introduced and described very explicitly as an interior method or entry or abdominal approach even if for the alternative no i would say that's not true your honor it's in that alternative would be saying is place ideally placed the puncture about the middle and the midline is the as you know you know about necessary here because you know this is something we mentioned the briefing this whole construction came up for the first time a final decision there was an agreed upon construction between the parties that lateral was an approach from the side so in that sense you were coming up with a brand new construction fact finding one way or the other what what's the matter with the ports construction lateral and read because it's it's based on a completely irrelevant piece of evidence their evidence is i any anything lateral to the to midline plane to any degree that's what they say in bold what it is that that is that the forty five degree instruction i was asking about are under the board's construction it wouldn't include a one degree suggests that one degree from the interior is a lot or all taken in context with what they say later and in the decision they refer to in and switch the term into your puncture it with about the midline very clearly in the context of claim one and we yet and this is a twenty six for example right at the bottom where they say in contrast as petitioner contends as discussed above claim one of the seven six pattern is not limited to the particular protein used in the x the procedure but instead encompasses any so it's traversing approach that is lateral to the midline to any degree or walk i don't quite understand saying that one degree or awfully and theory are would be allowed one degree off the midline they're saying lateral to the midline to any degree what do you understand the longer their interpretation under yes under their interpretation lateral to any degree relative to the midline that's how broad the construction i don't leave it that way but so far i would've thought they were on the construction and the the one in twenty six seems to be the clearest indication of what they're talking about and the basis if you think back of the bit of their basis for saying that it's understood it even further clarifies that this is precisely what they mean again they're referring to dr engines testimony about its patent where the patent is talking about placing a puncture along the mid line and if they're scoring moving it to the left and or right of that they can ask what are the words that you use or aspect of the body that is a construction that is reasonable to give you would know ill into the construction any reference to what portion of the so us needs to be way that in things that are defined as being defensive so if if if the board were to adopt a construction and said from the patient's side that's what we mean by laughable then in applying that construction to column five in you would explain what about that sentence that begins alternatively about why that doesn't teach that well that would be the same thing as saying you know judge sharana sitting lateral to judge dyke and then it's asserting that a lateral surgical approach would then be defined as a surgical approach of lateral and judge d that doesn't make any sense because it's a completely different go on to let me just try to explain better what i was trying to separate let's assume though the board said claim construction lateral me as from the patient's side ok now we have that's not the alternative his preferred approach is and the theory or what he says alternatively you can do it laterally he uses the same word but you're paranoid but lateral to what i would say the correct interpretation the the seven six seven is different and lateral as used by open chain in that contrast salute there are different contexts and there are different points of reference in the context of the patent and the conventional usage of the term and referring to a surgical approach the point of reference anatomical aspects of the patient's body the side of the body the front of the body the back of the body in the context of open chain their point of reference is place the puncture here about the midline if that's not you're used up your tom will give you two minutes or a bottle says which is lateral to any degree as compared to an anterior posture that's correct and the more took that from open chains testimony talking about what latter would mean lateral is that seems to me to be questionable on the other hand if they were seen ninety to forty five is lateral that would seem to be a reasonable construction but i don't i don't think the other and still under your construction be considered life or if it's your response that i think one does depend on figure eight because when the board is looking at trance so s is also part of that it's a lateral trance so it's and you can't be just one degree to the mid approach that over chain was using was a seven o'clock eight o'clock approach through the use in the clock rather than degrees and so the evidence before the board was talking in these bigger chunks of approaches and that is what the board was trying to get at with any degree any degree clues what we were talking about what we were taught wasn't what the party stipulated to as the construction rect and that was used throughout the proceeding in including the institution its construction and was there are experts testimony was that direct lateral was through the side of the patient not just lateral so i'm not sure actually if there was an agreement between the parties on degree is something that never showed up until the final written decision right i believe that's correct to do that we're looking to the specifications and find a definition of lateral in the specification lateral and far lateral poster different terms were used and i think what's important is in every case where they want to be specific they say i have an adjective by the lateral when they say lateral it needs riley lateral and that is what the over in chain reference teach as  thirty got going or guess and i the board didn't use those words and i can't put those words in the boards decision but that was what the testimony that over ten was getting was that when he was doing his approach including the pros that went to the train so i was seven and eight o'clock which is not direct lateral it's also not just one degree off the mid line so that the that that it's a pretty close to that i mean he wasn't he was not the way he was describing it is that sometimes you can't go straight in and you have to to broaden it out because you you might have to bypass something or there might be some nerve or some other thing that you might get and so you go slightly you move slightly but it is not still it is not a lateral surgery lateral approach to the patients well his alternate or his alternative approach does say that he's avoiding the abdomen and it's their approach is lateral and that there's no limitation on that of anterior lateral or that it's not me i think is preferred by the mets are off the mid line and that's a figure eight shows going to take that one sentence as saying i'm avoiding the abdomen altogether i'm it goes through thirty two and the last part of that starting at thirty is talking about the entry into the displaced is lateral right but if a judge like just read that it says it he had seven o'clock and eight o'clock approaches the end those approaches or did go or some of them went through that would have gone through the trance so as if you look at figure eight which is the preferred embodiment it's got when you're talking about lateral going t the trance so as it isn't any degree at the midline it's got to be referring to that eight o'clock approach which is lateral in the general the can i ask you this  this open shannon patent or the record tell us about uses either in this patent or more generally about the meaning of abdomen is the abdomen go all the way around to the side direct lateral he wasn't going through the main body of the so it's muscle and therefore the over chain didn't teach the trends the lateral trend so it's approach that they're claiming when they are saying the construction is not direct lateral but i'm not sure how much more lateral there their definition of coming through the side really gives them sense it seems that the testimony of medtronic sexperts testimony that coming in from the side direct lateral approach was coming in from the patient's side so to the cent they're saying it's coming in from the side that seems to be the direct latter approach the stent they're trying to say that there's some sort of difference in lateral from the body versus lateral to the distaste i'm not exactly sure what testimony supports that in over jean's deposition he did say that that he was coming in and he was an it and he called it an interior  lateral approach seven o'clock or eight o'clock and that that sometimes transfers portions of their so west muscle in that approach and i think that's i mean that's what he's talking he's clearly an interior lateral but there's no limitation in his pattern that it's l there means anything of the middle in that this was a real light on the board in this context it once again shows as i think all the testimony or shows is that lateral is used radl to include any i mean any degree of one seven o'clock in the clock off the midline encompasses lateral and when you want to be specific about what lateral you mean you touch you say something like  testimony suggestion of lateralus brought it respectfully just rw that is none of the testimony suggests that lateral approach the spine is broad the relevant testimony is all indicating that in the context of referring to the type of surgery lateral means from the side interior means from the approach straight from the front posters from the back the specification which should be the first off in any of this analysis divides the world's world into three sections lateral interior and post your own when she was even in his preferred approach is not exactly  as judge a mallet points out you know there's somewhat of a coon if you will but it's there is the front of the body now this issue of you where exactly the bright line as i started this discussion with is not necessary to resolve the issue in dispute the issue in dispute is does the interior approach of open chain wherever they place their power their puncture in their interior approach does that qualify as an approach from the side of the body and the answer is unequivocal  and there is no dispute anywhere in the record about open chain being an engineer approach it says it explicitly in the reference multiple times it's always talking about the abdominal wall even in this all of the testimony is indicating that nothing other than what we already know and that is in the context of used when that's when the term lateral referring to a type of surgery is returning to the aspect the patient the