threaded holes is obvious the board how however one would not be motivated to make all of the holes threaded and the threading of all the holes in the head portion is the sole basis for patentability to issue a question that doesn't pertain directly to the to the legal hit issue here but as a background matter may be helpful i'm having a hard time understanding the practical import listen let me just sort of cut to the chase here on this i mean is is it the case that in your view you could avoid any problem at least of future infringement but usually drilling a hole and dreaded in the head portion of your device which otherwise has all threaded holes because that sounds like it just turns into could not correct now why why are we having this huge fight i mean there on the face of the point is that an accurate statement of the problem here that is one of many in fact i believe in as any patent case we have to have an understanding of what the claimed invention is for we can proceed we have major differences in what the claimed invention as i believe their reading and functionality requirements such as compression i believe their reading and many things into the claim that are just simply not there and the easiest way to know that i can answer your question so easily  that is definite their position yes what's your response to that well i want as a it's not always necessary but even assuming it's necessary why can't one get compression with some threads in the hole that's what it comes down to they are there's nothing special about connel what well what i was trying to say is that claim to back the claim invention who says the claim invention is limited to a conjurer budgets plate the claim invention is to any plate for it said what they're doing is they're reading in other characteristics as necessary such as compression such as a condom the boxes plate as if the claim invention is much more narrow than it really is the claim invention is broad and the only point the patentability art would not shy away from trying to gain compression having one in one thread because that's exactly what the prior art did and in fact the patent self explains that it was known that game compression with had a little bit of disagreement on the degree to which that mission could be treated as a mission against the there's a problem here in one sense if we were to say that the claims do include compression requirement in the understand correctly the six eighty six and these other pieces a prior art not being new prior art or at least the sixty six if not in prior can't be used as a ground of rejection mike correct about that yes as long as you appreciate that when you say ground for rejection you mean as far as modifying the device to come up with the claimed invention that is correct however we did not use and this is the misunderstanding with the board and you can read it in the hearing we were using six eighty six and the d r p and the l r p to respond to the argument in operability we were using those references to modify the device we were saying that one would not shy away from threats unable to really respond to it is ok to go beyond the references if you are responding or showing simply the motivation to combine the primary and secondary references and that's what we did there the but in order to do that in order to say that they make many procedural arguments for you to disregard they actually ask you to disregard the sixty six l r p the d r p they need to have you disregard the references or to pretend we're relying on those references to modify the combination no we're relying on those references to read but the argument in operability in operability they say would not in compression but they somehow claim that's another one of the claims instruction problems that are hacks are redefining invention to act as if the invention includes a specialized group was not even the disclosure of a specialized group that's another claim constructed so in order to respond to the that you could use a standard screw in a threaded hole that's a factual question it seems to me in which we owe them substantial evidence deference now the principal  authority on which synthesis relies is the turin declaration and in particular i guess it's eighty four forty three and forty four where t distortion of the thread and breakage which will create pieces of metal presumably that will be injurious to the patient your response for that welcome the few responses goes away that's one of my restarts that's correct that's one response but did it ever occur how since he's in the same convention overcame that problem there's nothing in the pattern overcoming that they claim to partial or full so their claim invention claims a very the vice that turns as an operable or as problems that's another he's always contrary to the pattern contrary to the claim he's also completely unaware of the k s r standard he assumes no creativity no imagination no help from one of stealing the art and completely ignoring that all the references do you notice all the references are within a twelve month period and then a year later with the filing it's a natural progression to simply go from covert which is in one thousand seven the other references nin ety seven ninety seven ninety eight they file a ninety nine natural progression to see if you can make all the holes the same to give the doctor the option of decide which hole which we put in which hole and i can reserve with little time i have left notion that there is a motivation to combine here because it would be inoperable yes your honor and let me focus just court because i think the whole argument you just heard is not focused on what this appeal relates to this appeal is from the inner parties or exam and under this court's ruling in belton the question presented is the substantial new question that was raised under thirty five u s c section three one one that's the requesters request and as adopted by t just under section three one two if you go back and look at the requesters request in this case what it is limited to the hospital being use with the condo your and your contention is they can't use the six eighty six and these two other pieces of priority because they were part of the request they can not use it as a secondary reference they can use it to point as a motivation of one mind while one might want to use your own as gluing that's what they're using it for because you got me that compression isn't the claim requirement and you're relying on compression to refute motivation and they're using the sixty six to respond exactly in the in the board's law that there's nothing wrong with it in fact the board looked at it and analyze again i mean i just don't understand i mean with there's no compression requirement here correct the idea is that haas shows the use of at least partially compression because it only allows locking scripts right i agree with you except you made it sound as a pos to be partially threaded hostas fully threaded well so what what's the point like you're you're just talking right into the face of the not only the disclosure of six eighty six but also your own patents description of sixty six as being partially threaded holes i mean i i guess you know if technically you survive this i can't imagine what you are going to say in the infringement proceedings when somebody graces the sixty six which obviously will be done may not contain the victim or relationship under physiological loads so those plates that use those types of holes were not under physiological loads the consular buttressed plates that they're using for their lesson our argument is that if you go back and look at the request for re examination this entire case is based on one combination is the primary references with the hospital which is fully conical and fully threaded the board analyzed that issue that's what the board analyzed and the words said you would not make that combination because you need compression in the hair of that plate for it to work ok let me let me see if i understand what it is exactly how it is that you solved the problem that the sixty six did not suff right now in your brief you make an allusion to a specialized screw is that your solution to the problem that the sixty six did not fall correct well but you don't have a claim to a specialized school if you if a specialized school to keep this invention it seems to me at minimum you have the best model problem right there is a screw it's nowhere in the patent and i can see it certainly not in the claims right where ace invention here no one has put together a kinder buttress play that had all the had holes thread that no one has done it because there was no way prior to the date of our invention to get compression and use that kind of it is our position that once we were the first ones to develop a way to use a plate that was had all the heads and all the holes in the head so we threaded we were allowed to come aimed at that plate with or without so again it's it's a motivation question you're saying there's no motivation without the specialized screen without compression but then it seems to me that you can use the sixty six in this prior art to take the other side of the motivation issue into say yes there's a motivation and it's provided these other references i have to answer your own are what is procedural the six eighty six is not a secondary threads say ninety five percent up the depth of the hole or if you have threads ninety five percent around one if it is designed to work with a fully threaded hole how did you solve what is about this screw that solves the problem that dr turn pointed out with using a standard screw head with a fully threaded hole the standard screw used w that it is engaging the threads without itself having threads it comes down and sits in against the hole but because the conical shape is the same as the screw at the screw hole in the threads and there it is not disrupt those groups are designed not to push them aside and misread them as you would with a standard screw well if you have a conical head and you're going into a conical hole that is threaded and you tighten it down nice and tight to really give it a lot of torque you're going to get it unless you've got the hardest metal of an earth you're going to be distorting the metal on those on those threads particularly the threads are very fine i  and the congress threading in the hole they don't have that issue but the primary problem the doctor turned not in that regard was that the standard screw sits too high above the plate and that is what the board agrees and that was the fight the factual finding  with the countersign top so it doesn't even show that you would use a standard compression screw in hospice hole in the board found that as a matter of fact as i was saying the patent office are our view on this case is that it all comes down to the board's decision that a skilled artisan would not have taken all the holes the pot put them onto  did require compression so whether or not i don't get the compression into the point i don't understand that claims don't say anything about using compression screws in the head portion doesn't say anything about justification said respectfully your honor i think that when really king at compression the claim it's sort of leading us down the wrong path the only opening but stick with my question you may want to argue this differently what's the basis for for why is it part of the twenty because you can look in the written description for an apparatus playing an instrument what its function is and that is partly to punch him into the quantum i wouldn't go so far as to say that case ninety eight twenty two twenty two without the use of the specialized screw how can that be true threaded holes would not allow the plate to be used for compression which is the matter that is described how can it be that they managed to do that without the alliance on some kind of other inventive feature like a specialized screw will they found a way to do it using a specialized screw and they got a patent on something that didn't exist in the prior art which is the bone in from the path of perspective that the substantial evidence you know they can write they can bring in all the comments and all the other evidence they have but they actually have no evidence that what dr turned said was that the board with unreasonable for relying on that i think what they're trying to do is get the court to really weigh all the evidence and what happens below but that job is  board is the fact finders are the ones that look at all the evidence and they make a call now looking at all this afresh you know pan office agrees that this is probably a case that's very close to the line and reasonable minds might disagree was to create compression and to be used as a fracture or reduction aid they found at the time of the invention the way that the skilled artists and the surgeons created compression was that they used a standard compression screw and they screwed them into an underrated hole they also found that there were at the time of invention there was no way to create compression in in hospital and then they decided that because of that there would be no  really falls under the umbrella of teaching away and what do you what do you make of the sixty six patent in terms of what a skilled artisan would know about using non threaded screws in threaded holes or partially matter of fact if you try to use a complete a regular compression screw in the holes of hot which were conical shape it would fit too far on how you would have so these bones go in your body and they  band and if you had it too high up it would cause problems and i think but if you just chopped off the head and made your flies its groove which there are many up in this world then you're done with that and i think the problem is that you can buy true isn't as a matter of simple elementary mechanics respectfully on your honor this is a specialized medical device and when and you know we might think it's common sense to change testified and you accuse the sergeant who testifies that you know the geometry of these holes are very important you wouldn't willy nilly go around trying to change the geometry when you have something that's going in the body it can cause a lot of the centerpiece has gone with the specialized screw and i want to address that the specialized screw issue isn't even in the disclosure so it's not only not a claim that we all seem to be in agreement i want to make a very safe secure one well but nothing further i have a question for you do it we seem to be at a sharp disagreement over what uses can be made of the sixty six and for me at least that's an we're doing something even more not and that is we're responding to an argument that they made that somehow would become an operable and some worse then no it's not an operable and we came back with the patent itself that there  any doubt about using another replicas not only are we using l r p of your view but that the subs of the six eighty six and so i think you are allowed to use the patent itself regardless of the case law to show that the board's decision contrary to the on emissions the patent itself six eighty six and mission which you have to reconcile if you're going to have an opinion of any rational basis it's not rational so the cases i have they had to put