premier is your first person get it right today thank you morning on this may please the court this court should reverse the board's decision with respect to claims one through ten twelve to fifteen seventeen and eighteen of the three five seven patent for two reasons first the board improbably considered supplemental information submitted after the petition in coming to its decision with respect to these claims and second specifically with respect to claims four five and seventeen the board's decision did not have sufficient information in the record to substantiate so i said first point the board improperly considered information supplemental information that was provided by lindsay after outside of its petition that helps us and also kind of frames the issue for us so one thing from belgium was that we knew that if there is supplemental information that's provided one of the proper vehicles for addressing that would be a motion to exclude respond and say no this is what was in the petition what was in the petition was sufficient for upon the fashion case we've established patentability of the claims that's not what happened here what happened here was lindsay presented a paper a petition that already had holes in it simply said you're missing something here you're missing a motivation to combine you're missing the reasonable expectation of success that a person of ordinary skill in the are would have on combining these references then lindsay comes back and it response and does not say oh no it's not missing that it's in the petition here is where it is instead they say here is some more information that fits what you said you say is missing so for example the  respect to scott them piles so those two references the motivation to combine the two of them all that lindsey said in this petition is it would have been obvious to combine these a person of ordinary and still the are would have been motivated to combine these two and get enhanced portability and mobility they rely on dr rosenberg's declaration for that statement the only thing it says in dr rosenberg's declaration his initial declaration is it would have been easy for a person of ordinary skill in the art to combine the complex system of sky with the mobile terminal of pilots to arrive at the claim one for example the three five seven pad there's nothing to support that statement in his initial declaration and we can see that from the fact that after the mom filed his patent on a response and said you don't have enough information here you have not fixed established motivation to combine lin didn't serve a supplemental decoration which was initially filed but service supplemental declaration that was almost an admission that there were some things missing from that original petition what they could have done is said no here is how the petition establishes the motivation to combine here is how the potently petition establishes the information that we needed for a professional case they didn't do that instead they added supplemental information they added dr rosenberg's supplemental the correction and then his declaration with their reply where he provides more evidence as to why a person of ordinary skill in the art would be motivated to combine these references and it's important to remember that what the references are there we're talking about in scott you have a complex system for irrigation of golf courses and this system is using cad software that requires certain processing capabilities certain display capabilities to show that information also has a mobile terminal that i mean it goes just almost as far as to say it's a dumb terminal all we've got is showing a display with certain pieces of information but it requires a control system to be somewhere else it's an intermediary that the mobile terminal can send signals to said excuse me sent commands to and then the control system processes those commands and applies them to the irrigation system that we're talking about and in fact the mobile terminal would require they couldn't even handle standard h t m l they would need to use the web protocol to be formulate standard h t m l for that terminal to even be useful so now with those two references lindsay has to show and it's petition a motivation to combine those two to practice the claimed invention of these particular claims and belmont response to what lindsey monte did was you haven't done that you haven't shown us these specific grounds for why a person of ordinary skill in  would be motivated to combine these references and then tried under delta filed a third objections filed a motion to exclude the pows dr rosenberg and filed a motion for observation is the motivation there to that's not sufficient motivation to put them together you want to because we have to think about what is actually being taught by these two references right we don't just have any mobile device and pilots here we don't just have any smartphone like whatever you somebody may have in their pockets today it's the mobile terminal that's in piles here that requires this intermediary this control system that's awful way from the mobile terminal that with then allow this basically dumb terminal to send data to the control system to then control the irrigation equipment that device would not a person of ordinary skill in the art but at the time of the invention would not have the motivated to combine that device with this cad software from sky that has all of these particular who is it has all and it didn't do so so one damn and says hey you have failed to show in your petition a professional case of obviousness the correct response from lindsay would have been no we haven't here's why instead of what they did which was to provide this supplemental information without seeking relief from the court now with respect to the second issue specifically claims for five and seventeen there is a sufficient evidence in the record for the board to have made the decision that it made because with respect to claims for farm the petition does not include any information about emotion motivation the combined sky pilots and apps and then with claim seventeen the only statement that's in the petition is lindsay saying well claim seventeen is a method analogue of claim one that's not true we saw that lindsey and arthur rosenberg both conceded a claim seventeen is different from claim one at least because claim seventeen requires directly controlling from whatever the handheld devices the irrigation system so there can't be any kind of intermediary so there isn't any explanation in the petition as to why a person of ordinary skill in the art at this time would have taken the mobile terminal from which teaches the need for control system for an intermediary to deal directly control the kind of system that's an sca so using that kind of dumb terminal taking that information and transmitting that information to the system and applying in that way the only statement that we have in the petition is that seventeen is a method analogue of claim one we've already established claim one and therefore claim seventeen is invalid for the same reasons claim one that's not sufficient there should have been but wasn't a specific articulation of the grounds for why seventeen was invalid or and would have been obvious in light of these two references and for a motivation to combine these two references to practice specifically claim seventeen the same goes for claims for in claim file there needs to have been a specific articulation of the grounds for these two claims and there was a lindsay obviously was constrained by the page of limitations or word limitations in this petition and try to use them a corporation by reference but it never actually incorporates by reference any discussion about these three claims in particular and so for these reasons you are we asked the score to reverse the board decision with respect to claims one through ten twelve to fifteen and claim seventeen and eighteen are about home alone where were their helmet was mom isn't it correct that it change in the specification doesn't talk about the state shading changing one seventy eight so the changing of the shape of the goo in response to a change of the status is the shape of the actual gooey the border or the outline of the gooey itself and we know that because there's two different kinds of go is that referenced in the pattern under columns three and four you can see that there's textual gooey so changing the words would be changing the outer borders of the shape or there's a pictorial group good so it could be a circle with a line through it or it could be a circle that has a wedge cut out of there are trying or something like that so it's two different kinds it's different kinds of shapes that would show the status of the pattern in the type of equipment but in all those instances it has to be a guru that does off three of those things for claim eleven and the board stated that lindsay had not shown sufficient evidence to establish the untied ability of that claim you know as i reserve the rest of my time missed may it please the court this is a mill run case where petitioner brought forth a substantial evidence and argument in its petition patent owner replied with evidence from an expert and petitioner submitted reply evidence rebutting the evidence submitted in an owner's response and the board found that although that was proper under this court's precedent this just followed the ordinary pattern of trial in the rules that are five four five the patent office so there's nothing unusual in anything that occurred here turning to the first combination the board found that scott and payloads together invalidated all but four of the claims the board if you if you read carefully the final written decision based opinions on the prima fascia case entirely out of the evidence an argument that was submitted with the petition specifically the board found it was undeniable that scott had all of the limitations of the those claims except for a handheld device scott had a laptop that had gooey control doing interaction and control of irrigation equipment and that the only thing that was missing was the handheld and that tape i o c supplied the handheld device in the board found it was proper to combine pio c s which is from the same field of endeavor remotely controlling equipment in the field with scaf the board found in its final written decision that the motivation to combine could be found in the petition it specifically cited page thirty one in the petition for the motivation to combine it's a pacifically cited to the original rosenberg declaration of paragraphs fifty six to sixty one to find that they were same field of endeavor that the motivation to combine was that one of ordinary skill would have desired the increased portability and mobility found in pilot c as handheld device with the other functionality found in scott's laptop but it would be more portable and that would be the reason to make the improvements all of that was supported by substantial evidence the board found based on the original petition that there was a reasonable expectation to combine based upon the rosenberg declaration and specifically citing to paragraph fifty seven sixty one in the rosenberg declaration it also found not only did it credit rosenberg's testimony that it would be easy for one of ordinary scale to to utilize the monitor and control functions of sky on the handheld device of p l c but the board also referred to that specific teachings of  itself and also to the ames reference and found that all of those teachings carried the prima fascia case of obviousness all of that is substantial evidence the board filed this court's precedents and did not engage in improper hindsight the board did rely on the rosenberg reply declaration but only to address the arguments raised by their expert dr mercer from patent owners response declaration to address that argument and first noted that the standard was all wrong that was being argued you do not have to prove that one can bodily modify or put together two references and graft one on top of the other each reference is good for what it teaches under in re motet rosenberg pointed out in his reply declaration that he had not argued that you would try and port the cad software from scott he pointed out that he had argued that the monitor and control functions were able to be performed on pio c s and that that was the thrust of his original declaration and rosenberg provided in his in his reply declaration showed how dr mercer himself did introduce evidence that shows that the cell phones and p d f of the day prior to the application date of the patent were fully capable of performing the monitor and control functions so that evidence came in to rebut the position taken by patent owner that it isn't possible to bodily move scott on the pilot's seat and that's what was being responded to in reply it was proper reply evidence the board heard patton owner on the issue of whether the reply was proper patent owner filed a motion to exclude and the board determined that under its own regulations  pacifically section forty two twenty three b that it was entitle to receive reply evidence so long as that evidence was true reply to what patton the owner had submitted and the board made a careful determination that that is exactly what was in the rosenberg declaration patten owner in their principle brief did not even address the board's findings that the rosenbergs reply declaration was proper under forty two twenty three b and that should dispose of this issue entirely nor did patten own or attack new evidence and has observed that it would not be unusual for the reply evidence to support a prima fascia case but that does not answer the question of whether the reply evidence was necessary to the prima fascia case in the board's here found that the reply evidence was not necessary to the prima fascia case because when you read the decision the prima fascia case is made out entirely out of the petition and the original rosenberg declaration although there is argument by patent owner about the supplemental rosenberg declaration that was never relied upon by the board the board only notes in its final written decision that it has remembered it as ten twenty one and then never again in the entire final written decision is exhibit ten twenty one referred to so the supplemental rosenberg declaration is a non issue in this case turning to whether patent owner had adequate notice to respond to the the grounds asserted against claims for  claim eleven depends from claims ten and six back to claim one claim eleven requires the following things that the board found and construed first it requires that are shaped to identify particular types of irrigation equipment it requires goods that are shaped to show an operating irrigation pattern and in the key phrase it requires a change in response to the shape to change to a change in status of the irrigation equipment so if the status of the irrigation equipment changes there has to be a change in shape the face upon what the board found to be the facts below this court has to end this claim construction this court has  reversed the board on the cross appeal based upon a matter of law for first the board construed and it's not contested that claim eleven does not require the irrigation patterns to change it just requires a change in the shape of a beauty to reflect a change in operating irrigation status quo it's undisputed that scott shows the following in the board found this irrigation equipped irrigation equipment shape irrigation patterned shape to ease and changing the shape of the gooey to reflect a change in status so scott we propose we say expressly discloses the limitations found in claim one claim eleven under the board's construction of claim eleven based upon the findings by the board itself those facts put together coupled with the board's proper finding that pilot sia and scott were combinable mean that this claim should have been found to be obvious secondly during the original prosecution patent owner argued that claim eleven distinguished over the rim apps reference because absent of not show changing a change in the shape that satisfied claim a level so that is not showing a change in an irrigation pattern and you agree that is showing a change in irrigation equipment and patent owner argued during the original prosecution that supported claim levon well if that type of disclosure supports claim eleven in the specification that exchange type of expense disclosure in the scott reference which unquestionably shows irrigation equipment shape and the change in the irrigation equipment shape to a with a change of status if if it was support in the spec it has to be disclosure in the prior art and this court on that basis alone should reverse the board's finding that claim eleven is not obvious finally if the court were to find that plane that scotched and payload see it together don't show claim eleven circles for their irrigation patterns that's just the way they all operate their all circles the abstraction shows placing an x on a circle to indicate a change in status all of that is  correct your honor in the lower half of that figure on wet and then also for instance on dry shows shading only on one side of the cent a semicircle of that of the whole circle and so  the board was correct in most of its findings but urged when it failed to find the claim eleven was obvious in less there are other questions i'll reserve the rest of my time on this know as first i want to clarify my response to that question from earlier about the shading versus changing the shape the shading is what's claimed and claim twelve's a claim twelve talks about a change in color to reflect the discussion or argument was that there could be a circle with a line through it we would not which would not be just changing lines within the border or of a triangle with a checkerboard pattern over it which would also potentially be outside the border of  and that's something that lindsey conceded age eleven but it's reply brief that merely changing or changing lines within the border of a doing is not changing the shape of sentences this is on twenty three s i said a line through it i meant actually a line through it as in extending past the border or checkerboard pattern across that high med across the actual triangle such that it affects the outer border of the goo so just changing the shading within the lines as the board stated as lindsey has conceded is not sufficient to change the shape of the goo itself because it's the border is the outer border of each building they were most concerned about and it's where the reason joiner we ask this court to reverse the information because the pattern of a bit of the irrigation it could be that you have a circle for example that might extend past the normal place where you might put that circle for example if you want to change the irrigation pattern because you want the pivot to end up next to a service road that's on one end of the circle but extends beyond that if there's a particular section of the circle that you want to pass that has more such a more opportunity to irrigate that particular path there's a lot of reasons why you might have a pattern that extends beyond the outer border of the shape because it doesn't necessarily mean that just because a circle that's the circular pattern that's what we think of immediately but it could be any shape that would show the type the pattern and the status and that includes for example texas who is that might just have them written which is what's referenced in the bit in the  process thank you ron i think i really just want to address one issue which is the board is according to no creativity no ordinary creativity to want to ordinary skill when they reach the conclusions they've reach high unquestionably shows that you can have irrigation shaped equipment shift uys if you can have irrigation pattern shape buoys and that you can change the shape of a easy to indicate to the user a change in status of the equipment now but those three things together to say that one of ordinary skill in the art reading scott alone wouldn't arrive at the ability to extend an x beyond a circle instead of keeping an x within a circle accords no creativity whatsoever to one of ordinary skill that turns one of ordinary skill into an autom sky and that general uplift ability would mean that one of ordinary school would understand if i have an irrigation pattern shape gooey and i want to indicate some sort of change in status to the user i could do it with that one too and the board