is based on an amalgamation of four different references without any reasonable motivation to combine those references or the cost branch kelleher and chorus references motivation to combine in this case has been a challenge from the beginning of the proceeding back in two thousand and twelve and has been addressed a number of times both examined by the board in this appeal challenges the board's most recent decision there are a number of issues raised in the briefing and it like to address subjective first of questions one of the issues in particular where there seems to be no remaining dispute or at least some agreement and that is on the issue of whether the board erred in concluding that a person opinion on a different patent but very very closely related that is an appropriate construction and i don't think that resolves all the issues in the case that relate to the claim construction but that is a requires a path an operative cord or through the nerve rich portion of the so as muscle or not necessarily so as long as it the court or goes through some portion of the soil as muscle then that's fine well ok so that nerve rich issue came up in the other proceeding for particular reason and i'm sure that's why you're asking or i see you arguing some of that here too which is why i'm just trying to drill down and understand what's going on here right so i don't think it's necessary for this court to reach that issue and we're not asking the court to read that and it's certainly not necessary to resolve the issues at play in the decision in front of us and the main issue there there is this undisputedly broad claim construction of his he used throughout the part throughout the board's decision and what used in one instance or in one way to wipe out the examiners factual findings on secondary consideration so here we have a reference cosman that teaches creating an operative court out court or through  so as muscle from the lateral side so and then you want to so you're not arguing that part part portion of the boards on patentability decision you're arguing why in your view it would not be obvious to have some kind of nerve monitor to be used with cost means practice of going through the so us muscle out early is that right well it's  decision other than other than fine consistent with this court's previous decision that it's unreasonably brought these other issues that you're touching on are hard to answer mainly because it's it's hard to see from the decision to be honest how exactly that construction in fact in the board's analysis of the prior art i don't think it's necessary to your reach that issue because the main criticism and in our view one of the main problems with the prior combination is the motivation to combine and there simply is no if we were if we were to get to that issue i know there is some evidence and argument submitted in the record below about you know a terminology as a trance so as procedure it gets a little dicey i think it's you know i think it is not something this court needs to wrestle with to be honest unless we disagree with you on motivation well there are multiple reasons for motivation but i mean unless you let's you disagree with me with me on motivation there's still the issue of what happened what did disclaim construction do you know the meaning of lateral and lateral transfer was path i didn't see it do anything that would displace what the board said in this case about trans so as it's really more of just about the scope of lateral and it seems like the court already last year refined it constrictive the scope of lateral and that would be the only thing that would need to be touched up here with the board's construction here and i don't see how that well to the original point there even if there if that this court disagreed and found a prime aphasia case it still does in fact the opinion because how does that impact considerations of objective in disha right remember that and the board here wiped out the examiner's consideration of objective initiative based on this claim construction and that is primarily it was the primary purpose of the board combine and particularly on this on the board's factual findings and reasons why the kelleher nerve monitoring system would allegedly be employed in the cost of an open surgical procedure in the sense that the board's reasoning in this case was very clear and very specific and ordered specifically found that person of ordinary skill would have used the kelleher nerve monitoring system with that among other things as explained in the blue brief at just forty two through forty six is that this is a theory that was never raised by the requestor it has no supporting evidence anywhere in the record and is something that your theory raised in your blue brief that this nerve monitor from caliber is not able to monitor these two particular nerves was not anything that you have evidence to support but i thought that's what i saw in the green brief i think that they argued incorrectly that there is a lack of evidence on on some things and that as we pointed out in our reply is not true where in the record is there a statement i guess from an expert of yours that would say definitively that when it comes to these nerves that theory was never raised by the requestor was never constructed by the examiner this is something that showed up for the very first time in the board's final decision it's pure conjecture so from that standpoint there is no  don't have the opportunity to do that it certainly is a new ground but we're we don't believe this is something that specifically warrants or who we would prefer we think that the court can reach this decision rather than every man doing at on the basis that they're simply there's nothing in the record honest way so it's a factual finding that simply lacks substantial evidence if we were to go back and review and there's nothing f this is not the killer system is not a system that would monitor these particular types of nerves are identified in the grey's anatomy reference which is of record i can find a say for you i just i thought i understood the board's rationale to be repeating what the board said in its original voice didn't it which was basically all these references prior references which talk about doing spinal surgeries you want to make sure the tools that you're putting into the body don't touch any nerves and so if you want to have nerve monitor connected to those tools to make sure that you know to avoid the nerves as the tools are getting closer to those nerves and that would be an obvious thing to do for any spinal surgery including cost women's trend so as pathway spinal surgery  i guess i'm wondering what's wrong with that basic rationale ok so in that original rationale you know look what they say they specifically say that their conclusion they draw from that initial discussion is that this is therefore allegedly simply using known methods for their established function and so they did say that in their first decision and this final decision that a lot quoted it in this decision exactly and then they go on to elaborate on what they believe  function of kelleher and this deep monitoring these two types of nerves is what they identify as the established function right this is the the point of law they're trying to fit this analysis into known things for their  surgery there are just nerves all over the place that you have to be very sensitive there are specific nerves in specific places that weren't being sensitive about in particular and it was known that there were to that that's a factual finding the board made so cosman can be performed without nerve monitoring safely then it begs the question what what necessitates what motivates employing a completely even more complicated  responding to was that one of the new base of experts that apparently questioned whether tell her there's nerve monitoring technology croyde could actually deal with those two nerves running outside the inside the muscle or outside the so as muscle we're talking about the same the same plexus of nerves and kelleher business every indication that it can and that it can navigate around nerves whether they're inside the muscle or outside is it true  that the board's decision that's on review now is the first time anywhere where anybody including the board raised the idea of using  argue that nor did the exam then obviously the team didn't examine found the claims patent will nor did the board in the initial decision and articulate that theory of how the nerve monitor would be used so i'm just wondering is it monitors i don't think it's the first time because i think i believe the board was responding to an argument that you could easily over one of its experts actually made and it was just it was just a response to that argument and with respect to th portion of the argument kelleher is already in the field of spinal surgery and kelleher uses the same technology that's being claimed in this right here which is to use electrical charges to going on with inner monitoring technology i'm trying to figure out what to do about the other side's new bases argument that well it never had a chance to really consider rebut this argument that one would use kelleher's nerve monitor to monitor these two nerves and if it had had that chance to respond to it it would have put on  evidence that kelleher's nerve monitor for whatever reason is incapable scientifically to monitor these two specific nerves and so i'm not sure what to do with that it's either something that they forfeited in wave because it was in play and that they for whatever reason chose not to pursue it or it was sprung on them at the last minute in the and therefore it seems like they didn't have an opportunity to respond to something because it was sprung on them in the last minute which way am i supposed to think about this well your honor inside so i explained earlier i don't think it was sprung on them because i think the board was this response to an argument that they that they themselves made and it was the same really just the same rationale that the board applied with respect to the remainder of the nerves themselves running through the spinal surgery any spinal surgery you need to stay away from the nerves touching the nerves is a no no and so that's why there is these prior art references that pop about using a nerve monitor with spinal surgeries it be obvious likewise to use that and use nerve monitors in a spinal surgery taking a lateral trend so as approach thereby rendering the claim obvious in addition when it comes to these two specific nerves rationales i think they're all wrapped up in the same rationale and with respect to those two nerves it was really a relatively minor point i would also point out that this pattern itself doesn't actually is even narrow enough to really raise that issue significantly specifically a truck trucks the method that claims to what's in the the products sold by them under the exile left name doesn't it it does is even more specific if you look at everything in the record and i think that the sort of the big consideration that counterbalances the clean shirt and surgical guidance that we have to look at it through the overlapping nature of this of the products in this field it works but we're in a different landscape when when we're only talking about one party and my time is up but i would say in addition to that even though even if the co proceedings the classic oversample cases cited and there certainly should be an instance of where there's presumption of nexus in this case and there really shouldn't be any presumption of you know some sort of you know you keep the reluctance to consider secondary considerations or objective evidence this is in some ways the most important type of evidence they can be submitted in these cases because precisely because it's objective it's not controlled by by the lawyers or the parties per se it's it's objective in the sense that nobody's controlling yet and it you know and what comes with that is the fact that since nobody's controlling it and lawyers aren't scripting at it have you know if you take it with understand the guy just so i understand it all the tools are illustrated in the guide are used in the x lift procedure which corresponds to the the sell them all of them just for this trans so as spinal procedure or are some of those items also sold and used reluctant to say i don't remember every seems i don't like the nerve monitor whatever that thing is called by name is that it is an invasive cell that to people to be used just for the lateral trend so so all the tools are they all basically sold together is that how it works or are some of them sort of off the shelf item stand alone packages that people can run into an invasive and just buy for whatever purpose it  use or are they all used as a package and always sold as a package and therefore you always know that whenever you have sales of your retractors history or die later system or your nerve monitors we can always know that they're always going to be used for this lateral trance so as surgical procedure the company is certainly able to track the sales of those components and usage effects absolutely minutes so is that  the data reflects though the actual records that this the actual sales techniques but the products that new face of the selling that the products that are part of the x live package are only used for the excellent package so that when every you have sales broken out for your tractors your dilators your nerve monitors base of can stand behind those records of sales and say all of these sales are for the louder old trend so as surgeries that people use these products for and not for anything else so that's why all of the commercial s you so back to the nerve monitoring in the basis of the board's decision i just want to you respectfully correct a couple things i always appreciate how the directors be able to come in on these cases but there are some factual issues that that aren't quite correct in terms of the record i would i would disagree that monitoring of these two nerves was a relatively minor point i think the record is clear on  the board's decision on pages twelve and eight thirteen that this was a critical finding of the board thank you argued very loudly quite frankly that east to nerves are all that need to be and unquestionably this was something that did come up in the first time the final decision in the record is very clear on that nobody would have me and dr lieberman the expert on the other side ever hard time believing would have made this argument even had been contemplated but it wasn't made so that point is beyond dispute and then finally it really critical aspect of this i actually appreciated my friend me the qualification was referring to kell concern i have is you have experts and decorations and there's also background information that all say the same thing which is going through the  dangerous there's a lot of nerves and in so direct words i wouldn't be inclined to do that because of all the nerves and so if you're going to do it trance so as a procedure like emphasize that the need for specificity here prevail right there's a need for for specificity in these types of analyses and that is directly on point with what's going on here do you need  us that that is when you're going through the nerve rich region there is extensive evidence that cost man was primarily seeking to avoid the so is by manually retracting at and only in the events where it can be completely rechecked recheck was the surgeon bluntly dissecting with his fingers the outer fibers of the muscle and there's testimony that those outer fibers are not a nerve rich region and that's why nerve damage wasn't  of significant concern and the board made the finding that it referenced earlier consistent with that point so in that surgery in the primary reference of coughing which is being sought to be modified nerve damage is not of it is not of concern  monitoring was not necessary for a safe procedure so again it begs comes back to the question why would a person we're going to kill you motivated to use this particular surgery in cosman that's this particular modern approach of kill her again there is no need for nerve monitoring if you're thinking about the nerves through the so as that's why it was i agree with that my friend here that if the poor pivoted in response to a new base of the argument but they something new and that's these two other nerves once they made that pivot they ran into technical errors on on whether that would be performed in a lack of evidence so thank you and thank you for the