and i'd like to begin with the two central undisputed facts of this case st it's undisputed that neumeier discloses a mode of having the same hydraulic arrangement shown in figure one of the three hundred and nine patent with four way positive coupling between four  identically design lifting cylinders the board found this and work and doesn't distribute it's also undisputed that the hydraulic arrangement of figure one assuming you don't add anything to it or modify it results in the four sided stability pattern of figure seven with the only possible exception being minor unavoidable deviations again working admits this in a thread brief and it's expert emitted at his deposition basically the arrangement of figure one result in the stability pattern of figure seven and if i could ask your honour's to please refer to appendix page five hundred and sixty one i want to make sure that this important admission of their expert does not get lost in the shuffle or overlooked on the left sixty one is figure one of the patent workings expert at his deposition was asked to identify the midpoints between the wheels and then connect them to form a four sided diamond and he did so he was then asked if figure one will result in that four sided stability pattern and he said yes it would assuming you don't add any components to it he was then asked to figure one can result in any other shape than that and he said no again assuming you don't add any components to it so that was caterpillars inherently argument in a nutshell neumeier discloses the hydraulic arrangement of figure one which necessarily results in the four sided stability pattern of figure seven  dimension being located midway between the front and the rear wheels contrary to the board's finding this evidence is highly probative of inherent see and contrast there's no substantial evidence supporting the opposite conclusion that a structure that's adenike will figure one in every material respect and operates exactly as the pattern described for figure one can somehow result in a stability pattern substantially different than figure seven  it is more complicated than the following we just don't have the information as you did not put on the proof about the actual distances involved and the central of the or off central id of the milling cylinder therefore there's just a failure of proof that this line falls into that footprint i'm happy to address that your honor the problem on the footprint limitation is it's not simple it's not as simple as that the problem is that the board applied the wrong legal standard and i'd like to explain so if you would just accept for the i've skipping a few things here to address your question but you know we argued that neumeier as a single reference establishes the shape of the of the pattern including the widest transverse dimension located midway between the wheels or caterpillars at that point this additional requirement that the that the footprint of the working rotor overlaps that  trant dimension we argued that as a matter of obviousness not inherently now the board of knowledge in this is the important part the board of knowledge that swisher discloses a road are located about in the middle between the front and the rear caterpillars but more centrally between the front and the rear wheels were caterpillars so the board found that it was obvious to center the rotor and swisher centrally between the front and the rear wheels or caterpillars working doesn't dispute that finding on appeal that finding is l of the case but for the footprint limitation the board applied a different standard and that's where we believe there's a legal air the board applied inherently principles and found that the drawings and swisher don't establish the rotor in sufficient detail  for caterpillar to carry its burden but remember the board had already found that it was obvious to locate the rotor centrally between the front and the rear caterpillars that's claims twenty one dollars thirty three cents undisputed finding of the board so it's clear that the board applied a different standard off to this footprint requirement the board said that our burden was to show that swisher necessarily overlaps the widest transverse dimension and it repeatedly emphasized that mere possibilities and approximations aren't enough those are inhere i did did you argue some kind of obviousness theory not dependent on some sort of inherent the notion for the claims that are now it's you yes your honor we presented human as a as a single reference inherently for neumeier for the shape and then for the footprint we argued that it would be obvious i would point for instance i mean you can look at our o board specifically found that figure one wasn't persuasive because it wasn't drunk scale and found that that it did not credit the testimony from your experts so i mean how how is that a legal  because the board when they said we don't think there's enough precision and figure well no i actually relied on all the figures of swisher you're higher but the board you know said there's not enough precision in these figures for us to know exactly where the rotor is located and yet at the same time it found that it was obvious to put it in the middle that's a specific finding the the the board made for flame twenty one dollars thirty three cents so that shows you that it was applying a different standard to the footprint requirement it was  requiring us to show the footprint requirement with more precision than mere obviousness and we believe that's where the error is we don't we shouldn't be required to show that the footprint requirement is inherent it only needs to be obvious  swisher excuse me if neumeier discloses every single aspect of figure one of the three hundred and nine patent and operates exactly the same way as figured one of the three and a patent which the board found and work in doesn't dispute and we sho testimony that figure one of the three hundred and nine patent yields figure seven which has the widest transverse dimension midway between the wheels at that point combining swisher neumeyer all you have to show is that it was obvious to put the rotor midway between the rear and the front wheels which we showed and by the way that's exactly what the patent teaches so we show that it was obvious and swisher to do exactly what the three and i pad and teaches which is the position the rotor midway between the front and the rear caterpillars so that it overlaps that widest transverse dimension so we believe the error here is that the board applied and herons the principles it essentially treated the footprint limitation like the like the limitation in part pharmaceuticals where it needed to be proven by inherent obviousness because the far part pharmaceuticals that particular limitation didn't exist in any single reference either expressly or inherently but the correct standard here is the one set forth in enright n where one limitation is shown through single reference inherent c and the remaining limitations are taught or reasonably suggested by a nd reference we believe that's the situation here neumeier inherently discloses the shape which is figure seven including the that caterpillar failed to show that the stability pattern the swisher noob neumeier combination was inherently four sided on the facts caterpillar failed to show the inherent location of the largest transverse dimension of the stability pattern in the swis neumeier combination and caterpillar failed to show that the widest transverse dimension of the stability pattern at that inherent location falls within a footprint of the working roller in the combined machine caterpillar needed all d three to prevail catapult your honor caterpillar st of all the board did not hold caterpillar to an inherent c standard when it addressed the footprint of switchers rotor in fact caterpillars evidence relying on figures one and three from swisher as you pointed out judge there is nothing in those figures that shows where the rotor actually is nothing in the record supports caterpillars allegation of the board appeared to apply a heightened in inherently standard for the location of switchers road or the rotor itself isn't even visible in any of figures one through three well westen you point to me where the board a dressed swisher in the context of an obvious nist type analysis yes your honor that's in the appendix on pages fifty three to fifty five and if we go caterpillars arguments regarding switchers ro met its burden i'm not sure that i used the term obviousness but it evaluated caterpillars evidence and its lack thereof through the lens of a traditional obviousness analysis and reach the finding that it simply didn't caterpillar simply didn't carry its burden because it relied on figures that were a not drawn to scale and b don't even show the working rotor another problem with caterpillars evidence that berkun pointed out was the caterpillar another thing you're honest about the claims in general caterpillar likes to focus on the term footprint and call it the footprint limitation but really that limitation is the whole claim says has a four sided stability pattern having a widest transverse dimension transverse to the fore direction of the chassis which widest transverse dimension falls within a footprint of the working roller or rotor so you need two things for that nd part of the limitation need the widest transverse dimension falling within a footprint of the working roller rotor and if we could just go to appendix five hundred and sixty one where a caterpillar took you earlier and a drawing that was made by keys there that is not proof of the widest transverse dimension in that deposition dr lumpy was asked to draw a midpoint between the wheels and to draw a line intersecting the widest transverse points there that is not evidence of the widest transverse dimension as an inherent principle he was simply just connecting dots in that exercise there and caterpillar simply reply reprises evidence that the board considered and rejected on the facts also the board noted that mr leyva says opinion testimony was simply unsupported at appendix fifty five dollars the board said petitioners evidence essential to the opinion testimony of mr lay this is unsupported by proto of facts or data and indeed mr latest caterpillars expert in his declaration did little more than just parrot caterpillar petition and offered no underlying evidence of the claim shape or location of the stability pattern that was known or understood in the art prior or otherwise all he did was attempt to use the three hundred and nine patent against itself which this  cautions is inappropriate especially in an obviousness analysis and as i mentioned the board again it appendix fifty concluded this opinion testimony is unsupported by any facts or data it provides no analysis as to why i the rotor was arranged between the front and rear legs and that isn't enough to get us here to the limitations at issue in claims seventeen and twenty nine and they're dependent  mire that says nothing about where the widest transverse dimension would be so caterpillar simply fails there there doesn't have anything to do necessarily with the middle of the machine the midpoint of the machine and caterpillar make this false equivalence between the center of gravity and the midpoint and it simply just isn't true that swisher provides any more detail about its figures than that what i said on the point of where the rotor is actually located if you know what they want to save time for your cross appeal yes your honor i'd like to move on to the cross appeal leg adjustment of its hydraulic cylinders in order to achieve proper cutting orientation of the planing assembly and that's at appendix four hundred and sixty seven dollars next caterpillar argued that a post would have been motivated to replace switchers leg swisher as leg ier provides for single wheel adjustment that is what caterpillar alleged for sixty seven dollars yes repeat that's exactly right but during trial both experts agree that neumeier has no ability to individually adjust a single cylinder in isolation and we briefed that substantially at red brief at sixty six dollars and grave refit for citing underlying evidence where both experts agree that numerous simply has no ability to do that what neumeier does is it can only adjust its legs in pairs caterpillar even admits this now that new meyer doesn't disclose individual adjustment of isolated cylinders and that the yellow brick at forty two the in compatibility argument because it found that there was nothing in the three hundred and nine that require at least as to those claims that required proper grade class cross slope well your honor the the problem with that is that the board relied on simply the language of the claims but didn't hold caterpillar to the rationale it put forth in the petition the motivation to combine was certainly undergirded pens to new myers alleged ability to individually in isolation adjust a will to meet a need of the primary reference swisher it did not it was shown throughout the trial that neumeier does not need that need and therefore caterpillars reason to combine was flawed and the board erred legally by only looking at the claims limitation and not the reason to combine as articulate what what what what what precedent even for purposes of a claim that doesn't require a hack well your honor i'd i'd point to intelligent bio systems where their secondary reference could not meet the requirement of a primary reference in the court right on point here and sir your honor the board by relying on swisher pre combination features to conclude to the extent that some great uncrossable control is required swisher clearly disclose it the board said that appendix thirty four but the problem is that when you replace wishers hydraulic arrangement with new wire you destroy swishes ability to control individual legs is that the board did not comply with a p a standards at the pentagon fifty six to fifty eight dollars the board merely summarized the party's arguments and without anything more makes a conclusion that runs us out of  substantive point is that both experts agreed that the figure included in mr lay this is a declaration that appendix three hundred and fifty three dollars would not actually work to move one leg mr latest admitted on cross examination that both hydraulic cylinder one a and hydraulic cylinder three are being controlled so two are going nowhere and one is going up and one is going down in that arrangement that mr latest put forth in his declaration and ok we'll go back to mr bernie thank you ron or very quickly on the inherent see point one of the arguments that my colleague has made is that the board didn't actually apply inherently so the footprint limitation believe that is incorrect and i would point your honour's to st appendix page fifty four and then in the th opinion where the board says that widest transverse dimension necessarily falls within the milling drums footprint again that's a clear and heresy requirement and then as i also mentioned in my argument you see the disparity between the boards finding that it was obvious to censor the rotor but then finding that we didn't present enough evidence as to the exact position of the rotor for purposes of a footprint limitation so i think it's pretty clear the board did apply inherent principles to the footprint limitation in terms of the diameter of the rotor that's a red herring there is no dispute in this case that these rotors are massive and so there's no requirement that you discuss that you've that you figure out what the exact dimension of the rotor is to show overlap because once it's obvious the center of the rotor and once it's shown the inherently the widest transvers dimension is in the center between front and rear wheels it doesn't matter what the dimension of the rotor is it some non zero dimension that is going to overlap that that widest transverse dimension with respect to this process deal  st work and contends that swisher is great and slow control requires the ability to isolate and individually control each leg cylinder by itself there is simply no evidence in the record of this even work and own expert dependent on preserving single wheel adjustment ability which for sure has which you say if you put in the thing you're going to get from neumeier you're still going to have cause ne er has it and yet it turns out as the evidence developed neumeier doesn't have it and so if you swap that into swisher you now no longer have have a single wheel not simply destroy the only narrative produced for why a post would do this combination i think you put your finger on it your honor there's ambiguity and i think i'm sorry i don't think that there's ambiguity in in what the evidence shows about neumeier just as word individual adjustment has an ambiguity that's why i'd like you to use the term single wheel adjustment understanding it means move up and down one wheel don't touch the other it has individual adjustment because it does go to your read neumeier in a pen page two hundred and six it very clearly says that it has individually adjusted hydraulic cylinders it absolutely does have that it's one hundred percent true and accurate that it has individually adjusted cylinders the problem here is that it has and i have something ready called individual adjustment which it turns out not to be single wheel adjustment is single it's not single will it just meant it's individual adjustment in the same sense that work and has individual wheel adjustment it means that each wheel has its own hydraulic cylinder which can be separately controlled depending on the mode you have to remember your honor there's different modes here and so in order to be able to roll the machine left and right and after each cylinder has to be individually adjustable that doesn't necessarily mean that you can isolate them and move them each without adjusting the other three we never argued that nd point that's a straw man that work in invented we were very clear in our petition that for that ability for the ability to isolate you had to bring in another reference that was our ground to argument our ground one argument never relied on the so called individual adjustment its work in is trying to take advantage of that ambiguity in the term individual control they've done that they did that throughout the case below the board admonished working on that specifically admonished them and said that is not what caterpillars arguing because it isn't what we argued we only argued that it had the same type of individual control that cylinders each talking about i think the word was not rolling but you know he talked about it basically tilting left and right that's what swisher is talking about when he talks about individual controlled cylinders so i just think this whole argument on work in part is based on taking advantage of an ambiguity in that particular term swisher does and fact have the ability st thing we'll adjustment is that we're saying well there is an admission from work and that it does but my my argue my point is if you read what swisher is saying in terms of its great and slow control which is what working was was capitalizing on it controls great slope by by tilting the machine left and right and one does that it controls pairs of cylinders not individual cylinders there's just no evidence in the record at all that working requires the ability to individually isolate its legs in order to accomplish  control there's just no evidence of that that's something we're can argue but they never presented any evidence on four swisher says each leg assembly further serves to maintain the mainframe at a selectively variable height above the roadway as is required for proper cutting orientation of the planing assembly and that's the very quote that caterpillar relied on only one leg assembly may be required to alter the elevation and orientation of the planing assembly with respect to the roadway surface is accomplished by extension and retraction of a hydraulic cylinder and swisher goes on from there to describe in detail how how swisher can use individual isolated leg adjustment and that is a feature in switcher and indeed the board relied on that individual isolated leg adjustment to conclude in its final written decision that to the extent some individual leg adjustment is required swisher teaches it swisher discloses that and so your honor is simply not true that swisher doesn't require individual leg adjustment because it does it says multiple times and caterpillar used individual consistently to mean single wheel adjustment for example at appendix five  so it simply caterpillars evidence simply fails to establish the very motivation to combine and also just like to touch on a couple more points are wrong or st caterpillar has this new arguments for the st time on this appeal that pairs of cylinders can satisfy the requirement of swisher adjusting a pair of cylinders but they never made that argument throughout the i p r and as i mentioned previously swisher pretty clearly