finding that the cochlear prior reference is not analogous art but i'd like to focus on what we think are the two most important errors that the board made in reaching that decision the st error was that the board refused to consider important relevant evidence of the knowledge of the ordinary skill in the art and specifically what the board did was it used to consider the examiner's findings which were based on four prior references which demonstrated that those of ordinary skill in the art knew that breathable hypoxic air is fire preventive and fire suppressant in the board refused to consider this knowledge solely because point that the court made which was that you have to consider evidence of the knowledge one of ordinary skill in the earth it's the backdrop for the entire obviousness analysis and that prior art is perhaps the best evidence of what the knowledge of one of ordinary is so we think under randall and just the general notion that obviousness has to be analyzed from the perspective of one of ordinary skill and take into account what he or she know is that the board in our case err by refusing to standard are these references nalang us or not that's right and i think that the point i'm trying to make is that had the board properly considered the knowledge that depended not refused to consider that it would have it would have switched the outcome a one hundred and eighty dollars degrees because the examiner rejected one as anticipated by cop there and it also rejected claim one as obvious based on partly or in combination i believe with another reference now was it your argument that it has to be reasonably broken and to another claim that same pattern i think that's part of the overall story here that cutler is so close to claim ninety one dollars the only limitations that the examiner found not to be disclosed and partly are that are in play ninety one or two elements one is about reducing the humidity of the intake air that goes into the oxygen structure in equipment and the nd one is about having a filter for that intake air everything else it's already been decided the collyer discloses that and  you know when the examiner reject the claim ninety one that was understood and not no longer in dispute remember that this we are in fact in this court for the nd time the rejections of clay ninety one happened after the remain and from this court at the collyer discloses all the elements of claim one so when the examiner turned to look at clay ninety one dollars he understandably focused on well what are the differences between what are the new limitations and clean ninety one dollars that we haven't already addressed before so it board wouldn't consider that evidence of the knowledge of the ordinary skilled heart and that's why we think even though the board's findings are reviewed for substantial evidence when it fails to consider critical relevant evidence we submit that the decision just has to be yet and the reason for that is as i mentioned we've been to this court in two thousand and fourteen agreed that once there was a st set of rejections on the original claims they submitted a whole bunch of new claims they were all rejected except for the ones that are now at issue because the examiner at the time thought he had to find a substantial new question of inability for those new clues this court corrected him on that he did not and so we went back and dealt with this that subset of claims in the  nd round of an examination one other thing about the board's error with respect to the refusal to consider the knowledge it's also prejudicial with respect to the field of endeavor test reasonably kirton to the particular problem prong that i think we have a strong case on reasonably pertinent i think we also have a strong case on field of endeavor because there's there's no dispute here that the structure is all virtually identical the only field the field of endeavor one might look to the to the titles of the patents which are quite different i agree with that but you can't look just at the titles you also have to look at the description of the thing you know the invention subject matter and what's the structure and function of the claimed body ok and here submit evidence such as expert evidence on the question in the board keil we couldn't smit out it's because you can't submit new evidence on appeal so under the a p a we think we just weren't given a fair opportunity to respond and some at evidence and so to the extent you tap in this case was that the rejection proposed by your boss adopted by the examiner fail to make out a case of obviousness the evidence which supported that relates to the field of endeavor and the substantial evidence in the record addressed in my briefs shows that there is substantial evidence showing what the fields of endeavor were for both the claimed invention and for  primary reference cost we are as judge jury pointed out the titles are very different and while that's not the determining factor they just don't appear to relate to the same fields of endeavor on my phone has suggested that the p tab erred in refusing to consider evidence of knowledge of the person of ordinary skill in the art however that evidence was not presented to the examiner either because it was not part of the at other partner just to understand that knowledge of a person of on one of the or if that was the case or on a then the grounds of rejection would be different then in view of the it would be randall as the order itself distinguished this distinguished because because there was no dispute or issue as to whether the main reference applied was in the same field of endeavor so your view is because rand don't involve a question of whether something was analogous arguer not it's distinguished in part because the essence in randall was that there was no real question of whether these references were curtains or not but here the ultimate issue is why would one of ordinary know i don't know facts and read all very well at all but i guess maybe and maybe i'm mistaken in reading this but know this way but i guess i was thinking that the four prior art references in randall were actually presented to the examiner the examiner just didn't rely on them and his rejection and then what the what our federal circuit was saying is that the board is allowed to because they were previously present i don't know of the right facts i'm reading randall i haven't gone deep into it you know whether i don't remember off the top of my head you're on the record what exactly one footnote says in that no one case but i will point out that in this case the references had not been applauded the council now wants to use to support  present examiners did they said the same reason you said previously rich is you're only allowed to look at the references that are being relied on the jurors come to their own you're only allowed to rely on the reach the obviousness conclusion then it must be necessary that it's in the record because otherwise the final pass wouldn't have had the opportunity before the examiner to address the issue of what would constitute a proper however the actual rejection appeals what must be evaluated this is an inner party's proceeding in the rejection at issue with proposed by the requester so i guess i just don't know whether or not it's clear to me that the horse said that because the examiner  of reasonable pertinent to the problem being solved by the inventor the inventor will when putting together any combination of invention will take bits and pieces from the prior art and the inventor will take a machine which somebody else uses for something else for another purpose and perhaps use it in an inventive way and that's the business not a method you know it's not but it's the structure you would still incorporate the entire body of the machine into the combination can i can i ask whether or not it's possible that your answer to that story might want to include the following response and you can tell me whether you agree or claimed to come maybe claim to let me discuss the claim you know maybe a reference with regard to humans or birds or fish or something maybe that could be relevant to claim one because so rather than written would like to address that my learned opponent is raises that is essentially isn't fair that the examiner didn't have the opportunity to address these issues because they want supposedly raised during prosecution and that people should therefore have remanded rather than simply reversing however the examiner did have the opportunity in response to the brief on appeal before the key to have to address the issues raised in the opening brief by fire pass and the examiner as answer simply incorporated the ran a low and rate is and did not add any argument or any analysis to the initial consideration the examiner had the opportunity at that time to say you know what maybe i was a little sloppy i could have done a better job with the rejectionist law take it back issue a better rejection and we wouldn't be sitting here right now but the examiner didn't do that the examiner took the position that the rand was fine as it was and the final rejection would stand as it was and so the examiner has had the opportunity to address this very cetera is that costly are says nothing about fire we should keep that in mind as judge laurie pointed out the title of the invention is very different for the reference it's athletic training equipment as opposed to the claimed invention let me back up and just say you're correct when you said just a minute ago that the issue of whether or not cutler was analogous art was never disputed before the examiner there were several rejections based on color is the primary reference obviousness rejections not just the anticipation rejection has constantly never questioned that it was available as prior at the just argue that it didn't have certain to claim of patients there was no motivation to go by so there was no reason for the examiner in analyzing rejections for the four of them were presented in other grounds that were relied on and so the examiner's findings were were made in the context of other rejections of other claims which there were about one hundred dollars but they were of record the priorities all of record findings are of record and in randall it was similar in the sense that the prior art in question was not involved in the specific rejection on appeal but had been discussed other contexts within the reexamination so there's no difference  report which are two of the four references that we're now relying on and we've cited those references when we were addressing how the preamble of claim only one which is the only part of claimed anyone that mentioned is preventing suppressing fires was obvious and the point that was being made was that the cot leader six hundred and fifty two breathable hypoxic air environment prevents and suppresses fires and then we pointed to the knowledge of one of ordinary skill had a more fulsome discussion about this exact issue with respect to claim one in the request and so i could look up the cites for those i didn't have a chance but it's in our appendix it's in our request and in the claim charts for claim one that we submitted with the original request to the same evidence in governments and in the sixteen dollars every report but i think that randall stands for the proposition that that doesn't really matter what matters is is it a record and is it relevant and if it is it has to be considered because when you're analyzing obviousness the knowledge of one of ordinary skill in the art is a foundational fact that has to be considered at all stages and i don't think there's any dispute that in determining whether the prior art reference is analogous or that somehow you don't assess that from the perspective of one of ordinary skill you must you do you have to and so you have to take into account what they knew and our submission is that when you do that it's clear that collier's reasonably pertinent and that the board erred when it refused to consider that evidence