that is correct and that is correct the ground we're challenging on appeal is blockage issue and is the board found below had any of these grounds been sufficient to provide a motivation to combine it would have been enough on page sixteen in the blueberry you say the board excluded evidence the passenger compartment inlets are susceptible to  show me in the record where they excluded evidence or do you mean your denial i did yes you're on against that is what i mean i mean the denial of our motion for additional discovered yes your honor that's not exclusion of evidence  but maybe that's the problem with the way we wore those legal polite words but my yes there was not evidence that they like that excluded in fact they they didn't look at it because we weren't permitted to present it because of the protective order issue that was when i refer to that you know that was have two vehicles both of which have an air inlet in the passenger compartment and so when i there is testimony in the district court from clerics witnesses that  air into the vehicle whether it's a c v tea or the engine and so in order to do that you need to position the air inlets where they're going to receive that cool clean air and the brown patent teaches that unlike the sunstar pad which over in i know you're on i think it's really two things and dr davis our expert talks about this as well in his in his declaration but it's really t but what it did well but what it does say is that it could be partially enclosed and so brown provides that additional motivation on it tells us explicitly what you may suggest it tells us things and that is potentially and i don't think that that the problem though with that rationale is the employers point to some of these potential downsides the problem with using those as a basis to a firm so to speak is  the board never performed the weighing on the other side of the scale and so i think what they're really asking him to do the rounds are all of them unless you get past you've got to get suzuki and the other one combined right arguments about the brown reference you say they've failed to consider any of our cats evidence on this issue or dress its arguments in any way that's just not true problem based motivation there they do say you're right on page thirty nine of the appendix they say suzuki solves this problem but they then don't go on to address the additional motivations that were provided by the brand which we that cool fresh air running by as opposed to being near the engine potentially encapsulated by the paneling and suzuki could potentially face so there's no there's nowhere where the board addresses that argument the board did not consider and i think we raised it in our petition we raised it in our opening declaration of our expert i think there's a clarification that goes on as the issues get funnelled and that's what's happening our kleiber it's not a wholesale raising a new issue here and you their position ok they decide what reference they want to rely upon and they decide what the arguments are that they want to use relative to that reference and that's the reference they relied upon and the configuration that was the basis of because it's the basis of their petition it formed what it was that we tried that was our trial whether that device would have caused people to be motivated to  personally that's how they get this is it because that device would have problems with water they said with noise and there was a rd thing that they said it would likely to be blocked and i cause spare clothing yeah you can see all those things but the fact is that is the board found that wasn't what suzuki reference disclose so it's kind of w if it was a cutaway they said so but all of their motivations were based upon that and motivations are an issue of fact and the board found that none of the motivations were accurate and they have not appeal gives provides the inlet more access to cooler air right placing it extremely and that goes to what we call step two what they said was that there are two steps to the invention the st step is to combine sunstone suzuki and then we get they said to step two which is to them use brown to decide to put the inlet on the side of the vehicle now with respect to that the court said look there's no motivation there either and they say well the court didn't deal with this cool air well it was brought in late but nevertheless the court did deal with that there's no to conclude that the court didn't deal with that except to say that if they if let me put it this way there's no basis for the claim that the air on the side is any cooler than sun's dall or suzuki under either of the two configurations of suzuki suzuki said you might have a side panel or you might not but if if the board unfortunately did the board did not reference desk but if they had a reference what they would have said was that what do you mean cool air there's nothing brown was any cooler than any of the other references that you're writing around arctic temperatures and in fact that what they said was that there are negatives to happen to having on the side as you point out weight you're going to have a big bring the numbers off said all that was said by the court so what they didn't do was to actually mention the words that these folks arctic are maintaining that the air is cool and they probably didn't do that because there was no basis for the fact that the air out there was any better than in any of the other references you're riding around in a rope and i think the board said that that so it failed for both of those reasons now but they didn't talk about the the discovery motion and i'll pass on the half unless you have some they they were asking for some depositions that related to a different structure than son's dog as they were claiming son's  that is the subject of depositions was the son's dog structure they never said it's made in accordance with the claims that they never said anything like that what they claimed was that the deposition is reeling generally to the problems him relates to generally whether there is a problem of the put it in lead in a bastard department in the context of an ip are they said that wasn't sufficiently related but moreover there were two other reasons that were given as well for denying that discovery and they don't appeal either of those reasons and the board relied upon that was one of them was that it was too late they had waited too long and the nd one was they had made no effort whatsoever to show that they could not get this evidence by some other means now think they come in here and say well we can't get it by any other means but they didn't tell the district court that they didn't want try to point out any other ways that they could have done it they didn't say that they couldn't get  don't trip on that i'll be careful here on i want to make just a couple points here the st is i think my colleague said that our entire argument depended on this open to the sky rationale the sun dall configuration and what we actually says that was one of one of several different motivations independent motivations if that was open to the sky that was a motivation to move to the side but it's