mean that you can see that your obviousness argument on appeal but the statements seems to conflict with arguments you make throughout your blue brief shot that the f a a manuals not prior reference weighed against the strength of the other obviousness evidence so what would we then if we agree with you that it should have analyzed that objective and dish it that we have to remain and we believe that the sort of constellation of  are sufficient to revive a reversal but our man is depending on how the court views the strength of the objective in disha could be an alternate remedy here and we've we've asked for that as well what's your response the that there isn't enough nexus shalen as it relates to the secondary consideration so as we point in our reply brief there is a presumption of nexus where i'm evidence is presented to show that there's a product that embodies the claims we provided that to the board below through declaration testimony and then so when that product has a motion success for example there's a presumption that that success is tied to the patented product and therefore the invention  evidence there of a nexus as well i will say on that nexus question the board really didn't address the copying evidence alex at all it's essentially well even if there was evidence of copying it wouldn't be enough and they skipped over that step of the  ordinary course and then he concludes declaration by the way that was that joint appendix forty one thirty seven he concludes declaration a paragraph thirteen which is at forty one forty saying i hereby declare that all statements made here in of my own knowledge are true and that all statements made on different mission belief are believed to be true so we have for three sources of information that is offerings that this personal knowledge there's information of statements based on review of documents and then this information and belief  which respectfully is often offered in instances where the individual has no personal knowledge doesn't specify in his declaration which of those statements based on personal information which is based on documents with perhaps the exception of the sales data and which is based on personal knowledge so we objected to the sevenths as lacking personal knowledge which triggered the ability of l three to offer supplemental evidence and that could have been by additional testimony from mr johnson could have been by testimony from an entirely different request of the witness and l three chose not to provide any supplemental evidence we then took mr johnson's deposition to determine whether in fact he had personal knowledge of this and i would date something is distributed yemeni authorities bit of a different event that is not my understanding what a copyright date suggests so something enjoys copyright protection the moment it is reduced and expression is reduced a tangible form and the author of work or creator of the work can put that copyright notice on the work without ever distributing it to the public and this court's decision in a lister especially stands for the proposition that represented version excuse me in a printed version yes it we have here a printed manual but the question is was it disseminated to the public and the only basis for that the board found that  mr johnson's claim a statement that there was a standard practice to include the manuals with sales of the units and he doesn't explain in his declaration why or how he could have personal information that we have his job title and beyond that all we have about his job duties are that he participated in editing the declaration the manual when we take his deposition he testified that he never witnessed the packing or shipment of  units there was no testimony that he was overseeing individuals who were responsible for that that he gave any directions to include the manual and so what we're left with is a witness that really doesn't have any information about the practices themselves for packaging the manuals with the products and without that will sing to you is not that's not the way i read that the testimony that according to paris survey i'm sorry in the red brief l three says according to our survey johnson could not corroborate his desk money through a written form or written policies or other physical evidence which it seems they don't however power survey fail to make these arguments before the board improperly raises them for the first time on appeal and if you look at eleven zero nine of them that we say at the end of that single full paragraph there mr johnson's testimony does not support these assertions because mr johnson administering cross examination that he does not have personal knowledge that the version of the is a manual attached to a declaration was actually provided to customers that it was ever post its any website or what nora's practice actually was we when was that file in the i don't have a date here it was filed with the order on about june second twenty fifteen and procedurally that typically comes toward the end of these i p r hearings just before gone to see the manager who was responsible for packaging but not this time as it turns out mr johnson said there were bills of sale that might have shown what was provided with these but it's what you never look at the bill sale you before his declaration before his deposition in this case i think a glaring omission here if mr johnson's testimony is not based on personal knowledge then it was not properly admitted in this case and the appropriate remedy here on  ensued say something else for example the two seven four pattern says it can twenty one lines one five and sixteen or twenty two once a detected stray voltage has been confirmed by the interface operator and an object has been determined to be the likely source of the n r the interface operator and then made may then proceed to record object related information for example the interface operator may identify a lamppost it just finds that there's a spike finds a spike that spike is associated with a distance or time information which the operator instruct and correlate to the urban landscape that's jason to the truck in the example where this system on a truck  so it's a very important evasion that it tells you you've got an electrified object it's a mini field in very close proximity to the truck and that there is a confirmation in the kind of post activities post detection think the the most salient errors in the board's objective addition analysis is first of the copying it were brushed off they don't give it any true analysis they seem to assume away well i'm not sure if there is any but if there was it wouldn't be labor intensive process of people go out on foot patrol imagine your new york city got literally tens of thousands of things that need to be touched and there's a contact based approach there as well and the boards which took that said well you know you've said you need a scalable more efficient alternative to manual testing and then they shift that and say well that must be contactless and because others efforts to find a better way to do this would involve contact methods there were skateboards in wheelchairs that would drag probes on contact on the sidewalk and that sort of thing of those don't qualify as failures by others in the same vein we offer a category of evidence about skepticism of others on the board if you look at closely their opinion doesn't address kept a system in fact one of the pieces of skeptical evidence we offered was this which berger paper they drew addressed that in the failure by others category and frankly even even if they were to have properly done it in that category they make an error and they say well that failure isn't relevant here because it wasn't shown to have occurred before the priority date and that's not the law here failures of others can occur after the priority date finally on the commercial success prong the board gave very little weight to the commercial once these utilities realized there was a need for a solution they looked out into the marketplace and the power survey invention was the best alternative and that's why they enjoyed tremendous commercial success and you're not really relying on the copyright issue are you here no your honor we as that the copyright date issue is just one aspect of establishing that the if a three hundred ar classify it as a public as a business record right correct and you didn't submit sufficient evidence for that correct i don't believe that's the case your honor i think that it depends if you discount entirely the testimony of mr johnson or the nd you may have a point that there isn't and i wouldn't sundried of three no i mean there's two different things that were not whether or not she had personal knowledge and whether or not you've established a business record even if we accept he he doesn't have all that agree with you he does not have all what i think we have to look at johnson who johnson is and what he's all about before we start trying to put into perspective what it is the saying and johnson was the man at l three for this product this was his baby he was the clear choice as a person to prepare to execute this declaration he had worked there for thirty years since  five he was the director of instant products which included management of the f a three hundred the product that issue here he was responsible for sales of instruments including if a three hundred product at issue here  he was involved in reviewing and approving the english language version of the user manual for the if a three hundred and during his the position he demonstrated detailed knowledge of how products are put together for shipping and that he also that he had no idea if the manual was actually included he said their standard practice was to send manuals but he said he didn't know if this manual was ever sent and then he said but you could have a bill materials and you never offered to submit one your honor what do you what he said is that it was the standard practice of the company to distribute a manual with every if a three hundred  and again just to help put this in perspective we're talking about a manual it's over two hundred pages long and we're talking about of the voices thousands of dollars and expense and fairly sophisticated electronic equipment he said that during deposition he said that the that the the packaging was assembled in germany it was put in a box there was a bill of materials he identified that and which you never submitted which we did not submit but our position is of course that we don't believe that that's necessary there's been materials that listed all the things that were supposed to be in the box after night it was sold was shipped to the united states to the north of limitation on long island where mr johnson worked but you never he didn't testify that he ever opened one and manual and that he didn't testify your honor that there was never a reason to open one and the issue would i think is in here in this right for this point is what would be an issue hurt what we used to call in moscow and negative pregnant that is to say hot he never received a phone call from a customer saying where the hell is my instruction meant he was never asked your honor if a customer ever complained that they did not receive a manual even though why didn't you ask them that i mean here's my problem and the tap says we're doing form a proceedings formal adjudicatory proceedings even to the point where they say that such a level of formality that they can decide constitutional questions and then they say and they put everybody on notice that we're going to apply the rules of evidence and what you're asking us to do is to apply the rules of evidence or loosely to the peak and then we would to a district court in the circumstance  we could have addressed but perhaps did not the issue it was asked a supplementary addressed and did you we did not submit your honor the issue is whether what we produced what we put forward was sufficient the board found that it was and and this court will look at what the board did to determine whether that was an abuse of discretion is it abuse of discretion for the board to say we're going to rely on the person was thirty years of the company who was directly responsible with printing and processing it or well your honor he didn't approve it he did not print but he proved the english language first so why didn't you get someone who actually could testify would you have done that it depends on what the what the burden is here and if the purdon is beyond all doubt of course we would have done that if the burden is beyond a reasonable doubt that of course we would than that but that's not what the birds here and the issue is first position in the garden is personal not is personal knowledge and didn't mr johnson have personal knowledge he says he did everything indicates that he did and the attacks of things he didn't do don't really necessary to establish that it ever was submitted to the public beyond a reasonable doubt yes now that the under reasonable that it's not a that's not the standard this is it is just the have personal knowledge or did not and he didn't really even claim to have didn't know if it ever actually happened it that is not that respectfully or that is that is not what he said that he didn't know whether it actually ever happened but for the record army on site to the record where your honor in his declaration he says where it begins at forty one thirty six and goes through the forty one forty one forty one just a couple of pages right at that that  that declaration and then you put it together with this cross examination and you see a difference right where your honor what you see is there are particular peripheral things that he does not know but those peripheral things do not attack the basic premise that the our yes your honor in that and that's what more did the difference is you're you're comparing a business practice with a business record you don't have a custodian of records to establish a business record but you have someone with expertise in the area to establish believe that we're did ignore copying if we look at well it certainly gave it the back of his hand it's the if it's the only evidence of secondary considerations it's offered well what the board did and they indicated this in their in the final decision is they said that  pages certainly are on when we he as this is not a situation as some of the cases that were cited where the board just ignored blocks of evidence they spent a lot of time on all of the secondary considerations survey device the three device somebody riding along the street they detect an elevated electric field and that's all they know the only way to figure out what's going on is you have to stop the truck get out and figure out ok what's the source and is that source dangerous counsel did say that there was information that allows you to go back later and that is true but they still have to do the same thing the machine itself does not specifically identify the problem at issue that's the post detection activities those detection activities more than just trying to figure out how serious it is the trying to figure what it is in the first in priority date even though they said they did the board did say that they nonetheless one want to completely analyze that reference and that it did not check out as a fair others in fact just the opposite it showed that someone else had succeeded perhaps not as efficiently but it did not come up as a failure of others but like commercial success and how do you address the argument on the other side that our case was very clear that where the product embodies all of the claims  about providing a presumption i'm sorry they they actually don't say anything about providing presumption they say that the patent owner had to prove a nexus in connection with commercial success which i believe they found that there  that are in the record that there was no commercial success that there were other forces that cause the sales that were primary in resulting in the sales that power survey made and that it wasn't due to actual knowledge of what whether there's many in this particular manuals were shipped with this particular products what's missing from mr johnson's dechen which didn't come out of the deposition was was mr johnson the right businessman to make that statement doesn't say in his deposition  how he had personal information about the packaging of manuals with the product and what was illuminated step is it was he was even in charge of the packaging a product that happened co way the only thing that stopped that might be required if they were trying to get this in under the business of practice exception it's if i know that you know the people in my chambers just certain that they because i've laid out policies that are written down that i tell them to do them and i'm sure they do them can't i testified to that fact and whether that is credible or not is something for the fact finder but not in that piece of discretion to allow it is  i think your honor typical is very informative you could do that and that would be based on personal knowledge we don't have mr johnson saying i'm instructed anyone to do this he doesn't say that he knows what the company's policy is he doesn't have to be the person that actually wrote the think but this requires him to say how does he know you couldn't offer literalists worked at the company for thirty years he's in charge of this project he actually looked at the manual on the edit i mean i don't know what again maybe he's not credible but i don't know what more he has do to say he has personal knowledge all he has to do it i mean he literally could say based on my experience because i oversee this i instruct i observed compliance with that but he doesn't provide any of that testimony he simply says i work there i have a particular job title i mean on top of it well he says he's in charge of the sales and what we learned of his deposition that sales means something very different from  sales fulfillment and he doesn't participate in the latter he approves the language of the document he doesn't know how to copyrights apply to it he doesn't know the printing of an idea that so it was a very simple thing for all three to have filled that gap and for reasons that are not in this record they have not explained that and i am already gone for longer than i have hoped so thank you for your time i thi