yeah rd case this morning is number eighteen dish eighteen and now insulation in versus rock will international to be unpatentable under section one of three and your honour's the the primary issue here with the board's decision is that it ultimately failed to enunciate in its decision a reason to combine the references at issue here there's three prior art references the helping reference the worthington reference in the wallace reference and the board failed to articulate a reason that was both factually supported by the record as well as legally sufficient under this court's precedent for what can constitute a motivation to combine prior art the board stated reason for combining the prior art was that it had similar specifically the board asserted that the three references that issue taught similar reactions using similar components particularly that the references each had the components necessary to engage in a may yard reaction which is a reaction that's common in baking so the same reaction that happens on the outside of bread when it's baked in a browns forms the crust that's one example toasting marshmallows and actually the same reactions involved that's too close to applying this chemistry from the baking arts to the idea of using it as a chemical binder to bind together mineral fibers particularly fiberglass as a replacement for formaldehyde based binders that have been traditionally been used to great insulation that would be placed in the walls of a home or business the board found that all three references in this case disclose the reactance necessary to engage in that reaction none of those three references recognised that those reactance were present in a way that would actually engage in my yard chemistry all three references talk different types of reactions to create different types of pine which is just some ephemeral i guess my recollection is that the board really didn't rely on any notion that people at the may are greek reactions and the and but rather that there were those reactions would inevitably occur if process and for that proposition that proposition that because the reactions were present and they were present together that even if there were other reactions taking place in each of the references teach other types of chemistry there are disclosures are about different creation reactions other types of plumbers ation but the board found that because those three reactions that are needed for me our reaction were present some amount of may our chemistry would go on as a side reaction and that there would argument that applies to to all of the claims which is just the motivation to combine the references being lacking the issue there's a couple issues with the board's finding your honor the st is that even if de that the mayor  reaction is is inherently present we've disputed that but it even assuming that that were true for the sake of argument there's no findings by the board that a person of skill in the art would have appreciated that from the teachings of the reference and as this court found in part pharmaceuticals what's unknown cannot be the basis for optus is if the mayor reaction is inherently present as a side reaction these references but was unknown to the person of skill in the r that can't provide the motivation to the person of skill for combining because it's unknown so the board is relying on a allegedly in here reaction with no evidence that would have been appreciated at the time of the the allegedly inherent presence of that reaction he could you discuss the cross and feel and so should discuss the crossbill the because the this collateral estoppel argument based on the other proceeding suggests that the differences between the claims held invalid in the other proceeding in the claims the subject of the cross appeal are basically trivial and as a matter of cloud all stop established yes your honor so moving to the collateral estoppel issue the issue is that one of the prerequisites for collateral sop was not present which is that it has to be the same issue that's being that was previously litigated and i think both parties agree on the law that that's a requirement and that under this court's precedent that looks at whether there are material differences between the claims rocco made no attempt to point out or analyze what those differences were until it's or sir replied brief in this case but they have eventually come forward in their last brief before this argument by saying that they believe the claims are narrower because the as we pointed out in our reply there's a difference in the transitional phrases both in between the preamble in the body as well as within the body the claims previously held invalid by the or and by th comprising or including as open ended transitions in terms of what the binder reactance could involved that the binary reactance comprised certain things comprised an acid and a meaning carbohydrate the claims at issue in this ready that it was it was going to treat that same because it wasn't a basis to make that ange the examiner said that your honor that it was going on the examiner was going to treat that as similar to comprising are not indicated in the certificates and says you know there is still the center part days or exams pending we are going to reconsider claims that come out of that they are going to need to be narrower than what the was disallowed in the expert a case we believe the claims that have been a lot here are narrower but also morally that's going to be something that the p t o has not yet addressed it will addressed address on remained after the case returns to it and rock will have the full opportunity to respond to any filings we make and to contest that the or will decide that and may come back to the court if that's if either sides dissatisfied but that's the proper procedure for both parties to be fully heard and so the standing issue wouldn't make any difference in terms of the u s consideration of  if i may your honors i just want to briefly address a point judge toronto raised earlier in addition to the arguments and in our appeal that we've already discussed there are a number of claims that have limitations that we feel were never are expert and stamps and i hampson your absence are hampson said nothing other then nothing more than impure about the impurity level and i take it your point is if you read the next sentence actually he went on to say more than that and so the board's busy decision on that simply cannot stand except as to the single claim of that group that is limited to being at the about the imperial correct your i think that's an accurate summary i would add that yes the board failed to engage in a proper interpretation of the claims that have otherwise which in things like you mention of substantially all of the polymer that binds the matter of fibers being made of millions and and a majority of the fire of the fibers being bound to some things that require each of these claims is different so i don't want to and haven't been construed they haven't been construed except to the extent that the word in a kind of implicitly construed them is all just meaning something greater than impurity level which i what i believe hell is are you in defense of the boards the city to the extent that was the board's implicit construction that can't be correct with the different claim language that was presented as well as mr dr ham explanation of what the different meanings and how those were supported by the apps and his declaration and the last point i'll make to your honor's with regard to the inherent see point is we think there's a claim interpretation issue there but also the board analysis in here and see there is even more flawed than just generally finding that that some amount of militant be present because they jumped all the way from the side reaction that's not mentioned not discussed not appreciated in any of the prior art all the way to the idea that you're going to be having binders where a majority or substantially all of the binder is made of this unappreciated material from the prior art they got there by saying that well there's a substantial amount of reactions or reactance present in the references but i want to read some of that that's not enough because it fails to account for all of the other reactions that are taught in those references that would be competing and we cement out competing any potential side reaction that was unknown and unappreciated of may or chemistry to produce milk so jumping to the conclusion that ninety percent or fifty percent of the binder would be made up of the substance which is never even mentioned in the will begin with the idea that the board failed to articulate a motivation to combine here and i would note that counsel started by saying they failed to do it but then shifted and said they failed to rely on now facts as to whether a person of ordinary skill twenty nine dollars they say the way the board couch this was came to the board on a different rejection and the board instituted a new ground and the way they did that was to make a long list of factual findings about the references and then at pages twenty eight to twenty nine they shift to describing how you would combine these references together and the obviousness law about why or how the references should be combined is laid out there you would look at the claim here that the problem to be solved is a formaldehyde free binder wallace and worthington both teach formaldehyde free binders for bulk material so you don't formaldehyde free binder for fiberglass fibers and the difference between helping and the two w references is just wrong to put it is it still stock describes starting with the same and i think that's why appendix twenty to twenty nine the board doesn't start with helping and this this court's law is pretty clear we don't really care what we consider a primary reference result in their reference the question is on the table of in the bench in front of the person of skill in the art they've got worthington and wallace which are formaldehyde free minder of the exact reactions that are at the claim here that's not disputed there they argue there's other stuff there and we can come back to that but they don't dispute that that reaction is taking place in this ta by those references and as your honor pointed out the only thing missing is that it's not put on fiberglass so so what helming is offering you know is the same categories of reactions to create this the claimed binder and each year you don't your honor i mean it it's not like it's not like iraq will can lose the collateral stoppel issue because i brought it up in the cross appeal and this court either passes on it or says you know passes on it because of standing or passes on it because we think the aware we now had about a half a dozen cases these days we get the other kinds of i p r if party reviews and we've said repeatedly that the fact that you put a lot of litigation resources into fighting something in the p t o if you're the challenger does not itself mean that you have standing to come here and when standing as challenge you actually need to come forward with evidence right in the form of declarations are alike that says here is why we as a company have a stake in this and you didn't yet again respectfully aren't back to what judge dyken said we understand that this issue is something we could take it pete have we asked him across appeal for it to be addressed on the basis that it was a legal issue that we thought this court could address if if because we are not coming forward in articulating that we think we're going to get sued or any of the others reasonable apprehension issues that the cases that your honor has brought up from the other i p r context that's fine we'll take our fight back to the p tab we we rock will has tried to merge these proceedings to avoid this problem us bringing the cross appeal is our last attempt to  dozen or so claims involving hordes ready like substantially or substantially all jordy why is it not right to say that the board simply mis read what i'm after hampson sad and which would cover one of the claims that the one about being above a impurity level but didn't otherwise have a basis for saying that these other claim elements and the other say substantially all because substantially all is the language addressed and expect you want to do is there is nothing in the specifications to support a lower quantity limit to something like substantially all or above  level can often wants this to be a claim construction issue and submitted a declaration considered along with the specification and in appendix b if you want to fifty to the point of actual finding that there's nothing of in record to support challenge that can offer before the board said board substantially all has a has a number to it that rockwell's evidence is insufficient then under this court's decision and to have a and subsequent to that the factual findings by the board get deference as to whether the claims of substantially all should be construed as having some lower number or anything above impurity level because that's what that's what the declaration  and so we read the declaration in line with the spec you don't get a lower number so how is the board going to give the broadest reasonable interpretation of some number or even give weight to substantially all when it's not supported it issue of factual consideration and then the legal implications of what substantially all should mean and the evidence of the record which is nothing as to how much that amount would be therefore it was proper to say even though the claim languages have essentially of can also the salmon or counsel just said that the examiner made that decision it was also made by the board at appendix seventeen through eighteen again remember the board who wrote the st version of this reaction was not one that story with the examiner and then went to the board and started with the board went back to the examiner and the board reaffirmed it when it came back to the board at appendix fifty one and what the board has said is that consisting essential the of in this context does not get the limiting treatment it adds nothing of patentable subject matter from the specification over what's found in the prior art therefore we're going to read it as compris