product catalog without restriction at a trade show attended by over a thousand distributors of those products qualify as a means of publication is it a legal question or is it evidence question because it sure seems to me like you could have done just a  more to prove that this went to the public in a way that a skilled artisan could have found it i agree with that statement your honor but the answer to your question is was there no attempt to get a a little bit difficult because i think i can i'm not sure that i can i would have come up with the same inferences of the boardroom from this they seem to be very strict with you but i'm also not sure that inference lacks substantial of well facts rise to the level of a printed publication is a question of law and it is reviewed and of isn't the question here still i don't want to get hung up on this factual stuff too long but isn't the question even with the undisputed facts is there  artist and even attended this the show that it might have just been sales people and that it was a close show and the like isn't that factual in france that they're drawing from that the fact that it is a close show was not one we  that's correct and it is right that we did not present evidence that people are skilled in the arts specific people skills we are tended to show i think that doesn't matter your honor for two reasons first it doesn't matter because this court's precedents don't require that the people in  at a trade show be people of skill in the art it's true that this court is part sometimes interchangeably about people concerned with the art people interested in the are people skilled in the art and sometimes people interested in and skilled in the art sometimes in the not a consumer electronics trade show right that's correct it was like so i may be wrong there is more like a recreational vehicle trade for some kind of consumer electronics show the inference might be strongly in your favor  right if you took this to a rodeo the inference would probably be really strongly against you that this would be somebody interested in this type of technology it seems like we're somewhere in the middle i think your honor that in this that it is a harder it seems to draw that some of these people are of still in new york but it is perfectly reasonable drove the interim inference that they are interested in the art these are distributors of products like the go pro cameras these are people who went to the trade show precisely so that they could find products that they could turn around and sell to their customers so are you saying that for purposes of determining whether the prior art was published that it has to only be shown that somebody interested in art to make or use the invention that's right but i think this court case law makes clear that disseminating or making available product can look to people interested in the art even if they are not a skill in the art is sufficient so the cases i would cite for that proposition are first and foremost a ryan ip in a ryan ip the product catalog was a sales brochure for a software or car part inventory management system it was demonstrated to car dealers now partners are interested in car parts management systems but they're not software engineers they don't know how to write these things they are not people skilled in the art nonetheless this court said it was sufficient because you had demonstrated this to people interested art similarly in the i am a health case the flex magazine which is a magazine for bodybuilders had it ran an advertisement with nutritional supplements the bodybuilders were not people of skill in the art they were chemists but they were i mean i've seen rodeos where the rodeo the cowboys wearing a go pro on the edges of his hat i've seen taurus walking around here outside the monument they got to go pro stuck on there so it would seem to me that  trade show were precisely people interested in the art they were distributors of products for motorcycle enthusiasts they wanted to buy cameras that motorcycle enthusiasts could attach to their helmets could attach to their motorcycle so they couldn't let if if we agree with you on that should we remained the entire decision for additional fact finding out where what where do we go so i guess you are if you agree with us on that you do not need to resolve this question of skill in the orders as interested in the art that is an independent basis for reading and i think revenge is appropriate because the board got hung up on this question of is this a printed publication which frankly was only a minor issue going into the case i didn't end up resolving any of the merits of the obviousness analysis and we think under the cherry doctrine the appropriate thing to do is a fact finding here but send it back to the board to make fact finding on the on the merits of the obvious the stock i products so i think both distributing it to hundreds of distributors at the tiger rocky show and allowing those people to take it without restriction do what they want with it which is presumably to order products and mailing it putting it on the website after the top or rocky show all of those things are part and parcel of what you would expect trade show sales catalog to do how much it would be to the publication argument that for making would on a website that was accessible to people of interest would itself be sufficient so i think that would be enough it is right is a stretch hughes indicated at the outset of this argument that the evidence in support of that is not as fulsome as the evidence in support of the talk but on the other hand website but i understand that you can put something if you physically put something on the website enough may not be necessarily available to the public because it may not be index search and so that seems like an odd way to say you put it on a public or you posted it to a public website but it does seem that that's what the board bolted you for not explaining that it was put on the public website in a way that would have been readily evidence standard if the board's reasoning is you failed to show that it was in a publicly accessible link how does not lack for the central evidence even if it's a very strange inference to draw well i think your hon get i think first that the this is not a question of substantial evidence i think the reason it's not a question of substantial evidence is that they didn't present any evidence on the other side they didn't as the case comes before the court challenge any of the evidence we did present so what we do have is  testimony by mr jones which the board expressed lee said it had no reason to doubt the truth of his testimony we have the catalog itself as corroboration of that testimony and we have what the court in the documents case said was frankly just common sense  that that in the drachmas case which is extraordinarily close facts to this one good the court said no one can seriously doubt that suppose that such a document printed in quantity was intended to be kept secret its whole purpose was to be spread broadcast as far as possible to prove that no accident did happen and that it did reach its destination we have it's true only open war although entirely disinterested testimony but it's a mistake to assume that even under the extraordinarily severe test applied to the proof of anticipation every step must be buttressed by documents the court i get why do you think the board was so stringent it valid evaluating whether this was a print publication i don't know the answer to that your honor i think the closest i could say is that the word read some of the language in this court's opinion saying skill in the art it concluded that skilled in the art was a requirement and that that sort of lead it down frankly the wrong af that's a path which by the way would mean that been releasing a product that a trade show would almost never generate prioris start the want to be clock running every patent lawyer in the country thinks all the votes that's just pro catalog is a prior publication i assume you had a reason for saying so called what makes you think it wasn't a catalog oh i refer to it as the so called go pro catalog not because it is not on its face a catalogue but where you have got corporation and the board and it got its credibility in some areas the law and we just have testimony there's a corroboration requirement but i don't see what here are you arguing that that  other than what happened at the top or rocky road show and was that it and the car question is was that air or not if it was what do we do about it it certainly was not so under thirty five u s c three posted the catalogue out on a publicly available website mr jones stated that in his declaration that was not part of the petition to the board the petition itself did not rely on the website decision self just relied on distribution a a rocky road show the board said as a result we are entitled not to consider anything that was not actually particularly pointed out in your petition we're not considering that that's an intent exam picks twenty two footnote eight in a fifty three no anybody can readily have access then it's presumed that person or a skill or a subset of the general public it becomes a non issue pretty quickly where we need to focus on things which is where the website is which is where a website can don't have that level of public availability then we need to look at what subset of the public was in a fact in attendance at a particular conference or to whom of all of the sets of the relevant public was the potential office disclosed here as judge hughes pointed out in turn mr lovelace opening argument this isn't c e o s if this was a consumer electronics show then we probably would be in a very different position here today dora show it was an outdoor show dedicated to outdoor motorsports there is no showing on this there's a substantial evidence to find that there is no showing it was reasonable for the board look at all the catalogue it's filled levels here again the first level is that it's not the board's imposition of requirements actually of this court's precedent that the availability needs to be of persons interested and ordinary skill in the art that it was back to  wire and carries forward as recently as for instance blue calypso there have been times where the link which persons interested in the art has been inserted with out the remainder of the expression and ordinarily skilled but it has been this court's requirement that  roughly if they are opposing counsel for right there yes sometimes it gets in all all of the phrases or in one opinion used interchangeably i'm not sure it's fair to say that they're completely interchangeable but that will actually get to my second point sculptural why is it a trade show where first of all get a pro showed up i mean there by definition they're not going to show up at a trade show where nobody's interested in their products they can hundreds of catalogs which itself has to demonstrate a high level interest isn't that enough to show people that are interested in their products have a copy of this printed publication i don't believe so and these concepts can be merged at times the notion of a person's interested in the art is not persons interested in a product they find on a shelf in the supermarket it's persons interested in the art not the product the art i may be a potential consumer for a product that does not make me a person interested in the art in which the product exists the cases cited by mr lumley during his argument largely involved distribution to people was clearly interested in the art be understood as in profit received in the art may actually then pick up a catalogue take it back home give it to its competitive intelligence folks give it to its engineers and you have a reason for a court to readily believe that you  going to have dissemination it into the world of skill arsons pretty but in the real world there's also a concept of cross fertilization in which somebody interested in a member of the public picks up that catalogue and takes it to their local dealer who says this is interesting and passes it on to a competitor so you got some hate you guys and something like this you're my normal supplier and that has to be taken into account the real how the real world works there are aspects of course to how the real world works but in this case we're dealing with a static record and evidence and there was no evidence put forth that these catalog broader set of the public had access to the trades this is what baffles me about this case is i soon your argument would be if somebody took copies of this go pro catalog to a football stadium on sunday and handed it out to fifty specialized trade show that's nonpublic and you have people there clearly interested in the product which at least raises an inference that they're interested in the art and so now you're saying this because it's non even though it's much more specialized it doesn't need to print a publication day as opposed to fifty random fifty thousand random football fans i think the writers are actually getting to exactly the right point it is a function of where the burden large where something is distributed know i'm well i'm not please ask that was that the give me a trouble a sporting event where only a thousand people attended the exact same amount here but it was open to the general public with the presumption still arise that if this was handed out to a thousand people or a couple hundred of the thousands of people that attended a sporting match up into the general public would it be a print publication it may well be and i simply well be because one of the things this court has consistently caution is that every case on the issue of want to be needs to be facts on the very specific facts of its case and we might learn other things about the facts there and i realize or as we know design a specific have a thought or goal but there could be other facts related to the hypothetical that could shift but there aren't any other facts i gave you all the facts that s of the hypothetical if that's all the facts we have then i would say i would be inclined to presumptive we find that we're going to say that that has been opened up to the public yes here we have a nonpublic trade show and so we need to know who was at that trade the people that show up at trade shows are our by definition interested in the products and i know you want to make a distinction between product in our i'm not sure that i buy that but they are by definition interested in what's being showed and passed out in the like at a trade show and you're out of here we are again getting back to issues of fact and the facts there are no facts that suit the people that were at this trade show were in fact interested in action cameras it's at it's two or three hundred people  and accessories and accessories that is not necessarily get us to the point and the board is a matter of sort of evolution for suppose or we're talking about a medical or chemical compound and i give a the chemical compound or that they were even awake it's and then isn't it enough that i publish the chemical compound up on a on a on a powerpoint and that the attendees who were there were there because you're interested in that type of topic this catalog was in fact distributed to those of interest in the ark i would say not to the problem is it's not just more reasonable i mean the substantial evidence standard is much much harder for you than that it's essentially that no reasonable person would come to the boards conclusion and even if even if all of us and most people would come to your conclusion is there no evidence that would support a conclusion that this it wasn't a print publication distributed at the trade show i think on the treaty which you if you believe there is substantial evidence then it's going to matter how you resolve the legal question of whether it's interested in the or skilled in the art if you can if you agree with the board on the book unquestionably legal question of skill in the art and you think it substantial evidence then i think we'd have trouble if you think you know given what's up all over you tube can we take notice that if you're the steelers who sells to people who are interested in outdoor motor sports that they're probably the kind of people who want to record that absolutely because they do absolutely your honor and i think this court has asked and at the board judge judge arbus asked the question doesn't the fact that go pro attended the trade show that some of its people be interested in their products mr schoen hard says there may be people interested in the product at the trade show so i think it matters if we think interested is the right test there's no reasonable board could conclude that there was no one interested in th s at the trade show there were hundreds of copies distributed they were distributed without restriction if it was a sales catalog put me in a bar according to a competitor at the at the craig i believe the answer is yes your honor the we did have a list of  i don't think anyone at the time that this was going on thought that this was a big issue simply because everyone understood trade shows were the sorts of things that could be the basis for a printed publication until the sport's decision i just closed loop because your friend raised the point that i had heard before that the website information wasn't in your petition and that that's the reason the board considered is that correct not exactly the petition did not affirmatively say instead cited to the paragraph in the jones declaration which did include it but everyone knew that this was an issue they briefed it in their preliminary response it was explicitly called out in the board's institution decision and it was brief and they don't want to wade absolutely not and neither