may please the court this appeal from the patent trial an appeals board which are referred to as the board today is not about a dispute over whether the board did a correct analysis of prior art reference this is about the fact that the board did not do any graham analysis of the most relevant portion of their restaurants the prior art reference as it relates to figures twenty nine to thirty five of that reference in the accompanying description because of this most egregious example of an analytical error the board's conclusions that you trust the references my teacher herman incur that's found on pages thirty one in thirty two of its final written decision are entitled to know deference under this court's decision zero two material itself is not flexible and i don't see the evidence well of the flexible issue your honor is is what's been raised here as a flexible material is inconsistent with the pattern it's what the pattern teaches itself in with in claim sixteen the producing must according to that claim have both a resiliently flexible band and a fixed arc curve but under the board's construction by that claim itself if the material is resiliently flexible bend and also have a permanent kirk so that you are not mutually exclusive and the fact that you have a flexible material does not preclude it from meeting the board's construction which is a preset current that maintains a fixed our you could have a flexible material that mean teams of fixed arc in all configurations which is what a strong thrust be actually shows and ostrowski also goes beyond that because in the written description it actually tells you that you can differ turman by the material that you select and the thickness of that material but the resilience or flexibility could be so you could have a material where destroyed two or flexible band is suggesting a flex point at one at one particular point at which there may be the capacity for this otherwise inflexible year i don't i don't believe that you were dealing with true different materials or truth we were talking in claim sixteen of a flexible band and it kerman incur dealing with the same materials and these devices whether they be filters  the strike you could have a different behavior is that right that's correct you could have it be flexible at one part and it could be such a rigid outside some part that it would maintain a cur and that and that's really all that clean construction maintain a fixed arc in every one of those claims figures you mean every one of the figures twenty nine to thirty five or six of them it shows in every possible configuration and it shows the arc to be fixed and maintained but if you or your reference to reliance on ostrowski seem to me to be entirely based on those figures i view you reference a couple of points in the specification other than the figures and supporting your interpretation of the figures but frankly i've read those and didn't find that they are not flexible they simply have have been depicted at points at which the arc is drawn in the same fashion as that doesn't mean that the arc cam isn't flexible every permanently simply it shows that it's a flexible material because it teaches that but it also shows that it is unchanging but what's critical here is that it shows a force of blood flowing because it's attached to the body of the woman those figures actually flexible material that could change of enough force were put on it that's not really the text the test of the claim construction is is it a fixed arc in every configuration so they show it here inside the catheter outside the catheter could be put on it that's reading uncleaned limitations into this claim and then saying that this is exactly what smith tells us not to do the smith reference tells of the smith case tells us don't look at one point of limitations when you're looking at whether or not something  you're familiar with that it's a fair medication for the proposition that you really can't rely heavily on drawings when you get into the questions of the perception of a particular device  are naturally somewhat well they're just illustrative they're not done to and engineers perception typically so you're relying on drawings but there's nothing so far as i can see in that specification with within the specification itself it does address the issue of of two things one flexibility and it says in the specification if you're looking for flexibility you're a resiliency you have to look t plastics at least the same body of materials and then it says in ostrowski if you want to know how to set up what's ability look at the differences in thickness of those same materials and interesting we in our life court brief to this court that states plastic can be a flexible material and it can also be rigid and they agree that by changing the differences and bigness it often changes the rigidity of that material so there's no disagreement that understanding of the case lawyers is part of the teaching and that this path was looked upon just like any other publication would be and you're looking at those drawings and it shows that in all the different configurations or not relying on just one drawing what was interesting is mention of resiliency or any anything other than that and they relied on those two figures for the conclusion that it taught a permanent kirk and here those are two static drawings and here we have six static drawings found insufficient evidence to meet their burden as a petition or remember we're in an administrative context where there is a petition which is supposed to set forth the theories and the evidence and the arguments so in short none of  it's of the flexible struts keep a permanent curve and that's what the evidence showed on appeal your honour's are correct medtronic seems to be focusing just on and two zero six and i myself is going to point just tronto and the type of contrary or for cautionary evidence otherwise would be exactly what you would find in the patent under review itself such use they use the word elastic so just to put it in on the table in front of everybody the entire record we also have this gold's testimony in the skull testimony can be found at eighty three ninety paragraph fifty three a superior expert actually in the field of the invention unlike petitioners expert and i bring all that up i put all the evidence on the table in front of us supporting the recall what it was that he had to say on this exact point the most he set was that in the configurations depicted in figures thirty three to thirty five there is no depicted change in the curvature which of course for all the reasons discussed already that doesn't get them where they need to be under the undisputed claim construction so this is a substantial evidence appeal it's well brief i'm not going to use up much of the panels time i just want to make two points on the course make myself available for questioning point number one in the substantial evidence appeal there was never any acknowledgement of the existence of the expert testimony from the school g acknowledgement of the existence of the expert testimony supporting the board's decision i for one do not understand how one presents the substantial evidence appeal to this court without at least coming up with some rationale for disregarding the expert testimony that does support the conclusion before and then the second point that i'd like to make and make myself available for questions and then have a seat is and maybe address one or two things i said but as a remedy actually we are using it namely obstructs just to show the pointed tips just to show the point that that is exactly how they presented their obviousness theory stress he also teaches that in all those configurations that also teaches a permanent curve agreed your honor they do they do discuss that but once they get to that part of the discussion in the transcript it's it's very much disembodied from what they from the argument on appeal that they went into in their petition so finally just a quick collection of observations about what we heard during during my brother's opening i think the words he used to write all the gate where the board did know gram analysis of the most relevant part of the reference well i would commend your whose attention back to a ninety three to a ninety nine their petition did not contain any grammar analysis of the part of the reference that they're highlighting today on appeal incidentally if you read the board's decision i believe is a thirty one to thirty two there isn't analysis the next observation from my brother he said that every possible configuration of ostrowski shown in figures thirty three to thirty five i would commend your honour's attention to the read brief page forty eight where we summarize the the evidence the really the make the salient point that those figures do not show every possible configuration on this point they point to  this section of the figure labelled b they say it shows the forces of the blood flow that's what you heard today your honour's during oral argument but contrary to what you heard your honour's a column nine one thirty one b is the label of a piece of material i don't dispute that there is discussion that this of the material can be customized for the chosen amount of flexibility that is what ostrowski said but the salient point to make here is that if we're still focused on figures thirty five to thirty three to thirty five the part that they really need to be rigid to make their argument that they're making today is the very biggest part pictured in the figure so necessarily if you're customizing flexibility based on the thickness of the material their argument actually works against them in it and it proves the opposite of what and unless your honour's have any further questions  you just clarify a couple of procedural things one is that the reason that no mention was made of ms gold's expert testimony was because she made no expert opinion on this issue and if you look at her testimony at three nineteen you will see she didn't even reference the two zero six as being flexible she referenced to all to strike it as being flexible material but she made no analysis of twenty nine through thirty five so  nothing to discuss or revise with respect to whether or not this was an hour from titian if the court would look at a seventy to seventy one and a ninety two in the original magician we did discuss figures thirty four and thirty three which column ten lines sixty to sixty five they discuss the selection of materials will determine the report's ability and resiliency and after column six to twelve the f fourteen lines at eight to ninety three it is of course understood that differences in thickness relative to with will affect the flexibility of the elements and what was just stated by counsel that is that it needs to be rigid at that point it does not need to be rigid this is the whole false premise in this appeal is that that talent does not have to be rigid it just has to maintain a fixed occur but the rigidity and of a material that starts out as elastic or flexible as is depicted in the six that that i don't understand as not that but that's not the definition that was given by the board the board didn't say what use the right definition then if in of this my understanding of the thinks to her is that it is indeed rigid it's not going to change from that say to fix occur which are not so big so it's quite it's in the arc is fixed so that when you look at all the different configurations there are no forces put on it that actually changes and the reason for that is as was stated in the six six two pattern it's process that me and i guess i'd like to give just in my last statement i would like to reiterate what i was starting out to say which is what the board actually did wrong here if we look at pages thirty one and thirty two of the board's final written opinion then what it states there it only has three paragraphs of analysis the first paragraph on the simply states what our contention is about distrusting which is correct but then a cousin gowon to analyze it jumps that step it doesn't do a scope and content of malice system this prior art well it skips it and it goes on and says well dr loomis didn't tell us anything about healing step to make this permanent that's a that's a reading into a limitation that just is a process limitation