seventeen has been held invalid on the board in another decision that was affirmed by our court so there's a final judgment as to the on patentability of claim seventy correct correct your honor they did not dive into the deep end and claims their analysis entirely focused on the independent claims why should we bother analyzing why their claim seventeen which is beyond could be independent claim of them may behappen should we send it back then i mean surely you would agree that that's what we need to do would be to send and act for an independent analysis of the dependent climbs and an analysis which hasn't been conducted at all or the only depending claims that you would need to send back would be claims six seven points involved twenty and twenty one and twenty perhaps not to ten what happens with the appeal that immediately follows the other claims that are still alive not already mooted there is no argument made in the before the org for a separate basis for patentability of those claims so they rise or fall wi independent argument with respect to those clients right that's correct and i believe for those claims you would probably have to remain unless you resolve we saw the issue for those claims as a claim construction issue that's how it was presented the board on appeal one to survive so they would then have to go back and analyze whether or not there was any independent basis rivulet he has previously argued before the board on those claims you've been deprived of any analysis on at that  we the combination of are obvious in view of the combination that we provided to the board otherwise a green with yarn it would have to go back for those for those three for those three  claims regarding that they says from which they did allow those claims to survive it is directed to the independent claim and if i may i would express that the only difference that between the arts and the alleged valid some additional basis than the one that the more did invalidated we care only to the extent that if you affirm that decision claims six seven and twenty one would still be alive because they have not been invalidate otherwise by the patent lawyer those claims are still very much alive we don't believe we have many reasons why we would defend against those ultimately but right now there before you they have not been cancelled and we don't believe that they're valid because of the unpredictability arguments that they've applied to claim one here so that's why we care that's why we're here and that's why we need a reversal of the board's decision on this  are six seven and twenty one that that's correct those are the only claims that are potentially re mandible in view of the fact that there was no argument below by the patent owner on the other depending claims that are still alive and not moot prior decisions of this court those being for six to nine and twenty correct and twenty is an issue is an issue in the other appeal so that maybe that maybe come out and i'm  that to do so to show that the board did in fact look at the underlying basis of pedophila the four for the dependent claims and it's already made a decision does we incorporate the limitations or respect of the independent that for the issue on which the originally found the independent claims valid which this which is the the not of the it for his decision which was that the art is unpredictable we think that finding was an error because there is nothing reversed by the federal circuit on claims one and seventeen so i know i'm not reading that the same way that your are looked at and because there was a separate argument made for the patent believe those particular claims below i back to the to the independent claims the says without and to just extend that to the people that claim to know that i just don't see that there's a lot for the board to do here it would unless you reverse on the grounds that they held in the first instance in this case which is this unpredictable in the art and the alice this which we believe is deeply flawed legally erroneous and not supported by substantial evidence if you take that away the final written determination has no basis and for sustaining the validity of those claims and then you have to send it back for consideration the case law requires on the part from whether you're right about these independent arguments as to why plame seventeen as they have claimed seventeen is already been held to be  and claim six seven and twenty one depend from that and there's no other determination that they're not patentable we have a live issue on appeal with respect to the correctness of their determination on the unpredictable arts doctrine applying in an electrical case for attaching the modulators to a known digital television receiver in a completely obvious way where if you credit the testimony of their expert the patent isn't even a mr smith and your honour's and you have a decision here which says the dependent claims survive the as the independent claimed has not been shown to be i don't think so your honor because here we have a situation which is common in many even just record holdings where if you look at the patent ability of the independent claim if that was patentable the court didn't have to then go through and say well all of you know l so it wasn't as if this court entered its its ruling and the board sort of went on and disregarded the court's ruling that was certainly appropriate at that point for the board to do what it did because at that time it did not know what the result would be of the appeal with respect to the seven to eight idea that's exactly was nothing wrong with at that point the board doing what it did but now we're in a different universe we're in a different innocent verse in the sense that one of the claims that it was at issue in this appeal has already been found invalid so we're not arguing on this appeal that the court should change any of that analysis from that prior opinion all we're saying is that the board got it right here and even if it was and all and based on the board's decision here come to the same conclusion because it's already found that the prior art that was relied upon wouldn't be combined you would never know what it's decided is that that wouldn't be combined and that's wrong because we've decided that the claims are invalid so they can't rely on the that aspect of their earlier decision they have to look at the heart in the light of the additional elements added by the dependent on names to figure out whether the dependent claim survive now i think that would be a bit different petition your honor because then they would be bringing in arguments from a nother  saying you have to look at work that wasn't before the board and say that court now invalidates the claim and now look with that art and i'm fine you're misunderstanding me i'm not suggesting that the board on the reman would have to look at other prior do any analysis for the dependent wives what i'm saying around or is that the board's decision that you wouldn't combine these references and that this organism predictable would apply to all the depending claims as well it's already found that you wouldn't combine these for purposes of obviousness so you would now be the board would now be in a position of saying well do we scrap the entire analysis and start from square one which i don't think would be appropriate i think  the board has already found that looking at the references that were put forward in this particular petition those references don't work together and they don't formally or with cases from our court like ohio will unpredictable then there wouldn't be any different result if you then look at the  so looking at the boards finding with regard to the issue that was placed on appeal with traders focus primarily on the issue of whether or not the board's finding was appropriate answer and was supported by substantial  there is ample evidence that the board's decision was supported by substantial evidence the board's findings go into detail factual analysis it looks at credibility of specific witnesses in each of those particular situations came to the was a situation it was a situation where they didn't rely on the preferred in body mint of the vendor plus reference instead they took an alternative in body mint of that reference that only mentioned in  filters but didn't explain what you would need to do after that what the v p around applause indicates is that in this situation actually causes a problem and the problem is that you now no longer have a situation where you have and we're going to try to say that those two references could be used together and as our expert explained then as the word alternately found you wouldn't combine these two references because in this situation you have where one re telling you that if you make this combination you know longer how to synchronize the modulator and maixner saying we should combine it with the synchronous modulator those two don't work and as our expert explained that would be teaching away from actually the combination as opposed to recommending that a combination should takes place and so this complicated arrangement made it more difficult for max one year to make its argument that this obviousness combination should work and then on top of that there was ample evidence that this art is unpredictable and the unpredictability team not just from our expert indicating it's unpredictable but it also came from their own attorneys admitting that the orcs unpredictable as well as hearing it from their own expert describing how hard this particular order is a combination of the complications in the order as well as the fact that the unpredictability of the art provided substantial evidence for the board's finding that you wouldn't have combined these reference in this situation based on the appeal next linear set for they seem to be asking this court to reweigh the evidence and make an independent analysis of as to whether or not these references should have been combined this court shouldn't be making that type of determination and should be looking just instead as to the board's finding was it be some substantial evidence here the substantial evidence goes not only to the substance of the references that were asked to be disclosed in the combination those references but also of those of the fact that the were made explicit findings as to credibility of the experts in their determination that this art is unpredictable and therefore would weigh against trying to combine these references together in an effort to try to show that these claims were would be obvious in the briefing leaders argued that somehow the board confused the notion between the scale of the or and the unpredictability in the art but if you look at the determined that separate and apart from it in fact the board during the trial on this particular issue asked directly to max liniers counsel we have this issue directly in front of us as to the predictability this or what do you say to it and they respond an unpredictable art and then went on to try to explain why it's unpredictable the board was well within its rights looking at the record here and looking at the prior references that were put together to find that in this in clash in the prior p r the thompson reference was the base reference vanda plash explicitly references and is an improvement and contains more detail than thompson everything that's in thompson is in vanden plas already  i don't think it's reasonable to say that the board would just come back to the same conclusion with the knowledge and now that those claims are invalid over absent the arguments on level of skill i'm the one that made the argument to the board and i know ironic that you would be quoting that back to you because the explanations of the order was the level of skill in the art is high because it's a difficult complex and at times unpredictable art but the testimony of the experts and our position was consistent there was no difficulty in adding to modulators to the back end of the receiver the complexities in the are of course of the art but that's not where the difference between the invention in the prior art lay lay and attaching a plurality modulators which their expert said is inherent in the receiver can't have a working television receiver without of the modulator or any other receiver for that matter and i would refer you to examination at forty four fifty five through fifty nine especially forty four fifty seven outlines eighteen to twenty two forty four sixty two to sixty six opus testimony it appendix thirty two eighty seven eighty eight thirty three sixty six thirty three seventy one seventy two and thirty five zero one two zero two specifically testified to modulation is inherent in the receiver heart that was opus of thirty two eighty seven eighty eight that's in our brief at age twenty nine so the level of skill in the art cuts against them not for them because the level of skill and artists high and because the five a five pattern is written in an extraordinarily low level all it says about how you attach the module letters is that they be coupled to the receiver that's it there's nothing else in the specification about how to do it if you credit the board's position that it's just not unable i think it definitely gets a different result if it goes