case was filed for in two thousand and four and why that's important is because there has been not one piece of evidence to suggest that there's been any technological any developments in between that time that would have led someone and art to change the model to motivate them to do something differently moreover there's not one piece of evidence in the record that you mata had experienced with them that ten year timeframe any problems with leakage and the reason that's important is because the very principle of a border lies one of my lies upon is this notion that somehow leakage was the reason somebody would change amata to put on the was a problem let me point out this court says that in the statute section one hundred three it says pending ability shall not be negative by the manner in which the invention was made and this court interpreted that to say the path that leaves an inventor to the invention is express testing because i didn't hear an answer yet to judge newman and i know i'm interrupting and probably preventing you from answer but i guess i'm trying to figure out are you saying the spec doesn't disclose a prior right problem with leakage but to the extent that the spec talks about leakage this is the but that is not with credit connection that's a general principle any gap that's under pressure and it has a fluid is going to leak what i think is critical if he doesn't say cartridge is with radek no cartridges such as your mama with threaded connections leak at the seams he didn't know them he says they weren't used he had no idea there were threaded connections used in what's what's critical about that is the board as well as by a touch is experts say wait a minute you mata existed it had threaded connections and it had no leakage problems are you saying he's not a person skilled in the arm i'm saying the law tells you can't presume you someone skilled we are and you can't take what he says is that knowledge of what someone to be on the art knows the well tells you but it doesn't matter what he believes because we're not looking at what he thinks we're not looking at the path that led him to it in fact he was wrong in this case he says threading connections are not used that is patently false your mother had already connections it was used before she says it was re leakage problems but if you look at his statement in context it's on a five on one of the record paragraph nine he begins the paragraph by saying regarding to this against of leak proof cartridges i'm not aware of any leakage problems with the dr pearson goes on to say in light of this prior art the patents that issue in this case don't disclose anything under unexpected with regard to claimed advantages once again saying your mana did everything this guy was trying to do and so that's important because when we still look at the obvious in this now says and we look at once filming orders doing we know from standard oil that the person of skill in the art follows conventional wisdom in other words if it ain't can fix it the thing about penn is designed to promote innovation not stagnation personal skills or to stagnate he does what's available he does what's no it's just like you come out to the to the to the court today and you have a desk to put all your books but you can sit in the back and say gosh i got a problem where am i going to put my books and what the board here is they said well because you had a desk out there there was evan you should have one skill they are new there was a problem about where you're going to put your books that led the inventor to this solution and what his problem was is there were these cartridges that were welded shut these cartridges were manufactured so you couldn't detach the tops and so he saw a problem with that he speculated the reason the only reason he had cartridges that were sealed shut during manufacture is because he perceives there may be leakage problems but that's what the inventor believes in this court case law expressively says you can't look at what the inventor tells you he sinks you have to look at that was the solution to ensure there was no leakage what has to higgs ist is there has to be a reason why somebody would change that solution there's simply no reason why someone stealing the art who has the solution that keeps it from l design is cheaper than your model there is evidence that saying the path to design is cheaper than a well to shut design but nothing that says it's cheaper than your model and i do believe you don't even get there because i don't believe what about the evidence in the other two cited references keening and let me as an estimate of where they say gaskets deteriorate and break down over time i'm glad you brought that up because i think that's an important part of as well as why the air doesn't matter a lot they went into a different field and found a problem that existed in a different field and there's no evidence that those same issues existed in the field of the invention and i think there's a reason for that if you turn to the record too and this is again their expert their mechanical engineer and she describes this as a force the a four seventy one they say this is what sort of pop bottles are subjected to closure must maintain this seal for long periods of time while the product is packaged and transported is used by kids adults thrown around they're not that they're not cared for the way in the flash from a time feed you have scientists kentucky conducting important expensive tests they're naturally going to handle these things with much more care our view and the board's new was that that was in the knowledge not as to the state of the art it wasn't a discussion of what mr ellis invented it was in characterizes that and and that that was the board's determination and i think it's incumbent on the s p p to explain why that's clear error and i don't think they've done why why should it be interpreted as an acknowledgement in the prior art of the least if your problem that's the end of it and my question for you is if for some reason we think that the test is not satisfied can you prove that all your own of the rejection as you know was based on  are they as p p has a problem here because s p p is faulting the board for the way the problem has been defined but that problem was the find by s p p that's what they told the board in their own brief higher tolerances that they can to withstand higher pressure and i think there's clear evidence substantial evidence that it was it was born to look to those references turning back to walk you know that i think the fundamental question by injection so i think a person of ordinary skill in the art looking at that discussion would readily understand that having additional elements such as an overlay lead to the extra cost and there's a benefit by replacing that over a or adding in a part of the seal which is all the seal is is just an inclined surface that opposes the surface of the container itself  spend some of the bit about that our position has been that it's a person with a mechanical engineering background or industrial design background and that's based on the fact that the features of the invention are directed to mechanical closure features as b p has has stated that there will be a candidate who is completely ignorant of mechanical engineering and i think they say in the reply that that's that that's with a chemical background that works in this field they're still being tasked with designing this type of structure so they would gradually work to similar structures with similar materials operating under similar pressures and that would be something t reasons we've discussed your honor the you know whether it's a candidate or mechanical engineer if they have a design a market incentive to reduce the cost of the next apartment over and they would they would look for structures that still c but he then goes on in the remainder of his declaration which is not cited by s p p paragraph twenty where are it's that for ninety seven  didn't see and i must've missed it or hopefully you'll point me to it where the board actually resolved this dispute is the entire vantage point is a mechanical engineer versus chemist that is really going to change the art that i think one of either of them would look to in my view and i just didn't see where the board adopted the mechanical engineer or the chemist i just don't see that it actually results that it did these your honor didn't miss it they  didn't specifically address it and what i would submit is looking at who was the person of ordinary skills are is is a mirror image of saying what's analogous are to what would they look to and  decoration testimony but my what i would submit is that the board did address this issue in the sense that they didn't find it necessary that this was presented to the everybody in between is what s p p says and i think the chances in between so your argument is under the facts of this case you don't think it would matter but i imagine that you acknowledge that in some what we dispute is that they try to make this amorphous thing saying well the field flash from the target but the person still new are going to be a designer a flash from a tiger which somehow that that would change it to something else but it's not a person of ordinary skill in the field by definition has to be that ordinary person practicing in that field and these claims are met the claims are specifically for chromatography process these claims are very narrow specifically for cartridges used in the flash chromatography process so this is not a case like many of the cases they cite where the claims are generic or broad it doesn't ask doesn't claim a container it doesn't claim a seal it is very specific and narrow to a flask chromatography cartridge i'd also like to point out specifically i don't know i'm a person of ordinary skill in the infantry are but i don't know that i'd want to design a rifle well your honor but i could well i don't know your so i don't know what the experience can spawn and i have no idea i'm not and i'm not in full treatment but i just like to point out how clear it is that they use hindsight in this case and i think it's clear that record a fifteen and they didn't know their opinions the board did and that's what we have to look at what did the board say the board never said there was a factual find the board always said that we're relying on the teaching of the inventor for the leakage for example the known probably gets in the ready connections of plastic  flash from a target cartridge is under pressure identified by the patent not by their expert not by references in the field not by any anything but just the teachings of the inventors what they were life on they say based on that one of ordinary skill in the art would have turned to king and strong cyber to improve the model once again then not relying on what people who are nice people knew the information they knew they were relying on the information the inventor brought to the table and taught in his application and this becomes even more clear in the last paragraph and  i couldn't told me it says we are not persuaded that the pen disclosure that braddock connections are not used to form the body of flesh from the top of the cards does teach away from the prior combination applied by the examiner now before  cartridges were threaded connections are prone to leakage so they they themselves made a factual finding saying look so much fuel not really in the panties teaching would come away believing that thread of connections are prone to lea ely what they've done here they've taken the teachings of the past no they don't say the patentee taught that leakage into the connections they make a fact finding that the zero six one patent is disclosing a known problem of leakage and there simply is devoid of any reference you think it's in their part that they could have submitted a declaration if in fact it were true that there were known problems with leakage and there was no thank you thank you thank you that's