thank you ma'am please the court this film an amount of overlap between issues what we just discussed in these cases so i will try to avoid repeating myself on some issues and so focus on some of the issues that are particular the there is a claim construction issue there and it ties more directly into the rationale to combine issues that you tie together but as an initial matter it's worth pointing out that in the context of construing the term lateral transfer has approached th mine here the board never offered any construction for what lateral transfer was mad at all it the only thing that it stated about claim construction is that term is a statement of intent and you said in title to no way it other than defining the system in its component as being suitable for that type of useable capable of capable for that type of use so we generally agree with that but there are consequences that flow from that construction that include at least one why a person of ordinary skill would put these components in prior references together in that manner if not you know if it's not the stated intended use of the claim what is the purpose and then to this capable issue for rationale it traces throughout the cases and that is that you know that ties to the fundamental misapprehension of the references upon which the petitions were constructed when i mean and the opening reference was assumed to lateral approach going through the nerve rich region of the so s the state of rationale was you would want nerve monitoring to navigate through that now that's wrong for two reasons one the stay there at the time taught that that nourish region right at the core of your case on the system claims is the proposition that nobody would have been sufficiently motivated to put the electrical sensing on the inserted devices unless they were planning to go through the nerve rich region of the so us and it seemed to me that the board cited the director in the green brief in support of the board cited still more  evidence that that's just not true there were other motivations to make that combination and if you make the combination and all you have is a capability  reference to use then you're there so why is the director wrong in saying the board found wholly independent open chain based on marino kelleher a few different things there was motivation to put the electrical sensing on the insertion devices of call sure so first as a pattern or in any of these proceedings our initial only stated rationale it was demonstrated that one that was that is not an accurate reflection of the state or at the time see that review that area of the body as not an area that could safely or predictably be traversed with any with than others doesn't mean that it's not teaching that you would use this device you know so again two responses one coming back to the stated rationale and to the that characterization which i think you accurately refer resetted the words characterization i would just take issue with that actual care characterization i would like to get into that but the stated rationale i know i accurately characterize the board but i actually read the references and that's what they say well they don't see anything about the so as muscle in the paper they say anytime you're going toward the spine there's and even when you're getting into the so as muscle there's ept undisputed point made and evidence to support it that even in the so as mostly into your portion lacked the sensitive motor neurons that were being trace nerve damage is not a concern so that's what the so is most of what the interior approach again these these are the access issues that come up and drive these types of surgeries into your approach has access  absolutely would not teach you that as i think about the marine book because the marine of the first says nothing about the so as muscle to the way the device is constructed in no way is it possible to use that device so how a person would be able to use that expandable tip without completely shredding the muscle i have no idea but that's something i mean these are the things that aren't explained that gets to the keep a ball of issue and that issue trace throughout both with you know the nerve honoring references like marino but also the retractor systems like choros right of course is a retractor system having large flanged blades to hold organs out of the way how you would advance that through the so as muscle without completely destroying it is not apparent or explained anywhere so there is this you know rationale issue with that and with that we'll wait and a lack of explanation how these things get there there's really just there's a claim mapping but it's a rationale that's that's clear just ask the first uses of this question just assuming for a minute that marino kelleher motivated a relevant skilled artisan to put the electrical sensing equipment on you know a system of you know that's not the patent owner's burden to do that your honor we and we were criticized by the board on that basis but in the context of rationality metra there of evidence that once you had that you know electri absolutely no description of what modifications would need to be made how those would be done and why somebody would do that again this is you know i do want to you know i've got three minutes i do if i may i want to answer your question i do want to hit the objective evidence which are very important throughout all of these cases but it ties into you know some of these very same considerations were talking over motivation you think you can do it the board did which is to find the elements and ask why and why not there's there is one we should or should be in a position of really having to answer that without you being the party without the burden of proof but the objective in is the type of evidence that supposed to address that type of you know why not question in it are you contending that x l i f c is the invention that well the the board had difficulties some instances and they didn't have difficulty in other instances when you when they treat when they address the dishes for that for it's not down value and you know i'm there  board's entire response was essentially to go find unclaimed features and point out that those are not expressly reset it so again if if everything that's uncontested is taken what we're left with is the commercial  t falling within the scope and and nothing but it but nothing of rebuttal beyond saying that there are there are aspects of the system that aren't expressly reset it but nobody was contesting that felt in pictures in illustrations to the with nerve monitoring in particular the claim dilating k later instruments and regardless of a trance or less approach the spine there is also then evidence presented that there was a motivation to use this in a tran to the capable of question there seems to be some argument in their brief that there wasn't that there is not evidence that these instruments are capable of going through a direct lateral approach to the spine lateral trance so it's approach and that there was a motivation to combine these particular instruments and they would be capable of going through the direct that oppose where's that where's the capability evidence so i think i don't think it was is it just an argument th a capability of race and not have any evidence affirmative evidence of the capability i think that there was the evidence was sensually that all these references talk about generally using it to four lumbar spine surgery the minimally invasive instruments and the nerve monitoring and that it would be capable then of any of those approaches i don't know what more they could have you know what particular evidence they could have s janya we combine these in their expert testimony there is expert testimony that being that of a motivation to combine these and to use them in a direct lateral approach there wasn't any particular testimony about in order and i think that i don't think the evidence was any different in for the system claims than the math it claims i mean it was talking about a motivation to combine tell or using their eva i mean i guess i think it's want to focus on this because  least possible to view of the method claves and one of them they can do a claim to structure things that we can forget about the problem if there is one of lateral the other one there may be a problem of lateral now where the system claims one of them has a lateral and the other one doesn't have a lateral but they both have a capability and so there has to be evidence we didn't need to talk about it that's that the two methods patents so i guess i really am interested in the specific evidence that when when you create this apparatus it is capable of being used maybe that's infertile from you have a motivation to use it but i guess i'm going to see what the evidence ok so let's it has advantages over the anterior imposed theory or approaches so that was testimony that once you had a motivation to combine the particular instruments that you would be motivated to use it in the direct lateral approach there wasn't any specific testimony or statement are a declaration statement about any particular structure that you would need to make this for the direct lateral approach as opposed to any different approach and there's nothing in there that there needs to be a specific structure and they didn't give a sieve didn't present tense of contest the proposition to the say well even if you create this structure that's not and even if you assume this is in your capability you haven't shown that that capability exists for that structure if i understand your question is no base of didn't contest before the more that there was any particular structure that the motivation combined failed to meet so that it wasn't capable brief for this court where they make our attorney argument about how you wouldn't be able to modify these retractors to do the direct lateral approach as opposed to different approaches to the spine so i think the argument is waived and i think that there's nothing the side there's nothing no testimony that was before the board or in the specification that they can point to that the combination of the prior wouldn't have and capable of doing the direct lateral approach and let me ask about the objective and  first of all do you concede that to the extent that the borg said that you can't show a long felt need without showing your fathers that that was error to the degree that they were still making a legal statement that with that failure of others required that month only for choir failures and others yes that is incorrect i don't think i think that they were saying that's not what i think they were saying they were saying there's no evidence of a long felt need because there's all these other approaches and when they when they presented arraf they did make that incorrect legal statement they did when they made that site they also then had a parent that a call from another case saying just because there's a long time where no one's come up with this reference doesn't is in itself sufficient to i think that's what they were getting at is or nothing not pointing to me to anything or anyone saying we need this lateral approach as opposed to there's problems with the other approaches and then in the absence of that i haven't you haven't shown there's nothing that shows this failure of others which would indicate that someone was trying that so i think would be harmless error what's your response to that x l i f i understood that the board said there's just really insufficient evidence that practices the claims your friend on the other side is saying no there really was no dispute that it practices that time so what your response to that the board said that that evidence first wasn't correctly incorporated into their response to the claim chart everything was outside the brief and they didn't properly make the argument in the patent owners response were also then went on to say that even if despite the procedural infirmity there's no evidence about what this is if you look at what the expert was pointing to there's this next access system and then x less seems to be a subset of tools within then using these next access it it looks like that's the max access system that's where the canyon later in the dial it in kenya leaders are and it's the nerd neuromodulation system and that's so it wasn't clear to them that what this x less system was and it and that there wasn't sort system and with the different x left instruments is it a fifteen thousand eight hundred ninety seven in the next page then you have the general instrument system and then it's not till you get to fifteen nine zero one where you're talking about the next access system that you had the dilators and the k referring to but beyond that the board said even if you know even if there's no presumption of nexus these are clearly components of a larger system so there should be no next to that and there was rebuttal evidence anyway in something about about an excess and i'm not remembering precisely enough i thought i was remembering i think i'm remembering that the board said something like the following you can't have a nexus based on a  composition claim to the composition and it's put out on the market for the one f d a cleared use that makes it extremely attractive and the market goes wild that evidence surely counts as legitimate commercial success evidence on an obvious inquiry where there may be prior art that's really close even though as is also common other uses of the very same molecule may be around so i guess that the idea that you can't stand a bush nexus by pointing to one of a number of uses t overbroad can you help me on that i think what and i hope this is helpful i think that what it is is that that come that pharmaceutical composition every once and its use for whatever it does is because of what is me that our little litany of secondary considerations maybe puts things in in segregated boxes more than it should but just focusing on commercial success rate turns out soon as this was available on the market a whole lot of surgeons thought this is a good option to have and a bunch of them started using it and they knew that there were problems with the other approaches not ones that would lead you always to use this one but you know  system turns out to have been of quite considerable interest in the medical community i think the extent there was a failure to discuss other uses that's wrong because if there are other uses of it that's fine i think that it's the nex problem comes in it's when when the doctors are talking about i use this because and it's so great one chose that it's they're saying the neural modulation system is direct real time automated our proprietary software that's what they're praising and that's not tied to the claim so it's not that there's other uses that's the problem that that haven't been shown or looked at if that praise for that that that that product is getting i not then tied back to the claims and that's i think the nexus problem that the board was focusing on so would have been fine if doctors were saying this is amazing we can now go through the trance o s we've never from any approach we've never been able to do that six  ineffectively before and it's just because of the nerve modulations with the dilating kenya's but if they were saying it's because they have this new proprietary software and that's the problem where the nexus of what about answer your time over my time submitted and it was a party that they couldn't tell and there is a complaint that it was easy enough for them to tell i'm not clear that these that they went as far as say they couldn't i don't think they did actually let me say that they did not find they are unable to determine that they complained that it wasn't that this whole clean chart in dr phillips is explanation which by the way is evidence not argument that was not bodily incorporated in