you your honor may please the court matthew will for boston scientific the board's findings that a truly significant medical invention one that's already say thousands of lives was obvious is rife with legal error and hindsight bias i want to focus broadly speaking on two of those legal errors first the board's one sense conclusion that there was a reasonable in terms of the reasonable expectation of success under honeywell and its progeny the board must make a specific finding that a person of skill new york would have in two thousand and four had a reasonable expectation of success in combining the prior are yes run otherwise the device would fall apart the union interveners says that way because you don't race is that true and if you do if it's not true where do you raise your honor it is not true it is raised for example at the hearing itself before the board at a nine hundred and sixty five where that precise argument was made it was made in a number of different ways in fact and the argument is simply i mean  commissioner support element must be attached to the stent in this case there's a clear structural window that acts to hold the commissaries which are just the the ends of the valves it's clearly a structure distinct from this and we have the pictures in the briefs the surrounding lattice work of the stand the board made a fundamental claim construction error it found that if you use the word attached that means you must have a an a and b separate at some point  brought together in the same way that the handle of a water pitcher is deemed attached if it screwed on but somehow would not be deemed attached if it was integral ie made in the fourteen process this court is found time and time again that attach doesn't mean a method of manufacture it means that there must be a connection and there's clearly a connection between the commissaire window and the rest of the stent lattice work so the sum total of the of the reasonable expectation of success analysis so on page sixty eight a sixty eight we agree with petitioner that the proven capabilities of ceiling suggested by the success of fabric steels in the stent graft context supports an expectation of success or the same features to be applied in replace to replacement valves that is legally insufficient under in touch and similar cases where the court is so they have to explain the board has to explain why you find something the burden is on the board what the evidence suggests but more importantly the burden was on the board to explain why it shows that evidence and it simply doesn't do so on that basis alone remand would be appropriate on that basis alone but we actually went below and explained why you wouldn't have a reasonable expectation of success and broadly speaking they fall into three categories firstly the anatomy of the aortic valve are very different than the the anatomy of the heart valves the simple reason is because in  our procedure the tabby procedure there are the old calcified valves are pushed back and you have to account for that when you're trying to deal with leakage there's no such problem or issue with the aaa valves and the bore is completely silent a healthy balance but where is the law that says you have the motivation to combine features for the rare instances as dr their own expert rather petitioner's expert dr bowler acknowledged you want to have or to work in a calcified in the heart and when we confronted dr bowler at his deposition and this is we said about the whole q when a in our briefs when we said look yes calcification the word appears in both places but it means something very different these two context something about accounts can be very small in this disease now that you're trying to insert the replacement though into something as small as a zero point one and that's kind of goes to that error i was talking about a minute ago there is no doubt that in the corner case the extreme case the particularly healthy heart valve or the particularly unhealthy triple a there might be some overlap but the question we have is would one of skill in the art be motivated to combine and you're not motivated to combine a and b to solve the corner case and dr beller acknowledge that you want to treat the  calcification of the situation in front of you and so that i think this is a legal error by the board to suggest that because there are extreme cases in one or the other of overlap that that satisfies their burden of showing motivation combined of the question is would want to school in the arc say aha those aaa seals will will solve my problem in the heart and they wouldn't because at their core typically they are very different problems the last issue with this regard is is it goes to the experts and i don't want to be flippant here your honour's but if if we're talking about operating systems for example and one person brings in bill gates and someone else brings up you know a grad student from a local university who might meet the minimal definition of a person of skill in the r i can envision a case where you'd say i'm going to reject bill gates as opinion over this grad student but you owe an explanation for why you did that and time and time and time again this board shows dr bowler over doctors mangan our own brecker despite the fact that the latter are the bill gates's of this industry and dr bowler while an eminent surgeon had never performed a triple you as you agree that  extremely qualified experts who lived in this world at the time who are describing the anatomy versus someone that's that only knows this stuff because he read it in a book at least the board has to explain why they chose dr bowler over doctors mangan our own records and they just don't they just say we did we believe dr political why he doesn't have the experience of the others do he doesn't have either now or at the time he didn't work in both worlds he only knows he's only want to personal skill in the art because  incredible in the sense of liars they didn't say we find them to be dishonest they just chose one opinion over the other for reasons that remain unknown to this day if i can shift gears to the issue of secondary considerations unlike most cases it is undisputed in this case that the invention contributed to success of the product and was directly praised as it being an innovation and this is from a five hundred and thirty two just an example a doctor said the safety of three valve is quote a very clear and vance on previous designs which incorporates the skirt a very clear advances real time real world descriptions of will why does the board take that seriously all they say is well there are other features there are other things that were cool in a sapient three to maybe there were but that's not the question for this whore if if apple introduces a new device that has three different very neat features in it one of which infringes their answer is you don't have to think about secondary considerations as to feature one because features two and three are also cool that's not the law but it's a long felt but unsolved mean  actually bring it into the real world all then see that it works i mean the skepticism of this product remains the patent sat there for four years while my client worked on bringing a prototype to market and it wasn't until the prototype was seen in two thousand and eight that people took it seriously and in fact was copied by the petitioner who then put it in the next generation valve and in europe in twenty million ninety two thousand and eighteen worked like gangbusters they went through the f d a process it can't be that that period of time stops when the patent issues what if no one isn't clear lodger so why should we listen to a church or to hear what the board found was that dr butler did have experience with implanting stands type prosthetic devices and also at the time of the invention in two therefore one of skill in the art at the time of the invention in two thousand and four could have been a cardiologist that had a working knowledge of at least implanting these types of stent prosthetic devices and dr  fabric seals can you be used for vents leakage between prosthetics and made it to show and further that these fabrics steels can be used in calcified in irregular environments therefore not only was dr buller's testimony supported by the argument as well as dr crocker but what the board found is that they made those arguments with no supporting evidence so they made that argument based on their experience but again remember as a two thousand and four not that many people hadn't actually implanted these devices in these environments and so this experience is probably or rather their testimony is riddled with hindsight because it's based on an experience that happened post two thousand and four also they didn't actually cite to any supporting  art to understand that those flaps would work in these types of devices even in this environments and so therefore boards findings are supported by substantial evidence finally with respect to the secondary and  non obviousness the board did credit boston scientific arguments with respect to industry praise and commercial success but what the board found is that this was a predictable area art not only was the problem other types of solutions to address p p l goes against the record evidence here that there was some sort of secondary and it should not exist so even though they did show some modicum evidence of non obviousness the overwhelming evidence in the record shows  understood some probability whatever it is of success of moving this skirt flap device from one area of the body to another where it had never been done before that's really i mean maybe it's sufficient but overwhelming if there's serious secondary considerations saying the industry prays in particular was a leader of others that there was unexpected results here and because of that because the problem was known and because solutions to address for now and they simply did not meet their burden to show that there were  overwhelming evidence of non obviousness what the record actually shows is that those the scale of the art knew that there was a problem to be solved and knew of ways to solve the problem and i'm sure it was just internet and i think we've just use prosthetic device as opposed and stuff there would you agree that if there is a big industry free say for example significant industry raves about the patented features into the van the device of a multi component device were also given a lot of praise and i think that would undercut any industry price shown for one particular feature of all the components of it and why i mean let's say hypothetically i have it the opposite instance can you explain to me why your position makes more sense so i think that would make more sense only because these other features could also be the subject of great incentive output there could also be a patent on the other features and if there are the industry craze might be because it's boston scientific and as a consequence people pay attention when boston scientific but something on the market and and while there may have been  a pretty substantial company and edwards prior devices also had significant crazy and commercial success so with respect to the commercial success evidence it's also unclear whether or not edwards market share had mix of considerations secondary secondary and the one hand sorry about that and the prior art stuff on the other is a lot task for us it's not a fact task for the that is a good question  one steel for example the court in the court looked at the court's consideration of unexpected results in comparison with the board's consideration of what the prior art showed and the court indicated that the boards that the right way to think about the other side makes a point and rests on kind of logic that says well me if if the industry even after the filing of  st backing up to the two one thousand and four dollars date the two thousand and four date is their priority day but it's not their filing date they filed it later so that's just closure that they're relying on in their of their application wasn't public until later your questions sort of going just the size of the company perhaps dictate the industry phrase i would just ask the court to look at are the blue brief it thirty four to thirty six in the great twenty five to twenty seven s is to read a very good year on it let's go on to the  characterizing their own work and so this notion that because the st generation had reduced p p l from x to thirty doesn't mean that the industry wasn't struggling and failing to reduce it from thirty to two where it sits today thanks to my client's invention to try to us the strength of the primary consideration areas which would it what's the the core thing that you think is missing from the outside the the core thing that's missing is  if i understand your question correctly runner is the reasonable expectation of excess success and going from down here to hear that from going from a relatively healthy and just to be clear for elliott remember this was the point that my life learn and also then the disease of that initial anatomy has very different fundamentally different characteristics and it was a breakthrough to realize you could use a skirt ought to fill with blood to clot to  the last point i would make is and this is you can kind of go through i'm sorry you can wrap it up yes can i make the last wondering if you're quickly yes run into the last point and this is one of the most frustrating things about it that wrote the textbook so to say that there are paeans are conclusory or like to use the analogy saying bill gates is conclusory when he talks about the history of the operating system or roy williams his conclusion when he talks about the development of half what often it's these are the guys that kno these are the guys that lived it what else do you want and to dismiss it by saying it's conclusory is just refusing to address the issue at hand which is that this was a breakthrough that has saved lives thank you very much