in consultation with experts creating harmful legal error throughout the board's anticipation and obviousness determinations nd the board illegally erred by improperly using the seven hundred and seventy nine patton's own invention disclosure to pipe and forth the board erred in combining gilbert with barnhart to render the claims that issue obvious because a the board failed to identify or cite a specific reason to combine and be gilbert and barnhart address diametrically mark in terms of the analysis for anticipation where is it that the board relies specifically on some expert aspect of it pose a definition to reach the  the anticipation conclusion first respectively or on or the only definition of a seated when the court says what is the ordinary skilled artisan it's one that accesses and consults with experts so i would argue that that on twenty an explicit usage of what we understand is the only interpretation of the board as to what f o c did going to experts in accessing them the nd response i would have is that every citation to hill's expert in the board's opinion is citation to an expert who threw out his expert declarations explicitly and quite frankly doubles down on the definition that when i'm talking about a person having ordinary skilled in the art that's a person who would expertise and my response with respect to to what element of the anticipation analysis are they using that high definition to the region conclusion that interpretation of let's say what barnhart discloses in the pressure of the tailpipe they are relying on expert testimony that is through the linz of a person having ordinary skill in the art that would be accessing and consulting with experts so you're correct your honor they don't say explicitly it's an expert that we're looking at here except when they define what a person having ordinary skill does and the art is later in the opinion but when they're citing hill we're i believe one of the factual findings with regards to barnhart's pressure on the tell pipe limitation and you're looking at so we can start on that one which starts on the appendix ip a thing nineteen through pressure but there's this pressure gradient if it's a slippage dominated versus friction dominated and those citations they're on one team or citations to hill's expert and so on a fussy to definition that's improper and then if you go to the discussion of the the discussion of the requirement for the pump to induce flow of to tell pipe and that's the discussion it starts on of headaches twenty to hill's expert who's looking at it through that improper lens did you argue that the anticipation issues than any one of these findings require this high level of expertise expertise we did not explicitly argue that it would require that argument is actually even under an expert interpretation the law is basically a barrier to finding that barnhart has these elements because the the plain language of our heart doesn't talk about either of these elements so our argument was actually the definition is improper it raises the bar here and makes it very difficult to find these claims valid but even if you accept their foes see the definition and you take a look at barnhart and that was our position below basically was that the facility was what what is the problem with the definition of the procedure in this case it just seems to me that when the set you talked about the section one of three talked about ordinary skill and i think here it's those terms together judge rayna we're not arguing that apathy that never act that there's an expert what we're saying is improper but that's what the definition opinion when he should have just been a procedure so to the st court judge raina we contend there is a difference between what builds up the ordinary skill versus their definition of an expert which means that ability to solve problems compared to lacking access to them so essentially allows you to backdoor in an expert to see that because they get access to the seat and that runs contrary to the just ignore the slippage dominated but the court still finds the court to the board still finds that it is slippage dominate is possible and then finds that barnhart anticipates and so we think that is where th expertise through heels expert allows you to add a lot to barnhart what an expert would understand judge rayna not a ordinary skilled artisan and that's what generat just under three and a half minutes  assessed mr sutton's opinions and found them to be wholly unsupportive by any citation to objective evidence and relied heavily on his admission that it will not convert them to experts there is that this is  to i'm i'm i guess interested in how this notion is properly cabin would it always be the case that a person of ordinary skill in the art just as we assume that person knows all the prior art also has access to at least quick consultations with experts and if that's the case what's left of this notion of an ordinary skilled artisan or is it industry specific so that if the relevant industry is one in which the ordinary artis works in the same lab with or on the same field as experts and the consultation is a regular part of ordinary artisans problem solving and in that context expert said in the definition that they could have access to experts and that would not turn them into something that was not and that is really the issue is the the board analyze the evidence including m alludes to an understanding about slippage of facts either the board is saying well the expert understood it that way which seems like maybe it's not the right standard the right standard is what pay ordinary artisan would would understand or the board is actually relying on some notion that an ordinary artisan would understand that without consultation which i don't think it says or to return to what judge dyke was saying some notion must be there that for this kind of reading of prior art and ordinary artists and would consult an expert and the board the board never says that with any specificity taking that last part freshener yes but the board never did the friction dominated slow versus simpson slippage dominated flow is not something that would require extra expert expertise to see the education and work experience definition here was  that a bachelor's degree and petroleum chemical and mechanical engineering and three to four years of experience working with you like the cation or artificial lift and need to have expertise in this do look through the prior art through the lens of a person having ordinary skill in the art and that's particularly true here when you're either trying to take a conventional pump and somehow plug it into barnhart with the method claims or look at the tail pipe and say hey is there something there that barnhart says nothing about the nd point i would make is on the cabin in point one of the concerns with this approach of saying hey let's just see what factually happens in the field is one it runs counter to the idea that the st seed is a hypothetical person just like in negligence law there's no reasonable person i can still find that person is a judicial construct that's the same with the seat it's there for a purpose to balance the level of patentability and the concern here is let's say in some art fields what the c does do is they just use artificial intelligence and we plug it into a machine and we see what the machine tells us to do well then that would mean that in those fields nothing would patentable because the seed of the ordinary school artists and gets to have this access to someone who has a high level skill in the art and i think the particular problems here with this definition adopted by the court is actually explain stop the definition is incorrect but i'm not convinced has happened in this case yet so your honor my argue would be like that was discussion with the other side on on pages nineteen through twenty if you remove citations to heels expert which are based on the improper definition there is no longer substantial evidence for the police who bears the burden to establish anticipation in this case  or obviousness and so that's the reliance you're correct your honor it's not explicitly said but when they're relying on an expert that in both of the declarations kind of doubles down on this improper definition then we say that is actionable error and i would ask the court to look to a case like intervention where they talk about when do we have actionable air versus harmless error with the setting up the seated definition and that one example they give is when you set the proceeded definition high which i believe happened here and you have findings of invalidity those are the kinds of cases where there is error and the doubling down by the other side we believe your honor is what creates the error in this