good standing with the highest court of the york and new jersey i have knowledge of his credentials and i'm satisfied that he possesses the necessary qualifications and i also move the admission  dreaming was a member of the bar and is in good standing with the highest court of new york i have knowledge of her credentials and i'm satisfied that she possesses the necessary qualifications who is a member of the bar and is in good standing with the highest court of new york i have knowledge of his credentials and satisfied that he possesses the necessary qualifications i'm aware john's credentials  qualifications because he has done an excellent job serving as my locker for the past fifteen months john has been reliable talented and hardworking and enjoyed happened chambers he's got only then i dependable as a source for teaching difficult scientific subject matter but also as a source for making a good strong cup of coffee he's also demonstrated why his judgment and the selection of his fiance of much greater consequence and i need say no more the court the board made two critical errors in this case among others st it erroneous lee considered the obviousness of only physically substituting the censor of she for the censor of californian and it's its reasoning was that that was the only thing that the petition argued but the petition clearly argument more than that it will review the more desirable to use ready t p m to accurately and most efficiently measure the oil degradation in a frier system where i have two questions for you st of all what is the standard of review that would apply to this question i mean it seems to me it's a waiver issue and say we're there for abuse of discretion be the standard that we would apply well this court has said in the erickson case that it is an abus board recognized relating to temperature right now that substantial evidence supporting its decision no i don't think so your honor first of all the cooling means are not  standard in most of europe because the other two parameters are inferior and have and have serious problems so that's really the the motivation and judge laurie  yup the problems the problems were in connection with physical substitution of one sensor for the other and that didn't address the broader argument that this very strong motivation that you get from paragraphs three and four you were gucci to use t p m said not peroxides acids has no impact on that whatsoever and even physical substitution would have been obvious there's a very high level of skill in the art in this case and which which was not even contested by prime minister what about the secondary consideration there was problems in the industry awards there there was there is evidence of praise and the case law of this court has said that when you have a pretty strong evidence of obviousness and here i maintain it's overwhelming that that the secondary evidence of matter because it was satisfied by you were gucci and and calvin and the praise is not really it doesn't even have a nexus because the things that were praised are in equal gucci and in calif and in this court has said that you don't satisfy the nexus requirement if the thing that's being praised or whatever the secondary consideration is is fallon's in the bonds explained how there would be all kinds of drawbacks and complexity in making the proposed combination contained in the petition right on reply honor again the complexity went just to the physical substitution and it was cooling means the cooling means are not part of the sensor so you could substitute the sensor but obviously your combination  work and operate choir's to compensate for the high heat that's now going to be used against you or gucci's sensor and so your counterargument i understand as well you could just use a heap disappear to deal with that and and so and you don't believe that it's as complex as the patent owners making that out to be so what i'm trying to figure out is did you supply an expert party has that any evidence along those lines it's pure conclusive speculation by both experts but the cooling means is not part of the references have overlapping temperature ranges even even it would good she says that you can use his sensor at one hundred and eighty degrees centigrade he just prefers a lower temperature it's not a requirement he prefers a lower temperature to prove that enhanced the life of the sensor but he never says that's necessary in fact he doesn't even mention the cooling me as until claim six of you were gucci and it doesn't even describe it and just look th paragraph of the of the reference and none of that takes away from it all goes to physical substitution if the and detects polar materials but in connection with oils ready that there's leakage from a coolant system that is colder and it raises the conductivity of the gold standard in in most of europe and that's why you need to use t p m is when you're talking about fryer systems rather than other kinds of oil and the motivation could not be in california that detects t p m is and then he says in paragraph two hundred and fifty dollars you can use the sensor good for greater accuracy and for most efficiency it's the processor and or sensor of the what gucci well processor and or sensor means you can use the processor alone you physically substitute the processor which that one sentence or paragraph to fifty says if you physically substitute just the processor and not the not the sensor if you  how do you respond on the on the waiver issue how do you respond to the testimony that was pointed out or actions a testimony but the oral argument discussion right occurred at the  p tab judges repeatedly asked in the petition what was your position and the response reads to me as if they're saying it was just a swap it isn't why isn't that enough to support the board's reading of the petition and determination that any other kind of combination was waived ok it's not a waiver because the petition speaks for itself that i've explain why the petition has the broader obviousness or even if you look in general when the attorney at the board hearing was asked point blank about where is this argument this broader argument about combining these three references said yes so he make this point what are we supposed to do with it and trying to i don't know resurrect something kind of cryptic in the petition when it appears to have been given away at the hearing well we couldn't be waive because it's it's in the petition and he argued both at the hearing he argued both obviousness positions substitution and the broader alternative argument so he wasn't waving at the oral argument because he actually made that argument the petition as i said speaks for itself and all he was i mean he made ambiguous statements i know he clearly made some statements that he didn't have to good morning writers may it please the court joseph lawyer on behalf of fry master what we've heard this morning and what is evident from the briefs before this court is that the appellant is trying to rehash factual determination as that were made by this board in a well reasoned this thirty nine page opinion that walks through from the premise of the petition that one would substitute the sensors of even within the system kaufman to reach the six hundred and ninety one claim pattern and by doing that it walks through the arguments on motivation to combine the evidence presented on motivation can buy and additionally the evidence on the secondary considerations is on our friends those were pretty close though whether the references were pretty close is not the question before on this one or one hundred dollars judge lawyer the question before this court is the question that the board did interpret  paragraphs in even gucci that refer to why one would use t p m were analyzed by the board that is a factual determination as well within the structure of the board and the board look to those facts in addition to larger facts right can you what it says and we're not trying to reread the paragraph but what we are doing and what we did before this part of the presented evidence that the reference as a whole looking at it was gucci in its entirety and that the problems that you were good she was confronting even when the goal was to use total polar material as its mechanism for determining oil degradation it then took a fire system and inserted a diversion cooling sampling loop and in that loop for numerous reasons you have oil cooled using it dissipate or the cool oil that i hold for me as a stand let's just stick with paragraphs three and four i mean you're talking about something else paragraphs three and four here to be communicating that measuring t p m is a better way of detecting the degradation of cooking oil and these other measuring for these other values of those the entirety of the reference and not just those passages in isolation ok as well where did passages in isolation and my reading them correctly when i say what i said what we're not disputing is that the paragraphs read precisely what they say ok so what else in the reference when you say let's read it will go to the whole that somehow it was good she somehow walks away from what it communicated and paragraphs three and four point is not necessarily that it walks away the paragraphs are there it says if we're going to use this as an approach which is we're going to measure total polar material this is the system that will achieve that result and in this system what we have is we have a  it is clear is day in this representation that you have to lower the temperature in order to not expose the oil to prolong periods of heat which will degrade the oil to cool the oil such that they extensor itself which is measuring t p m is not being exposed to scalding hot oil to damage the sensor also to ensure that you're getting within the temperature range that is prescribed by the conversion table that you're not out putting an error message so all of those statements in even are statements that the board considered in the totality when they were considering the petitioner's argument that one would do the substitution now the argument we heard from the petitioner again and again is one could but that is not the question before the board or this court is whether one would be motivated and one would expect to reach achieve results out of it and that is the board itself determined that that was found and this court has a court of review of those factual findings i was deference to the findings of the board now we agree with our friends on the other side just those question that on the waiver issue that this is a abus discretion standard there is no doubt about that and the board was well within its discretion under the requirements of three hundred and twelve dollars that the petition must set forth with particularity the basis for the grounds on which is moving this board determined that that was a substitution argument and that the petitioner again and again affirmed those results and it's and it's well reasoned opinion reached its conclusions and judge laurie and i how do you respond to the point that the petition stands on its own and that we should just look at the petition and the language in the petition is more debatable as to whether it's proposing a national substitution board should be able to ask counsel what the petition says and have that be held against counsel i think that the board is is charged under the statute to determine what is in the petition and the predicate of that is that the petitioner must factually state forward and articulate and in specific means what not only its arguments are but what evidence it has to support that and then when the board is issuing its institution decision the board has the obligation to explain why it's instituting which this board did with clarity and although the petitioner sought rehearing on the institution decision it did so on grounds one through five not grounds six which is the ground that was instituted on so there was no point at which in that rehearing motion that the petitioner contended that the board got it wrong there and then when it became apparent the petitioner was trying to inject new arguments that had not been made or that were not instituted on they can p repeatedly on this record that the position that the board took was the correct one and that should be affirmed because that certainly was not an abuse of discretion or honor and i'll take judge lauri's advice from yesterday that you'll never of total pull and materials are known in the prior art those skilled in the art could readily adapt such sensors for use in calvin system but then he explained why they would want to in fact he said could if they wanted paragraphs show why one would have wanted to desired to measure total solar materials and therefore would have originally adapted the sensor to measure told materials the provides for detecting the amount of polar compounds for the purpose of as mating the degradation state of cooking oil does one skilled in the art would would have understood that it was desirable in the field of cooking so when i ask another question which is earlier you had directed us to paragraphs three and four of the reference but is that i don't see that part of the reference relies on the notion that it would be more accurate more accurate and more efficient yes and and the reason the basis for that is what's in our graphs three are is the word know that the basis for that is what compare graphs three dollars and four dollars if it's not identified in the petition it is not cited expressly in the petition if you read you a good sheet then you'll see that that's where it is this is just like the erickson case where this is just an expansion erikson versus intellectual ventures roman numeral one where the court re men did because the board refused to consider an argument saying it wasn't in the petition and this court said that was because it was essentially the same thing that was raised later on there was no new reference that had a significantly different point and and that it it was