board's obviousness holding was not supported by any evidence because the board explicitly rejected the examiners only rationale for making the proposed combination of prior art second the board legally erred by imposing an initial burden on the applicant disprove obviousness and third the board's own newly proposed rationale for making the proposed combination of prior art is not supported by any evidence much less substantial evidence because it defies common sense turning to the rejection on appeal the board rejected various claims as obvious over lewinsky a pervert's the board's rejection is critically premised upon the board's conclusion that it would have been obvious to make a lose arm thicker than a mating depression in the other arm of the players this foundational conclusion is not supported by substantial evidence for numerous reasons first the board denied the examiners only rationale for making the proposed combination of prior art the examiner asserted that the proposed modification to lou was obvious because herbert suggests quote to have a channel of depression in the first arm that is not as deep as the thickness of the mating arm to avoid under the lee weakening the first arm close  to the contrary herbert makes no such association between the strength and the relative thickness of the player arm in the depression that if it in fact the board agreed with it at a problems and by holding that quote neither lou nor herbert attribute any significance or critical of the to the depth of the recess relative to the thickness of the other arm close quote the rejection should be reversed because the examiner provided no other apparent reason to make the post combination of  well i absolutely agree that in general thickening arm does make it stronger but that's not what the patent office needed in order to support its august introduction the past had to say that it was obvious to think in the arm relative to the recess and that's that's where the results in if the players coming along here that it's happened interesting and then you get to the invitation point and it goes down to a quarter of an inch thick then you have a potential weak point that seems yes the weak point would be so your grounds on page twenty one of the opening briefly show various hypotheticals and your concern that george grayson is where you shift from the the shoulder down into the recessed yellow that would be change which is a hypothetical c on this page twenty one by thickening that green arm thinking that the green arm does not change the relative to the recess does not improve the strength of the players it just takes the green  happen to have that that relative thickness difference that that the patent office relies upon even though her feet attribute absolutely no significance to that difference and that's exactly what the board helped i couldn't even tell whether her butt was a matter of looking or whether you as to why that with on why there is that shoulder beside her rhythm and that's that's the main flaw in it in the board's decision not herbert not luke not anything in the part attributed any significance to that that a depression having the same sickness as the arm that fits into depression so the black plate smoothly fits over top of that depression and if you are going to fall loose teachings no matter how you strong made pliers you would proportionally increase all  to continue that flat plate and the board is offered no credible evidence to deviate from loose teach patent office position for at least three reasons first which are of evidence requirement only applies after the patent office stablish is a prima facia case of obviousness by showing that the claims range and a range disclosed in a prior art reference wrong has absolutely nothing to do with the present invention although i will address your issue the president mention does provide a sinner area outside of where you have the made the intersection and it's that that quick fix finning down outside of where you without without straight while remaining that keeping the thickness that the overlap in question but again that has our invention honestly has nothing to do with why the patent office was wrong here i mean the p attributes no significance as the board found to the very change that the board is relying on in order to support this rejection supports the proposition and you say well i think there's your honor the figure doesn't teach that your your honor with ordinary skill in the mechanical parts in the pliers making offset arm configuration where you have just as your honor sent a notch cut out in the underneath arm and the other arm unblemished is extending out and as the board said that creates an intermediate section that exceeds the depth and purpose figures clearly show that and then herbert shows that there is a thickness here and people skilled in this art would apply that common knowledge of sickness as the board exam or said is the same as being stronger or makes it stronger to leave you and once you do that and leave because herbert has taught the since it's in seventy two you then only have to slightly bend the plate and that's opposite page level of our brief  a extends a long across and into a notch which is just below f right correct here and that is you could make a flush with arm b by putting a notch in arm b and making a very thin at the point around where the nut is but instead your point is that's the teaching that you say was embodied in that the idea of increasing the thickness of the arm of luke to the point that it extended  above the flight what would have been the fleshy edge of the other arm and therefore it needed if you could only use a play a plate that hopped up and then with absolutely your honor it gets no more complicated than that that scene  pliers with the plate and knowing of the age old teaching of thicker arms as herbert has been around since eight hundred seventy two somebody skilled in this art and they've been working as hard for many many years since can seventy two at least would look at those two figures and say well i could use herbert's liquor for a stronger required application at the examiner board both found when you want more strength what would you do when you know about the strict orders herbert teach you about testing i think it's just a price suited to even some unexpected results testing or other types of testing to at least come back with something before the p t o were to have to issue this claim i think it's a play itself confers some in looking at herbert as the examiner report found you have just an offset arm configuration which has been known in the art as i've said many times for many years and looking at herbert and leave you  together you say wow i can have an even stronger second arm that doesn't have to be as thin as we use because herbert has talked for so long a sticker or arm and then all you have to do is slightly bend the plate and then you have a stronger pliers as the examiner and board found and that's the substantial evidence that supports their obviousness findings setting forth the prima facia case and again applicant has done no testing to try to office not identified any rationale for doing so herbert what herbert shows in the pen off had to go back a hundred and what thirty years to find that hundred forty years simply an arm why would one of ordinary skill in the why sickening an arm relative to a recess in the on other arm provide any benefit at all the second point i'd like to make is that i am really having a hard time following that part of the argument if you say middle or in the do that you are making it stronger by increasing its thickness relative to x so whatever the size of the x is that if i increase the sickness from x to x plus our common sense argument here never had an opportunity to provide this evidence it wasn't until they reached the board that the board created new with its new allegedly common sense rationale which happened after the record close when the board raised in the rejection it's obliged under thirty seven c f r forty one point fifty b to reopen prosecution and give an asking up an opportunity to provide new evidence here the board raising the rejection by relying on common sense alleges common sense instead of herbert's explicit teachings to support the above the rejection so i'd like at least a remand if you believe that evidence is required to support the palace common sense argument that increasing the size of it the thickness of an arm relative to a depression would not have an o