that is not only accessible via an opening in the outer shell but which is also configured to provide access to the st shielding compartment and the close over the st opening of that shielding compartment honor st of all the st door is not disclosed inclined because the generator access lid is not accessible via what the commission found to be the opening in the outer shell if you if you turn the page forty seven of you can see the picture of klein showing that the location where the the court the commission found the generator access led to be as you can see it's on the top of the car on the outside of the cart on the top but if you look at appendix page sixty dollars to seventy six dollars you'll see what the commission found to be the opening  the outer shell and that opening is not on the top of the car it's on the side of the cart and accordingly one would not reach through an opening in the side of the cart to access a door that resides on the outside of the top of the cart and if one were to reach up to do so one could not then obtain access to the shielding compartment of the that is the generator compartment also the st generator access looted doesn't close over the opening to the shielding compartment the commission found instead that the so actually your your honor i would submit that it's certainly not harmless error because the commission erred in finding an element of the claim satisfied when it was not and the commission did not make a finding in the alternative that it would have been obvious to add a door having the features that are required that was the theory that was argued by such that it would provide access to the generator compartment and to close over that compartment given the failure to address all of those additional requirements of the claim limitation the commission failed as a matter experts testified at trial that klein itself does not teach any motivation to alter or klein or combine it with other art despite that the judge found based on his own analysis that was not previously made known to the parties the client did indeed provide three motivations but the motivations that the judge found and that the commission relied upon motivations that the judge pointed to the ability to move the cart around during patient treatment that desire for motability mobility actually teaches the way from putting the dose calibrator on the cart out we could have clarified the judges in the commission's error with regard to the misunderstanding of the purported motivation supply and we could have submitted expert testimony with regard to the passages of  that were cited by the judge and relied upon by the commission that would have shown that these related to two issues that would not have motivated one to place that does calibrator on the cart but rather would i'll just finish this point your honor so the record shows that for thirty years the only commercially available product used those calibrator that was not on the mobile cart and even today the most popular commercial product still uses a dos calibrator that was not on the cart likewise when the university of ottawa where klein was  hook up the system to any of the commercially available those calibrators and as the commission found it was only after jubilant learnt of what brocket was doing remember the before you move into the merits of the obviousness arguments i'd like you to start by addressing their argument that the commission's decision on klein alone violated  i'm sorry which is which page in particular represents the staff raising this argument hold on just one namely briefing but it requires an opportunity to present facts so did can you please respond to whether ruskell had an opportunity to submit evidence true that they're not permitted to submit new evidence before the commission to record they could do that even before the commission or they could opt for demons to be and change just to be clear rocco asserts that they are not permitted to submit new evidence before the commission is that correct  opportunity to present evidence because they didn't ask for reconsideration or a new opportunity to do so if the commission closes the record and then makes a decision on a basis that wasn't something they had the opportunity to submit evidence on they're allowed to appeal it to us they don't have to ask for reconsideration before the agency i mean do you do you see some problem with that is there some law that you could point me to that would suggest that my understanding of the law me to to to to address the combination of klein which i'm sorry one last one last question if you don't mind i just need to understand the logistics and it's nowhere in this record at what point before the a matter of right have the ability to submit additional evidence record before the ale j was required to be complete at the time of the preparing for use meaning no party was allowed to submit additional evidence after the   the commission's k s r analysis and with respect to the st shielding component referenced in the pending twenty to twenty three there were two bases and bracco failed to to appeal one of them to challenge one of them so there there's a large body of evidence that that the commission made its findings and based its findings on that are that are largely untouched by practices appeal and i think there's a possibility of sort of a misunderstanding or a made and argument against them this isn't this is an issue where there's actually different approaches taken by the staff and taken by jubilant when presenting that claim element and math to get onto the evidence of record the staff had taken the position that this generator access lead is sufficiently teaches a door encloses over the shielding compartment as required using it from a perspective that closing over doesn't the evidence that we presented in the argument that we presented was the doors are conventional and common in the ark and then it would have been obvious to place a door directly on the shielding that is provided by the klein system the lead rings that he calls the shielding the generator twelve that it doesn't decline doesn't actually disclose the st are limitations right that's right that's actually right he said that that's right and then he and then he had a statement that doors are conventional in common they're everywhere that he had seen and his experience working with these radioactive materials is a guy with i think fifteen years or so of experience working with radioactive radioactive materials but i think never did he ever take the next step to say that doors are common and doors that are but he did explain that so he explained and this isn't on page forty three of our brief that that that these are taught throughout the body of art that he was relying on and that these are standard and these are things that people would do of the commission's opinion the commission was adopting both of those arguments there's a statement here they rely on dr stone as at appendix thirty one and that's in context with this generator access live theory that staff at present and then the furthermore statement it's  cited by the community the in the commission opinion he explained that the reason that they have these upward facing openings this is so that you know when the thing is opened that radiation is progressive upward and doesn't accidently expose people who are approaching it from invalid the grounds not presented by the parties so long as the grounds are based on record evidence and the parties had notice of those grounds and an opportunity to respond before the p tab issued final decision can you tell me where in the nike case we held that because what you represent are holding up nike to be would be completely the opposite of what it actually held and in fact would be in direct conflict with would hold out to us that our nike case stands for the proposition that the p tab can rule on any ground as long as there is notice an opportunity to be heard even if it wasn't presented by the parties probably an overstatement i think the idea was the note on the wrong statement is not an overstatement to see exactly opposite of what the opinion actually holds and just so you know there's a tiny portion of nike not actually on the pages you cite which says limited to motions to amend because they are not any longer claims that fall within the petition itself the p tab can go outside the boundaries but it says that after it makes it clear that they can never do that normal i p r because of sas because the supreme court said you can't do it in sas and then the case goes on again after the portion that you cited not on the pages you cited to say limited to a motion to amend which isn't what was the brief but i do understand that point i would point out that again the there are there's a host of different evidentiary sources that the commission opinion relied on including for example dr stone's testimony about taking things to  market doctor so testified directly that it and the mobility issue is one that actually the commission sort of impliedly reversed the ale jay because the commission opinion if you read it talks about the difficulty of moving parts back to stationary motivation provided by the l j which bracco planes there are other sources again that are that are untouched largely that that the commission based its findings on thank you council your time is up and commission implicitly reversed the l j with regard to the three motivation c l j found implying that that is simply not true if you look at appendix page five thousand and sixty you will see where the commission says the he also correctly finds that several design incentives would have motivated a person of ordinary skill in the art to move to dos calibrator on board the card including mobility operational simplicity and minimizing radiation appears that the commission's reliance on tape was a misunderstanding of this difference so the commission cited k s r for the proposition that if a technique has been used to improve one device and a person of ordinary skill in the art would recognise that it would improve similar devices in the same way using the technique is obvious unless its actual application is beyond his or her skill so kate and klein do not use those calibrators in the same way kate uses it goes calibrator to measure the dose given to a patient client already has a separate monitor that does that that is on the card and there was no evidence  purely for the purposes of the morning protocol and detecting breakthrough could even be used to measure the radiation that was given to a patient and that's because rubidium had such a short half life claim device and therefore cannot teach anything about testing for breakthrough and whether that should be done on board a mobile cart when the testing of petition to the commission the commission did not address those arguments that we made to it also just informationally the record in this case closed on the final day of he honor what we did if we told and that as both jubilant and the commission ignalina judge we pointed out the prejudice that was caused to us and what we were seeking to do rather than reopen the record because again this is an unjust of proceeding where we needed just of release of students possible we argued that it was fair to rely on those new theories and we were asking the commission to simply rely on the theories that were really  now when the commission decided that it wanted to go ahead it would go ahead and rely on those new theories if its rules specifically state that it can reopen the record but all that we are required to do is to point out