support grant peters in behalf of acme scale what went wrong and why we're here today is that the board erred in considering the table with rollers in their going reference to be a assertion that that is how the inventor defined what a material handling vehicle is and she went on to misconstrue when to identify the suspect doesn't say material handling is a transport vehicle which rollers is not a transport vehicle i have a podium in my office i was practicing to get ready for this this argument and i noticed it had wheels it's a piece of furniture with wheels i can move it i can move it over the corner get out of the way of the office i can move it back to the center but it's not a vehicle by any stretch of the imagination i cannot with wheels or a part of q with wheels or a judge on wheels i have and i have to last carol your honor because i have two other examples  one is a piano with wheels like i have my home and one is a chair because those are definitely pieces of furniture that were not arguing that the are going to reference is a table and that it has rollers it's clear and then it's specifications as to what that is h further clarification as to the term truck referring to the truck as being a type of transport vehicle so i'm still hung up on fraud to include maybe we should think of it as transport vehicles t i will say that we're focusing on vehicles and i think the ordinary meaning of the term vehicle would be something that you use for transportation of things it's intended purpose it's based on the intrinsic evidence in and i think it's very clear the numerous references to the term truck and vehicle that it was intended for that type of purpose so wheelbarrow vehicles i would i would argue i would argue a wheelbarrow is not truly a vehicle other and a wheelbarrow would fit on that spectrum perhaps yes but i'd like to say that i think it's important to note that in attempting to assert the per going reference i think the o p s missed the point that constraints with regard to the use of this thing it also says that it's passive and i won't get into the passive active issue that was in the breeze but it very clearly says a four ninety six citing from the foregoing reference  column two lines fifty eight fifty nine that the system according to the invention has the advantage that it's stated one of the vantage is that it is a passive system undisturbed by the surrounding industrial how do you understand the rules which indicate that maybe have to file a request for a rehearing before you can come to the federal circuit sure your interpretation be going with a request to the issue of jurisdiction and perhaps exhausting the remedies below we believe that acme has exhausted its remedies below before the board of th rehearing claims were just rejected based on the exact same references the board rehearing decision stated it is deemed to incorporate earlier opinion the earlier pinion reflecting on the board's decision for appeal and the board specifically cites rule thirty seven c f r section forty one point seven ninety eight and in forty one seventy nine a rehearing decision is final for purposes of judicial review the rules do not require the filing for a quest for for a rehearing from a rehearing but if the rules do require filing requests from an initial board of review this is similar to the right so there's a difference between being given an opportunity and being required correct and we believe that based on the rules if you look at forty one point seventy nine d the rule clearly states in the party may request for the reconsideration but there's no expectation that we would get a different result it's the same case the same facts before we were before the board the same references were being asserted and frankly we think it would be futile to go back and keep in mind this is a case in which the reexamination took a full year it was twenty one months on appeal it was another eleven almost twelve months on the rehearing and now we're going up on this appeal if we had gone through yet another round  more who knows how many rounds you have to go around on a rehearing it be another eleven months it will be a decade from the time this can be filed a patent application until we get a determination on this case and it's important for business to move forward with regard to  the rights that she has in her pat to assert their rights in a patent that she secured through the night i think spent trademark office there were four examiners throughout this process that reviewed this application both the initial application examiner brown who subsequently had become a board judge herself i'd be surprised and shocked that all those people who are so educated in this process would take an unreasonable position all of them to i think that if i'm wrong point me out where i'm wrong in the record what i would say is those arguments have been waived your honor because we never challenge them that when the first board decision came out the board said you have these five and so therefore i i think it would be very reasonable to conclude that the board felt that films were sufficiently argued that instead of setting forth all of the things that i had set forth over the course of well over a year well go on with your other arguments and i would i would simply say that your honor the that much of in the broader scheme of things there there are an enormous spectrum of devices that fall within the broadest reasonable interpretation of a material handling vehicle all the way from the wheelbarrow and hand truck that patterson disclosed as being material handling vehicles but the how would i what's the best way to characterize the board's understanding of the term interior handling vehicle would be any device that has wheels that can that can is capable of holding on to some product in the first  decision the board agreed with the examiner that the device and third one was a vehicle and the board but i'm just trying to understand what's the conception of the patent board had of material handling is it fair to say it the way i said it any device with wheels that capable of holding or i don't for a number i don't know that i can actually see the the  the first four decision of the second board decision was more focused on what was in front of it to more broadly construed those possibly i'm sure that that either of us any of us could come up with examples at the fringe where where there might be a  wheel on on a playground school way that the children can spin that's not necessarily a vehicle however i would say that the one reference is nowhere near the fringe it's squarely in the in the midst of i think it's pretty fringe  when i have in my garage talk and it looks like or going to a ball and the ping pong table has wheels but i would have i would say there it defies common sense to call my ping pong table going to schools and and teachers and suggest a material handling vehicle were supported by substantial evidence it's clear that actually would like to raise it again that issue here but this is the this is the court of appeals actually has already lost and the standard of review is whether or not substantial evidence supported the findings by the board i'm trying to work on a claim construction of a question like this one which is about as far from going was dependent on its factual findings on its understanding of what this claim meant and at least for me it seems beyond the bounds of common understanding of a technical term to think of the term vehicle here as covering something that can move but whose function is not meant to be performed spectrum of material handling vehicles are typically dictated the various configurations of these devices are dictated by what is intended to be carried they didn't just say  transportation vehicles they said such as for example and then they list three types of commercial transportation that are correct but i also actually is already stated on the record that the term material a highly specialized definition of the term material handling vehicle that specifically calculated to avoid the application of brick want and there's absolutely no basis in the record for suggesting that the that the term material handling vehicle should be interpreted in any fashion other than its broadest reasonable interpretation now the the board has concluded that the berg one device falls within the scope of the broadest reasonable interpretation of material handling vehicle legal interpretations for instance obviousness is a legal interpretation is reviewed and noble however if underpinnings are factual all the facts that would go into an obvious analysis are analyzed according to the substantial evidence standard and in this case the patent office determined with substantial evidence that the device in burdwan is a material handling vehicle that not only is but also the ergo also teaches and claims and additionally the thirty seven c f r forty one point eighty one states that there is no peel from the board to the federal circuit until all rights all parties race to request rehearing have been exhausted not permissive rights if they choose to attempt to relive again something in the federal circuit regardless of the standard of review it says that they must be exhausted here they will waive along with the arguments that  there is no appeal possible until everyone's rights requests we're hearing of been exhausted further as i had mentioned the three grounds a rejection that actually has not challenge sort of sponsored end of this appeal because they render moved quite honestly the grounds that actually has challenged which are the grounds of projection on the grounds of anticipation of or on and on the ground of obviousness individually over  and i would also note that we cannot distinguish from the wind by trying to argue that it's a device or that it's method involves dimensioning of an article while a material handling vehicle is moving or is in motion those arguments are not commensurate with the claims that are in front of this court i was perplexed for a long time it finally occurred to me that that those dozen arguments seem to be related to an embodiment of the act the pattern that is not in front of this court those claims have nothing whatsoever the claims of for this court have nothing whatsoever to do with dementia an article while material handling vehicle is moving or is in motion well active is actually not in the patent at all your honor and to mr peters point that this application was thoroughly examined with supervisors none of the examiners ever failed to ever notice the fact that the word actively which is unquestionably the point of novelty of behind there's no question whatsoever because the word active active and actively adequate nine resulted in its allowance but none of the examiners ever notice that that word is completely absent from the api pat so for the reasons i've  mentioned i would ask the court you reject the appeal on the ground of lack of subject matter jurisdiction that additionally the decisions by the board be affirmed both because of waiver by acting at the end challenge or objections render him point moot and also would ask that the court affirmed the board's findings based on the substance of the matter and that there is a standard of review that the board's findings were that we're here because my friend is his client brought this case as a reads am in a sion they chose on that reexamination which references to assert in the reexamination and took their best shot at it from the well known for a mind then they have a client who has funded this activity and the best that they could find the best reference there searchers could find was patents that are powered even cited by the original applicant so it's our position that they had their opportunities to look for any references they had they wanted they couldn't find anything better than something with all due respect analogous to to a ping pong table with regard to dealing with the  various issues each one of the individual references risk using projections that were asserted require the inclusion of or going as i think the court has already stated other references that were included in the combinations  considered during the prosecution passive meeting the bar code scanner used in revealing or the r f id the combination of bergen for going doesn't resolve any other issues as well because there's no incentive to combine those references the teaching away that occurs as a result of looking at the reading for going to rates the combination of that moving along with regard to the standard of review yes the standard for a review is to know both and especially in a situation where the factual issues are are so straightforward i think this court has the ability to refuse to know both because it is a legal issue while there are there is a question of factual issues and under one hundred two or one hundred three all those determinations hinge on a reasonable interpretation what a reasonable mind would consider i again i have to laugh at your comment about a positive way about one it's not like the other i was in use that in training new attorneys in my firm as to these types of rejections and what's reasonable and i think in this case it is unreasonable to try to assert that we're going to reference as a material handling vehicle just to close out one other issue that's lingering in our mind and i think it shows the lack of support for going on in this case is table twenty one with rollers very clearly cited in the patent there is a platform identified there but that's a separate component of the wheel table to make tables rollers so i suspect that that's trying to make an attempt to try to further differentiate their argument from the are going reference based on all of the arguments and briefs that we've submitted to this court we respectfully request that you overturn the board and pass a patent