and may please the court this corner stated time and time again that secondary considerations are never an afterthought the board however failed to give secondary considerations and he thought i'm a little surprised that you start off with secondary considerations because i honestly didn't find the argument that you made in your reply brief in your opening brief for starters i'm not sure i found it in the proceedings before the board either but  context of an argument about obviousness i didn't see that you made the argument that you make in your a plain brethen and appear to be making here that the board committed ever by not addressing objective considerations that argument was not made in the opening brief was it the that the argument was made and what the context of a specific secretary consider it that no argument was made that the board committed error by not addressing consider consideration carrier who you say any time you raise obviousness you have implicitly raised objective considerations and if objective considerations are not address notwithstanding that you don't specifically request that they be addressed that that's enough to preserve that argument at a minimum but also what we have here your honor is lot and just advocates in other words the western district of wisconsin decision here finding that the secondary considerations were so strong that spectrum when fisa in this coalminer injunction mode couldn't even rise to the lowest level on originally prior proceeding years ago that was not the proceeding that we're reviewing we're reviewing the proceeding coming from the  and i don't see frankly that you raised the objective considerations argument before the board and i i'm not seeing it as an independent argument before this court this was raised actually in a motion to strike i spak from after the briefing was completed this very and we denied the motion to strike because normally emotions pamela will not strike something from a brief and leave it to the to the merits panel to decide whether or not the argument has been raise record on the field and so it would have been appendix twenty eight eighty two was the actual citation in the appeal brief and then the evidence was only sixteen exhibits numbers to a vast amount of material and then only put in here what you say so you didn't cite that yeah so that it's part of the it was part originally part of the record as part of our motion to strike we did it it was identified before the  all three pieces of evidence and out of six out of sixteen exhibits we raised three of them raised the secondary consideration manner by way of our declaration from dr white we had this consumer reports article and then thirdly we also had the western district of wisconsin decision including the which was part of the record here are the specific citation by the court there in regards to the second reconsideration i have from your motion i have twenty eight eighty two and are your response to the motion and again i see that you are referring to a transcript from the proceeding before the trial court before in this case the district court but i'm not seeing an argument made to the board saying word please take into account the following objective considerations i'm not seeing yes in the sense before as the one we're citing to your honor there given the state of the art the results achieved by implementing the teachings of the three sixty patents were  expected at least because of the matter it goes on and i think that really goes obviousness whether something would have been obvious that the prime official obviousness case it doesn't have in least the cut in the context in which it's presented considerations evidence must be analyzed at all times to determine whether more likely than not there is or is not obviousness so if there isn't a crime of the shop proof and then you come back with secondary considerations in the center considerations or part of the  that the argument was that the problem of gas cause swelling in the transition metal oxide cathodes discussed in dance and i gather everybody agrees simply doesn't exist why i'm not sure why would or would not have your honor but it's a strong argument it's the two grounds and it goes back to what the district court actually found here two in wisconsin began reference to fetal problems with dan and the district court again before in two thousand and eight the board had it before  paragraph that says you can use our invention with a bunch of different things including i and i sell fight so i'm the words are there but nevertheless you have an argument based on your expertise to something that i think not contradicted by the other side's expert fact that said a skilled artis reading that would in fact not be motivated to use the you know sub one ac ratio for the different a different class of make up because the problem that an address is just doesn't exist in this  spin so in other words we're not looking in our grave to drop an argument i completely agree and i'm ready here to speak on oral argument today that began reference specifically it cannot be a starting point especially a view of the secondary considerations even without the secondary considerations because number one the starting point again is a completely different cap of it's s p r not iron i saw and number two all it teaches at most is this thing called a total racial that's the design parameter so the issue quickly becomes here what a personal to the second or considerations for example there's copying here everette is energizer spectrum it is really a back seat and or dies or comes out in the marketplace in two thousand and two with this device this patent device has unbelievable success with it because it has a longer battery life in view of this patent invention spectrum five years later through a so obvious and dan to make all of these design changes why didn't people of extraordinary skill on both sides did do it years and years before the argument here that these references  ninety's were so obvious in these design parameters you can officially ratio so obvious that's true that the district court found that this evidence was so strong in favor of non obviousness in fact here that it didn't even meet spec and can even meet the it could have raised it to this court could have appealed it did not it settled it stipulated to a dismissal with prejudice and that's where we're at today and as this court's found before stipulated the specials with prejudice based on settlement is final job as a final ordinary design considerations spectrum argues or we identify as a patent law invention the context of all this evidence shows that if it was so simple as the district court put it a lot of people because this is a very competitive field all of us have double a batteries somebody would have come up with this years and years ago in the ninety's like all these our efforts didn't happen that one of the pirate references here for examples of ledger letters and eveready athens the second inventors jack markell here who is the named inventor of the three sixty pat of the matter do you mind if i switch of away from that which is something that concerns me more ok the argument that i referred to before the other argument in the blue brief which doesn't appear in the great brief and i at least there was no express abandonment of it what evidence is there to support the motivation to take again which addressed a gas cause swelling only correct created a gas cause swelling problem and in that context there was the ac ratio that solved that problem well i don't see anything in your expert testimony that part of expert declaration particularly has that eighty three zero eight to twelve that indicates why a skilled artist would sink that it would be useful to look for a similar under one ac ratio for a battery that doesn't have a gas carswell or like this one which i think is undisputed the can was not so limited that i know that it has that paragraph i work but but there there is evidence from the other side that that was one of those completely throwaway paragraphs that would not in fact have been have motivated a swelling caused by something quite different up which i think the paragraph indicates it's quite different because it's not gas yes it's it's actually yes a solid deposition problem it's a volume references right that picked up thirteen and thirty two i forget what they are two two or three other other references and they're not arguing about those but if again doesn't doesn't lead to a  evidence before the panel has more questions oh and while i could go to the second a consideration this is not leo your honor this is not leo pharmaceuticals but is you position the extent to which secondary a couple brief points are first just going back to the secular considerations one more point just a month ago this court determined a nike that any failure by the orcs review secondary consideration evidence raised in failure to address it is at least a minimal cos before the board coming up it's three out of our sixteen exhibits your honor and we extent if there's a sufficiency of raising issue that's different than whether it was raised we didn't raise it it was before the or your remit could have been whether or not we could have raised  going to again the point of the recalibration the difficulty all the steps you have to go through gantt to get to are claimed inventions exactly the point of non obviousness not why it is obvious for example paragraphs forty six through forty nine again support the fact that those were literally throw ins these other capitals that are known in the art it's not obvious to just simply switch out a calculate gas field with that specific total ratio and dan to swap out as depended on claimed to which actually claims are racialists the way it was or just claims that's law that's what they're seeking to claim it's no explanation or cheating to persons of werner's skill in the art on how to perform the function of taking that and having it being an ordinary design consideration of design parameters swap it out all the sudden you end up with the same invention here there's no evidence of that the reason is as there's no evidence here in the record of any correlation between total ratio and official ratio just a significant number of unknown variables here argument of that interface will vs total rate racialist as a puzzle to me it seems to me that since we all seem to agree that it's a practical matter you don't want to have cathode that's not mean that as a practical matter total is always going to be at least a pretty close proxy for interfacing you're getting close but not the entire chemistry basis or chemist would say one more thing to that's important that's what flips around that you want as much is possible and what the arc time i mention it but yeah but for starters just for the proposition brett total is usually a pretty good proxy for interface isn't that true no and why not yet and then the why not is exactly why what was known to persons of ordinary skill as that ok you want it's a mix that you want to catherine and that's where the reactions occur where an open cattle come together you want more you know what was known at the time as the more an o the more lithium you put in the longer the