reason for the knife includes a safety feature by which the blade automatically and immediately retracts into a protected position anytime the usual lets go of the knife it's a fail safe the guarantee is that the blade is retracted whenever the person is  not holding the knife or put it out for example if the user drops the knife or it slips during use but wait i'm confused didn't the board actually find that aker show a single night that had both an auto  if you have to manually to press a button in order to retract it's not automatic retraction and it provides no safety at all so so you're saying that after doesn't have a spring that would allow for an auto  it does not have a spring that provides auto retraction after it has a spring that provides retraction assistance so inaccurate if you look at both the board's decision and the director's briefs in order to retract the blade the user blade in accurate you have to push down the button and pull it back just enough to separate a peg from a notch so that then when you release the no longer line and then in a spring will assist in the rest of the retraction but that is not author attraction you would still have that auto retraction safety feature you would not and there is no evidence of that but i think examiner actually talked about making a modification to jennings safety knife with the acar locking feature right right adding but they didn't change the operation of acrobats locking feature in the combination in fact the board states that accurate slop operate in the same way in the proposed combination as it would have on  own so you're saying that in that you don't need to do anything to initiate an auto retraction yes it if you look at jennings and you look at the other prior to talk about a safety knife the whole point if you let go of acrobats knife while the blade is in its open position it will stay open in a potentially dangerous position that's why accurate snipe is not an auto retract and safet borders funded with with two two arguments one like we just talked about the board argued that you would still have that safety feature but you wouldn't it like i said the board and the director both admit that in order to retract accurate blade the user has to manually push a button that is not authorized action i agree with your honor that there is a spring inaccurate its spring assisted retraction but it is not automatic retraction so the premise of the board's finding that it would be obvious that this law is  so now i'd like to turn to the board's replacement rejection because i think the board recognized that trying to defend the examiners position that the combination would still provide a retracting safety is false so the board instead i guess i'm still  so you're saying in one if you release the button on a return x and the other if you press a button i know under jennings any time you like of so you constantly have to use your thumb to keep the blade extended that's the safety feature so in order to extend the blade you push on the actuator button and push for him to pop later any time you let go of that button it's going to retract whereas an accurate if you push the button down to push any time you push that the blade into the extended position and let go of the the button it will lock extent that is not an auto retraction that's auto walking in the extended position and accurate the only way to ever so person has to mentally start the retraction process before accurate spring and provide the rest of the retraction that is not automatic or action that's manual retraction with a spring assist that clear up the you concern not like to talk to the talk about the board's new replacement rejection in which the board concedes alternatively that the addition of this lock would result in a knife that lacks auto retraction the blades replac the boards replacing rejection should be vacated because it's new because the boards for been for relying on new facts and rationales that were not previously presented by the examiner and or the board's decision is that it's not that they're simply just explaining that that your definition of safety knife didn't make sense in light of the second embodiment jennings itself right was important here it's not my definition of safety is the definition of safe enough that the word was trying to rely on in order to justify board that first for the first in the first instance said that this new and different combination would be obvious because the resulting knife would still be a safety knife that that decision is new because the board never made that finding that decision is new because the board that's the blade is in an open position lots of hand and there's no need to hold the finger down on anything to keep the blade in an open position right now this issue is never this was never a an issue before the examiner only in front of the safety that bierman and brian are both also define safety knife as providing on a retraction this was never an issue before the exam of these even a group of so there was no reason do provide additional evidence when the board used according to the board have a safety knife this isn't just rebuttal of of appellants arguments that the board is making new findings to justify a new and different approach wouldn't it still be safe because you have the ability to repack the blade into that second embodiment in jennings does not provide feel safe or traction once it's open it's open if you drop it it will go through your foot you know it does not authorize it doesn't provide the seat feature that was the focus of what those mourners office please of course wanted to address two points that were made i think the first thing is this on a retraction discussion is a little bit distracting because auto retraction is not required by jennings as you pointed out  judge chan jennings never says that the auto retraction feature is the central feature to it and if we look at the abstract for example on fad twenty five we say and as the man has admitted that the the future that jennings considers the safety feature so that's referenced a p x twenty five in the abstract they said that it's adapted to be safely folded and then again if we look at drawings when they talk about the environment to figure eight through seventeen twelve to twenty one all call it a pocket safety cutter so i don't think that's fair to say that's an errant or clerical mistake in jennings the fact that the safety cutter the safety feature that jennings in visions is the fact that it can be full of it so the auto retraction feature is not required to no dispute that it has the manually operable up i also wanted to take issue with the fact that this safety question was not before the examiner if we look at  both desirable configurations and then to switch from one to the other is not destroying the reference but merely catering to consumer preference of the examiner was certainly making the same rejection as the board the combination of a user with a lock while still maintaining the ability to be a safety knife so this issue of retaining jennings as a safety night was before both the board and the examiner  obvious to further modify the night because the modification would defeat the central artery retracting safety feature so this is not a new issue that was not before the examiner this is before both the examiner and the board and the board pointing out the fallacy of you know they were saying hey jennings requires us on a retraction feature and the board was saying well no that's not the main feature of jennings as the safety feature was not in your  rejection it would not that's finding its error in demand reversal second the director argues that the same issue was before the examiner it could have been the examiner argued at all points that the combination would still provide all retraction the board there because it was the basis of their words assertion that the combination would be obvious that finding is false so the action is not in the plan a retraction is a finding by the board that justified the the obvious combine combination of prior art and because that word's finding that the proposed combination would still have our attraction is false the board's consequential finding that it would be obvious to make that combination must also be reversed