basic kind accommodation that rendered obvious claims that suit particularly in the limitation that we're focusing on this morning is providing a mask over the nd layer of dielectric material relied upon for comp for a combination of fish and the board is permitted to look to other references for purposes of understanding what one of skill in the art would have understood at the time and therefore how they would have  references that are relied on right well i don't think in the context of a wholly new if i gree your honor if something is discussed as or it's included in the record beginning as evidence of the state of the art then certainly they can consider it but this is a this is a reference that the board relied on as finding facts supporting the key point which is that you could use some other hard mast in this combination with the fluorine etchant and that things wouldn't happen because it wouldn't be etched it's relying on multi in the reply declaration to do make a point that was nowhere in the petition to begin with and i think under was in cambridge that sort of change of direction is is inappropriate for or the board edging of the mask which of course is problematic because if you want to maintain the critical dimensions of the etching and that's the articulated reasoning that samsung put in their petition for com references if you at the mass you're going to the mass is going to ash way the hole is going to be come bigger and you're not going to maintain dimensional control and so the court erred when it concluded that this combination are you there in its final written decision so i said well it doesn't matter because ho doesn't absolutely prohibit the use of chlorine based materials it just says mad and says that because there is no strict prohibition of the combination provided in the art that it was acceptable to combine that considering the in the subsequent evidence provided by samsung and with respect the board got it wrong when it would have made that conclusion the case law doesn't does not mean requires more than just it's kind of bad but it doesn't require you may never do this or the end of the world will be upon us the reaction fail and we submit that the district court action that you filed against samsung is claimed five asserted or is it gotten to that point it's this is not the only i don't know i don't have that answer your honor movie thank you your honors good afternoon made please the court starting the promises appeal claim one broad besides providing a mask without any limitation as to the material for was sampson's combination and says well it's limited to a particular hard mass material but the board correctly rejected that and found as a factual matter that a person for very skill would have had the requisite skill in its patent on a response nd and which i think is the more important reason again if you look at the petition nowhere did we limit the petition to just a silicon i tried hard mess material the petition br recited the whole structure and in fact in the institution decision the board correctly read our petition as not being so limited right it actually pointed to the harvest material in hope and said that we believe hold by itself gets us to do so then if we look at the evidence they point to one of the motivations to combine that the border light upon it's the critical dimension limitation but there was more motivation to combine here and specifically if you look at for example there's an important point there we were comparing the use of a hard mass to a photo resist and we said one of people would have understood that using a hard mask would have improved critical dimensions and if you look at the expert testimony testimony from their own expert there's plenty of evidence in the record to support the board's fact findings on why if chlorine based action would be compatible would happen compatible with the master and then the board also made a finding that in fact food you mot not limited to a foreign based gas and that's that for example and exploding three again that further supports the board's decision with respect to this issue so collectively the board here carefully considered the party's evidence and election unless your many other questions i'd like to move on to the cost look at said with respect to the cost appeal it's a in our view a very simple issue it's limited to claim five dollars claim i've recites unexpected results with respect to using your marriage or a drug addict so given these circumstances the board should have found claims by obvious as a matter of law and if you look at for example some of the cases that w read to that result the ones that i would point to for example personal about is is is we believe very squarely fits this case where there were only a limited number of options and here we only have two so this is per se obvious and i think you have to look at this in the context of what's happening here so if you look at claim one the board found that claim obvious right in light of would you more going home to what they do is in claim five they say well the  a dry inch and then claim six they say the edges are vetch so in effect what the board said was that claim five would be allowable even though it's such a fundamental feature in some i conduct or processing and there are only two options evidence sure let me address that so if we look at what the evidence showed so obviously fujimoto is the primary reference we relied on the patterson reference and i think we should maybe take a look at that so if you go to the  so the concerns that there is before the board which we submit the board actually did not actually resolve but if you go and look at their arguments and if i could have you now turn to appendix five hundred and twenty nine the figures of the would you model reference so their response to this evidence was before the board again the board and not resolve as they said well fujimoto it would somehow there would be a beer barrel if that is the argument they made but if you actually look at the figures to be in to see it you can see so his testimony certainly is just not it's not supported by what he's saying and like you pointed out your honor it's the board and resolve it but and i think you have to go back to the legal argument here given that the far far past and there's only one sentence right well i guess i guess my question is whether there are missing factual findings on this claim five for which ever would be appropriate and that's what you want which is an outright reversal on the theory that this is one of those binary design options so obviously of vailable that under certain portions of k s are the inquiry can stop there and the board kind of went with you up to that last paragraph and then said but we don't think this is one of those cases maybe because of the particular environment  and yet we don't have a discussion of the evidence on the head of exactly the sort that you are now giving so you are you're absolutely right at a minimum we think every man is warranted and we believe under this now please of course the board got it exactly right with respect to claim five they found that the evidence presented by sampson was inadequate to establish that a person skilled in art would use the we time there are two alternatives as a matter of law it must be obvious i think context is important and i think that the supreme court has said that that you have to consider all the facts in the context and not just apply faster than it will actually sideways and so that's why you don't get the beer barrel of fact but rather you just it's kind of like drilling a hole instead of i'm trying to think of a good analogy where you pour water into something it would partially dissolve out into a if you had a sugar base and actually say it all right i mean it pretty much just there's you know we just don't think there was enough evidence that you would use it they're trying to avoid the beer barrel that that samsung had not met its burden and one of the points samsung raised and it's it's a brief thing is that the board somehow committed some sort of error by not considering our the statement says the benefit of the web is that it can be that it is higher throughput less complex and lower cost even though it cannot achieve and i trust that's that's the statement that samsung was arguing th improperly ignored but the board referenced it and didn't find that that it changed the analysis sampson's trying to make the term although do a lot of work in that context exclaimed that's what we are already claim five is a claim that's what we're talking about here claim sex is the dry each claim that was found to be invalid by the board so again if this court were to let us get away with claiming five