board on five occasions predicate this decision on the proposition and i quote that there were true known approaches to producing white light from the books and i would like to specifically draw the court's attention to one specific use of that proposition which is that eight thirty one thirty two and there at the port defines a person of ordinary skill to the art and defines a personable ordinary skill in the art as the artist and of ordinary skill who knew that there were two and i began to quote there were two known approaches to create white light from an l he did that is critical  critical but this one we think is specific critical to it is the definition of one of ordinary skill in the art new we submit that there was not substantial evidence to support that second approach to finding in addressing crees arguments they are defining the person of ordinary skill in the art they are defining what is known by that person and they're using that to define over to provide a reason to combine the references and that's why the board itself  none at all of record that would support the proposition that it was a known approach to down convert from an alley to obtain white light and would be of such want to though right that would be an anticipation reference here's what's actually happening by defining the person who are very strong the art by saying that there were two known approaches the second approach is exactly what's in the claim basically what the examiner on the board has said is the invention was now and then they there was nobody using it in the real world because of the lack of the fish and seeing the low power and so forth not saying that it had never occurred to anybody to do that you could make white li maybe an overstatement but it didn't seem to me to be to get in the way of the basic analysis of the board employed we're just to say that when you take stevenson you've gotten everything you need except to go said of course as everybody knows having said that there were primary you can get all primary colors as everyone knows you could mix the primary colors by using google sauce first and you get like what your honor is not the only thing that's missing are visible to the human eye that's not white light right light is fundamentally different because it's a different spectrum it's generated in a different way it's used for different purposes and requires different count all of that is in three stevenson you have what you've just articulated but i think without it all three of the experts that write late it's fundamentally different than the primary colors and then you have twenty years twenty years where according to the p t o people really want to have white light produced by delegates and stephen suits out there and nothing happens and that's the reason you know there's a recent that this no one approach colors requires greater power by definition and this is in the record the power up the process of down conversion is power dissipating the triplett approach is not so once they had the three primary colors they turned to the  be one thing if you were going to find folks other than the inventors who came to the invention but the record is completely devoid of anybody else turning to it but more importantly press releases from it all from home for some other people your team came up with it two years after they came up with it maybe four or five years after i act it's not so clear to me that this whole time lag question is is a drug driver towards  get there i think we could look at stevenson but i think the record is what we have to look at and the record on stevenson if you take the three experts including dr strength the law each of them said specifically that it was not known and known approach was not to download a download from an alligator obtain white light and i think that's just having a good but the problem with the decorations or at least string fellow and wrestling is i didn't see them ever specifically take on why it would or would not be obvious to use the naca more of blue really d in the stevenson process not the more of the team on the scene what i saw was an extended devotion to just looking at the references in isolation and then pointing out all the missing claim elements from each of the individual references and then talking about how the triplet approach was the standard process but i didn't see any discussion in the versions showing here's  problem of the triplet approach and writes more difficult to implement it's more complicated as you're dealing with three different spectral wavelengths so it's actually in the patterns help it's also when the what soul read wayne and stringfellow decorations zero zero two up to twenty mil watt and then you go for one you know why why not just you know three thousand two hundred so that's pretty big yeah we're not suggesting that it's not but procedural infirmity which is we're in a circumstance now where the examiner has a long answer to p t o adopt the boarded up certain portions that make its conclusions and then the portions that were not adopted by the board to make that argument well if your argument is that the laser and the early d a fundamentally different in the sense that the you don't necessarily have down conversion operating in essentially the same way contrary to the findings of the examiner that be done conversion process essentially responses to wave length and power and nothing else that seems to be inconsistent with for example the passages in the one seventy five patent th it says that there are variety of fosters that could be used to achieve this purpose but it is it is the first two that makes them fundamentally different the fosters are going to be different but  of picking foster's or tuning into particular wavelengths of that mission and i am hard pressed to see why particularly given the now and in fact given the  been down convert fluorescent lamps to provide white light and then you know i don't see anything in the patent saying that it's very difficult to come up with the foster mix in order to down  board it couldn't be clearer that one of the most fun day tional findings is that there was to know an approach that's a language and respectfully i don't think it was in it for it has it was  is predicated on this new statement and least in your view that it was known in the arse down convert blue light and white line but what if we disagree with that argument of yours and wonder if we see the patent board an and then the nobel prize winning not the more blue l e d came out on the scene and it would be an obvious substitution to put in the relatively speaking much more high power  more into the disclosure of stevenson down converting process and then because it is so well known that at least find ninety four ninety five that using a primitive city diagram you could mix blue light with down converted radiation to create white light we have your invention what what's your response now that assuming we disagree that the board necessarily had to articulate it's a basis for invalidating a patent that has resulted in the ten billion dollars market there ought to be a real man that off so they can say that that's the reason and we can test that reason against threat paragraph cites that the board cites i mean i know you want to try to you know use building blocks to create some ultimate logical conclusion but i just don't see it well you're  decorations do not contain those exact words as you express we maintain however it would be difficult to read those three declarations and not conclude that one of skill in the art would have known at least to try the down conversion approach and it goes on to say but was discredited due due to the loss of energy and life right now starring the down conversion process the use of white light in typical applications e g backlighting of monitors and televisions requires a significant amount of power and bright w only attacks events and and right wings comments are specifically couched as prior to the ninety four ninety six timeframe light it's a reasonable reading about statement that implicitly the person is going the art knew of this approach but did not take everything in effect not that it didn't exist it may not be commercially viable no one had specifically done it due to the lack of a powerful enough it simply cannot be overstated that dr not the moros nobel prize winning blue l e d completely changed the game if not i think a good another one way of reading so much as what they do they consistently say down conversion was known but one of the art would not have used it they would have been dozens waited from using that and if we look to the reasons for that they say well there just simply was not enough power but they never say that naca morris blue l e d did not have enough power to be practically useful or commercially viable in fact it's undisputed that it was what do you say i mean we start are not different from the perspective of the faster because it's right at a certain energy level and a certain brightness and that's going to produce exactly the same photons coming out of the flash but other than the examiner seeing it what is what is your evidence that that's true well the examiner went to great pains to explain that there were multiple references in the prior art including and now that would have plenty of someone in this direction  applicants have the opportunity to describe how do you pick your fosters how do you do the down conversion keep in mind that they could be any one of these light sources and what do they say they say  sources including both l e d s and lasers which really i think cuts through this argument that somehow you would not look to the laser art the wavelength it's the weight like that if you are below forty nine fifty i'm not aware anything the record that says those specific words ok but again i think it would be difficult to read all of the art cited by the examiner on a eleven sixty six through seventy three its conclusion eight hundred nine and not conclude that want to go on the r would have known that this blue to white down conversion process could be applied and various to various light sources or radiation sources and therefore once not the more i introduce thirty five hundred times more powerful i'll eat the one would have turned to what is the only other approach that any was discussing this case for going from primary colors to white light which was down conversion chaos ourselves when there are finite number of options for meeting strong market demand and pursuing those options was within the skill of the art and this is the invention would be obvious and that's exactly what we have here and contrary opponents arguments this motivation to combine the market demand was clearly articulated by the examiner and also by the board i guess the the other side is saying that yes you know the not more of this is relatively more powerful than the one that was being used by stevenson but nevertheless it was still quite weak and so therefore  question is would want to stay on the art have known without doubt that this is an approach that would work and be commercially viable for haps not but again when you have a finite number of options and here we have the triplet approach and we have this  even consider it and then that in our view doesn't match up very well with the boards finding that it was in fact known and to use an l e d and down convert it to produce white light then then what we have here is perhaps an erroneous fact finding for the board do you think that would require us because it's discussed for a number of pages for us to have to remain in the case of the board to reconsider the rejection without using in discussing that erroneous fact finding  so challenging to produce white light doesn't say you could not do it in fact he says you would have to string together i think seventeen and a half thousand of these to get what he described as the commercially useful model quite perhaps fewer of them could be used and he describes as a just not strong enough to be useful or commercially viable which just isn't the point of the patentability inquiry but it's implicit in the discussion and dr watson's declaration that it could be done and at least that's a reasonable reading that should be substantially affirmed under the substantial evidence standard right but i guess the premise of my question is i'm taking away from so then the next question is is there a reading of the board decision where it's still going to be affirmed for the national levenson light of all the other analysis and fact findings or as the other side says it it because it permeates throughout the entire board opinion it goes to the heart of the substance of the decision that you have to remain and if you give the board a second chance stated expressly that white light down conversion from a blue l e d had been tried and failed because it was impossible there's a critical deficiency with all three decorations in varying degrees and that's the failure to grapple with relatively low power presumably compared to an owl but acknowledging that it was even more powerful than the stevenson ali but never grapples with whether or not that advent in the industry would have changed the conclusions that anyone would have had from the seventy's through the early ninety's mr least position as i understand it hinges on the proposition that no one out there crack that is and now that he has others and where else i guess are you in the background section of the one seven five and the background section of the one seven five is another source for that and there are other sources besides those do and no someone had specifically taken a blue l e d down converted the radiation to white light but it is our position that down conversion with l e d s was known down converting blue light to white light was known down conversion was the only other approach acknowledged by the experts other than the triplet approach and given the incredible market demand for light l e d light is finite options and the admitted skill in the art to know how to use the phosphorus to down can work to white life it is very difficult had been put away in a closet but don't conversion of blue light to white wine other ways whether it's fluorescent lamps or lasers that was well known and being used and you're on i think the fact that there are all these other applications all these other happens there are going to down converting blue light for other purposes is an indication that the differences in the field are significant and known and discarded paragraphs that are cited they don't support that proposition and i'll give just two examples in my rebuttal time if you go to page eighty nine sixty eight and you go to paragraph sixteen and seventy there is both the question twenty five and twenty six there is as its judge bryson suggested in paragraph twenty five his statement concerning what was he knew to be in the field but then he goes much further and he goes to that direction that head and provided for the work of the inventors the problems with down conversion and it's not just power and they then go on to discuss the difference between lasers or any of these other about a laser with which was much more powerful and it said specifically that it was wrong upon a laser source the question is how did the p t o get to making this combination of those references and at the end of the day they did it in two ways and we suggest neither is sufficient the first way is this too known approaches and once you decide that the approach of down converting from l he gave white life was