halliburton at the end of the tubing string disclosed and thompson the board indicated that thompson expressed the general desire to use it tailpipe but other than the ones reported in the paper the pump out plug in cycle plug and the person of ordinary skill would consider halliburton's pump open plug be a good option but that ignores thompson's expressed recommendations and in its paper that the tailpipe like should actually be the board's decision doesn't explain why the person of ordinary skill would adopt just an option that is not recommended and it was for a template plug that included the exact same kind of failure mechanism the share paeans that thompson said raised concerns about reliability and absent doubt why the board's conclusion of obviousness can't be regarded as a rational one your honour's was pointed out at the board the mechanism the sheer pins and therefore pose the same risk that thompson had identified and said raised concerns of reliability and the the tilt pipeline that we're talking about is not just  you know after thought it it's what thomson called one of the most crucial elements of the tire completion system now how burton in the catalogue advertised the exact but can be pumped open that is would allow flue to escape by basically applying and over pressure from the surface and i think the way it does that is you see in the diagram there's that would be one of the differences and i think that's probably  reduced well risk so in other words it was the very type of plug that was promoted for meeting all the requirements that thompson had and it would have been the rational choice for the person of ordinary skill a board found simply wouldn't comply with that concept posed the same risks and it wasn't the one being recommended and so because the board erred in the conclusion of thoughtlessness should reverse on that basis we also raise the issues about the commercial success of evidence that was produced by rapid completions and your honor that evidence only heard about in getting into that commercial success issue don't we have a problem with the decision in the prior case in this court granted it was without an opinion a believe it still eligible and into a ratio to cut a collateral stoppel type situation prior case dealing with the seven hundred and seventy four patent the board when it came to commercial success of the evidence wasn't strong well in order to reach that basis they must have found that there was some evidence of commercial success and they would have considered it but here they completely disregarded the evidence of commercial success so we're really dealing with a different issue it's not a question of whether commercial success would have necessarily carry the day bite self the board simply disregarded the evidence and said then it did not show evidence of commercial success and with regard to the rip idea of the  honor in the seven seventh's for us the issue that was raised was whether the board had shifted theories of obviousness we're presenting a slightly different issue not so much that the theory of  owner has to be given an opportunity to respond in a response that is just argument in the face of new expert testimony commenting on a new reference that's really no response at all and in fact the board remaining time unless you have a question things this thing needs to do this plug needs to do it needs to hold pressure until it needs to open and then it needs to open an expose of a pathway for fracturing of the toe of the well and bottom of the well the board said however discloses the pumping plug does precisely that and so person and ordinary skill in the art would be motivated to do to make that substitution now rapid completion says there's a couple of problems with that st thompson discourages the use of sheer pan's that's not true thompson doesn't thompson what thompson does is it says hey this is an area where we had some issues even though we completed four well successfully stimulating and producing them this is an area where there might be room for improvement in that in the future if we have to choose an area a disappearing plug may not be cost effective and reliable but that's for the future so what thompson said is consider what's cost effective and reliable in the board said the halliburton pump open plug meets that substantial evidence supports the board's final in addition to that evidence the board also relied on overby in dr rouse testimony regarding the overby reference which says when you're doing open almost a stage fracturing use a pump open plug at the top of the well in this precise application they didn't say anything about that they don't say anything about that all they say is that the board didn't actually rely on that but that's false the board did at appendix fifty in appendix one hundred and seventy five you can read it in the board's opinions where it cites dr rao's declarations if paragraph on findings and really are heavily disputed here i didn't hear any argument that they made a showing before the board that the claimed methods were used in any amount of sales that's the failure that the board identified in their commercial success showing and and there has been no no presentation before this core of any evidence of sales tied to the specific claimed method limitations why is that zone a well constant use the same tools in a castell so if they're going to show commercial success they have to show commercial success in any specific well and vironment they have made no showing so the board that they failed to show a commercial success is supported by substantial evidence on top of that with respect to the collateral estoppel issue that should show all raised the issues are precisely the same in boards opinion in the seventy seven for i p r which was previously appealed the board said we find that you have failed to show commercial success and we give it no way it may be precise same finding here so it doesn't make any difference if the language that the claims of the seven hundred and seventy four are that different for rapid completions to show commercial success here but these specific disputes with respect to their showing of commercial success where the same in both cases in other words they didn't show that the specific wells in which these tools were use were horizontal open hole wells when their own ads say they can be used in case told vertical wells so so i don't think that difference in claim which makes any difference your honor finally with respect to the a violation as as counsel noted i think the a p a requires its notice an opportunity to respond they were given that they were given a six thank her client back on top of the fact that they were given a six page reply they actually have not shown any harm from that violation all of that evidence was submitted in the context of an argument on unexpected results they have not appealed the board's finding of unexpected result that  failed to show unexpectedly so in the absence of appealing that specific finding whether they get to submit more evidence can't possibly matter in fact they haven't offered any indication of what type of expert testimony that it's mitt would have changed  so i submit there is no harm no a p a violation and even if there were there is no one and if there are no further questions i'll see the rest of my time and that's why merely being an option is not good enough in terms of the halliburton pump open plug my colleague referred to the ford's reliance on overheating well in fact they never cite ok and as you say simply being an option is not the proper test it has to be what the person of ordinary skill would have done regarding the evidence of commercial success the patent owner majority of the company's revenue and profits to not just sales of the tools but actually performance of the method in the board agreed that the evidence that the patent owner had submitted show that there were instances where these tools were used in the claim method and that should have given rise to the presumption of commercial success in favor of the patent lawyer but that presumptions never granted and the board in this case specifically rely on the cumin a bass paper in its final written decision in fact they credited the testimony whether for its expert in the presumption of commercial success your honor i think comes out of p p c broadband this court's opinion in p p p see broadband cited in their papers