case by applying hindsight bias in its obviousness analysis the board essentially took two divergent prior art references gross and smith it deconstructed these references into pieces of their functionality and then reassembled those pieces to create an entirely new algorithm that isn't disclosed in either of these references or their combination it use and ninety six patents claimed associating step as a blueprint for doing so the board essentially took the content item descriptors out of gross it put them into the mapping index and the law of obviousness governs basically where you draw the line between properly combining references and improperly using hindsight bias and the claim as a blueprint to essentially reengineer the prior art and arrive at the wii disputed claims without any particular motivation or teaching in the art that would tell you to do so that's what makes this and ultimate legal conclusion because in this case there isn't there are there are some small disputes but there isn't much dispute over what the prior art discloses there isn't a battle of the experts there isn't a whole lot to that we need to look at as far as underlying the board found that the sniff referents anticipate there are teach is prefixes we think that a reading of that reference that's not that's not a correct a reading of that reference but ultimately even if  were too except with the board did hear there wasn't a motivation to combine these references in the way that the board combined them right we don't dispute for instance that gross mentions performing its algorithm on a wireless telephone and that smith discloses a wireless telephone but if one were to look at gross and say oh here's my motivation to combined it with sniff as as both experts below ad mid the way you would keypad you would get to your search term and then if you put that search term into gross you could then use gross's and x and it would work that's not the algorithm that is claimed here instead in order to combine them the way the board combined them which was improper and for which there was no motivation is the board deconstructed everything and really engineered an entirely new direct mapping  nothing in grosser smith discloses anything that would teach you a direct mapping algorithm that takes you from the starting point of ambiguous prefixes goes through descriptor searching on an incremental basis and then gets you to content items question just about our standard review i notice that your brief didn't refer to substantial evidence anywhere what do you think is our standard or review you say this is a legal issue for us to dispute things like  undermining or for you to dispute the underlying findings of fact about what the park teaches and even if there's motivation combined those are questions to find interviewed for substantial evidence how do you deal with that so to to the extent that the court feels that the only way to reach that this ultimate legal issue are to find in videos favor on the ultimate legal issue would be to reverse specific factual findings of the board then that part would be substantial evidence we can't do don't you didn't argue that well because this video's articulation of what this argument is this is an entirely legal analysis of what is a hindsight or what is hindsight bias and i think if you look at hindsight bias and you look at what cases like cycle vans a plane and yemen uchi tell us about using the claims as a blueprint that is all this court needs to reverse what the board did here because nothing about what the board did is a proper obviousness and house and though there are some underlying disputes like whether smith discloses a prefix ultimately that doesn't matter because even if you interpret the smith reference the way the board interprets it it's the obviousness analysis ultimately is still improper because they are still using the claim as a blueprint and reengineering the prior art in order to make it fit in order to arrive at the claims and i don't think we need to overturn any particular underlying findings in order to do that but once you look at the hindsight bias that the board had in piecing together all of all of the divergent elements that arrived at the claim you can see that it is a very strained fit for certain elements and i think that's really the point that we're making it is a very strain it doesn't overcome the substantial evidence review and that's why we are not advocating that the court reverse anything on substantial evidence honestly i don't understand your argument your argument to me is you  the reason that we have the obviousness test because we're concerned about hindsight bias it's not some how is separate component of obviousness that we independently analyze it is what the four parts of the ground versus john deere test exist to hopefully prevent and so i just don't understand you're acting like hindsight bias is the th prong of the obviousness i really don't get it hindsight bias is not itself a prong of the test but hindsight bias again as you said hindsight bias understand that that's part of so avoiding hindsight bias is part of what the underlying findings of fact in grammar are designed to avoid as you said which is which is correct but ultimately what constitutes a proper obviousness analysis and what doesn't is a legal question and hindsight bias informs that legal question  says john deere factors in this case pretty in a pretty straightforward fashion they found a motivation to combine you don't like the results i mean you have a shot at convincing me there's no substantial evidence for a motivation combined here but i really don't follow or understand your argument that this is somehow a legal question that goes to the heart of whether they applied the wrong obviousness test i don't see any misapplication of the law here well if there is nothing  i don't see holding state of the test from are applied it probably will if there if once you go through all of the gram factors there is nothing else to do but conclude  obviousness than obviousness isn't a question of law anymore obviousness becomes simply a question of fact and graham factors are completely determinative and this court would never have to know the review over obviousness which i don't think is what the case law tells us yes the graham factors are there they are the underlying findings of fact that ultimately inform the legal question of obviousness and they are designed to help avoid slipping into hindsight bias which would be a legal e are you trying to suggest to me that if all four gram factors point towards obviousness the court is free to nonetheless conclude there is no obviousness because it's a question of a lot it seems you're saying well there is an already district whatever listen to this and worse you know this well in order then for obviousness to be considered a question of law there needs to still be some sort of legal analysis as far as when does one conclude that you know that the question was answered correctly and that the graham factors were properly employed so that is what it means to be a mixed question of fact in law which is what obviousness is right and so in order once you resolve the underlying factual issues if there's nothing left to do than obvious is not a question of law at all there has to be some legal oversight to well we've looked at the underlying factors how are we going to apply the knowledge that we gain from answering those underlying questions into answering what is ultimately a legal question and the case law tells us that using the claim as a blueprint in order to find all of the elements in the prior art and combine them in the way that the claim combines them that is an improper legal analysis so i think if the decision then is that once the graham once the underlying findings of fact have been found that there is nothing more for the court to do then then obviousness wouldn't be a evidence to support the board's conclusion that the claims are obvious in view of the grossmith combination with respect to the associating limitation the associating limitation in the hunch i heard that as well and it's not clear to me that as i understand her single issue on appeal if you look at their brief the single issue on appeal is an issue of whether the associating step is met by the combination and in their reply they confirm that that is the sole issue on appeal and that associating step whether it's met by the combination is it is a question of substantial evidence as your honor i think indicated in your questioning of my friend on the other side i think that is an issue of substantial evidence the ultimate conclusion may be a matter of the law but the review here is on substantial evidence is the combination met and is there substantial evidence in the record that that combination is met even though the legal conclusion is a question of law it's based on underlying fact issues and in this case the only underlying facts are submitted by our expert dr fox is original testimony on this issue  was provided and that's starting at one of six and in particular the paragraphs related to the motivation to combine our evidence on the other side there's no declaration support on this issue supplied opposing that in the opening brief they didn't cite any declaration any expert testimony they don't missing limitation a missing something missing in the record between those two references and in this case we have we have i believe substantial evidence to support that and if you look at their expert they cited in their reply he actually addresses different issues than hindsight none of that is addressed in their expert report if you read their expert report it doesn't refer to hindsight it refers to two things which are st two are criticisms of their invention the invention operates with you know more imprecision and the nd thing is that operate slower and then they say well you would have used malt i tapp which is one of the arguments they made here today or two hundred and nine you know just because you could have done it differently could have come up with a different combination that doesn't render the combination we provided in appropriate or wrong and then there are rd thing was really a mischaracterization of the combination so they said you could have replaced gross gross's index w smith's index and that's not what we argue we argued that you would use myth to modify the index of grows growth teaches an index for completed words car or  something that's an alpha numeric index into a new american x in the court below did hold that smith teaches prefix as well because it has a single character search if you look at the smith reference it does teach single character search even though we didn't rely on it and it's not something that was necessary for the decision but there is the number three is one of the terms and that is a single character incremental search and that's what the board below found as a back up position so they said even if we had made that combination which we didn't make in the board found we didn't make and we agree with that the hindsight in this case a wasn't really addressed below other than as that is the burden of our combination use hindsight in the combination and secondly the entire teaching of smith is how to convert an alphanumeric index into a numeric and and it's literally throughout are are related or cannot be in the content itself rather descriptors can't be in the content so st of all it doesn't matter for our combination growth has descriptors in the content and outside of the content  content and in fact if you go through all of the various flow diagrams gross you'll see that it in fact uses two different determinations one for  actually two search path so receive search string entered into while its main search field and so that is an incremental search with respect to the content of the files and it says incremental search buffalo that and then figure four be a separate path is receive search string in attributes field and then incrementally perform searches and the attributes field so gross allows you to search on things like date  thank you your honor so the parties can dispute the standard of review both standards substantial evidence and an overall are listed in the standard of review section in our brief we advocate that this is ultimately a legal error we use and we use the terminology of de novo review throughout our brief but even if this court were to find that ultimately it must apply substantial evidence review our question presented remains the same arguments remain the same we characterize them as legal arguments because they go towards the ultimate issue of obviousness as opposed to the underlying graham factors but either way the board committed an error in the way it conducted its analysis and i think that argument basically remains the same regardless of whether you want to characterize it as substantial evidence review or d comcast attorney mentioned that the only facts in identifying substantial evidence the only facts in the record were those submitted by their expert dr fox but dr fox's testimony relies on his opinion that content items and descriptors are the same and the board expressly rejected that opinion and stated in its final written decision that it was not reliant on dr fox's testimony in that regard so again what we're left with is the board essentially setting aside the opinions of both experts and conducting its own review but doing so under an improper rubric comcast attorney also said that we did not identify anything in the claims that was actually missing from the combination but we did that was the associating step the step that we discussed throughout our brief that is the step that is missing even from the combination and then also he mentioned that smith discloses a single character which is the one of the what could be characterized as underlying facts but again it doesn't matter to the ultimate analysis but the single character discussed in index is not a prefix it is a situation where a full search term happens to be a single character and we made that distinction again below so if the court has any other questions you know