stay hotter longer than previous projects they can get to one thousand degrees fahrenheit within fifteen minutes after ignition and sustain that temperature for fifteen minutes thereafter and they do so using groups we should never been known to provide that combination of benefits before is not based on evidence but on silence and on speculation the speculation that a person of ordinary skill in the art can cherry pick claim times without claims temperatures from one  temperatures without the claim time from another group list but that the conventional because described in detail three patent mash those together with grooves and achieve a never before cheap time and temperature limitation that despite bergen peters both stating that prior attempts at groups like malls did not provide both desired optimal ignition and burning characteristics as even the board recognized that despite the board of finding nothing in burke disclosing any temperature that would correspond to the one thousand dollars degree fahrenheit cooking temperature claimed in the eight a free patent after any length of time and that despite no evidence  it's frankenstein's monster of burke peters and wolf was guaranteed to reach a one thousand degrees fahrenheit at all much less within fifteen minutes after ignition and much less sustain that temperature for fifteen minutes thereafter this is not a case where two competing conclusions can fairly and reasonably drawn from the same evidence this is a case where the board's purported evidence the earth will from peters has the time and temperature limitations is silence and is not substantial evidence and especially is not stansell evidence against or uncontested evidence that the combination of berg wolf and peter's would not necessarily achieve the time and temperature limitations now i emphasize necessarily kick in the right can it can i just sort of summarize what at least i'm remembering to be the gist of the board's decision if the temperature limitation is  sustainably burn fat and that this key paragraph in one of the pieces of prior art that uses the word optimal should be read with not a kind of diminished value of the word optimal as you summarize it but with a volume increase of the word optimal as you say namely that all that said was there a variety of ways of trying that have been tried to make this better and those ways haven't been optimal and therefore that's not either a teaching a way really much of a negative evidence that the board had to except to say that the otherwise supported combination would have been there would have been a so the board actually couched its description of bergen peters a little bit more strongly than that and particularly with respect to their characterizations of previous efforts of groups it's not just provide do not provide desired optimal ignition and burning characteristics the board even said you can find this at a loose appendix one thousand and twenty as well as twenty four and twenty five burke in peter's describe the un's satisfactory results achieved to date in the prior art which at that time merely purportedly reporting the disappointing nature of results achieved to date using surface discontinuity such as grooves now this course predecessor has recognised that descriptions of on satisfactory and disappointing results using a prior art technique is not only enough to establish teaching a way but is the very antithesis of obviousness and that comes out of the in re rosenberger case that we describe in which the primary reference on which the produces breaks it doesn't pass the acid boil test and it just provides disappointing results and at the very least even if the boards read of berkin peter's to be limited to expressing disappointment and on satisfaction with prior art efforts groups is upheld and we would agree that his review for central evidence it's legal conclusion that those are not established teaching away is inconsistent with this court's precedents and therefore your honor i don't think we touched it as unexpected results what we argued principally was that there was an evidence that the combination of birth wilson peters would have even achieved the temperature in the conventional protests now we did provide evidence of so your honor returning to the time and temperature limitations one of two things has to be true kings were either presented a legally deficient theory or presented a factually on viable theory but legally deficient theory is that a reasonable expectation of and that hasn't happened here the best way we can understand kingsford you serious rooming is that you did not present this legally deficient theory is that it's actually relying on a theory of inherent see that it is using the description of one thousand degree conventional yes after twenty five minutes so i think following up on that what we don't know from the board is that or what we don't have evidence to support the board's conclusion disclosed three hundred and eighty degrees fahrenheit within fifteen minutes which admittedly was quite different measurement techniques equates to what the three pattern would characterize as a one thousand dollars degrees fahrenheit cooking temperature it's an apples to oranges comparison the board simply sort of made a leap of logic in its final written decision in simply saying in the absence of any disclosure in birch regarding the temperature that would have been measured inside the pile burning for cats a have supported that conclusion it doesn't appear that there is any at six hundred degrees it'll get to a one thousand degrees fahrenheit but if you continue through his deposition he states it's not always exactly six hundred it's not always exactly a one thousand miles or ranges and those are typical so it's not a universal fact that all charcoal previous charcoal burns at a one thousand degrees fahrenheit while true that the eighty three patent does characterize a one thousand degrees fahrenheit as a conventional temperature that more cats can reach after twenty five minutes the knowledge of a person of ordinary skill in the art also included examples of charcoal burning at temperatures lower than that and one key example that the was not addressed by the board is the humor reference this is an appendix four thousand six hundred and sixty two it's explained by our experts at appendix yes those aren't protests but at the same time it illustrates the point that not all charcoal burns at a one thousand grease fahrenheit despite the fact that the three patent indeed identified an example of charcoal in the prior art that burned out a one thous cat of any shape or size that's what zire to achieve a condition temperature of at least fifty emission time at least fifty minutes and maintain a burn time for up to forty five minutes the idea of having to shorten ignition time in a long burn time were well known in the art answering your friend's argument that when the obvious in this case is asserted to be based on the three references you need to find a necessity of a one thousand percent or express raises this argument about the teaching away st i want to point out there's no challenge to the evidence on the motivations to combine birth peters and will in terms of if there is expressed teaching why you would combine those three references the other that was not challenged before the section of those pads were not provided in a teaching a way that most they're describing disappointing results and to support a said multiple times this describing a prior art technique as being inferior is not things like bruiser flutes and channels can enhance combustion organisation but don't achieve our desired optimal characteristics and that makes sense when you read what burke and teachers are trying to do both and we're trying to extend the burn time they're trying to burn time to thirty five to forty five minutes that was what their goal was was short mission times and longer in time so they didn't view the surface on the surface providing their optimal benefits but that's was a criticism that you cannot use of a groove or a flute or what have you to enhance ignition of the would patent or did not make the argument this was in fact praise for their invention and we don't think there's a connection that's been made in this record to the claims of that the correct time for skepticism or relevant skepticism is a time to claim venture that is what the board said and i think that's that i think it depends and that what the board is saying was there has to be skepticism for the claimed invention  reference from seventy years ago approximately they didn't say don't use groups it was just saying that when you use brown coal and put grooves on brown coal for cats that they're subject to premature crumpling and the board found that that but i do want to stick with the press release for a little bit because it is some very powerful evidence of not obviousness under the rubric of the heidelberg or mash and case in which there was a competitor that had previously tried and failed to  something and then turn around and adopt it and then turned around again and said that was obvious if you take a look at our opening brief there's citations from some of the district court documents that were co parenting a motion to stay in iraq a tory response  see this commercial launch of the sure fire but tatts which kingsford itself calls as the st significant investment in charcoal until january two thousand and six which is after the latest priority date in june two thousand and four other challenge claims at and the claims on people here so ultimately what you're seeing here is a very significant reversal in kingsford stance and what prompted that reversal in our view the evidence i want to get back to something my colleague said about motivation combining the concept that we did not contest the board's motivation to combine we did we contested whether the board was correct in asserting for instance that kings that wor teach that groups can improve enhanced ments ignition and or overall burning and that was what the board actually relied on in its motivation implied analysis now that and in enhanced commencement of ignition a or overall burning isn't there it's not in peter's it's not in burke and i believe even kingsford knowledge is a typo when it's petitioners reply so ultimately to the extent the board's motivation combined findings rest on the proposition that peters and bert teach that groups can prove both ignition and burning that contradicts the reference and that's not supported by substantial evidence because substantial evidence cannot be found by contradicting a reference with the remainder of my time i'd like to address the time and temperature limitations and one question that remains on the answer to this date is how do we know burke wasn't designed to burn at lower temperatures in order to obtain its particular performance that it's describes again achieving what it calls a time to heat a time dollars fahrenheit within about fifteen minutes and sustaining that for according to work forty five minutes we don't know we don't know what temperature burke is actually burning yet as relation with relation fahrenheit and in that case we don't know whether groups would have improved or to the point where burke gets to one thousand degrees fahrenheit within fifteen minutes that's the issue and the what burke purports to describe and what's described in the it all three pattern have very different burning profiles