film who is a member of the bar in good standing of the highest court of california and benjamin our sons injure who is a member of the far in good standing of the highest court of georgia i have knowledge of their credentials and am satisfied they possess the necessary qualifications these two gentlemen have each clerk per me jeremiah will be about twenty two months and then be heading over to the p t o and join the solicitor's office and then will be here her year and be heading off to atlanta to go back to standing in where he had worked before i have been very fortunate to have these two gentlemen in my chambers of incredibly smart very hardworking dedicated to law patent law they're going to be wonderful lawyers and i only hope that maybe this learned a little something this year that will help them in those endeavors but i have no question about their moral unpredictable the placement of a finger flap in a carton so that will function as a finger flap and not be inhibited by the cans or the containers that are within the carton without interference through thirty five that the carolinas can be anywhere from greater than half a can diameter to less than a full can diameter that's an explicit teaching and that teaching would pertain regardless of whether the cans were stacked or staggered as taught in alice specifically another words the modification of alice the obvious modification of al right hand can so if you have a candidate stacked directly above that caroline would be a prostitute three quarters of the diameter of that can but the teaching that it could be anywhere from greater than half to less than a ful  german seven one eight reference it would clearly end up between the first and second cans in the top row we just inherently be there so it's our position that the board didn't appreciate that that would be the result when it concluded that there wouldn't be enough room for the finger flap to operated a finger flap and then that was an erroneous conclusion that's not supported by substantial evidence as well because it didn't support more of an obvious thing to do but to make the finger flabby usable for its intended purpose there would be no moin including a finger flap for accessing the carton if it was in a position where it couldn't be used for that very purpose it just would be contradictory to common sense that a person of ordinary skill in the art could certainly be led to make that additional modifications but we submitted there's no requirement to further move the terrilyn alice because of this explicit presented with that in fact zambia presented to the patent office in st famine nation requests the un pact ability of claimed fourteen on the basis of ls german seven one eight and palmer the examiner didn't factual finding in that regard is just simply contradicted by the plain teaching of our so there there would be no substantial evidence to support that factual finding that would be the of the counter position there's simply nothing that supports this conclusion that l is teaches away from having a pair line in a position where the finger flap can be accessed without interfering with the ca twenty five is a pretty tough section so how can a something that is already cut not connected be referred to as part of the single caroline a caroline by its nature of has whalen's and it's not just a giant one can look at it as a giant cut the fork in the most particular part of the dispute about that claim element in the claim interpretation had more to do with whether or not its form of  continuous loop in other words is good and good and mad at the same point which is just not true with that but the part of the reason i believe this isn't that part of the reason is that that issue it doesn't form a continuous caroline is because there are two giant cuts in the middle of what needs to be this continuous caroline well that's not the reason that god has been arguing for why it's not a continuous terror why it has to do with where the handholds is at the end of the current but in so far as that if a court were to determine whether or that they can claim destruction should be modified as i think you're suggesting that alice doesn't teach a continuous terror line for a single terrorist because of those cuts when he again didn't find customer twenty five was part of it caroline wright he didn't specifically identify top twenty five but doesn't it have to be most of the discussion arguing really what's in the part of the brief that we have moved to strike that as this stockton of cannes where there would be obvious to stack cans and question where else would you put one you would put it a thought biology ella's teaches a finger hole in the side finger hole third and you put your finger in the finger volunteer up along a tear strip and pop off and then move the terror line to a specific point behind the first and second can that's nowhere taught in alice in fact ellis teaches away from alice teaches that you want your finger flap in front of the first can because there's room to teachings i discussed briefly the teachings of alice if you look at the teachings of german which is to have a carton or a container for holding bottles resting on their  so that you can remove the bottle and in re insert the bottle and have a closer panel for closing it up when you carry the container back to the recycler that's the teaching of doubts disney teachings of german because for a number reasons alice doesn't need a recloser full basket there's no can coming out of the current number one so you don't need that closure number that front wall for that additional reason and the other reason is the teaching of german is to pull out containers and put back in containers that's why you have a pleasure because you have empty containers in there you can't do that with alice because alice specifically wants you to pull out containers in a pre determined order and that's why they're stacked and arranged and number interpretation of two playing terms one is the free ends and what is the free end of the flap and the other is the single caroline being former frost front and both of those cases the boarding correctly determined the meaning of those signs the claim specifies some parts seeing that a tear line extends across the ar corresponding to the top and to sides of chant to the transverse fold line and then from the trans or sole line across each of the side in flaps to their fruit ends now that is shown in the six three n the top you'll see at the top of that we hear shown in alice in figure two of alice which is the bob and sugar two shows the short cuts or scores twenty one that extend to that large cut out section we propose would naturally call that the three end just because of the one eight and slid so the offices determination of what constitutes a free end and looking at alice really depends upon the size of that cut out which is for the hand twenty five we also believe that the office incorrectly as was discussed earlier applied the same line single caroline in appropriately single caroline extending across the side in flap clearly is not met as shown in figure one by alice that had to cut out portion that's not a single having to tear a line after the first can in the top world figure three respectively inviting the court's attention to page six of our brief are read grief in alice's figures three opposite page six of the caroline there this is the substantial evidence that supports the board's teaching in a way to finding the caroline the error is clearly before the middle of the first camp so we have a as counsel noted ellis expressly has three times we discussed in her brief the restricted range of from a half a can to one can from the right side and that is in alice on page five eighty two of the record common to about minus thirty words talking about having a distance of less than one day an interim one can and this restacking argument your honor was made as a board noted late to the board and late to you do stack the cans and as ellison's tear line is in figure three you would be hitting the top can on the first row so as of this late argument the board even wen you can't do it the delegate so therefore with the bottom can move to the front it's just the next most logical move if you go from a just move it over right well that might be another rationale that some deal could have presented and the board could have agreed with what the board was addressing was the palmer and palmer was all over some priests to the board and priests to this court as a matter of fact some bills keeps emphasizing which we haven't heard of yet i think palmer so palmer is really not that close but their emphasis was on palmer they had a primary push for palmer and so the board was addressing that palmer teaches something else a scandal for kerry and not a flap to open a carton so that argument was present to the board was rejected and then as to ellis and combination with the german patent that renders claim one obvious because it's very beneficial to put a finger flap to start the tearing as the board noted and agrees with some below on that point but as to a deep the dependent claim claim to that has a range we don't have a reference that has the stacking so that would be a hypothetical reference and then you have to modify that hypothetical reference and what the board was saying was that palmer teaches something next change with this hypothetical reference based on the lead argument would be that you have to add a finger flap so the hypothetical reference in and of itself doesn't invalidate claim to you have to then add a finger didn't treat it too late and therefore out of that fray so correct you're not suggesting that if the board accepted something and addressed it we should somehow overlook a stick the board made because they had less time to do it because it was the end  freedom to reject the argument if it was improper to have been filed to make that they chose to either decide it was not improperly addressed that any way so this whole late file thing you said like twenty times i don't know what you want me to take away from that that i should reply brief the board addressed the references and what they disclose as substantial evidence that alice teaches the way because alice has a restricted range from the middle of the bottom first hand to the end of the first can which hits those that can on the top row so homer teaches something else and alice teaches away and those board findings are supported by substantial evidence and that is enough that's a reasonable rationale that claim to still stands because the rejection that was proposed to the ford was properly defeated by the board showing substantial evidence i'm going for when there's a precut hole is to just get a fingernail or a little bit of your hand in there and start the tear and that's why the german reference as to claim one invalidated claim one because it shows that side and as the cans are positioned you you can see if you have to pull the cardboard a hole is totally sufficient a finger flap is even better than a hole if it has a german reference  invalidates claim once you put your hand through the finger flap and that simplifies the opening so that the the hole is on the side in alice and in the german patent if you have a finger flat on top it's the in that car and the finger flap it will call the finger flat or the hole in the tablet is in the side of the card that works for else there's no reason to move that to the top and if you didn't would not do because there is a cut out there but if assuming that you did act ellis has a perfectly operable structure for opening the curtain and one wouldn't take that next leap to eliminate that structure and add it to the top and then look for a place whether it's in front of the first can as is in the teachings of alice or behind the first camera the second theme of the third can there's a functioning structure for opening the carton  from the beginning your honor you asked about where in the record the home of reference was put forth and i was directed to a one seventy five where the examiner found a substantial new question have ability defined by wood doesn't say completely or exclusively defined by so i think that the reasonable broadest reasonable interpretation of the claim language would allow for the inclusion of those cuts as partially defining that spencer that regard there was reference to the fact that i didn't mention palmer in the opening argument but palmer certainly does he teach placing a finger flap between first and second hand is clearly shown in the figures in polar and it describes it as for ease of accessing the carton interior for purposes of lifting it and the argument has been made that palmer is teaching a handle or a hand hol not an opening or a dispenser however i would suggest and then there's no dispute that palmer does teach that finger flap between two adjacent cans which is exactly the teaching that zombieland is looking to that reference for  the fact is that in alice there is a hand a hole on the front and wall it's item twenty i'm sorry forty two in figure three that's it can't hold it is