bracco diagnostics think as the court is aware this appeal flies different standards to a different evidentiary record than the case that was just argued i'm going to start out with the riley reference that was not part of but the board found that riley does not teach placing i don't calibrator on a moveable cart when the board then relied on reilly for another reason not in the petition and that we did not have an opportunity to address concluding that the petitioner burden to share that the claim limitation of a dose calibrator onboard a mobile cart was obvious in view of klein reilly and paid for the really error once the board concluded that riley's did not teach the only aspect that the petitioner relied on it for riley should not have been used in fact there is no reference in the record that teaches a sensitive dose calibrator used to take measurements across a wide range of radioactivity onboard a mobile cart evidence in our record it was error to credit the conclusory testimony of an expert that it would have been obvious to add this type of sensitive device to a mobile cart where it could be subject to mechanical shock in vibration as well as high in variable background radiation from the rubidium generator jubilant as the petitioner did not carry its burden on this point even if reilly was considered there is no motivation to combine wryly with klein which uses it stock strontium that kleins those calibrator measures is about thirty thousand dollars times smaller than the radioactivity in the rubidium thus the rubidium generator system incline needs to use the full range of sensitivity of the dose calibrator making it especially important not to subject the calibrator to mechanical shocks this is not the case and rightly because reilly's dose calibrator is only used to measure the don't not to take multiple measurement for further measurements to be sure that it is safe to use the system the board's finding a motivation to combine pay and reilly with klein based on beneficial design choices that increase user convenience is legally insufficient and not supported by substantial evidence in fact a conclusory assertion of design choice was basically found to be insufficient motivation for an obviousness determination in the fandom a decision that was affirmed by this court last year further the spontaneous observe a sion that a person of ordinary skill could just use a bigger cart is contradicted by the evidence from both sides and is not supported by substantial evidence the board's failure to analyze the teachings in the record of riley brief so stop talking about what was raised in the petition and not because you didn't challenge it either way you're making this up in oral argument for the st time when when the party actually agrees to something in the oral argument i find it difficult to conclude the board then erred in honor we we argued in our briefing that the board improperly relied on reilly after finding that riley did not contain the movable cart teaching that the petitioner relied on it for follow the hide to another point which is that the board legally arid in its obviousness and out this in the one thousand four hundred and forty eight dollars i p r by considering reilly or tate because the board incorrectly compared the prior art references to each other rather than to the patent at issue when radioactive infusion the field of these patents is specifically rubidium generator systems and neither tate nor riley had anything to do with rubidium generator systems and you couldn't use those board omitted in its analogous art and now is this neither tate nor riley generate any radio pharmaceuticals on their system they are only infusion systems where they take a radio pharmaceutical generated elsewhere measure it out very carefully and infuse it into a patient the patents relate to a completely different sort of system where the radio pharmaceutical has to be generated on the actual system and it's being infused to the patient while they're undergoing the pet again because the half life of rubidium is so short that you have to do at the same time you have to generate infuse scan all together so turning to the anticipation issue that runs across all three of the i two hours it's really it's two and we can focus on claim twenty one dollars in the four hundred and sixty eight and the last two limitations a computer configured to determine at least an activity of strontium eighty two and activity of strontium eighty five in the all you it from the breakthrough activity data and the computer further configured to prevent the patient infusion the board should have decided whether klein expressly discloses a computer that performs the claimed step instead of board erred in at least two ways st the conclusions are not supported by substantial evidence because ordinary skull would understand that there was justice conclusory statement with no explanation and that's inadequate to support a finding of anticipation find dr stone's testimony that one would understand it to prevent in light of the way it's the school is not supported by substantial evidence and we've got a really high hurdle here and you've got expert testimony that doesn't feel particularly conclusive to me in light of what's actually disclosed in the reference i appreciate your are but it's important to remember that the claim requires that a computer prevent the patient infusion procedure if this track can level exceed allow the ok so we are now in the i c r c but we have many of the same issues that we discussed in the prior session at the i t c we have disputes over whether it's obvious to relocate the doe's calibrator onto a moveable cart we have a dispute over whether klein discloses a computer that performs this prevents operation and this is the rd set of eyes of the taking a look at this and and and come to the same conclusion based upon what is not identical but strongly overlapping and enables runs only after its prerequisites are met that something that a person of skills with or without expert testimony understands that we're not allowing these runs to perform they are not enabled if the prerequisites  generation i mean every single claim in their patent says a generating system so that generation seems to be an important element of this invention and her argument seems to be  art references don't fall into that analogous article i mean go there i'm happy to ok so again please please review bracco those brief and and x see how they explain that this happens this this rubidium generation system it's thirty years old by the time that we get to the filing of these patents the generation of the rubidium that's thirty years old right the problem that bracco identified both in its patents and industry thing is that it's you know that there are a laboratory hard to set up and the maintenance and it is used in a different way it's use in a way that's appropriate for that f t g medicine that's that's correct it's not the usage that we're not proposing anywhere in our in our obviousness challenge to use the dose calibrator in any way that is different it we're suggesting keep those as it is all we're talking about is picking the device up and putting it on a car in a way that is you know it's simplified life you know it's a user convenience thing as dr stone testified and our view i mean in particular example of a device that's far more market ready than this design that was in a university environment and it's an example of the kinds of things that people would do and it's an example i think again dr stone testified that just placing something stone and again riley peyton kline all show that these components are really well known that those calibrator is a well known commodity device this time the cap and tech c r c fifteen is is it is something that's available to the gold standard other thing that i would like to point out is this idea of the determining finder talked about oh there's no disclosure of a computer that performs this determining step that was a step that was not argued two they argue this idea of the computer doesn't prevent solutions when if you look at appendix one thousand four hundred and twenty nine counsel for reco gets up in oral argument and says hey everyone agrees that the claim says computer of events but actually does more than that and he primitive off that these are new arguments that this determining step should have been argued separately in briefing in an absolutely wasn't and the board was correct to to find those arguments we have  when you raise the argument during your time that weren't raised by the other side you now open the door to them addressing on my rebuttal whereas if you haven't addressed that they wouldn't be able to like the last argument you just made where the board did just fine for you looked at our experts declaration and found that it was was eminently credible found it corroborated materials and was corroborated by the materials that were of record the same cannot be said for for braco as expert dr pelt was identified in not only this proceeding honor to touch on the point raised by counsel about whether we waived a limitation as an initial matter of course it's petitioners burden to show how the prior art to schools is a limitation and it would be inappropriate to shift that burden to the to st show that the prior art does not disclose that but notwithstanding that principle we did and our patent on our response address that the system has no knowledge of what the breakthrough determination and this is the detail of flow chart of what the computer does for the daily protocol the only portion of this that refers to anything having to do with breakthrough is the calibration run and in fact jubilant pointed to a smaller block diagram with just a box for calibration so that is the portion of the daily protocol they are relying on to disclose the claim in the patient of a computer configured to prevent the patient infusion if the as kate says which is precisely the reason that you can't move the dos calibrator onto the mobile cart incline the dos calibrator has to be used to take a wide range of very sensitive radioactivity measurements that you do not have to take an incline and that would be would not work properly in class you don't have to take those measurements in tate and it would not work properly on klein's cart because of the mechanical vibration and because of the high and variable background radiation caused by the generator which is only incline and not in tate and riley if th