just waiting for your friend  express disclosure of a pop up window that satisfies the limitation because you have it without more i mean you've got without more being without a declaration without a reference to a person skilled in the you are reading the looking at the web page below those words are not a customer set but what we do know is a pop up exclamation mark questionnaire did exactly that and it's explained that way in the four corners of the customer sachs reference and we know that up exclamation mark invitation pops up on your screen in front of you asked if you want to do a questionnaire and then you click on it and you get the questionnaire but how do we know that i mean even taking the exclamation mark certainly imitation should have appeared on your screen to the pop up appears on your screen over this page give it a try for more information about pop up lowercase challenge it is a pop up window that would appear over another webpage and the reason we have a pop up window and unified is to create convenience so that i can fill with what the pattern says conveniently fill in the questionnaire in this pop up window which itself is a webpage move it around so that i could see what it is and answering questions about  why this reference is a bow so the founder of this company testified that the phrase pop up with an exclamation mark in for the invitation it means the same thing in is being described generally and that phrase is being used in front of either an invitation or a question and we know it pops up there's no dispute even between the parties or at the board at a of the opinion below it makes it very clear that the pop up invitation is popping up in front of you and then you can pop off on the questionnaire if you click on it now here's where the coup or when well thought about that phrase in the context of background benchmark knowledge that they had or would have had to be presumed at and what they would have thought about in the context of this reference what what they would have thought were inferred in fact or what this would have suggested as to being obvious that determination in light of the wool reference the chism testimony common sense as applied to this reference itself simply was not applied that's one of the legal turning matter have come in in the first instance since the burden was on you all to establish in the first information could come in later during the proceeding itself the trial proceedings post institution to develop a record specially when we're talking about the critical element under k s having to determine with the level of ordinary skill the art would be applied to the references that we relied on the petition had three references that were instituted we didn't change that we didn't say this limitation because of this new part instead we said there is an ordinary person a or there's a person borders on the art who would recognise that the state of the art their background when they look at that reference customer so that happened during the trial hearing itself it was very clear that the board was thinking about customer set with four corners when we get to your question and it asked several times letter i can only look at this reference from its four corners you're giving me these other things whooshes and common sense arguments but i can only look at it from the four corners and said mr steinberg again i keep coming back so i'm mr steinberg i keep going back to this the test for obviousness as you know is based on what a curse an ordinary skill in the art is viewing within the four corners of the reference and that's a page twenty seven of the trial hearing it was a rigid focus i mention that because in the opinion the court didn't focus on hop u and what it meant to a person of order skill in the art instead it wanted to find evidence in customers that that in fact the questionnaire worked just like the that is show me this is what they said that the invitation there were the words words turns into the questionnaire turns into that the invitation in the questionnaire are one and the to randall and arias a case from this crew or if you look for something else a technical requirement and that technical requirement is simply something that is not a customer set it doesn't show th survey going over the invitation or being in the same place or turning into on the same web page that's a web page the applicant of the web page there is no requirement for then the claims that it was something that the board latched onto because it wasn't satisfied that it could look at something beyond the customer set and satisfy itself that the common sense would explain that the invitation works like the questionnaire because that's what it says and mr a reference that came up in the file history of the patent at issue during the prosecution this pattern is referred to this six nine seven pact the wu reference was never or discussed wade rejected or what have you in the decision yet it came up and was discussed in great detail during the hearing at  scrolling while the invitation a button stays up on screen that's what it was allowed and we talked about the nine six seven that we called the by the numbers and what we pointed out was common no understood how quater x was applying wu and understood the proper use to be made of will if any that's in particular at eight forty six twenty eight or twenty nine of the hearing transcript and this record forecloses  argument that the board believed it could not consider woo for the purpose quadrants requested you know establishing this commonality of a claim element that was supposedly absent from the prior institution it's certainly reasonably discernible how the board got to its result its factual findings and those are entitled to substantial differences as you know i would like to address this gap that the court mentioned in quaters arguments will twenty three of chisholm's reply declaration which related to will but cited it only with respect to a different claimant taishan about scrolling that's at eight twenty six fourteen if you look at just reply declaration that's a paragraph twenty three  that's the only portion of the rip up the reply declaration that mentions wu and it does not set forth any opinion about how we would inform a person of skilled we are and interpret ing the customer set reference or any other reference it's in a seven eighty five to eighty six so closer it's argument before this court and its reply brief eighteen and also to the board at the hearing that's a forty six twenty eight to twenty nine really distorts the record coop argued or certainly implied there that mr chisholm testified that would with would have let a person skilled in the art to interpret customer sat in a certain way but he never says that there is no testimony to that effect no evidence to that effect from m now raises as being very important when if you look at this record there's no evidence no testimony ever contains is there to contain the limitation that this has to be miss wu is there's a one sentence description of it it's about a test environment and someone entering comments it's unclear when and how that was presented what's being done there so there's a very very thin record not developed at all  testimony from from both experts both decoration testimony deposition testimony determent made findings about what testimony believed more credible and then expressly discussed all the evidence presented i would like to also address the notion that the board was looking at an incorrect limitation or limitation that was not in the claims that's plainly incorrect in its final in the session the board explicitly and repeatedly stated the limitation as are cited in the age of five patent claims i did so in describing the patent and the challenge claims that eighty three in its analysis of the alleged obviousness that a five seven eight nine and interpretation or and i would say a distortion of the record we see in the arguments on appeal that there's a selective quotation going on in a noted that in  specification ellipsis does not suggest placing a survey invitation and survey form in separate frames of the same window so this argument that there was a requirement my opinion that somehow these things both appear in the same window and that's what the board is focusing on is the apparatus really when you look at what the board actually dead and indeed opinion matters argued numerous times that that would make any sense anyway so if the customer sat at the exact is argued this notion that somehow we're arguing that they need to be in the same window that certainly doesn't make any sense that the window is there with the survey you would need them potations first place so this whole notion with customers that talks about is you get an invitation and you go off to the survey at a different page and that's always been the argument and the board correctly discerned what the limitation was repeated over and over and made it so detailed factual findings based on that was there any questions and that's all i have thank you first and foremost let me go back to the trial to the decision from the peter and it is very clear that peter had said the following based on the arguments that were made in other words according to opinion a customer set survey button is only an invitation there is no teaching or suggestion that this hopper invitation contains the survey itself it repeats this again and again in the session it's not looking for just a pop up window like the patent requires so that you can put feedback in it it's looking for something more that the survey and the invitation have to come together that is it a six of the physician and it eight eight or just another notable one customer sets of a button with turn the survey invitation into the invitation into a survey question there are words words words that's not required by the claim and he ma popped up the phrase to see what it met legal or your honour's that that phrase wasn't interpreted and no way thing are and the wu reference with regard to mr chisholm and what he said he brought the argument up because of they raised it in their response we replied to it to explain how the case was allow it in that context he pointed out that will in particular  hundred six and that confirms what he said about his own system that pop up exclamation mark means just that popping up and what he did was he pointed to woo a saying this is common knowledge