our first case is number sixteen eleven seventy six wroxham solutions versus jupiter networks mr summerfield thank you your honor may it please the court the focus of my argument today is going to be whether in this particular instance the hypothetical person of ordinary skill is the right paradigm for really evaluating the question and what we typically do we look at obviousness is we retain an expert and we say pretend that you're a person of ordinary skill but you're not pretend that you know all the prior art which you don't pretend that you've traveled back in time to the time of invention which you haven't pretend that you haven't read the claims which you have zero and most importantly pretend you're not being paid hundreds of dollars to render an opinion in this case and all you're trying to do is really solve a problem that's what we typically use it's the best system we have unless you have a case like this one where you have not one but fo prior art references were all the components of the claimed invention were there in different parts of the references and the authors of those references didn't think to combine them when you have in that circumstance have obviousness without anticipation you can your honor yes but the point is if all the pieces of the puzzle are in the box and the people had those pieces in front of them and still didn't build the puzzle and that's pretty clear direct evidence that the invention was not obvious and piece b is there true in every obvious if not when they're in the same reference your honor when you pick and choose from different references of course we take one from column a one from column b and one from column c we come up with the claimed invention but where that where the components of the claimed inventions are themselves in a single reference four times over and the authors of those references didn't think to combine them that's a direct evidence of the invention it wasn't even if we can see that the passage of time is relevant the passage of time without action is relevant to the question of the haitian to provide and that's only one factor i mean we have said that passage of time is a factor when you also instance something like longfellow meat you didn't present any evidence of and no judge and i don't think we have to in this case the point is it's not a question of passage of time it's the point that for example of what state the specifics of the any of these references teach your way have you are he did any of them teach way that would be a possibility or is ga mallory referenced secondary considerations of non obvious s and might be one of the long period of time between when the prior to shoot and when the invention came on buying the different pieces of the very same prior art reference but you don't have a long passage of time here i don't know we don't and but but the point is those are the kinds of things that would go into what i would characterize as circumstantial evidence of of obviousness or non obviousness is there a long felt in the what were their failures by others was there in the passage of time that's essentially going problem all cases of the mere fact that there are references out there that haven't taken the combination or haven't taken the next step is the end of the inquiry no judge that's something we're saying at all we're saying that unlike normal situations where you have element a from reference one element the from reference to and neither author thought to combine them here we have an author that says here's a here's b but i don't combine them and this happens four separate times here witness or own expert witness a set when you have a failure in an m p a less scheme you just switch traffic from a working path to a standby path there's no prioritization there it's automatic there's no determination made as far as priorities are concerned combine them that is imperial evidence of non obviousness and if it is on like a situation where you have to take an element of a the network failure element from one reference and combine it with a prioritization element from another reference but what i mean is there a difference between saying ok here inventor was the first one clever enough to put these two things together and saying that no one else would have thought it was obvious to them yet again judge if we're looking at actual evidence of what people did not just what we thought they might do we know what people did we know what hofmeister did we know he had both elements and thought hoffmeister combining them shows that was hoffmeister and what we have from the panel is a determination that the level of ordinary skill is evident from the references cited themselves so they said all you have to do to find out what the level of ordinary skill is go read these references ok judge and i think that is the point of the argument today we're asking that the court to take a fresh look in circumstances like this which are usually minutely where you have all the elements of a claim top this jointly in a single reference not just once but four separate times i think your argument is consistent with paul's or yes we do because in chaos because in chaos are there wasn't this particular fact situation and chaos are it was a refinement or further explanation of the hypothetical person paradigm because there was no other way to look at obviousness if we don't have a situation like this we are left with the hypothetical person paradigm there is no other way to look at obviousness we have to go back in time and imagine what that person would have done here we don't have to do that we know what people did it again it wasn't having to pick and choose from disparate references that come up with the invention they were all in each of these references so here our situation because you don't have to worry about circumstantial things like what the person where narry skill looked like what they would have known what problems they were facing all of those are in the four corners of each of these references than what objective lay someone skilled in the art might see it's not subjective at all your honor we know what they did in the circumstance we don't have to interpret we know what they did in hofmeister you have a teaching of prioritising pseudo wires and then two hundred seventy paragraphs earlier you have a completely unrelated teaching of network failure that's not subjective at all that's a fact and it's undisputed my problem is that even if we accept the proposition that it's a skilled people as the board acknowledged people of ordinary skill that had these things in front of them and didn't think to combine them that's the best evidence of not obviousness that we are going to be able to find otherwise again we in this pretend universe we're up people opining about what a person that doesn't even exist knowing far more than they actually do not having read the the claims ensuite coming up with an opinion as to whether something obvious or not and again in most circumstances that's the only test we have which is why we use it but this in essence is a direct objective evidence these references each reference had the prioritisation element in one place pseudo wires or paths for half protection another place a network failure top all four of them and that just isn't disputed here as a matter of fact the board and juniper are relying on that they consider it mission by us will and of course it must be obvious so they don't dispute it at all so again if these four references in pure rickly demonstrate that when presented with the pieces of the puzzle all of them that the authors didn't think to make the puzzle and the puzzle cannot be obvious i think that you don't have a because that may be one reason as a matter of fact in our brief we cite to a question or to ask me are we supposed to guess as to why this is not obvious and the answer is no but it really doesn't matter if in fact they didn't do it for whatever reason whether they didn't see the problem in the first place they didn't think it was a solution to the problem in the second place or that it was just a bad idea for whatever reason in the third place and one of those reasons belies the notion that the invention is so you are advocating for us to look at this particular case if or when all of their obviousness cases yes and what other types of cases would you say that we need to change the law on obviousness and  clear reference be at that time the us application of that might very well be another instance in fact from personal experience i had that very issue before the board where there was in fact an author where it was determined straighted that she had knowledge of another reference and didn't think to combine them and that was argument there too however you don't have to reach that in this case because here you don't even have to go that far here you have the authors themselves not having not being aware of other references but having their own teachings in front of them again with respect there is no better evidence of not obviousness out there than when you have because it again goes to the mindset that we try to get into of the people that were doing this work at the time there isn't any one individual that we were imputing a long felt need to we're just saying generally in the industry there was this recognise need there is no one individual we can say yes this person actually recognized the need but failed to come up with the invention it is still in the hypothetical realm it's circumstantial evidence that someone new way of implementing pseudo wires so the focus of the reference was on setting that up and admitting wires into the network then reference to network failure was merely to note that the particular system would be well suited to take advantage of conventional techniques for protecting that works but protection wasn't a focus of that reference and we admitted that in front of the board and on appeal here so that re disclose everything except for the context of network or no if we moved to r f c three three eight six that particular reference was a higher level reference that explains various protection techniques and mechanisms that could be used cross a wide variety of types of networks however it didn't get into the details about how to set up paths in through the signalling requirements which are the first several elements of the challenge clean issue today those were conventional a protection scheme but it's in the context of an m p last network not a studio wire network and since the challenge claims require that these things need done in the context of a suit a wire and again within the four corners printers of oh and it's not a close however at the very it's a textbook that gives a high level view of what's going on in the state of the art and again if focuses on high level protection aspects that apply to all sort of networks it does provide some applications of th end of the book and those again are in the context of m p l s networks as opposed to pseudo wire networks so in terms of the factual premise of appellants argument is not supported by the record we do agree that as a whole all of the references disclosed each of the elements of the challenge claims but in terms of the particular relevance or if the particular record referenced that the elements are not not disclosed by any one reference so in light of this well i think that's the case in any case an obvious is the whole point of obviousness is that the elements were out there in the prior art that nobody had previously combines them and that's where the rationales under the kids are precedent come into that actually they were there not as close in other words they're out there and there are many many disparate references but isn't that different from a situation where you've got some of them in the same reference or  reference from closely related references and so i'm not sure i'm understanding your question in this particular case we do have the elements in different references though the references as well that that very inventor didn't put these things together i think there could be cases where that would be relevant but in this particular circumstance given that owens reference which you refer to is talking about n p l ass and the whole references about m p l as it when it really makes sense for them if you also add in pseudo wires because that reference was about and so in this particular circumstance i think it makes sense that that they didn't expressly imply it to see the wires there could be a said first with a lobby on page fifteen the board said the lobby reference to just automatically switching from an active primary pseudo wire to an inactive secondary pseudo wire on a sixteen the board cited a lobbyist teachings a priority preemption attributes that are among the basic attributes of network traffic trucks that are significant for traffic engineering those are the elements of the clay so from this carson the suggest of the board didn't find those for these references just incorrect now we go to r thirty three eighty six there on page eleven the board talked about suitable wires and the prevention of lower priority traffic in the event of network failure you know on page eleven they also said that there should be priorities assigned ip protection