the first error is the fact that the board supported or attempted to support their decision with a law that does not in fact work their decision i made legal error in attempting to support their decision and that decision is with not anticipation what it sounds like is that there's a negligible difference and that they're very close and what it sounds like is if we stand here today now knowing what the client's invention is let's what we have here right we have  you know we're operating under the construct of graham and statute one of three ok and under that construct we know and i don't mean to bore you with details that you know very very well but we have to ascertain the differences between and in order to to support that that rejection you need it you need a why you need a reason you need to be because usually that's in the form of motivation likelihood of success ok we know that there is a long line of older cases that carve down an exception when we're talking about ranges writing these are all pretty fifty to act cases that said look we were dealing with a range here they were going to there's this exception because remember there was an peterson ok with the court that is that court married the concept of so if i may continue so in re peterson marius the idea that you're going to follow the construct of graham and one or three and it supplies the motivation ok it was it was peter's in ray peterson that supplies the motivation so you take yourself through the construct and it answers the because why is it obvious what the what the peterson court said was that it is routine and it is normal for one of ordinary skill in the art to take what is known and to attempt to optimize and that was the underpinning that was the motivation that was be legally supplied but it's inherent that it makes complete sense that if i have arranged that overlap or if i have a range that subsumed by another range it makes complete sense then that you take one ordinary skill in the arts natural tendency to optimize that range ok could also it also make sense that the that the ring bizarre then the more perhaps there's a basis for proceed to not being motivated to combine but in this situation again the ring just butt up against each other there's no showing no which is that one of ordinary skill in the art is attempting to optimize the known range peterson says a known range where is where is were to get the legs to support that one of ordinary skill in the hour is going to attempt to optimize outside of the normal range it doesn't follow right if we follow the rationale which is very eloquently put forth in re peterson that rationale does not follow because we're not optimizing within a normal range so now we have to put ourselves because you know what let's step back and realize what we're doing here and the minute you say that something is a prime a fish obvious you for close the analysis that we've been asked to do by gra don't you provide an opportunity to show significant difference in the vote you are as if one had found a mantissa patient that possibility would be foreclosed the fact that it's only an obvious ess rejection gives you a lot of cases ok that is true but there is also an analysis that must be undertaken when assessing whether it is prime of fishcakes there are a lot of factors that go into that prime facie case and if we rule that it so it's not necessarily the button but i didn't come here today wanting to discuss that point because i think it's relevant i think believe that what we need to be looking at is is there's there's almost nothing to modify there's no gap that a shooter heston leap here between the ranges you know gap well there is there you are moving from from above six t because that's alternately what we're saying here by by having a prime official case per se there's no analysis you find that there's a range you find that the range is close you're not where there's many other factors that can go to that go in i believe one of the most significant factors is what griffen the prior art reference unequivocally puts forth a range of between six and twenty five as the most important feature of that each there's no doubt about it and on top of that he bites his lower board which he says needs to be protected and says that that board can be six pounds or less so where is the motivation for one of skill in the art to sit there and look at griffin and say i'm going to modify this today for some reason which which we haven't been able to address and move into the range of the very board that the heavier board was intended to protect it's illogical at that it does not follow and again this is why we cannot have it per se rule of perma fish obvious consideration of all the factors that go into motivation and so on not equally apply to an obvious in this case involving a point within that range so not anticipation because some other element that's not that's right so why would it not  i guess maybe one way to make to ask the question is are you not asking for the over waling of the whole line of cases before and after peterson that allow prim together this concept that we've always had of prime official when they're overlapping and it works it into the construct of graham because it supplies the motivation in the motivation is is that within a known range it's reasonable for one of ordinary skill in the art to the the case has been rejected for nearly a decade and the examiner and or have have used lynn as a secondary reference ok i to this day after ten years of the senate raised it with the examiner i raised it with the fourth have no idea how you put those two together to make this invention it makes no sense what's lacking in winter what's lacking in griffin that we're going to supply when you pointed out in this case the ranges do a butt and and a felon has conceded that there's nothing significant about the density of six pounds per cubic but this issue actually came up during the oral hearing before the board  one says six to twenty fall that's correct yeah yeah and it's true they are different but they are abutting and the difference is in the board an examiner found the difference could not be smaller and that's not a contested issue i think that's sufficient to establish a prime of case a case under this court's on precedent there's a number of cases that were involved not overlapping ranges where they were applauding there's actually a gap between the not overlapping ranges and just the fact that they were reasonable their insurance what is the motivation here to adopt a very different weave into a very different range i think the motivation here that well there's  few and in examining the board actually spelled out a few motivations one was just as as a design choice and in our brief we explain one design choice would be to just design around griffen and in fact that's what happened in th the claims as originally filed in this case actually didn't have that upper limit of less than six pounds per cubic but they just claimed a density of greater than two point five pounds per cubic but it was only when the griffin reference became it but when doesn't teach the the other limitations so it's not an anticipation by itself but it does teach that range and i think the examiner said it was just a no no another no one material any of the obvious as a design choice to use the other type of material had that claimed arrested and held that non overlapping ranges are primitive views based solely on the closeness of those ranges hey the case law and in this would be post fifty two of fifty two act and we know titanium metals as two data points to examples and the claimed range was between those two examples so it was of ineffective range ains which the which the lower of the board relies upon language isn't supported by the rationale that this court has developed for why on an overlapping range you have you have motivation there is no motivation legally supplied in this  the burden is on the p t o to establish private case the the other point is with respect to lynn you know when when has been relied upon and you know you mentioned why is  not anticipation it's not into space because we have to board set on top of one another density board to protect the low density board when does not the school discuss at all protecting boards by stacking wanted top of the other the boards discussed by when or insulation boards which are the very boards that griffin seeks to protect if the other the other error than that i will touch upon very briefly is the fact that the secondary considerations of teaching away were not properly considered by the court they conflated the issue of with teaching a way we have teaching away when there's a dispute when when one is skilled the artist discouraged from following the path that they would that they ended up taking and here you do it because again you're putting two boards one on top of the other with a lower board is up to six pounds why would you modify the top board to go into the range of the board that you they stated page one that needs to be protected it doesn't follow thank you