seven five thomas versus have which doesn't mean i understand that you're referring to your honor burning versus your rose well there have been about six or seven cases that have been discussed on this issue in the briefs that one of something state something that is that you knew your position would be inconsistent i believe my can position is consistent with pruning decision it was also an interference case and there was a validity challenge and in that case the language sometimes gets a little and of evidence standard so if we look also at the supreme court case for microsoft that case does go into some party not the junior party the junior party was the attacking party so that would be i mean that is in some sense a mirror image of this sort of squarely point in what it actually in so our position is that the section twenty two specifically says that the patent shall be presumed valid it doesn't go into detail about what the standard of proof should be and that's asking for would be at odds with the application the p t o doesn't fly in all its contacts you know change that's and those cases are in our case and there's other statutory language to be dealt with in resolving that question in this case there is no additional statutory language there is no exception for an appearances they are a multi party dispute and they are considered to be in the trial vision historically of the packers so i don't see any any reason for saying that there is no presumption just because the trial proceeding is held before the patent office in the case of integrated matter that was reexamination and there is a decision there that the standard of proof of should be preponderance that case even doesn't say that there is no presumption in that case the challenger to the literally always the bird and that's true on all the cases cited can i ask you a different aspect of the argument and that is the  generally having correct you can't be harmless to rely on art it's not prior art that seems to be fundamental well unless there's other art that does the same thing and it's quite evident that the same conclusion from the drug even without considering our own we have we have to deal with the confines of decision other things whether there is other or out there  we can speculate in the decision opposing counsel in its papers has tried to say that there are well let me back up for a second in deciding those motions there were four references considered can over our prior art and those two other two are not prior are really and i can see those are the only four references so those should be the only references in play opposing counsel is trying to claims so with respect to those emotions the presumption argument would be pleasurable is one reason why there was a legal effect on those motions secondly the the decision is is rather weak in its obviousness analysis it's not really clear how they are combining the references with the cow so this is an obvious  analysis and should be some articulated reasoning that count is actually essentially the primary reference and these other four references or the secondary references two of which are not  the board never really gave us a good understanding of what they were doing third if we look at the two remaining references in our car they don't have the associated claim language which deals with ins expert even agreed that the sensor re examination unit considered the same arc and also three and beyond that there is even additional language in the claims that the board different conditions based on for temperature processors so there's a lot of defects with respect to those motions as to the reliance on the other reference and there is some sort of fan speed control but it's not of the type who cited in the claim it is not based on a power management policy and it is not based on as no notion of different conditions  different temperatures different good morning in may please the court mark fleming with my colleague brittany a madeon on behalf of the app elite jack had been and the real party in interest which is intel the board's decision is more than supported by substantial evidence and mr thomas has not shown any reason for reversal in the event the word agreed with our position that mr thomas was not entitled to the one thousand nine hundred four benefit day that he was originally granted the board took no position on it so we did not need to rely on those two references for the various claims first come up it's on page forty six of the appendix but if you look before that on page forty five there is a discussion of your mighty income nova first then after that the discussion of a ryan atkinson and then the concluding paragraph on forty seven starting at line sixteen based on these teachings we conclude it would have been obvious to a person having ordinary skill to configure a computer system to utilize a first power management policy siting then after that in line twenty one year m different power management policy and that and that and our military taking a picture to account of the count itself talks about having a temperature threshold and so when you combine the two power management policies of yaki and can over based on whether you're plugged into the wall or whether you're using a battery with the temperature thresholds that are used capped that is what the board relies and there's certainly no argument from the st thomas that would have been beyond the speedy abilities of one of ordinary skill in maximise performance speed and the board specifically states that that is the reason for combining these and let's remember it's and this goes to some extent to mr thomas first issue that the burden is on him as a party trying to change the outcome once the interference is declared and so there was incumbent upon him to show some evidence that a skilled artisan would not have been able to take these components in a very crowded field with a lot of prior art references the skilled artisan is not a high school student  someone with an advanced degree in electrical engineering and three to seven years of practical experience in this field and taking these very closely related elements and components all of which are serving the same goals which is to avoid overheating of computer components and put them together to produce the thomas claims improving the account to do so and again the board was well within its offer already and is when it's eminently supported by substantial evidence in reaching this conclusion based on ya mickey and can over and even if the court were to conclude that it should not have discussed a riot act it's in the context of this opinion i would submit it's it would be highly wasteful and the outcome would be for a change to send it back to the board and say all right please reassure your opinion just without mentioning those two references or well to go to the the burden point just for a flea i think that this court's precedent is clear and has stated many times that section two eighty two does not apply in this context it's not just running an ap acts as recently as last september in don't patent versus li which is seven ninety nine fed third thirteen seventy two this court was addressing the context of a reexamination that was being appealed to a district court under section one forty five and the court said that because the action before the district court did not involve a defense to a charge of infringement of an issue patent section two eighty two does not apply in this instance and that's perfectly consistent with i for i which itself was an infringement case section two eighty two itself appears in a chapter of the u s code intitled remedies for infringement of patent so we would respectfully submit that the operative governing provisions here are not section to eighty two but rather the board's rules they were properly promulgated under the boards has not challenged the authority to prosecute the rules for their application in this case so we would submit that the board quite properly placed the burden on mr thomas to show given that he conceded priority that all of his claims that any of his claims did not correspond to the count or that there was something error in the declaration of the interference and we believe the board correctly and it was well within itself the already based on substantial evidence to find that he failed to carry that burden unless the court has for the question when i was trying to say before applies in this case there's a little bit of misuse of language in our opinion that decision is merely saying that if a clear and convincing evidence standard of there are also motions filed in this case for no interference in fact which if you look at the underlying patent and applications and opposing counsel indicated is crowded apart areas it's really hard to imagine why this is even interference and the reason is because crafty opposing counsel wants to take advantage of the burden of proof being applied to me it was argued that the pippin claim was patent over the thomas claims and in resolving those motions the they can look to this for temperature sensing circuitry but our claim doesn't recycle temperature sensor circuitry so they also tell you that maybe we need to look to the specification for pointed out in our grief that that testimony is again associated with the discussion of the thomas specification which is not permitted