simply a matter of common sense to use the coloring process described in shaping one six six to make a translucent colored pencil ceramic work piece or other article the commonsense basis is  arrived at from the nature of the materials alumina serco nia acknowledged in the patent in suit and also acknowledged in the art of the whole to be the materials of choice for medical and dental applications in addition it was known to use metal ion colorants to color both dental articles such as dental procedure sees and non dental articles and finally there was an interim lated nurse between the references us five eight five and us five four eight that would have made it simply a matter of common sense for the skilled dental ceramicist to use the process in j p nine six six to make one of these articles j p nine six six teaches everything in claim one with the possible exception of unintended dental use now in serrano's open brief we say the border error in the way it construed the word workpiece and the government and three m correctly point out that that was not raised alone but what was raised below specifically we have knowledge corona acknowledges that the reference does not teach and explicitly dental use but it clearly teaches pre centering it teaches coloring with these metal ions and it teaches symmetry and to yield a final translucent color article the specific statements that were made to the to the board in response brief include things like j p one six six does not teach a dental work piece to emphasize the absence of a dental application but not to say no article that could have a specific dental application but that's not the same thing as saying it doesn't teach a work piece that can be worked on well i understand your argument it seems to me though the government and brief making that argument which i don't think you really responded adequately to in gray so i want to give you a chance to do that part of their argument is that the nine six that had this medal saw solution and and despite the differences the skilled person would have used those the right the teachings of those references to motivate or spur the use of j p nine six six to make a simple ceramic work piece or other article look at the references or look at look at the differences they point to they talk about the use of a metal oxides small well that's prepared starting with a solution of a metal oxide and then the critical addition is the column four lines nine through thirty this this passage talks about how it's preferred to if you want a colored body then you can pick the right metal oxide and in addition you can introduce a metal salt and they give the specific example of cobalt chloride but the passages say that's added to the soul and then the passages say this is a mixed phase system to me that implies that the metals salts are in solution  at all in fact the findings are really skimpy or in some cases compound so i may not be able to quibble with a particular finding because of the way it's presented in a compound way so if we look at specifically what the board found the board says about us five eight five that it does not apply to does not disclose applying metal salt solutions to a pre sintered simple ceramic work precentor dental ceramic workpiece well that's true because it says it doesn't disclose a plus b but it does disclose applying metal salt solutions a and admittedly it doesn't apply that to be the  ceramic workpiece and you can tell this by looking at the examples and the temperatures that are used us five or eight discloses a method of making a variety of dental articles and it starts with ceramic powder and if you want you can add oxide to impart natural to color to it is more of that with a binder then it dries it then it fires it but what is a fire at seven hundred seventy degrees one thousand degrees those are precentor in temperatures there not the elevated thirteen hundred fifteen hundred temperature ranges and we also know that it's pretty centering because it says these articles are porous well they're not going to be porous of the fully densified like final firing so the i can't say that this is a completely false statement because again finding sixteen finding of fact sixteen is compound it says a plus b but i can say these findings don't go far enough to support the conclusion board and they didn't group their claims they didn't provide headings now in my brief i have the wrong citations of thirty seven c f r the correct citation is forty one point six seven c one seven that regulation and related i'm basically says they've waived their chance to argue the claims individually so we're really talking about claim one claim one simply says a dental ceramic work piece while our position is it's a matter of common sense to get there everything is taught the exact same materials the the steps a precentor in coloring with a metal ion and centering and then any any intended purpose of a dental of claims for twenty one twenty five and thirty through thirty eight and these claims are dependent claims which would have to be rewritten in independent form assuming that this this court affirmed the board's decision and also point out that there were  other grounds of rejection that were not cross the feeling today so there was a rejection under one of the two and then a new round of rejection entered under one zero three eight so we're not we're not cross the feeling though is not because we agree but just as a practical matter we'd like to as judge moore and others were correctly pointing out earlier today this court requires a substantial deference rather to the substantial evidence found by the board and although in their briefings ron is raising a lot of new and quite frankly confusing arguments about how these playing crane terms should be construed it really weighs against the overwhelming evidence in the record to which this court has substantial deference and in addition it's contr that is claiming claim one but example which would have been very helpful safeword well not for examples of words of well look there's a reason for this think that just because you can put it out of us doesn't mean you can put it on teeth in somebody's mouth that would make sense to me right some solutions might be poisonous or something if there was something along those lines some reason to think it couldn't be applied to ts because the idea that there's a reference that says this can be applied to all kinds of porcelain workpieces whatever but somehow can't go on the same substance when put in the m the only conclusion i can come to the only reason it seems to me would be toxicity and my wrong but that's not mentioned any by anybody anywhere so why i mean if i can change a piece of dry wall in my health is a wall why can't  similarly paid a piece of dry wall that's just a cut out piece of dry wall what's the difference well well your piece of the cheese and what's the difference well iran or i think that there there has to be some some rational six six reference did not resign the preparation of dental ceramic workpieces or dental work so see object to apply it to why is there some reason to think you can't put this metal sal so the board correctly concluded that neither serrano nor the examiners stablished a prima fascia case of evidence and the board's factual findings regarding the prior art cited are supported by the substantial weight of the evidence so we were talking about the j c nine six six reference which relates to porcelain and decorative arts products and importantly that reference does not describe any dental products if you look ceramics and decker both dental ceramics and decorative ceramic so why is that in combination with butter most yes it's a combination of those sufficient that's the teaching of the applicability of methods of coloring correct your honor however there is no reason that a person skilled in the art for example would remove the metal oxides ball from the teachings in the five they find so there is no rational underpinning no motivation that would cause a person skilled in the art to somehow now exclude this metal oxides but the question is you start with the initial reference and that you have the exact process that we're talking about here in the playing except that deals with decorative ceramics and not dental surrounds correct the other prior art to say well we've got this prior art that's teaching the alternative use of a coloring solution saying the can use the same one for a dental ceramics as well as for decorative ceramics so that teaches you that's the motivation to say well hey if you can use this solution for both why can't you be using this solution for both decorative and dental surrounds yes your honor but the substrate that the a us five eighty five reference teaches are not priest centered precentor ceramics there they are glazed ceramics essentially and the solutions that the five eight five reference uses is a mixture of a metal oxides ball and there is nothing that would cause a person skilled in the art to suddenly remove the metal oxides ball and now apply the method of the j p nine six six reference to a dental article i mean as a practical matter your honor as as this  request for the interparty reexamine was brought by the rona they stated and i and i'm quoting from the appendix in forty eight the rona stated that the j p nine six six reference teaches the claimed subject matter in all respects except that it does not reside of preparation of the dental ceramic workpiece both thrown in the examiner everybody moves through the inner party really exam with that understanding and there were many many references in the record where everyone acknowledges and understood that there was no no teaching to a dental ceramic work based on the board found in their findings of fact that the u five four eight reference and the five eighty five reference relates a very different process sees the five four eight reference i'd like to point out the doping reference this is exactly describing the prior art that was used before the invention so it involves mixing a metal oxide powder to the ceramic powder before you make the priest entered article and with the five for a technology then to a lab would essentially have to stock fifty or sixty different colors in order to prepare dental articles to meet a variety of patient needs and so the five for eight reference is exactly what used to be done not using a metal ion complex or solution but actually using a powder and a metal oxide powder and mixing that with the ceramic powder to make the starting material and the us five hundred five to the extent that it uses a metal oxide all the substrate are not so precentor ceramic materials so there is no underpinning in this combination of references to cause a person a skilled in the art to do then apply the j p ninety six six process to the dental articles and i'd also point out that j p ninety six six describes colors like blue ivory red yellow and green and these colors are obviously not flexible to do dental article moore's question about why there is not more of a finding by the board about why j p ninety six six can't be used for dental articles as mr pointed out that was never a question  that was raised all of the parties agreed to take the nine six six did not teach application of that method to dental articles and so rona the examiner both look to these two secondary references to find some sort of that i think it i think it's a question of fact because it has to do with what the references actually teach i think what the board was really saying is going back to the examiners rejection was  one six six teaches everything except applying that method to a dental article so the as the board clarified they're not saying they were not been at g p one six six is non analogous art but serota ending jameer had looked to these other two references and relied on their alleged similarity to j p ninety six six method to say that a person of ordinary skill in the art would have been led to apply the g p nine six six method to advance article as it turns out the bo correctly found that the examiners findings with regard to those references were incorrect that those processes in us five eighty five and five four eight are really much more different from the j p ninety six six method then the examiner had found and i think that's where the in a related teachings come to think of the motivation to combine look these references are so different one would have been motivated to combine them is that how we should interpret it because it's a strange whether a person skilled never would have been motivated to apply the g p ninety six method to dental articles it's not as obvious a typical obviousness rejection which you're looking to these other references to take pieces from here and there it's not as if the first reference teaches everything except some widget and then you have to go to the other reference to get that widget the examiner and serrano relied on the other references as a way to show that a person of our nurse killing that would have extended j p nine six six nothing so why don't they interrelated enough i mean if we're evaluating sufficiently interrelated why aren't they interrelated enough when they're all dealing with color method of coloring ceramics one deals with metal oxides solution and the other deals with middle school i mean there's a similarity between what's going on here right in coloring ceramics and these call out at least five eighty five calls so that you can use the same coloring process or gentle and purposes i think at a very general level they do teach coloring simple ceramics but the board the board found that essentially because just because the five eighty five us five eighty five teaches that there's a method that can be used to color both dental and non dental ceramics that doesn't mean that every method that can be used to color a decorator ceramics could also be used succeed but the motivation to at least try and between applying the coloring matter to the surface and using true sintered ceramic material to which it was absorbed and then really the basic finding as to why the us five eighty five is so different from j p ninety six x much more different from what the examiner thought  can simply say that i don't see that in the case law the in a related less prong is found in k s r graham of course gives us the test for the obviousness determination but it's admittedly somewhat metaphysical because it just tells you to look at the claims look at the prior ar look at the differences and consider the skill one thing that hasn't been addressed here today is the level of skill in the art and i submit that the references themselves tell you that it's pretty high and that the skill to clear interest you below in terms of what level of  your honor it did not come up at all but i think that's common i think the in prosecution whether it's reexamination or regular prosecution it's kind of taken for granted that the references are either relevant or not relevant  person has a high level of skill as evidenced by the numerous prior art references and the degree of technology that's involved what's interesting though is that in the supplemental joint appendix that i received leave the file file in the preliminary amendment filed by three m they submit an exhibit and that exhibit comes from a general ceramics handbook and it describes various process and steps  class yes it does not mention teeth but it does mental mention of technical ceramics and includes as examples things that it could be artwork but it could also be more industrial utilitarian objects as opposed to plates or or something my point is simply that that three m felt it was necessary to submit this general represents and it shows you that the general technology of ceramics was was known and really that's what's being drawn on my point is simply that dental ceramicist looked at the same ceramic technology as do artists i mean this is not the record but the first crowns for some crowns had to come from somewhere where they were made by porcelain manufacturers another point be grounded on any of several different things one can be commonsense one can be interrelatedness another could be the simple creativity and skill of the of the skilled person himself a couple of other points with respect to is that reference teaches making a pre centered ceramic and impregnating a porous ceramic object with a resin which can include a colorant from from that since i think it makes the reference highly relevant to the claim that one other point i'd like to raise and that is your honor asked the question about doesn't j p nine six six disclose all the methods steps and i think three m in the government can see that except for the dental specific solutions of j p ninety six six when in part the same chemical or physical effects on dental products of the type you're claim what physical and chemical effects could they be talking about the materials are exactly the same as defined in the the reference and the patent materials are identical the coloring processes are dentical so it's a bit above a strange statement from the board because there are no physical or chemical differences certainly not in the reference there's there's nothing in the in the six point four lb that tells you some other property is required to make these things suitable for dental applications ok