of real world evidence that is important to this appeal for a couple of reasons first of all much of it takes the form of what is fair to say are nontraditional forms of secondary consideration considerations not intended to be exclusive in that case our case the supreme court told us it's a very expensive and flexible approach we know from the legal form a case for example lapse of time coupled with  recognition of the problem of the art those are what i would say and an example of a nontraditional form here we have based on the record evidence a industry standard based on  laps of time were enough then what graham versus john deere have articulated long felt need and all these other things i mean kind of the talk about timing graham versus john deere so i'm just i'm just not sure the passage of time standing alone gets you anything at of the problem in the art what's the logic just that simple ordinary watches explaining why i understand the logic why lapse of time with recognition of the problem tends to suggest that people  going for several minutes and it just occurred to me that the clock could never started so that when we put the clock at twelve minutes i think that to be about right i think you raise a secondary considerations argument to the board we  framed it and if so where would that be in the record if you look your honor it was raised if you look at the just twenty three the thirty one of our reply brief we spell out where it one fifty six talks about how his inventions departed from his previous work  what document is this one forty three one forty four one fifty six your argument section begin at eight hundred ninety seven with the argument section starts later also i'm just trying to figure out to what extent at the board was the board on notice that it was obligated to evaluate and consider a secondary consideration as argument in your briefing well the consistent throughout your honor band and move it to the junks the mr kies more than anyone else would have had the motivation would have done that much earlier than it did that's another consideration the fair's of time that ultimate legal question of o something either in the patent claims or in the board's construction of the patent claims that tells us what we're dealing with here is to use your language moving and it's to be the elbow or to the claims cover keeping the outside bands and does the patent disclose the second body just curious why is there a second illustration where there's a gasket right there at the juncture and there's a second band further up the lateral pipeline at just described in the written description and so i think the tissue of the board read too much into the fact that there happens to be another veil and there it was so the inventor went out of his way to create another illustration and another figure figure six and is there any other distinction in figure six from the other figures that aside from that band i think of six i believe your honor it shows the lateral line or as it is then ed and the reason your honor is first we have to start have a prior art reference keast six six three did just that with different material but nevertheless did a direct starting point is case one one eight in case one one eight already took care of the damaged pipe juncture with the cure in place to you later and then what you're left with is n weak junction between the lateral and the main plate and the border only use the five ninety seven to the point out that this was a known weak position and they were going to put a gasket there finally as expert testimony indicates that it's also in the declaration of mr fletcher at eighteen and all parties indicate that you would put a camera in this to inspect the place before you would do the repair and you expect the pipe even a door a year later to see if the repair was holding and the parties indicated that you would be able to tell if there was a leak from a camera so you would expect that this was known the only evidence that they junctions they fixed up hundred fifty of them and it was it cut down through the amount of leakage by no more than sixty percent so you really couldn't tell how much a leakage was going on so there's really no evidence in the record that there was there  moving one of the bands and one more in a from somewhere away from the juncture director or is it keeping those bands exactly where they are and then going ahead and there was a t like that without those bands was known to leak i would think that you would put those bins in and then you'd put that you know the additional protection up there keep in mind that the whole purpose for this c i p p the curat place play it basically a pipe within a pipe is so you don't have to dig it up you want to make sure that you're not going to have to dig it up because he's going to be six you know to fifteen feet underground and that's going to be expensive so if it's you know very cost effective to just put a little bit of paced around where the the juncture is going to be and if this is something that was well known in the field oh you know porting to the particularly at appendix two zero seven six and two zero seven seven paragraph fifty one i guess in particular which seems to make a point i'm not sure l m k has really stressed  though mentioned in passing that it would be surprising to think that the pe store at the band would stick to the defective surface that's why you put it on the uninterrupted or on the disrupted or whatever his phrase was surface so you wouldn't actually expect when you start with is it the one point eight zero one one eight with the bands on nice clean surfaces that are going to make a good seal that you would think oh go put it on really apply cheese surface where it's just not going to hear very well which it would be different if you have grout that's going to infuse and fill it  if your honor if you had a situation where it was pulled in place you may well be able to make that argument but when it's inverted you can put it right there where it's going to flip out now the important point to keep in mind is that one of the reasons they may not have made that argument is because they have a patent on file in the patent trademark office where they do exactly that now that's cited i believe in our football footno point eight they've you know since indicated in that impact that this particular material could be you know a sponge with with liquid grout put into it just like in the fi now this was not you know part of the case we found if we put it in the brief there's no indication that they would be you know brought that tension to the examiner that this was something that you know the board had already made a ruling on but there's a good reason that this wouldn't be an issue now if it was true that you couldn't pull it into place than that because then that particular plant must not be enabled but no matter what one of skill in the are trying to do a belt and suspenders a wrote we would put some of this material there even if you were going to pull it in place and the reason is you don't want to have to dig this thing up which get it done so you pull it in place and if some of it gets smeared off at least there'll be some keep in mind that it's not going i'm sorry it's not going to pull all of it off you've got this thing laying there for the polling place you're pulling it along well let me let me just focus on exit at least what's in my mind i read that paragraph fifty one to say and maybe i'm saying it now more strongly than it says you wouldn't put the sticky part of a band aid on the sore it won't stick you put the sticky part on the good skin so why would you put the sticky part on the splotchy t the idea was not that it wouldn't stick but that it would be scraped off during the pull now if you think about it too and you're pulling this thing through you're going to pull it through and gravity is going to take care of keeping it down then when you you know inflate it or when you pull it up you're going to have this thing that is not going to get scraped off that was not part of the briefing and part of that was because during the  deposition we went into that if you went into the fact that well if it was going to be scraped off why did they have this particular book you know why is there a particular patent that you know has this so i don't think that if you know we would maybe the little corroded area but then you also have sealant area on both sides of that crack to ensure that the water that it's staying at here too juncture so that you can make sure water is not coming out through the sides of that crack that's absolutely correct your honor because when you have this paste put on you pull it into place and then you inflate it you're basically squeezing the to take care of any non uniformity so that even if it was only a partial or even if some got straight off you would still be doing something of value here you'd still be getting it  a better approach so that you wouldn't have to take it up the same as mr hardy began his argument with objective evidence suggesting that the board erred in failing to consider the objective evidence that they introduced can you respond to that you are not the objective evidence that they suggest is that there was a long felony but yet they say also suggests that nobody knew about this well for years is what the said well you think i'm sorry there were four years separation between the filing of the one eighteen and filing of the pattern since two four years now long time we don't know conception really occurred in some cases when when you're given a you know an application it might take a little while to get filed so the first is that it's four years or less  years the board said i'm sorry the court said this could be one consideration and say that was that you know the whole consideration and this was rejected the idea of the the distance and time later on in the nobody knew about this but we also dispute the fact that for years it is that long because we believe people were doing it we believe that this was something that was you know obvious and that you would naturally put this material on what people were doing in the field is not part of a proceeding before the patent trademark office but it's certainly true that forty years is not considered it would be a new law that assumed the four years was you know the creation of a new standard for a dish of angst he didn't mention it today's argument but what about the award to chicago innovation award i don't i'm sure i mean the name ron but there wasn't the one that the so that those claims what's there any fact finding or knowledge by the board or recognition that this doesn't constitute evidence of objective in the ship non obviousness because i the the parties that an industry award had been given and then once it was pointed out that it wasn't in this reward it was something that was you know done you know by a group of people just talking about this particular product in the location that it was active in other words it wasn't a bunch of people saying well we really have a lot of  interesting things and one of the great new things that we have this is this particular case there was no evidence of how much money was being spent there was no evidence that would really be required to show that this was  some sort of a commercial success without that evidence why does the board have to have to proceed when we repeatedly tell that the board cannot ignore objective condition and here they did speak to it so is that at least or possibly a failure to articulate findings of fact to conclusions of law on their part and your honor i would say that it's a failure on the side of the patent owner and where it's not really an industry award it's if we don't i don't believe that it would be good policy to have the board have to guess and read between the lines if an applicant wants to give a reason they is very good ok thank you damaged area figures five and six of the one when they show in teach that you put those on the outside where they can actually create a seal against the holes pipe and connect it so there will be no motivation to now take those discrete hydrophilic bay ends and move them to the pipe joint where the damage actually is occurring well i think in one of the board decisions the board said among other things there are no guarantees in life especially when it comes to repairing sewer pipes also and you know why not why not go ahead and give a little help to the juncture where there's where there's a problem with the cracks are well your honor there are there are no guarantees in life but if there was a belt and suspenders approach here it would have ben to go ahead take the bands of the one one eight put in a chemical rubber if that's what