we find the primary error which infected the entire the primary legal error which infected the entirety of the board's opinion obviousness was their failure to recognize that motivation to combine is petitioner's burden and must take claimed yet discounted patent odors responses to the motivation to combine by consistently finding that those responses were not found and clean up its and so we think that it's clear error under this court intelligent biosystems case where it is correct that for a teaching away and reasonable expectation of success analysis the board should have looked to the claims to determine whether teaching away was to going moment were to know whether an expectation of success went to a claim element but it was legally improper for the court to ignore the balance of the teaching of the reference that was in fact an intelligent biosystems case this fort this court found that type of that the performance of and the cmos image sensor would be improved by application of missouri's textor there was a couple sentences in the petition that was the entire a rticulation of the motivation to combine but importantly the motivation to combine argument in the petition was directed to the entirety of the cmos image sensor there was no argument in the petition there was no articulation  what we relied on at the institution stage they're allowed to look at the entirety of the record that they are allowed to look at the entire didn't record what they're not allowed to do is change the basis for the petition moving from the entirety of the cmos image sensor to a new position where you're looking at only a single pixel of the image sensor and then discount the problems with the motivation to combine that or not claimed elements but that are part of the references of the whole so what they effectively did was use the  interfere with the motivation to combine would be a teacher in a way there's plenty of evidence on the record that crosstalk wouldn't prevent the combination what did they do wrong they made that finding your honor by saying moreover that's correct but there's no independent finding that there is not optical crosstalk rather what the board depends on is there an optical cross  do they specifically find that there was a lack of optical crosstalk or that motivation of mine was sufficient without optical graphs and i'd say that the error begins page thirty seven of the basing their opinion on a different reading of the reference which they raise on page thirty seven and explode forty seven which says another basis set forth by petitioner however is specific to improving sensitivity enough in the petition to really justify the institution but we can't review that there's i can only review whether or not there is enough in the record post institution to justify the final battle decision right and respect we under the h twelve this court has found previously an agency may not change theories in midstream without giving respondents reasonable notice of the change and the opportunity opportunities nutrition arguers under the new theory what's the change and clear change in lots of court references each solving that problem but not not the proposed combination which i think is part of the problem as art and the patent owner is testament responding to initially presented or you made a very specific crossed argument and your patent numbers that's right yes are you saying they're not allowed to respond to that they can respond to that and they can't respond to that by shifting their initial position or their initial theory well but  always what that that these two pieces of prior art would be enough when put together right but then they did not discuss at all the issue of crosstalk in their petition and they didn't discuss any of th out of the blue what we're talking about here is a situation in which you present your case in a position that these two pieces of prior art would be enough to render the claim obvious and are you saying that in your petition you need to intice a paper every possible path and i want to respond i'm saying in your petition you need to set out a claim construction and a combination that can then be changed for the first time in reply so you can change the interpretation of the claim that you present in the petition and you can change combination and there's no dispute contains all the elements of the claims there are other claims of the five and one that the only attack what they repeatedly refer to as the motivation to combine the two references and what we really argued that the supreme court requires only an apparent reason to combine the references and supported by some articulated reason with some rational underpinning that was provided and that was provided from the very beginning and in that the enough reason that's really their argument we didn't change our position during this entire p t trial at one point we had to address the issues raised by their expert they basically said your reason is not good enough and are experts going to talk about cross talk the board did consider that the board considered substantial evidence of what their expert race what their expert did was essentially make drawings that weren't supported by  time their single pixel theory was raised out of the crosstalk raised by their their expert and in his expert declaration our expert addressed it in response i think we're allowed to address what the response it was one of many issues we didn't walk away from it we still said you still have an improvement in absorption by texturing and we refused to cross off and the board addressed this issue of your refutation of the acknowledge that the reference is multiple pixels it's for multiple colors right reg green bloke there's color filters lenses that focus the light and so we knowledge that's in the reference we're saying you would still want to improve so that you can increase absorption as is well known in the art as of two thousand and nine that's set forth from the very beginning they said that we were raised that that was well known later we did not i was raised in the petition where did you raise in the petition that it was well know we met or heard or we had an expert say here's a reason to come by i base it upon an express teaching in the in the ms word reference so you take the missouri reference expressly teaching it increased the functionality through absorption and you combine it with a vote and then they come back and say that's not a good reason they don't dispute that ms are teachers and they say that's not a good enough reason because of cross off and our expert comes back and says wait a minute when you say crossed off and they show a diagram of crossed off if you look at their experts diagram he eliminates parts of muchi that have a late blocking aluminum be one pixel although i argue that they've essentially said that that's what it is in the past but that's that's not necessary because we're saying you can improve absorption in multiple pixels and then zebra for example is an  fifty two they also say they fared accurate accurately represent the broader teachings of mozart so again the pete i have considered the evidence i just weighed in favor of the petitioner and they also said that the their arguments are contradicted by the evidence of record demonstrating the trap trapping effects that result from the texture so we had pointed to the womb reference and in the womb reference which you know diagram  put in their background and in her sketch she shows that the late bounces back and forth between that the different textured surfaces and that that is what will cause like to get trapped actually in they never raised it in their opportunity to raise it in the observations on cross examination but they made this drawing in the slot it's councils drawing doesn't come from their expert doesn't come from any of the references so that's what they cmos image sensor is accurate or a reference and this is our p o v for page fifty four we make this point that the board they gave two reasons to for the motivation to combine those who are in a one reason they said see above the