one of the fundamental battlegrounds is the reason to combine and vote the p tab and the examiner gave us one word on motivation to combine intuitive that is procedurally wrong never done the first is with regard to interface reconfiguration it was interface recast a single click before you get into it so your argument is that the word intuitive doesn't give us enough information there's no because and i think you know the ground like even yes our when the supreme court said common sense it was common sense because it would be more efficient to do this common sense because people in the are trying to reduce the time it took to do this common sense because and here we have no because we just have it's intuitive which means instinctive i don't know that doesn't differ in my mind from it would be obvious which clearly would not be enough this is me being helpful so anyway this is the part i'm not  us telegraphed the whole thing for you so my question is if the p t o didn't do enough and you're about to tell me why it wouldn't be into it that seems like a fact finding that i don't really feel comfortable making the p t o give us no reason why it would be intuitive and if you're going to give me all the reasons it wouldn't be intuitive are you really suggesting that i can make that decision in the first instance so you are actually going to treat that as a as the home poll question so the fact finding in this case was intuitive the p t o didn't offer any facts and there are no facts on this record the beyond the well that's i can say that fact finding is not been supported by substantial evidence and regs exactly what i can't go necessarily the other way and say one couldn't conclude that it was intuitive for example we do want me to take you want to take me back ten years and have me start a setting where i think it would be intuitive for an on it doesn't feel like something i can  the examiner did not produce that evidence all we have or the two prior art references mixing to gether shoe embodiments in one patent and then another patent so there's not any of this court reviews records there is no substantial evidence this court can look at the prior references and see that they contain no teaching there's no reason one would have to in those prior offenses look at the prior references and decide the question is does the court send it back or does the court just say what we've got a record here on this record there is no substantial evidence no that requires me to go line by line to and to determine whether there is substantial evidence in the record for a fact finding that combine and again this is going back ten years i was saying before that there were two things that the prior art was teaching that apple did differently the first was if you were going to let the user  moved everything on their interface around you hid that ability behind clunky menus and or war visible buttons to make sure that you didn't inadvertently in perhaps catastrophic only completely with your child in the other hand and you can really accidentally completely refigure so apple figured out a way to say you know what we are ok i'm not putting everything behind clunky menus or physical but can do is go to your laptop hit a button and that will change it to active mode all of a sudden that this is no longer a mouse every time you touch that sustain but any talks i  paragraph sixty one as once it is activated then the icons become functional and can be dragged or moved around the screen how is that different from the reconfiguration element i don't i'm not getting why you it references sixty one expressively and sixty one says to activate you can move the i know so so i would say no to both first seventy one does not allow you to move anything around paragraph fifty eight is what tells you how to move things around paragraph sixty one doesn't all out the a and interface configuration a mode where the user gets to move things around paragraph sixty one is a toggle switch between two s give this fact i think substantial evidence deference and so as persuasive as as you may be about what you think it does or doesn't disclose let's look at the actual language and then let's keep in mind the deferential standard of review for this  paragraph seventy one has a sustained touch which triggers activation function of the i thought it says it right there in paragraph seventy one then you can look at paragraph sixty one which is what the  also cited and it says in the end there is activated in an activated states existing icons could also be removed or rearranged yes so in this is during the activated state note never says during the is entitled to substantial evidence difference so you got to convince me why not only as my reading wrong but their reading is not supported by any of it s so some people in mind the sixty one illustrates the same set of icons in the activ so here's what sixty one explains it all and first looking at the language however activation of the touchscreen is or could also create additional icons so you're touching the button to activate example it gives is a soccer control panel which says possibly using a software control panel but it doesn't teach it it doesn't teach anything about it doesn't it doesn't teach any so the answer to your honest question is first the examiner didn't rely on it the p tab didn't rely on it fifty eight if anything teaches a way it says if a person of skill in the art is reading this patent the person of skill in the arts is what do i do to reconfigure well fifty eight tells me what i do to reconfigure if i want this state to have different icons in different places i go to a scholarly doesn't have the idea that is correct then the the author of the inventor has no idea and doesn't reconfiguration mode so you need a long time to get into a mode and what do you do in that mode next paragraph when you are in that mode you engage in a second movement that is the movement that moves things around extent they move things around the way you enter it is not assisting touch it you hides it away on a physical key but if there are no further questions i'll reserve whatever time remain can hold it there and help things starts jiggling that's correct and so make sure we're all that's correct but the claim is at issue in this case do not have that limitation instead these kinds are much broader they claim known finger gestures in the prior criticizes the articulation of the obviousness rejection by the examiner and affirmed by the board in his argument before this court but wasn't that texans to the universal question and answer questions of law into the editing mode in which they could rearrange the icons corresponding to the applications on the interface in other words what the examiner found was the very nature of the finger just placing your finger over the icon or close to the icon to initiate the holding it and holding it down as taught in gillespie combined with the same finger gesture caught in hawkins pulling your finger on an icon and then dragging it across the screen to to reconfigure the user interface it would be simple intuitive to just marry those two finger just under it feels like an awful lot of hindsight why would it be intuitive to  really it's not like we look at your smartphone references side by side these references are different from each other so why is it that it would be so intuitive to take this element of this one in this elegant it really feels like you said it would be obvious to do it that's why it's obvious because it would be obvious that's what intuitive means to me i don't know what other definitions i don't know the because i need to because well i believe that the examiner and the board found that hawkins teaches all of the that's that and that's where he discusses gillespie's teaching detecting a first user touch on a touch sensitive display for example a touch screen as discussed in paragraph thirty six the first user touch of a duration and at a location proximate to a first i icons and then more importantly jumping down to the detecting a second user touch on the touch sensitive display the second user touch of a second duration longer than a first rate variation and that a lot location proximate to a second icon of the plurality of icons for example holding the finger steady over an icon for a given duration as discussed in paragraph seventy one and then interpret ing the tech to second longer user types as an input initiating interface  he explained he could he put his factual findings in context of the arguments provided by apple and it's opened before the board so while also the apple challenge the examiners findings that there was a second  stay in touch and that second sustained touch would it then initiate and a user interface reconfiguration mode and the examiner pointing back to examiner pointing back to his his findings of paragraph what he teaches in paragraph seventy one that's correct ok so one question you've said a few minutes ago before you started with in response to judge wallace question you asked remind you said unless he demonstrates  well known in the art have a sustaining touch where it's glocks he demonstrates i don't think i'm paraphrasing that he said well known in the art i mean paragraph seventy one discloses it and so certainly it is in this piece of prior if you see that there's a difference when i'm trying to think of a motivation to combine plucking one element from one you know reference in a shoe box in the basement of a chemistry library in germany and taking one of its elements how does it demonstrate  well known effect could serve for touchscreen activation such as finger motion gestures now the following paragraphs i mean one is then a list of known finger gestures ok one of which is holding a finger st think that as a stated before the fact that the examiner found the same finger gesture which places the finger in the same location  criterion of obviousness that shouldn't do it or to do the examination in retrospect or no i mean it i don't believe that that has correctly i think the examiner did make clear that he was talking about one of ordinary pointed out in the red roof there are statements in the prior art for example that designers of these interfaces should of went overly complex u motivation the motivation of the mind provided by the examiner in the court in this case so i do believe that there are things in the record that do support the examiner and the board's finding of a motivation to combine and that it would have been evasion to combine paragraphs seventy three in gillespie says there are any number of ways to get into an activation state please whatever you do don't combine them because if it confuse the users so don't have this kind of activation this way and another kind of activation on the screen it's it sounds like to be in one way it most certainly doesn't say don't use clunky different special function which should be used with caution because of the likelihood of causing q vs a dozen they don't use and if you use them with caution it says there's a big difference between telling someone not to do something and telling someone be careful when you do it my children would come here and make it very clear to you that they understand when mom says they can't do something as opposed to when they need to be careful and they understood your honor my point is it's really doesn't teach you that you should combine it says be careful not to combine or be careful when you understand yes but my point is it's not teaching you that you should combine and that's the only thing that the p t o has pointed to at fourteen thousand words to supplement what the examiner and then the ph have did and it still gestures and i do recall uk a us are saying about the predictable use of a well known functions not and i have this quote readily at my mind because it's not order to activate initiate reconfiguration mode no one was doing that so simply saying come on everyone knew that there's a difference between a cap and a touch doesn't mean that that there was a teaching that on a very accident prone device you're going to use the same gesture that is the most common gesture used to launch just a little bit longer in order to enter this activation into this pointed to an additional motivation to combine and i just underscore this is a real problem we are seeing more and more of these opinions coming out of the peach have in the last couple of years it's just not fair it's not fair to applicants just finish with one sentence if this these opinions are upheld this is what you will see from repeat even in original prosecutions and this court will be in the position of having to