quote petitioner's reason is supported by the testimony of dr pierce we've asked to terminate that petitioner provides a sufficient rationale to combine the reference and the problem is dr pierce had no experience whatsoever either actual or perhaps most importantly did not know what the preferences of physicians for at the relevant time in one thousand nine hundred ninety four what would and would not motivate them to look for a new or different procedure then the board determine the level of ordinary skill in the art on the basis of the title of pen the specifications in other words that this deal with abolition of body cavities as opposed to just a uterine it did your honor and that was plain error for multiple reasons first of all if we start with the statute section one hundred three says that the claim is obvious to what if it's obvious to one of skill in the art quote to which the claimed invention pertains so we have some broader references in the specification t and then he went on in defining what a person of skill in the art is after giving that the first part of the definition the one the people have adopted to say quote a poster would have been familiar with known techniques for uterine surgery he wasn't so familiar he himself said minerva itself said this is part of the definition of a person still and the people have simply disregarded it so if you start from the perspective the claims obviously and read like this back but you start from the claims which are about uterine surgery and then go to a person that has no experience and uterine surgery of any kind this was in a situation where he was lacking experience and then when read up on it he didn't know and his deposition he said i didn't do anything to and the reason i said essentially every instance not everyone is this gets even more complicated with regard to claim seven claims seven says not only do you do this procedure but first before you start the ablation first you test for acknowledged and this isn't a thirty three that for claim seven purposes you're not substituting a part of one reference into another you're actually combining them make basically turning one procedure and two they use the word subset it's not a substitution but a supplement patients the pita have said well we're ok with that we're ok lengthening the procedure not withstanding everything dr martin dr evans has said about the risks that presents to patients because quote dr murali gladly would have extended the duration of the procedure if the ultimate result was a safer treatment well what procedure are they even talking about doctor morale billy didn't review the procedures the masterson of the isaacson procedure that were before the p instead his own his declaration only talks about something called from a choice which was not a reference before the p t and was very different than the procedures before the pizza because it involved fluid in a balloon and if you contain fluid in the balloon by definition you're not worried about the fluid in the other procedures that were put directly into the uterus leaking through ruptures or otherwise or gratian to the point talks about so he says i know about this the procedure called for the choice and i don't worry about one thing thurman choice there's no risk here and the peter out for some reason then applies that to masterson and isaacson the two lead references and says well there's no real problem with lengthening the procedure but those are different procedures so at the end of the day we have dr pierce who has no experience and don't arts opining about the uterus references and on the other hand we have dr murali who didn't review the references does have experience they aren't but doesn't review the references and the p tab combines them put simply there was no expert with knowledge of the problem place that said i have looked at matheson and isaacson and i can tell you the piece a person of skill in art would have been motivated to follow the next issue that i'd like to raise is about the substitute claims and focusing for example on eight hundred twenty two that are the substitute claims essentially took what were the original claims and added mechanical features disclosed in specifications or talked about specific features of the ablation device motivation to combine literally none there is no discussion of why one would have taken true coffee a totally different approach to ablation and combined it with either masterson or isaacson when master fine i mean i think they're kinetic concepts cases particularly trenchant here when it's said because each device independently operates effectively a person having ordnance ordinary skill in the art that was merely seeking to create a better device to bring forth from would have no reason to combine the features of both devices into a single device here we have masterson that works fine on its own doesn't indicate that it has any problems similar issacson are very similar devices then we have chicago which is off here also works well on its own why would these three things be combined in order to suggest why free perfectly fine working devices would be combined you would expect one of skill in the art to say there was something missing there was some motivation but that is entirely absent from the final written decision there is zero discussion of it with that unless there are questions i'd like to turn to the claim construction issue at play here these two the claim construction language is monitoring for the presence of a perforation with a pressure s that's what the the the procedure must do it must monitor for the presence of a perforation with a pressure sensor it kind of course do other things as well no one is suggesting we're not suggesting that if they if a prior art reference  that but also monitored for something else with a pressure sensor that that would make it not invalidate but you must at least monitor for the presence of a perforation of the uterus with a pressure sensor for this to be relevant for some reason the have disagreed they said the that and this is a twenty seven of the opinion pending twenty seven that it may also be may be caused by perforation but may alternatively be caused by malfunctions so what they're saying is and this is kind of hard to follow because it's a claim construction decision but it's not actually put in the claim construction section of the final written decision they actually move it into the body and then say that our arguments are rejected because broadest reasonable interpretation is much broader than what we suggest but we have the prior art references that masterson and isaacson that monitor for things other then perforations with the pressure detector with a pressure sensor particularly mechanical failure that's really what we're talking about here for example king tubes as one of the is one of the specific examples given the pressure sensors there monitor for things other then perforation and the panel says well that's of the piece have said that's good enough because the claim construction should be broader but how can it be the case that language that calls for monitoring for the presence of a perforation is satisfied if you're not monitoring for the presence of a perforation and if you look at a two three modify monitor for kingston hoses when that's not what the claim is talking about that's not what the claim language is referencing i want to conclude but i have just a minute or so before my rebuttal by talking about what one seven the motivation for combining these references to one in scale in the union arts at seven seventy three or eight ten etc he actually uses phrases like one was skipped one who knew what was going on in the uterine field would understand that when he was not someone that would understand that last point i would make is just about masterson and isaacson specifically on the merits both of these devices maintain constant pressure that's the whole idea in that keeps pressure so that the the fluid pressure in the uterus is constant that's the whole purpose of the device masterson tells you it cannot be used to detect for perforations it cannot be used for this purpose isaacson doesn't explicitly say that but it's the same district court had made some findings and an argument that confirming the board's decision here would somehow be in contrast or contradict that that's not true priority  been litigated at district court if you have is the only form in which that issue is litigated so there's there's no instance of inconsistency here and just wanted to clarify that point the record beyond that with the argument we heard from my friend from whole logic i would say as a general matter much of the arguments seem to reflect arguments that don't match what happened in this case at all and there are there are a number of instances that are are just you know testimony for each of the disputed issues the orders rely and relying on numerous pieces of evidence including the prior references themselves content of those references as well as testimony from whole logic witnesses as well you won't find a single instance of a disputed issue here where the board solely relied on dr pierce's testimony it's also incorrect to characterize dr pierce as having no experience in ablation and i would direct the court's attention to page fifty fifty one hundred fifty one of the decision where the board made factual findings to this effect noting in the context of denying the logics motion to exclude dr pierce's testimony that growing no the finding was that he does that he does that he does have knowledge of end of which that's like to shoot a fifty one your honor and again this was in the context of denying their motion to  initially that has not been brought up on appeal here i'll give you a moment to find that but at the end of the day the other thing to point out is that there is not a single instance in this continue and this of course makes sense as dr pierce is a professor of bioengineering he's a renowned expert in electro surgical devices he literally wrote the textbook on electro surgical devices which covers uterine ablation technologies and he described during cross examination some experience actually working and consulting on your ablation projects so this is a unfounded argument but at the end of the day what we ask is is the substance of a witness's testimony credible and corroborated by the evidence in every single instance it is and there has not been a single instance identified or anything dr pierce had to say lacked credibility because there is no such instance this is a  sideshow issue now the other thing i would say is one of the problems here with this appeal is that whole logic largely avoided the board's factual findings on  key couper issues that were litigated from the patent office the first is on the content of the primary prior references of masters and on and isaacson the and that is particularly on the issue of whether those references disclose monitoring for a perforation using as a pressure sensor the alleged invention in this case and then for both of those references the board made e tail full details findings of fact corroborate with various pieces of evidence both of those references it in fact disclose that aspect again the invention that that being claimed there is no there is no showing that any of that evidence fails to qualify a substantial evidence and again there are multiple sources of evidence there to support those key factual findings the second core argument moves to the front door to to be directed towards detecting decreases in grounds of challenge one based on the masterson referenced one based on the act isaacson reference and in the final written decision the board goes through and explains and makes detailed findings of fact precisely why the isaacso can be measured using pressure and the board goes through and makes a very detailed analysis of the content of the isaacs and reference explains how there are x how that reference is expressly stating that they're monitoring perforations they're doing it based on a calculation of flow differential and the board explains that there flow measurements are made using pressure sensors and then the board concludes therefore isaacs and she chooses that monitoring for uterine perforation using pressure sensors were used for boards suggestion of combining these reference it comes in two places so again let's look at what what's being offered  being combined so to say this is we're looking at the combined teachings of references so for in each instance the boards making factual findings that the primary references themselves teach this limitation the secondary references are confirming that interpretation that's true in the context of the masterson reference or masterson specifically mentions using pressure sensors to detect an under pressure situation in the uterus and then alarming the the question is what is would an under pressure situation including urine perforation and the board interpreted that reference and said yes in fact it would and they have multiple reasons for coming to that conclusion one is looking at the secondary rest reference a valid do which was the combination here where that where the bell duke references specifically measuring for perforations using a pressure sensor so as looking at the combined teachings there they went through dr pierce's testimony confirmed a logics expert dr martens testimony to confirm that such an under pressure situation would be a uterine perforation there are multiple pieces of evidence to support this again to keep key factual findings where that you won't and the board makes detail factual findings why that reference is monitoring for procreation using a pressure sensor and then looking at various pieces of evidence to confirm that as far as you know the  safety rationale which the logic focuses on in terms of rat a lacking rationale there is no there's no mystery there as to what argument the board was credit and why they were crediting at this can be found of both a twenty five and a twenty seven of the of the record pages twenty five through twenty seven of the fords final in decision for the board express  states that page twenty seven exactly why they are crediting that argument they say minerva's argument is specifically corroborated by the prior references and they point to multiple prior prior  references including the masterson reference which specifically states that they're using a under pressure or warmth detection monitoring for the purposes of and i'm quoting increased safety to the patient so the board's looking at an argument that's presented saying it's credited and then saying exactly why it's credit it's an argument that's expressly corroborated with the prior references that's as good as the rationale gets and that's explained it's certainly review no nobody proposed the whole logic never proposed some construction of of that with that which would have excluded the prior art what they were arguing their trade essentially trying to read this really came back to the argument about the content of the prior references a logic was trying to advance an argument that the primary references must be limited only to certain types of causes of under pressure situation and the board went through and evaluate the evidence on that issue and said that just doesn't make sense that the term the language of the claim is modern for a perforation using a pressure sensor a language is not monitoring only for a perforation using a pressure sensor and that was important in view of how this is described in not only the one hundred three patent but in all of the prior references perforation detection based on pressure is described as measuring with a pressure perforation that is exactly how it's described in a one hundred three patent were repeatedly were references and under pressure situation as a possible perforations and lived in the case that the physician should be alerted to investigate situation that's how it's described in in the other prior references and that is how it's described in the thermo choice product literature admitted prior art system that existed at the time that the system is describe describes the process as running a pressure check if a pressure problem is is detected the manual instructs the user to inspect the equipment rule out an equipment malfunction if they can't rule out an equipment malfunction inspect the uterine cavity for ration so that the board with saying is what you're arguing in trying to argue that the limitation into the prior art you seem to be ignoring what your claim board explained in its final and exactly why it had rejected this argument there is no ambiguity here the board made specific findings of fact of multiple evidence and found quote patent owner misrepresents the conventional wisdom you can see that the quote i mentioned by the way is a thirty one of the record and there are detail findings and explanations by the board on that point questions thank you thank you thank you i'd like to begin with your question about whether dr pierce had any experience this is the quote this is the underlying site that the board relied on what personal expenses at  appendix twenty two forty six page twenty four what personal experience do you have that would lead you to know how uterus was conventionally distended in november one thousand nine hundred ninety well that's what the vesta system did is the vesta system discussed or mentioned at all in your v it is not sir and i think you told me earlier this morning that you didn't rely on your one day experience with the best the system in forming any of your opinions this case right i didn't rely upon it yes you're correct so the p tab says is experienced in this when dr pierson self says i have one day experience and i didn't even rely on it this is the kind of substantial evidence question we're facing similarly council my friend just said he didn't want to sugarcoat our suppos misrepresentation about the state of the art remember the state of the art was offered not by dr peters but by dr murrah building dr murali who never reviewed the art in question so when they said well that the conventional wisdom was wrong we mis represented it he was talking about this therma choice device that has nothing to do with the i p r he was not reviewing at all the actual references at issue in this case i want to talk secondly about this notion that there was the evidence was replete it wasn't just dr pierce but i would look at ask you to look at appendix forty one and forty two where they were explaining the pizza habit explaining why they found the motivation to combine the third patent argues that petitioner failed to provide a sufficient rationale t combine masterson in boulder he then says that pete had done cites two sentences referencing petitioner's reasoning not evidence no evidence the only evidence than they cite is dr peters so we have on the one hand unambiguous lengthen the procedure dr martin dr evan past said you wouldn't want to do that that would have been contrary to the state of the art of the time everything would push you against that the only response to that was dr pierce who acknowledged he had no experience he didn't know what folks wanted to do with the time there is no substantial evidence even the site we were led to page forty where were your honor you asked about what isaac's untaught and i would note that it's an  c testimony of dr here's someone who admitted he had no experience at the time he had no experience at any time he didn't try to develop that experience for purpose of the i p r once you pull pierce's testimony out or give it the proper weight the whole house of cards collapses not only is there not substantial evidence there is quite literally literally no evidence in support of the piece of conclusion and particularly as the claim seventy where there is not a single individual in this case who said i've looked at the prior art and i find that there's a motivation to combine it to claim seven because dr morosely didn't look at the prior art of records and dr pierce didn't look at the issue of the of the stacking so with that i'd like to turn just to the final point on the claim construction issue if you accept the fact that you must at least not exclusively but at least have a pressure sensor monitoring for uterine perforation then there is no evidence that much masterson or isaacson does that if you accept it at a minimum we should be remanded for a proper claim construction where they say that yes you can do other things but you must at least do what the claim says that's why there was no claim construction dispute below because the plain meaning is the plain meaning the board so a sponsor he said will add these alternatives instead of monitoring for perforation you can monitor for kinks in the hoses  say but it's but it's as i said i six in itself says flow rate the connection the board makes is based on dr pierce saying that flow rate and and pressure are one in the same thing if you look at again ten ninety one page fourteen four to ten you will see that isaacson is talking about flow rate not pressure and the board made that contrie distinction because it's right there in the fourth line from the bottom see exhibit one thousand two paragraph one sixty two testimony of