and they jam the inventions here is a refinement over that basic idea and the invention is the ability to detect when the maximum thickness violation is due to an impatient shredder shopping extra paper what we call  additional articles so this would not be the situation where someone just put send fourteen sheets in to attend sheets right or it's where they put seven sheets in to attend sheets right or start shredding it gets three quarters of the way through and they just can't wait they shove in seven more oh sure if there's a reason to combine to have all the elements of the claim that that's k s r and we're saying that neither of those is the case in the situation to address the second environment of the area shredder it's the thickness detector with two threshold will take the maximum through the thickness threshold is the one it potentiates again and then they have all they call an intermediate threshold the intermediate threshold is seven sheets will pick the purpose of that one is to allow eight or nine sheets to be fed will continue running for some period of time it is something that is right under the maximum close to the maximum much like if you're driving your car in accelerating the tack commenters and the rest of the engine is go and that's fundamentally a very very different concept than what the fellows invented it is little different i thought areas of second body with about recognizing there can be waving and flapping of the sheets as they're being fed into the shredder and so therefore we're going to count for that practice by allowing for a certain time delay and once that some thickness threshold has been been violated but not immediately turn off the motor because we want to account for waving and flapping but then after a certain period of time if the that threshold is still being violated then the motor gets shut off that actually if you think about  what they really say is that waving in flapping can jam destroyed or we cross mysteries on that question he said that can't really happen and you also have to recognize the waving flapping could happen at least ten sheep max all right and they really weren't solving it there so if you look at it in context if you have a shred of the society handle ten sheets and someone puts eight or nine sheets into it the time period does need to be long enough for them to finish the eight or nine sheets it's not on the order of the high frequency that weaving and flapping would cause because we know it's been marketed as a tenchi capacity shredder that means it's got to finish those eight or nine sheets that would minutely will say any amount of time that is on that order will i read it and it sounds like you kept talking about waving and flapping multiple times and kept talking about having a time delay to account for waiting in line and then if the time to lay lapses and there's still  a violation detected then it shuts off the motor for what's wrong with what i just summarized about that portion of the areas reference i would say that way that time delays are of will not solve will  not have a flapping problem you're right about that but we don't think there is fully understood what the problem was because it's not just flapping in the intermediate threshold there's got to be flapping up near the maximum threshold and the real problem is the additional articles that a that exceed the maximum threshold and i think if i talk about that sense that ignore invention that might help you understand it the eerie sense that ignore improvement which he later the way that worked is once the the thickness detector is ignored entirely it doesn't have so object in the flapping a waving at all because it pays no attention to the thickness detector whatsoever it could flap and wave i could put ten more pieces of paper in the gym i different and different path application you took on something other than what's at issue in this case right eye it actually is a record but i'm trying to give it some context about the difference between understanding what the flapping issue is versus the additional article victim to the flapping of paper it will not set a false alarm for the eight at night she's your premise is correct but my point is that does not necessarily mean that it is detecting additional articles of the assertion of good it just so and this goes back to your claim construction argument right it goes to the claim to structure an argument a glass of the reasoning but if we were to conclude your claim construction argument is way then then this aspect of aries matches up with criterion limitation would say it's not the type of criteria you would move from one threshold to the other it would still be no reason for the relocation of the driver so to speak we still have substantial evidence argument i guess what i'm wondering is assuming the claim construction detector that's detecting a second threshold i understand that but for purposes of your claim it's an open ended claim we're only talking about a particular fitness detector that has a certain criterion and if on the criteria issue right the claim also requires that the maximum threshold is something that when violated the shredder just not run you violate that maximum threshold upon the initial insertion the sh don't the shredder is running this is where the criterion becomes important is while the shredder is running is the criterion violated that intermediate threshold that you're referring to does not prevent the shutter from starting at all it's something that allows the shredder to run for some clearly says a certain amount of time some period of time that continues unable to try to get believes the words that they use in the areas patent it is not the kind of maximal thickness threshold that decides whether to start or stop you least one criterion corresponding to the insertion of additional articles if you look at the claimed construction it just says a time delay that is set when the measured thickness exceeds a certain amount  drops the requirement that this be the type of detection the corresponds to additional articles of that requirement fell out of the clear out of the claim construction entirely and we argued repeatedly through the case that but that is just an upper time when you saw that the petitioner was arguing that an alternative and then you pointed out why even though the petitioner didn't like its own proposed alternative structure that construction would be appropriate and  or your own prosecution history statements that fact check and i can point to the history of that is acros original construction was the criteria can only be an additional threshold right can only be a second threshold try to limit it to one of the environments and mr mcateer fellows patent and we said well wait they knowledge there's another possibility construction that can include time delays we didn't say any time delays we never said all time delays and we gave them the example of the type that would be included in the high frequency type very high frequency flapping if the time delays on the order of that it gets ignored if it was longer than that you would conclude that to be someone having inserted it just all articles because that is not the kind of thing that flaps right that would be the kind of thing that pushes the thickness to talked or for a period of time that's longer than just some clapping and we explained that to them we weren't saying we're taking the position any or all time delays and we actually clearly argued in the briefs that the type of run on or upper time limit delay that every state has in his patent is not that type of criterion and we started the oral argument with for the board to make clear that position could it how long can't run in the red so to speak in the example of a car that's the kind of time delay this is how long can you keep shredding eight or nine shredder that piece of paper and attention shredder not four or five words not working as hard right up under that that's a totally different time delay than the type that differentiates fluttering paper from people putting edition large holes and they go back to that sense that ignore that something that can't differentiate mysteries even admitted his time or his the plumber response we're not even obligated off of one at all i think you have to look at the totality of the record and we came clearly to the board now they said to me let's be perfectly honest the board set is such an institute we agree with fellows we've given them the d definition and we have given them our example of how time delayed delayed pick and honestly we thought they were on our side that then the final written decision came out but let me say this and i have noticed that we clearly argue additional articles it just requires something that's consistent with detecting insertion well that's correct it has to be something that is characteristic of additional articles but not the actual  you just put fourteen sheets the criterion never comes into play because the shredder doesn't start right that goes to the other claim limitations that control not starting preventing out of place you are in your second and then just sort of go to my second one where you put in seven and then within seven move right in the start of the let's say that seven sheets are flapping it's not going to detect that is additional articles because that's not a characteristic of additional article and then you put in seven more that's when the  and in the deepening claims which is very important here that's where it prevents further operations the very system tries to keep going that criterion is a run on time or that sets an upper limit on how long you can keep going under the maximum you can't really move it as the board said fellows claim construction and in their preliminary excuse me in the past number statement after institution and of oral argument before the board they never brought this issue up they never criticized the claim construction of the board the board as a matter of fact in its final written decision says that there was no this there was no issue of claim construction that was being contested by the parties see therefore that issue is way and on the merits of the claim construction the board got it correct meaning that have been added and then they go on with regard to the criterion corresponding to the insertion of additional articles and they address the only dispute that was in before them with regard to the part of the argument about whether the time delay was or wasn't part of that criteria and they resolved that to steve every result that the spew they went on then to assess the issue of obviousness and here in a well founded decision they saw that in this predictable are single reference theories one thirty eight thousand operation well at that point the motors are already off and there's no cutting going on so what's going on with looking for another crack to your ear you're out of the claim is not a clarity with regard to this but looking at the seven sixty seven patent and what it describes what it is trying to differentiate between it's trying to differentiate between a essentially a false positive where the threshold get put in when they begin to be shredded and they start moving it's possible that the threshold becomes violated because of the movement of the sheets and the and the parent is directed to and what the claim is is attempting to differentiate between is a real violation where there is a potential jam condition where you want the motor to stop and of a false positive that is being caused by some other so the criteria is an assessment with regard to whether the violation in fact specification it does appear that way but it but when looking at the totality of it i believe the the understanding of this claim is that it's looking for two things happening at the same time that there is a violation as well as a criteria violation the detector shuts it off and if there is no violation the detector doesn't shut off that would not differentiate the situation where there are additional articles being inserted from the situation where a violation is being caused by some other reason here before the board the con to the issue that fellow's was raising really was the issue at the heart of the obviousness argument about whether there was a reason to apply the time delay teaching a to the threshold in order to come up with the claim and the board specifically addressed this at age twenty one in the open and said that the immediate shutdown of the shredder motor was beneficial to protect  the against shred of damage but the triggering of a time delay to account for this waving were flapping operates as a convenience to alleviate unnecessary motor shutdown so the board specifically addressed the question that was being by fellows before the board which is a question of whether this timing delay that was set forth within the aries one thirty eight that it could be used and whether there was a reason for that and the reason that the board came to here and throughout its opinion is that the first of order the skill in the art would apply that time delayed threshold that quite as a way of criterion of determining the difference between a false positive and the waving in flapping on the one hand and too much paper on the bit more complicated in a sense where they have these two separate threats one of the things here i think that complicates things is the is the terminology of a maximum thickness rational because the maximum thickness threshold isn't not the same as the capacity of the shroud of itself so in that second in that second case aries develop something that was a little bit more involved or he was using double thresholds but the teaching on the reason for the timing was exactly the same teaching that allows it to be applied to a machine that did not use to threshold use the single threshold and could still differentiate between the two situations of a false positive caused by the waving reflecting and the actual insertion of additional articles time it's going to be set for an appropriate upon amount of time to determine the difference between waving and flapping on the one hand and something else going on on the other hand when that is being used and it can be set with regard to any threshold there isn't a teaching that there isn't anything that would direct the person of ordinary skill in the are away from using that idea to apply to an embodiment like the first embodiment in areas where there is a single so called maximum threshold that is being used so here there is a clear case of obviousness where the all of the elements of the claim are set forth in the single reference where there is a reason in order for the person of ordinary skill in the  take the teaching with regard to the time delay feature and apply it to a shorter that has a maximum thickness threshold in the result of that is exactly the type of shredder that is being talked about by the seven sixty seven  that can differentiate between these two different aspects whether there is a a false positive or whether in fact there is too much whether there's too much paper and there should be shut down with regard to this the teaching is clear that it is to be done for an appropriate period of time this is not there is nothing in the record to support the idea in fellow's briefs that this is supposed to be set for a long period of time in terms of minutes or or hours it's clear that the area's one thirty eight patent is talking about and this was explained also in mr aires declaration which the board of credit fellows challenge the board to throw out the areas declaration and the board specifically consider the credibility of at the terminations and believe that it was entitle to late that gave it appropriate weight and made the findings that it made with regard to the obviousness consideration here this is a classic case where all of the elements are present this is a predictable r and the reference itself as well as the additional evidence in the areas declaration gives an explanation as to how a person of ordinary skill in the art would apply this in order to get to the exact claims that are set forth in the seven sixty seven patent the board itself actually even call this strong evidence of obviousness we submit your honour's that really what follows is trying to do here is challenge that very strong obviousness they don't want to deal with the substantial evidence standard so they have rewritten this as a claim chad real quick i think get a concerned about that the reading of the claim that if i walk you through that real quick if you read the claim the first wearing clause says when the article being received prior to the operation of the motor so this is before you started the controller either operates the motor in the shredding direction and that's if it's loss of the threats less than the threshold the next clause is modified with the language that it's monitored during operation of the threshold so the first where clause presents the two options start don't start the second one is continual monitoring there after it started so i just wanted to be clear that it was not a situation where it hasn't started and there's nothing further to do i just want to clarify that aspect of the machine is designed to shut off in response to additional articles none whatsoever it does not differentiate between them the record was clear and the board treated it as a trade off it was a trade off where you set a time delay to avoid correspond to it doesn't necessarily require a mandate the actual insertion of additional articles right it can be detecting something that's consistent with the insertion which could be that all along  just had a certain techniques that went above the threshold but not all along because if you started off with too many papers at the initial situation we put fourteen and i'll write it won't start the first we're in clause prevention of starting just trying to understand what does it mean to be correspondent and could just be something that's is right in fluttering is something that's not consistent with it at a time delay situation it would have to be something that's slightly along a flight of that you know in in your pattern or response you talk about the violation is consistent with determining if a criterion is met in addition to simply detecting keep going the control of determin the violation is consistent with or wrinkle which requires no additional action or the flutter is or there are some words or the violation is consistent with the internal with the insertion of additional articles into the shredder that's what you said that's  that it's consistent with the insertion of additional articles and into the yes or see how those two things are different let alone the fact that quote is in this quote if i did i do not believe this absolutely no intention of mislead whatsoever your honor but the absolute point is if it was made this the rub is if it's consistent with an additional article that is something the corresponds to the additional article if it's consistent with something that is more acceptable like a flutter it's trying to differentiate i will look into this and make sure if i did not get this from the right spot but i do not see that there's any intent to mislead on that this was court but this represents a different concept