substantial evidence that all of the claim elements are present in the prior are second there's no substantial evidence of a coherent rationale to modify the primary reference what's missing tumbling yes and let me let me point specifically to the claim elements in claim one which is directed to an apparatus you have a you have element half a means for rotating so as to tumble and in claim sixteen you have elements c and d c provides rotating the container apparatus claim the means for rotating so as to tumble there are two places are that's means plus function claiming invokes a certain structure and that structure has been defined in the prosecution of the application and also during the various stages of appeal first in response to the examiners one twelve rejection regarding tumbling applicant provided arguments that the regarding the structure defining the structure demonstrating that there was tumbling second in providing its appeal brief to the peta out half again had a burden to provide their list all of the means plus function claim elements and the corresponding structure defining where those are at the examiner never contested  e means plus function language and actually withdrew the section one twelve first paragraph rejection in light of the citation to the record in light of the interview with counsel for the applicant second the office has never contested the identification of means plus function claiming either in the examiner's briefing or before this court so we would posit that the means plus function claim limitation is a means for rotating so as to tumble and includes the tumbling now that structure getting more specific to your question your honor requires divider walls which are shown by reference numeral one forty six in the applicant's figures specifically figures five seven and eight which are located on page seven o opening brief show those those divided walls and those divide out the container that the organic material being dry is in those facilitate the tumbling so that it can occur during the rotation just curious how  the tumbling action not precisely on or in that the cylinder itself is no longer when it's when as a divider walls it's not purely salut four separate cylinders if you look at the figures they look more train ular in shape and they provide that surface so that when it rotates up it lifts and then tumbled so again if materials the other point that i would raise is that these are wet materials there are again igniter they're typically wet and they're being dried and so the wet materials may have a tendency to slide on the surface as it's being rotated if you versus the primary reference it's it's teaching flat receptacles and those flat receptacles if teachers should be evenly distributed with the contents in a particular thickness to called out sixty millimeters so that you can have consistent microwave radiation why wouldn't it be obvious to tumble that things are trying to dry out just like a clothes dryer or a vegetable tumble about you know what i'm talking about when i say a vegetable tumble about where the added these materials are unlike clothing for example there you want to have a consistent drying to them it's food products so that they can be rehydrated a later time it's other organic matter such as things being used for medicine and some additional purposes and so you want to have an even application of the microwave radiation and you see this appearance and weapons when they talk about having this even distribution of the food or of the organic material in that case as it goes through the microwave radiation so that when you travel through the microwave radiation first step time and under particular microwave conditions you have an even distribution of that radiation to the goods or the organic materials being transported through there if you want to have an even distribution so that an equal amount of the microwave radiation is is contacting the various organic materials if you are tumbling say particularly in a cylinder you're going to have variations in the height in the depth of the organic material being tumbled and whatever is teaches you should have an even distribution of that going to my second point regarding the motivation of combining combine i think is i think there is some bearing on this discussion is talking more specifically about burger burger teaches sanitizing surfaces of cylinders and these cylinders are empty there's no contents in the cylinders there are various types of cylinders used for other things and they're sanitizing by passing through plasma not through human mind ability is a different story it's not meant to supplant that's that's correct and combine ability is a different story and there's no substantial evidence of a coherent rationale to combine these references as you have teaching this transportation of these organic materials in a tray where they're in an even distribution and the concern there is microwave radiation coming into contact with the organic materials in burger you have a completely different apparatus where you're sanitizing the surface of a cylinder you're not trying to address the contents they're in and you're rotating that cylinder so that it passes through the plasma zone if you're looking at if you look at the figures from u from burger patent you'll see these little dots that indicate the plasma that's the plasma zone so it's it's important in burger to rotate the cylinder so that the entire surface passes through the plasma zone you don't have that same motivation when you go back to various that pile yes and i think that's that's part of the reason that went first is concerned with providing an even distribution and a particular thickness they specify sixty millimeters the notion that you get from murder entire surface can be subjected to the plasma but it's not specific about the contents and once you add in the rotation now you're modifying how the contents are being distributed within inherited anything one twelve rejection saying it's not clear that there would be tumbling of the materials based on just rotation and so to overcome that we provided over sponsor the option provided a response  corresponding structure which neither of the references teach the divider walls and one other aspects the cause the rotation and then discussed some of the other parameters that are shown in the pattern specification to promote tumbling after providing that the  examiner withdrew that section one twelve rejection but has since now we we have this wind of argument that the rotation will result in tumbling but this gets back to to my second point that there is not substantial evidence of coherent rationale for modifying workers in light of murder in that p tab did not provide a rationale for that modification they didn't discuss the combination of the references they said that applicant had not properly had attacked the references individually and not in their combination but they did not provide any type of rationale for why the reference how the references could be combined in y's one skilled in the i would be motivated to do so and that is in contrary to the respect to a motivation so that later appeal can be decided properly based on the evidence in the record and the court's motivation for the p t s motivation without all reserve the rest of my time for a vote on this there's any additional questions we will at the specification it a seven three four paragraphs thirty three which is the paragraph where a pellet sets forth what is the rotation means there's no mention of tumbling or the divider walls the only time there are two times where tumbling is mentioned the one with respect to divider walls but it doesn't indicate the divider walls are necessary for tumbling in fact it  five and in there they say the divider walls are present you know maybe presidents or are present in the container and there this is to promote tumbling so two things about their it's part of the container it's in their specification it's not part of the rotation me and secondly it doesn't say that they're necessary for tumbling it just says that they promote with i believe that it does i was trying to respond to judge rayna's initial question about whether the fire walls were required and what we're saying is if i don't waltz yes disclosing the specifications are not required because they're not part of the rotation means and they're also not familiar with that particular invention but in my mind it's like the bingo balls in a basket you know with all the numbers and letters and when you rotate that basket it doesn't have a divider walls but yet the bowels all bounce around two things one is the bor didn't construe that claim element because wasn't raised properly before the board secondly even if it were the specification teaches that divider walls are not required as part they're not leader board in the fall i disagree with that interpretation of what happened here the prosecution history if i might go through how examiner in the final office action went through three three pages a one forty seven through a one forty nine describing how the structures of these two devices were identical and how burgers rotation means would cause tumbling and then the examiner sad you know that if he's the other one later in that same office they actually say look if you're going to rotate these containers whatever's inside is going to tumble around in there the examiner found they out to be the inherent property of these devices that look you have two things that are virtually i agree ninety percent with what you've said but i think that i think that a person reading that if you go on for three pages and say these structures are identical and berger is limited structures and structures  points to the means for row changes closed by apple kid and says you know it says burger is you know it that it points to where burgers discloses the same thing and then it says that i tumbling also through the bottom half of page one forty nine but i think your point is really about didn't you say i'm going to just point to figure one and if i'm wrong please correct me right and i believe that the reason the examiner pointed to figure one of berger is because figure one of berger shows how very similar berger is to the claimed invention and to the prior art you get to see the whole invention just like the claimed invention you have the input and you've got a conveyor system you've got a vacuum you've got a microwave you've got an output system rather than the containers and rolled a gravity burger actually i'm glad you raised that great so the examiner found that this was in here at the board issued a decision which is ambiguous where the board uses the word in here in c and appears to be adopting these the editors reasoning about the structural identity and the inherent scene and then the board issues a final decision that says we we didn't mean in here and see what we were saying is that once you put what we were saying is that once you of the board and this will decision and then what is it on the follow up one is that the board wasn't a clear about defining you know all these little sub issues and then they say that would be harmless error because the board went on in its decision on rehearing and consider those very argument that appellant main and i also think it's really  ludicrous to say that an appellant arguing against a obviousness rejection wouldn't have had fair notice that they needed to distinguish their claims from the prior ar based on structure they've identified no structure anywhere that was necessary for tumbling according to their specification and then in argument no structure that would be in the prior art that would prohibit t as to tumble that africans have provided they provided in the appellate record the tab where they defined they had an obligation to set forth the means plus function limitations in the corresponding structures and  this is just correct your honor and paragraph thirty nine of the specification describes the divider walls for the promoting of tunnelling and in the briefing before the p tablet we defined the corresponding structure for that means plus function limitation that was the special force and that was described there the other point that i wanted to raise is are these arguments the really been interviewed by them they were for there's an issue there where they were first raise i mean i'm talking about the in opening appeal before the piece out there where the final definition of the means must function language also there was a description that the structure was not the same and regarding the motivation it is true that the p t have said that they were not going to consider pages two through four of our reply brief saying that they were not responsive to the offices the examiners answer however the examiners answer characterized the structures as being very similar and so it was necessary to rebut that the prior rejections in the case and if i can point you to an appendix one forty six it is or he first come up in your view but in my view it was during the briefing here maybe or oral argument i think i thought it came up in eighty one all it said that it's inherent to tumble but did not invoke an inherent see rejection walking through the elements of inherent city also on top and expands one forty sixth at the examiner is providing the office action so as the tumbling function is clearly depending on the rotational speed the organic material may not be tumbling due to the centrifugal force so we have the examiner saying that tumbling may not occur it's dependent on certain elements and then we have them saying that there is inherent