through twenty nine your honor that the when we're going to get to whether cato should be combined with clout maybe maybe you should get to that i mean that's just what you were interested in short so if you all the number of sides is important because the only reason that dr sam gave why someone would combine kaito in the club is that she said both of them were four sided but close six science it's now four sided everything else in her got the ration about already been cooked ready to eat is the phrase they use this and puts them and then allows for a consumer to not get their hands dirty and not have things like out there's absolutely nothing about cooking in canada at that and say wow if i put the material that's in clover and put it into this package and that has something that not only i can carry food around with me but also i can microwave it when i need to and maybe come out with a good i am and it doesn't mean that you're going to put it in to a product that is to contains ready food there's nothing about cooking in cato and so what you've done your i when you read is basically just any that me i am i can put into and then you get to be dependent claims which the board completely ignored if you read the decision they never actually addressed the dependent claims which talk about apertures lines of disruption  whether there and panels and the the issue for instance you're out with apertures right cato talks all about we want to keep your hands clean we don't want that liquids to come out and get your hands dirty apertures our holes in the end  you're trying to cook and using i mean i am like you're doing in that the zero seven eight patent it's very important you have even cooking so these are these are as you know use for hot pockets and you have you want to make sure that the entire hot pocket  this patent and that they didn't really gauge an argument they didn't listen to the numerous submissions that we discussed about that dr sanjay and they didn't seem to take issue with the fact that in light didn't depose in a way that undermined the center considerations without any evidence in the record so legally your honor the fact is is that the board used gas card and speculation to undercut all of our second ar to go down the evidence shows that but but is it also true that the evidence showed that there were other factors that could relate to the price you want i'm not aware of any other evidence evidence that says that there are other factors there's  increase in sales which he says were due to the package and we have evidence of that in the record we have the nestle consumer survey which shows that consumers like the package you don't have this in every case we have a survey saying th crazy or ours i mean the fact of the matter is nestle gave them specifications they do it they copied it and then they got caught they got five of the last of that that can't be excuse that copying is is is something  that permitted them to do that they've ignored the evidence of the record they failed to identify a reason to combine any of the references and then they completely undercut our second or separations if you look at the the final her decision says the way to be afforded this is certain is discounted heavily by many factors and then one concludes and goes through the seven year exclusivity that nestle gave are based on our unique design they said no persuasive evidence of failures of others we put in the shipment concepts were tried graphic made the contracts based on the shi against the weight of a set of the the obviousness and so your are no you can't just rubber stamp that they say we don't think there's really commercial success here we're going to discount because mr voice is an employee of graphic i mean that's crazy and your honor you have to look at it in the light of what they said more than that they said that they thought that there was a socially stable well your honor i don't know that your credibility type issue i'm sorry a credibility type issue your honor nationally granted there's other people tried at least mr shiffman tried and failed there's four years of when the this project first started to when the the commercial about him it became a reality they said employee the the whole question is what what did the their own evidence show with respect to sales of and they did and so the board confuses the concept of an evidentiary princip says if you're an employee that that goes to your credibility and the ultimate conclusion of whether the credibility was so tainted open based on the overall assessment of one's credibility that it should affect is another witness's own testimony that you still need cooperation at some point they never said that a witness who happens to be an employee by definition is not credible and then we don't give weight to what they say in so far as what was it was testifying to specifically with the with the testimony that was discounted with what nationally and in what nestle contented contended how they felt about the product  generosity so the fact that they discounted his testimony was it used then to discount the specific exhibits that the board went through one by one to find met serious issues with respect to the of the evidence which is something that's a titled i absolutely tell to let me look at a few other things that another thing they said is that you cannot have you can never show failure of others when it's only one and tit person who failed in other words you have to have show a ton of people tried it and i have a problem with that because in the pharmaceutical context over and over and over we've found failure of others where one competitor tried something and couldn't get there and therefore it was the failure of others is established so why are we to and they cite some old c c p a case for this proposition ignoring all the rest of our body of case law that says even the failure of one entity is one person just isn't enough if that's where the interest in the product lies so if if if we're talking about a case where mean and what you can consider and then they state them as blanket rules that could be reciting began in another case and and their statement was just plain wrong in the context of the statement design packages and test there's no evidence that that ship had any further involvement there's no evidence that that graphic went out of its way to make the scenes work there's got to be some  question and so all of these factors are to be considered before you decide that there's a motivation to combine to say there's evidence that would indicate the possibility of a motivation to combine but ultimately these factors are supposed to tell you whether or not the motivation combined really exists i don't mean to sound trite about it but when you're writing an opinion you have to start so this board started with three brand factors the first three and then wound up with from braff it to show why such become a nation under those circumstances as explicitly set forth in case our is going to is going to displace the decision well favorite and but even if you don't have teaching way what about the factors your friend described that that if you do the combination that that the board bought was so obvious that you basically would would end up with a situation where you got holes in the product that that's that's across many product lines some of which may have briefs others of which may not but the point is we're taking it from that context and we're applying it in a situation to which  last people to carry it around and facilitate consumption afterwards and that's exactly what's being applied is being applied for  copying itself is is equivocal again you need some textual evidence to give that some meaning so for example in the in the case meaning you didn't come up with that on your own you capital that's one way to demonstrate that copying has probably value is to show that yes we were in the marketplace of the product and we were somehow being out computed by graphic and we decided to co opt those features that made it better and that's not the case here in the case against fairly clear  circuit placed very little weight actually on and on the fact that the wrist cocking for the sole reason that the products the issue and all of the industry actors all tended to try to make the same product so again is if you can show that all the decisions made with respect to our manufacture of the device and not just accept this of it could relate to business a market in which we are told that we have three exact same thing a second source of fire makes the same thing it doesn't mean that we look to that invention or nestle did and said we need to have this this copied so that that evidence unless you can demonstrate that beyond very documents that they've shown of the arguments he made this is equivocal last they are what's missing and you know it's important i think particularly here when you have and it ported invention you are combining all those for the no purposes for the for the exact reason you're combining which is known  to everyone there's no unexpected results these are complimentary features one edition doesn't it doesn't hinder the operation of the other edition of one is an enhanced the ability of the other just this sort of complimentary features  arise each of which have been for years the minister separately ok and the patent deed demonstrated that up for years there's been a very long felt need to life of those drugs and what they did was they found that when they combine the two unexpectedly the combination of those two compounds known treat the exact same disorder where contrary evidence to weigh it against there is not there's just a tiny argument but but even if even at all the secondary considerations go in your favor that's that's something that is supposed to be considered in  the circumstances here and those circumstances include what all of the prior teaches correct why isn't in this circumstance is the totality of the circumstances sufficient when you got the prior art that does what it without addressing any of the secondary consideration and that includes in her rebuttal declaration ok so get in touch technologies two thousand and fourteen for most of his touches directly on that if the expert doesn't identify sufficient reason to combine and doesn't even consider secondary considerations we're going to reverse and that's what we do whether you should do here the the combination or the problem of cato and i'm reading from cato appendix twelve seventy five it literally says a problem if a bu dirty that is the problem that cato was trying to solve the problem that the zero seven eight times trying to solve was to develop a construct that where you could cook the food and off they cook the food carry the food after it's prepared and then allow consumption as you're eating it that's not a problem that kaito identified it's not a problem that khloe identified so there is no reason to combine the art and then that's when you look at the secular considerations and say clearly that's going to outweigh a