the next case is crime mobility products corporation versus per mobile fifteen dash fifteen eighty five gertz and there would be problems that would arise that would have to be adjusted for yes that ok that's correct but that he never goes on to say those problems actually provide some performance deficiencies and a skilled artisan would be motivated to do this notwithstanding the arising of those performance deficiencies from the adjustments to prevent the instability he did not say that and in fact would he have had to say that yes your honor he should have had to say that because otherwise it is a failure of proof position that their worst ability problems and it was clear from the record that dr richter was not did not measure up to the level of ordinary skill in the art because he didn't recognise those deficiencies it was only when he was confronted down confronted with them from the declaration and testimony of pride's expert that he grudgingly admitted that yes you could have a stability problem he went on to say that you could fix it and the board addressed that issue but the board never addressed the larger issue on the legal issue of obviousness of whether that additional work and the scant if any additional benefit that lowering the pivot would have made in the courts and reference would have made it obvious to undertake this in the first place so it's just just to be clear about the way that time identifying maybe reducing this objection is that the board stopped in terms of fine endings and richter stopped in terms of his evidence at whether there would be a reason some positive to be gained from making the change but neither the board in its findings nor richter in his evidence said i now recognize there would be negatives from that if you make adjusted from the adjustments like moving the seat rearward which might be something that people would not want to do and what neither the board found or he said was not  described i believe it is accurate that from my reading of the record that he never went that extra step that saying for example that even there are stability problems i now recognize that one could adjust those stability problems but he never took the next step of then saying that there would be with those adjustments there would have been enough benefit to have justified making this modification  and finally in addition the board did not find and or did i find that can i ask about the relative ordering of presentational procurements and evidence here yes i understand it the petitioner came forward first relied on an expert to say very obvious one would be motivated to move the arm pivot point from something high to flow because i've seen no teaches that and teaches the advantages of doing that and then then it was your side that came forward and said well you're going to have stability problems whenever you're dropping the center of gravity or something and you know these wheelchairs stability is paramount absolutely and then they came back petitioner came back and said at the expert come back and say well there's no way i would drop the arm pivot point without also considering stability issues but adjustments could be made in fact the guard's reference describes different things you can do to adjustments you can make to improve this that or the other perhaps even stability and so it was well known in the army was it at that time that you and your expert came forward and said ok now all those interesting adjustments to improve for preserve stability those would have disadvantages or negative consequences so i'm i'm just trying to figure out the timing here of or did you and your expert come forward initially when you identify the stability problems also say even if you were to compensate for those stability problems then that would have its own set of problems i'm trying to figure out at what point did the petitioner have an opportunity to respond to any arguments your side might have  about any adjustments or compensations you would do to protect stability would create a host of other disadvantages can you help me with that yet to be fair i believe that my recollection of that record is that they came forward and just said it would have been a routine adjustment our expert said there are major problems with doing this they came back in deposition they came back and said  it could be remedied and we came back and said there are there are probably you know the remedies are difficult the remedies are extensive plus the  chair was built for a different purpose it already was able to climb curbs by a completely different mechanism from what i've seen but i guess in terms of identifying any problems with doing the adjustments to preserve stability that was after your side had identified that i'm guessing because this is such a tom packed proceeding the patent  disagree and here's why i think any perceived advantages are really minimal for negligible importance here is that they had the opportunity to to rebut our experts statement on the on the stability problems in their reply brief it is petitioners burden of proof to prove obviousness they didn't take the extra step in the didn't go the extra mile for the extra couple feet to put to bed the issue of whether or not there were benefits that still would have obtained from the changes they were suggesting and it was their burden of proof the entire time and we've always contended that they've never met that burden of proof right from the get go in the petition is it your view of obviousness that if let's take it for granted that a scene or does have an advantage it just described one and so for that reason there is and there is a perceived reason to drop the arm to that point and goodson but but now maybe there's some disadvantages that come with that maybe you can compensate for those but maybe those compensations have some disadvantages do you think that way motivation to combine are these and make combination there has to be a net plus like if you take into account the advantages from a scene and maybe some disadvantages are a host of little disadvantages in making adjustments to do the see no alternative does it have to be a net positive in order for it to be obvious yes your honor i believe it does have to be a net positive because just like one must read the entirety of a reference for what it teaches in an obvious and that obviousness analysis one must read the entire brought to bear universe of references for what they teach and all the facts and one of ordinary skill in the called by the artist skilled in weather whether combining creates a plus or not when you can have two references and the references by themselves may complement each other but there's no no  hypothetical construct here and what the artist since judgement is in motivation to combine and ultimately would have been obvious is a legal construct that the court refused to know and the legal conclusion must take into account all of the underlying facts and circumstances so as a matter of law even if one of ordinary skill they are would conclude that yes there are some trade offs i get some advantages but i also get some disadvantages and the disadvantages maybe outweigh the advantages and as a matter of law that can never be obvious at a change to something in the prior art that maybe isn't as good as that prior art reference that's always a non obvious change now i think it's a question of it is a question of the grid but the question here is was there enough of a benefit given the different constructs of the courts in the chair versus a hoop seen no chair and given the additional work that would have been necessary to overcome the stability issues that that their expert  would occur the question is would would one of ordinary skill in the art have been recognised those stability issues in the first two systems that motivated to undertake this change and why because it would it would include additional wor not simply because it would include additional work it's a question of with the additional work out way any benefit or more precisely even if it's the question is whether there was any evidence including from richter about this balance of positives and negatives there was not that i mean that seems to me that the core of it that keep the might have testified that you know some share users don't mind sitting back don't some share users don't mind having to accelerate more to climb the curb and there's a market for the faster accelerating seat and the and the forward seat and both of them would have you know pluses and minuses and different people would have different preferences and a skilled artisan would be interested in that but at least i'm not seeing that there is such testimony we don't need that it's not for us to say what the balance of positives and negatives is but for there to be evidence about what a skilled artisan would say about that precisely and it was their burden of proof and they didn't meet that where i could make one other comment about the the there were there was a comment from the bench about the courts in reference having taught ways to overcome stability whatever boards and caught was in the context of the high pivot that courts and had and those those remedies would not necessarily affect a cane or be relevant to a lowered pivot and but can i just ask you one question that's not shouldn't consume your time on the three four three patent yes when i look at the figures the arm  that pivots about point twenty nine that's the connection to the frame that's the pivot point and that is below a line drawn between the axis of the front caster wheel sixty six not designated by a numeral but one you could see it there and if you draw a line between the axis of the front caster wheel and the axis of the trifle wheel which is access that has got to be a reference to perpendicular already between the line that we imagine the axis to be and the feature that makes this mounting plate substantially plainer namely its planar surface and there's only one thing you've got the the front caster arm attached the mounting plate you've got the motor drive attached to the mounting plate and the mounting plate has a pivot point where it's connected to the to the frame and the motor to perpendicular to the plate it's perpendicular here it's perpendicular here the issue here is that the board without making any construction of its own simply said and they say you know because it's this well in plane geometry that is not perpendicular to the plate that creates a ninety degree angle only with an edge of the plates but the not the plane of the plate and the significant feature of claim seven is the plane or plate said plane or plate and perpendicular were added together the plate is a three dimensional object right but only two dimensions are ever referred to in the specification the plane or aspect no where in the specification is it ever does is the plate ever defined by the shape long due to the extent the edges or anything else to take the boards construction for example if you had a plate like this where is a perpendicular there's nothing in the claim that refers to the shape of the plate and it doesn't make any sense to refer to to define the scope of the claim by what is otherwise  unmentioned unclaimed undefined dimension it's only the plainer aspect of the play that is consistently in play and we would and as i've also said in the brief the language that the specification uses tracks word for word the language in the claim and when the specification refers to the only time to specification uses the language in the claim the only relevant context of perpendicular would be in this case if we find an area the claim construction that does that how does that affect the the obviousness of analysis i think the obviousness goes away cannot be perpendicular and there is no other reference so should the board as we ask reverse the claim construction and adopt pride's construction it should it should reverse without a man i'd like to start with the perpendicularly issue for claim seven where mr webb and left off the board properly rejected pride's attempt to limit the meaning of the term perpendicular to a single embodiment disclosed and figure three to be perpendicular to this this is described in terms of one and only one feature it's cleaner features i don't understand how as a matter of english in once great geometry that doesn't mean something other than this that when you translate the t and that's not person respect they are here on earth i disagree for a couple of reasons first of all if we look at that preferred embodiment which can be found just tell me about the language the language what does perpendicular mean here when reference to an x this is an axis so that we're now idealizing it into a line and a nother item which is what this is going to be perpendicular to prevent it would you describe with respect to one and only one feature namely it's  plainer other than the us the claim language talks about the mont mounting plate being substantially planar and is oriented perpendicular to the dr all access those are two separate requirements and the specification that's an incorporation of a reference of perpendicular already between access and this three dimensional thing called a motor now in math unless you tell me i'm wrong perpendicular eddie exists only between a line and either another line or a surface of something viewed as a two dimensional object not a three dimensional thing so that immediately tells you when you're talking about a motor but you must be referring to perpendicular already with respect to either some surface or what is pretty self evident in context the longitudinal axis of the motor it seems to be equally plain that that is not what is meant here when the reference is to perpendicular a between the axis idealized into a line and a mounting plate that substantially planar which calls attention to one and only one feature namely the plane feature the only time the phrase perpendicular to the drive will axis is used in the specification tells us that as used in this patent is meant to encompass at least both the north south and east west configuration of the mounting plate and the specification couldn't be more clear and we have to keep in mind that we're applying the broadest reasonable interpretation standard here present had the opportunity if they wanted to have a claim that said the plane must intersect at a right angle or perpendicularly they could have amended the claim in that way but instead they left it as it was and they were left with a specification that talks about two different orientations one of which is schaffner one of which is figure three be meeting that ninety degree orientation requirement and there's no dispute it's worth pointing out that g after satisfies it then so does kurtz and they have not disputed that below so the so question for the court is whether the board properly applied claimed construction principles by by looking at the specification seeing these two different describes it having a few different components features one being an upper portion there's no can't really say there's an upper portion to birds and mounting plate and well you you can't look at these as two dimensional configurations because they are three dimensional and it is not the result of them in every product in our world is three dimensional so when the reference is to it's a reference to some idealized feature of it in this claim seven how can that be anything other than the thing that makes it substantially plater we need to look to the specification tells us using that very phrase perpendicular to the draggle access it tells us that an encompassing both the vertical and the horizontal orientation and that are oriented at a ninety degree angle they don't need to touch they do not touch but to to to a plane or a playing substantially pointer which i think prime attempts to read out but all that means if it's substantially flat it's not two dimensional i don't think there are going to  have the opportunity to make this two dimensional figure three dimensional figure and if it's three dimensional it seems to read that you can always at some point in space is always an intersection when you're doing three dimensional figures well that's correct and i think what we're saying particularly with wasn't that turn the claim on the set i mean obviously the the the pen doesn't speak to that it's trying to create a limitation the patent doesn't adequately describes the mounting plate oriented perpendicular describes how that mounting plate would intersect in three dimensions with the dr will access and we know from the reference to schaffner that it's not just this vertical structure of three b which is described as a preferred embodiment but it must in compass all i would like to turn briefly to the question of motivation and some of the questions that were raised there i think that's the first point i want put aside there are two questions one with the board found and second is with the evidence shows that for a moment just focus on what the board found where did the board find i recognize there is a stability problem with making  recognize that there are ways described in gertz and to adjust for the stability problems but then it seems to me the crucial thing is where did it say once i take account of the adjustments j eighteen credit dr rector's testimony that a person of organized around the art would have known how to change various other parameters in order to achieve a stable version of the claimed invention right but i mean as we recently said field in building one in touch of the activity ok's knowing how to is not enough to say would be motivated to do that and then also tells us that one let's have our teaching as a whole not talking about  combined ability here in the case last clear on that we're talking about a feature that has virtues that's described in one piece of art and what a person looking at another piece of art decided that those two things working together could have read it as i understand it know how to address that problem and then you point to a few places in gertz and let's assume for a moment that those would be appropriate solution there's a dispute about that but assume that that would be true one of them would be move the seat back i bet there's a reason that i don't know what it is that the seat is where it is as opposed to further back so there are negatives that come with the adjustments needed to address the stability problem and what i don't see i seen no the teaching of girton about ways to adjustability those things would be looked at independently and it would be reasonable to combine them to achieve the benefits girton it's important to know that as an answer unless there were offsetting negatives that would that anybody would recognize as ones that even when adjusted for would lead you to say i won't do that but the board made a factual determination based on the record in the art would know how to compensate for the stability concerns once you lower the arm of the point but i didn't see the board explicitly say well the the patent owner has identified problems when you do that and so now in the overall obviousness context we the patent board have to now some kind of evaluation where we throw everything in the mix we we focus on the advantages identified as you know but we also must weigh that against the trade offs being described by the unknown or about all the costs that come with making be adjustments to preserve the billeted and when we consider all of that together we still never s find that of senos advantages are strong enough motivation in the face of all of these costs that one of ordinary skill back in this era would never lets go forward and  conclusion that a personal corner scale in the art would have known how to compensate for the reduction and in the stability that sunday nineteen and then on j a twenty about midway down the board says it's not persuaded by the patent owner's argument that a person of ordinary skill in the art would not look to history now to modify the teaching of gert's and due to the physical differences and different uses of the chairs so the board whether explicitly or implicitly has carefully considered this issue about whether a person a worn or a skill would look to gert's and learn from it what it could and look to his see no and learn from it what it could and use this low pivot configuration it's also worth noting that person does not teach the importance of a high pivot it's silent as to this pivot and the line between the dr will abscess so there's no teaching away here the question is what can be drawn from the art by a person of skill in the art and i think the bel case that was decided in the vendor of twenty fifteen informs a view that you look at the references in and of themselves not how they would be combined together and the art and the icon fitness case that we cited in our brief the law wheelchair has to go a lot faster maybe there's concerns about other things too when you reorient wheelchairs that would be something that would be considered i would i would point out that prides main argument against this combination was not that the adjustments that gert's and describes would be inappropriate their argument as it would be unnecessary economic cost because curtin worked just fine that was their argument not that the stability provide an advantage as it explains in that situation that the economic argument they make is is completely inconsistent with a case other orthopedic case that sithen in our brief in the case that economics is not a relevan motivation and he just met me to have a suitable device not the most desirable or best device in order to support motivation to have you're completely non legal question i guess it's a physics question can you explain how the torque causes the front to r e i will do my best to do that so that that engine that motor is through this active suspension system attached to the front drive be all and so that the forward acceleration that you get from the motor that lifts the wheel and and interpret the phrase perpendicular to the dr weil axis to read on all the uses of the word perpendicular in the spec when only one of those uses is relevant to the language of the claim and that's the use that is in column a in column thirteen rather than the share for years where the exact same language that appears in the claim is used in the stack and at that point in both those points which are the only times that the specification refers to it's not a snotty exact same language but because the word is is used once whereas in the claim it's used does that make a difference i think the other side does argue that it makes it a i they argue that makes a difference it's a property of transitivity your honor if two things are a your argument rests on somehow integrating those two features or you know interconnecting creating some relationship between those two features but you know there's so many other examples where you would never dimensional construct that would be the plain meaning of those two characteristics what if it just said a mounting plate that is perpendicular to the driveway l then when you say ok my argument doesn't work anymore now i would know i wouldn't say that because you still have to look at what a plate is and a plate is always always has at least some stand so some plane are aspect to it when you want to talk about a plate when you conjure up the image of the plate you're not thinking about the thickness of the plate you're thinking about the contour the two dimensional contour and but we have more than that here because both times the only time that the specification refers to the mounting plate the mounting plate being substantially plain are and perpendicular oriented perpendicular to the dr will access it refers to figures in the pattern three a and seven ad and if you look at those figures it's like that and that the the same that's of the language where it's used in the specification and the claims and the specific tying to the figures brings this case really into this court's decision in flex rust and brings a very close to the c r bard case where a specific ta between the specification and figures was enough for the court to look at what the figures taught and incorporate aspects of those figures into the claim and here i think we have a plain meaning anyway and this only confirms the plain meaning what's the effect of the words are stanch really with respect to addressing that the surface of the plane well substantially was never argued below as it really point of distinction here and substantially plain are means it could have some imperfections but the overall the overall aspect of that two dimensional part of the plate is plain are for example if there were a little bump in this it would still be could digress to that a plane extends in all directions infinitely basically and you talk about something being in a plane and this would be in a single plane are only respond to i will only respond to the question on the the aspect of the the work that had to be done there was a question about the seat moving the seat in one of these chairs is a big deal it affects the center of gravity the whole structure of the chair with the mit we the main drive we on the front and the to the front caster arm and the rear stabilizing wheel affects the center of gravity