reconstruction as i'll discuss the board plucked various elements from the prior art going back to the twelve years before the filing date of this patent in combined it through the prism of the claimed invention the fact is and this it as one that should not be considered in the in the in the obvious combination there were at the time that package plus came out with stack cracked various competitors have been in the industry for decades baker hughes halliburton whether fir there's a slew of them they have vast resources vast knowledge about the oil and gas field drilling completions nobody before acars plus that come up with the open on multi sta you just get to the evidence and motivation to come on line what what in particular is lacking we review this it's a question of fact or substantial evidence in this case we don't get a d novo review in addition to the evidence experiment that the government did it to figure out how it can increase us well reserves and it had an open hole completion system where they were running multiple stages multiple fractures ops per stage figure out what particular crankery would yield the best results they were not multi stage fracking for any sort of commercial purpose they were trying to see how we how can we get the most well out of the ground out of the formation yost well that the us papers about later was discovered to have problems in terms of it wasn't isolating itself in our extr pointed to a reference of that at the department of energy published that said look we were experiencing leaking between the zones in the post well the fact that you were having this failure in zonal isolation suggests that you were not you not your multi stage wrecking was going to be compromised because you were losing pressure among your zones and you weren't going to be able to perform optimal multi stage correct fracturing and our experts said in view of that if you're having this leakage between the zones that would guide one belies on similarly it's about semantic casing so there was some testing on open a whole systems back in the late eighty's and early ninety's but industry didn't adopt it industry want to weigh in and stuck with what they were comfortable with but what am i remembering right just tell me if i'm a fund not that there was evidence in this record and maybe the board also real lied on this evidence to separate matters obviously  to the effect that this is an industry that needs an extra special showing to change its behavior even though it recognizes something is technologically possible i think the summary was it's a very look this wasn't economically feasible to do on a commercial scale mr mcgowan our expert said if you look at the production increase that yosef with his open house and simulations it was equal to what you would get if you dr could specifically control precisely locate where the fractures are going to be so so your honor i would i would i would suggest that yes this industry is sort of slow to change but once something our view is that the record evidence shows that act response made hundreds of millions of dollars annually the vast majority of it a day i mean i said i thought that tell me if i'm wrong that that with the board set about this is yeah there are some commercial success but we don't really know how much credit how much weight to give one thousand part because as you know your best evidence is that in a particular formation you or your system was ready something over fifty percent but if you ready look at the whole industry as a whole you know it's not quite that impressive and we don't know roughly speaking what the denominator is of your ready several one hundred million dollars right the board was concerned that it didn't have evidence with regard to market share you know right i would submit and we decided the tech or case your honor that evidence and market share is in despondent as to whether there was commercialized but i mean all the board is doing is is saying we recognize a bunch of things that actually point in your favor but we're considering the whole package including the strength of the prior art and what's you know what's missing from the objective in addition evidence that we quite credit some of it like the copying and some amount of success tied to to your method but the whole we don't think it changes what we would otherwise conclude from looking at the internet as as we argued we don't think the board properly credit and if you look at it with the industry praise that packers plus received were stacked cracked where companies were saying hey look this put patrick's place on the map it became the darling of the industry it changed the industry it's hard to not tie that to the commercial success of topping but then it said even despite the numbers and in the hundreds of one million dollars that it couldn't really be a proper credit to commercial success and i would submit your honor a commercial success include it with the other secondary considerations that  with respect to there's an issue about whether actors plus or sorry rabbit completion should have got an opportunity to respond to the came in abbas paper and the mcclellan paper if you look at the final indecision of the board for example  pages fifty six dollars into fifty seven dollars when they're talking about the motivation that they believe was there to combine the references or why i want to be ordinary skill in the art would have looked to an open whole system the sites to those conclusions are the ca and mcclellan papers but those are not part of the invalidity grounds that whether from relied on in their petition we asked to be able to respond to those in the board deny us from being able to provide expert testimony on those references in addition to substantive issues with the records we think it was an abuse of discretion for the board and have considered those references not as supplementary supplemental evidences but they were the motivating references that the board looked at in their motivation to combine analysis we believe that was improper at minimum the use case should be remanded with instructions that we be allowed to to further brief the came in a bus and mcclellan papers  there's also in the in with respect to the the open hole references that weatherford relies on there seems to be sort of a slight ends in that we're not claiming that we invented fracturing in open hole wells what the claim is about is performing a multi stage fracturing procedure in an open hole in there seems to be this this this assumption that well if you knew how to  horizontal well then that means that it would been obvious to do multi stage wracking aside from the fact that nobody did it for spectators but it was not technically obvious to do that because of the zonal isolation problems for example that yost experienced it was is the how of how the well if you look at claim one of the seven the the claim one of the seven seventh's work and it talks about how you have the packers where the wellbore and your segments are isolated specifically says so the solid back body packers alongside each other sliding somebody said early in this argument you said acknowledged whatever the right term is that the equipment itself is  minutes or bottle mr wilson only two simple substitutions that were expressly disclosed in both comps and elsworth to achieve the claimed invention ground to started with thompson which is the entirety of the structural limitations of their claims in a single system the only thing that was performing the method disclosed in thompson you know the whole and as your honour's pointed out earlier appellants own expert admitted the using castell tools and open hole was known and obvious and could not be a basis for patentability we course some maybe even many tools used in the cemented holes can be used in one summit holes but i didn't i think when i i remembering i guess and tell me if i'm wrong when i went and looked at tool which nobody had really thought to use in the on cemented hole so we should do that i don't recall exactly whether it says what what your honor is asking how or what it does say is that honor that's the only part of the thompson apparatus that cares whether it's in a case total or open hole because the only part of the apparatus that actually touches the ball so that was the only issue the only issue is can you have some solid body packers that are in thompson in open hole ellsworth says you can and you can use them for stimulation and their experts tell its own experts admitted that yes it was known to use the solid body in it in open hole so that's really the only issue in getting it's incorrect because the six hundred and thirty four thousand five hundred and five claims are not limited to fracturing and counsel for appellants admitted before the born that their case is much weaker in that respect especially when it comes to the secondary consideration evidence and you'll find same in case told in open hole and in fact open hole is preferred in that regard so it was rebuttal evidence so i think i've spoke about motivation to combine i be the words findings of motivation of mine are supported by substantial evidence they're expressly disclosed in the references as i discussed moving on to the secondary considerations the board found no commercial success they found no long felt but there was a modicum of evidence of industry praise and copy and that that evidence was outweighed by what the board termed the elements of the claims being readily discussed and applied in a variety of oil and gas industry prior  case sorry i think yes you're right it's no problem so but i believe the board's opinion was supported by substantial evidence and here's why if you look at there are three aspects to their commercial success argument st was packers boss sales claims or method claims require use in a horizontal open hole well what you have failed to do is show us how much of those sales were performed in a horizontal open hole well those tools can be used in case till they can be used in vertical well it was your burden to show the use of those tools they failed to present any evidence of that use the same is true of the baker hughes sales data that they provided which is far weaker and they had no weatherford sales data on top of that the baker hughes sales data and weatherford sales data really have no use at all if your use was a number of frac sleeves and weatherford was a percentage of open hole completions that the board said you provided no evidence of finding here so i submit that the board's findings on commercial successors supported by substantial evidence are on that last point the board did not rule that swell packers win cannot be a type of solid body factor in the claim construction section of the final round decision of the board said is that there is an agreement between the parties that solid body packers don't cover all aspect to the combination is not even about hydraulic fracturing it's about making sure water in one zone doesn't get into another zone when you're actually recovering oil and gas from the well it's not about fracturing at all so and mcclellan papers the board did just cite to those papers were motivation and in there is a question of the level of orders given the yard i just looked at it it's on page forty six where they say it would with respect to the commercial success of the exhibit the documents we cited for industry prey specifically talk about stack crack being used in a horizontal well that's what made stack