hopelessly obvious and we're not going to grant the patent on it and here's where they went wrong one of the three analyses based on the graham protocol the prior our differences level skill in the our rationale for combining the references to prove something is obvious this is evidence based there is evidence in this case and there's plenty of case law that says that that must be evidence based the and do it versus denizen case the xover says the united states international trade commission case and finally this court case that says you can't reach the conclusion that some combination is just common sense unless you go through the evidence on the way this case this decision and that's course on that score was the year and the versus simpson case two thousand and sixteen both the examiner and the board have departed from a proper been looked at says that the this is a combination claim that's correct involves of golf course again i'm sorry no go put a golf cart with certain structural features correct and then a personal topanga adapted with points for the strap must be at the top rear of the bag and the distance between them must match the distance between or closely match the distance between the anchor points of the seat though that structural limitation is found those structural limitations are clearly found in every claim on appeal and the result of that match is this the to killer arrangement of the tote bag on the golf cart now where did so you're focusing on even though it's a combination claim you're focusing on the need features of the total bag that would allow the combination to be be made mrs work did not invent the golf cart did not invent the seat side assistant will she took it the way she found it she design total bag how to perform a search function in combination with that seaside assist and it's correct now the board came to the conclusion that there was no structural limitation there was no departure in the design of the tote bag from the per hour at all or did he modification whatsoever to the known prior art the shoulder strap carry bag of ammerman they didn't stop there because the sentence continues without punctuation with  the sole possible exception of the spacing between the attachment points for the carry strap which we consider at that to be a matter of routine to musicians so they went to the exact point of the certain novelty in the structure and the necessity for that exact point of novelty to match the distance between the anchor points of the seat side assistant on the golf course and brushed it off described as only a possible exception to the proposition that she made no modification whatsoever to the tote bag when in fact she did and then further down they said that because of this this is simply a new use of an old device when the pattern simply arranges old elements with each performing the same functions have been known to perform then it's obvious under k s r but it's not an old device it is a new device that specifically designed for a certain new performance and if you don't have that specific design change the new performance doesn't work so they simply brushed off incorrectly with frankly doubletalk about the key points of novelty in the road and how to fit the golf cart though the second failure that they made was relying on common sense basically they said you despite the fact that the examiner reconstructed the invention from a string of up to six references in eleven different ways in the references are all over the road there in the field of golf they're in the field can carry bags for computers they're in the all sorts of different fields examiner never again if i had the relevant are never again a fight a person of ordinary skill in the are just went on and said i can reconstruct the invention by picking this element from this baton this element from this pattern this element from another pad and finally coming out with a poll for patton that show your seat side assist handles and the is but look at her look at all the things that are wrong with hard the handles go across it's first of all it's an open top trash bag it's not it's got it's got nothing to do with the game of golf board said the relevant art is the game of golf hearts bags got nothing to do with the game of golf it's not analogous are the handles are core they're not adjustable they go across the open top of the bag and it hangs on and arm that has only one a fair point it's got the cords and their distance between their attachment points are in the wrong place in the distance got nothing to point and does this totally irrelevant because prior ok here's where here's the second departure from the evidentiary based approach to the analysis of mrs works invention they said that once you have the top bag with a strap that's just full and once you have a golf cart with the seat side assist in the it's obvious to hang the tote bag on the handle that's common sense they said common sense but there any case which is which came f court in two thousand and sixteen says you've got to have an evidentiary base to have to make that conclusion well we want to we read the board as relying at least in part on the hard reference with the hanging the bag of trash bags armrest now that might not be a piece of evidence you agree with but it's more than the board merely relying on the two words common sense it's talking about common sense in the context of recognizing that it was known in the yard to hang bags off of the vehicle armrest some kind of bag and some kind of armrest but that really doesn't reach the claimed invention doesn't it doesn't get you all the way there but it's the point it gives you perhaps a rationale for in light of the background of inventions saying that it was well known that i was looking for a convenient places so equipment bags xander on it with a golf cart then and you know that you can hang bags off armrests why not try to use what we know from hard that you can it was known in the art to hang bags off armrest to perhaps a golf cart armrest here's why there is evidence in the case if you're going to reach common sense just say it's obvious or common sense to hang some on the seat side assist handle of a golf cart there is evidence in the case and we've got to go by that they have against the evidence is the fulford patent the board said remember ammerman and fall bird is all we need the art is the game of golf fulford is in the game of golf fulford tells us exactly what the seat side of the systemic is for number one it prevents somebody from sliding off the seat falling on the ground if the driver of the golf cart makes a sharp turn number two you can rest your elbow on it and number three a golfer who maybe isn't quite as young or spry as some of them are is going to use it to assist himself or herself getting in and out of the golf cart in never said to hang something  i've been playing golf for sixty six years i've never seen anyone hang anything on the seats side of the system in the little golf cart but you don't have to take my work for you gut fulford word for it and that's the evidence if the order is going to say this is an important reference that teaches seat side assist handles it's got to get to it to get to the commonsense element it's got to go through fulford and look for some suggestion in fulford that you hang things on and design things to dimensionally match the egg or points of this seed side of systemic it's not their teachings but there there's a in my view there's a prejudice in that office against simple inventions although we knew a long time ago with adam i have so maybe i pointed up with this there was a failure to the board's part in the examiner forward to give any credit whatsoever to mrs works declaration testimony with respect to the commercial success that she's enjoyed with him with her product and the testimonials that came from six golf pros now if the role of an art is the game of golf which i'm inclined to agree with let's ask ourselves who is the person of ordinary skill in the game of golf a sky that designs golf clubs is it a golf player this is a guy that designs balls or the pro who runs the pro shop that's the guy i think we have to look to we have the testimony of six pro shop golf cart or golf operators and they all said mrs works invention is the coolest thing they've ever seen and they've never seen anything else like it they brushed it off i have just one more thing to say but i'll you want to carry around why not attach to a golf course golf cart how do you get that out of the evidence as opposed to or or i guess examiner or the board members intuition well first clarify what the board used common sense for it and its opinion and on page nine it says no more than common sense is required to use a seat cytisus handle as a convenient place to loop concluded that setting those that that distance was routine optimization which i think is different and separate from the common sense that it is to combine the two references and so with the hard reference which is hanging all together i think those three references make a strong obviousness case and don't need to resort to common sense to to for the entire obviousness conclusion so does that answer a question perhaps can you go back to the routine optimization for the design of the bag having attachment points at certain places said was that somebody with ordinary skill could figure out how to adjust the strap so it fits that way i could but why would i guess is the question i guess they would so that it fits snugly on the handle so that it doesn't collapse around the board the board said essentially that having that bad as a reason to do with the artists and could do if only the artists and had a reason to do it let's say the board just just used the term optimum optimum range and because the claim is pretty bright it just it just requires marginally greater or equal to distance from the sustain or doesn't require anything about flapping around which is why were my words just a couple of additional comments maybe maybe a little analogy people with cargo that are walking up to a golf cart universally and put it in the bins that are merely behind the seats and between the seats in the golf bags they don't even think about hanging something on the seat side assist in will they follow mr fulford directions and understand that there are those three things to use for and that's all you don't hang something so that it lies in these claims it says that once upon the flat back of the coach bag lies against the side outside surface of the seat box of the golf cart so this piece of cargo carrying equipment is now outside of the outside of the physical parameters of the golf cart very very unusual non intuitive when indeed all golf cart manufacturers make cargo carrying the bins within the physical parameters of the golf car behind the seats i use it all the time reference certain mix of clubs usually the putter in the wedge because he argues those are the ones who use the most outside of and not the surly upside down the interior of the golf cited to talks about how you can use the strap for that smaller skinny container for golf clubs and you can hang that strap to all kinds of the attachment structures including the gulf  said as well as a golf cart and and so that's a a five ninety eight yeah but think so therefore necessarily if you imagine what that looks like you're you're looking at a container bag or maybe bags for the potters to be attached to the side of the golf cart but on the seat so the system go where the bottom of that gap bag would be on the ground i'm just responding to your point which was the novelty or alleged novelty of having some kind of bag hanging off the side of a cough car and davis tells us that at least to a certain degree that was already know i guess you whether or not a ball goes through the upgrade in the in the process of getting a field goal it's just a referee the ball goes through the forget the operates or it doesn't if it goes through there's a score and if it doesn't there's no score examiner and the board backed him up in this didn't play that role of a referee he adopted the role of being a member of the opposing team whose job was to