were the way to determine the level of skill in the art rather than resolving the level of ordinary skill in new york or instead searched for a person capable of producing the article recited in the claim from the teachings of the cited references and deemed that that individual was the person of ordinary skill and accordingly found claim obvious you know fact your hono examined the question not whether the invention would have been obvious to the person of ordinary skill but whether it would have been so to somebody standing in the shoes of the man or well if even if we agree with you with respect to the error of the board the board says there is no persuasive evidence i mean it's a really really reading i'm sorry this is just below the middle of the page a paragraph begins based on the evidence sure thank you there is no persuasive evidence that installation technician or manager of a health club of having all the teachings of the references before him or her would have had the skills to produce a structure defined by the client that was the pattern owner's point in the case that the person of ordinary skill could not have found arrived at the subject matter which i didn't claim that the person would not have found the claim obvious i guess as i understand but before it it was there  whole skilled artisans from tucson one was somebody that's an engineer familiar with electro mechanical locks with a certain amount of experience and then in your side  a manager of a health club gym technician as well technician as well and then ultimately between those two choices the board  the skilled artisan that's and and then went ahead and said ok the health club manager or technician wouldn't have been able to make this invention correct but if if we agree with the board that between the two choices of who should be the hypothetical skilled artist that the engineer with experience with electro mechanical l is the right frame of reference over the health club manager slash technician then i think you know that resolves this aspect of the board's decision that you know then there is no reversible error well your honor just because you get to the same answer doesn't mean that it excuses the the manner in which the board got there because the selection of the person of ordinary skill also appropriated the rest for their opinion it affected the very part that they considered right but what is wrong with with prefer an engineer who has experience electro mechanical locks over the health club manager as being the hypothetical one of ordinary skill in this arc well it becomes a question of substantial evidence at that point your honor and i agree the board can make a decision about work puts it in fact we were not even supposed to construe claims until we understand who the person of ordinary skill is because you construe the claims from that person's scheme point so it is the question that has to be answered now this were anticipation i agree with you because of the references to teach what claimed the inquiry is done but we can't just get over the idea of you know yes it's not nuclear physics and judge larry your reading of the record not with the references taught but whether there is a motivation to combine i think that's part of the analysis your honor i i don't think there's a basic dispute about what the content of the pick an engineer with experience with electro mechanical locks rather than a health club manager for an invention related to electro mechanical locks it was wrong your honor because they applied hindsight and they looked for the person that would satisfy the obviousness test and does that individual the person of ordinary skill rather than doing it correctly and first determining the person of ordinary skill and asking whether that person would have found the invention obvious that is the fundamental error that the board committed they approached the question in reverse they asked who we need to make it obvious and once they found that person well the answer wrong saying that for this type of claimed invention this kind of technology one of ordinary skill in this are as an engineer with experience with electro mechanical locks then you lose because or you have other arguments we have other arguments your honor and they are addressed in our papers the first goes to the motivation issue the chief judge prose addressed and that is the question is not really whether a person of ordinary skill would be the engineer or a technician now whether that person presented with these references that the petitioner found would have found the claim obvious it would be even selected those references in the first instance this is the w b i p koehler case started by this court and judge moore writing for the court tells us that the real question is whether the skilled artisan would have plucked one reference out of the sea of prior or in combined with another to address some  first comment that was made is that august large describes a high security sake and then on the very next page thanks to seventy three the first full paragraph a person of ordinary skill would not have considered the art of high security safes so there was no waiver of any argument the argument was made explicit that all this was not something that would have been considered and then acting in a third where you said you c more than just because california but some are definitely not for you are it doesn't mean material are no it means exactly what it says you mean that your idea that it and even if you conclude that others who are would have been properly considered your honor there still the question of the objective factors that the board apparently disregarded the board apparently believed that the part of the claim that was directed to the electronic key waiter was somehow not that which provided a manager access board indicates that there was on page twenty eight of their opinion in the second though the first full paragraph there's insufficient nexus between claim for and the features that lead to commercial success but that's simply not the case because the very feature that allowed for the commercial success that allowed for the manager access and programming was that electronic key card reader that was in his ad could stand the claim doesn't itself recite anything about the ability to reprogram who work if i could i'd like to start with this some commercial success point and judge chen i think is exactly right there's nothing in the claim about reprogramming it and i think it's important to understand what this reprogramming key you know open the lock the reprogramming starts by putting in a programming key and the lock writes data onto that key a new manager code is written to the to the keith so you need a key writer in order to perform this step then you take the program can go to the next block you plug it in and reprogram you're not using it as an identification you're using it to reprogram and  as correct there's none of there's no discussion of any of this in the patent discussion of of how you would put in the manager's code there is a discussion saying you can delete it says you can do that if a manager leaves you can do to leave their code there's nothing about how you would program the code how you would reprogram certainly nothing talking about the lock writing data on to some programming queue simply not there and so that the board's decision that disagreed that the board looked at this backwards or did not look at the at the order the board doesn't say ok we need to have played the person of ordinary skill with the benefit but the board does it says  are the relevant factors we need to consider that he quotes case law saying relevant factors and this is now we're going to work through some factors to try to figure this out it starts by looking at the claim language and the speci the claim languages for those things like a microcontroller computer chip the suspect cation has similar technical discussions talks about optical sensors pen itself technical sophistication understanding of technology and engineering if then moves on to consider testimony by s p i as corporate representative witness was advocate who says when asked what level  of expertise would you need in order to build the lock if if you were given the one eighty patent she says well you'd need a cannibal expertise and you'd need electronic expertise the board works through all of that and finally in the paragraph the council voted it where it says on the other hand there's no evidence that a health club manager could make this lock with that with the court saying there was a lot of debate in the oral argument this i by i understand this is the court saying on the one hand petitioners provided a bunch of evidence and we see a lot of evidence in the record on the other hand there's no evidence that health club manager could take the patent the written description understand it and practice the claimed invention so the decision here is supported by substantial it's certainly the contrary position is not  and finally i think the court understands the point about us while we do believe that that there any argument that one of skill in the art would not have considered it waived its material their repeated statements that its relative prior art but more than that your honors the one eighty patent itself begins by saying column one of the very first lines as this invention relates to electronic locks lockers saves cabinets so the one eighty pattern itself suggests that obvious wara is within the same field certainly it's addressing the same problem which is allowing someone to put in a temporary code through a keypad to access lock and then also providing some alternative means of accessing your honour's unless you have questions the idea see the rest of my time thank you your honour's there was no debate about whether the ph ngs of the patent would allow the technician to produce the invention fact the board says that there's no persuasive evidence that the technician or the health club manager having the teachings of the references before him or her would have had the skills to produce structure defined by the claim that was the question board was investigating and letting the test for obviousness which that goes to define  inquiry into the level of skill is always going to produce whatever level of skill is necessary to find the claim obvious it's simply applied hindsight and when defining the level of skill we do not proceed in that reverse fashion we perceive pro spectacles as to the factors that were considered we indicate in our papers that yes sometimes this court has said education of the inventor is an appropriate thing to look at but that's not what the board looked at the board looked at the skill of the inventor again on page twenty two of their opinion simba ten ten one of the primary inventors other patents relied upon by petitioner demonstrates a knowledge of electrical and mechanical engineering principles this suggests a level of skill that involves intimate familiarity with technology in engineering they were commenting on the inventors level of skill and that's not appropriate i'm your honor as to the objective criteria the nexus was shown very feature that allows for the manager access the reprogramming his were cited in the