independently provides a basis for reversal the common thread is the failure of the board to explain the reasoning behind it its conclusions on the three different issues the first issue teaching await the board simply said that the prior art reference variables are effective for a glom rate them all into one optimizing result or they variously referred to polishing rate polishing uniformity life of the past but that's not appropriate analysis for results affect a variable not commercial success this is an issue that does not take a backseat because the evidence that applied materials put together made a perfect apples to apples comparison which is what the fork requires the board actually use that apples nature of the so called learning arrangement it's not a time right i mean this is the notion that if you've got the machine will you it's preferable or if there's some sort of a warranty of performance you better explained what i was worried was that there was something in the nature of the it's not another saying that the client was engaged in a trust behavior but something that serves as a whiff of the same thing so that the person that buys the machines i don't really have a whole lot of choice dress your question then also why it matters to the question it's not a requirement it is that the machine that applied will back to the specifications of the machine what work as it's advertised to work if you use one of the g these two pads the all have the there is other pads that don't have them and you could say well those pads could introduce all kinds of extra factors but they don't here because the two facts have we care about the path that i see ten hand which is our  buying the ten ten because my make cheap machine might not work if i don't use the i c one thousand had the exact same warranty so as between those two pads we backed up the ip one thousand also understand i understand either either and you could continue to use either w but i mean you've got as you say a newer model i mean my car gets me to work just as well as a brand new version of my car but my wife might prefer that i have a brand new version for nothing i mean to do with patents or in the else i didn't see some really phenomenal improvement that is involved in the end so two answers to that first off the the customers would not pay twice as much if it wasn't a better  is this is a car where you're trying to get something better these are people trying to make money making chips and we isolated a second well we isolated out any other factors or at least the board did not identify any other and i don't see i don't know about the evidence as we are not certain that this is in the title an if you take a how much there's the pad contributed to the cost of a chip ok we can have that debate but we never had that debate below i think is the best answer to that one the administrative review you have to review what the board held the board just threw away the comparison between the ip one thousand and the i c ten ten completely we were you know more than willing to have that debate but we've never it's never been set up a low let's turn to the other egyptians almost most of your time so the  teach in a way i think is the second cleanest issue we have a statement in in the prior out and first of all let me set up perforations versus groups that's the difference between the prior art and the prior to the prior art so  shallow root as to drugs and what they're saying is as i as i read that represent seven seven seven s to say you know there's a difference between a lake in our room and lace you know can get stagnant of  and that's you know better for dealing with a slurry than a lake that doesn't have an exit once you have a bigger river or if you increase the size of your river aren't you going to achieve more of what  the reverence was trying to teach us to do so the problem with that is you can infer that they're talking about the flowing river but they never say that explicitly they never bring out the flowing first of state explicitly but they bring out the shallower explicitly so if anything they more suggest the depth of the river than the flowing of the river and it's the depth that we care about they explicitly talk about the depth of the river the board took that completely out and sit and read it out of what we do with the standard  opinion the distinction in that reference is the lake versus river not the depth and that's just wrong on the face of the document we're not having a debate about how somebody with with with a degree in this part appropriate would read that they just took the words out a way can be applied in this case the patent office is contending that the particular dimensions of the variations in the dimensions are simply too results oriented variables  you countered that by saying well but yes it produces unexpected results what evidence of unexpected results is here so i don't think that i think primarily our position is is like is like anthony and that's our main argument is we've got many results we have at least three probably five they focus on three of the results there's five that were in the record and we have three different variables and they never say what result in particular the and so our complaint is that they haven't identified the result but certainly the prior art suggests that there are ranges and that there are variables and certainly suggests that there's nothing particularly critical other than the factors discussed about the flexibility and the sickness and all of that i mean it seems to be a fair reading of the prior art references is that there is a lot of flexibility in the person of ordinary skill in the art from the different references that you know different dimensions can be selected as a matter of design choice but i think expressed at that level that in randi that you have a lot of different things you can vary to get a lot of different goals and that's not enough when you have what the patent office has to do to make a climb of educators identify that goal that you're reaching they identified a goal for death but if you look through the record if you look for the briefing there's no identification on what the goal was in dublin the where and in fact our evidence shows that you would have been motivated away from an increase in the web because of what you said the plan or regulation and the flexibility of reserve the r this plane and that before we know that from well the primary reference which teaches us those in the art were concerned with slurry distribution people understood that improving your slurry distribution improve the performance of the machine welling tells us i improve that by moving away from for phrases into the groups after that you see brave global until a building on that teaching saying got it let's tweak around let's play with the group dimensions let me try sizing up and by sizing them for me the rejection people in the are understood the relationship between the group dimensions and that performance indeed that's what the art was playing around with trying to reach that optimal goal means fundamentally what apply material seems to be saying is and let the art teaches the specific call the relationship between the dimensions and the result that could be no obviousness but there's no requirement in the law for that fundamentally that that's an enabling argument as some level and more to the point those relationships aren't all that's claims here are basic group dimensions dimensions that are in the art dimensions that were known to be partisan for groups that were known to the arson to produce results that the r s and understood would be achieved perhaps emblematic or represented no better by the death path life which of course post haste that's all we know of this ng actually improved upon if you look at the huey article that they cited in their blue brief for unexpected results the only thing that he says and i is it makes a difference and there's nothing in the prior art to say this is what you need to do to make a difference then how can we say that it suggested we might say it's true no difference so don't bother us which you can't really say can  to whether it's viewed as better because of this customer preference or not but accepting that this customer preference to pay twice as much because the result is better  honour's is going to if if we think about what the inference we're trying to draw from evidence of commercial success it's it's the inference that there's this goal line waiting to be mined out there and so many have come along and mind it correct and people are paying money for this because what we've produced to so much better and would not have been appreciated by those in the art less they would have done it the problem is as the board explained to fall one you've got that best known methods practice which is fundamental to under commercially successful because when you use and this is some other reason which hasn't come out well you're only referring i think to like the democratic decision it or cope with that is a rule of law that applies only in the litigation context this cour inference that we're trying to draw from the commercial success even if you take everything that gone these declaration says at face value there are still fundamental flaws in it to reach the conclusion that that evidence demonstrates nonobvious this is what the board explain we can't ignore for example the best known methods practice if you look at all on each declaration on that subject which is paragraph seven of his declaration at five zero two one thing that needs to be explained there's the sort of premise that the one thousand pa ten ten pattern on equal footing with results with respect to the best methods before and he doesn't actually say that he says that quote a number of beach am's are available to customers to select from to use with their particular type of machine a paragraph  says guaranteeing the performance of their polishing pads that one of the appropriate became amps released by applied can be used there's this implication that somebody can to apply this machine something camps will part of this machine but it very well may be likely based on this record an individual can't use the ten ten for his machine there very well may be some machines for which you could use either but fundamental to their point is that you must strip away the best no methods practice because that those two paths are an equal footing well bonnie does not say that even if you accept that they're on equal footing with respect to the best new methods practice they're still a problem on that score because while connie makes clear that the b camp specifies more than just the pageant must you if you look at the second sentence of paragraph seventy five zero two he said quote a b t m provides polishing parameters and describes consumables for use with a machine such as flurry type revolution speed conditioning time polishing pad manufacturing partner membrane pressure retaining ring pressure all of these things that have nothing to do with the past so for all we know consumers are gravitating to a particular b can because they like the slurry and the pad comes for the ride they say i really want to use this flurry i'm going to use  am i have to use the tense and that's why i could care less that is fundamental to the nexus between why consumers are purchasing the path and why we want to divine from that some kind of evidence of nanami do we know do we know what the difference in the performance is between the two thousand and ten when all we know between those events are the ones is what i call connie says at paragraph ten on five o three he says it has about one point three to one point six times the lifetime sense would that for example if that's our only benefit the lifetime of the pad which we know from the specification divide derives from the death of the groups that's a common sense result the examiner explained as much if i have a tire and i make my more for something that's going to last through and again i think there's two considerations there even leaving aside what i just explained the first one namely that that result would seem to be self evident to the artist and the second problem is that gets to the point of the market share which was the second flaw that the board pointed out in relying on this evidence to demonstrate the idea then would be full of people you know if you look at their numbers i can see they're very large the magnitude of the ten cent has sixty to eighty percent share but  what not of the pad market for all machines but simply the pad market for their machine which even accepting there isn't any better and nobody buys it because it's better to whatever where prayer does it say that you won't get whatever performance is presented here by making this kind of change well for example on the deaf the examiner found depth the teaching of the changes that were made in order to produce the desired will for example if you look at me mr greg says and common sense  imprecision render that evidence over to what the problem the board was explaining any jammer explained as well as it's not so much that it was presented as a range the problem is it's not based on any actual sales because of course this course law councils that rip the share in the market is actually little more potent than just sheer dollars so it's not the fact that it's presented in a range the problem is fundamentally it's not based on any sales data it's based on conversation which perhaps explains why  epresented and unfairly dismissed the quality of the share of this part of provided by appellant you're not persuaded it is quote the fact appellants emission that is the does not have exact sales information regarding the market share of the ten ten pet highlights underscores the deficiencies in the pellets evidence of commercial success given the absence of that information they conclude at the bottom of that page we decline appellants invitation to construe the vague twenty percent ranges present present in this record as being sufficient to define the market activity occurs before applied materials comes to ask for their pet and it's the collective teaching of this art that speaks to the obviousness question but i do apologize right chronological teach that if you make it wider it improves performance nobody teaches anything about performance and with bribable teaches this cusses the pitch and what effect that might have but nobody discusses what effect the with will perform on the on the the commercial success issue the big bottom line issue is we've got two pads that are competing against each other the argument that you heard today about what would be in that declaration or what was not was never made by the examiner was never made by the board we welcomed the day that we can to deal with that argument but this is an appeal from an administrative proceeding and it's not a day to make up arguments that the board never made they just dismissed that evidence out of hand the part of the ranges go if you actually read page twenty nine of the opinion they didn't they did not doubt our data because it came not from actual sales or so on their problem was it wasn't specific and it was vague twenty percent range and to pick up on a word you use judgment i would say that what they're doing is same because their evidence was imprecise it must have been inaccurate and there's a distinction between that there's no question whether our evidence was accurate or not and so the right result for them to do was to take the bottom end of the range or they could i mean they can question the accuracy if they want to but they never did question the accuracy of the question to pursue jand they never question whether forty percent fifty percent or sixty percent at the bottom end of our three ranges of sales were accurate or not and so it was we submit that they had no basis to question it just because we gave it a range they decided nothing to say that ranges are inherently suspect  on that obviously you know even if you could lock them up the in some way the commissioner still can do commission or in two or three example no i don't think there's any way to order the branch but we can deal with their rules on remand and we're more than happy to do to deal with any of the issues that were raised for the first time today on a record where we can put our case down but we are going in is that the board did not give us an option to do that the board conclusion the commission or the director today  that the the results are getting better i think the that the patent bar deserves to get explanations from the board i don't think this court should be required to fill in what's missing from what the board did i thought that the the  what the board got in serco came with a responsibility this court explained it get her and we and that responsibility is to explain the rationale for their holding and not to have it filled in by by the by the solicitor's office or by the court so we