i'd like to begin by addressing ford's findings on anticipation space the board's finding that the one structure if it were located within twenty meters of the seabed could reach the seabed  is in fact the findings of anticipation in this case it is because these are apparatus claims where we think the the board went wrong was its continued analysis where it falls of line unfounded deficient because within twenty meters of the seabed main arguments about implicit disclosure did you ever present evidence specific evidence and we presented evidence of that we had testimony from robert chapman i believe that's mentioned in the machines it did and it did because it found that there really wasn't a teaching that you could lower the tubular to the seabed from the second drawing horse of one and if one doesn't say locate this within twenty meters of the seabed you know it's still anticipate because it's a claim to use just like in right schreiber the popcorn container lid that was issue there you know that the prior art post showed it on an oil can there was no mention in the prior art that hey you could also use this was only known that one was ever used and in these shallower waters within the twenty meters the owner i don't believe that i mean this is anticipation of actual finding about what the reference to school misses and the learn to read it one way you want to read it the other way but it seems just as likely or maybe not just as likely that possible that one was never used in shallow waters within twenty meters and that's the case they would insist a right well i would disagree with that your honor i mean it's not the point that one ever had to menus been twenty maybe it was never used in twenty metres of water the point is it was capable of being used a derek's where the first draw works second draw works and a transfer mechanism that's struck that is i want to see that i understand you don't want us to find the see that it is kind of having any possible lately if we disagree with you on that then one house to explicitly show that he could go to the sea or house to be inherent in mine and and it doesn't explicitly show that i think you agree with that and i think you your argument is that it has to inherently do that if it's placed within twenty metres and we don't need ever know it really could be placed within twenty meters it has to be inherently capable of doing that and there's no reason why the lung structure couldn't be placed within twenty meters that was never challenge to for some strange reason you couldn't mounted twenty meters from the seabed the board in this case found that if lund were placed within twenty meters it could reach the would we would probably agree with the board's analysis but here there's no doubt this is this can go twenty meters below the dac if it were twenty meters from the seabed it could reach the seabed it doesn't matter don't know that we ever argued that it would in french your honor the ground possible and it would be possible to infringe yes well but that there is no dispute one day should be for the patents and sue right right so it couldn't possibly so with that let me let me turn are there any further questions on anticipation we just think that it was the court kind of confused method claim versus an apparatus claim when it analyse analyze this this case that wasn't present in the in the other transocean case discussing secondary considerations that's it twenty six of the red briefs do you can test that the p to have in this case consider whether they considered it or gave it a great deal weight that evidence was sort of presented just as if there was no expert testimony there's no sponsoring witnesses nothing like that it was just simply a list of documents that were provided by trans ocean the dippy tab decision focus on certain documents that i guess it found more relevant than others and as to that list of documents which are referring to i really don't know exactly what the grounds i don't believe so you overwhelming here and it can't be outweighed by any amount of secondary considerations of this case i mean it's not really in dispute that these are all familiar elements but there are symbols unknown methods that the now i disagree with that i think they're much weaker here than they were in transition to much weaker because well for one thing in trans ocean two they presented the patent to the plaintiff presented seven categories of secondary considerations in this case they presented many of the same categories but here they were rejected and the probably the biggest one is their expert witnesses and trans ocean to the jury heard from two expert witnesses dealing with commercial success on things like increased day rates and things like this all of that evidence was rejected when it was submitted here in this case the board specifically found that trans i think that what happened here was that if you look at the evidence for what you're suggesting whether there was industry skepticism here there was no good one point nine thirty  specifically i don't have that in front of me on where what specific ip are you referring to and you know your honor that's a good point and the next time i'll make sure that i have a friend but i do know the argument what you're talking about and the problem with efficiency arguments in this case is there was no expert testimony  market share you know there's just simply say that you have five million in sales doesn't say anything for secondary consideration for mrs there's case law that we cited in our brief that in order to have it you've see commercial success we don't have any evidence that they were built with the pipe transfer mechanism there were certainly dual rig designs and we believe that they must have had some way of transferring pipes of force but whether they were commercially sest successful or not you know we think that they they were successful for example we presented evidence in here of the chevron as fifty nine rig that was an actual rig that was used in the industry and it goes back to the one nine hundred sixty s and it had the dual drilling capability now it doesn't specifically show in the reference that we have that had the pipe transfer means but there's no reason to think of an actual rig that was existing in in use from the one nine hundred sixty s was not commercially successful we don't think the board had sufficient evidence in front of it to make findings as to the commercial success of of these rigs and they exist drop for suspended above another level of equipment where the wellhead and other quickly would be and then suspended above the sea by an air gap there is no testimony or evidence of in the wind situation of what that knowing that beyond that there is none within line to lend itself no no it was erected on how far your work happens to be extremes can be lowered beyond that twenty there is discussion generally that are operating in opp shore which means typically an offshore if you have something that is used with drilling it not only needs to go through that air gap and through the waters which are usually hundreds or thousands of feet but then it goes into the well itself typically go down thousands of feet into the earth and so the cats capabilities between a drilling draw works and a preparation horse are known in the industry it was the reason why i learned described the two differently is different difference by capabilities and even when you look at the drawings and wind the drilling draw works is much larger than the drawbacks used for the preparation has a structural difference in the in the fully described it in this situation it's not necessary for this court to reach a conclusion one way or the other on that issue too from the decision below from the decision or is able to look at the entire record and that's one thing that seadrill would have this court focus on just the facts that were found by the board as supporting non obviousness but in a substantial review substantial review for substantial difference is that will first triborough with respect to intended use of capability usually intended use is directed towards the invention as a whole not necessarily an element that we're focused on  here in a combination the question is really is whether to see that as a functional limitation the structure that made the claims here and this gets the difference between which claim is representative man claims here means plus function which  so again it is a functional limitation that will help define the structure that is one of the differences between that and try for another difference is another factual issue that this board may rely on and was used by the board to distinguish lined from the present invention and that is the intervening structure a point that's hardly raised hardly mentioned in the briefing by seadrill and wasn't were addressed here today as evidence was presented by transitions in its very first analysis on page twenty six and twenty seven it goes through and talks about how normal provided evidence regarding structures that are above the water that would prevent it from going down to the to the to the water much less the seabed and based upon that if found that wondrous describing interference with structures above the waterline pays this isn't well this isn't here it's a case but it is incumbent upon seadrill to be able to prove to convince the board that the preparation voice in the wind would necessarily reach has never explained how that inner being structure would be avoided and has a provide any examples or evidence to that so the board was left with the only evidence before it of intervening structure that would prevent it from s why can't even if we are secondary consideration we find that this is obvious is about our lot because these are really two very close strong references that disclose every single thing that it's not a five or six reference case you don't need to come up with ordinary creativity to combine them or reach out to things if everything is in them and they're from the same exact fear i mean why doesn't that need a preponderance standard of showing  know and that's what i mean if we don't how to upset the board findings of commercial success and the like we can accept them but we can still determine that this is such a strong prima facie case of obvious that even accepting this secondary evidence doesn't overcome it and given the strength of these references and the minimal and vance over the prior are made by this patent why isn't it just o is stronger than the weight of the previous caution case and so that is and issue that the court looks at for substantial evidence to support and the burden of proof do not effect well i'm not sure that i agree with that i mean i think you're this obvious based upon the references alone let me that be so obvious that you could have made hundreds of millions of dollars which clearly isn't in the record but still advance with so minimal that my question which is i accept the board's findings on commercial success you can amplify them i don't think they're particularly strong findings i don't think there's particularly strong evidence of commercial success but set that aside i think assume it's the best commercial success that's secondary considerations we've ever seen and even if that's true if the references the two references are so close and it and the advance over the prior art is so not and that conceding the prima fascia case is strong and that's not an argument that's been made by c drive well it's been shown by seadrill here there were arguments follow to indicate that why it wasn't strong but when you kind of slip through th language but in that case similar to this where you have facts findings that have to be assumed from the decision below it makes it very difficult to overturn it as a matter of law there may be the case that this is not the case it certainly is the case is much easier to do when there are not as many or as significant a secondary considerations in case when it case like this as as in the trans ocean to case noted it's very rare that we have a record with this extensive evidence of non obviousness of the records a little different the board throughout most of the evidence that you rely on  reviewing an agency decision you look at not only the facts relied on by the board but the entire record so the record before this court includes those facts that the board relied upon by the board and that provides additional evidence is for can rely upon granted the evidence that was cited by the board is more than that to the firm the decision we have competitors in turtle memos that are praising either the time it directly to the patents for the commercial embodiment with the directive the feature that the record indicates is shorthand at least in the context of these memos to the invention and praising it giving it value indicating it's a must have feature that must be incorporated because of customer demand that is the essence of objective evidence of non obviousness and based upon that here that to the seabed function is purely functional it doesn't change the structure of the draw works first as counsel pointed out that yes some of these claims are means put function format and then means post such a format that means it's still claiming a structure and what the court with the board found was that that structure was a drop box simply put the draw ours and that claim constructions are not on challenge in this appeal the second preparation of waste which is what is called in loans has a draw or so draw works as a draw works that's an anticipatory structure so even if we give way to the to the seabed stuff if you put that structure within twenty meters of the seabed then you could reach the seabed arguments about things like air gaps there's no air gaps in the claims council said you have to look at the claim as a whole the invasion as a whole well eventually the hole is essentially their first or second drawer to transfer means arranged on a drill for that's the invention as a whole that invention as a whole is described in one and you could certainly located in a location where