here they have a full morning of arguments before us we got five cases before the court this morning four of them are off for several arguments this morning one case possesses the necessary qualifications and before i pass the matter over to judge song i like to say that christie you know they say that time flies when you're having fun and i think in now say that time flies when you're working hard and if microsoft is passed here i think that it's the latter your work ethic cash shown itself in different ways and not only earn the respect of your peers but you've also had excellent work product i stand confident that standing before me is one of america's future leading practitioner's been a pleasure working list i won't go through all of theirs by different i know you disagree with any of them yes your honor and we started out in our brief and indeed what record evidence for well i think the most  we say and i quote no cited reference teaches a resilient cable as described and claimed in the two six eight patent connected to a company take so we started out by saying there's no reference describes the problem that has occurred and we do detail this in the break we go through each of these in fact one of the instances which is detail in the brief i think the quote from counsel is saying that there is a resilient member cable because it doesn't and in fact counsel has conceded that monroe itself is a newspaper article and what it does say in fact the only thing it says about the characteristics of the of the of the monofilament is that it i so thick and stiff that the only enough it would take would be big enough to tie up the small ship indicating that it doesn't have the required resiliency to be able to be you know to return to its original shape how does actually is the board's construction because what the board says is that it has to be resilient cable nobody is arguing that he didn't solve the stand off the neck problem that's not the issue here the issue here is whether it has the second key property and i'll explain that in a second but the the actual claim construction the board construes the resilient portion of resilient cable meaning having sufficient stiffness to maintain its shape not because that's not contested and to return to its original form after being bet now why is that important that's not a trivial distinction the board said that for a reason the reason is that even if it's somewhat resilient if it doesn't return to its original shape over time you can see what's to happen it's going to basically start to droop and it's not going to perform its function the other problem that been common at point is that you know if it doesn't have sufficient resiliency one of the principal applications for this is on sunglasses what's going to happen if you have spring back to a straight line you can't assume that in fact in the record so some himself says and gives an example in fact up it this so in a sworn declaration he says that two very famous fisherman using the monofilament extends rearward from the head and wearing the glasses but in the next paragraph he says quote other fishermen however did not like the eyewear retainer sticking out behind their heads so they rolled the monofilament line around something round such as a pencil to produce a coil and then attach the coil monofilament to their glasses to create a tight fitting retainer th gripped the back of the head that is exactly the opposite of what he's saying there is if you take the monofilament you wrap it around a pencil and it will hold its position it'll hold its shape you actually get a little bit of his ring and then you can little it will hold tightly to the back of the had clearly not the invention now the problem with that is that you have a lot of different you know in other words monofilament is not a monolith so to speak you know the record shows in fact the evidence submitted by the petitioner shows  filament let's run it through some tassel take some pictures and submit it of a given declaration you know and i think there's a reason for that so soon is very slippery he goes back and forth on the characteristics of this device and the principal legal error in this case is that board basically in fact that it follows this exact colloquy at the hearing the board basically was confused it didn't know exactly what property this happened didn't fulfill he claims claim limitation it has to its original shape so if you bend it you know it goes back it just goes like this i also you know i said earlier that if it's too stiff what's going to happen it's not going to perform its function because if you get in the car you know  we can't really argue the record at this point but you get it if you take that three hundred pound monofilament you strap that to the your glasses and you jump in a car and you have a headrest you don't knock your glasses off your face i mean three hundred pound monofilament i use it for shock to put to go you know fish for and and in fact that's what at the record record actually reflects that i mean that's what he's saying you know you you bend that you know around something and it's not going to come back it's basically going to hold its position but the point is is that the record is is isn't sufficient what we find an order to find obviousness you have to have at least some number of references that contains every element of the pattern and here's the only the absolutely the only thing the only piece of art that was advanced for the it's obvious that he doesn't number number of times it's a convenience you know he's going out on a fishing trip he lashes the stuff that was last as you know he probably takes it off at the end of the day he's not going to encounter the same kind of day to day use that this was this was intended to solve that's the whole point you know this is speculative you know we don't know what property this has based on the record and the board didn't know what we do have a vis or that's this  description he would conclude the monofilament is in the long game piece of resuming plastic right but we don't know what its properties are the property required by the claim is that when you bend it it returns to  original position plus this one statement which you want to read is the only thing in the record and it runs afoul of this court's you know law which basically says that you cannot rely on a mere conclusory statement in fact the here in the in the colloquy that the hearing where they were going back and forth about well does it actually satisfy this limitation and are you cancel for the petition petition or this is appendix monofilament does not have this property and one of the panel member says quote do we have any reason to believe that it would not return to its original shape if it is just like shown in monroe instead of bending in tight around the pencil well that shifts the burden you know is this court has indicated in the mag and the magnum oil tools case that cannot be it's not our obligation to show that the art does not have the required property is the petitioners obligation to show that it does and that's the fundamental nature of the improper about that question there is nothing improper there's nothing about there's nothing improper not saying it's an improper question what i'm saying is it indicates it's perfectly ok you know it's go show me on the record i would like to know ok well there is nothing in the record but what does show is that the court recognizes that hey you know it's uncertain whether this has the right property you know maybe you can help me out logically that you can do that and in fact that's another problem with with with with with this particular case in that the board simply doesn't explain what evidence it's relying on remember that that the things that you're referring to the deposition testimony form after being dead right and then you'll have i guess this sosa so soon you know the susan statement in ninety seven he says he stayed off my neck and three hundred pound can't that it or keep it down there it will pop right back but you still have it in line with returning to its original form after being that right but that statement goes one way which says it can't be banned and then in another statement he says it can't be bad if you're going to hit the nail on the head when you start off by talking about whether or not the concept of resilience was at issue in the proceedings below the question was not raised below and was greed to raise raised in the oral argument but there are all these sites here saying they'd knowledge it's resilient yes so it's not a question of the issue not being raised but apparently they're agreeing to your position i think it's both an honor i think that the reason why there was an extensive briefing and there was an extensive discussion in the board's final decision because the question of whether or not a man who was in fact a resilient cable was not raised until oral argument wasn't something that was an issue it just it didn't come up and we know that that's the case because as you say there are many times in which there was concessions expressed concessions about fact that monroe was in fact a resilient member and it makes sense because the definition as your honour's know it's a straightforward deposition when it's bent  aspect ok so on multiple occasions and as your honor indicated there are five separate times where the point was conceded in briefing below there was some argument about you know loose words from lawyers but the types of concessions are too specific and to direct in my view to fall into that category of of loose  particularly where it came as concedes that one row discloses a resilient member not a cable that's to fifty eight and then you have on top of all of that the actual evidence submitted bending it and it's it's trying so hard to go back to its original form that you have to use a not big enough to tie up small shit that suggests to a person of ordinary skill in the art resilience in fact that's what mr  declaration said more or less to express language what's the definition of a model filament equals a resilient cable then you have the express declaration and expression mr sosa mr sosa testified the three hundred the monofilament three hundred pound test model people like different things some people don't care if it hits their neck others do i did it that's why i came up with this to make sure it stayed off wind up and three hundred pound moto you can't bend it or keep it down there it will pop right back up you bend it it pops right back up he's not a patent lawyer he's not a lawyer at all he's a fisherman he's telling you what happens you bend it it pops back up that's the definition of resilience in layman's terms he says it again later when he's asked whether the three hundred pound test monofilament maintained its shape in different weather conditions he says oh yeah you can't if you take three hundred pound you can bend it and it's not right back to where it goes so even in adverse conditions you bend it it goes right back where it goes can you can you move on let's move on from the  the broad category simple substitution of one element in the prior art for another application of a known technique or piece of prior art ready for improvement and ultimately a predictable use of elements and prior art according to their established functions so what's the evidence this or justifies that one and skilled in the art would be motivated to combine monroe and mckay because you want to which because it's simpler would allow as he's testified as the connectors would allow users to easily attach the i where retainer to classes without having to beat them on to keep the monofilament and finish with a knot  other words it's user friendly if i take monroe and instead of making them wrap it up with fishing wire and tie a knot and heat it every time they want to put it on or off their glasses i use what exists to make a temple connectors a court basically that's not a model filament not the three hundred pound test so you'd substitute what was draping on the knack for a material that doesn't trayvon and i think that's resilient and i think stand straight was straight but what you don't have is user friendly temple connectors so you substitute case temple connectors for the temple connection of the row and you have an off the neck retainer where the rubber  i'm concerned with are the the forward actually really explicit findings or provide an explicit reason to combine the references so it appears to me that perhaps the they shipped a dead bird in order to cables your eyes but i don't believe they did i think i can help you with i think there are three express places where i believe the board identified its reasoning for the  motivation to combine and then the whole list of them which i would call corp by reference so in terms of the express motivations to combine the board for the indicators that a of ordinary skill in the art would know and understand that there was it was be a matter of simple substitution to switch materials commonly used and i where in the field of ai where that's specifically they say they state miller specific if you're say it's a appendix seventeen miller specifically discusses that in the field of eyewear is well known to use a variety of materials including but the court indicator the board indicates properly that in fact so often it already figured it out they state at appendix pages twenty one and twenty two we are persuaded that mr saltus device disclosed in monroe in the monroe reference solve the being in the way problem mr so since stated i don't like the light line that falls on my neck in the heat in his development the retainer never hangs up and never draped around his neck indeed it sticks straight outside his head at all times the glasses are worn later the board says given the concept of off the neck retainer was known in the prior art is not definitive which preferences the petitioner looked at in designing its own product twenty nine still elsewhere the board confirms the evidence that charms and proteins presented that in fact we're talking about a simple mechanical device and a simple substitution of materials is what the board said in the context of challenges to mr visitors statements that it was in fact a simple mechanical device and simple substitution or to state at pages twenty four and twenty five of the appendix that owner takes issue with mr fisher statements that the invention is simple and that only simple substitution is required we are not persuaded that research declaration is insufficient and vague based on the patent assertions i have a problem with with those statements because if you look at my room in and it's testimony cited and this is at twenty six and twenty seven in the appendix and mr make morons testimony it in essence is this is how we've always done it at cables since two thousand and two meeting we take nylon cord and use a bonding agent to bond the rubber connectors to my elongate member and what he goes on to say is all i did in this case was take the same bonding agent and a cable coated cable with the same bonding agent on it did the same process that i always did and it worked and and looking at that testimony the board said the evidence illustrates that the petitioner only required minimal experimentation and one set of y one in the in the appendix position or demonstrates that it could be done and in fact was done with minimal effort undermines potholders argument that it was somehow more than a simple substitution so so they went further they've they looked at the evidence of what actually happened and if it was in fact a simple substitution and that's what mr mclaren concluded and that again that's at twenty six and twenty seven of the appendix beyond all of the express motivations it's also possible to read incorporation by reference to arguments that charms made in its petition something proteus you can find that to at pages sixteen seventeen of the appendix where the court sorry where the board says we are persuaded by petitioners claimed that claim charts and arguments that the combination of references teaches temple retainers connected by a resilient cable or member its site goes on to cite pages thirty five through thirty seven and forty six through forty eight of the petition and in those pages supported by the declaration of mr visser and mr connector at the end instead of the floss that you know i was talking about to you it's more versatile because mckay discloses different places along the glasses where you can connect and three as we just discussed the methodology is well known in the industry so it also in those pages talks about the connection or the motivation to combine chism and monroe monroe of course not case you already have the rubber  connectors and what you're doing is trying to solve the off the neck problem and again relying on the declaration of visser in those in that context the problem is solved by sosa and the first of ordinary skill in the art would know that it was salt and would find it a petition is response we say that there is nothing in the record that shows the resilient cable you know as claimed in the patent there are at least two references one is in our brief and the other one is the one i just read you you want me to show the concern here problem actually was because after hearing it in fact most of the the the discussion surrounding this was revolved around in the ocean of a cable you know there was this debate in the claim construction of you know whether it was a cable or that was something else could it be resilient member claims obviously use both member and cable but they only talk about the specification the issue cable the reason for for a cable and the reason nobody uses mon filament in any of these devices is that a twisted wire cable actually has the proper qualities of being able to be deformed and come back to its original form and also hold it stiffness and not bounce the glasses off your head if you jump in  know well if it wasn't raised before oral argument although i will say that based on the position of his response i had enormous response it was in fact we didn't concede the point but you're right it wasn't race there's a distinction between conceding the point which i think clearly evidence shows that we didn't and having it is a major feature of the argument in the brief your honor is correct the briefing doesn't discuss this issue it clearly was discussed at the hearing and it wasn't waived because we said we the difficulty in this case is that the the evidence i think is ridiculous you cannot basically say that the evidence clearly shows that the the rove reference which is the only one that's that's that