go a lot of ministry to work on this are mostly trial about appeals this is interesting being here is first deal i've had so i appreciate the opportunity the applicant filed a patent application for a  it's it's a drain valve that has been in existence before many of the components have if you're familiar familiar with the drain valve it's connected to a pressurized system to periodically relieve pressure of war liquid from the system this particular drain valve also included the combined features of having a manually operated portion of a valve that could either manually relieve pressure or fluid therefore bypassing the automatic drain or isolate the drain valve for repairs and me do you  on appeal changed the factual basis for affirming it's imperfect court internode if you look at figure seven rasmussen prior to this appeal the rejection was always one hundred percent of the time based on the construction of valve body is everything to the right of the tank shown in figure seven and that the key tab the board said the sole issue that everybody agrees about is is the valve of seventeen a is that part of the valve body now on appeal the patent office says changed the factual support for that rejection and says no not not the valve above seventeen a but the patent office says there is a a seat and inlet seat in seventeen a i a hundred percent agree as we pointed out in our reply one hundred percent agree that seventeen a is part of  t and and the patent office is changed position to support the obviousness anticipation tells us that the previous rejection was not factually supported applying our construction which the patent office i believe agrees is appropriate  they've modified the factual basis to support the rejection just say there was something inside seventeen a that's never been said before and it's not stated in rasmussen and it wouldn't have a valve c but is it clear from the claims that in the state has to be in the findings with respect to the motivation from bombing rescues in france right no i don't your honor because i dispute the prima fasc existence of all the elements and it's based on the anticipation if let me let me address france first there was a rejection based on france that was abandoned because quite frankly it's just unsupportable and the patent office did the right thing and didn't pursue that argument france does not teach anything about a sensor having a signal that france and you add the inlet seat to rasmussen well first off as we as we somewhat discuss i'm not sure we argued very hard because it's probably not our best argument but it's a reality of how do you combine all that stuff you know these are simple mechanical invention certainly not near complicated what i've been listening to the last hour and a half but none the less they're difficult to get over obviousness rejections because the inventors didn't invent a valve seat didn't invent a valve body didn't invent members didn't invent a sensor what they invented is they had a vow the france valve that had been in existence in operation for fifty years and they say they discovered they identified they realize which is part of the invented process see this valve that has integrated operations actually creates it introduces operator error operators can now mis position this valve and we have problems so they said let's let's fix that so the first thing they did that's not obvious is they identified a problem the second thing is they figured out how to do it and that's where you know we say there is no prima fastly rejection because nobody's ever put a sensor inside a valve downstream of the in line with the rest of the limitations it's a hurdle that everybody bears and simple mechanical is all the elements are out there but we would say why would you pick something and put it in rescue use and which is a completely different drain valve by the way it's a float drain valve not the same thing is you know this are there all drain valves but when when when asked why wouldn't it be obvious well they're really sort of different  as a practical matter how would you put all this stuff from from france inside of rasmussen and by stuff i mean if you are going to add an inlet c to rescue use and you would only do that because you're going to add a valve member that moves in or out of engagement with the m let's see as you can see in figure seven or figure four which isn't large there's not a whole lot of real estate in there and i don't mean that you can't just build a bigger valve but there are a lot of practicalities that that it's difficult to address as saying eat when you're combining references you don't have to have all of the elements in each reference you know but pointed that's correct but i'm saying the element of a sensor located downstream of the inlet c neither of those references have it france doesn't have a sensor and rest reset has a sensor upstream of every in way of sort of stream of every seat it doesn't even have an emergency so so that you know it's difficult to say without saying it's hindsight a it's a close age to say that but once you add the inlet seat of france then you have the valve downstream of the downstream of the sea but i think that's that's and example of hindsight why would you put that in that seat from france there to get a valve down a sensor downstream of the inlet c you wouldn't there's there's no reason to do that and perhaps you know we could have could have argued that there was a motivation to combine but i'm more a fan of the discrete elements and in this case the the operator which in this environment it might be a railroad trains there are a mile long now you have an indication a mile away saying hey somebody has missed position that valve will go up there and look at that and that's a real improvement over france and it's please the court as my point and pointed out the claims are to an improvement over the franz valve of adding a pressure sensor between the two valves it would be look at what the ford did the board agreed with the examiner findings on appendix four and then the board address the specific issue of the rejection which is the positioning of the resin use and let's see the board found that these damn and i have the better position so in and affirming the examiner the board affirmed the examiners rejection you know if we look at the blue the final rejection on to seventy one the examiner lays out where   board found that they agreed with that analysis and then discussed the narrowed issue in the briefing which was the positioning of their eyes meeson and then for the obvious port seventeen essay and in fact as it is true the board didn't dispute that there was an in let's see if we turn to two fifty six no one  member so you control the flow so i don't i don't think there's an issue that there is like a typical valve that there would be a valve member a valve seat you know this drawing in seventy so your seven is a schematic combined with a specific drawing so i think it's not entirely clear exactly where the valve member is but it's clear there is no god i have all defined by the enlistee so all the valve body needs to do is contain an endless sea so based on the claim language and the specification language actually says if we look at forty in the seat in the seat is outside open above the belt body and well did the i mean it's not clear exactly where the seat would be but the valve body could include more than just can just housing can rust nice and the way the like i said the way the claim is written is very broad and it certainly leaves the possibility open that you would have a valve body which includes that valve as opposed to just the housing because nothing in the claim or specification limits that  pass the motivation to combine so that's the easiest way to get there the most simple way and no objection to the fact that france is the same   the softer softer issues are harder to argue those are those are clear subjective calls and in our position in any of these simple mechanical is there really hard to argue that it's not obvious in hindsight but the reality is this company's been making a valve for fifty years if it was obvious they would have done it a long time ago and i know there's some case law saying that's not an argument i don't understand that i think that is an argument of non obvious if i could have done it before i would have but the idea didn't come up the high just and these ideas don't just pop in you know it's sort of you're looking at customers saying hey we're having a problem you know identifying the problem is part of the non obviousness analysis finding out how to do it is really technically pretty cool to win a little power like this but identifying the problem is half of the battle so i i don't think we argued there's no motivation to combine you know directly but you know we've argued that i'm not sure you could do this stuff  still wouldn't work no your honor it even if you were motivated to combine them you're still missing the element of a sensor downstream of an inland sea france doesn't have it and rasmussen doesn't have it so where do you get to put a sensor downstream of an endless patent office is definitely arguing that on this appeal and it is not inherent it absolutely is not an error it's anti inherent there is no valid member and rasmussen why would you have a valid seat without a valid member i think a judge while it's question can you can you have  without an intimate i don't think so can you have an intimate seat with out of out member that operates against that definitely not you would not why would you have it it's like it's like having a collection on automatic transmission cards not needed it's not required  seat so it cannot have a sensor downstream of the inlet let's see the quote that she might count post opponent recite it is you know we agree that if the inlet seat in the valve above seventeen a is an inlet seat then there is  of remand you know we want to win this we want to get a patent but we have been arguing this claim construction since day one i had a telephone interview i did had a telephone interview it's on it's in the record the response and i have a test here but i'll stick with the examiner and i immediately said hey the issue is what is a valve body and the examiner said a body is everything that's one of those nonce terms and i said no it's really not a v body is like a car a body a human body and it's a me it's it's got real meaning and we've disagreed about that from the beginning at the at the board the board said the issue on appeal is whether that valve above seventeen  there is part of the bow but that's the issue there is nothing to remain and that's it's not it's not part of the valve body that's the issue there's no factual dispute to remand i agree they didn't do a great job on some of the things i didn't do a great job on some of the things that there's nothing to remand here we want to get a patent but this isn't something that we want to go back and do it again to be clear i had a telephone interview the examiner went final we filed an appeal we briefed an appeal it was pulled out of