six four patent this is the patent where the board the same panel of the board confronted with the same evidence and word for word the same arguments with the board's conceded that the radisson my point met i mean i'm sad about it i don't want to undo the check but we would be me and it to the board to do whatever needs to be done right well the no the director has conceded that reversal is appropriate are that i thought we could discuss the six ninety eight patent that's the patent having to do with the curve of the wiper blade and the pressure distribution of the that the sole claim of that patent was held obvious over a combination of two up help us and a patent to arrive the appelle patents describe wiper blades complicated by the original prosecution of the six ninety eight patent which involved the chechens political analysts and eventually issuance of claim won both the petitioner and the board  seemed to spend a great deal of time discussing the original prosecution even though nobody argued that the original prosecution was controlling in any  on page eighty seven six ninety three to seventy six ninety four the board seemed to adopt what it found to be the earlier board's fact finding about the curve of the arrive reference and this is important because as anybody can see looking at the figure the a right disclosure is of a wiper blade that is curved more sharply at the ends and less sharply in the middle there was a stray  rejection in the original prosecution that seemed to put that in question the board wrote we agree with and adopts the previous court's findings of fact concerning concerning iraq i but later on page eighty seven six ninety four the board also adopted the examiner's fact finding in the original prosecution and the examiner's fact finding was correct that the conventional backing member do the experiment shows some fluctuation in force distribution along the length of the blade at one of three under one of three sets of test conditions and according to the board it shows which we do not then you could take this one experimental result and say aha we have an anticipation of the six ninety eight pattern dealing with obviousness we have to look at the reference for everything that it teaches and what it teaches throughout is the desirability of uniform force distribution the experiment that they reported was a failure in the sense that it did not achieve uniform force just what is referenced teaching the question of fact when you know the core deference of facts we need to find substantial evidence in support of the board's fact findings and i'm not arguing the question of what figure seven describes what i'm arguing is that in view of the whole disclosure of arriving and the whole disclosure of a pal both of which are directed to uniform force distribution there's no way to combine to to say that one of skill in the art would take the shape of want to body meant from one impel patent and modify it to have the force distribution of the failed experiment reported in iraq i a figure seven when both of them call for uniform force distribution throughout both of which was exactly the opposite of the six ninety eight pat the whole invention of which was that uniform force distribution is not desirable because it has undesirable results in practice what about a pell and both of them here are well specifically you are about to describe something i just wanted to know whether you were being hit with pointing at five fifty one in particular i don't recall whether the progressive force distribution language is in five fifty one or in seven seventy but it's incorporated and even at five fifty one is incorporated and since then our position is that five fifty one is only incorporated for its uniform force distribution but yes let's assume that it's entirely incorporated in seven seventy since there's really nothing else in five fifty one anyway that i think the progressive curvature is in five fifty one yes but as a pretty important ingredient progressive the progressive force distribution that your honor was describing from the appelle patents is describing the process where the wiper blade is pushed onto the windshield where the pressure is applied the middle and as the blade flattens on the windshield the pressure evens out as it pushes down and evens out that's not a description of a static state pressure being anything other than view of a wry which also teaches uniform force distribution although it discloses an example where that didn't happen and come up with the invention of the six ninety eight patent which is designed specifically to avoid uniform force distribution because performer finding motivation to combine so i think most of the discussion so far but i understood it correctly went to what you're talking about in the middle of the page about a pal this is all about  but the bottom of the page it says maybe this is another an alternative basis for finding motivation appelle seven seven seven seven g also discloses various constructional approaches incorporating to come up with the desired uniform force distribution that's what that section of the patent is talking about and i should mention that practical compromise language to which the board also  refers does not teach what the board seem to suggest that it teaches what it is teaching is another way of getting at uniform force distribution pointing out that the rubber wiper strip itself has a role in force distribution and the practical compromise language says you can you can do something just short of a circular curvature and still get a satisfactory force distribution because the right rubber wiper strip itself will smooth out the pressure distribution so again there's nothing in in a pell suggesting other anything other than uniform force distribution and again that's the opposite of the  back now invention of the six nine eight patent was noting that you have a problem when you have uniform force distribution you get a flattening noise when the rubber looks over all it wants and if you avoid it by specifically designing the blade to not have uniform forth to although that limitation was not in the claim a limitation with respect to the reduction noise it was simply a consequence of you argue the the limitations that month reading column one line sixty is preferably small at opposite ends portions and large at the central portion i take it that your argument is that has to be interpreted to mean particularly in light of reference to radius of curvature that the the in the patents the far as i can tell there is a reference in it and a pelting rain he said could be true but not in iran correct or i was so how do we know that you do we know that that's what they must mean by looking at thing your five well we know we have expert testimony i believe page a eight four zero five from our expert explaining that we also have the fact that neither the petitioner nor the board was dealing with an anticipation argument at all and if the ride was curved opposite to the way that is shown in its figure you would have an anticipation area well right but you would also have a stronger at least at least as strong and perhaps stronger obviousness argument because you would have two different references both o yeah i was merely pointing out that nobody had ever argued that that language meant the opposite of what showed there and as was confirmed by our expert in his declaration that it's perfect more sharply at the end but isn't that what where you say the born the first time through the b p a i got it wrong it's where they went wrong it's a very difficult prosecution to unpack because there were it's rejection of several related claims in different inconsistent ways there is certainly arguably a fact finding by the board i'm not that was never urged by the examiner in the original prosecution about iraq in the way that you describe right but i think that that's something that the petitioner never raised and something the board didn't rely on the picture is fairly self explanatory and as i said we have expert testimony confirming  i think what i'd like to add to the discussion starting off is to step back and think about the state of the art and what iraq in a poll show us about what was going on in the windshield wiper field for decades before the invention of th was i think what what the art shows us is that artisans have been working with the same sorts of materials for a long time it's basically been rubber metal strips gravity and glass and there have been a limited number of ways  i'm sorry and wind and went to concept if you're it one of the skill in the art and you're sort of working incrementally with with these plates and trying to get the the pressure right it's really just a matter of small tweaks to try to figure out how to get there wh desirability of uniform pressure but it is also true that the inventor's motivation does not have to be the same as the motivations of those who came before the inventor and u mean didn't the problem i mean there boyd's reliance on motivation i mean the other side spends a lot of ink and i think they make a fair point about how the board was misconstru uniform contact force that's not how i read it when i say with the way that i really want to tell is saying is that how has attacking and i'm sorry using a you know again basic way with my fingers and showing this but you've got the backing of the blade and then you've got the plate under it and right whatever pressure that the backing is applying on the blade is is going to be the same and you know ultimately we're talking about a fact finding that the board made and i think what think if i'm understanding what you're under what you're quoting i think that is consistent with what with what appelle said is that there could be reduced contact force at the end of the at the end of the bla and in again a pelisse saying dead that is a satisfactory compromise that there could be a limited degree of non uniform spring so i think between  not that was ultimately what a write in and tell desired or thought was was ideal and it always shows that it was being done and the clear language here is is extremely broad it doesn't say anything about deteriorate at the ends more quickly than in the middle and further they discovered that the deterioration could be alleviated by having less pressure that the defense and therefore they wrote a claim very much like the claim here with a focused on less pressure and less curvature at the end do you think that would also be rendered obvious by a combination of   we don't have anything about annoyance we don't have anything other than the very fact that there is non uniform force distribution were cited in this claim unless there are any further questions i will yield the remainder of my time what do you think is let me just ask you this question because it came up in the first talking what do you think is the disposition with the proper thing for us to do with respect to the what is it two ninety four pat two six four two six four on which the it was conceded error is simply to to send it back to the board for a your honors it's important that the six ninety eight claim does not recite non uniform force distribution for say it recites a particular kind of non uniform force distribution and that's what we have to find in the prior art is that particular kind of non uniform force distribution talking about what artisans knew in the art for years artisans before bhatia never knew how being blades work in practice it's undisputed that made the first come first commercially viable being played and in the course of its development discovered for the first time that uniform force distribution is a problem and discovered for the first time with respect to the nine seven four patent that when lift problem foss developed these hugely successful products discovered the problems and solved them and then took patents on the solutions which is exactly how the system is supposed to work on the nine seven four pat patent was raised as an additional ground for obviousness it was the sole evidence of motivation to combine we don't agree that it provides motivation to combine but we never had an opportunity to respond to it  court ok i'm just getting a little anxious because you're raising you're talking about things we didn't talk about me a chill argument so brad has not had a chance to respond so you want to stick to the six ninety eight of what we were discussing in your earlier