application discloses everything but rotation and toss disposes everything mechanically linked handles second in each case the missing element is disclosed by the other reference m toss has rotation the nine to eight has mechanically linked handle and third of the evidence of motivation for both combinations is uncontroverted as for adding rotation from an toss to the one to eight it's admitted that long before the barre patents doctors knew the importance of the rotating vertebrae and remotivate had to do it and ask for linking of the handles of em toss neither terry nor the board has ever denied that it is a basic mechanical principle well within the knowledge of a skilled artisan and it's motivated by the incentive to make it easier to move the vertebrae together which surgeons were already doing with their hands connecting the handles together with a simple mechanical link lets the surgeon do it more evenly reduces the risk of damage frees up one hand for other purposes and notably the board never found otherwise we submit that the or the board never found that those benefits if somebody they thought of it wouldn't have existed but to the board like the question of whether somebody a regular old person ordinary skill in the art would have seen the benefits and been motivated to do it is a factual question and the board to not find in your favor on that the board made no finding on that judge toronto and that we submit is the legal error in the board's analysis the board stopped its findings once it determined that m toss itself did not disclose and the cannibal linkage that was a legal error because this isn't an anticipation in case it should have gone on to consider whether a skilled artisan would have been motivated to take the mechanical linkage undisputedly disclosed in the nine to eight which was well within the capability of a person of ordinary skill and simply applied it to the procedure in m toss because it was application of a known technique to a piece of prior art ready for the improvement in the language of k s r there's no question that m toss has multiple handles connected to multiple peple scrutinous the board found on page thirty five the only element missing is to quote connect the ends of the extensions or handles together those quotes and there was plenty of evidence and it's not disputed that the nine to eight expressly discloses just such a physical structure dr linky said it's a basic concept of mechanical connection and neither barry nor the board ever denied that nor could they have it's clear that taking from multiple switches or handles and connecting them with a bar so that they can be moved all at once is something well known it's common in household circuit breakers and other applications and there is no finding judge toronto to your question to suggest that that was somehow inventive and that a person of ordinary skill in the art some with a medical degree and years of experience in designing fixation devices would not have thought of that and used it for the obvious benefits that it provided notably barry's o prevent breakage and he admits that it's predictable that if you connect the d rotators there naturally going to move together it's an ordinary principle of mechanical physics so to achieve the many predictable benefits of simultaneous rotation of vertebrae the artisan would obviously this out in even greater detail in his declaration on fifteen eleven of the appendix where he talks about the benefits of further facilitating simultaneous movement of vertebrae using fewer hands using less force and safely distributing the for order to get all of the members activated right so now we're talking about the the alternative obviousness combination right taking the one to eight and combining it with rotation from m to os i can turn to that if your honor wishes i mean i just wanted to conclude the point about the first and we think the the clearest combination which is taking the rotation which is already in m talks every element of the claimed method is there and all you're doing is adding a moving one of the of the members right the feature that can be combined is not limited to the knob if you can combine the physical linkage to the threaded rod at that time but that ties them all together and the post on the end of the three and then the other knob moves the other and post right so i guess what i'm trying to think because i don't know where in obvious turn guy tubes one zero two and one zero four will be moved closer together resulting in compression or will also be pushed apart resulting in it isn't there being moved in together or are pushed apart it's really one post that's moving air and the other one is the center one just stay stationary the whole time is that right when and when turning one off that is it moves them apart by holding one and then moving them but you're talking about moving in the vertebrae in order to the board did a pretty exhaustive treatment and in analyzing your argument about whether that was going to be causing some form of the rotation right well and they concluded that no it doesn't regardless of whether we consider it prior art or not if you look at the end of part three of the video the surgeon very clearly when they talk about the rotation forces pulls up on the screw and you see this side of the vertebrae go up the other one goes down and then at the beginning a part for the surgeon pushes down on the screw and decide goes down in that one goes up that is rotation if you only are given me before we lose you and you have to sit down if we were inclined to affirm the somehow disclosed or evident from the knowledge of some of one of skill in the art from the nine to eight and m toss the video most assuredly show simultaneous rotation and you see that at the beginning of part seven of the video the surgeons left toss of the one to eight to produce a simultaneous rotation using the same mechanical link which is not just a knob you can press on the knob obviously you can also press on the mechanical linkage and that will achieve simultaneous rotation by moving in together if the court's not satisfied with that and the video very clearly shows so there's rejected a legal issue of whether the video in the slides are in fact printed publications it appears that the board felt like your side just didn't do enough to explain why these various meetings with you know that you were at least it appears that the board believed that these were all rather small closed meetings that they didn't have enough of an in dish or that they were open and free and and that the people there would be inclined to share whatever they learned in these closed meetings  that determination of finding support of us substantial and of from on the legal issue the these dissemination were eminently broader than the dissemination in which this kid this court has found to be enough like garrett or mit or enhanced security researcher at mit the paper was only given out to six people here it was given out to dozens of people with no restriction on dissemination and or never found otherwise so one of the differences i thin i remember the case is that it is at least fair to read all of the previous cases small numbers of recipients of an actual distribution has speaking of distribution to ordinary skilled artists and i took it that the reason that the board thought this case wasn't covered by that was that you had a much more lacked group is that legal error that is a if if if if it if the video and the slides were handed out to fifty super experts not mere ordinary would that as a legal matter the that it wasn't a publication i think that's a legal error and a factual error it's a factual error because the board conflated all these different meanings together  outcome coming to that judge player so that the legal problem is simple and this is why i don't think it matters which conference we're talking about i don't think this court has ever said that disclosure in order to amount to  dissemination of a prior reference needs to be to someone who meets the baseline level of ordinary skill in the art as long as the people who get it have skill have ordinary skill in the art or more and have no restriction on disseminat is the situation here because you're never i mean the person of ordinary skill as a hypothetical construct it doesn't actually exist it's not as though someone needs to go out and find a person who exactly meets the specifications of the ordinary skill  document that i want to make available to you as long as it's made to be interested public who will be interested in the subject matter it doesn't matter whether they are the baseline level of ordinary skill or a higher level of ordinary skill which is why this issue has broached in any of the cases this court has talked about in mit the court didn't say with a six people who received it were the absolute baseline of ordinary skill it just matter that they weren't you know ordinary lay members of the public who wouldn't have absorbed or cared about the content here the people who received it were also planted surgeons and had no restriction on their ability to disseminate that said i think this court does not necessarily need to reach this because the the nation of em toss which disclose its everything wit simple mechanical linkage between multiple posts keep holding them together so that they can be moved simultaneously in order to free up a surgeon's hand and distribute the force to avoid damaging defamation again evidence nowhere rebutted by dr berry and certainly not please a court good morning john want to hear about the dr mark perry we take the arguments in reverse and talk a little bit about the slides so the the argument before the war was only presented in the evidence the board solves a lot of the arguments that you're hearing are different well during the other petition that they pointed out that these were all present did it through three different meetings across america to several different spinal surgeons and so i think they made at least some prima fashion level of of a case that these that's why they were prior art references because they were disseminated they were literally handed out to all and several dozen spinal surgeons across america just said i disagree that exhibit one thousand and three was the only exhibit they presented with the petition the other two binders were presented with deposition testimony from poland as well as decoration evidence saying look there's a there are there were three meetings and but there are two categories of meetings there's two buckets of meetings one is the study for where there is so members of the field that are exchanging information and commenting on each other's information and so maybe that looks more like the closed peer group peer review kind of get together and that was up we're going to use by mr polling then there's the second category which is appeared to be organized by really just explored native you know medicine education meetings which is actually owens and she's saying that's a different thing where are not study group meetings and there were dozens of spinal surgeons that were invited to these and it's not clear to me at all that the board considered this argument that that these were two different buckets of meeting and then explained why it wasn't satisfied that by medtronic arguments and statements and declarations and depositions that those were not study group meetings and so therefore have to be considered differently than perhaps the more closed members only study group meeting i would disagree with that the board did look at the evidence underlying it some of the evidence for instance at the drug site the proposition that to not come forward with enough evidence to show who attended the group and how one of the ordinary skill now are would with reasonable diligence for exercising reasonable diligence would have access to these so the board went through exhaustively and looked at that the other point in the so the board made findings about the spinal deformity study group the scottsdale program in the st louis programmer poll for spinal study to form a group session did make a finding about whether there was a restriction or even an expectation of non sharing with anybody that the members would care to do when they got home they made a no they made a finding that the that the members of that were very were limited to had just simply did not have enough information i don't think there's a legal layer or look at everything it did and try to ascertain whether one it's gone they are could with reasonable diligence access to video and slides and found that they didn't have enough evidence what i guess i 'm confused by a few different things one appears to be the idea that the board might have latched on to that in the study group we had say the top twenty spinal surgeons of america and they were the ones that were going to this meeting and and learning about new and interesting things why wouldn't one of ordinary skill in the art who wants to learn more about any techniques and spinal surgery want to try to consult one of the top twenty spinal surgeons of america to see if they had any information about the latest techniques that seems almost like them the most common source that you would go to and lo and behold these twenty surgeons in fact had c d s and slides of document his latest technique and just from what you're saying sounds perfectly reasonable makes perfect sense the problem is there's no evidence to the record to support that and so the board did not have that metroid did not provide that there's no testimony from a surgeon saying i'm just a rather mill surgeon and these are the people to whom of the book i understand that but i'm trying to understand more what the board keyed off on ultimately in concluding that this was in a printed publication and if the pivot point is that well these were you know the hall of fame spinal surgeons of america only and so therefore that's not enough i don't know if that's correct if there was no attached expectation of confidentiality and whatever was being discussed in such a meeting and  i think that's that's the concern and i understand the concern and all i can say is the board looked at all the evidence before it and reached a conclusion so i don't know what else they would avoid that i still love possible that physicians could have access that information or they could have talked about it was there a reasonable expectation of confidentiality in the materials that were distributed in scottsdale in st louis and in colorado springs you know we have dr lanky who has said in one declaration there was no restriction on the people that receive the materials and colorado or in st louis so and then they also on that side argue that those were not study group things those were broader medical education meetings where you know spinal surgeons registered for that and it totals up to seventy five different spinal surgeons that were not within the study group that's our question then is to should stand trial evidence in the record to support the board's conclusion would that tronic have a burden to show that they were publicly available how do we end up with the and so you affirm the board's fact finding based on substantial evidence or like the evidence they had reached a conclusion based on whatever hypothetically if there was one meeting the colorado meeting and there were fifty one attendees and then six there are other facts of the mighty i believe although i don't have that memorized about how that was a very sensitive area and it says fifty to five hundred attendees of a conference and six people walked away with the paper and that was good enough to be a printed publication and but the evidence of our record is different in that you were eliminated the participation of meetings i think that's why it's different well again that that i guess gets back to my question i am still not really sure why that should matter if the twenty top because because we don't let you have evidence for example that said no no you don't know spinal surgeons they never tell anybody what they have recently learned because the other's business i don't know the reason the reason i think is because there's no public because none of them are still in the are there are extraordinarily skilled yard so you don't have a person born or still there are those doctor like you define so if it was twenty ordinary ordinary spinal surgeons that would be ok out if you try to pour back in the great dockyards which testimony they said there is no significant or meaningful rotation of the spine to do that they made a factual finding that you're not rotating with the spine the reason meaningful makes a difference is because you're not note in paragraph fifty three that's and then toss device are interchangeable in light of that i don't know why you modify either one of the devices that they're interchangeable and then the paragraph that they referred to perfidy seven at appendix fifteen ten through fifteen eleven there are four sentences there it begins  some mechanical means to ensure the same type of movement would have been a simple and obvious modification in view of the express teachings of the three four nine the one to eight byte cell four is modified by the five six eight or the five six eight by itself to link the handle story i think it's not only complicated but doesn't explain anything it just recites all the different part of the record in a big grab bag suggest it would have been against because the point is i just linking these different posts together was known why that would happen so you move to the anti us device and and you look for any reason some sort of rationale why would you link them together and if you could do it as an expectation of success how would you do it some sort of rationale for what you're trying to find this not credible or that there's some evidence on the other side that says that somehow linking these posts and france together would be beyond this the skill of an ordinary skilled artist there's no discussion of it at all that's the fundamental problem they stopped once they decided that they're not told not to do anything with what they take away from the meeting and that's all we know and we don't know anything in the record about whether spinal surgeons at top spinal surgeons would if asked by a mere ordinary person say oh here share this or not i don't think this court has ever suggested and certainly no case has been cited suggesting that that matters as long as the reference has been disseminated to the interested permission isn't that the assumption in order for it to be public doesn't it at be available to anyone who would like to locate it and read it or learn from it at i would agree with that judge player with the proviso that they have to exercise reasonable diligence and i don't think this court has ever said that dissemination is refuted by the fact that you have to get it for someone else for instance in garrett it was distributed to six commercial companies without restriction on what they did with it in enhanced security research the only way to get it was to request it from one or two companies that now here i could have got it from medtronic i thought struck at least as i understood judge players question which is or maybe this is the version of a question that i've had in my mind i thought you needed to say to disagree with judge play care about the requirement that any old ordinary artists in a would be able to get it through reasonable diligence i thought your position is when you have twenty they have it they can do anything they want with it but they are not going to share it at all that that's still a publication i think it would seem that they were honorary others and couldn't get it no i think an ordinary artisan and i mean he in this case the record is the ordinary artisan anyone could get it from the attendees of the conference and also they could get it by asking for it from that product that dr you know but there's no evidence that happened it doesn't need to have happened as long as it's available it needs to be doesn't have to be available to everybody of ordinary skill me art it just has to be made available to a significant portion of the exit public that supports decision and cooper camera and these people are qualify just as the recipients in mit qualified there were only six of them also dr gasser barry's expert in this matter admitted on three seven six two that it wasn't unusual to get this information from device companies themselves so that new devices and instruments this information could have been gotten directly from someone  taking which i agree just toronto we don't need to agree with judge players position but even if that is the court's view of what is required it was satisfied years my concern you know again i don't think the board ever reached the question of whether there was some expectation of confidentiality in any of the three meetings but right now it doesn't appear from the record that i've looked at that the ball is moved one way or the other on that was there an expectation that you're saying that there was no legal restriction on the people of st louis and colorado but that doesn't quite answer the question of why there is possibly still various occasions that the approach to public public availability of private references broad because the policy is we don't want some to be able to get a patent on something that's already in the public domain and as long as something is disseminated to a group of people who are interested in the subject matter unless for some reason to think that there was a restriction on their ability to do it then that is a dissemination for purposes of public availability otherwise you would have situations where there was dissemination to many more people as happened in an mit or a garret and simply because no one said it well there was a specific statement made at this conference that you should feel free to share everything you say that all of a sudden that could be