this is still present a different issue but also something that really goes to the heart of what must be done when  the standard everyone knows and everyone agrees the question is whether the challenger has carried the burden of proving that a claim invention as a whole would have been obvious to the person having ordinary skills they are and the problem here doesn't make it without evidence from an expert that it would have been significant to a person having ordered every skill in the art as the father that those that those factors would have been relevant we don't think there's a basis we many other so you're saying that that the board or any trier of fact for that matter anybody considering these issues could not put aside all these questions about the expert testimony and look soley at the art itself so  not when the art rises above the ordinary average lay person standing in a situation with a complex technology as we have here and everybody agrees that it's above the average layperson's the finding by the you know there was it wasn't clear whether someone with a lesser level of skill would have found it obvious that my question is if you can look at the documents and and somebody with even the minimal level of skill might find this obvious wouldn't that be enough in the hypothetical you just described general milley where one could look at the art and understand from that lowest level that yes expert testimony would be require would work but that's the interesting thing about this case and how it differs from the others in the other cases the ones that they've cited the ones we've cited the problem had to do with what the proper steps are someone is aiming said i'm going to set the level of skill at the lowest possible level because i think that is what is most favorable to the non who have been part of the patentee in case now in a situation like that when the court adopts that requires some experience so even though a given case it would be possible to simply look at the art and assess it from that stance that's not possible in this and under the adjust the means with the program i mean doesn't that indicate that you would look somewhere mark to define what that program would be it does suggest that there would be a program that one would look somewhere but without evidence we don't know where that would be and also when we look at what the actual scope of the patent is it wasn't one that absolutely called for it or they needed it and the other there isn't evidence to support the idea or even six what the combination of all would be something that one of ordinary skilled adopt but i submit that display of reasoning doesn't work because they needed evidence of how this would work for a person having ordinary skill and they don't present so that's what the problem is so your extra talked about the fact that there were algorithms known in the art at the time of the so your and your saying that those algorithms are were just posed to assume that therefore they had enough algorithms to look at well the runner in the context of this particular patent the evidence shows that the seven one seven was perfectly effective for what it did it didn't need to be changed there wasn't any indication of a motivation to change it there wasn't any indication of a reason why what we have an effect is just hindsight because i don't think there was any dispute at all that the seven one seven was affected that's certainly what our expert dr tucker said and i don't think we've got an effective with some algorithm effective as it stands to do what he did w one seven reference and a belief on their part that because it disclosed forming a babe relayer before avoiding if they really are it in essence totally from itself and for that reason he found no one would combine any level because he had a different reading of the art itself this whole business about failure to explicitly defined the level of skill in the art is immaterial immaterial to the words determination that these claims were obvious and it was not immaterial to the fact that the other side's experts testimony essentially needs to be thrown out because it never spoke to what one of skill and would understand had given any given point in time that's up to the fact going to determine whether or not they're still relevant and probity to mr odell's test mr adele's testimony because he did not offer an explicit definition of the level of skill in the art but there is precedent for a court credit expert testimony even where there is no explicit definition of level of skill in the art where it's not material to the opinions that are being presented that's usually because the the person was talking about a lower level of skill in the art rather than a higher  from the standpoint it or it could be that the fact finder determines that what they're offering testimony on for example the content of the are or what it teaches isn't impacted by the statement whether or not somebody has a p lay person there's no such agreement or session here we agreed that it's appropriate to define a level of skill as their expert dr tucker did which is with a bachelor's degree and some working experience is not a ph d unlike other biology d in electrical engineering this isn't somebody who's graduated college and has been working for a while and there's been no showing or reason to think this is different than any of the other cases that are cited in the briefs where the technology was equally accessible and equally complex depending on how you want to characterize it you can you move on to the going to ration the combining absolutely so in reason to combine because of a few things first of all the board properly found that every limitation in in the seven one seven reference the only thing that is not explicitly disclosed is the algorithm by which you would increase power to predetermine rate from the initial level now the seven one seven discloses both manual operation and automatic or digital living algorithm meaning you check to make sure what the power is with the impedances and then you can change but there are lots of different ways lots of different algorithms you could use to accomplish what is is being discussed here how much fun there are so there are numerous numerous algorithms in the arts and dr tucker p s he's an expert testified that as long as you tested to determine the maximum power level that you don't want to get to work seed an ordinarily skilled artisan could program and are of a generator necessary that we show that it have to choose an algorithm a versus algorithm b if that's one of a number of known solutions in the are to the problem and one would have a reason to try it solve a problem and there are a finite number of identify predictable solutions a person of ordinary still has good reason to pursue the known options within his or her practice her technical grasp there's testimony these are all within the technical grasp of the ordinarily skilled artisans again feedback algorithm where you can monitor it heats or monitor color while you're you're increasing your rate of power from an initial level at a pre determined rate that's all that the five to seven pattern disclose doesn't disclose the particular rate the initial i wasn't positive for sure it's not crystal clear but one of the things that concerned me was that the board may have been treating this like a decision that if two references are both within  i would find it very troubling if everything within the analogous arts satisfies the motion to come by passed would you yes your honor and i think that i think that what you have to appreciate is in this context the principle argument below for an obvious this was the teaching away argument and the teaching away argument and the reason to combine argument are basically in this case mirror images of the same thing as the board goes into canada hold on no it can't be that if something doesn't teach a way then there's automatically a motion or result combined in either right or enough but here where the seven so the issue is does the seven one seven itself suggest the combination and if you accept it p s his argument below seven itself discloses the safer layers of problem and that their expert acknowledges the ultimate objective of it is to avoid the formation of the vase or it rejects the teaching away argument having done that then it is not a long  have seven one seven that talks about you want to do this to avoid of april or but nobody in any patent including the five to seven pattern tells you what the values are for doing it you have to test form the table or figure it out and program the algorithm that's why the only and i also understand that there's testimony there were a number of known possible algorithms how big a number like is there anything the record are we talking thousands because you understand in terms of there's a motivation to try right the number of options the larger the number of options  he was saying any any you know any ordinarily skilled artisan could write the algorithm if they knew what the balance or you know heck that you know any late not only person but anybody who'd been working as an engineer could even write it yes there were no algorithms and he even said yes technically it was well within the ability of one to combine the five or six algorithm with the seven one seven patent but that there's not a top answer out of question it's not like there's exhibits listing other algorithms and in fact our position originally with the petition was it should be anticipated because the should have known in the courts that no now we need an explicit disclosure and that was the five or six and it was an explicit disclosure on the question of whether the board correctly combined the seven one seven five four six that's correct there were no additional arguments raised by p s t about that on patentability of the claim so it rises and falls on the reason to combine seven theory there's no commonsense finding that's not where the board went what what is being said is different the board didn't say anything the problem we have is likely that in black and decker where the board says promised nothing and is no evidence that they presented they could have very simply had mr odell try his testimony to the level of skill eventually found by the board or to another level they didn't do that this case is not like the other cases where there are disputes about what the level of skill is and an assessment can be made as to whether it makes a difference in this case it has to make if we are experts and it doesn't make it he said that it doesn't make a difference he did not say or that the level of skill doesn't matter at all what he said he was asked specific questions about what he thought for example w seven so the questions were tied very specifically to his opinion and to the idea more importantly that it would have been obvious with a higher level of skill he did not say that the level doesn't cover at all and that's how this case is different there's no evidence of course it matters when there's a complete failure of proof it almost matters and that's where we are in this case the other points that were made about what the board might might have done or what someone might have done under a different standard under a different level of ordinary skill those will not get the job done for olympus because they are not supported by evidence or finding stuff the board thank you thank both counts home like cases taken under submission