good morning david for all for p t s geophysical may please the court this case receive the question of whether a claim may be rendered obvious i proposed combination that the parties and the board agreed confers no benefit whatsoever and that in fact exacerbates the very problem that the lead reference was directed to solve and i can i interrupt and ask you about the s a s issue which i know you submitted a joint filing this morning that at least leaves some questions nuff about whether you have waived any rights you may have which you say you have now whether western jiko as i had signed on senate settlement and what not wait any right but about whether the absence of institution on certain claims let's say is in fact wave or whether it has the character of certain kinds of jurisdictional issues whether agency jurisdiction i'm not sure that term matters in the agency context but ours that matters and therefore whether we have a  final written decision in front of us that we can exercise jurisdiction over the analogy obviously being if there were an adjudicated claims in a district court we wouldn't have a final judgment and we may be asking for more briefing on that kind of question but do you have any anything preliminary to say about why  case and it is a final decision on all claims that are presently in the speed between the parties the supreme court's decision in s a s recognises that the final decision could involve a separate set of claims than the initial institution decision for example if the patent owner amended claims during the proceeding and the statute is open to that here we have a final decision on a different set of claims than the petition attacked in part because of a settlement but the issue a no one's asking for that we're only disputing certain claim the patent office is only trying to defend the board's decision as to certain claims and those claims are before the court there is no requirement in s a s that all of the claims in the petition be anyone did but the point is no one's asking for any of those claims to be resolved here or their tone they're gone we're just asking for these claims that are the subject of the appeal to be decided and that's all the patent office wants the side of this well that answer your if we had for example dropped some claims or amended you know near the end of the opinion the supreme court says well that can certainly happen and there can be a delta there for between the petitioner claims that included in the petition and the claims that are subject to the final decision and then of course the review by this court and here we have the exact same result for different reasons because of a settlement but that poses no jurisdictional problem it seems per se yes and i would just say that it can be extended to the situation  honor most teachers have obviousness involve a balance between the perceived benefits of a combination and it's detriments this case i would submit is quite unique there is no benefit that the petitioner ever identified good reason for it they didn't just forget to put that word in there was no evidence in the record to support that idea the evidence was and it was undisputed that making that combination of  they can be put together in an inquiry of is their motivation is there a reason as the supreme court put it to combine these two things do you dispute that a person skill we would have looked to the from the land seismic techniques of and then the second source fires and dr lynne explain how long that the late is at page eighty eight eighty four he says half an interval that's half of a shot time and that is five seconds because there and seconds between and there's a further explanation that in those five seconds of vessel moves about twelve and a half meters so what you have in the sequential embodiment of these leap is source one fires twelve and a half meters of movement and then source two fires and those two sources are treated as having been fired from the same place and what beazley says is that creates what he calls in column seven a lack of commonality due to the time delay that is twelve and a half meters of separation a lack of commonality and that's not good that creates a lost loss of spatial resolution your picture is fuzzy and of course the whole purpose of this enterprise instigate a good picture of the ocean subsurface so that well companies know where to look for gas and oil then compare that to easily second simultaneous or somebody he says the advantage of my simultaneous source environment embodiment is it gets rid of this loss of space or spatial resolution i've solved it because i've fired both of these sources at the same time i've used a way to separate them based on what's called filtering based on their location and i have salt the spatial resolution problem that's my advantage of my second and same place but since every shot happens only once every ten seconds and the boat is moving in this combination of these leap plus any and what happens is shots that are fired one hundred meters or two hundred meters apart are treated as if they were fired from the exact same what's one hundred to two hundred meters is what dr lynn says at a one one one two and again there is no refutation of this it's all agreed upon an undisputed so what do we have when we combine easily an addict we have beasley that says look at my simultaneous source embodying that i can't solve the spatial resolution problem i've solved the smearing problem i don't have this lack of commonality o twelve and a half meters half a shot and what is this argument that is being advanced now by the p t o to combine beazley with that into what they would have the person of ordinary skill do is say i'll take these leap which says it's advantage because it solves the smearing problem oh get rid of that i'll no longer stop this very problem because i'm now firing at a time delay and stacking or summing sequential shots as if they were from the same place and rather than solving that problem i'm going to make it eight to sixteen times worse rather than having a lack of commonality of twelve and a half meters like the undesired sequential firing embodiment of beazley i'm going to separate them by one hundred to two hundred meters eight to sixteen times worse and treat them as if they were from the same place that's a disaster that's not obviousness that's madness there is no way on earth that a person of ordinary skill would have done that and only goes away the problem gets much worse at his and he your claims of oil disaster we don't some sequential shots as if they came from the same source this is shown at page thirteen of our brief where we sort of show all the traces something successive shot the time delays are arranged in a way that different kinds of shots in a different kind of collection can be sung and you get rid of the smearing problem and it's much better other than lawyer what evidence is that that particular level of smearing from the combination of easily an attic and is unacceptable so you have dr lindsey undisputed testimony and you can find this is a one one one two one one one one three where he says that the combination proved produces significant smearing and again just an acceptable because you use or not accept so so so if he says significant at a one one one three he says that it will have a billet yuri's effect on the data at a one one to five you're right the word unacceptable came from our patent owner response at eight to six seven but it is i submit impossible to read dr lynn's testimony any other way but to say that one wouldn't have done th proceedings or said dr lynn is wrong the smear is not that bad would have been easy to correct it's no big deal no one cares about smearing they could have said any of those things they said nothing the record in this case stands on rebut it that there's a significant smearing problem huge and by the combination and there's no evidence on the other side again this is not a situation where there's a bad result that has to be weighed against a good result like win or vs winning or this struggle with how you do that this is just combination there if there are a couple or three or four some very small number of unknown alternatives it might well under chaos are the obvious for them even if even for the three that are less advantageous than the first so that under that part of the case are rick i think there are two factual predicates that must be demonstrated number one that there are a limited number of options that's never been observed here at all that's never been  options is missing here and the board didn't find otherwise but more importantly i think q source says where there are a limited number of options and each of them provides the anticipated success then all of them can be rendered obvious but again the only evidence in this case is that rather than anticipated success one would have expected to be easily plus edington create a big problem so it's not is it you happy each of the options having predictable success here there's no finding predictability and on the contrary there's a finding that the person of ordinary skill would have expected smearing to result from the combination that's a page twenty eight of the board's opinion the subject of further questions i was 's a limited universe of possible absolutely and even if even if the evidence about smearing were somehow insufficient to meet the level of a teacher way it still must be considered in the context of motivation because one has to consider all bitter with the bitter for no reason at all so at the end of the day they have no evidence about any advantage and there's evidence whether you call it a teacher way or not this is that and the blood even accepted as a factual finding that this is going to increase mary and there's nothing sweet on the other side there's just no reason to do it so teach you a are not on i think that reversals mandated here with the court's permission i'll reserve the rest of my time  address counsel's arguments about whether or not there is a motivation here the board found that the motivation is within the references themselves you have beazley which talks about you can have any desire type of encoding where is that in the excuse me arguments and evidence that the claims are obviously based on this to come and there is not a place just all that i can point you in the record that says we're making this finding for this reason but if you look at the a watt and it doesn't have to be better it just has to be obvious it doesn't have to you don't have to find a reason as to why i would use one thing over another when you have a reference saying you can use something else here you just have to show that it is obvious and there are in girlie and in re motet this court said that just because there are better alternatives that exist in the car it doesn't mean that an inferior combination i had a piece of part the head you can use laces to put sneakers on your feet and you had another piece of prior art that said in order to put sandals on you can use velcro someone could combine those references to put velcro on sneakers and they wouldn't have to show that velcro is somehow better than laces or that there is something inferior about lisa's it's obvious and i know that's a very simple hypothetical and i just wanted to sort of use it as an example to say if it's obvious that is dispute here what comes up though is what is the level of smearing and when the pattern owner expert had the burden of production to show evidence that there was a problem with smearing so basically the petition saying well there are significant smearing here but there's no it's a conclusory statement there are no evidence there was no facts they didn't produce anything to show what is significant what does that mean the plan what's on acceptable or what's syncing thing i mean the board read dr lin's expert report and said that it wasn't persuaded by the arguments i mean mark just pointing to the part that i said mentioned about the significant that they want persuaded that there was but what is your take do you have a closely your honor as i stand here i think you want i can look at it really quickly and try to figure out but i don't ask you that i apologize i just at this moment i just need to sort of read it and figure out what it's saying but again i would just say that regardless of my views on it the board wasn't persuaded by this report and cell just to be clear there is a motivation it's within the references themselves beazley said any desire to have been coding edington offers that smear as far as teaching when the board was not persuaded that there was a reason not to combine these references and i'd also add that in terms of the argument that there was a burden shifting that did not occur here on the board looked  for any discussion citation or reference to any internet all because they have nothing to say about these leaflets i think it clearly produces smearing what they're saying in that section is busily alone as not much smearing well when you add it to  half metres apart that's a big deal for riesling so a force your i eight to sixteen times as much smearing necessarily is a big deal if they want to focus on the references themselves the references themselves answer the question that eight to sixteen