This is pay with incorporated versus live and locked, otherwise known as on cloud, 2013, 16 is a way, Roosh. Why are you on fire? Why are you on fire? Thank you, Your Honor. Thank you, support. Here we had an inter parties re-examination initiated by casewiss attacking the 866 patent, and the examiner at the conclusion of his work rejected all of the claims on multiple grounds. When it then went to the PTO Board, the Board affirmed the most of the anticipation rejections, but reversed all of the obviousness rejections. And we think that is the primary place where the Board went wrong. We think they used to strip the standard in combining the references. Basically, they looked at the background of the sentase reference, which is primary reference for the obviousness rejections, and said that because there is a recognition in the background of sentase that a particular type of prior art suffers from a shortcoming or a problem, that you wouldn't use that. But sentase is actually directed specifically towards solving that problem, which is that when you have more pushening and more yielding in the souls of athletic footwear, you're going to have this instability problem. And sentase solves that by when you have collapse that you will have engagement of upper and lower inner surfaces in order to solve that stability problem. Now, the Board said that because the background of sentase identifies prior art as having this problem that you would therefore discard all of the prior art in the background, and that you would not make a combination of sentase solution with cushioning elements configured as in the background prior art. Now, in our view, the recognition that the background prior art has this problem shows that it's ready for improvement and that it would benefit from the solutions taught by sentase. And when you look at the claims rejected for obviousness, they really do know more than combine no elements for the known purposes to provide predictable results
. And so we think that's the primary problem with the Board's reversal of all of the obviousness rejections. Now, the other problem is that with the obviousness rejections that particularly with regard to the independent claims, it discards the obviousness rejections because it says that one would not use sentase's solution for having engagement of inner surfaces to promote stability in arrangements that have plural cushioning elements because sentase has a single large cushioning element. Well, the independent claims don't even call for plural cushioning elements that's in some of the dependent claims and the dependent claims were not even separately argued as patentable. So that's an additional reason why we think the obviousness analysis is flawed. And I think once you find that the references are properly combinable than that renders obvious all of the claims. As I said, most of the anticipation rejections were affirmed by the Board. There were two anticipation rejections based on the two claims that the anticipation rejection based on O'Cope were reversed. And we feel in those instances the Board did not apply the broadest reasonable interpretation of the claims and those were claims eight and 11, dependent claims eight and 11. For claim eight, it's referring to positive engagement between the upper and lower surfaces to give you that improved stability. What the Board basically did is they said that they looked at the drawing figure in the 866 patent and they saw two teeth. Both the upper and lower surfaces and they said, well, you don't have positive engagement in O'Cope because you only have pins on one surface. And in our view, the O'Cope clearly teaches that the pins will deform up into the resilient surface and that gives you a geometrical engagement other than just frictional engagement
. And so that does give you the positive engagement and we think for claim eight that the Board interpreted to claim too narrowly to basically require that you have teeth on both upper and lower surfaces. And then with regard to claim 11, we think the Board was overly narrow in saying that O'Cope does not have a tube because of O'Cope and the cavity of the cushioning element, it has a flat surface. And they basically in interpreting the word two required it to be cylindrical or round all the way around. O'Cope has sort of an elliptical type shape and they said because it doesn't have a flat surface then it's not tubular. We think that also did not give the broadest reasonable interpretation. Now separate and apart from the anticipation rejections though I think it's important to keep in mind regarding the tubular issue that is also covered by the obviousness rejection because the obviousness references show plural different references that show that the use of tubular shaped round tubular cushioning elements is quite common in the prior era. And so you, if you passed this, if we agree with you for the end of your break the access to reman in light of the last argument, do we have to reman? I think it was on cloud to ask for reman. We think you have what you need to find all of the cleaners and battle. Here. And here there's an appeal by us and a cross appeal by on clouds. You're right. The question was what on clouds are to sport? We don't think that's necessary
. I think the primary reason they say a reman is appropriate would be to consider their declarations. We argue that there's insufficient nexus before the board with regard to their improved results, commercial success, secondary considerations. Basically if you look at their declarations it's not clear what was actually being tested or was being installed. So we can consider the declarations in the first instance. Well, beyond that, after we pointed out before the board that there was no nexus they then limited it and said, oh, well we have nexus only with regard to claimate. Now claimate is covered by the anticipation rejection based upon a sentence. And so for that reason, if the anticipation based on a sentence is affirmed then the declarations are totally irrelevant. If that's not affirmed, we believe the case of obviousness is still so strong in that there are clear teachings of positive engagement. But claimate is the claim that refers to positive engagement between upper and lower surfaces. And in the sentence it clearly shows that the two and non-use surfaces both on upper and lower surfaces. And so the board affirmed the anticipation rejection with regard to claimate. And so given that they focused their nexus with regard to their declarations only to claimate, once that's affirmed the declarations are irrelevant
. So you will say the remainder of your time if you like, put it in the bottle. Thank you. Pettering. And you may wish to save time for the cross appeal if there will be something to the bus. Exactly right here on three minutes please. May it please the court. I'm going to first address the issues raised by case with this appeal on the term of the cross appeal issues. Here's substantial evidence supports the boards holding that the invention of the A6Hit patent would not have been obvious and view of the combination of events as on the one hand and begonee, type of Hashi and Enohara on the other hand. I think it's important here to keep in mind that case with as a sequester has the burden to show unpatentability. It's not on cloud burden to prove that its own patent claims are valid. Here the board made specific findings on the obvious in this issue. And those findings are supported by substantial evidence
. I think case with this argument's on appeal boiled down to that the board should have come out to a different result. But under the proper standard of review, it doesn't matter whether there may be more than one way to view the evidence. If substantial evidence supports the board's decision, then that decision has to be affirmed. In this case, the board three claims here survive, right? 6, 7, 9. And that's correct, Your Honor. But was there any indication in the specification that there was anything new about these ranges or anything patentability distinct about these ranges or the use of a large cylinder? I think, Your Honor, that goes to the problem that case was. No, you're not answering my question. Is there anything in the specification that suggests that there's something novel about these particular ranges or the use of a large cylinder? Well, the specification just describes, you know, I don't know, I can't say offhand if there's anything specific in there about this. This is particularly novel, but specifications does describe it as part of the invention. And in case with this burden to prove that. So the answer is there's nothing in the specifications suggesting that the ranges are novel or had anything of significance. Well, I think you have to look at it in the comment
. You have to answer my question. You can't avoid the question. I apologize, Your Honor. The answer is yes. In the context of this invention, if you look at the entire invention, there was a... What is it in the specification that says there's something special about these ranges? There's not anything specific in specification about these ranges except in the context of the overall invention. What is there anything specific in specification about the use of this large cylinder? That's being beneficial. Again, that was the..
. That was... No, what's the answer? The answer is yes. The hollow to your element. That was described as giving the specific features of that the invention was set out to address. No, but is there any suggestions that the hollow cylinder is something uniquely beneficial as compared to the other embodiments? As compared to the other embodiments, no, but all those embodiments are... Do give..
. They result in what the invention was set out to accomplish in terms of distinguishing the two types of athletics that already existed that both had problems and that gets more to the cross appeal issues. So if the... If the... PTA was correct in rejecting the other embodiments as being either anticipated or obvious and why what's special about the... About the cylinder that should save that claim. Your honor, I think the problem here is that you have to look at what case was asked for in case
. Okay? In the original re-examination request, it would be helpful to me if you could address my question. It's difficult to address that question outside the context of this re-examination proceeding because I'm not asking you to address it outside the examination proceeding, re-examination proceeding. I'm asking you to address why it is that this claim should survive when the others fall. Because case was never appealed the examiner's decision not to adopt the rejections of claim six and seven based on census along. And that's the reason why they survived. It's case... Case was chosen not to appeal. If case was wanted to say that, it's just claim six and seven whatever the range is there. That would have been obvious modification based on all the other prior art. But they didn't already do that, right? It's arguing it now, but it's more than before the board, too, right? Okay
. I think it's important to keep in mind there's two different rejections here. Okay? There's the proposed rejection of a census along the anticipation rejection. And the board said, the census does not describe the ranges and claims six and seven. Therefore, the examiner did not adopt the rejections. They didn't appeal that. So they've waived any issue as to whether or not these claimed range of mutations in six and seven are obvious or are anticipated or just standard common knowledge based on census. Okay? The other is... Wait a second. I don't understand this. They certainly challenged claim six and seven before the board. Are you saying they did it on one ground, but not on another? Claim six and seven were... At the end of the day, they were only rejected on the obvious and grounds. And so, so they argued in favor of that rejection, right? They did, based on obviousness, it's a combination of census and pagahine, ahara, takahashi. And when we were... When the board found that there was no reason to combine census with those other references, they didn't have any rejections, proposed rejections left for claim six and seven. So that's why they come out of the examination. And I still think it goes back to if they really wanted to preserve their rights of challenge claim six and seven, just that.
. Are you saying they did it on one ground, but not on another? Claim six and seven were... At the end of the day, they were only rejected on the obvious and grounds. And so, so they argued in favor of that rejection, right? They did, based on obviousness, it's a combination of census and pagahine, ahara, takahashi. And when we were... When the board found that there was no reason to combine census with those other references, they didn't have any rejections, proposed rejections left for claim six and seven. So that's why they come out of the examination. And I still think it goes back to if they really wanted to preserve their rights of challenge claim six and seven, just that... Oh, it's just common knowledge or easily... One, excuse me, I would easily use those ranges. Then they should have appealed the examiner's decision not to adopt the rejections claim six and seven, just based on census alone. So going back to the main obviousness issue, the combination of census with pagahine, takahashi, and ahara, the board here made a specific finding that a fair reading of census suggests not using a plurality of small channels such as that disclosed in pagahine, because census disparage is such a configuration. That finding supported by substantial evidence namely in census itself, pages three to four discusses the secretary reference which has small channels in the shoe sole like shown in pagani takahashi. The disparage is the reference, and unless the cylinder collapses and provides friction, it doesn't disparage it in a situation where there is friction created by the two sides of the cylinder. It's while you're answering that, how does the size and number of the small holes, how is that relevant to the plans as opposed to the friction created? It's relevant because it's relevant to the issue as to whether or not one skilled in the art would think to use census in combination with pagani takahashi and Inaohara. And the census is criticizing these small holes, these small channels and so therefore, as the board found, there's no reason, one skilled in the art without ever reason to combine census with those small channels because census has already criticized those and census has given an alternative construction, namely the single larger channel of these ribs and notches. And so any, and I think this kind of highlights one of the points, as my colleague said, the number of channels now decided and claim one, but that right there is hindsight
.. Oh, it's just common knowledge or easily... One, excuse me, I would easily use those ranges. Then they should have appealed the examiner's decision not to adopt the rejections claim six and seven, just based on census alone. So going back to the main obviousness issue, the combination of census with pagahine, takahashi, and ahara, the board here made a specific finding that a fair reading of census suggests not using a plurality of small channels such as that disclosed in pagahine, because census disparage is such a configuration. That finding supported by substantial evidence namely in census itself, pages three to four discusses the secretary reference which has small channels in the shoe sole like shown in pagani takahashi. The disparage is the reference, and unless the cylinder collapses and provides friction, it doesn't disparage it in a situation where there is friction created by the two sides of the cylinder. It's while you're answering that, how does the size and number of the small holes, how is that relevant to the plans as opposed to the friction created? It's relevant because it's relevant to the issue as to whether or not one skilled in the art would think to use census in combination with pagani takahashi and Inaohara. And the census is criticizing these small holes, these small channels and so therefore, as the board found, there's no reason, one skilled in the art without ever reason to combine census with those small channels because census has already criticized those and census has given an alternative construction, namely the single larger channel of these ribs and notches. And so any, and I think this kind of highlights one of the points, as my colleague said, the number of channels now decided and claim one, but that right there is hindsight. If census is criticizing these small channels, so one skilled in the art wouldn't think to combine census with the secretary, pagani takahashi and Inaohara. And it's only because they're now looking at the claim in the past. How does census disparage? It hasn't been pagani. Well, Zentus disparages the socketory reference, and what socketory says is these small channels in the soul and those small channels are also shown by pagani takahashi and Inaohara. So I think in the board view, and according to the board's findings, that disparaging the socketory applied equally well to pagani takahashi and Inaohara. And it's specifically disparaging those small channels by saying there's like this wobbling. Unsure and wobbling. Okay. But that, Zentus teaches that this results from a lack of ribs or notches to engage, right? Well, what Zentus says is instead of using those small channels that'll result in a dumpster and wobbling lock, use my sheetful construction instead, or I have this chamber and it has these grids from the notches and those of us who doesn't say it's from a plurality of small channels. It's criticizing these small channels in the soul and as an alternative, what Zentus says. It's challenging the small channels if there's no friction created that solves the floating effect, right? I mean, I don't think it's fair to say that it disparages small channels generally. Well, there's no suggestion Zentus that, yes, why don't you modify those small channels? Well, no, it doesn't explicitly say that, but it does say prevent the floating effect by creating friction, by creating engagement
. If census is criticizing these small channels, so one skilled in the art wouldn't think to combine census with the secretary, pagani takahashi and Inaohara. And it's only because they're now looking at the claim in the past. How does census disparage? It hasn't been pagani. Well, Zentus disparages the socketory reference, and what socketory says is these small channels in the soul and those small channels are also shown by pagani takahashi and Inaohara. So I think in the board view, and according to the board's findings, that disparaging the socketory applied equally well to pagani takahashi and Inaohara. And it's specifically disparaging those small channels by saying there's like this wobbling. Unsure and wobbling. Okay. But that, Zentus teaches that this results from a lack of ribs or notches to engage, right? Well, what Zentus says is instead of using those small channels that'll result in a dumpster and wobbling lock, use my sheetful construction instead, or I have this chamber and it has these grids from the notches and those of us who doesn't say it's from a plurality of small channels. It's criticizing these small channels in the soul and as an alternative, what Zentus says. It's challenging the small channels if there's no friction created that solves the floating effect, right? I mean, I don't think it's fair to say that it disparages small channels generally. Well, there's no suggestion Zentus that, yes, why don't you modify those small channels? Well, no, it doesn't explicitly say that, but it does say prevent the floating effect by creating friction, by creating engagement. I disagree, Your Honor, I think Zentus says, don't use those small channels, use my structure instead. I have a shoe sold that has ribs and notches and once those engage you. Well, I don't know. Where do you find that? I don't see that language in Zentus. I see they're talking about the engagement to prevent the floating effect. But this is what the board's finding. And to the extent that case, this is making these arguments. The board found that Zentus only talked about solving the floating effect of through using the notches. It disparages, the board said that Zentus, well, it says Zentus suggests not using a plurality of small channels such as disclosed in Bgonny because Zentus disparages such a configuration. So, yes, that's fine and bored. Well, doesn't it disparage that configuration only if there's no friction created? There's no suggestion that there would be friction creating. Nobody is my statement correct
. I disagree, Your Honor, I think Zentus says, don't use those small channels, use my structure instead. I have a shoe sold that has ribs and notches and once those engage you. Well, I don't know. Where do you find that? I don't see that language in Zentus. I see they're talking about the engagement to prevent the floating effect. But this is what the board's finding. And to the extent that case, this is making these arguments. The board found that Zentus only talked about solving the floating effect of through using the notches. It disparages, the board said that Zentus, well, it says Zentus suggests not using a plurality of small channels such as disclosed in Bgonny because Zentus disparages such a configuration. So, yes, that's fine and bored. Well, doesn't it disparage that configuration only if there's no friction created? There's no suggestion that there would be friction creating. Nobody is my statement correct. There's only disparage just in which there's no friction. And I think, Your Honor, that no is correct. I mean, you're supposed to get up here and answer the question. Okay, I'm sorry, Your Honor. Yes, that is correct. It doesn't say, mention anything about friction in connection with those small channels. But to the extent that you're now going to say, yes, those small channels would have friction. That's just applying hindsight based on what was described in the 86-Hit's path. Because Zentus didn't say, you eliminate, you know, overcome the wobbling feeling by using friction engagement. Zentus says, here, I've got these rids and these notches. Well, I'm not sure that that's correct. I thought that it does suggest solving a fluid problem by a correctional engagement path
. There's only disparage just in which there's no friction. And I think, Your Honor, that no is correct. I mean, you're supposed to get up here and answer the question. Okay, I'm sorry, Your Honor. Yes, that is correct. It doesn't say, mention anything about friction in connection with those small channels. But to the extent that you're now going to say, yes, those small channels would have friction. That's just applying hindsight based on what was described in the 86-Hit's path. Because Zentus didn't say, you eliminate, you know, overcome the wobbling feeling by using friction engagement. Zentus says, here, I've got these rids and these notches. Well, I'm not sure that that's correct. I thought that it does suggest solving a fluid problem by a correctional engagement path. 730 years, okay? Well, in Zentus, yes, there is friction engagement between the rids and the notches. But that's in the context of the Zentus configuration. Zentus didn't say anything about those backings and modify what was in Pagani and Takahashi and Inohara in order to have some frictional engagement in those configurations. And I think it's important to realize the focus on that the board made specific bindings in this case that Zentus disparaged configurations such as Pagani. And there's substantial evidence to support that. The statement in Zentus itself. So even though cases can now come forward as a hell, well, there's an alternative way to view the evidence, that's not enough. As long as there's substantial evidence to support the board's decision, then the board has to be affirmed. Just real briefly on the cross-apial issues. And I think this might help answer some of these questions about the friction engagement. In the 866 Pagani, I've been recognized that there are configurations in some existing athletic shoes that would allow some sort of horizontal absorption of loads like when the runner's foot lands. And that might be shown, you know, and then there's an all the other type of athletic shoes did not permit this horizontal lateral absorption of loads
. 730 years, okay? Well, in Zentus, yes, there is friction engagement between the rids and the notches. But that's in the context of the Zentus configuration. Zentus didn't say anything about those backings and modify what was in Pagani and Takahashi and Inohara in order to have some frictional engagement in those configurations. And I think it's important to realize the focus on that the board made specific bindings in this case that Zentus disparaged configurations such as Pagani. And there's substantial evidence to support that. The statement in Zentus itself. So even though cases can now come forward as a hell, well, there's an alternative way to view the evidence, that's not enough. As long as there's substantial evidence to support the board's decision, then the board has to be affirmed. Just real briefly on the cross-apial issues. And I think this might help answer some of these questions about the friction engagement. In the 866 Pagani, I've been recognized that there are configurations in some existing athletic shoes that would allow some sort of horizontal absorption of loads like when the runner's foot lands. And that might be shown, you know, and then there's an all the other type of athletic shoes did not permit this horizontal lateral absorption of loads. They only permitted absorption of loads in the vertical direction. And so in my view, I think in according to what the board's reasoning was on the obvious in this issue, Zentus tried to distinguish over those prior existing shoes with the channels and the soles by providing the shoe that only provided cushioning in the vertical direction and didn't allow any movement in the relative longitudinal direction between the upper and lower components. Thank you, ladies and gentlemen. Thank you, ladies and gentlemen. Anything to report on the cross-apial, then we'll give you that. Thank you. Thank you. First, the point of clarification with regard to claim six and seven. While in the first instance, a burden to come forward for an obviousness argument may rest with the petitioner. When the case was going to the board, all of the claims stood rejected and it was on clouds that was appealing. And on clouds submitted no arguments that claim six and seven were separately patentable and never argued that they had any, there was any criticality or non-obviousness with respect to the range that's set forth in those claims. And so claim six and seven were not at issue in the appeal because on clouds submitted no arguments with regard to set the patentability of claim six and seven
. They only permitted absorption of loads in the vertical direction. And so in my view, I think in according to what the board's reasoning was on the obvious in this issue, Zentus tried to distinguish over those prior existing shoes with the channels and the soles by providing the shoe that only provided cushioning in the vertical direction and didn't allow any movement in the relative longitudinal direction between the upper and lower components. Thank you, ladies and gentlemen. Thank you, ladies and gentlemen. Anything to report on the cross-apial, then we'll give you that. Thank you. Thank you. First, the point of clarification with regard to claim six and seven. While in the first instance, a burden to come forward for an obviousness argument may rest with the petitioner. When the case was going to the board, all of the claims stood rejected and it was on clouds that was appealing. And on clouds submitted no arguments that claim six and seven were separately patentable and never argued that they had any, there was any criticality or non-obviousness with respect to the range that's set forth in those claims. And so claim six and seven were not at issue in the appeal because on clouds submitted no arguments with regard to set the patentability of claim six and seven. With regard to sentates, a couple of points, in the discussion that sentates disparages plural tubular type of cushioning elements, that is part of the board's obviousness analysis. It's not in their factual finding. In their factual finding, I think they just quote and cite the discussion of that reference in sentates. And I think- What page of sentates is that discussion at? I was just going to mention that because I think that's a very important thing to look at. It's at J-A-Zero-1731. And I think the important thing to look at is not only that page, but also 1732 and 1733. Because this isn't a situation where sentates singles out plural tubular cushioning elements. And so that's the bad guy. It's in a discussion of some six or so or more prior references. And the first one is not the plural arrangement. The first one is at 1731 starting at about 121. And it says an example of this solution for providing cushioning
. With regard to sentates, a couple of points, in the discussion that sentates disparages plural tubular type of cushioning elements, that is part of the board's obviousness analysis. It's not in their factual finding. In their factual finding, I think they just quote and cite the discussion of that reference in sentates. And I think- What page of sentates is that discussion at? I was just going to mention that because I think that's a very important thing to look at. It's at J-A-Zero-1731. And I think the important thing to look at is not only that page, but also 1732 and 1733. Because this isn't a situation where sentates singles out plural tubular cushioning elements. And so that's the bad guy. It's in a discussion of some six or so or more prior references. And the first one is not the plural arrangement. The first one is at 1731 starting at about 121. And it says an example of this solution for providing cushioning. And it refers to USP-4342157, specifying A hollow cavity. And then it goes on and at the end, it says the drawback of sent solution lies in that walking becomes unstable. The next one is the one that the board is saying allegedly is disparaging. And it refers to- Here's another arrangement that contains plural elongated self. And that paragraph bridges to the next page. And it says- This arrangement shows quote the same deficiencies as the previous one. Wearing results in unsure and wobbling walk. And so it's not singling out a plural tubular arrangement as uniquely having an unsolvable problem. It's saying that this is among many prior references that have this instability problem. And after discussing other references, then on 1733 it has a general summary. And one of the drawbacks of all of these references, it says is this uncertainty problem. And then, and then Centage proceeds to discuss that the way it solves this instability problem is that by having the upper and lower engaging surfaces so that when they contact each other, you won't have the sliding movement and the stability is promoted
. And so Centage doesn't just single out and say our solution is inapplicable and where you would never want to use plural tubular cushioning elements. The plural tubular cushioning elements are among many references that have the problem that Centage is directed towards solving. And in our view that shows that those arrangements are ready for improvement and they would benefit from the teachings of Centage. Thank you. Thank you. I just hope that thanks to Sunny LeBarrell. So we'll take the case on the revising