[00:00:00] Speaker 04:
May it please the court.

[00:00:07] Speaker 00:
James Lucas on behalf of Universal Electronics.

[00:00:11] Speaker 00:
UEI requests that the court reverse the board's decision finding claims 1 through 6 of the 684 app obvious in view of the Darby and Arling references.

[00:00:22] Speaker 00:
I'm going to make two arguments today.

[00:00:26] Speaker 00:
that are also in our briefs.

[00:00:28] Speaker 00:
The first one is that the board's finding that the Darby and Arling combination suggests the limitation a memory storing and encrypted coded information is not supported by substantial evidence.

[00:00:42] Speaker 00:
And the second argument that the board's finding that the memory, the same limitation, would have been obvious under an obvious to try rationale is not supported by substantial evidence.

[00:00:53] Speaker 00:
Before I get into those arguments, I just really want to quickly talk about the claims at issue.

[00:00:59] Speaker 00:
The claims relate to the manufacturers of remote control's interest in keeping their code set information proprietary, confidential.

[00:01:09] Speaker 00:
And so therefore, they're encrypted.

[00:01:11] Speaker 00:
So what you have here is you have a remote control with a microcontroller and a memory.

[00:01:17] Speaker 00:
And that memory is storing the encrypted code set information for an entire protocol

[00:01:24] Speaker 00:
product, etc.

[00:01:26] Speaker 04:
And then what happens is... Is your argument that this is a newly proposed round?

[00:01:32] Speaker 00:
No, that's not it.

[00:01:35] Speaker 00:
The argument is not supported by substantial evidence.

[00:01:37] Speaker 00:
It's further obvious to try.

[00:01:40] Speaker 01:
Anyway... Mr. Lucas, this is Judge Strada.

[00:01:45] Speaker 01:
Can I just check on something?

[00:01:48] Speaker 01:
Do I remember right that your application itself says that it was

[00:01:54] Speaker 01:
I forget whether, I think maybe he used the word conventional, but it was recognized in the art that the manufacturers of remotes had an interest in keeping the code sets difficult for rivals to copy.

[00:02:17] Speaker 00:
I think that's correct, Your Honor.

[00:02:19] Speaker 02:
So that's part of the knowledge of one of our engineers in New York?

[00:02:23] Speaker 00:
Someone would know that the manufacturers want to keep their their code sets encrypted Getting back to the invention so you have these databases encrypted databases in the actual remote control and what happens is when a When there's a there's a press the

[00:02:47] Speaker 00:
Decrypted by the microcontroller and supplied an unencrypted form to the control device that becomes important as we get into a couple of the

[00:03:01] Speaker 00:
the two references.

[00:03:02] Speaker 00:
So the first argument is that the finding that the Darby and Arlen combination suggests a memory storing and encrypted codes and information is not supported by substantial evidence.

[00:03:12] Speaker 00:
And that's based on, our argument is based on two findings.

[00:03:15] Speaker 00:
It's based on the examiner's finding where over and over again the examiner says Darby does not disclose teacher suggests

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the relevant limitation.

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It doesn't disclose this memory storing and encrypted codes and information.

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And you can find that at appendix.

[00:03:34] Speaker 02:
So this is the primary reference.

[00:03:38] Speaker 02:
Derby does not teach it encrypted.

[00:03:40] Speaker 02:
And then Arlene teaches encryption.

[00:03:43] Speaker 02:
Right?

[00:03:43] Speaker 00:
Well, hold on.

[00:03:46] Speaker 02:
But I'm just saying that the examiner's right now.

[00:03:48] Speaker 00:
Sure, sure.

[00:03:48] Speaker 00:
So the examiner says it, and that's an appendix 115, an appendix 113.

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You can see, I can show you.

[00:03:54] Speaker 00:
An appendix 113.

[00:03:55] Speaker 00:
Darby, I'm at the top of it.

[00:03:57] Speaker 00:
Darby does not recite or disclose literally the feature of storing encrypted codes and information in the memory.

[00:04:02] Speaker 00:
And that comes, the examiner says that often, I think, in the examiner's response and several other.

[00:04:07] Speaker 02:
And that's not disputed.

[00:04:08] Speaker 00:
That's not disputed.

[00:04:09] Speaker 00:
Agreed.

[00:04:09] Speaker 00:
And then we get to Arling.

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And the examiner throughout the prosecution fights us on whether Arlene discloses this.

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So we have examiner saying, Darby doesn't disclose it.

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Teacher suggests the limitation.

[00:04:25] Speaker 00:
And then you get to the board's decision, and we talk about Arlene.

[00:04:32] Speaker 00:
And I'm at Appendix 7.

[00:04:35] Speaker 00:
And right beginning at Appendix 7, the board says, you know what?

[00:04:41] Speaker 00:
The examiner is wrong.

[00:04:42] Speaker 00:
Arling also does not disclose, teachers suggest, the memory storing encrypted codes of information.

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And that's in Appendix 7 again.

[00:04:53] Speaker 00:
So now you have the two references involved in the combination.

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And you have the first reference undisputed.

[00:04:59] Speaker 00:
Darby doesn't disclose, teachers suggest, the limitation.

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And then you have now the board in its decision saying the second reference

[00:05:07] Speaker 00:
Arling also doesn't disclose teacher suggests the relevant limitation.

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And then, as we know, the board says, but the combination does suggest the relevant limitation.

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And we just think that cannot be supported by substantial evidence.

[00:05:26] Speaker 00:
That is inconsistent.

[00:05:28] Speaker 02:
Can you go down one more level of detail and just tell me what it is?

[00:05:31] Speaker 02:
What is it that the board is saying Arlene does teach?

[00:05:34] Speaker 02:
Arlene does teach some kind of encryption.

[00:05:36] Speaker 02:
So what is the kind of encryption that it teaches?

[00:05:39] Speaker 00:
So what Arlene has is an encryption key.

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And so what that does is it encrypts a small portion

[00:05:48] Speaker 00:
of a frame and sends that out.

[00:05:52] Speaker 00:
So everything that's on the actual device is not encrypted, which is required by the claims.

[00:05:58] Speaker 00:
And it's just taking a small portion, not a code set, just a small portion of the frame and encrypting that to send out.

[00:06:05] Speaker 00:
That's all it does.

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They call it an encryption key.

[00:06:09] Speaker 00:
And that's all Orion does.

[00:06:11] Speaker 00:
And as we see now, we have the examiner saying, Darby doesn't do it.

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And now we have the board saying, Arlene doesn't do it.

[00:06:19] Speaker 00:
And then the board realizes it's in trouble here and says at appendix A, but the combination suggests it.

[00:06:29] Speaker 00:
And our position is that can't be right.

[00:06:31] Speaker 00:
You can't have two references that don't disclose teacher suggests the limitation and then say, but when you combine them, all of a sudden,

[00:06:40] Speaker 00:
they disclose teachers suggest the limitation.

[00:06:43] Speaker 01:
And so we say that's not... Can I just ask a question?

[00:06:48] Speaker 01:
So the board at appendix page seven uses a phrase that's a little odd at the end.

[00:06:58] Speaker 01:
It does not expressly disclose teachers suggest.

[00:07:03] Speaker 01:
The combination of expressly and suggest is

[00:07:07] Speaker 01:
A little odd, but in the context of the sentence, with the, um, I callicization, the highlighting by the board of, of the, um, I guess the claim language phrase, storing encrypted code set information, um, perhaps should be understood to mean it's just making a very, very narrow point about, um, what you don't find in our language.

[00:07:36] Speaker 01:
about that specific thing, but then you do find in Arling the teaching of an encryption key, which is it the examiner that said or the board or both that said is technically equivalent to the code set and in any event would immediately suggest that.

[00:07:59] Speaker 01:
Why is that not a coherent logic?

[00:08:02] Speaker 00:
OK.

[00:08:03] Speaker 00:
And thank you, Jeff.

[00:08:05] Speaker 00:
To be clear, at appendix seven, this is the board actually citing UEI's argument in the appeal brief.

[00:08:15] Speaker 00:
Your first question about expressly disclosed, I think it's expressly disclosed.

[00:08:19] Speaker 00:
I don't think that covers teach or suggest.

[00:08:22] Speaker 00:
But I do read that as the board saying it doesn't

[00:08:25] Speaker 00:
Disclosed teachers suggest the limitation.

[00:08:27] Speaker 00:
We agree with UEI.

[00:08:29] Speaker 00:
And then what Arling does, and I'll repeat what our argument is, it only stores an encryption key in a memory.

[00:08:39] Speaker 00:
There's no code set information, no complete code set information stored in a memory, just an encryption key.

[00:08:45] Speaker 00:
An encryption key is used to encrypt

[00:08:49] Speaker 00:
Data here just a small part of a data frame and it's very clear Arling says that all you're doing is encrypting a small portion of a data frame and then you're transmitting it out that little that data frame.

[00:09:04] Speaker 00:
Now encrypted that's completely different than what we what the claims require they require storing the complete set of encryption encrypted codes And Arlene doesn't go doesn't even touch on that They're just saying you're encrypting a portion of the data and transmitting it out here in the in the claims you have the

[00:09:26] Speaker 00:
encrypted code set that's in the memory and then is used, it's decrypted and then sent out in a decrypted form, very different.

[00:09:36] Speaker 04:
And so... But this whole encryption business, that was well known in the art.

[00:09:42] Speaker 04:
If you're dealing with an encryption key to get to a data that's encryption or a data set encryption, I mean it's...

[00:09:57] Speaker 04:
It just seems to me that a person still in the art had been well aware of that.

[00:10:03] Speaker 00:
I understand that.

[00:10:04] Speaker 00:
I agree with you that encrypting data is known in the art, but I do not agree that you can, that if you have two references... If you have an encryption key, why is it a leap to get to encryption data?

[00:10:16] Speaker 00:
Because encryption, they're completely different structures and items.

[00:10:20] Speaker 04:
It's not about encryption.

[00:10:23] Speaker 00:
Well, what's novel about the claim is that it's storing all of this code set data that's encrypted on the remote control in memory.

[00:10:32] Speaker 00:
Just saying something is just saying because we know about encryption that we can fill in that missing limitation, I think is incorrect.

[00:10:41] Speaker 04:
Storing encryption data, why would that not have been obvious to try in this situation where encryption itself is

[00:10:52] Speaker 04:
It's activity that's well-known in the art.

[00:10:55] Speaker 00:
It's conventional at that point.

[00:10:59] Speaker 00:
My understanding is that there's a little confusion.

[00:11:01] Speaker 00:
When I think of, well, does the, I think about, is the limitation, just as Close Carter suggested, I think that's one issue.

[00:11:07] Speaker 00:
And I think we've shown that that's not the case.

[00:11:10] Speaker 00:
Then we're getting into the obvious to try.

[00:11:11] Speaker 00:
I look at that as a rationale.

[00:11:13] Speaker 00:
But I think you actually have to show.

[00:11:14] Speaker 04:
You're looking for an express statement.

[00:11:17] Speaker 00:
Well, I think for the obvious to try, I look at that as much like a motivation to combine.

[00:11:22] Speaker 00:
It's the rationale to put everything together is what the board tried to do there at the end to make up for the fact that they have now said,

[00:11:31] Speaker 00:
none of the, none of the limitation is disclosed, that the relevant limitation is disclosure and the two references in combination.

[00:11:38] Speaker 02:
I think what they're saying, and tell me, I would just want to tell you that, what I think, and you can tell me where you think I'm wrong.

[00:11:44] Speaker 02:
I think what they said is you've got one reference that teaches having code set information in the memory.

[00:11:50] Speaker 02:
You've got another reference that says if you want to keep things

[00:11:53] Speaker 02:
confidential you can encrypt them and teach us how to do encrypt and then they say it would have been obvious to use to store in memory an encrypted code set instead of just a code set it would have been obvious to try it

[00:12:09] Speaker 02:
I think that's what they're saying.

[00:12:11] Speaker 02:
So that would be your missing claim limitation that you're saying.

[00:12:14] Speaker 00:
So I mean, I don't agree with that.

[00:12:19] Speaker 00:
I don't think you can use the obvious to try rationale to just supply missing limitations.

[00:12:24] Speaker 00:
I don't think that's what you can do.

[00:12:26] Speaker 02:
Well, it's proposing a modular combination, right?

[00:12:29] Speaker 02:
It's saying one reference teaches storing a code set.

[00:12:32] Speaker 02:
Another reference teaches about encryption.

[00:12:35] Speaker 02:
So one of ordinary scale in the art would have been obvious to try.

[00:12:39] Speaker 02:
Encrypting that information stored in the memory especially given the recognition in the patent itself in the background of the invention that Manufacturers wanted to keep this information confidential.

[00:12:53] Speaker 00:
I generally agree with I think that's what the board was trying to do there But I think that's after it had found that the limitation was not disclosed

[00:13:02] Speaker 00:
The limitation was not disclosed, taught, and suggested by each reference.

[00:13:06] Speaker 00:
I mean, we now have that.

[00:13:07] Speaker 00:
That's a record.

[00:13:09] Speaker 00:
But see, that's the problem I have.

[00:13:12] Speaker 04:
I think we get it.

[00:13:19] Speaker 00:
that is possible but I don't think it's possible if both references don't I don't think it's possible if both references and there's not enough to show that both references don't disclose teach or suggest that limitation I don't like I don't think you can come up with it if

[00:13:38] Speaker 00:
the actual limitations storing the cryptic codes and information in a memory is disclosed, taught, or suggested by each of the references individually.

[00:13:49] Speaker 00:
I don't think the board is asleep that now when you combine them, it can be supported by substantial evidence.

[00:13:57] Speaker 01:
Can I just ask this, I think, version of a question, but I think what we're just

[00:14:05] Speaker 01:
talking about.

[00:14:06] Speaker 01:
If you had a single reference obviousness case, and so the question was obviousness to modify, the obvious to try branch of the law could apply to that.

[00:14:26] Speaker 01:
And so you would not actually have any reference that itself shows

[00:14:35] Speaker 01:
a particular limitation.

[00:14:36] Speaker 01:
You would have something that would make it obvious to modify a single reference.

[00:14:42] Speaker 01:
Why isn't what's going on here with what the board said essentially that you have a combination of the two references, even if the two references put together don't expressly call for or point to the

[00:15:03] Speaker 01:
the encrypting the whole code set together they make that uh... obvious to try is that just a different theory there's nothing uh... doctrinally off about that in a proper case right so i think there's i look at it is two different issues i look at it as well can

[00:15:23] Speaker 00:
Combined reference suggests the limitation if they're if they're they each do not disclose teacher suggests limitation and then and then the second issue is okay

[00:15:36] Speaker 00:
And we don't agree that the board can show that we think that substantial evidence standards does not support that the references collectively can suggest the limitation.

[00:15:48] Speaker 00:
And then the second issue is, well, once you get there, I think you go to the obvious to try rationale.

[00:15:58] Speaker 00:
And my point on the obvious to try rationale is it's just, it was a last minute kind of

[00:16:04] Speaker 00:
Addition to the to the board's decision and it doesn't have what we what this court has said you need to show on an obvious to try rationale that Remember the earlier the examiner had tried to do some type of motivation client the board just ignores that and then just decides to come up with obvious to try rationale and and that's not supported by the law and

[00:16:29] Speaker 00:
on obvious just to try.

[00:16:32] Speaker 02:
Can you specifically, I'm sorry, just one question.

[00:16:35] Speaker 02:
What exactly is missing from the obvious to try?

[00:16:37] Speaker 02:
I just want, is it that you're saying that it was raised too late, or more specifically, you're saying that... No, I think for example, you know, what's required in the recite to this Grunenthal case.

[00:16:50] Speaker 00:
Got it.

[00:16:50] Speaker 00:
Okay.

[00:16:51] Speaker 00:
I thought that's what you were saying.

[00:16:52] Speaker 00:
Yeah, so the designer market needs to solve a particular problem.

[00:16:55] Speaker 00:
and that there are a finite number of identified predictable solutions that would lead to a reasonable expectation of success.

[00:17:01] Speaker 00:
We don't think that's included in the Bush decision either.

[00:17:05] Speaker 00:
I think I'm over.

[00:17:06] Speaker 00:
Okay, sorry.

[00:17:08] Speaker 00:
Thank you.

[00:17:09] Speaker 03:
Good morning, Your Honors.

[00:17:10] Speaker 03:
May it please the court?

[00:17:11] Speaker 03:
Substantial evidence supports the board's findings that the claimed invention is obvious over the combination of Darby and Arlen.

[00:17:18] Speaker 03:
And appellant counsel said on numerous occasions that the individual references do not suggest

[00:17:26] Speaker 03:
This limitation of a memory storing encrypted code set information in that examiner in the board said that numerous times But that's actually not correct What happened here was that they're saying it is not explicitly or literally disclosed in the reference, but that Arlene in fact suggests the use of encrypting

[00:17:45] Speaker 03:
And I think Judge Toronto hit on the examiner specifically talks about technologically, I'm sorry, technically equivalent.

[00:17:54] Speaker 03:
And if you look, for example, at APPX 7 in the board decision, after it quotes the appellant, it says, but our reviewing court emphasizes that the question

[00:18:06] Speaker 03:
I'm skipping a few words here.

[00:18:08] Speaker 03:
It's not merely what the reference expressly teaches, but what they would have suggested.

[00:18:14] Speaker 03:
And then when you go further down, it sort of talks about what the references do, and on the top of APP X08, it says, Arling's use of encryption keys in the operation of a remote control device suggests the use of encrypting code set data that is stored in a remote control memory.

[00:18:31] Speaker 03:
So the examiner and the board are relying on Arling as the suggestion.

[00:18:36] Speaker 03:
Darby has the memory with unencrypted code set information Arlene has the use of these encryption keys you put them together and the combination Teaches this limitation that is that issue here What about with that less that last it is I think a little different from what I thought you were suggesting unless you meant when you use the word teaches in the combination to include the concept of suggest

[00:19:06] Speaker 03:
Your honor, your honor.

[00:19:08] Speaker 03:
Yes, Judge Shonto.

[00:19:09] Speaker 03:
What I'm saying is the combination suggests that limitation.

[00:19:15] Speaker 03:
My apologies.

[00:19:16] Speaker 03:
And so once the examiner and the board found that there was this suggestion in the references, it then looked to what is the motivation to combine these references.

[00:19:26] Speaker 03:
Well, first starting with the fact that this is well known in the art to encrypt information, to keep it secure,

[00:19:33] Speaker 03:
And that Arling itself talks about also, I'm sorry, the claimed invention and Arling talk about the fact that it's well-known in the art.

[00:19:40] Speaker 03:
The board gave numerous reasons for motivation.

[00:19:43] Speaker 03:
It talked about that it would yield predictable results because these are known elements.

[00:19:48] Speaker 03:
It talked about obvious to try.

[00:19:49] Speaker 03:
And then within that, it made the point that this is a structural claim limitation.

[00:19:55] Speaker 03:
And the only thing that's different is the type of data that is being stored.

[00:19:59] Speaker 03:
And that wouldn't necessarily change the fact

[00:20:03] Speaker 03:
is still obvious to have a different type of data stored in this apparatus claim, for example.

[00:20:09] Speaker 03:
And so this notion that obvious to try is somehow false, we disagree with.

[00:20:14] Speaker 03:
But even if this court were to disagree with the PTO, there are still other reasons of motivation, yielding predictable results and the fact that this is an apparatus claim.

[00:20:24] Speaker 03:
And the only difference is the type of data that is being stored.

[00:20:27] Speaker 03:
And that's not really relevant to whether or not there's an obvious finding here.

[00:20:33] Speaker 02:
One of the arguments that's being made today on appeal is that the board's obvious to try rationale suffers from explanation that doesn't identify the design need or market pressure and it doesn't show that there's a finite number of identified critical solutions.

[00:20:53] Speaker 02:
How do you respond to that?

[00:20:54] Speaker 03:
So the references themselves sort of talk about the problem of securing, the problem being that you need to secure data and talks about the

[00:21:03] Speaker 03:
The market need in the design analysis is the fact that people recognize that this needs to be done.

[00:21:07] Speaker 02:
I agree that the board didn't usually people need this to be done.

[00:21:11] Speaker 02:
I'm sorry.

[00:21:11] Speaker 03:
I'm sorry.

[00:21:12] Speaker 03:
That was a little loose with my language.

[00:21:14] Speaker 03:
Recognizing that encryption of this information to secure the information is required, right?

[00:21:22] Speaker 03:
If you want to have if you have proprietary information,

[00:21:25] Speaker 03:
From these manufacturers they want to make sure that that is secure and so that in order to do that you have to encrypt the information That's laid out within the references

[00:21:34] Speaker 03:
I do agree that the board decision doesn't repeat that, but the board is basically pointing to the references and saying the motivation is in the references themselves, and that is in there, this notion of what is the problem with design and marketing.

[00:21:50] Speaker 03:
As for this idea of finite number, the board does talk about the fact that there's only two things you can do.

[00:21:56] Speaker 03:
You can have encrypted data, or you can have non-encrypted data.

[00:21:59] Speaker 03:
That's the finite number.

[00:22:01] Speaker 03:
There's no in-between.

[00:22:02] Speaker 02:
What about finite number of different ways to solve the problem of securing the data?

[00:22:08] Speaker 03:
Well, it's to solve the problem of securing the data within the realm of what we're considering here, and that is whether or not you have a remote control that has data being protected within

[00:22:20] Speaker 02:
Remember quickly that the partner reference has the code set in an instruction booklet or something That's it is encrypted or it's it isn't good.

[00:22:28] Speaker 03:
It's encrypted, but it's in a instruction booklet.

[00:22:31] Speaker 03:
It's not in the memory So that's why we examine.

[00:22:34] Speaker 03:
I mean, that's one solution right to have it somewhere else But it's but it's still encrypted.

[00:22:40] Speaker 03:
It's still the binary thing of encrypted verse non encrypted And so that is in there

[00:22:46] Speaker 03:
in the board decision and the board talked about that.

[00:22:48] Speaker 03:
So we disagree with the appellant that there's something wrong with the obvious to try analysis.

[00:22:54] Speaker 03:
And so the PTO would argue that the board, substantial evidence supports the board's findings and we ask that this court from the decision.

[00:23:02] Speaker 03:
And if you have no further questions, I'll yield my time.

[00:23:06] Speaker 04:
Okay.

[00:23:07] Speaker 03:
Thank you.

[00:23:10] Speaker 04:
Thank you.

[00:23:11] Speaker 04:
We'll allow for three minutes.

[00:23:12] Speaker 00:
Thank you, your honor.

[00:23:13] Speaker 00:
Just a couple of things.

[00:23:15] Speaker 00:
There was reference to Appendix 7 and 8, the board's decision.

[00:23:20] Speaker 00:
And I think that shows there's another reason for why this decision is not supported by substantial evidence.

[00:23:28] Speaker 00:
We already talked about the top of Appendix 7 where

[00:23:31] Speaker 00:
The board says Arling doesn't expressly disclose teachers suggest the relevant limitation.

[00:23:36] Speaker 00:
Then in appendix eight, now it's saying Arling does suggest the use of encrypting code set data that is stored in a remote control memory, entirely inconsistent.

[00:23:47] Speaker 00:
The point is, you have to find this limitation somewhere.

[00:23:51] Speaker 00:
And we have two references that don't disclose teachers suggest it.

[00:23:55] Speaker 00:
And the board has not shown

[00:24:00] Speaker 00:
That it's there suggested as a combination we UBI also.

[00:24:06] Speaker 00:
Reference the case University of Strathclyde and I think it's that there's a similar holding there.

[00:24:12] Speaker 00:
This is us 17th at 4th 155.

[00:24:15] Speaker 00:
I'm just going to read one one of the.

[00:24:20] Speaker 00:
One of the.

[00:24:23] Speaker 00:
points because I think it's relevant and I'm at 161 and the court says given neither Ashkenazi nor Nitsan teaches or suggests inactivation of any bacteria

[00:24:41] Speaker 00:
without using a photosynthesizer, we fail to see why a skilled artisan would opt to entirely omit a photosynthesizer when combining these references.

[00:24:50] Speaker 00:
What I like about this case is it delves into the same issues.

[00:24:54] Speaker 00:
You have two references.

[00:24:55] Speaker 00:
They both don't disclose, teach or suggest the limitation.

[00:24:59] Speaker 00:
And the court's saying, why all of a sudden, when you combine them, would?

[00:25:03] Speaker 02:
Do you agree, though, that's a case-by-case termination, right?

[00:25:06] Speaker 02:
And some propose combinations.

[00:25:09] Speaker 00:
Sure.

[00:25:11] Speaker 02:
It is obvious that it would be in there when the combination is proposed.

[00:25:15] Speaker 02:
Like our case law, for example, in the Fleming case stands for that proposition.

[00:25:19] Speaker 02:
That sometimes when you do make the combination as proposed by the examiner or the advocate or whoever, it's there.

[00:25:27] Speaker 02:
But in this particular one, in this University of Strathclyde, I guess it wasn't.

[00:25:31] Speaker 02:
So it's really a factual question, right?

[00:25:33] Speaker 02:
Whether the proposed combination would disclose the missing limitation.

[00:25:38] Speaker 00:
Agree, and I think it's even stronger here because you have the examiner saying one reference doesn't do it and now you have the board saying the other reference doesn't do it And so how do you get to?

[00:25:49] Speaker 00:
when you combine them Now they suggest it that's