is the am i correct that the only issue here is the priority suggested that it is simply software that enable database access neither required or displayed now the court may remember the sort of back and forth a tangled approach to how this came to be in the final written decision at page thirty three of our brief of our blue brief we laid out what was in the initial petition which is the driver seat driver safety data that's what liberty suggested were bases for lack of prior then instead of the narrowing the issues the board went beyond those to add interface m to earlier if hypothetically we were to agree with the board and substantial evidence supports the finding that the six if the application doesn't describe calculating a driver safety for does that take care interface module and driver safety score but under the appropriate claim construction so but the absence of support for the driver safety score would mean that you're not entitled to the sixty priority if  necessarily require generating a driver safety school i think our position on driver safety score is really that it's a classification rating not necessarily rejecting or i put  score we rely on the eight to twenty five the twenty one to twenty three that discusses processing the raw data elements to generate either the calculated or derived data elements and we rely on eight to twelve at fifteen to eighteen which discusses actual operating characteristics to provide a classification rating for an operator and that is a classification rating being the risk you and what the is that it only needs to be processed insurance risk value associated with driver safety there's nothing that says it has to be counted that it has to come up to be a number in fact it can be hi removed it's clear that a reading factor of classification reading is a risk value and provides support for the driver safety school one thing that is also a consideration here is that the board or had interpretive even one of the board's interpretation of calculated they found sufficient support in what was the macmillan patent the one three four patent which has the same specification the same language as the six five zero important part they found that that supported calculating the scaled score from an abstract so the board has already found in other prosecution that it's sufficient disclosure even for a count but as we say calculated is not necessary for the driver safety score it was an error in clean construction as i was explaining to the court about the way in which the procedure occurred here the shifting grounds are really one of the issues in this appeal that cause concern for progressive the fact that the grounds instead of being narrowed as they should be in an i in a c d n were in fact expanded and then changed again into the final decision the final decision  with the board appeared to do without making a careful claim construction and this is where we have to infer because it wasn't laid out properly is to require a display in the absence of a display is what prevents there from being an interface module so if you look at figure five which is depicted on twenty two the board says that the arrow that goes between five eighteen and five thirty the data stored in the charges of racism is the arrow that shows the transfer of data in most the url between the data storage five eighteen and charges owners and five thirty shows the transfer so that at least is there with respect to the chargers out although the board goes on to say that there must be some type of sport displayed display is not required for a proper interpretation of interface module there was no  of the board's decision because it appears to relate to interface module with the caption as interface and then instead of discussing interface module itself it goes on to discuss well there's remember and then not to be done is really that it doesn't have the driver safety score driver safety data it's committed to in a fashion that makes it difficult to understand what the board is doing but to the point of driver safety score as we said if you do conclude that a driver safety score has to be calculated for instance that would also factor also the classification rating which creates a risk value as a driver  certain reasons why reading factor as i think the board said is broader than the driver safety scores of the fact that the earlier application might describe in a relevant way the rating factor doesn't mean it's describing one particular kind of rating factor so i just want to focus on the other point in my remembering right that the was it the six fifty applications that had a little trouble keeping track of all of them  i think this is a good time for me to discuss a little bit about the the procedural error and what happened in this in the way in which the board treated as the board went from driver safety scor driver safety data to then expand on that decision to use a two to five different reasons for there being a lack of buyers and then narrowing down to interface module without a clear construction of what an conflated the two terms in a fashion that if we were going to address the terms properly through expert testimony or through argument we would want to have the opportunity to do so based on what appears to be the board's new view of what is lacking for priorities so instead of i'm a little unclear when they instituted a relied on a number of grounds including interface  institution and then your complaint is when they got to the end they got rid of the other terms but they maintained only the interface model and they got out of the argument part of the interface module so i mean just to run i'm sorry i mean just in the process then forgetting the substance of what here i mean at the board in step two by the various things and then it come the weeds way down based presumably in part on your arguments to only one of those because of the arguments you may need your view is then you get to start over again no what happened was when the border said interface module in the final rescission judge toronto pointed out there was a lot of further discussion about well it's not an interface module that has this that and the other particularly a driver safety for driver safety but wasn't that part of the back and forth going back in terms of the reply in your friend's response i mean that didn't just come out of nowhere and no one ever heard of that right that was part of the give and take in the proceedings that proceeded it was somewhat part of the give and take driver safety data was not part of the board's institution decision driver so you know i'm talking about what happened between the institution decision and then the final decision so there was given to take which led before and so we was that the first time it wasn't the first time you heard that it was a guess i mean i'm wondering even if new grounds for rejection of somehow applies here why did that this would fit into that even if it were applicable the fox would fit to give us an opportunity to fairly discuss the arguments relating to driver safety score unfairly discuss the arguments relating to driver safety data separately because the board  conflated them in the final decision the rules of the board didn't address them separately the board pulled them together and in that coming willing we would want the arms to to explain why in the coming wing who are experts of who are going in there was there that we didn't have a chance to do that it was a communal attempt that brought together driver safety score and interface module in a rather confusing fashion risk with respect to the claim construction of driver safety score and the argument that somehow driver safety data might be in to an earlier priority the driver safety score or not  both waived neither was preserved before the war with respect to claim construction site the court page page thirty one eighteen this is a patent on the response  after institution and i can imagine that a system might work that way but in the absence of some clear notice from the board that you have to rehash issues that you fully raised and have been cleanly rejected we don't ordinarily require live against in any form to make every argument twice well your honor i think that there is a difference in the procedures under the day that due to something something in the regulations say any argument that you made at the institution stage doesn't matter that you made it before a clean slate after we  claim constructions there subject to modification later that doesn't mean you have to keep raising that have at every stage including a jury instruction state so if if there were clear notice in which the board said forget everything we've got the institution stage if you want to get to it you've got to use some of your pages in the patent owners response to do it then that's one thing but knowing waiver by her to have not read raising something that think what's there is something important up the structure here liberty under the procedures before the board does not have an opportunity to file a reply to the preliminary patent owners response the p petition eighty as well to there's been eighty one hundred sixty fifteen the petitioner does not have the opportunity to respond to arguments that were made in the preliminary patent response that  response to an argument i think you're asking a question of procedure before the board and i do think that and i don't know if it happened in this particular in this particular procedure to do you know do some of the board is going to believe that an issue has been abandoned if the party in the case that is applying that moola in the procedure they could have simply nodded and we continued to stand on our objection the board would have known if there was any need to to further address that they didn't they relied on progressive agreement liberty a lot of progress is agreement by not addressing it further so i think that the issue has been way certainly in the issues with respect to claim the premium itself is the final answer it is calculated based on the driver safety score so the premium can also be the driver safety score progressive tried to engage and i would characterize this what textual evidence in the claims of the spec indicates a strong link or otherwise that an estimated cost is not a driver safety score because under the s construction because i think that even if that issue is preserved the board's construction of driver safety score is warranted the term that is being construed of the phrase being true is responsive to a group quest to quantify driver behavior by processing the selected on board vehicle data to render a driver safety score that both the terms that was supported further by the specifications and the additional tests perhaps it was added in the between the six five zero application and the five nine eight application the progressive added twelve new figures thirteen columns of packed most of which is addressed specifically to this feature of the five nine eight and specifically figure nine is the figure that three to another measure of safety add them up and you get driver safety score that's going to nine one eight and so if you're not so the board have ample support for its construction of this term in the claim language and then the specification canadians i'm going to just press on this just a little bit more and i think i'm going to sound a little bit like a broken record so an estimated insurance cost that's a number it has a dollar sign in front of it but so glad and why is an estimated insurance cost not a try her safety school because your honor it is if it may be but it is not necessarily accurate more specific but it's rooted in this notion of act where plan one can calculate a premium or even an estimated cost of insurance which is just a precursor to the premium based on actuarial class with n without any need to go through the process of calculating a driver safety score as the board rightly held and because a drunk driver safety score is reflected  version of the ratings accurately enough automobiles safety score that's true because there is this distinction that's being drawn between what what this is claiming is something that is specific to the driver and that's why we say that the word individualized is appropriate here because it's not about to have to wear a class that is the invention of the five man a pattern or it's the claimed invention of course we know now that version o that's what we'll see is what was played that was what was different from the old actor where a black actor where a class can be smaller or larger but it's all about sort of a group of people driver safety scores count related for the individual and although again it may have been done the six five though application may have been done with such a calculation it was not there is a written description of all  the board's institution decisions singled out driver safety for said there was no written description of the fix side of application therefore none of the independent claims were entitled to priority on that basis it was required to say something about that in the patent on a response they did not to the contrary they have a clean mapping chart that treats driver safety data and we have the representative claim one language about it's so that the board can render its final written decision on the three twenty eight that is where the board explains why the claims are not apple so in this particular case trial was instituted the sole issue was analysis in the final written decision this is in the scenario where we institute trials for the sole purposes of trying to figure out whether or not they got the institution decision right the point of the institution decision frankly is captured a three zero seven i think i'm a little confused about what procedural issue we're actually talking about in this case this this case involves nothing that new ground of rejection you don't your honor that's an interesting point because i don't think it is either but the discussion in the moving case sort of had a flavor of the board not only reached outside the position it's an institution decision but then it shifted ground from the institution decision to the binary decision which has that no right answer well i mean i think there's something there it's not as drawn out it's not a valid as in groups one and three but there is little piece and i can get a friend talked about it just dealing with the interface model or just trying to your question actually get on something that as i was sitting there give close if and even if this court ruling to reach it as i detailed in my brief they rated it so i don't know what the board is supposed to do to violent response when you make arguments the board is going to engage solve at some level and you can't complain procedurally the board error by doing something i have to do but that is a challenge to the institutions vision which schools are preclude the other thing i'll add to that on the moving my friend made the argument that the brief have not addressed this question that i was harping on estimated costs being or not being a driver safety or is that right i have a cover of saying we did not address that  specifically an estimated cost cannot be a driver safety score but the general idea seems to be the driver safety score is something that interest isn't to an estimation of cost and other things and the estimation of cost will take account of driver safety and automobile safety and other things so we can't really be the same so what's your best argument for why the estimated costs and nevertheless the   possibilities automobile safety for example remember we have two arguments on this estimated cost and also classification rating and estimated cost would be based on some type of rating classification rating that submitted a classification rating is disclosed at eight to twelve the classification rating is discussed in claims forty as being a reading factor which is a type of driver safety school and so the ratings factor driver safety score is something that's implied as is used in this specification to relating to something that is a driver safety school kid can dance and the board said in a reading from a twenty seven page twenty seven of the final written decision there is no dispute that an insurance cost is not a driver safety score the board wrong there is in fact a dispute about that or what insurance cost requires a rating and this is where i think the emphasis is on the rating factor i don't believe we're saying that i costs by itself necessarily is a driver safety score it is a miracle number but the insurance cost is necessarily based on a reading factor that reading factor is a driver safety score the score does not have to be a numeric driver safety score it simply can't be something that is quantified as it is in the specification as high or low excessive problems and when you look at the driver safety data data makes it clear that you do not have to have something that's quantified as a score there's a difference between driver safety data and driver safety score and the war recognize a difference and said the driver safety data is broader than drive including claims with the driver safety data claim thirty three and this is something that we believe has been so good for the board does if the court does find that driver safety data