with the secondary considerations issue the reason this is so significant is because we submit that if the board's analysis of the nexus here was allowed to stand it would render that presumption essentially meaningless while the board found was that there was an acknowledge inventions and yet the were ceded to me analyze that evidence by finding the presumption rebutted simply because certain other factors may have contributed to the success of the square and it's the other copycats c readers in the grey brief at seventeen and nineteen you argue that you say that you argued for a construction of audio output before the p t but the citations you gave us  twenty at the original fuel stage so we obviously didn't appeal the plane instruction issue because we had won and need on cross appealed even though we didn't express fully call it claim construction it's at appendix twelve ninety where instruction so when it was back up to the bar why couldn't erase the claim construction issue well the rules of the real the prosecution of the you can't reverse you arguments you can only wellbeing you said it's the same argument i'm sorry but you said it success figures taken from squares public filings and publicly traded stock information and asked us to take judicial notice of those members that information wasn't on or on record before the p p o s because of the claim inventions are coextensive with the commercial products for which there was well you're just saying that what your expert didn't articulate even though he identified where each of the various elements was he didn't articulate one of e before you can get that presumption you have to prove their code sensitive so whether it's hard for you to prove or not is not relevant to what your burden is an argument is that we did prove it by presenting everything but that one element circumstantial evidence of that a question fact that's right whether or how in the world do you think i can overturn on substantial evidence of boards determination that because one version of square had a particular element it cannot necessarily infer that a subsequent version of square also had that same element on a substantial evidence review standard i think the key point here are is the fact that square did not dispute it and as we said in our brief even effectively admitted they said at the point when we were talking about the commercial success of the three reader plug adapted to be inserted into a input associated with the host device and then further says that the audio output provides power that claim on it all by itself makes clear that the input associated with  i don't remember if we reference the regulation but i don't think so i think we used to in the colloquial sense you know that it is a proceeding in which there are two parties and therefore an opportunity the way no is the original ex parte case way back when that says you can't pure ex parte scenario because the p t o shouldn't be burdened with have to having to develop or respond to evidence like that and we completely agreed but then said when there's somebody on the other side it's then not the p t o s burden to do that it's the other side's burden so why assuming i'm not just going to rely on the fact that in the regulation you defined what you meant by contested proceeding that's not necessarily what i meant by contested proceeding when i used the word so what why why do you think for a practical matter you  opportunity for just i'd like to know all your reasons so there's no opportunity for discovery so that your parties review proceedings in any way proceeding in the district court proceeding to have opportunities for discovery so that you can go out and actually get the interest of justice i think for the idea and get discovery of the other party or other aspects that you might a third party might need to have in order to respond to evidence of secondary consideration so there's not enough of that opportunity in the act party and i say we're just talking about contacts that they can't get discovery they want it and there's all the problem for the office if they're parties reexamined started in the third party drops out we're still in the same sort of situation in the office and able opportunity to apply after the i r s is issued it but here in the enterprise reexamined is going back and forth with the examiner making the decision and if the examiner then doesn't have that third party they're in the same argument they didn't raise them as an alternate ground on their first appeal to the board and though they say that they obviously made the blanket statement that i wrote it as a signal but they didn't provide an argument about why it's a signal that they had initially examiner also when you go back to choose to open prosecution there is opportunity to introduce new evidence obviously the board has found facts that the that the examiner can't overall but you can introduce new testimony is technically waived for the original first time that this appeal but even considering they had it you know the notion of no discovery well being third party requester here was where the company that was responsible your partes reexamined it's going to be holding applies to everybody and there might not be prices in this particular case because square is in possession of all the data you're absolutely right they wouldn't be prejudiced but in the average normal case and she certainly right it is the patent owner alleging their own commercial success normally and so that situation would create a problem with prejudice because the petitioner or the opponent the i p r would have no basis for securing that information so your problem isn't really to tell me that in this case the prejudice wouldn't occur but in my being asked to adopt a rule of law in most cases where it would well the rule of law should think this is covered by the fact that again that this particular issue  this particular problem was waived in this case and so you wouldn't be making the rule of law for all cases you would just be saying that in this case that were by the presumption that it was soon assumed and therefore in this case we're going to hold on to that treatment of the presumption i expressing observed we still disagree with this claim construction but we simply understand we are not allowed to raise it at this point that's why we waited to raise it to this court we think the board's position is clear and there's nothing further for this court to consider other than actually overturning that claim construction finally i want to highlight with my remaining time the point about claim seven of the court's use of hindsight bias and about a waiting there by mueller combination that combination imply that a person of skilled looking at that very innocuous problem easily corrected by simply removing the hudson cable would motivate a person of skill to create a redundant secondary and put using the headset jack that is only a possible motivation with hindsight knowing the benefits of dr one of these invention and so that's another reason why especially given the lack of consideration of secondary considerations which provide a check on hindsight that combination in