because under a proper application of the board's construction of the term image vector and to keep the record evidence uniformly and decisively demonstrates that shoney's congestion data steps whether with sony alone its institution decision the board construed the term image vector entities and the board maintained that construction in its final written the session specifically to or construed image of actor entities to mean a format of information representing an image to be displayed that includes a shape as igniting statement and he positions designating statement used to draw the shape of real entity however the board erred as a matter of law when it so if you apply the construction appropriately even under substantial evidence i think there is a river or a reversal is appropriate because as the supreme court makes clear and they can convene circle when they instituted or applied substantial evidence standard to p t o review to me clear that it's not a rubberstamp review it requires us searching review a meaningful review of the entire record with evidence that of support and it tracks  record that record evidence is uniform and one sided that sony's congestion data sets under a proper construction disclosed image of vector entities and the same applies of respect to the obviousness analysis under because this case army is clear any need will support a basis for a combining two references now specifically with the i guess the threshold question of under proper construction whether so many disclosures congestion data sets the board construction required information representing an image to be displayed dr michael sam's testimony explained through the view of how a person born a schoolyard would understand sony that sony does other shapes but align the shaping a line to five when a patent says it even the most common shape designates that not the only not the only but the claimed i think we only need one shaped like a line to be within the scope of the claims and i would point in terms of substantial evidence here the so only reference itself at calm to lunch forty through forty five discloses precisely what's required by the includes quote a data item representing the position of the leading and of a congested road section it also explains that the us sets includes quote a data item representing the direction just like and the data item one eight patterns discussion of an image vector and that's paragraph thirty of dr michelson's declaration at appendix five hundred twenty further patent owners own expert testified that sony scored at pa vector information that would be used in a vector system i think this case on sony alone is precisely what the court explained in scanner technologies which is if there's only relatively small logical gap between a prior art mclane in this case   is closed by skilled artisans pursuing known options within her technical graph that's precisely the case here and let because there is no dispute that at the time the relevant time period it was two primary forms of the format for transmitting data roster based invective and finally respect the soane sony and roy the without citing any evidence the board concluded that google did not establish why a skilled  and importantly dr michael sims on challenge testimony addresses the very point that the board identified in explicit detail first dr michael flynn explained that given roy's teaching that using vector based data would improve the seven dr michael sims declaration at appendix pages five fifty one five fifty two and paragraph thirty three of us that aeration at appendix page fifteen thirty three and finally given that roy express teaches that improved resolution faster image generation and better zooming capabilities are possible because a map is generated with victor based format that has already been downloaded that's roy's words dr michelson again explained instituted ground of we were there are two i will talk about those cases that you just cited are actually cases on orders because those actually in those cases those orders were made on a motion to remain and before that it was her and i believe in the at the to space at the very end judge moore says in the opinion we were doing this because there was a timely request for remain and that is and again look at the and which says we don't want these piecemeal appeals so the procedural posture of those cases was very very different in that the procedural possible there was with the exception of p d s case which was totally different for other reasons was would say that this error would be harmless because the board has already made a finding below on these alternative grounds there was no reasonable likelihood of success on the merits so what's going to be the point of remaining this case it's only going to serve to delay things so that's number one on certain ground from certain claim we are not a position to decide those issues on the merits in order to determine whether or not it would be a waste of time to send a board that's just something we are granted there was a it was no request for s s relief there but he made it clear that it's discretionary whether or not to remain and one of the reasons he cited for that was the fact that seven zero six appeal is under harmless error standard ok so here there not conclude that there's no harmless error because the arguments had no merit us start which the statute does not envision we would have in the first instance with to a jury if the board's job in the first instance make that determination you didn't have an argument from google challenging the merits of those decisions well because they're not properly before us because the board didn't institute we've clearly said that those are review all if they're not instituted until now and you know we've that you've said the same challenge the non instituted grounds where the instead of moving for a remained and saying let's send this back to the patent office first for them to determine what with the right procedure would be with respect to the not instituting grounds instead they said hey we're going to treat this thing as a final judgment we're going to let the appeal go and then do it that way and so the whole appeal has gone and instead of moving in the beginning to allow the patent office to say you know this is what should happen with these grounds was going to do the same thing which would have actually end up being the nominee of you would sit in instead they elected to bring it up on the appeal as a substantive matter which means the whole judgment below went final which in which would should make it non reviewable but then what you've done is you've taken it into judge rogers territory where at the best you get to be discretion ok well if it's an order even if it's presidential i would tell you that it's not binding on this case because we haven't had a chance to the argument to specific argument that we have made has not been raised in the courts before and i think it's fair to have it considered which is that if you take chevron ok chevron has a two step analysis and that two step analysis says first you look and see whether the statute controls the case and then second the second one if the statute is ambiguous or is silent then the built retro there's two there's two elements of retroactive law one is for cases that have already gone fine there's no question in the cases that have already gone fall there's no retroactively there is a presumption of retroactively for a case that still pending ok and i would miss that that presumption would apply in this case however it is rebutted for the reasons we stayed in a brief there are four considerations when you do not in fact apply retroactive decision to a pending case and one of those is the same as what you get under seven of six which is a harmless error ok now again if the p tap is found in this would ordinarily be we've already heard from the federal circuit before sas that it's a motion before this appeal was heard so we won't have piecemeal appeals because really what's going on here with this is an attempt by google to get those piecemeal appeals in order to delay the resolution of this case that's not fair to that's not fair my client i don't think and i respectfully appeal mostly we stand on our of our brief but again sony is very much like all the other prior we talked about what it's about is you take some information traffic data you send it to some sort processor which already has a locally stored map and you superimpose an  image on there is no disclosure whatsoever of superimposing two naps on each other there's not even a disclosure of a time variant now and again that's something that was found now the the the p holding was squarely predicated first on this issue of no shape as it needs to and you'll recall that what the peach had found was the shape is locally designated it's not something received as required by the planes remember the require that these attribute designated shape designation position designated statements must be received and it says we know in so many that's not the case because the arrows are located locally generated there is nothing in these congestion data sets that tells you what is going to be displayed ok that by itself is a fact and it seems it's of it's subject to substantial evidence review but i think there's something else here that i want to make clear because it's a fundamental flaw in the arguments that you heard for reversing that decision you heard that what so many provides is not just position but shape what it says is what the argument is in their brief and you heard it again here in oral argument is that if you have coordinates p one two and then a second set of coordinates p p three p four that that is not only position coordinates that is the shape because the shape is a one that is false if you look at the p the designating statement then it has the shape s one that is a line and it must tell you that shape is a line because having p one and p two by itself does not tell you that you're going to way the shape of what is displayed which is the arrows is dictated local so it's meters just i don't see what else could be said about that another thing you heard here is that there is this is a case where there's a small logical gap between the invention and the prior art for the reasons i've already explained your honor that is not true this is not just a case where it's what color you put on the roads this is how you create the whole structure here in the pattern we have in claims forty five and forty six you create the tropics you need you create a profit state map which has time varied information and you superimposed on another map that's two separate maps of two different kinds sony doesn't a has one metric it's not traffic in there is no it's not even to a very kind very information because the only time very information is the data and the map itself is just the basic map and you're just taking an individual images and putting them on there every time you move the men up you have to raise the image there is no two separate naps so this isn't a small logical gap this is a huge difference between the prior and that's why that's why these these claims in both the both sets patents are very important claims and finally in the two minutes i want to talk also about the arguments with respect to the suggestion to combine because as was pointed out previously there is not just a finding that get failed to disclose the shape designating statement the board also found that there was not sufficient suggestion to combine and what we heard from on the in a previous argument was is that that their expert said that a person would know to take roi and it would improve the speed of transmission to add this extra data to it in the way of vectors the board did not credit that and regardless again it it doesn't matter what  of nothing to do with time variant maps at all ok and what michelson said well if you're sending the traffic data it would be more efficient to also send vector information so he's saying it would be more efficient in the transmission to send this additional information that makes no sense the efficiency that royce was talking about has nothing to do with the information you're sending it has to do with the information that you are using in the processor to build the map it's already stored in the first place so briefly stark where destruction fell and that which is the obviousness argument of this court has made clear even under substantial evidence standard when it has not hesitated to overturn aborts findings were no its findings are not supported by any evidence here the board does not cite any evidence as to why a person of ordinary skill new york would not have made the money dr michelson's expert declaration paragraph seventy seven and eighty one and seventy eight speak directly to why a person of ordinary skill new that the images in sony are generated locally the board did find that and that underscores the board's error because the very point of having a vector based data is that you generate images locally as i mentioned earlier and there's no disputing this on the record and i think in a read brief pages five and six make this clear there were two hypes of data formats raster based formats and vector based formats raster based formats took little pieces of the images argument is based on finding out i believe the sas decision came down about a week before our brief was do so i think we are entirely preserve our ability to raise assess the issue by raising to last point your honor mr bowman felt also argues that there's nothing in the congestion data sets that will tell you what will be displayed again that's attorney argument that was not argued down below there's no expert testimony for that sony expressly refutes that because it makes clear that what's transmitted is the location position and and the rection of traffic that will be shown and it also tells you how many congestion mark you can have based on the degree of traffic it's certainly that's the whole point sunny days information for displaying track a traffic image on a map and then the final pointer honors i believe mr owen fell argued that simply having two positions p one p two is not enough because it doesn't provide a shape a couple of points and again that argument was not raised below by patton or there's no evidence to support the argument that simply attorney argument now so many refutes that dr michelson explains that the position cordon it's corresponding to a map or the system in so many are essentially identical to the shape designating statement in a i'm sorry tied to a map based coordinate system so if i have two coordinates i know it's going to be a line i know to shape based on the positions of those coordinates with respect to a map or that system and finally your honour's in s way for example column three lines twenty six twenty eight that's at page seven hundred one of the appendix like columns or lines thirty one thirty three at page seven hundred one of the appendix and also claims one