it please the court with respect to the impact of s a s on the one five one i p r we view the not presidential decision in polaris industries versus arctic caps providing some guidance here and industries about a week ago choosing not to exercise jurisdiction and remanding so that the board could decide all claims and challenges to agree that your case is a little bit different than that one i think in that  is a situation where the arguments that were made and show that there are some relationship between the board's final written decision and it's institution decision and you don't have a situation like that here do you and what i mean by trial court reiterated just two twenty sixteen that it won't entertain jurisdiction over decisions from the ministry of agencies like the board where there's not a proper final judgment and all of the prudential reasons that were articulated in the in re are going to challenge the case what apply here both in terms of giving deference to the fact finder in terms of vacated correct so you're saying we can't even consider the claims that were instituted i think under the final judgment rule i'm only aware of two exceptions one of collateral are threats case for example the court found that a dismiss all that resulted in an adverse judgment was final enough for the cortex or size jurisdiction over i see the distinction there has been addressed and spend addressed here it's been addressed by the ford and that's what we're going to be arguing about after these two minutes so there is nothing that the board can do that's going to change the outcome it essentially just be a rubber stamp of the independent of the dependent claims saying that they're valid because the independent claims are valid and that is a huge waste of judicial resources to have to  rubber stamp from the board that can't do anything else because their hands are tied for us to come back here and argue the exact same issues it has to be the exact same issues because the petitioner is arguing  and the key question edition here is whether or not the board properly interpreted that limitation to require what it characterized as a direct rather than interact call to a  function key here is that the reference at issue ross uses a technique called variable reassignment if you look at the blue brief page thirty nine your appendix eighty five you'll see what that means it means that there is a line in the code is hooked function does cause the first or substitute function the security checking function to provide a service it does so indirectly in the sense that as a result of variable reassign that name of the original function is the one that is called but the function that actually operates or executes is the replacement function so we have here is a security checking strategy where a are just so i'm clear about our arguments we have two separate arguments here one is that the board's construction cover is direct and indirect function calls and that ross satisfies the construction because there's nothing in the claim language that limits or requires only a direct function call that's argument one argument two is that based upon document bit of edges that missions we have a direct function call here the the strategy of variable reassignment resulted what it characterized as an indirect call and that's because the original functions mame it's still in the code our argument edge testified that what's actually occurring as a result of the variable reassignment is a direct function call to the first function but more importantly we think that we should prevail in th upon the language of the construction itself this was a case where the board is deciding to i p r as concurrently on the same day and in the one nine hundred seventy nine i p r its construction  function was a statement or instruction in the content the execution of which causes the function to provide a service that's construction one of the other construction but the board originally entered in this case the one five  that a statement or instruction in a program requesting the services of a particular i e first function so the original construction of the boys admitted was incorrect required calling a particular function the board moved off of that language admitting that it was incorrect in a rony as to have two different constructions for the same term into i p r is decided the same day and it moved to the construction the hundred seventy nine case the language of its construction in the one thousand nine hundred nine case and this is appendix thirty nine eighty doesn't require calling a particular function it doesn't say anything about which function is called other than that the execution must cost the function to provide the service so literally under the language of the corrected construction the disclosure of the prior art ross should satisfy that construction the construction yard you say that the under the board's construction the revised construction in the one five one that the concept of direct or indirect is irrelevant yes your honor now that the board misapplied  or eventually be coated in asphalt and as a result of that erroneous construction or misapplication of the construction and found that the prior art didn't satisfy the limitation we have the exact same issue here issue what do you say we should do if the court were true gree with your position on this called the first function question that you've been arguing in other words you're saying that there was  event because the board did not reach to issues that finch it raised one concerning whether it could show a conception date before ross's similar not asking for a straight reversal  we did originally have a given identification of those issues i think that a reversal would be warranted but you wouldn't be able to enter a judgment you'd remain so we're asking for correction of the claim construction error and in that arena and for the board to reach the secondary considerations and swear behind issues that fiction identified on the boards and there's another issue in this case i'd like to draw the court's attention to the board's findings of indirect writing strategy a variable reassign that is in direct just set of variable reassignment is in direct function call document that a vicious opinion on that point isn't supported by any evidence we find his opinion in his declaration of appendix sixty one twenty to find as it did that ross is called in for correct so not only for the claim construction standpoint we have an error here but on the merits the board needs to do more than just point to an expert the way down and then two thirds of the way down the very bottom fourth line down the second paragraph active x object is now a reference in memory that's going to be pointing to something of typed really be referencing put variable itself which is assigned to hooked active x object and finally there is no indirectness and this is the very bottom of the page when there is a reference to active x object the actual object that's also contradicts that assertion yes your honor and again this is all about the question of what the the code writing strategy  i have nothing further to the left side of the panel has any question fourteen you call the original function then you do a trick you do the variable reassignment and you do the variable reassignment so that you can trigger the cook the quaid and one of the bottom and the first function as a substitute function and the second function is the original function you don't call the original function unless you know it's safe so that's why you put in the substitute because the original function is going to execute it's going to execute that code that one file for in the example right but by the petitioner they substitute that function they don't allow that function safer system counsel argued that there's a consistency between the various applications of the definitions and what's being called the what's not being called the board found that there is culture original functions not good functions dr med bit of it and when i read brief page forty we explain in detail it says there's culture original functions not book lips testimony the cross examination that's referred to that says when you call active x x object you would really be referencing the variable itself which is a sign up to active  causing you to get your triggering the hook function but call is a now and that's the statement that's in the content and the call is to the original function there's no doubt about that and so what you're saying is that if the call is to the original function which then references the hook function that doesn't satisfy call to the original function absolutely doesn't absolutely you want to be ters it's not a safe if if you don't if you're still calling four i mean begin using examples by petitioner obviously we're going to do here they say that the first function is to substitute function the second function is the original function so using those examples you have to put a substitute function in the code itself so that the substitute function is called not the original function that makes it safer that makes that makes the system so that if you do have some type of malicious code or some malicious actor that's going to get in there and change it that the function of ever going is never going to go there's never going to be a call to that to that function council talked about the difference in the constructions as well that the board reference for our benefit we have the detailed analysis of the rehearing decision and this is at a p x thirty nine eighty and in that decision the board explained that it actually used the construction of a statement or instruction in the content that causes the first function to provide a service for the cause of the function to provide a service and its analysis is specifically states that and pages seven and eight of its decision it uses that analysis and then it goes on to explain how it doesn't change their conclusions by modifying to modifying the construction because it doesn't eliminate the requirement their construction does not eliminate the requirement that there is a call to a first function and the petitioner identified the first function as the public option and they're simply not a call to a hook function it's not in the content and that's what the board found and why the one where for packet is because not only do you call the function that could be malicious you actually invoke it because the monitoring itself so cazan is even more dangerous because if for some reason that processing code isn't triggered now the militias code has to execute because you've already executed that function so close on is it because on it's even more dangerous then then ross and the one point four protect against that situation because it only allows the second function which the british identified as the original function to be invoked if the security computer determines it's safe because on executes that function no matter what it has to it has to invoke that function because that's how it does the processing step that's how a process processes in the supposed to provide some safety if you never if you never invoke the function there's never going to be any processing of any malicious code and so excuse on even less safe than the ross the ross reference executing the function not just calling it were vs would be appropriate if the court finds that the proper construction of invoke requires execution of the function not there's been confusion that the board level and also in the argument today about the difference between invoking a function and calling the function that's it that's discussed in our briefing if the if the court agrees that the proper construction both requires that the function executes which would be consistent with the one five one i p r where the board treated invoked as meaning the effect of the call to the function being executed a reversal would be required it's worth noting that in argument mr hand agreed with the board in response to questioning that in voting wires function execution that's at appendix thirty nine forty two not just calling we concede in this case that the cause on reference always calls that function but it does not invoke that second function now the fact that it doesn't function is always called would not be enough if the construction requires executing the function not just calling it and appendix one thousand and forty one on the board addressed the actual operation of because all that appendix nineteen the is no execution of the original function until after the safety checks claim constructions to resolve the case because if the court concludes that invoking a function that fires executing the function as the board indicated in the one five one