requirement that the coin feature be identically disclosed in the prior art like in a section one hundred and two analysis in this case the board's own fact findings establish obviousness as a matter of law when the correct test is applied the issues  possibilities are server option with instructions supplied by mobile con and phone option with instructions supplied by the native phones to the heart of the matter a key fact finding the board made is that between the server i think they just cussed dr libby a declaration and even though he said something he didn't provide any support in terms of the suggestion argument why someone skill discussion and in dr hose discussion he always drains things as his understanding based on what the what the teachings of latte was frame rate parameter being supplied from the server or being supplied from the phone or both obvious since they are both appreciated and recognized as that the two possible sources the video control and if we look at what dr  said in reviewed we submit that a skilled person is guided to the server option as being the most likely and predictable of the two since as he pointed out the frame rate of fifteen frames per nd is only problem korea well i i think that highlights the board's error of requiring express disclosure that just a compromise or must be there as opposed to the phone option under under  precise teaching is not the test under k s r the precise teachings are not required before the court can rely on inferences and creative steps and if we do look look at what the board actually did say that was expressed in law today if you look at things in appendix fourteen in and around in that area it was pretty clear the board did find  i don't think those are in dispute the existing fact finding support obviousness as a matter of law where in this case you funnels down to two possible options the phone option or the server option as as a matter t brings us then to the question of the reply and in this case the reply arguments were proper and it was an abuse to ignore them but i will say that because there is  agreement on the fact that both options can supply the parameters the court can decide this case on the obviousness test and does not need to reach the abuse of discretion issue for failure to consider the reply  nonetheless the reply should have been considered the st the reply did not prejudice the patent owner because the patent owner was provided a service life in fact if anything the prejudice works the other direction your additional arguments right that were confused on that as well the board said we need not and do not consider the reply and then to the extent that there is discussion is that dick so in this case they were not seeing that the arguments in the reply could have been predicted if you know if the petition states that the whole argument about the similarity of the of the phone native parameters those specified petition stage there really is no dispute in the and the board and the patent owner agreed with with the key facts findings that both the server option and the phone option for video capture were recognized alternatives you've heard a lot from twitter today and it's brief about the purported legal errors committed by the board as well as the board suppose a disregard for evidence and arguments in its reply that the only issue that this court needs to address is whether the board factual findings regarding what lahti would or would not suggest to a person and skilling are supported by substantial evidence all of twitter's arguments boil down to a disagreement with the board finding that a person of the skill in the art would not statement before the board that it is equally consistent equally is not sufficient evidence that a person of skilling are at the time of lottie would understand both of those options to be available and twitter makes a lot of noise about the statements regarding equally consistent that were made by vitrines expert but it takes those statements out of context dramatically the board summarized the statements in its final written decision and what we think is a fairly accurate way venturing argued below that law does not disclose that the video captured grandmothers are provided by the mobic on application and that because it was commonplace at the time adi was published for mobile devices to record video in accordance with the three g t p specification which includes the video capture parameters that are listed in lahti that it would be equally consistent with recording using a video device using a device as native capabilities and then went on to say because there's no indication in lahti that the mobile con application controls the video recording parameters a person of skill in the art reviewing lotty would understand that the mo the current application simply use the phones native parameters at the end of the day the evidence  failing in the appeal that this court needs to address and look at is that twitter failed to connect the dots for the board there's no evidence about why a person of skill in the art would understand the moba khan application to be controlling the video parameters and indeed there is substantial evidence showing that a person of skill in the art would not understand that and in fact would understand the phone's native camera application to be performing those parameters sorry i have cited i think the appendix pages where we made the argument below and not the board site for that the board didn't deal with that particular argument the board did and i'm apologize your honor i just don't ninety the important point to take away from this i think is that it's appendix sixteen it's where the board discusses that your honor ok thank you the important point i think that we want to make to take away from that is that in hindsight the parties are recognizing that both of these options would be available but there's no evidence and right of record that a person is going the are at the time of lobby or at the time of the patent would have appreciated that that both options were available there certainly no indication in law to itself and there's no other evidence of record twitter merely asserted that a person of skill in the art would appreciate that but i didn't provide any evidence showing why or how that would be true and  ask why is it that a person the more nervous feeling you are looking at before that person at the time of the invention not apply practical judgment undertake asar and consider the other options your honor there's evidence in the records that the phone itself was more likely to control the video capture parameters than the mobic on application  again is insufficient because they never explained whether those could be used in fact whether it's expert conceded that he wasn't aware of any software developer kit or a p i that could be used to externally control the video recording  you're going to be fair we didn't make a concession that the two were equally consistent in the context of the argument that we made or stating that there's no indication in law that that the functionality was controlled by the there's also no express statement that it's controlled by the phone but given all of the other evidence about the video recording parameters that were available in phones at the time and that phones were typically programmed to record according to this three g p p specification that latif disclosure was consistent with the phone and controlling that functionality and in the absence of any evidence that the mobic on application would do that or that a person a skill in the art would understand not to be possible that try and that's the argument that they would have had to make for this equally consistent evidence that they're relying on now to make sense that it would have been obvious for a person to try to implement  of evidence is just not present in the record here the nd and alternative holding is even considering those additional arguments there is none the less insufficient evidence to show that laci would teach or suggest the disputed claim element twitter has to win on both of those together and but if the court agreed with the board on the  nd holding it doesn't have to reach the st one and as the train explained in our brief the board devoted five pages of its final written decision to its analysis of the evidence in twitter's replies so it's hard to understand how one could argue that the board did not thoroughly consider an address that evidence and all of the board your friend characterized if i understood him correctly that that was do you think why that not your honor our position is that it's an alternative holding and the board couched it as that they held st that they didn't need to consider the evidence but then they made the alternative holding that we are going to go on and that at no point did twitter or its expert or any other evidence that they offered demonstrate why a person of skill in the r would understand that mostly con was providing the video capture parameters and twitter didn't acknowledge is that countless pages after that where the board goes on to evaluate what exactly lotty would suggest to a person feeling they aren't in the absence of an express disclosure and as we've talked a lot about here today as we had in our brief there's not evidence about why a person of skill in the art would understand the speech or to be present a lot a twitter in its expert just merely assert that that would be the case but they fail to connect the dots for the board and well your honor i think twitter conceded earlier and that someone comes can correct me if i'm misrepresenting this but then their argument does not hinge on their reply  and as as we pointed out even if they do allege that the reply evidence is necessary and that it hinges on that the board did go on to consider that and gave this court ample pages with it this is not hindsight situation everyone agrees that the two options are equally consistent and if you look at appendix two thousand four hundred and twenty eight the declaration from the patent owners expert is is very clear on that very clear  secondly the board also agreed with the fact finding that either either option was possible so i don't think there's any dispute as to the fact that this does funnel down to two specific options on the whole law is to provide restrictions on the nature of the videos being uploaded including the finding for mass and video quality that will be accepted this applies to a good reason and design for why he understood set the format for the frame rate not just the default phone settings so here again it is the still stand to really what is the proper test for obviousness under under k s r the express disclosure