petitioners document said was some sort of data structure algorithm the input service structure and the problem is the reporting sheet was a mistranslation of the original german records the correct translation is recording about it is undisputed th translation was incorrect it is also undisputed that the correct translation recording vo is an instrument that cannot measure visible surface structures or any surface structures it is an instrument that measures joint information  articulation and or spatial relationships not the actual surface structures of the job that is also undisputed once that theory was put aside and what was relied upon in the original position was found not to be able to perform cases like in a new basis we have held that as long as the patentee has notice you can look at other portions of the same reference to find the same disclosure even if the petition may have gotten the location  geometry of the jaw input into a computer right correct or not we do not skew that the issue here is what the three d model geometry is and that's not a very good translations kind of awkward but what the three d model geometry is a model of good enough or at least substantial evidence for the fact i'm sorry you were column eight at twenty three twenty nine there is a a impression that's taken that's always done in the prior art when you make one of these very idea of inputting articulation data specifically bannister states when it discusses the method according to the invention movements of the geology point that are known but could not hitherto be simulated namely articulation movements a visible in three dimensions like bannister describes as a whole is in putting articulation information there is a model created and we can see on pages eighteen and nineteen our brief what these articulator is and reporting for us looks like there's nothing in those devices that can measure surface structures yes there is an impression yes there is a model made but the question is then what is input from that model and the only thing banish or describes as its invention is in putting articulation  describing for inputting the model it's a model of movement it's a model that measures movement and it is certainly being input but the question is what data is being input you can think about this is a move a movement model as if you were watch sporting event where you have a golf ball or at a football or a baseball now showing the path of movement there is that you know yellow trail behind the ball that shows information concerning the ball but it's the trajectory of the ball not the surface structure to be replace refer to marking done with radio pick markers and that the supporting zones are for supporting an implant indicating that vailable vertical bone supply what is important about that sense is it is a talks about the supporting zones to be replaced meaning thing be replace now the petitioners detriment of the position and that means the bone structure our decker took the position that in a recording bow what you're measuring and what you're trying to do is put in a replacement tooth a restoration and when you do that you actually have to make a new restoration a false tooth and you do have information concerning the replacement tooth but that is not a visible surface structure measurement of the actual teeth of the patient that is a measurement of the the truth to be replaced underlying bone structure is not a mess and measurement of visible surface structures so if we take that petition of you know then the supporting zones to be replaced are underlying bone structure and according to history statement they would be marked with radio or pick markers truth to be replaced and that is in the record excuse me at fourteen ninety one paragraph on forty one so what the board did is taking a new theory that this must be a measurement what information is being input was incorrect it's not a question of whether or not information is in and whether or not information from the models but the question is what the information was and we prove that the information was articulation not surf now in the final written decision there is a new theory that and out point out the board says and i quote had known as argument concerning banisters use recording vo to record articulation movements of a patient's jaw is not even if that's correct and that that portion of the patent that the challenger fischer's challenge is incorrect they then found that nonetheless the portion of been assured which inputs a three dimensional plaster model of the computer  misunderstood how it operated but the board as a factual matter found it nonetheless disclose the element i'm having trouble concluding why you haven't had a p a notice given that it's the exact same sentence in the petition that they pointed to they may have know it's well it's also referring to the record in chief and how it's implied the question is how that sentence is interpreted and the interpretation that we were looking at is the interpretation that they put forward as far as what is being input and how it interpretation of that citation what is what we proved was incorrect now that there's a new interpretation of regardless of the actual instrument that's described in this section not being able to perform the function we believe the function still being performed and the question is what  whether the board may on its own see what's entre raised and ability challenges to substitute claims that question was left open and we submit that there are very good reasons that the board ought to be question is is that more permitted to go beyond the grounds articulated by the petitioner and combine references that were definitely part of the i p r record in whole but in a manner that wasn't that's the question left open up across completely  with you but that's different from my question to you which is the board put the burden of proving all of this on the wrong person and in multiple places expressed that and said the patentee didn't meet its burden of proving patentability why isn't that a straightforward fakey don't remit the board did as your honor suggest to place the burden on the patent owner but it then went beyond the burtons and finding the very specific honor now since the entire analysis and sent twenty eight through fifty five where the board on its own concludes that the subject matter of substitute claim eleven is obvious based on the petitioner another but and the board also identified that the it was placing the burden on the founder but in the end the board did its own independent review of the record to make its so they did it in the context of the burden being on the panda owner but once the facts were alternately found the facts had had been established that substitute claim eleven was matter of substitute claim eleven obvious to oppose at the time the invention was made yet that's and conclusion but the analysis all is replete with references to the fact that at night we've analyzed the evidence klein taken together amounted to one of three you also argued separately musha back while ns inclined would be a one of three rejection for the amended claims nowhere in your opposition to the medical aims to do every even mention been assured truth they had absolute been mentioning your position with regard to the original claims just to be clear i don't miss apprehend that but you never cited them as at references that ought to be considered by the board in combination with other references to render the amended claims unpatentable is that correct correct you so the board the first time the patentee had any idea that these particular amended claims might be subject to a rejection based on the combination of banish or troop and career incline was when the board rendered a decision rejecting them on the basis of that particular combination of references that's correct your honor that we haven't noticed problems in addition i'm not saying the board doesn't have the authority to do what it did i e all these references were of record to some extent the patentee knew they were all in play in the i p r generally but they clearly never knew that these four were were being argued by you will or considered by the board in this particular combination for these particular claims so i feel like even if they put the burden on the right person to still have it we saw the notice problem because all of our in all of prosecution there's an opportunity for the patentee to respond to a proposed rejection here they never had any opportunity to address whether these four references taken together are to reality claim the left in for example and never had any look you didn't do anything wrong it just to be clear you didn't advocate for the board to do this the board did it you're stuck you're having to defend you know you've got a strong case on the underlying merits don't worry about that on  a set of claims but on these amended claims it just seems to me you've got some procedural problems with what the board has done and i appreciate that you're doing your very best and you're doing a good job of trying to defend what is kind of not one defensible in light of our precedent point on the subject to clients and that is the p t o guidance that was recently issued in connection with what the board will be doing or how the board will be handling motions to  him and in light of the opera products case and according to the p t o guidance the stops that the board's in connection with substitute claim eleven apart can't find out their weiss well it seems to me and i appreciate the notice issue but it seems to me that competing with the militants issue ought to be the patent offices ability to  guidance from the court could be helpful in the context of motions to unmanned and in the context of the panda owner needing to come forward in the first instance to submit the motion and then the petitioner has one opportunity to respond according to the p t o guidelines at that after there is briefing on the motion the board will consider the entirety of the record and if we're going to stick purely to those guidelines and say you know these are the only opportunities for each person to be heard and i don't think we've ever decided for example that the p t o is not permitted to find its own prior art and i'm not sure it isn't now it has never done that r to my knowledge but i don't know that any statute especially we're talking about amended claims prevents the p t o from doing that but if your view of the guidance is correct the p t o could actually find a new reference neither of the motion to a man and so i'm not sure that that precise so maybe question a outside the record evidence because it would be and it would be outside the record evidence but i appreciate the the question of adequate notice to opportunity to be heard as the petitioner as well because you have the burden right so you know if you have the burden of coming forward it would be odd to say you have the burden of coming forward but don't get to ever be heard when the p combines new references that you never contemplated combining or suggested like for example you've got to prove there's motivation you combine the donna on the amended claims issue it's clear that sharon was not given notice of these issues and more importantly under the guidance for the ruling and magnum oil motivations to are patent he has a due process it has a property right to it which is why a lot of these due process issues attached now have a property right to amend it claims they were never issued you know there have to be different standards that apply to amended claims which with korea at war or crime scene there's no reason just because there's no reason because they didn't have a chance to address that combination any more than you did they did your honor simply because banish it was relied upon against the original claims much about why all of this is predicated on your idea that when amended complaints come claims are involved that the p t o can look at nothing beyond the particular combination of references that they argue in the opposition to are met and because we're talking about amending claims it's never been subject to examination i'm not sure the p t o should be so limited i don't know that that's in the public's best interest so if i or if i willing to allow these you know to at least go broad enough to sort of pick and choose from among things that are already of record and don't involve expanding the record i guess maybe just address that some specific question that you can surely see where i'm valid yes ron i think the the issue from our point of view is that with respect to and the reason i cite magnum oil is simply because that the idea of reason to comply so there's a lack of evidence in the records that would support that combination now as far as the notice for the petitioners the the petitioners were aware vanisher applied vanisher decided to go with it once that was done there is nothing in the record to support the board's decision and i don't see the problem is again you're thinking of this as as an adversarial proceeding once we get in the motions to amend i'm not sure that it's as adversarial as it is hybrid like the supreme court said in quo so where it's