i would like to make just one more quick points like to start with the construction of external shape stored outside the computer program micro graphics continued before the board for this court that the construction of external shake sort outside the computer program program was a mistake it was iranians in particular because the board failed to take counter statements in the specification that characterized the infection as comprising the capability of adding shapes without modifying the underlying computer program even if you're that's not correct worst protest of fact with ron lester did testify to that the board actually was presented with that point we argued that under our construction we should prevail and we had expert testimony to that effect back to the construction of external shape stored outside a computer program the borges three reasons for refusing to to adopt the portions of the specification that characterized the invention in the way i described first it said the  the specification attributes that to an architecture with all due respect to the board the external and the extreme change with external capabilities is the architectural feature that incorporates that functionality the board next said that functionality is attributable to a capability where the capability is part of the extreme shape so the board's analysis undermined its own conclusion finally the board said that functionality is attributable to shade collection modules which are in fact extra  shapes again the boards analysis undermined its own conclusion so there are many many statements in specification twenty to this and and we continue runners if if this court believes that the board of error if on the construction first the construction of external shape template so we proposed substitute claims for the two independent claims this of two claims that the limitation that the computer program be operable to delegate the production of the graph to your argument is that it has to be generic right that's correct your honor i act that's the speed the dispute is micrographs contends it needs to be a generic interface and in the whole point of adding that limitation was to try and capture the concept that the board refused to explanation is that the the extra symbols are intended to are the actual shape template is intended to give the computer program the capability of accessing shapes and capabilities that are completely unknown to the computer but this isn't it's just the figure you're referring to because the box around those two external symbols and actions is the time that is part of your honor but it's also in the specifications also spelled out if you the symbols and actions each consist of an interface that interface consists of a set of generic software methods routines that allow you to access the give you the capability of sending for example commands or data to the shapes did the computer program doesn't know what the shapes are going to do with them so what the specification says is those methods are generic in the sense that we're talking to an unknown shape with unknown capabilities but the specification says the capability is exhaustive it gives you the capability of communicating to shapes you don't know what those shapes are or what they can do but you have the capability of communicating exhaustively and allowing those shapes to do whatever that is they do with data that simply to the computer program so the generic interface allows the passing of input data back and forth input data to the shapes and response data back from the shapes to the computer program to allow them to do whatever they do without a computer program and having to know how or what the shapes are doing that's what's described as very expert testimony but so is what you're telling us is there any expert testimony this would be in the the motion to amend let me look at the i believe there is i believe our expert mr kitchen pined on this but i have to check in for but in any of that the specification says it right here come five in column six that explains in great detail exactly what i'm telling you but if i if i may make a few final points on the motion to amend the board found that the amended claims were unpa under its own construction but under either construction the boards of the boards finding of obviousness or its conclusion of obviousness was unsupported by the evidence that was for what the board did was it said here's want them all to disclose everything except right that the whole reason for the combination is walton says it can be implemented in c plus plus and here's a manual it's that refers to see plus plus the templates that are described in stroustrup don't accomplish what's described here in columns five types in various applications and i only have to write that code once code reuse that's exactly what they said that is not what's described here is the external shape to the external shape to put is for accessing unknown code with unknown capabilities that is precisely the interface is even described as i know that that's what is described in the specifications that's what the extra to what does and that's why the board's obviousness determination is not supported by substantial evidence there's no indication anywhere in the record not in last year's testimony not in the board's opinion of how you would combine the template to accomplish this how you would how you would compare or how you would reach the claimed invention as a whole given a template  stroustrup you can't it just doesn't make any sense and there's no explanation of that in the board's fine explorer lasser's testimony and one final point your honor pushing aside these issues there is th  the motion to men that's correct and i want to have this clear and i do as i can and if in fact we agree that there was some lapse in that procedure as to how significantly it would affect the result i think if the if the court were to find that there was an erroneous construction of external shape template or the obviousness determination of the board used to reject the many claims the court should reverse or vacat remain as it sees fit the only way i see this case being held for an re our products is if the court finds that neither of those are true the court would affirm the board's determinations otherwise i think the case should be held because it's clear that the board placed the ten explaining that under either construction walton discloses down limitation is under budget when was that testimony submitted to into the record that was as part of the second declaration of last accompanied the reply i'm sorry on the reply yes you're right and so by then they didn't have an opportunity to submit additional evidence as they had the opportunity under the motion for observations and other procedures to submit they also had the opportunity to argue that the oral hearing did but not as far as i know your honor the focus was was the construction correct not if michael graphics construction was correct would there be sufficient evidence  don't believe that it was argued going though to the fundamental question of what is the appropriate question this was relatively extensively briefed and fully addressed in the board's decision at the appendix seven through twelve i just want to make one point based on the arguments that were made today and that point is to direct your honour's attention to the six three three patent at the pendants forty eight column three  two through thirty eight this section talks about the capabilities of the shape and says that based on those capabilities that quote the computer graphics application one twenty two may be subsequently added to the computer graphics system one twenty without modifying computer graphics application one twelfth in other words the various places in the specification that identify the without modifying advantage sometimes its relation in relation to the invention sometimes it's in relation to the system sometimes the architecture here the capabilities of the shape it is improper to import that into the extra will shape itself because of course the shape and the capabilities are different this year honors how many additional questions about external shape i'll move on to the second to shoot i want you to t phrase has a meeting and it seeks to define where the extra mile shave is going to be the word and i'm there i'm not saying it is impossible for words to be true created as superfoods we do belt  is a given that wouldn't be present if there were were not in the car if the word external was removed from the limitation and it just said state state stored outside the computer program that would go to the question ok what is a shape mean and as the board describe affectively it means a bunch of different things actually turn a shape as that term is used in that means something specific and that something specific based on the clarification that it's outside  computer program refers to those elements and the specification they refer to the extreme shape as opposed to the shape itself so it's not super for this it's just complete it's just explaining how that concept is used and the specification and it's also consistent with every other time the board construed x terminal something external capabilities external action external symbol all of which the pattern is incredibly clear that there's a computer application and those things are moving on to the second question the construction of the external shape template and the argument was essentially we're trying to capture a concept but as judged by correctly noted there's nothing in the specification that ties that concept that they're trying to create with the extra mile shape itself i want to couple points about this all of those parts and they're described in various places and they were considered by the board each of which pages one twenty pages twenty nine and thirty of the record all of those sections without pointer that points to them therefore when you try to attribute those additional effects to the extra mile shape it doesn't tell you what's in the extra a shape template as for the corollary argument that well because they're an interface between the two all of the elements of the generic bits the interface in this of the external shape must be imported in the extreme of shape template that's simply not what the specification says specification simply refers to it as a pointer which gives an example and merely as the interface between the two which was correctly captured by the board's construction and i want to make one point about the board's construction i think gotten lost in the argument so far today which is the board's construction is essentially broken into two you have a construction of what template means which is preset format pattern a model and then you have what it does by which you can access something that first part that's being to the preset format pattern model was exactly what micro graphics proposed and its motion to amend and the court and the board use that language that incorporation is cited  for example page eight twenty nine of the record so it's difficult for my graphics to argue against that construction now when it advanced it below under among other things this court's decision in the us s against nextel can i take you back to th comprises an external connection template that's one of the boxes even though there were template doesn't appear in the figure and in the external symbol template and then if you go to and then there is a paragraph after paragraph after paragraph a is your understanding of the term generic that's in dispute here so i think the specification answers that very clearly but it doesn't do it in the paragraph that you cite like to direct your honor's attention to column for line sixty three where first uses xterm shape template or first to it as a pointers right and then if you go back to the paragraph that you are citing the first part of that paragraph contains a topic sentence on column five words a template is just that it's an access point to something else it could be a pointer or it could be a preset model as under the board's construction but it's not in this generic interface in the sense that you would have this template that you would then populate the specification simply doesn't go that far and with your understanding the fords construction on this point is that go beyond does that require pointers to something else pointers would be an example of something that would fall within the board's construction but it's not coextensive with that the board's construction is larger the and then they and finding something else i mean you just described the spec year as saying all this is doing is pointing to something else whatever the thing is my understanding is that they're critical argument about the c plus plus a manual apply the board applied its construction to walton and the combination it didn't imply the construction advanced by petitioners which was pointers but because pointers is a narrower part of the board's construction it would necessarily find it if the court decided to go with pointers but i want to go to your honor's questions about well what does stroustrup disclose because here the record is entirely one sided there was no argument and the motion to  understand what is meant by template in this context and would use that template within the context of what walter was like to conclude by addressing the final point raised by petitioner which is what this court's decision re would mean for this case as an initial proposition this was not raised at any point in the briefing and therefore it is waved well the issue didn't exist  back respectfully your honor dead if you look at the boards i'm sorry if you look at the motion to amend on page a eight three seven the patent owner question is part legal part factual the part legal as every panel has ever looked at this decision synopsis prolific prosecutor have all come out that the burden is correctly assigned so that issue is firmly before the court  here it does not make a difference in degree ocular the court's decision was approximately three quarters of a page applying a very limited analysis based on what the board did before because the board said the burden is on you i don't need to consider all of your arguments here the board had a ten page decision in which it analyzed the affirmative evidence presented by the patent owners in the form of a declaration and in the form of argument in response to that there was not a burden to the petitioner the petitioner fully satisfied that as the board determined in its ten page decision eight twenty eight thirty eight of the record in question thank you thank you your honor honor if i may briefly address the point that raised by judge dyke earlier judge dyke had asked for a sum citation to record evidence disputing to last for testimony on one under our construction of extra shake stored outside the that is cited in that passage is actually included in the record but this is a reference in our brief to the declaration of mr kitchen supporting our view that under our construction of walton does not kitchen decoration of paragraph forty two that discussion continues on of the top of page one thousand and thirty four with another site just before section three there to paragraph forty four and ninety nine mr kitchen's declaration amend i did so to address the second point judge by praise i don't believe there's evidence in the appendix i apologize with regard to expert testimony on the meaning of external shape too but i don't see that in the portion of the record that we cited  motion to a man we actually believe the factual record is clear and one sided as well and that is if you look at the four gram factors for analysis and obviousness last was testimony doesn't meet those four factors we did argue that the evidence does not support last last risk inclusion of obviousness or the board's opinion we've raised these issues in front of the board but the burden of proof does matter the the board said we didn't carry are heard it's a very different thing for the board to look at last respectful ration with the