of work this is a matter of claim construction under the broadest reasonable interpretation for the board improperly imposed a structural restriction on software clearance there are focused on functionality because there's method claimed claim wine has three staffs sending messages towards the network two for diverting a message of the messages to a controlling into d and three controlling in components applying your view equally to the do i think there's somewhat of a distinction between the two but i don't think that it's a meaningful distinction i think in the context of the method claimed we have diverting without any requirement referring to any type of element claim moment which doesn't like the third step of claim one where we have controlling in the controlling entity so there's a controlling into the again a fighting claim one but nothing else there's there's not a difference that's meaningful with respect to how the board in the dup construing these claims and here's why i think it's refers to not different entities but a diverting unit and controlling interest and it's a diverting unit to your honor i think the word unit in fact implies that it could be a part of something bigger or part of something greater that's why we have a business unit that's a part of a larger company or we have intensive care units that are part of a larger hospital i think the same this true for a diverting unit a diverting unit could just as easily be a part of a controlling into t it could be a part of another entity or could standalone so not been in your description of a hospital for example the units ha software for me no i don't think so your honor to the extent there is a presumption that's borne out by becton and the cases that follow it i don't think that that's necessarily a political in the context of software absent some form of restriction that you see in the claim language the word entity appears but only in the context of a controlling into t so you see that they talk about controlling into t throughout the specification and they refer to the trusted agent as one example of what could be a controlling into people but what's important is that the specifications focused on the functionality and not really the implementation of that functionality they teach flexibility on how to implement each of these functions so for example the context of the controlling into t were taught that the controlling function can be implemented through modifications to existing software like modifications the instructions for the b r image and it could also be implemented with a dedicated trusted agents or something that separate from the jarome agent the same is true for the diverting functionality we see that they teach it broadly you have diverting functionality can be implemented by modifying instructions and an existing protocol stack or you can implement it with a separate middleware modification module i think that that's important because these are simply examples of how to implement it and i think the pattern is recognised that when we're talking about software what's important is the functionality and a skilled programmer or skilled software engineer recognizes that there's hundreds thousands of ways to it's opinion adopted the notion of separate component but i don't remember that back notion excluded separate software modules that if you could have separate components of the boards  by separate software modules if that's right i'm not sure what the objection is as a matter of claim construction to the boards to the workers claim construction and i think you've only presented a claim construction argument here and not an argument that under a under that view a separate component there must be the prior shares feel honor i think i understand the question i have to respond first i think it is an important aspect of claim destruction because it's not just the requirement that there be a component but that there was a negative limitation that was effectively imposed on that second stop it so that diverting could be done by anything but the controlling it at the and so i think that that's part of the problem and that's the claim construction aspect right decisions are but in terms of claim construction at least as i remember the specification and listening to your argument about functionality so that you can implement all of this in software if the board's claim construction requires nothing more than separate software modules and i don't mean anything technical by that but separate instructions then it seems to me that it's a pretty fair claim construction and so not tied to different hardware or anything and once it's a pretty fair claim construction i'm not sure you've made any separate argument for disturbing the bottom line what i think we did you're on i think the blooper if pages forty three to forty eight that's where we argue that to the extent that this construction is considered to be correct and we don't think that it is but there's a problem with that construction because we're not able there's wasn't sufficient analysis that the board applied in comparing that construction to the arguments that we raised so for example if you look at the joint appendix page eleven you'll see that the board acknowledged that we actually pointed to one part of the dia vera references isolator engine two twenty five as doing the conclusory sentence that it said petitioner describes the different functions but does not show that the isolator engine is two separate components it didn't provide any explanation as to why point to different parts of isolator engine two twenty five wasn't a sufficient demonstration of separate components or why pointing to separate functions wasn't a demonstration of separate components is very conclusory analysis and similar to your honor's the previous case in the case from february of this year without sufficient analysis this court in the parties are unable to determine whether the board's decision was arbitrary capricious and abuse of discretion or otherwise not important long so we do make th argument and i think you know principally at pages forty three to forty eight so even if this construction were considered correct i think that the board didn't provide the analysis on what it meant by separate components because we did argue that the software an isolator engine to twenty five had a portion or an aspect or a part that was doing diverting and it also had a different portion aspect or part it was doing control and the board acknowledged that it that's at the join steps and there was an express dispute that we had with the ordering of steps so there briefing was focus once a separate component i don't recall that they actually introduced the idea of separate components expressly the more talked about that diverting need to happen first and then controlling what happened second and that because of that relationship by pointing to isolate or engine to twenty five it wasn't diverting first and then controlling which i think is another way of saying that something can't divert to itself but i think that that's kind of true in a common parlance i think that controlling into dienst ever to themselves all the time i know that as a parent i'm very controlling and i divert to myself quite often in fact i have my kids are trying to get their homework and or a christmas list to grandma so you just do both of those for well i reach out and i divert i take it sometimes i modify and i'll cross something off that list and then i'll go to a nice pound cases people think sometimes in the context of software your honor it's easier to understand in ways of analogy but i don't think that the restrictions that you find in the case law that are dealing with physical embodiments and physical components where there's a requirement that there be separation like we see in the back in case and in the microsoft case and in the n t p case i don't think that that type of presumption of fice here particularly when you're in the context of a broadest reasonable interpretation so because there's nothing in the claims that would preclude the controlling into t from doing the diverting and the control and there's certainly nothing in the specification that precludes the controlling into the from doing both diverting and controlling it's important there be separate functions but the implementation of how to do that functionality isn't that they can be are a little bit too for i don't think it is your own i don't think in this context it is i think that if there were some teaching if first if there was a requirement in the claim language that required separation i think it would be taking the the b r i q far i think if there was something in the specification that taught that it is important to the invention that there be a separation or that there that that was the point of novelty or that there were advantages to it or that there were disadvantages to including it within the same entity then i think that we would have a situation where perhaps the broadest reasonable interpretation it wouldn't be real but here there's nothing like that in either the claim language or the specification that would imply that there is anything improper or contrary to the invention and because of that i think just like in the entertainer who case that this court had i know it's not presidential but i think the rationale is a clickable here because we have a situation where we've got software and we don't have any restrictions on how to implement that software and just like in that case where we weren't going to limit what the definition of a program was i don't think that we should limit what controlling it that you can or cannot do in the context of a pro this construction is a broad but reasonable construction what does compound mean you know context of software and we're not talking about physical items and we have this reference to unit functions spec for your honor the board ever found that all the characterizations done in the prior art were done as in the characterization as petitioner argued such and such and the talk about him and he sounds like something physically separate in the board talked about it in the same way but that doesn't really make much sense in this context we're talking about software if they'd said well it has to be separate software programs or something i could understand that but i'm not sure that i understand what the board was saying when talking about seven pounds yes sure i think that's why it's important to look at their clarification  appendix neither final decision we're going through the clam language that's what it means to be separate components he said anything to indicate such a variance step is performed by something other than the controlling at that i'd like to get again reiterate don't think the board ever made a factual finding that dia verus isolator engine ever did as far as the functionality they're characterizing as to how petitioner argued and they still said that wasn't enough ok i mean yes records and clear as to whether or not the board ever found that differing step was or was not disclosed right seems like they took our argument argument our brief was just what the board found that there is a second there has to be separate components recipe something that diverts a message an intervening step before the message is ever received by that averted by the controlling it did well in other words it sounds to me as though you earlier the intercepting actually occurs it's a pretty destine thing there's nothing in either of the references to have something inside that logical box that actually  going to have a waterfall approach on this issue the first wave or issue we have is that the board determined that they may express finding that they did not target their plans expressly so we believe th is an issue of plain application rather claim from struction therefore it should be reviewed under substantial evidence the first time appellants tried to address this issue said that funny but what was incorrect was in their reply brief so based on those new arguments we think that they waive this issue just as to whether or not it's a plant construction issue going over its claim application fact that there's different elements or do stuff to the controlling it's if it has to happen before it ever get are i'd like to address a few brief points with respect to waiver i'm not certain what constitutes a waiver here we've been arguing a consistent construction throughout the case so in the context of our petition we pointed to isolat engine two twenty five the a very reference and you can see that it joined and explain just to sixty four to sixty six to the extent there was any doubt we made that clear in the context of our reply so you see both pages five seventy one and five seventy two and other pages in that reply like five hundred sixty nine we expressly state repeatedly that our understanding of the claims is one that would not preclude the controlling it ity from doing both diverting and controlling so we have an expressed statement for example at five seventy one the language of claim one does not preclude the same structure from performing the diverting step and a control instance so we made that argument in our petition then or a reply it also came up at the hearing so for example the transcript page six eighty saying that the claims would be rendered meaningless i guess under this construction i don't think that that's true there's certainly a separation in functions there has to be two separate functions that are undertaken there's diverting and then controlling but particularly in the context of method claim one there's nothing that precludes what's doing the diverting so that could be done by controlling it that the and then with respect to claim twenty four there's nothing about the claim language that would be rendered meaningless by allowing the controlling