patentability with respect to the zero two zero one four seven six patents first the board's decision relied on an implicit construction that equates the act of launching an application with a separate claim requirement  contacts it came in the section of the brief discussing claim tat a claim ten depends from claim one and claim ten has nothing further to say specifically about online state it's not a modification on the online statement so where is your on time state where so starting in appendix twenty seven thirty one we argue opposed that i would understand that the five new emails shown in figure ten corresponds to the american online website also shown i figure ten and then at twenty seven thirty two right at the top we say assuming argue one doe that the american online website qualifies as an application which happened on organized that application would be considered launched in figure ten because the window to the website is open and visible and so that's the exact same argument that we're now making on appeal about on launch state and destroyed and so the argument below both with respect to the four ultimately the the void relied on a combination of sharleen hbert in that context first of all they did not make an adequate finding that not all teachers on launch date but i want to focus right stops i did not see in the record an argument where the on long state limitation in the contraception are was expressed we challenge our position on that is the issues that the board decides and half of the pond below are right for appeal now the so it to the extent that the court requires that we specifically challenge that limitation in the context of an oral i don't see that in the record our position is i'm still not waiver because it's an issue that was passed upon below but what's important to note is that our appeal does not rise or fall on that issue because with respect to the narrow finding we have a second and very i believe compelling argument after a lack of an need to occur your honor i want to actually address the sixty six step issue it's actually irrelevant whether you call it six steps or one so i just want to make clear that again our argument does not rest on whether you believe that it is six steps or message summary pain to go six now this message summary pain is not reachable directly from the application button bar one hundred four which is which is below so the board correctly found that what apple was towing the summary window which is a pain to a six can't be reached from the main menu application button bar one hundred forty took to remedy that apple had an alternative theory that the board did accept a combination of neighbor and as a part of that alternative theory here's what had to be done that menu to post had to be taken off of the home screen of chanel it then had to be placed into a special menu at the top by a for that special menu ideas simply the idea that you can put gyi them into a menu and place it anywhere in the hierarchy of the device then specifically and now whether you call this all one modification or six doesn't really matter the point is that the motivation has to support all these all these changes then you have to take the menu that was removed from the screen put it in to the a bird menu and place that only and only into application busson bar one of four because that's what they've called the main menu if idiosyncratic and illogical because every other bus in an application bus in bar one hundred four does launch the underlying application and the board recognize that the purpose of application button bar one of four is to launch the underlying application and in addition there is already a bus in for the messages application in opposition button bar one of four so there has to be some reason why a person still in the art would take the menu t zero six off of the screen in general which normal says is there so that you know immediately what the messages are that you have a fast functionality away from the user degrade the quality of the user experience and then make sure you put the button right in this one place that will meet the claim limitation that your position is not that the board didn't go through the exercise of finding a motivation to combine your simply disagreeing with all the board conclusions and they found your arguments  relied on apples after they made specific findings of fact with respect to motivation that combine and you're just asking us to say it that you think it's more logical to bank the opposite sign your honor i actually strongly disagree with that and i think that argument is very different than that so what i am specifically urging the courts consider is that yes the board made a finding on the motivation to combine we agree with that and their finding was smaller screen s that motivation the motivation to obtain smaller screen size does not yet does not justify a person of stealing the art of going from what you are was to what the board needed charlotte to become to meet the claim limitations and so if you look at the wall until i started i could video in other cases about what the motivation to combine must be in must be a motivation that compels the person who gets the person to arrange the prior art combinations quote in the way the claimed invention dubs and having the smaller screen motivation if one were even there which we do disagree but having a smaller screen motivation might be a reason for a person of stealing the art to take a menu to zero six off the home screen maybe but it's not a reason to then put it into a bus in an application button bar one hundred four specifically and then make sure that if you select that button the application does not launch and so what we're saying is there's  inconsistent see and inadequacy between the why that underlies the board's decision and told what it is that the modification would have been the why does not justify the full extent of the changes necessary well  dynamic menu that can contain anything you want in it you can put any items you want and in that sense it's not really much of a teaching i mean everyone knows in the field of art of do you like that you can populate the menu with what you want secondly it teaches  special dynamics menu can be placed anywhere in the hierarchy of the devices g y menus so in one of the body men it's place right at the top level in the main menu where if they had put if they had put it there it would not meet the plain limitations because it wouldn't be reachable directly but in other embodiments it's placed him in all kinds of other locations within the g y and out of all those possibilities the board look to the fact that every teaches you could put it in a specific place and decided that a person still in the org and would have put it in exactly the place necessary to arrive at the claim inventions but there wasn't a rationale to support that choice of location that's so critical to the board's finding from among all the menu could go anywhere and our argument is the board lacked any reason why the menu would have been used in such a place that it would have been placed precisely in the location necessary to meet the claims as opposed to the many other first because that's been the focus of the argument so far today as your honor notes it was no challenge below to whether chanel taught the unlaunched state it's just not there anywhere the suggestion that if it's passed on of course is passed upon very succinctly because it wasn't argued but nonetheless that allows them to make any one argument they want on appeal has been rejected specifically in this course they see in the google versus simple error case that we cite and for good reason especially when you have that kind of limited  that that to say by definition you would look at avery and then you would decide where to put it that that's a not so so i think it's important to follow the board's logic the board starts with how much  self teaches about this right because chanel teaches that its windows are customizable including specifically collapsible and the board cites that a couple of different times on page a twenty seven and again on a thirty four and so collapsible to a single call yes exactly and so effectively what's happening is you're taking a window that occupies as you can see in the before picture on the reply brief or a signal if it didn't part of this relatively small screen size and this in the start window and you're collapsing and where are you going to collapse it to work you're going to collapse that there really only a couple of different choices where to collapse it and one of those is t one know for now this court case law on obviousness when there's one of a couple of different choices each of which is obvious you don't have to prove that one of them would necessarily be better than the other they're both going to be obvious to the post of ordinary skill and in terms of why one of the four or well if we look at a bird's figure three and a bricks figure three is reproduced in the  two also at appendix twelve ninety nine a burger actually describes its special menu as at and at the same level a top level with phone book and settings and main terms of again there's not a lot that aybar teaches but there's not a lot that it has to teach because all that you need to do is take janeiro's summary window which is this is not  it's displayed while these are not launched again that's not been challenged or wasn't challenged hello and take that summer window collapse it down talks about and put it in one of four well that's basically just taking it from well what it what it says is that you can have a special menu in the special menu is described as those things that you want to reach most conveniently you want those to be the ones you get to and that's why  quit this on the smart start page because you want to be able to see this this is the stuff you want to see most conveniently and sharelle says now you can take that special menu with those most used things and you could put it at the very top or and this is explicit at columns seven lines forty five to twenty nine it can be a top level menu or her quote sub menu of any top level so basically it's just saying you can move it one level down and that's what you have to do that's all you have to do to chanel to make it precisely disclose what it is that's claimed in  claims at issue so again the board as your honor said before judge him i says all this very explicitly and then they answer the why question why would a proceed to have done this they would have done it to solve the problem of small screens and again i think the before and after picture on the reply page for it supplants exactly why that is you have a cluttered start screen with no room for anything else and by simply collapsing that that summary window into main menu one of four gives you what they say is one remove that's now a new green with state on a very small screen where real estate is very valuable to do something else with that's what the board found that's a very sort of ball that's a fine you faff substantial evidence review well supported but i want to turn to nascent because my colleague didn't actually mention that at all except in passing and that is also well supported the board noted that in a sudden nascent explicitly says that when you click on one of the active buttons within the summary window that watches the application and the expert said that up a see the would have understood from that that you can have the construction here we know why the limitation was added it was because there was in the prosecution history and this is described in the l g case that you not or sat on the panel where there was another prior art reference called the richard and richard there was at a an apt need and both were display but app a was the active window and few would click on app b to make it the active window but even before that they were both display now that had been relied on by the examiner as prior art to say that that the claims were not patentable and so they added the at and n one state so to right around that issue in richard but richard and it's very explicit in this court's decision in the l g case and that in richard they were both display and what's telling is that in the court's that was the only issue that actually the parties agree below and the board applied online statements not displayed the only argument that conversant made below was not to grapple button after you've launched the application now this argument that they're making now this trying to make it all more cumbersome was not made below now there is a kind of analogous issue that's presented with claims to an eight which use a different word to use the word open and the board in its discussion of those fitting those claims squints to the fact that in they send figure five shows the same summary window with nothing on the screen behind it and then in figure six it says the same summary window with lycos opened it's been you click the button you've launched it first it's an launched in the second it's i display now converses says don't look at figure five don't look at figure five because the board didn't rely on it and i agree the board didn't realize that they didn't rely on it because these were not the issues as they were framed before the board and this is why the waiver matters you have to look only at the arguments that were made to the board and the board addressed them the only argument they made before is figure ten shows it as being displayed figure ten representation the cylinders if you will kind of on rolls them and there's no doubt there's no display there that's that shown right doesn't show any if you go to if you go to figure all eleven it also shows the canister that actually shows the whole frame and it shows nothing behind it i think what they're what they were pointing to is that the canister itself shouldn't police shows the the window it's the summary window the buttons that can be pushed it doesn't require that anything else be launched or displayed that's why they  figure night i don't think was a significant reliance on figure night i think it's really the text of column three that they're relying on and again you know we're not relying on figure five hundred fifty figure sex but you know  they are so explicit in showing the summary window without the application by that and then with the application by just after you've you've you've watched the application the board pointed that out when where this issue was actually kind of engaged in a sort of open language of plaintiffs to an eighth they would have relied on the same had this been how the argument was framed below so it's really either of these two i was was raised and i also want to point out the minstrel rela the fact that they didn't challenge it at all is itself telling because in sharon as well the disclosure insurable is that it's clicking active fax button that one chooses the application that was relied on the board by the board as showing that it was in a previously in an unwonted state they didn't even contest that with respect to and for good reason that's what's into it that's what dr myers testified to and then they said it's the same thing they simply pick on the fact that there's this one figure that happens to show it after you push the button after the application has been launched to somehow detract from the teachings of mason's explicit disclosures in the text that's not the right way to read hands there's no requirement that the board do so it was substantial evidence if there are further questions honor let me just start where my colleague left off we do not hit on the fact that figure ten of the nation happens to show exactly that nascent in that environment doesn't meet on one state what we're doing with figure ten is we're saying to meet online there's something more that's required than simply showing that you can press a button to launch an application because if the application were already launch in another or different view if it were in the background if it were just sitting there minimized if in any of those instances clicking a button to launch an application that's already been launched would not meet on march state figure ten as an example of a situation like that that mason teaches the richard appy appy example is another example of a situation like that that's even more telling with the size of apathy that shown is very small but nonetheless it's hmong and we explained that during the prosecution history and argued it in the last  wireless appeal and i think the panel agreed with us as this can be seen from their decision in mason there is no evidence and the board made no finding asked to whether the applications that can be launched were ever previously in an online state the board simply reaches that conclusion because it's what's necessary to find the patentability but there's no actual evidence under a blanket with respect to charles and a berg that it was very interesting what counsel for apple described the process is exactly what's wrong with the board's decision his description was you could collapse a menu in general that's a possibility and then you could put it in application  buttons are one of four fine why would you do it and would somebody have done it the mere fact that these are things that could be done is not a sufficient basis to find them patentability and there are many reasons why someone would not have been motivated to