no it's not teaching read it's not teaching and because the coding requires interleaving which there is no dispute over that and so there wasn't an extra edition on argument made by your side in the petition that one would instead of doing the interleaving of data between two are blocks in any given as you are now instead interleaving data between all of that as locks on a given packet i did not see that the argument part from your argument which rested completely on read reference itself disclosing in code what we did argue that one of five to one of six this was a background for all the trials with petitions the petition starts off and says the patent admits they don't believe the package together was known in the art allegedly new thing are supposed to be varying the pattern already admitted that interleaving packets together was known in the art and that's what's addressed in the background checks for all the grounds there is no need for this to be in read read didn't need to teach this because it was already admitted that this was none furthermore the fact the the petition at the same page on pointing to one of five to one of six so that this was part of the background knowledge that any person reading read and reading would have already known that this was a type of inner living no leaving the x box in your living packets together as another form of correcting data and if you just take a look at it if you just are saying is it in read risen in the haney and ignore this background knowledge you're violating the precedence of chaos are which as you have to consider the background knowledge but there's other precedent to which is the board is it's your burden in these i p r proceedings to create the arguments that the board seventy so if you're in the pattern of response distinguishing read by saying that's not the right type of interleaving that doesn't change the fact that everyone already knew this the path admitted that everyone already knew this it was in the background knowledge and that's and this court said  made this way there's a question about what real itself teaches and a lot of stuff can be relevant to that that's kind of the lesson if it were needed randall that since we're talking about how a relevant skilled artis would understand a piece of prior art you need some basis for evaluating what would already be relevant skilled artisans head and a good basis for that would be to look at some other parts it's fairly objective but what i take to be the point we've been discussing is that by the time you got to the reply stage the question was all right even if we were wrong about how a skilled artist and would understand what you read taught we now want to suggest that a skilled artisan would take what read taught take other knowledge m the light of that other knowledge and that seems like a different market and therefore legitimately rejected by the true word as coming too late made only difficult i would say it's not a question of modifying read it's a question of what someone reading read would understand were operating in the situation there and foreshadowing a little bit discussion read the board found read at worst and big actually there is one sense that doesn't do that now we have a task of figuring out what that sentence in the light of understood in the context of relief actually teaches and ultimately we don't think if teach is what you say i see it teaches and my point is you're operating in a situation where you have agreed arguably ambiguous i would say it isn't in terms of whether it's talking about s blocks in our blogs that anybody coming to read reading it already knows to enter the blogs dating back to hundred seventy they already knew that interleaving packets together was common knowledge that was set forth in the petition that this was common background knowledge that anyone reading the reference would know and it was even admitted in the a three one pen there's no dispute anywhere that anybody reading this stuff would have already known to the achates together so in a situation where you have a teaching and read of intro leaving that at least comes close you have the background knowledge of a person skilled arse and they already know tenderly package no comfort veiling downside doesn't it increase the complexity and didn't your own expert indicate that the more interleaving you do i forget what the language was there's more don't say at least yet at least some way so if there's any downside at all to me standing the scope of interest then it seems to me you can at read now you're talking about having to have evidence why a skilled artist and would be motivated to do so which means a different kind of point with a different kind of evidence finding was that the element wasn't there anywhere that a person of ordinary skill in the art it would not have been obvious to this person that this thing that everyone knew how to do since one thousand seven hundred could be done here so it wasn't a motivation to combine issue that was at the element was not argument you raised in your petition and your argument in the position was that reed teaches this and coding this interleaving and the board ended up looking at it and saying no it does kind of the only interleaving that's going on with our blocks and it's not in bits between all the s plot summary and so therefore the argument i'm confronted with that read actually teaches this plain limitation is wrong now now you've got this other argument which well to be obvious to do the modification and so that's where i think judge pronto is raising the question of well what would that modification look like first of all would it be not only that even if it's not there anyone reading reader even if it's ambiguous anyone reading read would have already known how to do this and i'll push back on the argument that it wasn't in the petition the fact that the submission was made the fact that this background knowledge was there that would you do agree that that even if we find that they were seeking a modification or agree then that would constitute a new argument but that if you're not then we don't have  reply and then try to figure out is that in impermissible new archive i think that's really the issue we have now before we can even get to the question of whether it be obvious to modify  background knowledge under which the stuff was already known this is not a new theory of pattern ability it's not something that needs to be separately enumerated as a grounds and petition that something that simply always has to be done so what happens if we if you or your favorite do we remain and then you know from the car this afternoon that please the court if you want to start with the precise theory of on pan ability that erickson put forward to the board below if you look at the joint appendix i want twenty six the last sentence of that page concludes accordingly to seven three one patent that's the read reference discloses that it's s clocks i e the packets are further encoded into packets i e packet blocks through actually what that sentence me and is known in the heart and i think we've that i think i read that that means all the internet doesn't just mean so subsectors of it or parts of it or new new ways in creative ways of looking at judge raina pointed out interleaving packets together is known in the art but then the patent continues is however a very in the number of bytes and each packet interleaved together according to the receiver speed is novel and provide substantial advantage package and that shows up in the claims of a look at the two encoding steps in the parties have agreed here that encoding should be construed to mean interleaving packets together in the board confirm that in its final written decision we have the first encoding step  interleaving was generally known but whether this critical or novel feature that's called out of time was taught by the combination erickson put forth if we look at the appendix fifteen the board says  it's rather the issue is whether the prior art teaches interleaving packets together to form packet blocks in a way that results in varying the number of packets encoded into the packet by getting back to that but that's what interleaving is all about i alluded to his question there are some drawbacks with interleaving it does interviews to life if we had had if we'd been confronted in the petition with the theory that well the skilled arson would have looked at reach teachings and it would have been obvious to interleave the blocks of one another we could have come in with a rebuttal case that looked different than the one we had and it might have pointed out that there are tradeoffs to an early cause delay it adds hardware complexity for example you've got to synchronize your receiver and transmitter so that the receiver knows when this frame we're going to have nine and only packets instead of two which we had in the last one was a lot of complexity we didn't have an opportunity to address that because it appeared for the first time in reply that doesn't but that would be the trade off there are ok can you explain i think this is also having some difficulty putting my finger on exactly as i can tell you that i said there's not a dispute in skates that what's going on read is there is a twenty second what it calls packet and it changes the vibrate and the effect of that change in vibrate is to transmit fewer or it shows is concatenation and there's not an argument in this feel and there wasn't an argument below at least by the time of the final indecision that concatenation talking i would like to turn to the question whether there was this somehow a new interpretation of read that they should come up in the blue brief here what happened in the briefing below and read the fundamental dispute was whether the yes blocks were in fact interleaved or by declaration evidence from dr wells you have the benefit of the reference itself and it adopted our interpretation i think the only complaint that one could possibly make and it's not a fair one would be to say well the board also looked at claim section read as part of it analysis even though a claim six in particular had not been cited and i don't think it's fair criticism of criticism of the board to say it should be faulted at looking at the entire reference now that we're on  boxes together a certain number of acts together but what's going on here is that dynamic forms are entering i'm sure you're going to change the number of packets you're going to be intervening amongst each other based on and in the in the point we make in the blue brief and in the reply brief is that there is no substantial evidence supporting that finding the board looked at column two and said well this must be talking about leave two or more blocks of data figure four is only showing interleaving two blocks of data in both experts agreed the col column two is talking about something different that would shown in figure fo so there is no substantial evidence to support what the board found there instead all the testimony was directly to the contrary and if you continue reading that column to it says that the purpose of this interleaving was so that should first errors occur will be spread equally over the interleave blocks so that the blocks may nevertheless be recoverable going back to judge toronto's point is there are there bad parts about and or living broadly or narrowly this isn't expressed teaching what we want to do is entirely broadly