here again on another appeal from the board decision in the board's three man decision was problematic was error for two primary reasons st the board adopted a theory of motivation to combine that was found nowhere in the petition not in the ground on which it was instituted the sole ground or in fact anywhere and that is inconsistent with the statutory scheme of the a i a as put forth by the supreme court in decisions like sas and this court subsequent decisions in acceleration bay and others nd at a minimum the board denied i p r else procedural protections by adopting this motivational remand incorporating a prior art reference to the draft you m t s standards that were no part no part of the institution proceedings those were used only for other things in other grounds that we don't know as you just stated that two points what is the difference between them they're very related or and here's here i think is the difference the st one says that the board  must confine itself to the bounds of the petition the nd one allows for a little more flexibility if the argument is sufficiently raised in the petition but the board wants to rely on additional evidence for example in the role of that one the question was whether the board had to recites the evidence to the institution decision that it was ultimately going to rely on in the final decision so that when it didn't involve a question about whether that particular evidence was relied on in the petition for the proposition eventually needed to be established under the relevant ground correct correct but they do say that the reference was was there  there in another context it was no surprise yes thank you your honor and i think it helps to look exactly what those references are to see why they were not intended to apply motivation to combine in this context for ground work or ground want and i think the to references it also talks about complying with the i triple eat it doesn't say word one about using the un ts standards as this catalyst this magic sauce to provide the motion to combine what it does also is it points to its discussion of the g p r s references the documents and the reason to combine those together it again though doesn't mention the un ts standards if if they wanted that to be part of ground one that would have been the place i submit to do it in addition they also rely on several references to the bins declaration and our contention is arguments need to be in the petition and if they're not there the bins declaration can save it but the b declaration itself does not include this theory of motivation and again i would point the court to dr binns own explanation of the motivation to combine and this is at paragraph one hundred and sixty five dollars of one hundred and seventy two dollars of his declaration and it's found a kind of intro paragraph to its motivation to the mind and it says these are all sort of in the same field and there could be some mixing and matching going on between them but then it goes on to say exactly what mixing and matching it's talking about and nowhere in there  is used for it says it used to be combined with i triple e and that was another grant so dr binns own testimony what he put forth as the motivation to combine nowhere states this theory and beyond that honor mentioned other references there are additional background references in the petition to the us standard but that makes sense because it was one of the other grounds so in setting up all of the grounds the petitioner summarized the background evidence and prior art but then ultimately did not rely on human ts it's not mentioned once in ground want including in ground ones motivation to combine it can  cross appeal so the ruling of the board is right what if authority do you have for the cross appeal a requirement applying here and b even if it would ordinarily apply not being subject to a change of law exception of the very sort that we have recognized in a dozen cases at the cross appeal context with one exception which we'll get to one exception that i know of you may know of others  that s a s was a big enough change of law that a whole bunch of normal very strict procedural rules about preserving things don't you know came with an exception including you've got to make the doing a threshold question of whether it even applies here which we might get to but why doesn't that apply here and i think it's just the final point you probably are aware that last fall in the wonderland case this argument was presented to us about no cross appeal and on in there did suggest that it was jurisdiction right but the supreme court has said a couple of times maybe most recently in green law we do not decide whether it's jurisdictional only that it's very strong i would say if it's jurisdictional then it would not be subject to the change in model if it if it is not jurisdictional and i think it would i think it would but i think that doesn't matter here under the waiver doctrine that this court has consistently applied post s a s so what this court has said post s if you want to raise this you can actually raise it on appeal you didn't have to raise it before the board precisely because of this change of law issue but what you have to do is raise it promptly and promptly in this court's case law is somewhere between nine dollars thirty cents days after s a s itself underground three why is that too late now couple of reasons your honor st in the baker hughes case which we cited in our brief this court made a point of saying you didn't wait until the merits briefing you filed a motion immediately you sought to have it reminded and done and not put the court in the parties through the inefficiency of briefing and say if that's what you want to do then you should do it right away and number two our bill we didn't say that that was required that we can say it was required but in in explaining why it was sufficiently prompt in that is too long it's not prompt and so here they waited seven months and so i would submit if they wanted this to go back and do yet another redo of this or this court case law requiring promptness i think the time to do that was somewhere between you know one and a month or two days you know after the s a s itself that's what i would say if you make anything of the fact that their time for filing across appeal had not run at the time the supreme court changes as an exception really does apply seen as perhaps a little harsh right and i think my answer would probably be somewhere under both circumstance i didn't make a lot of that i think of change of laws and we're going to motivation of this court found lacking last time was to implement a specific feature of g p r s p d p contact in the context of a completely different underlying protocol the c d m a protocol and nothing in the petition as we were discussing earlier so it's worth f there was an a p a violation and the court said we will reverse because the petition or the other party didn't contest that reversal is the proper grammar and i would submit here that z t hasn't contested that putting aside s issue that if you find an error either procedural or substantive on ground one that reversal is the appropriate remedy and so the court doesn't have to make a general pronouncement about reversal always being appropriate to find that reversals appropriate in good morning honor prime johns on behalf of the may please court the board's decisions on remand should be affirmed because it was supported by substantial evidence i p r as procedural rights were not violated because it had an opportunity and in fact did respond to c t e is motivation to combine therefore the court should affirm the board's decision on reading and so much about my recollection just tell me if i'm wrong that what happened when we reminded this last about why we think there is the evidence that this court's opinion said we don't see the evidence for that but the board should take a look the other side said well if they're going to file something cannot really spurred without getting permission and then you chose not to file anything thereby depriving them of the ability to respond under the order and that's generally correct ron think that there was not sufficient evidence it does seem like i had to good procedure but whether it was something that a party put them up to where they thought of it themselves no more you can't and large the record does seem strange part of what is intended for these board pursued use is that they will provide a substitute for the trial court fairness and so on and it does seem doesn't it seem to you that when there is a rematch and for additional evidence that there should be no opportunit provide that well at the end the point was that the board was very cautious of not expanding the record and they did not want the parties to make arguments and wanted the parties to rely on what was in the briefs and had we been able to file or had we we w a prior email address at a prior firm and we didn't get the notice but again i don't believe that impacts the record because the record would still be made up of evidence that was provided during the initial proceedings so i think mr bell's argument is not that there is no reference in the petition or suspicious a port in parts of the petition to the un ts particular which is what the board revised quite heavily on but rather that that evidence was not asserted as part of a ground one theory and it even more particularly was not asserted as part implemented using g p r s or c d m a and this court found that it was not sufficient to rely on that teaching alone and this motivation is the alternative to jawan which said it would have been an obvious design choice to implement the and the reason that dr binns background testimony on this is important is that is what he describes when reviewing the scope and content of the prior art that those who design prior are systems based on standards would have looked to the standards in order to understand the features and he testified that one would have found the p d p context from g p r s to be beneficial and i think the reason that you ask your st question about why these two issues are the same is that in order to win this appeal i p r l has to suggest that the linchpin of the case is a draft u n ts and that's not the case because the p d p context and g p r s were known to provide these benefits and an ordinarily skilled artisan designing a cell phone would have looked to those standards and that's what the board pointed to and that's what was said in the petition i p r l had an opportunity to respond and in fact did respond to this very argument by suggesting that it was impossible and that was the error that the court made or the board made in its st decision it ran right to the dispute that the parties had him possibility and it filled its decision this time without skipping that initial step in said and  designer designing a cellphone who's faced with the problem of switching networks would look to teachings in use in g p r s that provide may taining a communication session which is what the standard did it draft u further completes that analysis because someone actually did it in the prior art when you were discussing the merits as it was before the court on the st time around and here we have a decision which the problem with its decision in the st instance is that they jump right to the dispute between the parties about whether it would have been obvious or sorry the dispute between the parties as to whether it would be impossible to make the combat it did relate to motivation of combined and that's exactly what the board did on remand was identify the motivation to combine supported by and crediting the testimony of dr bynum's on the same record that we had previously rejected on the same record but not on the same evidence that the board articulated in its reasoning the problem with the st decision is they articulated only that dispute between the parties which was related to him possibility of the combination and jumped right past the motivation they corrected that error on remain and i relying on all of the evidence in ground one of the petition all of the evidence in the background that supported the motivation that it would have been obvious to compelling the motivation but it's not the only evidence that the the port relies on for its decision and so this it's not necessary for the decision in terms of motivation to combine to rely on just the draft u n ts standards it's the entire scope and content of the prior art not just that one reference and if i could address very quickly s a s institute  are correct that this is an alternative argument and we raised it in our brief for the very st time that was available to us now that that's not true it was up the st time that was available you have seven months  to email service to file a motion or something that is correct and this court has however never found waiver of an issue when there has been a substantial change in law during the pendency of the never found that time period would affect your process the all rights are your rights to to make an alternative argument when there's been an intervening change in law during the pendency of the appeal in no any case and that the only thing that i found was one passing reference in a published th circuit decision and then a more recent non presidential th circuit decision and basically i couldn't find anything else about the interaction between change of law and the  not aware of any other case your honor i will say that milan is instructive it was what happened in milan in milan the the appellant waited until his reply argument to raise the possibility of a remained in that  case and in that case the court found that that was the opening winning brief post april th twenty eight to all of the briefing had concluded at that point at what point i'm sorry at the time s a s institute had come out all of the briefing was already concluded and rather than raising it even in their primary argument or filing a notice of supplement look already milan chose to wait until its reply argument at the federal the st instance of this pending appeal and s a s institute had been decided during the pendency of the appeal and i also think that fairness mandates that if reversal is warranted as to ground one which we believe is not warranted because there is more than substantial evidence that goes beyond draft u n yes but fairness mandates that because i p r l has tied this draft u n ts standard to the linchpin of our case with respect to ground one yet they want to ignore it with respect to grounds two and three and that's just not appropriate in these circumstances and i'm am i remembering right that the explanation the four gave w dr was analyzing the scope and content of the prior art and what it taught to one of ordinary skill who was designing a cellular phone at the time that needed to switch between networks would have recognized the benefit taught in these prior art references and it goes beyond you m t s in this even in g p r s which is indisputable ie part of the ground one and even labeled as such in ground one and the board says that they credited d binns testimony that one of ordinary skill many are would have been aware of the problem of mobile devices frequently switching between networks and of solutions to transparently maintain a communication section th the tension isn't necessarily that the board could not have done that into the record for additional justification it was that they didn't have an opportunity to respond to a jury budge and that that's simply not true because i p r understood their motivation and in fact replied and the board rejected that and i see my time is ended and we request a firm and it's of the board's decision on  man and unless there's further questions thank you go thank you your honor just a few brief points to follow up i do agree with my colleague in one sense in this case really is about fairness it's about fairness and providing an opportunity to respond to what became the central point of the board freemen decision  disagree with my friend on that point if you look at pages a one thousand and twenty as your honor mentioned earlier the u n chess standards really were the key point in the entire thing the thing that said this had already been done in a c context therefore we know it's desirable and it's doable and somebody would have done it and all those things but we had no opportunity to respond to the un t s t ender's it wasn't in ground on as i mentioned before and i would like to correct  it we're both the part of the prior decision and so the fact that g p r s has this p d p context doesn't get them there and so pointing to that part of ground one can't get them there because this court held that that's not enough to provide the motivation to pluck that out of that protocol and drop it into the c d m a protocol and they were lying for that at that logical step to relying on the standards which we had no opportunity to revive it wasn't mentioned in their reply it wasn't mentioned at the oral hearing it wasn't mentioned in the remit proceeding and then suddenly switched ponty the board decides aha that's what's going to get us there and puts it in its final written decision and we submit that that is completely inappropriate and not consistent with the a p a and warrant reversed in this case for the reasons i mentioned in the final note on the cross appeal they could have it sought an extension i would know sorry so they could have sought an extension to file their cross appeal you know for after the change in law you can get an extension of the sixty three days from the board you can get that that's in the region that is that we mean they could have i think they could have shows that they could have filed a notice of supplemental with or to their the court noted that they didn't do that that would have been doing something outside the normal you know briefing an argument process and it's notable that all the court's decisions that remained in light of s a s almost all fair and notice  their the argument and here they didn't have to wait for the next normal step which was the brief and most of the cases where this court if they i mean i guess i'm just trying to imagine what might they have filed they might have they did not want to file quite sens that grounds two and three are quite moot so what is it that they should have filed before their record i think based on this court case which we cited in the great brief footnote and several in those cases the party did file a motion to send it back confusion and there were issues about whether it was an all or nothing saying whether this court could decide instituted ground appeal without going back and that got sorted out over the course of a little bit of time but that really has been sorted out so i'm i'm struggling a little bit with what they could have filed that we if they had filed saying we have a conditional s a s argument and what would we have said we would have said well say it in your ready read brief well i would respectfully point the court to the decisions that came out when the court did not to say do it in your read brief in fact they said the opposite they decided on the motion to remove and you're right they could they probably didn't want to but they wanted to have their cake and eat it to wait and go through a briefing and then as a final way to to salvage it send it back if we lose on the other merits but this court in baker suggested that it would be better more efficient in that particular case  there to look aces where the issues were actually quite intertwined we sent it back the whole thing without reviewing the institute round decision where it seemed to make sense but  the opposite quite a lot well and i think if this court decides that it was sufficiently prompt and i don't i don't think it was but if the court decides it was sufficiently prompt and i think it will have to squarely consider that the jurisdictional impact and whether across appeal was necessary and our position is that