suppose that the should not have had a hearing where's the prejudice the prejudice is the early period really centered around the meaning of the word inform and the third party requester talked about this is the crux of the case of the case and actually had an example of informing can be inferential and in fact use the example of if i came in from out of the rain i could tell you it was raining outside and you would know that or if i came in and i had an umbrella and it was what i could also infer that and that's fine but i'd like to hypothesize those that tell you that there was a blund storm that day i don't know if it was lightning in the same kind of way one of the little of the me may be asked the question this way if there had been no formal hearing or argument and the board had said in its opinion exactly what it did say would you have had  procedural unfairness objection we never heard of this claim construction before or something and either it seems to me either you would or you wouldn't but it wouldn't be in any way dependent on whether there had been people standing up at lecterns talking to the board face to face good point i believe that you know while we don't know what all the judges were thinking that they you've got to assume that the argument put forth in terms of that can claim construction during the argument did have something to do with their decision and in that manner yes i believe there are there are there was on there wasn't the a different outcome but they had sought that claim construction before the hearing right i mean before the time of the hearing  of because they took their position i think it's a very superficial kind of position because if you look at claim seven that the board talked a lot a lot it was regard to an overcontrolling setpoint which says that i have a temperature and you know let's say it's sixty six degrees and i set the thermostat to be sixty nine degrees and so i want to get outcome i won't get hungry and faster and that's wrong now that word had an alternative ground for obviousness as well didn't and it's sad that because the get there and again i think we've got to go a little further that says i have to in my claim i am not informing the user just about in time to temperature but i'm informing the user of that if i do it over controlling setpoint i definitely will not change how fast i'll get there and i guess my point is that as an what the board is saying is that again i won't get there any faster if i set it up to a real high temperature but that's not true it's not true in all cases my system at home if you do that the heat pump comes on and then if it's a high enough set point it actually could see on the electric heaters in addition to the heat and guess what i get to that intermediate set point fast and that's the kind of difference that you can't just have been in firm that says one thing you have to have a message and that's what the all of the claims talk about is not just in forming the user but informing the user with a message o to arrive at a certain point you know you may want to aim for point three so you're still going at sixty miles an hour and you get to a point to where something right so it doesn't seem to me self evident to at least this la that it was inherent in a longer time to get to the unduly high let's say set for a longer time to get to the intermediate actual desired one right to appeal notice that saying something about it inherently yes but it also relied on the fact that the system one of the courts was the system is only an on off about this time temperature concept where as in claim seven as we've talked about there is this informing the user that the third overcontrolling point will have to crease to mount of time needed to achieve the second desired setpoint we've talked about that i believe that is a very clear differentiator from all of the we also talk about providing the message during their mount of time talking about a first initial set point over a two a second set point during that amount of time is when in the board argues that an ambient temperature could be a first set point it is not a claim talks about specific starting from a set point and displaying that kind of information along with the message so there are a number of points  that they did not rely on anything outside of the briefing so that there is no reason to say that there was something brought up at the hearing that wasn't part of the record and as was pointed out the discussion in the hearing was about the claim construction that was already brought forth i mean the second point i also want to make about the oral hearing is that honeywell received the notice of hearing and they also receive a response to that so they should have known that the hearing was going to take place on that date because they knew that nasa had responded and then the third point i wanted to make about the oral hearing is that it's it's not against the board rules to have the parties you know to have the third party respond you know the forty one seventy three d allows a party eighty of the m p p does not mention this waiver it just gives the rule and it doesn't say anything about that and tell it waves it doesn't have that statement that they relied on in their  harmful and so unless they show some new otherwise unnoticed basis for a decision that came out of it which is not being purge so all this effort that's gone into parsing the rules and the m p p about whether hearing had to be held i see it seems i guess a little hard for me to understand what the point of this all is i do agree with you i think it's hard the hard make that due process is being denied to them by another side being heard i don't think that's a due process violation i guess you know we are just responding to the arguments that they made but i do agree with your point  it showed the new temperature and it will tell you and the new time there because it is an on off feature the new temperature well you know of what the old of the old i mean i the new time now i mean i agree with your reading like never find them so says you know it generates the time data and it you know calculates the time until the cabin is going to reach that pressure i mean at temperature you know it doesn't it does you know it gives you the new time to temperature when you put in the new temperature inside think eight i do agree with your reading but it think you know the board the reason i guess it felt a little significant is that the big claim construction out and then you put in a second one and that display doesn't change show it tells you by silence that even though you've now said i want to actually get to the four degrees if we're going up and you really really want to get only t sixty nine degrees it is still has a sixty nine degree from on the display and that's enough to tell you you haven't changed the time and i don't see that that has anything to do with what's going on in an abundance well the time would automatically be larger so when you put in the eighty four it would tell you what let's say to get to sixty nine it would say oh it's going to take ten minutes when you put in eighty four it would tell you oh now it'll take twenty two minutes so that's where the that also you know there's a statement that the time not decreasing you know leads to an inference that the amount of time so like us if we go to twelve appendix well as a form informing the user of an ordinary intelligence that a time to temperature will increase rates third overcontrolling some point that point would also inform the user that these third overcontrolling step point will not decrease the amount of time that conclusion and i think because independent so does recognize the same problem you would say that you know it would be that you know that's what they're trying to get at as well are you referring to the tougher guy action yes is there particular page that we should look at  but i think i get this also relates to the board's you know alternative finding that it would be obvious to have an explicit me recognizes the problem it would you know it is an obviousness rejection so if people don't know something tell them right ye temperature back to it is simply time to temperature and that is not especially with claim seven is talking about it your honor talked about i'm talking about two different people but put aside the you really don't get to where you want to go by overshooting the mark and you want to tell the users you may think that's what you do well you're wrong don't tell them so so what's what's the what's you recognize that know your are wrong you're not going to get there and you faster it's simply gives the time right now but this is i mean this is at least not terribly featured a point that the board but now featured defense the board by by the director that says once you recognize the problem there is just no work left to do in again to find this solution even i seventy three b and d forty one seventy three b talks about first requiring that the appellant the respondent request the oral hearing yes that's what honeywell did and then we got the notice of hearing which states that you must if you are no longer interested in participate in the oral hearing you must file a waiver and this allows the panel to promptly act on the i understand what i mean by that is what i would have understood from that is that i'm waving my right to be present and hearing that i have the right to cancel particularly when opposing it goes in party then says that we want to have a hearing in the required but but additionally when within two months after the examiners answer to request an oral hearing we requested it nested not so it wasn't a matter of across appeal and i guess that's where i think except the examiner in both cases the examiner could testify under twelve or nine x partly for the patent office and in much the same way here since ness did not do a cross appeal it tends to be or look like an x party in the sense of they wanted to participate in the oral hearing they didn't request it and reading that i guess any other way doesn't make sense with the notice of hearing that says