rules and reasonably and arbitrarily allowed t c l to introduce a slight filed information going to the date the chancel article was publicly available so i can't even considering the jensen article the board to which we all agree i think everyone here agrees that figure two on its face doesn't tell you what kind of phase shift or should be used you have to look to the rest of the the publication and if you look at the best of the publication there are three things you need to look at not just the language of faith ship although the language of a shift or what you're referring to that a t p acts eleven eighty six talks about three things it talks about conducting components in it rules that was out completely it talks about a frequency divider and it talks about some advantages and a big disadvantage to using a frequency divider and then it goes on to talk about pain ship hers and the rest of that paragraph controlled by a complex signal the frequency of which is in the center of the radio signal to be received now the second thing we all agree on here is that our frequency divider requires two times the signal when it starts and it becomes a saying it invites it in half and therefore it's the right frequency when it goes through the mixer so here if the frequency complex elo signal is in the center of the ra be received that cannot be a frequency divider so what gentle is talking about here under direct mixing receiver and what it must be talking about in figure two is a face shifter not a frequency divider the border law is on basically the experts testimony of what the sets we needed an expert to tell us what a frequently frequency divider is and that it's two x the others the rest of it you can find a layperson can figure out simply by reading this so an expert's testimony that contradicts the plain language of the reference shouldn't be accepted let's get one more if you look at the l o l mission  that's at the bottom of a p x eleven eighty five that's the page after figure toom we have one more that helps us in there it's talking about the local oscillator signal experiences no  noteworthy dancing but it says since the frequency of the local oscillator is within the past band that also is necessarily talking about something within the past and not outside of it so that's another clue that we have that this is really a feint shifter and not a frequency divider so the board in its decision actually found that figure two with the text and gentle is disclosing a frequency divider instead of a so on its face that's wrong but then you've got the next question which i think you are raising judge laurie from the beginning is is there not disclosure also of a frequency divider it mentions frequency divider that we know from chaos are you have to have more than simply a mention you have to have a reason to take the phase shift or the are safe a shift or and replace it with the frequency divider and i would submit there's nothing in this record that gets you to that fin line the motivation to combine if not there so that's the argument on the merit but of course if we're right on the procedural issue you never get there and that's why we raise it first and you never get there because gentle never come n n if you're right on this issue and we do believe in this case that there's been a little bit we do require some guidance or the board needs some guidance from this board on what the rules mean there are two roles in play here the first is forty two point one two three maybe and forty two point one two three b says if you're going to offer supplemental information more than thirty days after institution you have to have a really good explanation you have to explain why the supplemental information reasonably could not have been obtained earlier and that consideration of the supplemental information would be in the interest of justice here  excuse me i want to the second role tim forty two point two five b said when you have when you notice that relief needs to be sought you have to be prompt about it and if you look at the board's decisions below with the exception of the current one all of them really focus on these roles and hand them and that's important because here she feels argument as i need to trying to get my affidavit in place and get it and put a pretty bow on it and make it perfect before i brought this to the court's attention reports attention but the reality is the board in this case never even looked at forty two point two five and b they only rolled on forty two point one two three b and they and i would suggest it shouldn't because when a pat when i've petitioner comes to the court they know these are the rules they know what they're going to have to prove they should have been looking at this from the beginning but let's assume that's a harsh argument and they should have some ability to clean it up after we have checked because we objected within ten days of institution and said there's a problem with your evidence so then they their testimony their affidavit say they went along and started getting information what we now know again is that by april twenty first at the absolute latest they had somebody willing to give an affidavit and then there's an excuse it was it took us a while to get  translated get it and the right word or there's an interesting statement that comes in the apple lease brief that's also in the record that mr michel testified alessio that she didn't know she was going to have to there's a lot of confusion in there as to what really happened when what's important for the perspective of this court is that in the meantime on april twenty first eriksson's counsel is sending a letter to trying to get a deposition of the first person they said was their witness and they knew at that point they had somebody else that was going to come testify we're talking to them about changing our dates and getting extension likely would have happened if we had known there was another witness involved we could have avoided all of this there's substantial harm here because we had thirty five pages of our brief dedicated to an issue that they changed in the middle of the case and in district court we see that type of thing happen all the time because there's time to change you can amend your complaint because people have time to do more discovery in patent in the patent office  it doesn't work that way it's very front end loaded and it's run it loaded on purpose you have to come with your evidence mustered and there are rules that allow you to fudge on that a little bit but it has to be in very limited circumstances and when you're playing a game where basically it's like the pass the petitioner amended their petition after we had filed our response and we got to respond to what was in the amended petition that we've lost a lot of pages in our brief and if there's any argument that our obviousness briefing was weak blow or we didn't we did win the arguments against the other expert we had thirty five plus pages to do it and we should have  any particular type of fish after an erickson is wrong to suggest the gentles text somehow excludes the frequency divider our expert explained that with the frequency divider you have two different local oscillation signals the mixers are controlled by a complex l o signal the frequency of which is in the center of the radio signal to be received they argue this excludes a frequency divider but the text is talking about the local oscillation indeed what the prior art teaches is reviewed by this court for substantial evidence although eriksson has offered one interpretation of gentle p c l's expert has offered another substantial evidence supports the board decision to agree with t c l's expert's interpretation of general unless the court has any further questions regarding gentles disclosure i can turn to the procedural aspect of the appeal erickson has criticised the board for abusing its discretion even considering the supplemental information the board's rules permit supplemental information to be introduced specifically the regulation opposing counsel quoted thirty seven c f r forty one point one two three as long as the proponent demonstrates why the supplemental information recently could not have been changed earlier and that consideration of the supplemental information would be in the interests of justice he l demonstrated why the counsel they identified numerous individuals and librarians with knowledge of the public availability remember that this isn't a thesis this was a magazine article that was published widely in fact there's some evidence that there were as many as sixteen thousand copies out there it appeared to be true it had all these this information coming in and it needed to get the evidence to reach the board in the courts level of innocent illiteracy and all of that information was considered by the board we have a nine page opinion by the board  yes and just the response to that is simply that the board was acting within the interests of justice and letting us come in because the board is just searching for the truth here and ultimately this information seems to support a fact that that  actually was true so the board didn't didn't care they certainly didn't abuse its discretion which is the standard here in applying its own procedures which allow it to admit supplemental information and we have a reason nine page opinion from the board explaining why it  admission of this information and never asked the board for an opportunity to amend its claims in view of the supplemental information the board very well met of allowed at the board seemed more than willing in its opinion to make sure that there was no prejudiced erik's and in view of the supplemental information but that was never before the board so it shouldn't be considered by this court your honors this court reviews the board's application of its procedural rules for an abuse of discretion ericsson has failed to demonstrate that the board abused its discretion in applying its own funeral rules for supplemental information for these reasons as well the reasons articulated in our brief the judgment of the board should be affirmed unless the court ha any other questions i'll return the rest of my time thank you just quickly your honour's on the direct mixing receiver at appendix eleven eighty three i understand how t c else reading that you can't read it that way and apply english which we've decided is the controlling of this document that modifier the comma comes for that purpose the mixers are controlled by a complex a low signal comma the frequency of which is in the center of the radio signal to be received you can only read about to modify the complex next or just plain english in the document and i want to go real quickly to just a few things that were said we were permitted supplemental briefing only on the new evidence that was coming and we w allowed to go back and make up the thirty five pages and we made that point to the word in our opposition to them asking for the supplemental that hey are our pet owners responses already yet and we want to allow yes but our had no no response we spent thirty five pages responding to the original the original evidence they put in and would have shown a date of october nine hundred ninety three and that's the other point i wanted to make this is a journal in even if it was widely disseminated when it came out wasn't always consistent we'll know from law review days it may or may not come out in may or june it may come out at a different time and it often did you can see that in the end i see my time is up if i can just quickly quickly close this up so a lot of times those come in at different dates what we responded to was a square behind using the october one thousand nine hundred sixty eight because that's what we understood was the issue at the time and nobody preview to us there was going to be new evidence showing a different different time so we spent half of our brief our merits brief addressing specifically the issue of us where behind that we came in because they had new evidence that they didn't disclose until our briefs filed and we were never allowed to respond to that more pages to address the merits of the obviousness we'll i mean we had to do that and half agreed rather than a full fourteen thousand words we probably spent seven thousand words on swear behind having to fight that issue with one hand tied behind our back so in then the board makes decisions based on the evidence of the arguments we made in that brief which were half the arguments we could have made and that were subject to an abuse of discretion standard on appeal