court based on the parties briefing i would like to focus on two issues where the board committed legal error st relating to all the challenge claims the board denied qualcomm the procedural safeguards of their notice and adequate materially broader than the construction advanced by either party specifically the board construction eliminated the feature of increasing bandwidth for the user which from the petition stage both parties judge interrupted and said i'm not convinced that six words in your construction to increase the bandwidth for use or are possibly part of the claim construction i give notice that we will determine whether those words belong in the construction would that has been sufficient notice under the a p a as i think in and of itself that type satisfies the a p a which requires notice and an adequate opportunity to be heard judge still asked you if it satisfied the notice portion i haven't heard you address that the cases you're referencing go to opportunity to be heard not notice so would you agree with her that that kind of statement at the outset provides sufficient notice and how does that differ from a written order by the board saying we wanted to show and so on this i suppose so your honor if it was strictly respecting notice that address if at all how the facts of this case differ from that hypothetical which you agree might be sufficient for notice purposes or is your case hinges on one adequate opportunity to be heard i kind of think it's the latter but go that it was it was going to adopt or considering a construction that neither part of the advocated rather the board asked one question which the board itself characterized as a quick question and it was directed s whether increasing bandwidth should be part of the construction i understood judge stolz hypothetical to be where the board formally identified a construction that it was considering i don't think that happened here and the reason part of the construction that the parties disputed the parties did not dispute whether increasing the bandwidth for new jersey part of the construction the fact that the parties disputed other aspects of the construction does not lessen the need for notice an and column two lines fifty nine to sixty seven that support the understanding that killer aggregation choir's increase use increased bandwidth for the user in addition to the fact that based on this argument that the board so your telling me that this claim construction issue would only be a question of the law no matter who decided it you're telling me that you would not you did not have and you do not plan to introduce any pieces of prior are technical  expert testimony so why why in the world if that's the case and that's what you have said the are or at least you have didn't mention any actual evidence extrinsic evidence i mean you know i i don't understand why you didn't appeal this directly to us it's a question of law the way you framed it and if you think the board got it wrong in addition to raising the a p a violation why in the world would you not have appealed directly meaning at a construction that's what you're saying that's certainly a possibility who is in dispute but in addition i think the path itself and or that address that address what increase bandwidth for the user that it's part of the term carrier aggregation council i tend to be liberal with time i would really if you have one more thought on this point i'd like to make it but then i do want to move on because i really want to hear you address the power tracker argument so please proce questions directed to qualcomm excellent excellent counsel can i can i correct your facts because i think you have them wrong there's not one quick question the board put intel there's one quick question that one judge of a three judge panel put to intel that does not make it a statement of the board does it boner i don't know if there is a bright line rule that determines how many questions would provide notice but i think certainly at minimum a question is directed to the patent owner asking them to respond to a hypothetical formal hypothetical construction which that didn't happen here and i think that for example this case stands in stark contrast to for example intellectual ventures into ericsson where there was i think this discord and the board termed the questioning to be continuous the user i made wouldn't that be sufficient to put you on notice even though the questions are being directed to intel and not cause i guess opposed to what you are but that is not what happened here and i don't there was questioning your you know i don't i don't think that a rule from us that says any notice must be given while the passengers talking makes much so i'd like to i'd like to address the question briefly if i may about the petition for rehearing we did not seek a petition for the hearing and for three reasons one i think as nike adidas makes clear a petition for  the board identified only the power tracker without including the algorithms a column a line six to thirty two dollars which were required to program or configure the power tracker to perform to recite its function and that was wrong as a matter of law different than the situation on appeal which is in the nd step of the next post function on occasion does a power tracker alone constitute threw in the st step that what they're looking at is whether it's a fish deficient lee definite structure claim or something directed to a circuit and our court held that a circuit that is as opposed to a general purpose computer and our court should be the corresponding structure brief in a very methodical way why do you think an algorithm ought to be the associated structure i'm just not sure if you appreciate the catastrophic breath of what you're asking for i understand you represent the  case but the electrical arts are the most frequent user of the means for clauses and your now wanting to impute an algorithm requirement into every patent otherwise it be held indefinitely if there's a means for that is directed to circuitry which could implicate a logic or software component to the circuitry that's the rule of law you're asking for i think that rule of law is so broad that it would invalidate thousands and thousands of electrical patents that have relied upon the understanding in our law that the algorithm requirement is limited to a general purpose computer where you please address why we're not asking for a law that might and it'll components of pretty much every general purpose computer were amounted to a general purpose computer so that's not quote hardware in the abstract and it's definitely not a specific circuit like a power truck or circuit synthesizer or controller and dischord explained that if that was true implement the hardware we would expect additional hardware intel and because it was absent dischord construed the the complete corresponding structure to be the controller we know that that's not the case here because until the expert  petition governs the scope of the i p r suppose that in the petition it says clearly the crime construction is a a is a very specific particular thing patente says no claim construction is b the board comes along out of the blue never having mentioned it at oral argument or to anyone ever anywhere and adopts the claim construction is instead to see and suppose both parties are be fuddled by this claim construction because it sort of came out of left field has no foundation in the record isn't supported by the spec you don't think that there would be an a p a problem if either or both of the parties were to complain to the court that they didn't have the opportunity to address that respectfully  think this court's precedent makes clear that that is not an e p a problem now it doesn't preclude an argument on the merits which qualcomm is not making of course either party can challenge and under which under which of our precedent do you believe gecko where the court said the board is not bound to adopt either party's preferred articulated construction of a disputed western just western yes a purse no one is disputing even does not dispute the board may adopt a different claim construction that's not the question the question is does the board have to give the parties an opportunity to be heard on that different claim construction saying unequivocally no i don't believe western deco addresses that issue at all i agree it doesn't a term pharmaceutically acceptable as the term the board violated a party's procedural rights by adopting a claim construction that neither party proposed this court then said that argument is merit because i don't remember that case specifically was that an a challenge on the basis basis of notice and an opportunity to be heard or was it an a p a challenge the propriety of the board adopting a different claim construction i practice to be able to confirm whether they actually say nudists and opportunity what they definitely say is s a s for clues and what s a s was doing was saying the a p a says the board may not change theories meet no bearing on whether or not a similar challenge based instead upon notice an opportunity to be heard would have been decided well your honor please i think i can explain that the relationship behavior requires is not noticed an opportunity be heard about literally everything what the a p requires is that an agency may not change theories in midstream without notice an opportunity to be h is adopting a claim construction in either party proposed is not changing series midstream therefore there is no predicate requirement for such a new it is an opportunity to be heard and i do think that i precisely the situation here it's exactly the same thing that happened in the intellectual ventures case where there was likewise that the court said there is no requirement for there to be for the board to adopt one of the parties constructions s predicate matter where the board does not previously say it's going to construe the claim one way and then change with the board instead we just rejects both parties arguments that it is not a change in theory midstream that gives rise to a notice an opportunity to be heard and therefore we don't even have to get to the question of of of whether there was adequate notice or not now it is important as was raised in  appellant argument that qualcomm is not appealing on the merits they did in their brief in their briefing before the board make arguments in support of the claim construction and make arguments specifically in support of the aspect of the claim construction for which they claim they never had an opportunity to need to be hurt the board itself made clear in its summary of the party's arguments a opportunity to defend its construction it did defend its construction the board rejected it and the only thing the board did that that is different from just rejecting qualcomm's arguments outright and and switching to petition not involve an adoption of a claim construction and neither party proposed they instead involve reliance on an entirely new theory entirely new prior are etc those cases are not in this category where the construct of the new construction the notice that was given during intel's argument before the board was sufficient i doubt we'd simply disagree with qualcomm that that notice was in any way unclear opportunities to attempts to support that aspect of the construction if it had wanted to do so had its full argument time and had the opportunity to seek reconsideration after final written decision and had the opportunity to seek to submit before final written decision a supplemental brief given what happened or argument and elected not to do any of those and that elected not to actually challenge on the net and so i want to go back to your general point about are correct in that that there are similarities between the two parties construction but the parties did not actually propose the same six words they proposed different constructions and even as to these specific six words they proposed different language that the language that qualcomm is has been describing here is actually it was part of the intel proposal but qualcomm proposed was this was language that talked about carrier aggregation  requiring multiple component carriers if you did not have the specific increase the band with that had language that we agreed in substance encompasses a similar term so this was not a situation where this was an undisputed claim term or an agreed to construction in that circumstance things might be different but this was a situation in which this term was indeed disputed but not always hard to th portion of it you know a term can be ten words long right a term not open to a single word and with regard to this portion whether this claim limitation required increase bandwidth you were both to complete agreement just to make it right had i got it right you agreed that would be part of like opportunity to respond to an opportunity respond because you actually breached it i think that's right and i think that's right i think it goes overall to the to the the problem with their they're claiming that they never had an opportunity and opportunity to be heard i'm not sure i'm not sure that there are as we said there actually a notice an opportunity to respond is required on a plane on a plane construction issue anyway but to the if there is some issue about substance there wasn't a dispute about the aspect of the limitation that qualcomm is now addressing here notwithstanding that the constructions were different and both parties presented evidence in support of the construction qualcomm itself presented evidence in support this increased bandwidth aspect of its construction the board understood that and identified it in its opinion and summ challenge that underline finding a fact nor would it have any basis to do so and that ends the analysis that makes this case exactly like in controlled by the never wrote case in which just last year this court addressed means for generating a paris t v a free therapy signal with a signal frequency it in a certain range the corresponding structure there was found to be a signal generator which was not a general purpose computer and the court never wrote said that the an s where there is not a general or that the claim does not require a specific a claim does not require a specific algorithm when the identified structure is not a general purpose computer or processor what we would say error is is focusing on the level of detail of description of the proposal of the disclosed power tracker and that is not what's relevant for the algorithm rule it's not the level of detail of the disclosure what matters is whether the general purpose computers i've never seen that done and i agree with your honor that it would be a very broad expansion of what is otherwise a fairly limited rule and every scrap from a single terminal we did not as we do not focus on whether it have to be extended transmission bandwidth that was we agreed if that part of the constructed you and tell the council just i'm i want to make sure i understand did you did you explain why cite evidence to support that part of your claim construction that part being the extended the and which part i believe their site patience for that but the focus was on the user