and the first for relief generally to have matters namely obviousness and clean construction or if i could i'd just like to go quickly to issue five which was the constitutional issue which we raised boarding the article three taking this briefing was done prior to the will state's decision so we don't intend to make remarks regarding that today also that to bring to the court's attention that we made a request to brief the appointment was issued today but that request was denied so unless the court feels otherwise we are not going to address when you're not going to address the unconstitutionality in your view that it is because it has three members all by all states and it is not an issue left on resolved that we have to reach in this case based  story i think that i don't understand exactly what you're asking me or you asked me is the issue preserved based on are based on the record below well that's relevant that's right and i understand your theory that you raised this argument at oral argument below in front of  basically that it's a communication channel that has a limited bandwidth now i think anybody can appreciate that every communication channel has a limited bandwidth there's no infinite  band with communication show and we have attempted to resolve this issue by saying that it's either a wireless or a narrow band communication channel and  we believe that that's appropriate at a minimum that it should exclude broadband channels ok and there's really numerous legal reasons why that should be appropriate first of all and maybe the most compelling is channel and other one being i guess a high down with channel that is loaded down by multiple konqueror users and so wouldn't it be great to be able to send these complex images over a network under either of those situations and then and application proceeds to describe how your inventors came up with a way of doing that in both situations and so when i look at what is the purpose of this invention and as described in this patent it's really trying to deal with both of these situate what what you know and i think this also came up in a little bit in the in the deposition testimony of the inventor it certainly is true that you can experience a limited bandwidth condition beautiful current users however we talked about this in a reply brief where whereas there's a difference between the really limited low bandwidth connection and one that's generally broadband but occasionally experience fly twenty eight to twenty nine it's really just one sentence that says starts at nine twenty five this is the latest one network based in his distribution system in particular a system in method for officially selecting industry leading image parcels through a narrow band or and here's the key terms and the exact claimed term i like how and where were you pointed us which doesn't use the claimed term just does and it says otherwise limited bandwidth communication channel and pages about three three d view how did the product work what that the product do you talked a little bit about what its product did and what they did is they took that completely out of context and said that's what the patent plains was we've been talking about the patents completely divorced was just be purely textualist here the otherwise limited bandwidth communications channel can't be narrowband because the statement is narrow band or otherwise limited band background of the invention of the part that i giraffe you too was a summary of the invention i think there's a little bit different again we're talking about the general background of the technology as opposed to what the patent claims mean and what really did that there should be two different well i think that this court i only have really one question for you know and that is would you address whether in the arguments related to the dependent limitation of claim fifteen waived by virtue of not having the race until the oral hearing so now yes or the legal point that really judge chen was articulating in raising with opposing counsel which is under what circumstances can they make an argument during oral hearing and does this fit within those circumstances   their right to make this argument an oral hearing was that declaration filed along with the petitioners reply yes i believe it was so if that declaration makes the argument for the first time even if the reply brief is no is not enough and we would we would we do with that and does it in this case does did you agree that that declaration makes this different argument no i don't agree with that i think that both the reply brief and the declaration don't raise be the declaration enough doesn't give rise to the right to raise a new argument in the second way is in this case even if it did it wouldn't so you need to be clear with me about which of those two or both if you want to argue both but sixty five to sixty eight is what they cite here this is a lot more than just one sentence in the reply brief itself when could the patentee have responded to th well again this is this is just talking about her decision in general it's not talking about the specific limitations of claim fifteen and like i said before our argument in our brief was that even if you're going to allow this  so i don't think you can make up under any where you cut it this argument hasn't been preserved so just so i understand what your position is on the law if the new argument were expressly mean by the petitioner in the declaration attached to the reply would a p owner have a right then to respond for the first time in the oral hearing to that new argument suppose i were to read a paragraph sixty five as expressly making the argument related to the trial is pending download to articulate why that limitation in particular among titles pending download is or is not present in the ready reference if that were for the first time here in this document would they have a right during the oral hearing to them respond to that argument well i mean we didn't address this issue in the briefing i think up top my head i i would think you know interest in everything but they did raise this is what they relied on the reply reply itself i think that if you file or apply before the board and then you attach a declaration and the declaration says makes you know addressing the number of issues but the reply is silent on those issues i think that's a problem because the what the what the board is looking at as a primary source for your arguments is the reply and you know while the declaration can be provided to provide support for those arguments it's not t the reply but not evidence in the declaration but not in the reply itself right if the board's made a finding that was totally consistent with the declaration that was submitted attached to the reply but had been in the reply i think that your argument would be leads me to conclude that has to be wrong and it's improper for them to do that because you're telling me that he doesn't get a right to respond in the oral argument to something in the declaration they only get a right to respond something their reply well they that deep into this issue i think that you can look at the oral hearing transcript and see that these new arguments were made in the in the world transcript and that's the end of the story that they didn't make this or these arguments about these limitations before the board in any fashion so for once once you make that finding the pending download language didn't appear in the transcript no not at all like it wasn't highlighted that separate part of that dependent letter to the pages now if we can look at the lines seven through twelve i'll highlight and i'm quoting now from the the record here i'll highlight claim fifteen and sixteen for the first purchase ation claim segment and that i've highlighted you claimed fifteen the prioriti that i've preserved an argument that ready doesn't expressly disclose pending retrieval downloads i mean what we are we are in the text of the discussion as opposed to simply the quote of the claim language because then you go on and