owner on that same anticipation if you think you are applying a standard or just use the language loosely they did apply the standard your honor i think if you look to the seven factual findings that they rest cite at the end of their supports the board's obviousness findings over the reference and the copyright issues on staff cognizant of the fact that we need to win both on anticipation and on obviousness i'd like to focus on what may appear to be the closer call and i think that's the obvious question so if you look at the words decision with respect to iraq we have argued that it lacks substantial evidence for two elements first the determining element and second of the second security protocol and if we look to the determining element the language of the claims requires that the base station determine that the first packet is targeted at the target device on this point the board found that the right reference inherently discloses this element if you look at it a thirty three to a thirty four the board said eriksson argues that the face station must make a determination that a packet is targeted at the end system in order to send a packet to the end system concluding we agree with their action on this point and  tracked the argument that ericsson made in its reply papers frankly for the first time which we submit would be a procedural error but i think the salient point here is that when ericsson and the board rested their determination on the must language and heresy they've set for themselves a very hyper and eriksson did not present to this to the floor below expert testimony for existence that would have met the inherent standard which requires excluding other probabilities and possibilities and because this issue was determine whether the first packet was targeted it could simply have broadcast the first packet but it wasn't really a question of raising it for the first time in a reply didn't they raise it in their petition they did not reason heresy in their petition  and even in its read brief here at page forty four eriksen again repeats that sort of syllogism saying it's just a matter of logic it's not a matter of logic eriksson's counts as intuition do not count in terms meeting the inherent c requirements and instead of truly rebutting that one of their papers they try to shift the issue to one of claim construction and say that while the claim is met just because there's a transmission in the rye base station but that would read out the determining language of the claims we submit that that was a reversible error sufficient to know itself for this court to set aside the board's obviousness finally turning to the second security  here common sense what we said isn't heresy and common sense cannot meet the standard especially when you have a relatively complicated disclosure that you have in rye common sense this would be consistent with this course case law they need to put in expert witness testimony  exclude other possibilities and they simply didn't do that i'm turning to the second issue of whether dr disclosed the second security protocol you know i know you're spending you want to spend your time on line and the state of the reference itself and found that that copyright line in and of itself established that the status reference was publicly available for the critical date we submit that's not consistent with this court's case law for example in  or there is no evidence to support the public availability of stadler in this case if we don't agree with you you do raise below the question  something more and it kind of gives a roadmap for proponents of evidence like ericsson with the stab the reference here could have gone out and got nervous about what the actually standard practices were in the one nine hundred ninety timeframe could obtain the librarians declaration and so on they didn't do any of these things and the law should not reward laziness especially when we have a stake in important property right with respect to intellectual ventures well if you've got something like that i triple aaa i mean it's pretty well known that you know what it does and  what its audience is right so i think i want to be precise with this it is well known what the i actually does i'd submit to your honor that is not well known whether the i should believe practices are with respect to assigning copyright dates and what kind of lag any would attach to the actual public availability of particular references keeping in mind you actually publishes many different kinds of papers and i don't because any evidence or an ability for this court to take notice of how it what but here the only evidence is the copyright line and the unrealistic direction of the conclusion that that's not enough to establish that a paper was publicly available at the relevant time as i said before there is no law grants declaration no evidence that this was indexed in available before the relevant time period in fact the only evidence that erickson put in was a web printout from twenty thirteen to show that perhaps it was possible to find it in the twenty thirteen time frame i do want to turn next to that eviden lister you have the manuscript that was deposited at the copyright office at some point the lexus in west la databases index that paper and the question there was when that happened there was a two year gap that was at issue and i think the facts of  lister terms of whether it was our publications what really drove that decision whether it was a manuscript versus a conference of papers we have here the question is was there evidence in the record that a skilled person could have found it found that reference to the original through reasonable efforts and here the board did two things first it didn't receive any evidence on that element what it had was attorney argument by erickson and the opposition to the motion to exclude and the board just assumed that more probative evidence could be found through reasonable efforts there's no that element there also are no equivalent circumstantial guarantees of trustworthiness the board essentially assume that a way and it's analysis and so there's two of you should have discretion there first he submitted the board's analysis with respect to the residual his exception was was offered for the truth of the matter asserted that it is every publication that yours publication has a date of i don't think that's true but there are probably are many publications with dates on them and if we are to take that date as truth that it was published in the words of the board as of that date then its offer for the truth of the matter asserted there's no dispute here that it was hearsay eriksson has never taken that position in this appeal neither the board's exceptions therefore it's no longer applying a second protocol to quote the first judge malley had it right that the lister case doesn't have anything to do with the copyright date and there in fact was actually dr lister who had submitted his own manuscript to the copyright office because he thought that would protect his invention and that's consisted of all the cases that intellectual ventures had it has cited in its briefs which is these are all cases where you don't have a reputable third party publisher independently publishing the work of the author which is the situation we have here it is the i tripoli it is trustworthy and in fact it's members that rely on tripoli publications or in fact that the members of the scientific and technical community well that you agree that there's two different but the copyright date by itself this is a third party publisher that's reputable and people rely on the states and scientific and technical community to be able to ascribe the the correct amount of significance to these publications w proceedings and if even if you can get such a declaration then there's going to be a deposition and potentially because i did consider for the deposition and i think here you have a case where the board is speedy and inexpensive resolution of every proceeding so not only is this reviewed under an abuse of discretion standard but i think also the board the board and rules give a considerable leeway to determine what's reasonable and what's not and  federal of evidence either three exceptions is the reliability of the evidence doesn't matter of the documents available or not and in some respects this is a rule of convenience that says when the source is reliable that's a situation we have here then you can six seven four pattern itself describes in the specification transforming first packets for wireless transmission statler the prior reference of statler transforms first packets before wireless transmission substantial evidence to support a finding of anticipation so it's your position that what the border is really saying is that from a technological standpoint they weren't different in any relevant or material way right if they you say he didn't spend much time looking at that no and then he was asked about whether there was one to one correspondence between the incoming and outgoing packets in the six seven four pattern if you didn't answer any of these questions then this line of questioning culminat talk to me about the whether the board erred in finding that stand or anticipated that dependent claims because i was a little confused about something relating to the two different encryption algorithms is it i preferred for wireless communications but the but the but the other piece of it is the part that i that i was struggling to find which is a clear statement that it second if not right and i just jumped ahead to our right to with well so yeah this is  corruption technologies are being used on two different links there's no question that there are different algorithms and there's no evidence to the contrary intellectual ventures is just resting its argument on the on the fact that we have  china i mean i see the argument and i see i see what you're saying but i guess the point their point would be i'm sure it will be that that there is an express statement that they must be different and one be a different algorithm we don't know exactly what a different algorithm means because there's no either of them described in the six seven four specification but the fact that you're encrypting on a connection by connection basis with an ip address has been established for the systems and the claim itself is very broad the step is determining that the first packet is targeted at the target device that doesn't even require that the priority has to show that the header information is even being used  to perform the targeting and with me as far as the delivering goes the the right reference actually distinguishes between broadcast communications and unicast communications where you have to determine whether to forward the message on or not if i may i'd like to turn back to the statler issue my my colleague said something interesting on the question of the residual hearsay exception he said that i tripoli's the most reliable source or something to that effect and i think that's telling the probably has the most probative evidence about when this was published but not the copyright minded try tripoli provided it's when did the i tripoli disseminate this to the public if our so we step back what is the copyright lines purpose there's an assumption er attempted to say well we have a registered copyright copyrighted work and therefore the burden shifted to the lister to disprove that and this court rejected that kind of approach to dealing with these issues but there is no doubt that there is there's a date as to the military communications conference and that there's no dispute that that conference occurred on that date back i don't know what happened when that conference was held let's assume stipulate that the conference was held in some subsequent events the publication of this paper made it publicly available on the copyright date is not something to signify when that when a document was riveted to the public copyright protection attaches the moment work in the board simply assumed that that date is a publication date and there's no evidence to support that point and for that reason without substantial evidence it was error for the board to treat that reference as par and it was also error for the board to admit that evidence in the