art to his reasons for reasonable expectation of success to his reason for combining the prior art and three when the patent are called out petitioners bear expert conclusions in the petition the board allowed petitioners a do over in their reply but worse the board did so without allowing the patent owner any substantive opportunity to argue why the new reply evidence was improper just a bare listing also no opportunity to file a serv apply for we could have provided rebuttal evidence to explain why the petitioners new evidence was incorrect or any reason decision in which it explains why i believe that the new reply evidence was improper on an item by item basis and the it's the but we all agree that the boy that has to evaluate whether or not you're correct that these were totally new arguments i mean the board can have a lot of totally new arguments that would have to give you an opportunity for certain life so i'm not i guess i'm not entirely clear on what you're saying we are you saying the board avoid evaluate whether or not these were new argument right yet ok so what's wrong so the borderless was three pronged one it didn't give us an assumption of opportunity to argue or explain why we believe those were not proper required so this is kind of different it's not that i mean the board evaluate the board made an evaluation yes so your is your complaint why is you it exactly one or it's i mean there's also the to know of a review of whether or not these were in fact your arguments or not but in addition we have a due process need if you're a violation that we were not given an opportunity to provide see that was in the in remove ace of case forty one f three v at nine seventy that whether a ground the board relied on was new requiring a new opportunity to respond is a question of law subject to the review was there any response allowed any up to need its made any rebuttal evidence such as expert testimony that could explain why the petitioners knew reply expert testimony was incorrect then in addition when the bore issued its final written  decisions there was just a single footnote in each one of them saying we've evaluated the challenges to the new evidence and i'm paraphrasing and we find them to be proper that was it so we had no idea why they believed that each of the items that we had challenged were in a proper responses basis as to why that was true for each of the challenge items of new evidence or argument but essentially that what the board appear to be finding is that petitioner basically had conclusory statements just like for example in one instance their expert said that mill brandt's reference to some frequency is the same thing as the claimed subchannel period that was all he said we challenge that is being merely conclusory but then in addition we came back and said on top it at that point or at the board seems to be suggesting that there is some sort of catch twenty two decision that if a patent owner chooses to both say petitioner you have no evidence and by the way here is some of  that somehow opens the door for the patent owner to then basically get a do over on reply now the federal circuit in the intelligent biosystems case helped that the evidence necessary to support patentability has to be in the petition and there's a reason for this because until recently the board is not allowing service like this but all the arguments and everything that i mean you get to respond and they get to respond to you so it can't be that everything the petitioners only opportunity  like for it for example the argument on sub frequency versus sub channel and the pitch that that is something that petitioners recognize they needed to prove in the petition and so they had their experts say that those are those two evidence the n t to figure yes in the petition the only thing that they relied on was a so the issue here is mil brett so the clarke claims require measuring certain parameters on the sub frequency bases there another claim that requires measuring certain parameters during show time miller it does not disclose either of those two concepts it does not disclose measuring any you know power parameters on east of channel basis expert and petitioners expert didn't that provide even an explanation for why he believed that to be so he just said they're the same period in the petition and reply he came back and provided more explanation for why he believed that not the same for example in one instance most aren't specifically uses the word sub frequency in an instance where we know for a fact it cannot be referring to a sub channel now the board brushed that away by saying well must have been using the word thing as the same club same claim subchannel that our challenge is the fact that the the board's only basis for its decision is citing to what milgram said which again is not what the claimed invention is statement by the expert when war actually had the reference in front of them and the reference has language in it and arguably can support their conclusion well because so why is that among other things a due process problem well it will i want to was disclosing one channel and some frequency i'll be honest i'm electrical engineer have trouble understanding when they mean i think they're maybe even internally inconsistent within the patent but it best confusing about what they mean yet so if i am not reviewing it to know which their cases we get where the there is no expert testimony are you saying the board is improper for looking at the reference and telling you what it was a skilled artisan in the field similarly if there's no expert present giving testimony i don't know your honor because for example if the if the parent reference express disclosed limitation that's something that can be easily determined here it does not expressly disclose subchannels it does use the word subchannels in other speech instances that are different than some frequency just referring to it on a substantial basis and if anything that that again also seems to suggest some frequency in subchannel are two different things but here it's an issue it's more like can hear and see and if one of my column ten at the bottom will start line fifty eight and go through roughly line sixty five that also seems to support the board's determination about what these things mean again i think this is this this isn't i think there's no dispute that no brant does not use the word subchannel in terms of discussing what's being measured it uses the word supremacy and so the border point of two sentences word milgram is using the word sub frequency and and they're saying you know we take that to mean that as a technological matter he's referring to some channels but again that just know about millbank know best said sub bands or channel i mean how much of a leap is it for the board to say that's that means what they think it means i mean it's much of a leap and it's it's you can't win on that argument or substantial evidence reveal while it again then the issue is where is the evidence that that that reference to subchannels or pants is the same thing as as the claim you know where is the charge during operation same thing as the claim during showtime flight number it never says that in one instance we know for a fact that when he says during operation he is not referring to during show time because he specifically referring to modem tr not identified any particular argument or or piece of evidence that they believe was improperly considered by the board i would note for example that they mentioned argument because it can be used in different contexts it did not a lot my understanding is that did not allow them to make arguments but it did allow them to list what they thought was improper or outside  that that document is not in the joint appendix they have not relied on any of the arguments that they previously identified or the portions of the petitioners or do you understand their argument to be  insufficient and they should have been a law again i'm going to use the second argument to make arguments with respect to those items right yes as i understand their arrangement it's there are doing that  a patent owner is entitle to assert pliant all instance that it was improper for the board to consider the petitioners reply at all so what standard does the award have just that have to determine that no these weren't new arguments because they were already included in the petition so is that the standard that we're reviewing were these in the petition i'm just not clear on what the standard that board ought to be using my understanding of the standard that the board uses and this relates back to the rules governing i p r is that the petition you should reply is allowed to present argument in evidence in response to points raised by the patent owners response and so as long as the petitioner is responding to arguments and issues in evidence before by the patent owner and that is proper and so this is this is why the petitioner is not locked into statements in their petition in the sense that that if they if they say one word that's different than what was in the petition that they're out of line that that can't be the standard because it would render the petitioners reply in kind of a ridiculous filing but the standard is that if there's something new that the petitioner comes up with new and different i guess then there is an opportunity f yes that had you didn't describe the line correctly because the line has been drawn further than you just yes judge more of the new embodiment being braised which which then is really more of a new ground even if it is the same reference would would be an improper new order to me here i don't understand the appellant as identifying the petitioners as having done anything like that we're relying on the same ten that we did in the petition with respect to showing that some frequencies are are properly understood to be subchannels there is really a question of due process  of whether there are a new arguments shouldn't there be an obligation on the board to see that all arguments are road forth and considered so that the final decision has the substance that this entire procedure is supposed to to impart yesterday newman i agree and the this court has said that one of the purposes of the trial portion of the proceeding is for the admission of evidence in the the the development of argument or to the institution phrase has initial arguments before by each party but then there's the trial phase developing the evidence developing the arguments and bringing them to a point at the oral hearing before the board are satisfied as to who is obligation it is in this given take before the board to make sure that there are no inappropriate barriers imposed by the agency when their procedure is supposed to be anything than that in a district court well i mean the board has many things that it has to consider a minimum among them is the statutory mandate for issuing its final written decision in one year and so if that is of a limitation on its ability to be flexible and so whereas a district court could could move deadlines or extend the case the board doesn't have that kind of flexibility so it has to have reasonable wools in place to ensure that it can meet those deadlines and i think the the board is has done that with its rules and we've seen the board adapting them over time but th violation of the patent owners to process rights net and i then that's a little extreme and that exactly saying every case they're talking about these circumstances and then making an argument we may reject the argument but they're not their argument isn't in every case they have it is a matter of their brief as being a little bit more aggressive with their position but it certainly is for us today's proceedings is concerned the limiting it to the facts of this cases is appropriate why don't you turn into a little about what the reference there board cited and relied on bill grants teaching that it gathers measurements of the subscriber line performance quote while providing data services to subscribers was quote that's that's from  providing internet access that is the substantive end user data communications that occur when you have a d s l modem engaging in normal communications that is show time i don't measurements and in that integration is something that it specifically counts as an advantage that's in the sentence bridging column six and seven mil print is describing taking these line measurements during the normal communications  supreme quincey that you indicated at least some concerns over what the board did but on substantial evidence review don't see a way to find an in favor of the appellant here  think for the apple is no brands disclosure is sufficiently clear the way it's describing each sub frequency as an independent channel and saying that there are many such individual channels and the each of those multiplicity of discrete frequency carriers which are then son together and those carriers form discrete non overlapping communication sub channels of limited bandwidth that's in the first column in the background section of  description of the sub frequency which is moderated using quadrature amplitude modulation and which is independent and supports transmission of it's own data stream so i believe the evidence is there for mill bran used to identify these individual carriers of the multi kuria communication link that the words carrier sub carrier channel subchannel subband frequency that all of these are words that are used to describe that same concept and that although in particular instances they might have slightly different meaning they frequently are used interchangeably and so i think it's not raised and below in the i p r's and they still have no evidence on that they have only attorney argument that that statement in millburn somehow means show time when there is no evidence that providing data discloses the concept of modulating data for transmitting data on a substantial basis that he must have meant the same thing when he was just discussing how he measures tester diagnostic parameters understanding measuring how you measure a parameter does not have to be the same as how you are transmitting data that was another new argument in reply relying just on attorney argument then there are a couple of strawman arguments kind of putting some words in our did that was an argument that they did not even make in their briefs that was an argument that i heard for the first time here at oral argument and so that is also an improper new argument you're beyond your time