decision to institute and in any event didn't the board decide you you had plenty of plenty of opportunity to comment on the meaning of the claims sense we're not challenging the institution decision and although the point that we had the ability to do so this is from a patent that had been previously litigated and under the district court's previous construction and various parties had been able to successfully argue that there are there are various websites and mobile d web sites did not infringe the claims of the pa construction of the claim terms but in any event we needed to know whether that narrow construction was the proper construction that the board was going to adopt or whether or not the board was going to adopt a word unary meaning of all of the terms and phrases in the patent and although they claim that we have the ability to then address what they had specifically said was the wrong construction of the of the claim terms i mean i just suppose that you know under their theory we should have even after they told us that no you're going construction is not going to be adopted that we should have tried to develop evidence from experts in other rd parties and put that forward and been able to depose their expert none of that was able to be done because have those constructions i'm a little confused aren't these the constructions you proposed this isn't a case where the board came up with new constructions of the parties were aware of for the st time and its final decision these were the constructions you propose to the ballpark correct yes your honor that is correct but mohali did an a p a violation for the board to adopt your constructions when you were on notice that they could potentially be used and have the ability to argue them to the board they had they had told us your honor that they were going to use that they did not any orders that that would have excluded argument on those on those topics but functionally i mean you have limited space and limited time and  proceeding you have to pick and choose i mean that the amount of prior art in both of these this is really a consolidated to hearing case that you have to address in all of your papers functionally we use you little time to develop cases under multiple claims constructions for the various turns and i don't know what portion of the a p a do you think this violates in a rational and logical manner and here you don't have there's no real rationale in fact there's no real decision by the board on what e at least the requirement that they have a rational or prompt your proper factual underpinning for their for their  decision i'm still a little computes how the board's decision to adopt your proposed claim constructions which you say are never are is any kind of harmful error here it seems like by adopting your constructions that you had a better chance of proving the patent valid rather than using the broader plain and ordinary meaning constructions  harmless air well i completely agree with you except that we didn't really have a chance to argue under constructions they only adopted them at the end after all of our time to develop arguments right or briefs and to everything else had passed and you know that's that's what you're going to face again and again is petitions where despite the statutory requirement that you construe think you're incorrect and you should have construed them under these narrow definitions and as an alternative basis i recognize that there are limitations on pages and stuff like that but that's true and  choice of litigation strategy and not harmful procedural error on the board's part well we did your honor we we we did do exactly that in our response to their petition we said no you ought to adopt these narrow constructions and then the borg say yes you're right they didn't even say well here's what we think b r ok i apologize so that's exactly what we did was they came in with their petitions they said you know we should you should adopt this point in ordinary meaning whatever that means for the vast majority of the claimed terms they had been construed before we suggested that the court adopt the previous construction for all the terms and the court didn't you know hold it in abeyance they didn't ask for digital briefing they didn't give us any guidance whatsoever other than to say no we disagree and we're going to adopt the quote unquote point in ordinary meaning and that doesn't give you anything to go on at all you don't know what i mean but what happened after that did you not have the opportunity to submit another brief and argued to the border yes and under and we did that the best that we could under the under the tried to do the best job i could do to address the hearing you know what i'm talking about did you say i object i have been harmed you can't do that i did have you demonstrated that you were harmed by the board having used your claim constructions other than the fact that you lost well your honor had the court had the  meet the claimed terms but i had no opportunity to do any of that because it was only at the hearing that was that the claims constructions were adopted i think for example you know one of the main things is could under the proper constructions are you allowed to have the user defined the mobile web site in order to have the mobile data potentially appear history of this r p s proposed one construction and its petition and that was for mobile website and if you look at the boards institution decision and what it did which is around appendix page three hundred and six the board looked at that and rejected our construction in fact it said your construction is too narrow are p x we're going to adopt the one that the district court and the one that was advocated for by publishing then in the past then the board also went ahead and said we don't see any need to construe any further terms asked this time with respect to publishing's claim that they had no opportunity to argue their position on the district court's construction i'll point to their patent own response at page appendix page three hundred and seventy four the st paragraph of the argument none of the prior art teaches a content management website that st sentence says in accordance with the previous construction of the term adopted by the district court they go on to to attack are challenged based on the generating a mobile website configured to receive data automatically on page three hundred and seventy five dollars of the appendix and again they argue under the district court's claim construction we had met our burden there is no harmful error here and i don't know what good remained would serve if this court were to conclude that the board is obligated to announce a claim construction prior to the time of the hearing but what's more in this case r p s did put publishing on notice that it had no issues with the constructions and the reason that it did so is reflected in publishing is briefing the district court is arguing for the plane in ordinary meaning it says that the district court under philip's attempted to ply apply the plane in ordinary meaning of the language of the client again and pay appendix page four hundred and fifty two dollars they argue to the board that automatic should be given it's plain an ordinary meaning which is exactly what the district court applied and we agreed and we believe that our prior to that language under the district court construction we said this in our reply briefing before the  publishing had a certain reply to respond to our arguments and then we went to the oral hearing and it didn't say that it was prejudiced as as mr pickaxe agreed by the board adopting some constructions with respect to the i issue it is in our view your honour's it's kind of morphed from one argument about publishing never agreeing to accept the discovery that r p x agreed to give it there and proceedings to it did so only be grudgingly and at the insistence of the board essentially raising a due process challenge to the board's procedures on discovery for the st time and reply your honour's we submit that argument is has been waived but even so the cases that publishing cites to support this relate to revocation of a security clearance based on confidential information submitted by a confidential informant that some individual was a communist  or revocation of welfare benefits without the ability to confront witnesses and really what these cases say is that an agency or government that decamped as to the prejudice certainly material prejudice  cases of those individuals without giving them the right to confront the evidence that's being used against them those are simply of the in a play couple here the boards evidences of record back findings are of record on challenges on appeal so we believe that that aspect even if it could be reached by this court and we submit it cannot under thrive and disappear is to should be affirmed finally with respect to the challenge based on underwood and the board's findings we submit that if this court agrees that the board's findings on underwood are supported by substantial evidence it doesn't need to go any further and touch the austin grounds and we submit that the board's decision is supported by substantial evidence  or custom applications that live outside of the definer environment and are plugged into web pages there is also disclosure and under what is the board found of a user ensuring that their site displays properly on reduced capacity devices and even having the website able to detect the capabilities of the device accessing the site so that it displays properly on those reduced capacity devices such as cell phones we submit th and six and if you map through those the chart every one of the claims has been validated under the underwood grounds that isn't true of the austin grounds because the board decided that once it invalidated certain dependent claims it didn't need to reach the alternative arguments counsel didn't raise this in their opening argument so unless the court has any questions i  whether or not the real party in interest can be appealed three of did not come out so none of the parties including our pm x argued that it was you know that the appeal with somehow barred  by the by the statute so if anybody has waived that argument it would be r p s x not us but since there was a subsequent change in law of course we addressed this court essentially you know has a s in that case on what constitutes a real party in interest simply by saying well that's not appealable and not taking any data even when they knew and have a presidential opinion that former members or current members of r p x are in fact real parties in interest and can be barred and even though it's supposed to be r p x s burden under world wide to show that there are no real parties in interest i would argue is exactly the due process procedural shenanigans that was carved out of three of as an exception to the non appeal with the with the of those decisions this isn't a case where anybody knows the facts and everybody knows the facts like riven similar cases this is a case where because the board took no you know took conceivable that there would be a real party in interest and you wouldn't know it until it's too late because they didn't require and i'm sorry mike my time is up if you can finish a sentence so you