call imitation three or step three of the claim which says identifying the activities to be completed by the user activities in the plural when this started petitioner proposed a construction that said well you have to identify which of the activities that is a word activities in it but that's not identifying a plural which of the activities covers singular and so we came back and we said well that is not a proper reading of the claim it requires identifying plural activities not identifying one activity to do from or any of that but you do or you respond to one response of two is an additional but there are we have two bases for this so and it's consistent throughout our ultimate construction that you have to in step three identify plural activities is the construction so to speak to the scope of the claims that we've always sought the response of to is additional intrinsic evidence identify all the steps before you execute them or instruct on them is true for all the claims and so that even outside of the response of two is in the claim language of the claims because it says if you take responsive two out of there it still has to be subsequent to the k the term subsequent to two doesn't have to be in there but the reference to the st nd and rd steps is referencing steps that are already completed and we cite multiple cases on order of steps and several of them talk about performing multiple actions in an earlier step and then performing other actions in a later all of those construed the claim to require them to require that the multiple actions and be performed st before and one of them that i think is particularly relevant is apple versus samsung because it uses the reasoning not we don't care about the timing within either between identifying the activities or between identifying the status of the barrier we don't care about the timing of how things are identified viz a viz identifying other things you could identify over a course of time we're not worried about the timing of instructing one step versus the other that's where the board got off track is worrying about this other time and the only timing we're worried about is the timing of instructing to the timing of identifying the steps and that is required because it's responsive to take out response of the last step refers to  the nd identifying step and so it has to occur after the nd identifying step has occurred because of that antecedent reference and that's where apple versus samsung comes in which is the motorola five hundred and fifty six patent and there were a lot of pat fully form both codes to produce precedent code had to be fully formed before you can multiply them and there was a finding that technologically you could actually multiply them before they were fully formed but the court said that didn't matter because the claimant required a reference back to multiply and step was a reference back to the codes that were created in the prior steps and so similarly here the identifier the transmitting guidance step the th step here the steps have to be fully completed you can't perform half of identification step step three then go and perform step half of step four and then go back and perform the nd one because step four refers to the rd step in an aniseed way and that rd step requires a plurality i'd like to push back a little bit on the waiver point the with the way this this dispute was formed is it started with the petitioner saying well you have to doesn't identify which of the of the of the of the steps to do which covers singular and so we came with their petition he was talking in the singular shindler establishes which limit setting activity that singular a user should perform based on whether the door last traveled up or last traveled down in a four hundred and twenty eight this is live mr lift off again their expert a user must perform the activity singular of setting the down limit position or whether the user must perform the activity singular of setting the upper limit position and so their petition was focused on singular we came back in our response and said well there isn't singular in the prior there's the claims require plural and so singular in the proper prior doesn't cut it that's when they then went to this to loop theory and they started using the phrase that there are multiple steps in schiller during the program and you see that throughout the their reply and throughout  programming it doesn't matter how you loop you can do it whenever and they don't argue to this court really claim that the ordinary language they jump right into the flow chart it's in our path ok which is figure six and i prefer the court partial loops instead of performing the claim fully from top to bottom you can perform half of a step and half of another step and then go back up and perform half of one step in half and another if you look at this flow chart has then it checks the status that's the other determining step and then those last will not last week blocks with the next three blocks with a loop that's the instruction part of the flow chart so yes you can then construct wait for the user to push the button or whatever and then more actions is meaning do you instruct on more actions of the flow chart so you've already at the beginning you've identified multiple activities up you don't identify want to activity and then instruct on one activity and they go all the way back up identify one more activity instruct on one more activity that's what the prior art it's not what our invention are invention identifies a multiple activities and then it loops and instructs on those activities and the box in the flow chart says determined user steps in the plural consistent with what our claims are and really the only construction that our phone and has to get around the tooth to get around the ordinary meaning and the apple versus motorola holding is to say well this pair this figure six shows something and it doesn't yes good morning again your honour's please the court chamberlain's arguments on appeal are based on a purported claim construction dispute about timing that it did not raise before the board chairman presents two different arguments about the ordering of the steps in the  claim they present the st argument based on the response of turing which but i think realizing that that may be trouble for them they present the nd argument they try to shoehorn it in under the guise of the nd identifying step in claiming to but regardless of how this argument is premised they never argued for a construction that would require a specific ordering of the claim steps in their patent response the only claim construction issue that they raised identified setting the upper limit nd that identifies multiple actions that's what the claim requires they said no no no you're talking about identifying single things at a time the claim requires identifying multiple thing hundred and seventeen and then at the bottom of that page in the claim construction section the subheading is a identifying by the control of the activities and then on page four which is and ninety eight dollars they go through and they talk about the single activity versus activities you can read that perry and you won't see anything about the timing which is the issue that they've raised and i think the other important point to while you're looking that is the board agreed with them on this issue about whether or not you have to identify a single activity or multiple activities and we don't really dispute that the board sided with them on this issue you heard them out and said yes the claim requires identifying multiple activities what the board disagreed with them on is that you have to do that simultaneously or in any certain order as long as you identify multiple activities and provide signals giving guidance to the user of those activities the claim is invalidated and that's identified setting it down limit providing signals about that and setting it up with it and providing signals about that it's indisputed that that happens the issue that they've got is they say there's a dispute about whether or not you have to identify both of the things simultaneously at the start of the process and we think that's the wrong construction the board found that was the wrong construction and that's why they're substantial to support  but if we get back to the waiver argument as i said the only argument that they made about plame construction below was about whether there was a single activity or multiplicative ities and the board sided with them on the st time they made its timing argument that you're hearing now about the nd identifying appeal as you noted the responsive to argument st came up at the hearing the oral hearing at the p t before the board and the board found that that argument was waived in the final written decision they asked about whether or not it was in the briefs asked why and they found that argument to be waived i think chamberlain realizes that there's problems with that now so now they've tried to shoehorn that same argument into this nd identifying step but that argument never came up with the board that st appeared in the briefs here which is obviously too the board's determination that they forfeited the argument based on the response of two language we think was well founded and we think it's proper to find that their arguments about the nd identifying step was forfeited his was never raised below that they could have raised the issue after the issue came up the oral argument they could have taken action before that they could have asked the board for additional briefing they could depose one worlds witnesses they could have done observations on that as evidence and they could have even asked for a rehearing after the final written decision all those avenues were its rules and procedures here and not let them raise a new issue on appeal i want to point out that the reason why it's important for them to raise these issues in the board in the st instance is important because we identified statements in the reference that actually show multiple activities are going to fight before any single curse so if for somehow the board found that to be a requirement he could have addressed that and still found in our favor but it didn't never reach that argument because it wasn't raised below but we have saluting made that  argument so again if there's any concern this court has about whether the board got it wrong it would have to be reminded for findings on that but if they raise it below it haven't addressed but it wasn't another quick issue i want to point on the four i move on is that remember that this proposed construction of responsive to language is only relevant to claim eighteen claim twenty one dollars is a separate independent claim and claims two thousand one hundred and twenty five do not have this requirement so regardless of the court's finding a claim eighteen it has to refer finding one pad ability for claims twenty one to twenty five i want to switch gears now and talk about that if you consider the merits of their arguments why they do not require reversal or remain to the board these issues were addressed in the final written decision and as the board found there is nothing in either the responses to limitation or the rest of the claim that requires activities by then a fight together at the same time so even though this issue wasn't raised below i find it interesting that the board in the front of it decision is appendix page twenty four dollars they said there is nothing in either the responsive to imitation of clinton and this is the quote or the rest of the claim that requires the activities to be performed together at the same time so all you dr davis was asked during his deposition so my question was does claim eighteen we quire that multiple activities are identified by the controller for transmitting the guidance things so the argument that they're making now is that you have to identify multiple things before any transmitting occurs you heard them say that the only time that the concert so that question was posed directly to the expert his answer was i don't think there's a time since requirement period so their own expert does not support this new argument that we're hearing for the st time on appeal i also think that figure six which they talked about doesn't support their construction there's nothing in the specification the figures questions i would see the rest of my time back and in this one as well and i think  this to loop idea that's what brought in our tiny response the idea that you can go through it twice have you do half of it the st time to do half of it the nd time that does not exist in their petition and if you look at one  thousand one hundred and five take it through multiple places where what they are saying is we identify want so we meet the requirement of diet i don't find which of the activities one activity meets which up so if you go to one  dollars the paragraph that comes over from the previous page the concluding sentence for that therefore so they've done their analysis here actually let me back up a really quick page one hundred back up one page the bold language that's thirty four and three lines from the bottom the controller this is they're talking about crimmins establishes which of the pre determined activities a user must complete one or the other it's either this activity of push the dollars next paragraph so it's the paragraph that comes across the page the last sentence they do their analysis and they say therefore schindler disclose this establishment which of the pre determined limit setting activities  user must complete so their petition again is focusing we did want you did which of then i'll flip you to page one hundred and three the last full paragraph before heading d they're now summing up this whole analysis for that limitation they say in some schiller disclose microprocessor that establishes based on the position of the door which of the pre determined activities of setting the up or setting the down so one activity is up one is down in the user pushes the button that's the only thing the user does for the one activity so they're either picking that one activity or they're picking push the down button activity so which one of those that singular next page one for the st full paragraph says just like the six hundred and eleven patent schiller teaches transmitting guid signals to a device that provides indications jump over the parent that a call and that the signals are responsive to the st and nd identifying the steps i they indicate which activity singular the user must they keep talking about singular activities they do it again on page one hundred and five dollars over and over they're talking about which so we come back and we say will step three requires plural activities we engaged with what they are then if you switch over to their reply then they start saying well there's multiple activities during the learning mode you'll see this during the learn mode over and over in their reply so they've shifted not seen well it's enough to identify one activity that was their petition which we responded to their reply says during the learn much so we can do half and half so they change their argument that's why our response didn't deal with that and it's briefing shows they started with cingular we responded to the singular then they went to this well you can do to leap loops during the learn mode and that's what we wanted to respond to and if you can go one document that we filed that counsel didn't refer to is  and fifty nine to sixty two and that's what we objected and if you look at our objection number three we say schiller's the argument that were objecting two of them is that schindler's identification of multiple activities is the same as that certainly other things that we might have done we might have asked for a certain reply now if you follow i p r procedure you know that asking for a certain reply two years ago with the equivalent of asking for an amendment two years ago it just