well they didn't consider thompson and that was one of our arguments they absolutely refused to consider thomson we included thompson in our petition and in discussing this ground between what is known as the breakdown speed which is the speed that corresponds to the greatest amount of torque that the old replaced motor could have generated tell you is that if you run it over to fifty the amount of torque declines and eventually reaches zero know what it's saying is that if you're over ten fifty you should reduce the amount of tor correct yes of and that's what these curves represent correct yes so these four vertical winds those basically represent i don't know different types of systems se four lines here for showing the speeds and in the end below that you won't have a problem is correct yes if you if i could just take a step back to explain the correlation let's say between speed and torque let's say you're driving in your car and it's fifty miles per hour now to be our speed terms of r p m let's say fifty miles an hour now if you're on flat surface yes if you're on a flat surface the engine has to work what's a medium and if you're climbing up a mountain let's say you go skiing and you want to maintain fifty fifty miles per hour down shrinking that and then the engine is producing more torque even though you're at the same speed so that would be like if you were at thousand and you go across the horizontal line one hundred percent let's say would be going up the mountain fifty percent would be driving on a flat road and let's say you're you're in the mountains you went skiing and now you're coming home you're going downhill there's not much strain on your car's engine doing fifty miles an hour downhill you may not even have to press much on the gas at all so that corresponds to the work percentage so w all yes ok now thompson and i want to take you back there because i asked you about it and your response was that the board didn't discuss thompson at all well they didn't let us rely upon tom said well that's different than what you said that because i think the question i asked was whether it was considered and it was considered they just won except they wouldn't accept it because they said i'm looking at appendix twenty six was the word regarding thompson ok yes they said that thompson would not be considered because we didn't rely upon thomson as a one  hundred three reference in connection with beef and that we didn't rely upon it and one of the three ways that you're allowed to use extrinsic evidence in the context of one  to be in our position is oh yes we did we did rely upon it in each one of those speed graphs in a motor controller or a microprocessor of an e c m motor in the warm of a work table which has speed and pork they have one body mint that's described in minute detail that says that the pork can be adjusted by putting in a small little power on one of five and if there's a slight power in the air coming in it's sensed by the circles that go around the lines and it determines which one of those lines are powered and then based upon that one two and three ok it says works speed table that is what is in thomson a table where you've got a torque value associated with the speed seven team wine to select work slash speed table number one now going back to look if you got a problem here because you're not explaining the technology are doing the same thing we you know find it is action and we're sitting here right now i do not understand what the only two patent labels you have to look up table is designed what are you looking and what was there helping the table tells you that when you look up speed it's going to tell you to reduce the torque by a certain amount you have a if i and one is a speed if you pull up the standard motors chart and you're at speed and one your torque is going to be thirty inches if you hold up table number two which is for the x y z motor if you are at speed number one you go to the torque speed chart and you see that the torque setting has in column sixteen and you have a speed value of i and one it tells you that you should be operating at a torque of twenty eight point five  twenty percent court demand it says that the torque should be not what is shown on the vertical line but just over to the left so it's reducing the torque by that much and if you go to the fifty percent work demand then go up to eleven hundred r p m so the torque is shifted over a little bit more to the left so you're getting more of a larger reduction  replacement motor is rotating at eleven hundred r p m it's going to reduce the torque from seventy five percent over to it looks like about six about seventy percent the other challenge you have here is that the board read the fist and concluded that what is actually being stored in memory is not he's perves illustrate on figure six or all calculate a desired torque value on the fly right and the reason that they did that was that they ignored our evidence basically the position we're taking now is that it's rises to the level of due process wildlife we believe that it violates section five fifty four c one of the administrative procedure act that that is our authority and also the case law that we said it's maybe we used a wrong choice of words due process some of the case law has used that phrase due process it was that we were deprived of the consideration of our evidence of record it and violation of section five fifty four c one of the a p a and that evidence would anticipate but the fist does not say that it stores figure six in memory it says that there's only two things it said about it says in paragraph eleven which is the brief description of figure figure six is a chart illustrating an induction motor speed toward curve that is programmed into a memory of an e c m the board said the word programmed is ambiguous because program could also mean what beef  five or six of them per table whereas with beef this is disclosing is an on the fly calculation which is disclosed in figure five would be this where it takes the speed of the motor at that instant in time and it modifies demand based on the speed of the motor and a function of the key characteristic points which were stored on a member of what i understand me to be sneaky is that which you said explicitly the figure six were stored in memory and anticipate so why doesn't a level show that figure six is stored in memory because eleven says that the speed fork curve is programmed into a memory and which the board found was ambiguous and then the board found that that was clarified when you get to paragraph thirty six which is the detailed description of what's happening in figure six and the detailed description shows that what figure six  illustrating how the equation works in a mode in two different options for a motor during normal operation figure six is the last bit of how this thing will be modified by the equation figure six itself the the discre data points a figure six are not stored in the memory and that's what the board found as a matter of fact so this is what you're saying is that only the formula that gets you to figure six is stored in memory and not the year six itself that's correct and that's it and then the have no load speed is twelve hundred breakdown speed is ten fifty those are the key characteristic points that beef this says are stored in the memory that option one an option two and figure six are the algorithms that you used to calculate e times a function of the speed of the motor that's the instantaneous value in the motor to running breakdown speed no load speed in the exponent which are the key characteristic points that are actually stored in the memory the first discloses simply on the fly calculation not preach calculation and storage of discrete points in a memory that's what the board found as a matter of fact and brought ocean does not challenge on this appeal that there wasn't substantial evidence supporting the board's factual disclosing the figure six might be store know and as the board found in parsing the language both of paragraph thirty six and in considering the testimony from the experts the board found the what paragraph six says that the key board found that that meant that the key characteristic points are what is stored not the data points that are reflected in the chart itself or another way of putting it is the or basically for the reference to be the discussion starts at page twelve of the appendix your honor where they first address paragraph eleven into show to explain why it is that paragraph eleven is ambiguous then from pages thirteen through only eighteen the board sets forth its reasoning as to why it is that between looking at paragraph five i mean figure five the descriptions in paragraph thirty five and thirty six and considering testimony that was submitted or what where exactly does it as the board say that that paragraph thirty six doesn't show that if is makes it clear that figure six is a part of the used arrived from key characteristics which are motor parameters of the emulated no it's not answering my question my question is where do they say that paragraph thirty six and the fist doesn't disclose storing figure well i guess what they found your honor was that paragraph thirty six shows that each show storing the key characteristic points and not the data so they don't say specifically that the first doesn't about storing figure six in memory with you agree with the anticipatory where does the board of rest that question have i guess you would have to say in passim that's the whole point behind this long explanation for why the board position is more persuasive so that's where they express we say that they greet with our interpretation of paragraph thirty six and it's based on weighing all the evidence that then is discuss in detail as it falls i would like to direct your attention to the paragraph forty nine of our expert's report which is that a p x nine hundred seventy seven nine nine forty seven this is our evidence regarding the storing of the figure six curve also we cited to deposition testimony as well now if you then t a to page twelve of the final written decision which is appendix page twelve it says that petitioner relies upon attorney argument with insufficient supporting evidence see these petition pages attorney argument in a brief cannot take the place of evidence therefore there and i and they're taking the position that we didn't present any evidence at won't on this point regarding paragraph eleven we did they just didn't consider it that's the error that we're pointing to and under this court's precedents a substantial evidence review requires that the wart had examined the record decision on rehearing when we pointed out that it wasn't considered in the final written decision and they came back to said oh yeah we get it but that doesn't provide this court with a load of math as to the  board was taking they just said oh yeah we get they didn't explain how they considered it it's never mentioned in the final written station and also i don't what's in paragraph forty nine that's so characteristic points what are we supposed to do with language that's in that abstract in the brief description of the bench and that says things like the method includes receiving at the e c m a desired operating torque accessing thing at the brief description of the invention and so it's the same thing a paragraph thirty two and i think they're the the point i'm trying to make is that there's the board has to make a reading of this reference and they're the ones making a fact fin and i don't know if we can say that it's totally unreasonable based on reviewing the reference as a whole that with what they said that what is being described here is not  had considered final written decision the evidence that we submitted in our petition and didn't reply the deposition testimony of our expert dr sigman as well as his declaration testimony and  substantial evidence and i would like to point out one last thing in concluding if you go to thompson and appendix page nine eighty eight column five finds  looks like a thirty eight to what he wanted says in the present invention the i c m microprocessor controls the speed of the motor by determining torques from a lookup table preprogram