i was thinking of  that figure two is limited to make a reading in the back office that finding was the basis for its conclusion that element of claim one of the corresponding elements that relate to make or capture at the point of sale was not disclosed and it was also the basis for finding that elements of claim one which relates to the timing of when you received and scanned a physical check to make a digital image is done visit me the credit or after crediting the merchant account let me ask you a question about that characterization of figure to him nine four five thought check imaging the check is optional i in your blue grey find twenty one you say that you attempt to clarify that bank or never argued that back office conversion does not  of the check but only that it is optional whether the merchant says the image of the third party payment process or it looks like those are discrepancies in your honor are there not discrepancies in let me let me explain in the context of the petition and the other portions you've read if you read it in context though the distinction between the two is we were never arguing whether we were in our poll about it we were never arguing  under back office conversion rules you do not have to make an image of the check what we were trying to be clear about and i think those sentences and context do this is in terms of a c h processing which is what is in figure t where it says inbox for the image is optional it is true that for a c h processing what you need is just the mc or information that's read you do not need the image and so when we are making mischaracterization none of it is relevant to element c of this claim in other words making that image has never been the issue the issue on the timing really is when are you submitting  so that you can process through the a c s network so that you can see if the timing stat in other words when you're making the actual image of the chat is after the credit into the merged and so in our petition and throughout our briefing we've tried to be clear about that but we've never we've never articulate actually that under bok rules and image did not have to be made and let me step back just one second and explain the fundamental difference between us and the tab really is there's a difference in the art and in the patterns between reading the maker information and scanning the chat if you look at the record but in the prior art when you read the maker information what that means is running the check through a reader so that it reads the magnetic information at the bottom of the check that is then used for a c h processing as in figure one with pop it could be used in e separately in this art there is scanning of the duck actual physical check to make an image as it says in the background of the patent that in that involve actually just using the scanner and making it creating a digital image that that person and understand bach rules which are which are the patent he admits are is prior are so when you look at those figures you see that in figure one it tells you exactly where the maker information is red and if you decide to make an image where tells you is for the merchant it's back office conversion and it tells you the steps you have to do under back office conversion so under randall under your case in randall a person of warmers going to come to that knowing certain rules about bought  conversion they know you have to read the maker information and that's separate from reading the scan demick the business state the patent office makes is in concluding that figure two limits it to make a reading in the back office every sentence the patent office arm analyzes the support that deals only with scanning the image it does not deal with make a reading so if you look at appendix page twenty where they put m two the very next sentence at the top of column three says it's a scanner that creates that product creates that image it is then store with the maker information there is nothing in any of the evidence that the people have th lies upon that person would find a reasonable person or any person would find adequate to support where the mic or read is done it's true that the patent discloses specifics about where the scan of the image is done in the back office but for the patent office to improperly limit figure two to where the maker read is done at the at the back office there is no basis for it and the evidence that they've cited to doesn't support it in rules the mc a read can happen at the point of say the patent office ignored all of it and the evidence for patent office relies on exclusively is on standing the physical check to make an image whereas the claim language we're talking about has to do with reading the maker information from the chaff for a c h process and so those are two different things and nothing that the patent  patent office explain what it was and institute in zero one zero one yes i mean if i remember correctly it was because they said there were enough steps done by some of the other people in involved in the method for why under alice the patent office didn't grant on that issue if i remember correctly the main reason was they believe there are other patents in this area and that there were enough participants there was the scanner or there was the other piece of equipment that would involve the scanning for the image to make a reading for the maker reader and those are all very conventional elements yes we agree your honor but they are the patent office did not grant on that issue either why is that would have that board made a factual finding here made a couple of key factual findings that are what's before the court the first one has to do with step a of claim one of our capital a factual finding was that figure to disclose  did not disclose what claim one of our patent step a refers to about data captured at the merchant's point of purchase and the board for that finding cited the petition cited the figure two sided discussion in the patent about figure two sided expert testimony on that very point and reached and explained its conclusion this is dispositive of the case because that sort of a finding what does the prior art teach and what are the differences between the claims of the prior art are factual findings that are reviewed for substantial evidence and the substantial evidence is what i just mentioned if you look at figure one discloses capturing data that the merchants point to purchase yeah that's part of the presentation we made to the board and then that's actually the perfect jumping off point because one of the points we made to the board is that the board cites in its decision is the difference between figure one and figure two that in the middle of figure two you have this box which shows the key amount read maker and scanned image and there's a similar box and figure  e the figure one it says point of sale an intriguer two it doesn't say point of sale it says back office conversion so that different scenes are significant in the evaluating what this figure to disclose the us banks position of course now is no no the fact that it says back office conversion doesn't mean that that's where it takes place it just means that those are the three things that need to happen u s bank makes that argument brief starting at age thirty five says it again in its revived brief fourteen in the core of its argument had you'll find a page thirty seven of u s banks brief where it's criticizing the board's decision and saying it's not that that susan was not supported by substantial evidence and here's what u s bank tells this court this finding is not supported by substantial evidence because figure two does not show a system for converting a check in the merchant's back office it shows an implementation of back office conversion close quote that's on us banks briefing page thirty seven the problem especially from the perspective of this court reviewing whether there's substantial evidence for the board's decision is that the patents description of figure two is exactly the opposite of what us bank is telling the court u s bank says figure two does not show a system for converting a check in the merchant's back office but when you look at column five lines one starting a blind one the fire of the one four five patent it says figure two shows a  system for converting a check in the merchant's back off to use of the exact same words that u s bank does use but just says them in the opposite way so and  also can find this very similar language at common four of our pasts on the appendix page fifty lines twenty seven through twenty nine where the patent says figure two is a s of a prior art method of converting a check in the back office so u s bank has pointed to these three things that it says need to happen key amounts read maker and scanned image and it says and u s bank is telling you that figure two doesn't say where those those tasks are performed but the two places in the in the patent that tell you what figure two is do tell you where they're performing emergencies in addition to this substantial evidence from figure to itself and our patents description of figure to the board also relied on the testimony  expert bill sophists and you've you've heard talk in u s banks brief and some this morning about that u s bank comes to this court and says on page eleven of its reply in the fourth bullet point patent owners experts testimony was not that figure to perform zwicker and image capture in the back office so on page eleven of us banks replied in the fourth book that's just flat out wrong when you look at mr sophistries testimony you find that that is exactly what he said first at appendix page five fourteen in paragraph thirty two of his direct testimony of fees he says it is my opinion that a person of ordinary skill in the art would understand the figure to teaches and then in part b in the back office a check image scanning devices used to read the front and back  performs mixer and image capture in the back office not at the point of purchase so the very thing that us bank tells you on page eleven of this reply that the expert didn't say he says very clearly multiple times this is also part of the substantial evidence that supports the board's decision about what figure to disclose u s bank has made the argument and mentioned it again this morning  is tempting to encourage this court to draw a big distinction between the word scanning and the word read and once more to believe that the word scanning refers only to capturing an image and that reading is the only way to talk about capturing the maker information of course as we've just seen the word captured it's used as well that there's not some magic to the word scanning or the word reading but even between scanning and reading the s banking brief itself it page forty four talks about scanning maker information twice the randall reference upon which they rely talks about scanning maker information in the two places we know in our brief at appendix pages three sixteen and three twenty four it also happens to do it at that appendix pages three twenty one hundred three twenty three speaking of scanning maker information and then even in the nine four five happened and this associated with amount so this distinction that council is urging just doesn't exist in either the patent or the prior art or us banks on brief page one when it stating the issues it says that the first issue before this court is whether the board's failure to conduct a proper analysis as required under randall manufacturing versus re requires revers the first thing to note is that there may be a sub issue there which is kind of a party coming to this chord and ask your honour's to reverse the board for failing to apply a case that u s bank never mentions the board in its seventy seven pages of petition and it's eighteen pages of reply and all the oral arguments at the trial final hearing nothing was said about the return to the factory versus rape case as to the substance of the rainbow many factory resists rape case it doesn't do what us been in hopes to persuade this court to do which is to try to look elsewhere at an asserted prior art like figure one or like what  might happen under a different type of check processing system and use those unassertive references in order to decide what figure to disclose that's down with the rainbow manufacturing vs rate case did at all the rental to take into account what a person of ordinary skill in the art would have known that the state of the hour was at the time of the invention when making the decision about whether an ordinarily skilled artisan would be motivated to combine the references that's a page thirteen sixty two of the randall manufacturing case then on page thirteen sixty three this court holds or says that the significance of these and asserted references did not depend upon any attempt to change the combination in other words the question there was can you look at what a person of ordinary skill knows as opposed to just looking at the asserted references themselves and then and evaluate whether a person would have with a person of ordinary skill would have wanted to combine the references and it should be no surprise that this court reached the conclusion that yes under k s r you can look at what a person of ordinary skill knows in deciding whether to combine the references the the keynote lacked a certain feature that gibbs had and the questions whether you can put them together that's not the question here especially as to step away the there's only one reference that's being asserted there's no combination of references that us bank is asserting against our patents step today it's only figure two the randall reference doesn't factor in here so if you get if you if us bank were to prevail on this view it would change obviousness lot into something unrecognizable because you have a board that's asking itself the question does reference a teach element x and us bank would have the the ward ask itself well can i find element x in some other background reference that's not a random manufacturing says that's not what any precedent from this court has said the other question that u s bank urges the court to ask is what it had been legal to find element that sort of practice element x within the context of figure two there invoking what they say is evidence of the back office conversion regulations the question is not whether it would have been illegal to do it the fact that it in fact if we had invented something that was illegal to do it wouldn't be very useful that doesn't tell you what figure to itself disclose  about where the capture of maker data is done the last point on that is the discussion in u s banks briefing this morning emphasizes testimony that the expert ga suffusing and when you when you peel that back it becomes quite an example of hindsight bias so the argument that you've heard said page thirty two of us banks brief the mistress of feces testimony that you that the the rules didn't require you to do better maker caption about the office this is species testimony on this point was not simply his own unsupported opinion for this fact mr civvies he quotes from a report by salant a well respected research and consulting firm that this is citing silence discussion of sa you trainers my clients invention in that discussion on page five zero four of the appendix the report refers to this model first introduced by side in training and referred and says that this approach may be hard to beat which turns out to be true but the very evidence that us bank is urging this court to use to invalidate our patent is evidence that it's invoking the fact that saw you train and came up with this first if it wasn't from the the face of the records something that a person of ordinary skill would already have known as to step c and i see my time is coming to a close  over and over and it was not only an egregious mischaracterization it was a relevant one because it was the core of their position on combining the references in on this reordering argument that they made that was a fair basis on which the board made a decision to reject the us rights position of s i'm going to start with randall just because the legal error is in randall this court made it clear that when the board is looking at the prior are they have to look at it through the context of a person and what they specifically point to and they say is you have to look at the background knowledge assessed possessed by a person of ordinary skill of the art and in this case when you're looking at figure two and you see the words back office conversion that package itself tells you at the bottom of column two which is your appendix forty nine that back office conversion is a set of rules that have been passed they even hope to turn back office conversion just as it is in column two and what that provides is a set of rules that you know apply the rules and one of those rules is what is just a feature testified to which is you can read the mid ground from ation at the point of say and it also tells you that those damned reading of the mic or information and scanning image don't have to happen concurrently that is knowledge that is context that provides for reading figure two if you look at the evidence that the and the patent office simply fail to do that the patent office never recognizes that pop allows for make a reading to happen at the point of sale patent office never recognizes the fact that the bok rules the back office conversion rules themselves allow for the maker reading to happen at the point of sale or in the back office the for the evidence that they rely on for m if you look at it for example on a column forty six where he i mean i'm sorry on page four i was paragraph forty six which is appendix page five twenty six he's quoting from the patent and every sentence they quote from the patent i give you the two three pages from looking at is element a which talks about mcgreevey is not talking about scanning the check back and the only time they combine the only sentence with regard to figure two where they combined the two which is in paragraph forty six  quote he has part of a sense where he says which merchant scanned their checks in a back office typically at the end of the day the scanners capture an image and image of the chac and store the image with the maker data from the so the scanners capture the image of the chap they store it with maker data there's nothing in this pattern about figure two where they say where the maker data has to be actually captured and the way figure two is set up because says back office conversion that doesn't say the location is in the back office the pattern itself tells you at the bottom of the figure to quote back office conversion is the set of rules that not just passed so we're using randall and woods in the the only real interpretation of figure two is to say figure to disclose as both capturing maker information at the point of sale or in the back office the evidence of the patent office