a did not work for its intended purpose of the eight a methodology of camp did not work for its intended purpose relying on a single census in that august eleventh report and which was two months after the reduction of practice in that sentence unsupported by substantial evidence there's nothing in that report that said it doesn't say that the reduction of practice was in fact on work ball or was in fact in operable just doesn't say it and the testimony from the inventor yorkie was that that did this sentence didn't detract from the results they had achieved two months earlier and in fact that sentence is flat out contradicted by the preceding sentence which says quote at first some simple motions and even for a motion brief down we could compensate for the motion and get very accurate saturation calculations and this is a reference back to the main june tests from two months previous to this august report and that not only carries a lot of weight but it is going to and they say not just lack of consistency suggests improper enough ability and work ability but they preceded that by saying failure to obtain consistently accurate results is not a small matter that can be characterized as a noncommercial version of an operable event but hollander the standard of review which you recognize are we supposed to reject that analysis because i know there's nothing in the county that account needs the reduction of practive needs only to achieve the level of utility required by the count the count doesn't say this is a system for automatically or a method for automatically inconsistently determining saturation in the presence of motion the count is much simpler than that  broader it's simply to determine saturation in the presence of motions and consistently in automatically is a commercial concept assume acceptability concept to put out perhaps in a heartbeat doesn't change the fact well i appreciate what you're whatever amount of accuracy it was applied to having difficulty and how am i going to play the sure sure it was the first point is that the count doesn't require that on accuracy because the count is based on assumptions that's how the invention works with him so much of what last what's less than dead on accuracy what's less than that on accuracy is what the inventors identified as was successful for their intended purpose when when the one eight are reported the results of ninety two percent when the gold standard of the day which was that the n two hundred on sooner was that in seventy seven percent they wrote eight or wins and they said this demonstrated how successful we were and that we had pages that aborted the evidence in front of the board and we relied upon the three specific instances which we've identified in the brief and that was in our research for the board we focused on three instances of a to when this was just argument made before the  that's what i was trying to say but going back to the sentence about them the consistency sentence when the board dismissed simply dismissed the previous sentence of accuracy and the board's that and committed a legal error because  board dismissed that previous sentence of we got very accurate results from the brief that was facing that the camp is not limited to the case for simple motions and recounts but the point is those read downs the briefs downcast and the evidence for the board was one vote scratching squeezing and shaking mechanically induced motions what other motions could there possibly be frankly in income in coming up with some tests for an invention that's supposed to be for patients these data came from real patients real people and were presented to them through the methodology when the court this miss that previous didn't even consider it when the board dismissed that previous sentence because th count is not limited to simple motions and brief downs the fact is the count covers those motions and i can't conceive of what you would have to do in order to have you can't present every conceivable motion that a patient might might do when you're  what the board seems to be requiring is that the inventors have come up with every conceivable type of motion you could ever possibly imagine to throw with their software but that's not what reduction to practice requires reduction to practice requires that you implement a count and you would be aware that work and you appreciate that it works and that's what happened here in the main engine test these inventors mr york in the inventor used hospital data use breeze down data with all these different types emotions and he had a team wins and we discussed three specific data wins instances to the to the board including how much better it was for aided in the end two hundred and that's the point that's a reduction to practice and when the board dismissed that sentence it committed legal errors and the board also set the bar too high again because it was trying to establish that was looking at this from a commercial acceptability standpoint frankly there may still have appendixes forty forty two clark baker under my direction and i wrote the code in exhibits twenty thirty and twenty forty nine except i don't remember he said i wrote any of the code directed to him two hundred said i generated the charts he also says that's a six five six two paragraph twenty one he also testified that the code corresponds to what was used to generate the charts that said eighty six five six two paragraph twenty two and here's the key i think to this which is he was quote unquote knowledgeable baker was knowledgeable about the code a six five five nine car after twelve what the bo saying here is if you didn't write the code you can't prove up its foundation so there's no rule of which i'm aware which says that you have to write the code that you're relying upon for reduction in practice baker generated those charts to use the code to do it he was knowledgeable about the code and he goes on he says i compiled code i validated and then that that was commercially available i manually reviewed the output charts i reviewed the software for foundation of those charts by saying quote baker does not explain how the charts labeled as n two hundred were generated in fact you did there is absolutely no substantial evidence for that statement by the board what baker did was he testified and this appears a six five six two paragraph twenty one and i think this bears a couple of seconds on a quote f part of our analysis i generated a series of charts illustrating the oxygen saturation values computed the saturation values and all that happened in that software was it plotted the results produced by the end two hundred mclean fanciable let me take you to another point here as you're running out of time and this is on the question of whether the e p a methodology work or not and the board found that a report written by your feet and this was reported was dated two months after the re the reduction in practice and every four says that he was still unable to obtain consistently accurate results and that your key state in the report itself would been one able to consistently calculate saturation accurately and automatically we were testified to that with those that sentence doesn't mean that he didn't achieve the results he was hoping to achieve two months earlier the previous sentence says the results were accurate and whatever accuracy may mean judge throws ninety two percent ninety five percent to the inventor's it was accurate and that's all we need to see so the reason is no substantial evidence for that is because the board  looked at that sentence and it and pushed aside the preceding sentence and didn't focus on it as a consequence and substantial evidence doesn't mean you find a snippet in the record to support your position the substantial evidence test is  completely contrary to what the the board found we had this debate or say i know this code i know the code i generated those charts he didn't have to he didn't have to write it and so when you look at the arguments that were made to love and many of the arguments made here to this court were not made below and particularly the entire reply brief seems to focus on count construction as if words as a promising circumstance is not the same as having a right to success what is required to prove except in this case as in any other case where you are trying to prove an actual reduction to practice you must show it works for the ascertain accurate saturation values in the presence of motion accurate saturation values now i'm here for the first lot but that as you say that's one hundred percent accuracy nobody just one hundred percent right nobody suggested any definition for accuracy below accuracy for the intended purpose now if you're talking count construction it was incumbent on your feet in the count construction phase to argue for a range of accuracy but he never did it never was there any briefing by yorkie as to the meaning of accurate so what is your view of what standard what definition does the board apply to after and just what the definition means well at that point now you're talking a question of fact and now the board is looking at all the evidence to see if the inventor is appreciated it would work for its intended purpose and it's clear that the inventors did not think it worked for its intended purpose and these documents these reports that we've been discussing were written by the inventors after the alleged reduction of not their names there is a test of only those that the inventor  inventor testify that that in his view for purposes of the invention the the the result for x or no what they did is they pointed to three patients out of the others a patients of three points and single instances of time where they thought it was close now that's not accurate the point is in this environment where testing is required and it's a question of fact how much testing you want to have sufficient data and which to believe that it works for its intended purpose obviously they did not have sufficient data  to determine work for its intended purpose more importantly the board never got to the point judge ray knew that you were saying about did they show accuracy because the comparative values that they were trying to use they only had a few of them from the end two hundred software they never laid the foundation so since they never laid the foundation they never got to the point of whether or not they could show it was accurate let alone accurate enough let alone bad but better than what the count says it requires measuring saturation values and what's unfortunate is that the board didn't do a detail count construction is opinion because it wasn't in the baseball of the parties were in agreement that the count required accurate saturation values at that point now you're a question of fact way and that is ok what's the evidence that the inventor it was accurate and the evidence is it was not accurate they were not happy with it and that's why it took two more years before they even filed for their patent application not file until june one thousand nine hundred five and they're saying that an actual reduction in practice in hundred three and so they had the burden of showing that they had an actual reduction in practice for the intended purpose inventors appreciated that it worked for its intended purpose and they couldn't show that now the board now made findings that this court of course understand the review is there substantial evidence and we have not only do we have the august eleventh report which was discussed with mr rogers we also have the august thirty first report that also said that  incapable of working in the certain conditions and the board of course can't dismiss an august thirty first report that says it doesn't work under certain conditions now they have an august eleventh report and the main argument they made below was well the values are pretty stable and the board said was stable doesn't mean it's accurate because you could be safely and zero we all know that's wrong but you say it's very stable well zero would mean no breathing it off so stability doesn't apply a did they did get accurate results sometimes the problem right i mean there's no dispute about that the question is whether or not that went with it they were consistently correct and that's the key because you can always get an accurate result you can get an accurate result randomly i mean even a broken clock is right twice a day but that's not what you don't need so you have a functional clock when you have hundreds and thousands of data points and you're only selecting from among twenty five thirty values seventy to one hundred you're going to get accurate values randomly so if you have a chance of getting rid of guys and they only selected three before the board you're right judge well at that twenty seven instances that was never happens in the form of motion picking your nose can be a form of motion it's whatever you have the sensor in your body is moving it's human behavior human behavior is limitless and i don't think there is any debate about that at all saying it is getting a value accurately in a controlled environment setting doesn't indicate that you thought it would work in the real world in real settings and so he's right it's not like infringement is a patient where if it occurs once you have it has a patient or an infringement you have to show that it would work for its intended purpose that was a third below oh and the boards that basing all this evidence obviously they didn't show that and getting one or two points that you think are pretty close is not showing you thought it would work for its intended purpose and has a six took two more years before they filed their patent and this is on this device i also want to respond to some of the arguments about the n two hundred and this comparison they're now doing a comparison but if you don't lay a foundation for the values against which you're comparing how does that tell and they didn't lay a foundation and two hundred software was first of all what is that and why are you comparing it to the n two hundred now i heard mr rogers call it the gold standard but it was the gulf standard but it wasn't adapted to motion the n two hundred was an emotional vice the motion devices against which this claims invention should have been compared to are set forth in the background the invention that navigation and the patent application talks about other devices which limit the effects of motion as prior art but nobody and no one ever established at the end two hundred had any capability whatsoever in reading through motion so comparing the values to a device for which you lay no foundation which is not even meant to read through motion is not any standard at all the other thing is even if they had established a foundation for the n two hundred the engine hundred showed values that did not match the added value so for example they one of the three instances they got a value of ninety two but the so called true value according to the record was one hundred well as ninety two accurate when the real value was a hundred well our experts in the declaration said ninety two no one would consider ninety two accurate when the true value was a husband had substantial evidence right there so there's lots of evidence and any amount of this evidence would be substantial evidence to explain why they took two more years the father patent application and there's substantial evidence  reply and now is going to make findings of fact she so for example mr rogers relied upon that one statement about the n two hundred but now the board gets to look at all the other evidence that's contrary to that statement so now well there was one clause that said that that was clear that well i don't want to call it victor it wasn't before the court the actual reduction of practice was not for the court it was in that issue unfortunately footnote five makes so big difference and the procedure of setting a standard view is absolutely critical to realize that your q one doesn't so to some account construction was not litigated below it requires accuracy not for the first time in the rule twenty eight chain letter and this is the first time you see that mr roger submitted a twenty a j letter to this court on december fifteenth and for the very first time you see the statement the count's intended purpose here is to produce approximately accurate saturation values never argued below because mr rogers knows of the substantial evidence that is case is going to lose on the substantial evidence so now this is an attempt in the reply ridiculous and now for the first time approximately accurate is being argued as a legal matter to redefine what is the invention  the word was accurate below and if you even look at their reply brief at a six zero one before the board a six zero one they even tried to meet the accurate standard they even say i review and there's nothing to review because it was that issue follow up on the construction of the count and so it was a comfort upon them to have evidence of accuracy they clearly did and there's a lot of evidence just to suggest inaccuracy and dissatisfaction with the invention in particular the two reports and the eight incapable problem which is another problem with the it's the august thirty first report six two one six where the inventors recognize it doesn't work and most observation dives so with the standard review this is this is a perfect board opinion there's not a single sentence that opinion that is incorrect is fully supported by the evidence and for that reason  quoted the material fact proposed by d m was quote the intended purpose of accounts is to accurately determine an oxygen saturation value in the presence of motion we disputed that we said no that's not right stating that the count refers to a method for measuring saturation this has always been added shoot was the word claim construction raised in front of the board no we were arguing what accuracy not accurate and we're saying force is accurate ninety two percent is accurate and we said that the board so for to say that we agree that the count requires accuracy is just not right the issue is what is accuracy mean and when you have approximation free we pointed out this sentence and d m pointed out the sentence to the board below quote motion can cause a false peak resulting in a measurement having and in accurate value that's in the patent a three six five seven column one line fifty three to fifty five they relied upon that sentence below this was plainly in front of the board and the fourth peaks are instabilities in the signal that it is it relates into so stability of