limitations of claims fourteen to seventeen and thirty four through thirty six to illustrate this here i'd like to focus on the board's decision with respect to claim fourteen in the final decision the board only performed half network what's the phrase network is covering as a term of art any device on which you can store stuff that's attached to a network it's actually as a term of art somewhat more specific than that there are things in the market call and yes there are other storage devices up might be connected to a network that are not nance that is correct your honor yes isn't that a problem because him does not say and does not require inherently that the o s b fetched from the nance is a fifty disclosure of booting from a nasa as opposed to building link and if the board and that's a factual question not a legal question what does hip disclose when it says booting from a land does it actually disclose including from a nasa though it may not be telling you how to do it and though there may be additional programming that's necessary to achieve it but the factual question that you lost on at the board is they concluded that hip when it says booting from layer and doesn't include nasa and doesn't disclose booting from a nasa this they didn't decide this case when the idea of one wouldn't know how to future program to make it happen they decided on a lack of disclosure and not because the programming isn't there but because there's no actual disclosure of even doing it forget about how with your programming so that's a fact question and that's a substantial evidence review itself i personally don't even get trigger legal point on typhoon of programming because there's a substantial evidence standard of review things correct that's where the looking at the fantasy sports and venturing cases helps the analysis because if there is programming to boot from any device on the network so that i can try to get with you on point one because if you don't get me on point you know i never get to your point till they divorce testimony is a paragraph fifty nine of his declaration and then there's up and then a seventy seven forty four seven forty five and actually i think the quote about the evil from land and remote booting being standardized that is on page seven a seven forty five a few lines down ok so we're i'm on seven forty four and seven forty five what sentences do you want me to focus on if you focus on the second sentence on that page  have further describes the capability of the web server processing part thirty two to boot from land or who refers to initial operations of computer undergoes and power including loading the operating system and land as  we did not and what both actually both experts have agreed that a good image can be stored on any one of the devices of the network head and that's not the same thing as disclosing it in a particular reference the fact that it could be done the fact that good from lee and actually implicates at least five different things that i can think of off the top of my head and one of them might be nasty doesn't mean it's disclosing the us that's the problem i think and he maybe instead raised for the first time during the oral argument i didn't see anything in the papers before why does that play by itself cannot require a vacate or because the other side simply did not have an opportunity have two forty four you do reference figure twelve but importantly you don't just stop at figure twelve generally and not would be a little right just to see all the whole figure somewhere on there we're not going to tell you where you actually tell them where you say element two seventy eight element two seventy eight is the fact plate that's the thing with the holes on the back that's not the portion of figure twelve that the board found amounted to a caddy is it it has nothing to do and is in no way connected to them slides on the look look at the look at the picture they're not connected in any way but discrete elements the slides your honor however helpful line slides at all in figure twelve you directed the board to figure twelve and in particular to element number two seventy eight particularly and that's not the same thing if i could if i point the bore to  yeah that's the element and then it turns out it's not the capacitor it's also transistor on the other end of the circuit it happens to also be pictured how do they how does that give them an opportunity to respond to your argument your honor during that oral hearing it w discussed but prior to that oral argument there had never been even a tiny suggestion try anyone that those slides amounted to the caddy in fact your suggestion only brought up in the reply brief wasn't that the slides amounted to a caddy was regular rather than elevated a totally perpendicular and separate element amounted to the caddy to seventy eight and then i went back and read all of your doctor horse testimony which is also stated in a reply brief to see is it possible dr force testified to that he did not he testified to the door which is to sixty two and a for any team on the outside could amount to a caddie never did he ever point to talk about or discuss those slides anywhere so you have no expert testimony on that you did not cite i take but nevertheless the board found a claim element on a basis that the other side had never been given an opportunity to respond including by putting in evidence and i don't i think every i don't think you know you've made a case here for harmless error that is once you see the slide there could not possibly be a factual dispute about that satisfy you which would be slightly odd argument if you had never even thought of pointing to that side and to satisfy the element but you don't make up and of harmless error argument going for the board's reliance on th clean twenty requires a you shouldn't care that if somebody wanted to use for a particular kind of polling activity from the microcontroller to other  give essentially no meaning or something like no meaning to the fairly detailed description of the activity of the communication activity that could travel over that path which presumably would enable that same half could carry you know a thousand other kind of communications that seems to be a kind of a real disparity why did they put all this language in there about polling why didn't they just say an communication that would travel over this path it's our position that the board looked at the words of the claims and i think if you look at the words of the claims it is it is worded kind of oddly it says you dedicated there's a reason for that so that if some part of it goes down that it doesn't all go down and it can still do polling why is it that specific function part of that claim it seems to me you're making kind of inconsistent arguments here on  twenty as opposed to what you're talking about earlier about it has to be capable of that but doesn't have to actually do it well i'm looking at the we're getting out about lee polling here and saying it just has to be capable of it whereas before you're saying it just has to be capable of that it doesn't actually have to say why isn't that inconsistent findings by the board here at least this issue the words of the claims that really can't claim fourteen include twenty or different again i think focusing on the words of the claim what is being claimed is a structure it's a wire that's being claimed not the signals that flow along that wire ok then that would be our condition i think that we should move on and hear from the court i would like to pick up if i may with regard to an issue that was addressed with claim three and the court asking about whether or not this court agrees with excel or  that specific point because as you know excel iran has put forward we do believe that this argument was addressed for the first time in regard to the the slide structure and you would have to but if that's a  take thirty days and give us whatever evidence an argument you have about why that side is not mcatee i do agree that that is a path the court could take i also believe that the path path that is available to the core is to simply reversed on that point for violation of the problem of the rules of the pete have and the only that is the only element that the peak have aren't we generally under an obligation and maybe the a p a even says this or something that regard to the substantial prejudiced element is that what you're asking about to excel or are going to change some notion that the fact that you were denied that you would not give him i should say an opportunity to address a fact on which the board ended up relying we don't know if that was prejudicial to the ultimate outcome on claim three because if you're given the opportunity maybe you put on evidence in the board says that's completely wrong we with respect to that question judge the yellow line tech case if i understand you correctly suggest that because the pete had did not waive any rule or suspend any rule martin were not required to show substantial credits however i do believe that we are substantially prejudiced by the fact that we were not given that opportunity and because let me ask you this if if assuming you had been given  for several reasons for one the word slides is not even recited in the it pass it is also the difference and this goes back to the claim instruction issue that excel ron offered excel or attached to the chassis because the carrier for module includes a notion of transportability so the fact that if you look at the pictures i believe we included it in the main brief in the the red brief it appears to be permanently attached so it can't be a carrier test the the modules which is another notion of a cabbage that we discussed in our brief and perhaps most importantly because the claim three says that caddies you provide airflow the slide structure appears to actually block the airflow and again but how do we know that i mean these pictures are all very much detail it very hard to figure out what any of them are doing putting your pictures and your description of what your carr areas i mean it that all seem to be to be very specific that filing that should have been done by the board well we agree that it was an issue that should have gone up before the board we have the opportunity to respond we do believe that there because it was brought to the juncture where it was i believe this court could decide that the tab violated its rules and that that would not be a claim because it was there some evidence from maybe the other side's experts that  if one thought for a minute about what that slide must be like it really must amount to two separate runners because nobody would put one of those down there that was late arrival into this p tab proceeding i don't recall having attended the depositions and and having gone through the record i'm not aware of any with respect to if i could move to claim twenty five may and capacity and and in this case this claim element is not directed to what capacity the micro control module has to have it's actually directed to what capacity the ether net path and the connection has to have isn't it isn't it direct it isn't this claim element directed to what the capacity of the internet path has to be the claim element as a whole i don't believe that's correct i believe that it points to the wherein lies in the more as you talk about it it connects the two with the dedicated path but it doesn't stop there and it goes on to tell us that the dedicated internet path is different from another type of connection judges which i believe you pointed to and then it also tells us and then it gets into the functional aspect of this claim that the microcontroller modern i don't believe anyone has suggested that the microcontroller module is not the device that is the device configure the pole but that is what it's what it does and if we take that out then it could it could be anything i think we spoke about the brief that you could you know if this language as the have concluded has is not a requirement the claim then you could have said anything there but because the patentee chose to put that language and it has to have some impact taking you think there's a reason for having this that if it were that rather than just say the microchip controller itself of the c p u over in the ether i think that's correct judge and i can't think where this was in the record but i do seem to recall that you have these separate highways if you will if you have one between the c p u modules and that's where your data is and you want to give that priority and then you have the separate one so that the microcontroller module can also communicate with them i think that may be the purpose behind it and i think that may have come out but i don't recall exactly where in with regard to claim twenty we would certainly certainly believe that that claim limitation has has meaning and was improperly construed as the p t p t o and you might be right under  philips construction but they have to employ the broadest reasonable construction and so given the way that this is worded where the warin clause modifies not the microcontroller but expressly the dedicated he th why isn't the broadest reasonable construction the one that the p t o chose which is where in the dedicated ether net path provides a connection that is capable of doing this doesn't mean the microcontroller has to do it just means that either net path has to provide a connection that's capable of doing it because judge even with broad reasonable construction we still look at the specification we still perform look at the claims as a whole look at the specification and i believe when we do that we see that it is not just all about the dedicated internet the dedicated internet clearly performing or serving as the connecting communication no doubt about it but when we look at the specification we are further informed that the two remotely hole has a significant function with the microcontroller as it communicates and reaches out and ask for  suggesting that if i don't think this language as is quite as clear as you would like me to think it is because i don't think it's clear that there is something in the specification that really makes it clear if there's any ambiguity in this language what it ought to be show me what in the specification in particular mine in column a number you think is your best evidence for why that it's certainly reason i want to start there is that we we have to look at the structure and looking at as a whole and that structure with that paragraph starts talking about figure five and it is the microcontroller module the microcontroller module around line forty five  tells us there's a standalone microprocessor and we see that it also has flash memory an operating system an application software really the application software is significant in that that is where we expect to find this software is pre configured software say corresponds to that structure in the wearing clause that we're discussing i'm not sure that that's correct i'm asking i don't know yeah i don't think that is i think the dedicated ether net path would actually be the data of the data eight in the first few lines of column eight also talks about voltage level c p u temperatures fan r p m it's so there's various types of data that it goes out and ask these devices for and gets them and then reconsider reading on power mate you'll you'll understand the reason it does this is so that it can maybe predict that this unit is not performing to the level that is supposed to that could indicate a failure and then you could alert someone that maybe something could be done about it it with a hot swap that's all i can recall at the moment just seems strange to me to read that function into an average us claim i think that you're probably right under a philip standard but it's a little harder for me and you're a be are i stand there and speaking to that point i think that  this is this reminds me of a nasal me this court's decision is only where you have a combination hardware software claim limitation where you have the physical structure of the hardware and then you have the software that is configured for the structure can you clarify for me it seems to me that you're not you clearly oppose what i think was the board's view is that as long as the path could carry this communication about polling that and the cleaning is satisfied it seems to me that there are two alternatives to that one is that the system does actually conduct the polling and then the other is i think what you're referring to as the microcontroller is configured to do so which of those two is your view i think the board probably rejected both of them but what is your view about claim to we do believe that i'm not sure i understood the first part of the to the second part as i certainly understand we do believe that the microcontroller module is configured to perform this function of polling but would you repeat twenty the reason why the board found that is that actually does disclose polling and those hit at fourteen lines forty six to forty nine and that's on a four sixty six the management network and it's collecting information about the modules in the system so you're saying it actually polls correct have it actually polls correct and that's why the board found pla fifteen twenty four to thirty fifteen or twenty four to thirty yes yes ok i see that's something telemetry and so are there any other points you'd like to touch on quickly just very quickly for a class three although we do not believe any rules were violated with respect to claim three seller i did have an opportunity to respond to dell's argument at the door of theory and also there is a procedure to file a request for a rehearing to point out what the board overlooked