actively i mean we we've got you know we've had twenty eight j letter appropriately citing our recent case and band and i frankly am having a hard time differentiating between what went down here and what went down here the board did not address or decide the argument that we included in our petition addressed and decided one that was not included in our petition that was wholly different we argued it would have been obvious to modify el argument in your petition but when i look at your petition i don't quite see your articulation of why claim forty is on patentable in the way that i just heard you argue with today in front of us the way i understand your position when it comes to claims forty and forty one was that the by directional drivers of elderberry could easily be implemented using something called tri state buffers but you don't isn't much of an argument in terms of the theory of understanding why it would be on things and especially when all the surrounding language in the petition is really just talking about how it should be obvious to if it's in the right direction and that claim requires a write in the right direction that's fine but claim fourteen does not require both an input buffer and an output buffer in the write command direction  an input buffer and an output buffer both associated with the right command there's no question and the board found the board found ellsbury disclose the input buffer and tri state buffers where you have a multipath transitional transmission line i mean are you pointing to what figure four point seven ellsbury disclosed the additional out the buffers i didn't see all i saw to prove was that it would have been obvious to modify ellsbury to include them to further include them and that is exactly the language earlier we cited claim fourteen and dr stone's analysis and if you look at dr stone's analysis i don't see how anybody could come to the conclusion that we were arguing very disclosed st of all none of the news of titian their doctor testimony ever our petition the patent pending never raised it the board never raised it in fact this is a somewhat more egregious case i would suggest because in those cases the board came up with a theory on behalf of sensually of party and resolve it against the other party here the board came up with a theory basically on behalf of my client and resolve it against my client we never made this argument that they decided well i think our point with the rehearing is that well and this case you know st of all the state hynix certainly had notice of the ground of an patentability that was going to be reviewed by the board because they presented it in their petition so they had notice at the moment they filed their petition they had an opportunity to address that ground and then our point with the requests for rehearing was that if they that was a perfect opportunity for them to have a nother opportunity to address the issue with respect to claims forty to forty one if they thought that the board's analysis concerning claims forty to forty one was inconsistent with how it and analyzed claim fourteen or they thought that the board misunderstood or misapprehended the arguments that they were making in their petition or that dr stone made in his declaration that would have been the perfect opportunity to bring that to the attention of the board so they certainly had in the director's you you know fair notice and opportunity of the ground at that moment i don't think it's really doing my question i understand your position that if they had another bite at the apple if they chose to take it o i don't think they're barred from making the argument i just think at least and the fact this case it's not a very convincing argument i mean that there could be a different situation where perhaps they didn't have an opportunity  ground of rejection was somehow raised you know maybe that would be a situation where you would have a viable due process claim without filing a request for rehearing but ok but the bottom line is they can make this argument here on appeal you agree with that presented changed its decision and in fan dual this court said that was it i encouraged the board to actually change its decision if it was convinced that it's and their sole decision was wrong and there's a number of reasons for doing that there's a different standard an institution decision where you're just have to look at whether there's a reasonable likelihood that at least one claim would be proven unpatentable as opposed to a final written just decision where you're looking at each claim and you have to determine patentability by the preponderance of the evidence there are very different analyses and standards and then also the burden always remains on the petitioner throughout the proceeding regardless of whether the patent owner files patent on a response or regardless of what arguments the patent owner makes and and also in faneuil to score pointed out there's there's no pre decisional opportunity for a petitioner to disagree with the board that's that's not a requirement the time to disagree with the board's decision is after it makes its decision and you can do that by filing a request for a rehearing or appealing to this court so i don't think there's because as i understand his argument today in their condition there are arguments for on patent ability of claims forty and forty one was based on argument number one but the board never actually addressed argument number one it mis understood argument number one and ended up addressing a never made argument number two and finding that the claims were not proven to be unco so perhaps in that sense what he's arguing is that it needs to be vacated and remanded to give the board a chance to actually answer the argument that was raised in the  petition i could you explain why you don't believe that's necessary given their view that the board misconstrued the petition ury renders obvious that quote and then they just quote the claim limitation but they don't give any analysis as to why it would have been obvious to add an output buffer to elsberry system as thirty five it's also very short it's just over one page of six paragraphs and it has the same conclusion because it talks about what's disclosed in als very and you know it and for the reasons set forth it would have been obvious to employment to say the combinations of als vary in stone such that quote and then just quotes the limitation but it doesn't have the analysis of why it would be obvious to modify elsberry as disclosed  buffers but if those are the clinton supporters the board found that what you're missing is where's the additional disclosure of the output buffers that's required by claims forty dollars to forty one dollars and that's just missing from the prior art it's missing argument but i didn't see that argument in the petition i didn't see that arguments made before the board it's an interesting argument but they just didn't make it if that was their case i believe they should have put the petition dr stone should've said something about that you know they could put that in a request for a rehearing they could put that in their appeal brief or their reply brief i mean i think it's kind of somewhat telling that i have to the director filed our inner brief intervener we have kind of pointing out that you still haven't pointed out where the prior art were and elsewhere in stone this additional limitation of the output buffer associated with the right command where is that in the prior art and how do you brief they still didn't do that instead they pointed to their own specifications and then i know seven patent and pointed out that they have written descriptions support for the limitation but this is not a written description rejection it's rejection based on obviousness so i i just haven't seen it i haven't seen that argument made anywhere and you know the board gets deference for how it interprets you know how the factual findings that it makes as to what the prior art discloses and i think its analysis here is fairly thorough it's considered all the evidence that the hynix presented and they just found that it was not persuasive enough to meet the burden of persuasion here a preponderance of the evidence and if you take a step back they did challenge sixty five claims in the nine hundred and seven patent and they were successful in sixty three of the sixty five so they did a fairly thorough job here and they agreed with almost everything  not an expert in the engineering so i don't i don't know enough to tell you why they would want the additional limitation of an output buffer in this particular configuration discussed the nike vs adidas case as supporting their case i just wanted to point out that that was a case involving new proposed substitute claims and if the board is going to see his bond to apply prior art through ject new claims it's only fair just determining whether they met their burden of proving that ground  certainly did an adequate job of considering that that arguments unless the panel has any further questions for me i'm happy to yield the rest of my time judge tends question about whether remit is necessary counsel for the director i believe that certain things about our petition and the evidence i would like to point out that that is the st time anyone from the  whether based on the record evidence before and the arguments adding further including the output buffer is of claim forty would have been an obvious variation and i don't see how they could have determin otherwise given what they did with with claim fourteen and finding that those tri state buffers outputting data to the memory devices there is obvious variation  not on the due process of being on the quest your theory that they changed theories or they introduced this new theory that you didn't have an opportunity to respond to i'm directing your attention to the latter so i see you mean if they had given me an opportunity to respond i would have said well that's not r r that i mean they should just that you didn't make the document you made this argument we're not buying  they needed to address the one we put in our petition that would have that would have avoided any due process or or a p a and if they had disagreed with us we probably would repeal that anyway and then you would just been looking straight at that you know the obviousness determination by the board but if they had just addressed that one instead of the one they came up with themselves without telling anybody that would have obviated the a p a and due process but what if what if the board had simply looked at your very brief argument and concluded that your argument in your petition that characterization but when you say what if at least they would have been treating what i put in my petition rather than some other argument that was not