personal web two the second point i'm going to make today is that the board's findings that the communication limitations of the three i've met are obvious lack substantial evidence because those findings are directly contrary to express teachings of the references themsel court this court recently ruled when making an obviously in this analysis the mere fact that a certain thing may result from a given set of circumstances is not sufficient and in that case what they said is if an equally plausible or if more plausible result for understanding exists than the reference and it shows that the reference or the limitation is not disclosed in that reference is not invalidating in this case the board of the age in response to an inquiry from the co suppose computer even assuming that the interface devices do receive an inquiry the more plausible result under the scuzzy specification is that they identify themselves as unknown conclusory testimony unsupported by concrete evidence and in that section the patent owner referred expressly to the communication limitations or another communication of the recognition  or the allegations regarding the recommend record recognition limitations of three nine patent every four to paragraph fifty two fifty three of the petition which discussed the understanding with regard to claim command in those cases in those areas where identify the application of the scuzzy specification to conclude that oppose it i would have understood that i think since the harvest identifier so in each of these cases what we found is that i talk the only conclusion you come to is that it's emulating the hard disk so the use of install software and that install software soley is doing the communication and that since all software is soley doing the identification of attack to the host computer what is three nine addresses that issue specifically unlike i tack which basically says it just looks like a hard disk which should be emulation of any type installed software three nine nine addresses as specifically says the inter petitioners admit that these interface devices are not hard disks therefore under the scuzzy spec they cannot identify as hardest we think the more plausible result is that they identify as what they are which is an unknown conclusion if you understand each alleged interface devices not a hard drive and scuzzy does not allow it to identify as a hard drive the only plausible conclusion is that  installed on the workstation the board agrees with that the board's position was only that it uses the application software to transfer the data but it also uses the scuzzy driver to transfer the data but if you look at this closure that's directly contradictory to disclos because the application contains three tasks the third task quote defines a scuzzy action function and it says that the third task is what quote interfaces to the scuzzy bus and returns data to the workstation the pseudo code that says the cats and driver intercept and replaces that means the catching driver is the driver that is sending the communication over the scuzzy bus it even says it sends it over a little zero which is normally the and expressed disclosure this is the only think that does the file transfer or the communication is the installed software that gets in driver the petitioner side we have an inference he uses because the driver only because it appears specially with respect to the atack reference and you're honor judge dyke you are right that their arguments and their supplemental just really miss the arguments that we're making we're talking about the subsidiary factual fine news about what whatever it was that that appeal dismissed those decisions became final and once there is finality then of the still pending cases at that point that are subject to call out you're on your own i once they dismissed the appeals the mandate issued they do have a stop will affect my point was that had they simply not appealed from the beginning not put us to the burden of responding to the appeals those as would have become final even earlier and in fact the board would have been entitled to rely on them in the march twenty eight team front written decisions at issue here so the there is no argument that could see in justice that that should relieve them of the consequences of their decision to dismiss the appeals they had some reason to do that they may have thought that those factual issues teed up worst in those earliest of the appeals that the court was going to address first whatever their reasons were doesn't matter they made the decision to this mess without entering into any agreement with us and they live with the consulate when you  argue that there were some of the findings of fact in those previous i p r written decisions that were not necessary and i would like to address that here because their arguments are misleading and i  of ice was not necessary to the board's decision in respect to seven for six patents independent claims now that need a true statement with respect to the independent claims is that they made a four point thank you no no your honor they omit to reference that seven four sixty pending claim fifteen requires that the at least one parameter is consistent with the device being responsive to a scuzzy inquiry command so this precise issue that they say was not necessary to the site the independent claim whether it's responsive to a scuzzy inquiry demand it is essential to claim dependent claim fifteen and at seven four necessary finding so that with respect to their assertion again that the three nine nine patent expressly requires use of the customary driver for a customary device previously identified in response to an inquiry and that that's not necessary for some for six patents independent claims seven for six depending claim seventeen requires that after the at least one parameter has been sent without requiring any end user to load a new software with respect to that claim seventeen seven four six eight tacked on written cision at thirty three to thirty four addresses specifically the after the parameter has been sent limitation and says a text cat box responds automatically to the inquiry command and enables the file transfer without the user loading and any software and that's based on additional misidentification and that that somehow distinguished it from the three nine i now miss identification of course and nowhere appears in the three ninety nine playing limitations misidentification is the function of two different elements elements being that it signals that it's an io device customary to host device and that it does so quote regardless of the type of the data transmitted receive device attached well no one tech would respond to an inquiry command by sending identifying information about a simulated scuzzy disk drive so in each of these instances what they say was not essential to the side was in fact decided it was essential to decide those arguments fail and so the court lead not go beyond collateral estoppel in this case but if it does go beyond collateral estoppel the board's findings are adequately supported or amply supported by substantial evidence i do want to specifically address to both the question of whether the inquiry response limitation was raised by patent of the look all of the arguments we heard today about where that was raised are new i heard for the first time today the grey brief does not point to any place in the patent on a response where any argument was made about the inquiry in response i did a search i did a search for misidentification i did a search for unknown device i did a search for one that they none of those terms of tears in the patent in response this argument was not make what they do argue in the grave brief as they did in the blue brief was the argument of attorney about what the scuzzy specification means and now that is important it's important to hold them to their waiver why because seven eight seven and he was asked well it doesn't specify in the three nine nine what that response is he said well it says it appears as a hard disk so we know from that that it would send impossible for our experts to make that same induction as their own expert makes about how the three hundred nine patent works is not a fair argument to make and it's certainly not fair to make for the first time on appeal when you never raced  t before the board below with respect to the customary driver limitation and the findings are ample and most importantly they are an area in which our expert and perhaps expert agreed dr gafford acknowledgement and this is it a ten one thirteen paragraph fifty nine was that cat box would reliably transfer good data without using sing if the cat box was being used as a remote hard disk for the p c what cad sync does is it helps to process when there are these multiple types of activities that catbox shield you have to have a processor that does that but if it's only acting as an external hard drive you don't need that and so you don't use the cat sink in without using cat sync it reliably transfers the good data now their argument about having to be able to do multiple things interesting leaves the opposite argue that before this court in the prior appeal and this court  of the host driver or the customer driver and what the testimony of dr aamer author was and it was again the concession of dr gaffe or was that that transfer of data happens with the scuzzy driver it may be that and i don't agree with this and it's not what the testimony of the experts was below but even if you assume that that was required that it it's not doing anything and therefore it is the ascii driver it's the scuzzy protocol that is being used to transfer the data that's what the board found they had two expert with respect to the claim that the inquiry from the hose was resolved by claim fifteen and seven for six claim for fifteen of the seven for six merely says that the one parameter is consistent with being responsive to a scuzzy inquir command well that all that requires is that the one parameter is on the menu of the twelve different parameters that's in scuzzy it does not invoke the inquiry and response and when you invoke the n korean response which is in the three ninety nine patent that response to the inquiry necessarily invokes the rules of scuzzy which say you cannot respond to something you are not this does not require a response it just says it has to be one of the devices out of the twelve categories it's in table twelve one of schmidt that's not a distinction the other point i'd like to address is this claim that mr jaffer testified that the cat they relied on the embodiment that does the full analog to digital conversion and everything else that is required by the three nine nine patent if you rely solely on the limb body met where the p c connects merely to the disk and that's the only functionality well then you lose all the other limitations of the three ninety five when you're relying on the embodiment that they relied on it has to have those other characteristics and in that situation it cannot use ascii disc for the reason explain