didn't describe that excuse me the second error is we believe that that construction is misapplied with respect to baker and then the board's analysis spartan rebirth construction of the tour message no in fact this  the in the first instance during the during oral argument so we didn't have we didn't believe that it needed to be construed it's a fairly common term but in the oral argument the patent on a raised the issue and provided no less than five different constructions  during the argument we didn't believe it needed to be construed and today we don't but the limitations that they imported into message in their analysis of the prior art illustrate that they adopted a construction that's completely inappropriate specifically and they the board relied on the patent owner statement about what messages are in the concept of single frame messages ver multi frame messages and that indicates the heart of what the argument here is so they any construction a message that would exclude a single for a me ssage is inappropriate on the loop that's what they did no they didn't they just they just said it is not the case that every frame is always a message absolutely it's one of the single frame messages absolutely but and all that and as i remember coming from iran that what they said about baker is that baker show is something happening at the beginning of a friend absolute but it doesn't either say or necessarily require under heresie for that frame to be a message yes and that's at the heart of the of the error that they're making here in plain construction because it isn't relevant what happens at the beginning of the fourth frame up to fifteen for a message that has no bearing on the claims whatsoever now the teaching of specification also indicates that a message can be a continuous transmission of data appendix thirty one column three lines of eight through beginning absolutely and the the beginning of the message around it is the only time period that matters and by their analysis and i'll quote at appendix eleven and twelve the board specifically relied on this analysis when it said specifically the patent owner identifies evidence indicating that a message transmission may include multiple frames in time slots that's according to the patent owner the boundary of the framer time slot immediately preceding to nec in baker is not necessarily of that of the start of an of the message transmission and they explicitly agree with that analysis and that is the heart of the air it doesn't matter what happens interior to a multi part message it merely matters what happens at the beginning of a message transmission and baker explicitly teaches that the determination is made at the beginning of every frame boundary which nine and nine ten with reference to figure for the the discussion about you m t s messages and messages generally starting to frame boundaries can be found in the pendants seven sixteen line sixteen through twenty seven twenty lines fifteen through eighteen in the patent owners and initial response at page twenty five so the real central issue here is i believe the board just got the railed by a persuasive argument made  patent owner that said multi frame messages what happens in the interior frames and since baker doesn't really describe that then it doesn't anticipate and again had i think  heard you say and i make it this wrong that baker teaches it's setting the what's of the headroom is that the making the determination slot or frame boundary in baker then it does make the determination of whether or not there will be an adjustment at every frame  so moving on just briefly to the teachings agree unless runners have a further questions with respect to read the analysis really turns on whether or not the that really describes the use of a single head room for the it used to teach as multiple head rooms and a pattern other argue that this is a teaching way once again and we believe that the board kind of latched on and adopted that unfortunately that's just not what reed teaches we teach is that it that with two strains you have an additional degree of freedom where one string can be deep prioritized with respect to it to the other that d prioritization is always a comparison and one is more important than the other and you can find this at appendix nine zero six column for forty one three or four fourteen through twenty one so back to the key issue if there were a single head room for the device and this deep prioritization is happening within that room and we believe that that's exactly what reed is teaching if we look at the same appendix column five hundred fifty nine through sixty five it says after the base station obtains the mobile station available transmit power the face station determines the data rate for the mobile station based on the hit room now i have a couple of little ellipses in there that's taken a pieces of transmitted in multiple data streams it can be prioritized though one data stream in favor of another within that header the headline can be assigned from the base station as it as described or the mobile station can written but again both of these instances have room as in the singular not in the plural a lot of the pattern owners teaching away argument is that ray doesn't disclose the max power associated with two codes  two nineteen through twenty three and it makes no mention of reaching max power when two codes are used the claims make no mention of reaching next period for the two codes and the specification specifically states that this phenomenon is not universal and you can find that it colored by one three five so the assertion that read teaches away from a single headroom for the device is just inaccurate in fact it's the only reasonable interpretation of read is that the mobil station has a header that can be set by either the base station or the mobile and within that headroom the mobile station is going to prioritize  prioritize individual streams relative to each other when a high priority  can make power adjustments at the time slot boundary before an act that message and understanding that a frame boundary is just every fifteen time slots there is an artificial demarcation that that's the beginning of a frame as well so just like minutes on a clock every sixtieth minute is also the beginning of an hour but it's also just the top of the hour as well but it's the getting up a new minute so with respect to your honor's question about the beginning of a frame the if if there was if there was a message that was at the beginning of a frame yes i think that would be within that would be within the scope the claims all but i mean having to look at the rest of the limitations of the cl but the key here is at the beginning of a message that's that's what is completely missing in baker about any disclosure of the beginning of a message the concept that everybody agrees that the it's time disclose making adjustments with respect to messages that are ten milliseconds well but baker discloses that you can make these adjustments really at any time it doesn't disclose so it's like it it can you can make this power adjustment  at any time there are disclosed as making the adjustment at the beginning of a ten second time slot right if it discloses that you can make an adjustment at a time slot boundary which every fifteenth time slot frame there that that period went baker is making an adjustment there is no message involved in i think the best reading there is no message invoke there are some messages or ten milliseconds so when you have a can millisecond time when a message is ten milliseconds long baker makes an adjustment at the beginning of the message correct that that isn't but i would say you're simply picking an arbitrary point in time to make a power adjustment sometimes it says it can be at the beginning of a frame or in any other time slot so it doesn't have to be a to be a beginning of a frame it could be the first or second or third time you know what a mother talks about in that's where it's it doesn't it doesn't it baker does say you are trying to address this biker does say that you can make adjustments at any time including at the beginning of a frame i agree with that but what biker does not disclose or teach to anyone is is why you would make that adjustment and so if if a message you want to play may have to do with why you're doing it has to do with doing at the message to be transmitted in baker but that's where i it's like it's doing it when a message is to be transmitted that's that's the key and what we think is missing it by baker we say yes it says it can do it really at any point in time it can do it at frame boundaries or any of the fourteen time slot boundaries after that frame boundary until the next frame boundary it can do it it any time before there is an act and act transmission so what we say in so to the extent that a message is being transmitted at a particular time and then you do this you set up power headroom then ok you're getting closer to the claim but this is an anticipation and the claim disclose you have to make an adjustment at the beginning of a message in baker there's no discussion about transmitting messages and we said just picking an arbitrary point in time doesn't get you to the particular point of time disclosed in the pattern where you make this adjustment at the beginning of a message transmission there has to be a message to the being transmitted not just some arbitrary point in time and that's what we feel the key element missing in baker is it just says you can do it when ever act that they never alleged to be a message you just pick a time and you can do it that's very different in our view of saying when you have a message to transmit it's in the pattern explains why it's important to do it at the beginning of the message but when you have a message to transmit that's when you do it not just when avar that's it that's it's really it's a somewhat nuanced point you're on but i think it's i think it's very important so with respect to opposing counsel some of his points that the errors he believes the message construction is certainly our view that the board never construed message they didn't construe message what they found was and i believe it was read this is on a twelfth that's according to patton owner of the boundary of a flying frame a time slot immediately preceding an act or knack is not necessarily the start of a message transmission we agree with pat number so the board i don't believe the board was construing message here or certainly no formal construction is light as the argument in front of the board the board specifically asked petitioner do you need a construction of message i said no we don't need that construction and i don't believe there's any construction s again anticipation it never discloses the start of a message transmission that's what we believe message it says you can do to make this adjustment it any time but it's not it doesn't recognize the importance and it doesn't disclose that you do this at this specific time when you have a message to transfer and that's not it here no no your honor that's what's the difference between the yet it's a patient world in which something needs to be expressly taught or being here and on the other hand a particular instance that might be covered by a prior art could infringe but if the aspect of that instance is neither taught nor in here it's not it does that was certainly the board's rush it's harder to say maybe maybe sometimes it is maybe sometimes it isn't but that's not inherent see again and you know to get from a to see you wouldn't necessarily for be to be in harry you necessarily have to pass through bait and i say that that's not that's not what shown here that maybe sometimes the  they begin to be transmitted at the beginning of a frame but not every frame is the beginning of a message and we've showed examples of mean a message can messages aren't always transmitted messages may not be no you may go some period of time with no messages being transmitted and baker performing its power adjustments anyways to transmit an actor and that a message can be the messages disclosed in the past can be eight frames long so it's we side use the example what's the what's being asked or net it would have been a previously transmitted message but that's not really that's what you're it you're acknowledging the receipt of a download of a downstream message to say tell the base station i received the message or i did not think so but it's is this it is too inherent see that just any given time slot or in a given frame brown theory is not necessarily the beginning of the message and i think sort of the big picture that one of ordinary skill looking at baker doesn't come away with any appreciation of why or how are the reasons that you want to make this power adjustment at the beginning of a message about doing something at the beginning of a message it's just it's basically you can do this it any time in the board the board's analysis reflects that they say it doesn't inherently or doesn't explicitly disclose that there's no nothing in there about messages and then it doesn't inherently disclose the board recognise that sometimes the beginning of a frame may line up with the beginning of a message but not necessarily it's not always and that's not in the near probabilities or possibilities that doesn't get you to inherent so with respect to read it in i'll move on to that read i think it's there we just have different readings of the disclosure of every i think that's a very factual just  parte to different positions on this that a one handed in its first declaration he said each of these data streams has different head routes or you know can be adjusted independently in a second act in a second declaration said well there really managed together so we start looking at substantial evidence that their expert them so itself is offering different views on this on this key aspect of bikers and then with respect to some of the specifically found in this decision that that was a different body than the embodiment they cited two for the proposition that there are two data  just a few points around something came up during the last argument about baker and specifically the patent owner stated that baker doesn't teach messages this nigger maker doesn't teach messages and i know this goes back again to the understanding of what a message is and the board's implicit construction in essence the baker teaches is this and this can can be found at column three i believe from memory about line thirty three of forty what they heard teaches is that the control channel is transmitted at all times continuously now control messages would be put into the appropriate time slots as the control channel is being transmitted the data channel is only transmitted when there is data to send and the reason that's important is it goes back to what is a message the one seventy four teaches that a message can be a continuous transmission of data  baker teaches a continuous transmission of data in its data channel the so i think that's important now if we go to this concept that was fairly determin the board or a single message transmission of a single duration or multiple frame to ration is with multiple frank aeration is there obviously to inviting it's right that frame is either the start frames now with respect to the argument made in response to read one of the things that i think is really compelling here is a statement the council board's finding and dr williams i do need to address this because i believe this is a little out of context what they found was that in dr williams initial discussion in his declaration he talked about independently adjusting the head rooms on the different data streams relative to each other and then he went on in his next declaration to refer to it as a coordinated effort we exactly what we're talking about yes each one is going to be transmitted to different power and yes one is going to be more important than the other but there's an explicit teaching that the device has one head room and within the scope of that have room is how these these transmission powers are managed