points out the courts reverse the ruling of the patent trials held or ruling that are certain kinds of our patents were invalid in view of the goldstein reference we do so both on the merits and based on procedural violation occurred before the board which violated  process rights under the administrative procedure act i'd like to focus my argument today on three points first a quick let me ask you just as a housekeeping matter i'm correct that you're only appealing to dependent claims that strike or allow us to find out depends on how you look at it i mean there is some confusion here about the use of terminology in my tractor and my contact but the concept that was describe right i assume you meant correct i actually don't because an eye contact sensor doesn't do that and the thing is all i track of sensors even ones that they long since disclaimed would do that being sensed absolutely so in that sense yes but that was certainly not enabled why didn't queens dispute the sensing eye contact issue at its first chance in the pet nor her response in the have never seen a denial of an institution based on enablement argument because what with the board do are we would raise the argument samsung would have an opportunity response there wouldn't be kind of this for some develop obviousness to show that you know that there are certain elements here that were simply not met as opposed to an ailment and we also knew that we were going to get different arguments in our response after institution which is you know that's just the way it's set up so you don't want to make the exact same arguments in those two briefs or you're probably going to be in trouble who want to make the argument they were in poems on this or i absolutely agree they were entitled to response and what the board ultimately  that goldstein described i contact that is contact looking at the screen or not looking at the screen and that that was enabled by various other references for example if you look at a thirty issue right we were not allowed to do anything other than argue against these references we're not allowed to submit it acts for decoration explaining not understanding what's wrong here i mean the yellow skin describes i contact with the people looking at the screen or perhaps done by people who are super skilled in the art in a lab i think they're somewhere over in europe i don't understand how that could enable somebody looking at the patent to do it you know if you one thing if it said go to the smart prototype it was published here it was done this i don't think that's consumedly make a enablement argument based on something where there's not even a date it's not even there and we were not allowed to do it so i'm sitting here i'm arguing with you judge i can based on incomplete record i didn't go back to my expert you know it's one hundred thousand dollars having him draft day  distinction between i contact sensors and i trackers claim one doesn't limit how quote the device determines whether the user is looking my reading of and claim one isn't challenged on appeal they both would be covered by claim one but i tracker like true eye tracking is not enabled on the seller fun fact sampson totally disclaimed that before the board in fact said no no we never even tracking in or on a cellular phone at that time which is why in reply they switched my contacts sensing choir's less power and i see that i am now into my rebuttal time you know from the question well i'm troubled by the argument that queens makes regarding what it says is the effective denial of queens that they would deny that one of the keys or they were like these observations i toss out they do not substitute for the ability to spy argument and evidence including expert decorations and the reason for that is if i'm able to argue as an attorney against sixty  declaration sixty five new pieces of evidence i can argue that's all they were that can be dismissed simply attorney argumentation and you're in a position where i've been today that i'm simply arguing from our patents attempting to explain why we think this was wrong because we were not able to put any of this evidence in the re sensing technology to sense i contact the goldstein uses queen's experts also admitted other facts from its initial from their initial expert declarations that her queens case and so having passed on that initial opportunity  evidence on those issues the board correctly denied queens a second chance to do so i'd like to spend most of my time showing that they did have notice of the relevant issues pending of course other questions from the court but before i do that i think it's worth noting what the board did give queens as the court pointed out queen's goddess or reply where they could make whatever argument they wanted they were allowed to cross examine our reply x for seven hours and during that time they could have introduced whatever impeachment were our theories i contact not tracking but then there are some additional dependent claims in their patent that are narrow specifically to just i contact and so we said goldstein disclose that and so that the the onus would have been on them in the patent owner response to challenge that disclosure and bolt in and they didn't do it and so now and you know there was a strategic reason for them to do it i mean whatever the reason they were expert you relied on before he filed you know sixty five or sixty eight corp i can't remember what and then he also attached or you attached sixty five new pieces of wire are that's a lot that's a lot of new evidence in a reply pretty almost no declaration by a whole new expert not using the expert you've used before and then sixty five or sixty new pieces of prior art for the board to look at part of all i p r until you introduce in the reply so a couple things there were a couple different issues that kyra went to the first was kind of further discussion of goldstein this was the sentry high contact and that was something they certainly could have as we put that in the petition and yes we put in a new expert's kind of elaborate on that but it was the same theory that was in the petition and they i think made a strategic decision not to have their experts address it because they were worried about calling the name one of their own explicitly something like on time but the other stuff these were expert these were issues that they're experts actually injected into perceiving about the state of the prior art for example and what the keep abilities of cellular devices were at the time and for that things that they could have anticipated because they injected the issue into the proceeding and if they were going to do that their experts had a responsibility to address all the prior art that was out there instead there was all deception is out there but that wasn't part of what you're telling me we get this straight you're telling me that their expert had an obligation to go through all prior art in existence and address all of it even though you had relied on  expert testimony about that right correct and you were responding to the right the question is whether they should get a reply to that since they had the opportunity to address the enablement question when they raised for the first time in their response  someone would normally get in the form of a reply were they given all the same protection someone else reply would get i think so because they don't have your hypothetical example suppose this is obvious that you have the burden on obvious ess if you are the person challenging the patent you put out your premise face a case in obviousness now suppose the patentee comes along and introduces responsive evidence in your reply are you allowed actually now the product wasn't commercially successful and you know you said the sales were two hundred million actually there were fifty nine i think there is i think there's an ability to to call them on some of the representations they make and reply and i think you know they have an obligation to be point was impertinent person who has the burden of going forward initially them on this enablement issue so they really stand like in the same shoes you did or not you would on obviousness erotically right so if  obviousness you present all of your arguments that they were present up position if you then reply i get a chance to respond with new evidence responsive to their opposition and why shouldn't they get a chance to reply to respond with new evidence responsive to your opposition i think ultimately you want one standard for you but a different standard for them when they have the burden on the issue i mean throughout your brief you made it clear to me they have the burden on this issue no i mean we have the burden of proof along enablement the burden of production the burden of proof and so i think as in the obviousness context the party with the burden of proof is the party the typically gets the last word i think the board would have discretion to say looking at the particular facts that yes or no will give you expert testimony but here i don't think the board of use that discretion because ultimately all we did in reply was just put in evidence that was responsive to that and in the corrected some of the misstatements by their experts that had their experts done a more cited and other paper on at that actually told a different story about it and they didn't object to the province of that paper you know they now say oh it's published we don't know what it was from they never objected to the authenticity below and actually if they were interested in foundation that so in last there are further questions on the procedure i could speak briefly to the merits and there we just think it's really substantial evidence question on both issues i mean that there's two to see exactly where the glint in the eyes is and then figure out based on the shape of that glint where i am looking reisa from looking at her the current looks different over there it's just a computation requires calibration requires a fixed environment what are moment was that if i'm looking at you judge like you can see my pupils and you can see the glint in my eye is inside the people's just a direct line and you eliminate the need for all of that she will measure computation we disclose people the pupil the glint in the camera all lines on the access indicating that the user is looking at the camera and hence my contact is detected that's something very different goals he does not disclose that so we didn't rise and fall  notice issue we heard a lot of argument about there were clue with more than clues are required as whether or not they're looking at i context it's a no no no you're stating your opposing counsel is argument he said clueless and he said also direct information but that is absolutely incorrect and i rely on styles for those three this court in the american case it came out i think about eight or nine months ago i said that's not enough you've got to raise this specifically with these claims if they said this is an eye tracking sensor because they say it's like tracking sensor well i mean if you look at one ninety four in the middle of the bases close all skin disposals a hardware sensor in and on the device was sensing attention of the was or specifically toward the device that