apple brought a grounds and it's petition at the end of the day all grounds were rejected yet we stand before you today with invalid claims based on a final written decision that is rife with both substantive and procedural errors and those errors are entirely interrelated recognizing i should probably tread somewhat gingerly in sporting verse ata first saw told us that a final properly in context here and recognize that the c b m a fireman is a special requirement that can be reviewed at a later stage because it goes over all to whether there is a whole class of patents that the board to review continuum of decisions that the p tap can make on one hand we have things that are procedural that go to in that case a time limit that are within in its ordinary course but here we have a statutory scheme and let me just start with a does that mean that if they only talked about section one hundred two that any discussion of one or three or one twelve or one hundred one based on that or an analogous reference is now off the table you can actually imagine the plaintiff coming in the  situation where someone said hey i didn't raise this why is it being held against me in a district court i was only arguing one hundred two not one hundred three the boards to a sponsor raised one with rape i never suggested it why am i a stopped well will i apologize your honor i've been told to be quiet more than once the the estoppel regime is is part of the entirety of the regime we start with three twenty two a three that says that no also on the merit side the way you're portraying them because no significant due process concerns are implicated of why someone being a year or year and a day late there are significant in proposing it was understood your honor but he was petition they have no authority they have no legal authority to talk about very little difference between that scenario and the closer scenario where the statutes you can only initiate review based upon the art initiation and your honor we can start with a three twenty forty question and what is and it's not reviewable on and obviously there's a lot of collateral activity on cause over solder that may or may not affect what we're talking about in the coming months but in this particular three and compass sonics were never mentioned in the same section of the opinion so the very standard the p tab laid out for from for meeting three twenty two it refused to apply to itself it said we can sponsor after the fact in fact your honor did you get an opportunity to respond no because the final written decision came up with the ground for a combination that was never raised by apple never articulated by any of the experts in this it did that based on snow expert in this case no expert explains why it would have been obvious to use a hard drive to store music purchased over the internet it's just that evidence just doesn't exist in this record the board just said not is that obvious to look at any individual piece any particular limitation of a claim the question is the claim as a whole in its context and most of the people in this room can't remember a time when you couldn't download music onto a hard drive over the internet light of the market paradigms in light of the pressures in light of the bias ease in the technology in the industry it would have been obvious to take the hard drive and use that instead of c d s or cassettes there's no record evidence of that and that didn't come out until the final decision so even if our server apply which of course is a is a terribly thin reed to try to wash something clean with to mix my metaphors horribly even if that were sufficient you can't sir reply to something that comes after the fact so let's turn now to the other problem with the obviousness determination which is secondary considerations and particularly in a case like this where the patent issue is and let me be clear it is revolutionary mr hare invented i a decade before it hit the market he sold the first song over the internet they stole the first movie over the internet this is not a troll this is not someone that bought a patent and thought after the record what will try to figure out some way to apply it in the board find evidence to use rose from a lot of the sources they did it based on a declaration of a witness who admitted he hadn't even looked at the claims of the patents is mr robbins he hadn't even looked at the claims of the patents he was listing let alone whether they microsoft which had ninety percent of the computer market the record companies did not want to license to someone that might actually kick them out of tower records in the virgin megastore so they licensed to this tiny little company called apple that everybody thought was going to fail to get the and i trust regulators off their backs the case why we sign our brief makes clear that the limitation on access to raw materials which is just what this is that that doesn't indicate no commercial success to the contrary apple got the license they were successful with our invention that is a secondary consideration that should have been considered and it's particularly troubling that the board reached a decision it could when it said we haven't proven secondary consideration after they denied us the very discovery we saw we saw discovery from apple think tell us out your honor the reason is first of all i would argue that the even though the petition itself did not use the word obviousness or didn't use the word cite the statutory section  here apples potentially clearly did that it clearly on the side of supporting the ground of obviousness apple submitted about fifteen pieces alright if i'm hearing you right some of these limitations to stand the agency needs to be given the latitude to be able to make these determinations on a case by case basis thank you your honor unless there are further questions about the procedural issues that mr hickman dealt with i'll proceed to the merits because crystal clear that the board's determination that the  t claims that issue here had no inventive aspect to them over the disclosures of the company sonics publications that is supported by ample evidence in the record and it started with the petition and the declaration of mr kelley who has extensive discussion of the way in which these publications related to one another and his very detailed claim chart that laid out in fact all of the grounds ultimately relied on by the board to conclude that these patent claims were obvious at the at the very basic level the company sonic's disclosure disclosed and this is an exhibit forty one eighteen the i'm sorry forty one nineteen the the company sonics system that was a i'm sorry it's forty one twelve is the on page four of the read brief which is the the diagram that rips lacks the system of two computers with memory communicating with each other over the telephone lines with audio or video being transmitted between one or the other the compu sonics tell the recording process is disclosed then further publications such as exhibit forty one line team disclose that one could use that process to charge a second party money who would pay by credit card work hard in order to download a symphony into their compu sonic s processor in their home and then we further know from the schwartz patent given by the inventor of the copy sonic process that different types of memories whether they process to the publications showed that that message could be done in a way that involved a payment of money through use of a credit card that could meet the audio or video signal could be sent from the memory and one to the memory of a second and that the memory of the second could include a hard disk now that hard disk is not required by all the claims but it is by two of the claims and that too is is revealed so we think it's anticipation we don't think one needs to show even deal with secondary considerations but at the very least as the board recognized even if one thing clues that it's not a single process but multiples are varieties of the process because they are all interrelated they all relate to the same company's products and components they all refer to one another but that would be obvious and judged i q reference to how the prior art can itself suggest the the motivation to combine and that's what the board found here for example  exhibit forty one nineteen where the article is a fortune article that references the fact that compu sonics had been able to record an hour's worth of audio onto a hard disk but only about three minutes of audio onto a floppy desk and the board said that itself would have suggested to a person of ordinary skill in the art to use a hard task if necessary to achieve the desired recording capacity so all of that it was fully supported by the evidence before the board this is not new it was in the petitions that apple filed it was laid out in detail in the kelley declaration including in his claim charts and so the argument that there was some surprise to cite found it lacks any basis and is that there was reference earlier even to the the board was very very sensitive to this concern that satan was arguing that it had not had an opportunity to respond so the board gave them so rebuttal time at argument gave them an that may be a useful standard in the i p r context but we know that standard cannot apply it cannot be used in the c b s context because of an eighteen a one that the estoppel provision you cannot ask what could have been raised because that's not the standard the standard is and this is throughout the project the legislative regime in the regulatory regime what was actually great and if you get into what could have been raised well then those two things have to be tied i mean we're looking at whether something is altered virus or not does it matter whether you might not be stopped on those grounds even if the board has the power to raise them i agree with you completely your honor we don't respectfully we don't agree with the washed clean doctrine i was just saying that that can't apply here the first question is what does the statute say what are the regulations say that the p tab can and cannot do that that that the regular not sure that i was very clear what i meant was that even if the word can go beyond things not presented in the petition without having an altar virus problem why would that necessarily change the because the question then becomes what is what is the stop if the board is allowed to go beyond that but these couple provision applies to you not to the board until it applies to what ground you read not what the board ultimately initiated so so maginnis hypothetical and i want to quick to the substance here imagine a hypothetical where the board said we win on everything and then we apple turns to the district court and says well we want to argue obvious has to be limited to what was raised every provision says that they can only address what was raised or subset their art and that the only thing that's a stop will is what was raised as to your honor's question about chevron's simply put given that the anticipation of course the p tab rejected the anticipation point and finally i would ask you to when asked when we were asked why we didn't put a declaration on the sir replied well the reason is simple because at that time the only party that input in any evidence as to whether a hard drive would have been obvious in that context was cites that apple has not to this day offered any evidence that an hard drive in the context of these claims would have been