this morning is number sixteen thirteen sixty one intellectual ventures versus motorola mobility mr good morning your owners may please the court this is a case of two clear legal errors that's respect with with respect if you claim limitations the first is the land routing system limitation the second is the stand alone system of haitian well this is a swear behind case this is not a substantial evidence case the board committed legal air with respect to each of these limitations that requires reversal and listen a little bit of time first on the land reading system imitation i think that was probably the clearest in the brief let me walk walking through a quickly  reading the claim on the mitchell which didn't have those features so in order to find that the claim covered the prior art the board gave a very broad construction but then when it turned to look at our swear behind evidence it the problem is the priority isn't disclose those features there's no question that mitchell doesn't disclose authentication or control so at a minimum there's going to be a consistent claim construction applied on both sides the board can't argue a narrow construction for purposes of swear behind and then penalize the pad by using a broad instruction for purposes of reading they're reading the claims of the ways for purposes of achieving the result of want to do it well that's relevant only if you are in a position to swear behind is that correct yes i believe that's correct you the question before that question is when did conception occur isn't that a fundamental question in this discussion the fundamental discussion  with regard to the board's determination as to when conception occurred and as to the underlying facts of exactly what the inventor at what's the standard of review for corporation of the inventor's testimony your honor substantial evidence if it's a matter of weighing the evidence and deciding substantial evidence requires that the they the board the finder of fact look at all contemporaneous evidence that's presented and the reason we have a complaint here your honor i think it's a little it's a legal issue is the board the rule or reason requires contemporaneous evidence there is no what he what what's your definition of contemporaneous and to something a year later contemporaneous there is your honor we thought about that question and the answer is there is no hard and there's no bright li have to decide that because in this case there's no question that the evidence that was presented here was contemporaneous we have a scenario where on november twenty second two thousand and two wasn't like the next day or the next week but for the version that was in place and there's no dispute that was the version that was in place at this point in time there was a one nine hundred ninety nine implementation of windows ninety eight this was two thousand to the testimony is the ven bought a new computer in two thousand to develop the system so what that's our primary evidence our primary evidence is looking at these pieces as this medieval doesn't say that the use that functionality the manual shows they use windows ninety eight but it doesn't show that they use that functionality of the claim is satisfied on october twenty second two thousand and two it will only aim what you're missing for the record is what we're debating which is is there corroboration for the inventors testimony raised not enough to corroborate the inventor's testimony under the arrest and here is what is the nature of that corroboration all i'm still unclear as to what the standard of our review is over that twenty which is the user good rule of rules in the now alice of what rule of reason for corroboration the rule of reason is a very flexible test and the test is simply to determine whether or not the inventors testimony in this case limitation just some evidence sufficient evidence for the book for the finder of fact to conclude that more likely not he was telling the truth and there's no evidence here at all that he wasn't telling the truth there's didn't  they said is not your honest i'm but with all due respect your honor they did not look at exhibit twenty twenty on the merits they did not of value what the contents of that exhibit they said very clearly that is dated after the critical date around evidence quote does not become irrelevant to the credibility of termination simply because a pandy questions whether it was created shortly after the critical date well that's a fairly true that doesn't become irrelevant just after the critical date is ok as long as it's part of the same endeavor in this case we have a situation where there's a development there's a reduction of practice and what happens they keep working on it and they come up with a user guide and and a troubleshooting gu its conception that does and seemed to rest on the notion that windows ninety eight didn't necessarily have the functionality but they're saying there's no evidence to corroborate that inventors used that functionality so he says even if the version of windows ninety eight used by used in the mh asked on didn't have the functions as a certain other words they're saying even if you're right even if are correct that the board have to look at this manual even if you are correct that windows ninety eight had the functionality they are still saying you lose because there is no corroboration of the use of that function because they didn't look at exhibit twenty twenty and oct twenty twenty does provide that exact evidence only twenty does not provide evidence of what these inventors did p locally that's what that device that's what that often says created by the inventors five weeks after the fact very reasonable that after they develop the product they get it working they write up a user manual troubleshooting guide say how's houses been worked out but but that may be an issue but basically it is correct that the question of whether the manual provides for operation is kind of irrelevant in this aspect of the board's decision right no your honor that that particular troubleshooting guide does being used by the inventor yes because they're the ones that are testing it to develop the troubleshooting guide they're running the system through it's paces and they're determining where our problems are rising and that's what the troubleshooting is floor it's for telling people how to fix problems if they're right in the troubleshooting guide very clearly shows that the system was using this feature this is a cheapie feature the reason the board says there's no evidence of that is because alternative claim construction the board in the institution decision so that it was not considering that worse in managing the data path of the land running term so at that institution point we both know i yamma roland knew that they were meaning to the corroboration evidence the only evidence the only argument that i've provided that the corporation evidence supported was of authentication or control so the only well they had the other argument they made was communication in the  local internet access point and the internet access point is insufficient to show conception of the invention is recited because the invention the claim requires managing the data path between the internet access  interface and the local area network so merely communicating between those two would not been sufficient then they turn to the second argument that i think provided and they say furthermore we disagree that exhibit two thousand and nine that the requirement i'm i'm reading this language line of the seventeen eighteen and they seem to be saying that exhibit two thousand and nine is merely describes displaying welcome age there is no mention of providing and the other type of control so they're saying that that doesn't provide corroboration i agree that is what they are saying and they're responding to the only origin that was presented not inconsistent with their early interpretation because their earlier to a patient is their construction of the claim for this section of the opinion pages seventeen and eighteen there addressing the only argument presented to them some within the board's purview to go back and try to make up new arguments to support a position that had not or never took effect under the new face of the recent invasive decision that would be here i can't go back and find something in the record that somehow support an argument that was never made the argument that i've made thousand and nine show affected patients that the board was responding to that aren't is that what you're saying i'm saying that that they presented to arguments with relation to their arms like that and that yes they are one issue and the other way for the other is that it what it comes down to i'm saying they're not doing that that they construed it one way and then they walked through the arguments of the pardons presented in relation to document the requirement document is dated in september of two thousand and two and a pen application wouldn't fall until march and then these claims were met in march of two thousand and three these kinds of amended to include that language which doesn't appear anywhere else but in the i want to go back to mr babcock's argument that he refreshed our recollection that the board did say it was using the role of reason but he says they didn't they said they were doing it but he says they really didn't do it because they simply refused to look at in any significant way certain evidence that was allegedly cooperating the inventor's testimony that the invention that occurred before the piece of prior the invalidating prior art right you did argue that yes and what is your response five of the standalone patients they don't rely on it for the for the other limitation which is managing the data the board would look at that evidence mistral block only refers to that evidence briefly in his declaration he says in corroborating evidence as it applied to each of the elements of the inventor's invention that you're not supposed to do that you shouldn't take the inventor's testimony and tear it apart you should look at it as a whole and look at the corroborating evidence as a whole and say on the whole it adds up or done that up they didn't quite do that they took it piece by piece what's your read and he thinks that he can see that the entire invention is climbed each of the limitations in his claim each of the limitations and so what the board did is they focus on the two key claimant patients and that's what that's what the courts do throughout the cases that are cited in ivy's briefs and hours they look do the same with the other pieces of evidence in the structure for each of those pieces of evidence is precisely the same i'm not judging the form of what they did we're trying to judge that they actually followed the rule of reason that there is substantial evidence to support their conclusion that that i don't think start out with the motions as much as not pro start out with the notion that the people are self interested and that we're not going to accept the testimony unless of robbery it's not that he's not credible it's that it's not standing alone recognizes is that when an inventor gives testimony you can be self interested not only that but he's testifying over a decade later and so that that testimony becomes questionable on its face must be  not trying to make the point he's lying there's no there's no broad discovery in these people are proceeding there's really no way for us to know one way or the other all we can do is look at his testimony which again it's a little different than a district court proceeding where we have this rule walk sitting there giving testimony all in the papers and so we take that testimony we look at the corroborating evidence we look at it on the papers and then we make a decision that i mean it's a bird robert mr walks testimony is this testimony accurate is in this case there wasn't enough testimony to meet their burden it didn't show what they needed show and it wasn't probably and so the fact that we didn't depose and there is no requirement that we have to depose witnesses and often in these p complete inaccurate sure but i understand so that they've missed not enough that it's not enough it's not enough i want to go back to the discussion we had your honor we got a look let it go back to what the discussion that we had about this statement in that in the in the words decision that you were focusing on i think we have to look at what the war did they went first to two thousand and nine two thousand as a preclinical they document and they looked at two thousand and nine and said there is insufficient evidence the inventors intended to use the functionality to avoid the deeper external server that's what your honor pointed to that's a j eighteen so they're going through all of the evidence right there going through everything that two thousand and nine isn't enough i get you the that but the reason i was pushing back your honour's because then we go to the more critical evidence which is twenty twenty this statement has nothing to do with the seven twenty twenty is about this two thousand and nine provide that evidence the answer is no twenty twenty says did your computer receive an ip address from the mobile hotspot there that's not the manual that's a different order and if the site in a different argument that yeah it's a different argument it's the manual was used to show sr ability of the windows ninety eight and what that what i pointed to you is that the board said that doesn't show that they used it and now you're saying ok i'm turning to this other issue as to whether they used it and i'm saying that exhibit twenty twenty credits that they use correct that's correct your it was a systems requirements guide and the boards at that document doesn't show that they used it and then they turned to this document which does show they used it and here's what they said this is the bottom of g eighteen they said that this that we presented that this document this page shows that the d h evidence weighed it and would have to show it here's what the board says they say had an owner's own evidence however shows that exhibit twenty twenty was created after november fourth two thousand that's not looking at this and saying well we don't think it says what they're saying it's dated pre credit post critical date and dust it doesn't provide any evidence for anything this  clear to us is that the question is whether the totality of the evidence under the rule of reason supports the board's conclusion the board came to the conclusion that inventor's testimony was not adequately corroborated by all of the evidence you brought it is that correct is that it that's correct your honor ok i agree with that  that in the course of looking at all that evidence they made a wrong call as to one piece of this is that we do at that point because this is the point that the piece they said was missing is the one they overlooked they said you're missing this one us agree it doesn't show anything there's no other mention of exhibit twenty twenty in this opinion there's no discussion of this exhibit at all the only discussion is that it's post critical date therefore it gets completely disregard