because that wouldn't render nienaber and satisfactory for its intended purpose which is vertically center in an analog television pitcher as reflected in the universe title and throughout the document you're saying this even if we agree this conclusion in three ways but all three are flawed first the board characterized feel as arguments in this regard is based upon bodily incorporation of young still ailments into the universe circuit however that is exactly what xilinx proposed in their words they said quote simple substitution and that is all they proposed that is what we had a trial that we didn't have a trial about any other type of combination and  was substitution of an element for young into an elephant element of nine aber this was all about moving element twenty seven and you know then switching it with or third the board said that those skilled in the art would have made other modifications in fact they said quote any modification necessary to make the substitution acceptable for that is not what xilinx proposed we have no idea what those other modifications would have been or why they would have been obvious we did not have a trial about that now on a related note the board tried to justify its obviousness conclusion in two ways first by referring  al delays in the admitted prior art of the one to two patent and also siding and to digital modernization rationale again however those roof theories that were not advanced by zionists not in their petition prior art of one two to exactly i think i know but i want to make sure i understand and figure one figure one is labeled as conventional and then in figure two and we never got to this yes you but there is there would be some dispute about exactly what the admitted prior art in the one to two patent there's an ambiguity  advanced in that this case they did it refer to the admitted prior are briefly in the background portion of their petition but they never relied on the admitted prior art in any sense in their combination of references for their obviousness contentions so it was improper for the board to have taken these arguments and to bases decision on those theories that's contrary to what this court has said is an intelligent biosystem and what he said is telling and he said this before he realized that there was a problem with his definition of clock he said a person of ordinary skill in the art this art in this case would have quote at least one year of experience relating to clock generation and synchronization in digital systems and that's on appendix page six thirteen that defines the perspective from which the meaning of the term clock must be interpreted that also defines a key element of the term clock that it is used in a digital system indeed professor hayes p l l sexpert explained that clocks are universally employed in all synchronous digital systems the clocks are the heartbeat of such systems that a clock has a the term clock has acquired an established meaning to those skilled in the art and when those skilled in the art refer to a clock they have a definite understanding of what the term me board stretched the meaning of the word clock to encompass clocks beyond the digital contacts and to include so called clocks in the analog context and that was there was there folks are getting into this because class and that's exactly right the only evidence that xilinx put forward regarding clock is a few documents that use the term analog clock or refer to a signal in an analog system as a clock but there are so this is the critical part there was never any proof put on by xilinx that that is an accepted or even acceptable usage of the term there over nine million pat hundreds of thousands of by tripoli articles and they found a handful that use the term clock in an analog on text they did not take the critical next step to show that that is an accepted  in analog c r t cathode ray tube in an analog television and perhaps the board incorrectly interpreted clock because it did not follow a process respecting p l l as due process right petition then we would have had the opportunity to respond in our response that didn't happen there was nothing in their petition there was just a statement by their expert not their petition but in the expert at ration the said a clock because it's a periodic timing control switch signal we came back in our response and proposed our own definition with supporting evidence and then the reply came in from with copious new evidence and arguments more exhibits with their reply than with their petition on this very point and we were not afforded an opportunity to respond to that and that's a due process violation under the administrative procedures  present when i made the request in a telephone conference call he opposed it and the board agreed with him the waiver argument has absolutely no merit whatsoever is the waiver argument  board well of course the force final decision interprets clock based upon an incomplete record right because it didn't hear it it didn't receive our certified now we did have an opportunity to alpert cross examining him on his reply declaration and we filed those observations but the board completely ignored them they're not even acknowledged in the final written decision so everything we could have done that we tried to do  programming without memory to store the programming and the board was led primarily astray in one respect they misunderstood that one tutus patents reference to health uses i'm sorry mental mass and fuses they believe that these were ways in which programming could be done without memory the fact is that mental mass and fuses are ways to set the contents of memory and that's what our expert xilinx this appeal presents three substantive issues the first two involve factual findings underlying claim construction and the third involves the actual finding of the motivation to combine all three of those issues reviewed for substantial evidence which means even if there is room for disagreement as long as the board's findings reasonable and supported by the record they must be affirmed they are then we have the procedural objections that are being raised but both the board and xilinx acted squarely within the statutes in the regulations that govern in our party's review proceedings so once again there is no procedural violation here and therefore this court should affirm now i'm actually in the zoom out a little bit and talk about th obviousness motivation in the mind first which is what i described third substantive issues and i think we have to realize how this patent even got on the books which is there was an application for this very incredibly broad phase locked loop circuit in which there was claimed essentially an oscillator a reference past a feedback path and program will tell a circuit on one of the paths alone and that was rejected over the young reference which is one of the two references we're lying on here as prior art and the board said no you actually have an anticipation issue here that's already been disclosed by young and so to get around that rejection by the examiner  ok let's put another programmable delay circuit onto the reference path so that's all they did is they added a programmable a circuit which was already known in the arc which are a conventional that's shown from figure loop circuit reference in which there was a delay on both the reference path and on the feedback path now what we're dealing with here is the art of phase lock loop circuits and these are common in both analog and digital applications and we simply make clear that we already know the programmable delay circuits are conventional in the art and so all that happened here is that we had added to the other path but that's our even disclosed and we are in the number  didn't have a chance to address yet i don't think that's quite right at first of all with what the board sad among other things because when the board walks through with it motivation pine analysis it first senate even if you didn't modify the program will  here's what you'd end up with right well if you had to have some that's not a really acceptable solution right will mean or wasn't solely focused on the center nienaber talks about moving the image up and down on the screen and avoiding  anyway that's just not the proper obviousness test you look at what the teachings and prior would suggest to the ordinary skilled artisan and the teachings would suggest that ok if you are you can either have a couple of delays you move to a certain degree no delays a couple of options for the delayed or you could have more and if we do if you first if you go past the fact that the board concluded that this would not be an octave for the intended purpose which is this programmable a circuit that was already conventional it's known and so to the extent that the board went ahead and said all right we have these other prior art references that were prior art for this exact patent it said we already know a program in place great job explaining how this you know in operable combination argument is supposed to work and when you do that you look at the fact that you know would it not have worked for the application that the claimant is seeking to  here if you even if you did this it would clearly work for the operation that is claimed in the one to two happen because the one to do patent once again is incredibly broad all it claims is a programmable delay circuit and in the frankly we would have had no way of knowing that that was going to be the r can make because the concept of a clock being analog or digital i think is pretty well known to most people so we had no reason to anticipate that argument it's but lo and behold the c category code in the i tripoli dictionary also includes analog computers and hybrid circuits in other things that reflect that you can now either analog or digital so the claim construction issue to the you can have memory or you can have fuses or metal masks infuser metal masks do not require memory and dr hayes even admitted that that memory was not necessary for a few cents but once again i think you can make that's not the intrinsic evidence alone and to the extent you go to the extremes to get it and it's certainly some supported by substantial evidence here so then what we're left isn't with is this a procedural argument  pointed that out and then made the point that because there is no record there is no way to actually ascertain whether the board abused its russian from the building plate case makes this perfectly clear it says absent or denial of a concrete and focused request first or apply there is no basis to provide to find any procedural violation of course here we can't have any way of looking to see whether there was concrete or focused request because there's just no record of it at this point in any event what xilinx put in in its reply was completely responsive to the patent owner's response  ial system based on the intrinsic evidence alone you could find that based on the intrinsic evidence and the expert testimony that was originally put in or you could find that on the extremes of evidence the expert testimony dictionary which was own evidence so you know you've got no error there in any event even if you were to assume that they made the showing that they say they made it and as to this notion of an opportunity to respond references that had never previously disclosed it would be relying on and two in the observations on the cross examination that were submitted the board actually struck various parts of those and said were not being considered those then at the oral hearing the board went ahead and it actually said no we're not going to hear argument on these various topics that you want to bring up so there you really didn't have a a due process violation because the patent owner was prevented from making various arguments that it wanted to make here we don't have that we don't have any showing that they were prevented from making any argument that they want to make at the oral hearing or that they could not have done so through their cross examination or through their observations e mails that don't reflect any sort of proffer you should really not be part of the record either in short we're dealing with three substantive issues all dealing with substantial evidence review they should be affirmed in the course  that there was no procedural violation unless the court has any further questions all too in particular a simple substitution with no reliance whatsoever on the admitted prior art in the its petition it could have if it so chose or have presented an obviousness challenge that relied upon the admitted prior art for strategic reasons known only to it it chose not to do so we did not have a trial about any obvious allows us to inject flexibility into the analysis that is absolutely true however in this type of proceeding the point at which that flexibility should be injected is in the petition in how the  is formulated it is a procedural due process violation to in for the board to inject flexibility sue a spontaneous in ways that the petition did not propose midway through the trial and that is what happened here notes that the intrinsic evidence the patent wanted to patent never says the word digital and that's right but it doesn't have to because the term clock carries that weight to those skilled in the art those skilled in the art know that it has a universal meaning as a signal the pulse of this or the heartbeat of a digital system xilinx also referred to the c category of the i trip lee dictionary as having other subject matter included some terms from other subject matter such as analog computers in general circuitry however there was no evidence put forward by xilinx in this case that the term clock along see in any of those point i would say that we never argued that the reply filed by xilinx was improper you never tried to strike the reply we simply wanted an opportunity to respond in writing and we were not granted that requests so we did the best that we could based upon the options that were available to us namely responding to an oral argument and following our observations but we were handicapped by doing so we should have