a different diet here it's called the repetitive pattern again that was not the first it's not a model then the third one is called the data database comparison which is a mob but it's not diverse and it's not based on real images of the board that's a synthetic model it's mathematically base for example maybe in the specification for the equivalent of a blueprint was supposed to look like but that's that's perhaps too ideal for the reality of taking the photograph so it doesn't have that diversity and it's not reality based think that alternative meaning would apply it is a leap to go from there to find our claims here either because because we didn't claim a collective comparison for six weeks reclaiming training or modeling the substrates using multiple good quality substrates or wafers i'm paraphrasing because we have a number of independent claims for but that's the core concept that you see in all of us and to go from this just comparison to collective comparison all the way to there the board make that leap with no evidence in the record nothing of has it really just expert testimony or anything else there is a record here within the four corners of that prior art the burden rely on anything else and so you have undisputed facts and my second error there i think is taking a leap into this obviousness conclusion and  o i would say this as a matter of law based on undisputed facts also if you actually look at what the board found factually about alphabet ambiguous alternatively my second point was even if we accept that fact finding is true nearly finding a select comparison is insufficient legally to reach the conclusion that there's obviously is for our claims that aren't saying collective comparison they're saying something more specific than that about training and modeling with multiple good quality images collected comparison doesn't get all the way to there as a matter of law even if the sec separate fact from any by the board act in isolation out of context is true so i think there are some legal problems years that that's legal so if we if we go back to that first legal era the out of it's column eight of allen and it talks about a comparison of an expected pattern with the light pattern of at least one other die serving as the reference path now that pr back to that sense on tree three seventy one that describes that it's a pattern on another like earth because that's the day to day comparison so it's like to like that's what this means and pattern that half of the phrase you just read imply that th examinations here so within the four corners of that sentence when it says at least one other guy it totally works with what we say it means that this could be two separate steps not not one step of using multiple collective comparison but two separate examinations the sentence itself says phase one examination and phase two examination so i would say even in the four corners of the sentence you can reconcile the least one language with multiple one to one comparisons and that's what forces were saying consistent with the whole spec which never talks about this collective comparison sort of approach to there's nothing the camp has cited here either that would give you any support anywhere in the spectrum how would you do this collective comparison what is the modeling what would you do it that's all they say about what that out there that have meaning with it's like it is that i think that's wrong yes but if we accept that as actually we have to live with that that still doesn't get you all the way to finding our coolies your obvious none of our claims talk about a collective comparison they talk images of apparent raver using a charged couple device you see that's that's the sort of thing disclosed in our patent on a pixel by pixel basis which is what we talk about however the extremely large number of pixels involved makes such systems extremely small they're saying we're not doing it that way that's actually the opposite here in the four corners of element so there's actually teaching away from going to our system now in response to that cancer proffers a number of rationales that the board didn't ha why to try to help fill that gap i think there are the really the headline there is that that shows that they can't really support the board's decision within its four corners on its face when thing they do there is they go to this other priority and it's not cited by the board or the how you were developing the model it didn't require that the model be developed from more than one good quality substrate well your honor i claim when it's i it's i think it was a little unclear what they're reaching to find it so that they decide that it doesn't need to or not i think that since they're actually suggests that they were saying we're not deciding one way or the other we're soon even if there's multiple ones that these claims are are obvious right but can you with the model you can't have the one without the other that's in figure three it's it shows the step by step that's the training section as you go back to figure two or talks about retraining we inspect and so on it has a sub flow chart in effect of what is treated and it includes developing a model of the day these two things really are inextricably intertwined to each other and even the board itself notes in its talking about the means for us function for us or a claims that you have a section in the spec account thirteen where it says the model of necessary think of the words definition a model has at least to die has to have at least two things to create that that statistical model involving i mean in the standard deviations so that i think to the extent the board meeting mistake there like i said i think it's going to unclear where they were going but if you're just asking me what does that mean i think it's clear from the district court construction but also just reading the five twenty eight patent whether you have that or not training in modeling go together and get claim one clearly requires those things to about multiple dice or substrate  acceptable evidence that reasonable minds might find acceptable and as the apply case of this court stated just because people may come that there may be opposite inconsistent positions does not mean the evidence is not substantial evidence and that is applied at twelve ninety four and under the supreme court supreme court's decision in consolo it something less than the weight of the evidence that second solo six twenty now in th think case what this court says is even when the board is not very explicit about it it's reasoning if there is a reasonable path to discerning what that reason has you can affirm that decision and this situation is very similar to what the houston court found and as explained at footnote nine of its decision now mr macdonald has stated that there is no evidence and the border lives solely on one sentence or did focus on one sentence but there was multiple there there was a significant amount of evidence in the record and what the board said at page nine of its decision which is at twenty three twenty two of the joint appendix it said the weight of the evidence on the record supports what the examiner found now there are actually work to bases that the examiner used to make the rejection one was very explicit and actually has gotten very little attention here has gotten no attention from rudolph explicitly and other laws on something which has been overlooked here and that is what the claims actually say is using multiple substrates if you interpret all the claims to say a model is made using multiple dies and actually what happens here even in the five to eight that the way that the examination is done it is done any pixel by pixel analysis so when you look at the five twenty eight patent and it's columns sixteen line forty one to forty five what you see the way the model is actually created you take one pixel that you're inspecting you've got your model is actually created by creating averages of the intensity of actually not in the joint appendix i think willing to put it twelve thirty one to thirty three but you can actually see at the examiner's rejection which starts at page twelve ninety four he says camps arguments have been considered examiner actually says is that when you look at the pixel information in aluminum there's two pieces of information there's the intensity so i take the inspect that i take the reference i look at the intensities do i stop there no because to make a determination as to whether that intensity information is really valuable i have to figure out what that pixels are actually representing is it representing like the center of the di is it representing an edge of the die and to make that determination the pixel type information whatever you want teaches you look at all these pixels around that it's actually a three by three neighborhood and you look at that three by three neighborhood you take average of a duck in other words a pixel a picture element so the examiner cited that to the patent in the past no comes back and says ah that can't be a model because that information is not stork and that is at the joint appendix thirteen thirteen exam or comes back and the examiner says no way you're wrong then information is stored it's stored in memory seventy five and that's it thirteen sixty five of the joint appendix and the pad in their sights for that and then in the actual rejection he cites the column twelve lines twenty eight to thirty of al you mark which is con twelve twenty to thirty and the reference picks on album art is not just based on that one pixel that corresponds at one pixel you figure out the type and it's based on this whole neighborhood if you were to argue that in fact it can't just be a pixel contrary to what they claim say that it has to be a die how you might also addresses that because it says when you look at the image that you take actually is not necessarily just one guy it can overlap more people dies and we can see that in figures nine to eleven of the hour in my pattern you actually can see the figure there's a circle and you can see that circle overlapping multiple dials so in fact when it does the three by three analysis some of those pixels may be on one some of the pixels maybe on another guy it's fully consistent so when the board said that the weight of the evidence supports what the examiner found he certainly knew that the example of the board knew that the examiner was relying on this pixel data that was created from words wrong each pixel on unknown quality wafers is viewed whereby the model is used to determine if the pixel and or group of pixels are deemed good quality or questionable and you'll see there's an evidence which supports the conclusion that the board and the examiner came to which is when you read that sentence about at least one guy is there any support in the world for a rip up person  more than one die is used in creating the reference and the answer is absolutely as this court knows when making an obviousness determination what you must do is look at the scope and content of the prior art and when you look at the scope and the twelve thirty one and twelve thirty three and the reason that can take me that statement was to rebut an argument that the patent owner made saying hey prating this model by using multiple inputs is not culprit thirteen thirty one fourteen thirty three exactly what language to research so that would be i believe there are two paragraphs one paragraph refers to the child patent and one paragraph refers to the at the hearing room office you can't consider that evidence and actually cited the balcombe case and they say hey this is a totally new ground we're not talking about a combination what we're talking about is what this co one to model comparison we're going to model this based on multiple things and if you look at the checkout patterns and you it's child column for twenty three to twenty seven i don't have a line twenty three days twenty seven it says the reason that you want to take multiple inputs to make your model is to make sure that you're not going to come up with all these false defects it really helps and accounting for that that language the reason why it's done the way that that promise all is identical to what the five twenty eight patent does i would i would ask the court to i don't have enough time to actually go through the language  column for twenty three of twenty seven of compared to column thirteen lines ten to fifteen of the five twenty pound you're going to find the exact same reasons for making the model based on multiple things now given the state of the prior art the arguments that were made to the p t which was in the record it was it was completely reasonable for the patent office to come to the conclusion that based on that one sentence six we did cite to the acme case the letter of the notice of appeal that the p tab issued cited to the provisions in the c f r into the statute that says this is a new rejection when you have a rejection you have two options a new rejection is not something final that you can appeal you have two options one option request rehearing option number two requests for their prosecution neither one of those was done those claims are not properly before this court and last since i have twenty seven seconds left your honor you asked about the difference in scope between claims one point nine and i would also have claims fourteen you are correct claim one and claim fourteen do not require multiple inputs to create the model claim nine actually does thank you so much you have any questions i will and th consistent with what he was just talking about there's no reliance on shower color coding i see in there a kobayashi is a printed circuit board inspection system that's like what your old am radios would have solder bumps in them from a board that has little transistors that you could actually die implies or one skilled in or will look at that as saying well multiple dies i can i can rely or use multiple dyess would include one guy or if you could include more than four more than one least on the basis of this one one sentence that multiple dies as an option to one skilled in the art it found that as it put it a collective comparison that best the words of the thought right and so my second point there is i think that's that's not inconsistent with the spec which your talks about such a thing but that still doesn't get you all the way to modeling in training with images of multiple known good quality wafers  and so therefore i guess the idea is that you don't even have to compare multiple wafers you can compare multiple parts of a way for how do you respond to that well we have the first case we had and six at six fifty five f third side talk about different parts of things and that was where it was remanded in part because the court said well i think there has to be discreet rights and so if you have this part of the same diet as physically connected to each other that's not discreetly separated so that was the whole issue in the first case where we had to redo it no no that's working its way up again here after we got another finding of infringement even with a new claim construction there but that's where it's being taken out of context here and just not consistent i mean the board didn't rely on that at all what the board necessarily find that what counts as trying to tell you here is that the board really did find that element has that when they were talking about the pixels and things but the board's decision says they didn't find that element as sara lee describes that the pixels there are very different if you look for example at figure three seventy five of the appendix is that that's from sampling these reflected patterns an element as we pointed out in reply very specifically says we're trying to minimize actually collecting data of the image we just want to see the reflection we don't want to see the actual image that pattern support in the board reversed that and then they substituted in this one to three grant which in a sense is the new but in another sense it's the exact same ground they relied on to reject all the other claims one hundred fourteen and so on for obviousness they in fact say in their opinion as they're analyzing those as we discussed above element suggest this this collective comparison and therefore renders this multi day model based on multiple images obviously as we discussed above it's the same one we talked about for one nine and fourteen so it's kind of in this unique circumstance here and when you look at the context of what was the option here what we're going to say to the border to the examiner we know that we've heard argument we think that the that sentence an element is insufficient they dealt with that and they says a new ground a rejection i mean that it seems to me that that leaves room that the basis the rationale for the rejection could have been the same but now it's a new ground right but when you look at what's the point of doing these other steps before taking an appeal is to