locations without knowing either the address or the naming systems that are used in those various servers in different locations i have a quick housekeeping question i would i didn't think that i thought the claims it issue were twenty four thirty two eighty one and eighty six and i think you didn't mention thirty two it was that intentional thirty two was a dependent claim and i my comment was the independent clanks thirty two depends on twenty four your statement of issue twenty four thirty eight he wanted eighty six so i had to know what to do about it you see i stand corrected again eighty two depends on eighty one but it is in the appeal it is in the appeal the board chose seventy is it representative claim right that's correct but didn't treat all the claims as rising or falling together or did it say claim seventy did it treat the claims as rising or falling with claim seventy or did you argue them separate we argued them separately the board's decision was a little bit unclear in that regard to call claim seventy a representative claim the claim seventy plainly has different language that we pointed out in the pa response in the i p r namely claim seventy talks about determining whether one of these content dependent identifiers is in a database as opposed to in two independent claims twenty four eighty one and eighty six which all have the language of taking the content dependent name and comparing it against supplier reality that language is not in claim seventy we did not appeal claim seventy honestly for the reason claim seventy's language is a bit broader in regard with respect to what you compare the content dependent name to the and i guess because the board is a fifteen specifically made a finding about a particular reference teaching the comparing the identifier to a plurality of values i guess it's your view that the board necessarily reached past on commented on the other claims aside from just what was representative claimed seventy that's correct your honor that page fifteen of the decision the board expression the address the limitation of comparing the content dependent name against decision what the board said was we find that this limitation of comparing a content dependent name against a plurality of values is in the stuff it referenced didn't say anything about it being in the would help reference and the only evidence that the board cited for the finding that stuff that disclosed comparing the content dependent name against the plurality of values was page forty two of the petitioners topples petition for i p r and that's it appendix page ten forty five and if you go to appendix page ten forty five what you see in regard to that is nothing there is not a single word in a in forty five of the appendix out this petition page forty two that even talks about comparing a content dependent name against a plurality of values and what that page talks about is some authorization and access but it says nothing about comparing a content dependent name against a for reality of values and in fact there's a good reason why the or does not cite to the stuffing and itself it's not in there there is nothing in the stuff that patent the tox about comparing anything against a plurality of values stuff it has essentially two pieces of data that could be the new york times and it may have a bunch of articles say an article on clinton winning the national championship well what it would do if that was a proprietary argument i think we all agree that unique identifier used in step identifier based on a hash function so we could use that version of a unique identifier in something like stuffing me if you're out of that even if you took the woodhill content based identif r and substituted it for the assigned identifier in study you still don't have the claims of the three ten patent because there is nothing in  these sentences at the very end of the abstract on the front page of the would help that from time to pretty clearly say that i'm used to the binary object that then a fire and compare that what is incorrect about my reading seemingly plain reading of that sentence in the abstract because you never compare the concrete binary object identifier against a  in looking to take some action like accessing or authorization in fact the reason why its language and its owner not so is written at a very high level but if you go into the  that means is that in the backup server you can have not only the previous version file but you can have other versions of the file so say two versions ago three versions ago four versions ago and if you want to either back up now the current version that you have on your computer or you want to do something else with a particular binary object that's on your computer the first thing you have to do is say ok what version in my dealing with on the backup computer so really when you go into the specification retired this work there is only a wonder one comparison so in other words you pick the urgent and then you say object and you put it into that particular version of what is in the back of the computer and the reason why this language talks about one or more previous values what it really means is one or more previous versions but you are never taking the binary object identifier for a piece of data that's on your computer and comparing it against multiple values as part of the same transaction you never say ok let me see if this piece of data is in the backup server someplace which is really what the true names invention s ince did you know exactly where that binary object is in the backup server and you know exactly what file it is in and you can say ok it is it that is it in file five three hundred bits from the beginning and and going from three hundred to four hundred vets and you say ok it is not there that is a one to one comparison now later on you might say alright well it's not in the first backup version is it in the second pack of version and once again you do a one to one comparison but you never say for the same file is it anywhere in here by looking by taking that value and comparing it against  of the same transaction that's why this language of the abstract is not entirely clear but when you go to the specification it makes it perfectly clear that the only time when hill ever makes a comparison whether you're talking about binary objects or b granules is one to one at any given time in a different transaction you may do the same thing but there is never a time in wakefield when you take an honorary object and compare it again invention would still never does that would heal never says here's a database of values let me see if it's somewhere in this database by checking in and so if the routing before you sit and reserve your your time place or about the motivation to combine piece of it and particular while the board said a couple of things that probably were not actually a legally correct inquiry i want you to focus for him for me for a minute on  explanation of here is a problem that somebody reading woodhill would have understood to be a problem namely several people might have access and therefore you might want to look for an a and what the patent office said is that well you might want to do it because multiple people can have access to the same file first of all that's wrong because what bill makes absolutely clear that the only person who can access a file from back a computer is somebody who put it there in the first place but even if you accepted the idea that from a technical standpoint that somehow somebody else might be able to get access to that same file the poured never goes on to say why you would use the skeptic solution for that there are plenty of ways to log in requirements many many ways of preventing somebody from obtaining unauthorized access and so simply rejecting personal web technical argument that would hill does only allows user who put a file on a backup database to get it back by rejecting that argument doesn't necessarily mean that there is a motivation to combine stepanek with woodville and that's what  not explained by the day western other question will probably have to give you back some time for your reply but is it i've thought about woodhill was that the system is automatically doing these backups on their own or doing the searches against backup files on its own is will also disclosing that the user can trigger the system to set time frame or the user can initiate a backup i think that when you want to resource or you have a crash on your computer and you want to research the work from the backup server to your own server for your own computer that's something that the user initiate and just finish my answer to one final question the reason why would kill can serve as the comparison of an identifier to a plurality anyway is because that was not the basis upon which the claim that was used as representative and that the board construed in its opening brief and this court personal of those disputes that claim construction but in its brief it never identifies what other claim it may be talking about i think in the submit that argument as weight in order to preserve an argument with respect to a different claim construction of a different claim the opening report out least have to identify which other claim personal web seeks to assert what about the fact that there is a say which claims are going to serve which issue right your statement of the issues and then they made a decision that they would let claim seventy go and they were many will assert other claims are or go on appeal on other claims it seems to me like that's an intelligent decision and wind that we should respect because if people make decisions and want to limit the issues to it make this kind of judgement so i would want to discourage that so i can look at the statement of issues and understand which claims are extent don't appear i refer the court to page fourteen of the board's opinion where the board construed the prior art and it's clear the board understood the prior art as respectable is essentially relying on the exact same technology that the claimed invention allies he caught my ear i had thought to tell me if i think maybe he just said the opposite that's what i thought that all of the claims that are actually on appeal twenty four thirty two and you want eighty two and eighty six any counsel for personal can correct me if i'm wrong but i believe some of the claims do not have the out least them so all liars so in that context the board construction of claim suddenly wouldn't carry wouldn't carry along but even to the extent that th qualifier would didn't exist again the board made a clear finding this was again at page fourteen of the record but the prior art is based on the same technology this cryptographic hash function which does depend on all of the data where the digital identifier changes if there's this in one minute because that wasn't even a point argued before so i'm not sure we should be talking about it and i don't withstand the time but well how about if i just ask you a question about it and then you know we can end it there your understanding that if but let's do a hypothetical were in an i p r someone files in a motion to amend and in the final written decision that motion to amend  granted and the amended claims are found patentable but the board at the same time in the final written decision finds other claims to be an patentable and then the patent owner appeals that adverse decision on an patentability for the other claims but during the pendency of that appeal the patent expires what is the p t o s position as to the status of those approved amended claims isn't it you the p t o s position that those amendments would have to be backed out and dissolve because now the patent is expired that is what our regulations require and so effectively compelled by the language to amend will have been illusory because there was an attempt to do it and then it was taken away this court's review though on review of the board's decision is whether it was reasonable for the board to use the are at the time and do a for the reasonable or so that determination a scorcher not one of the board no at the time at the time was there a reasonable opportunity to amend now the typical case most of our cases settle or about half of them settle many aren't appealed and of those that are appeal overwhelming the result within a year but there are the extraordinary cases that result in a re mandatory hearing on bond or supreme court this is my last question to you is is it the agency's view that the federal circuit and my hypothetical would also need to be using broadest reasonable interpretation of the claim at our level or would we be using philips now that we're looking at an expired at this court's function is strictly an appellate function so it should be reviewing the reasonable of the board's interpretation under b r i if there was a reasonable opportunity to amend at the time that the board made us decision but again we we don't have the court to consider that the board at the time that review beyond the expiration of the patent first of all that something or simply can't forsee and second we urge the court to consider the effect that may have on patente behavior typically an appeal is always wrapped up within a year but there are a number of avenues that at and t s can pursue in order to extend appeal again you know that doesn't matter if the claim construction standard isn't driven by the time for appeal but if this court and drops an absolute rule that you always use philips if the appeal extend extends people can seek extensions they can seek rehearing of the board decision decision was there a reasonable opportunity to amend to get amendments and have them entered with a reasonable time for an appeal rather than the absolute approach which may again encourage this kind of strategic behavior of extending these appeals  and again i'm very aware that some of this court's recent decision suggest such an approach that if the appeal in any way extends until the time of fires and you shift you'll still explain construction and again if this court uses philips the board really wants to use philips as well and we don't want our decisions reviewed under a different review standard rather than that you know how long can you extend the appeal approach we don't have the score to look was it reasonable at the time the board made that decision to use the b r i approach values contrary to what the person what was argued the board's finding for this limitation is in the paragraph starting at the bottom of page twenty one of the final incision and continuing on to page twenty two there the board makes the finding that would help disclos determination that the content based identifier for the particular data item corresponds to an entry in a database on the back of a file server and while the board does not use the word for audi there's no magic to do that work access to the binary object that the local workstation is looking to restore just compare the binary object identifier that was part of the request to the file servers mapping of a plurality of binary object identifie think i'm concerned that you're reading something in this section of the board's decision which is simply responding to personal website argument here as opposed to it's pr selective access and comparison and i'm here in paragraph on the bottom of page twenty one and going on to page twenty two they're really talking about this determination they don't they don't use the word comparison but terminations is  is these like to like i said paragraph or so column seventeen line forty one to forty six there we're talking about the the local workstation sending the update requests to the remote includes that binary object identification record fifty eight which dr goldberg had testified in which the warrant found contains the binary object identifier and dr goldberg found or had testified that this comparison to a quality of values that i was mentioning before unless the backup files are only has a single binary object which doesn't make much sense and it would necessarily be the case that when the request of the claims each of the independent claims that are appealed the language is a little bit different but i think conceptually it's the same again this determination of claim seventy well it doesn't work or ality certainly there's there's not a significant difference between the way that it was maybe less than perfectly clear where we can discern the path that the board took which i think we can from the final decision the decision should be affirmed can we go there of what is the ultimate combination it was it's hard regime or is it using whatever insights from wood hill into the stuff the regime i think with the board is all i got was this seeing that a combination of the teachings from the two references would have taught all of the limitations in the board's you and then it kind of ends right there and then says we are persuaded that all the claims are obvious what i think we see in the final written decision on page seventeen where it's talking about  it would have been obvious for one of ordinary skill in the art to address whether each user for each level computer was authorized to access a particular binary a particular binary object i think we can see in that paragraph we're discussing motivation behind with with the board is doing is taking is there have a concept of of selective access using so that abstract level there's this notion of selective access and stuff like that now specifically what is going to be changed to the woodhill backed up system that will back up system different from the way it already is so we can have is it a system i would where you have this authorization layer so that a particular user who didn't have access to another user's backup files wouldn't wouldn't have access to those files you can envision an instance where one way how does it operates this effectively so we could have an instance where different local workstations at one point had access to the same file  that is backed up on the back of a file server but over time permissions change for the one local workstation could make a change to a particular file and suddenly the other local workstation no longer has access to that  specific right and then you have to have some kind of ticket digital ticket in order to access that work there is certainly extensive discussion and static of that but i don't believe that that piece would be necessary to be imported into what we're talking about in and what hell or so i guess even with that combination how do you then get to the claimed top the claimed invention so we have to guess you have to rely on whatever column seventeen is in wood hill to be a comparison of a plurality of values correct that would help you you need us to interpret page twenty two of the board limitation about this selective access piece based on this comparison and we have the comparison from what hill in conjunction with the selective ask selective access aspect from static so you're just getting the  at least some portion of the file each of the claims at issue here does include language that the at least some of the reason i ask of i think i hope this is obvious that the reason i very clear to the board they said it numerous times in their patent owners response personal web for the first time it mentioned the philips sander but then in that same same submission said that the philips standard makes no o at the time responded well yes the philips energy supply but it makes no difference the first time that we see any mention whatsoever that philips makes a difference was in the motion for rehearing but even there they argue that it made a difference with respect to one of the identif er terms and for a reason that they're not even arguing here so we would submit that certainly they've waived any argument that they have at the philips standard makes a difference i mean we had we brief that but even if some reason they didn't wave and of i won't need all of that that a district court construing that same language under the phillips standard came up with a different construction than the patent office did under the b r i standards so i believe that it does make a difference and that regardless of whether makes a difference or not is something that should be decided by the some language in the us it did not wrestle with that correct it simply took the claim language on its face and said what is the construction and did not include the at least some language and the c s b taste i think was different correct if there are other questions on that let me jump back to this issue about the floor ality a values comparison and if we start with again at the abstract it's clear that what the abstract is talking about is the initial  also relying on claims that his column seventeen for the notion that in the restore environment it's comparing that binary object identifier to a series of binary object identifiers in order to call up the backup file that's correct there are two reasons first apple admits that the board did not reply in fact quote the board however did not go on these granular identifiers for the disclosure of this limitation the comparison against the plurality of the challenge open it back to one fifty it says program control then continues with step four fifty where this tributed storage manager program twenty four for each binary object compares the contents identifier this is a special identifier that is determined for the granules as opposed to the binary object identifier which the board discusses so that it compares the contents identifier of the next r the work area of the remote backup server twelve against the corresponding contents identifier calculated in step four forty four so again even with this granular procedure there is only ever a one to one comparison between identifiers i agree with you that once you have the backup file then you have all the little granules and the corresponding contents and five identifiers that's a one to one comparison but again what apple and the border focusing on are at lines forty to forty six right the the binary object identification record fifty eight and and you know they're then there and they need to do some interpretation but they're saying by using that which has the identifier inside of it you are getting access to the backup file you want to do the granular comparison and when you do that get that backup file you have to and you have a whole bunch of binary objects the systems keeps track of what binary object is changed by setting a bit and creating what's called a bit map with either a one or a zero that's the procedure described in five h and so when the  manager program reconstituting each previous version of the binary objects according to the techniques illustrated in the flow chart depicted in figure five eight so the binary object identification record is needed to re constitute the binary objects using the procedure in five h if you look at the procedure in five h where it talks about is check team the binary objects for that that set of a one to zero to see if it's changed because of the binary object was of which is about one megabyte as opposed to the granules were char one kill a bike if an entire binary object is not changed because the vet is set to zero as opposed to a one and there's one hundred binary objects you know you don't have to do anything those binary objects you only have to focus on the few binary objects were something has changed so soon in the binary object identification records playing from this language allows the system to simply make a determination of which binary object themselves you have to deal with and which ones you don't have to deal with there is never a comparison of binary objects made and certainly no honor i should have double check to make sure that they were included in total and my paralegal followed the normal procedure at my direction of just including the pages that were cited included but you're right and will make sure that happens in future  claims language that makes it absolutely clear you don't need to use all of the data that's correct and that is something that that is one of the reasons why we think that this case at the very least should go back to the board  determine what the proper claim construction is under philips with respect to at least claim thirty to the but our argument point construction really just boils down to the fact that we think this  patent office just like this court should apply philips once the patent is expire in fact requires another round of briefing so be it it's an unusual circumstance when a patent is going to expire well the board has jurisdiction it's even more unusual where it will happen where it passed will expire after a final written decision but during a motion for reconsideration but if it happens we think that the law is black letter philip should apply from that point forward and the we don't exclude here that it doesn't make a difference then it would be well to do that that's correct we think it does make a difference because of what the district court in another case we also think that this court doesn't have to get to that issue because we don't think that the combination of would hill and stephanie teach the key limitation of a patent comparing a content and the board could not have relied on woodville after pointing to stuff in its initiation decision and just answer another question that your honour's had the way i read the decision and i think it's perfectly fifteen of the decision and the rest of the decision was simply going through personal web nine arguments some of which related to adding step back to what it will and for some reason just addressing all of those arguments