server that is autonomously managing consumer device assets over wireless networks by making beneficial modifications to those assets the server accomplishes ineffectually sits managing by choosing the particular wireless management instructions to send that will cause these desired asset modifications to occur here in the quaint embodiment the server and michelin receives consumer usage information from a device asset which informs the server about the manner in which the consumer has preferred to use the asset and then based on what it learns from processing the received consumer usage information the server is able to autonomously make decisions about what helpful modifications it can make to the asset and what  and fifty eight patent the claim elements explicitly require that the servers managing needs to be based upon the results of its processing of the received consumer usage information and other words the server's managing needs to be managing by sending communications so how do you respond to that where it's not saying it seems that the managing is by sending the results of consumer usage information well the managing is occurring by virtue of the management instructions obviously they need to be sent in a transmission to the device asset but the key to accomplishing the managing is not merely the sending of the transmission but rather the server's choice of what management instructions to include within that transmission but let me ask you a different question i can see your position with the three hundred and fifty nine patent claims there the plain language of the claim seem to support your position more management instructions that cause the store data content more construct one concern i have i don't see that same kind of claim language in the patent that's one concern and the other concern i have is let's say i agree with you for the set forth in the petition and which we largely agree with certainly you point to the three hundred and fifty nine patent where the language is the most expression of all but it's equally true that in the three hundred and fifty eight dollars patent if the managing itself has to be substantively predicated on the processing there's no way that that could occur unless the management instructions which are the sole way through which the managing is effectuated also would need to be based upon the process we haven't disagreed with that but if the court feels that the that the individual patents have a different scope and wants to treat them differently then obviously the court has the prerogative and indeed the duty to do that but i don't know i don't see any sort of waiver of a helpful instructive and vice versa and certainly you know we haven't talked about the seven patent but there again it uses communicate language yes but the question is what is it that needs to be communicated and what needs to be communicated is the particular management instructions themselves if the choice of what management instructions to communicate that needs to be based on the processing it's not merely  sending of a transmission that could contain management structure ins completely unrelated to the processing and that would result in modifications to the asset that were completely unrelated to the processing that this is understand to be your position i mean that's right you're bringing stuff that's what i understand to be that language i'm looking at to see whether you have different we've been argument that these claims have different meaning i have we have taken  scope and should be interpreted the same way if a court disagrees with that you are welcome to pick and choose which track and surviving which which don't but clearly we believe that all of them should survive and all of them survive piking read together and on the same basis now in contrast to the management structure as needing to be based upon the results of the processing of the consumer usage information the board the board's erroneous construction is that the management instructions claim elements is merely the server's determination to send a transmission that would need to be based on the processing of consumer usage information so the board is reading the claims management structure in some cells as being can be completely unrelated in any respect to the service processing of consumer usage information and thus that the modifications they would cause to the assets can be completely unrelated to the service processing and that's exactly how the board read the claims on clothes now amazon's trying to say that this erroneous construction is an obligatory plain language reading of the claim language despite the fact an amazon itself is construed the claims of requiring the exact opposite at all previous times and agreed with our construction nowhere do claim state in plain language or otherwise that the service determination merely to send  transmission is what is based on its processing of consumer usage information rather the claims explicitly state that the servers managing is what needs to be so based that which true that the server manages by way of management instructions that are transmitted but the key to accomplishing the recited type of managing is not merely the service determination to send a transmission but rather its decision about what particular management structures would need to be included within the transmission so as to bring about the desired asset modifications what amazon now admits is that the board's erroneous construction acquaints to a trigger interpretation of the quantum language in other words the board's construction allows that so long as the server's managing causally triggered by its processing of consumer usage information that's good enough and there's no need for the nature nature or content of the managing to be related in any way to the processing point to the contrary what the claim language in the plain language says is that the servers managing must be substantively predicated on the outcome of the process and it must be quote based upon the results of the processing so ensure  cite three cases primarily i think and america but in none of these cases did the board provide an opportunity for additional briefing indeed in each case this court to the board to give the parties an opportunity to respond here before you get to us you've already had an opportunity to have briefing on this claim because chuck can issue and present your position to the board so  what is your claim for relief now that you've already received the relief that would be available to you under the save an americana well i'm going to argue later and recall that the correct remedy here is reversal for other reasons but with respect to remit on the a p a the board the fact of the a b a violations were committed is clear from the briefing the question comes down to deport somehow remedy it and so that we don't deserve another chance we w sufficient amount of argument that it would have had to allow argument to be supported by expert testimony which it expressively forbid the board does not return the parties to where they were it shifted the burden of proof to the patent owner to h disprove the board's erroneous construction and it only allowed a seven page brief forbidding expert testimony to be submitted in support of the positions so clearly the the board didn't do anywhere near enough to correct patent is straightforward and it indicates that the servers communication of management instructions or in the case of the thirty five a patent the servers managing by sending communications containing management instructions be based on the results of having processed some of this received consumer usage information we also understand the three hundred and fifty nine claim language to be consistent with this interpretation and as the court noted into his conceded that all three sets of claims have a similar claim scope in the three  patent the claims were cited that the transmitters are configured to send communications containing management struction based on the results of processing some of this consumer usage information so we do think that that's a consistent plain language interpretation with the other two patent to the extent there is ambiguity though we know that we looked at the specification as the board did here and the specification as the board noted identifies a number of examples two that the board discussed in detail where the specification describes management instructions that are sent based on processing consumer usage information but whose content is not described as being based on the received consumer usage information the board discussed the security example in column for c of the patent language when you went through the plane plainly bridge and that bothers me is the claim actually says sending containing management instructions and you said management automatically modified based upon the result doesn't say the communications are based upon the result it says a management instruction that causes store data content files or morning more assets to be automatically modified based upon the results how can you say that based upon the results doesn't modify the management instruction yes your honor it's because that the interim clause that i did omit just for brevity i suppose more than anything else qualifies management structure and that's in all of the different claims management instructions is already defined to have a characteristic in each of these claims i can and management instructions have two characteristics i mean that's normal english usage of language things  specification and there we see that there are not examples that in turn has been able to cite where the management instructions are generated or are the determination to include management instructions in this transmission is made based on the received consumer usage information the single portion of the detailed description that m two m cites the pulldown menu embodiment it doesn't describe management instructions explicitly at all into emitted this to the board at appendix twenty nine  seventy one cents describes a communications at all it is not your honor and to make him to make inferences that may or may not be true and there is no record support for those inferences but the specification does not describe them but the specification does describe as a board noted are a number of examples where the management instructions are sent are are triggered we do use that shorthand based on the processing of this consumer usage information we have that security upon receiving that simple message do you starve or create a complex data message that causes a video recorder to record a specific program there's no description in the specification of how the server generates that complex data message  there's no description of that complex data message including content or including instructions that are specifically selected based on the received simple message which could be  well the issue of enablement was not an issue that the board considered your honor but the issue here that the board was considering was what does the specification described as being management instructions ok and it did look at a number of examples of based on receiving consumer usage information and processing that consumer usage information but where the management structures are not described as the substantively based on that received consumer usage information and again and to and has not been able to point to anything in the specification to the contrary automatically modified amazon actually proposed the construction below that that defined management instructions as being commands for a device to perform particular actions and to m argued that no construction was necessary for the term management must but it seems to me that it wouldn't make any sense to have a system where you know there are certain things going on and the act of communicating is triggered to receiving certain information and and yes the management instructions are unrelated to that it's like there are two separate things going on at the same time and they are not connected with one one of my missing seems most likely that it is simply an alert that the server is configured to interpret a received phone message as being an alert and in response to that the server has previously configured to lock down all doors in an area or to disable functionality of devices in an area there are implementations where this makes sense but but more fundamentally your honor the the claim simply do not restrict the management instructions or the sending of management structures in this way there is construction is incorrect we have argued that that as the board noted substantial evidence still supports a finding of obviousness of his disclosure even on that alternative claim construction close as a club but teaches that the contents of this one down transmission which includes what m two m concedes are management struction zs delta instructions that that content is selected based on all of the received content in the one up transmission and that includes what to him concedes are consumer use that information to the board rejected him to his argument and in doing does not appeal this finding that the delta instructions are not created or transmitted as part of a separate process from the rest of the synchronization information it is all one synchronization process it's all one transmission sent down from the server to the device and that transmission is compiled and sent based on processing everything that's received from the device in that one of transmission and so the board finding that even under m two m's claims instruction the close but prior art reference disclosed this limitation that is supported by substantial evidence and we do maintained as an alternative basis for the board found that in turn had notice based on amazon's treatment of the communicate terms in the petition and at the very least this issue was front and center during oral argument were both and two and amazon were questioned by the board regarding this claim construction two arguments really as to why this was not sufficient process under the a p a st into argues that the board improperly shifted the burden of proof that was incorrect the board said that the burden of modifying the final written decision was on the and then i considered him to as expensive evidence the board performed a full and fair claim construction analysis that did not shift the burden of proof to him to him it simply noted that the burden of modifying the final written decision was on the challenger of that decision and him argues also that expert testimony or additional pages would have been required to fulfill the obligations but into i never asked for expert testimony and it never asked for more pages and  it's briefing it at page forty seven of the opening brief admits that here the intrinsic record fully governs the proper construction of a term there was no technological language in the claim the claim terms being construed that the board would have required expert testimony on and again when m two m did not seek expert testimony or additional pages it cannot be heard to now argue that that the lack of this was defacto a violation of  allowed him to m to use any supporting expert testimony that is not remedying the a p a violation that's not putting the parties back into a fair position i'm very surprised amazon w neither of the two specifications that the board relied on even relate to consumer usage information at all they're not even relevant in body image to the court's construction and secondly it's clear there that the management instructions would need to be based on the information that the server had received if you have a security alarm and someone's asking the server to shut down particular doors and devices within the building and the server sends a management structure and shut down those particular doors it wouldn't have known to do that unless it had based the instruction on the information it received and with the v c r machine someone's requesting the server to record a particular television program and the board in the serv instruction telling the v c r to record a particular program it wouldn't have known what program to tell the v c r to record unless it had based that instruction on the information it had received with respect to i is very important point i think the proper remedy here is outright reversal and that's because the board went on and made an alternative obviousness finding under m two m's correct claim construction by the way the same construction board very clearly said here what needs to be proved is that the don't get instructions in clothes that the server is deciding to send those in including include those particular instructions in the transmission based on its process amazon's examples of consumer usage information the figure twelve and figure seventeen consumer usage information that's what needs to be proven but at appendix eighty nine you'll see that the only two specifications passages cited  support of that proposition eighty seven tonight seen in twenty one through twenty one completely irrelevant and unrelated to proving that proposition that's the only evidence the board cited in support of that conclusion not only is it not substantial evidence it's not any evidence at all and therefore the board made a conclusion under the correct claim construction which is unsupported by substantial evidence that