the first two cases this morning fifteen minute before two and fifteen one three four three are combined we appreciate the partners cooperation in that regard and we will hear from mr countryman  was suppose for purposes of this question that i agreed with you that the board's claim construction was wrong not even necessarily because that sentence is a definition that because it very strongly informs the proper reading of the claim language nevertheless why didn't the board in fact make findings under the correct construction that we  support its ruling so there is one issue in particular in that regard your honor with respect to the asahi reference so asahi was the only reference there with use to invalidate dependent claim three and there the board made finding that under our construction that the images were recorded from slightly displaced positions supported but that would mean that that's that's the one piece that i'm i'm not sure that unless you get  did the board make findings to support the idea that it was provided a sense of depth for the entire scene and in that regard i think the problem was that the board really engaged in a one of three type analysis when the display element talks about displaying the mosaics and so our point would be that when the claim says displaying the mosaics it has to be referring to the same mosaics that were generated by the process all it says and displays them so as to provide a sense  the processing nation runs i don't agree with that your honor because the images themselves have to be able to provide that sense of that so all the display is doing it's taking the images that the processors are generated and it's just displaying  them so that they have a sense of depth but you still have to have images that are capable of being displayed capable of providing a sense of depth when they're displayed and the problem with this prior art is that it doesn't disclose images that are capable of providing that sense of board's description of how reflecting what it said was that it pointed to the need for adjustment in certain instances but that in other instances images created by the cow akita system would in fact which the camera was far away from the scene and so there wouldn't be any sense of depth to perceive because the objects would be self far away though when you're looking at the image well here's what i guess i'm remembering and i don't have it in front of me i thought roughly speaking there were three things collocated was describing one set of images for which nothing would need to be done and then it says and then there are two instances in which you might need to do something and i thought the distance one was one of the two things for which you might need to do something but that the first wouldn't get a sense of depth because the camera so far away from the images that there wouldn't be any depth to perceive so that was the problem my calculus same was why i don't need to adjust in that situation because there's no need to make the reference doesn't say what you just said i think it does your honor because it's talking about these two situations i think that it's chuck it's contrasting the situation in which the camera's relatively close and in that case it talks about the need to make the adjustments as opposed to the other situation in which you don't need to make the adjustments we would say it's implicit in the reference that that's talking about the situation with the cameras far away and sony's expert had admitted that there are these situations in which you have this degenerative sense of death because the camera's so far away that you can perceive any deaf and sunnies expert in particular talk about that situation just construction and that at least with respect to claim three the unsuspicious money would have to be set aside on the sly and even even on the slightly displaced your view even if we were to accept that as part of the clean hands direction your view then would be that the board could not read or apply slightly displaced to the helicopter motion where you know the hundred footers everything distance between shots is pretty slight compared to the distance to the object being photographed that's right your honor i would characterize it more as an issue of construction in the first i count seven but even in that instance you're talking about ok maybe something that's a little broader than the human eyes to the human eyes are about to happen inches apart in a stocking we're talking about distances when these images are being recorded from the helicopter that are you know tens or hundreds of feet apart and so you're talking about a three order of magnitude difference in our view that's not slightly displaced either under just the word marry sense of the words li or how it's used in this happened and the board's error was that it went to sunny's expert and just some of his extensive evidence to look and come up with a different definition of slightly displaced but as a legal matter the court and the slightly means that it's got to be in the context of this patent approximately the distance between the human eyes can only switch topic and some things about the jointer sure so do i understand  in your opposition to those you did not say these are untimely under three fifteen the and therefore they should not be instituted i couldn't find that and that what you did was exactly where it got to here by simply consolidating the proceedings consolidating them under three fifty three fifteen d never mind three fifteen see i don't understand why there is any need to gets the same place doesn't have well i consolidation isn't part of the exception to the one year bar so i think that's what i would say was the the board would be acting alter of the race if it would have tried to consolidate the proceedings institute the three to six in three to seven position is because i'd assume you only consolidate after you institute but right i'm taking as a premise now that the three to six and three to seven were instituted and we can't reverse that for a variety of reasons and review belittle the fact that you didn't oppose institutional right to six and three to seven so taking that as a given for purposes of this question why isn't left at a bottom line the board did here was to consolidate these two proceedings i realize it didn't talk in those terms it's not argued in those terms but i'm puzzled about why that isn't what the net result is here wholly apart from any implicit or explicit limitations through fifteen c about join would say that the court would be able to review that under its mandamus jurisdiction for many of the same reasons that we've explained here you know if you have i p r to positions that are clearly fall after the one year time bar there's no dispute about  that it would seem like the conditions for mandamus would be satisfied the right to the red would be clear and indisputable there would be no alternative remedies because of course there was a direct appeal of vailable and it would be appropriate in the circumstances because the board would just be all right that's right chief judge promised and i would say that this is the case then this would be appropriate what is the best that suggests that you're giving up on the appeal ability argument in light of the cittie it doesn't your honor we believe this is just like that is not i disagree or honor because the challenge here is not for the institution or the one you're bartz to join your statute and here we're making a generally applicable point about the joinder statute that you're not allowed to join claims that the join statute just permits a child to read are you different different than the one you are stating what makes that different because it goes to the boards power to act in the manner in which it did in this case decide that the board didn't have the power to join and then we mandate for the board to look at institution in light of again in light of the fact that it doesn't have the power to join these proceedings and there would ultimately be the poor argument statutory authorization for what the board did with respect to join or here if there were a different party could be different party be joined along with different claims no your honor because section three fifteen c only speaks to join your claims and can i think going through the answer to this but this is one of those fairly infrequent cases in which what will call the board in one or another proceeding arrived at a policy position through what might be considered a panel stacking you have a challenge that right under either a p a or statutory or due process grounds of the sort that were talked about  in the dissent an allopath right we've not in this case mainly because it wasn't presented in our case below but i would say when you're thinking about what kind of deference if any to give to the p t o i think it speaks to the fact that the court needs to look at the statute you know a stereoscopic image here what happened was the parties basically agreed on a construction the board made a determination in the institution decision that that construction was consistent with the ordinary proper construction here i may not be remembering the details i thought that there the gist of the disagreement here is that the board adopted a construction that would allow images to stereoscopic if they would not in fact be seen as having depth perception like human eyes like a human being with two eyes in the normal place but might be viewed that way whatever viewing means in this sen by a computer and that the gist of the argument on the other side is that both the sense that they want to call a definition but in any event the whole stack as a whole tells you in the context of this pattern assumption that it requires human depth perception and concluded that it was satisfied by one under some circumstances you would get it anyway in the prior reading of the package and secondly it's the broadest reasonable interpretation of that so here we have the board looking at the package specification and noting that the pattern itself says that the diameter of the viewing circle which is basically that the displacement of the two viewing positions can be a large for exaggerated stereo it doesn't place any limitation that it says  say as does mr countryman suggest could only be a large a little bit but but it also doesn't say it can be enlarged for purposes of to the ability to to spread the displacement between the photographic positions for exaggerated stereo and just of to round out what that means mr bart the photographer who testified as an exemplar of that challenge to the institution decision with respect to the second petitions there was a challenge to joining them with the first petitions on the basis that the director should not actually sizes discretion because they were  proceedings and so on there are these factors relating to the appropriateness look at me can i just ask him a good do you see any difference in between what the board ended up doing here and what the board would have time had it simply said we instigate we interpret three fifteen b the timing rule a particular way we now consolidate in my current working hypothesis that the consolidation for haitian allows the board to put together to proceeding this that it thinks are sufficiently closely related that they should be litigat by saying that it is what is really being reviewed here is the final written decision as to claims that were not in the proceeding until they were until the second petitions were instituted and they were the person i was talking to just very basic is the d that party yes your honor to both questions on the first question it says may join as a party any person who properly files a petition and well join as a party would suggest ordinarily that it's party joinder that's allowed but it does the statute goes on to evaluate and tells the director to evaluate the propriety of the petition that's filed look at it and decide whether or not it's something that could be instituted and if so the director can join the proceedings and so it's can i just i'm i'm trying to i think and maybe beginning to understand this it seems to me and tell me why this is wrong that three fifteen c is about joinder of parties to pick instituted review number one with ou instituting review number two because if you instituted review number two it be no role for the joinder to join to provision everything to be consolidated so the only function of three fifteen c is to our a part it would all just be consolidating two perfectly properly instituted proceedings i think the three fifteen is a little bit circular and that he says only if you consider only if you join wonders for a fifteen c in three fifteen she says you look you can  institution right but it says that what it's the purpose of fifteen c is to let someone who is otherwise time are under three fifteen get into the proceedings and the director looks at that petition decides whether or not it's institute of all and although as opposed to simply joining sone to the three eighteen and two to eighteen to nineteen the the jointer of the institution of the second petition allowed sunny to bring forward different arguments against the same patent into the same into the single proceeding that moves forward so the pattern owner has all of the challenges that all parties have against its patent resolved in the single proceeding and the reason that that we think that sony can join into its own proceedings because the statute just says any person who properly files a petition and the way we read it that allows other parties in the way that senator kyl in the legislative history says it allows other parties to bring in new issues judge panels that result after the director of the or his or her delegate decides she doesn't like the result of the original right so the director has delegated the authority to decide institution decisions to the board and in you get to your own is really a question about alice had it's especially appropriate in this situation that the director be able to make sure that her policy judgments are enforced by the board so that it's particularly and none of these decisions has been a presidential at this point you know of because i don't at this point know of any other individual adjudicatory multi member panel or decisions outside the given the sheer number of permutations of three judge panel opinions that congress meant to delegate to each one of those the ability to interpret its statutes and particularly send how the director is supposed to speak with with with one voice but only through a delegation of you know initial decision making authority to any number of possible three member panels of a p j's none of whose decisions is binding on on anybody else without notice and comment rule making or any other formal process that's a little it may be several different should apply and we think that the agency is doing its very best to use to speak with one voice and there's really only one outlier decision the skyhawk decision and there are over twenty decisions involving jointer within any time there has been a seeming other outlier you've engaged the power to reconfigure the panel so as to get the result you want yes or no the and you don't see a problem with that you're out of it the director a somewhat complicated process where the board holds a vote and it has to if someone has to bring it to the board's attention it can be the board itself or someone from the outside requests that a decision a presidential  which presidential yes you are and that's that's serious that's a complicated process and that the majority of the judges have to vote to put to make the decision presidential and the chief administrative patent judge has decides whether or not to forward the decision to the director and the director is the ultimate authority to decide whether a decision is made presidential and i so i think i'm somewhat cumbersome it if it does seem somewhat cumbersome quite late in the absence of a presidential opinion and if a board comes up to exercise its authority to try to bring that panel's decision in line with the agency's view can i ask you one other question i think i know the answer this is about three fifteen he has the director or any board panels this is has infringement of the patent was more than a year ago yes you're on a good three fifteen b says the that goes to the entire happen and so if any find in the patent has been asserted and these are the director and or panels one way or the other is required that affects the entire patent rather than claim likely and so under that view the fact that in the delaware litigation filed by yes i'm there was no identification of simply out of time well under the first sentence your honor is correct that the petitions were barred but the second sentence takes that away when a jointer decision is made so it says the bargain longer applies when i join your decision is made only thing that sony pointed to was the one sentence in the specification that reese burst to exaggerated stereo but that in the context of the rest of this path is just talking about exaggerated and  being a little bit larger than the space of the human eyes so there's nothing in the past that would suggest that they could it could be many orders of magnitude larger than the human eyes and so therefore the court should opt our construction on that point so i would say if you have a robot where you've got a camera on the robot and you know an operator is operating the robot but wants to see wants to look at what the camera is displaying so you can think of the mars rover for example th robot with single camera to is is doing this and getting depth perception i would say that in the context of the rest of the hand that's plausible because the rest of the pattern is all talking about human vision think you concede that you didn't challenge the institution itself or you didn't challenge as you can you can see i think that someplace that you that they could have consolidated them then it i ours so if the boards basis for instituting the ip are supposed to say oh we have authority under this joint or provision if this court disagrees with the interpretation of the jointer provision i would have to send it back to the agency to read and decide the institution question under the or both that says the institution decision fixes exactly those claims that will be and can be the subject of the final written this is i don't know that off the top of my head my guess would be looking at the statute you know these petitions