you have a motion the like i do i move to the admission of i'm only a chair and was a member of the bar it is in good standing with the highest court in california i have knowledge of her credentials and i'm satisfied that she possesses the necessary qualifications i'm particularly pleased to make this motion today because emily has served as my walker for over the past year she has been an excellent walker she has been consistently thoughtful driven and determined she's been tremendously helpful and all aspects of our chambers in port operation and i'm very happy to have have her in chambers am confident that based on her experience with me she will serve admirably as a member of the bar well with all that sounds like admission to the bar is not enough to judge clement or how do you feel about this speak up just a little bit thank you sir your honor we say the principal issue in this appeal is one of claim construction which is reviewed to novolin pertains to what is a select code is recited in claims nine of the four forty five patent and claim fifteen of the one ninety nine but i'd like to explain is that the single select code must accomplish for functions for functions are permits tracking of the discount vehicle or  coupon permits tracking of the individual purchasers to purchase products and the prices and uniquely identifies all the discounts of the discounted beautiful and forth uniquely identifies the vehicle again vehicle meaning the means as in a coupon there can be many codes but her here is that there must be a single select code you agree there could be other high insurance sure there can be all sorts of other that you know a customer id a date an expiration or whatever it makes no difference but there must be a single select code that does those for functions i can see your argument more  but our contention is a claim fifteen as well refers to a select code as supported by the spec and as it's used and in addition if and consisting comprising being open ended consisting not however later court cases as involved in graphic and especially harare vs lee kept on going and looked at the law and said when the claim and the specifications include specific discussion of that one can mean exactly one or just a single one that even in the context of an in fact the board found as fact in the final written decisions the both nick berger and ovadia required and relied on multiple codes to teach the four distinct functions of our single select code where the board erred as i believe in the comprising argument that was brought up to a spontaneous had never been brought up during any of the othe just at the right that's where the rubber hits the road but the board also agreed that nick berg or a nobody are required multiple codes at least to do those four distinct functions and that was again in the final written decisions that said that the claim does not preclude the presence of other codes such as nick burgers magnetic strip of the code on a customer special card and  the multiple codes to do those those for functions so they don't have a single code on any of the instruments they're conveys for and as i say i think the board recognize that fact but sort of went astray in use the comprising argument against response a to say that it is ok to have multiple codes and read out the specific limitations that we require one code to do th during the checkout process and that's not a field of use argument and i guess to put this in context back in the late ninety's in the early two thousand fraud it was a problem with couponing in the sense  of i take my like trying to coupon i come up to the checkout register i use my coupon i get my discount i can walk out the door and i can turn around and come right back in and use it again and that was talking earlier that was referred to as reusing a coupon and so what is meant in the preamble is that all of these four functions must occur during that tracking and processing of the coupons during checkout process in fact in the specification and let me read through a short quote it is yet another object to the present invention to provide an integrated promotion system that of voids retailer in store post redemption processing of coupons which says i can't wait till later to process it because in that example a person could use a coupon come back in and use it again lee get in an extra discount and so the during the checkout process in the preamble of both claims says all of these four functions must occur during that checkout process board if i understand correctly antecedent basis with fact your honor you're absolutely correct i mean we're we're not relying on the honesty even basis as much as describing during the checkout process for the tracking and processing but i agree i mean if if the board would allow actual amendments of claimed i would i would fix that please the court stephen king aired the billies i to begin with the exactly one select code is like code requirement and i would point out firstly this is a new argument raised in their repl the they now concede in their reply brief that the claim permits multiple codes as long as there is one selector but it's the presence of multiple codes not multiple select codes to which the board the holding was directed and by the way that was not a new ground of rejection we made the argument that the claim permits multiple codes and they were just identified textual basis in the claim for that they are now trying to  switch horses in the reply brief and say that the board failed to make the findings that the putative select code in nick berger and of adia performs all the functions of the code and that is just simply not true your honor the board in great detail in this is that appendix twenty to twenty two twenty seven to thirty nine hundred ninety six and one zero two one  four step through detail claim charts for a single select code and showed that it had all the enumerated capabilities and they said  for the for the discounts and allowance which the tracking and reading uniquely identifies the vehicle and it uniquely identifies either the individual discounts or the common discount it has all the claims and the key is nowhere in their brief certainly not in their opening brief do they ever address these findings do they ever show they're not supported by substantial evidence they make arguments about right maybe i'm wrong and my hearing is totally failing about i heard that  mark they don't address the specific embody imminence in both nick berger and ovadia that the board that to claim limitations in painstaking detail so they're just off the mark and those and twenty eight the brochure thirty describes the select code as barcoding this year which identifies in machine readable code the brochure title which is readable by the system and it goes on to say that i when it's combined with the user so he can be he can have a standardized vehicle and say this is just the brochure title but when in the embodiment in forty two is also contains the user information that they have not appealed the board's rulings that the other claims like written descriptions in the board properly  that the claim preamble is not limiting and also alternatively that it is irrelevant to enter a subpoena and the preamble merely states in intended use for the claim discount vehicle and you can see that the language in which they rely which is quote tracking and processing unquote discounts quote during the checkout process unquote actually modifies the unclaimed data processing system not the discount vehicle so we can't state more than an intended use moreover the preamble does not recite any essential structure of capabilities of the code that are not in the body the body states a complete invention and it does not refer processing discounts during the checkout process to apply to to refer to applying the discounts during checkout not to selective deactivation and that and that's specifications support for that as well i would also add that the claim language forbids a m s is interpretation the claim uses the parallel phrase during checkout to modify when talking in relation to reading  tracking the vehicle in the purchases because there it serves a clear purpose because you have the code has to supply the information so that the discounts can be applied during check out and it must be in a format  checkout skinner but it omits that during checkout language from the selective the activation clause because it would make no sense there that cleland cluster is just  stating a capability of we're very barcode and what can be just a paper vehicle and all that capability is uniquely identifying the vehicle quote so that said select code can be selectively be activated as in saving about the activated during checkout and would make no sense because the deactivation of the discount for future transactions has nothing to do with the present checkout process if they say this has to  i'm just saying wouldn't make any sense because also a capability of identifying the the vehicle doesn't really have any effect or bearing on the timing of when the unclaimed computer deactivates the promotion specification also makes this very clear appendix six twenty one seven a column seven eighteen to twenty one says the checkout is completed to provide by providing the customer the discounts found on the vehicle and storing the data collected during the scanning up to nothing about selected the activation it goes on a column ten twenty to twenty four to say once the vehicle is scanned the discount supplied the computer may claim is a hoax of the broader reasonable interpretation means of the board properly rejected m s s interpretation of the preamble as limiting my colleague did not address the  is irrelevant because it invalidated two prongs of the board's former test but the but did not invalidate the problem that the board relied on here the financially major problem and these are quintessential technological development it's all conventional barcode scanners and generic computer existing software it's not a technical solution to a technical problem and simply facilitating a business of overcoming the problems with individual coupons in the physical handling of them by using a general computer does not suffice so unless the court has any more questions and jurisdiction  after all of our briefs had been submitted and back in the kind of timeframe the board was well in light of those two cases these will think you want to make your argument my argument is that the counsel just brought up is that there are four means after check out and you never briefs and so forth thereafter just means i can not do a selective deactivation until after the discount as been a nick berger or of do this the selective deactivation during the checkout and again that goes back to the preamble of all the four steps as outlined in the claims must happen during checkout so to to review the select code in again i guess back to what is in a select code talk about four distinct functions i go back to the board and it in it code parameters correct but in the final written this america rushed to decide whether substantial evidence supports what the board set up already a teacher or agreed but in the final written decisions the board i believe changed change think that we think