key for us here is to understand first what is the invention that mr katz has been working towards or what he describes and that really is a what i'll call a multi dimensional call processing system it's based on a very intelligent system that's triggered by a computer programs to provide scripts that can either be automated automatically played to a caller or you can be provided to an operator to relay to a caller so that call transactions can be made p s n tony i think we're familiar with the facsimile from new with the invention so let me try to get to the crux of some of the issues here and the first question i have is what wh it not obvious to utilize the advent vantages the d n i asked technology shown in the b c t eighty six in combination with partner thank you very much your honor so glad we're cutting to the chase but i think to start with we have to look at what is required here by the board in terms of substantial evidence there's not actually been a description of any advantage that would be gained by having venus incorporated into a partner there have been conjecture that was being made by the board in terms of it would be advantageous but a specific advantage in terms of what you would gain incorporating a complex venous system such as in the c t into a barge or system that already has solve own problem it has that's not that's not quite the question i thought that somebody who hadn't built something yet i take it that the government is saying it's perfectly obvious you either spend a bunch of money on a lot of physical lines or you use a single line with address things with a d and i asked is that the basic choice that's not for somebody who already has an in place fully built part your system but somebody who is thinking about building something and looking at barger and knowing about the n i s and saying i don't need to have twenty lines coming into my into my computer well your honor i think i take a step back first to try to put us in the context of what it is that we're looking at here we're looking at inventions that were developed over thirty over twenty five years ago and looking at references that are over thirty years old so it would be easy today to sit back and say it would be obvious to take this piece from v c to me this functionality of the mess and substitute it in for a number of different lines but the question would be at the time what would be the advantage that a prior of a person of ordinary skill in the art add that time would see in taking a unified b r you system such as  does it's it's it's an alternative way of rallying call that either you can have multiple telephone lines receiving multiple different numbers of calls or you can have a single like a t v online routed electronically using the d n i as identifier and it seems to me that the c t eighty six reference alludes to the fact that the using the d n i has allows you to take advantage of low cost high volume services such as t one and mega com as i would d l i asked does it allows you to use sort of  a big boss and have one one line coming in and then having everything routed electronically did isn't the arrangement the c t s set up has allowed it to provide a choice between dealing with operators and an automated system and allows it to handle a large number of calls that's correct that's where the c t e discourse is made it seems to me the analogy here in terms of this obviousness question is just on something fairly simple that if you wanted to hang something on a wall you could use glue and nails that would be a permanent hanging on the wall but if you decided well wait a second it might be advantageous for you to be able to remove that at some point so i'm going to use screws why because screws have the advantage of being removable and it's just a matter of design choice if you will and and you don't need a reference that explains well the screw is a hillock old thing and it comes in goes out can you don't need a teaching to that extent because it's it's it's apparent that's what it is and the same thing here is d n i as does what it does it allows you to take a single line and route electronically using addresses as an alternative if you will to having multiple lines mind looking at welch the wrong way i think i understand your honour's perspective as it relates to the functionality that the as performs i would say that the question becomes over time using your analogy about the fasteners how understandable is it that they solve the same problem and they do it in a way that is advantageous and i think that the question becomes is the what the board has proposed and with the examiner has proposed and what the patent office has argued sufficient to show that there was some reason either it explicit or  what your difference you know you say that barger is in a different format because of that and so i was looking at excluded so to just as a clarification point the eight six three and the two eight five patents deal with the operators and there are different matters in the two eight sized patent the operator is disclosed as actually performing a format they have a scripted scenario that they provide to a customer in the eighty six story every reference to the term format has to do with the automated moment that's describ in the in the six three when you go off to an operator there's nothing in the eight six three that suggests that going off to a format so it's completely consistent in terms of being able to go off to an operator in the eight six three and have a spontaneous conversation but i think more important and still the eight six three discloses a format because it all deals in the automated mode i think we've in some regards gone a little bit off course with the use of the term is is there a spontaneous conversation allowed or is this thing automated i think the focus really needs to be on the construction of the term format itself and you are the ones who steered the course i'm i'm sorry that we did i think that what we really need to think about is the definition of the term format and it refers to there being a call processing flow called flow that's implemented by a computer program the call processing plough flow implemented by a computer program means it's automated the computer program brings to brings to the fore it automation the call processing flow which has prompts and pre recorded messages means that there have to be a conveyance of information by way of these points and pre recorded messages there might be some spontaneous conversation that goes on in addition there's going to have to be you know but but your honor excuse me i'm sorry i didn't mean to interrupt no no but the  is that what that conveyance for there be there to be a call flow there must be what amounts to be a script it can't just be left open to the operator to solicit information in their own manner that is what we were trying to convey by reference to spontaneous conversation of course the operator might say hello or i hope you're having a wonderful day but what you are what's critical for the format to be performed is that the operator be told to ask a specific question can i please have your social security number so i please have your account number i knew or here you're making now no it's not honor it's consistent with your arguments that we've made all along about the focus having to be on what is a format and the format is being defined by the call flow and being supported by the covered yes we did your honor i know that the patent office has suggested that we weighed that argument citations to where it is that we made that argument in our own reply brief and this matter i know  no i saw them i it wasn't clear to me that you actually had made that argument is that what's what's the best place where you said to the board in thinking about whether there are the the t formats here exclude the kind of operator i think the clearest statement would be in their reply brief that was submitted to the board at fourteen sixty five where there is just a a flat out communicated to the board that such automation as may or may not exist in the operator situation was not enough that is the didn't say there is no automation in the operator situation it just said in this kind of very generic way a requirement that the claim about automated formats is not present well well i see i'm moving in to some time that i have reserved but let me just try to quickly answer i mean i understand that it might be nicer to have had a more detailed fulsome discussion that lays out in a detailed fashion as i'd be prepared to talk about why the operator mode isn't an automated mode but i think it's sufficient to have indicated that we had put in play with the notion of there being a determinative factor around format and that we were required to find automated modes that were not in barger and in addition i would just say that in parallel with the reexamination proceedings we had ongoing litigation in which this very term was in dispute and as soon as this court affirmed the decision about what the format men we put that issue in a request for a hearing before the board specifically and the board addressed that issue and didn't waived when at the very same time the board did beam other arguments had been waived and so i think that's a suggestion that the board never considered that argument way that the board saw that that was an argument that was that was propounded perhaps it could have been propounded a little bit more clearly but i think the board never considered it weighed even though they thought that other arguments had and that unless there are other questions i'd like to reserve the rest of my time for a bottle you don't have time for twenty five thank you very much court and made a different playing construction argument he always made the argument in the context of a larger limitation you could look at the rehearing requests and never once said and under this definition a live operator mode is not a format i certainly couldn't find that  board might have done some explanation as to why bars are live up or operating models a format that's going to be transposition from the outset but there was never you know there was ever an argument that we're seeing now in the blue brief for the first time spontaneous conversation and the to be some eleven thirty seven case i did appear and eleven thirty eight but the scooter spontaneously conversation and the support that he gets into the plural of prompts and message is provided but i almost reluctant to make this waiver argument because i think this live operator mode argument is very weak in the first place for the very reasons that my colleague states it is the the very live operator format in the two eighty five pattern as he says and he says that briggs early in the reply brief on page seven is this idea i guess of a scripted conversation for the operator to listen information from the caller and that's exactly what the barber patent does the barber patent risk putatively describes the live operator as being under control of the processor it describes the call process flow which involves a lot of operator and i've got to reproduce on page twelve of my brief that call court in that decision that quote the large definition of format actually rule on the correctness of that or just assume that because nobody had challenge when i read it i see it as the latter and i agree with you i'm not sure what the significance of that is another point about that definition is it was in the context only of a written description issue as to the one twenty patent which doesn't even involve live operators so i think there's a fair question whether what applied to  five and the one twenty doesn't have some of that specification material that actually talks about operator for maps is that right correct it doesn't and and so that's interesting you know he can come back and say well the district court was looking at a whole bunch of patterns occluded to eight this is a repetition of the caps there are a number of other limitations i think of recovers them all i don't think they haven't really been discussed with opposing counsel yet so i hesitate to open any cans of worms here but i dial number identification signals instead of multiple lines that the boards to say that at any that he would have thought of that without saying something or did it say anything including the passage in what is it well the basis for that conclusion is there are almost identical systems in other words d c t incoming calls and either give them the machine to process or getting done alive operator to process margaret's incoming calls we were given a machine isn't alive operator b suggesting technology d n i to make it work even better as you suggested there's only one line coming in with digital signals as opposed to multiple lines which are somehow distinguished by barbour and i lost my train of thought bob barker and b c d are essentially the same things and saying that the two techniques are essentially alternative arrangements and it's a matter of design choice it would yes it would only be if somebody was not even aware of the n i s that they wouldn't think to use that naturally in a system like gardner and the city is almost exactly like ours are so that each of the use of d n i as in that system to distinguish the kind of call is there anything in the record i know there was a declaration submitted i believe by mr klein that is there anything that suggests that no no no it wouldn't have been obvious to to use a d n i asked because that presents this obstacle or that hurdle or no hurdle sir there are these reference of the extra cost in other words as  it's my adversary was saying if you were looking at burger from they were one would necessarily want to rip up those lines and place at the end i ask him as a service charge on the ice but there's no technical obstacle specially for designing something from scratch i think in the context of considering a one zero three rejection obviousness rejection we're not talking about sort of deconstructing an existing reference in order to reconstruct it we're talking about teachings and suggestions  the argument that they're making and we're resisting it because we think it's really a question would you start from scratch you know you have to send some balls an operator some time issue little use so i can use separate lines or make pagers a service the n i s using b c d that does the same thing and then you'll build the record company behind that no further questions that the red brick does go through all the different limitations that are argued in both cases if there's any interest in them modified automatic format eleven thirty eight if not answers for that but i think it's all quite clearly in the r sets forth what and what an operator's interactions would be a barter it admittedly indicates that there is a computer program there every time that barbara refers to what the operators i choose will be it talks about the computer program asking the operator for things not asking questions not presenting pre recorded messages not providing a script a format is something more than it's something more than a computer program it's the definition it is that we have there with the called call flow that's implemented by a computer program that sets forth the steps the sequence and the pre recorded messages that are going to be conveyed during the course of the transaction bars out of or whatever but what if you say that the computer does in communicating with the operator and partner in the in the off i'm sorry what i was talking about to me operator yes the automated mode yes and the id operator mode the operator interacts with the caller and the computer in the case at all and in the specification all the barter indicators that the want something and so the operator says i think they are very different from are given what cats was trying to accomplish pacifically which is if you look at the two eight five pattern where you're talking about having a multi port processor that has multiple  formats on a given operator could be responsible for handling multiple diverse formats and as a consequence having a very specific script about what you want the operator to say is important in the barter system there is no description other than the sense of trying to convey some music to somebody who's a customer and making a purchase there's no other description in there that would tell you what the specifics of the interaction ought to be and no definition to the operator of what to say there's a script to say ask him if he wants to buy this it could be a scripted if i said if the computer says does he want to buy that yes or no it's a different it's a different computer says does he want to do it if the computer says ask the person  it doesn't mean that it necessarily imply when you say does he want to buy this that the operator needs to find out in which case and barger the operator could engage in some sort of conversation without specifically asking the particular question yes but having a format that asks a specific question is what it is that it was we're really driving at with the call processing for those  i guess so i just wanted to touch on the automated mode we haven't talked about the automated mode and the differences that exist between the second and the third mode i have about twenty seconds are  point there i'd like to emphasize is there isn't there is a unity of description of the second and third modes the only difference the only difference referred to in the specification has to do with the hardware that's used to access those