actual reduction to practice looks at the line between drawings and descriptions on the one hand and actual working system on the other and this case the inventors created an actual working system created in r t l code that worked to process graphics and it was a graphics processing system the r t l code included all of the elements are cited in the claims of the patents below l g did not dispute this issue and accordingly the board did not identify is there evidence in the record then a memory device can be construed as software as a closer for the specification of the zero five three pattern describes the memory device in functional terms it has to be able to store and organize command threads and indeed there is no reason that it t l code and so the case of there is no case directly on point that a memory device may be embodied in r t l code but in the industry well your honor in fact the original code was also stored in a computer system and so it was stored at four seven one eight of the appendix is different than the r t l code and the also yes the r t l code is a description of a integrated circuit fabricated in silicon however it is within the scope of these claims and that was where the board went wrong the test for reduction of practice is whether an embodiment was created as within the scope of the claims at issue but the board applied a specific physical limitation and that's where it went from  perform a claim construction for the first time in the final bid a decision that had not performed earlier or whether it introduced an additional limitation for the standard for actual reduction of practice of a physical element in addition to an embodiment that works for its intended purpose the board did not make any claim construction in the proceeding that would disqualify the r t l code from the scope of the claims and indeed it did not identify any specific limitation missing and so however the board reached the conclusion it was an error of law because it did not apply the proper standard to produce that share at that point are there other problems that might arise in the production process that would require rewriting the software notably there are your honor i bet once the process proceeds to tape out it goes to silicon it goes to a manufacturing process so at that point i'm not aware of any additional issues that would require rewriting of the software which is why on the testing point your honor when the first triangle test occurred it demonstrates that the invention worked for its intended purpose and again the board erred on that point also as a matter of law by not reciting not considering not applying the inventions intended purpose which is the appropriate legal standard and so the board again focused on the idea of a physical physical custom chip as the embodiment required the error it made in the embodiment aspect of its decision and so a focus on limited aspects of the test for example deficient alleged deficiencies such as the absence of test input or output files simulation run logs or input test parameters because it did not apply the correct standard or consider the inventions intended use they do not link any of those things as to the question of whether or not they were relevant to demonstrating that the invention worked for its intended  this two thousand and two thousand and one that we're talking entirely reduction of practice that's correct your honor conception was not spirited in the ford founded a t a i had established a conception prior to all of the prior art reference just at issue they actually do if actual reduction of practice was found then the remaining period between the actual reduction and the constructive reduction to practice would no longer be relevant except for one exception for the zero five three pattern constructive reduction i'm still provided and as described by dr wells he also described that the work that he catalogued in the calendars was work related to being able to produce those two blocks because those blocks could not be produced and worked on in isolation they were very cryptic so i mean other words he explained what those were the work that was being done i think his testimony establishes that there was continuous work reasonably continuous because again we believe the board applied in correct legal standard on diligence and then the metadata and specifications  point do you think is the place for him yes this is what we are working on paragraphs forty one and forty two on appendix twenty six fifty four where he says my analysis shows at least one person on the team worked on the design every holiday business day paragraph forty two he describes this meditative shows work that was necessary for implementing the r four hundred design he describes the metadata for the sequence or graphics blocks in that paragraph and then describes that the design and development of the r four hundred more generally was necessary to continue to work on the sequencer and shade or five like your own self but you don't have any documents just support the supporting documents for the metadata itself your honor you reference exhibits six and twenty seven also panix thirty they never made the argument that the computer software code running on a general purpose computer satisfies the claim limitation of the idea was always that the r t l code is some kind of a represent shows that the that the chip would work for its intended practice they say they're not much of making industry they're in the chip design industry so they thought that all they needed to do was present this code that would show that this unified shade board addresses the argue the primary argument that they made which was that there is no physical embodiment requirement they said they use the words this invention is quote embodied in the code itself they weren't making the argument that this that a general purpose computer running this software would constitute an embodiment of the invention and that's actually not a very persuasive argument either if you look at the specifications in all of these cases well if you look at the specifications they're all about chip design the pull purpose of  as such a valid point out there is very scanty evidence on diligence to begin with there are a lot of logs that indicate very cursory indications the work was being done and then we have the inventor  can come up and i believe this a probably the case that at least one engine engineer on every day during the relevant critical periods did some work on our four hundred project but that's not necessarily the invention here there are four hundred project was never completed that's a chip from microsoft they have from their blue brief that they only first reduced satisfactory shipped are the only first commercialised that shipped in november two thousand and five that's all that's more than four years after conception that you a instructive reduction to practice and there's no actual reduction in practice although the weight of the evidence there's no dispute in terms of conception of and then we have at least evidence that something was done every and before that whenever effective date of the reference so i'm trying to put all of this together with what looks to me like something brand new actual reduction to practice a physical chip a commercial environment and nothing further to be done to correct errors even though from what i've read of any routine software that you buy might have a billion  ended i believe it would but i think the testimony is crystal clear that it was not reasonably continuous and let me just state you have here to be clear i think that the laws of war why was wrong because i think that the perfect surgical explains that the board misunderstood but misunderstood the law and i know that this board didn't have a better purpose article but assuming that we say that that requiring daily activity every single back with no gaps is wrong the question is whether or not that would be harmless because the board separately sad that the evidence didn't tell us what any of th the board fully acknowledged the testimony that there was continuous activity on every single day as submitted by a t a i the problem the board had was not the problem perfect surgical or the board had identified certain gaps and said that's not continuously reasonable the board here found continuous conduct but said that's not diligent reduction to practice on the scene trying to determine whether one could have affected another so in other words if the board thought it had to be every day then is what the board saying because i don't know what you did every single day then it doesn't matter if you did something throughout the whole period because any one of those days could have been just on i don't think the board imposed a requirement that something had to be done every single day i think it was a given that something was done everything single day there question had to do more with what was done you haven't shown me that you have actually been diligently reducing the claimed invention here that unified shader to practice and the and one way we can see that is that they never did with this practice now again we're assuming that the the july two thousand and two reduction of drag is not valid but how to get to the diligence argument dates at issue here and just return your judgment question i've always wanted to say that the constructive or reduction of practice rate on the five three application was september twenty ninth two thousand and three and constructive reduction practice for the other ones was a date in november two thousand and three so we don't deny the patent applications were filed but we don't have is any indication for the critical period so that's before the date of the lindo my preference is one that applies to all of them so you can just look at that from june twenty fifth  say there's no clear indication there is a clear indication that is the testimony of mr lewis that the uncorroborated testimony of mr le five or about logs which refer to generalized work on a commercial embodiment that ultimately would have  looked at the patent attorneys testimony upin attorney filed a separate affidavit corroborating what the inventor said if mr lefever or or the applicant here the county here had shown emails or had shown testimony of anybody else presenter of those power points to explain what those power points rather really meant and sort of having lefebvre second hand saying what he thought they meant let me give you one piece of evidence why i think that takes this notion of him better testimony having been driving it twenty fifth two thousand and three so that's a half year timeframe in which they themselves said exercising presumably reasonable diligence they should be able get prototypes of the fully developed are four hundred ship but instead from november two thousand and two that's part of the critical period all the way until november of two thousand and five they still have not produced a commercial model went in the blue or if we understand that a commercial model but first came out in two thousand and five we don't know when they were to sort of practice but it was certainly after the constructor productions to practice we're debating here and the point is the diligence period one can measure it by that six month period that i just mentioned coming from a t i a it self and the board i think reasonably said you have to show where the diligences all they showed was that they were working very hard on a commercial environment for microsoft that they ended not producing and that's engineering work certainly it justifies why they put this in the logs but it's not diligence to reducing this invention of practice they could have they had the conception rember back in august of two thousand and one they could a father patent application that date constructive were reduced it to practice they took a risk by i guess not following a patent application finally getting around to it years later but there are a lot of periods here where the diligence is simply not explained by these logs and  more stringent requirements than then they are suggesting must be implied and i also want to be clear on the reduction to practice issue so there is no debate there was a complete waiver of that issue before  board board again at eight twenty six and eight thirty said that if they actually wanted to present the argument that our cell code running on a machine was a embodiment of this claim they should have made it then i make one more point on that they point to the board's claim constructions which seem to contemplate that there might have been a software aspect for each of the elements the board never set all the elements of the software in as the court has noted all the elements certainly were not software the board's whole premise was the elements or hardware but even beyond that i don't think it would make the board's think instruction that they've pointed to was under the broadest reasonable interpretation which is just an examination expedient to ensure that the claims that ultimately issued are appropriately cabined it's not a claim of structure to be applied in the reduction of practice context and the reason for that is quite simple if we apply the broadest reasonable construction  rule for reduction to practice we would rather patents on things based on a body might sort that were outside the true scope of the claim so that the pad would issue would be instantly invalid under the philips standard so that is not the claim destruction standard for reaction to practice which dr wolfe elsewhere compared to the r t l r compared to claims of the r t l determined all the elements were present missile it also testifies that the design and development of their four hundred generally was necessary to make progress on the sequencer block and the so what he's testifying to here is that work was being done continuously around this invention to produce it to practice and it was constructively reduced to practice near the end of two thousand and three upon filing and the evidence that he relies on doesn't stabl that every day work was going on in the project and because of the board applied the incorrect standards of continuous diligence instead of reasonably continuous diligence the board was looking for specific gaps on a day to day basis it was looking for unexplained lapses and indeed it didn't even consider has there been an actual reduction in practice the only diligence period that eighty i would have needed to establish was through august two thousand and two and only for the zero five three pattern in the stuttered reference constructor god doesn't mean th correct standard to this particular factual record because the board did not apply that standard and indeed it also didn't apply the correct standard for corroboration by saying on the one hand that the documents are that self explanatory and on the other hand mr lafave testimony is uncorroborate d testimony establish what happened and the documents corroborated that estimate and so it is appropriate for a man on the issue of applying the frak standard because that continuous diligence looking for unexplained lapses and articulat on the other side would say we didn't we assumed you were there every day what we're saying is you didn't prove to us what we were all and i think even the application of the empress standard effects that analysis as well the evidence as a on purpose or whether it's because you can't answer my question but by the the problem again it's assuming we believe everything that mr so assuming that that th some of the powerpoint slides that are in the record that refer to specific blocks being tested for example in the context of the first triangle test like the sequencer in the shade or pike and dr wolfe examined those blocks in the r t l and describe exactly how those each correspond to the claimed limitations so there is evidence in the record that the claim elements were being worked on during this period and at a minimum remained as appropriate for consideration of that evidence under the proper standard