was a computer implemented invention and what the board took from that is that there is an exception to this court's jurisprudence on algorithmic structure that's limited to software implementations so you didn't already before the board or didn't recognize before the board that there could be a hardware implementation though you now agree that that's ok that's right that's correct we've always agreed to that it's possible as it is in almost any case to either have prior or hardware implementation didn't have an algorithm and therefore wasn't a problem i'm not this could or could be a hardware implementation of that and that too for if there was that it had to incorporate the  but coming give you some citations on that point any computer implemented implementation has to have an algorithm talk at the hardware point came in when the petitioner made its reply and was trying to excuse the fact that it didn't describe an algorithm and said well there's succession and what we're saying is this is a hardware processor and therefore doesn't need an algorithm none of that was in the petition what they said if you argue that the if there was a hardware implementation it had to have the  lowell it seems to me is that there's a cause here which it cannot which they cannot which is hardly a developed argument right well this supplemental briefing came after the oral argument the oral argument pointed out that the catholic petitioners own evidence if you look at j twelve eighty six which is there is this argue that oral arguments this was argued at the so j five o two you start talking about the algorithm we're arguing about hardware controllers the ground doesn't depend on a hardware controller so one thing that of the ground actually points to a c p u that uses software and so further down that line fourteen so even accepting what their argument argument that there's a controller general purpose there's an  structure structure but it's not limited to that structure there's this other structure of this hardware controller that if you consider where you mean suppose function term you have to cover all the structures what we said is an algorithm is required because you can't have a hardware processor finite state machines don't work in the abstract and then we start walking through their exhibits where they explain that finite state machines operate in accordance with state machine realized that they were on the wrong side of the law which they changed in a district court construction which is also been brief so this argument came in we were not allowed to submit  know any additional evidence we were just rebutting something that wasn't even in the trial around that we saw for the first time there is no exception in this whole course jurisprudence that where you can ignore an algorithm just because you take code translated from software into circuitry you still have to have the operate them and that's exactly what the petitioners evidence makes clear they say well we don't have to describe an algorithm because there's this block diagram and therefore that's a hardware process but we wouldn't have any of these one twelve decisions on algorithms if you could just point to a picture with a block diagram that's most most of those cases you've only shown a block diagram there's no description of the algorithm well if you could just throw up their hands and say it's art where process are we done we would have to get into all of this so this came in late it was not the trial route we can argue against something that we don't see until the petition a reply and end separate and apart from that what we've said is well even accepting that this harbor of processor theory makes technical sense the yoshio reference does not describe a hardware processor it's a c p u that operates with an temporarily as code or you're burning the code is a circuit you still need the algorithm to meet the function of that claim there's no evidence in this record that some off the shelf hardware controller could be picked up and plugged in that would algorithm and that was the petitioners berta it was not in the trial grounds it was not briefed in the trial because this hardware processor fury came in later to explain away the mistake in the law so the and the didn't have an opportunity to address that in the past and the response was a result i think that's what they're saying yes and in response to that argument i would say they were put on notice of what the petitioner you want to make an argument that they thought they didn't meet the claims a little literally and there should have been some type of equivalency analysis they could have raised that argument during the proceedings but they they chose not to and so every party had they they waived their right to do so  well what the board said was the its decision was that computer implementation wasn't required correct and that hardware implementation would count did they far into the hardware implementation in the prior or you know the good so they found the claims were not limited to computer equipment to control or they could be it could be either hardware or computer implemented but they found based on the in not limited to a computer implement a controller that could be from the hardware controller and it's more likely to be a hardware controller you want required to perform that specific algorithm just just performing the reciting functions would be sufficient to meet that claim  and whatever generalizations or whatever general practice is being imposed on computer implemented means quite i'm sick computer implemented means yes so if it was solely a computer they just kind of argued simply that the claim instruction was incorrect a couple points on yoshio there's no dispute that it uses software what we've said in the briefing is that it doesn't describe any out it just states it does the function it's not our burden to rebut something that's not in the record it's the petitioners burden to explain if that is your ground and that uses an algorithm then how is it equivalent to a different structure if you accept the position of the argument of a hardware processor that could use any algorithm so what is what's being argued here in essence by the p t o is that as long as you have a discrete box in a figure you own every way of implementing a function that can't possibly be correct i don't think that's what they're arguing honor i would submit that it's not our duty to argue against ourself the ground was the claim requires a c p u period nothing about a specific hardware processor nothing about a specific hardware processor that's already preloaded the by using words such as executing processing the flowchart that this there is an algorithm there it's their duty to compare that structure to the prior art and if you want to argue that the specification has structures a and b and you difference does it make whether it's operating in software or you burn it into the code and then finally all of the petitioners evidence on point makes clear that these processors are burned algorithms into semiconductor the algorithm doesn't go away just because it's it's a hardware processor and that's in the petitioner's own happens so there's no way to sidestep the need for an algorithm as i said every case that's been before this court where there's been an indefinite this issue or lack of written description support for lack of an algorithm is usually there is just a block diagram with a processor box you didn't describe it in order well why does everybody just argue well that's a hardware processor and i don't need it because it doesn't make any technical sense you can't get computers and a hardware processor is a computer to operate without an algorithm so for that  we thank both sides and the case is submitted and my guest everybody can stay where they are and the next cases