look at the what the petitioner set forth in the petition and decide whether or not those arguments could be met based on the burden of proof set forth but the board didn't address some of the dispositive issues that both of the parties considered to be relevant and instead move them in the shins that were separate and apart from what the arguments were made in the petition as a result you have the board making determinations that neither party seem to have been pushing for arguing over and even on this appeal we still have this strange dichotomy where in response to our appeal silicon laboratories is arguing for its original position that was set forth  similar in kind to this court's decision in in re magnum tools where the court cautioned the board not to be coming up with a new decisions or new theories in arguments on its own that were not set forth in the petition claims eleven and twelve of the five a five pattern are not obvious the board's findings with regard to claims eleven and twelve are not supported by substantial evidence here none of the references that were set forth disclosed storing  filters and memory so can labs try to fill this gap by using a reference called grumman to show that this element existed but what the parties were arguing over is whether grumman actually disclose we can switch rapidly between that two different filter functions it is adopted him in a can switch but it is a single filtering grumman describes itself as a filter not as multiple filters but in terms of what grumman actually says it is which it describes itself as a single filter and not as multiple filters but i think a person of ordinary skill in the art looking at what grumman actually disclosed would want to know that grumman is describing itself as a single for filter not as multiple for filter forms of functions multiple fields and no your honor it performs a function of a single filter where the allows it to adapt and switch but it does not perform multiple filter in the board  dispositive issue with regard to these claims the board looked at our argument where we presented that the evidence of grumman and exactly what the woman decided as a single filter and said well that's not really the point here the point is that there are other references that disclose filters and so the word actually picked up on in another reference that the petitioner hadn't argued was the multiple filters in this case so for example the petition specifically said that we're relying on grumman for this but the board didn't rely on roman and sort of push fed away and said no we're going to rely on harris for the filters but that's not the argument that was set forth in the petition even though the board leader seemingly inconsistently admits that the grumman is relied on for the fir filters as if that is also a argument that had been the and so we have a situation where the board seems to be taking the position that set forth and even on appeal we're hearing that the the arguments that are made in support of the board's decision are arguments that go back to the petition where they're arguing about whether own theories based on a prior art and substituted them for the arguments that the petitioner was actually making this also appears in the second place in the board's decision and this relates to the same claim but a slightly different part of the limitation grumman is also used by the petitioner to show this element that says that the signal processor is going to index memory to retrieve one of a plurality of fur filters and roman doesn't th concept is not a single processor but multiple processors but the board didn't rely on what was set forth in the petition it relied on a different argument so the petition relied on grumman for the processor not for these other references they're referred to as thomson harris but the board then looked and said well we're going to find that thompson combine with harris has this particular processor but again so much of the argument i've just mentioned the board is now pulling in its own and not using the theories that were set forth in the petition we think this is inappropriate because the firies that the order supposed to be analyzing to see whether or not the petition has met its burden of proof is not the arguments that the board is deciding the board is deciding on new theories that it is coming up with independent of what the parties have sat for as a result we think that the board's findings with regard to claims eleven and twelve should be reversed because the board relying on evidence and arguments at the board was coming up with as opposed to what was set forth in the petition at the board look at the petition and the arguments there it clearly would have found that there was no support for the arguments that were being made similarly claims thirteen fourteen of the five if i were not obvious i think thirteen requires a standard selection circuit and this generates a select signal indicative of the format of  a signal and then the signal processor is going to select the fir filter in response to the select signal now neither thomson nor harris disclose a standard selection circuit the board previously made that determination petition that was filed and in these series of actions and are expert explaining to the board that there's no need for a standard selection circuit in thompson or harris because their form that they're here by looking at the references and filling in a gap that zenith does not fill for the petitioner in this case have to be able to detect are you talking about an analog signal or a digital signal then it talks about you just can detect whether it's an analog signal over the room want it has to be something else correct or honor it could be something else but it doesn't have to be just one other thing the zenith says well if it's not analog it's digital and says well you know that there's it's digital because of the absence the five pattern talks about the idea that the reason we're talking about a plurality of potential carrier signals is because it talks about not just analog and digital but there may be other signals that it would need to get hacked and you need those carrier signals in order to be able to know what it is and so the mere absence of a signal isn't a signal and as a result it basically says we don't really think that's the issue here we think we're going to look at the issue from the context of a nother reference and sewed it right in another reference and said we think harris is what discloses the fir filters but if you go to the it as george thank pointed out accepted the petitioners theory that the combination of thompson harrison grumman renders claim eleven and twelve obvious moreover his distinction of one for filter versus two is really semantic and doesn't really join the issues and that's what the board found because  of finding with respect to whether or not the selection circuit was obvious in light of zenith all they did was to say that the combination of thompson and harris didn't inherently art would know that there's a circuit that would have to generate that the board didn't accept that and so it exercise its discretion in this in the second i p r and took up our theory that thompson harris in combination with zenith found that combination obvious there was no finding of fact we were never given the opportunity to appeal that institution decision and so there is no collateral estop raise is the reference in the priory i p r that is potentially true your honor however the issue is whether or not the board could exercise discretion under three twenty five when it said yes we can and we well so while the board may have been permitted to decline to entertain our theory now that it has is properly before this court it were not part from raising it here and then it's your question and let me just get back to the to the claims because i want to think this really drives home the point about this filter and why the board didn't really excepts are really engaging them in the at numbers argument about one filter versus two because if we look at claim one itself it says a channel filter that's that's one of the main elements and what is not that filter can perform multiple filter functions and and that's what we have with grumman we have an adaptive filter and a filter that can perform multiple fir filter functions and that's ground yourself in the claim language and in this case it's clear that the filter is a functional limitation if you look at a let you start with claim ten for example it says where ian said signal processor up what is what is claimed eleven require all it requires is that these filters be stored in a memory in we know from the specification that the only thing that is stored in a memory are the coefficients and so we said the thirty two independent sets of filter functions that each perform a separate for a filter in that that combination was that that satisfies that limitation of of cleaning eleven with respect to this question about a single processor in grumman i think it's telling that they're not challenging in this  a second computing unit showing that that signal processor doesn't have to be a single component and that's clear from the specification now with respect to claims thirteen and fourteen  the question about the standard really let me turn to claim fifteen which which depends from claim thirteen the notion of detecting carrier signals again this argument about that this is the standard selection circuit has to detect two different types of of sync signals is not only inconsistent with the claim language but also with their own specification plain language if you look at claim fifteen it says that the standard selection circuit generates said select signal by detecting carrier signals identifying one of said formats of said input or of signal and the reason why it says that is because the specification makes clear that it it can detect carrier signals in one the format from the absence of a carrier signal so i believe i've addressed all of the arguments here today if there are i'm happy to answer any further questions th a low end even on appeal that seems to be the dispositive issue that the parties were arguing as to whether or not it's accurate to be multiple filters out of work sort of sidestepped that issue in our view but that was really the crux of the issue and the says it is disclosing a complex we prefer filter visit to thirty five and then at two thirty six it goes on and says we're talking about the to haves of the filter so when he talks about the real and imaginary components that