morning good morning may please the court fan duals redgrave has simplified the issues on appeal in two telling ways st it makes no attempt to defend the board's erroneous claim construction which serves as the basis for finding the kelley teaches the authorized claim limitation and nd vandel does not contest our proposed claim construction for purposes of this appeal the court should assume that our proposed construction for authorizing limitation applies and that construction is wholly consistent with the arguments that we made before the board which the authorizing limitation means prohibits the operation of a video game based on user age in the st instance m r right it goes on to note that while the petitioner disagreed with this construction it offered no construction of its own so to answer your question the fact of the matter is that the board clearly erred in  different claim terms with authorizing in the challenge claims and then in the un challenge claims combining the adjusting claim feature which is separately disclosed and separately claimed in the in the eight hundred and eighteen patent so there is no doubt that there is legal shot up here that at least that was the strategic decision and that's and it's clearly prejudicial error because nowhere in kelley nowhere in kelley does it say in the st instance that a user is prohibited from operation of a video game system based on age and i think it's important to put did the make the slice through that finding or that draw that conclusion if the board did not the board the board analysis based on its erroneous claim construction was confusing at best but it did not make a specific finding and certainly to the extent that my friends on the other side may argue that it does it certainly wasn't supported by substantial evidence because nowhere does fan tools expert mr kitchen ever say that that kelly prohibits you operation of a video game in its entirety based on age  think that that question may be best answered your honor by by hypothesizing what the court could have done but didn't do as well which is if it did find that kelly didn't fact prohibit in its entirety it could've agreed with our proposed c onstruction as it understood at the time and you keep saying in its entirety that's not part of the claim construction it's not part of the claim construction that's being proffered today i think in terms of it's not part of what you property it's not part of what the board found this in it's entirety thing is really the crux of whether you win or lose and yet that isn't an argument you made before them or for us i mean i guess i could say it's sort of made in a backdoor way by saying how he doesn't disclose but that's kind of the heart of it prohibits operation of a video game based on user's age does that mean prohibit operation of the game in part or in whole because that's what it comes down to because kelley right died at least as close prob that decision is made in the as a threshold determination are you authorized to play the best vacation say in terms of adjusting i remember reading a part of it that it said basically educational games can be adjusted depending on age you know you're you have an four it's a column three and there's really two separate disclosures that are separately claimed on one hand we have the authorizing claim limitations those are found a challenge three is long so well i'm sorry column three starting and thirty nine writing ok and there's two separately disclosed embodiments talk here it says it will be appreciated that it controller of the present invention provides an advantage in allowing each child in a household to have a personalized controller by including the age of the user it will be appreciated that amusement came to sign for a specific age group is not operated by an inappropriate user thus operation of the video game can be prohibited based on the user age that's authorization it's a binary threshold decision you can either operate the video game system or you can and that's what the claims of the eight hundred and eighteen say it's a video game system it's not adjusting of some game we're talking about a video game system so a user if i may expand a little bit on the example that we have on brief here's a video game mortal combat it has an age threshold a ship associated with it if my fourteen year old boy picks up that cartridge world combat and puts it in the controller this personalized controller that is is part of the claims determines whether or not he's age appropriate to play that video game but if the personalized wireless controller says yup he's appropriate then it authorizes or allows gameplay if it's not it doesn't it's a binary threshold decision i have a daughter who's twelve if she were to pick up that same video game and inserted in the cartridge and use her own personalized controllers the claim is read with her age in that controller it would say she does not mean that appropriate age not mean i certainly understand you are going to tell me why column forty two at the very bottom of cally and carrying over into forty three doesn't disclose that when it says agent can be a predefined characteristic that  expert testify sauterne him it is more about the structure of the event than what you're saying playing if i was in a room with a bunch of game designers and i said what kind of game do you want to build and one guy says i want to build a chess game i want to build a baseball game i want to build a golf game it would make make no sense for the other person to say i want to build a tournament well what's a turn and it's not a game tell me about game play so it tournaments is just how it's all and this goes to those prerequisites your honor and the certain conditions requirement that the board relied on remembering against this backdrop that they also improperly included this adjusting them addition that's exactly what killed discloses but what kelly doesn't disclose anywhere is prohibiting game play in the st instance has yet threshold issue so suppose that i suppose that i agree with you on your claim construction suppose that i even agree with you that kelly talks about prohibiting tournaments based tony and adjusting potentially based on a predefined characteristic such as age but it doesn't this is obvious this is an obvious most rejection of the heck does that get for video games the essence of kelly is to encourage game play not to prohibit it in every instance and kelly in every embodiment the user is allowed to play the game it's not prohibited based on a user's age they can for example and loni too says in some embodiments players can be required to meet certain conditions before participating in a game so it does allow you to prohibit people from playing in a game all together it does not it's only an a example so how is that the they are four examples but nowhere does it say where does it give an example of a thing it expressly says nowhere does it give an example where game play is prohibited in its entirety as a threshold issue except that it says it can be i don't i don't believe that's exactly what it says and i think they parse out the words it says in some of volume and claire can also be required to meet certain conditions before participating in a credit game or tournaments it's what it's saying there is you complaint you complain a credit game you might not always be able to play in a tournament and that's what the disclosures are clear about that you can hit that credit but as many times as you can you might not you might need it five times you might need it ten times in order to participate in a tournament a term is a mode and i think based on this it says the player can either choose to play a price credit game or a tournament it certainly does describe that certain requirements are necessary to particular paint in a tournament but that's not a game if we look a little bit lower income twenty two and fifty nine for example it says an example the selection screen showing the player to choose the type of redemption game is shown in fighting well let's just assume that i agree with you most of the way but not all of the way meaning certainly all the examples you can point to are about term and i don't disagree with that but the predicate sentence that that is the topic sentence of the entire paragraph is players can also be required to meet certain conditions before participating in a critically morry tournaments so assume that i'm going to give the idea credit meaning because i don't see how i cannot give it some meaning and have it mean something's closed what did the did the isn't that is that enough i mean it's not enough and that agency and why do i have to send it back i think if i think we need something more there here i don't think it's enough because it's not a clear finding it's not just supported and even what i guess that's what i'm wondering is did the agencies sort of fail i mean what i'm not going to do is do the agency's job poured on a p l c did the agency sort of failed to clearly articulate this in some way to you even so that even if i think this i shouldn't do it on appeal i mean there's no question that  the reason analysis is very unclear and they don't make any specific findings that are supported by any evidence much less substantial evidence they go to the fact that you cannot always play a credit game is disclosed in kalak in fact on pages nine through eleven mr kitchen concedes the fact that you can always play a credit game that you're sometimes not allowed to participate that's in our reply brief your honor that you're sometimes done allowed to participate in the tournaments game that's something different that's adjusting sometimes prohibited from playing attorney get based on user's age it doesn't say that anywhere in fact the board recognize that in two thousand and two with respect to these certain conditions requirement it doesn't disclose age at all it's not until forty two column forty two that it does the court i'm going to begin with the notion that the board did not make an expressed finding with respect to the disclosure of kelley excuse me and i would refer the court to appendix page forty which is the final written decision and to the very bottom of page forty and as a lead into this i would say there are nine pages perceiving this for the board is discussing expert testimony as well as the disclosure of kelley and and what we're going to look at here in a minute and at the very bottom of the page the paragraph that begins at the last two lines the board states based on the disclosures in kelley and the testimony of mr kitchen and dr agle we find that a preponderance of the evidence establishes kelly's disclosure that a player must meet predefined characteristics such as age experience and other collected data before the player is authorized or allowed to participate in a game is a game control that prohibits operation of a video game based on the user's age that is an expressed finding by the board that comports with the very construction that you have heard from my friend on the other side  construction everyone was pursuing during the underlying proceeding was that gameplay must be prohibited in order to show that gameplay is authorized based upon age the claim was notions i just didn't clear and you lose no you lose no points for agreeing that something is wrong when it clearly is you agree that to the extent that the board said authorizing and adjusting media doesn't tart's wrong because the claim does delineate adjusting and those are two different things said to the extent that the board said prohibit or adjust is covered by authorizing it's too broad it doesn't mean they didn't make specific fact findings that still cover under the correct construction but you do agree that construction is wrong right i agree  prohibits gameplay how did they end up with this or a just language nobody argued that to them below is it just a mistake on their part i would be would be hypothesizing but i imagine what happened is they saw the embodiments in the specification but didn't read through the board referred to as the required conditions disclosure states and some in body months players can also be required to meet certain conditions before participating in a credit game or a tournaments that's what the board referred to as the required conditions disclosure and it and i would i would highlight here that it's a required condition before participating so if you can't participate you are prohibited from participating so that is the  disclosure that the board well i did play but but i think that the record supports what mr schaffer argued that he tournaments is not a game and that one would refer to it as a game so if like for example if i had a video game and it allowed for lots of different modes of play and one particular mode was excluded because someone was under a particular age they would still be allowed to play the game they just wouldn't be able to play one mo so to the extent that this special occasion kelley focuses on tournaments i think that mr schieffer is the better of the argument but that's not again i think that's not a better the better of the arguments on the record and slightly jumping back and forth did you want me to go through the rest know what your credit or credit problems with tournaments it's a credit game as well as the tournaments and i think the point that the board found and i can take you to this is well another finding on the record looking at all the testimony of the experts that were presented in this case is that a game is played within the context of a tournaments ok or it can be played outside the context of a target but where you have and this was the point of the finding by the board where you have a game in a tournament that has an rich age restriction in other words it's an over a team game and a person that is playing or attempting to play that is fifteen is not allowed to participate in that game and then you have an age restriction on that game i really all due respect i feel like that's what the adjusting limitations speaks to the adjusting limitation allows for access to certain aspects of the game relevant to age and not other aspects depending on age i feel like you you now are morphing email exactly what i think adjusting is that into your construction of authorising and that causes me pause is two separate games if there is a if there is a poker game going on that is for people over eighteen years old that game of poker is being played by people over eighteen years old if a person that is fifteen attempts to play in that game they are not allowed to participate they are prohibited now there can be another game of poker that is being played by any age groups ok that is a different game that person that is fifteen playing in that different that exactly does not back described as adjusting when it said within a video game you can have some educational games adjusted based on the user's age i mean that's the exactly the column three specs adjusting language i mean try to let me try to help you out on this because it's not if you have a game such as an educational game and the user comes into that game and says i'm six years old i need an easier version of the game there is no question about participation that user is going to be able to play the game and the game is decreas difficulty from some higher level of difficulty to a lower level but that's not a better with me that there is not any question as to whether that player could participate ok that i don't agree with you because it says the us operation video game can be prohibited based on user age there for the controller provides a minimum level supervision and further educational video games can be adjusted to the age of the user that's exactly the scenario where they're allowed to play but only age appropriate versions for them that's what the spec defines as adjustment it would be a different game if you have changed the game in order to if you have a different game that a person can play there are not prohibited from play let me take you again to the the findings of the board ok so i think that it's a helpful frame of reference the board has considered this exact our argument whether playing a different game is in fact a prohibition if you're allowed to play a different game but are prohibited from one and the board states citing the two disclosures from kelley that where you are meeting the stablish conditions as a prerequisite to participation in a game or tournaments if a player satisfies the career prerequisite the player is authorized to play if a player does not satisfy the prerequisite the player is not authorized to play the fact that a person may qualify for a different game such as a different age group or a different experience level is irrelevant to the claim to mention and it goes on to describe point b gave me an abstraction we've been talking about  operating under its own construction when he uses the word authorized it means prohibits or adjusts so this is a very circular argument by you that can't i can't see how that could prevent all the boards operating under its construction which includes both page forty allowing a player to play a game or tournament in one category for example players under eighteen years old is in fact restricting or prohibiting that player from other categories e g players over eighteen years old the under eighteen year old player is excluded entirely from the over eighteen year old games it is an exclusion it is a prohibit i understand where you're going with this but it is not when you have two games it is not the same thing as having one game that has been adjusted if a fifteen year old is prohibited from playing an eighteen year old game they can't play in it that's a probation  i guess i don't see how that can be reconciled with my understanding of what adjustment is because the spec clearly company contemplates a fifteen year old being able to do certain kinds of educational games not being able to do others and a twelve year old being another it doesn't say that it says the game that the user wants to participate in is adjusted there is nothing about where it describes adjusting there is no discussion of participation those are separate concepts you can either put a block on proton participation or you allow participation but you would just the game those are two completely different concepts you know it's so funny you are fighting me so hard on what is your much harder argument to convince me but you have not at all embraced and i don't understand i don't understand why you're not saying to me even if you think that judge moore you still can't get around the words credit game and column twenty two of cally like you you are fighting me on an argument that i don't know if you can win with me maybe one of my colleagues but i don't know that you have to if you're fighting the harder argument and i don't know why is that what does credit being mean is there something about this  kelly that doesn't let you win such that you have to fight this harder argument and not rely on this i'm not sure why you're not retracting to the position that even if i have a problem which i have clearly haven't demonstrated that you should still prevail on the company to do so tell me about column twenty two why does when it says credit game doesn't that kate take care of the distinction i have in my mind between termit play and versions within a game ok and in your honor i think it twenty two is the st disclosure that we talked about and again i would highlight it's a question of participation i think that's a key thing to understand are we talking about participating or are we talking about how that there will be participation and then in column forty two where there is the mention of age as a as a predefined characteristic and this is appendix three thousand four hundred and sixty four forty two the paragraph is is beginning at line sixty three  it goes through the end and once again there you see a disclosure of a participation limitation and kelly there is a limit on participation based upon age and i'm going to finish here on earth with to allow the operator to designate for the characteristics of tournaments is this only related to tournaments or are these characteristics i should assume relate to game play as a whole i want to start the assumption with the idea that i don't think tournaments satisfies it ok this disclosure specifically is talking about tournaments but it's preceded by a discussion of games with an attorney or so scud attack you'll see up higher in the in the column forty two lines fifteen the scud attack tournaments the problem with the assumption your honor is that kelly uses the games there are games within a turn it the that kelly uses games and tournaments in the same exact context so you have a poker game you have a scud attack game w that for you because that would mean the one place where you may have had me which is column twenty two you no longer have me because you just told me tournaments in games are exactly the same so when it says credit game i shouldn't interpret that to mean barring your access to the video game as a whole that could just be one game within the tournaments there is there is a concept of a game the game can be played as a credit game which should be like a one player game or two player game or that game can be played with an attorney that's the disclosure of kelly and the finding of the board you know when you want to get a g mail account you have to be over eighteen or not you know that my daughter figured that out she put a birthday in last week and suddenly was not permitted to have a g mail account even though her older brother by the way is eighteen has one that's prohibited i'm not sure if you're just prohibited from certain aspects of the g mail account whether or not you're actually prohibited in kelly where you have these condition requirements they require conditions disclosure in the age disclosure is it's a prerequisite to participation so it is akin to your daughter not being allowed to question of tournaments versus the game that you're that your honor is concerned about page forty three quarters of the way down there's a sentence where the board says there is no persuasive evidence to the skilled artisan would ignore the clear disc of disclosure and kelly to use aides to authorize or prohibit gameplay merely because it is disclosed in the context of games played in the tournaments so the issue that you're raising was considered fully by the board and the finding was made upon that based upon the evidence re read what page are you page forty and three quarters of the way down through that more paragraph there is a sentence there is no persuasive evidence key because it goes to your question of the very differences you've been talking about judge moore kelly's required conditions disclosure disclose that players can be required to meet certain conditions before participating participating is the words used in kelley this is not a disclosure of how to play the game or disclosure of the group to which a player will be at this assigned it is a disclosure of imposing conditions or requirements on whether a player will be allowed to play the game or participate in the tournaments the board made the correct findings under the prohibits claim construction thank show the game is quiz show when we're talking when he talks about participation and that's all about term in play that is later adjusting once you're playing the game quiz show if we look at figure five b which is  solitaire twenty one for fun other the user can always play the one player or two players credit game there's no disclosure anywhere in kelley that says that you're getting user is prohibited from playing those games and council could point out the question becomes is whether or not when you go to select one player to player or tournaments mode that's what we're talking about we're talking about modes can you produce a paper based on telly in a tournament where you have to have a certain number of histories behind it to participate in the tournaments but nowhere can you know where does it say that you can't participate or you can't play the game quiz show based on the user's age and it kind of goes back to my original analogy if my fourteen year my twelve year old daughter came to me and said i put in the game mortal combat it's restricted for age fifteen down and said yeah i was able to play a game i could play one player game but that i couldn't play the tournaments game well i wouldn't be happy about that that's adjusting the game that's what kelly teaches that's all the kelly teaches it doesn't teach prohibiting a credit came or any game in the