are two plausible options as to when step six and if so are may be exercised in relation to usage right namely at the same time or at a different time the board made that finding because it was considering whether the original claims are obvious even assuming they required the matter right to be exercised independently from the usage right as constant guard contended and what the court found was that they were it found that exercising the matter right at a different time relative to when the use of drugs dr sized would have been one o two obvious options and they cited the rationale of k s r so the court's findings on the original claims compelled the board to find cons and guards a new claim thirty seven dollars obvious it's the same obvious question so the courts failure to find that claim obvious requires a reversal reverse is also appropriate because constant guard cannot now contest the board's findings of fact which compelled their obviousness conclusion again they didn't appeal the board anticipation or obviousness determinations for the original claim knows that if you reverse on obviousness as we're requesting necessary to reach the other patentability issues in this appeal now there is another problem  the other air relates to the anticipation finding and what the board found there was that this new claim they presented in an amendment was not anticipated by stepping in again that can't be squared with what the board's uncontested factual finding playing thirty seven dollars men to the original point one to add that exercising the matter right does not result in action to content the ordinary meaning of result is that it causes the action and that's what the board found when it found that exercising the exercise exercise in the end if and as a war instead happens it found that exercising the n s o are results in the addition modification or division of usage rights in fact the same mechanism can be used for exercising both the use of drugs and matter right and then of points directly to this same skeptic patent and then in their motion to amend content guard pointed again to this definite mechanism for exercising rights as part of their written description support for this new claim thirty seven dollars so we believe all of this that record again is relevant is functionally  issue what the with the stick exercise of net and s or does is something which happens as is described in staffing as occurring kind of incidental or in the process of other events that are occurring are and what actions it affects ours that is affecting actions that relate to usage right so it's creating news with rights or deleting them or modifying them and it's relatively unsettled that the the usage rights themselves those are different rights those are things like authorization to play the content and if you exercise that usage right then play the content or you can copy the content what the board found was that st let me ask you a couple of housekeeping type questions just on there are a lot of issues floating around here firstly if we agree with the board that this is appropriately a c b s we don't need to reach the issue of decision and the answer is that's correct we do not have to recheck i believe that's correct ok let me ask you another kind of in the we more housekeeping thing and that is the  that you are correct if you do reach the conclusion that the new claim is anticipated are not anticipated not to be got actually compels you to address and reverse that finding that the claims go because i do why i mean if we if our view is that what they said has no legal of that then why would we be dealing with that at all it's going to be missed if we agree with you that it's not correct that it will hurt you later on in another proceeding well it could inflame it certainly could it could be an issue that would effect a potential finding on intervening rights because intervening rights increase future disputes would turn on whether the claims have the same scope or not and i think that's the main reason why the board is instructed to make a determination on identical scope when they make these and they consider emotions to met and that's part of the function of that decision is to have a clarity in the record about where the claims are where relative to the original  plans so i'm i'm happy to reserve my time or have you take on any other questions have regarding this if you'd like to get into the details of the identical scope issue and i'm not going to do that as well seems to me undermines your argument here about and render just incorrect and the fact that it was ultimately made and the c b m determination was ultimately made and the final decision as well was  again rejected by click to call what it said even if it hears in the final decision if it's an institution issue it's not reviewable i mean how do you respond to those different places including the call where it seems to reject the reasoning you're making relying from the reasoning that was set forth in the institution and that's because the issue ultimately depends on what a patent claims and want to patent claims can evolve that the issue of that issue can evolve during the proceedings based on extraction most most particularly and so it's not until the final written decision in this case the amended remand decision that we have a final determination by the board of what the quite things cover and whether the i'm sorry this is i'm g interrupt you again i don't understand that argument at all the same thing about evolving kind construction and the life can happen in a in a general run of the mill i p r case where it gets instituted based upon certain claims constructions or not and then they may change during during the proceedings i mean if the board decides to institute based on a claim construction that changes you don't get to go back and say they shouldn't have instituted because cline construction was wrong you just get to challenge coin construction and how it relates to patentability not to the institution decision itself why isn't that same argument here you make it a changing challenge the claim constructions of whether these are are about financial things or even in the case and and i think the supreme court rejected that as well statute closely related to the constitution and nothing more dr also emphasized that a party dissatisfied with the finer it decision may still appeal under section three hundred and  distinction between decisions to institute and decisions that relate to the scope of the proceedings or other aspects of the proceedings that occur after institution and our point is that in this case the issue of whether the see i mean you're arguing this authority argument let's just assume i disagree with you and i think the supreme court rejected that distinction between the word again title and yes i think that's wrong how does the the word institute and setting the standard of whether the board can institute on a c p m or not yes i believe it does your honor and the difference again i believe is that in his  and our position is that he doesn't it's just i mean you're not being responsive to my question in my hypothetical which is i ask you to assume that i disagree without authority point because i think quick to call makes very clear that that's issues that go beyond the issue of whether the claims cited financial subject matter so i don't i don't see those two issues as being as being completely aligned that i answer your question y that opportunity your honor it's a patient question that our game is they're making a really discredited by their own their own assertions in the petition and by their own experts the question is not whether the reading of the n s o are parameter itself cause of action to be amended claim requires the ability to exercise the better right to create new rights without any action to content occurring and their own expert of their of their attack of an issue of the original claim one which has now been amended in claim thirty seven dollars to clear the distinguished over this sort of of an approach as to obviousness is a very similar issue they focused on tiny interest a question about that the question is not whether the m s r parameter is exercised or processed at the same time or a different time in the conferences transferred the question is whether it can be exercised at all without found that that was just a name for it reading of the embed transaction which clearly disclose is clearly disposing stuffing as a process that requires transferring the concept as their own i board followed its own rules and was clearly correct in its in its conclusion as i think that's the only issue that the court has to address in this particular  one a he says that the director may institute a transitional proceeding only for a pattern that is a covered business method patents so the act actually makes this explicitly part of the institution decision so that question i think squarely  applied that law wrong in most pacifically were challenging a number of factual findings the board made and we believe that the factual findings that the board made on c b m eligibility are not to be to serve but they're supported by substantial evidence and we believe you're already holds that and they only raise kind of their new issue about the interpretation of the standards the board is using in their reply brief so you should probably discount for that reason now on the on the issue that he just raised for guarding anticipation i think you just have to look at the claim language to claim language does not read exercise a matter right without any action to content occurring that's their gloss on what they think that word means what the plain language contest and that's what the board has held i mean they way when they read the staff ik and we're understanding what it was describing they found that when you exercise the n s o are it changes used to dry so it doesn't cause question of anticipation ultimately doesn't even if you were not to agree that's where you should come out on in suspension to claim thirty seven we raised in our petition we raised during the briefing that this claim would have been obvious even if you had recounting our explanation of why the claims were obvious and we gave them this explanation there's just two options for how you exercise the matter right relative to the use of that's was that's what they relied on and they found it persuasive in finding the original and fifty two question and what your friend said that the that the board's rules are there guys so whatever it is compelled that they make this determination and therefore it might have some heft with regard to what the district court has to say with regard to interview some later time so the problem with what the board did was they construed matter right and they took up the original claims and their finding was that the specification explicitly defined matter right and it was not the definition that was used in the district court in texas they gave they made their own finding about what that term meant and then when they came to this exercise of comparing the new claim to the old claim they simply adopted without any findings the language used by the discord in texas and the problems with that that once they had found on their own that the claim that the clincher measure right had been explicitly defined in the specification that ended the matter and in fact whether you're working under the broadest reasonable interpretation or if you're working under the district court standard you get the same construction if the arguing they had to go with what they already found which was the explicit definition of specification and that's that's the root of the problem that's why it was hard for us to process the conclusion they reached which was given that explicit definition  right and that the claims had been found anticipated the same problem which was unchanged by that construction with no basis for changing that construction was found not anticipated and that's  jurisdiction over over the c p m patent if in fact the patent does not qualify as a c v a patent under the statutory definition and i believe that is a very important distinction because it goes to the board's ultimate authorit entertain the proceeding at all regardless of whether the petition argued it correctly or not or whether the issues evolve during the proceeding it still gets back to the fundamental issue of whether it's a c p m and if it isn't this even pat the the other issues of terms of the board's analysis we just reiterate and it's pretty clear we set forth in our brief the board basically focused on the specification not normal procedure and we appreciate your indulgence in that regard and the case is the bed thank you