found that actually i had already specifically contemplates and discloses the scenario in which to choose have dead data ready to be transmitted the same time the second finding is of age twenty and this is where the board was excuse me discussing the even if language and i guard and found that that language demonstrates that back off to a waiting low priority packet that was is simply a possibility not an automatic occurrence so they did acknowledge that the superseded lower priority package would have a possibility of back off and we think under this  findings demonstrate express anticipation under lucent we only have to show a single use anticipates the board found the conditions for anticipation when it found that there was a high or low current packet in two different que priority message wins internally then the lower priority message necessarily goes gets kicked over into back office that's correct and i guess when we look at figure six the question of what happens after an internal collision the result of that internal collision at least looking at the diagram figure six isn't necessarily back off e what necessarily have the event that results in back on stage is when there's a failure to transmit the message from the launch pad which is a subsequent event later and so i guess the concern i have with your argument is that as i understand i regard it's not a necessary result from the internal intervening event that appears to be causing the backup state not the internal collision itself and so therefore it's not clear to me why we can say that i have our internal collision is just like ext with the contention resolutions game of figure six but it talks about a packet waiting in step six forty that gets superseded by higher for the packet and that says even if the packet waiting that is the lower part of the packet would get another back off and if you look at figure six the packet waiting step six forty as an arrow up to checking the channel to see whether it's available for transmission so you know those packets are in step six forty the packet waiting in step six forty the local already one is waiting for the next transmission opportunity the high powered packet gets it under a figure sets the box next to the check in the channel says yes or no whether the channels are available or not that it does that low party packet then gets the note and goes to step six fifteen perhaps that message would just wait however here are a couple things first off the board doesn't find that well how do how does conventional buffer management normally occur in science system where there's two cues and then and a message from one of the cues wins internally and then goes out the door what happens to that other message in the other q i believe the prior art that other than  we're going to send the high even if it means we back off a load now that even if we believe is the condition of when these two are contending for the same transmission opportunities we have expressed language and i agree this is not figure six or anything else you know if we're talking about a pure internal collation if that's the label we want to use namely where without looking up the highway or trying to get figure six looks like it is a tire only about messages that are treated a particular way because they've looked at the highway or because they've gotten on the ramp but not at all including in box only in a chart that is about messages for which there has been a a and i can't in either of two senses senses get on the entry ramp or at least look at the highway but not messages as to which you just said internally i've got two things going at the same door at that at the same time and i can't at that well but your honor i'm in this is this is the language we will use it for instance so a packet with higher hurdle but a packet waiting during step six forty that's the express reference to figure six the box at the bottom so we know there's a packet waiting there and that's the lo packets being discussed there a universe limited to those for which there has been either a move up the entry ramp or a look at the highway to see if there's going to be room on the highway either of the two ways that we don't actually see that in a very well and that's where i would take issue with for example for six because six forty is about a number of packets that are in the waiting box and as far as i can tell from the figure six that entire box consists of you know i'm going to change metaphors players that were once on the ice and are now in the box and at once you're in the back you can have any number of different rules for who's going to go out all in but it doesn't have to do with you know with the packets that never went into the check the highway or try to get out and i'm not sure i understand your analogy i think the party package it's way you step six forty there's no indication it has ever been attempted to be transmitted before let except that it's in figure six which at the very top is all about check the highway to see if there's room figure six how did the packets initially get into figure six i guard describes that elsewhere and talks about the packets that are that have got into the queues they come into the system and that's where the buffer management whether or not there would be back off apply even if you look at the forbes findings and doctor to fix statements he agreed that sometimes you would receive back off to the lower priority packet so there's no there's no dispute about that and that's where we say the in this court change this a patient law results in a legal error here they came in and said oh this is just a possibility but in this embody amount in the buffer management embodiment where it's since the low priority packet to step six forty and says oh what a high party packet is going to jump it even if that just taking figure six for which there has been a priority but that is absolutely not the case given the buffer management statement which is about six forty referring to figure six which all starts and i would point out that there is a distinction between how i garri characterize an attempt to transmit they've you know if the channel is busy and you get a back off just because the channel busy that's an attempt to transmit collision from the losing message goes to back off stage then why is it that i regard as figure six teachers that if i read that what's really that event that causes the backup state is when the message is ready to launch but it fails to transmit i'm not sure i understand the game i guess is my understanding right now vox six forty is that the losing message doesn't immediately go to back off stage the losing huge eventually has to reach box six hundred to check whether the channels available for transmission and only if that one is losing message now winning message learns that the channel is not available to transmit well that once upon a time who's a message going to back off steam so there's an intervening event that causes the back not the internal collision that occurred in talks but in that's your are where i think i would explain the intervening event that creates the back off is the statement as the high priority packet supersedes because you know the low current packet was waiting for the next transmission opportunity how pretty packed it gets that the only way i ignor statement even if back off can be applied to the local packet can be true it's because the high purity packet jumps a line to get the transmission opportunities low current packet goes to the no route to step six fifteen and even in their own grief i ve can see it's the only way that that packet could get a back office to get to step six fifteen so the intervening event is the superseding high current packet thank you i want to talk about say your sex because i think the panel fortunately understands figure six better than i did life first got this case let's not forget though that this is a substantial evidence case this is a case in which the board examin might possibly and motorola has it i'd argue but that's not the standard here and in fact i want to discuss why this new art was actually do on appeal this path one path to this was a presentable low but i think if we understand figure sex the questions are all resolved i like the i like the skating rink analogy but i think what we have to decide is and understand where do the packets initially come from this at this figure six is all about external collisions this has nothing to do with perhaps and the patent i agree patent does say where the packets come from initially so you have these cues twenty three after the allocation of q o s transmission of a packet it accords with the invention includes collision avoidance using stochastic scheme described a figure sex so what happens you have these internal that the priority scheme with the within the the the queues picks it comes out and it comes into the top of six hundred clock shown here that's what happens in my driver diagram i have a pipe running is the highway i think of as a channel that channel the now defines extra everything that happens now is the system looks externally at the channel the state is a busy or not we're no longer talking about internal preemption we're talking about extra localism avoidance and what happens well you have two paths if you come out and you see the channel appears to be free you said the message and if it if it goes through to get acknowledgement back you're done that's actually down to em on six after six ten but if you set the message out you don't get acknowledgement back then you go over and you get this magical backup treatment but that's after an unsuccessful attempt what's the other path whether path is also an unsuccessful attempt but there you listen to the channel the channel says a busy are unsuccessful transmission attempts it says i got he says it register a failure if you try to if you decide not to send you don't even attempt it isn't that the other side make an argument that merely sensing the medium for whether or not it's available or an available sense of the chair or whether it's a vampire and unavailable isn't really a transmission at ten well they say that but but that's that's consistent with their specification this claim doesn't the patent actually talks about actual collisions so there's actual collisions which is when you just said it out of bounces back but this claim doesn't talk about it even though it says the claim has language register a failure and if you read  the packet and the number of failed transmission attempts failed transmission attempts so was it reasonable for the board to say that if you get to six fifteen along either path it's an unsuccessful transmission attempt when the but both paths result in back after we met because of an unsuccessful transmission attempt and as the panel recognizes the claim talks about receiving back off treatment not as a consequence of an unsuccessful transmission attempt but back in the queue back in the queues when the priority is determined and one packet is superceded over the other instead of th second packet just waiting that second packet is given back a treatment that can accuse that's the as if language as if it happened already gone through the system and had an unsuccessful transmission attempt and it goes out it might go through to the somewhat that what i got he says is we're going to hold the second one even if by folding it it means that when it goes out come in the six hundred the channel might be busy and then it's going to go through another if another vehicle it that particular for sense actually is even even better for us because it's talking about what happens and six forty it is the court has recognized six forty packets have already been through the system so if you if you're done in six forty you've already come through this which means you definitely already have got back our treatment before you come through this extra little system so that  unsuccessful transmission of chip looking at the channel haven't looked at the channel either having africa allusion or a pseudo collision based upon a busy town so with that understanding of figure six propositions were findings by the board and i guess i want to focus on the second one he mentioned which is at page twenty nine we grieve with the titian or the both garri both i have very references so  one that is being discussed in this appeal specifically contemplate and disclose the scenario in which two q s have dated that is ready to be transmitted at the same time is that you read that as a limited to at the funny the funny doesn't doesn't give us a different conclusion the point is that if you have two packets ready to go at the same time the only way they garri you're going to get back up treatment is if you go through figures of x you check the channel for transmission for availability and then you either collide or you find it's busy and you don't like there's nothing in that sentence that says that th means it just means and the board says the decision in the cues to decide which message to send is done without regard to what might happen later without regard to whether or not holding that second message superseding it might result in it getting out into the into the other the highway and having a collision the i got very priority scheme says nothing about concern about only checks for the cue that's sending out the message there is no sensing of multiple shooters that the priority the party system determines which message goes out in terms which to the messages coming from the channel check or checks for that regardless it's not just sensing that of course i guard senses the communication medium who was clever and novel about the patent is that you're actually going to be sensing for at least two  first second output cues the board that says well i got to teach is that well that's interact because the claim that structure was wrong the board read out the claims without the claim limitations it has to be given me to my third point the the same buffer management statement at that thirteen that we rely upon so the board recognizes that that statement says i've got to choose whether data ready to go at the same time and court again to dr to fix statement which the board referred to it at age three seven six six it's also relied upon by the board dr to fix says when he talks about this even thirty six the first third statement like the first to recite a characteristics of a communication system that prioritize packets but the transmission of a higher per packet before a lower priority packet sometimes calls the lower back to it or another back state and that is why we are contending that the disclosure of an internal collision where there is only one opportunity to transmit and it says it's in packet waiting and again if you look  ivy's brief they will admit the only way you get another back office to that that superseded packet is it has to flow through the charge it has to flow through that other that one opportunity is taken by the hopper repackage it to give it back off that's why we contend the board's findings show express anticipation here with respect to the failed transmission attempts argument that council made this is not the basis for the board's decision there is nowhere in this decision where they they say oh well i agree ari says that if the channels are busy that's a failed transmission attempt and so somehow that means arias talking about a column thirteen doesn't demonstrate anticipation that is an argument that i ve raised a lot but it is not an argument that the poor relied upon and the board did not rely upon for very good reason there is a false distinction being race between what i have garri discloses where i've already says well if the channels busy i'm just going to count that as a failed transmission attempt just like if maybe there have been other stations or extra relations and the reason they count that is that goes into an algorithm and how much to delay so they want to have their station if there's a lot of failed attempts because other people are using the medium you keep crunching the back off time down so you got a better shot to get your message across  it's a slightly different algorithm has nothing to do with the claims but i adore each statement about that has nothing to do with what is a failed transmission attempt in the three ninety two pac because three nine two patent acknowledges that if the communication medium is busy that's not a failed transmission that's simply the medium was busy and finally with respect to the cross appeal we think the board was correct to rely upon the language in the plane that talks about the sensing for something the message data units that it actually says from message data units the first and second  cues are required to release those the sensing opportunity is an option you transmit the message data of units i believe has not contested the board's rejection of their arguments below that there had to be a single operation has to happen at the same time but that is not a requirement in the claim and that was not claimed construction they offer below and this is a system claim so if it senses for one high priority queue at one time