morning ladies and gentlemen we have four cases before the court this morning one of which has been submitted on the briefs the st case before the court a sure incorporated versus clear one inc an appeal from patent trial an appeal phrase fixed beams but then the board expressly found that it didn't disclose bixby aims within the meaning of the patent that's being challenged right at the difference that is a difference your honor but when you look at the decision two points here when you look the decision the decision recognizes the six pm disclosure but then in its analysis that starts on page twenty four it refers to figure thirteen dollars and then it says that the next section is fixed being former other places in callin that describe fixed beams that it doesn't refer to it only refers to this fixed beam former design and so one point is because of the inconsistency in recognizing that their fix beams disclosed but the not referring to them in the analysis and finding that they're not disclosed that's a legal air well as i understand what the board was saying was that it understood the claimed inventions reference to a fixed beam to be referencing that the fixed for the for the entirety of a teleconference but for the prior art when it refers to fixed beam it's not talking about a beam being fixed for the entirety of a teleconference it's only fixed with respect to a fairly short time interval in which from the perspective of the echo cancellation module it looks fixed but for the over the course of the entire teleconference it's not actually fixed there's some kind of change going on either the individual beams and cells are somehow being adjusted according to some function or there is a different selection of a subset of different beings that are being used employed during the teleconference and so in either scenario the beings are not fixed over the course of the entire teleconference so fixed means yes has a commonly understood meaning but fixed as to what reference point and for the board they said the claimed invention is for the entirety of the teleconference and for the reference it's only you know perhaps with respect to how the echo cancellation  you speak with specific specificity to that yes your honor st of all the claim construction allare of the board was that it's fixed before a conference and then the way that board applied that construction to kellerman was that if it had to be fixed during a conference and in our claim construction section we discussed that before conference leaves ambiguity about what happens to the claim during the conference and what happens to the  x only on the output of the fixed beam former and that is the relevant disclosure what he's talking about in his testimony is referring to picks being design and also it's taken out of context because when you read  and i'm not sure that i completely understand why your much narrower construction matters so the ultimate resolution will scales your honor there are two reasons st it doesn't matter to the ultimate resolution of this case because no matter what the construction is fixed beings are the same in column an and the disclosed in the fifty three patent however you have to do a claim construction in order to make this decision and there are downstream litigations dealing with the five by three and its progeny and so to the extent that you have to rule on claim construction in making this decision district court judges may consider your decision even though it's re it still may be considered and that's why it's important but just to clarify i think you said and the other side also said and so that makes it under spirited that the actual claim construction dispute here doesn't matter as to the question on appeal as to whether kellerman teaches this limitation right now your honor it doesn't matter the limitation is taught and i mean i disagree that it would be an advisory opinion simply because the court has to do a claim construction to reach in validity however if the court doesn't have to do a claim construction to reach the decision on between the two right i think that depends on on the ultimate result because if if you know i don't even think it depends on that actually your honor simply because you render a brief construction other courts are going to look at that construction in dealing with the litigation and while we all know that greed doesn't have to be the same as a philips construction at this point in this case at this time the difference between the two is not is not at issue and it one point it says it may occur during the initial training phase only and the testimony of the experts is in agreement that during the initial training phase as before conference you can see dr boy's testimony at eight is it your view that that still nevertheless needs the claim limitation of fixed beams  beams can be changing during a conference then that that still fits under the claim construction because the claim construction provided by the board says nothing about what happens after before conference just says before conference and s in an adaptive being situation your honor it could be it is fixed before conference but then during a conference the adaptive being moves around and adapts to the to the said signal situation and that was explicitly excluded that that's in that prosecution history is says they're not stupid that's different than the type of changeable beams that that line we're talking about ways that you can add to milli adjust these fixed beings you don't have to do it during a conference and that doesn't change anything in the earlier discussion he says you can you can do it only during the initial training saying no adjustment if you have no more questions of reserve my time ok thank you good morning your honour's and me please the core of the only question your owners need to answer on this appeal is whether substantial evidence supports the board's actual finding that the beam former and figure thirteen point kellermann does not have parameters that remain fixed her throughout the conference and there is copious of evidence to support that inclusion that's the construction that the district court ultimately if but it didn't the is the support for the board's conclusion that they have to be fixed before the conference or the parameters for the for the team have to be fixed before the cup well that is the board's construction  number one of the support for that comes from the specifications of five hundred and fifty three patent a reading that in the of the district court and the board read it to understand correctly that the reason why the beams are fixed is to prevent the a d c as from having to read up to change in beans and the time when that matters is during a conference and it doesn't matter outside of a conference and so that's the basis for the construction i also want to address the the board articulated its construction in terms of let's fix it before a conference what more its construction is but the as applied to the board apply the construction as ok if it's fixed before the conference it's unchanging during the conference it's really the same thing expresses two different ways it's a what's your what's your response to that is contention that that that that aspects  of beames adaptive beamforming and the applicant simply noted that that is one example of beamforming that is not that was certainly distinguished that's all that's all you can read from the prosecution history  nd and in the beam form or block it's taking all the signals from all the different microphone and then making a certain number of beams that's less than the number of microphone it's not just making a single set up or the system can be used continuously and i seem continuously is in reference to over the course of the operation of the entire during a teleconference sure like to jhala so then it comes down show that the initial training ses would happen before a conference begins and they failed to do that in fact kellerman is silent as to when this initial training phase occurs and there isn't a mission from surest counsel board's reasoning and there's confirmation of that elsewhere in the record i want to direct your honor to appendix page six thousand and twenty one this is testimony from dr kellerman during one of his depositions when he was explaining exactly what we're talking about and he said quote we would initially run an adaptive beam an adaptive beam formal which picks our two voices mainly right and learns the background noise   minutes of a conference it's probably more like the st few seconds i mean to depending on the technology and how well the algorithms perform it could be fractions of a sec but the point is it is definitely happening after the conference has begun because it has to it has to use the talkers of voices to do that initial adapt ation you one important point here is that when we're talking about adaptive systems they adapt their coefficients their parameters based upon use operation there's not a separate design and operation of an adaptive realtor it is if a person goes in into the room in the middle of a conference call and says there are the speech then the adaptive process starts all over it could be yes now in the five hundred and fifty three patent it system would handle that differently because it experience and a different fix being which probably had not been utilized before would pick up new talk her in the position where he or she cheated and sometimes when that person is talking that sixteen would be selected how do you understand kellerman to handle that exact same situation in kellermann situation because because the beams are fundamentally adaptive that just held for brief periods of time to allow the e c s to converge to their proper coefficients what would happen is one of the beams we don't know which one would adapt to find the new speaker and during that time  a new expert and the new experts said well let's really look at what one of the art would understand from this disclosure rather than having someone try to teach us what what they might have been thinking at the time and that new expert ex when the word fixed is used it is always in reference to some observation interval and the observation interval that is relevant to the kellerman reference whenever you have something that's time invariant it can be time invariant for two seconds it could be time invariant for you know two days but there but the real question is in in in the use of these beams did it actually teach time invariance throughout the conference known the kellerman referenced as not that's why the board looked scoured the reference to look for some disclosure of holding the beams fits for the entire conference and they couldn't find that and there's reasonable support for that it's in kellerman's testimony the kellerman mr coleman the man dr tillman it comes from the document itself and it also comes from the testimony of dr lloyd clear ones expert who provided testimony about how one skill in the art would read the coleman reference and his reasoning tracks almost exactly the board's reasoning either beams are selected and the selection happens or changes during the conference or the beams are steered in adaptive during the conference so the beams respond to the the background noises  as the author is talking about the fact that you have signal dependent time varying being formers that's the context he even says that look to make this work well for the c s you have to hold the the echo path model constant for a sufficiently long time and if you look at that diagram on the diagram on the next page especially part c you can see that adaptation is unable in this example of five and a half seconds of a conference it's enabled for half a nd and the beam formers are held fixed for the other five seconds and it's during the about about during the course of the teleconference we look into those those things are for a separate independent country and kalman that doesn't it's not relevant at all to this particular d disclosure environment about the initial training phase only it is really really all we have to really understand and focus and zero in on is the little training phase only likely happens during a conference at the least the initial start of a conference for north seconds a few seconds who knows how long but it doesn't matter how long its journey conference and then the other important finding that  found is that even assuming for the sake of argument that this initial training phase happens before the conference the board could find no evidence in kellerman and that the beams would remain fix i'll give you two minutes for rebuttal if i have three points hopefully i can make them st counsel focused on could and may repeatedly and his discussion and that's because everything in the design section man is optional and he describes it as could or may or can secondly counsel argues that kellerman system is a time varying system however that's interesting because so i no timing restrictions and the only construction that deals with the prosecution history and that deals with what clear one was trying to distinguish is a construction that recognizes that the claim is not