limitation claim eleven we raised many issues in our precise like to subject your questions focus on two areas during my time first the court's conclusion that harmonics reliance on the t during the prosecution the applicant responded to requests from the famine or for more detail on various elements by conceding that every component was known and the prior art so that no additional detail was required the only novelty was the arrangement of those known to home in the parallel configuration that's in the record it eight to zero five which is the prosecution after referred both the missing limitation of claim eleven providing a second set of video data at a second rate quote a pre determined period of time close quote after the seven twenty nine seventy one seventy three one twenty nine to seventy six to eighty two and with that thank you for your patience i'm going to skip over the scope of reply in go first to th think as i understand it you have two different theories or arguments for why it is that that element is that i haskell is that correct i wouldn't characterize that as two different ones i think that as the board found repeatedly on all the prior claims claims one through ten the encoder qualified as the switch so abbott the argument was all of that and it was their first argument on pla any kind of intelligence where it is designing by a certain time ensuring that a second decoder on the back end is receiving a video data stream and a predefined period of time after a video stream is already been sent to a first decoder let me try to show you that if you look at column two lines forty one through forty four of half the states quote  for the system knows when the decoder will begin to coding it knows how fast the codes the encoder knows the size of the buffers it knows the bit rate it knows the amount of time it takes to  eleven i didn't see anything in haskell it's talking about some kind of pre determined timing relationship between two video bit streams being received by two those and then they arrive at a certain time you know through the channel after everything gets multiplex together but i'm i'm talking about this particular limitation that's talking about this particular relationship of a pre determined time between the receipt of two different video streams two different decoders i believe your honor if i understand you that column thirteen line seven other admitted prior art referred to the parallel configuration that mr sullivan you're into your rebuttal that you want to talk more about the redundancy issue or do you want to preserve your i gave my err on the side of republik time so if you can stand me for a few more minutes what i really want to talk about is the error on saying that we raised an issue in the reply and appropriately unless you feel that you don't you don't need me to  with respect to that the relief we would request is to remain and if you recall the board concluded that our argument as to haskell thirteen seven which i just read to you which showed the language on timing the board concluded that that was outside the scope of reply because it had not been raised in the abbott opposition research and it is such a it's such an obvious error i don't understand how they got it wrong i say that with great respect for the office but the a reply asserted that haskell did not account for teach the pre determined period of time and patience and they cited haskell and that's what we were responded to in the reply brief so it seems to me to be clear air you don't even need to get to substantial evidence standard the board got it wrong that this was new in the reply and they should reach on redundancy what i want to say is although they're interesting nay potentially circuit worthy issues on the question i don't think the panel needs to reach them at all i think it's sufficient to say that in the circumstances where the board and its initiation decision  we're not going to reach any of the admitted prior art just haskell because the only issue is parallel configuration and and haskell and ross near enough on that but in the and that was  the final written decision the board went off on pre determined system timing and in light of that the apply the admitted prior art was no longer redundant it went to the heart of the issue down to do that when it already denied those grounds means it didn't part those other grounds it formally denied institution of the grounds they didn't even have the power jurisdiction to undenied grounds i don't think they denied those grounds in the sense that one would normally if you are rejection on the merits they said we're not considering them and i agree that for due process purposes they then would have to state kind of that they did in liberty mutual at an earlier phase they would have said let's have you addressed this did you request or make a motion to have them request to consider these denard grounds there was no need to intel in the final written decision the board changed its position on life and then did you after that not only didn't  because we didn't after that lest you think that this redundancy issue is just another lawyer argument i was addressing to one particular component and that's the stream scheduler one fifty which is a big deal on the two ninety one patent in terms of timing it was admitted prior art it's in the sacre declaration at paragraph twenty seven but let's just read what the applicant said when the examiner asked for more detail about  well known in the art no detail to strips in atoms leave necessary close quote that's in a two zero five and that's the type of admitted prior art that the board never got to thank you for your patien first are the failure to raise this issue in the petition and why the board was correct in not considering this argument the second issue i want to address also is the related issue of the alternative holding the board which was that the other side had failed to meet its burden of proof and that the evidence that it submitted in reply was not adequate that wasn't even addressed in my friend's opening brief that argument came in the reply brief once again a case of the argument coming to late and it's wrong for all the reasons just that you asked my my friend about with regard to the hassle reference but let me start with the reply regulation my friend seizes on the language must be made in the motion here that motion is the petition the petition page ninety one the word motion encompass the petition i think under the board's practice that is exactly what it's talking about because it is talking about the the patent owners reply in this in the subsection on any event why didn't they preserve the issue in the petition when they clearly did reference haskell if you look at page eighty ninety one it's not just a reference to haskell but it's a reference to the pre defined period of time limitation what you don't see at page a ninety one we're claiming eleven is discussed in that one single paragraph you see the first sentence is simply a recitation of the claim language and in  shorthand and then what is offered after that is for example haskell teaches the ability by the way that's capability language that's not actually a teaching or disclosure but capability to individually control  portion of the prior reference or a separate portion a different column in line number to give or be relied on in or apply grace it's i don't think i don't think i have to go that far and certainly the court wouldn't have to go that far but what you do have here is a complete and utter failure to discuss that one particular limitation of claim eleven a complete and total failure to prove it's a failure of an essential element of the case and if you look at it you know we're being credited for having raised the issue that harmonic then had to reply to but if you in truth if you look at page eighty five twenty seven and look at where we did respond we simply said they haven't addressed this and what forty two twenty three says and say those sound like the same in the war time is in there also and system time means something that isn't in period of time but it's really what is that time it's about when you start the second stream of program ask the question doesn't say anything about starting a second string or programming or anything about that at all and that's the entire limitation of mine it's not just predefined period of time limitation that was not proved it was predefined period of time after the first video array met that's not that's not enough we don't there's no showing whatsoever that the predefined period of time after the first video array begins receiving the video data limitation is met so this this court sho affirm for either or both of two reasons one the issue wasn't properly raised and two the issue was correctly all in the alternative decided by the board and i will i will point out one last thing with get traverses statements and it's not enough to permit meaningful appellate review well a total absence of proof it doesn't take more than a couple of sentences to be able to say that and quite honestly they gave more attention to this issue in the board which instances the other grounds were not something that the board could revisit later in the proceeding decision denying it ground for review under section forty two point one zero eight b of thirty seven c f r is a denial of institution and then a denial of institution is something that this court simply cannot review under the st jude decision just curious are there other instances where the board elects to grant all the grounds that it really does believe there's a reasonable likelihood that claims are more likely than not unpatentable but then the board will after granting all the ground elect to put on the shelf all but one and then go forward on a trial with one and then just leave the other three or four at the just in case backstop in case the one ground that they go forward on ultimately proves unconvincing the board does not do you follow that procedure in harmonic was suggesting and it creates it is in some ways a case management issue but it is a determination not to institute on a particular grounds and that is something that isn't reviewable whether it's a case management decision or a decision on the whether met th threshold for instituting i p r and the due process concerns that the parties need to be aware during the proceeding of what she's been need to raise and i think one thing that's very clear from this record is that the parties were well aware that these issues could not have been raised during the proceeding and i'd just take one example and at page eighty five thirty six which is from the petitioner for apply here it says the following grounds were not instituted due to redundancy one attention for any reason yes your honor had that much power and discretion that the statute provides when the director may not institute a proceeding it does not ever indicate when the director is required to institute  proceeding and congress was very clear that it was very concerned about the agency ability to perform these proceedings efficiently and to complete them in the one year time frame that set forth and it made very clear throughout the statute that the agency can consider its ability to complete the proceedings it went so far as to say that the agency could just stop instituting proceedings at all for a particular year during the first four years of the f a a if it thought it could not handle the proceedings and so the given all the concerns raised during the proceeding and or recently could have been raised during the proceeding and it's very clear from this record that the petitioner here harmonic could not reasonably have raised the admin a priority rounds or take grounds or any of the grounds on which the board did not and i'll admit it really a paragraph above the paragraph they cited earlier but for whatever reason the board said well that's a different paragraph so we're not going to i think what the board was saying was that there was an additional argument being made and that perhaps they cited to something in the initial petition but being called out for not having made any argument about it does not allow you to make an argument about it instead of a fair reply to being called out for not being allowed to not having made an argument is to show that you didn't factor the argument not to make the argument anew i think that's the board's approach and i don't think it's use its discretion in declining to consider that aspect of the reply o idea why that's correct your honor it's it's an interference case and we didn't at the p t o consider whether or not to intervene and one of our considerations in whether or not to intervene in the case is protecting the public interest and we don't see that concern in term interference cases where it's deciding which particular party gets a patent there's no real public interest in who gets a patent we have a public interest in the funding decisions as dependability that the agency makes but we have less of an interest in defending  the particulars of which patent owner is able to have a patent what decisions you might disagree with well i don't think that should be taken against as an indication or an admission that the agency disagrees with the position  in my partner mr young has chemical back and try it what's left claim seventeen twenty and it wouldn't shock anybody if their appetite the position that we're stopped from raising the implied the the admitted prior art because it had been presented to the patent office and as you said well maybe they rejected it they put it aside or did they reject it so if i've got nothing else from the panel but a clear ruling that there is no stop on grounds presented to but not ruled upon by the p tap that would almost make the trip worthwhile that would technically be an advisory opinion right we don't have the facts i mean i see your point that those alternate  grounds you could not raise them in this particular proceeding they were in fact not raised because you were blocked from raising i so i completely understand the point why there shouldn't be if possible here but i don't know if that means that we can actually have her opine on that i prefer to call the teaching rather than and as for you pinion it would certainly be of use to the district court deciding the case i think on redundancy i want to reiterate one could given what this court is doing with various procedures that the p t have is adopting one could imagine a new ruling if the issue is squarely presented in the unavoidable that they can't just punt on an issue that it isn't permitted by the statute they can say we're too busy they can say this is redundant of another proceeding but that within a proceeding they've got to reach them all but you don't need to do that here this is a much simpler case on redundancy grounds which is having changed the the for its view as to claim eleven and a half full you then needed to reach the admitted prior art because  i want to talk briefly about abbott's comments on how they were sam backed and as as warner wealthy is to say let's go to the videotape this is abbott's response below a five twenty six twenty seven quote there is no providing video data to the remaining video to the compression or a as a let sees a predefined period of time after the first video data or  begins receiving the video data a first rate close vote and that's what we responded to so whether or not the perfect words were in the petition or not it can't it can't be we were all the lawyers it can't be that when you're doing a reply brief and the opposing party in their opposition group says x is not true that you're not allowed to say actually x is true which is what we did here with respect to this not being in the petition again in i'm now talking just about haskel not about the voluminous applied admitted prior art with respect to claim eleven in paragraph one twenty nine of sacre which was all piled up with protection and sake  operation of a prior art component in a known arrangement so as to cause the video data decompression arrays to receive data at some controlled rate at some predefined period of time after the change in state so the notion that we didn't address predefined period of time until the reply brief is not correct the other portion but again i would direct the court to this hastert allington with your last point i appreciate your patience and