and then they got to respond when we got a certified on a priority issue because the board agreed we bore the burden of proving priority so we got the last word on that issue but we did not get a reply as we had reversed in my wrong i mean typically whether they we didn't offer instruction we said they failed to comply with regulations and they therefore it should be dismissed the board went on its own and created its own construction based on the argument it rejected for additional years and then made its own art we did not offer and so because of that the reply brief in its entirety should have instructed was abused discretion to avoid to not implement their very regulations which is found appendix five ninety four not any new argument in or vibrate than the entire quote parts are not parts of back regulation says don't do that we don't want to be in the exercise because we want incentive on just mirrors to not put in new arguments is your entire argument this what i would call a procedural argument or did you make any even have to reach that question about the twelve mother it's the what if you just give up the references relied on work to have there are three combinations your honor the british year two of the combinations all have creating references there is one streaming let me step back to second issue on streaming is whether or not language of immediately available for playback of processing should be included in the construct that's the crux of the issue the specification is clear that and then if we look at the file history the patent owner again says make an argument to the examiner of streaming means immediately available for playback the processing in the board in the petition or to reject that statement by the patent owner simply because the examiner disagree with the argument based on whether there are different characteristics of the type of information there that the patent the panel regarding streaming audio has characteristics that are different than other data to be down was wrong or incorrect so when one looks at the file history in the fall in terms of record it's clear that this definition should have included the music playback and in fact just moving quickly to the dictionary that that site first felt no party cited the dictionary definition to the board of the board went out on its own and found second the board makes no attempt than to say that this direction dictionary definition was available at the time of the invention or is a dictionary that one of skill would have looked at compounding there is that definition they find says streaming immediately available for playback to download in the book or just drunks that section of this definition because of its alleged confusion related  her party's review a request to cancel is unpatentable one more claims of a patent only on a ground that could be raised under section one of two or one of three and only on the basis of they didn't state the claims credit but they're not allowed to do the analysis under one twenty congress calls out why everyone that's necessary in order to do an analysis under one of two or one of the three you have to first decide what says right in the statute priority of dallas based on one twelve paragraph one written description it is the one twelve house nobody disputes that it was a one to all announce that it was unnecessary predicate to decide the one o two issue which is expressed what they are but congress they didn't answer the question n t p already i remember being on a panel that answered this question yes your honor let me just to two points real quick congress calls out certain sections here if congress wanted one twenty to be first look at the statutory framework for reading section three zero three says the director will determine whether a substantial new question of patentability effect being claim or the patent concerns raised by the request the very broad language very there is no looking back it is your are correctly pointed you are on the entry in t p chase and in that case one of the big one of the fundamental basis for that decision was that read salmon nation was supposed to be like the original prosecution that's not repeated again and claim nine by the time you get to claim fourteen it just says rechargeable battery and a means to recharge means for recharging in the petition we laid out in detail where the prior ar disclosed this rechargeable battery can claim one d as well as the physical interface and the conductive path for data and power supply to recharge the batteries in cla interface and the path to conduct data and power to recharge the batteries when the patent owner filed their initial response they didn't contest that we had adequately described the means for recharging the plane fourteen this was not raised in one of the three institution decisions the panel specifically called out that neither party offered a construction of the means post function and claim  that's the same structure in this investigation by the way to which the petition had pointed in its more general sort of analysis of where the specification of each of these various limitations in the various was to be found so there was no hiding the ball there was no question about whether the patent owner was put on notice that we were asserting that it rechargeable battery and physical interface and passed to specifically it was well known to person of ordinary skill in the art to use a physical interface to communicate that and receive a recharging power in a portable device that's the precise structure and interpretation that the board gave to the means plus function claimed and we had shown where it was in the prior art already in the petition and the board addressed to the extent that was disputed it was actually disputed only with respect to whether a u s b could actually charge a phone back at that time the board said yes with respect to claim one and then when he gets to claim fourteen then says the us be or is known in the art and it would have been known to them to you to use it to recharge your batteries so this is not a question of the patent or not having an adequate notice of of the construction or of the evidence that in the end the prior disclosed that and with respect to the reply brief what the board said was that to the extent that in the reply for the first time that the same son had offered an alternative that you really claim ten has one limitation that it adds to a claim now which is the president claiming a one limitation it has to be configured to accept an upgrade that's the only limitation i have right it has nothing else are you telling me the board is free ball screwed up and forgot to address claim ten and i have almost no doubt that only me and you're going to prevail i'll claim ten but i don't see how i can except under the a p a given all of the decisions we've friend heard in the last year that the cases to which you refer are all instances in which the issue that the board did not address was an issue on which the parties were disputing before the board the board like in the you do contorted by relies on the to whether in the of the other claim limitations are disclosed in the prior art it did not have to new they said did not present arguments about those limitations to the board that's it's the fourteenth so i think that unlike those other instances where the parties are genuinely disputing something where there is no dispute about something in terms of how the parties are frame the issues the board doesn't have to make explicit findings about that and so with respect to claim ten again i go back to where where where the pandan are addressed that what they said and the fact is claimed ten rises or falls with twenty eight because there really was it's discussion of claim five confirms the same analysis that is that the side references disclose downloading software to a portable electronic device and that's an appendix twenty five twenty six so there really is and was no dispute about this and so it's not surprising that the board didn't make a separate finding and under the new basic case they didn't need to and it would be a can pointless exercise to remain and for them to simply say there there there was no dispute on that point and claim thirteen is the same that's  it's at page pendants five seventy five that there's the same sort of like it rises or falls with claim eight there are other dependent claims for which you offered separate arguments but there was not any argument made with respect to claim thirteen and again with respect to that issue to the extent that it was sort of like in other claims the board made a specific finding and this is at the next thirty seven that the selected songs are delivered from a service center to the cellular phone and then retransmitted by the cellular phone to vehicle loaded acoustic equipment so so they are agreeing with our characterization of the product reference at page thirty seven so again i don't think there's any need for the court to make that finding with respect to the streaming question i think with the board  was very carefully analyzed that streaming can have kind of two parts one focuses on that the transmission of the data from point a to point b and the second connotation  what you do with it at the recipient device once it's been received and the board correctly said that given that this is b r r in there would have to be some clear indication that the additional limitation was  required that they didn't find it because there are references to really both and if you look specifically even a claim one claim one says he lies and wireless communication module to quote stream a signal representing at least a quarter of a song to the recipient device over a given asynchronous wireless channel so the focus again is on the transfer of the data from a to b not what you're going to do with it specification itself and they say that the dictionary definition also says that the you know especially to mean playback that that's an additional limitation that's not essential and so they found it in the ordinary meaning they found in the specification issue reports they also pointed out that in the prosecution history of a grandparent patent examiner had specifically rejected this argument by the patent owner is that it's just not there you're trying to add an additional limitation with respect to the priority issue i think and safety from closes the argument that it was an inappropriate tool to engage in a se argument about the nine to six words issue of course that would not be binding on samsung but we do point out in the brief that in that case the board has been pointed to the  five five six to five seven and there's a citation to column nineteen lines thirty nine to forty to forty five to fifty there are no columns in the eight twelve efficacious and they're referring to the nine four seven patent as issued and specifically to claims in that patent which were not part of the common specification of this continuation so that the board there just got it wrong and to the extent that written description  what did they did a party have possession of that at the time that is a question of fact different finders of fact can come to different movies on the basis of different records and i think that and the only explains the difference further questions thank you were not limited to only the claims that issued from the pad there were four or five citations to this message cation in addition to that which the examiner relied on to then find that the claims are entitled to the priority date so that is just a complete mischaracterization claim ten was invalid regardless of whether we raised an issue or not that the the board is required to proffer to those reasons for this court is reviewing court can understand there was a power outage is there a difference between just cutting and pasting the portions of the petitions briefing or saying we agree with the petition i think they have to lay out their power they reach the conclusion you know whether it's a saying yes it's found in the references and that happens to mirror what was in the petition that may be an option but they've got to give this court something to i mean about my question is why is it that sufficient if the petitioner says this is you know obvious and there was motivation for these reasons and these are pieces the prior i can rely on for the combination and they lay it all out in detail and then the board simply concludes we agree with all of the arguments made by the petitioner if they had said and the incorporate those arguments by reference in our decision is that sufficient i'm not sure that would be sufficient for this court to then review whether or not the board had articulated the reasons because there were likely would have been some dispute among the parties as to the motivation or the reference or something they would have to resolve that conflict what was their conflict and its argument the one twelve six does not apply to germany's recharge internal battery should have been in the position and not presented for the first time in their part of it if there was no assumption as council had stated they found it was new a new argument