claims that ability and then our alternative argument and make no mistake it's an alternative argument we rank order we would prefer a result that agrees with us on a path to ability but the alternative argument is that there ought to be a issues if we agree with the board's claim construction then would you agree there is substantial evidence to support their ultimate conclusion i have to divide the issues in my mind part of our people is a claim construction  the us whether the claims require multiple transaction authorization right so we agree that with the board that that it could require just a single transaction right then would you agree that that that substantial independent argument ok however let's get to that point construction because if it's weak and really wrong and then i'll get to the certain store example later but the you know you're honest the prosecution history is sometimes like here the best evidence of what a disputed claim term means and with your honor's indulgence all this re briefly from the prosecution history july two thousand eight hundred sixteen fifty two the franklin patent discloses an invention that is significantly different significantly different in several important ways from applicants invention not claims specific applicants invention specifically the franklin patent relates exclusively to a substitute number that is used for a single transaction only and the quote ends right there i'll just pause and say a substitute number that is used for a single transaction only is exactly this aspect of the cohen reference two thousand and eight let's go to may two thousand and nine at appendix fifteen seventy five for what was the page of the first claim amendment us uk amendment itself sixteen thirty seven up and then the remarks that i quoted sixteen fifty two apos for just a second if if your owners want to pull of fifteen seventy five on that page in may of two thousand nine hundred eight again the franklin patent does not disclose a payment category that is to a single merchant but rather a proxy number that is limited to a single transaction and by then your honour's as well the claim the claim language has been amended again with yet another references to purchases plural as part of what a payment category is so good can i ask this and this may not be fresh enough so one can read tell me why one can't read these several passages as saying franklin is about single purchases it's not about single merchants ours is about single merchants that doesn't mean that yours is about frankl and not single versus multiple in fact i believe your to answer your question i believe it's explaining that the single merchant limitation worded the verbiage for that for how you define a payment category limited to a single merchant if the applicant there is defining it not to cover exactly what he said a proxy number that is limited to a single transaction so he source we can get all in global he's saying if you show me a single use card which is just a proxy number limited to a single transaction i'm telling the world i do not intend to cover that i'm telling the world explicitly i'm pointing to a l the apple controls not the place where he starts column the column a paragraph he talks about this is where i'm going to discuss the multi transaction authorisation by so the structured specification builds the claims yes your honor the dependent claims talk about multiple instances of using the card the independent claims talk about the payment category definition having to include multi transaction capabilities so there's a distinction here between how you define the car what the payment category is and then the ultimate uses of the card and of course the dipping i claim is consistent though  the claim structure is actually consistent so claim one for example is under our contentions multi transaction authorization capability that's the definition of the payment category so it can't cover a single used car and then claim  the words of the claims as purchases and let me let me also point to the preamble talks about making multiple purchases using terminology that forms the end scene basis for future claim limitations using the term purchases is the classic scenario where the preamble does breathe life and meaning into the claim and then finally the most undeniable claim language that that one can see in the patents now we think all claims have this capability but i would ask your honor to look at the forty six that claim twenty four and the ninety eight patent claim seventeen in the claim limitation for those there's explicitly the words defining what is a payment category for those claims it permits a quote series of language as previously construed in this court not just a recap of that construction by this court there's a prohibition against or i think the court called the timing sequence but there's a prohibition against what i'm calling pretty identifying what goes into the placeholder for a payment category in terms of the identity of the merchant so the court said that the first stage in time there is a setting of the number of the merchants but not an identification of who they are and then at a second point in time th identification of who they are that's the claim construction from before certain story then you hand that carbon a consumer the reality on the ground is that the consumer has no where to go but you don't send the consumer on a hunt to to guess whether it's the dry cleaner down the street or the sears across the cross town so them in my rebuttal but on the policy change why at the very minimum there sorry man there's no dispute that i could perceive in the briefing that the patent office is policy actually did change with the labeling of caltech in two other decisions as a formative and that policy as it now exists contrasts it from from al it existed before is that the discretion of the board under section three fifteen and twenty five has to be channeled so that there's that so that there is no conducting of the trial there's no conduct of i p r no review when the same petition or the same attacker has previously presented the same hard like it unsuccessfully but your point is discretion are ready to say only that that there is no policy it cannot rationally depart from the policy in future cases well that's different than right what i believe your honor might be referring to the retroactivity question right there the retroactivity question is actually resolved by the fact that this is a policy change without the statement of non retroactivity so it's it doesn't state hey this policy only applies in the they please the court only links for master card we have saved five minutes for the patent office representative to discuss some of the procedural issues but i'd like to turn to the merits beginning with the claim construction issue i think the court correctly multiple purchases are required or not is irrelevant to those claims they fall under either construction given the board's findings as to the disclosure of cohen's type of group of stores limitation as well as the board's reliance on the any computer board's claim destruction is correct as to whether multiple purchase that required or not that into all the claims disappear my point is that if this court were to were to try to change this claim structure in some way to require multiple purchases and to conclude that somehow and so tell us why discussions of multiple transactions also include single tra supports that yeah i think so well the so then this turns it into this which claims we actually look at because we just heard an argument about series that appears only and i think two claims of crossing hands there was never a construction of series the board was never asked to reach that that has to do with how the pattern argued this case below which is to just say all the claims require multiple transactions and that they focused their argument on one claim in particular and we can look at that level of claim so argue these independent claims so so if there is an argument being made now that series requires multiple transactions that would only affect two of the claims not for instance claim twenty one and they never argued that below they never argue that there was a different claim scope across these independent claims they chose to say that all of the claims require multiple transactions they focused their argument they said that's true of all the independent claims they mention every in a minute claim said they all require multiple transactions and they focused on claim twenty one of the nine identical across both of those proceedings it was never a distinction made between for instance the claim in the forty six patent uses the word series until we get to this court so they weren't you know authorize a payment for a purchase that stepney of claim twenty one authorizing payment for said purchase that step of your claim twenty one nothing in the claim requires there be multiple purchases now that can include multiple purchases we're not disagreeing with that t claim scope is certainly broad enough to encompass multiple purchases but there's nothing in this claim that disavows a single purchase and in fact it seems to specifically be directed to a single purchase when looking at the remaining claim  transactions may include a single transaction so we know the patent owner himself is using this word in plural to mean one or more that's also true by the way when he uses merchants and other terms of the patent that were previously  file history the patent office peta didn't find the disavow the file history either of claiming one or more transactions the franklin patent had to do with pre identifying merchant which was you know the issue that came up to this court last time this case was here  the amendments that were made were relating to the fact that a credit card can be used for multiple purchases which of course that's true of your account can be used for multiple purposes but that's not the limitations claim this claim is about authorizing a transaction right i think that's fair enough it wasn't really the focus of the briefing last time although the issue i think was mentioned but it wasn't addressed once opinions specifically other than that the court did turn and look to the history disclosure of discussion  line hans reference where again there was a discussion of a transaction in the file history if not all transactions so i think under the b r i in view of the fact that the specification clearly is using a plural or a transactions a single transaction want to turn very quickly to the certain storage disclosure of cohen because the board there made some factual findings that that teaching of cohen would teach a person or a skill the art they would understand if that can include the situation where the store is not specifically identified and so therefore it falls within the scope of the single margin limitation and and can include multiple purchases so and is and is after a point on which i may have misunderstood this mr greenspan  this where is this certain store so the way the board address that question is to is to look at the entirety of the teachings of co and to say you know there is a breath of disclosure here the cohen teaches many different ways to use to limit this card one of which is to limit the card to a certain store and they say a person or a school me or reading cohen would not assume that you have to create in a five day emerge in order to make a limitation to a certain store you could identify the merchant not some other store so that was a factual finding that the board made based on the cohen reference you know this was not a court of first impression you have to give deference to the boards findings if they're supported by substantial evidence cohen's teachings i think clearly provide substantial evidence for that finding and even if they didn't as we point out we have an alternative argument for events which is the cohens teaching of any computer store that in our view clearly includes a single computer store where you can make multiple purchas d'agostino is making is that the board has announced a new policy under three twenty five d and they actually try and tries to sweep in three fifteen three as well but as i think we made clear in our brief informative decisions of the board  not agency policy they're just examples of non binding ways individual panels can handle cases and i think the best evidence of the fact that it's not an agency policy is the fact if you look at the three informed decisions here they actually institute but in the other cases they have a different analysis and they go through other factors they go beyond whether the question before the court is same or substantially the same but it is true that under the agency can't just randomly pre one party before it differently than a number right that is true i think if we cabmen our discretion then we need to follow our own policy of how that discretions and cabined just hasn't happened here yet there is no formal policy of the board on how to handle these cases they seem to depend on the facts and circumstances of the case even in the three informed decisions here the question of whether the arguments are the same or substantially the same required a fair level of analysis they really had to go through and compare you know what claims are at issue what art was at issue what arguments were made and so forth and then the next question even if the court even if the board did find that they were the same or substantially the same there would be other factors  say it didn't understand that under the statute it had the ability to make those arguments and till you know october two thousand and seventeen a month after its appeal brief in this case so for those reasons not only do we not believe there's a policy support for the argument for a waiver because sometimes a clear enough change in law and maybe this would be bad if it existed right when justified late raising of an argument that simply wasn't available before the group i mean if if this was really a change in the law then i think they would have a pretty fair argument to say you know consider re man and oftentimes the parties will speak to the u s p t o we can make arrangements so that we're not bringing these issues to the court when they should be properly reminded but here are the right existed in the statute when the i it was passed and c and you know took advantage of those arguments before the board so well here let me let me just like a waiver a good waiver argument i don't think we would have a waiver argument but i think we would have an argument that cold tact if deemed presidential in october two thousand and seventeen which it wasn't would still only be for and that's because it was wide like but went against georgetown hospital could ultimately have to go we cite the supreme court case you know on the general rule that regulations are well i think that's the one i just meant yes that's has to be forward looking but also the boards and standard operating procedure say that even with respect to presidential decisions they apply to subsequent cases to them and in cases so i mean again we might be able to work out an arrangement especially the significant change of law you know with the part mandatory requirement you know all claims must be evaluated by the board all grounds must be evaluated by the board here this is a discretionary issue so even were change in policy it's still discretionary which would support remain in this case very quickly i'm false even i'd like to get back to patentability nike versus adidas from july i'm sorry disperses nike from july second of this year does state that principle that if if there is a change in the law then there was no obligation before the board to raise the exact issue as it was raised in the appellate court also if i think this is the first clear time i've heard the director say that there is there was no policy change which is a surprise to me because  labeling of the decision as informative meant that it stating the new norm this is not my words this is the words of the patent office s o p stating a new norm of the patent office and i see informative decisions as something like operating on discretionary channeling discretionary issues and i see presidential decisions as something like this is what this court does with announcing standards of law so i think they harmonize side by side and they both represent the potential policy issues but what about the point that as a general matter or maybe it's this is even i think maybe she referred to the standard operating procedure these kinds of things are known as a general matter prospective felt that th please your honour's keep in mind there are two separate things going on in every one of these claims one is the definition of what is a payment category that is what we are saying is the part of the claim that requires a multiple transaction capability in every secure transaction card the second thing is there are some discussion like my friend this correct where one transaction is described in some greater detail that one transaction description in the middle of a method claim is talking about the communication in order to effect a use of that multi transaction card but make no mistake the card itself has always had to be programmed with a multi transaction capability finally whether we independently argued i asked your honour's to look at following pages ninety three thirty to thirty one eighty eight seventy six and or read ninety six forty three right here to show that we were not grouping the claims that gather and logics forty three ninety six forty three it's the transcript of the hearing one twenty talking about claim twenty four of the four eight six different from the thing that they're called to represent a claim or go back to one seventeen it says designating one of a plurality of pre defined payment categories which limited a nature of subsequent purchases at least in at least one of said payment categories actually nature is a type of human number because you can see right here if you've got a number of subsequent purchases that claim languishing claim twenty four in the forest it's expendable going on that's clearly more than one purchased in a single used car cannot be used to make to fit that element it just can't we separately argued the independent claims we never conceded representative claim status and finally my friend pointed to column seventy one sixty three as a so called definition that transactions mean something singular it sounded a little bit absurd to me not quite he didn't call it a definition he said the chloral in general sometimes can mean the singular and your cabinet indicate find out what's really being discussed here which reads quote the payment categories may be collectively defined as a variety of different types of transactions such transactions may include a single transaction for a specific amount of a purchase to be co transaction the multi transaction are supported by column eight that i just pointed to starting line seventeen and that's what became the claims leaving in the dust leaving behind any attempt to clean a single transaction card so cohen ca