passed the graduation is certainly welcome early corrado i believe you have information do i have the honor to move the admission to the bar this court of for fine young attorneys has been my privilege and my pleasure to work with them this past year each one has been superb colleagues as it vies or scholar critic writer and perhaps most important warm and my daily presence you know sometimes intense environment for a year i have benefited greatly from their commitment their excellent work their good humor i will miss them and i envy all of those who will be lucky enough to work with them as they move into the next stages of quite promising careers i know that our courts bar will be brighter for their membership so i move the admission of all four to the part of this court i have knowledge of their credentials and i'm satisfied that they possess the necessary qualification court martial for the appellant issue i'd like to initially focus on this morning is one of claim construction namely whether the claims require a particular set of files to be restored it is our position that the plain language of the claims clearly answers this question claim twenty for example requires a restore application starting every store of a set of files from a backup storage  bidding of the file server saying grab a block i think it is very similar your honor i mean what were our position is that in fact the invention is designed to restore files that uses the file system to determine which blocks correspond to those files and that is in fact if i allow the restoration as you recognized the on demand portion of restoration is at the block level but when the claim says start every store of a set of files you can't start that restore unless you know which files your restore movement seems to me that's not necessarily true that is i take it that the one you know pretty darned helpful piece of language in the calling is the language that talks about restoring application was it starting restoration of a set of files and that might well in fact i think it necessarily do that it could be it is in fact starting a process that results in the restoration of a file without doing it by calling a filename and then referring to a table that says which memory blocks have the pieces of that five right and that's essentially what the board said it said that if you go ahead and restore the entire back to storage if there are files on that you will necessarily restore the files part of that process our contention however is that that would read the set of files in language out of the plan it would render it to not really have any meaning it would be not any files it's not random files it's not just a file that happens to be on the back of storage if you restore the entire thing it is a set of files isn't the language and i'm funny that's actually more helpful to you the language that describes what occurs during the restorer yes your honor i was just about to move there you're right if you can't determine  what you can't determine that a block of data in the file on the set of files needed by an application has not been restored unless you know which files are being restored and you certainly can't do that during the restore of the set of files unless you know which files are very restored the claim structure requires at least three stops determining directing and restoring all occur during the question and the first step in answering it may be to reformulate it so that it's coherent if you have a choice in the board describes block level restoration  level restoration so the question that i'm trying to particularly get an answer to is your invention is to allow a process of restoration in the background to be going on and at the same time a application that the user is employing needs a bit of information and  file server can say get that piece of information even while the background rest store i guess is going on what is the meaningful difference in your intervention which blocks of data correspond to the files that you would like to restore and unless you integrate those two things which is what the invention of the five to two seven pattern does you're not going to be able to tell for example that a particular block of data corresponds to a particular file so for example the prior art that the board relied on the around pattern that was a pure block level mirrorin analyzing to see are these things the same on a regular basis so that it knows that the secondary storage is is a mirror of the primary storage but there's no file level information a neuron in fact a round specifically that the during a review or data is copied on a physical block basis rather than a logical file basis so aren't specifically distinguishes the file type memory and you know and that's that type of restauration makes sense in certain circumstances it can be more efficient it can be file system and not stick it doesn't need to interact with the file system that's one type of restoration but the invention of the five to seven patent is a different type of restoration it's one that is focused on restoring files doing a file level restoration determining which blocks correspond to those files restoring those blocks and then doing an on demand restoration of particular blocks for particular files as they are needed by the applications  consistently describes that process it talks about a correspondence or map of where the data is coming from on the backup storage and where the data is going on the primary storage and that can only be generated if you know what files you're restoring it continues and says this mapping of source and destination information may be performed for all files to be restored up front so again there's this idea that you that you know which files are restoring when you start a restore of a file it says the restore application may provide the final names and sizes of the files and potentially other information about th specifications a lab or aides on that end says if a file accessed by an application does not involve a file that is being restored then the file system may determine that it does not need to less than overwhelmed about the clarity with which the specification was a claim language say it's only background restores operating at the file level that this convention contemplates and i still can't quite understand what it is about the invention that will be different according to whether the background resort has a file or block level  what it's it's because it allows you to select the particular files that you want to restore and not have to restore a much larger a we're inside with that that's why i guess i got to ask you the question the claim sends i want to restore particular block that's that's on the on demand force and right of the ok but there's that if you recognise there's that file restoration going on in the background and then when it when it requires a block then it go ahead and it prioritizes if you will pulling that block down so that it can be accessed by the application and so it it's really to process that it's a combination this file level restoration and the on demand block level restoration and that was really the heart of the invention which frankly the board through its construction rip that heart right out of the invention that the board's decision that the five to seven pounds does not require file level knowledge kit kansan r g b squared with the claim language that we've been discussing specifications every single and body mind in the specification requires that the restore application determine whether or not the file needed is one that is being restored files stored in the backup disk and the board found there substantial evidence to support suit to support that finding that when one restores the entire contents of a backup disk it also restores all files on that backed up desk  media by an application have not been restored so there there is a more refined analysis that's going on here aside from the notion that you can just pull up the whole desk in a mirror system right i think that's fair i think if we look at what iran describes in its channel one restore that's the on demand restore what happens there so as the general store in iran is occurring an application would call for a particular block and of course that would happen in an obvious fashions or using a file system you know ran it would also use an overwrite map to determine is that has that block been restored and if it isn't then it would do the on demand channel one and in that sense iran has determined whether a block that is needed by an application has been restored and as it happens if you're doing a full disk restore and o e m those blocks will be part of the restored set of files that's cited earlier and claim twenty well and your friend on the other side argues that what you're really arguing is an alternative obviousness analysis that you've never argued before that is that is not the case if you look at the record below even if the patent owners claim construction work to hold in system one obvious way that overran could select a portion thereof is by selecting files and that's always your better argument that the claim construction is right or if you're better argument that even if a claim construction wrong all right and still teaches that haven't considered what is the better argument i think we went on both where we are it's that we have a better standard of review on the second question for you argued to the board these two different points where did the board make findings on the second to the board to make findings that one could have combined the teachings of all ran in windows n put in our brief as an alternative basis to affirm rates are going to question directly yes yes i thought i mean that that was my recollection that that even assuming that this was a preserved argument it's not one that the board has actually made specific findings on so you couldn't make this one use ourself i do want to return to the claim construction issues so as i said before what i think the pattern owners trying to do here  they claim a particular results was essential a process that was lurkers or results in the restoration of a set of files already does that when it does a full dyspraxia what they're asking this court to do is to change the claims and require that that result be achieved in a particular way essentially by knowing her pre selecting files and they simply didn't include that step in their claims as hugh the same i think opening question i ask your friend on the other side when i think about this case as being a dispute about whether the background restore application operates violent or the block level is that an accurate characterization of what the dispute is or if i means nothing get wants to restore and it's a file and then there's something else basically a table that says here's where you find all the pieces in that are in in the memory and the block level one just says you know memory location you know x y coordina is here as whether the reste or application has to operate at the file level in the sense that the first thing is does is called up a file and then it leaves to somebody else to figure out what the where the blocks of i think that i the extent that teaching is missing or would not have been obvious just from around windows n t it would provide that missing teaching describes a file system but already has the map as a map that is allows it to determine for instance of the steps claimed twenty whether a block has been restored already both of the proposed amended claims twenty six and twenty seven captured the idea that they were arguing for in their claim construction call level three store you said love map whatever it is i don't remember you're disputing that or that i don't think it was a relevant dispute whether the the only new features the combination of old things the new feature here is going to do using my term of what they wanted in the claim construction is graham a block during a file level restore how do you describe that without describing the crime the whole clan i'm and i can't figure out what the board thought that they should have said that there are file level re store applications everybody in the world knows that it says it right in the in the background of the path that you can have a set of files that's part of so it seems to me for them to say in the subs to propose substitute claims here's the new thing we're actually going to do this one filing that will restore order for the verbal equivalent of that you've described the whole claim i don't know susan well i just think it's important to keep in mind the standard every view here we have an abuse of discretion review the court's application of its rules and pattern has not pointed to anything that would amount to an abuse of discretion what they've said in their brief that the board overlooked evidence or made a ruling that was contrary to substantial evidence there's substantial evidence on both sides it's not enough to say that we had some evidence on the side of the ledger therefore it was an abuse of discretion of pleading failures don't usually have to do with evidence at all and the board didn't say you don't have enough evidence of this you said the board said we reject the motion to him and because you didn't address these things in your motion and that's according to i think of the board did use that language but when you read on if they do quote where so many at least facially tried to address it it's a matter of very toss excuse me at one sentence for each claim where they addressed the newly added feature in the board i think appropriately is in other words you say the claim should be construed to say x and they think it should be contrary saying why and the amendment is to make it absolutely clear that the claim says while now for the board to now say that that's not enough when that is the come are obviously showing as to the existing claims and we put in additional hard to show why there's newly added claims features individually and the claims as a whole were obvious i just i don't agree that board interpreted them as not being part of the claims originally and as being completely new limitations which were added to the claims and if we look at what vera has said in the motion to a man on three fifty seven you know the statement about whether these new completely new claims to the board are patentable over the known prior art is simply that neither cat owner nor dr levy are aware of any prior art that is closer to the subject matter of the subsidy claims as a whole than the four asserted references remaining in this proceeding so they admit that there is you can you tell me what she would do you think the board smart or you think you think they should have said that they should what the board criticize them for doing which is talking about the combination with other known features and something else i don't know what the something else is here right what meaning of the board this thing was they didn't address the newly added features i mean you're saying that you have a have these features related to the file level restore in combination with other features and that's what would but for the file a story is not new what's new is the combination well they didn't even address the combination if we look at this statement this on you know the state in which they said about the known prayer they just said is not aware of any prior art that is closer to the subject matter that doesn't even discuss you know combining or end with other file level restorations like as you know you acknowledge your honor there is a number of prior references in the record which discuss file of restoration and they never discussed why that combination wouldn't the board said that you must escape discuss the features added to the claim and the reason why is because you're exploring the differences between the scope of and the content of the prior art and the claimed in mention and they cite grandy dear which is the classic where that new feature is known in the prior art so like you said if they know that the file restoration is known in the prior art they can say well here's where it's known in the prior combining these two makes that pavel there's no statement in their motion about combining the two features or you know why you wouldn't be able to combine you know windows n t or quote them are another file restoration are with the you know the with or on so they didn't discuss how even that combinations i think what they should have said was a here's the new features here's you know where they might be in the prior art or discussion of file level restoration in the prior art but here is why they're not obvious to combine with or and that discussion is missing from their in the i p r were clearly joined it was one of it's clean construction and we've been discussing we found the contention that you know and to address precisely this issue and so it is a mystery to me too as well why the board felt like it needed all this other information but the thing is we provided it dr levy as dr aeration says and i'm looking at paragraph eighty two techniques for performing a restore of a file from a backup were known in the that it cites for references right there we provided the board exactly what the board said we didn't provide so in our mind that the and it goes on  paragraphs eighty through eighty nine discuss the prior art in detail including limitations that we were adding paragraphs ninety two and ninety five which the board cited and said that we only discuss the newly added features in combination the borgias miss read those paragraphs the paragraph paragraph ninety two which is directed to substitute claim twenty six basically says here are the three features a b and c that are being added to clarify this addresses the two newly added features in different sentences and says none of the par that dr levy was able to identify i think has has those features either and it goes on and on from paragraphs one fifteen through one forty nine of the stock the ration we submitted a seventy page one hundred forty nine paragraph declaration to try to address the board s seemingly moving target requirements for a motion to amend and we were denied on a purely procedural basis based on a single sentence in a non presidential order in a different cas correct your honor and but the supreme court recognized that the manner in which the board applies the standard may be an issue so that wasn't presented in that case what's it squarely presented here it's a big issue in the case here the board got it wrong on the law th