procedures if we can resolve this solely on the obviousness ground she we do that to avoid getting a constitutional and i think you should address the constitutional argument your honor and i'll get to why we i think you know the court nice reverse that she tap on the obviousness decision but i think it is true that if the court determines that the obviousness ground should be upheld it doesn't have to get to the constitutional issue were specifically teaches away from the combination because bessler specifically teaches to eliminate one of the limitations that is found in each of the independent claims of the three four nine pattern in that limitation is a system words you could have a smart thermostat that had a system control functions integrated into it and then it would be a system controller me it wouldn't no longer be a system controller because it also performs thermostat functions all column to starting it line three or so it is an object of this invention to provide a central heating air conditioning in ventilating system which does not require a system controller that's the first object of the invention and if you turn to the next page in column three what is it that wrestler's referring to is a system controller at about line fifty five it says system controller hundred four monitors the difference between the actual temperature of the air and the preset temperature which is desired both of which are indicated by electronic thermostat one of the two the temperature difference is converted into a signal defining the speed and air flow rate of the system and that's what a system controller does it creates the system demands they fill such as demanded speed demanded tour demanded airflow that's how the three four nine pat a system controller in the intrinsic evidence that's what it says it does and then continuing investor so bessel is referring to the same thing this thing that produces these kinds of system demands and then he says in going says in addition to the object of the invention in column for at about line thirty one he says referring now to figure two one preferred embodiment of a system according to the invention is shown in block diagram form as compared to figure one the system of the invention illustrated in figure two eliminates the need for system controller one who doesn't besler move the components of a stand alone controller into other parts of the age of the system i don't believe that's correct your honor because a system controller in the three four nine pattern is developing the system demands things the point of besler is that he has found a way to use the microprocessor that's in the motor controller with a look up table to take the cyclic on off signals that come from the thermostat and directly convert those into the motor control signals the motor control signals are the commutation signals that are supplied to move the self so besler eliminates this need to interpret system demand into a system signal that then a motor controller then it interprets and turns thermostat right the point that we're making is when the three four nine patents the three foreign and patent first says what a system controller does it develops these types of system to me then a few paragraphs later it merely says a thermostat may be a system controller when it says that it doesn't change what it is that a system controller can do so a smart thermostat could be a system controller it doesn't matter where you put that functionality so long as you have a structure that is developing the speed demand torque demand or airflow control demand so the whole point of besler is to eliminate anything that needs to develop those signals because he has a run because as as referred to by the three four nine pat pending page fifty two i'm going to be reading from in column three at mine fifty nine this is what the three four nine patent discloses a system is configured for performing sine wave commutation in response to one or more analog or digital control signals received from the system controller for the two to produce continuous phase currents in the permanent magnet motor for driving the air movement component for ten then it says the motor controller is coupled to the system controller for receiving such control signals directly from the system controller such control signals may represent for example a desired to or speed of the motor alternatively the control signals may represent the desired airflow to be produced by the air moving component and it's those desires that are interpreted from  that's what a system controller does and claim one requires there to be a system controller and it also requires there to be system control signals it just doesn't name the specific ones that are named in the column of respect that i just read from but when we deposed dr assignee he admitted that that's what a system controller does it creates these types of signals and dr blank in unrebutted testimony in his declaration says that's what one of ordinary skill in the art would dressed our teaching away argument they said we discern no requirement that the system controller has to be a stand alone feature it could be incorporated into something else therefore the teaching away argument is not commensurate with the scope of the claim so it is a kind of claim construction issue the problem was is the way the board addressed it they didn't address the argument which is that a system controller has to be developing these signals and that besler says get rid of that kind of system controller we don't need to develop these kinds of signals so when the board says it it's not commensurate with the scope of the claim they've got it wrong what a system controller is even if this court were to decide that a system controller does not have to develop those kinds of signals the board was still ignoring the fundamental teaching of besler when it said that you would be one of ordinary skilled reach out to khosa big and combine it with bessemer the reason we say that is the main point of besler is reducing complexity in an h p ac system get rid of a system controller reduce the number of microprocessors we have a way to do it with the single microprocessor that's on the motor controller itself that's the fundamental teaching of beslan now we also cited to the channel reference to the board below which established that one of ordinary skill only art would have understood at the time that  sine wave commutation using the d q frame of reference which is specifically called for in the claims requires more complexity it requires a lot of math and a lot of processing power to do the math because you have to change on the fly from a calculation that done in one frame mathematical frame of reference convert it to another mathematical frame of reference converted back again to the original frame of reference and the ch have to increase the complexity of what besler has disclosed and the holistic teaching of besler is we're trying to reduce the complexity so when the primary reference is saying come reduce the complexity why is one of ordinary skill going to reach out to th reduce the number of microprocessors involved to simplify the calculation that's being involved and to then reach out to khosa basic and pick a far more complex way of controlling the motor and saying you would combine cosa bake with besler to get to the claim is picking and choosing from best of what you want in the board had to read the entirety of besler and for everything that it teaches and what fessler is teaching is remove the system controller reduce complexity and you would not then go from bassler to kosik to find a more complex system to achieve the result the best there is talking about that's the second point on the teaching away i'd like to turn at  least briefly to the the issues raised by the reference when the board instituted and determined that under three fifteen c it had the discretion to ignore the time bar of three fifteen be it committed and ultra virus act beyond the power granted to it by congress and this court can in that circumstance despite what three fifty fourteen the says can consider the issue and determine whether the board's claim or statutory construction was correct statute doesn't say that they can bring in additional issues it's silent on that point it talks only about party joint or not issue jr i don't think you have to even address whether that new  all right well we think on the face the statute that it is not granted that they can bring in new issues that the statute simply says a party jointer does not say if you issue a traitor and if the power is not granted to the director to a part yeah but it would have to be a non party i mean there if there are already a party to the proceeding then you can't join themselves to the same proceeding well i'm not sure that's true but it doesn't solve the problem anyway i think in the play rather that in this case the issue that we're talking about is one that was before the board in the first i p o i don't think that matters at all because we're just strictly talking about what grant did congress give what was the statutory grant of power the congress gave it gave them the power to join a party after the time bar it didn't give them the power to join an issue after the time filed properly a translation of the underlying hideki reference so the board determined that it couldn't consider it and then the time elapsed and then they tried to get and using this party joined or under three fifteen see him by this mechanism i just doesn't seem to me to make a lot of sense that congress would want to allow that to happen by the jointer mechanism where you have a party who it is raising a new issue and not a person can be brought into the proceeding by the joining of mechanism that really just doesn't feel right respectfully judged like that is exactly the scheme that congress promulgated in section three fifteen three fifteen wanted that well i can speculate why they want to do that and i'll get to that in just a second but i just want to make clear that the time ours in three fifteen b and three fifteen b concludes with a to make some inquiry into what the congressional purpose much fair enough and the lang i think the language about whether or not the time bar applies to motions for joined her is is not really a controversy of three fifteen b says expressly it does not apply to three fifteen c three fifteen c is where we find jointer why congress wanted to give an exception for jointer i suspect is so that when a patentee sue somebody for infringement there's basically a one year period where that infringer can hail that patente before the p tab and raise an i p r if that one year goes by under three fifteen b that petitioner cannot help that patente in front that the bar that applies it as against the petitioner would no longer apply but i think that's fair enough to say that if there is a proceeding and an untimely petition and wants to join the proceeding that should be allowed and that's seems to be what congress speak to that except that at least one member of congress senator kyl actually said in his statement that he believed that this could be used to bring in new issues but i also think the text of the statute is what gives us the answer here three fifteen seed is not just require a party come in and ask to join but it requires a new petition a petition that the director has to decide warrants institution of the proceeding judge date if there was no way to bring in a new issue there would be absolutely positively no reason for issue in this case which is the board's discretion the board decided that it was reasonable to bring this scheme here because judge rein of that exact point that this was already in front of the board it had already been raised by the  where where you're allowing portage to join in the bringing new issues especially issues that have already been rejected well we have other mechanisms to deny parties bringing in issues that have already been rejected as to the question about the discretion in three fifteen c it is hardwired into the statute the statute says that the director in his or her discretion may join us apart and say what what was the discretion here what's the reason this issue when it had already been raised in the first instance and the technicality that led to the problem was the lack not of the translation you got his certification it's your technique absolutely it's our technicality but we also have change that well how does the that is the director to choose which judge to assign to expand that's provided your honor by our standard operating procedure in the chief judge actually makes that decision and the judge is selected based on their technical and legal competency and over the years many many panels of the board have been expanded in fact if you looked at the thirty or not the weapon or whether they're going to rule of thumb the sure way well people can be placed on the panel for exactly for example the director can place him or herself on the panel and certainly the director knows how they're going to rule knight act has not said and they say if they're blue brief a page forty three that they don't challenge the independence of these judges on this panel these judges were not selected and told to make a particular decision of judges could be told to make a particular decision there be no need to expand the panel in the first place there was no action along expansion that's correct your honor so we would say that they've waived that also that they've waive this entire issue i just want to get back just for a second if i might your honor about the discretion issue if you look at the time to this issue has come up and i would direct the court's attention to page forty of our brief where we lay out several examples of where the board is entertain these sorts of petitions and i'll raise another one here david it's a case called amnio pharmaceuticals versus endo in that case the petitioner came in after the time bar with two new issues one new issue had been triggered because the patentee amended their complaint just record out a new claim a claim that had never been asserted against that petitioner before and then another new issue that had been joined by the petitioner in their second out of time petition was something that corrected a sort of flaw in reasoning that they that they got out of the first institution decision the board granted that second petition in part the board said it's fair to bring in this new claim because you were never to be that's because the new claim should be claim is asserted it triggers the one you're on doesn't matter as well but your honor i think it does matter for the purposes of demonstrating how the discretion works sort of on the front lines of the board that they don't simply let petitioners file follow petitions all the time and let them get and each time they use an exercise of discretion committed to the agency in three fifteen c itself and as to the new issues your honor i would just say again that the ability to raise new issues is suggested express y by the statute when the statute commands the director to make a determination about whether that part of that determination has improved due process considerations the effect on the existing party and whether they had a respond that's exactly the kind of things that are considered when the exercise of discretion is triggered under three fifteen see how long has it been will it slow the proceeding down is this something that the petitioner is doing to me say that you have a process that people have process in my view has to operate in a way that creates uniformity and in your procedures giving two bites to the same apple to some parties but not to everybody and you get to decide who gets the two by how big of a by what kind of apple the whole thing and it's not not open what is open is that when that pr reference was initially brought and it was brought effectively and it was rejected and i would have a from that rejection and now to bring it back alive and well who there's no way for me to to review that or those are treated distinctly in the federal rules of civil procedure rules eighteen and nineteen this statute is different it's ambiguous it says joint or it does refer to joining another party any person but it also talks about the need for a new petition so for those reasons we'd say issues going back to consistency judge right now there's two there's two issues the one issue is the consistency of a panel reconsidering its own decision that's what happened here and we would submit that's what happens all over administrative tribunals there's another issue  consistency which is the ability of the management of the agency to control consistency from case to case it through the mechanism of its meaning you know i agree with that and the or are you going to depart from that is is and do have the concerns of express them today i understand your honor and that i think as best i can tell the court and i don't know that this will be satisfying to you but the people the judges listed on the opinion are the judges who made that decision without any influence i can say that because i know that and i can also tell you that when judges are added to panels where they do exert influence their names are on the panel the judge the p t have expanded a panel in a case called master image that cited frequently in front of this court and you will look at that expanded panel and you will see the acting chief judge's name on that panel that's because that acting ch influenced the outcome of that decision by being a member of the panel and discussing it with those panel members here you will not see that and that's because these five judges are the sole five judges who made this decision thanks for the  predictability and yes it's a father some way of doing and we think the way to ensure predictability by continuously making sure the law is resolved the same way is a feature of our system and not a blank appearing at appendix pages seven sixty eight through seven seventy however this testimony was about that slur teaching away from the proposed amended claims not to challenge claims at issue here on appeal unlike the challenge claims the proposed amended claims which appear at appendix pages seven sixty one through seven sixty three expressed we recited that the system controller sends a demanded torque demanded speed or demanded demanded air flow control signal the challenge claims do not limit the system's controller signals that these three signals in fact that those three specific signals are recited independent claims eleven through twelve and twenty under claim differentiation therefore the independent claims and the control signal recited and those are not not a system controller within the meaning of the coin doctors sign it was for directed to the passage and the three forty nine patent specification stating those system that the system controller for zero two may send control so he was being asked about the system controllers and systems controller not about the start now if i could direct your attention to that's where figure one that's at appendix the same function is now pushed down to the motor controller you'll see in the outdoor unit over to the right two thousand and six it says he sat cycling conversion to speed command and then to the left under the indoor unit it says he sat cycling conversion to air flow command so the functionality has been pushed down from an intervening system controller to a motor control so he's not getting rid of a microprocessor that performs these functions it's just changing the location now if we can direct your attention to the next page appendix page two and i  now he pushes it down i think they're trying to create some confusion with the the name system controller this is not it it's a dentist test ok so you have so therefore when you then look at the invention that slower it says thermostat but under the and definition of what can be a system controller in the three four nine pat especially cation it says it can thermostat not only that the specification says that the signals can be analog or digital so even if the thermostat is sending analog system such as on and off it is still a control signal within the definition of control signal in the three four nine patent so it is exactly the same and now they also mention so i don't think that performing sinewave commutations one of which is the current control mode and that uses i q i say they and that is what their patent does and it voltage that second method is not within the scope of the three for nine coins through four nine coins are directed to current not voltage so therefore the fact that it has two alternatives and it doesn't speratus the one it just says one is more expensive because you have more components now also they seem to be back in the argument that oh no one has ever used or the common wisdom at the time was not to use sine wave computation in a track motors and at that point a low they said that it was against common sense because it was economically infeasible because if they very tight margins that were used by builders in selecting the a track systems that would be implemented in buildings that they were making so they raised that argument and that was their common sense argument below we pointed out that that's contrary to this circuit's case well you can't rely on economic infeasibility to teach your way so they drop that now they're saying oh it's common wisdom that nobody ever used sine wave commutation in an eight track motor in fact it is done in the data and that was a finding of fact made by the board in its final written decision not only that during the oral argument mr brown agreed that the dead shows a sine wave coming taishan in an h back system and their response is they admitted it at the oral argument and it's also a finding of fact in the final written decision so therefore the chanterelle doctrine does not prevent this court from consider will also with respect to the motivation for combination chen also discloses that sinewave commutation is preferred ripple to square wave commutation because it's less noisy because it does not generate the and the night at says in its work life brief that we did not raise that below in fact we did raise that below and the page that of our reply brief we did not cite that so it's not in the appendix but it is in the joint appendix designations if you would like me to hand it up now but i can assure you we didn't make that or now with respect to now do you have any further questions on this that's where cosa pick one of the three ground before i move on ok with respect to the institution decision what that we be allowed to file as an oversight that was rejected we asked to file a for a supplemental evidence that was rejected now with respect to consistency  included the certification and therefore the board should just disregard the data at that point i believe we moved to we called up the board and said look we believe that this is an objection it's untimely because it was it was made before the institution decision not after and we would like to file supplemental evidence the board said well forget about filing supplemental evidence we will give you a chance to file a motion to correct it because it was an administrative oversight we did that that was denied and then the institution decision came down we moved then what we filed a request for a rehearing and we also requested leave to raise this issue about supplemental evidence that we raised in the phone call but was some merrily this regarded by the board they just don't worry about that go this route the administrative oversight they said yes we added to it our request for a rehearing in the first case in the first institution that then was denied and our pattern they did allow that in fact allowed what allow the filing of the one page affidavit as supplemental evidence so we have some inconsistency there and that's what resulted in us going that way it denied the petition based on technical grounds saying that we couldn't join but they did look at the merits and they found that it was reasonably likely that the dead she did result in these claims being would be held on patentable and then they said well we can't get to that but at that point the general public had an interest because there was a finding of reasonable likelihood of unpatched ability based upon this reference and the only reason that it wasn't considered in the first instance was because there was no affidavit of technical accuracy and in fact there has been no er pointed to or identified in the original translation now if you don't have any further questions on this issue i'd like to address the  reference on the merits even though mr brown did not get to eight if you have any questions for me i see that i'm running out of t to think they were pretty sure well there is legislative history on the point there are in fact the best legislative history on the point comes from the house report which we quoted in our very in the house report said that three fifteen c was there to allow other parties to join that's all it says so that's the clearest sign of the congressional intent on section three fifteen see you supposed to give it its ordinary meaning party joinder means joining a new party it's not issue joined so secondly there was a suggestion that we didn't object below but we did object to expanding the panel below when the motion for rehearing was filed and when we were given an opportunity to respond to the motion for rehearing we