they are arguments today for the different cases and we have some internal timing issues that we need to deal with so that what that means is that everyone everybody gets their allot a brief deliberations and then we'll be back at about about fifteen to twenty minutes later and we're we'll hear the last case in point case at that point at that point in time so we'll hear that around corps the final written decisions in the ten twenty and ten twenty one matter should be overturned for at least three reasons first there is not substantial evidence for the record to support the board's finding and motivation to combine one of ordinary to as part of their would have benefited in any way from a par reduction technique second even if there was a problem and there isn't it was only through hindsight and the conclusory opinion of petitioners expert not substantial abandoned his first position he realized that his opinion in the first instance was inadequate that he had used the wrong standard and how are you know arguing your point about excluding this testimony or ignoring it i didn't ask you that i ask you if we accept his statement about why there is a reason to combine this isn't that substantial evidence you're asking us to ignore it you're on i'm asking you to consider the totality of the record if you if you that's not our job to consider that's a tally of the record and new and reach a new conclusion our job is to look at the board's conclusion which was that there was a motivation to mine here and then look at the record to see if there's evidence that supports that conclusion of course we look at the record to see if there's evidence that tracks but we don't make that decision if there is any evidence that supports the board's conclusion that a reasonable person could conclude supports that we have to affirm don't know i agree that that if that was the situation below that you would you would have to affirm but that's not the circumstance you blow the p ted panel did not consider the totality of the record you do not have a record let's assume i disagree with you about that because i think they looked at opinion that it should have been disregarded better d'albert or excluded somehow you didn't make enough objections to that or do you just want us to say they're not going to look at the experts opinion even though that is on the record can support substantial cleared his opinion or exclude a part of his opinion but the board recognized that problem and said specifically it wasn't relying on the paragraphs that related to that issue right so that is not a problem if you're now saying they should have excluded his opinion altogether you didn't preserve that argument i'm not saying it should have excluded i'm saying it should have considered it should have recognized that there was a test up and they did recognize it and said they were considering that part of the case because you move to exclude those par we moved to exclude his opinions that were insufficient in the insufficient opinions were were what what he refused to produce but he continued he continued to criticize our expert's opinion that there is no hard problem move type channel singly and it will be understood by those skilled in the our wouldn't person skilled in our look at that and say ok i can address the problem unshod by scrambly techniques and that gets us to where we are today i mean that that's a motivation to combine there isn't it well but your honor that presumes that shively would be recognized as having a part problem and it and it would not and the fact that petitioners expert destroyed the evidence would have shown that  that there is no power problem at sisters experted it he put in a very big opening opinion he recognized based on the opinion of pet owners expert that it was insufficient that there that you have to gauge the park problem with respect to something saying increased park or high power has to be there has to be a part to gauge whether that is an issue and whether there can be any improvement so the wave it the way the shively modem is designed and it's according to the e s l standard and  attenuation and therefore the carriers are either totally unusable and that's more than half of the carriers in shively more than half of them are totally unusable and that's the basis for our experts saying that there could never be a problem apart problem because the amplifiers will be designed shively technique is for is using carries at the margin of usable and unusable to use those to squeeze a few through a few additional bits what it does it combines carriers together for example a group of four uses the small little clipping rate is to run a simulation so he ran the simulations he ran a simulation on an eight hundred thousand foot loop which is what shively discloses shively technique is for long loops eighteen thousand feet or longer we're going to have impaired carrier he ran that simulation and then destroyed evidence of it i understand that i just want to know where now we've got a situation where the board is saying that it's going to rely on certain things and it's not going to rely on other things assuming for a minute that we agree the board says we're not going to rely on the evidence that would have favored patent owner we're not going to rely on the simulation evidence of an eighteen thousand foot loop that would have favored had no honor and pretend that that didn't happen that pretend that the experts didn't run that simulation and didn't realize that it would have favored us and therefore concealed it when they say we're not going to rely on that that doesn't seem right it seems like they're exclude the dense we didn't move to exclude that as we move to exclude the twelve thousand foot simulation that we said was a cherry pick scenario that and i think that there were a bit earlier than if you were to exclude that's correct they didn't rely on the twelve thousand foot scenario either but our point is that that we need to rely on evidence that didn't exist entirety of the record what they're supposed to with the panel supposed to address which are what they refused to address they knew about this evidence they decided it didn't change their mind you made all these arguments which were all completely factual arguments to the board and they disagreed with you and now you're saying well the board should have looked at this part of the record and so the part of the record they looked at that's not what we do have a substantial evidence reveal the laws that they're supposed to consider the entire record including evidence that that detracts from their ultimate conclusion shively does not say i have a par problem there is no discussion of horror and shock whatsoever they're relying on what i believe is tainted testimony of an expert that says there isn't because there's an increase you would try to solve that there is no increase that need solving again you're amplifier goes to ten and if you're operating at five even if you were slightly up to five point one there is no motivation of any kind to go fix that you've already got  assuming for a minute that i had it right on that point do you also have an argument that tado doesn't teach the use of its technique for solving par problems yes your honor stopper does not describe field why can't he just say so well he can't just say so he needs he needs to have facts and data that back up his opinion but of course we can't just let experts say anything they want and treat it as fact because it's not fact the fact is the fact is the record faster and the board agreed with that and i was going and i'll ask my question the the the problem with what shively is doing is that shively east technique of repeating bits across multiple carriers technique increases par the question of whether or not that causes clipping is is a second question but an increase in part is was the there is substantial evidence here showing that in increase in our has many shively is trying to solve the problem of getting more bits down the line of over making modems faster and it has a technique for doing that without stocker for me i understand your position on shankly then it doesn't say that it has a par problem but you're saying that testimony that looks at stuff or and says oh it seems as if this would be a good idea to try to do this faves shifting in order to be able to avoid voidness problem but neither stopper nor anything else says solution judge stall the the art has to be looked at through the eyes of the person of ordinary skill and that's that's what dr to a lot of woods is bringing to this case is he's looking at you said twenty nine twenty nine i think you were there at the party of his declaration he would be looking at if the reason he's important would be at twenty nine twenty eight twenty nine twenty nine support their finding that stoppers face scrambler operates on single symbols one of the time and that that technique then reduces par but where is their disclosure that that reduces par the last two sentences on twenty one twenty eight so paragraph sixty seven ye have yes i may need to go back to paper you need to go back to something that allows you to haue the record before you say you can discuss it with us do not have this in front of you i have the record to choose yes well then why don't you answer just falls question about whether that support the decision or the conclusion that stop or teachers sent on those same carriers so because the same data is there it's the same symbol they face a line and they cause a peek shut the face scrambling in stop later and does that phase alignment and when the phases are not a is to not have a line anymore yes you i'm supposed to get that from what part of dr tiller's is that in carry through there in paragraph sixty seven that you see that so at the top of page twenty nine twenty nine in the next full sentence he states the procedure would recognize that  same days since the two some carriers are out of phase with one another the sub carriers will not add up coherently at the same time and thus the peak to average power ratio for the overall system will be less than  medication systems and what it meant where it comes from and the board found that there was substantial evidence to support that including the board cited to the statements of dr short who stated that engineers knew how to design the system  account for the possibility of high par and they also pointed to the n c standard which described the the fact that my par right out and says i'm recognizing that part is a problem what about when i'm not supposed to and i cannot consider of exclude that i would point out that during dr to lottos first deposition he pointed to the patent owner to his thesis and indicated that they should go look at his thesis and look at the papers he cited there and stated in his first deposition that chu a lot of was asked a series of questions about techniques for producing cars that were that he knew about and he gave several examples then he pointed them to his thesis and said that that there were still further examples there and then on lines fourteen and fifteen he stated face scrambling was probably probably the most popular way did the board rely on his testimony at all and its making its germination that st testimony the the last issue i'd i'd like to just briefly address and my remaining time the red prefix used dr to lato dishonesty and because i believe he's an honorable man i just like to point out that teacher delta has not identified any statements in his as solving that problem and there was reference to some deposition testimony but again the problem with the deposition testimony is that the panel did not rely on the deposition testimony of the other part about it is that it's just a vague reference to this general notion that possibly could you face gramling what's not acknowledged there is that we had no opportunity to respond to that there is no detailed expert opinion disclosed as the basis for combining whatever that's already stopped or doesn't show anything about to read the prior read that references and determine what he thinks a skilled artisan would do it is but there should be an honest and informed opinion and we believe that stop it stop talking about this like dishonesty self i don't care i'm going to accept his passages and shy plea installer that actually specifically talk about it because that seems like the old teaching suggestion in motivation that the supreme court got rid of you know your honor we're not we're not what we're saying is that because on its face stopper does not mention any park it because of that there should be some other record evidence or such some must be some other substantial evidence of record that would show that one of skill in the art isn't just going to take shively let's let's assume for a moment the child has a part problem isn't that when his record that any skilled artisan other than accept his statement except his statement would simply mean i did her testimony alone can provide substantial evidence that you have to live up to the teaching of a specific reference i'm saying that expert testimony cannot take the place of prior and what we don't have is any prior to record that says not something consistent so what we don't appear to have a record is any is any prayer that says i am going to solve a pita average power ratio by performing face crime when that is not in the record that is specifically what the board said that they would not consider and by the way had we gone and consider that there would have been all sorts of problems with those references as we were prepared to point out again that's not the record i'm not going to go into that and given the time constraints