decision as to what information travels online to thirty five is in error and should be reversed and finally that the monroe three twenty reference does not anticipate first a little bit of background digitals petition in this i p r contended that the claimed invention of the five five six patent provided that all information was integrated and stored that a data stream that was stored in storage unit in the vehicle and transmitted or transferred to a second location reading from page two and three of the petition in terms of the summary in the invention they stated but it would page in a join exceptionally two and seventy three thus a five five six patent is directed to a surveillance system that captures video audio and data information multiplexers the information to obtain one data stream and stores the data stream in a storage unit skipping a paragraph or moving the page seventy three when the mobile unit in which the surveillance system is installed returns to its home base for example when a police car goes back to the precinct the information stored in the permanent storage memory can be don't do a remote storage depository this may be accomplished by either wired or wireless connection we've checked their petition we've not find the word wide to appear anywhere in that petition we've not find the word live transmission to appear anywhere in that petition we've not find  sorry we've not found live views to appear in that petition digital challenge these claims on the grounds that the disclosed that that man wrote disclosed the identical information storing and transmitting all data from storage the data stream to a second location in our response we demonstrated in a row did not store and transfer all that there was no one to spatially there was no identity of invention we showed that while monroe three twenty would could deliver all data all video audio and digital data to the recorder and this is an airplane the recorder seventy is simply the black box all information could go to the so called black box that information travels from the transceiver back through the image mux where the audio would be stripped as a result of all of the data would not be transferred from the recorder to a second location at that point in time digital adopted a new theory where their petition addressed the five six six information in terms of a data stream that was first ordered and then trains for digital manufactured a quote unquote live transmission in by there's no mention of a live transmission embody meant in the petition at and talks about live transmission the patent does talk about live transmission your honor in the transmission that is referenced there are views live use packets of data data that is neither integrated nor stored and it's different from the data stream which is integrated and stored rather that we know it various ways first we know it because claim language differentiates between the two i would refer the court in particular to claim seven of the p quinn seven clearly draw the distinction by saying in reference to multiple dependency to claim one a wireless device for transmitting at least some of the captured information from the server to the second location when the server is remotely located from the second location so at a moat location you can get a live view by transferring some of the information at least  least but it continued be all not necessarily all on the facts i don't believe it is all what if you say at least some you are including the possibility a lot i think not your honor because datastream is what talks about off in the next line says an ether no to the next element and either net control or for transmitting the data stream to the second location when the server is located at the second location and with reference to the data some data that could be sent live and a data stream that included all of the data that was integrated and still that's what is demonstrated to clearly by claims up so  it used in the petition here is that all data would be transmitted live which i believe is not but i'm just trying to talk about the patent grip that you are you told me initially that the live transmission environment disclosed in the patent is not disclosing all of the captured data that's represented by the data stream and that i ask you how do we know that and then you pointed me to claim seven i may have misspoke your honor i did not mean to say that there is a live transmission embodiment disclosed in the patent i do not believe that there is a live transmission in body slows in the patent what i intended to say is that in accordance with column five lines forty five through fifty roughly you can transmit a portion of the data which are video audio information packets to the home base but that is different from transmitting live the data stream which is the integrated and stored video of audio and digital that distinction is what shown in claims  there are still other reasons however that we know that there is a distinction between the two as discussed in the briefs much is made and we believe there is a difference between in this case i e or that is in g e g the example latin abbreviation here we have the use of i eat and we in those other times it is used to indicate an example that's what differentiates this patent from the dealer caskets that they rely on in dealer cast i e was used so frequently so many times that it effectively was converted to e g that didn't happen here the patent he was careful to use i e indicate exactly the stored and integrated data stream that was being fucked in other reason that we know the difference between these and the claim language itself claim one for example it recites a server for digitally integrating the captured information into one down the street and storing the data stream in the emergency response vehicle carries on in the where and clause limits the claim to the server is operated to transfer the data stream from the emergency response vehicle to a second location if something is going to be transferred from somewhere it must first be present there here that information that data stream must first be present in the vehicle it must be stored in the vehicle and then it is transferred and so the new argument that was winds what is online to thirty five in the boards opinion both in rehearing and its primary decision board relied on monroe at column twenty three finds seven hundred thirty three to determine that some data or selected portions of that if you will could be transmitted  what happens in line seventeen to thirty three is that a command is sent from the cockpit monitor the cockpit monitor gets will only video information that command goes to the controlling to thirty one carries only video information the monitor accepts only video information the audio is up at two forty seven it separated out in other words the support being given by the board for what travels on line two thirty five actually refers only to what happens on line two thirty one and what happens on line two thirty one is video out to the video monitor that's not proper support that's a misunderstanding of how monroe teaches and what munro disclose and so therefore we submit that the board's opinion should be reversed because they miss comprehend how monroe operates thank your honor i'll say the remainder of my  the two issues that you just heard though those two issues have been completely way they are completely based on new arguments that utility presented during the oral argument and the i p r and in the requests for rehearing filed by utility and i want to be clear regarding these arguments they did some and their patent in response the claim construction that they produce proposed now and i just met them in row three twenty does not teach transmitting all of the information to the remote location however every underlying theory proposition our argument for these two overarching assertions or newly presented during oral argument they have abandoned every argument that was presented in the patent owner response for the present appeal three five three seven and nine the court repeatedly identified the new oral arguments and cited to the office patent trial in practice guide where such a new or large amount should not be considered utility also even acknowledges and its reply brief a page six three seven these new arguments that justifies a new argument stating that it provided quote further support at oral argument for its positions and that quote timing of the arguments a low i no moment and i disagree with that this is problematic for digital allied because we have had no opportunity to respond to these new arguments and more importantly we do not have an opportunity to develop any rebuttal evidence regarding these new argument the parties need to end up at the oral argument in the i p r with the same record evidence that they developed during the briefing stage and throughout the i p r and i would also refer your courts to our your honour's to the recent decisions in m c issues was brand new an oral argument and then this is also not a question for you till they do not use that the arguments are new instead the question is whether a party should be able to present new arguments at the i p r oral overarching claim construction in the patent on a response but all the supporting arguments for that overarching claim construction have changed are what changed in the oral argument and in this appeal besides claim construction was the other the other new row sending the whole the whole of the data have to the remote location without going through storage so i will refer your hono device right that's of i'm sorry if we're talking across purposes i'm assuming for purposes of this question that i agree with you that the claimed construction does not require the transmission to the remote device to originate in the storage and that the transmission can go to both places remote onboard stored a celebrity with that where did you say in your petition that under that claim destruction so this was actually i now understand your honour's question this was actually brought up by the board and the board said that we did identify column twenty two and on our it session and that with respect to that particular there well it's pretty much this entire paragraph lie was mentioned and brought up and has become an issue in this case because utility mentioned it and brought it up during the oral argument and what happened during the oral argument as the patent board simply caught on to that part of why this is a live issue in live transmission has become an issue is because during the oral argument the bourse and well but isn't there a live transmission environment disclosed so that's how we got to this question of li the petition of the kind of summary description of what the patent at issue is about sure reads as though it's a description of putting stuff in storage and some time later taking it out of storage somewhere else we don't disagree that that is an environment disclosed the issue is what is the broadest reasonable interpretation of the claims in the plain reading of the claim says transmitting the data strain from the vehicle another feature of this and then is the idea that you can hatcher this data in a mobile environment so it makes sense that apart that the claims are side that you're going to capture the data in the mobile environment in other words the vehicle and transmit from the vehicle to the remote location so i don't the data stream is already stored information then it's just redundant so simply recite storing the data string we propose that the construction be that the data stream does not have to be stored and that let's also just because your honour's are focusing on the plane construction issue let's talk about this just a little bit more and bring up what happened during the prosecution history during the prosecution the  the stored concepts and replaced it with the data stream in other words it one point they did amend the claims to say transmit any stored at from a nation but then they got rid of that and then that multiplexer code in that you get the integrated information and it says that the information that the information is integrated into the one data stream and then stored so also implying that a data stream insist upon integration of the information and then that data stream is later stored that works against their proposed definition that data stream must must be defined as being stored information reference to your question i too have looked to see where monroe was cited and in particular that section of monroe we did not find it in the petition for any transmission element we did not find the teaching of monroe relating to two thirty one two thirty three and two thirty five for a transmission step we did find it for storing and integrating steps but not for transmission and that's why we think that we have not had a fair opportunity to address that in terms of the waiver question reach these issues were did address them and the board of dress them in a fashion that was robust yes as ms bailey says the board said that no new argument as a skeptical and as often in reliance on a portion of monroe that the petition does this highlight thing at appendix one hundred five namely the portion that says where desired selected portions of the systems radio into thirty five is what's going from the whole muxing thing into the data transfer yes ya so you can i think the board interpreted it that way and also interfered i know you disagree with this but interpret it the selected portions to include entirety we disagree that's correct so but but if that's the basis on which the board we live and if i were to disagree with you that there was nothing improper about that interpretation  then that's a point that is actually in their petition for it's not column twenty two in that box but it is the point that is it that is it is there i'd have to go back and look to be monroe language that you just cited in that paragraph we have to read the entire paragraph because what it says is when you get down to the last few lines seventeen to thirty three seventeen to thirty three explains that what happens there is at the cockpit monitor you send the command of the control or the controller then works back through line if i remember correctly two forty three to  what video you are selecting to now be sent out over to forty six in other words it may well be in their petition and the board did cite it but it doesn't show that all data goes out it shows is that you can select video data that would go out on the two forty six because the last part of that paragraph limits the disclosure or the any combination as it calls it to