yes i believe that the government motion only wants to have another bite at the move this apple they want the factual determination to be made as to whether or not the offer that was made is sufficient if it is that presumably the case our position would be that we would argue that once this case were remanded to the board that in fact the board should make whatever determinations it needs to make if it wants to revisit its earlier absolutely the absolute we are arguing that the relief that we would be seeking in the vo ip case would be what the board calls it reconstruction and we know that pretty much how that works out in this case because we've gone fairly far down the path mr doubt would be offered the job the issue that we're we would litigate on remey and in the issue that we were litigating before we had a bit short circuited i think on the was in fact is that prospect of offer sufficient that that is all something is not before this core it really it was never decided before by the board that the whether or not you've got the right really including back pay why god so do you agree that the fact that all of those issues are being different people are being teased out in that context cases started together before the m s p they took divergent paths for reasons that are important here but it really made sense to consider them together and it continues to make sense well except i mean i guess the question we have i have with respect to remain on is does that do away with the determination and on during that after all is what this case was about in the first instance i mean another alternative would obviously we got short forms by the board on jurisdiction there's no discussion of it there are only two board members you know there will be a new board the p three board members maybe maybe will take another look at it is an important issue and i think it's i think the decision has some problems which we've articulated in our brief so i would argue if i had the opportunity jurisdiction before the board yet i might lose you know obviously it's a bill battle but i'd like to have that opportunity you know let's not but unless you say no i can't do that but i think you're out of your question really hits it on the head of the border at the core vacates the board's decision i think  in a year or two if they would hire him he got a medal a better job and leave them out how is that in any way and there's no you know anything that he said that the reason he was selection so there were the competitive candidates which mr dallas the top rated there were the outstanding scholars they were all considered together that's a matter of fact that is raised this little in the room together the same time it was substantially under three hundred would be a reconstruction of the selection process without consideration of the illegally considered candidates illegally considered candidates were the outstanding scholars so unless the agency were to make the argument that's being made for this court martial that was gee if we knew we had that we could only select the veteran we would have cancelled and not selected anyone at all unless they were to make that argument then they're left with what we need to make a selection and the only person on the list is larry down and we know in this case that they're not making the marshal argument because they went ahead and made him a tentative job offer they didn't say oh no practice apply directly to a particular individual what is the employment practice here with the employment practice that we it's was failure to require yes it is scholars to take a competitive examination so the employment practice is the process that was you can put together in the lift on the l s p program exactly what your candidate went through a different chain i mean i guess i'm having the quite in whether or not there were two separate proceeding in the board intended to reach that final selection process in the board found that there was not there was one they were the virtual s yes that's a violation or at least jurisdictionally that's state's claim under chapter three hundred were the same position where you say you gave more consideration to the outstanding scholars can do this that which they title the fact they were consideration that was the point at which the atmosphere decision in this part three hundred case came out but there were several things that happened after that which we believe render the case moot the agency reconstructed was actually given the job because if he the point of b o i at least is to go through the selection process and give the veteran the veterans preference if that happens but better and is ultimately not hired for that coin got the job he wanted and with the back no not necessarily because it's her position in both of the cases that the job offer is all of that he needed to get because if he had been given his veteran's preference initially or if the outstanding scholar program had never been used what would have happened is exactly what didn't happen after them as he sees decision this is just going to go on so it's going to go there's going to be a under claims is this reconstruction of the process it's the government's position that that the process has been full it reconstructed to the extent that he got a job offer he still needs to meet the qualifications for that job the letter that he received said that he needed to pass a security clearance if he doesn't pass a security clearance let's say he can't be hired for the job then it's over he's got what he believes he would have gotten under  also the issue of the relief in the viola case we don't dispute would be that pay assuming that he was actually entitle to be hired to that job which we do dispute but if he wasn't titled under v outstanding scholar the outstanding scholar program because it violated veteran's preference rights and because it did require a civil service and was a violation of part three hundred and that case it wasn't  to mr now as this court noted earlier the reason he was not hired was not because people were chosen on the outstanding scholar program the reason was because there were questions about his interest in the position and questions about his application so it wasn't that he was not hired because there was this outstanding scholar program it was it was a separate decision credible and terms of the reasons that mr dallas not hire and so it had nothing to do with the outstanding scholar program the outstanding scholar program was applied to the people who applied under the outstanding scholar announcement  pronouncement he was ranked number one on that announcement was interviewed and decided not to hire him based on his qualifications so the board for that reason really found that it lacked jurisdiction and what happened do they have to affected mr downer because the use of that and this is the age of forty seven and it's the reconstructive we're going to put your name with the list with these four other candidates who are on the outstanding scholar program and if you strike those but that's different we bring something that happened subsequently i mean what you're focusing on is the two thousand election which is why i got confused by the breach i appreciate that somewhere down the road in the reconstruction there was a list and it included both candidates and i have less trouble thinking that that is than as applied challenge to an employment practice but i think your burden a throng it is tougher than that because i think we're looking at a different election process here right i think the board's decision says that it was one selection i know but i'm counting we're looking at what happened in two thousand print not what happened years down the road in the reconstruction right so i don't think that that but when you use that to help you what i'm saying is the the board's order in this case was reconstructed larry down in for outstanding scholars and we're saying if you have to reconstruct with larry doubting for illegal candidates you must you can only choose larry down that's our argument but i think that the thing i most fear in this case is that this court will a retroactive brevity of back pay and benefits so that i don't think it's that open and open a question before the war but i don't want this court in a case which really we both parties agree should go back for further factual development to say something which either will perhaps inadvertently would affect a huge we'll move the board's jurisdiction but these are critical issues jurisdiction under three hundred and the rio and three hundred and if this court needs to decide that this case probably would not be a bad vehicle but the record is not right and that's why we asked that that the court room in the case next case is encyclopedia it please the court there are two means plus function limitations at issue before the court here and with respect to each there is sufficient structure disclosed in the specification under the  but the district court should not have applied the algorithm rule to either limitation in this case with respect to the retrieving means the corresponding structure is a well known computer function and with respect to the accessing means it is data or a data structure and the court has never applied its algorithm rule to data or data structures i would like to start with the retrieving means and then go to the access it means with ok there are several distinctions between this case and aristocrat to the first distinction is that to a person of ordinary skill in the art retrieval from a database is a one step algorithm the second is that unlike aristocrat two where the lack of algorithm went to the point of novelty of the invention here the alleged lack of an algorithm goes to a limitation where there is lots of prior art that when a person  ordinary skill the art read the specification it immediately calls to mind a class of algorithms well but it's not the end rip it cracked it was quite detail men in my view quite clear and they're not they didn't make that document go find a location of work and the court's decision relies upon undisputed expert testimony that a person of ordinary skill in the art could achieve that function that function of the invention of what was new it was covered by the means plus function algorithm that i'm sorry the means plus function claim there is no algorithm because nothing comes to mind to a person of ordinary skill  i can go buy a piece of software off the shelf with her i execute that in one step and this is really what professor polish was explaining that i think is a significant difference between this case and the aristocrat to case there are significant because of the concept of encapsulation in computer science there are certain functions that many years ago people have programmed them and to a person of ordinary skill eric the function and the algorithm merge together the undisputed evidence here is that a person of ordinary skill in the art major speech somebody who refuses database systems well if that person is using a database system they know they can go buy one for which they send a single command and the single command retrieves data from a database and professor polish gives some other examples of this saving a document to a desk on this course prior decisions have not required disclosure of a detailed algorithm we enter the information is well known to ordinary wall no no your honor retrieving data from a database to a person forming skill me art is an algorithm because they can go buy a piece of software off the shelf that retrieves data from a database just as they could in the all voice case so this case is very analogous to all voice in that in that sense and how do you get around the word bit because there is well several ways number one in this the right and it depends upon which what level of abstraction you look at the function and you look at the disclosed algorithm but at the very least the specification implicitly discloses to a person of ordinary skill in the other a class of algorithms because the undisputed testimony is that persons of ordinary skill in the art knew how to retrieve information from a database long before this pattern was filed and this court's prior decisions have repeatedly sanction a database to a person of ordinary skill in the art that is the disclosure of a one step algorithm but that's pretty life if i mean your problem seems to me is not the precisely the issue that arose and referred to crack two where the other side was actually arguing that and they had one built in the art that they not testimony one field in the art that they would have been able to discern met and the court explicitly rejected it they said no that's lighting enablement and mean plot function and not a not for what just that one wouldn't go in the out would have been able to do it you need to disclose the structure and my mis stating anything in a risk to correct your i think there's a subtle distinction the subtle distinction is that an aristocrat to the testimony was somebody would have known how to program this here the testimony is people already have programmed it and when somebody reads this disclosure that class of algorithms is implicitly disclosed to them and  know that district court should should should certainly in the first instance perform that analysis are numerous decisions of this court which sanction the use of implicit disclosure docile intel at melle aristocrat one and even aristocrat to your the end of aristocrat to there's a discussion of the many medical instrumentation case and there is a sentence which suggests that you could have implicit disclosure if one of ordinary skill in the art would know what you're talking about here again the undisputed testimony is that database retrieval was well known at the time of the invention and when you disclose to a person who are very skilled in the art that you're retrieving data from a database that implicitly discloses to them a class of algorithms with by itself here there is an implicit disclosure of a pathway to a person of ordinary skill in the ark the specification is quite reads that we're displaying an icon and warn or label and when we click on that article or a label we get related information that a person of ordinary skill in the art knows you had to have a pathway to do that b distinguish those cases on him when they were talking about him with that they thought that that that really is a question of how much detail is required but they made quite clear that the question enough is not when the the algorithm again with respect to retrieving means we contend that disclosure is explicit in the alternative it's implicit and the exquisite argument relies upon the fact that when a person of ordinary ski reads retrieved from a database that's a one step function to a person of ordinary skill they are the example our expert gave us what it said means for adding a plus b well there the algorithm for adding  is just to add a plus b that's what a person of ordinary skill in york would put into their software the same thing is true here when a person of ordinary skill or wants to retrieve something from a database they do in procedure call to retrieve something from a database because long ago somebody else wrote software that allows you to retrieve data from a database all right mr steadman you have agreed to split your time with  to satisfy aristocrat the the clear has given a lot of guidance as to what will work and will not work it's not our job as the defendants in a case where there was no all there was a specific algorithm disclosed but the mathematical methods for solving the outer of them were not disclosed that was adjudged to be enough in w m s gaming the court said that that it was not correct under claim construction to say it was is our guidance comes from the cases of what has been adjudged to be enough and what hasn't been judged to be enough we're not position to say what would have been enough if you look at the reply very filed by my opponent page nine footnote six you will see that they are claiming that it's the specific architecture of these limitations which is the point of novelty of the invention that's the same position they took on reexamination because they added at least some of these limitations in order to get around the prior art we don't know what it was that's in the invention that should have been disclosed that was the point of novelty for the retrieving function of the accessory function because it was not disclosed something should have been disclosed whether it was cloned whether it was a pro statement of the of windows the sentence could have said it is the well known retrieving function used by the windows program excel to retrieve data from the expel excel spreadsheet then there would at least be a known algorithm to which someone could say is the  no techniques or methods can be used does not disclose structure to conclude otherwise would vitiate the language of the statute requiring disclosure of corresponding structure material or acts described in the specification interrelated graphical information to said search textual information isn't it tallackson that is because it was added in order to overcome the prior art the specific architecture of that retrieving function and that accessing function is what the invention is and yet it is not supposed to but even if it were a basic function even if it were so basic that everyone knows it would still have to be disclosed and that  claim one was an innovation that rendered multimedia searching something a child with means they are claiming that the architecture of that particular issue is the innovation but as i said even if it were not thirty five u s c section one twelve is a statutory mandate that requires disclosure in the specification even if it is well  and in that case there was x per testimony that the title of the of the article itself was enough to disclose to a person a skill in the art a particular algorithm here there is no title specification there's nothing in the specification might my opponent says it's disclosed by the words it is retrieve that's exactly the same as the claimed function retrieving and and is retreat i want to bring two things to the court's attention during my time one is and has not come up this morning in oral argument they have an argument that the dismissal without prejudice of the old one a patent was error they did not disclose in their brief that the that there was a second pending case involving that patent we fully briefed that in that second pending case judge eckels now found that patent itself invalid on other grounds and that is on appeal to this court now so we contend there was no error but even if there were the court's attention also has not come up this morning is that after the briefing was complete in this case there was another case on the so called algorithm rule that is black work versus desire to learn and even more than a wrist a crab it consider almost word for word each of the arguments raised in their briefs and rejects them and so we would contend that between aristocrat sue and blackboard every single legal issue that's raised in this case has aristocrat to to the difficult work yes in letters presented after the briefing both parties discussed rescript and they submitted their reasons for why it applied or not yes your honor is that in the record or the letters in the record i do not believe that they are in the record implicit disclosure and that the aristocrat addressing in re docile did not really deal with the implicit disclosure aspect of docile which was the implicit disclosure of a computer it dealt with the issue of whether you had disclosed any algorithm at all because only the word known algorithms was used at the end of the aristocratic case there is language addressing the medical instrumentation opinion which says here as in medical instrumentation the patent does not disclose the required algorithm or algorithms and a person of ordinary skill in the art would not recognize the patent as disclosing any algorithm at all i suggest that that and a person of ordinary skill in the art would not recognize the patent as disclosing any algorithm at all is an acknowledgement given this court's prior decisions in  that there could be an implicit disclosure of corresponding structure that aristocrat itself acknowledges that there can be an explicit implicit disclosure of corresponding structure and here the undisputed expert testimony is that is precisely what you have because these are both well known things are expert even gave examples of how these were in the prior art we showed with the intrinsic evidence how the examiner understood the accessing means to be  pathway that was disclosed by the hyperlink prior art it's the same example our expert referred to so in both of these cases we have well known functions that when the person of ordinary skill only are reads the specification they understand that there is an implicit disclosure of algorithms and in the case of the retrieving means there is an exquisite disclosure because here there is a merger between the function and the algorithm because to a person of ordinary skill  retrieving something from a database is a one step algorithm just as adding two numbers together is a one step algorithm just as saving a document to a disk is it one step call to the operating system counsel for the opponent home products international an american manufacturer ironing boards or ironing tapes this case arises out of the commerce department third administrative review of the and don't think due to water on these products in that review commerce found that the chinese export or since hardware had submitted information that was not reliable that was false that was unbelievable but basically million with  and the and the arguments made by type by the american manufacturing that case gleason are very similar to the arguments we made sensually that there was no showing of irreparable harm the court presumed that there was an agreement to reimburse the dumping duties that the imported would have to pay and that that that was the finding by the by the court of presumption by the court and i can assure you that in our case there is no reimbursement agreement from since hardware to the importers who have to put in the record in our case we showed that since hardware stated didn't even know the identities of the u necessarily conclude that it did in the next sentence your honor the court said in other words this court acknowledges the distinct probability that typo will ultimately incur the charge will lose customers so i suppose one could say that was an explicit finding but there was certainly a finding a probability and not in our case that there can be no such finding probability attitude to complete my answer that is viewed as additional dumping which will lead to additional duties and it's the reimbursement is effectively prohibited by the n t dumping regulations however we were not i didn't come here this morning for the purpose of position but that is that doesn't go to the question of how where is the harm the harm certainly is felt by the import of the import it has to end up as to pay that money to foreign export or could be harmed by a high duty