wireless licensing the court issued an order at the end of last week because they spotted a possible standing issue we don't know if there was a standing and she were not but we want to make rested if you agree that there is no standing problem then we can move on very quickly to the extent we need to debate the standing issue we've a lot of five minutes per side but if the standard you see disappears and you go back to your normal contentions which are not part of the appendix here but they were certainly part of the administrative record it's exhibit one thousand and thirteen and you can see that at least exhibit lestat eight to forty nine you'll see those were submitted to the board below so they're part of the in the sort of record they showed that in its contentions conversant pointed to the l g maps enable devices and google functionality for infringement now some of the products that were exhibit one thousand and thirteen and it's appendix a to forty nine it's an exhibit list that shows you that exhibit one thousand and thirteen was the contentions that were some made it to the court so what's the status o dismissed with prejudice and we think that squarely puts this case this case is not like consumer watchdog or five gen x where the appellant was not engaged in any activity that could give rise to an infringement suit so we believe here looking at as conversant contentions and given that they actually fought l g two when they were trying to take the patent out in the district court as he wanted to come in and not to sue and converse and did not give a coming in not to sue so we think if you look at these facts collectively we think they show that there is there is activity here that could give rise to an infringement suit and the fact that they didn't get they did not give us a covenant not to sue for their shows that they will sue again and what about this infringement so does dupont i think if you look at both of those cases there unlike consumer watchdog and five genic where there was the appellant was some third party they didn't have any activity that could possibly rise to the level of an infringement allegations going back to exhibit one thousand thirteen which unfortunately are not part of the appendix but it is part of the list for the record if you look at the contentions you'll see they point to consistently google functionality  not not sure your honor and i think here you don't need to go that far and we were not asking the court to go this far i think we're saying collectively if you look at the facts here three fifteen e and the the threat of an infringement on  defend l g with respect to the patent and the allegations with respect to google functionality when i go to look at the infringement contentions in the ministry of records are you telling me that there's a reference to google functionality  they're referring to you know your honor in their particular case that might be helpful for you for first you just general the entire sure you are i think you can refer to the entire document but i think she don't need to go any farther than page one and i'll just we couple of the pa honor i think if you look at their infringement allegations i think they relied on all of them but as a indicated the patent was dismissed without prejudice and they left open in fact when they took it out of the case they said in our court  alone provides standing and that's in the electrical fittings case at three o seven us two forty one and the court the supreme court elaborated on that principle in deposit guarantee and that for forty five us three thirty seven so again i think if you look at it collected collectively that there this is topple here is even broader than collateral estoppel because you also have three fifteen b as this court recently held in the click to call case that discuss a dismissal without prejudice can bar a party or does bar is that the claims they were sued on have already been cancelled by the patent office so those claims are gone from the pad and the only claims that are left are claims that were not alleged to be infringed and so they haven't been able to show the concrete in and this is pages thirty and thirty one after so claiming one for example for acquires certain network functions including sending the requests through the network and retrieving data from a data store and then again sending the data through the network claim twelve which is a device claim is directed to papers withdrawing the claims from the litigation i think were filed in november twenty fifth teen and that was prior to the decisions in the other been noticed of alleged infringement has never been sued and since this patent was withdrawn from the l g litigation there's been no further discussion about it between the partners why is it that you didn't bring up the standing argument it didn't occur to me your honor and until the court issued its order i hadn't really considered it never limited their contentions it said this is what they are starting now but there is all right and given the patent was dismissed without prejudice and if you look at their contention they're pretty broad and given the similarities in the claims we believe he certainly institution decision the board we had made two arguments one was the no requirement argument will be based on expert testimony showed that stack discloses that its processes are performed without prevented from and and second we argued we made an the point of the spec to the final written decision is that the board made glimmered finding its in its institution decision as you are saying the problem that we have is the board never explained in its final decision so that this court could do the review that he needs to to explain why it changed his position in its institution decision said they doubt pre registering limitation is a negative limitation it could not have been clear on that point is another way of expressing what you're saying that just looking at the final decision and even and reconsidering decision it's not and i think if you look at that particular argument that they're the only thing that they had the other side pointed to was exactly what you're saying but i think if you look at stack if and that's specifically let me point the court to page five thirty one or stuck here is they try to hide behind the burden of proof this is the google analogy had the burden of proof we agree we had the burden of proof but here for the board and conversant to rely on the burden of proof to think that it did happen or one of two things needed to happen one was that the bore needed to make a finding that there was contrary evidence from stock that was either pursue it if that's one or the board needed to say well the evidence was counterbalanced here it didn't make any of those findings so i totally agree with you  and then not meet them head on so in its institutions decision and i know you don't want to go could there but i think in this institution decision the board agreed with us with respect to the first started with a no requirement argument that that was the basis for institution and then it said we don't agree with your optional feature argument and we will not institute on that basis and in fact if you get the georgia mouse question during the war did in fact address the patent owners argument that came out of the anticipation theory based on this one reference right so you are just just to make sure i understand your question i think the but what the board did here was they actually had the contrary they said if you look at the optional feature argument they said look we're not so sure that this optional feature that you're pointing to is pre registration therefore we will not institute on that basis let me try to divide this there are three what gets in my head right now warming is in the institution decision the board found that there wasn't anything in this reference that disclosed the pre registration then the second thing is your i guess backed up argument that to a response to the patent owner further developed a theory about why the subscription data is in fact a pre registration and then it had an expert that submitted a declaration as i read the board's decision in the final written nub of our a p i argument that the board should have done that and i think what's telling here is going back to your question about the d s m standard you know that they pointed to their expertise if i could just have the court look at a five thirty one difference whether or not that's pre registration you know you're i'm not but i think this court certainly when the facts are pointing all in the in one direction that the certainly this court can reverse if it was a certain you know we understand if the court just wants remember we're fine with that but we think there's enough in the record here especially if you look at the board's institution decision the final decision the evidence that the pointed to which is what i'm going to address no this is a factual question yes it is your honor but i think that stock could not be more clear on this point which is why i want to make sure the court looks at this i don't think you're going to convince us to make findings of fact in your favor the only question is whether the board feels to make findings of fact against you sure so it's back to my question and  i i think your answer is going to be no they didn't but we very often have the east situations where parties come up here and tensioners as well and they'll say look the board laid out both sides arguments and said i agree with x that means everything that it laid out should be considered part of the board's decision and this case the board did reference the d s m standard as part conversant argument my question is is there anything in such and such disclosures are not prevent a stray ship and forget the institution decision right now the question is did the board say its final decision that we agree now having seen all this ex the fact findings but i think when the d s m standard this this point is dispositive because if you look at eighth of a five thirty one in five thirty two it says in connection with the signaling method the location of the latter mobile station may be determined in accordance with the procedures described problem if the board didn't consider converse and stars that's right you are and even if it had we think it would have ruled in our favor because of the point i just made and it reminds me a rebuttal time you keep the rest thank you yes your honor we start on appendix page not at the very bottom and this refers to the first the so called negative limitation argument fishnet argues that without registering limitation in the claims as a negative described adequately if the reference does not require the presence of the feature that's an exact recitation of the negative limitation argument that fischer made the board goes on in says petitioner argues that the systems and method disclosed stack check feature what if we disagree with that what we think google it already had two different part in this one argument number one is that stack doesn't choosing not to be found by and that's one of the things that's and is considered to be free registrations which they don't necessarily concede well then that is not required form of preregistration i doesn't your honor because while because the board has indicated they reviewed the party's arguments and evidence of record and upon that rebuttal that's premised on fucking up the optional feature to both arguments one of the two i just pretty firm conception that argument one from google was separate and independent from argument two then a final written decision i'm not sure why they collapse the two arguments to be premised on the single idea of this optional feature let me address that part in a moment trying to cast your question directly yes if the board made a mistake in not considering an argument remained his program they didn't make a mistake and the reason they didn't make a mistake is because they followed the petition exactly the way it was laid out and it was the same person who wrote the institution decision and wrote the final written decision and she didn't make any errors or do you think if i decide but just to check feature was relied upon by petitioner not just for the contingent argument but also for the negative limitation argument it was the same evidence that google advanced with respect to both arguments and we can see this clearly pages sixty one and sixty two of the record this is the park in the petition were google lays out both arguments they begin with the negative limitation argument and they allege stack nowhere discloses the pre registration is required to access the location based service and what evidence to base so i don't like the six six seven patent stack disclosing is that a mobile station may not release its location information to others and then they rely on the same evidence and stack for their so called optional argument by saying and to the extent that no proposes that maintaining and using the list of entities that are permitted to receive location information is considered sukhumi i think it is i think it is and that was a question that google failed to answer or at least when they answered it they answered it with respect to the wrong mobile station i go back to page well it's confusing because your again your theory of foreign affirms is based on the board correctly understanding the broad argument that there is nothing in stack that discloses pre registration as being hooked up to this right after the line for did it they said twenty three year for it then goes on and says i've also been asked to consider the scenario where maintaining using a list of entities that are permitted to receive a pension and from that from if it's close by stack is interpreted as being similar to the claim pre registering so to me that juxtaposition and transition to this additional thought really further supports the idea that this is a second different argument relating to the hospital future compared to the broader initial argument that google was advancing nobody disputes that there were two arguments here either the question is what was the evidence advanced in support of those arguments and the question makes clear that it was the same evidence it was the same disclosure in stack that the petitioners were relying upon and that's where the board found that that evidence would not surprise a person of ordinary skill  pre registration was required google didn't explain why the silence was meaningful and so what if we really that's what seems to me says is it doesn't say silence alone is the answer correct it says and in fact in that case it said yes it's in silence it doesn't explicitly state it but if you actually look underneath that the reference you can find that an essentially teaches them exactly and so i guess what i'm having trouble with it would be a lot nicer if the board had said we're looking only at the reference we c t s than zero three seven why google continue nothing to say that that wouldn't that wouldn't teach proof in the petitioners case in chief if the petitioner doesn't meet the burden of persuasion i don't know who doesn't even have to put in any evidence in order to win so what the board is saying is positional you didn't get far enough over the line the board didn't have to consider our standard based argument they didn't have to consider our experts testimony about what the standards mean and i go back to pages just from going through the if in here it think the expert testimony is just the conclusion you're under and the board doesn't have to accept making conclusions the board needs to understand why the conclusion was reached and the barton declaration doesn't see anything other then i can see where it's disclosed in the reference that alone means nothing if we look to the petition is it your position that the expert had to go further and say i think one of far you're on the board doesn't have to make fisher's case for them the board simply has to look at the evidence proffered by the petitioner and decide whether or not that meets their requirement for anticipation and here that's what the board did they looked at the evidence the passage that i cited from their petition it refers to a stack check feature and they decided that doesn't explain why a person of ordinary skill would have been for no pre registration absent that they can't show anticipation and the board's job was done data yes but there are other limitations that the board didn't address because it didn't feel like it needed to address that you would think only men would have to also be confronted by the board in resolving whether these claims run which mobile station it is that is engaged in the request for the location finding service and against an argument concerning what is a location finding information as were cited in claim one this is all in your and another thing to say that you act adequately develop the argument for purposes of presenting it or your intention says negative limitation and it's not there and then goes on and develops th there so where did you develop this theory that you wanted the board to somehow figure out you want to be did develop it and i think if you look at it you have to look at the petition and the expert decoration collectively and i think if you look at it collectively dr partner reference and that case you might have a different answer to the question than one where the claim was directed to a method of operating a vehicle without listening to the radio absolutely honor and i think what we what we're saying is if you look uncoated was never used at all so the fact that the word pre registration is not used doesn't answer the question of whether it is disclosed in the prior and i think you are honored but the key is here it says without pre registering