i'm appearing on behalf of the talent with me at counsel table as my partner martha snyder within and across the nine appeals ultratech has raised a wide number of issues with the p tabs handling of the i p r we obviously want to have time to hit upon all those issues but time permitting i'm hoping to at least subject to the court's questions touch tab is that the key tab at least in these matters didn't act as a neutral arbiter it didn't always put the proper burden on the petitioner why don't you start with the happened because i think unless i'm mistaken this procedural issue extends and covers all of the cases in front of us today it does indeed it certainly impacts some patents more than other because  and the ryan reference so those are that's very clear as i understand your argument because the board extensively and repeatedly relied on the credibility of this particular expert in every one of the proceedings before it i mean it was even if they had refused to allow the inconsistent testimony that could have been a harmless error if they had then gone on and decided this case without reference to the expert but in fact in this case they in dozens and dozens of places across these things said we rely upon and credit the testimony of and in fact even said in multiple places in particular for gordon to go off and then another case that they credit that testimony over the opposing expert that's exactly correct your honor so so if he really did you know sort of implode on cross examination and offer inconsistent testimony even if it was only with regard to one patent your argument as i understand it is that you with ultratech and so mr or chill grosso was obviously cross examined at trial regarding what these prior art references actually talked now did you not have the opportunity to  claims six and eight of the eight three five patent which is in appeal seven hundred thirteen i believe that's the only deposition that was taken after that inconsistent trial testimony that's going to be clear about that  so you couldn't in these other cases you couldn't depose him after he offered this inconsistent trial testimony in the on p r because the period of time for that discovery had club could correct and in fact you know the  k moved the tab for leave to file its motion to supplement the call it's a two part process we can't just submit the testimony and say please supplement the record with this testimony were prohibited by the to do so so we filed a motion for leave to file a motion when we cannot get into the substance of the testimony the substance of the evidence we are trying to know is all stricken from the record correct you know i just wan clear here in the normal process you know my p r destroyed chill grossest testimony or deposition i'm sorry declaration was submitted correct and i assume you had an opportunity challenge that we did indeed in the i p r in the normal course that's correct however his inconsistent testimony at trial before judge crabb occurred after that deposition i understand but i guess what i'm what i'm asking you is did you not have the opportunity to attempt to obtain a similar inconsist limited and we are very time constrained one of that you have you not have the opportunity to challenge him and say to him but does does this reference contain that element or not or don't you agree that this element is missing the same kind of testimony that came out in the trial i agree with you and we did use that opportunity however as the facts came out when mr o chill grosso was on the stand in front of the judge in front of the jury he made inconsistent statements he did with that deposition he didn't implode during the i p r deposition you know he held firm but then and with regard to the same issues on the same hand in the parallel district court proceeding everything went haywire for him one i i'm not sure i would say he imploded but he made an important inconsistent statement and i don't know whether he would go to because i love to see the inconsistent statements right that that's correct and that's r's but in addition from that the fact that that p tab even if have the right to waive and and did even if this rule doesn't apply to the fact that they engage in this conduct to prevent you as the reviewing court from not only reviewing that evidence you can't just decide whether their denial of the motion for leave was there but you can't decide how that would impact the merits of their decision here when they right to file a motion with the you know explanation as to why did they give you an explanation when the conference call in the other is not a written record of it can you report to the court what they said to you  the conference hall yes your honor it was a very short call we were given very limited opportunity to state our argument before you are put on mute and hold it when the panel presumably discusses the issue they came so what reason do they give if anything in their denial because i don't even see anything in their reflection kind of like what's in their briefs today about how it was one of the hearing recently i didn't see anything at all in this denial any reason whatsoever that that's correct and that is part of the basis of urrent explanation you received her original phone call so this is part and parcel with one issue that we think is global throughout our appeals of the p t i'm not acting like a neutral arbiter in these matters and put the proper burden on the petitioner but rather acted as an advocate at every turn for it in validity and it's even occurred in your honour's when the petitioner itself did not advocate for certain evidentiary positions certain evidentiary positions that ended up being material to these decision ultratech has laid the blueprint for a groundbreaking product and service that truly revolutionized the quality of life for hundreds of thousands of american the country's leading advocate for the death of hard of hearing testified that kept tell was life changing she said it was a life altering and life savings for the community she represented she was executive director of the hearing loss text to them the doctor who mother would speak through this person who had to be in between the people in the collar and then type it back to the assisted user that's what was available primarily  together but you judge newman's point isn't that the natural evolution that followed from the fact that the voice recognition software had been developed and disagree with your honor because even in the most prophetic examples of where people wanted to use voice recognition software there was never the conception that voice recognition software should be used by a college system and using voice recognition software training to the voice of that call assistant no none of the prior art references combine all together with with that example and had it been that easy some you know someone else would have would have it and so that's when it we have to guard against the bias of hindsight yeah this makes sense this is such a great product but no one else had done it and that's why secondary consideration obviousness are are so important in this case now the board took issue with text evidence of secondary considerations largely on tied those features to the specific claims and he submitted claim charts and the board looked at them and he said that this is too conclusory and they it they said it was too conclusory on the issue of embodiment and what's notable about that a microphone he saw her reboil sing all the words he looked at a caption telephone he saw the captions come across these are all observable facts that certainly mr otero grosso inspected and never once said no that's not true they catch hell doesn't practice this invention because of x y and z they don't even feel fain to argue that only the board took issue with that and that is an improper step under  this court's p p c i believe decision where if you have undisputed evidence of environment it's improper for the board to step in and say i don't believe you so glaring example happened in the last i p r concerning patent eight three five claims six and eight where the board actually went further and looked at some of the secondary considerations including commercial success and once again that mr ludwig attributes to caption telephone that's not caption telephone that's the prior art that's voice carry over no board it's not and caption call never suggested it because they know it's not true a motion for rehearing we pointed this all up to the board you mis read these documents even caption call would admit they show exactly what mr ludwick says it show and the board said are you should have anticipated our confusion and were not convinced anyway you should have supplied more documents more than the seventy five page report that goes to the government is no one can you spend a few minutes talking assistant one colace assistant and the specification clearly lays out the why that's so important and the claims all relate to the call assistant now this is material because the board didn't find a disclosure in ryan under the proper construction the board rather sad well that color system could be a voice pattern of a whole group of  despite the plain reading of that claim now brought us reasonable interpretation is progress but reasonable is is is is the key term there and as the court found  versus designed to the voice and which is what right answers correct and if the distinction you're trying to make is that training means some sort of iterative process of learning process where it's designed is a coded procedure that doesn't involve any training that is exactly right your honor but even without that the fact that the software has to be courtroom that that's absolutely correct your honor boies recognition software that is speaker dependent is written in such a way that you actually sit down with it and for hours if not days or weeks you work with it and it learns the pattern of your voice it learns how you pronounce things and it gets better but how how then how does ryan operate when it's this that they are the magic of software writing they write it to recognize like southern accents or something and i'll note the distinction between ultratech and ryan is ryan actually says designed to the design to recognize the voice of particular relate agents plural the accuracy of the relay service may be improved by having one of these agents six one three which is the four eight to patent in column five it is a limitation of currently available speech recognition software that the software must be trained or adapted to a particular user before it can accurately transcribe what words they use or speaks accordingly it isn't vision here that the collison operates at a computer terminal which contains  waste recognition software package which is pacifically trained to the voice of that particular call assistant there could not be a more clear teaching in this  ication that what mr angle key what culture tac was envisioning and limiting themselves to was voice recognition software that would be trained to the voice of each and every call assistant notion that you wait take this invention and redesign your software code it every time instead of buying the software disclosed in the specification dragon naturally speaking which is adaptable with each you that came up first in the other side's argument i'd like to make a couple points about that just to clarify exactly what was going on in the proceeding now with the p t o does it has this conference call procedure so if someone wants to submit supplemental information when you're well into the i p r proceedings including after discovery is closed with the p t o does is it schedule as a conference call so that so that the sides wanting to submit that evidence can make the best case as to why that evidence is material enough to warrant potentially having to delay the hearing and just to put this in context but the evidence in question is not presented at that time it as often happens a district court and it allows the council to say tell us what in your words is so material about this conflicting testimony they have the opportunity to describe it and say look here's what he said during your deposition in this case and here detail since this is not transcribed and there's no description in any document about what the nature of the call was like you're describing it as though you think it was some sort of a road that where there was an opportunity presented you have any evidence to support your statements in this court as a fact which you just made that there was an opportunity for them to present in this conference call it back and forth discussion of exactly what was inconsistent your honor a couple couple is actually some basis to make the representation one i communicated with the attorneys who did our office communicate with the attorneys who did do this so i have their version of what happened which i will relay to you but also we have been writing from ultratech counsel with  submitted after the notice of appeal was filed in this case so that the peach had no longer had jurisdiction to expand the record they filed what they called the verified recollections of counsel which which they gave their version of what happened in the conference call this part it's not part of the record because they filed it after the notice of appeal had been filed in the p tab and they never went to this court under frappe ten and to have it admitted in this court now what that description entails and this is from their own counsel not our side it's the one sided dispute they say that they were asked to present to describe the conflicting testimony they were given that opportunity and they did describe it during the call this is according to their history this is not a record below and correct on if you point out that she didn't supplement our record on appeal with it but i assume you didn't either so you'd like to rely on something that's not a record you also had an opportunity to put into our record no your honor i'm not trying to rely on it since you were asking what happened during that call and so i'm just trying to describe the only basis i had to tell me what happened to call for my no i don't want to you are you are if you ask her what happened during the colony and you ask me is there any basis to say inconsistent statements made by the very expert whose testimony is given in i p r in which they rely on dozens of times that happens these exact kinds of scenarios happen day and day your honor i'm not saying the particular facts in this case what i'm saying is they have this conference calls for to expand the record to have late discovery to reopen proceedings that in fact does happen often times where is the authority for these conference calls come from your honor it's set forth in that in the procedur sixty three which was submitted to us and articulated was the authority for the p t o to do all of this says and i will quot regulations the director shall prescribe regulations establishing procedure f ok so what was the standard applies to the motion itself not the request to file i'm sure and so they make a determination at the hearing is have they given their best case to to to  suggest that they can meet that standard such that it justifies at that late stage remember we're three weeks before the hearing now at that late stage to reopen the record how briefing on this and have potentially a yet another deposition  the process is not into submission of the actual documents that we're talking about your honor that it is true that in certain cases close cases you may actually have to study the materials and figure out whether you know how contradictory the alleged contradiction is immaterial enough but that's why they have these hearings they try to give the council a chance to say ok well you know explain to us how material it is and in there and there i don't want to go listed in the i p r decisions they talk about that process is not in the is not in the there are other there are practice guides the talk about transcription not specifically with respect to this conference call but again as  o there is no representative document in any place that the p t o has articulated not even that practice guide which you say is published in the federal register even though it's not a regulation was subject to notice and comment there is no place anywhere in argument did you have a chance to depose ochoa grosso after this trial testimony happened the answer is yes there was a deposition in the nine i p r that happened after the trial testimony and if you look at footnote two in their reply brief what they say is we didn't raise this motion to supplement the record because we had an opportunity to depose ochoa grosso in the ninth i p r so if these contradictions were so material you would have expected it to surface in the ny i p r it does not come up we review the ninth i p r deposition transcript they don't ask him about any of the inconsistency that they talk about so it's just not true that they didn't have an opportunity to depose grosso after this trial transcript that's true in the first state but in the night it's the same witness and if it goes to credibility presumably they would have brought up the contradictions it didn't happen and judge newman to answer the other part of the question one material thing that they haven't disclosed to this court is that trial testimony is and is readily publicly available for this court and we didn't realise this at the briefing stage but it's an absolute critical point even if that this does raise can't due process concerns or procedural concerns this is probably the worst vehicle to find any sort of procedural violation because the very testimony that they say it was that it was impossible to bring to this court is publicly available on pacer in the very case that they cite on page one in their brief they say in another document from that same case another dock entry it's documentary six ninety seven seven twenty and seven fifty nine in that parallel district court litigation it's publicly available on pacer if the contradictions were so their principal claim before this court is a procedural point that when something is publicly the filings of selves including the trial transcript of the fact not the substance right well your honor their principal objection here is that there was no way for them to get the substance of that trial testimony so that they could not so that they couldn't make the contradiction argument where they said as we were we are deprived of the opportunity to make and show the material contributions we know that the p tab didn't find that there was material enough contributions to admit the testimony what they say is they deprived of the opportunity of appellate review for this court to look at that testimony and make and make a decision as to whether it was material enough to undermine or to address this testimony that's the claim they want to bring that people have abus discretion and should have let them in mid this testimony because it materially contradicts with they says we couldn't do that because we couldn't point the court to the testimony and show them the material contradictions but they could it's on pacer they can cite they can quote the exact sentences and line it up against the testimony that's what they want to do with this is remembered for a procedural violation that's precisely what they want to do is they want to put the testimony and show the contradictions they they could have done that in the reason they can do that now i just want to make the court aware that this material is in fact it's not impossible to bring it before the court is in fact on the court they didn't move before the notice of appeal they didn't move after the notice of appeal and they  first and of course secondary considerations alter tax burden to show the nexus between the capital services they have in the patented claims and it's important to remember that it doesn't get lost in this briefing that the secondary consideration argument was denied on two independent grounds there was a procedural ground in the first eight of the nine i p r for denying the argument because they didn't properly raise the argument and that noted they spent about a page and a half three legal boilerplate paragraphs in laying out secondary considerations and if i can just read for you from the from the  description and this applies to the first eight of the nine i chiari as to why they didn't properly make the secondary consideration argument and this was also aired in the hearing transcript where the other side said yes it could have been made in greater detail here's what it says it says patten owners arguments and explanations on secondary considerations are three paragraphs that contain virtually no substance the first paragraph is legal or boilerplate the third paragraph is a generic conclusion the second paragraph is at best a list of prohibit incorporation by reference and require specific arguments to be made in their briefs and then it goes on to say on the next page a forty five percent number cited to no paragraph or portions of the evidence is sought to lie on and develop no cogent argument instead it listed the names of common arguments made in nearly all secondary consideration now these we require the parties papers again contain more than mere pleadings so for the first eight of the nine id r s what the court said is they didn't present the argument consistent with the rules that was legal boilerplate you can't just cite the dozens of pages without any pen cites or or just make legal boilerplate arguments so on that ground alone the first eight regular argument on secondary considerations in its briefs only in the ninth i p r once it did that the people have did address it in fifteen pages of its final written decision that's in the seventeen thirteen i  that's j s thirty two sixty five to thirty two seventy nine so once ultratech actually spelled out its arguments you get a fifteen page detailed discussion of why the secondary is why they didn't meet their burden on secondary considerations s just to pick one of the claim tarts there's three of them go for each of the patents here seventeen o six j a twenty four thirty seven to twenty four forty four this does not look like a claim chart that any court would accept it is sent it doesn't have any manuals no documentation no pictures no diagrams it's a chart that has nearly verbatim language for each entry that we quote in our brief i encourage you to look that way for just no surprise that the piece has said that that is not a sufficient sort of evidence to prove embodiment when you just have this conclusory wrote verbatim without any supporting documentation it's just not the sort of evidence that you see in these sorts of cases  embodiment moreover beyond beyond the fact that they didn't make their threshold burden of showing embodiment based on that conclusory claim chart in that last i p r age age thirty to seventy the ph have correctly points out that not all of the models of telephones and their products the new capital service actually have all of the elements of the claimed remember capital service their product is not a monolithic it's not like a single product it's a group of phones that evolved over time over a decade and they point to a j thirty to seventy model one hundred and they say look the expert doesn't show that model one hundred actually included all of the elements of the claim below and in particular we know that model one hundred does not have to line functionality that's one of the elements that is part of their claim right there's three c elements revising two lines functionality in simultaneous voice and text it doesn't have to category of inventions that are co extensive not only is that under inclusive the capital service because it doesn't everybody in certain models all of the claimed features but it's also over inclusive remember there are certain claims here that only have one of the claimed features like revising and yet they're pointing to a service that they say has all three features so to trace the commercial success to a particular patent claim that only has one of the three free features it's tough to do even beyond the claim features there are lots of un same features in the device and if you have points to these a j thirty to sixty eight and it says look there's there's strong reason to believe that the success that this service screen size bigger so that people could read these captions easier so there's all sorts of other this is one of the most wholesome analyses of secondary consideration evidence that you'll see from the p tab fifteen pages where they walk through the various defects  or why they didn't make enough of a showing to get the presumption of nexus that they see your honor in that in the couple minutes every meeting maybe i'll turn to the same construction argument that you on training so the there i guess there are two elements to that the one and only one when you're talking about broad broad it's reasonable construction to say that the software has to be trained to only a single individual is not only supported by the claims and specification which never say it can only be won in no other system but also by common sense often these call centers have are are all you know housed in a particular city with an accent in there a southern accent a southern city or in india with an indian accent and so it makes sense that you would have it trained to particular call agents in a particular office and so to say that the claim construction requires under the broadest reasonable interpretation that it be just one assistant to peter have correctly rejected that argument but even if there's any doubt that this could apply not and remember our construction is it could apply to just one call assistance or to a group of call assistance right there saying it has to be just one but if there's any doubt about that it j thirty two they say the piece had never made a holding that ryan anticipates if it's if it is just one call center that's not true at j b thirty two ryan specifically says to you the first this is the first yes this is the first this is in the seventeen zero sec and it's at j f thirty two it says moreover we are not persuaded by pattern owner that a person of ordinary skill in the art would interpret ryan as only disclosing software written for a group of people that no owner's argument is unpersuasive because it relies on the level of ordinary skill in the ar reflected in the prior art filed in one thousand nine hundred four not one thousand nine hundred seventy and so there was an alternative argument that the board made that says it there isn't a reason to read it as just limited to a group it could also do one person  and then as to the timing in the few seconds that i've left as to the timing argument your honor there's no definition of training in any of the materials there's no reason to believe that software that's designed at the coding stage is not also trained it in order to get an accent like a southern accent even if it's done at the coding stage you still have to go through the same training process that the software then recognises that it's a southern accent by bringing people in the lab and making that accent so the question is does it have to be done before or after the what it is that they wanted to include and they came to a full hearing to explain their position they asked them to give them the best shot and in the end it just wasn't sufficient was what's the whole purpose of this conference call why not simply the opportunity to file a motion because your honor these proceedings are constrained by time there's a mandate to have these competing is completed within one year the types of issues that parties how is that an explanation and we've decided in the interests of justice it's too close to the hearing to allow this process because of the type of motion that they were trying to make they wanted to include inconsist inconsistent statements by the other oppositions expert that's not the kind of thing that they i mean they try to say oh it's just you know they could have included them as observations but observations you don't even need permission to file observation they could have done that automatically one out of the dozens of references which all of which i have flagged so we could spend a lot of time going through the movie too but i don't know that it's a good plan i'm picking this one because this one's on exactly the point that they say he gave inconsistent testimony on it the exact point when the exact reference that he supposedly gave inconsistent testimony on and so your statement of the a minute ago was you're not so sure the board really did rely on mr roach you are also intriguing just more i  they don't have to physically have the testimony in front of them for them to have considered that the way a conference call is organized is that the the the movement gets the opportunity to give the board their best shot as to why there is sufficient evidence here there's there's enough here so go ahead and proceed on the motion it's a pretty it's an issue of efficiency there is no point in going through with a motion and opposition i don't respond and whatever else this particular type of motion would have  declaration of this guy how hard would it have been for them to read the corresponding pages that supposedly amounted to inconsistent testimony in written form they also read the cross examination of this guy's deposition testimony that ultratech  if i really do what i'm not interested in doing here just to be clear if i were to say that this was an arbitrary capricious that i'm not interested i'm a little concerned about taking such a ruling so far as pages can i have three extra days whatever do you is is that is that correct because maybe there is some reason to suggest that certain kinds of evidentiary motions ought to be subject to more process or at least some record or at least some written decision but the routine in monday three more days three more pages whatever stuff doesn't have to be you see where i'm going i mean here's arbitrating british in this case i'm not looking to say you're ar capricious in every case because what you've explained to me and i want to make sure understand correctly is this the type of substantive motion as i look at it is not the kind of thing the board's normally doing in conference i think that's that is fair the the relative frequency with which the conference call is used for minding routine issues that are never again at all even revisited is really the normal course of conference calls right the fact that this you know in hindsight became a bigger issue than it was at the time is a different story and it's not common necessarily a what i was hoping but at the same time that doesn't mean that what the board provided in its decision isn't sufficient explanation th discovery is complete this is the type of motion that requires discovery and that makes sense you can excuse somebody may get inconsistent statement without providing them the opportunity to explain why and once they provide an explanation what happen party gets the opportunity to then depose them on their explanation this isn't just a one time oh let me please let us include this transcript from the jury trial into the record that's not what this is about it entails a lot more steps and there just wasn't enough for why they denied in the interest of justice chose to deny this i should interpret that first statement which is a factual statement about the date on which something happened i think i found their decision yes yes sure honor because there's fact just the p t o explains that you have to get authorize ation to file a motion that's also in the rules the rules for this particular type of motion right you have to get pre authorizing action how do you get to go about getting is what i'm trying to include or exclude i have spoken to the other side of the agree or disagree and these are the times when both parties are eventually it is meant to be completely where is your else going to explain what you said it explains about you can hire a court reporter to record the conversation if it hire a court reporter but that is just understood it is this is litigation parties know that if they want to preserve the arguments that they make in an oral motion where nothing else is before them where the board is saying please orally explain to me why you think you have sufficient there's a sufficiency issue is there enough here for us to go ahead and actually brief this motion which takes time which is expensive which causes delays is there reason to do that because if there isn't there's no point in going through with it the district on whether to allow it or not is recorded but that's that's that's a different issue that's a second that's the it that the issue there is yes yes perhaps they're allowed to enter into the record there but here the reason it's not part of the record is because they fail to get  beginning of every conference call that i wasn't in on the board presiding board judge asked every party to introduce themselves and make their appearances introduces the other two judges that ask that there's a court reporter on line and then if there is a court reporter i make sure that the court where it can hear everybody's voice considered it in the hearing the party had the opportunity to explain what it is that they were trying to introduce frank and to me this is much ado about nothing to be honest with you because in the ninth i p r where they could have introduced  you that perhaps there really wasn't anything in the to begin with in the first place and perhaps the board understood that during that hearing perhaps the board also further understood that they had multiple opportunities to get the mr to depose m you have incredibly limited time and limited pages which is you know part and parcel with you didn't describe enough in your brief about secondary considerations which i'll get to next the second eight three five pat did not involve either of the references at issue so we would have had to have taken something like twenty pages to explain here's michael offline here's ryan and here's the testimony here's how it's inconsistent i do believe that that is highly pertinent to his credibility but with these procedures with such little due process the notion of not going to the merits of the prior art references for this pat r this was one of the first i p r this case has been stated a number of times this appeal rather so the notion that this was common practice wasn't true at the time going to the issue of nexus and waiver the board actually it criticized ultratech there is no doubt about it practically speaking could we have done a better job and in the probably could we have gotten it all in with those pages no it would have been impossible but or didn't hold waiver it criticised ultratech but it didn't hold waiver caption call argued not embody men but they did argue  secondary considerations the board and a motion for rehearing which is found in appendix seventeen zero six appendix seventy one when we raise the issue of secondary considerations on rehearing it didn't discuss waiver what it said is we analyzed your evidence and we didn't we weren't persuaded by now fundamentally what's important is that evidence that the board didn't believe was primarily you line patent expressly put in his report that for secondary considerations he was only considering the two hundred not the one hundred there is an issue with some of the minutes of the one hundred would go arguably into the commercial that was a fact brought to the board's attention by ultratech it wasn't relied upon by their expert in criticizing secondary consideration you heard that comment about the screen size that the board took issue of that wasn't a caption call argument once again that was in ludwig's report when he was analyzing what drove commercial success she accounted for these things and the board took it upon itself to be an advocate for cash and call and say proves the commercial success it could have been a screen size this is one of those commonsense moments the size of the screen driving up dramatically sales of a caching telephone as opposed to the fact that with these inventions not fifty words a minute but two hundred words and the idea that it's the screen size verses you can call nine one one and actually have captions from the operator the idea that you have ninety eight percent accuracy instead of ninety percent accuracy that's what drives commercial success success and we do have support for that in the record because mr ludwick wasn't the only one who talked about the needs of the party here in community that was miss taht that was miss phelps they gave testimony as to what the needs of the heart of hearing community were and how these inventions satisfy it so the needs of the board totally disregarded that and a claim of reference was made by the p t o as counsel that the tab is is a bunch of experts in the art that's actually not true they're not experts in the art but in this case they decided they were they could read the minute reports better than mr ludwick they know why people buy captioned telephones screen size vs having accurate captions being able to have a job interview this is the fundamental problem with how this ford treated they sed preceeding this they thought better that is not under p p c the way the p tab is supposed to operate they're supposed to be neutral they're supposed to be fair they were