the united states court of appeals for the federal circuit is now open and in session god save the united states and th selection and the board's conclusion that the provisional discloses only automated remediation is therefore by trend micro his own admission incorrect and the losing let me  decided that the six hundred and forty four patent couldn't claim priority to the provisional soley on the basis that the provisional didn't disclose any kind of user option and so it didn't reach the further question of whether the provisional provide support for a firewall based or i p s based occurrence mitigation pipe and so we submit that that question should be resolved by the board on remand not by this court in the  based occurrence mitigation type to be an occurrence mitigation action that is quote performed by an i p s or firewall and so it doesn't have to be the type of occurrence construction below and the board adopted it and trend micro presumably did so because that fits with what trend micro's obviousness arguments now on appeal trend micro appears to be suggesting that the i p s based or the firewall based user option has to be the type of occurrence mitigation action that is typically performed by a firewall or the st occurrence mitigation action of the firewall based occurrence mitigation type including at least one of setting a configuration option setting a policy or an installation of the patch and so that the panic claim shows that while a patch isn't for example a patch isn't necessarily a farmall based or an i p s based occurrence mitigation action but it can be if it's performed by a firewall of course so at page twenty four of the blue briefs the after arabic numeral two the blue restates the program's intelligent p s which is an intrusion prevention system allows the system administrator to use the i p s consul to remotely patch targeted vulnerabilities in one click and so this is an example  p s based occurrence mitigation action the system is using the i p s its functionality to install a patch after the system has the automatically drop functionality that can be independently provided by fire wall or an i p s and so the point is as long as the occurence mitigation functionality is provided by the firewall or the i p s as opposed to some other aspect of the system that's enough to make it a firewall or an i p s based occurrence mitigation pipe under the board construction allows the user to install an update or patch after a connection is automatically dropped and again under the clean construction the trend micro asked for and the board adopted that's all to go back for just one moment to the the procedural point which is that the board didn't actually reach this question about whether any user options described in the provisional application are of an i p s based or a firewall based type because the board concluded that the provisional didn't disclose any type of user selected occurrence medication the board found that the provisional discloses the only automated occurrence mitigation apparently on the basis that the board thought apparently that the two types of occurrence medication were mutually exclusive its own analysis of the group to reference the goup to reference discloses a response processor that is in the st instance configured by a system administrator and that and the response process are then automatically response to specific attacks the board found at appendix fifty that this is a disclosure of the user option well the provisional discloses i them current personal the th determination i'm not challenge to claim priority what's the difference between the two no substantive difference was intended you're on the li based user option and that would require a reversal of the board's priority determination in its entirety however the the request in the blue brief conclusion on that narrow issue vacate the decision and then leave everything else for the board on remand including whether the provisional discloses an i p s based or firewall based user option or the courts could go ahead because there's a prior a swearing back issue that the board didn't reach and so that's something that the board would need to deal with on a man no matter how how this case was all clarified that's because this is where i started my i was confused then and i'm not any less compiz not i thought you were you took the position in your replies recently that the bowler needs to be mandated because the board didn't reach the with is wasn't that the position you took in the reply a good idea that you know that that is correct the board did not reach that question and so our point is that because this is an appeal for an agency it would not be proper for the court to affirm on that issue that the board didn't reach however because it has been briefed the court could decide that issue in our favor which would mean that the board's priority determination would need to be reversed in its entirety and so the remand would be to consider the swearing back issue that the board didn't consider because of its it's reasoning on the provisional disclosing only the automatically performed action why would we not have to vacate and me and for the boys to consider that issue without that misconception disclosed to the user selectable options for any type of mitigation actions are not disclosed and yet at that point their course cannot be fire wall or i can ask user selectable options because there is no type automated and the fact that within the prior art within the knowledge one skill there could be knowledge that certain things could be done with user involvement doesn't address whether it is part of the claimed invention so at best even if the pizza could be faulted for finding that every function the provisional was even automatic and those findings may test it even if they were incorrect the air with the harmless because of comprise the language of the claim code for providing the user with one or more options to selectively you let different occurrence mitigation actions of diverse medication types and that's clear from the order to extent there is any import because it doesn't relate to the claimed invention it doesn't really the fact that there are these items which may be user selectable sorry excuse me user driven maybe  and that's exactly the point of the piece have that that's very different then what is required i can answer you know after late to the group are you know kids are and whether something could be obvious to one of ordinary skill analysts and again in the same way that we kind of have a misrepresentation of the findings of the piece with respect to its ultimate term nation on written description nielsen's declaration and that's very again different i think with forgotten in both of these arguments that your honour's asking about with respect to is very burden of production which they have let go of both at the pizza and in the blue brief and then an effort to re concoct in their apply a brief the precise concise description the area requires of being in possession of the invention as opposed to what you have it and so even in a world where they want to view titles to the priority date of the provisional this board looking at the evidence to try to square behind the art which is still quotes to connote the initial language of l n one g as they called it code for providing the user with one or more options to selectively utilize different occurrence mitigation actions of diverse occurrence mitigation types and nowhere within the provisional is there a disclosure that the user is allowed to pick different mitigation actions of diverse mitigation types with respect to either the patch only automated user options trend micro admitted in their briefs and my friend has admitted again in his argument that the provisional does in fact disclose at least passion and policy selection and much of the question what's confusing me the question is the claim we're talking about talks about specific types of mitigation option that need to be made available to the user board said there's no use or option at all however if this court were to to reach that question the st instance my argument still applies because the passion that i see my time  would be able to resolve it in favor of the provisional disclosing the required types of user options but i respectfully submit that it would be improper for the court to affirm on that issue because because that is an issue