think there are two reasons that work together to give google article three standing or maintain its article three standing so the first is as the background course of conduct that in this other case which we recently decided that it's been determined that google's product doesn't infringe and that one that issue and right to so to cut to that specific issue what google does not have is and any assurance that simple there will not the cert reassert the one five four pat against google's current products against previously other products on the one involved in that case yes previously on a sort of products and probably other than other they haven't had a product that was involved in the one type or litigation yes that's right and this is a different product well in google position and to google's position it's an uncertain previously uncertain product one fifty four because it accused google of infringing one fifty four with respect to these other products it has not but that is the kind of that imminent injury that google is concerned about that provided the concrete injury that's required article three i don't understand if that if they haven't accused other products of infringing the one fifty four what's the case or the ability to bring dr tori judgment action against the one five four as it stands right now then you would have article three stand had they written to you and said that these other products are you but i think you're not addressing my question what reason do you believe we have to believe that they're going to sue you on one fifty four as to other products not involved in the earlier cakes so i guess t do you have to believe that they're going to sue you on the one fifty for president of their product or there's a potential for such a suit they haven't told us that they say that they want and we approach th its customers is that going to be good enough up i think that could be good enough yes what let's hear from mr jacobs may please the court so now that i have the right counsel let me ask the question why don't you just give him a covenant not to sue on the one fifty four if you want to move this case you're out of the concern is not that there are some i guess i mean that's the only way you can move this case right that you say to google we don't intend to sue you or your customers on the one type or path ever now is that your intent because if there's coming in asking this court to take jurisdiction over a separate ministry of proceeding with burdens on them to show more than just a hypothetical part in this concern that maybe there's some other but they have no concern about big sued for infringement that was the problem suit google on the one fifty four with respect to any products or any customers and that might make the case go away i mean there must be some way of getting around whatever happened in transcoder which i don't remember a turn to the merits which we may never have to reach if you can get an agreement give you ten minutes aside please the court the board erred in limiting the claims of central broadcast server to the reception of data from a plurality of information sources plan and the pla the specific instance that you're referring to google made it general that was calculated general assertion that yes we agree with the board's construction but when google's council is specifically questioned writes and then i think this is probably a good distrust of point when you go to google putting forth their ground of one pat ability to the board in this is that appendix that appendix one forty eight if you get out of our six lines it says yawning clues and information source ok and then when you go to the little one fifty one you're pointing to yon information source in the in the drawing on page one fifty one then i think the clearest application when you get to element avis goes from one fifty four to one fifty five google says at the top of one fifty five that next use of it the very last sentence the paragraph the top one fifty five net news and information source generates this data in the form of tens board didn't think that you were arguing about this and i don't understand that they came to their having your sources construction somehow potentially excuse your waiver i think you do have a waiver problem now that doesn't mean that we can't excuse the waiver and go ahead and decide the issue but i think you've done a very poor job of preserving this this issue in the petition and i don't think you can argue that the fact that you raised it before the district court saves it for the board not that it's a bid for the board but it was the same parties and school and simple error and the board i don't think was lee relied on the mark in for her and said that it reviewed it and said that it sounded reasonable so the board can't be under the mistake looking at the pending sixty two fifty three that's the first example google contents that you had disclosed this generating data at and the information source and then if you come over three o two the simple error you know makes its argument in the court says that we're not persuaded simple errors arguments are not persuaded in the over interpretation of central park yes or no this is a little bit confusing when you leave this because there's certainly a tension between the board's construction and dr construction and what it says here but it sa server can receive data from one or more sources claim one relates a message to transmit data from an information source and right in the middle of three o two generating data at the information source again i tell a size four in the information source did what most petitioners skittle to say said well we think the board got it along here or maybe don't understand it maybe it doesn't there's a tension but we're going to proceed over the course of the trial as if it were required to raise an issue in general is more than just one sentence i think i'm so i'm still puzzled if we decide to correct a claim construction is it can include only one why can't we re manned it to the board and say you have to consider this under the correct claim construction it may be that we won't let the board do it on their own but we certainly have the authority to tell the board to do something that would be contrary to explain why this is your answer we can do that i understand your point on waiver i think you actually have some pretty good arguments for a waiver but i'm baffled by your notion that we can't tell them to do this if we disagree i mean i don't well let's talk about the phillips interpretation is applied to the claim language here which it seems that plurality is not the right construction if you look at the claim language because it doesn't talk about let me your language of claims now i talking about what sort of broadcast server is it's talking about what happens when you have a central broadcast server you have a server that's configured to receive data from multiple information sources and the particular time you just only one information source no it doesn't why not does it that would read central out of the claim that you said a nice because it in the in the two seventy nine pattern it specifically says a central broadcast server can have one source i believe that's what google said but as modified to account for minor differences in language between the claim so the board recognized that there were you know mitered meyer differences or could be min