to expected to last that's the construction of an actuarial class the parties experts agreed that an expected loss is the probability of the frequency of an expected claim under insurance contract due to a covered loss rassmann multiplied by the expected claims severity under that insurance cost so it has to do with frequency of claims not just accident a function of two variables it's related to variable number one y and that doesn't that mean that even though if even though the other things like how many claims and the size of the claim there also are variables that ultimately determines the insurance companies misc and therefore the prices but those risks and prices are still loss that's not the kind of that probably isn't part of it probably isn't in fact that example related to it but then you didn't lose your mother to say that that the expected loss is ultimately a product of a certain thing that is the the items in the products in some in the result is closely related to each item in what your multiple it is really if you look at it that way it's related to each item separately that we think the groupings not just based on risk but based on loss and that's what the board said and losses more than accident risk therefore parrott by itself is is insufficient to suggest that there's  go to these institutions decision that a third meeting seen the board had originally said that this type of actuarial class relates to loss risk these claims one three three six nine to fifteen eighteen relied on here and relied on the fact that this accident risk would be a sufficient behavioral grouping to be related to expected loss rather a circular statement what she says is paragraph forty three and i'm looking have to a forty five fifty seven you would know that in order to create such behavioral groups relevant to insurance rating well here it doesn't say that there's any group relevant to surance rating that an expert can say that but that's not inherited as a piece of prior art and then she goes further to say which a procedure would interpret as actuarial classes but she doesn't say actuarial classes as interpreted by the board the board said that actuarial classes have to be groupings related to the expected loss and that's not what's discussed here and then she said would necessarily involve analyzing the data collected inherent to determine any associated expected loss this is conclus speculation drawn with hindsight by looking at here it appears there's nothing inherently it's just these groupings would be used for insurance for expected loss purposes in order to create insurance premiums w a one forty nine simply has a paragraph that says this information could be of use to feel foreigners and insurance by the same token save drivers will be able to demonstrate their competence to insurance companies but it doesn't say that there are going to be actuarial classes of insurance based on expected loss that are created a result that's based on an interpretation of this is o'neill in her w that time not at a later date in the reply brief and not and at a later date having the board rely upon this testimony to lead to a new claim construction the claim construction the board at this time did not have a risk in it had expected loss hair and talks about some type of behavioral groups that may be related to risk and the board for hid a new ground for rejection by changing the claims instruction and then relying on what was said by neil in respect of heritage as relating to respectively the first interpretation by the board was her notice argument procedural argument depends on your claim construction i give and you have a separate ones having to do with the socket which doesn't is that right or not well this one's to saka different of this doesn't depend on the claim construction we recognizes the data collected using the here a device is used to define actual actuarial classes here she just says behavior loops that are insufficient under the board's construction and she says based on measured accident risks again insufficient arising from observed driving and storage in patterns so o'neill declarations and those two paragraphs are insufficient to fill in the gaps from here and based on the pro substantial evidence to suggest that that's anything other than something like a debit card or something like an e z pass card some type of account from which insurance payments could be drawn but not that it based on nothing at the basic cost of insurance that is based on the things we talked about ratings factors historical data actual driving conditions and the like so without that there is no there is no base cost of insurance costata doesn't discuss that this is the single bank if you will this prepayment amount is going to vary among insurers it's going to vary among people that are using it it simply says there's a pre then became on the procedural issue and the new ground with the new ground that lead to the that were raising is the ground with respect to here in that area because of the claim construction change was presented as a new ground for rejection by the board and that was improper the second with the fuzzy logic being added that relates in the insurance industry generally and could be used to to be applied in the insurance industry in connection with the type of of claim that set forth here that's information that was brought in at a later date through the o'neill declaration and also through four or five different references dealing with the point not whether fuzzy logic was disclosed and close aka but whether fuzzy logic this and maybe this was the earlier case or maybe it's just that i took it that you had going to two types of objections notice based objections regarding casaca and fuzzy logic one is the one i think that you just articulated that it was improper to allow that kind of evidence and rely on that kind of evidence about what has been skilled artisan would understand about fuzzy logic but i thought you had a separate point and the board said no we haven't noticed this before but there's a piece of code stock that says use insurance tables now that one feels to be intuitively like a point lose ground which nobody had put you on notice of before but my problem with that which i heard to earlier was that that's just an alternative ground and it doesn't affect the outcome because the board if the board was right in saying we find a skilled artisan who would have known enough about the logic and how to do it that makes it the the separate point which the board also or to kill a bit of never mind all this fuzzy logic business it turns out on page three or something of the soka they say you can use insurance that a proper zero your honor they do appear to be separate grounds although they never really developed the common insurance table they said yeah this is a new thing we're going to throw it out you can use a common insurance table we never had a chance to respond to that and it really i do want to talk about i have three minutes or so let's talk about the other appeal which is very similar except it deals with shards of primary reference instead of the soka so you don't have a fuzzy logic we have similar claims four five and sixteen to seventeen that relied on fouchard and this is where the board really erred in laying out a reason to combine this is where the order laid out some supposedly gives us a reason to combine and it says that the florida guide tells you you have to create and insure profile but that's not what the claim  almost exactly the same and that said a five zero eight four through five one seven three they're not entitled to a redo or substitution or mulligan the question here because i'm confused i thought it's generally a good things that litigants coming to this court are making the same arguments name alone the question presented is whether there is substantial evidence for the board's findings and that is not lied progressive is arguing they're arguing for this court to replace the board's determination there was no claim construction here so this isn't  construction they asked for the issue is whether or not the federal circuit will find that there is substantial evidence a reasonable basis for the board's fact findings which leads to the conclusion of obviousness and it is those facts findings that were made by the board which progress of the contest in the same way they did before that's my point zero so let's turn to what's the substantial evidence and why this court should be satisfied that the board did a good job so the first thing that i would say your honor on this issue of harriet let me give you a little bit of a background about that reference what harry was monitor a group of drivers behavior in united kingdom it determined their celebration patterns and their speed and based on to group them into behavioral groups based on their acceleration and their speed and they concluded that they could predict accident risk the margin measure the progress of makes here is essentially there's a disconnect between predicting accident risk and insurance loss and there are several places where the board disagrees with the terms of number one the cancel and so i'm sorry so what was the page then in the board decision in that one is in seven zero four one and in their surrounding discussions in seventy thirty and in particular references to pater send it seven zero three two three three seven now it's seven one three five what tater sent says is via the fact that the policyholders know that they're trying pattern is being controlled recorded this will that i'm dropping a few words this will reduce driving speed number of accidents and consequently also the size of disbursements from the insurance companies so the link between accidents and payments by the insurance company explicitly in the prior art reference it seven  the florida guide says that insurers charge on a nondiscriminatory basis but they one of the bases they can charge on the frequency of accidents and that's it a seven one six column six forty one so the patent itself says you can use acceleration data to create a knack sort of like as it says you can use accident statistics to get there so it's not opinion it paragraphs twenty one in twenty two and twenty four and that is a one zero six zero seven through zero eight made the statement flat out that you take a look at the actuarial behavior to put an end to groups that what you then do is determine the accidents and with the accident information you can make predictions of loss an countenanced by the actuarial statement of principles and that's exactly the job of an actuary and that is in fact with the board picked up in their decision in a seven zero four one so you have as a basis substantial evidence that here it discloses an actuarial class that relates to insurance loss you have paid or sign the florida guide the ninety seven o in itself both the old way of doing at accident statistics in the first columns the background of the patent and patterns of acceleration which was what was used in here and using their new invention and column six and then you have o'neill's expert opinion and all of that information was the basis for the board's decision now with the board s ultimately and with respect to been charged was that given the high level of knowledge of the post sida and the well known principles and inventions of insurance and the expert testimony of liberties expert it was obvious that a person ordinary skilled in the art would do what the law required and use nondiscriminatory actuarial classes based on an insurance profile with policy limits and because if you read the stock as a whole which you should do you should read the entire reference it says you don't have to use fuzzy logic you can use standard insurance look up tables that's in a fifty one in the specific passage about insurance tables in cars and said independent of fuzzy logic that supplies the required element here i would say now what happened was progressive came back and they said wait a minute because of the fuzzy logic it won't work and we said two things in response one of them was wait a minute it was known it progressing to the depositions of the experts that support of those replies they were entitled to submit observations and they did not make any motion to do with sir replied they had opportunities to make arguments on these point is a have a legal right to submit evidence as perhaps the a p a in five fifty six would yes they do but they did they did they have the speak a little slowly did they have i took it as a given that they did not have a right to submit to their own new expert declarations for example about the factual question of what a relevant skilled artisan would understand from the newly cited page of kasatka face dumped as a matter of right your honor you're correct they have the opportunity to cross examine they had an opportunity our witnesses they had an opportunity to make observations about it they also had the opportunity to approach the board and a s for that opportunity to file expert declarations on points and they didn't do  they were on a table using cross examination they were unable through the observation process to make a dent in the testimony and in addition they made no effort to say we need to have have a reason for it out of fairness to get a sir replied or present some evidence they regularly allow it and they have over the several thousand cases that are ongoing before the aggressive didn't do now i can't predict what would have happened if they had but they certainly did cross examine they did file observations they even moved to exclude and the board considered it decides based on the entirety of the record whether or not those claims are that in this particular instance after trial that instituted and everybody knew that the stock was on the table they filed a progressive file the pattern a response that argued multiple things about  preceding until the reply the liberty file invested in your question your honor is does the statute and the trial statute require that when the board step in the final read decision and explain why the claims are or not compatible have been articulated by the board before and the answer is no no i don't think that was invented i think it has to i think put under the a p a five fifty four and probably five hundred fifty six is it incorporates what i have trouble thinking the reason why that those new grounds doctrine from the examination model is just not compatible here the thrust in that context is what is the examiner say before you got to the board for the board  the thrust to borrow that language from the new ground law doesn't come until the three twenty eight decision that's where the board explains pursuant to exasperate mandated record i guess what that what i want to do it i just want of that want to be clear it had made an assertion about that evidence your honor the trend what things what three twenty eight says that when you talk about the a p a i don't think three twenty eight no it does not but there is a relationship between that to the a p a issues and three twenty eight when the a p a requires that you have notice of the facts and law before you get that hearing in here clearly the trial record has lashed out this question of whether or not  requires you to use fuzzy logic it's on the basis of kusaka it's in the reply my colleague mentioned some of the things that progressive tried to do to eliminate that issue before it got to the oral hearing the one actually that didn't talk about was are granted in these trials i mean under forty two five thirty seven c f r forty two five the board has a wide latitude so crass how these proceedings move forward to accommodate the various interests i mean inside some example but can we be satisfied and guided by the logic that the board appreciates and understands the a p a requirements group to toronto is front line so that if they get a motion to available to a pat down or to pursuing these proceedings some expressively enumerated in the regulations some not but available to you to ask for one that nobody's mentioned is the fact that pursuant to forty two three hundred the the board can extend