forward to seeing how he turns out in his career and i'm going to be sad to miss him and david and and my chambers grant the motions and i think it's time for swearing in what i believed in an unprecedented amount of new material both a brand new theory and extensive new evidence in the reply and and then compound in that area by not giving a primer any chance to submit  the nd error was considering the term powered off a device to cover any device that has a component not operating in it the board give you exactly the ready relief you asked for i looked at your motion and it says motion to str leaper motion to file a motion to strike or in the alternative of a server apply and they granted you leave to follow a motion to strike i mean maybe it was improperly were poorly worded and you should have said either you strike this or we get a server reply but that's not what you asked for and they gave you what you asked for i believe your honor might be referring to the e mail that was sent to request the motion which was the procedure of that time and the email minutely was of was and it had in one sense on this point and the board construed it as your honor suggested that we were asking for one motion i think the fair reading of the email is that we are asking for relief from the alternative as you not describe in other words  strike it and if please if you know if you're not going to strike it then give us a chance for a sirup lie to the extent there was any doubt we made that clear in the hearing and it was about a thirty minute hearing minutes a thirty page transcript on that request and then we also made an offer of proof of a specific evidence at the oral hearing so i think we made it very clear that we were looking for more than simply a motion to strike so i'm not on the   it's of your major argument here and i'm putting aside powered off for a moment as i understand it the board said two things one as to each of the items about which you complain we don't actually rely on it for our conclusions it's supported but we don't rely on it and nd that each of the items that we pay any attention to it all is properly responsive to the patent owner's response so start with the st what what item if any that you object to  do you think that the board actually did rely on because if the board is right about this then it would say that it suggests that regardless of whether there was error was harmless or sure i believe the board effectively relied on all of it but that probably the two most significant pieces of evidence that were pretty clearly relied on is the new i so either net theory was offered from around one the board actually made a finding this is an i can wait for your right gotta go that's really essential finding and it's it illustrates going to some respects many of the things we're talking about the gratuitous is that i would say one of the most important parts of hunter that the board the line because it shows what they call phantom power our claims require d c current via path along we call d c s pairs in other words even a data path and they pointed to figure two as having phantom was certainly not brief because there was never presented it is what you were saying response of to put it this way did the board say even aside from iso ether net we would make the same yes why is it not good enough because the ten base t bus is simply wires it doesn't have anything to do with the type of device it doesn't necessarily imply the type of device that's on it it certainly doesn't necessarily imply the claimed even at terminal the equipment their petition they point a figure to and said it's hasn't turned base t boss therefore it must be anything at terminal equipment we said that's not true and they came back with this ice of even an argument where they said hey figure two was i so either net and they argued that ice or internet can't have a ten base t mode and therefore to meet the claims that's a brand new theory the board actually made a finding which was and i'm the reason point of finding your honour's you said well the board said they didn't need it and what i'm saying is that's almost definitional incorrect because they made a central finding on what one hundred teaches they made a finding that hundreds figure to which is the key figure on this phantom power idea peaches and ice an internet system which means a fundamental question in with respect to hunter is what is i so internet that is an issue that was not presented in the petition all they did was that they've got the patience for teapots argument which is effective for the reasons i described they make no such argument with respect to round two they don't sit they don't set up and say hey just those the information submit the petition is sufficient to support this decision i think that's a i'm sure they'll disagree but the the the other significant factor is there is so much there are so many exhibits offered with respect to ground to i think it's sixteen exhibits i don't i don't think it's reasonable to sort of carve it up and say well we don't need it i mean this is where we make our statutory i mean when you submit that level of evidence in your reply that is directed to the case in chief i don't think it's proper for the board just to to sort of up it's there is a sort of weight of the evidence this i believe is an unprecedented amount of of of evidence but there's another there are two additional reasons why again i don't believe it's it's correct to say that the petition alone is sufficient a phone system that has it has what they call fam power and and phone data on the lines i tripoli is of course the standard for anything that terminal device and there the leap is that you  walks phantom power and create anything that device that would accept it you'd have to create and that's the leap and book block lists the i know plain old telephones so they don't telephone system in black to do very clear that's not the invention of block your conclusion paragraph reaction well they offer fisher as evidence of the very least in other words they say well fisher has phantom power on ether net therefore it's obvious it is it is not just evidence of what a person is here it is it is evidence offered for the the very leap in question it also fails in of itself because fisher itself doesn't have the claim requirements of current across the internet contacts it when fisher can you just remind me what's the relation between ground one and ground two if the board was committed no reversible error ground one does ground to matter and are all the same claims covered there were done in your honor  issue and my understanding is that the boards it would be keep question or at least he argument on the other side is the board gave you what you asked for it so why is that so you could say they reconsider the construction or they applied it incorrectly i don't think i think that's a distinction without a difference at the end of the day there's there's no substantial evidence to support a finding that these combinations teach powered off under the agreed construction why the construction says powered off is without operating power the one hundred to and which is ground one it again the member the claims require two different d c currents across these pairs and then now the powered off you've got to do it while powered off when doesn't generate these two bubbles of current unless and until it applies operating power and that's right in the findings the board talks about one hundred or one hundred dollars or one combination distinctions between essentially a normal operating star a normal operating current start up and a current surge which is even more than operating so you don't even get to the two levels unless and until you apply operating power so that's honorable and with respect to blacken i tripoli there is no evidence whatsoever of the amount of power being applied in this device and this is their burden they've got to show that this phone device is is doesn't have an operative power the block phone is essentially a telephone waiting to ring it's just like the phones we all have on our desk now it's sitting there it's operating as soon as it rings you pick it up in the answer they found that block that the block phone was powered off because a specific component namely the speaker phone was not operating but that's not the tests that it can't be th so the reason i said it it is the claim construction versus you know the question of the new construction vs reinterpreting their construction versus misapplying the construction that's a distinction without a difference because at the end of the day with respect to black they found that it's powered off merely because a component of the speakerphone is not operating it was their burden to prove just as burned to prove that block didn't have operating power there's there's new ice so easter ether in a theory that was advanced centrally in reply or that the board found and that was the basis of that the basis of their due process hard the fact is there any particular standard it applies to any local area network including but not limited to iso ether net ether net a t m in token ring so there's essentially two arguments  what the patent owner doesn't response is they say that the figure two embodiment does not actually teach ethernet because there are some iso isa net components in well on this subject it's a depends exactly what we're talking about generally speaking it's into use of discretion standard with regard to the board and decisions that they make interpreting their regulations as to what is to what is being taught which is that the specification the patents hunter is not limited to isolate them because to any local area using any standard so that would certainly incorporate i saw it so they don't even challenge and your question because all the claims are redundant there's only one ground on which the board need be affirmed and all the claims in this in this case are going to be cancelled so there is and why is that a sensible reading of what they request and i don't mean just text you let's assume that they actually as i think it's true they literally did ask for permission to fi one motion or in the alternative and or another but how could that reasonably have been british to be something other than a sloppy way of saying either get rid of the evidence or let us respond well i may  sloppy way of saying it but it it's it's there sloppy wet with the board found out was that this is in the fire and decision was that they never followed up and said to the board look we we would like we would really like e me if i'm misheard or if this is not right i think he said that at the oral argument what's called a hearing there even though it's just lawyers talking made this point that they wanted an opportunity to respond if the evidence was going to stay in the record you know clarifying what was probably pretty evident anyway from from what they originally i thought i respectfully disagree with that that  their part because if the if the evidence if our evidence the evidence that we introduced was was truly just response it was a reply evidence it may not have had any bearing on the ultimate determination which is exactly what happened so what the board found for each of these pieces of evidence was that it have actually no bearing on the actual outcome because the argument that we made in the petition were sufficient were strong enough to support  so that there must've been actual reliance on the iso internet so that it can't be harmless if it may have and then one would get to the question whether it was responsive but at least it wouldn't be harm which is a piece of a it's a piece of terminal equipment and we also have wiring as referred to as a ten base t bus so the question is would one of skill in the art looking at this knowing that there is that infrastructure is supposed to be ten base t which is ether net and there is a piece of terminal equipment in here which is also ether net with a look at the system and think this is an ether net system or this teachers and that system and the board found that they did we  so they can go one of two ways they can say well i saw anything that is simply not compatible with these or not or they could say well it is compatible but it won't allow power to pass these are two bad arguments that they could make but they're incompatible arguments and they have to decide which bad argument are going to make that argument number one or that argument number two you might not have thought of it well they think should know the chemically both arguments because they can argue both i so he said it doesn't operate in ten base t and it does operate in based t but then it won't pass power they're inconsistent arguments like i believe that it's hard to make both arguments so they chose which one do they want to use by the way they could have used the argument that it doesn't pass power they're aware that i so  address the point that whether one calls what was going on in the final written decision claim construction or application where where did there are relevant prior art references i guess is hunter in the st ground  before it allows operating power to get to the terminally quit there's this site d c to d c converter and when the power starts up at that it goes through essentially a check and it determines if the power is if the system is operating correct and if and only if it determines that the system is operate correctly it may go through several iterations to do this does it then send power to the terminal equipment operator of the terminal equipment so the terminal equipment itself is powered off unless and until that starter circuit is complete and the i think the board has a very good job in the final round stations of explaining this and that start of sequence it's undisputed that the system itself remember one hundred system for providing how powering term up meant our other equipment it's not doing that it's going through the startup shack and suggest this component it's only this component of the equipment it's not the equipment itself that is receiving power and this is where i think primary is playing word games and during that process before the terminal equipment comes on while the checkpoints go or is going on or all the other elements of the claimed well the put meant is off and by the way crime are itself agreed at the hearing the question is not whether a component such as the d c converter the boot on circuit has power it's not whether a component has power they argue at the hearing the oral hearing itself that the question is whether the equipment as a whole has power and is not disputed that during the startup sequence the equipment as a whole is not receiving power i can go to the block reference like i tripoli so the block is a lot more than just a regular telephone it's a system where you have a central unit and a remote terminal unit like a speaker phone and you have a sentry an for controls the communications in block with the board found is when the phone is off when it's on the hook when the speaker phone is off with receiving it essentially receiving no eternal selves or see no power the still control signals that are being sent between the phone and the central unit that are done by having slight changes in the amount of power that's going back and forth that the right status information about the phone so power is being re are buttons and there were lights when you would hit what line was on and what line was off so the central station this is a way that that someone who's not in that room can see which lines are being use for example so you can send a little poll saying three minutes for rebuttal thank you are just i think it's two points one is my colleague doesn't understand this with respect powered off in one very significant respect i believe he said that there's no dispute that in the hunter bill and round one lady said there's no dispute that that the the device as a whole is not receiving power or something to that effect that is definitely disputed the high in the one hundred blue and system you have a terminal device and that the board found that the d c s d c can dirtier is part of that device that entire device is receiving this operating power and then the an on the front of there doing the sort of flipping that creates a different man his current but the but our positions at the entire device is in fact receiving greater than operating power so that is our position then it may be that components downstream of the d c d c converter have not yet started to operate but the device as a whole is receiving operating power and that's confirmed by the findings of the board where they talked about surges and current and normal versus grade of that's point i want to point number two i mean that again that would get to the question where there are some component essentially that the television example that was that was talked about whether that could still reasonably be considered in the power off  yes and the specification as an example where in the television is consistent with this where a device is a whole is powered off even though a tiny component is receiving a tiny amount of power which cannot operate the whole device perhaps for example in our spec because it's isolated from the rest of the vice and so the television that felt television component argument is is is that it's just like the device in the spec where if you have one component that is operating but perhaps isolated from the rest of the system and it's getting power perhaps from a different path than that than the device received which is exactly ours back works then it's that the device a whole isn't getting operating power and can't get operating power hundred you asked a question about the standard of review for what figure to teaches and i want to clarify that we are not disputing the board's finding that figure to teach is basically either rather that is a fundamental reason why the board got it wrong on this whole question of a new theory in reply the question of what i saw either net is was never raised over titian and if horner figure to has a youth in its system than a fundamental burden of the petitioners is to prove that i saw anything that system meets the calling that something that they didn't make any effort to do it's not a question of whether figure