the challenge claims the two ninety patent are invalid is obvious and it should do so because the board improperly used the subjective consideration of a person of ordinary skills ordinary creativity to supply a key limitation that indisputably was missing from the one prior art reference that was at issue and doing so without any reasoned analysis or or evidence that could be pointed to in the record to support this subjective feeling of the gap this court randi of course and in other decisions by his articulated several rules restricting the board's use of subjective criteria such as common sense or objective creativity to supply such a key missing limitation and it does so to prevent the impropriety of hindsight b party's arguments i'm just saying based on all of that we think the bore and that they the challenger the petitioner should win that is not reasoned analysis there is no citing to any evidentiary support as to why a person of ordinary skill in the art would apply power conservation techniques to implement interference reduction and those are the two key objectives of this patent not just power conservation of batteries but also the reduction of simple interference with of these wireless networks they could be in close proximity to each other and in this case i think the board ignored is maybe too hard of a word but didn't pay sufficient regard to that second objective of reduction of interference and focused almost solely in fact it did focus soley on the issue of power conservation and then said you know there is a missing limitation here that with regard to  servers it doesn't show that you use them and that servers are used in a low duty cycle or are transmit in bursts at intervals which are determined by a code sequence but simply said that you would apply the base station to the book based ations power conservation techniques for the mobile stations as taught in charge on it that does not result in a base station that transmits verse in an otherwise quiet da the transmission then and they and then they stop but the court in order to to satisfy and achieve that objective of reduction of interference you not only need bursts which which are short duration relative to the entire process of communicating but in order to reduce interference you need to have this quiet data channel you have to have no transmissions and simply conserving that every power doesn't teach you anything about creating these otherwise quiet data channels where the reduction interference can be achieved i could have burst through out the the the cycle that doesn't get me a reduction in  interference i can make sure that the mobile units turn off when they're not needed which is the low duty cycle concept and turn on only when they are needed to transmit that saves battery power but if those if those changes to on are not and the end of transmissions are not carefully regulated to be short on an otherwise quiet data channel the reduction in interference objective is completely lost and i think the let me pas and that was what the expert for d s s believed in the in the proceeding below i think apple successfully showed that that was not correct so apple during the hearing the big d s s over the head with that point and it was a dead period a has constant continuous transmissions by the base station to the modem units period b has constant continuous transmissions by the mobile stations to the base station and period c is a free for all you know as this random access transmission contention period is what they call that where there is no provision for any quiet period during that we're on it for you excuse me period see yeah period see that's helter skelter as far as i'm concerned there is no teaching of creating a quite data period within that period that could be used to accomplish the reduction in interference in a theoretical and because i don't believe it could be quite for the purposes of the two ninety claim because the last limitation that's at issue requires that the intervals be determined by code sequences and it is undisputed that it is completely at random in period c so there are no coat sequences that prescribe a period of quiet a where there is no transmissions going on so so throughout the entire data channel of the terrorism there is no ice there single data channel and it is never otherwise quiet it is virtually constantly noisy and its vast aspect of the limitation in the two ninety claims and the goal of the two ninety patent that i believe the board not a it's not like u k s are we talking about a pedal that works that's mechanical and fairly you know been around for a long time in this technology you're dealing oscillators and synchronization and and making sure that everybody is talking to each other person of ordinary skill in the art in this case and i think that that is maybe a telltale sign of its hindsight analysis or conclusory concluded conclusion or you know unsubstantiated conclusion that this was obvious as it is if this ordinary creativity of a person of ordinary skill in the art would lead to applying the power conservation techniques to the base station why don't you tell us who this ordinary person a school in the art is apple said it was somebody with an undergraduate electrical engineering degree plus one to two years of work in mobile and when you have this entire system is structured that this is a board of people who are experts who can understand the technology without really that which is which is protected by the general principle of powering down and thereby saving energy and so on i think does not require a degree of skill to understand th i don't dispute that it's about powering down a powering up but it's not so simple when you're dealing with a base station all these mobile units that have to be synchronized and in fact the tarzan required all the slots to be assigned so that the mobile to wake up so there's that this is actually a true it's just it's not just turning a light on or off type of a thing the mobile stations have to be in total sync with the base station and therefore the assignment of slots which tell the mobil station i'm not going to talk to you for another twenty milliseconds or whatever the timeframe may be but if that exact moment you need to be up and on so you can get my message that it's not simple and i say apple doesn't think it's simple enough for anyone less than a know how to code to power up a mobile unit or collar it down but what took skills in the arend the format if you will where you just it wasn't just a simple pivoting of a pedal this is far beyond that i don't think you can find a case where that the court this court allowed the board to use these subjective criteria to fill in a gap involving technology of this level of complexity and if it was so simple to tell us how you would modify magna tarzan in order to apply this power saving techniques to the base stations why didn't ample tell us how this would be done there is nothing in the record to tell us how irrelevant two key points one is that the board did not articulate a reason basis for filling in this gap but the more fundamental thing is that even if you apply the power saving techniques of mobile units to the base station that does not get apple where it needed to go which is to show that that fill the gap of transmitting in bursts on an otherwise quiet data channel so you can if you did apply that technique in the mobile stations to the base station that only deals with a power conservation goal it does not satisfy the claim limitations requiring that the trant that the units transmit in are a first on an otherwise quiet data channel thank you please the court the board here applied the well known obviousness rationale set forth in k s r where if a technique has been used to prove one device and a person of ordinary skill in the art recognize that the technique would improve similar devices in the same way use of that technique is obvious unless its application is beyond his or her skill can i get a concession from you know first so we know we can get on with their own merits and this year you say in your brief that there is a difference between common sense and ordinary creativity so therefore we should even consider randy because that's a common sense case and we're talking about ordinary creativity i just don't see any light of day between those principles and i'm not sure where you're coming up with that so i yes i concede that and i think you know directly following that in our grief we say it doesn't really matter ok it's a distinction without a different take i think so so i think the issue is whether this is a missing element case or not that brings into around you or whether it's not and here the board applied again that well known rationale of applying a technique declaration that comes in in reply in response to the a t l see argument where in your initial record do you have x heard testimony that says that so that so the board made three specific findings your three key findings with respect to what not not to ridge on teaches that support that and these three factual findings are are not going to so you can see there's no  proffered on this point about one of what one of ordinary skill in the art would have would have learned but i think that the time that's pretty much yes or no you either had an expert declaration at your so he says turning on the transmitters for only the time necessary to transmit information as i'm sorry i think it doesn't matter because we're not here to discuss or ascertain whether the petition was done privately granted i know i don't i don't i don't doubt that the department there but the problem is is that the expert testimony that we're allowed to consider has to be testimony that related to this question because you had not the case and to satisfy your your i'm afraid that case right right right and you're saying that one of skill in the art and would have understood this up with respect to the expert testimony that came with the petition i think the petition was focused on what the mobile stations and not to  that's frankly the focus of the two nine zero patent is well it's all focused on what the peripheral stations do now once trial was engaged and d s s focused on that point the board interpreted not to regime based on all of the evidence that came through in the course of the trial and made three key factual findings that are not disputed that support the board's obvious the second is that the transmitter in not a ridge on space station is the same transmitter that's used in its mobile station that is not to not to read on space and mobile stations use the same r f components well i think that it uses the same hardware right the same or of components the same hardware that's right so there's there's no difference there and that not to rashaun employs in the end the third key undisputed finding is that not on this well known k s r rationale that if a technique is used to prove one device namely not has your arms mobile transmitter and a person of ordinary scone the art would recognise that it could prove a similar device  itself focuses on the the peripheral devices in this in the same way that to reside us so for example because the prior art also could conceivably be applied to that same problem so that the high level point i was trying to make was that the the two nine zero pad like not to resi focuses on the peripheral units it doesn't really explain how the biggest you know coffee units and the board found that there was a missing limitation are you trying to now argue there was no missing limitation will has never conceded that there is a missing limitation i think the board said that so first of all there's no dispute that this is a system claim and every single physical element in this claim is present in not to in not to rush every single one application of a known technique that improves one device to a similar device and that's precisely where the board can rely on the person of ordinary skill in the this is not a missing limitation case it's almost as if you know apple is being punished because we have everything in the same reference but if you had all of the physical components in not to rachana and then you had in a separate reference the teaching that you could operate a transmitter and low duty cycle are after her first to save power well then you know we wouldn't be having this discussion i don't see where the board found there was a missing limitation and in based units being energized and low duty cycle our first as that term is properly construed and when you go back to the board's claim construction this is at the bottom of appendix thirteen the board takes its claim construction and effectively space station can operate in low duty cycle are of purpose and and that's what the board says at the top of thirty two i wanted to i want to turn quickly to this this otherwise quiet doubt a channel argument that council raised that's yet again a new town hall argument that councils making that it did not make below and it has completely confused the data channel with the communication cycle in not to reside in the communication cycle consists of what happens over the course of the three frames that no describes that's the that's the communication cycle that that a channel and i can point you exactly where the two nine zero pattern describes this the data channel exists between a  units are not to reside on between the base station and the mobile units so what not to rejoin describes is in the channel that you have between the base station and a mobile unit we send in our purse and then that channel is quiet again and then you get to we're not to draw on space station communicates with the second device and it sends an off burst to that device i'm describing for a mad right now and then that channel is is otherwise quiet and i don't want to get down you know into the weeds of this argument but they've vive making this new argument here they've they've completely mis would be configured as it is configured in the embodiment that's described not to resign and if you look over the course of of that communication cycle that the three frames that are described  in figures five and six or four five six and seven over frame a the transmitter is transmitting it opens up a channel a number of board's opinion at the bottom of claim thirteen the board effectively reads its client construction directly on to that communication cycle and not to resign so it's configured the way that  not just iran describes its operating so for most of that communication cycle or not to ridge on if we look at figure six it's not it not to resigns transmitters not transmitting now over the course of the trial support out of position in the board relied on that to find that the claims that the claims are obvious so during all of most of that communication so the so first they tried a shell scene completely left it and the made this i don't words argument oh well if it's not transmitting information it's going to fill that in with idle words they don't revive that on appeal either because it failed they tried to convince the board through the course of the trial that over that communication cycle  figure six not channel but over that communication cycle in figure six that not two was on strands matter would have been continuously operated and they they failed on the facts the board didn't buy any of it and rightly so so over the course of that channel the transmitter is not operating most of the time and that meets the board's construction of being energized in low duty cycle again this is not a missing element case this case falls squarely into the chaos our russian our taking a known technique a technique that's known to improve a device and a person of ordinary skill me are recognizing that you could take that same technique and apply it to similar devices now you have both of them in not to regime on but that doesn't detract from the analysis and that takes this case out of a randy and even if it were missing element and part of a ready the board's russia now is supported by substantial evidence and fully fleshed out in its decision visit court regarding missing limitation apple at its brief on page twenty nine says first the board did not base its final determination of obviousness on any expressed disclosure regarding the tire johnson server transmit or so i believe the record is clear that there were two things missing in the tarzan one a teaching that the base station would be turned off or turned on depending upon when it was needed to receive or transmit data but most importantly what was not taught in the tower is down and had to be filled in but wasn't is that in the tarzan did not teach an otherwise quiet day to channel during which these transmissions if you want to call them bursts that's fine makes it clear that it involves one shared channel so in order to determine whether it's quiet you have to look at both sir server or base station transmissions and mobile unit transmissions they have to be looked at together and when you look at the towers  though it does it the creation of of a of a quite period where there is no communications going out is critical to the objective of reducing interference that's why the birds have to be at intervals and the board correctly interpreted that language to require that the burst be shortened duration and that the data channel has to be otherwise quite otherwise you don't have this silent period where there is no inner ference danger if the if the if the base station and the mobile units are constantly talking to each other or talking there's no quiet period there's no way to reduce interference and so that's why the two ninety pattern requires room now moved away from that argument or your friend on the other sites and run as far away from me as you can that it's still informative and still fair game for the board to consider all it showed was that each deal see was proceedings it is incumbent upon the petitioner to state its case for invalidity in its petition and the supporting evidence and it is entirely improper to allow the petitioner to then bootstrap reply brief arguments or i'm right about the law on that that that that's not competent evidence to support their private fish case but there is no evidence that h d l c discloses births on an otherwise quiet data channel that the only issue about that was d argued that h d l c was inconsistent with the teaching of the patent claim limitations there was never any showing that h p l c taught any of those limitations and in fact in its brief here i don't have the patient in front of me but apple tarzan which clearly did not teach transmitting and verse on an otherwise quiet data channel and applying the power conservation techniques that are used in mobile stations and the tires on has nothing to do with filling that gap of a transmission and verse on an otherwise quite they did channel and so there's just no evidence to support the board's conclusion and for that reason we think reversal is the appropriate remedy here thank you thank you thank you