good morning we have four cases before the court this morning three of which are being argued and one of which the parties have waived argument for all four cases involve the same two parties and a surgical i'm going to be starting by discussing the juror donna wallace combination and the air of the board and then i'll move onto prisco of course also address any questions the panel may have on anything so i'm the sheer dollar wallace combination the error of the board is that it ruled on a straw man combination that was not the combination proposed by the petitioner read in a unclaimed so i think that's the real difference between what constitutes a clarification and what constitutes a change of theory the board concluded that it was a change of theory and that's obviously what your friend on the other side argues tell us exactly where in the petition you made that argument for your honor and st of all let me just clarify that i don't believe the board said we made a change in the theory our reading of the board decision is that we just weren't clear enough in fact we believe that that's what exactly where clarification is allowed but where the argument is is that we st laid out sixty five we said that new handheld stapler would be combined with wallace in the same manner as the helm stapler was combined of all and so we basically said we already showed you why shelton staplers combined with and we also provide a figure which shows the articulation control shaft and so when we say go back to ground one to see how the combination with wallace is made there we say rip off the handle and put out a tool mounting portion so you can mount it on to the robot and the robot will have these disks that get connected into the tool mounting portion to provide control and the result is a robotic instrument now with the board says well you didn't use those words you didn't provide the detail you provided for other elements and the answer there your honor is we didn't have to provide the same level of detail because we provided detail for claim elements the articulation control is not a limitation of the claim so we provided details of how the articulation joint was connected but what we didn't do was go into excruciating detail of combined with the room but i don't believe it was fair for the court to meet for the board to say that that that we are talking about a totally different combination yes we definitely were you didn't say the words move the articulation control we are going to assume you must have meant to leave it alone we certainly aboard did not say nor did we say the articulation control would remain manual when you convert to a robot no one would propose that that doesn't make any sense at all and suggests there's a benefit to that and so what the board did was say well unfortunate you didn't say to move the going to assume it remains on the robot that is not a position we have or stated so we couldn't have changed our theory we simply didn't explain in words that the articulation control moves we thought it was self evident from the petition that when you combine the handheld instrument with the robot you move the controls over to the robot as we described for the non articulate here that what the board did was immediately jump to the at once and visit test of blue clips and kennametal before even determining whether there was a disclosure and this tainted the entire analysis because essentially what the board did was say i don't i believe knowing or that a risk is incompatible with a push pull driver out and because it's incompatible why do you have the right to make your argument on the merits if you're not a party going to final judgment got two possibly three answers to that your honor the point we say is that we didn't stop it does not apply because we could not have raised or read we did not raise any other petitions or reasonably could have raised these grounds in the other two petitions that were simultaneously file the reason why we couldn't reasonably have raised it is because in fact the claim twenty four grounds that we provide takes more than fourteen those grounds there would be no estoppel we just take them elsewhere it took more than fourteen thousand dollars words just for a claim twenty four dollars if you add up the words and there's something we point out in our reply brief if you add up the words that we spend on claim twenty be the consequence well i think one issue honor i think is that the board here instituted all the ground so for instance the board has said look we're not going to hear of this many cases and we're going to  institute donna wallace but we're not going to institute on prisco we're just too much if they had done that there would be no stopping right it would be a ground that the board refused to institute and therefore it would not have been could not have been this this problem could have been avoided by asking the board to consolidate the i p r as such that the final decision on all three came out at the same time there are about two answers that number one is of course if a politician doesn't solve that issue but the fact is we thought we had done that we consolidated these three proceedings for the final event in those proceedings which was the hearing and in fact in the consolidation or in the hearing order which granted was specifically to the hearings they did state we are going to be consolidating the proceedings so we thought we had succeeded in bringing them all together for the final but they were not heard the same day it was a consolidated hearing we were arguing now all three cases we argued all three cases in one session it was not just on the same day but we went out of the looked for the argument that intuitive said they were making and said it was not in the petition and the board's assessment of what was in or not in the petition is in our view only reveal bill for an abuse of discretion and on this was not in the petition and did not address the reply or that decision by the board not to address the improper reply argument is only viewable for an abuse of discretion as you pointed out i read very simply put they do not include any modification to jared on his articulation control to the board made a finding that they looked at the petition they looked these pages and said we don't see the argument you're making we see a different argument and the board starro here because they went through the petition and they said well there were specific components that you were arguing would be moved in the robotic toolbox and they went through all of those specific components that  intuitive had said would be moved into the tool base and none of those included the articulation control were intuitive in its position wanted to argue that something would be moved in the tool base the they added you're done as articulation to that and that with the articulation mechanism that has the pivot and the control on the shaft so that sentence that mr kast pointed you to so i think the board was absolutely correct in saying this doesn't talk about moving the articulation control into wallace's robotic system one additional point make about the argument for the mark for two reasons first that the con explained to the board that a pussy that would have been deterred from making the combination because it would result in a device that had an articulation control located on the instrument the board agreed and found yes that's a yes or no question your honor i don't believe they have standing to appeal in the context of the one thousand two hundred and forty eight decision they're not a part of they they they you don't believe they have the right to appeal even the on the forty one whichever one it is that's correct your honor and do it it was not permitted to file a notice of appeal they were not a party to the case what court has jurisdiction to review the estoppel decision because it's in essence determining its jurisdiction over the merits of the final written decision so i thought i don't know the director's not arguing this court cannot review the estoppel decision now that jurisdiction to review its own jurisdiction and in order to decide whether it has jurisdiction under three hundred and nineteen dollars over the final the merits of the final written decision with respect to patentability it has to determine if in to it it is a party that can appeal and has a right to appeal under the three thousand nine hundred dollars statue in an order to do that the jurisdictional fact is whether the estoppel decision is correct so this court in order in eight of its own jurisdiction has to review  decision requires this court to determine whether intuitive actually was correctly terminated as a party in order to determine whether it has stuck appeal right under three  party so that they would no longer be a party to the final written decision but if the court thought the board's decision was incorrect that means intuitive and intuitive shouldn't have been stopped then they are a party still a party to the final written decision and they could you agree with mr katz that that they actually that the board actually said it was consolidating the cases that is not the way i read it and it's not the way the board read its consolidation for the hearing the point was to consult it was on petitioners motion to consolidate the hearing for the convenience of the party in the board and it also included another i p r that was that's not part of th consolidated for the purpose of the hearing but there was no formal request for consolidation of the i p r the i p r is were never consolidated and there was no request to just even coordinate the schedules so that since the institution decisions the schedules have been off kilter so that there that the force of the four dollars to forty eight dollars i p r was running behind the other i p r as and there was no request to even coordinate those schedule so that they would if have a final written decision on the same day the request was simply to coordinate the oral hearing ok i have one more question if the i guess the real issue is are is this a question of raising form over substance or is this the the point is that the statute requires this result because they didn't seem to formally consolidate requires it if they reasonably could have raised these grounds the statute doesn't say anything specific for simultaneous versus serial file petitions if it's when the final issue and final written decisions issue but congress  gave intuitive and petitioners other ways to deal with concurrent i p r as the director can consolidate them and the board can coordinate schedules and this is the only the nd time this issue has come before the court for concurrent i p r so virtually all other petitioners are coordinating either their petitions or their trials to result in final written decisions on the same day and not trigger a stop all ok thank you harm in consolidating all three proceedings however if patent owner has good cause for opposing consolidation of these three identified proceedings patent owners should contact the board so while that was a issue for the hearing believe there is not for nothing in either argument suggesting that we could have actually complied with the word limit and so we think we fall within the real outside the reasonably could have raised issues that we could not have reasonably right but even assuming that of course we were a party proceeding now before this court where we're challenging what the board did and so we don't see the proceeding before the board ended with a final decision and then we appealed that and we don't view this as the same