please the court order telling this appeal concerns two decisions of the p t regarding the same hand in those two proceedings three or four claims are the only issues left to address case the board found that affleck raised a new theory of unpadded ability in this reply and then it refused to consider part of the record that was before it that was interviewed so the st question of whether the patentability question was different from what had been theory in its reply it's obvious that siri in the reply was the same one he presented in his petition and that was that it would have been obvious to run the noise floor algorithm that was in the martin reference on the hirsch apparatus law is setting there is the skilled person would have found it obvious to modify hirsch's adapter threshold calculation to use martin's noise floor algorithm and then when it got to the example that was used to illustrate how the algorithm worked that sample was from and from  example from their expert from our expert to show how the variables within that algorithm would change as a process as a portion of that sound signal the ground as i said was run martin's out of rhythm on them so the reason that's important the way we framed our challenge is that under this court's precedent in park provision versus qualified when you're evaluating the patentability of a claim to an apparatus you look to see whether the prior art apparatus has the capability of claims six dollars to nine dollars that was the ground we had in our petition that was the ground we had in our reply and that's why it was improper for the board to find that we had raised the new patentability theory in our reply and it was also an abuse of discretion for for so so i think part of the confusion is the way that it was engaged by the patent owner in response to a attack the illustration from dr hochwald as being an unrealistic illustration of how martin might work the that illustration was just to help the order see what the variables how they change their three variables as a future minimum occurred minimum and then there's the value of the sound but it the illustration was designed to show how the values variables as they move through the dataset that challenge the tack of that as w one not being reasonable was really aimed at his his illustration it wasn't about the challenge we presented as for obviousness and that's why service in martin that before example but he's again he's not using it to show obvious to us of the system he's using it to illustrate what those variables are doing as it's processing the sound sample and as a consequence when challenged in the reply what we did in their reply was respond to the arguments and criticisms that andrea had lodged against our explanation and including of the illustration the reason that's not consequential is that what we were showing in that illustrations is that the requirements of the claims are met when you process data and one thing to know that you'll see in the picture that's in the petition that came from dr hocknull that's a graph there are two kinds of sound one kind of sound has the magnitude consistently increasing you go left on the left side of that equation and that is the illustration that's been shown in the figure in doc long to the straight and it shows clearly that in that setting the very variable for the future minimum the current minimum gets set at the lowest value no matter how many sub windows are used that's just math it just says find the lowest number within that block of samples and that's what they reply i explained why it was an inconsequential issue for the ultimate question to that kind of sound so i think in this case the board just erred in finding that we raise a new patentability theory we use the same mappings in the planes of the prior work to the claims in the petition as we did and in the reply we used the same part of the prior reference in both places there is no difference in our patentability ground and that was the error that you reviewed in that we really should  issue that we believe can justify ever versal on the six to seven percent and that's because it's a claim destruction issue and if you look at it in that six matters it doesn't matter it doesn't matter for the six they have not disputed in the under the broader construction that the claims are in power so in the six dollars to seven dollars appreciating what i'd like to do is just talk through an illustration which shows what the meaning of periodic magnitude value periodical that's th use of periodic the future minimum is the value in this system where it's the lowest magnitude of the sample of the sound that's being analyzed the the bottom the middle left side you see a line of logic going down where it's referring to the future minimum ok and you see an item seven hundred and ten dollars seventy one cents the processing those are events that are occurring not a interval those are a mess that are being driven for each data sample being evaluated so right there it's showing that that value future minimum is being set not at a regular interval but it from time to time whenever the data condition this is met then at the bottom of that figure it takes a dog leg over i guess to the left and the future minimum gets set at the five nd interval again that's what's referred to as the initiating of the values so right within this figure seven are two ways the value of the future minimum being set to occur at magnitude as claimed nine is in visioning one from time to time and the other one at a there figured figure seven is showing that the values are going to change whenever the data conditions are true is the value lower than the one that's been stored that's a continuous operation as it's played out in figure seven and the initiation is the thing that occurs at the end of that block of time for example five seconds but i think it's also fair to look at the pattern as a whole because when you're when you're engaging this question of what periodic lee means you have to evaluate how is periodical used in the pattern specification as a whole and what construction accommodates all the different ways it can be and that's where when you look at the illustration and figure seven and all the other ways it's been that these values are shown being updated it compels a finding that it's the broader meaning that can occur from time to time or at if at a regular interval now again as i said this issue if you find that it is as we've described it compels a reversal because there's no dispute about the pattern ability question under that broader construction just briefly the last issue on a flag is also related to the sixty seven  perceiving and here this is a an issue that if you don't find for us on periodically we do believe that this would all to justify a review and on the sixty seven percent in what we said in our petition was that a skilled person would have found it obvious to adapt a part of the health system this is a different reference and that aspect is called the running estimator and that would be said of the petition was a it would have been obvious to adjust that running estimate or to set the noise floor at regular intervals based on the guidance and mark we didn't say that you should change when you should use that type of estimate or reset it when it's running as the running estimate just of just how that running estimate are worked apple i'm sorry we in this response andrew came back in the in the proceedings and argued that essentially another strawman argument just said that it's apples position that we should call for changing to the pre conditions i would dictate whether you use running estimator or the stationery estimator and that was not apple's position but then when you look in the board decision on the sixty seven percent and it actually embraces that argument from  and i would have to double check that maybe i can respond to that in our program we'll give you two minutes from thank you very much us is if one value is greater than another you replace them the other example to give is your police replace them at a fixed period of time both experts agree in the context of this patent periodically means a fixed inter so there's no dispute that the construction that the board adopted was one that's supported by both apple's expert and andras expert and so it would have saved for example this is the intrinsic record says for example five seconds as the board found correctly there was a dispute whether the table was five seconds or six seconds or ten seconds or the example was a fixed period of time or from time to time there is no evidence of the record doesn't preclude him from time to time but i would respectfully i would say the example as understood by person or your skill you are would preclude it from time to time because they gave one example of an update from time to dollars those are doing a comparison so why so bad and that is the measured magnitude value or the current magnitude value of the goings on and it's determining whether the future minimum is greater than that so that's one type of uptick you're doing a comparison to see whether one value is greater than enough if you can that's either yes or no if you go down to seven hundred and twenty four that's described by the patentee as being a periodic example he points to definitions are not binding the question is what would want to work a skill card understand both apples expert and under his expert agreed that in this context signal processing that general dictionary definition about why the proper definition was admission that the prior anticipates if you reverse claim a structure that's actually not correct the the board evaluated at spatial and found a difference between the reference based on their construction and so didn't reach under his other distinctions between a reference purpose of the martin reference was to determine whether a signal was increasing quickly or not as the board found and as apple's expert admitted you can't figure out whether a signal is increasing rapidly or least as that that is the description is without having at least two samples so as the board down and his are at work to their obvious analysis it was an improper modification a combination of the two references to assume he would start with in a reference that was focused on determining whether a signal was he increasing rapidly assume that you would take only a single sample therefore you would be that's the doubly record while so you'd be unable to tell whether the signal was increasing you something else i mean we have case law do you agree it's our case law that says an arche army introduced new evidence after the british titian stage of the evidence is illegitimate reply to evidence introduced by the patent owner you a group that right example when will they be stopped to a when they say it's illustrated when that's the only example that they compare so in other words when somebody uses an example to compare element by element they better should be careful make sure they include more examples if they want to rely on a different example of different portions of reference as their elements why is it a different portion of the reference because there instead of assuming that you effectively remove that portion of the algorithm he results it's not a different column that's really the fundamental question if if there were multiple if if petitioner is correct that they clearly articulated in their petition multiple examples w one was one example but they had others it's clear the board give them the opportunity to explain and evaluate it so the border value of the entire petition the rationale given by their expert and concluded that they hadn't met the standard of showing a bad bill so the question is do they get another chance to come up with a new theory off the board did consider the portions of the reply that supported the original theory and fish what the board said they were not consider is what they even knew theory changing the way the reference was being read and changing the and keep in mind this is an obvious combination this isn't a question of anticipation and so they were proposing to modify these two references and so the proposed modification do you think it makes a difference i wasn't for i was following you until you said they'd keep in mind this is obvious ness and not anticipation why should it matter because what why it should matter is they they proposed a way to modify the references in their petition essentially what they're arguing now is they should get a reason to ask and i mean maybe i'm missing something still sure i think it's it's a matter of they look at the two references that were proposed to be combined they worked at the rationale provided and titian and they concluded that there was an additional false and the reply that's what they consider but it's clear from the record they didn't consider the entirety of the petition and that's what the rules provided that apple had to give their basis in the dish what about the fact that discussion and there's a reference to figure sevens operation nd issue i heard him mention was that the st experts agree about the meeting of reasonable period periodically and i think that's actually a disputed issue the test through that year there are relying on involves an expert our expert saying in response to a deposition question you know is what is the meaning of periodically and he says well outside the context of the pad and then he says inside the that you can't have contrary expert testimony override what the entrance evidence demonstrates the meaning of the term s the next thing i want to mention is that we said that they didn't dispute obvious this or intice patients if you find for our construction periodical whether or not the return periodical changes and under our construction there's no argument that they've advanced in this in this appeal the question of how you review the new theory of having ability was definitively addressed by this