well your honour's this case is a consolidated appeal of four in two parties review proceedings involving legal views were for seven seventy one five two and seven three seven patents i believe that there are three central issues that require discussion today wears arguments that you have or hominy reference teaches the movement limitation and that issue pertains to the seven seventy patent in particular the third and final issue your honour's is whether the board failed to conduct an adequate and substantive analysis of the factors because both patents contribute to success you are as i think the answer to that question is that you have to show again that the claims even though there might be two patents that the claims themselves are coextensive with whatever is alleged to be commercially successful there are that well your get your honour's i believe what we're saying there is that there's no evidence of the comparison of the sales to how much was actually their sales how much was actually done in the market place itself and the case coming and all of your pages are secondary consideration and never go to that argument at all it's my dream of what you say in response is simply your going after their witness their expert and count to say well he didn't prove that the reports that were issued even practice the twister and whatever goes on for three pages that they don't even practice the claims you have one phrase that says and not some other feature which has no sight to the record now you have a lot of sites in your briefs that have different portions of that and different arguments i see none of that in the record that was before the board so even if you're right in terms of the legal niceties of what we've said about coextensive and body i don't see how here whether it was for presumption of nexus or for nexus at all you may need a sufficient case before the board to result in their concluding anything other than exclude or in response to that i would argue that we was saying that your whole argument was these reports aren't even using the patented method that was at the board rejected that argument on the excerpts and you didn't have an expert and it seems to me well let me ask you  stanton evidence for the board to reject your argument that who cares about these reports of the product that was sold and they have nothing to do with the twister that if the boys rejected that then we don't even really get to the an explanation without providing much of an explanation of what is being showed ok and then as we go further here your honor as we say here although the patent owner claims that its reports were generated using the twister and render house software there is no evidence that the reports were generated using the specific claimed say that there's no records cites to any of this now you say in the first sentence you wrote it's a c generally twenty twelve to twenty fifteen but when you've got this other paragraph you're talking about here there's were created using the claim features and not some other feature but i mean i guess i'm having the same concern that judge post is that you have a pretty significantly shifted your argument on appeal into something that i'm having trouble seeing that you raised a bull in these two pages yes your honor i understand the point i believe that we're not confined just to these two briefly you're saying but it exists magically somewhere else in the record but you're not prepared to show me where tell me where you're honest i think that is that is the crux of the case in chief and before the pizza that was where that argument was raised in reply person we are not disputing but what we are submitting to th court though is that there was legal error in the application of this and it is within the power of this court to look at the legal record to look at the evidence that's a really tough record in the case underlying it and establish whether there was a proper legal conclusion of that our precedent is necessary one thousand percent crystal clear we use word cult answer frequently and we've use that word in body the board kind of did the same thing but at the end its conclusions were it is co ok there's no presumption let's look at the nexus and there are valuating the evidence and we're reviewing that evidence based on substantial evidence i see what you're putting forward there's no and that they were made using the twister and render house software programs he says absolutely nothing with respect to the merits of the patent claims of any of these patents were they actually made using these methods steps of these patent claims neither expert does that and would like me to say that that isn't testimony that these reports are created using twister and we don't dispute created using twister and render how strong is what we dispute is created using the claims of the merits of the patent claims and that is what the case law require twister of render house packages themselves and you compare that software package the allegedly commercially successful product to what the claims are that are reciting each of these patents the claims cover very limited gooey functions for generating a rough estimate report the seven seventy pat into evidence which would be evidence as opposed to attorney argument some sort of rebuttal that their experts claim that all this was embodied your attorney argument falls on deaf ears well iran as we think that evidence your honor we think that the burden did not properly shift to us at that point as a matter of law for us to a duce evidence of our own by way of our own expert it was argument that there was never a case of next to begin with and certainly there was no presumption of nexus because that never appeared until the final written opinion  in the case but again judge moore just to point you to where there is evidence we do submit that it is proper for us to look at the testimony of dr bridges to look at their lowest estimate reports and in particular to consider the cross examination that we had conduct that's a mechanism for the petitioner to reduce further evidence by taking a cross examination of the of an expert's direct testimony that's evidence that we deduced in fact we spent a lot of time going over with mr pajamas a doctor what actually had he looked at you chief judge promised and may please the court john o'quinn on behalf of eagles you board up till the pan ability of the claims of issue based on the facts before it on appeal is the panel is heard zach where tries to manufacture a legal issues out of those factual finding because it regrets not putting on any rebuttal evidence to the objective indicia of non obviousness evidence that included zach where's own praise of the technology tip and its fourteen seventy one as well as its parents offered to buy it for six hundred fifty million dollars the evidence i think that's a line there are many here i think that's absolutely right chief judge pros you could call it forfeiture as opposed to a waiver this is simply not an argument that they presented to the board they didn't argue to the board that you can't have nexus when there are multiple patterns they didn't argue to the board that you can't have nexus when there are on claim features and indeed such an argument would be inconsistent with a long line of this court's cases like like polaris in terms of of the board's finding of nexus and it's not even alternately clear to me that the board had to rely on the presumption if you look at appendix thirty one for example they find that the patent owner has shown strong evidence of ne was definitely focused on the technological advances of claims that's absolutely right you've just crossed if you look for example appendix fourteen seventy one their own c e o referred to our technology as quote she technology they recited to their investors that our technology was used by twenty four out of twenty five insurance companies thirty thousand building contractors that's all appendix fourteen seventy nine on an investor it's a top insurance company i think that they mean like net and insurance companies with a nationwide presence or a substantial insurance companies there obviously thousands of insurance companies across the country just so that was my only marginal question well if the court has no further questions  i'm happy to see back the balance of my time thank you chief judge for us deposition testimony of dr which supported that argument that there was no nexus there was a candid admission by him that the report that he pointed to was not it was not the ones that were actually commercially successful and certainly not the body of reports that dr johnson says were commercially successful so i think that this court can look to that and can make the conclusion that there was evidence of deuce at least on our side as i mentioned earlier we also believe that it is proper for all of the parties in these proceedings to look at the evidence was reasonably commensurate yes is it your view that reasonably commensurate renie that if it has any bells or whistles that are articulated claims that it would not be reasonably commensurate  open ended introduction of additional elements yes and so i'm trying to understand what your view of coextensive or reasonably commensurate scope and our very first case on this is reasonably commensurate and later cases paraphrased to coextensive sure so i'm just trying to understand where you draw the line because i think that is most of your argument on the feel that there are other claims or features in the product and therefore the presumption would not appropriately have attached some trying to understand and i procedure within this larger software package called to surrender house and the evidence firmly establishes your honor that this package is a massive system that has multiple different ways of generating reports that in draft a pack claim that covers the entire system and i think honor because i think there now we don't we're not talking about evidence of record here so i'm not making any representations but if we look at for example the user manuals of the packages themselves the software packages they disclose multiple different ways of generating group estimate reports and we try to put that