strict legal standard this very very asserts that an unspecified number of people who are name work quote steadily consistently or continuously on various the reduction practice of one four three but he only identifies four days within the critical period and he doesn't explain when the work was done or what w began which was september first of one thousand nine hundred five when they signed the contract setting up the work schedule that defined the four stages of what had to be done with each and yes the invoices for each of those four stages were certain days several of those documents relate to work outside the critical dates of some of the work relates to the the the four stages that i'm talking about all relate to the critical period you want to then begin in september rough electronic assembly of the story more but it doesn't tell us what that means it doesn't tell us what constitutes rough electronic assembly or how it relates to one four th the framework that they were going to built mr bear testified that using that specification look media began creating the functioning begets prototype he attached the in the source code which is fifty plus pages long and describe and focus on those gaps of inactivity the first act in particular was erroneous because the program specification itself the document that was attached contains several dates in october showing that it was revised and produced during that before the expansion content begins figure for a in the specification of the one four three illustrates the concept that but that is at issue here it shows a thought bubble which is the cue that is selected and then as a transition as it expands bigger to take up the whole screen the expansion conscious starts to play while the main content is still playing behind understand where it where in that language does it require the playing a video content affected in videos and that's column six lines twenty six to thirty two discussing the creation of video six segments and calling nine hundred thirty seven sixty seven transition facts in statement show so that she doesn't discuss the two segments playing at the same time and that is what mr bear's invention of all simultaneous playing of the main content of the expansion content  specification and what she was claiming and in her testimony about what she witnessed to brady asleep at the time but the big get prototypes to get her the meetings with with her are documented in those invoices that we talked about earlier in the in the i think you are made of these the core the board's decision should be affirmed in some tired and i'd like to first start with diligence the board correctly found that monkey media's evidence was tantamount to a mere assertion of diligence and what monkey media effectively ask here is for this court to really weigh the evidence but not only is that improper under the substantial evidence standard of review there's affectively no evidence for this court to reweigh if we look at the evidence as a whole they have nothing more than a few conclusory assertions of working steadily or working continuously in their inventor declaration and they have some big documentation to which they don't explain what activities were current when those activities for the most part most is that they were direct they were working on a prototype for some sort of optical disk to be read by a player and there's no evidence at all here that they were actually working for the reduction to practice of a transmission system of content that's going to be played on a player i think that the i'd like to address perfect surgical because there was that rule twenty eight jailer that was one that was followed on friday and this case is nothing like perfect surgical there was not a legal error in this case like there wasn't perfect surgical for them or appeared to apply a stringent standard work required of the inventor to count for all the periods during the invented critical period with actual inventive activity in other words it did not allow there to be periods of inactivity they could have an excuse such as imperfect surgical the inventor's eighty hour work week with respect to surgeries for six surgeries a week and it also did not allow the inventor to count the period of time in which the attorney the patent attorney was actually working on the application to reduce it to practice and so you had a fundamental legal error in that case there was no such error in this case the board was very clear that recognized that periods of inactivity could be consistent with the diligence standard so long as they were explained but what perfect surgical does not say it does not allow an inventor to simply say that they were working steadily that they were working consistently and then have that be enough by simply then submitting some big documentation to sort of show that there might have been some activity that was going on during the critical period the second point is th perfect surgical really was a rule of reason case there was a very rich inventor testimony in that case it was an i p r and so what you had in that case was an inventor declaration that was more specific to specific activities that were occurring as t specific dates there was the attorney death aeration that was submitted there was deposition testimony from the inventor as well and so it was a fundamentally different case where you had all this evidence from the inventor himself that needed to be c rated and in that situation this court held that you cannot nitpick the evidence when you're doing the cooperation you apply rule reason to ask to see whether or not the specific facts are alleged by the inventor or corroborated that's not what happened here there's really nothing that can be corroborated when you look at bears declaration because it is new so no not specific as to the activities that were occurring during the critical period and i'd just like to touch upon the the fixed fee contract itself yes there was a fixed fee contract which had some vague language to design to develop to create this prototype and it had four stages but there's no indication as to how much time each of took what activities or undertaken to create all these activities and so we don't know if this was something these were four stages that could have taken everybody else in the whole world one month to do or if it's something that should take four months to do there's no evidence in which a fact finder can make that determination and when we're operating under substantial evidence standard of you here the issue isn't whether or not there is some evidence in which the board could conclude that there's diligence it has to be that it would be unreasonable for the board on this meager record to conclude that there was no diligence now i know that my friend mentioned that there was a gap period that the board mentioned in which there might have been activity that actually occurred i think it's important to actually look at what the board said about that gap period because i think that's that's a very important and that's at eight not addicts nine of the board's decision it says it discusses a gap period of september thirtieth to october twenty third but it would it's looking at there is the hourly work and it's saying there were no hourly there was no hourly work even build in that period and then it went on to say that we're going to look at the contractor agreement which has those four stages and there's nothing specific the contract agreement does not specify any specific dates that any activity was actually performed and what any alleged activity might have been and so when  that gas period it's saying there was no hours built and we can't tell from the contractor agreement what was going on during that period of time we don't know when that program documentation was created we don't know how long it took we don't know all the activities that might have been required to create it so there's simply nothing that a fact finder could latch on there to find reasonable diligence in this case and i think that you know that's particularly true when you look at the fact that you eighty four that they really didn't have any transmission system in mind because in his death richard he just said that they had a long term goal of transmission and there's no evidence here and any of those this diligence evidence that they were directing this towards a transmission system now i'd like to just briefly turn to davenport and then the q container i think is absolutely correct that the claim language and the claim nine just says you know playing a portion of the main content simultaneously with playing a portion of the expansion content and that's what davenport discloses because it talks about visual transitions a propos visual progressions and it talks about checkerboard and venetian blinds in which one image and another image are going to be playing in the same time but more importantly we had an expert that testified and that's at eight fourteen thirty two to thirty three in which he said that a person of ordinary skill in the are reading this prior or would understand it to disclose these types of you know progressions and so when we have davenport's testimony on the other side this is simply just about all the experts as to what the prior art discloses under the substantial evidence standard her view of the board's decision is well supported by the evidence here and then lastly i'd like to turn to the q container issue again i don't believe the court needs to reach this issue of the rejection was based upon  they've waived any argument with respect to q container into sight of since they didn't raise it in their opening brief so there's nothing really to address here at all on that claim construction issue if the court wanted to address that under b r ike the construction is entirely reasonable you're talking about a classic case of a patent owner that's trying to narrow that claim down to use small set of examples specifically a figure in the specification like this cup for example that contains different hues the there was a contract which set out a specific schedule begin september first in by the end of the year and he explained how the his company met that schedule by producing the prototype there's no evidence for suggestion that you ever re delayed or picked up some other project or abandon this project he followed through to completion to produce the prototype that reduced the claimed invention to practice and testimony that he provides about conception extensive testing o conception including transmission in his will what thirty one and so little decoration as well and reduction of practice explains how each of the claims were met both of the conception stage and the reduction of practice stage and the evidence that he provided the sufficient under the perfect surgical standard to support a finding that he was reasonably diligent in the way the board applied that legal standard reasonable chance here was incorrect and that needs to be remained at the board for a determination the first instance of whether it would say whether the patent require one segment at a time to play they don't have any overlapping segments playing at the same time as required by the transition claims issue mr bear's patent their expert described the create the type of covert laughing transitions that mr baer invented at a later time and in one thousand nine hundred and there's no other reference cited that would support an obvious determination in conjunction with that important in that regard and finally the think that the all that should go back to the board to determine in the first instance the board's construction remains incorrect legally incorrect because it was too broad in addition to the figure that describes the container there is a figure