we will hear argument next in case number eighteen one eight three six wireless protocol innovations against t c t mobile history be re of the lack of substantial evidence to support its findings and in terms of errors of law with respect to claim construction with respect to the nine nine one patent the portico or w p i's argument and evidence that i be n t starting point you've got two related claim limitations that you think having us safe does not meet what are they and why doesn't being upset me so there is a transitioning in fact the border is is  the other way compared to what we argue but we think that it's better illustrated in the order that we argue that in the border of the claims there is a requirement of transmitting the request from the client device to the base station for a van with grant while the client device remains in what's called the grand pending absent state so there is a requirement that you be in a particular state when you make this request and then there is a further requirement that you transition that the client transitions to what is then called the grant pending state only after not only a request has been made but a band with grant has been received at the client device and what's going on with abbey naso is it simply has a different configuration in teaching as of the states and the transitions that it makes and if we i think the easiest way to understand this is to look at figure nine and to also look at the relevant teachings of the knots of which i direct you to do so in figure nine  what we see is that and in fact the board relied on the request satisfied arrow which was erroneous and i'd like to detail that in terms of the transition from inactive to active with a non contention would last i mean last if itself teaches appendix  thirteen twelve quote when the mac user receives data to be transmitted the mac user transitions into the active state upon receiving the contention for the opportunity to designed and it's in the inactive state and it also receives the opportunity to make a band with grant requests in that moment it moves over to the active state and that's what the arrow at the bottom shows and there's a further teaching and obvious if that's that explains that there are three possibilities the base station gives the client devices an opportunity to make a band with request one is that no request is made another is that a request is made and the grant this successfully given the first is called idle the second is called success but there's a third opportunity which is that sort of third possibility which is that multiple client devices simultaneously make that request and they run into a collision situation and in that collision situation the collision has to be resolved and so at the top of thirteen thirteen it teaches on the other hand if multiple mac users respond if the result of the contention is collision then the primary station one of the two tends to aid in resolving the pollution by providing additional requests transmission opportunities and this is really important because it tells us that even though the transition has maybe been made into active state the band with grant has not necessarily yet been received if it's been received we wouldn't have the pollution problem or a need for additional requests for opportunities this is a key distinction with the claims of the nine one one in the patents teaching  just looking at figure nine as i understand what the board was doing with figure it was was interpret ing it as having these three states and then all these arrows labeled and basically saying those labels represent conditions and once once those conditions are met or accomplished then you transition from one state to another and so for example at the very beginning of the whole process you're in the in your client is in the inactive state but then once it makes a contention request then the client moves transitions from the inactive state to the contention stage and then once that request is accepted then the client moves from the contention state to the active state that's how i understand figure nine and that's how i understand the board understanding figure night and then likewise when you look at the bottom of the triangle and figure nine when a client is and was is in active state after it makes a non contention request then it transitions from the inactive state to active state that's one reading of figure nine and even accepting that reading your honor the board's decision would still still fail because that doesn't say the request has to be granted that's absolutely correct or honor the claim that gets a choice wouldn't it be the way this system the state machine and the knights of works you know you you make the request the request is granted and then you get to activate and then you get to start transmitting data in the active state why wouldn't it work that way yes and this is why the teaching at the bottom of thirteen twelve and thirteen thirteen in the appendix is so relevant to this question in the ny times that and its claims the concept of the state machine order of operations is that you don't move from the granting absent state until you've received the band with grant and that ensures that when you have received the band with grant you make the transition to the grant pending state you already have a grant rights so there's no possibility of a collision happening where multiple client devices are vying for the same transmission grant because the system just made sure to give you the grant before it allows you to move over into the grant pending state however not be nasr if where we see a figure nine that all it takes is a not intention request to move into active i've been asked if the bottom of the twelve in the top the thirteen thirteen teaches that it could be a consequence of that to the process of managing a client device that does not have a band with grant moving into a stage work construction made contention free transmissions in the nine one one patent you enter the state of contention for transmissions after you already have a band with gram and obnoxious if you don't get there yet you make the transition to the active state but you may run into a collision and if you run into a collision then there is that the further process where the collision has to be resolved by the base station and only then once it's resolved do you enter into the contention free state so even though you are in the act of state you don't yet get the contention for the opportunity so it's simply a matter of a difference of architecture o  that counterpart to what your patent claims can you address that right so that that's not actually the harmless error argument that they ever made i think but the version that you're describing is a different never made that argument they don't even make that argument here on appeal i know this is unfair but what would be wrong with that argument what would be wrong with that argument will first of all there are lots of procedural things wrong without a right that right we're standing here on appeal that's why i said it wasn't fair but in addition i think it's not it's still not consistent with the claim limitations because then you would not be sending the request while going to grant an absent state right so i think you would have to i would have to see a specific theory your honor of be exactly what they're pointing to on how it would map out before i could say you know what exactly would be wrong with it frankly it's not one that they've ever put forth so it's hard for me on the fly to tell you what claim limitation would not meet but i but i assume and i think let me try and it's you know we know that at the bottom of the triangle going from inactive to active we first have to make a request for the families and we also know that request is going to have to be granted before you start transmitting data so you have the requests you have to grant and then you have transmission of data right now it's your argument that even if the request has to happen before the enough of trances transitions that active the grant happens during a or at a minimum the reference is silent as to where the grant happens is it before or after you transition steps but nevertheless these are the same kinds of operational steps that are going on in your claim request for fan with grants of van with and then finally transmission of data so the underlying operational steps are identical in the not so and in your claimed invention it's just a matter of this metaphysical transition between two states whatever that means and it would even if be nice if it's silent as to where the grant occurs in the inactive or the active state it would be obvious painfully obvious to have the grant happened first before abi nasr formally transitions to the active state because there's really no functional difference no operational difference to avi nasi of where the grant of the band fit band with request occurs explain where the grant occurs we know that there must necessarily be a grant of the band with requests before data starts getting transmitted but we don't know exact because in happiness if it's unclear where exactly when that happens well i think it is clear because i think that's what the bottom thirteen twelve to thirteen thirteen is talking about but but let's let's put that aside for a moment because i think it's a little hard to prove that issue in my remaining time all leave it to the board's consideration from one state to another state are somehow not patentable i'll say that argument was never raised before appeal by the apple e also say that if you look at i mean also if send every reference in this proceeding every other  talks about state machines and states and so we know that to those of skill only our state machines and transitions between states are absolutely relevant and they define the way that these systems are architected so to say here for purposes of patent law that somehow they're trivial and irrelevant flies in the face of how people who ordinary still design these systems and conceivably systems can i switch before you sit down i will restore your rebuttal time but maybe not all of it but some of the send you have to win on forty nine to say fifty nine being generous i think exactly what it says about whether sand transmits some information in the transition state and really so that's a kind in the packet standby state it could could transmit something or can why might it not operate in a way that it doesn't and therefore come within the method claims which means if it runs a single time performing the steps without transmitting might it not fall within the method so your honor i'll try to address as briefly as i can the short answer is it is undisputed  by the apple e that the factual predicate to send not meeting the claim limitation is there in seven so they don't dispute that point and the board in to speak at that point it's all about the claim construction and so if the book if this  court finds that the claimed structure was incorrect which it is because it's taught against by the specification expressly then there is no remaining dispute as to the factual issue of whether sand meets the proper claim construction we put that forth  peterson think you may have please the court judgement and i do think you identified what is the critical question which is the significance of that arrow between the inactive state and the active state and we just because i think within fifty cent of the way quickly i just want to make do we no longer have to worry about sen we were just reverse that aspect there are two different aspects i think of the construction micron as opposed percent so i think you could affirm or at the very least you need to remind to the board on that there are two different aspects of this one is whether you can have access to band with when your and what send calls it's packet standby state the other is whether you can transmit upstream data when you are in sends packets standby state of sin does teach that it has access to band with well yes or no it's the problem here is that this claim construction argument was never thoroughly developed by below if you look at these arguments to the board if you look at its opening brief you will not see any arguments about the significance of the name between a grant pending state and a grant pending absence state so we do think you would need to actually remand to the board if you're going to say this is the right claim construction to determine whether there is actually evidence under that claim construction send doesn't require actually eight through line sixty three beginning with the base station receives the packets and reallocates the original band with to the mobile station when the first one of the packets so again that would be the data transmission is in teachers here you could alternatively transfer a control packet and use that control packet to request more batteries again this wasn't fully developed for the poor largely because of how i made these arguments i think if you disagree with the board argued this as a claim construction they simply argued about the transition from the grant pending absence state that sends packet prints first state into packets standby state into the packet transfer state so we didn't have reason to develop these arguments before the  t with the name grant pending absent i think the problem my friends argument there is that he's reading the word pending out of it what he wants to say is that grant pending absence state means that you're not allowed to have any band with when you're in that state and i think if you look at the claims of the nine you'll see that that's not quite what it means so you'll find the nine one one packet it's appendix page one twenty three  you're in the right state but when you look at line eight to nine and then line fourteen as well you transfer into the grant depending absence state when you have no pending bandwidth request so the grant page one twenty one and then it also talks about no transmission of data during the grand grand the grand and in the absence stage that's right and i think that is the strongest argument and i also think if we in the board said there's nothing in the claim that precludes the transmission of data in the grant and in the absence stage the boat said that right yes so let's assume that the court disagrees with that if the court disagrees with that i do think you need and to ask about since disclosure of the back control packets do you have some defense of that board statement i think it's the right statement that this is simply disclosure of a preferred embodiment and nothing in the claims nothing in the claims precludes this so when you look at this every time it mentions don't send data in this state it also simultaneously mentions unicast poll now when you look at the claims everyone agrees my friend agrees that the first type of bandwidth request that i and its beige one twenty one so looking at lines eleven to fifteen the invention can be embodied in a method for controlling communications using the state machine described above and then skipping to fourteen fifteen and in various other embodiments and you see expert you can find this kongs appendix page twenty four thirteen and he offers testimony about how the state diagrams should be read usually brought state by ground especially a formal one the arrows are labeled with the thing that causes the transition there's an arrow there from the ground pending absence state to the grant pending state that arrow is labeled with grant the same grant that my friend contends has to occur in the grant pending absence state turning to page thirty a request and a grant of bandwidth has occurred before you transition from being os of an active to active state and i'll be honest that didn't really make sense to me why that request satisfied era going back the other way necessarily conveys to me that a grant of the bandwidth request is occurring in the arrow that's merely labeled request think that's i think what that implies the request satisfied is that there has been a band with there has been a request there has been a grant there has been transmission of all the data that was requested to be transmitted but it doesn't tell me anything about the timing of the band with grant visa of the transitioning from between an inactive state in an active state that's right and i do wish to so then it doesn't make any sense to me why the board leaned on this label requests satisfied as as answering the question of when does the grant of the band with request occur because the board was answering w p s up w p i's argument that the transition occurs upon the opportunity to make a request that he has consistently argued that all you look at is that one sentence in appendix page thirteen twelve transition when there is an opportunity so if the if i were right about that you can be in the apt of state when the board could have pointed to many more things on the record supporting its findings and the question here is whether the board identified all the evidence supporting its findings and what wasn't clear to me that you pointed to anything else i did other than the requests satisfied my full well that is the our experts testimony the honor after receiving a contention for the opportunity the mac user will request band with receive a grant and thereby transition from an active active right so  what he's saying that's what it means to him as one of skill in the art on appendix page twenty two fifty one to fifty two this is his deposition and looking at lines twenty two twenty four the unicast pole is received by the c p when the system is in the inactive state the request is then made and when the non contention request is made after the handshaking that occurs three transitions into the active state upon receiving a contention for the opportunity to transmit a request and the question is simply does that mean as my friend suggests you immediately transition into the active state and you make the request and receive band within the active believe you see that on twenty two fifty two how do we know that that's what it equates to i think the experts testimony on twenty two fifty two it's page one fifty three lines three to thirteen as i understand what a being received teaches after you receive the contention for the opportunity to make the request there are a number of things that happen you are request the band with receive the grant transmit the information then you transition from the inactive state to the active state where you're now waiting for the actual grant for data and you send the data up so you transition from inactive to activity as a result of receiving the contention for the opportunity and making that request so what do you think i've been asked of was trying to tell you and he told us at age thirteen twelve that the mac user transitions into the active state upon receiving a contention free opportunity transmitter request i think that is that sounds like as soon as you get the opportunity to make a request you're already now in active state land then you can make the request for the transmission of data and then you get the request granted then you can finally transmit data and all three sets occur in the active state while i think one of skill in the art understands it's implied that one of skill in the art of the stands when you look at that in combination with figure nine that you are receiving that opportunity and what you do when you receive that opportunity before you transition is to make the request and receive the non contingent question i'm a moderate so not contention requests can be denied now the contention requests are actually what my friend was talking about when he was reading from the bottom of thirteen twelve over thirty thirty so not contention request can fail they can collide with each other being received teachers they might not work so with non contention requests there's no guarantee that you get the man with nonconventional quests you might ask for it and your request might not go through the answer might be no but with contention of not can start with essential quests with nonconventional requests you don't actually need to show request accepted that's because i'm not contention request is always accepted where did you say this in your petition or your petition or reply i didn't see any thank you this is certainly what was argued by our expert and when he was explaining his understanding of the operation of  he never suggested that there was a way that a non contention request could be when you look at the record references that i showed you what he said is all three of these things happen in sequence every time there's another contention opportunity or an opportunity to make a c suggests that you do not have band with when you are in the active state when you look at this discussion of the contention requests this is lines ten to eleven and it's page thirteen twelve it explains that upon making a successful reservation in the non contention stayed the mac user transitions into the type of state so we know at least when you are going through contention you only go into the active state after you have already reserved and with and i'll also point out the testimony of mr long he but it's a question of what it means to be in the active state are you in the active state when you have bandwidth or are you in the at inactive are you in the active state when you're making a bandwidth request so we don't leave going through contention you have bandwidth when you're in the active state we ask their expert what his understanding was of the active state you see this on and it's page twenty four thirty five what is your understanding of the active state he answered it is the state in which data is transmitted he didn't say the active state is the state in which  non contention request for band with the sent he didn't say the active state is the state in which non contentious request from and with this received he said the active state is the state in which data is  and so i just want to make sure there's no doubt that those two things are one in the same they're not different teachings or alternative teachings at the bottom of thirteen eleven that explains a reservation in mac based protocol it can be represented at a high level by state diagram user as shown in figure nine the mac user starts in the inactive state and the main to there so long as it has no data to transmit or it is waiting for an opportunity to transmit a request a judge chan rightly pointed out from there the language that comes next which is at the heart of this conversation states that the transition is made up on the availability of the opportunity now there's been a lot of discussion about whether claim limitation right the claim doesn't simply require requests to be made so it doesn't matter if it's the opportunity that triggers the transition or the request itself it's about one has the band with grant given it and did to you i think your friend on the other side said for the non contention requests i made one contention request is never denied so to make the request is automatically perhaps not instantaneously get the grant you disagree with that i disagree with with the relevance of that in terms of what it tells us about the timing of the transitions i read i think you understand that you just changed the question do you disagree with the proposition that in granted that in the answer to that is at the bottom of thirteen twelve on the top of thirteen thirteen where it explains that there are three possibilities and my friend on the other side said that these possibilities that are taught here only way to the contention pathway that's not correct person there is no such evidence in the record and in fact the reading of it demonstrates that it applies to any situation where there is an opportunity to make a request and  and this passage shows that either there can be no every last when there is an opportunity or the request and be successful or there jim you have collection it also explains that if there is a collision collisions are resolved and so it is correct that ultimately  one way or another the dam with gram will be provided but the question is at what point in the process there is no dispute whatsoever that there has to be a man with gram for the data to be sent to and th data can be summed up once you enter into non contention free grant land you can send up your data and since you can get to that place the time point you have to have a band with them but the question is one that that happened and doesn't happen in a way that meets the transition requirements and the timing requirements of the nine one tap into play one patients and the answer to that is no based on figure nine and the teachings and thirteen twelve to thirteen thirteen and importantly the board have no contrary finding really they have no basis to support their decision they have two things one is the repub satisfy their own which rightly pointed out doesn't work and we've reached out in detail the other is they rely on two sections of doctors one point zero six point four point one point one point one and point one point one point five neither of those has anything to do with this transition issue we explained that in our opening brief and it was not disputed were conducted and the response brief and the expert testimony that your friend on the other side relied on it is your view that it doesn't say what your friend said it says or that it says it but it's so conclusory that it can't support it well it is the latter because he does make a statement about when he contends these transitions happen but there's no basis for the statement and certainly one iteration there's no explanation and it's just a mere statement and in the second iteration it have to do with the handshaking and there's no explanation of handshake so thing like that screeching noise on the fax machine that says i'm listening or something or what is the handshake that might be one way to think of it that entry it is a communication between the client and the base station that is a sort of authentic so i'm not at the it's not in my memory of what exists in the record on that point but i will say that it's important on this issue to recognize the distinction between control channel communications and data channel communications and these claims as we have said in our briefing are all about what happens with respect to data and payload data there can be true for channel communications and grants of control channel communications and that might be a part of what happens with a handshake but that doesn't that demonstrate the existence of a band with grant on the data