arguing both this is the one that deals with their claim requirement of communicating the identities of faults and displaying the identity fide faults so our position is that the board erred by removing those requirements and there was pretty clear that there were two different moved with two different kinds of flash and the only way that the board resolved that was by saying well regardless of what the source code actually says and that was their language regardless of what the source says we're going to find that the that the reference as a whole teaches two different behaviors problem is you can't set aside a rd of the document and then say we're considering the document as a whole there's a potential for inconsistency is here in the board had to resolve whether there was an inconsistency or not and then if there was what to do with it and the code and dr davis undisputed analysis of that code he's the only expert that analyzed the code in this case was that it did the same thing as the other comment if you look at the comments one says and blink and then the other one says flash every quarter nd so one of them is indeterminate in the timing the other comment tells you what the timing is so the question in looking at those two comments is is that is the generic comment the same as the specific comment or is it something else and dr davis went to the code and said yes it is the same thing they're both quarter nd believe they didn't but they don't have to believe me but that's not what they did they didn't say we don't believe dr davis they don't say we disagree with dr davis they said we're going to set aside what the code says setting aside or regardless of marriage we're talking about here regardless of i believe it's twenty six of the court opinion so appendix twenty six so what that what the board is doing there is saying while the specification says flash every two seconds for this fault about exceeding the count you have two faults here one is your you processor has too high of a value i don't know what happens ok those are the two faults that we're talking about and what the the board said here is while the spec says flash every two seconds comment for the other error says flash every quarter nd so these are two different things and that's wrong because the code itself says flash every them from from the only person who analyzed the code so the answer is if you look at the entire reference you have comments that say every quarter nd and then it silent for the for the ten thousand count error you have code that says every quarter nd for both of the errors and then you have a specification that says every two seconds and so the position we took is when you look at all all of those comments code and specification that tells you that the specification is talking about something other than the code and comments the board said well regardless of this functionality regardless of what the  describes the eight to nd count for the over ten thousand cycles count and then the question is whether that description should be melded with the code and the comment as a single example or whether the description is is described in a different example so you have an example in the code where both are a quarter of a nd because as dr davis said the actual code itself is a quarter nd for both  the comments are quarter nd and open ended so if you take his testimony into play and it wasn't disputed you have a quarter nd for both errors you then have a specification that says two seconds for specification is describing a different example and the the and it's not like there's i won't call it a separate embodiment because this isn't the deal whether you do it for two seconds or a quarter of a nd that's not where you would car different body but what they're doing is describing two examples of how you could carry it out but they do it it's two seconds quarter nd it's not something that you can carve out into a separate body me but if you take into account dr davis's testimony which the board said regardless of his testimony if you take it into account and it's undisputed nobody else analyzed that code you have quarter nd for both of the errors and so you have indefiniteness for which errors happen chunk of the document but i'm still looking at the whole thing just can't make that determination by throwing away part of the document where we had identified an issue and then saying well there are what remains solves the issue for us that's big picture and that that issue separately that the board could also get there on the more general incorporation by reference issue which is that the that the incorporation may have brought in that extra code ok but it never connected it up with the  embodiment in the six for one patent ok so what we call it interleaving different teachings and we say that for anticipation you have to show not only that it's in the document ok so they have a general incorporation by reference which is way up at the top of the patent which is common and it just says that incorporate by reference this other document and then there's a statement way down is the nd to last paragraph of crimmins that says here attaches day of code i would say there is no explicit connection between those statements are at opposite ends of the pattern there's nothing in the pattern that suggests that they are connected that somehow the exhibit a the end is talking about exhibit a of the incorporated reference rather than the pap and i also say that it's not explicit by where it's located it's not explicit by its language and so we have to imply that somehow right you have crimmins is six for one specification which is missing it's attachment we know that and then you have you don't help on the go that job it is incorporated right generally incorporated our problem is that the incorporation does not necessarily be pointing over there it's not enough that you could figure it out if you if you did some work in a skilled ours and could figure this out it if it's not explicitly pointing to the other exhibit a then it necessarily has to point there we know it doesn't necessarily point there because in fact it points to the original exhibit a now they'll say well but at the end of the day the exhibit a's match in substance but that doesn't count under his patient law because the only way to find out that is the other application that was incorporated ok what i'm talking about the rd document is the application for criminal six for one which is not incorporated by references it's where the actual exhibit that's being referenced a criminal six for one exists to have criminal six for one point to something that doesn't exist and then you have the other criminals application over here with its exhibit a and to get where they need to go this reference to exhibit eight increment six for one has to point to the incorporated exhibit a and our position is that it doesn't under the law for anticipation because it could obviously under obviousness you might be able to figure out that it does but this is a case for obviousness it's a case for anticipation so they have to show that it necessarily points to the other exhibit a and in fact we know that it doesn't it points to its own exhibit  nd issue which i think your honour's hit the nail on the head with the questions to the council here and that is even if the arguments that they've raised are considered on the merits they fail for multiple reasons as you noted if the court determine the claims require your faults to be uniquely identified which we don't think is a requirement the claims based upon the proper reading but even if you go that far and find that that is a requirement crimmins does identify unique faults because it provides visually distinct displays for at least two identified faults you identified it in the board relied upon it finding that there were two different l e d behaviors for two different identified faults now the only challenges chamberlain has raised to those findings i think in fall into three different buckets st they take issue with the conclusions about incorporation by reference which we heard some about and i'll address the nd they argue that there is purported inconsistency between the source code in the comments of the source code and then application is related to criminal disclosure we just heard them say that it's in their reply brief they went so far in the reply brief to say no citation no citation that might direct the reader to useful sections of the code was included in the comments part reference that's in paragraph four i'm sorry page fourteen in their reply brief but your comments includes not one but two different paragraphs that work in concert to provide specific details as to what's incorporated from exhibit a from its includes the general statement that we heard about that appendix forty four problem one lines three hundred and thirty six stating that this is a continuation of the parent application which admittedly includes the source code and then crimmins has a nd more specific statement near the end column twelve lines twenty five through twenty nine that's where it says exhibit a is a copy of source code source listing for computer software to operate a commercial door operator having functions described above and including the following modules it points and calls out specifically five separate modules and why is that important because each of those five modules is found in the source code and the comments that we and the board relied upon are phone in those five models so their statement that no citation in crimmins might direct the reader to useful sections of the code i think can't be reconciled with the actual disclosure crimmins crimmin says code is attached here is five sections to look at and the comments that are relevant here are found in the comments to those five sections so in light of that disclosure we believe the board properly found that somebody of skill in the art would have known to look to exhibit a in a prior art as being incorporated by reference they were substantial evidence including one world's expert to support that finding and during the hearing i think this  much so there you have comments about how the hell he's or activated the top one is the one that flashes every quarter nd the nd one is the one that blinks every two seconds for two seconds so i think their argument here is that while the comments say that if you look at the actual code itself the code doesn't implement that we were the  but that doesn't negate the fact that the board found properly that if you consider the entirety of the disclosure it clearly discloses to a person born or skill in the art that you can do two different things with two different conditions that's what our expert testif interrupt sequence and said to a person of ordinary skill in the art the comments disclosed using two different conditions under two different scenarios so if you consider the entirety of the reference i think it indisputably supports our position support here they didn't same audience today i think before they have argued that there are different environments but i think they can be dismissed for a couple reasons that initial matter the board found that the comments of the code ready standing alone taught different behaviors for different faults so if you just look at the comments alone you've got two different descriptions in there you don't have to talk about whether or not that can be reconciled with the actual code or with what's in the specification that comments alone disclosed two different behaviors that is enough to invalidate the claim but the board went further and they made specific findings on the szish this issue they found that the source code in the print specification referred to a single embodiment not two different audiences appendix twenty nine so this idea that there was mis combination of things was raised before the board addressed by the board and their standards substantial evidence to support that conclusion so again today even if chamberlain were right in argument the apparatus limitation requires at least two different behaviors that correspond to distinct faults that sort of uniquely identified requirement that they talked about so stanch levin supports the board's findings that commits disclose them patients unless you've got additional questions or want to talk about the waiver issue i would see my time back to the court ok i just want to talk about the referee pages that you were looking at the comment pages but to help make clear what our position is on what the testimony was on this teaching it's the top two comments on page eleven of the red brief ok one comment says turn the l e d on and off every quarter nd the nd comment says flash ltd or note that there's no difference between turn off or flash or bl pulse those terms of all been used interchangeably you can look for example in petitioners petition it a one hundred and sixteen to one hundred and seventeen so that the use of the words paul's flash turn on or off that does not make a difference so what you have is one of them says pulse every quarter nd the other one says pulse but doesn't say how often but the specs has two seconds the spec says as its example two seconds and the question is does that fill in the gap for this generic description and our answer was it can't because the code says every quarter nd ok the code the code itself right next to this comment was every quarter is actually someone but it's a fact finding that set aside the code they could certainly make a decision about whether the code trumps the spec or whether the code question they could write there could be testimony about inconsistency between the code in the comment that the comment suppose you reflect the code but i think on that they could but that's not what they did here they they went to the spec and they said well the spec describes this because there's nothing to the contrary it's talking about this and so our conclusion is there's no inconsistency between two seconds and a quarter nd but the only reason they didn't see an inconsistency is they didn't look at the rd piece of evidence the actual now they could if they looked at the code they could say well here's why the comment doesn't match the code but it matches the spec or what have you they might be able to do that but they didn't do it and it's important not just that they failed to do that but that