thank your honour's please support we're done with advertising so we're moving on to it a different system this system involves storage of files for users on a server in this case as a consolidated with court cases presents the kitchen as reference which is raised in each of the cases and the foley reference which is only raised in one but i'm going to start with only because i think we can dispatch with it quickly the board did not apply its own construction at the user library element in the foley decision the board construed user library as a collection of individuals stored files that's not challenged we do not dispute that construction that is the construction of user library and the board applied a different construction when it looked at the project files disclosed as being remotely stored in the foley system and what the board said is it focused on the fact that those project files are quote unquote individual store files not an individual's stored files and while there are a lot of different letters there to make up the difference between individual stored files and individual fo files they mean there are different things with respect to the foley decision which is in the google case at age twenty six the board said in figure five the fully the portfolio filed is a file that provides references or links to individual project files and then it followed up by saying the collection of project files on the other hand is  individual project files that can be linked from the portfolio file so it's clear that the board is not applying the construction that it does when it's examining the fully reference it's merely focusing on the individual project files and we think simply that this case must be remanded to the board for consideration of the proper construction so it's not a case where we're disputing the construction and if this panel agrees with it has to go back for application of the proper construction to the crime or are simply the border not apply its own construction and though it doesn't involve a great deal of different letters and numbers i guess there are no numbers but different letters and briefing for another day because we don't have the rationale of the board for its conclusion that that those project files are and individuals files we don't think they will be a google submits that they are but the first relates to a claim construction in claim to keep the two ninety patent the focus is on the language to access the final associated with the selective use of links from news a library and  eight in flame two describes a system where it user is provided with a user profile that is stored on a server and i use a library that is also stored on the server and that this program of claim to  receive the profile from the server display the user links and allow the user to access files stored in user library from those user legs we've argued that that claim  specification that describes release of man is merely the organization of the user profile but doesn't address whether the link and the file have this one to one relationship but we think that there's plenty of evidence in the claim itself to support our narrower reader starting with the preamble the preamble states that the user profile contains at least one user of link that provides a link to one of the files and we think that's consistent with the limitation further down a claim to which is to access the file the socio did with the selected user length from the user library now what's odd about this is the board said it's to the board side of column seven lines thirty four the group column eight blind wanted to kiss and it says their home page seventy three however is different than conventional home pages as described above with reference to figure two having onscreen links to electronic documents reserved for the home page owner such as e mail and faxes and what the board concluded was that one line from kitchen is disclosed that relationship between  and files that we said was mandatory in the construction of plaintiff's but that one line is inconsistent with literally every other disclosure of the system of kitchener's in fact the very next sentence in  one two three four says as an example homepage seventy three in figure three has a bug one seventeen label female for voice mail by selecting button one seventeen the user is linked to database ninety three figure two through c g i eighty and voice mail programming seven and there are other references columns to this client thirty five through column seven line want a single database of a home page seventy three individualized to a specific client that provides software links to various lower ordered databases maintained by electronic documents server sixty nine china's disclosure the system that presents a home page to a user that contains links to databases from which the user may then access different electronic documents it describes of voice mail database email database and other electronic document database and by clicking the links on the home page the user gets merely the database it does not get a given file with the database and we said that's not good enough that's not what the two ninety is because the two ninety has in the profile a link to a specific file in the user library and onscreen active selection area for access to an electronic document database containing electronic documents address specifically to the home page owner profile which would include alternately some window that would have the final link to the set file so that's a great question and i'd like to answer it by focusing on what the institution discipline said because that ultimately set up what our target was and the institution decision said the home page of kin s was the user profile the onscreen active selection area of the home was the user l database was the user library and that the electronic documents within the database where the files and of course our contention is there must be a link to one file from the from the  profile from the home page and use the home page of kitchen is correct and along the way when we made this argument the board came back in the in the final decision and shifted gears on us it said those can also be the files and using its definition of user library which i mentioned earlier with respect to foley that collection of an individual stored files the board had all well you've got multiple databases because there's a voicemail database and an e mail database and other electronic documents database that collection is the user library that's a that's an argument wasn't presented in the in the petition it wasn't presented in the institution institution decision we think it was in part an admission that that one liner that the board cited as evidence of anticipation was insufficient since the board decided to change its analysis and the claim mapping so that there would be a file with respect to the databases as opposed to the documents in the database we think this overhauling of the mapping of the claim elements the success rates on rehearing we took our chance of coming to this court it's that we don't understand the decision not to seek rehearing as somehow waiving any of our rights with waiving this argument with respect to the files not being an individual story file and the fact the matter is that was not something that we had an opportunity to respond to so we do have a procedural objection it's couched in terms of pelleas procedural objection i believe that's microsoft that makes that procedural objection stating that we waived but we have we have an issue with the board adopting a new claim mapping the final decision that wasn't part of the trial appeal first thing i'd like to do is make sure that we do see exactly what the board had in front of it and there was substantial evidence to support his finding in two different ways first thing that and it's already been cited so i just refer to that the chemist reference describes a system which presents an interface a graphical user interface which has links and when the user clicks on those links they get access to the files the next thing it doesn't or did was look to the record evidence and this is i would like to raise a couple of the issues that were presented by the petitioner below that go to this question of where first windows provided that and user has to click on that first window to get another list of links so that all eventually gets them to the link to the file it's important to recognize the board considered this question and whether there was a requirement for one to one access or one click information resource file is similarly described and defined in very broad terms and all of that led the board to conclude that it was not appropriate to read into this link requirement some special kind of way of connecting to the files but ultimately the first round of the board found was based on this explicit indication into kansas that links are provided to individual docs and now the next issue that the board found satisfied can is satisfy the claims from was something which developed through the evidence in the proceedings and what was shown through that evidence was that in the kennett system there is a collection of individual databases maintain on the server the links that are on that web page that is the user interface takes you to those individual files and what was before the report was a evidence from the testimony of their own witness saying those database files that are collections of documents satisfy the definition of file in their own pa and that evidence wasn't disputed there was enough and presented to the board for then find it independent ground for demonstrating the anticipation by can correct that wasn't part of the institutions and that was not in our petition it would not address the institution decision but during the from june fourteenth of this year you addressed this question of whether it's appropriate for the board to kind of consider something which is an articulated in the original in the institution decision and you found that it was appropriate because this is obviously a proceeding they conduct additional evidence comes into play and that's something which focuses on whether they had an opportunity during the proceeding to address the new issues that are reduced through that proceeding and they did the addressed and i'll give you the cite they were all here transferred can see it a three three nine nine two firm on either of those grounds if you didn't address the second round you could still affirm the first one i think here it's important or freesheet whether what that evidence was in front of the board or sorry the oral hearing transcript is not join  direct your attention to age twelve seventy six is sixty six six to twenty now the counsel for the county has portrayed this is kind of a throw away statement if you can it's and i don't believe that's accurate canisters describing is literally the same kind of technique show you can claim to their path and we rose and took that up with their witness he agreed not only that's literally what it says but as he said that's what is being disclosed by the referees and we believe again this is a proceeding where the evidence was to the question of the mapping use that were raised the first mapping did in fact use the database as a source of the access to to the files the second mapping spoke to the collection of individual databases to satisfy that user library i think that's also supported by the substantial evidence that was in front of the board and again it's very important appreciate that there's very little that was actually ultimately in dispute between the parties based on the test the morning may please the court to represent google with respect to the foley reference and again it's referenced as well but i'm going to focus my comments on the foley reference i want to address right off the bat this notion that the  did not apply its own construction first of all there was no dispute below that foley had a user library when you look at the board's construction and the board's discussion on page twenty five the board set forth what the disputes were the disputes below were whether or not there was a user profile and whether that user profiles was separate from the use r library if we look for instance on day twenty six which is the board's decision the board says patent owner contends that fully does not teach a user profile separate from a  user library we disagree in its mapping between disclosure of foley in the limitations of claim to petitioner asserts that foley's portfolio file corresponds to the claimed user profile and the collection of a user's project files in foley corresponds to the library patent owner does not dispute this matter but instead argues that foley's portfolio file and collection of project files describe the same thing that was the argument below now appellant said as well i don't see anywhere in the analysis where they specifically said that the project files are a collection of the user's stored files that's because that wasn't in dispute however they're wrong in any event because on the previous page on a twenty five this is the board speaking as petitioner asserts a portfolio filing foley contains references or links to a user's project files which are created and named by a user and cites the specifications of the fully patent and cites expert testimony that we provided in support of that notion this idea that the poor did not decide that the collection of files or the user's files was not made below and it is not true the board actually did decide that issue now with respect to the issues that were in the briefs on points there are only two alleg makes over the foley reference none of them were discussed today but i want to address both of them to make sure that we address the points that were raised in the reply brief first there is this part of him and that there is no program in the foley reference because there is described a j ws program it's called the jabba works java workshop program and a java browser they say those are separate programs they're not the same  program the poor had found as a matter of fact that fully does describe a single program that factual finding is intitled the difference there's substantial evidence to support what is that substantial evidence the board relied on and the j ws browser is under control of the jadedness program he couldn't be more clear that these two things are related to the board found to alternative grounds to find this limitation that first you found that contained within the program the definition of program is very broad in the two ninety pattern it is just a collection or one or more related program modules the board also found as an alternative ground that even if you consider the j ws program and the g w s browser to be related or to be separate program modules that they are related and again the board relied on the references that i just referred to all of that explicit language from the fully reference in addition to testimony and there's testimony from our expert that in reading some of those passages what that means is that the j ws browser is contained within the data of us program so we don't think that there is any ambiguity about the specification of the fully patent but to the extent there isn't any ambiguity and you could read it two different ways the board read it this way and there is substantial evidence to support the read that closes that issue of program the second and last distinction that the appellant raised with respect to foley was this notion that there is no user library and the argument after saying the board didn't actually say what it said the argument is that the collection of project files in full is not the user's files why because it can be published to be accessible by anyone and that there's absolutely nothing in the claim construction of user library that requires that the files of the user be kept private it doesn't say a collection of the user store files that cannot be accessed by anyone else and in fact that claim construction was never objected to the collection of the user stored files nor is it objected to or argued that it's wrong here in this court we are stuck with and they are stuck with a collection of the users stored files or over that was for it there's nothing that requires it to be private in any event even if there were somehow a requirement that the user's files have to be kept private there's an explicit explicit disclosure in the foley reference that says that the creator of the portfolio has the option this is on a fifteen eighty at the top of column  line twelve of the foley reference once the new portfolio has been created its creator can keep it private for can publish it on the internet to be accessed by others so there's an explicit disclosure  can be private even if that were somehow a requirement of the client now the appellant has argued well if the portfolio files in the project files are on a remote computer that means that they are published and that they're not private that's not supported at all by the specification of phone with the best figure and i think this figure really resolves every question with respect to folding is if you look at figure four story for six of fully which is on a one five seven six this figure tells you everything you need to know about filled in this figure what you see is in machine c which is a remote machine there's a box and it says it remotely stored portfolio and project so that's a user profile that's the portfolio file and a user library that's the projects both stored on a remote computer which meets the definition of server machines it in that figure alone you can see exactly what's claimed in claim two and that's exactly what the board found the board relied on this figure in on figure five and actually excerpted them in the opinion  the notion that when these files are stored remotely they are necessarily public and no longer private is nowhere supported in specification in fact the specification of the fully patent and the abstract in particular demonstrates that the notion of where the portfolio is stored and whether it's published are two completely different concepts when we look at the abstract of fully which is a one five seven zero  two notions that are described first about a third of the way down the abstract and says the software portfolio and or their constituent projects can be stored on the system hosting the portfolio management system or on any remote system so that's the disclosure that it can be local or remote at the end of the abstracted then says the p m s also allows users to publish portfolios and projects on the internet to be used by others within certain limits set by the publisher so there are two independent concepts the first concept is where are the files stored they can be local or remote as we saw in figure six they can all be right up there is a separate independent concept which is whether your publisher to keep it private the claims don't require that you keep these private even if they did it fully explicitly discloses that you can't keep it private regardless of where it stored the and it was a question i'm happy to answer them otherwise that's all but i'd like to start with where mr rosenthal left off couple of points that he was making that required clarification of the first with respect to what the board decided and how it did or did not apply the petitioner asserted a portfolio filed in fully contained references for links to a user's project files which were created in them by the user the arguments on age twenty six where the board applies the construction or does not that does not make reference to an individual story files i'd also like to turn to the idea that the portfolio file and the project files are somehow private when they are remotely store w that says a user of the jado you asked one fifty can create a new portfolio by selecting the portfolio managers quote unquote create option and then entering the name of the portfolio to be creat in response to j w s one fifty calls the portfolio dash create method one forty six a one egg which creates the corresponding portfolio file on the local system displays its name in the toolbar one sixty eg and as the portfolios name to the choose and remove sub menu one forty seven a one c one forty seven a one dig then in the very next paragraph it says once the new portfolio has been created i e created on the local system is created it can't keep it private or can publish it on the internet to be accessed by others and while figure six shows machine seen as storing a remote portfolio and remote project files remember in order to satisfy the limitations of the user profile and user library both the portfolio file in the project files must be remotely store so everything that deals with the portfolio file and project files on the local system they're out they don't matter for consideration of obviousness with respect to the two ninety but when you look at the process by which portfolios are created they are created on the local system or they are imported from remote servers and that remote server merely takes somebody else's projects and brings it into the project that's been created on the user system the local file and it's important to compare and contrast what the two ninety claims and what foley claims to ninety claims  system for storing and individuals store virus that's the user library what's described in the two ninety patents are e mails and business presentations and other personal or private but foley is is a tool to import and store and share computer programs that are created by developers that enable others to build more quickly their own projects these are object code and source code files that are stored on distant notes indeed patent describes column two beginning at line twenty nine there is a need for an internet enabled programming environment that allows a user to assemble programs from components that are distributed on diverse internet nodes or to download entire program falters from another internet these are two very different systems and while the mappings that is attempted suggest that there may be a user profile and user library in certain forms here the reality is the fully system is a publishing tool to allow the developer to share his or her project whereas the folk that the true ninety claims a library that is being stored with length i would merely point out the question he was asked and it's in our brave is are those words there into canis and he agreed with that but his is his declaration and his testimony is not that that means there is a