as time passes that's at appendix forty six and forty seven the key problem with that is that those limitations are completely divorced both from the intrinsic record and from the plain ordinary meanings of the terms so to w days in the month of february for instance pre determined but every four years or so it changes the amount of time between now and five pm so we determine the amount of time it's known in advance but it changes as the day wears along to get well i guess it's if it's one of our right the idea behind the invention is pre determined that the length of time the amount of time is one hour and so it's calling for of trying to figure out whether a person is going to be somewhere within the next hour but that seems like a straightforward reading of a claim that's entirely consistent with what's being well at two o'clock on a wednesday it knows that i'm going to be at the trader joe's within the next two hours or four o'clock on a thursday i'm going to be able to get that's what they've been it they didn't invent something that said it is one an integrated legal document it's not like we can just pluck words from other sources and then use those meanings of that word in other contexts and just plug it right into this p what we do need to read the claims in light of intrinsic record and when we look at the board's decision the board doesn't say anything in the intrinsic record or in the extrinsic record for the proposition that the period that the link to the period of time has to be unchanging when you look unchanging they don't say i'm changing or static anything that comes on the board imported that limitation soley because it's self believed that that was the plane where nearly meaning of the term with large and that's where the examples that i didn't come it because the board wasn't saying that if you look at the the invention here you've got a statement that says this pre determined amount of time here it is unchanging it didn't say that and it couldn't because that's not actually in mean that's the plain meaning is given by the examples in english that i was referring to before and that's there's nothing that minds up with what i just explained doesn't it includes what you just explain your honor but it is broader than that that the key difference is that there is no requirement that something that's decided in advance be unchanging for all time again the number of days in february changes every th year it's still pre determined if you give an example in the context of this patent if i said that the time period is from now until five pm that's pre determined i know right now how i'm going to define that time period but it's not unchanging because as i get closer to five pm and i get closer to that end of influence the perp the behavior of the user that's common once the very beginning of the pack and in order to be able to do that take some of the examples they have they have an example account by about making a prediction about a special offer at lunchtime get closer to the end of that period as it's almost the end of the one shower i can't just say one stop going to predict where the person is going to be an hour from now that doesn't make any sense that contravenes the purpose of the invention because you can't influence the behavior of the of the individual any more where i think the poor really got longer and they see it explicitly on page forty five of the appendix of their decision is they said well we know that the pre determined time has to be unchanging because it has to be the same each time th method is run there's no requirement anywhere in the queen that says the method has to be run more than once and it doesn't make sense to talk about something being unchanging if it only exists once and fact the board ignored two examples in the specification that show that the net that it need not be performed once one of them is a figure seven appendix sixty one dollars which shows a flow chart in which the prediction goes through only once for each prettier and the nd this  appendix sixty six dollars in which the specification talks about a proposed projection or prediction being performed at twelve o'clock doesn't talk about it being performed again so the board's underlying belief that the the political that's particularly true because the word was not relying on anything in the intrinsic record to come to a different conclusion and the board compounded this better by pairing the unchanging requirement with another requirement that the claims be adjusted dynamic they put it they never could just put the start and end time is necessary for the pupil to just are continuously changing present time that's it in the forty seven dollars and again there's no intrinsic support for that the word dynamic isn't in the anywhere in the intrinsic record of time to include something that was not unchanging for all time and that was not necessarily dynamically adjustable nd the word in a similar rig by concluding that the maximum amount of time categorically must start in the present and that any other period of time was excluded to affirm again the court would have to conclude that it was only reasonable complan reasonable for the pre determined maximum amount of time to include something that was not starting at this very minute and i think the key problem under this court's decision in google versus network one technology is stated in the briefs that's the standard if there's more than one construction that's reasonable the broader governance and fear happens construction under which the pre determined amount of time can start in the present or the future is a reasonable one and how do we know that st it's common usage there it's reasonable to interpret the starting point as something other than the present time it based on how people normally talk say i said i pr ball will finish his race within ten seconds mike the time the beginning of those ten seconds is not the prediction it's the beginning of the reverse here imperiled in the claim says predicting whether the device  be in a location within the pre determined amount of time the starting point isn't the predicting step it's the beginning of the amount of time and then we line up with the prediction we don't dispute that it certainly might but it doesn't need to and we know that because the period details of it i wanted instead address kind of broader thematic legal issues and also just what the council said in his argument st i want to address the suggestion that apple makes that the board somehow went down the of applying a phillips type analysis that's not what happened nd i want to address specific legal flaws and rd i want to address the unchanging dynamic aspect of that counsel addressed on the point of the meaning the correct philip standard versus the reasonable standard and they make it sound like they're knightdale like you would on different tasks first just in the facts here the board made it clear that they applied the all right phillips they noted that the rule change was around this time period they specifically stated that that mirror was being applied moreover it makes no sense that the board a body that is hired and trained initially to only apply the or i would somehow bring in philip's  if you look at i think this is an interesting academic issue but it's also really relevant here if you look at apple's arguing the gist of their complaint is in the broadest reasonable to give lip service to the word reasonable but they're really coming up with the broadest possible construction context within and then they kind of piece that together from the specifications but they're lacking and what they do which i'll address later they don't really look at the cleanly which they kind of give short shrift of it they look at this kind of the words in the it without context now and spec which was a broader interpretation then there was also this interpretation that they speculated could also exist read the claims and spec in a dictionary and that would make it narrow and so they found that both of those were not in conflict with the spec in f examples at the apple hangs her head on in the two examples the restaurant and the department store examples and the if you look at that section which is column sixteen thousand and sixty one there's a very precise futures usage of the pre determined amount of time being linked to the one hour ok then sends me really after that it says and what the court is with the board is called the additional feature the manager can also specify days and time which the ball in a different step and where the pre determined amount of time is a pretty short amount of time is used in the retreating step in the predicting stuff so that is clearly something it's a it's a disclose of unclaimed embodiment and apple makes it make it sound like a horrible horrible they call it the bigfoot the bigfoot arguments they say well it must be something wrong because it's never claimed and not described but your honor i think you will know that happens all the time i mean i started my career as a patent prosecutor i wish i had such precision that everything that i claim to have to wonder one correspondence is nothing extra you always have extra disclosures in your spec so that's just something that was there is nothing sinister about it and in fact i think if the court were to examine  paths it's very common so that they think that's the only way they can get that i think if you also look at their analysis they really don't look at the claims the claims really lock it in if you look at the claim language the predicting step is locked in to the time period and so when you have to time period have to start at the predicting step but just the way the language is written that relates to the other issue that counsel was raising about the so called  that's an unchanging amount it's the same thing it wasn't saying that pre determined amount isn't changing and i think it's very clear i don't want to go down the details but that's that's one st point to notice nd point about this dynamic being something that was at it again that's like a red herring if the kind of the mechanics of i see everything mechanical what with the court with the board was trying to say is giles has kind of a start time and time so one o'clock start predicting it one rd and you'd only have half an hour left it's not a pre determined amount of time versus in the patent the pre determined valid time is the example being an hour is a fixed amount of time and then as always that one hour so that's the only reference to the damage worse is static it was not anyway additional requirement does anything more than the claim terms it was not intended to be more than what they already did i think eighteen and nineteen the one to the dictionary if you have twenty and apple continues today to assert that expert testimony is relevant that's that blue brief thirty four and thirty five so it seems to today that the expert testimony is relevant so we think it's still justified to say that the substantial finding to be reviewed for substantial evidence that's all i have today your honor says anything like thank you thank you the prediction dynamic and changing are in the event of that in the claims of the claim itself supports apple's position nd i heard counsel to say that the predicting step that the unchanging issue is that that's just between the predicting step in the retrieving stuff we don't dispute that the scene period of time is used in those two step but that has nothing to do with the word pre determined that simply because the clean has it at the scene basics that it says a predetermined amount of time and set so it's the same that would be the same whether a pre determined amount of time or any other amount of time i also heard my counsel opposite to say that i believe he said you know a lot is not saying that the amount of time is unchanged if that is true if in fact counsel is conceding that  department store examples it's not entirely true this there is a disclosure of a column for lines forty four to forty seven appendix sixty five dollars but we also say that says it refers explicitly to i'm a prediction of whether a device is likely to be in thani of a number of locations quote within a pre determined amount of time in the future apple since it's at least reasonable to be that as we can refine that is completely in the future finally in order to affirm this court must find it is unreasonable to define  amount of time as a window where period of time if five dollars to six dollars of pm is a window where period of time or amount of time apple wins if an hour until two pm or from two pm is an amount of time apple wins and with thanks for your