well we began our proceedings this morning i'm going to turn it over to judge toronto for a motion i have the honor of moving the admission to the bar of this court my free  including in roles as in visor scholar critic writer and warm and light daily presence in a sometimes intense environment for a year i have benefited greatly from their commitment their excellent work and their good humor i will miss them and i and the all those who will be lucky enough to work with them as they move into promising career and i know that our sports bar will be brighter for their presence with that on that basis i move the admission of cancelling each lexer who is a member of the bar and in good standing with the with the highest court of california i have knowledge of their credentials and i am satisfied that each of them possesses the necessary qualifications let me just say that one of the best things about please now turning to our cases for the day i'd like to thank all the parties for their cooperation in trying to get these tornadoes means to be seen whether we've done in effect a job on that but we've given it our best shot my appreciate the cooperation so the first cases for argument are fourteen thirteen thirty's dex and fourteen sixteen thirty nine aggressive casualty versus liberty mutual  proposition that accompanies bankruptcy undermines for pen billing purposes the teachings of a corporate document doherty and from that we don't have any authority for it except for common sense and logic if there were an aspiration that was insufficient to find some type of religion so if i could also direct the court's attention to our chart that we have in the movie that page thirty nine that's the chart that lays out the mosaic enablement problem here so why isn't as i say an aspiration where there is no enablement issue about how to do what the aspirational document describes as something to be done enough their suggestion or that of a seventy four is seen if we look at the geo started document itself we see that if we take your honour's proposition that it is aspirational i do think it's sufficient i do think it's not been able because what stated here insurance claims it doesn't suggest that this is going to be used for the claims of where was transmission and processing of data set forth in the past the same is true with some vague statement of seventy four in the team that it would be used to lower insurance premiums remember this is not even prior art it was rejected by the board as not being for it was this aspiration if you will vote a board at the outset you know we don't really don't get the care what led the board at the combine so as we see on page thirty nine references such as a memory that was brought in by a person of skill and we are never references or elements such as a wireless transmitter only person of skill in  database it was suggested there's a database in our area are d s s was a person of skill in the art if you look at these various pieces that were put together this is not a simple combination of an aspiration from a mr andrews which would that depended said seventy eight forty five forty six his gap filling simply says a would have recognized something but recognized that something could be in a i guess i'm going to to try to break apart a little bit what one question is whether a person of skill in the art would have recognized a possibility in the other is whether a person of skill in the art would have had a motivation to pursue the possibility it seems to me that your argument is really about the motivation to pursue and the first point about recognizing a possibility could be in a location isn't just isn't about that but other things are about motivation to pursue the possibility including the phrase could be advantageously so that those are two different things so the fact that the first one doesn't address motivation doesn't seem to me to be certainly not decisive in saying that there's nothing else this implies the motivation and the second one actually does quite quietly address motivations i say would have recognized an advantage in pursuing this possibility could be advantageous is what's wrong with that but i think your analysis is correct your honor that our primary argument is the motivation by the board have found the belief the aspiration is insufficient so we support that but it is not necessary that the court support that in order to find in our favor that  i see i have about forty six seconds left you want to say i know they arguments with regard to new grounds for rejection surface and another group but i don't want to touch on that here i think i'll touch base on those in thirty seven are more limited thirty six and thirty seven are almost to the eighteen one nineteen twenty yes you're correct ok sixteen thirty nine appeal that disposes of all three and that his shoe is the motivation for mine of course that in fact will determination one of your facts and reviewed deferentially under the substantial evidence standard by this court the board's determination that there was a motivation to combine is well explained and well supported in the run for the board  the nature of the interrelated teachings of our d s s and because aka and explains both of those pieces of prior art of cause both of them are they are systems of monitoring whole location and operation on the basis of sensors placed on the the i call and then each has a component of transmission and we have the outside from the vehicle to the outside so you have at the outset two systems that are very similar in their basic nature being systems of vehicle monitoring for the same type of  can also provide results to the system in which or for example an inch or more rapidly and efficiently then computing facilities on the vehicles so you had two systems there were both had computing facilities to measure all this many ways and given that now but not always i mean intuitively the combined efficiency is the processing plus how much stuff you need to transmit and it might be that keeping all the processing  the doppler radar that the doppler radar information is already in the process for purposes of insurance one doesn't need all that data all you need to know is was there a period in which the car was tailing too close to the car in front of it at a point in time and so that would have been processed before sending it on so that wasn't a reason for credit mr enders testament about that and so the board and then again the argument that progress is making actually the socket has a couple of different ways in which it communicates wirelessly with the outside world and alarm system and a premium payment system now it's true that posada does not communicate all of the data for processing outside and the r d s that does not suggest it is self taking all of that information and using it to cancel insurance premiums that's the part that the saga provides and likewise for that sad jewish star said this would have beneficial uses for insurance lower insurance rates of course that's not enabling and we're not saying that it is enabling cosigned god tells us how to do that the question is would someone ha processing from each having a separate computer and each card each one of course each computer would have to be uploaded with any new developments in the software any improvements with that rather than doing all that and you're basically limited in what kind of computing you can do if you're going to do the new and advanced computing with that haven't all of the central server already has asked that that and again the president mr andrews testimony about that but would oppose it would have understood it terms of the advantage of this but they also recognize that our d s s said at the time this wasn't something new and that there was nothing that would have discouraged that these computations and insurance changes can be done subsequently it does not have to be done instantaneously as the data is coming in and it can be processed there are a number of instances where the reference hour by hour daily subsequently all of these suggests that there's going to have to be some kind of storage in memory so that a new process later the board addressed that it y talk about this is at a fifty two twenty eight that geo star central maintains automated files and storage facilities for up user identifications for cross correlation with physical identifications and traffic gaps are addressed in detail they're supported in the testimony of progress liberties expert as well as in the in the references themselves can i just double check one thing with you completely to one side that you've just been talking about about how you can find all the elements if you know if you look at these two things and you're looking for them and focus just on this motivation the way that i know if this is wrong with the way that i understand the board's decision the board hamster's paragraph on friday or to two that says liberty argues no three things in the first two are just about what you can find in the prior art and the third one is the only one that says anything about motivation and that in mind the citation is to andrew's several paragraphs that i think don't have anything to do with motivation and then thirty seven thirty eight paragraphs thirty seven and thirty eight which are seventy eight forty six bunch of reasons progressive says that's not an announcement it proceeds to respond to each of them but the affirmative case is just that well i think it is which may be enough i just want to know if there's more i think it is that in terms of mr andrew  and just very quickly what this six five though application does is it describes to the missing element what is not doesn't have a written description is the wireless communication was two groups the types of data the first group is those requiring immediate action the second group is those not requiring immediate action but necessary for proper billing insurance only the first is transmitted wirelessly to central control for emergency action with respect to the down of this stored for insurance purposes all that is disclosed and this is on page one sixty eight is that it would recorded in the vehicle recording device for future upload there is no written description about how that communication happened and the rest of knowledge is that one inference is that it was going to be stored in the device motivate motivation to combine the references but also to modify the coast sako to make it look something like r b s which has nothing to do with insurance i think judge the runner when you refer know it's to find two three four and it says basically says operations require extensive processing or perform rituals starts central and that was the predicate statement but it says nothing about the relevance of that to insurance or remote server location but nothing to do with insurance so there's nothing that says close socket is inadequate and in fact there are reasons why there would be problems with sco sun if it were modified because we're not just problems for us that we mention we spell out to in the in the briefing one of the the fact that co sako wants to continue is insurance processing and the type of transmission times that are suggested in not continuous they're not the instantaneous flow of information and second costanza wants to have some warning functionality if speed goes through or a certain level that can't be achieved in the r t f system that talks about when it references automobiles transmissions in terms of hours so there may be some type of identification signal it's transmitted regularly but not in terms of information being sen on a regular basis these are problems with the modification and let's remember also your honor is that it's not just close on ten or d s s again if you go to the chart there's more than the blue in the green it's the red boxes  need to be filled in these gaps how else would anybody get to the point of the claim invention even worse most often are the s s thing to look at the claim and say well i think i can find this somewhere else here's a person of ordinary skill saying it could be done here's another thing these are low we didn't make arguments below about the lack of these elements but we think that together what the claim elements are that's not a proper legal approach to obviousness and that's the issue we have with the legal error of the board in the way in which it reviewed the now to say something about the priority case which is one where we are absolutely that's case sixteen thirty seven just can i ask you one question before you get to that  the one of the procedural issues about new ground of rejection and i know we've kind of agreed to postpone discussion on that for a little while i'm happy to do it whether or not i wanted to i just want to ask you this question suppose i thought that there was something  and we will talk about it there ok from the standpoint of priority and i see i have about three minutes left here the word got it right and we are suggesting that the priority issue is one that was determined by substantial evidence as is required to be and the evidence that was used was very element of the various elements from the six vial application figure for the tact had one sixty one lines nine to eleven and the expert testimony which was credited zappa's which is testimony credited over and you now if you go to the the figures in our yellow pages you can see basically what progressive is trying to construct i'm sorry liberty is trying to construct on this chart at  four which gives the flow of communication and remember the only issue here is really whether there is a wireless communication of data that is the type of data that is required by plans all of the data that's collected by the sensors is shown to go up to the blue line into the box where there is cellular satellite transmissions for radio frequency transmission of data what liberty suggested that there is a second route for some other kind of data heart is a trial and as much as they spend time in their great grief to lay out the distinction while there may be a distinction of type of data point to a specific portion of the the six bible application that says no future upload doesn't mean future upload wirelessly which is how the data is channel but it means in some other fashion so the board got it right based on substantial evidence there is no reason to overturn the board's finding