a total of six cases before the court today the last two of which are submitted on the briefs the four that are argued to include three appeals from that that trial of appeal  if in the in the context of private networks security can be selfish and security can be ensured for instance physical security but in the context of secure communities and secure pathways over the networks which is what's at issue here for the construction of a secure communication lin a word about that at the at the beginning because i think it's important for the court to recognize that whether you agree with fanatics or not on the claim construction issue with respect to secure communication link number one the board found that there was look at what happened in that proceeding in this gets exactly to the board's point about the fact that this was not a completed proceeding the exhibit the examiner in that proceeding ultimately rejected for an ethics argument found it you can see this reference to page eighty four thirty six of the of the record the examiner felt that the secure communication link did not require encryption and so when you look at the record as a whole yes what they said certainly would have consequences under the phillips standard but does that mean that it is the kind of unequivocal disclaimer that that that this court requires in order to find that there's been a true disembowel i don't know that you can say that i think the record is ultimately ambiguous but as i pointed out at the beginning and i think testimony i mean yes we give the board credit for their expertise but not to such an extent that there doesn't have to actually be evidence in the record to be sure a judge or a mallet a question before the court is whether or not there is substantial eviden only went to one issue there were two concessions that you cite they were only in the two thirty seven proceeding when you acted like the board kept referring to to to for an addict this expert over and over and over and over not you know kind of like the fifty some expansion point sue they're fairly narrow issues they're not particularly complicated issues they are issues like teaching away their issues like whether or not a person of ordinary skill me or somebody with a master's degree and in computer science or electrical engineering and a couple of years experience in the year two thousand would immediately envision a notebook computer when there's a reference to a computer there was the question of whether o didn't rise to the level of skill on the r would be indicative that they understood it was pretty high so it's a judge of l a couple points first i don't think there was ever any dispute about what the level of ordinary skill new york was the question was did you actually have to have the academic credentials in order to show that you had the requisite level of experience second the board did not quote reject their expert i think that's a very important point to recognize if you look at a fifty five and a nine to what the board says is we don't need to fine but in that passage apple relies on on threat or is not a problem i don't think so judge well i think that they are relying on our human reasoning and that's exactly what this court just like it or not you presented an expert that that at least there were spare argument that he wasn't qualified so judge o'malley i think this comes back to look at this court's decision in belgium not a case involving anticipation or obviousness brand was an interference where the question was derivation and there were arguments being made about how about the drawings and whether or not even what these drawings whether they could have been combine what they would have disclosed they were not enabling prior art references and in fact this court made clear that britain is not an examination proceeding this is a this is an adversary proceeding with burdens of proof that a reply couple but gen apple had the burden of proof  board is supposed to be acting as a neutral arbiter even if we defer to their expertise to a limited extent with things like application of common sense how can we say that the board can reach conclusions with nothing but argument in front of a judge judge a mallet first references themselves and the references to the question of for the court is is there substantial evidence there's no there's no test there's no requirement there's a procedural issue there's no issue with respect to having to have an expert the question is do you have substan some fact judge mally again i think that you have a very narrow situation here when you drill down to where the actual disputes are for next makes this argument as though it were socially a get out of jail free card that you didn't have an expert substantial evidence we've heard an argument about whether or not it's the whether or not it is a proper construction of available to the construction argument that they actually waived in that proceeding they didn't raise claim construction you can see that a after opinion or it talks about the references and doesn't say a word about the expert whether there's an expert we're not and i think that if for this court to hold that an expert is required here would be a breathtaking proposition and i think it would undermine the this done by examiners every day who said this is an adversarial proceeding that's true to a point but this is different than what was at issue in brand what was an issue in brand was i said a priority fight in which the public doesn't have an interest was an issue that here is something which the public strongly has an interest and which the core of the board proceeds even if parties drop out coups oh itself of course with all the way the supreme court without any party being on the other side and so i don't think it's an answer to say that it's you know about a patent that was issued by the board and upon which businesses were built and now we're trying to determine an adversarial proceeding in fact pattern is and around well i respectfully disagree that the notion that any businesses were built on any of the patents that are at issue here but but regardless of that the question before the board and the burden of proof is exactly the same burden that is the that an examiner has in any case that's an examination or an ex party evidence what was what was the subject matter not not patentable it's the exact same burden proof and i think if the the court holds on this record where you have what are the lead ferry narrow issues whatever you want to think about this technology in general we can we can dispute whether or not it's complicated in general the issues that the board had before it are narrow issues that are not particularly complicated like is there a teaching away when on the face do you see a distinction between the two thirty seven proceeding in the two thirty eight proceeding with respect to the kind of findings that the bored me you are not that the findings were different but i think with the same problem the same fundamental problem actually  so this court looks still even on the air at the prosecution history disclaimer the standard doesn't somehow made this claim