limitation occurs at step s twelve or waiter but express anticipation cannot meet cannot be met and was all claim limitations are explicitly disclose and a single reference silence is not disclosure silence does not allow for gap filling using testimony from an expert or from speculation for the board for this reason the anticipation rejection of all of the challenge claim should be re moreover claims eighteen and its counterparts claims thirty six and fifty four were also found anticipated by ozment based on a claim construction first articulated by the board in the final written decision that was contrary to the claim construction used by both parties throughout the trial this is a violation of section five hundred four of the a p a by the board because neither party had notice or opportunity to address this new quaint construction this a p a violation is not harmless because the new claim construction read out the processing operation from the requirement of modification in the claims allowing the boundary on a map displayed by a user for this additional ways and claims eighteen thirty six and fifty four are patentable and the board's anticipation finding should be  so your honors this is very similar to the night that decision from this court and others where we had express anticipation and the reference does not show does not disclose the missing element the missing element here is displaying a map to a user it's in all the claims and that is never ever the reminder profile as it's called is set forth in terms of spatial relationships or temporal relationship but it doesn't say ever in the patent that what is shown in a day or eight b is ever displayed and we don't know if any information any information whatsoever in any form is displayed to the user all we know is that the profile decision we have entered the slippery slope we submit your honor of obviousness because this is expressing anticipation and under express anticipation there is no disclosure and if there is no disclosure the board perhaps should have gone to obviousness but they did not so we submit that the expresses anticipation of rejection should be reversed was it in by not raising it until now it's been seventy eight days since i asked for this handed down no notice or opportunity to address this issue occurred in till today the sas issue is not jurisdictional as stated by the but since they won below on anticipation they're going to wait until their argument and if they if they sense that you are going to reverse on anticipation of course there were a success as the basis for remaining but that's unfair to us if they really wanted to do this that they should have done it they should have done it by now so that we could have addressed this in terms of briefing before today's oral argument you would say that they have a lot of fa they have a lot of sasha and that's going back to judge morris point white did they would you know should they have done it sooner well in nike versus adidas they did exactly what i'm asking for should have been done and going to the obviousness point the judge more rays were not conceding that they can beat the missing element requirement under obviousness even if this case is reminded  the board because frankly they can't because the point is the missing element is not in the primary reference and we would argue that anything else that they would combine it with would not be permissible to supply the missing element if displaying the information was what i was meant was about they would have stated and to allow an expert under the rubric of construing a term or interpretive specification to supply the activated the profile editor enables the user to edit his reminder profile later in paragraph thirty one of the editing can occur via a man machine interface such as a display in keyboard or any other suitable input output which the board found were maps and which event does not contest or maps ozment includes references to a display a man machine interface such as a display in paragraph thirty one on appendix seven thirty four and a touch screen display also in that same paragraph in sevens in appendix seven thirty four in other words the word display is not true the word display is actually used furthermore in paragraph thirty four there are references to highly complex geometric boundaries such a rotating rotor and in that situation there were signals that were used to invalidate the wrote the rotating rotor using statutary statut stationary signals using the reference currents are you ice of b and i w but those were not found in the rotating reference so those were supplied and added to the rotating reference in order to invalidate that that patent that's not the case here in this case dr ryan didn't say something was missing he didn't add a limitation he sa reading the express disclosures in austin and if the cedar would understand then to teach the display of a map and that's not the same thing what's actually happening here is not the addition of a limitation but rather disagreement with dr ryan's conclusion and dr is that taken together ozment displays a map and that's what the board that is a display of a mask with regard to an additional argument they they made which is that that that there is no display because the profile editor is active at s step s twelve before the information is necessary to generate figures a p is available when nothing in figure one located at appendix seven twenty four states that a display does not occur it could still occur and frankly looking at figure one and as step s twelve in isolation divorces it from the specification of all segments which as i mentioned before talks about editing it talks about of styles talks about a display it talks about a keyboard it talks about figures eight a and b which are not contested to be maps and it talks about complex geometric shapes so read all together with dr ryan said was a to see to would understand those disclosures to mean the display of a map moreover there second on the issue of the s a s issue just to address that briefly judge more our position is that we did not need to raise it before and if if if the board does not find that there is substantial had not before this point after that that is that is correct your honor i do not believe however that there was a requirement that we need to do so by now but you are correct and i answered your question we had not yet requested it with respect to the second issue which is alternative argument so i'm trying to understand what you're saying what i'm saying is if if your honour's do not find that there are substantial evidence that we would request that the issue be remanded to the p tab two in light of sas to consider the other grounds well i your correct that we did we did not ask earlier i am i did not read sas as requiring a raising the argument at a certain point but you are correct that we have not yet we did not yet rated this that is correct order with condition don't read sas that way i understand that that is a fair point however our position is that there is substantial evidence that the record is clear that there is no need to reach the sas issue because osman teaches the display of a map and that's what the board found and dr  position on the second issue which is whether or not the board in purportedly construing the term receiving modifications violated the a p a our position first is that there was no construction the board simply said that they were proceeding under the plan and me however even if there were a construction that is not sufficient to create an a p a violation we need at least two other things we need a change in course a midstream chang course and that the parties were not on notice and did not have an opportunity to be heard neither is the case here in the institution decision the board did not construe the trial which means that the borders proceeding under the plane an ordinary meaning in the final written decision if you take their view that they were proceeding under the plain ordinary meaning as a construction that's exactly the same position there was no midstream change it's identical secondly this it was on notice if the party who does not request claim construction is on notice that plain meaning of the charter term applies now they actually go on to say that they have consistently argued that modifications to the claim down three were received and processed and if that is their position they took that position prior to the institution decision the institution came out they knew the term wasn't construed they made whatever arguments they made they were not surprised that the board hadn't construed it previously so they cannot claim surprise and the fact that the board potentially according to their argument construed the term for the first time in the final written decision is not impressed miscible the issue is whether there's a midstream change and whether or not they have the opportunity to be heard and on both those scores the answers are not in their favor but even if there was an a p a violation the error was harmless because the board's construction is the correct construction what they said was that receiving modification means receiving and it does not include processing there and that meets the broadest reasonable interpretation standard that claim language does not require that receiving includes processing reading the claim furthermore the specification has be displayed with the current location indicated by a marker and a drag event dragging the marker to an adjusted location may be received right after that in another example a boundary of a region within which the alert may trigger may be displayed and modifications such as dragging the boundary may be received and processed so the specification draws a distinction between receive and process and that's exactly what the board found furthermore there was no disavow a and limitations from the specification can't be employed to limit the claim here the patent or specifically said receiving modifications to the boundary were the board interpreted to mean receiving now in the reply vivan makes an argument that respectfully they didn't make before which is that that interpretation is inconsistent with claims one and claim eighteen where where vivants position is that it would make no sense in receipt of her see only met receipt and didn't require processing but claim one simply says receiving a specification of a first location that could simply mean receiving quirkiness that has nothing necessarily to do with processing and similarly in claim eighteen which is one issue of the claim says receiving specification which includes both displaying a map and receiving modifications so there is no requirement that processing occurs even under the claim language so the correct construction as the board found assuming its construction is receipt of receiving modifications without processing but even if they've been is correct that the construction should include processing that alarm dot com should still prevail stylus or with a touch screen as well as a doctor on testimony confirms that it's a seed or reading ozment would understand not only the receiving of modification but the processing of modifications so even if there was a construction and even if there was an affirmed however with regard to the claim eighteen issue in particular if the court does not find that there is substantial evidence in the event that the can for the construction was incorrect and that the parties didn't have a chance to be heard we would request that the issue be remanded to the board for consideration because neither party actually addressed the issue set forth in our in our underlying papers so the proper recourse is remand for the board for the board to consider the issue and on the point of waiver vivant makes the point in its papers that alarm dot com waive the argument of re man on the claim eighteen issue we respectfully suggest that either both parties waive the issue or neither party waive the issue because below no party address the issue claim construction we don't think there is an error here but if there is an error and you cannot find that there substantial evidence in the record then we would request again as we did in our papers that your honor is my calculation is i have six minutes it's not normal for me to have a rebuttal so let me address four points first of all a display that's the display over there your honour's we don't know what's being screen just because you have a different computer display doesn't mean you're displaying any information to the user which is required by the claims you could have a blank screen or you could be watching a world cup but the nothing in osman that discloses a map there's not that uses the word map there's nothing in ozment that states that you display anything to the user when you use the profile editor you could imagine and we're speculating now so we're now in obviousness when and as my colleague kept taking us to throughout her oral argument i said that you could speculate all kinds of things by picking and choosing from the o disclosure but the reality is that the claims are way out a protected method and that method is not weighed out it is not disclosed in onsen so we have no idea if any information is being provided to the user the user may be able to import information maybe in the form of equations data who knows what are we to make a paragraph thirty one  and i read the profile editor enables a user to edit his reminder profile or even multiple reminder profiles by a man machine interface such as a display and keyboard typical computer or any suitable input output that can ism such as a mouse or stylus with a touch screen display of the light again nothing nothing and usman talks about displaying information to the user in the form of a map nothing it's completely silent and what we're doing is filling the gap this is a classic anticipation the scale of the case and we've heard from counsel that they go through this over and over and over again that dr ryan says well dr ryan is a professional expert who's had many of these proceedings and he essentially weighed out an obviousness argument in the record but that's not what's here what is here is express anticipation and therefore we submit reference to figure eight a n a v and if i misunderstand his question i'm sure he's right but i thought that i was understanding him to ask you why shouldn't we assume given that and the board profile editor is in fact displaying and what you can then use a keyboard or stylus or mouse to modify or a touchscreen display to modify your problem is that experts said that was the case then we were reviewing this fact finding so i thought i understood judge laurie's question to involve paragraph thirty three which links biggers eight and eight the into the paragraph thirty one disclosure of the display keyboard stylus or other means of modification or first of all your honor let me take it apart if i may figures a day and eight b are internal internal representations of the qur'an matters of the reminder what in because the patent doesn't state that a date can a beer ever provided to the user so that they're not if it doesn't state it then you also can't say there are only internal representations you don't know that know anything you don't know whether they're displayed or not we can we do not know if they're displayed or not your honor that's the point their expert said that they were and they talk about in paragraph thirty one and a display in keyboard for the profile which is going to be activated neighborhood to be edited by the user and that points to paragraph thirty three which links intersects in figures a day in eight b i don't understand why there isn't substantial evidence for their experts testimony eventually he didn't fill the gap he said this should be interpreted as these items being displayed that that's what he understands to be disclosed from the records by the combination from three hundred thirty three you're out of there's no hawk for what he's saying he's speculating the whole point about this case it's all based on speculation that it matters displayed to a user it's never found it's never disclosed in osman if we can put an expert on to say well ok i read this and i'm going to tell you what a person of ordinary skill in the art would say reading this and i'm going to tell you that it's displayed to the user even though it's never said that it's displayed the user i mean the user hypothetically could him put numerical values could import equations but none of that is ever displayed to the user in the form of a map is required by the claims we're making we're piecing all this together under express anticipation if that's what was intended by the board it should have been instituted under obviousness and therefore this case should be reversed and they have forfeited their sas argument works when you have an reference that is silent thank you