allowed our compilation file to capture both all the episodes in the series as well as new episodes as they became available and there are a number it think we need to talk about the way our issues because i have to say you are he will always argue waiver but these are pretty strong waves are all so all help me out here where did you raise these issues with respect to these claim constructions with or certainly are there are a number of places where and i'll take them in turn if you look at the episodes and  episode because there are two primary components to the issue of the construction of series of episodes one is whether they can all come out at the same time despite the plane claim language and the other is how related do they have to be and we repeatedly distinguish compton and patrick c b c on the grounds that all of the segments both came out at the same time at a given of the claim you might come to a broader meaning of episode but the claim warning which in plain thirty one makes it very clear that episodes and series have to come out from time to time as new episodes in the series become available it describes the compilation file as including new media files which are the episodes themselves which come out as they become available and it describes a episodes become available instead each new episode is represented by different table contents page at a different you are and we argued both in terms of the compilation file and the series of episodes and we also at the oral hearing if you look at eighty seven sixty seven we specifically say in response to questions by judge sneddon i apologize if i'm mispronouncing his name and then you have to go back an ask another thing about the theme judge where you were asking about theme you can ask yourself question does it matter in which order you watch the news program that if you watch the actual first is that better than watching jupiter if it doesn't matter then it's probably not an episode in the series of episode there is no relationship to the order that they are in and that's where you specifically arguing and if you look at the next page she goes on are you can watch them out of work or if you like your armor but there are a given or two episodes typically for example if you jump in and house of cards which was a common netflix program at episode twelve you have no idea what's going on to magically you you have completely lost the thread that's because of a series of episodes especially in light of this claim language has an order it has to come out from time to time as new episodes in the series become available and he goes on to argue about the twilight zone because the second part of the argument is even if they're coming out over time are they the y really related it's not episodes in a series if you're talking about two different television programs and so for that reason all of these arguments were raised  w in terms of why there was no substantial evidence for this prior are anticipating or rendering obvious that morning and there are particular arguments on a waiver i mean you probably also have to step back and ask if they they don't have standing to raise these arguments they and are they even in the record of at this point and other words if they don't have so and we go through this in our reply brief on on page twenty and we also disputed compilation file specifically first in the response if you want to look at the eighty six sixty three and sixty of updating a file that at and seven updating a compilation file it created a new file every day and you can find that in the petition at eighty five sixty which is probably why it wasn't more extensively discussed then when they raised it later when they raised it later and i'm sorry just just to go back if you look at that internet c n n newsroom describe all the elements of playing thirty one except an updated compilation file instead the designers chose to create a new compilation file each day  conceded that this was a difference in the prior art from playing thirty one but we nevertheless argued it also when we got to the oral argument if you look at for example at eighty seven sixty and seven sixty one dispute at this time with the construction we gave the compilation personal audio responded yes here with either the c n n or c b c reference since there is no compilation file each day is a brand new date in the c n n news and each day on the radio for the court series which was part of the patrick c b c reference and our show written in the statements of the same show they contain segment information your honor and they also lack any compilation these arguments were raised to be well they might have been phrased a little differently they might not have had the same clarity but i do not believe they were waived these were all raised both in some cases both respondent and they were certainly addressed at oral argument as being differences from the prior art and i believe that those differences result in new the board's decision not being supported by substantial evidence whether you look at it as a claim construction issue or whether you simply look at whether the prior art meets the plain meaning of this  at the same time are made available at a single point that link that information is never updated it's never changed and then the next day for that day's new cat newscast honor and that's the that's the big difference is they just every day a new u r l with new caught that they never add the new episodes and the old episodes together in the same file that's which is making new content available at a different location that that had been done that had been done not only by by c n n not only by in compton but it had been done by others which we described in a specification this was something new the newness of it was keep going to the same location and continued to get the same format it content in an updated f and that's why the obviousness decision is incorrect as well and it was also argued below which is that it is not obvious to change searching a site for content that's a magica related and having a file where that content as updated to the file by the system that's those are two different things and there's no  that c n n and patrick c b c operated in this different manner which is why when they first filed their petition they didn't even claim that c n n and compton anticipated the claim thirty one of that the board resolved look and fundamentally we believe the reason the arguments are different is the person a lawyer is expert needed that we were correct on the arguments that they were making in particular the argument that we've just heard here was focused on the idea that there was no waiver of clean construction arguments about episodes and series of episodes because an argument was made below about whether or not this compilation file was updated well in episodes and series of apis or i want to make three points when i make a point about the claim language but the specifications and i want to make a point about the examples that their counsel used blow in arguing to the board and start with that but the house of cards netflix show is inconsistent with the position they're taking here today about episodes being issue over time because house of cards like all netflix produce content a season is released all together at the same time certainly have the the c n n reference describes a newscast for an educational newscast it's fifteen minutes walk and it typically was broken into three to five new stories and those segments were each several minutes long into a series of episodes is so that when you have this is a pattern of talking about here when you've selected one of them that in indicates an interest in the complete series and you may then automatically get the complete series were you can select the entire series to get the episodes within a series the pan uses as examples of episodic content news stories on a critic your topic uses the example of news stories about america's cup races it uses the example of world news local news sarah and so the pattern itself describes the type of segments that we see in the prior are as and i can give you that what about your friends argument that the compilation file is an updated with prior segments it's only updated with an out of range of that same day's segments and then that it disappear it doesn't disappear but that is out but it's true that the particular file for a particular day changes only that days segments so the way the prior reference worked is there was the broadcast of the show which was automatically recorded it was also they captured a file which describe the contents of that c n n put out by email and there was a program which automatically parsed the file and connected to the video and it automatically every day evidence which i believe we presented both arguments the argument that if this were if this was not considered to be updating it was none the less obvious i believe the part that he quoted was the has to be related to one another so that updating would only be if you updated the stories that you told about yesterday is that what you heard him to be saying what he would it's not what i heard but i'll address  nonetheless or the reason that would be true here is because it is the new version of the c n n newsroom show just the same show that's being broadcast daily and you have day one day to day three day for being create where our table of contents file which is the compilation file a question for that's been put onto the internet if you look at the claim language i can explain i think th day when the c n n broadcast occurred storing an updated version of a compilation file creating an updated content study to m l table of contents that contains the links and the descriptions to the segments of that sho the compilation file is the mechanism that identifies the content that should be provided to this audio player and crucially at calling seven of the patent at lines ten to nineteen  explains that this compilation file is for the upcoming session it's for what the person is going to listen to  it's not being used as a library there's a separate feature if you look at the figures you can see there's a a library of all of the program statements that might be available to do be distributed that is not the compilation files it's not intended to be a comprehensive listing of everything that has happened in the past it's intended to be what you're going to get in the future and if you look at calling i tunes lance sixty five can be used to ensure that the subscriber has an opportunity to hear episodes that may have been yet in other words when you read the remainder of it's what it's explaining as you had downloaded one compilation so you had episode i want to point out one more point about segments in particular new episodes as new shows become available and updated contents are usually i'm all file is created at compilation file squarely meets the requirement of describing the currently available about one three it describes what new stories could be considered a serialized episode and they involve the same topic would have a series of segments that had nothing to do with one another there was no order to it you could read them in any order and they had nothing to do with one another and then the next day you'd get a bunch of new segments because the program was too big to just fit on one u r l and those wouldn't have anything to do with the day before there's nothing serialized and there's nothing topical a art and that's why the jury that looked at the same prior art decided that it and that it did not anticipate  thirty one of this pact and that's because the plane wind would requires a compilation file with multiple episodes in a serious that have something to do with one another and that is never present in the do there's no mechanism for giving you new content on that same topic which was the point of this patch it was to allow you  something that you were interested in and then to continue to get serialized episodes on the same topic at a single file you need to go searching around you didn't have to go looking for it you didn't have to do all the things that were known in the art instead a single file would be updated with multiple episodes in the said series it's not a completely new series which is how opposing counsel is reading these claims the claims say if you want to look at him there are seventy five column fifty line fifty eight approximately the a in this compilation file has to describe currently available episode instead series of episodes meaning the same series of episodes the same related topic and it's a compilation file because it's taking what was there before and it's adding the new stuff it's not it's not creating a new file it's not creating out of whole cloth something that wasn't there before to different topic and perhaps the netflix series wasn't the best example to give he was not giving it in terms of anything having to do with timing he was giving it in terms of having to do with it having to be the same power you can't just say if you look at the c n n news you and you look at the example you have you have articles on jupiter's moons and garden vegetables and they have nothing to do with one another and if you go to the next you are all the next day they won't have anything to do with the stories that you found at the u r l before there are not as serialised see once it's not episodic and this issue was in front of a jury they already decided that c n n and compton didn't anticipate or render these claims obvious and the board's decision at most a summary they give no