peter have failed to properly construe the three three nine patent claims to stage computer implemented process and system how the computer processes the frame data was critical a computer process in the first stage generates data defining a region or income seven an optimized matrix that will ultimately be transmitted to a receiving system for generating a display and before transmission a second stage process has received that region defining data and selects pixel data the specification describes the advantages system one hundred determines the up motivator for transmission based on the end use of data further the number of pixels to transmit can be decided on a region by region basis within the frame work frame to frame the picture selection system can be adjusted in any number of ways whereas in spriggs the prior art a to put this all in context so i want to make sure i understand the context and the dispute here is that the bore is that it's not required that the analysis just be a separately identifiable component from region that there is knows that that's the whole gist of the of the  minute i'm not telling you i'm asking you if that's if i'm right that they're just a few days in with a theory they must be separately identifiable components or structures am i right in my understanding or i'm just trying to figure out if i'm same computer i followed up by saying but they have to be separately identifiable process these within a computer and they took took that as a concession that they were that  separateness wasn't wasn't required but but didn't afford to consider those two separate functions in its analysis they didn't talk about the separate functions and it's not clear to me  how but it's not clear that they identified a separate pixel selection process that corresponds to the clients they seem to be satisfied that everything was there the pixel data came out at the end that region data came out at the end but they didn't look to the process and how you get there this is a new process and the process was a two stage one which produced the regions first the region data and then selected pixels from each region and they were not diligent about finding a selection process that performed as claimed so i m argument that they that they failed to recognise some sort of timing requirement that one needs to be performed before the other i don't overturn one before the other certainly it is required yes and that was not clear from here it was not clear that one identified a region that defined a region from which one was selecting pixels understand that this is a data reduction process we're trying to reduce the amount of data that's being sent for the piece selection process involves picking individual pixels from a choice of multiple actual data but it seems to me that they they were certainly aware of both of these functions and their analysis includes a discussion about both of these functions and the conclusion was that the references sustain the rejection  why is that wrong it's wrong because all they said was that selection happens somewhere in the coding process they talk about their expert who said there are certain steps that do region pixel selection but there was no if i don't even know what they're pointing to there and there they pointed to different things different times so in certain places they've taken on this new approach that's not present in the petition in which a pixel which is a coordinate and its values and they've dissected it and they say selecting the pixel data there's no selection there with that address is pointing to a pixel and it's retrieving the pixels value so there's no selection and moreover process of sprigs producing coordinates and values in the petition they refer to the end result as producing region data blocks to find both coordinates in the values they refer to the same thing for the pixel selection coded to put these values are the when it came to the reply after we had demonstrated that they had failed to show and in a separate process for generating region and and one that followed that received the region data to supplemental declaration from the expert who completely changed the approach that they were taking so in the in the  determine whether that's going to be a region it doesn't interpellation based on the corner pixel values and compares that with the actual values in determines if those who want to pixels are going to be representative if it is it's defined a region moves on to the next so it's not supposed to find a region that you can you can go on to pixel selection but there is no pixel selection following defining a region because no other pixels can be selected only the corner pixels have been approved for being representative of the of the block your due process argument as i understand it is predicated on the p t o having violated c f r forty two point one two three b but it relied on a supplemental declaration i know that you raise other issues as well but that seems to be the crux of your issue and as i understand it your opponent explains that you never made this argument below and that it's therefore waived do you have any response and yes there was a teleconference before the board we asked for the opportunity to motion to move to strike the declaration and they refused us any opportunity to file such a motion for we had no opportunity to submit any reasons we asked for the up through to submit a declaration in response to the one hundred twenty five paragraph declaration there are telephone conference you made a number of rejection a number of objections including one based on forty two point twenty three b so you never mentioned forty two point one twenty three why why is that not waiver in the telephone conference you requested to make a bunch of objections they rejected your ability to file paper but you never mentioned it did construed the claims properly under the broadest reasonable interpretation standard term note which my friend didn't even attempt to deal with and in talking about his his claim construction or he would secondly the board's decision is supported by substantial evidence and thirdly whether or not there was waiver there wasn't a due process violation here and we start with the claim construction argument that my friend raised sprigs is actually relatively simple to explain it in column two it refers to operations one two and three operation one defines region and it says that if that region is satisfactory then we're done and we can transmit that and if not we move to operation three and we might repeat operation three until the frame is subdivided to the point where it's ready for transmission and that takes place in operation t so what my friend says is the analysis system can be found in operation one working with operation three and what my friend says is the pixel selection system can be found in operation two that's effectively what the board found both in its initial determination to grant review of this i p r and in its final decision and such procedures proceed i think you pointed out that there was no you didn't see a distinction between the initial  the an institution decision excuse me i need to get my id correct here the institution decision page night appendix ninety nine tracks exactly and that even says here to page ninety nine that google maps very clear and it's in it's established predominately by the legion of cases that we've cited in our brief led by the applied medical research case just because there are separate limitations that's that doesn't create a presumption that there are separate components in either an accused device or in an invalidating reference as we have here in fact this is obvious this takes us even farther afield from that my friend said that his best argument from not as described in the gallus invention but the gallows case on which my friend for life so they are not described in the in the specification in any way as quote v invention or this is the point of the invention not at all  think one last observation is that my friend moves back and forth between calling this a system or a process this is a system claim it's not a method claim and with regard to  what the analysis system fits the selection system do that set forth in operations one two and three of the the reference with regard to the due process objection i think that the argument i've just given with regard to showing you where the argument was made where it's been maintained should satisfy the courts in response to what my friend has said but to the extent my friend is saying that there was new evidence offered or a new declaration this was just an elaboration on what he had already said while it was that  no opportunity to be heard they clearly had no choice but they did they claim they didn't have an opportunity to be heard i want to point out to the court that a page a one twenty two the board assured that if there were improper arguments and evidence presented with of the of the expert they got to put in mr reply they got to make a written objections and they got to give oral argument all of those were adequate in the belden versus burke to case from this court to avoid a due process problem there's no due process problem here and if you look at page appendix twenty six where the board has the guts of its decision on this issue you'll see that everything is rooted in either the patent or the original grand after operation want to determine that the that the the block can be in the region the operation to states the addresses and values of the points a b c and they are transmitted that's what it says in the pa and that's all that happens is transmitted there's no selection those pixels had already been approved in determining the region so that was not a selection process claim seven is another claim it's written a little differently and it deals with an optimized matrix data one has to optimize the matrix data before selecting pixel data optimize is in the past tense it had to have happened in order to pick the in order to be able to go to the next step of doing picture selection based on optimized matrix data unless that's been optimized and determined to be a region  claims are not satisfied so their attempt to look at pulling out the corner coordinates as region data before selecting a retrieving the corners pi those for propose kroner pixels and and and and so that's not a reason it hasn't been determined to be optimized it's a region and it certainly is not an optimize matrix as it has not yet passed the