of the forwards obviousness decision is based upon and claim construction it may be easier if you turn to page one hundred of the appendix column twenty three line forty four i'm sorry could you repeat that site sure one hundred the appendix column twenty three line forty four of clients to optimize the transmission for transmission paths including changing the transmission path from the client to the gateway the border bird by omitting the plane and ordinary meaning of three important claim terms from this from its claim construction number one claim turn transmission number two changing the transmission  number three optimizing the transmission path the turn path and this claim of the creation is preceded by the adjective transmission and therefore the path must transmit data a list of nodes in a network that are not operating and that are not transmitting does not qualify as the claimed transmission path and you're making an argument with an ordinary meaning at this point it seems to me despite different version of the i ninety five weight of thinking about this problem ok the reason why the i ninety five scenario is not applicable to this problem is because there's a fundamental difference between transmitting data and driving on a highway in order to transmit data from one node of the jobs i probably confused things in the place saying i think of this is like the just get back to where i started yesterday this path worked for transmission so but i'm going to keep calling it a transmission path and i'm now changing it because today it doesn't work i'm changing it to a transmission path that works as i incorrect because in order to be a transmission path past the transmit at the time that you change it or optimize the use of the term changing within the claimed limitation further confirms that the transmission path mostly exists because the transmission path or anything else cannot be changed unless it exists similarly the use of the term optimizing within the claim limitation further confirms that the transmission path most success because a transmission path or anything else cannot be optimized or appendix page ninety three column nine line six through a the specification states that the present invention is constantly attempting to optimize itself for the best data transmission and by the way there is no dispute here that this patent has expired so the patent office as well as this court should be construing the claim according to the philips standard which places a lot of questions on the specification at page ninety three of the appendix column nine lines eleven through fifteen the specification explains that the invention will look for a better if an existing path includes a client no that is too busy the traffic of data packets to this is a quote from column knowing line eleven the traffic of data packets through a particular client modem may be lozenge such that it is better to route the data from neighboring clients through other clock it's the specification also explains that the invention looks for a better if an existing path includes a link that is less to robust or slower at column knowing the line sixteen through nineteen which says as follows some radio links may be less robust or may be slower the other way such that the optimisation may result in a routing of data around the last robust or slower links column eleven of the patent page ninety four of the appendix clients that have a better idea shorter path to a server now the board's flawed construction of changing and optimizing an existing transmission path requires reversal of its ruling that the prior would have thought this limitation the board in emerson relied on birch fields disclosure of finding paths when a repeat of fails or a new terminal enters the network relies on burchfield teaching optimizing the pads when new terminals are added to the network forget about the part where the repeaters fail but the portion where the board focusing on burchfield disclosing that when you add new terminals to the network path get recalculated and those whom the board is there for say there might be more efficient paths from one particular terminal to the base station through the new terminals that have been at it oh i understand your question as far as the city there's only two situations network and that's number one and there's no indication and birch feels and mischel ization routine that after it calculates a path to a terminal that just entered the more efficient have are are found once a new terminals are entered so then you can hop through the new terminal instead of the preexisting chemicals is that a fair understanding at least of what the board thinks for a field does teaching i think the final written decision is a little bit ambiguous on that point but the one thing i remember from the hearing is that so you're saying to me it's not so clear to  for lying on when roads fail in birchfield you can redirect the bad but then the other rationale is when new terminals and new nodes enter the network then you can  reroute through those new nodes if it's a more efficient way of doing it that you're right those are the two basis on which to the board file that this claim limitation would have been obvious and you have to overcome b rationales correct and in the rationale where a terminal fails there's no existing transmission path through that terminal and with respect to a terminal entering the network there is no existing transmission path through that terminal because it has not yet entered the network and there's no indication burchfield which during the hearing the board reminded me that they don't take for instance expert testimony to be true on its face that they could actually go back to look at the reference them self's in fact this was a pen dix five sixty nine line fifteen judge g n a t said we could read the references ourselves and this agreed with him meaning the x word so when you look at the virtual reference itself on the pages side and in the final written decision and emerson's papers there is no indication that after terminal enters the network and a path is computed to that terminal which does not qualify as changing an existing path because the path does not yet exist there's no indication that it will oh with respect to the boards i ninety five on what i was attempting to say before is there's a fundamental difference between driving a car and i ninety five and a transmission path and here's the difference in order to have a transmission path between one radio frequency node and another both radio frequency knows have to be operated they have to be functional if they are not functioning if one is a transmitting receiving or the other is not transmitting or receiving you cannot have the transmission path between the two but in the case of driving on i ninety five evil between the patent office in new york city which was the example that the board ga up even if the power was cut to the entirety of new york city and also cut to the patent office to where neither endpoint was functioning the road would still be there and that's why there are two reasons why it was inappropriate for the board to bring up the i ninety five theory because it's totally different than the situation you have with the claim the pension number one and number two it wasn't raised until the and the board should have prevented everson from doing it but the board actually did it themselves you are into your leave at all times you can use it now or save it i think i'll say thank into the goes arguments fail for several independent reasons not only is the board's claim construction correct as a matter of law but substantial evidence also supports the board's finding that these limitations are met not only under the board's construction but also under it goes starting first with the issue of claim construction the board probably pointed out that the plain meaning of the term change in transmission pat is simply the transmission path that needs to be changed as you are pointed out a transmission has existed yesterday it was working yesterday and today is a longer working and when needs to be changed that would meet the claim limitations is there anything in the specification that talks about moving away from a path that is at the moment of moving away not functioning had all as opposed to not functioning very well comparatively not functioning compared to when you're moving to  so they particular i think it's was a columbine material that was referenced seem to be all about french mr transmission passing the time of moving away or function yes i think the question i think of if you just continue reading down in column nine this is that lines fifty one to fifty three you know i'm there says however even if a radio modem is turned off there a meeting clients will reroute through other clients as will be discussed subsequently that's precisely that situation where that particular node in the path is no longer working there needs to be changes to the paths because that node is no longer working and that's consistent with the rest of the disclosure there are some other form of the same thing simply changing a transmission that lets that support that interpretation of the board had a supported in the specification itself and in the very neighboring passages that that it goes council citing and there's in to the next issue though of whether or not the board's findings were supported by substantial evidence judge janet as you as you correctly pointed out this portage not only under the words construction but also under it goes construction at appendix twenty five circumstance and that would mean the construction under the under the board's proper interpretation of the claims but also under it goes interpretation of the claims you had mentioned that there were two places and i believe those in council  now is are there two different theories here the second theory being on appendix i think it's a twenty four paragraph there are still constantly performs dynamic routing changes that involve optimization deciding to purge feel at pages two point seven to forty eight which i believe corresponded twenty five thirteen and terminals come on board the network then we're going to see if it makes sense to change the existing pathway over and create a new last partial paragraph this is the control process and this is the control process for the station so its the control process for the station is another independent process for initial as in the network and causing dynamic it's making these changes dynamically so as they become new better routes become available those changes are then made a trip to reroute according to the minimum distance route and with so that i sooner that that was the notion i think it's this this whole discussion on two forty seven into forty eight and i think there's further particular passages that are pointed out if you look at at age twenty four the notion of relabeling if you look at the right hand column at the very top it's talking about the station using search packets arriving to generate the kind of to the matrix but also to create relabel so as new better pass become available relabeling takes place providing the individual nodes with better connections more minimum minimum distance connections back to the station i'm not sure it matters if you're right about the claim construction  the claim is about two existing functioning transmission ass and a choice between them and not at all about choosing a functioning path over a non functioning so where in this two forty seven to forty eight etc is there a reference to making a choice between two functioning the repeater terminal propagation connectivity so as you have is propagation connectivity simply will it get there or is that a more non discrete non binary measure of how good the getting there is passages are for into making those dynamic changes as the network set up changes i think in the example the judge then used earlier was when a new terminal would join the network the station to optimize and under it goes construction i'd make a choice to choose a new and better minimum distance route if you had also alluded to the issue of the with the i ninety five an allergy that was simply an example where the the board is probably using an analogy to identify a flop and it  working today and need to change why doesn't the claim term up to mind just inherently suggest we're looking at trying to improve an already working situation and   looking for minimum distance routes it's a repeater fails for example at a particular time right if ever a brief repeater fails then you're you're going from nothing to something that functions at at that particular time you're going from nothing to something a puncture but it may come back online it might have moved i mean these are there is are dynamic networks and there are dynamically making improvements and changing in addition to the fact that virtual different optimization criteria that can be applied and as as personal or points out as a board probably found that's done dynamically that's done as as the number of changes over time and you would need to relabel particular no extends over to the second column of that paragraph is speaking about dynamic running changes in response to changes and repeated terminal propagation connectivity or repeater failures that means that this paragraph pertains to when there is not a connection and when there's a repeat of failure in which case there's not a connection then either when it talks about the connectivity matrix there's no dispute in this case that the  ectivity matrix and burchfield does not have any paths in it instead it just talks about whether a node it has a connection to a neighboring know and so just because the connectivity matrix may be updated static that it happens on the fly as time is going on right so tom brady makes a plan but then there's a blitz so we dynamically makes a different plan throws to a different receiver that's all that that term means and then you figure out well and what context is it and you continue reading on that paragraph and you say it's it says it's in the context of repeater or connectivity failures so in those cases the path does not exist and you're just creating a path and with respect the claim construction if i may own this is my cell phone and i know that this is a functioning because this is the battery the batteries are not in the phone it requires electricity to run and it's not functioning there are no transmission paths through this phone that doesn't have a battery that can be