court i'd like to start with the what we've been calling the dissolved mazhar i p r so there's a controlling set of findings of fact by the board here that compel both the method claims have been found patent all but also the apparatus claims be found patentable now the controlling facts are not disputed and not appealed and that's that the mazhar what prior ar reference did not teach any switch having an oscillating signal configured to cause that switch to gain a signal and create another signal with a plurality from on us the board found that as a matter of found that at no time sally didn't provide a reason to do it within its four corners which is why i found the method claims now that's correct like but how do you get around our many cases including partially monitored the key with apparatus claims is not what what an apparatus dies but when it is what it's capable of doing because i think in  finding that the mere capability of this knows our system of being configured to operate as the claim system no that's not quite right ok he's capable the latter your honor that it wouldn't as a matter of law by declared by deciding that that was enough and one of the reasons of that was if we look at claim twenty two which is one of the apparatus claims and compare that to the method claim that we're talking about where the met claim it's not claiming just based if you look at claim twenty two for example it doesn't claim just a switch capable of receiving a certain kind of signal it's a switch module having a first input connected to a bias and they control inputs connected to a control signal that control signal is being claimed here and it goes on further and says where in said control signal is an oscillating signal again it's not a switch model that can just is capable of receiving such a switch it's connected i'm sorry that is capable of receiving such a signal it's claimed as is connected to that control signal and that control signal is claimed as being is an oscillating signal and said control signal causing switch what was claimed here is a is a switch with a particular type of oscillating signal a particular type of oscillating signal that's going to push that gate i'm sorry push that switch in a certain does this close a switch that if somebody were properly motivated could use an oscillating signal with it to achieve the invention here we're not disputing that and not a modification of the sound that's really the question here i in the board found that that was true the board found that so i would say that it is a modification in this hour because there's nothing in this hour about using vats type of loss leading signal to come up with that type of oscillating signal you need to do something that's not attempted it in its reply brief to argue well it would have been that the question isn't whether it is all we're actually taught that the question is whether it would have been obvious to use that sort of signal in the as our system that came up for the been motivated if i can read a quote so not paraphrasing inaccurately as discussed these are but this is i'm sorry a page eighteen of the appendix the board found as discussed above these arguments the obvious arguments merely show that i'm sorry for the arguments from the petition merely show that mazower could if given the proper inputs produce the required him on x the petition does not speak to whether a person of ordinary skill in the art would have any reason to do so that's that eighteen of eighteen twenty eight found it written decision so again the board found as fact there was no evidence of any motivation to good luck to you just basically it's a way of i think we described a little bit in our brief that my voice and my voice signal it's hard to transmit that because it's a low frequency so what happens low frequency frequency signal gets imparted on a high frequency signal and the resulting signal is what gets transmitted wireless and that's the information saying or the base and that's that's correct my voice would be the basic signal information so think the use of the floor alys is the harmonics is one way of getting a higher frequency signal in a in a more efficient manner so instead of using the frequency that would be you know you can use a higher  but the problem is there's no motivation here to do so so there's there's a math available for figuring out what that oscillating signal should be if you want to creative use the switch to create this plurality from on x a claimed here but the point is in the board found there was no motivation to do so right that's why they found that the method claims work that's right but that qualcomm itself admitted in its appeal briefs the limitations of the apparatus claims are the same as in the method claims for this particular issue and as i read the methods that the apparatus claims are not just the switch capable of receiving a signal the control signal is actively claimed it's part of the yes yes that's correct but i think that from there the board then said but we'll look at the full factual record and the full factual record here is that part of it been put into evidence and made its only version and i i can point you point into their own brief when they discussed the frequency content and i'm referring to the pentagon page to eighty they said thus the frequency content of the combined signal of the forty fifty two chip the purported periodic signal will be and they went on to list a set of calculations now where parker vision erred is they cut those calculations short i'm so they ignore all it's that the frequency time or you just acknowledges to express that newsarama can in fact be used to produce these harmonics and that point when we take that as a given that figure out what the consequences of that i think what you're saying is and what's more they put in evidence to support their own acknowledgement i'm happy with the acknowledged right and i specifically asked him if he was saying the board clearly erred in making the finding of capable of any said no he said is a matter of law with respect to the conclusion that all you have to do is have it be capable of when and it's not disclosed and and this is my next question what is your response to his argument that says you have to look at our claims and our primes actually claimed as part of the apparatus the conditions that would then have to be imposed on his hour for it to to actually produce those  harmonics yes so i think that this point this idea what i view as their sort of mixed method and system claim concept that they're saying that there's this method requirement and their system claims on this point if we accept that to be true then decision this court found a prior art product that sometimes but not always embodies the claimed method nonetheless teaches that aspect of the invention and here that's the exact fact striking again most tech says sometimes but not always nonetheless and bodies the claimed method and then if we look at the factual finding the board made the board made a decision that under some conditions but not all at the weather method step was performed and it said that even if it does not always results it's still sufficient that it sometimes results in order to teach a method claim what about africa have to change the conditions mean clearly what we've said is that those those cases contemplate no modification to the prior and why is changing the conditions not the board didn't require any sort of change in configuration it didn't require any modification to what is always teaches the board just found based off of the undisputed facts which parker again is that it will generate integer multiple harmonics within  within its operating range and so any any mixer or any transmitter has a range of frequencies that can operate under and here you know part of vision gave an example of one of those frequencies they selected a frequency with and is always operating range and that shows that there are in a dream up for how much they didn't need any modifications in the zala to select those frequencies they just selected frequencies within its operating range and that proved that there is no change in configuration it's just how the device is structured to operate it's not it is not about whether it's you know capable of being configured it is in fact configured in order to generate issue the evidence that qualcomm relied on and the board considered was evidence that parker vision that self put into the record so when we when we breach those factual findings the only thing we need to do here is summary of what the board yet so i do think that's a an accurate summary but i think the very the board is making it legal there so the board is actually requiring for this method claim that we show that somebody would fact perform the method starts and this court has consistently found including the must check decision that you don't actually need to to provide evidence that somebody would perform the method it's a not if we look at  decision the fact that the prior our product would in some cases even if not always would in some cases perform the claim method that that evidence and in of itself is sufficient well assuming the prior art either teaches it or  i think that to say that those frequencies to suggest that those frequency is are you know not an obvious set of frequencies to select when you've already given them to the expert to make the calculation that this is a reasonable thing that we're going to present these frequencies to the board you know i don't know that part of vision would stand up and say we selected frequencies that we think are unreasonable to select for an expert  evidence that parker vision itself put into the record to make its argument and we're entitled to do that both in this court's decision and item at zero as well as genzyme the court found that a petitioner is entitled to rely that a skilled artisan would so like it's certainly would be your first activity doing dress their evidence but you could have presented your own right yeah well that's that is correct i mean i think that  in our original petition we did actually make the argument that a person would consider it obvious so if i refer refer to you to page one thirty two which is their original petition appendix fifty one thirty two it says a person of ordinary skill no are would consider it obvious to operating as i was mixer at frequencies that would generate harmonics of the fundamental frequency of the periodic second got an obvious and you put in no evidence of a motivation to combine and now what you're saying simple equations and formulas would be able to use an invalid in that way well i'll say that the argument that somehow supported their obviousness conclusion is invention of the appeal it's not in the reply brief it's not in the board's decision and it's certainly nothing that we ever ever represented or said despite their representations that we did so that these are all obvious reference inputs to use our point was only in their petition they had said these are harmonics and had gone on said if you use them as our system every every calculation from the ma signal will show that it's a harmonic our point was issue which the board already found they had waived this issue this is a ground that relies on the sour philips and mosque this was a ground that was not instituted that was rejected because it was meant to consider clean construction from onyx to the board did not a dot so this round was in part this wasn't my understanding is it wasn't instituted anyways but there's two waiver issues here there's the one there waiver of the obviousness argument which the board agreed with already and found that only did they not raise in the petition but as we've discussed they didn't support it but there's also the when there's not a waiver issue but it's it's too late issue but this  in the final written decision that claim construction was never argued in the petition that claim construction was never put into the institution decision so that we could respond to it that came up after all of the briefing and after all the arguments so let me ask you how do you distinguish mustang to be glad i think pretty easy because in that in that particular case it wasn't just well maybe accidentally something will happen it was think of it this two settings and if you change the setting that it's not going to do what's being claimed so it's a completely different situation it's the it's the normal i've claimed a magnifying glass well my jackknife has a magnifying glass in a blade the blade doesn't infringe so it's not there it's a different situation excuse me of where both were taught and it was a method claim to be honest with you as well so i don't know why it's relevant to reading out functional so called functional language from an apparatus claim in the