first it allowed i v to make a new claim construction argument at the all hearing regarding the term feedback that is never been presented previously in the papers or otherwise in violation both of the control and provisions of the administrative procedures act and and the p tab was saying that that the notion that it could be indirectly fed back was was different so i don't see them making a new construction i saw them conceding somewhat on their original construction that's at absolutely not and here's why by the time we got to the to the oral hearing there was an old live issue about construction of feedback remaining it was nothing there and if you look at the reasons that they gave at eighty articulates at the petitions stage and isn't free to reconsider the construction or the precise construction that is appropriate during the actual not without participation and full notice on the part of the parties as to what the various constructions are that are being considered that's the main the main point here you don't satisfy it with respect to the a p a which control shit or if you're doing all of this in the dark we had absolutely no idea what part of my premise you cite the specific parts of the record and say that there was essentially a stipulated construction and when you go look at those portions of the record that's not what it said no we did actually shows that there was clearly a debate that you were still pushing this direct feedback you rather with respect by the time we got done with our patent holders reply right there was nothing in that passage known as reply in the section that was more point construction that had effectively verbatim and that was in the paddlers response right we then got the last word with respect any quaint construction issue and our reply we said nothing and response to that feedback position  we were not contesting the issue and the board understood and you can see doing eighty nine of the three raring you continue to argue that the feedback had to be direct i'm sorry during that hearing you continued to argue your original well even but even if the construction became more precise during the i p r after the petition i don't see how it's either inconsistent with transmitted back transmitted back is what you allege everybody agreed the construction was in the principle everyone was operating under i don't understand how the board's construction it's it's nuance of what it means to transmit back is at odds with the transmitted back language that everyone agreed on i guess they don't see that arguing for a construction that differs i don't see you lacking any notice i don't see i don't see the substance of your argument if it's because when the board came up with this new construction that we had no notice of what they did was they construed for the first time the where of course and wanted ever asked for the where of course to be construed are fed back and feed back to the arithmetic controller that appears at a fifty eight of the record they went to the final construction which read where in the output value of the multiplication unit the addition to the sign of version units for feedback are fed not without someone giving them all of the parties notice that this was going to be an issue at the final hearing i think of the delegates and your attitude just want to answer your question with what caused the problem here is the components e g latches and will be pushed the why isn't that exactly the same thing as transmitted back because transmitted back doesn't say anything other then the information is going from point a to point b  finishes changed then the information is not being transmitted back if you change the information whether it's you remove a field in and data that you're sending back you add a field you change the value if you make a change to the data and then send it back it's not that data is not being transmitted back so why i don't understand why the board's tweak isn't exactly the same in different words as what they had held from the outset in the petition stage what both parties and we know what you would argue for is ready for a direct connection but what both parties ultimately acquiesced in i just don't see the substance of any differ between what the parties acquiesced in by that stage in the procedure because of what the board help if i think no different right so transmitted back what gets added in the new construction is the term function based on nothing but a boy or argument there is no record evidence he way it's i understand it that's not the way the supposed to work this is about the motives and about fairness and try to read their mind about borken as to what they were going to argue on changed and i'm sorry i just yes it's our position that the that the that the a p a and the trial practice guide requires more candor and openness of forthrightness under those circumstances as a practical matter going back to what charge more was asking  for how is i'm changed different than directly because direct just says it is i understand it i move from here to there yes  anything but if that if that minute made a calculation and sent it directly would it be unchanged from that calculation well it as a layperson you might say yes but as a person of ordinary skill in new york looking at the context of the claim as to what on change means more important thing is there's no support for one change in the specification there's no record evidence directly from the from one of those units to the controller unchanged by the point where we were at the final hearing we had tried i'm not asking about that i'm asking about your proposed construction wouldn't it have required it to go change no well how would it go how would it be changed if it went directly from from a unit to the controller if you have a cheap old box in your house they tell you don't put the box more than ten feet don't put it on more than ten feet of collection from point a to point b the bush you get annoyed signal what does that mean that ten foot distance has led to a change in the in signal we don't know that's not what they're talking about in change here though they're not talking about interference or the like they're talking about the data it gets transform when it moves the arm from from one of these things to the next argument is based on figure two figure two is an embodiment there is no showing at all that figure two should be read into the claim which is the only way you can make an argument as to what unchanged might be during the proceeding as the board found it was exclusively on i b m for continuously changing the position about how the secondary reference to work and operated there was no reason for the board to provide the construction for the ultimately did until they call on correct that's correct but by the time we reached the final portion of the proceeding which was the world hearing that should have made this argument and even at people with hearing they stuck with their original argument it stuck with an argument that the feedback went back on change their originally said that it went back to your data busses direct going nowhere else they then change your position in their reply to say that it went back through a series of shift registers ultimately now on appeal they agree with the position originally taken by the pet owner in its response that only the output of a single aliu goes back to the controller of the other ones pass as inputs and that are changed by intervening so they'll use so do that or that was our position at the at the response stage they could respond to that first notice goes that every opportunity to respond and say fine we can we concede now that your characterization of the dorking reference is correct but even given that characterization we think the claim means x they didn't do that they they stuck with the losing horse they stuck with their losing interpretation with working reference all the way through the oral hearing and in fact at the oral hearing they were arguing that the values themselves that values that came out of the surveil use were sent back it was implicit in that that they were unchanged so the construction of the board ultimately arrived that was perfectly consistent with the arguments of all the parties throughout the entire proceeding so there's there's nothing they think point complain about and predator do you disagree that that at the hearing in response that people have questions that that you did alter your construction somewhat i don't believe our construction was was altered what we were addressing so first of all at the at the petition stage in these two stage the issue was feedback in isolation what we were talking about now was the entire where in that included the term output being fed back to the controller and the discussion was simply a clarification of the plain meaning of the claim as we had applied it as it as it had been applied in response to that work in reference it was very  to the argument that your friend on the other side made that that the where and clause was not in play and that they he tapped didn't have the authority to interpret the entirety of the waring clause and was limited to just the phrase feedback and his argument is the rest of the wearing cause and further limitations they bring were not what was disputed is that the argument i don't think it's accurate i think that might be his argument but it but it's not accurate just because they selected the word feedback as a term to be construed when they wrote the petition does not mean that the in the rest of the claim is thrown out and not considered when applying the arc and that's what happened the board considered the entirety of the claim which the entirety of it including the entirety us so i guess i'm wondering how the board could be doing something improper when considering the term feedback as i d m requested when it looks at the rest of the sentence which is definitional of what that noun encounters and i think that was improper at all i think they were consistent with the construction the board ultimately free the board decided well the argument by i b m and it was left undecided by the court at the institution stated in that it was necessary to time but i b m did in fact argue that the results of the earth medic logic units and so that would imply that those are the those are the outputs that's the output that has to make it back to the controller that was in conjunction with this same time they per proposing that feedback met directly transmitted that's correct but such briefly on the motivation a combined total what i'd like to say about that is is it is the board splits that we found the motivation to combine all argument and evidence that was presented by i b m was directed to their first theory of how to work and operated and when they moved to their second theory they didn't change their arguments or evidence to support a motivation behind and now now that they've conceded  unchanged but sent back does not indicate anything other than transmission from the one competition to the next to the next as is described in the work and there is agreement that for the purposes of this  that the description of the work is in fact as the board stated that in the final in the final decision and then so even if you were to win on this claim construction debate you got the problem that the board made a hold if the wrong wall or the wrong interpretation was used on the motivation of complying as we've explained in our briefing we believe they did not do it properly and watch measure because the change in the claim as we've contended argued to include the unchanged ended up being taken into the decision on motivation to combine that shows up at a fifteen or sixteen a twenty to twenty one in the final opinion and that if so that one error cascades into the second error and once the test is not done probably in the was not properly applied then you don't have substantial evidence going back to know that the the feedback i'm sorry the motion to were combined with that's essentially our position of the on the motion  only evidence supporting your earlier argument and a reference to something that dark the coach said that is not responsive to the unchanged what has effectively happened to as a result of the changing claim construction is him in alone unless the spec is clear that that's the only thing that the claims rely on is not to be rid into the claimant what's happened here is all arithmetic controller if you take the output of the multiplication unit and put it through a bunch of additional mathematical processes so that it's not the same number anymore then when you give it back to that arithmetic controller i don't see how it is in fact the output of the multiplication you know i don't see how it is the feedback we don't know how one ordinary skilled in the yard in this context  feedback in the context of the war in particular i don't disagree with your honor that the way meaning here you might say it has to be the same number but if the if the output is transmitted back through a series of mathematics and we certainly know from the west nail you and the organ that's coming back on change to the controller it's what's going on in the first three that are in here as to whether they are or are not within the scope of transmitted back transmitted back is this broad transmitted back on changed as a species of transmitted back and what point here is because of the way the