villain sells wave arguments have no merit but i want to start by turning to the claim construction issues with respect to claim three the dispute is whether application specific interface a p i is specific to a particular application or rather to a set of software components were general and under philips the claim language the specification the extrinsic evidence all confirm that an application specific interface a p i is quote an application interface that specifies how some software components should interact with each other but here the broadest reasonable interpretation standard applies and if multiple constructions are reasonable the broadest reasonable interpretation dictates that fits fit bits broader construction is the correct interpretation and you're out of this is the same construction that was presented in apple's original petitions petition and fitbit relies on the same evidence that was relied upon and reference in the additional briefing that was requested by the board after the s e s decision also the final written decision refers to the very same evidence the same intrinsic evidence the same site to the specifications in the claim language so if we that this interface is specific to software components as opposed to hardware components like a u s b interface in contrast if we limit interface to just a particular application it gives no meaning to the term e p i which is  term that appears in the claim language and if we look at the end of claims three the use of quote an application that refers to one or more applications and it suggests that the way you think the construction should be  i understand that you got a strong argument that your claim construction is right i'm just saying put that aside assume that we were to reject that then what is the correct construction here because you make an alternative argument that even under an alternative construction you still when i'm trying to understand what that alternative construction is understood what we argue is that the board also erred by failing to consider the evidence that we presented to the board that under the narrower construction is that there are that that the application is specific to a particular application that's bill and sells construction as opposed to ours which is broader words was not sure that they are particularly an alternative construction if they where did they do that ike i agree with you your honor this is us reading the language into from what we read from the brief and from what happened below i don't think that there's a specific articulation of the claimed instruction but i do know that they were the main dispute focuses on whether it's specific to a particular application as opposed to you know software components more generally that's that's the  viewed and suggest that the data can be used by more than one particular application that's right of the claim language and when you compare the claim language to then specification again the specification confirms that it's broader construction because calling twenty six lines one thousand and twenty one uses applications plural and it tells a person of ordinary skill in the art that other applications can use the same interface now even vail agreed in its response brief that you're reading the sentences and in the specification together that the passage discloses application specific interface can use different pieces of data for different particular applications  and that's in their response to be the page thirty the reference to a particular application in the specification means the data can be utilized or used for a particular application as opposed to the data is directed to a particular application which is what refers to an a p i and both are basically the same and because your honor this is the experts agree and there's no factual dispute as to here to resolve the board's entire claim construction determination should be reviewed to novo and reversed and if the court agrees that the broader construction applies then outright reversal of the board's final written decision is warranted and that's because bill itself didn't present any arguments  claim three is valid under fits interpretation other than because it depends from an invalid independent claim one now there's no dispute here the board health claim one is invalid and villain still didn't appeal that ruling that decision is final and collateral estoppel of prize under the applies under the eccentric case because they've presented no distinct validity arguments with respect to claim three just as in the belden case this court's decision belden the record is one sided and reversal is appropriate and again as i alluded to under eriksson vs intellectual ventures the board also erred by failing to consider fit bits prior art evidence the claim three is invalid under the narrower interpretation about the kitchen specific interface so if it bit an apple specifically requested the board review the evidence in the additional briefing that was requested by the board original petition apple also argued and submitted the same claim from section if it relies upon here after the after the addition after the u s a s decision came out you know the board then requested additional response and in the final written decision the board refers to that and same intrinsic evidence now apple did argue originally that there was a typographical error in the original petition but its construction is concert was exactly the same as what ultimately adopted is reviewed to nobody here but it isn't about the time destruction that's the problem right well i believe that i believe that they did i mean i believe that they they ultimately did reach well let me say that they rejected it they can conjecture that they were adopting film cells under any scenario it was error for them not to consider the evidence that we proffered with respect to the prior with respect to the narrower construction they simply rely upon the fact that because they rejected th it's construction that was sufficient and then refer to that in the final written decision if we if we look at claims four dollars and five dollars the board also erred dependency under the hoffer versus microsoft case and once claim for is correctly construed to depend from claims three there's no remaining dispute the claims four dollars and five dollars are invalid never challenged it's assertion that the dollars and five dollars of those claim to the i p r after the supreme court's decision he also also doesn't argue that it lacks notice or that it didn't have the opportunity to respond to the invalidity arguments on those claims instead he also complains that fit bits original petition didn't address claims thirty four and five but it's own ip art did not control the scope of the i p r on appeal because the board terminated fit bits individual when it granted its request to join apple's i p o and fitted ultimately was added as a party to apple's already instituted i p o so if it was not allowed to create a new and a new and different i p r and it only your in this case fit bits fit bits i p r was terminated and it was joined with the apple apple into apple's i p r for all purposes and ultimately that it served an understudy role apple signed the briefs what i expect is that villain sell based on its briefing that fails it was argued that we waived the right to challenge claims thirty four and five because it was not in the original petition that fit been filed and even though you were added to apple's proceeding apple did raise it and that's correct and even though the fact that the final written decision the board explicitly held quote addressing the status of each challenge claim in this proceeding applies to all and then let me just also say in and i'll see the rest of my time if the court believes there was a waiver here then the court should use discretion not to apply the way verse into the record below is complete and there's no prejudice in deciding the you judge newman made please the court so what is your construction application specific interface a p i you say that it's constructions wrong what's your construction ironic you're absolutely correct that accept the reasoning of the board below that the construction offer advise fitbit an apple was incorrect because it read out applications beside i understand but what's your construction you want to for purposes this appeal we would accept the construction that was actually made by the board in a separate i p r the three hundred and seventeen and that's actually referred to in the what is that construction that construction specifically that the term application specific interfaces innervates which enables a particular application to utilize data obtained from hardware such as the at least one motion sensor and the at least one sensor and that's in the appendix at seventeen now we accept that only for purposes of this appeal we did not take a position as to the proper construction and at that point we weren't required to be because a now you say in your free that even if they were wrong on the claim construction should still be an obvious that's right you are and that argument was rejected by them what about your statements and correct it wasn't based soley on the incorrect interpretation well if we can still consider the merits using the board's determined construction and the way in which the board handled that is it said this is a new argument this was not in your petition the boards with quest for supplemental briefing was not the bro invitation to change the petition now but but it is not true that they didn't make the argument they did make the argument your honor they did not make the argument in their petition and that is where is the board say that they didn't make the argument in the petition nor with the disclosure of the nine for one patent so they addressed it and they addressed it by saying no way that doesn't seem to me to be the argument that i was talking about it the argument that was made by apple they said well nevertheless you should analyze this under your construction and still find that the where they referring to that are you i don't see that the board time in supplemental briefing and the petition actually doesn't contain any expert declaration that says ok assuming we adopt the construction that includes application specific nevertheless here is how the prior are invalidates that they didn't and nor can the petitioner merely say well if you look at everything that we've provided to you the argument would be in there somewhere the requirement is that the petition was specifically pointed out in the original petition the arguments and it never made judge dyck an alternative argument like this in a petition that wasn't what it did in the supplemental briefing right well but do you agree that they did in the supplemental briefing i agree that they referenced that but that their petition doesn't actually make that argument and why don't you address the correctness of their claim construction of the linchpin of their argument as judge ran a mention was that there suppose that the argument is probably true for us that that this means a p i the a p i has it well no meaning in the r and that that's what they meant here why is that  to know you have but i don't think you're addressing what i asked you to address what i'm asking you to address just for get about the typographical error let's assume that they properly argued for a claim construction and application specific interface means a p i as that term is used in the r what's wrong with that argument as the board said that reads out the word specific entirely the word specific is in there multiple times both in the abstract and the specification in the claim and sell it refer to several times in the prosecution as story including in a memo to claim three to read out application specific which is exactly what apple was contending when it said it was a typ even leaving aside the typographical error argument if you were to elevate the extrinsic evidence from the expert over the intrinsic evidence which specifically uses the word specific it says application specific and you have to give meaning to application specific and as it was pointed out by the board if there is a type of graphical error who's to say that it isn't in the acronym and nowhere in the specification is it say that a p i is intended to mean application programming interface it could very well mean application specific programming interface or the type of could be a side as the board pointed out but the canons of claim construction require the jewel of the st to be intrinsic evidence and you look to the words of the claimant self in the legal problem with the apple's proposed instruction is it eliminates specific from the contract from the clay and elevates this acronym a p i and what the experts say it means over the actual language and the specification so there was substantial evidence that there was no typographical error so we believe that finding a fact is appropriate to review and the substantial evidence test for more than that it was a legally incorrect instruction now i do want to turn briefly to the dependency issues so that there was no dispute that there was an error in the prosecution of claim that if there was no tissue why can't the board correct the error why can't they do the same thing as in nov which is to buy construction by construction determine what the claims mean by correcting the air has been argued before the supreme court is and exists to correct errors clerical errors another type of well here's an error that all the parties agree upon so i would say that nobody asked for that correction to be made apple never asked for the claim to be corrected to depend on the claim for it to defend from claim three nobody asked that it be construed that way but they didn't ask for it to be construed that way judge style and that's the critical difference here if if it is actually making an argument is that in the how did the issue come up if they didn't ask or because the apple agreed that there was an issue unclaimed and se but rather than fix that issue because they wanted to create claims were meant to be dependent on claim three and you agree with that right yes so why can why can't the board fix that well respectfully it can't be error for the board not to do something that no no party asked the board to fix this dependency what do they have come to the board to do they ask the board to construe it so it was dependent from claim one which it we believe is clearly incorrect but the correct interpretation is dependent on claim three we agree with that but that's not the argument that apple made apple only made the argument and this is not disputed the bit in point to nowhere that apple asked it to properly be corrected to claim three so it cannot be error and that it cannot come before this court and ask for a remedy that apple didn't they're in an understudy role and as an understudy they are bound by the arguments that were made below even if they were in the primary role they're still bound by the request that they made below they can't change that request moreover they can't ask this for it to assign error because the board failed to do something that no party asked it to do they are asking for a remedy that was never requested below it was no ever brief followed it was never presented below the board did the correct thing and it said that because it could not ascertain the scope of the claims because of its antecedent basis issue that it would decline to do so moreover this is not a problem without a remedy i suggest as a matter of policy section one  present i understand definite issues indefinite in this issues so the court should not extend the ability because at such a slippery slope where you stop do you allow corrections only where the parties agree that the district court when the district court is constrained climbs actually my argument is that the court should not extend this to the board but more so it can be error for the board not to do something that was never asked to do that the board erred when it by failing to do something that no party requested of it that's an argument that was simply not made below about apples not here we can't ask why they chose to do that i believe it's because they wanted to streamline the pats to invalidity at the district court by getting what is essentially an incorrect instruction to clients in the board properly declined to do that which they have the discretion to do it's not mandatory that the board correct errors in fact it's very limited and in the context of i p r as it has been held that that can be done through the motion to amend procedure which has its own specific requirement s i see that matter time there were no other questions an alternative construction and the nd one just made is that no one ever asked that the board issue a construction that these were dependent on claims three so let me let me take the nd one st just because i have the papers open and if i could draw to the apples in the in the briefing that was submitted this is appendix page eighteen percent let me start let me start actually with t one and then it appendix sixteen o two goes on to an apple says again this was additional briefing that was submitted at the request of the order because the u s a s decision had come down and here apple said quote should have depended on claiming three these arguments were presented they were discussed during to the board and they were discussed at the hearing that mr bragg alone attended an argue that so to stand before the court and say that those arguments were not presented as is incorrect and what about the other and the other when you are you're exactly right you were the portion of the the that mr graham pointed to was referring to is different argument entirely when it says the petitioners you know didn't make that argument  of your vote what he what he's saying is ok this argument was made in the supplemental briefing but it couldn't have been made because it was made on the petition originally that's what he's saying well the what happened in the original petition and the facts remain the original construction the same construction that we're arguing for before this court in this appeal sure that is the sense yes i understand that that is not the issue  is whether the original petition are you know alternatively that even at the construction is wrong we still win because under an alternative construction it's still obvious so that the crew the petition did not i believe did not argue that under and the narrower construction because we didn't even know that there was a narrow construction being promulgated when reason when apple did its petition and by the way the construction i heard mr bragman said for the st time i really heard an affirmative construction from them that that was not in the petition we didn't say in the original petition that claimed three would you know was also invalid in light of the narrower construction that was r hearing ultimately but none of that was addressed and what we have before you is the same situation i mean this is a situation where as an erickson of core the board erred by not considering the specific evidence and  whether the court decides it's a type of graphical error and i don't think the court actually needs to reach that decision the claim construction that fitbit has submitted is the correct construction based upon the intrinsic evidence that i cited the claim language itself the specification when read you know in connection to those two sentences the use of plural of applications and even the and again extrinsic evidence all confirms it so if we step aside and we look at whether that was the right claim  structure we get to the two fit bits construction because at the end of the day the intrinsic evidence and the extrinsic evidence supports it and if you have if you use fits construction there is no question that the court should reverse the findings with respect to