honor ok if you're prepared to begin you may do so morning honors please the court independent claims twenty one and thirty one specify two requirements for the claim to recall command recall command as answered by an operator and the recall command includes the respective st or nd unique identifier the board erred in finding the claims of yes because of map the claim recall command only to panic shack and that reference contains i read work and this brief it make in this court it makes no argument that if the recall command is what comes out of the operator interface and not what comes out of the  if the command needs to come from the operator that it's not the reference ok thanks so much of a on the board mapped the include or accept one or works two so they can't be the claimed recall command and again as your own recognized trick and doesn't seem to dispute this starting at around line twenty three dollars st it's addressing the says so it says as with the saving of the parameters operator may recall and apply the same set of parameters by entering the recall command for example via an input device provided at one of the user interfaces and then in the very next sentence the extent more than one set of parameters have has been saved the operator may recall the desired set of parameters using the assign we can see the st sentence in this paragraph talking about how the operator may recall and apply the same set of parameters by entering the recall command for example via an input device provided one of the user interface is sixty eight and then in the very next sentence for explaining that to the extent more than one set of parameters has been saved yeah operator may recall the desired set of parameters using the assigned identifier so right there is an example of w description support in the patent itself and the same discussion also exists in the application and in the two provisional applications that lead to the patent had brought this up so the board is well aware that this was something that victim was concerned about and again in the final written decision the board sound that there was written description support now on appeal here it seems argument is that somehow it is sufficient for the controller and pan ishaq to be what uses the identifiers and one of their big arguments for that is that they claim the board found that the recall command is something that is on the controller side and using the controller instructions for that what they point to the board's claim construction discussion that was actually addressing the original claims not the amount of claims to dispute about those original clannish was whether the recall command itself required the use identifier and what the board found is that there was discussion in the patent of the identifiers in the context of the controller but they also noted that there was similar to what we just looked at in column a it discussion in the patent of the operators using my the fires and the board found in that clean construction for the original claims that the identifiers weren't required to be on the recall command because these discussions about the operators using identifiers in the patent were permissive they were not enough to constitute disavow oh we're now in a very different situation because caterpillar amended the claims and in the amended claims they expressly require that the recall command include the identifiers and they also expressly require that the recall command be entered by the operator so what we need to have is a situation where the recall command again is entered by the operator and also includes the st or nd unique identifier the problem versed in has that everything but it's pointed to does not mean it's those requirements if we talk about the operator input fifty two signals and com correct me if i'm wrong that in this court work and makes zero argument that if the recall command is what comes out of the operator interface not what comes out of the controller that  that is this is a as far as i can tell a simple forfeiture at this point of any argument at all if the requirement of these claims is that the recall command comes out of the operator interface i believe that's because your honor and i think they may actually have had an argument in the board about this but they don't make it here i agree on and the argument that they do make here where they point to  the controller instructions just to reiterate the point one more time the controller instructions are not something the times or by the operator and just times originated as you know it just it just to avoid an ambiguity by controller instructions everybody here means instructions coming out of the controller not instructions going to the controller yes ok at that the ambiguity is not not inconsiderable identifiers works at one and works at two or even the other alleged identifiers but it's now noted the pointer memory addresses and pointers those also aren't anything that is in any recall  st and the initial raising of seaver they premised the whole point of seaver being on we're going to look at this if the board finds that there's no written description support for unique identifier the board didn't find that way so there was never a contingency in place for the board to look at seaver in that regard completely changed its arguments about seaver and  rematch there would be no reason for the board to necessarily reach those arguments it would be completely within their discretion to decide that very generous those arguments too late it and therefore there was not meant to draw it so why do you want us to tell them what they can and can't for view i'm right  points in our grey brief are simply that you the court do not have to tell the board to do all of those things because it is within the board's discretion to choose for various different reasons including the victim's arguments where to lay it that it doesn't need to address those issues instead we think given what has transpired here that your program it is for the court to reverse the board's obviousness findings and remap and for the board to do w s arguments that at least work and says it has preserved maybe in fact is something for the board to decide that we wouldn't be disposing of yes you're on our position would be that the board would have the ability to address those arguments if it chose to do so but that it would not be necessarily required to do so because there may be reasons within its discretion but it doesn't need to for example a very thin having waited too description support for including an identifier in the recall command in the motion to amend caterpillar argued that the th of the one patent discussion of using an identifier provided the written description support for a recall command that controller a nd separate issue is whether using identifier is the same as including identifier if it were correct that under the claim language and indeed the specification that the recall command is only what comes out of the operator interface not what comes out of the controller what is the relevance of whatever you're of of the the i be absolutely part of your argument for the defense of what the board did was which was to rely on the what comes out of the controller  how is it that you were not obliged to say that that even if as the blue brief argues the only thing that matters is what comes out of the operator interface we have that  so the board made a finding out append fifty six dollars where it explicitly relied on the works that one and work set to identifiers and the only argument that we raised below regarding the those identifiers which is what the relied on is where the recall command is that the controller level and so that's why this appeal was limited to what is that the controller level st of what is in the signal because we also have those super argument which was referenced earlier today in combination with panish x touch screen interface but that would have also been obvious to to do and the fact that it was well known to include unique identifiers in recall commands sent from a touchscreen interface to a controller that was also established below where caterpillars expert testified that he had at the graduate student implemented a system where you could save and recall over four hundred dollars positions but i do also want to respond to caterpillars argument about the word ensure and the claims goes as judge tronto you mentioned that is also  you know it's an issue in the claims that that particular is is raising again and caterpillars trying to make it so that the operator must enter the recall command into the operator input device but the claims don't say th the claims recite an operator input device configured to allow an operator of the paving machine to enter a recall command it doesn't say where the recall command is or where it must be entered and so the claim language here actually language and i think the consistent usage throughout the specific specification that what the controller does is in response to a recall command it sends various signals to actuators and and and whatnot but i don't remember seeing anything anywhere in the spec that ever says that what comes out of the controller is a recall command it seems uniformly to say that the controller acts in operator interface to their controller and from the controller to somewhere else are you suggesting that there is inside the controller a command that is neither received by the controller or goes out of the controller is it talking to itself or what then you know and then after that is when you the machine will configure configure the the different settings on the machine to the corresponding parameters so i think as i'm understanding you you think that there are actually see three stages at which a command could issue one is from the operator interface to the controller the rd is from the controller to whatever the controller wants to control like the actuators but that there's this nd one in the middle where the controller talks to another component of the controller like memory or something in the controller and you're saying that that that the recall command is something there in the in the middle where one piece of the controller is talking to another piece of the controller before it talks to an outsider that's correct your honor and both experts agreed that would use memory addresses and pointers and this is this is along the lines of what what they're talking about here that the controller would look to for example a configuration the controller is what assign the identifiers to the corresponding set of parameters and then using the controller would be using those identifiers to recall the parameters and thereafter it would set command a phrase the spec uses five or six times or something is something that the controller is sending to another portion of the control so type in the the identifiers there's no support specification for that it's not like you know an operator can open up a you know m s dos and type in the command line to the controller the controller the signing is is applies to a instruction the controllers sends to something else inside the controller like a memory of configuration parameters with access memory or secondary storage devices and it's that memory or secondary storage devices that that would have the corresponding set a pram appears that the controller would then reference to recall that none of that language uses the term recall command that is immediately starting on line forty eight it says the controller gets a recall command and in response does a bunch of things like goes and gets some information and uses that information to then tell the actuators what to do write your own i think some of that the confusion here with the specification is the addition of this including language and in the claim language and the only part that arguably supports that  that's what they relied on is for this recall command is just using identifiers and i think the point here is whether a reasonable mind could have reached the thing conclusion of the board that you know if i don't think there's a dispute of whether the instructions up a controller is a command that recalls parameters so under the broadest reasonable interpretation which is what we're under the controller instructions  recall command and then the issue comes back to what what was discussed earlier about what entry and the claims mean and there the there is definitely substantial evidence to support the board's conclusion about here as well because the claims do not we site that you have to enter their recall command into the operator input device there's nothing in the claims that limits the claim limit them in the way that particular is is argu command the recall command about the controller level and the signal from the operator input device merely enters the controllers recall command caterpillars trying to argue that work and has only relied on the signal from the operator input device to the controller that's not working as argument and it has never done since argument and this is not the board's finding out appendix fifty six the board found that the identifiers are works that one works that too significantly narrow what the specification might otherwise cover well it would be improper to to narrow the narrow to cover an embodiment that is not covered  three and we were valued aboard to determination that there is written support since it made that determination as part of its threshold conclusion that they satisfied the rules the board's own rules two points on that and i understand why my time is up but if you give me just a moment to answer that question first the board would have to revisit that  even then you know that the board would have to reconsider that and you know because you know you don't want the board to write internally inconsistent decisions that is essentially the definition of an operator of the paving machine so i really don't think there can be any disputes the claim to recall commands are coming from the operator with respect to the president's counsel's point about the not being disclosure of some dos or some machine or something like that for entering what's going to be identifiers i would point your honour's to appendix page one  touchscreens tiles knobs switches wheels etc also there is definitely a way for the user the operator to be entering any unique identifiers and finally they keep on asserting that both caterpillar and versions expert pointed to the controllers use the identifiers as support for the limitation that's that's not accurate if you actually look at any of the advantages or paragraphs that they have noted you'll see that they end up pointing to the same type of support that we discussed earlier and column where it makes it clear that it is the  certainly a new thought to me when i heard it from work and council that there is such a thing under this specification as a command internal to a recall command internal to the controller where one part of the controller gives a command to another part of the controller is that can you address that including whether that is how things were understood in the lead up to this argument i am not aware clipping in the board yeah i am not aware your honor of any description and it's something one patent that would create that rd command the trick and was talking about if you look at the blue bridge if we actually have a section that describes how it is that we know the board was pointing to the operator input fifty two signals and commands has the recall command and that will trash through all the way from the final written decision back to ripken's petition where they were abundantly clear that what they were appropriately or not appropriately include the opportunity for the board to reconsider its written description conclusion as part of its amendment decision i don't think that there would be a need for the board to do that the board as we discussed earlier did in its final written disk decision find that there was written description support despite arisen this issue at the last minute in the oral hearing and i'm not aware of any reason that they would have to revisit that or legal authority that would support some revisiting that ok but this point