examination proceeding brought by blackhawk for two principal reasons first and most importantly the decision is based on a construction of the claimed term transaction type as used in what we call determining step of the cla which construction is inconsistent not only with the plain meaning of the claims but is also inconsistent with the way the term is used in the specification as well as the relevant extrinsic evidence under the proper construction of the term submit their camino obviousness finding the expert in the case who argued that there was because the he argued that the references were not analogous and that because they're not analogous and they were there were there was actually no basis for providing a motivation to combine but i want to submit that the board even though it didn't address that the examiner i should say the basis for the motivation combined is the claim construction and that's really where i want to focus on because i think your honor if  claim transaction type of claim time is construed properly everything else sort of falls in place including motivation to mine the plain language of the claim requires that a determination be made as to whether called the requesting terminal is authorized to request the requested transaction type for the stored value car this language tells us unequivocally three things first it tells us that the determination concerns the terminals me correct i agree with you yes it does not have that but what it does have are dozens of examples and discussions and environments where these determinations are discussed and every single one of them  exception the transaction type is the action being requested on the card in fact the examiner i'm sorry the board found that the determining step would cover situations where the terminal if could you see that one more time it's actually the card correct action at redemption ok activation we're saying this basically the status of the card you're changing it from inactive to active active to inactive you are taking the money in your redeeming it for something you're working on the car and then the question is from the determining step so i guess why wouldn't purchases of frozen food vs purchases of produce fruits and vegetables one of the two types of transaction it's the type of transaction is a purchase transaction which by the way is not really what you do with the store value targets a based on what is being purchased in a redemption transaction it makes it clear that regardless of what is being purchased the transaction type is redemption everything without exception  if you look at it if you look at the prep purpose in the specification of the patent it talks about the invention provides and this is that appendix forty column for the present invention provides a system for managing stored value cards that provides control over the entities that can request activation deactivation reloading and redemption so it starts with that and then the question is how would that how are those things used throughout the patent at no point does this patent distinguish a redemption transaction by what the card is being used to redeem the redeem for we don't say it's a redemption transaction for x and that's a separate transaction type than a reject redemption traction or why  the way the board got there the board didn't look at the specification and say let's see how transaction type is defined in the specification what it did was it said there's no explicit definition which we know is not required because it can be  transaction types we're saying it would be any transaction type we're just defining what a transaction type it is and then it went from and it said there are no words of exclusion well we're not mix moving anything we're defining terms from there it's otherwise known as chip cards and in that arc that evidence what was being purchased was very relevant because there can be restrictions placed on what the card can be used to purchase maybe you can't use it for an a could record actual record it's that action on the part of action through the car in other words you are using the car in the prior art that the board relied on it's what you're using the card to do you're using it to get money from m you're using it to make a purchase that you won't find anything in the patent about that being the focus with respect to the determining step the determining step is saying does this terminal have the authority to request that certain actions be taken on the card redemption regardless of what it's being redeemed for activation regardless of what kind of card it is the difference between the four three nine patent and the covered by claim one and over the four the question is what is a transaction type and it's important to note and i and i want to save some time for a bottle but it's important to know that the board's construction goes way beyond simply way beyond anything in the specification they don't point to the specification for anything but even if you were to limit it to simply distinguishing a transaction type by virtue of what the card is being used to acquire it's still a board because you will not see anything about that in the in specification you're never going to see it talking about anything but that level the level of what does into the car and there are others than than those in the in the specification you might have a balance transaction you're talking about what you're doing with on the car but you want to see you can't take a broad meaning like they did in the p p c case and just plop it into this pattern without looking at what the s eighty five eighty three yes your honor that they're still waiting for a thirty five a three is a messaging spec that it's designed for the problem of allowing incompatible systems to be able to communicate together code one twenty simply says art work transactions not work with the transaction is not permitted by the terminal the site several on if the terminal is not recognized by the system and tries to do a transaction transmatch transactions not going to be permitted to the terminal if the terminal tries to send criminal possibly but that's not a transaction type that's a card type it's not a transaction type and the problem is in the prior art they do not teach a determination about the terminals authority to request the transaction type and when take that language transaction not permitted what you're doing is you're playing hindsight and saying could this language apply to the forty nine patent but without the teaching of the forty nine patent prior to that language there's no basis to import that language  it never distinguishes the transaction type by virtue of the type of cart or by virtue of the what you're purchasing all it says is the transaction type in any instance any card whatever you're doing it that's not the focus though because regret action there's something in yes because it's been programmed for that transaction type doesn't mean the transaction is going to get authorised it might say but we don't accept these cards there's also just security before an authorization is ultimately made the determining step is a very narrow being hurried along the process and it is terminal authorized to request this transaction type yes now there may be another check is this does this retailer take this car no it's going to reject it but the majority of my comments on the teachings of the specification each of us counsel doesn't credit the full scope of the teachings of specification i'd like to draw your attention to a few particular places in particular the examiner found and one of the key questions to me step back a key question with respect to the point construction dispute is whether or not a transaction type authorization can be with regard to the target of a transaction argument and that the examiner in the board found that the target of the transaction can be considered a director attention to a finding by the examiner from column two in the patent and it concerns a user and i was quoting from the examiner let me start with judge chen and with the language from the patent column to starting in line thirty seven i started says it would be further desirable to provide a system that allows for selectively processing stored value carquest such as stored value card activation deactivation and or incrementing and this is the key language on lines forty and forty one based on a table of predefined codes associated with respective the examiner concluded that the teaching here and call them to is with respect to a target of a transaction in other words one group might have certain redemption authority a different group might have different redemption authorities is that you would consider the user group as part of an authorization to terminate you translate what that means that when we talk about customers are we talking about different stores are we talking about different levels of redemption i mean what are we talking about with respect with respect to user groups as i mentioned the references in the specification refers to a user as a card holder then the person who has the stored value card who is going to use it to redeem something and so in this example it's found by the examiner the fact that the authorization determination is considering a user group that is a consideration with regard to the target of the transaction whether it's who is using the card to redeem it that's one example where that the specification specifically campuses the broader teaching that the examiner in the board r is going to eliminate the transaction type went to strange action type means you're out of the per the primary claim construction dispute between the parties is whether you can additional information during the transaction authorization step such as who the user is who's redeeming something or for example whether you could consider the redemption and so under a b r i construction you can consider additional information but the reason it's a key issue in dispute is for example the lawfully reference teachers using codes that identify groups of goods or services so there a dispute about whether that teaching is relevant to the transaction type determination that reference the column to is relevant because it relates to the identification of a user or group or user group in addition to other information and making that authorization terminations in addition to the the very broad language and change of the action on the card i mean it could depend on who the user is and you know with respect to to answer perspective that first i think there is no disagreement between the parties that the transaction types identified in the pattern are only exemplary so i'd submit that the transaction types here in column two are only exemplary not a complete list on second issue is that there are other teachings in the specification edition of the extrinsic evidence i'd like to get to that i think encompass the question of transaction type as your understanding it so i'd also direct your consideration to call eleven and the discussion of figures eight and nine recognized by the parties that step one sixty and figure eight is representative of the authorization determination the discussion of figure not are but again this is in the middle of column eleven mentions of additional actions that may be added or put into the determinations in figure eight including this authorization determination and it at line thirty five of column eleven it mentions that the method eight hundred began this includes the key authorization step may include determining the purchase amount from the reduction request now in the preferred embodiment mentioned in in figure nine shows that that step of looking at the purchase them out may optionally be included in stuff one seventy but the permissive language concerning figure not i'm referring to all of method eight hundred teaches that you could consider as part of the terminal authorization request dept amount so for example you could have limits on a rejection amount under the broad teachings here that disallow redemptions of more than a thousand dollars or disallowed incrementation of more than a thousand dollars why all the repetitive references activation deactivation gumption don't necessarily channel us to thinking of transaction time on that classification so here's  or covered by claim one but other than than that the claim to do not speak to the scope of this term return to the specification we have examples of transaction types that are not living or non exclusive  each you argues that this is a case where the fact that the same examples have been used over and over again is preferred bottom and makes the case look like the bell atlantic case l case where there was an implied definition but i think this case is more like the libel far from the case where the court found that the mere fact that the preferred bottom is always used in the same examples was not determinative and in that particular case the fact that you had brought up disclosures throughout and hedge language everywhere it's difficult it's also important in this case that  c evidence that the board turn to the examiner turned to found persuasive indication that the types of transactions that you could consider go far beyond these four very high level transaction type now that's all very important with respect to the findings concerning the lawfully supporting reference but something important happened during oral argument on appeal with respect to the i s o eighty five eighty three reference remember this is a case where there were multiple rejections over three primary references and two supporting references schlafly and i and so on and with respect to i s o eight five hundred three there's a code one twenty that's rejection to terminal during oral argument counsel for each to offer what counsel for each plane was and example a scenario that would that would show why the rejection to a terminal did not teach or suggest a transaction type and after questioning one that there is an express finding that that colloquy it was at the admission that i have so eighty five eighty three teachers or suggest or at least renders obvious a transaction type limitation making terminal authorisation decisions based on a transaction type and based upon those admissions i know but you are repeating the conclusion of the fact finding it doesn't clouds things for me what is the transaction type how would you define a transaction in the example with these a terminal on the amex card the conclusion there was that they did the type there is an action on the card you either have a visa card or an amex card and a rejection for one not the other and so look the board must have been saying is the terminal is authorized to request types under that understanding yes the point with respect to a cell a five a three is that based upon those findings in the admission of the tos council made the claim construction isn't determinative of whether you affirmed the board on the i s o eighty five eighty three invalidity findings because as interpreted by the examiner in the board i also eighty five eighty three teachings were raised only two arguments raised and you to use proofing one was with respect to the claim construction the other was with respect to mr lots nessa's declarations with respect to claim construction the board found that the arguments were on  groups because it isn't been thoroughly misrepresented the the passage that council read is a reference to figures five and six which is later discussed at appendix fifty one column seven line forty be a members of a group a one the members of which all have the same authorizations this does not undermine the tos construction it does not support the board's construction number two with the price on a redemption transaction what that's saying it's very clear if you look at the passage that counsel pointed to it of course you have to consider the price on a redemption transaction you have to know how much is on the card and whether it's enough to cover what you're buying completely separate determination from the determining step that  and regarding stored value card transactions stores and dawson and in those references the talk only about transaction types as the action they don't use these words but they're talking about them as the action talking about credit cards and debit cards well no your honor the door is a store value card activation and transaction system where it talks about special codes identifying whether transaction is either a redemption or an activation and then it specifically says that the software reads those codes to determine the transaction activation purchase purchase there are two point two north of different claim construction position we're not arguing a broader scope we're simply making an additional argument so you're right the board did not look at that only looked at the extremes a get it and that's not in the context of transaction types but certainly those items were of record and certainly the board was very aware of them because yet they had analyzed both north and dawson in connection with cox arguments and if you look and are honest about how transaction type is used in both of those is at the highest level at the action being taken on the car in the fourth point i want to make your honor is that if you look at the board's construction even if you were to agree with blackhawk which i i says thanks i submit that there is no support in specification for black box position but if you look at the ports construction it goes well beyond simply noting the card type which is nowhere discussed in the patent or what the card is being used to acquire as a transaction type it literally says it entailed any authorization determination more general than an authorization determination would need to be two or authorize a specific transaction how is that a transaction type determination the board also says that the determination merely must be broader than for generic to a specific transaction authorization so if there's a determination that the retailer is not authorized according to the board construction that would be a transaction type determination as no tie whatsoever to the plain language of the claims for or to the or to the specification and the last point i'd like to make is this admission of visa card versus american express and tying that the transaction that's not a determination over what actions the the terminal can request in both of those cases whether it's a visa or the terminal is requesting it could just transaction there is you can't point to anything in the specification of this pattern where the redemption transaction in the case of a store valley card or purchased transaction in the case of a credit card is differentiated by virtue of the type of card being used it's a redemption transaction whether using a visa and amex as starbucks i tunes and so your honor we submit that there is no basis for the board