board disregarded the secondary considerations of non obviousness by applying for the long legal standard as to the first point the no one combination is operates in a fundamentally different way from the combination it does not do that instead it sets up a phase in which commands or data may be sent and that and that does not distinguish the signals in the data stream if we have cars in the stream of traffic i have a data stream interceptor under the patent that examines the cars determines whether there are different whether there are drunk drivers or sober drivers in them and it informs the main controller of that information the main controller then uses that input to decide what to do with the cars in the known situation th defense to continue here here highway analogy and saying that for example if you wouldn't be distinguishing the in bet on from the battle and traffic on a particular road by say from nine am or seven am to nine am only in the rest of the time only outbound that may be distinguishing but it's not in the stream it's it may be right twice a day but you wouldn't know that unless you had another device a clock to tell you that that is so there is nothing in the one device that tells the tells you what's happening but the main controller does everything in makes when the incoming data comes in and it decides whether there is data and doesn't what does there's no distinguishing one from the other decides whether there's data and then it decides to encrypt yes or no those two steps are in figure two when those two wire does not carry any data it just sets the phase and then pursuant to that set phase something comes down the pike in this in the situation of read six write six which seagate's identifies that happens to be only did or only commands in the no one device and in the proper construction claim not and sets the context for that input the data stream interceptor distinguishes commands from data and then the main controller uses the input is used to inform them a patrol or to make a decision right out of the car you want as to read the word inquired as necessarily being the result of the distinguishing done by the intercept and i think that's a fair way to end with so i guess the question is with the crime isn't written that way though there we have this rather broad you know just speaking vague term in part and so it you know it doesn't even say said in part to give us perhaps a clue and there would be problems there with that kind of writing as well but i  make a decision about what to do about the incoming data if there were if you read into it as being coextensive with incoming data then the main controller would not have any of what upon which to make a decision it would be making the and the determination of one snap is not what is claimed what is claimed is that is the the break up of those two steps distinguishing commands from data and then providing that input to the main controller which ma the determination having having to take taking reading the us coextensive would would read out the requirement of the data stream intercept to do anything and provide anything if and that's that's the same context in which i ask for things in the again colloquial sense if i ask my associate for input on a case i don't expect her to give me just the case it happens i'm asking her for her input that is something claims because the claims to talk about one of the other and if there are if you read incoming data coextensive with input then there would be no need for the disk the for the data stream intercepted to do anything you could probably would do everything so under those conditions under the w b ip case we should have been entitle to a presumption of nexus instead the board look for whether or not those those references of secondary considerat thank you your honor may please or if i'd like to address first the issue of distinguished i want to start with the general point that the fact that we're using representative claim nine has not been challenged that is the claim that we're assessing and that claim i extraordinarily brock and when we look at the specification the specification itself is also extraordinarily broad and what the we believe the patent owners attempting to do is to to try to redraft the claim language by putting in words like distinguishing input and the like and we just don't think that's how the claim reads and i want to go through sort of step by step how this worked with the board first of all the board had a construction of data string interceptor that is not challenge on standard uses of the verb distinguish just say what is occurring in scuzzy two it literally uses the word distinguish which is a word found in the claim and it says the cd and i own message signals ar i'm sorry put the first margin square paragraph yes yes on this you understand perfectly well that their argument is not an argument just from the claim language your argument is you tire of me based on a claim for a claim construction has the phrase distinguished in the data stream scuzzy to doesn't talk about the why it is that the prior art shows that what the prior art does distinguishing in the data stream yes your honor when scuzzy two is saying that the c v i own message signals are used to distinguish between different information transfer phases that absolutely is talking about a data stream the information transfer phases are different phases that involve data passing from the spoke to the particular language distinguish in distinguish in well i don't think there's a lot of discussion about distinguish n your honor but i will say this if you're distinguishing in the data stream it doesn't matter if distinguish in advance or if you distinguish currently as it's occurring and we don't believe in any way what this construction that when it uses the phrase in the data stream is in advance if it was going to be in advance you would need to say that you can examples of the read and write commands their expert declaration did not discuss the read or write commands then in their opposition brief they mention inquiry and copy commands and then i reply we put in our footnote in the reply stream and our position was it does you don't need to do it in advance as your distinguishing your distinguishing the you don't add the phrase in advance and they talked about the copy in the inquiry command which are different commands not the same data stream so your hon currently i can evaluate in distinguish i can give directions but here the way the distinguishing occurs is scuzzy interface fifteen controls and directs the information transfer faces and in the read six or right six operation  interface fifteen is the is the interface that says alright let's start with a command and then it gets a command that has only command information and then it says all right now you can give me the data enter the data out depending on whether it's read or write and then it gets read or write information that's against separator so the scuzzy interface fifteen is distinguishing between these two information transfer phases it's directing and controlling them and the result is directing and controlling is to distinguish between command in advance or you can distinguish it currently and so we don't believe that seeing the phrase in the data stream in any way suggest that we're adding a new limitation which is it cannot occur in advance so even if you're controlling it you're command so if you didn't have scuzzy interface fifteen it wouldn't work that the host computer couldn't just send stuff directly to the main controller scuzzy interface fifteen is playing a very important role of distinguishing the information transfer  happens then as you go down it makes its impression decision so we think input is simply input it's not distinguishing important and by the way in the actual specification there's no discussion of distinguishing implied or we want to make sure everyone understands there's a very special definition of him but there's nothing like that at all especially fiction a very broad so if all that's required is in part and if in nolan figure true it says input scuzzy command and if the sky's interface fifteen is discussing interface fifteen cents the inputs does it command whether the incoming data will be encrypted would include commands or user data so they're not coextensive they are separate terms so we're not somehow saying that the word input is superfluous that has no meaning of the word input and the phrase incoming data are different phrases and we've never suggested otherwise turning briefly to secondary factors on the issue of secondary factors what the board did if not apply the wrong standard if we go to the appendix forty three that has the board's decision the board went out of its way to show to this court that it was going to analyze the facts closely and make its own determination it said things like secondary considerations when present must always be considered right so the board were clearly quite full discussion in the secondary considerations much smaller than it least in my experience it typically owner makes a presumption argument the board has to say you've shown a presumption so because the issue itself a presumption is fact dependent and i would say that that we could talk about as a legal issue i believe incorrectly stated a lot of the if your presumption i is your sense that how the board created secondary considerations would if memory would change the result we don't believe so your honor we believe that at the end of the board extensive discussion the board said it outweighs the evidence of second or considers of non obviousness we believe it was it was trying to balance the the secondary factors evidence to back to the judge trial and judgements question about how does this all work in this context with presumption honor in any case the patent owner really has two roads we think you can go down one road is the high level it and not show the presumption not try to get the presumption another one is to try to do the work required to show that the product that the is part of the claim subject matter that the product that someone was using was part of the claim subject matter here what happened is they had an expert who had a conclusory few paragraphs in an affidavit and so what happened is they didn't get into that uncomfortable position where they have to explain how their product falls within the claim subject matter or how another product falls within the claim subject matter when you go down the road of trying to explain to get that presumption is fair road and i can feel it and when you just give me finally give me  abject failure of proof so we're not in the i care proceeding examining their actual product and the information around their product and showing this flaw or whole instead what we're saying is if instead of doing  an analysis that shows that your product is part of the claim subject matter you just have some high level curve graphs that's not a board has discretion to say that that's not enough to trigger the presumption so we didn't do discovery in this case to show that their own product has this problem or that problem what we said was an abject failure proof similarly so just to for me to clarify you're saying that the other side didn't have an expert walk through like  of its device and point through how all the different pieces of that schematic are found in the claim and then how those pieces in the schematic perform the functions that have resided for those corresponding components in the clan yeah i think there are kind of trying to meet us halfway by high level like five or ten paragraphs of high level discussion nothing like a claim trite nothing that really got into detail which meant they have voided the situations of all right how are you going to so maybe that was the nifty thing that made their product commercially successful praiseworthy and sadder maclean's don't require your garak to follow up on judge jones point in your honest question the broad nature of the claim pre dates a huge problem for them and second are sort of nations because the broad nature says if you just have one you just have one you fall on this planet what they're announcing to the world is hey we do full description all the time that's very different from say we do it at least once so that actually is way outside of the claims subject matter that's discussing a product that does things all the time so from a secondary consideration standpoint it's the board has discretion to say you haven't done it enough you haven't shown the claim subject matter and they in no way have said that the claim to subject matter what actually the claim shows is in any way driving the commercial considerations the  excruciating detail in your own i will confess on the presumption issue it's an abject failure of proof argument that we're making and the board has the discretion to say you haven't met the standard to create the presumption if you have an expert th that's not enough oh my goodness i apologize my time is going in the wrong direction you know there's picking up on that last point that the board did did not address the secondary considerations as a failure fruit said instead that there's no nexus because the secondary consideration evidence did the point the judge jan first made if it hasn't been enough and shouldn't be enough to show that a product is i think successful in praise and that the product is covered by the patent that can't be and isn't in fact what it means to say that the product is the invention why is this not an example of that if indeed the claims require would cover any product they did what this says it does on any data stream and this product does this on all data streams and therefore makes it extremely attractive thing well i don't know that i'm following  your hypothetical your honor but but this is a situation where we have the uninvited declaration of our expert walking through the claims and saying how this product practices that invention the let me try to say that a different way the standard for a presumption of nexus right i think we have phrased as something like the product is the i sins means more than practice otherwise a you know it and electronic device that contains five thousand different features one of which is covered by the patent would enjoy a presumption of  so why isn't that why aren't the you know the forty nine hundred ninety nine other features of this namely it does this all of the time not just once well mean that the standard  claim language itself is broad so frog that it does not require full of the encryption they're wired something much less than full of pleading corruption and then there's a lot of variety on the way up to full data and corruption and the concern is if you have objective in disha that full data encryption is commercially successful or praiseworthy that doesn't feel like a complete match to the claimed invention and so the requirement that in order to enjoy a presumption of nexus that your commercial product has to be have to  fact the claimed mention doesn't quite make it under the facts here does that make sense do you understand the premise of the question i think i do i give it your understanding is that it's since it's so broad why wh wasn't mad because it didn't address specific elements and that's not the test and the seagate overlooks that the other evidence which is not just the fact of the the declaration that was on rebuttal but their own admissions in their answer to the complaint they point to the complaint that nobody sort of against them they overlooked the answer the answer and the answer seagate admitted specific things including that they met with the inventor mr one make a lot of money on it so