we've had a busy morning and from today we have four cases scheduled for argument a first case is pollo from it works versus through june seventeen dash to twenty fifty nine examination and from the board denied the motion to exclude but that in its final right decision without explanation did not comment on any of dr med benefits as admissions and expressly stated that it did not rely on the bins because dr benz had prepared infringement charge that was the substance of his opinion testimony and secondary considerations and in that infringement analysis dr benz was opining upon the scope of the claims the issue is that patent claims are not like can't like a notice of wax be treated one way for infringement a different way for the full literally and the reason that making requires the board to four and cherry pick at the ends that supports the conclusion of prop that a substantial evidence review requires the examination of the record as a whole taking into account both the evidence that decisions assigned no weight to mr also why the trial testimony was an abuse of discretion and importantly and i think relevant to this case held that an agency for refusal to consider evidence bearing on the issue before it is by definition arbitrary and capricious and that the agency must take account of all the evidence of record including that which detracts from the conclusion the agency ultimately reaches the board did not do that in this case now i'd like to draw the court's attention to one of the most clarion examples where the board not only failed to consider the evidence tracked it from its decision but also where the board's finding wasn't supported by any evidence at all the entire issue in this your honor i can't cite to any discussion in the pan disclosure on that the dynamically limitations and there are two are not discussed at any length in the patent disclosure or the claims fact that and why doesn't that provide substantial evidence support the board's finding the board's finding regarding lexical analysis is based upon the and by the way the board's finding cites to appendix thirty ninety one paragraph seventy three and seventy four that's the only evidence that the board cites in support of its finding that the entire data stream representing a file must be analyzed to determine what language the code stream is fully analyzed twice and there is a citation to a dictionary definition there is no technical analysis there is no explanation and he didn't speak in paragraphs seventy three or seventy four  analysis in terms of language detection at all in terms of what's required however on cross examination because his opinions in paragraphs seventy three and seventy four were totally untethered to the reality of the underlying technology need is a packet or a and full of packets to identify the programming language that data stream is written in because we're talking about internet based technologies and for example there's an h t m l tag or a script tag that will be contained in a single a series of the first few packets in a data stream and so the opinion that the board cites to or i'm sorry the testimony of paragraph seventy three and seventy four that the board cites to only doesn't reach the issue the only basis for a document that have a chipping in there is pointing to the word again in the disclosure with no explanation of why that would require complete analysis of an entire data stream in order to identify the language again that the cross examination of testimony is consequential here because as explained appendix four thirty eight four thirty nine and the he was addressing that he had been offered to address secondary considerations but in the context of providing an infringement opinion with supporting claim charts where he was comparing the language of the  a product offered by a company called websense so in the context of those infringement positions dr mann becomes was cross examined and he testified in this is that appendix twenty seven sixty one but a person of ordinary skill understand the technique such as detecting the well as analyzing parse tree nodes would take place as the program code is being downloaded so he provided the opinion that a person of skill the art would have understood that you would dynamically analyze and build a parse tree this is the testimony that the board indicated in its final room decision it was not relying upon again although we recognize that the issue of secondary considerations wasn't the board because of its finding we still should not have a situation where the patent owners allowed the offer of two different experts to offer completely contradictory testimony and then the board decides not to detection on a file even your honor in the case of the file child not expressly states that its virus detection methodology used in that case isn't a stored before she converted there are two embody that's what this appeals about there's nothing and john donnelly the primary reference that the appellant is relying on here that would lead one to believe that they did do dynamic building my friend talked about the export deficit in cross examination and why dressed up very quickly dr benz was put up for the secondary considerations issue and dr ben has discuss at the time of the invention because he was looking at those still in the fringe at the time which is very recently we look at this after the teaching of the patents he was not put into talk about one skill the art earlier considerations obviously it would have been isn't that's moot at this point what the what they should dr benz was decorations regarding a product that was released years after the filing date or the priority date of these patents and they're asking look at the thinks they're the band because they didn't get to secondary considerations which is completely appropriate in this circumstance and if you look at the actual testimony both from the side in the even if there was something to be said about the board not looking at the cross examination which they did if you look at the what the board actually cited two and this goes back and starts on page eighteen of the appendix in going through the  so if you can actually build the parse tree as it has streams come again and be doing analysis at the same time what you do to detect an exploit or malware then you can cut off right there you can stop the process and stop it from coming into your system y quickly and before malware can get into your computer system if you do that why this dynamically building you can cut off before the whole of this is brought into the system the appropriate script language and then to lexically endwise the data stream to generate the stream of tokens and it's finding it appendix twenty that it's not possible not possible for the data stream to still be incoming when the data streams