united states court of appeals for the federal circuit is now open and in session god save the united states and this honorable issues that weren't in our original briefs are not outside the mandate because the mandate rule doesn't preclude issues that could not have been raised either below before the final written decision or as part of our st appeal so for example all of the patents in this case have expired they've been expired for three years now but that exploration happened after this court heard the last appeal so when the patents were remanded back down praise by consumers by the industry they also met the needs of the deaf and hard of hearing community and they were a tremendous commercial success we demonstrated an excess by having our technical experts review the pat drove the commercial success so didn't wasn't in the board have in front of it expert testimony that contradicted your expert in terms of whether or not it was the claimed feature complimented the ability to have others call them directly instead of having to call a relay on a different number and the security that they could know that they could call nine hundred and eleven and not have to choose between having captions that it said for example on page one hundred and eighteen that your response itself contained none of these arguments at one point and i don't remember where in the board's opinion but they said you pointed to like one hundred and thirty seven pages of declaration as so we the board are supposed to go on some fishing expedition looking for the kernel of evidence that may or may not substantiate your argument and so what the board even if there were evidence in the records that you're now specific should we really fault them should we reverse them under those circumstances the fact that you've now stepped in are making a much better argument to us than you made to them is that a basis for us to reverse them  summary of the evidence we can could not have possibly put all of that evidence of secondary considerations into the breach but we made the arguments and we cited to the declaration to look at the claim language or the specification and come to its own conclusion if the opposing party didn't make that specific argument i mean that term is in dispute so isn't the board supposed to look at the intrinsic record to understand the meaning reference has a lone sentence designed to recognize the voice of the particular relay agents and i think in light of the lack of exposition in line we need to read that literally and pattern of the call assistant i have a voice pattern your honor has a voice pattern mr shaw has a voice pattern we all have voice patterns that certainly cannot just because a group can have a shared wave pattern and i would agree with you greek word pattern doesn't mean a group now very importantly there was also asked as time was recognition software as your honor described it was not speaker dependent meaning you couldn't included universal which is speaker independent voice recognition software created using speech models for samples of accents and in particular the line for example if the models are created using speech no your honor you just reminded on that narrow issue so those are we would agree that those are before you now so but so claim construction is now before us and one thing that is happening between the time when the board issued its claim because of the unique procedural posture of this case in that it is if it had been decided on the merits the st time it was here in that st opinion before the expiration it would have been b r i and but for that kind of narrow mean man on the procedur which really didn't change anything because it came back up finding that testimony consistent you're now back in and that posture so i think there are distinctions to be drawn just based on the unique procedural posture is not implicating some of the policy interests that underlie the switch from be alright to philips the other side and never tried to amend even though you had the same adverse constructions for now for several years so i think there is a basis to continue to review under b r i but assuming this court were to apply phillips i'm happy to address why we think the result should not change in with respect to the claim constructions that are now issue at issue on was the lack of neutrality by the board in the way it handled various issues in this case making arguments not made by petition or excited our case in n re maximum i would like you to somewhere  respond to those that scene and those arguments if you wish or show your honor i would disagree with that characterization we've vigorously disputed virtually all of these issues before the p t have there's seven hundred and then we came back with counter arguments as the arguments of all day there's nothing unusual about about the board looking at all of the evidence and looking at all the arguments and coming to what it thought was the best decision we  we made virtually all of these arguments but to the extent the board wanted to look at the patents itself and the prior art itself and parse them on its own and and not just follow the experts on both sides of course the board is entitled to do that the board wasn't acting as an advocate in any way it was acting as a decision maker just as courts do all the time it looks at both sides arguments and and it may have a rd way of resolving th case and i think if i i think it's helpful to do this in the context of the specific argument i'm happy to either start with the claim construction or the secondary considerations issue i can start with the secondary considerations issue  since that's where the other side started if it's helpful and and i think there's some important things to keep in mind here based upon what happened before the board won it as as chief judge president it it's all to tax burden on nexus to show to prove nexus even if we had not submitted any evidence to the contrary and and we did and and i walked through that even if we didn't it's still their burden to show nexus and the board can can hold them to that burd now what the board said is that they failed to show nexis on two independent grounds the st one is the one that judge moore you mentioned the procedural ground they provided as the board said it page one eighteen here's what the board said it reviewed the documents patent owners response contains no substantive arguments and this is on the secondary this is on the nexus point instead patent are merely lists various common forms of secondary consideration events without exposition this does not provide sufficient analysis for us to determine whether the pattern owner is provided adequate evidence of secondary considerations and the nexus between any such evidence on the merits of the claim invention  pattern owners brought contentions regarding secondary considerations do not demonstrate non obviousness now if you look at what it did when you asked the other side misnomer for the citations to their argument she ninety eight appeal appendix here's what the board said so after the board said look you've only given us less than two pages and by the way their counsel at oral argument in front of the board said you're right your honor we only gave you a page and a half we should have done more now on rehearing they argued well look we cited the declarations and even though we didn't make the arguments in our brief you can read the declarations and figure it out here's what the board said on rehearing in response to that is page eight  suggest that we should have reviewed and analyzed the entirety of each of the three declarations submitted by patton owner in support of a secondary consideration contention had i known or merely cited each declaration in its entirety without citing with particularities portions of these declarations will not a scholar thirty seven dollars page think exactly that's the next line we will not scour the one hundred and thirty seven dollars pages of declaration of intent submitted by pen own  generally serve as an advocate for patent owner so this is where the board saying we're going to serve as an advocate for them chief judge press to get your question about being an advocate so it's not the board's job to look at a page and a half boilerplate argument about secondary considerations and then read one hundred and thirty seven pages of declaration and try to put together the argument that ms know well as made quite nicely here this morning about how you and i understand this is very helpful  eight the board gave a fourteen page response not just on the procedural forfeiture but actually on the merits and then here's what they said on the merits of course you can stop at the procedural forfeit for the st eight i p r as for the th one when you reach the merits they said look we looked at the declarations you cited and the ludwick declaration which is the only declaration that goes to nexus what they did is they provided a claim pages that go through the manuals the pictures the documentation the lineup the experts analysis not just including personal observation but going through that in detail here you have a conclusory statement in each one that says i observed these matters here the people have said that's not enough and in fact your honor we provide a cite in our briefs you can contrast that claim chart once they got these adverse to pete have decisions in the further ultratech appeals that  not before you what we call ultratech for we provided a cite there they did a claim chart it's one hundred and ninety pages these are two page claim turrets conclusory and the reason why your honor that matters here is because  not a monolithic service it's not just one phone or one product over this ten years there were modifications there were different models used and so it's not enough to simply say based on your observation during a visit that happened at the time of this litigation to say that this is always encompassed all of the claims at least not without providing documentation going through the manuals going through each and every model they don't do it model by model is today treated as a monolithic and the p tab and this is it two thousand and three appendix two to dine page two to nine in the in that thirty five of it when they finally made the arguments and not just have called them out on this and they say look this is not a monolithic service and in fact the model one hundred the st phone that was at issue here did not have two lines service so there were three features construction issues on ryan i think it's helpful just to take a step back ultratech actual claimed invention is not the software itself it's not claiming an invention over voice recognition software it's invention is on the relay method of using a call agent to do real time reversing using commercially available speaker dependent software that is exactly what ryan discloses using in the words of ryan an agent to listen to the caller and repeat the voice message using quote specific software specifically designed to recognize the voice of particular relay agents now as alter to concedes by the time of the patents the speaker dependent speech recognition software that allowed one dollar to one dollar tailoring was already there on the market and so this is not an invention even though they like to try to claim it as software that only does this after the fact training the invention is about the real time reeve wasting here and that's precisely what ryan discloses now your honor on the particular claims they talk about the one agent i think we've already made arguments in our brief as to why the p tab did not air and i don't think they erred even if you apply fill up but even if you have doubt probably the easiest way for this court to resolve this issue is say fine even if you accept ultratech claim construction that  their patent despite the language that you point to judge more about talking about a voice pattern in an accent even if you accept argue window that their claim was limited to one specific agent at page a ninety five sorry to give you another what the board does at page a ninety five of the one thousand nine hundred and ninety eight appendix and this is the final written decision of the board that i'm quoting from here's what it says it already addressed the construction in the alternative and here's what it found moreover we are not persuaded by patten owner that a person of ordinary skill in the art would interpret ryan as only disclosing software written specifically for a group of people so you have a finding by the board at pa wrote at page twelve indeed caption called does not contest that is this court finds that the software must be trained to individual voices and that's the argument i'm saying i'm happy to accept for purposes of this argument that it's an individual voice here's what i'll do to access quote the software must life wise detrained after development so what ultratech says as a logical matter if you agree that either the patent or ryan discloses that it reads on just one agent this claim so again you can accept ultratech claim construction that the training even though the patent doesn't say it the training has to happen after the fact even if you accept that fact well then again we have expert testimony i'm sorry your honor i'm sorry our expert saying how training happens after the fact because this ryan discloses speaker dependent software that has an algorithm that allows for training after the fact said thank you your honor m respectfully as a reviewing court we believe that this court should review the board's b r claim construction to see if it's correct and you think that through any time a patent expires between when the board directors decision and when n you find it incorrect then we think the court should apply philips but in the st instance as a reviewing court we think you should review the board's claim construction i don't understand what your answer it just was so you're you're saying we look at p r i and we say we shouldn't apply b r i and we just say that the construction was erroneous and then they get a nd bite under philips i'm not clear on what you say right if you find that the board's b or i construction is erroneous then going forward this court because the patent has now expired would use a philips construction so mr mcclintock i got to be honest i thought that this was recognise that and the board had in front of it a patent which had been reviewed under b r but then the board on rehearing turned around and redid it under philips recognizing that if the patent expires in any time in the have to review b r i even when the patent expires in between maybe there's a reason for a presidential decision in this case because that just seems to me completely inconsistent with all of our with our approach consistently applied to a number of cases on this general point what are your thoughts about that so we agree your honor that at the agency when the patent expires before it gets to the board before a board final written decision or during the examination  apply but like we said as a reviewing court if at the time the agency applied it was the correct standard to apply then we think in the st instance the court should review to see if that when the p t o switched course and went to the philips standard so i'm wondering how much is left in the pipeline that would implicate question do you have any sense of that i know it's been a philip not the broadest reasonable construction it doesn't seem to me that we put any at all on that clear broad statement an apple i mean i'm honestly kind of surprised i'm not surprised  that you're a man with limited but i'm genuinely surprised that you think it's still somehow an open question as to what standard we ought to be applying right now so your honor i agree about that is the language of apple versus  ask i'm sorry to prolong this but i just have to go back to one point you made which i was just confused by internet ormal i p r if we disagree with the board's b r i c construction is it your is that is it the offices few that we then have to alternatively say well it would have held up over philip's are you saying that the because of the posture in this case even though you don't agree with us as judge moore said that you should be applying phill that there's something different about this so you get two bites at the apple in the circumstances not one i'm sorry your honor i'm not sure i completely understand that question could you repeat it ok actually given in the interest of time i will just drop it  their heads that are captions appear on the screen yet i don't need a manual for that and you can't have a manual for you know the whole system he observed how it worked he worked in the industry for decades and they don't point we thank both sides in the cases are submit