has followed instructions for use but then when the pool when that when the board applied that claim construction to the on reference the board added limitations in connection with each of the different disclosures of the own reference in connection with the response button  the board added a narrow limitation that the reference had to disclose the time at which the instruction please respond is given the creation and in connection with the player time indicator the board added and there a limitation to the well articulated correctly was morphed in the way that the board applied it to the prior art reference and in that sense the board did a really nice we construe the claims because the board did require the disclosure the reference to disclose the time at which instructions given to a patient and with respect right now as it is they didn't see anything and only that supported their right and one example of a way to support that notion would be some record of data showing  when the patient was prompt that's correct your honor and that the time that the instruction is given is one of the pieces of data that is stored and transmitted in the own reference which we've pointed out in our briefs but it took to the point even even without risk respect to the time that the i mean that the instruction is given to the patient the thing that's important to remember here is the disclosure disclosure and ellen is all about pushing the button in response to an instruction to do so now why is that what what ellen teaches only teaches that because it's trying the device itself is trying to decide whether or not this patient should get a shot or not and the claim construction is whether the the the construction of patient compliance data is data indicating whether a patient has followed instructions for use now the only reference does teach storing and not data to determine whether or not that button push was an instrument in response to an instruction because that's how the device knows whether or not the shock so i submit to your honor that the disclosures you can push the button actually don't write you can't push the button accidentally and for purposes of just deciding whether or not owen anticipates those aberrant button pushes are really not relevant what is relevant here is the disclosure a knowing of pushing the button to stop the shot that is the date the device does store data to determine whether or not the number one instruction please respond is given but if the board that your argument was based solely on the recording of button presses then there's a question as to there there that's kind of in a vacuum right and then they don't know that they can't tell just from that teaching alone whether it was in response to an instruction to press the button as opposed to patient you know laterally electing the president but perhaps accidentally work for some other purpose right right the response button is pushed in response to a quote please respond verbal message this is the important part so as to confirm patients patient consciousness or not the device is storing data that tells whether or not the the button push is in response to an instruction such that a shot should not be delivered that's the critical thing here so in your honor i think dr f i'm off to argue that in his deposition that the whole point of the button push in response to an instruction to and you needed to give some context to right why the pattern was present this particular time that particular i'll give you two answers to that your honor number one the claim doesn't talk about and a doctor down the line using the data that's stored to determine compliance the claim simply requires that there be data to determine compliance and the other thing that we know is that owen does disclose number one the delivery of a message please respond to the timing of the delivery of the message please respond the time the button the whether the button is pushed in response to that message and the time so we do know that pursuant to the board's original construction data indicating just data indicating whether or not the patient is complyin data indicating whether or not a patient has complied with instructions for use and only institution decision the board when applying that construction to the own reference and additional limitations the time in which the instruction was given actually was very creative loring on the part of the police and what i mean by that is the disclosure of ellen did not change and the construction is articulated by the board did not change data indicating whether a patient has followed instructions for use on the institution decision the board found that in other stuff that the base patient pushed the response button that that only discloses pushing a response but in response to an instruction to do that was patient compliance data what happened was during  depositions and at oral argument back to oral argument for the very first time cancel argued that it can't that button push in response to an instruction to do sell can't be that without some assurance that it wasn't some other kind of button push that it wasn't one of those aberrant button pushes well the reason that i say that's creative lawyer in is because what we're what's important here is whether or not owen does disclose some embody meant that intice a paid and it's the embodiment that the board was focused on it in it institution decision namely pushing the button in response to an instruction to do so that does show by a preponderance of the evidence that that owen anticipates the properly construed claim point to in the reference the only reference says that the device will give a message of indication to the wearer by a visual message and also and or a verbal prompt that you've been watching wearing the device greater than the recommended period of time we say that's patient compliance data that is stored in transmitted owen says it's patient it's data that's stored in transmit it and it is patient compliance data within the meaning of the board's definition of data indicating whether a patient has followed instructions for use the board the board's analysis there added an additional limitation of basically that the instruction of how long to wear the device has to be given to the patient because owen didn't disclose that the instruction was given to the patient the board found there was  no patient compliance data using that aspect of the disclosure and on your honor i submit to you that that that is incorrect because even the zero zero three patent doesn't talk about disclosing to the patient what the recommended where time is so again we're talking about the pet the proper construction which the board articulated data indicating whether the patient has followed instructions for use is satisfied by their own reference above under the bridge construction  could not infringe and will exactly that's right if under the forth words morphed construction aboard the construction as applied by the board which is to say that there must be some disclosure that the instruction of how long to wear the device is quite instructive in this regard and why is it that i think that you can reverse based on the record that you have in front of you and there are several several things first of all the board did make findings of fact in this institution decision that bear on whether or not all these other claim limitations are met like for example storing in transmitting and that sort of thing and also in connection with deciding that the claim one was anticipated the board found that each and every element of claim one is  n reference now seven apart from that there is the institution decision in the institution decision the board did adopt meaningful function definitions or the proposed constructions that were offered by rest itself to this decision to institute two other findings that when the in the final written decision basically with respect to claims that were found obvious to the claims that were reversed excuse me the claims that were cancelled you evidence standard because what we have here is you have a claim construction that's not disputed and when you look at the cases that were cited by appellant the cases where they say there's an issue of the application of the claim destruction when you look at those cases they were appeals from district court decisions involving grants and summary judgment in which claim construction was disputed so there's a denote a standard of review for claim construction and you know both standard of review for the summary judgment the entire appeal i when it comes to the main event implying that what one could see is perhaps a medic instruction where a noun is a construction of a construction and then that is used to figure out whether or not a reference transform a substantial evidence inquiry into a claim construction issue when there really isn't a claim destruction issue and in the abbott case which was cited by appellants there was a express mor construction where the claim construct the claim term required substantial something to be substantially fixed the construction was that it allowed for some movement and then in applying that construction what the the court said is i'm going to look for whether something is somewhat restrained so it expressly changed its construction nothing like that happened here in the board's decision the board was very careful to say we have line three four and that the board had limitation  for context the in dish of patient compliance was what was disclosed in knowing sufficient to teach someone of skill in the art whether there was patient compliance data from these button pushes or about what the patient actually did and the board consistently looked at in disha of compliance in the context of the disclosure of own it did not add limitations or redid limitations so you have to look at the disclosure button was pushed without tying it to a prompt or an instruction leaves no information to the person looking at that data and soley for you have information of the bunch pushed so that it's not that data indicating that a patient followed instructions for use and so there has to be some think about the data that connects the information with the instruction yes we have a philosophical inquiry here it's like how do we  from which perspective are we supposed to look at this data we're looking at the person at the data from the perspective of someone that reads this data three months later who's trying to figure out what is the data mean then maybe you have a point if we look at it from the perspective of the patient the patient knows that it was complying with that data and maybe even by whoever the proctors the proper will have a record of that that  time in response to the wrong so we so we have to understand all right from which perspective are we supposed to understand the data and terms of patient compliance to the patient is complying with a with a prompt i mean there are that's what the environment is talking about in you know so it's i understand the philosophical nature of the question but what we have to do is look at what is at issue we have medical devices that have been prescribed for certain treatment people in this field understand what the term patient compliance data refers to and of refers to data indicating that the patient has followed instructions as the board construed it and a push of a button in this instance to disarm the device which is what its use for it says if you're about to get shocked if you have if there's a cardiac event or the device is malfunctioning it says it gives you a warning and this it's like a panic button and so pushing the button is that most indicative of using the device and that the construction that the other side proposed to the board w that compliance stated was anything relating to use of the device and the board rejected that because that construction does not put significant weight on the word compliance and so mr brock or in his declaration seven it does a lot of different things including the things so that the there is no i wouldn't say that there is no specific disclosure of storing the time of the prompt the prompt may be stored there is a line to know and that says voice tone and buzzer prompts may end up in the in the memory logging block but the discussion about time law which was never raised at all before the board this this is the waiver question that  honor asked his restaurant it's conceded that it never argued to the board the time of the prompt being stored in iowa and there's nothing in iowa and even taking that argument out it's at its face value there's nothing connecting the time disclosure to those problems it's just a general statement that they're at a time of an event may be a part of the law but when you look at the disclosure in that paragraph of  owen which was never cited below to the board as patient compliance data when you look at that there's nothing connecting it to the the province it's it's actually talking about data that's sent to and from defender later not the internal operations of the defender later so this is an anticipation case and so from an anticipation standpoint referring to that abstract statement is not sufficient plus it was never submitted to the board and opposing counsel conceded in their rehearing petition to the board that this issue was not raised the argument that was made and in opening today that well this was clever lawyer and this just came up by so i think that's that's a complete red herring argument because this is an anticipation case and it's appellants burden of proof to show anticipation and the original petition did not even mention the button press it did not mention the visual indicator about this this expiration of the the time between the connection with the electrodes and the harness so there's no way to fault it's a fault to our side for racing arguments that show that that there's not been a showing that the button press or the visual indicator or patient compliance that the the one point that that was made in the opening about well the patient compliance data limitations that the button press was just on differentiated data there was no context around that and the visual indicator that that that did not reflect compliance with anything in restaurants as conceded that that data about the time the harness was connected to the to the defender later is not related to the amount of time the patients actually worn the device so it's indicative of nothing it's like a warning light coming on in your car that's as three months of elapsed since you last change your oil but it doesn't say whether you change your oil whether you notice the light or anything that actually was done in connection with the during the i p r proceedings and so it declined to address it for that reason although it's said even so there is no disclosure or no evidence that a person of skill in the art with understand recommended to mean recommended to the patient as opposed to the concept that these electrodes have a certain life it's basically they did and that's what happens they deteriorate and so what in the device you connect the  it's connected to the you know when it's how long the electrodes are connected electric harness is connected to the defender later it's not necessarily connected to how long the patient wears it your hypothetical information about the patient wearing the wearing the device it's literally a count down for how long the electrodes harness being connected to the defender later and restaurants expert has conceded that it's not related to the amount of time that the patient wears the device that there's nothing related to this indicator that the indicator does not have any relation to the patient actually wearing wearing the device if it's literally acute the result of a countdown the like comes on after a certain amount of time and it's not it doesn't provide any information to a caregiver about how long the patient is actually been wearing the device that that was clear from the record indicate that a button push was in response to a message to do so and what we know from the own disclosure is that the data will tell us whether or not the button was in risk the push was in response to instruction to do so so oh and the data doesn't indicate patient response to a stroke well that because the data stores whether or not a button a message was given what the message was please respond when it was given if the patient pushed the response button and the time it was hot response button was submitted in response and the date at the data will also indicate whether or not a shot was given so the device itself knows whether or not you should comply with the instruction to push the button if that and the device keeps track was a shock it was a shot not given it's a shock wasn't given that that data indicates that the patient complied with the instruction to push the response fund so it's the data that tells whether or not the patient complied and it's the disclosure in ireland that there can be such compliance that the patient can respond that's part of it i think i've even even if there's no data on whether or not the shock is given that the device keeps track even under the but the board's morphed construction that you have to disclose the message the time the message was given undoubtedly discloses that when the message is given to the patient when the patient responds in fact only discloses a whole training protocol so the device can kind of learn how quickly this patient responds to a message so we know that the device stores when the message is given when the patient responds in fact it stores how what their response time is over repeated training protocol that's all the boards even the boards more construction requires so if i may turn to the recommended w