these i'd like to discuss her is the issue of the hospital data there were two sources of data used in the intensity signal processing software for reduction in practice data taken hospitals for patients in data tak due respect any issue about the hospital data and certainly didn't raise an issue about that the verb raised the question of whether the hospital data had to scream with links and motion support for mr yorkies testimony and as to how he reaches the final conclusion and mr yorkies said for example he wrote the software so he based his assumptions on the amount of motion is the same at the time for each of the intensity signals for each wavelength and that the motion components are proportional he stated that but the problem that the queen had was that there  assumptions how they were implemented within the software that was just not put before the court so the court couldn't just take his uncorroborated conclusion much like you said today which is essentially the proofs in the pudding and and the mathematics and that's what he testified to this declaration well even tune that just for sake of argument that that is correct and the board had not turned it in brown to i'm saying that it didn't implement the subtracting limitation  even if even if for example one is larger than the other at the start that's where you do well and differentiation by taking a log of the first and then differentiating the who taken in effect differential which is the rate of change of the two and the rate of change of the two from because of the assumption is assumed to be the same if m for some reason these these assumptions were correct he would have got the right answers but he did give the right answers because the assumptions were built into the software and in fact what i say because the that the point we want to get across is that totally aside from whether mr baker had personal knowledge of the taking of the hospital data he had knowledge they both have knowledge of that data because they used it looked at it and put it into the knowledge is it their proof that what is actually solved in the second method is not a matrix what these signals are actually put into a representation is not a matrix it's  by their own experts description of what happens like what's described in the yes closure a matrix is never used in the actual method of calculation maybe somebody trying to come up with their method start with they don't have they do not put the signals corms representations into a matrix and they do not solve the matrix right they put them into electrons an option which is not a matrix and they solve that  bar is whether the obvious closeness saddling all three functions or whether we disclose what we contend is simply using one of the signals to create a voice reference using that noise never gets or how to say that the third function so what they do is they say well the use of the third signal to created or useful is part a step in solving all three functions but then they never get around to saying we're is the third function saw they say well we have possibly we have the boys reference the boss of a nation and we have the filtering and then we have the other two signals and it's all from that so they say you're testimony when jack there was nothing in the interpretation of the claim thirty nine which would cause one to make a leap to the conclusion that off three wavelengths were involved and  you construe the play to say solving three functions when it says solving the functions and the and the and the question back there was directed to say if you it doesn't say three you wonder why these people know what they're doing that you say solving that functions and looks and says why did you just say solving the functions rather than solving three and he looked back he says i look back at their disclosure and i see why they only saw two of those so therefore he says i believe language for you know functions and we're going to read that since three functions are talked about must mean all three if we're going to construe claim thirty nine as solving all three then our position is it's not supported because a disclosure doesn't solve all to put it bluntly the board did an absolutely stellar job in dealing with each of these as you can see very complicated and very technical arguments most of what mr morgan just explained to you this morning is either a new argument not a record or a complete disregard of the board's finding with regard to the issue that he was attempting to attack as first understand with regard to the first count on the reduction to practice in order for your key to succeed your d would have to convince this court that the board committed legal error at least four times with regard to the reduction in practice or the lack of substantial with regard that we have a slight mismatch in the standard review they fail to even establish a crime if they should case so substantial evidence standard is quite not applicable when there's a failure to establish a crime if a she case we will assume for purposes of our discussion that all of their evidence on the crime aphasia case is to be believed and accepted they need to show a legal error with regard to the board finding missing elements or missing or the lack of evidence with regard to certain limitations so that it's really neagle errors more appropriate with regard to count one and so they really need to show the legal her with the boy's conclusion that the privatization case failed to establish that you were some juice which we just mentioned the failure of the software to subtract motion the fact that the input data did not have two different wavelengths to measure the patient oxygen saturation and did that data also include the fact that the data the patient was moving at the time of the input the word holding with regard to the data not the software is where the board said there was a lack of personal knowledge by the clarence to even know what was included in the data or you missed the breakers or cory and mr york is neither of them had personal knowledge with regard to the hospital data that cooling of the board is not even attacked by york and that is on page eight one twenty seven and for simplicity i'm going to refer to the board's opinion in the joint appendix not in the blue brief because there's a mismatch in the page citations the blue tree has the opinions but starts at page one but the joint appendix has the correct citation page so one eight one twenty seven the poor made a finding that is not a challenge on appeal by your king and that was there was no personal knowledge as to what was in the data didn't really have didn't really emanate from two wavelengths and didn't include motion components now mr mor came up here and has been busy trying to convince you that it includes those things but the record doesn't reflect that there was a failure proof the board said nobody had personal knowledge but now i feel that holding is not attacked was attacked they argue that they should have been given a chance to fix that evidence to supplement the record and back to requiring claims that was a denial due process for the poor not to allow them to fix it that's been knowledgeably that the holding was correct and that they need additional evidence to mete out at least those two aspects of the claim the first two limitations of the claim and that is to wait wait including motion have no reason to doubt his knowledge about these products the trouble is the record doesn't happen the board doesn't know that that the clearance didn't explain and so what is the board supposed to do when all they have now is arguments he had no personal knowledge that it met the two first two limitations of the count as familiar as he thinks he was about the data from looking at the output charts he gave some explanation all looks like it may buy the thing at the output but that's because there was a deficiency in the proof with regard to what he knew on the input the data and there was no evidence of that at all i'm not assuming anything i'm just reflecting with the record shows and the record failure proof and the poor can not be criticized for making a holding that they're entitled to make regardless of whether or not we made that same objection because there was a failure on the prime official case so our response to the power of fifty cases really not relevant it's that prime facie case was defective right from the star with respect to priority with respect to priority and at least for a grand as we've only discussed the input data the other problem the main problem the board found is that there was no explanation as to how the software implemented the rest of the claim the ada methodology as they call they explained in their conception about the ada methodology and they explained their concession implements the claim th count count one very good and the board doesn't take task doesn't take them to task on the conception but nowhere did they put that conception analysis and explain it in the actual reduction of practice which the software itself and so most of the citations in the brief to this court by mr by you are are really citations to the conception evidence not to the actual reduction of practice so when you hear the explanation today or in the briefs the explanation about the law differentiation and all that as a methodology all of that is really talking about the conception and not the actual induction of practice quite frankly you are  no where did they show in the software subtraction of motion nowhere to show in the software motion to begin with let alone the subtraction or without subtraction of motion where would we be able to get a reading without using the the motion and that you are able to do in fact they didn't even they didn't even explain the code with the count which comes to count one in the first appeal the fifteen seventy seven failure to show actual reduction to practice and so the poor cannot be faulted for say i missed your argument you didn't give us any explanation of your software how are we supposed to know where in the code it performs all these calculations party could establish legal err on the actual reduction in practice i'd like to move onto the written description of count to with regard to the detox claim sixteen this is in the first appeal count to diaz sixteen that's why he might was not presented to the board and a timely fashion in count two of the written description this is a substantial evidence question this is the dueling experts here we have two experts by heads over what the however it certainly is substantial evidence there is no question that there is a scorcher of the know the uncorrelated data and the board said it's disclosed in the application up sixteen that we're talking about with regard to count two not the rocky three which is what mr morgan's entire argument reflected these claims were not copied to form the count so the written description issued before the court is d op sixteen not you or the three the sobbing the matrix bad language is not in the op sixteen that's the language and you are the three which is not issue for purposes of the written description this is the appeal fifteen seventy eight the second appeal there's one count and priority is not at issue here the only question are the motions and the only motion that mr morgan referred to claim construction was an reasonable we did have a little mismatch on the standard of review with regard to the claim instruction in this appeal but it appears in the reply brief they seem to now agree standard review on claim construction from the know it's was the construction reasonable and their argument was it wasn't reasonable that the claim should have been construed more narrowly to have two functions plus an approximation st issue number two points out that regardless of the claimed construction of thirty nine regard doesn't substantial lead in its support to the board's determination of an interference in fact because you are never to challenge the claim construction of your key claim six your claim six for the further implementation and embodiment won both of those use a matrix and in fact what the board held if the board was standing here they would say to mr morgan you offered no evidence how the calculation could be done without a matrix the matrix is assumed throughout the specification it's fully explained there's no to be fair to the poor we have to use the language of the right claims pertaining to the right count and i realize this is a little thick but the board's analysis goes through each of these holding of the point i'm making now with regard to the second appeal which is the easy way is if your cover is the claim under either claim construction even if it's just two signals and an approximation stat if you already covers it either way and you didn't challenge the yorkie construction we're done there has to be an interference in fact that whole thing is on a sixty four in the second appeal it's a pretty detailed analysis on a sixty four and here the board concludes it says dr bauer testify the stat of approximating the first and second signals is a step in the process of solving three functions and instead excluding such an approximation stat you have always claimed it would probably be construed embrace  value to the saturation i did a diagram explaining how the three functions are used to calculate saturation math the language is ideas and this plane you just need to use the three functions to all simultaneously or directly because there are and how they backed off on that the question is do we use all three functions to tackle saturation absolute there's a declaration on that from our expert i don't see how we can just disregard the expert declaration under these circumstances so but because but regardless regardless of how it's construed whether it's two functions or three even if dr bao didn't submit decoration is not challenged so therefore the board was correct in finding and in a ference in fact with this motion to in the and that analysis is on a fifty eight through concluding with a sixty four and the conclusion on a sixty four is the alternative holding said you lose either way or because your claim to the school using two functions plus a feedback or reference you still lose