And that this morning is number 06-1228 in-rain masters. Mr. Miller? And you reserved five minutes for a rebuttal, is that correct? Yes, Your Honor. Go ahead whenever you're ready. Thank you, Your Honor. May it please record the decisions of the board should be reversed because they are predicated on claim constructions that are inconsistent with the text of the patent applications and inconsistent with the understanding of the skilled artisan. In both of the decisions, the board can stream texture include a smooth surface, which is contrary to the specification. In the method case, finding no definition of the specification for the term imparting, the board adopted a dictionary. Mr. Miller, let me ask you how is, where did they actually say texture was the smooth surface? This is in both opinions that this is a consolidated case. On page 817, at lines 3-5 at the end, thus the broadest reasonable interpretation of texture will include smooth as well as non-smooth finishes
. And why is that wrong? I mean, everything has a texture, doesn't it? I mean, it can be a piece of glass, has a texture, albeit it's very smooth, whereas a piece of sandpaper has a different texture. It's rough. Yes, Your Honor. But, I guess I'm saying, doesn't any surface present a texture of some kind? Yes, Your Honor. Yes, it does. But someone skilled in this art, someone skilled in the art of designing and manufacturing area instruments, would not conclude after reading the patent applications in their entirety that texture in this context, in the claims as used in the patent applications, would include a smooth surface. What if you just had, having been part of the textured surface to a hearing instrument, so I wouldn't have cleared it up. And the textured surface would not be smooth, but every surface has texture, what? Well, what makes a person skilled in the art, whether it were texture, and read it is textured? Texture? Yes. Texture would say to me, clear it up. I mean, if you wouldn't think of a smooth surface as one being textured
. Well, we didn't propose that particular language, it might, but my suspicion is the patent office would reject it as well. I'm just thinking in terms of why the person skilled in the art would have thought as well. Well, the purpose of the invention is to prevent the hearing instrument from slipping out of the ear. And if it's smooth, then it's going to fall out. So the inventories came up with this idea of making a surface that's non-smooth, and that's explained right at the very beginning of both patent applications. Both patent applications, of course, have the same test. Well, it could still be smooth and be larger than the hearing, the analogy, pressure. That's right, but that would be an interference fit, and that would not, I'm sorry, I didn't know. It would still be textured though, wouldn't it? Even though it's smooth? No, you're right. Not in the context of this patent application
. It cannot be smooth because it defeats the purpose of the invention. That smooth texture would not be covered. Oh, excuse me. In the case where you said it's larger than the ear can out, there's no... No, I'm sorry, I can't agree with that because... The texture, the smooth surface is disclaimed in this patent, it means back to applications
. To say that it would stay in place, I would agree with that. Am I answering your question? Well, that's the reason why you're saying it has to be textured, so it would not fall out of the ear. That's right, because it's not an interference fit. It barely makes contact, but enough contact to stay in place. It's a sensitive area, and people skill in the art are concerned about making something out of it. That's going to hurt the wearer. So there's a trade-off there. Well, let me ask you, though, the prior art here, I guess we're talking about..
. Well, it was Widmer 1 and Widmer 2 and Herpens and Yost. Yes. Didn't they all, and you'll correct me if I'm wrong, but didn't they all present some kind of a texture? In other words, some kind of a non-smooth surface. Yes, Your Honor. As the claims were construed by the pact office, reading texture as the pact office proposed, they did. But no, even don't they have... Well, how do you.
.. I mean, they're not totally smooth, are they? No, they're not. But Herpens is a piece that sits in the outer ear. It's a decorative piece to cover the hearing instrument. It's not in the ear canal. Is that the one that has the mesh kind of coming? Yes, that's hercums, okay. That's hercums. And Yost has the round cushiony sort of..
. That's correct. But there's no discussion or any teaching within the applicant's patent applications for adding something to the surface. It's a modification of the hearing instrument shell itself. And as to Widmer, those are reinforcing ribs. And by and large, Widmer speaks of an internal structure. But there are, of course, a couple of them, at least one figure. I think it's figure 18, if my memory serves me correctly, which shows an external rib. And the question becomes whether someone's skilled in the art reading the patent application would contemplate adding such ribs. And those.
.. This is an A9... Yeah, that's what I'm saying. I mean that certainly presents what I guess anyone would think of as a textured surface. The one at A964? Yes, Your Honor. Yes. That's correct. That's the outside of the hearing instrument
. But the reason for the appeal is to first ask for proper claim construction and then applying the art. Not to look at the art and say, well, we could construe the claims away. But start with the patent applications, reading them in their entirety, determining what the words in the claims mean, and then moving to the art. The other term I believe I can finish this, but in the method case, there was no definition. The board found no definition for the term imparting. And the board instead adopted dictionary definition despite consistent use of that term throughout the specification. The board also can shoot hearing instrument as including any devices assisting hearing, contrary to its use throughout the specification, and is that term is used by those skilled in the art. The applicants would like to resume prosecution of the applications, but under the present circumstances given the current construction, no amendment would yield meaningful coverage. Although three rejections have been acknowledged by the directors not being defended, that doesn't render them move. It doesn't remove those rejections from the record, nor is it incur the improper claim construction
. The applicants ask that the court reverse and vacate the board decisions and remand the applications to the patent office so that the examiners can revisit claim construction. We also ask that this court instruct the patent office to construe the claims from the perspective of the person's skill in the art reading those terms within the patent documents in their entirety. Thank you, Mr. Miller. You'll have your bubble time. Mr. Krause? What do you have to say about the claim construction? Well, the board did exactly what Mr. Miller suggests that they did not do. That is they did construe the claims with regard to the patent application in its entirety. Looking into the patent application, they found a place where the applicant clearly defined the term texture. Where was that the... 817, one of the applications that rates identically in the other. 817. Yes, Your Honor. And near the top of that page it says a series of lines 50, equally or unequally spaced, figures 3 and 4, or plurality of shapes, e.g. ovals and circles and figures 5 and 6 respectively, or some other pattern predetermined or randomly generated. The board looked at this and said there is no limitation here on the size of the lines or on the shape of the lines
. Where was that the... 817, one of the applications that rates identically in the other. 817. Yes, Your Honor. And near the top of that page it says a series of lines 50, equally or unequally spaced, figures 3 and 4, or plurality of shapes, e.g. ovals and circles and figures 5 and 6 respectively, or some other pattern predetermined or randomly generated. The board looked at this and said there is no limitation here on the size of the lines or on the shape of the lines. And then it properly turned to the prior art and saw the Widmer reference and looked at the ribs in that which seemed to it to be a series of lines evenly or unequally spaced or in any event some other pattern predetermined or randomly generated and said this falls within the definition of texture as it appears in the patent application. And that is the normal process of claim construction of personal skill in the art and looks to see how the applicant used the term. That's what the board did here and that's what texture means for purposes of this patent application. Where would we see in the... In the board's opinion, the precise articulation of the claim construction. They can..
. And then it properly turned to the prior art and saw the Widmer reference and looked at the ribs in that which seemed to it to be a series of lines evenly or unequally spaced or in any event some other pattern predetermined or randomly generated and said this falls within the definition of texture as it appears in the patent application. And that is the normal process of claim construction of personal skill in the art and looks to see how the applicant used the term. That's what the board did here and that's what texture means for purposes of this patent application. Where would we see in the... In the board's opinion, the precise articulation of the claim construction. They can... through several claims, claim terms right in a row. And near age A16, I believe. The A16 is in one of the opinions. Right here, they explain that towards the top, the pellons disclose the texture and then the part that I quoted from A817. Okay, and then they go on. We don't have to look at extrinsic evidence because the applicants are at pellons specification, clearly defines textures, texture. And then it goes on in the prior section of the brief to use that definition and apply it to Woodmer as I've mentioned. Okay. Thank you. So I think that's despisitive of the question of whether there is a texture and the Woodmer reference
. through several claims, claim terms right in a row. And near age A16, I believe. The A16 is in one of the opinions. Right here, they explain that towards the top, the pellons disclose the texture and then the part that I quoted from A817. Okay, and then they go on. We don't have to look at extrinsic evidence because the applicants are at pellons specification, clearly defines textures, texture. And then it goes on in the prior section of the brief to use that definition and apply it to Woodmer as I've mentioned. Okay. Thank you. So I think that's despisitive of the question of whether there is a texture and the Woodmer reference. And see other claim construction issue that Mr. Miller raises is the board's use of a dictionary definition to define the word impart for purposes of the process claim, which is simply imparting a texture to a hearing instrument. Shell, that term, unlike texture, is nowhere defined in the specification. So the board properly looked to a dictionary to define that term and found a definition that to give or to grant or give rise to by contact, association or influence, check that definition consistent with the Phillips case against the specification found that that definition was consistent with all the usages in the specification and then look to the prior website by the examiner and found that first, Woodmer certainly applies because the Woodmer reference imparted the definition of the word impart. A texture by means of the very laser centering reference method claim or discuss the specification of the applicant and then second, look to those two other references, Jo's to Perkins and found that although the texture there may have been applied at a different part of the process, maybe wasn't integral to the hearing instrument in those cases, both of those prior references clearly imparted by the definition of a texture to a hearing aid shell. So that covers both of those definitions, those are the two claim instruction issues. Was it properly used a dictionary and determining a definition of imparting that? Because they did use a term and parting in the application. Yes, they did. In the context in which they use it is important for construing the term, but at the end we need some reference to decide what the scope of that term is. We can't simply look at every place they used it usually in discussing a preferred embodiment and say now we know what imparted means
. And see other claim construction issue that Mr. Miller raises is the board's use of a dictionary definition to define the word impart for purposes of the process claim, which is simply imparting a texture to a hearing instrument. Shell, that term, unlike texture, is nowhere defined in the specification. So the board properly looked to a dictionary to define that term and found a definition that to give or to grant or give rise to by contact, association or influence, check that definition consistent with the Phillips case against the specification found that that definition was consistent with all the usages in the specification and then look to the prior website by the examiner and found that first, Woodmer certainly applies because the Woodmer reference imparted the definition of the word impart. A texture by means of the very laser centering reference method claim or discuss the specification of the applicant and then second, look to those two other references, Jo's to Perkins and found that although the texture there may have been applied at a different part of the process, maybe wasn't integral to the hearing instrument in those cases, both of those prior references clearly imparted by the definition of a texture to a hearing aid shell. So that covers both of those definitions, those are the two claim instruction issues. Was it properly used a dictionary and determining a definition of imparting that? Because they did use a term and parting in the application. Yes, they did. In the context in which they use it is important for construing the term, but at the end we need some reference to decide what the scope of that term is. We can't simply look at every place they used it usually in discussing a preferred embodiment and say now we know what imparted means. There is a general definition of impart as the word found which is consistent with all those usages. Just a common meaning. That's precisely right. And in fact in the specification itself it gives support to the board's use in one place. I decided on our brief it equates the word in part with the word created. That's on page 8 425 and on page 8 430 in the specification. The board uses the examples of a texture is imparted to the surface. This is on a 18 and imparting a pattern to the surface of layers. And then the appellants also use the word creating synonymously with imparting. But then they went forward and pointed out that the extrinsic evidence of a dictionary definition were an important means to give a grant
. There is a general definition of impart as the word found which is consistent with all those usages. Just a common meaning. That's precisely right. And in fact in the specification itself it gives support to the board's use in one place. I decided on our brief it equates the word in part with the word created. That's on page 8 425 and on page 8 430 in the specification. The board uses the examples of a texture is imparted to the surface. This is on a 18 and imparting a pattern to the surface of layers. And then the appellants also use the word creating synonymously with imparting. But then they went forward and pointed out that the extrinsic evidence of a dictionary definition were an important means to give a grant. You arise to say they went ahead and determined from a dictionary as to what it meant and so is that consistent with Philips? I believe it is your honor. In that there is no place in the specification where the term impart is defined. There is no suggestion that it be limited to the particular methods disclosed by the applicant. The applicant says this texture can be imparted in any number of ways not even specified. So I think under those circumstances it's appropriate to look at a general definition of dictionary and a dictionary. Part of the problem is here in the pattern office we apply the broadest reasonable interpretation of the term. So it's dangerous especially at our level to read limitations from the specification into the claims because that can result in an error or I'm sorry a broader claim issuing which in some cases may in an infringement litigation be read to literally encompass the prior art. Here if we issue to claim that imparting a texture to a hearing aid shell it's not completely clear that people practicing the workings or the used application would escape infringement. That's why we encourage applicants to amend their claims to specify if there are ways of specifying that the idea was to modify the surface. Then that still would not have escaped the Widenberg two reference which specifically does modify the surface
. You arise to say they went ahead and determined from a dictionary as to what it meant and so is that consistent with Philips? I believe it is your honor. In that there is no place in the specification where the term impart is defined. There is no suggestion that it be limited to the particular methods disclosed by the applicant. The applicant says this texture can be imparted in any number of ways not even specified. So I think under those circumstances it's appropriate to look at a general definition of dictionary and a dictionary. Part of the problem is here in the pattern office we apply the broadest reasonable interpretation of the term. So it's dangerous especially at our level to read limitations from the specification into the claims because that can result in an error or I'm sorry a broader claim issuing which in some cases may in an infringement litigation be read to literally encompass the prior art. Here if we issue to claim that imparting a texture to a hearing aid shell it's not completely clear that people practicing the workings or the used application would escape infringement. That's why we encourage applicants to amend their claims to specify if there are ways of specifying that the idea was to modify the surface. Then that still would not have escaped the Widenberg two reference which specifically does modify the surface. That's the answers. I have nothing further plus the panel has anything for me. Thank you Mr. Kraus. Mr. Miller. You have your full rebuttal time plus I think a little additional that you didn't use so you have six minutes fifty seconds. Thank you Your Honor. The pattern office is an instruction and the part of the brief a part of the board decision excuse me and our application where it does talk about a series of lines and what have you does not address the entire construction of texture that the board found. I only gave you for one opinion but on a 17 lines three to five you have for the method case and again on a 37 down near the bottom the broadest reason for interpretation of texture includes smooth and not smooth
. That's the answers. I have nothing further plus the panel has anything for me. Thank you Mr. Kraus. Mr. Miller. You have your full rebuttal time plus I think a little additional that you didn't use so you have six minutes fifty seconds. Thank you Your Honor. The pattern office is an instruction and the part of the brief a part of the board decision excuse me and our application where it does talk about a series of lines and what have you does not address the entire construction of texture that the board found. I only gave you for one opinion but on a 17 lines three to five you have for the method case and again on a 37 down near the bottom the broadest reason for interpretation of texture includes smooth and not smooth. So that doesn't address the claim construction as a whole and as it stands now when we go back to the pattern office that's the construction we confront not not the limited construction that might include the lines and what have you it's smooth and not smooth really as we say it doesn't matter what what's on that surface virtually anything would anticipate. As to the term in in part in Phillips case and many other cases I believe I don't think which was cited by the path office talks about implied meeting it can be implied and based on reading the patent applications in their entirety one would see one skilled in the art to whom this document is directed would understand what it means. And we submit that the path office went beyond that they brought a meeting and there was no need to go that far and it's a parting a texture not just in part by itself but as as the cases say. Excuse me you're a definition of imparting is modifying the surface of the hearing instrument cell. Yes sir. How does that make much difference to the dictionary definition because we're not adding anything there's no there's no teaching in the specification of either the hand of adding something on top of the shell shell of design to fit more or less securely within the ear canal and not add something on the top of it. And you think the definition give rise to or by contact association influenced me to add to yes you are yes you are at least at least some extent again as I stated we have not amended the claims were fully prepared to mend the claims but under the two step procedure first properly construe the claims so we understand where the boundaries of the invention are and then as need be we would amend the claims to amend the claims prior to get the construction we run the risk of a radius of for fitting patent of the subject matter area. Finally the teaching and Phillips about reading the terms in the context specification is not inconsistent with the board is reasonable meaning because broadest reasonable interpretation is consist has to be consistent with the specification and has core right which we cited throughout the record also has to be one that someone skill me or would reach if you have any further questions I think. No I think you're all said thank you Mr Miller. Scrowls thank you cases submitted that conclusive
. So that doesn't address the claim construction as a whole and as it stands now when we go back to the pattern office that's the construction we confront not not the limited construction that might include the lines and what have you it's smooth and not smooth really as we say it doesn't matter what what's on that surface virtually anything would anticipate. As to the term in in part in Phillips case and many other cases I believe I don't think which was cited by the path office talks about implied meeting it can be implied and based on reading the patent applications in their entirety one would see one skilled in the art to whom this document is directed would understand what it means. And we submit that the path office went beyond that they brought a meeting and there was no need to go that far and it's a parting a texture not just in part by itself but as as the cases say. Excuse me you're a definition of imparting is modifying the surface of the hearing instrument cell. Yes sir. How does that make much difference to the dictionary definition because we're not adding anything there's no there's no teaching in the specification of either the hand of adding something on top of the shell shell of design to fit more or less securely within the ear canal and not add something on the top of it. And you think the definition give rise to or by contact association influenced me to add to yes you are yes you are at least at least some extent again as I stated we have not amended the claims were fully prepared to mend the claims but under the two step procedure first properly construe the claims so we understand where the boundaries of the invention are and then as need be we would amend the claims to amend the claims prior to get the construction we run the risk of a radius of for fitting patent of the subject matter area. Finally the teaching and Phillips about reading the terms in the context specification is not inconsistent with the board is reasonable meaning because broadest reasonable interpretation is consist has to be consistent with the specification and has core right which we cited throughout the record also has to be one that someone skill me or would reach if you have any further questions I think. No I think you're all said thank you Mr Miller. Scrowls thank you cases submitted that conclusive.
And that this morning is number 06-1228 in-rain masters. Mr. Miller? And you reserved five minutes for a rebuttal, is that correct? Yes, Your Honor. Go ahead whenever you're ready. Thank you, Your Honor. May it please record the decisions of the board should be reversed because they are predicated on claim constructions that are inconsistent with the text of the patent applications and inconsistent with the understanding of the skilled artisan. In both of the decisions, the board can stream texture include a smooth surface, which is contrary to the specification. In the method case, finding no definition of the specification for the term imparting, the board adopted a dictionary. Mr. Miller, let me ask you how is, where did they actually say texture was the smooth surface? This is in both opinions that this is a consolidated case. On page 817, at lines 3-5 at the end, thus the broadest reasonable interpretation of texture will include smooth as well as non-smooth finishes. And why is that wrong? I mean, everything has a texture, doesn't it? I mean, it can be a piece of glass, has a texture, albeit it's very smooth, whereas a piece of sandpaper has a different texture. It's rough. Yes, Your Honor. But, I guess I'm saying, doesn't any surface present a texture of some kind? Yes, Your Honor. Yes, it does. But someone skilled in this art, someone skilled in the art of designing and manufacturing area instruments, would not conclude after reading the patent applications in their entirety that texture in this context, in the claims as used in the patent applications, would include a smooth surface. What if you just had, having been part of the textured surface to a hearing instrument, so I wouldn't have cleared it up. And the textured surface would not be smooth, but every surface has texture, what? Well, what makes a person skilled in the art, whether it were texture, and read it is textured? Texture? Yes. Texture would say to me, clear it up. I mean, if you wouldn't think of a smooth surface as one being textured. Well, we didn't propose that particular language, it might, but my suspicion is the patent office would reject it as well. I'm just thinking in terms of why the person skilled in the art would have thought as well. Well, the purpose of the invention is to prevent the hearing instrument from slipping out of the ear. And if it's smooth, then it's going to fall out. So the inventories came up with this idea of making a surface that's non-smooth, and that's explained right at the very beginning of both patent applications. Both patent applications, of course, have the same test. Well, it could still be smooth and be larger than the hearing, the analogy, pressure. That's right, but that would be an interference fit, and that would not, I'm sorry, I didn't know. It would still be textured though, wouldn't it? Even though it's smooth? No, you're right. Not in the context of this patent application. It cannot be smooth because it defeats the purpose of the invention. That smooth texture would not be covered. Oh, excuse me. In the case where you said it's larger than the ear can out, there's no... No, I'm sorry, I can't agree with that because... The texture, the smooth surface is disclaimed in this patent, it means back to applications. To say that it would stay in place, I would agree with that. Am I answering your question? Well, that's the reason why you're saying it has to be textured, so it would not fall out of the ear. That's right, because it's not an interference fit. It barely makes contact, but enough contact to stay in place. It's a sensitive area, and people skill in the art are concerned about making something out of it. That's going to hurt the wearer. So there's a trade-off there. Well, let me ask you, though, the prior art here, I guess we're talking about... Well, it was Widmer 1 and Widmer 2 and Herpens and Yost. Yes. Didn't they all, and you'll correct me if I'm wrong, but didn't they all present some kind of a texture? In other words, some kind of a non-smooth surface. Yes, Your Honor. As the claims were construed by the pact office, reading texture as the pact office proposed, they did. But no, even don't they have... Well, how do you... I mean, they're not totally smooth, are they? No, they're not. But Herpens is a piece that sits in the outer ear. It's a decorative piece to cover the hearing instrument. It's not in the ear canal. Is that the one that has the mesh kind of coming? Yes, that's hercums, okay. That's hercums. And Yost has the round cushiony sort of... That's correct. But there's no discussion or any teaching within the applicant's patent applications for adding something to the surface. It's a modification of the hearing instrument shell itself. And as to Widmer, those are reinforcing ribs. And by and large, Widmer speaks of an internal structure. But there are, of course, a couple of them, at least one figure. I think it's figure 18, if my memory serves me correctly, which shows an external rib. And the question becomes whether someone's skilled in the art reading the patent application would contemplate adding such ribs. And those... This is an A9... Yeah, that's what I'm saying. I mean that certainly presents what I guess anyone would think of as a textured surface. The one at A964? Yes, Your Honor. Yes. That's correct. That's the outside of the hearing instrument. But the reason for the appeal is to first ask for proper claim construction and then applying the art. Not to look at the art and say, well, we could construe the claims away. But start with the patent applications, reading them in their entirety, determining what the words in the claims mean, and then moving to the art. The other term I believe I can finish this, but in the method case, there was no definition. The board found no definition for the term imparting. And the board instead adopted dictionary definition despite consistent use of that term throughout the specification. The board also can shoot hearing instrument as including any devices assisting hearing, contrary to its use throughout the specification, and is that term is used by those skilled in the art. The applicants would like to resume prosecution of the applications, but under the present circumstances given the current construction, no amendment would yield meaningful coverage. Although three rejections have been acknowledged by the directors not being defended, that doesn't render them move. It doesn't remove those rejections from the record, nor is it incur the improper claim construction. The applicants ask that the court reverse and vacate the board decisions and remand the applications to the patent office so that the examiners can revisit claim construction. We also ask that this court instruct the patent office to construe the claims from the perspective of the person's skill in the art reading those terms within the patent documents in their entirety. Thank you, Mr. Miller. You'll have your bubble time. Mr. Krause? What do you have to say about the claim construction? Well, the board did exactly what Mr. Miller suggests that they did not do. That is they did construe the claims with regard to the patent application in its entirety. Looking into the patent application, they found a place where the applicant clearly defined the term texture. Where was that the... 817, one of the applications that rates identically in the other. 817. Yes, Your Honor. And near the top of that page it says a series of lines 50, equally or unequally spaced, figures 3 and 4, or plurality of shapes, e.g. ovals and circles and figures 5 and 6 respectively, or some other pattern predetermined or randomly generated. The board looked at this and said there is no limitation here on the size of the lines or on the shape of the lines. And then it properly turned to the prior art and saw the Widmer reference and looked at the ribs in that which seemed to it to be a series of lines evenly or unequally spaced or in any event some other pattern predetermined or randomly generated and said this falls within the definition of texture as it appears in the patent application. And that is the normal process of claim construction of personal skill in the art and looks to see how the applicant used the term. That's what the board did here and that's what texture means for purposes of this patent application. Where would we see in the... In the board's opinion, the precise articulation of the claim construction. They can... through several claims, claim terms right in a row. And near age A16, I believe. The A16 is in one of the opinions. Right here, they explain that towards the top, the pellons disclose the texture and then the part that I quoted from A817. Okay, and then they go on. We don't have to look at extrinsic evidence because the applicants are at pellons specification, clearly defines textures, texture. And then it goes on in the prior section of the brief to use that definition and apply it to Woodmer as I've mentioned. Okay. Thank you. So I think that's despisitive of the question of whether there is a texture and the Woodmer reference. And see other claim construction issue that Mr. Miller raises is the board's use of a dictionary definition to define the word impart for purposes of the process claim, which is simply imparting a texture to a hearing instrument. Shell, that term, unlike texture, is nowhere defined in the specification. So the board properly looked to a dictionary to define that term and found a definition that to give or to grant or give rise to by contact, association or influence, check that definition consistent with the Phillips case against the specification found that that definition was consistent with all the usages in the specification and then look to the prior website by the examiner and found that first, Woodmer certainly applies because the Woodmer reference imparted the definition of the word impart. A texture by means of the very laser centering reference method claim or discuss the specification of the applicant and then second, look to those two other references, Jo's to Perkins and found that although the texture there may have been applied at a different part of the process, maybe wasn't integral to the hearing instrument in those cases, both of those prior references clearly imparted by the definition of a texture to a hearing aid shell. So that covers both of those definitions, those are the two claim instruction issues. Was it properly used a dictionary and determining a definition of imparting that? Because they did use a term and parting in the application. Yes, they did. In the context in which they use it is important for construing the term, but at the end we need some reference to decide what the scope of that term is. We can't simply look at every place they used it usually in discussing a preferred embodiment and say now we know what imparted means. There is a general definition of impart as the word found which is consistent with all those usages. Just a common meaning. That's precisely right. And in fact in the specification itself it gives support to the board's use in one place. I decided on our brief it equates the word in part with the word created. That's on page 8 425 and on page 8 430 in the specification. The board uses the examples of a texture is imparted to the surface. This is on a 18 and imparting a pattern to the surface of layers. And then the appellants also use the word creating synonymously with imparting. But then they went forward and pointed out that the extrinsic evidence of a dictionary definition were an important means to give a grant. You arise to say they went ahead and determined from a dictionary as to what it meant and so is that consistent with Philips? I believe it is your honor. In that there is no place in the specification where the term impart is defined. There is no suggestion that it be limited to the particular methods disclosed by the applicant. The applicant says this texture can be imparted in any number of ways not even specified. So I think under those circumstances it's appropriate to look at a general definition of dictionary and a dictionary. Part of the problem is here in the pattern office we apply the broadest reasonable interpretation of the term. So it's dangerous especially at our level to read limitations from the specification into the claims because that can result in an error or I'm sorry a broader claim issuing which in some cases may in an infringement litigation be read to literally encompass the prior art. Here if we issue to claim that imparting a texture to a hearing aid shell it's not completely clear that people practicing the workings or the used application would escape infringement. That's why we encourage applicants to amend their claims to specify if there are ways of specifying that the idea was to modify the surface. Then that still would not have escaped the Widenberg two reference which specifically does modify the surface. That's the answers. I have nothing further plus the panel has anything for me. Thank you Mr. Kraus. Mr. Miller. You have your full rebuttal time plus I think a little additional that you didn't use so you have six minutes fifty seconds. Thank you Your Honor. The pattern office is an instruction and the part of the brief a part of the board decision excuse me and our application where it does talk about a series of lines and what have you does not address the entire construction of texture that the board found. I only gave you for one opinion but on a 17 lines three to five you have for the method case and again on a 37 down near the bottom the broadest reason for interpretation of texture includes smooth and not smooth. So that doesn't address the claim construction as a whole and as it stands now when we go back to the pattern office that's the construction we confront not not the limited construction that might include the lines and what have you it's smooth and not smooth really as we say it doesn't matter what what's on that surface virtually anything would anticipate. As to the term in in part in Phillips case and many other cases I believe I don't think which was cited by the path office talks about implied meeting it can be implied and based on reading the patent applications in their entirety one would see one skilled in the art to whom this document is directed would understand what it means. And we submit that the path office went beyond that they brought a meeting and there was no need to go that far and it's a parting a texture not just in part by itself but as as the cases say. Excuse me you're a definition of imparting is modifying the surface of the hearing instrument cell. Yes sir. How does that make much difference to the dictionary definition because we're not adding anything there's no there's no teaching in the specification of either the hand of adding something on top of the shell shell of design to fit more or less securely within the ear canal and not add something on the top of it. And you think the definition give rise to or by contact association influenced me to add to yes you are yes you are at least at least some extent again as I stated we have not amended the claims were fully prepared to mend the claims but under the two step procedure first properly construe the claims so we understand where the boundaries of the invention are and then as need be we would amend the claims to amend the claims prior to get the construction we run the risk of a radius of for fitting patent of the subject matter area. Finally the teaching and Phillips about reading the terms in the context specification is not inconsistent with the board is reasonable meaning because broadest reasonable interpretation is consist has to be consistent with the specification and has core right which we cited throughout the record also has to be one that someone skill me or would reach if you have any further questions I think. No I think you're all said thank you Mr Miller. Scrowls thank you cases submitted that conclusive