Legal Case Summary

Our first cases this morning are penduity with ADC and Rhea. Separate cases, we put them together for argument. Mr. Fakali, or I guess you'll be going for 20 minutes and then we'll hear from Mr. Stewart for 20 minutes and then Mr. Casper's, have I got to miss Casper's? Year third. All right. Then first we'll be Mr. Casper's. Okay. I think we have it now, Mr. Collie. Mr. Stark first then. Thank you. I would like to reserve my minutes for a moment. Please. Please support. There's two issues that I was waiting to discuss today. The board's three. Two out of 32 or how many did you throw at us? I'm not sure with the exact number. I'm not either. Please proceed. The board's three, none of the long reference. And the board's refusal to consider the examiner's failure to adopt a Panduit challenge as to ADC's claims that were added to any examination. Well, let me get right to the board's refusal. Wasn't that issue petitionable and you didn't petition? It's not clear the issue was petitionable

. There's nothing in it. It's a procedure. It's a failure to examine. It's not the substance of rejection. Well, the challenges were presented and the examiner did not adopt them. And that is a decision-favorable patentability that falls under the statute and the rules that govern the issues that are revealed a lot of peer. Both the statute and the rules do not specify that challenges have to be framed in a form of proposed rejections. They specifically mentioned the broader language that is some kind of decision-favorable patentability. This is, this is common to both people. Yes. And the statute and the rule simply states that decision-favorable patentability is a fuelable. The rule of the decision not to examine because it wasn't presented fully as a proposed rejection with claims applied to Briarot. That is a procedural point rather than a substantive visit. The challenge is a warrant to consider and that is a decision that is favorable to patentability. The challenges were presented where we addressed each feature added in the additional claims pointed to where they were in the prior art. And the examiner even adopted some rejections that were exactly the same as those challenges. So it's relatively clear they weren't considered. So what are you raising this further issue for? If the examiner adopted certain rejections, similar to what they said they wouldn't do with it. There were one that he didn't adopt that we believe he should have. They were considered, is decision not to adopt them was a decision that was favorable to patentability under the statute, under the rule. It's a review of a lot of appeal. There's nothing that says in the MPP or any guidance specifically that the petition will issue. And the fact of the matter is to have required a file of petition on an issue where it's not specific that we should have filed a petition and denies review of these rejections. It is going to prevent us because we have stopped the procedure from ever addressing those claims subsequently. Can I just turn into a really difficult, a difficult question because we've got so many claims here. On the first case, now your friend on the other side is cross appealing the rejection under anticipation by stable of certain claims

. But if hypothetically we were to agree with him, doesn't that dispose of at least a large number of your appealable issues? I mean, goes through, as I understand that, on that anticipation rejection goes to claims one through nine and twelve and thirteen. And it seems like there's a lot of overlap between those and the ones you were challenging on your appeal. There is some overlap certainly. There are issues that don't overlap. And particularly the board's reversal of the examiner's rejection over long due of favor in the first case that has resulted into a lot of claims. And I would like to address it now. For that rejection, the board on its own can extrude the term cable exit trough to require a long narrow opening sector. Based on the definition of the board obtained on its own from a general purpose of the scenario that relates to animal v trough. We feel like that definition is narrower than the prior series of construction, which is the standard control during examination. Specifically because it's inconsistent with more relevant technical definitions that apply to the term cable trough, which is really what we're dealing with here. It's also inconsistent with the disclosure of maybe these paths. The McGrawfield Dictionary Assignment of Technical Terms defines a cable trough as an enclosed channel, usually beneath the floor that provides a path for cables. That definition alone establishes that the term trough is broad enough to encompass both open and enclosed structures. So the board's limiting that term to only open long and narrow structures is narrower than the prior series null interpretation of yours. Furthermore, if you were to look at the embodiment in ADC's patterns, the cable exit troughs in all of the embodiments, I don't think anybody would view those as being long and narrow. They're very unique structures. So what are you proposing to alternative claim construction? It's structure that provides a pathway that allows cables to exit trough. So even though there's no opening at all on any side, completely enclosed, well, turning along, there is an opening. The part of long that the cables travel through to exit trough is referred to as the funnel shaped part five. Consistently throughout the long reference, funnel shaped part, funneled half openings. In fact, even in the decision on the VIA, but just looking at along the floor, it says it's enclosed on all four sides. I mean, it has, so we're looking at the opening on the four sides, right? The board actually said that the funnel shaped part would be understood to be a two-barre shaft on page A88 of the appendix. In their decision, they said that it would be understood to be a two-barre shaft and thus is enclosed. So they were not saying that it was enclosed on all sides. They were saying that it was enclosed as a two-bar shaft. If you look at figure two of long, you can see the cables exiting the funnel shaped part

. There is an opening that those cables are coming out of. If it were completely enclosed, the cables couldn't travel through it. The board held the claims one to eight and eleven were obvious over a staver and showing them in my Ohio heart, right? I believe that's correct. You're claiming the board, or it, and not stopping their projections to claims one to eight because Shoyuman, Hannahberger, and Maya Harper were deficient. There's a seemingly inconsistency here. You argue that these references failed to disclose the vertical downspot. Well, I guess the board held them. They failed to disclose the vertical downspot portion. That's correct. But they rejected them for the same references. Yes, in a different part of the script. I think that was an inconsistency in the board. But you're in opposition to these patents. You're trying to wrap them up, to make sure they're absolutely inconsistent. You want these claims knocked out, which they did. So it seems as though you're soliciting them for the way they did it, which you've got what you want it. The claims were rejected, one to eight and eleven. That's correct. We are entitled to fallback physicians in case those projections stand or determine to not be given. Because of this proceeding, we have to raise all of our challenges due to the assault procedures. That is why we're proposing alternative projections. I believe I've addressed my two issues. I'd like to reserve for a remainder of the time. Thank you. May I please support I have reserved four minutes for rebuttal. I'm going to address two claims, claim one of the 625 and claim 14 of the 228

. Claim one of the 625 was rejected as obvious using staver at the primary reference. The board found that it would have been obvious to once the skill in the arts modify stavered fridge to include the missing elements of the 625 and claim one. I'm going to address three of those missing elements. The two curved side walls, the vertical downspout, and the language it says when mounted to the lateral trough, the cable exit pathway extends transversely over the top edge of the sidewalk. It wants to be like showing them as a better reference. But showing them as a right tool instead of oval. It goes right through. That's right. It does. Obviously, they're not on a phrase, but it obviously would seem to be a better primary reference. But if it takes the problem with the prior art, they're going through the wall. They're taking a more direct path versus what we did is we took the indirect path routing it initially in the opposite direction from the end destination. But ultimately it goes down, doesn't it? Ultimately it goes down. But what we did required was that obviously some view of the other references which do all sorts of similar things to go over it, not true of it. No, I don't believe so, Your Honor. If you look at Stabler, what it discloses, we've got it on page 19 of our brief. I've shown figure three and figure one. It takes a single cable over a vertically running flash. And it has two straight parallel side walls on the top end and on the bottom end. They're symmetrical. So, when you look at the other side of the flash, you can see that the cable is overbending. It's aimed pointed at an acute angle. For example, the cable that's descending downward over the edge. So, again, it results in a small acute angle to take it over that flash. Now, Stabler identifies his design drivers. At column one, line 30, the 31, in the summary of invention, he says that his design, quote, allows for one part, one part, to be used for either side of the equipment rack or in transition in either direction

. If you want to go from left to right or right to left. And to do that, how he does that is he makes it symmetrical. The top end is a mirror into the bottom end. And he's got alternative mounting slots to flip it this way or that way, at an acute angle. In the same sentence that I just said the way he identifies his design drivers, he says, he emphasizes that to make the cable bridge as compact as possible. That's the second driver. If you look at his device, it's flush with that flash. Why? Because it would bump into equipment. If it wasn't flush, there's equipment in the rack. So, let's go to what Stabler does in the schools, the curved side walls. It's undisputed, and the board found that Stabler lacks the two curved side walls. But the board found that it would have been obvious to modify Stabler to include the two curved side walls, the Flared-Oce side walls from shoremen, for example. Well, to resolve this issue, we need to understand the reason why the two curved side walls are included in the shoremen design, for example. Well, if you go to shoremen, you can see that it's a trough, and it's inviting cables from either side, inviting cables from either side. And so, it's got a curve to the right to invite the cables from that direction and a curve to the left, okay? To invite cables from either design. The Stabler design drivers are fundamentally different. They've got this versatile device, one part for all applications. It's symmetrical at both ends designed to take a single cable. And how does it do that? It aims at an acute angle to invite that cable in, and by doing that, it can get it over without overbending, without the need for curves. Can I interrupt you just for your time, and maybe I've got the issues mixed up, but it seems to me that in connection with your cross appeal, at least, to be raised. There are two issues raised, if we step to the first case, claim 14 and the second case, claim 1. And that has to do with the fourth conclusion, with regard to intended use. Will you plan to cover last? Yes, Mr. Marshall. Yes, I'll cover it. I appreciate it

. Okay. Right now? Okay. The intended use language. Okay. Our position is it's not intended use. We're not talking about language, for example. This is the, when the exit trough is mounted to the lateral trough, the cable exit pathway extends transversely over the top edge of the sidewalk. Our position is not mere intended use. We're talking about language in the body of the claim. We're not talking about context in the preamble, like a bolt used for water. Specifically here, the claim language relates, and it impacts the mounting structure on the claim exit trough, as well as the cable exit pathway surfaces. Again, on the exit trough, you're looking at 14 or a year. I'm at that claim of claim 1, 625. And that would be 625. That's right. That's right. So it says, when the exit trough is mounted to the lateral trough, the cable exit pathways orientated to the, it is extending over the top edge to the lateral trough sidewalk, but not just at any angle, it's transversely to the lateral trough sidewalk. Well, how is the structure? Well, you can't have, you can't have just any mounting structure or cable exit pathway surfaces to accomplish this. It restricts, by reference to the lateral trough, it restricts with those structural elements can be. So for this... Well, you know, the path to the office, and they can speak to themselves, obviously, in a few minutes. But I think they say it's, this goes to orientation, but not to structure. And it seems to me that this does go to orientation, right? It goes to orientation with reference to the lateral trough, but it restricts the mounting structure and the cable exit pathway structures. So there's a case we cite in our brief that talks about a chair sized to be fit within the door, a corridor opening, and that was found to be a structural limitation

. This is just like that. Where and this wherein clause, and wherein usually speaks to result, but wherein this wherein clause is the structure that is not in the earlier portion of the claim. That's the issue, isn't it? I'm sorry? Whether it's structure, that's right. Depends upon whether there is structure that isn't already recited in the early parts of the claim. All right? Well, there is. Because if it's not additional structure, if it's just reciting results, then it is intended use rather than structure. I wouldn't agree with that because, like I said, you can't have just any mounting structure or any cable exit pathway to accomplish this, to accomplish this result. And so it does just like the chair case, sides to be fit within the corridor opening, it does impact. What's not that often, in other cases, where, as I asked, is there structure in the earlier part of the claim that would make that that's where and clause would duplicate. And therefore make it intended use rather than structure. And if this structure is in the early part of the claim, then it can't say that this structure in the wherein clause. Well, the structure recited in the earlier part of the claim, the cable exit pathway surfaces, for example, defined by and claimed one as including, why aren't you telling us it requires over instead of through the wall, and that is structural? What does require over and transversely over? So that language tells you what the mounting, what puts a restriction on the mounting structure and the type of cable exit pathway surfaces that can be used. Does that answer your question? Somehow that didn't come to mind, and you are thinking though. Until, I'm sorry. But I guess, I want it to be a little more explicit in terms of what you're saying. So the claim language under thesis extends transversely over the top edge. So you're saying that's the structure here? That's right. It's referring to the structure, I'm sorry, it's referring to the structurally cable exit pathway structure defined by the surfaces that include, curve bottom wall, curve side walls, and as well, a vertical bounce valve. And so it's with reference to that, and it also restricts how can we mount it? So you don't go through the side wall. Well, you have you already said that, beginning language and C, right? It's mountable to the lateral trough without cutting the top edge and corresponding upside, upstanding side. So this, you're saying add something to the other. Yes, I'm just saying. What is the talent? It tells us that you can't have cable exit pathway surfaces or mounting structure that takes you through the wall. So you have to go in the opposite direction. And if you look at saber, for example, we talked about his design. And you think in the absence of this language, the rest of the structural language and the claim would allow and include going through the wall? Yes, I think it's very important

. But why is this not obvious to kind of return to something judge Luria observed earlier? You've got a trough. There's really only two ways out of the trough, right? Over the edge or through the wall. Wouldn't anyone of knowledge in this area of art rather interchangeably use those two escape routes from the trough? No, not based on the art that we do have in here. We have shoyerman going through the wall. Right. We have Hennem Burger that seems to be coming up and out. We have saber going over the plan, which is the wall in this case. We have going over and through rather interchangeably. Well, why isn't this, let's start with very clearly there in various references? Well, another way to say it with talking about the design drivers that the stabbers reasons for adding curve sidewalks, for example, are undermined by stabbers design drivers. If you add curve sidewalks, for example, to stabber you lose the cemetery, you lose that flexibility. Also, it serves no useful purpose. You're already aiming at the prevent overbending to get a single cable across. There's no reason to curve it at that point as well. It would conflict with that flange. If you put a curve sidewalk, it will bump into that flange. The court's principles announce them to pew, for example. Our political here says an inference of non-obvious is especially strong with a priori-teaching undermine the very reasoned progress of why one-a-boardage skill in the art would combine the known elements and the same applies to the vertical downspout. The vertical downspout, again, neither Sherman or Lyre-Hover, the two secondary reference even have a vertical downspout. That's what the board found because vertical means perpendicular to the plane of the rider. If they said it would be obvious to do it, well, not a staver says make it symmetrical, one part for all applications. If you add a vertical downspout, you create other problems. If you add a vertical downspout to that outside and run into the equipment, if you flip it the other way, as Tando would suggest, it would run into the bottom of the trunk wall. If you look at figure 3 of staver, he lives by this rule. You notice that after he crosses over the flange, the cable takes a 90 degree turn. And he doesn't add anything in there. No curves, no vertical downspout

. He lives by his design drivers. For this vertical downspout, we're talking about something that's not even in Lyre-Hover, and Sherman. And in conflict with the design drivers, the principles, again, in the deput case supply, one would be deterred based on the design drivers in saver, not to do this. That gets me to the language about... Do we apply the difference to the board's conclusions otherwise? Obviously, the board did not agree with you. But there's no... What's the standard that we apply on repeat? Substantial evidence. But there is no evidence. They didn't come forward with anything from one of Stilny Art. And what we have on our side is staver's own words that establish design drivers that are in direct conflict with that combination. And the same applies to the mounting. When mounted, it extends not only... It says, it stands over the top of the lateral trowel sidewall, but not just at any angle. It extends transversely over the top. Again, you can't have just any cable exit pathway surfaces to do that. It gives me to the issue of what this transverses me. Now, the board, in another opinion that's on appeal, said, transverses means a cross. And it can't be at any angle. Well, that's just wrong because it gives no meaning to the word transverse. Any time you go over the edge, you go over, you go across

. Climb one contrast with other clamps that don't recite the word transverse. And if you go to the specification, the only embodiment shows the cable exit pathway extends at a perpendicular angle. Okay, transverse. That's the only reasonable definition. And if you go to staver, they're saying, just turn it in a transverse perpendicular direction. Again, to do that, you'd have to violate staver's design drivers. You'd have to, you know, staver's about aiming it at a cute angle. It's prevent over bending. To prevent over bending, the bridge is aimed at a cute angle to transition that over. So, again, this third limitation, the third missing limitation is also not there. And of course, if you turn in transverse and you're on a horizontal trough, it goes straight, well, they just stick out right into the cables. They block the cables. And that would also be a problem. So, conflict with the design drivers. And it's not awkward. It's going to block the cables. So, where does that get us? Let's look here at all the changes that once you're on the hour, you have to make to go through to convert staver to claim adventure. You'd have to ignore that it disclosed reuse on a vertical flange and turn it horizontal. You'd have to change two sidewalls and incorporate on one end and incorporate, for example, shrewermans flared out first sidewalls. Next, you need to add a vertical bounce down, which makes no sense in view of staver's teaching. And then you turn it transverse perpendicular. And we're talking about a lot of changes here. It's changes that conflict with the design drivers and create other problems. This is classic concept. This is classic concept. They're reconstructing mentioned. They're using the problem that our invention explains, as well as the solution in the pattern that they're using that as a roadmap. So, that gets me to the upper surface in plain 14 of the 2-2-0 pattern. You're into your rebuttal time, do you realize? Okay. Rebuttal is my cross appeal. Yeah. Well, I'll make this point very brief. Client 14 recites the upper surface. The board, in its opinion, never addressed it. Upper surface is recited elements of the megatron. It has to be given meaning. It makes no sense as panoretists to say it's just some surface. It has to be given meaning. And it's confusing how it got here because to the board we said it's a surface above the cables. And they said, quote, it appears to be referred to as an upper surface because it is above the cables. So, we were on the same page. And even the examiner in the original prosecution said, at the appendix A3019, he understood what it was with reference to the upper surface that it was critical, protects the optical fibresome bending, and just like Pandewan, understood that it referred to a surface for guiding cables. So, that's real world evidence of how someone from Missouri with this technology were construed. So, if upper surface is properly construed to mean above the cables, it can't be disputed that neither staver or churraman have that feature. Thank you. Okay. Thank you. Please move the board. I think there are a few ways to simplify the approach to this case. And that is the focus on the rejections that were actually put in place by the examiner or firm by the board, which is a result of 95% of the case for us. So, we start with the first case involving the TQO patents, the primary rejections there, turn around staver and anticipation. And staver teases all of the elements found in those claims from the first time

. They're using the problem that our invention explains, as well as the solution in the pattern that they're using that as a roadmap. So, that gets me to the upper surface in plain 14 of the 2-2-0 pattern. You're into your rebuttal time, do you realize? Okay. Rebuttal is my cross appeal. Yeah. Well, I'll make this point very brief. Client 14 recites the upper surface. The board, in its opinion, never addressed it. Upper surface is recited elements of the megatron. It has to be given meaning. It makes no sense as panoretists to say it's just some surface. It has to be given meaning. And it's confusing how it got here because to the board we said it's a surface above the cables. And they said, quote, it appears to be referred to as an upper surface because it is above the cables. So, we were on the same page. And even the examiner in the original prosecution said, at the appendix A3019, he understood what it was with reference to the upper surface that it was critical, protects the optical fibresome bending, and just like Pandewan, understood that it referred to a surface for guiding cables. So, that's real world evidence of how someone from Missouri with this technology were construed. So, if upper surface is properly construed to mean above the cables, it can't be disputed that neither staver or churraman have that feature. Thank you. Okay. Thank you. Please move the board. I think there are a few ways to simplify the approach to this case. And that is the focus on the rejections that were actually put in place by the examiner or firm by the board, which is a result of 95% of the case for us. So, we start with the first case involving the TQO patents, the primary rejections there, turn around staver and anticipation. And staver teases all of the elements found in those claims from the first time. We don't need to reach a claim construction issue in staver, because under either definition the side wall of the trough or the flange of staver first year is not modified. So, that whole discussion of cutting and modifying and the pictures don't even need to be reached by this court. So, staver rather, crafts terms just really look different, doesn't it? Stealing with one claim rather, one wire taking it over a flange and a rack rather than out of a deep trough. Should we be bothered by that? I don't think the court should be bothered by it for versus the anticipation, the first case or odd. The anticipation is going to require each and every, you know all that stuff. And there seems to be a lot of difference. Well, obviously we're dealing with, as you said, getting the cables out of the trough. And there are a couple different ways to do it. Staver is a good-based reference because the reason staver is curved. And it goes up, it goes kind of levels off, and then it goes down again. And that's one of the key features of the patterns that is used for the court is I kind of think of the ABC patterns as having a slide. So, one is more, certainly more of a grid shape and one more of a slide shape. But one of the essential features is this up and over and down. And that's the key features that staver teaches. Now, if you want to include all of the various limitations that run across the 30 plus claims, yes, there's some adjustments to be made in terms of the different angles at which staver can be turned. And the vertical drop, which is implied, and almost all of the references by the downward curve that occurs in each and every one. So, staver is a good-based reference and the very few limitations that aren't directly encompassed by staver are taught by Schuerman. And that's the combination for the second case. How can then this upper surface limitation be just an intended use when you just told us how important it was and now you're just, and yet the board dismisses is a use? Well, there are a couple different surfaces going on here. There's the surface of the actual bridge that the cable is passing over. And then there's this one portion of one of the claims that talks about a different surface. Are you talking just, are we talking on claim 14 and 220? Yes, Your Honor. The last section of claim 14, hold it out here. Now, though we're here not talking about claim 1c and 625. Yes, we're just talking about the last paragraph, the last phrase in claim 14 from these 220 pads. And it goes on to talking detail, on and on about the shape of this extra trot

. We don't need to reach a claim construction issue in staver, because under either definition the side wall of the trough or the flange of staver first year is not modified. So, that whole discussion of cutting and modifying and the pictures don't even need to be reached by this court. So, staver rather, crafts terms just really look different, doesn't it? Stealing with one claim rather, one wire taking it over a flange and a rack rather than out of a deep trough. Should we be bothered by that? I don't think the court should be bothered by it for versus the anticipation, the first case or odd. The anticipation is going to require each and every, you know all that stuff. And there seems to be a lot of difference. Well, obviously we're dealing with, as you said, getting the cables out of the trough. And there are a couple different ways to do it. Staver is a good-based reference because the reason staver is curved. And it goes up, it goes kind of levels off, and then it goes down again. And that's one of the key features of the patterns that is used for the court is I kind of think of the ABC patterns as having a slide. So, one is more, certainly more of a grid shape and one more of a slide shape. But one of the essential features is this up and over and down. And that's the key features that staver teaches. Now, if you want to include all of the various limitations that run across the 30 plus claims, yes, there's some adjustments to be made in terms of the different angles at which staver can be turned. And the vertical drop, which is implied, and almost all of the references by the downward curve that occurs in each and every one. So, staver is a good-based reference and the very few limitations that aren't directly encompassed by staver are taught by Schuerman. And that's the combination for the second case. How can then this upper surface limitation be just an intended use when you just told us how important it was and now you're just, and yet the board dismisses is a use? Well, there are a couple different surfaces going on here. There's the surface of the actual bridge that the cable is passing over. And then there's this one portion of one of the claims that talks about a different surface. Are you talking just, are we talking on claim 14 and 220? Yes, Your Honor. The last section of claim 14, hold it out here. Now, though we're here not talking about claim 1c and 625. Yes, we're just talking about the last paragraph, the last phrase in claim 14 from these 220 pads. And it goes on to talking detail, on and on about the shape of this extra trot. And then finally, at the very end of the claim, it says further comprising an upper surface, which is completely undefined. And then it says, and it was added during the amendment to the case and at least partially facing the bottom of the first trot when they're mounted together. So, yes, A.G.C. has pointed to this very small upper surface above the cables. And it says, well, this isn't important because it's about the cables. And it's protecting them and it's doing various things. But if you look at the claim language, even the amended claim language, it's just an undefined upper surface. So, the diameter and the board, well, it says, and at least partially facing the bottom of the first trot. Right. Right. So, what the examiner said was that if you look at your bridge, and here's the trot, they kind of go like that. That the bottom of the stable bridge is partially facing the bottom of the stable trot. And that's enough for this very broad kind of undefined limitation. And the board also said, wait a minute, when you start talking about how these two pieces work together, and the lateral trot isn't even part of the claim, we're starting to get into an area of intended use. And the board isn't even going to raise that limitation in. So, if you read the limitation and the examiner's found it, if you find that the limitation is going too far afield from the actual structure of the exit trot, then this one portion of the claim, the upper surface facing down, isn't something the court has to address here today. I'm a little concerned with the intended use findings in both the 220 and the 625, because for one thing, they appear in the body of the claim. They do have at least minimal structural limitations. And we pretty much can find our intended use concerns to preamble. So, I'm wondering why the board is extending intended use in the structural aspects of the body of the claim. I think the reason why intended use makes sense in this case is the same reason why it's typically dealt with in preamble is that intended use is really trying to give the claim context. And that's why it was brought up in the ortho-kinetics case, which was a 112 decision to say, okay, how do we define what's being discussed here? And then we're going to look at the context of what's happening in the claim and the preamble in the various parts. But when you just have a claim that's simply to the exit trot and not to the combination, then when you start to define the structure with how it looks with its connected, then you're getting into trouble. And that matters more obviously from an infringement perspective

. And then finally, at the very end of the claim, it says further comprising an upper surface, which is completely undefined. And then it says, and it was added during the amendment to the case and at least partially facing the bottom of the first trot when they're mounted together. So, yes, A.G.C. has pointed to this very small upper surface above the cables. And it says, well, this isn't important because it's about the cables. And it's protecting them and it's doing various things. But if you look at the claim language, even the amended claim language, it's just an undefined upper surface. So, the diameter and the board, well, it says, and at least partially facing the bottom of the first trot. Right. Right. So, what the examiner said was that if you look at your bridge, and here's the trot, they kind of go like that. That the bottom of the stable bridge is partially facing the bottom of the stable trot. And that's enough for this very broad kind of undefined limitation. And the board also said, wait a minute, when you start talking about how these two pieces work together, and the lateral trot isn't even part of the claim, we're starting to get into an area of intended use. And the board isn't even going to raise that limitation in. So, if you read the limitation and the examiner's found it, if you find that the limitation is going too far afield from the actual structure of the exit trot, then this one portion of the claim, the upper surface facing down, isn't something the court has to address here today. I'm a little concerned with the intended use findings in both the 220 and the 625, because for one thing, they appear in the body of the claim. They do have at least minimal structural limitations. And we pretty much can find our intended use concerns to preamble. So, I'm wondering why the board is extending intended use in the structural aspects of the body of the claim. I think the reason why intended use makes sense in this case is the same reason why it's typically dealt with in preamble is that intended use is really trying to give the claim context. And that's why it was brought up in the ortho-kinetics case, which was a 112 decision to say, okay, how do we define what's being discussed here? And then we're going to look at the context of what's happening in the claim and the preamble in the various parts. But when you just have a claim that's simply to the exit trot and not to the combination, then when you start to define the structure with how it looks with its connected, then you're getting into trouble. And that matters more obviously from an infringement perspective. If you're selling just the exit trot. As the teachers pointed out earlier talking about 625 claims, going over the top edge is structural, isn't it? As opposed to doing something else, whether it's obvious or not, is another question. But as a structural feature to go over the top edge. I think it's your honor with suggesting earlier that structure is captured by other parts of the claim. And that's what's supposed to be. When it sets, it leaves the cables. Let's see if we're looking at the 625 claims one. Is this the second line that says terminating at a top edge? Yes, your honor. It's in this introductory language. And then it's also talking in part C. Which is also preamble. Yes. It is preamble. But in part C where it says the cable exit trot's mountable to the lateral trot without cutting the top edge, then that's imparting the structure that's needed. Now, this issue of intended use you could say is on a spectrum. There is some reference to how this works in the real world, which makes sense in a part structure. But when you keep going farther and farther down that road, you're getting away from structure into the area of use, which is an imparting limitation. And as I was saying, if you're dealing with an infringement context, a baby C was doing a party for infringement who was just making the exit trot. And how is or is it connected to the lateral trot for a part that's being installed in a standalone basis would not inform the structure. I was thinking about this before I came to court trying to make examples to separate these two pieces. And I thought of a cup of saucer. You could say, yes, you know, it's hot flair. It faces down to the top of the saucer. And there are all different ways you can talk about the structure as a related to the saucer. But there are all different kinds of things to the saucer. Would a cup structure that was totally defined by a claim not infringed if the saucer were very small? At least sometimes, see if you order your espresso in the cafe or a big saucer that you could put a bucket on the side of

. If you're selling just the exit trot. As the teachers pointed out earlier talking about 625 claims, going over the top edge is structural, isn't it? As opposed to doing something else, whether it's obvious or not, is another question. But as a structural feature to go over the top edge. I think it's your honor with suggesting earlier that structure is captured by other parts of the claim. And that's what's supposed to be. When it sets, it leaves the cables. Let's see if we're looking at the 625 claims one. Is this the second line that says terminating at a top edge? Yes, your honor. It's in this introductory language. And then it's also talking in part C. Which is also preamble. Yes. It is preamble. But in part C where it says the cable exit trot's mountable to the lateral trot without cutting the top edge, then that's imparting the structure that's needed. Now, this issue of intended use you could say is on a spectrum. There is some reference to how this works in the real world, which makes sense in a part structure. But when you keep going farther and farther down that road, you're getting away from structure into the area of use, which is an imparting limitation. And as I was saying, if you're dealing with an infringement context, a baby C was doing a party for infringement who was just making the exit trot. And how is or is it connected to the lateral trot for a part that's being installed in a standalone basis would not inform the structure. I was thinking about this before I came to court trying to make examples to separate these two pieces. And I thought of a cup of saucer. You could say, yes, you know, it's hot flair. It faces down to the top of the saucer. And there are all different ways you can talk about the structure as a related to the saucer. But there are all different kinds of things to the saucer. Would a cup structure that was totally defined by a claim not infringed if the saucer were very small? At least sometimes, see if you order your espresso in the cafe or a big saucer that you could put a bucket on the side of. I mean, it's not, it doesn't matter. What we're focusing on is just the access for an entity structure has to stand alone. You started off, I think when you were talking about claim 14, that even if there weren't an intended use issue here, that the examiner also found that this was obvious. Or were there alternative findings? Let's assume, for example, that we disagree with your use of the standard of intended use. Are there alternative findings already made and accepted by the board that could justify rejection? There are alternative findings in the records that the board has not explicitly reversed. So, with respect to the first patent, the 220 patent, the examiner found, and that's in the first appeal, the 1435 appeal on A404, found that it taught the extending upwardly acer crossing the side wall. That's, if you're going to say it's a party made structure, that's the new structure. It's still, that drop is still heading up, acer crosses the wall, and the examiner explicitly found that that's found in the saber on A404. Now, in the second case, and that's claim 21, and in the second case, feeling the 625 patent, you've got two issues about intended use, and that's the claim 1 and claim 11. Claim 1 is the deraunted upwardly, and that was found by the examiner as well on page A314 and the second appeal. And then you have the same limitation leading upwardly acer crossing the side wall, and that's found on A332 by the examiner. So, the office understands that the examiner is trying to find ancient every limitation, from an anticipation, obviously, and perspective, and also appreciate the position of the board, which is that ADC has gone too far down the avenue of intended use, and we need to focus on the structure of what it actually claimed, and that's the acer trough. A moment ago, we were saying that the top edge, recited in line 2 of the 625 claim 1, is the predicate for the top edge, the wherein clause, not the instructional, because it's already there, but actually it's the side terminating at a top edge, whereas in the where S clause, we're talking about the exit cable exit pathway extending over the top edge. So, in one case, it's the side, and the other, it's the same top edge, but the wherein clause adds a pathway extending over the top edge. So, it doesn't the wherein clause adds structure that isn't in the early part of the claim. I think it does add, I don't think it's necessary to define the shape of the trough, but I do think that it provides context for how these two parts fit together, and where that's appropriate, I think it's disgusting or the kinetic case, because that was the case for the car door, the car is fitting through the door, and after 1, 12 case, you could say, okay, fine, you have this extra language that we can understand having two pieces can work together in the real world, so we're not dealing with an indefinite issue, but here we're not dealing with the death. I have a great shortcoming to the argument that I find some time and time is when we're focusing on a particular claim, someone fights another case. Now, let's get off the track, which is what you just did. I take it that there isn't, therefore, that my question was sound, and maybe I was correct, and that's the wherein clause adds structure. Well, I don't think you can look at the words in isolation about looking at the specification and the drawings. So, it is, well, just the naked words, I think, leave a little bit of ambiguity that perhaps is wearing positive film in the gas, but I think when you look at the claims in the context, the whole pattern, then it becomes clear what the shape of that slide is, because they're with the top edge. And as I said, if the court does find that being ten of you started to submit, ten of you's position by the board doesn't matter what went too far, there are clear findings in the records to support that these limitations are found in the references. But why don't we have to send it back? If structure is part of the wherein clause, if the personnel was erred, then the claim is narrower, and therefore not subjected to the prior act of the same way, and we have to send it back. Because the board position and the namer and position are consistent, so the record already provides support for these rejection, whether or not, no matter how the attendants use the position comes down from the court as a matter of law. The court never reviewed the exam list conclusions with respect to that alternative theory did it. In the respective summits, the board actually went on to consider them directly, and with respect to the abuse of limitations, the board just stopped at that point

. I mean, it's not, it doesn't matter. What we're focusing on is just the access for an entity structure has to stand alone. You started off, I think when you were talking about claim 14, that even if there weren't an intended use issue here, that the examiner also found that this was obvious. Or were there alternative findings? Let's assume, for example, that we disagree with your use of the standard of intended use. Are there alternative findings already made and accepted by the board that could justify rejection? There are alternative findings in the records that the board has not explicitly reversed. So, with respect to the first patent, the 220 patent, the examiner found, and that's in the first appeal, the 1435 appeal on A404, found that it taught the extending upwardly acer crossing the side wall. That's, if you're going to say it's a party made structure, that's the new structure. It's still, that drop is still heading up, acer crosses the wall, and the examiner explicitly found that that's found in the saber on A404. Now, in the second case, and that's claim 21, and in the second case, feeling the 625 patent, you've got two issues about intended use, and that's the claim 1 and claim 11. Claim 1 is the deraunted upwardly, and that was found by the examiner as well on page A314 and the second appeal. And then you have the same limitation leading upwardly acer crossing the side wall, and that's found on A332 by the examiner. So, the office understands that the examiner is trying to find ancient every limitation, from an anticipation, obviously, and perspective, and also appreciate the position of the board, which is that ADC has gone too far down the avenue of intended use, and we need to focus on the structure of what it actually claimed, and that's the acer trough. A moment ago, we were saying that the top edge, recited in line 2 of the 625 claim 1, is the predicate for the top edge, the wherein clause, not the instructional, because it's already there, but actually it's the side terminating at a top edge, whereas in the where S clause, we're talking about the exit cable exit pathway extending over the top edge. So, in one case, it's the side, and the other, it's the same top edge, but the wherein clause adds a pathway extending over the top edge. So, it doesn't the wherein clause adds structure that isn't in the early part of the claim. I think it does add, I don't think it's necessary to define the shape of the trough, but I do think that it provides context for how these two parts fit together, and where that's appropriate, I think it's disgusting or the kinetic case, because that was the case for the car door, the car is fitting through the door, and after 1, 12 case, you could say, okay, fine, you have this extra language that we can understand having two pieces can work together in the real world, so we're not dealing with an indefinite issue, but here we're not dealing with the death. I have a great shortcoming to the argument that I find some time and time is when we're focusing on a particular claim, someone fights another case. Now, let's get off the track, which is what you just did. I take it that there isn't, therefore, that my question was sound, and maybe I was correct, and that's the wherein clause adds structure. Well, I don't think you can look at the words in isolation about looking at the specification and the drawings. So, it is, well, just the naked words, I think, leave a little bit of ambiguity that perhaps is wearing positive film in the gas, but I think when you look at the claims in the context, the whole pattern, then it becomes clear what the shape of that slide is, because they're with the top edge. And as I said, if the court does find that being ten of you started to submit, ten of you's position by the board doesn't matter what went too far, there are clear findings in the records to support that these limitations are found in the references. But why don't we have to send it back? If structure is part of the wherein clause, if the personnel was erred, then the claim is narrower, and therefore not subjected to the prior act of the same way, and we have to send it back. Because the board position and the namer and position are consistent, so the record already provides support for these rejection, whether or not, no matter how the attendants use the position comes down from the court as a matter of law. The court never reviewed the exam list conclusions with respect to that alternative theory did it. In the respective summits, the board actually went on to consider them directly, and with respect to the abuse of limitations, the board just stopped at that point. But according to the regulations governing examination practice, the board doesn't explicitly rehearse a finding of the examiner and affirms the rejection, which is what the board is, and this finding survived. And so their part of the record can support an agreement by the court, regardless of how the court comes down to the attendants use the issue. So, you want to address briefly your friend's argument with respect to the failure to consider his proposed rejection? Yes, Your Honor. I think as Kevin has discerned from the brief sample count of the argument today, the real thing that Pando and Hath with the way this examination was handled is that the examiner didn't consider their alleged rejection. And there is a remedy for that, and the way that remedy is structured is to position that issue to the patent office. And as Judge Lori indicated, the board are really subject matter experts when it comes to the patentability of the claim. They don't address internal patent office procedural issues. And when Pando and Hath received the action closing prosecution and saw that what is believed to be its claim, which if you look at how they presented that and were presented very briefly, we're not properly considered. And so, that was the point at which they needed to speak. They should not have essentially rolled the dice and said, all right, we're not going to say anything. And we're going to hope that we can present these to the, during the board appeal and have the board fully consider them at that point. And when the board didn't have anything to look to, and the examiner's right appeal notice to appeal, who's right with respect to these particular rejections. There just wasn't anything much in the record for the board to work with. And it seems like the closest analogous situation in this is, and of course, there is this gap in the rules, is when a patent holder amends a claim during re-examination. And those circumstances, the rules permit them to present new rejections. And then that, there's a whole procedure for that. It just happens to be that it doesn't explicitly say amend or amend by adding claims. But the procedure is the same way. And I think this court's recent decision in Belkin informed how we should handle this and what, how to frame the appeal before the board. So, as I said, I think the board was right to say these issues were not before it. And focus on the issues that have been properly presented. And if the court has no more questions, I will. Thank you. Thank you. Thank you so much. We turned to you, Mr

. But according to the regulations governing examination practice, the board doesn't explicitly rehearse a finding of the examiner and affirms the rejection, which is what the board is, and this finding survived. And so their part of the record can support an agreement by the court, regardless of how the court comes down to the attendants use the issue. So, you want to address briefly your friend's argument with respect to the failure to consider his proposed rejection? Yes, Your Honor. I think as Kevin has discerned from the brief sample count of the argument today, the real thing that Pando and Hath with the way this examination was handled is that the examiner didn't consider their alleged rejection. And there is a remedy for that, and the way that remedy is structured is to position that issue to the patent office. And as Judge Lori indicated, the board are really subject matter experts when it comes to the patentability of the claim. They don't address internal patent office procedural issues. And when Pando and Hath received the action closing prosecution and saw that what is believed to be its claim, which if you look at how they presented that and were presented very briefly, we're not properly considered. And so, that was the point at which they needed to speak. They should not have essentially rolled the dice and said, all right, we're not going to say anything. And we're going to hope that we can present these to the, during the board appeal and have the board fully consider them at that point. And when the board didn't have anything to look to, and the examiner's right appeal notice to appeal, who's right with respect to these particular rejections. There just wasn't anything much in the record for the board to work with. And it seems like the closest analogous situation in this is, and of course, there is this gap in the rules, is when a patent holder amends a claim during re-examination. And those circumstances, the rules permit them to present new rejections. And then that, there's a whole procedure for that. It just happens to be that it doesn't explicitly say amend or amend by adding claims. But the procedure is the same way. And I think this court's recent decision in Belkin informed how we should handle this and what, how to frame the appeal before the board. So, as I said, I think the board was right to say these issues were not before it. And focus on the issues that have been properly presented. And if the court has no more questions, I will. Thank you. Thank you. Thank you so much. We turned to you, Mr. Collier. Is that right? Okay. Thank you. I have two quick points. I'm going to claim 14 of the 22 old patent. I want to make it clear that claim recites an upper surface, which is recited structural elements of the extra. And then at further limits, the upper surface to a particular orientation. And this is shown on page 11 of our brief. Okay. What the board did is they just dealt with the orientation language and dismissed full parts. The upper surface, which is the limit on the agitroth and the orientation dismissive dismissive both as intended use. But because the upper surface is recited as an element of the agitroth, it has to be given me. It's a structural element. And the spec, the examiner in the original prosecution and handling didn't dispute it going up to eight. They understood saying it appears to be referred to as an upper surface because it's above the cables. They knew that it served the cable rod infunction. The second point I'd like to make relates to when mounted extends transversely. If you look at staver, you can see that does not meet this limitation by looking at the mounting structure. Angle slots, angle slots to get to the principle of operation pointed at an acute angle. So my point here is that this illustrates that that wear end clause and structure. You look at the, it's part of the equation. You look at the mounting structure and the surfaces, the structural surfaces of the agitroth. Okay. Restarted features of the extra. You have to look at those. They have to cooperate with each other to accomplish that wear end clause

. Collier. Is that right? Okay. Thank you. I have two quick points. I'm going to claim 14 of the 22 old patent. I want to make it clear that claim recites an upper surface, which is recited structural elements of the extra. And then at further limits, the upper surface to a particular orientation. And this is shown on page 11 of our brief. Okay. What the board did is they just dealt with the orientation language and dismissed full parts. The upper surface, which is the limit on the agitroth and the orientation dismissive dismissive both as intended use. But because the upper surface is recited as an element of the agitroth, it has to be given me. It's a structural element. And the spec, the examiner in the original prosecution and handling didn't dispute it going up to eight. They understood saying it appears to be referred to as an upper surface because it's above the cables. They knew that it served the cable rod infunction. The second point I'd like to make relates to when mounted extends transversely. If you look at staver, you can see that does not meet this limitation by looking at the mounting structure. Angle slots, angle slots to get to the principle of operation pointed at an acute angle. So my point here is that this illustrates that that wear end clause and structure. You look at the, it's part of the equation. You look at the mounting structure and the surfaces, the structural surfaces of the agitroth. Okay. Restarted features of the extra. You have to look at those. They have to cooperate with each other to accomplish that wear end clause. Thank you. I'd like to on the bottle first address the issue of whether or not the added plans were reviewable by the board. Then I'll briefly talk about the transverse issue and then the surface issue. Both the panel and the ABCP position that the board is failure to review these errors, refusal to adopt certain challenges to the client was clearly additional. Nothing says that it's additional. You can comb the MPB, you can comb everything. Nothing says that that's a distortion. The statute of rule clearly say a decision is favorable to patentability and are attainable. We view the examiner's decision not to treat those challenges as a decision favorable to patentability. With respect to the transverse issue, ABCP position that transverse means perfectly to other. The broadest reasonable construction of transverse is across. Anything that goes across comes in this transverse. In St. Petersburg, the cable bridge clearly goes across this land. It is transverse to the flange. If they wanted to claim something as perpendicular to the upstand side of the talk, they could have said from the regular effect. Other claims do say generally perpendicular. Transverse is a broader term. It's clearly disclosed that a structure goes over and transfers the wall. With respect to the upper surface limitation, if you look at the front portion. It tells specifically the exit trosistent we further comprising an upper surface position above and in these partially facing a bottom of the first tros section. When the exit trosisting we is mounted to the first tros section. It doesn't even recite any intended use of rounding the cables. Nothing about this says that it involves the cables that it's not structural support. What it is, all it requires is some upper surface that faces the bottom of the tros. So we don't even need to address the intent of use this year with respect to this limitation

. Thank you. I'd like to on the bottle first address the issue of whether or not the added plans were reviewable by the board. Then I'll briefly talk about the transverse issue and then the surface issue. Both the panel and the ABCP position that the board is failure to review these errors, refusal to adopt certain challenges to the client was clearly additional. Nothing says that it's additional. You can comb the MPB, you can comb everything. Nothing says that that's a distortion. The statute of rule clearly say a decision is favorable to patentability and are attainable. We view the examiner's decision not to treat those challenges as a decision favorable to patentability. With respect to the transverse issue, ABCP position that transverse means perfectly to other. The broadest reasonable construction of transverse is across. Anything that goes across comes in this transverse. In St. Petersburg, the cable bridge clearly goes across this land. It is transverse to the flange. If they wanted to claim something as perpendicular to the upstand side of the talk, they could have said from the regular effect. Other claims do say generally perpendicular. Transverse is a broader term. It's clearly disclosed that a structure goes over and transfers the wall. With respect to the upper surface limitation, if you look at the front portion. It tells specifically the exit trosistent we further comprising an upper surface position above and in these partially facing a bottom of the first tros section. When the exit trosisting we is mounted to the first tros section. It doesn't even recite any intended use of rounding the cables. Nothing about this says that it involves the cables that it's not structural support. What it is, all it requires is some upper surface that faces the bottom of the tros. So we don't even need to address the intent of use this year with respect to this limitation. There's no intent to use this type of system. It is a simple limitation requiring an upper surface. With respect to the other intended use limitation, even if this court disagrees that those are near recitations of the intended use. At most they simply recite capabilities of the structure of the exit trosist. All of these prior references that we've addressed disclose these capabilities when their attacks to the hypothetical trosist that ADC has referenced in the claim. The capabilities exist. We don't need to look to the specific trosist structures in my offer or the specific trosist structure of the tourment. Because that tros doesn't have, we're looking at what do their exit trosist structures look like when they're attached to the hypothetical trosist structures that discuss these clients. I'd like to briefly turn that to the Belkin case. The Belkin case is very different than our first race here. What the appellant was asking for a Belkin case was for the board to review something on a peel in which they were statutes were required from a peel. In their case the statute says you cannot have the panel of determination that a reference does not raise a substantial new question of accountability reviewed on a peel. The statute is clear that was part of the peel. In our case the statute does not or are a peel in fact it says that it is a peel. It says decisions available and the release are reviewed can be reviewed on a peel. So our situation is going to be bad. Thank you very much. Our next case is for the next question.

Our first cases this morning are penduity with ADC and Rhea. Separate cases, we put them together for argument. Mr. Fakali, or I guess you'll be going for 20 minutes and then we'll hear from Mr. Stewart for 20 minutes and then Mr. Casper's, have I got to miss Casper's? Year third. All right. Then first we'll be Mr. Casper's. Okay. I think we have it now, Mr. Collie. Mr. Stark first then. Thank you. I would like to reserve my minutes for a moment. Please. Please support. There's two issues that I was waiting to discuss today. The board's three. Two out of 32 or how many did you throw at us? I'm not sure with the exact number. I'm not either. Please proceed. The board's three, none of the long reference. And the board's refusal to consider the examiner's failure to adopt a Panduit challenge as to ADC's claims that were added to any examination. Well, let me get right to the board's refusal. Wasn't that issue petitionable and you didn't petition? It's not clear the issue was petitionable. There's nothing in it. It's a procedure. It's a failure to examine. It's not the substance of rejection. Well, the challenges were presented and the examiner did not adopt them. And that is a decision-favorable patentability that falls under the statute and the rules that govern the issues that are revealed a lot of peer. Both the statute and the rules do not specify that challenges have to be framed in a form of proposed rejections. They specifically mentioned the broader language that is some kind of decision-favorable patentability. This is, this is common to both people. Yes. And the statute and the rule simply states that decision-favorable patentability is a fuelable. The rule of the decision not to examine because it wasn't presented fully as a proposed rejection with claims applied to Briarot. That is a procedural point rather than a substantive visit. The challenge is a warrant to consider and that is a decision that is favorable to patentability. The challenges were presented where we addressed each feature added in the additional claims pointed to where they were in the prior art. And the examiner even adopted some rejections that were exactly the same as those challenges. So it's relatively clear they weren't considered. So what are you raising this further issue for? If the examiner adopted certain rejections, similar to what they said they wouldn't do with it. There were one that he didn't adopt that we believe he should have. They were considered, is decision not to adopt them was a decision that was favorable to patentability under the statute, under the rule. It's a review of a lot of appeal. There's nothing that says in the MPP or any guidance specifically that the petition will issue. And the fact of the matter is to have required a file of petition on an issue where it's not specific that we should have filed a petition and denies review of these rejections. It is going to prevent us because we have stopped the procedure from ever addressing those claims subsequently. Can I just turn into a really difficult, a difficult question because we've got so many claims here. On the first case, now your friend on the other side is cross appealing the rejection under anticipation by stable of certain claims. But if hypothetically we were to agree with him, doesn't that dispose of at least a large number of your appealable issues? I mean, goes through, as I understand that, on that anticipation rejection goes to claims one through nine and twelve and thirteen. And it seems like there's a lot of overlap between those and the ones you were challenging on your appeal. There is some overlap certainly. There are issues that don't overlap. And particularly the board's reversal of the examiner's rejection over long due of favor in the first case that has resulted into a lot of claims. And I would like to address it now. For that rejection, the board on its own can extrude the term cable exit trough to require a long narrow opening sector. Based on the definition of the board obtained on its own from a general purpose of the scenario that relates to animal v trough. We feel like that definition is narrower than the prior series of construction, which is the standard control during examination. Specifically because it's inconsistent with more relevant technical definitions that apply to the term cable trough, which is really what we're dealing with here. It's also inconsistent with the disclosure of maybe these paths. The McGrawfield Dictionary Assignment of Technical Terms defines a cable trough as an enclosed channel, usually beneath the floor that provides a path for cables. That definition alone establishes that the term trough is broad enough to encompass both open and enclosed structures. So the board's limiting that term to only open long and narrow structures is narrower than the prior series null interpretation of yours. Furthermore, if you were to look at the embodiment in ADC's patterns, the cable exit troughs in all of the embodiments, I don't think anybody would view those as being long and narrow. They're very unique structures. So what are you proposing to alternative claim construction? It's structure that provides a pathway that allows cables to exit trough. So even though there's no opening at all on any side, completely enclosed, well, turning along, there is an opening. The part of long that the cables travel through to exit trough is referred to as the funnel shaped part five. Consistently throughout the long reference, funnel shaped part, funneled half openings. In fact, even in the decision on the VIA, but just looking at along the floor, it says it's enclosed on all four sides. I mean, it has, so we're looking at the opening on the four sides, right? The board actually said that the funnel shaped part would be understood to be a two-barre shaft on page A88 of the appendix. In their decision, they said that it would be understood to be a two-barre shaft and thus is enclosed. So they were not saying that it was enclosed on all sides. They were saying that it was enclosed as a two-bar shaft. If you look at figure two of long, you can see the cables exiting the funnel shaped part. There is an opening that those cables are coming out of. If it were completely enclosed, the cables couldn't travel through it. The board held the claims one to eight and eleven were obvious over a staver and showing them in my Ohio heart, right? I believe that's correct. You're claiming the board, or it, and not stopping their projections to claims one to eight because Shoyuman, Hannahberger, and Maya Harper were deficient. There's a seemingly inconsistency here. You argue that these references failed to disclose the vertical downspot. Well, I guess the board held them. They failed to disclose the vertical downspot portion. That's correct. But they rejected them for the same references. Yes, in a different part of the script. I think that was an inconsistency in the board. But you're in opposition to these patents. You're trying to wrap them up, to make sure they're absolutely inconsistent. You want these claims knocked out, which they did. So it seems as though you're soliciting them for the way they did it, which you've got what you want it. The claims were rejected, one to eight and eleven. That's correct. We are entitled to fallback physicians in case those projections stand or determine to not be given. Because of this proceeding, we have to raise all of our challenges due to the assault procedures. That is why we're proposing alternative projections. I believe I've addressed my two issues. I'd like to reserve for a remainder of the time. Thank you. May I please support I have reserved four minutes for rebuttal. I'm going to address two claims, claim one of the 625 and claim 14 of the 228. Claim one of the 625 was rejected as obvious using staver at the primary reference. The board found that it would have been obvious to once the skill in the arts modify stavered fridge to include the missing elements of the 625 and claim one. I'm going to address three of those missing elements. The two curved side walls, the vertical downspout, and the language it says when mounted to the lateral trough, the cable exit pathway extends transversely over the top edge of the sidewalk. It wants to be like showing them as a better reference. But showing them as a right tool instead of oval. It goes right through. That's right. It does. Obviously, they're not on a phrase, but it obviously would seem to be a better primary reference. But if it takes the problem with the prior art, they're going through the wall. They're taking a more direct path versus what we did is we took the indirect path routing it initially in the opposite direction from the end destination. But ultimately it goes down, doesn't it? Ultimately it goes down. But what we did required was that obviously some view of the other references which do all sorts of similar things to go over it, not true of it. No, I don't believe so, Your Honor. If you look at Stabler, what it discloses, we've got it on page 19 of our brief. I've shown figure three and figure one. It takes a single cable over a vertically running flash. And it has two straight parallel side walls on the top end and on the bottom end. They're symmetrical. So, when you look at the other side of the flash, you can see that the cable is overbending. It's aimed pointed at an acute angle. For example, the cable that's descending downward over the edge. So, again, it results in a small acute angle to take it over that flash. Now, Stabler identifies his design drivers. At column one, line 30, the 31, in the summary of invention, he says that his design, quote, allows for one part, one part, to be used for either side of the equipment rack or in transition in either direction. If you want to go from left to right or right to left. And to do that, how he does that is he makes it symmetrical. The top end is a mirror into the bottom end. And he's got alternative mounting slots to flip it this way or that way, at an acute angle. In the same sentence that I just said the way he identifies his design drivers, he says, he emphasizes that to make the cable bridge as compact as possible. That's the second driver. If you look at his device, it's flush with that flash. Why? Because it would bump into equipment. If it wasn't flush, there's equipment in the rack. So, let's go to what Stabler does in the schools, the curved side walls. It's undisputed, and the board found that Stabler lacks the two curved side walls. But the board found that it would have been obvious to modify Stabler to include the two curved side walls, the Flared-Oce side walls from shoremen, for example. Well, to resolve this issue, we need to understand the reason why the two curved side walls are included in the shoremen design, for example. Well, if you go to shoremen, you can see that it's a trough, and it's inviting cables from either side, inviting cables from either side. And so, it's got a curve to the right to invite the cables from that direction and a curve to the left, okay? To invite cables from either design. The Stabler design drivers are fundamentally different. They've got this versatile device, one part for all applications. It's symmetrical at both ends designed to take a single cable. And how does it do that? It aims at an acute angle to invite that cable in, and by doing that, it can get it over without overbending, without the need for curves. Can I interrupt you just for your time, and maybe I've got the issues mixed up, but it seems to me that in connection with your cross appeal, at least, to be raised. There are two issues raised, if we step to the first case, claim 14 and the second case, claim 1. And that has to do with the fourth conclusion, with regard to intended use. Will you plan to cover last? Yes, Mr. Marshall. Yes, I'll cover it. I appreciate it. Okay. Right now? Okay. The intended use language. Okay. Our position is it's not intended use. We're not talking about language, for example. This is the, when the exit trough is mounted to the lateral trough, the cable exit pathway extends transversely over the top edge of the sidewalk. Our position is not mere intended use. We're talking about language in the body of the claim. We're not talking about context in the preamble, like a bolt used for water. Specifically here, the claim language relates, and it impacts the mounting structure on the claim exit trough, as well as the cable exit pathway surfaces. Again, on the exit trough, you're looking at 14 or a year. I'm at that claim of claim 1, 625. And that would be 625. That's right. That's right. So it says, when the exit trough is mounted to the lateral trough, the cable exit pathways orientated to the, it is extending over the top edge to the lateral trough sidewalk, but not just at any angle, it's transversely to the lateral trough sidewalk. Well, how is the structure? Well, you can't have, you can't have just any mounting structure or cable exit pathway surfaces to accomplish this. It restricts, by reference to the lateral trough, it restricts with those structural elements can be. So for this... Well, you know, the path to the office, and they can speak to themselves, obviously, in a few minutes. But I think they say it's, this goes to orientation, but not to structure. And it seems to me that this does go to orientation, right? It goes to orientation with reference to the lateral trough, but it restricts the mounting structure and the cable exit pathway structures. So there's a case we cite in our brief that talks about a chair sized to be fit within the door, a corridor opening, and that was found to be a structural limitation. This is just like that. Where and this wherein clause, and wherein usually speaks to result, but wherein this wherein clause is the structure that is not in the earlier portion of the claim. That's the issue, isn't it? I'm sorry? Whether it's structure, that's right. Depends upon whether there is structure that isn't already recited in the early parts of the claim. All right? Well, there is. Because if it's not additional structure, if it's just reciting results, then it is intended use rather than structure. I wouldn't agree with that because, like I said, you can't have just any mounting structure or any cable exit pathway to accomplish this, to accomplish this result. And so it does just like the chair case, sides to be fit within the corridor opening, it does impact. What's not that often, in other cases, where, as I asked, is there structure in the earlier part of the claim that would make that that's where and clause would duplicate. And therefore make it intended use rather than structure. And if this structure is in the early part of the claim, then it can't say that this structure in the wherein clause. Well, the structure recited in the earlier part of the claim, the cable exit pathway surfaces, for example, defined by and claimed one as including, why aren't you telling us it requires over instead of through the wall, and that is structural? What does require over and transversely over? So that language tells you what the mounting, what puts a restriction on the mounting structure and the type of cable exit pathway surfaces that can be used. Does that answer your question? Somehow that didn't come to mind, and you are thinking though. Until, I'm sorry. But I guess, I want it to be a little more explicit in terms of what you're saying. So the claim language under thesis extends transversely over the top edge. So you're saying that's the structure here? That's right. It's referring to the structure, I'm sorry, it's referring to the structurally cable exit pathway structure defined by the surfaces that include, curve bottom wall, curve side walls, and as well, a vertical bounce valve. And so it's with reference to that, and it also restricts how can we mount it? So you don't go through the side wall. Well, you have you already said that, beginning language and C, right? It's mountable to the lateral trough without cutting the top edge and corresponding upside, upstanding side. So this, you're saying add something to the other. Yes, I'm just saying. What is the talent? It tells us that you can't have cable exit pathway surfaces or mounting structure that takes you through the wall. So you have to go in the opposite direction. And if you look at saber, for example, we talked about his design. And you think in the absence of this language, the rest of the structural language and the claim would allow and include going through the wall? Yes, I think it's very important. But why is this not obvious to kind of return to something judge Luria observed earlier? You've got a trough. There's really only two ways out of the trough, right? Over the edge or through the wall. Wouldn't anyone of knowledge in this area of art rather interchangeably use those two escape routes from the trough? No, not based on the art that we do have in here. We have shoyerman going through the wall. Right. We have Hennem Burger that seems to be coming up and out. We have saber going over the plan, which is the wall in this case. We have going over and through rather interchangeably. Well, why isn't this, let's start with very clearly there in various references? Well, another way to say it with talking about the design drivers that the stabbers reasons for adding curve sidewalks, for example, are undermined by stabbers design drivers. If you add curve sidewalks, for example, to stabber you lose the cemetery, you lose that flexibility. Also, it serves no useful purpose. You're already aiming at the prevent overbending to get a single cable across. There's no reason to curve it at that point as well. It would conflict with that flange. If you put a curve sidewalk, it will bump into that flange. The court's principles announce them to pew, for example. Our political here says an inference of non-obvious is especially strong with a priori-teaching undermine the very reasoned progress of why one-a-boardage skill in the art would combine the known elements and the same applies to the vertical downspout. The vertical downspout, again, neither Sherman or Lyre-Hover, the two secondary reference even have a vertical downspout. That's what the board found because vertical means perpendicular to the plane of the rider. If they said it would be obvious to do it, well, not a staver says make it symmetrical, one part for all applications. If you add a vertical downspout, you create other problems. If you add a vertical downspout to that outside and run into the equipment, if you flip it the other way, as Tando would suggest, it would run into the bottom of the trunk wall. If you look at figure 3 of staver, he lives by this rule. You notice that after he crosses over the flange, the cable takes a 90 degree turn. And he doesn't add anything in there. No curves, no vertical downspout. He lives by his design drivers. For this vertical downspout, we're talking about something that's not even in Lyre-Hover, and Sherman. And in conflict with the design drivers, the principles, again, in the deput case supply, one would be deterred based on the design drivers in saver, not to do this. That gets me to the language about... Do we apply the difference to the board's conclusions otherwise? Obviously, the board did not agree with you. But there's no... What's the standard that we apply on repeat? Substantial evidence. But there is no evidence. They didn't come forward with anything from one of Stilny Art. And what we have on our side is staver's own words that establish design drivers that are in direct conflict with that combination. And the same applies to the mounting. When mounted, it extends not only... It says, it stands over the top of the lateral trowel sidewall, but not just at any angle. It extends transversely over the top. Again, you can't have just any cable exit pathway surfaces to do that. It gives me to the issue of what this transverses me. Now, the board, in another opinion that's on appeal, said, transverses means a cross. And it can't be at any angle. Well, that's just wrong because it gives no meaning to the word transverse. Any time you go over the edge, you go over, you go across. Climb one contrast with other clamps that don't recite the word transverse. And if you go to the specification, the only embodiment shows the cable exit pathway extends at a perpendicular angle. Okay, transverse. That's the only reasonable definition. And if you go to staver, they're saying, just turn it in a transverse perpendicular direction. Again, to do that, you'd have to violate staver's design drivers. You'd have to, you know, staver's about aiming it at a cute angle. It's prevent over bending. To prevent over bending, the bridge is aimed at a cute angle to transition that over. So, again, this third limitation, the third missing limitation is also not there. And of course, if you turn in transverse and you're on a horizontal trough, it goes straight, well, they just stick out right into the cables. They block the cables. And that would also be a problem. So, conflict with the design drivers. And it's not awkward. It's going to block the cables. So, where does that get us? Let's look here at all the changes that once you're on the hour, you have to make to go through to convert staver to claim adventure. You'd have to ignore that it disclosed reuse on a vertical flange and turn it horizontal. You'd have to change two sidewalls and incorporate on one end and incorporate, for example, shrewermans flared out first sidewalls. Next, you need to add a vertical bounce down, which makes no sense in view of staver's teaching. And then you turn it transverse perpendicular. And we're talking about a lot of changes here. It's changes that conflict with the design drivers and create other problems. This is classic concept. This is classic concept. They're reconstructing mentioned. They're using the problem that our invention explains, as well as the solution in the pattern that they're using that as a roadmap. So, that gets me to the upper surface in plain 14 of the 2-2-0 pattern. You're into your rebuttal time, do you realize? Okay. Rebuttal is my cross appeal. Yeah. Well, I'll make this point very brief. Client 14 recites the upper surface. The board, in its opinion, never addressed it. Upper surface is recited elements of the megatron. It has to be given meaning. It makes no sense as panoretists to say it's just some surface. It has to be given meaning. And it's confusing how it got here because to the board we said it's a surface above the cables. And they said, quote, it appears to be referred to as an upper surface because it is above the cables. So, we were on the same page. And even the examiner in the original prosecution said, at the appendix A3019, he understood what it was with reference to the upper surface that it was critical, protects the optical fibresome bending, and just like Pandewan, understood that it referred to a surface for guiding cables. So, that's real world evidence of how someone from Missouri with this technology were construed. So, if upper surface is properly construed to mean above the cables, it can't be disputed that neither staver or churraman have that feature. Thank you. Okay. Thank you. Please move the board. I think there are a few ways to simplify the approach to this case. And that is the focus on the rejections that were actually put in place by the examiner or firm by the board, which is a result of 95% of the case for us. So, we start with the first case involving the TQO patents, the primary rejections there, turn around staver and anticipation. And staver teases all of the elements found in those claims from the first time. We don't need to reach a claim construction issue in staver, because under either definition the side wall of the trough or the flange of staver first year is not modified. So, that whole discussion of cutting and modifying and the pictures don't even need to be reached by this court. So, staver rather, crafts terms just really look different, doesn't it? Stealing with one claim rather, one wire taking it over a flange and a rack rather than out of a deep trough. Should we be bothered by that? I don't think the court should be bothered by it for versus the anticipation, the first case or odd. The anticipation is going to require each and every, you know all that stuff. And there seems to be a lot of difference. Well, obviously we're dealing with, as you said, getting the cables out of the trough. And there are a couple different ways to do it. Staver is a good-based reference because the reason staver is curved. And it goes up, it goes kind of levels off, and then it goes down again. And that's one of the key features of the patterns that is used for the court is I kind of think of the ABC patterns as having a slide. So, one is more, certainly more of a grid shape and one more of a slide shape. But one of the essential features is this up and over and down. And that's the key features that staver teaches. Now, if you want to include all of the various limitations that run across the 30 plus claims, yes, there's some adjustments to be made in terms of the different angles at which staver can be turned. And the vertical drop, which is implied, and almost all of the references by the downward curve that occurs in each and every one. So, staver is a good-based reference and the very few limitations that aren't directly encompassed by staver are taught by Schuerman. And that's the combination for the second case. How can then this upper surface limitation be just an intended use when you just told us how important it was and now you're just, and yet the board dismisses is a use? Well, there are a couple different surfaces going on here. There's the surface of the actual bridge that the cable is passing over. And then there's this one portion of one of the claims that talks about a different surface. Are you talking just, are we talking on claim 14 and 220? Yes, Your Honor. The last section of claim 14, hold it out here. Now, though we're here not talking about claim 1c and 625. Yes, we're just talking about the last paragraph, the last phrase in claim 14 from these 220 pads. And it goes on to talking detail, on and on about the shape of this extra trot. And then finally, at the very end of the claim, it says further comprising an upper surface, which is completely undefined. And then it says, and it was added during the amendment to the case and at least partially facing the bottom of the first trot when they're mounted together. So, yes, A.G.C. has pointed to this very small upper surface above the cables. And it says, well, this isn't important because it's about the cables. And it's protecting them and it's doing various things. But if you look at the claim language, even the amended claim language, it's just an undefined upper surface. So, the diameter and the board, well, it says, and at least partially facing the bottom of the first trot. Right. Right. So, what the examiner said was that if you look at your bridge, and here's the trot, they kind of go like that. That the bottom of the stable bridge is partially facing the bottom of the stable trot. And that's enough for this very broad kind of undefined limitation. And the board also said, wait a minute, when you start talking about how these two pieces work together, and the lateral trot isn't even part of the claim, we're starting to get into an area of intended use. And the board isn't even going to raise that limitation in. So, if you read the limitation and the examiner's found it, if you find that the limitation is going too far afield from the actual structure of the exit trot, then this one portion of the claim, the upper surface facing down, isn't something the court has to address here today. I'm a little concerned with the intended use findings in both the 220 and the 625, because for one thing, they appear in the body of the claim. They do have at least minimal structural limitations. And we pretty much can find our intended use concerns to preamble. So, I'm wondering why the board is extending intended use in the structural aspects of the body of the claim. I think the reason why intended use makes sense in this case is the same reason why it's typically dealt with in preamble is that intended use is really trying to give the claim context. And that's why it was brought up in the ortho-kinetics case, which was a 112 decision to say, okay, how do we define what's being discussed here? And then we're going to look at the context of what's happening in the claim and the preamble in the various parts. But when you just have a claim that's simply to the exit trot and not to the combination, then when you start to define the structure with how it looks with its connected, then you're getting into trouble. And that matters more obviously from an infringement perspective. If you're selling just the exit trot. As the teachers pointed out earlier talking about 625 claims, going over the top edge is structural, isn't it? As opposed to doing something else, whether it's obvious or not, is another question. But as a structural feature to go over the top edge. I think it's your honor with suggesting earlier that structure is captured by other parts of the claim. And that's what's supposed to be. When it sets, it leaves the cables. Let's see if we're looking at the 625 claims one. Is this the second line that says terminating at a top edge? Yes, your honor. It's in this introductory language. And then it's also talking in part C. Which is also preamble. Yes. It is preamble. But in part C where it says the cable exit trot's mountable to the lateral trot without cutting the top edge, then that's imparting the structure that's needed. Now, this issue of intended use you could say is on a spectrum. There is some reference to how this works in the real world, which makes sense in a part structure. But when you keep going farther and farther down that road, you're getting away from structure into the area of use, which is an imparting limitation. And as I was saying, if you're dealing with an infringement context, a baby C was doing a party for infringement who was just making the exit trot. And how is or is it connected to the lateral trot for a part that's being installed in a standalone basis would not inform the structure. I was thinking about this before I came to court trying to make examples to separate these two pieces. And I thought of a cup of saucer. You could say, yes, you know, it's hot flair. It faces down to the top of the saucer. And there are all different ways you can talk about the structure as a related to the saucer. But there are all different kinds of things to the saucer. Would a cup structure that was totally defined by a claim not infringed if the saucer were very small? At least sometimes, see if you order your espresso in the cafe or a big saucer that you could put a bucket on the side of. I mean, it's not, it doesn't matter. What we're focusing on is just the access for an entity structure has to stand alone. You started off, I think when you were talking about claim 14, that even if there weren't an intended use issue here, that the examiner also found that this was obvious. Or were there alternative findings? Let's assume, for example, that we disagree with your use of the standard of intended use. Are there alternative findings already made and accepted by the board that could justify rejection? There are alternative findings in the records that the board has not explicitly reversed. So, with respect to the first patent, the 220 patent, the examiner found, and that's in the first appeal, the 1435 appeal on A404, found that it taught the extending upwardly acer crossing the side wall. That's, if you're going to say it's a party made structure, that's the new structure. It's still, that drop is still heading up, acer crosses the wall, and the examiner explicitly found that that's found in the saber on A404. Now, in the second case, and that's claim 21, and in the second case, feeling the 625 patent, you've got two issues about intended use, and that's the claim 1 and claim 11. Claim 1 is the deraunted upwardly, and that was found by the examiner as well on page A314 and the second appeal. And then you have the same limitation leading upwardly acer crossing the side wall, and that's found on A332 by the examiner. So, the office understands that the examiner is trying to find ancient every limitation, from an anticipation, obviously, and perspective, and also appreciate the position of the board, which is that ADC has gone too far down the avenue of intended use, and we need to focus on the structure of what it actually claimed, and that's the acer trough. A moment ago, we were saying that the top edge, recited in line 2 of the 625 claim 1, is the predicate for the top edge, the wherein clause, not the instructional, because it's already there, but actually it's the side terminating at a top edge, whereas in the where S clause, we're talking about the exit cable exit pathway extending over the top edge. So, in one case, it's the side, and the other, it's the same top edge, but the wherein clause adds a pathway extending over the top edge. So, it doesn't the wherein clause adds structure that isn't in the early part of the claim. I think it does add, I don't think it's necessary to define the shape of the trough, but I do think that it provides context for how these two parts fit together, and where that's appropriate, I think it's disgusting or the kinetic case, because that was the case for the car door, the car is fitting through the door, and after 1, 12 case, you could say, okay, fine, you have this extra language that we can understand having two pieces can work together in the real world, so we're not dealing with an indefinite issue, but here we're not dealing with the death. I have a great shortcoming to the argument that I find some time and time is when we're focusing on a particular claim, someone fights another case. Now, let's get off the track, which is what you just did. I take it that there isn't, therefore, that my question was sound, and maybe I was correct, and that's the wherein clause adds structure. Well, I don't think you can look at the words in isolation about looking at the specification and the drawings. So, it is, well, just the naked words, I think, leave a little bit of ambiguity that perhaps is wearing positive film in the gas, but I think when you look at the claims in the context, the whole pattern, then it becomes clear what the shape of that slide is, because they're with the top edge. And as I said, if the court does find that being ten of you started to submit, ten of you's position by the board doesn't matter what went too far, there are clear findings in the records to support that these limitations are found in the references. But why don't we have to send it back? If structure is part of the wherein clause, if the personnel was erred, then the claim is narrower, and therefore not subjected to the prior act of the same way, and we have to send it back. Because the board position and the namer and position are consistent, so the record already provides support for these rejection, whether or not, no matter how the attendants use the position comes down from the court as a matter of law. The court never reviewed the exam list conclusions with respect to that alternative theory did it. In the respective summits, the board actually went on to consider them directly, and with respect to the abuse of limitations, the board just stopped at that point. But according to the regulations governing examination practice, the board doesn't explicitly rehearse a finding of the examiner and affirms the rejection, which is what the board is, and this finding survived. And so their part of the record can support an agreement by the court, regardless of how the court comes down to the attendants use the issue. So, you want to address briefly your friend's argument with respect to the failure to consider his proposed rejection? Yes, Your Honor. I think as Kevin has discerned from the brief sample count of the argument today, the real thing that Pando and Hath with the way this examination was handled is that the examiner didn't consider their alleged rejection. And there is a remedy for that, and the way that remedy is structured is to position that issue to the patent office. And as Judge Lori indicated, the board are really subject matter experts when it comes to the patentability of the claim. They don't address internal patent office procedural issues. And when Pando and Hath received the action closing prosecution and saw that what is believed to be its claim, which if you look at how they presented that and were presented very briefly, we're not properly considered. And so, that was the point at which they needed to speak. They should not have essentially rolled the dice and said, all right, we're not going to say anything. And we're going to hope that we can present these to the, during the board appeal and have the board fully consider them at that point. And when the board didn't have anything to look to, and the examiner's right appeal notice to appeal, who's right with respect to these particular rejections. There just wasn't anything much in the record for the board to work with. And it seems like the closest analogous situation in this is, and of course, there is this gap in the rules, is when a patent holder amends a claim during re-examination. And those circumstances, the rules permit them to present new rejections. And then that, there's a whole procedure for that. It just happens to be that it doesn't explicitly say amend or amend by adding claims. But the procedure is the same way. And I think this court's recent decision in Belkin informed how we should handle this and what, how to frame the appeal before the board. So, as I said, I think the board was right to say these issues were not before it. And focus on the issues that have been properly presented. And if the court has no more questions, I will. Thank you. Thank you. Thank you so much. We turned to you, Mr. Collier. Is that right? Okay. Thank you. I have two quick points. I'm going to claim 14 of the 22 old patent. I want to make it clear that claim recites an upper surface, which is recited structural elements of the extra. And then at further limits, the upper surface to a particular orientation. And this is shown on page 11 of our brief. Okay. What the board did is they just dealt with the orientation language and dismissed full parts. The upper surface, which is the limit on the agitroth and the orientation dismissive dismissive both as intended use. But because the upper surface is recited as an element of the agitroth, it has to be given me. It's a structural element. And the spec, the examiner in the original prosecution and handling didn't dispute it going up to eight. They understood saying it appears to be referred to as an upper surface because it's above the cables. They knew that it served the cable rod infunction. The second point I'd like to make relates to when mounted extends transversely. If you look at staver, you can see that does not meet this limitation by looking at the mounting structure. Angle slots, angle slots to get to the principle of operation pointed at an acute angle. So my point here is that this illustrates that that wear end clause and structure. You look at the, it's part of the equation. You look at the mounting structure and the surfaces, the structural surfaces of the agitroth. Okay. Restarted features of the extra. You have to look at those. They have to cooperate with each other to accomplish that wear end clause. Thank you. I'd like to on the bottle first address the issue of whether or not the added plans were reviewable by the board. Then I'll briefly talk about the transverse issue and then the surface issue. Both the panel and the ABCP position that the board is failure to review these errors, refusal to adopt certain challenges to the client was clearly additional. Nothing says that it's additional. You can comb the MPB, you can comb everything. Nothing says that that's a distortion. The statute of rule clearly say a decision is favorable to patentability and are attainable. We view the examiner's decision not to treat those challenges as a decision favorable to patentability. With respect to the transverse issue, ABCP position that transverse means perfectly to other. The broadest reasonable construction of transverse is across. Anything that goes across comes in this transverse. In St. Petersburg, the cable bridge clearly goes across this land. It is transverse to the flange. If they wanted to claim something as perpendicular to the upstand side of the talk, they could have said from the regular effect. Other claims do say generally perpendicular. Transverse is a broader term. It's clearly disclosed that a structure goes over and transfers the wall. With respect to the upper surface limitation, if you look at the front portion. It tells specifically the exit trosistent we further comprising an upper surface position above and in these partially facing a bottom of the first tros section. When the exit trosisting we is mounted to the first tros section. It doesn't even recite any intended use of rounding the cables. Nothing about this says that it involves the cables that it's not structural support. What it is, all it requires is some upper surface that faces the bottom of the tros. So we don't even need to address the intent of use this year with respect to this limitation. There's no intent to use this type of system. It is a simple limitation requiring an upper surface. With respect to the other intended use limitation, even if this court disagrees that those are near recitations of the intended use. At most they simply recite capabilities of the structure of the exit trosist. All of these prior references that we've addressed disclose these capabilities when their attacks to the hypothetical trosist that ADC has referenced in the claim. The capabilities exist. We don't need to look to the specific trosist structures in my offer or the specific trosist structure of the tourment. Because that tros doesn't have, we're looking at what do their exit trosist structures look like when they're attached to the hypothetical trosist structures that discuss these clients. I'd like to briefly turn that to the Belkin case. The Belkin case is very different than our first race here. What the appellant was asking for a Belkin case was for the board to review something on a peel in which they were statutes were required from a peel. In their case the statute says you cannot have the panel of determination that a reference does not raise a substantial new question of accountability reviewed on a peel. The statute is clear that was part of the peel. In our case the statute does not or are a peel in fact it says that it is a peel. It says decisions available and the release are reviewed can be reviewed on a peel. So our situation is going to be bad. Thank you very much. Our next case is for the next question