Okay, our next face this morning is number 14. 1760 SPS, if the ex-corporation versus Pentea or Sudmah, Mr. Mitaewe. Thank you and may it please the court. The single most important and usually the positive source for construing the claim term scope and meaning is of course the patent specification. And as this court is repeatedly held, it is error to place undue emphasis on or otherwise elevate extrinsic dictionary sources over the specification. But despite that principle, the board here in reversing the examiner's decision as the 52 claims based on three claim terms did just that. It's to respond to a relied on extrinsic handbook or online dictionary sources to arrive at a construction that is divorced from the specification itself. And as a result, failed to apply these terms, broadest reasonable interpretation and thus erred in reversing the examiner's rejection based on those terms. With respect to the term axial feel, the board, as I indicated, started off with a handbook dictionary source that no party had ever cited or the examiner had never cited and used that as the ordinary source, or excuse me, the ordinary usage and then merely cited just one portion of the specification that doesn't speak to how a seal is formed. And it concluded that they don't have, depending on the dictionary definition, confirm what would be the ordinary meaning of the word seal. And that's got to be something more than a connection, correct? Not in this context, Your Honor, because as the specification itself makes repeatedly clear from the beginning of the patent and throughout
. And as the parties essentially agree, the specification repeatedly teaches that you can form a seal in this context by having the three vows elements come into a butment or move into a butment or a but each other. In other words, they're joined to one another and shown as to be sufficient by being in such a butment. And as further shows, contrary to the board's construction, and the way it applied this term, that you do have leaps or leakage in such seals in this context. So that all speaks to the conclusion that the specification here is inconsistent with the board construction that said you can't have a seal when the three vows elements are shown to be so adjoined or butted to one other as to be connected. It seems to me that the real complaint here that the board didn't properly interpret House of Cala. That is with respect to the issues, besides the suboct wheel question. And you know, you didn't put in any action for David as to what House of Cala disclosed in your brief as asking us to sit there and look at these figures with respect to House of Cala and the in the in the pan and to compare them. And we're not in a position to do that. It's very difficult to discuss figures. And you strikes me that there's not really a claim construction issue here, but an issue of what House of Cala discloses and how we supposed to know that without help from you in the way of expert testimony. If I can give two answers to that, Your Honor
. First, the board itself said that this issue, especially six times, on free pages, the 812, 813, and 817 of its opinion, that this issue turned on quote an issue of interpretation. And so when it was referencing House of Cala but said explicitly and repeatedly that the issue was one of interpretation. So it was addressing House of Cala but did so explicitly on the claim construction issue of whether there can be a seal when the valve elements are quote unquote connected. And it never said a thing about the specification or address anything a specification that repeatedly shows having a seal formed by valve elements that are abutted. And otherwise with respect to House of Cala's disclosure itself, no such evidence is necessary. House of Cal itself and it is agreed to by the parties and found by the board discloses these valve elements as being connected to each other. And if the court were to look at three or six things. So the question is whether it discloses providing a seal in this aspect. And the paragraph in House of Cal that's cited by the board, cited by both the parties on this explicitly addresses how to quote address leakage in the valve's open position, the relevant position for an axial seal. But it doesn't disclose a seal. It doesn't use the word seal but it describes in that paragraph on 361 lines 26 through 46 the ways in which to address leakage when there's leakage
. It's sites leakage as the problem and then discloses that there is a hole that goes out to a brain inch pipe. In other words, a leakage space just like in the 376 patent. And then it says in addition, in other words, another reason, another way to address the problem of leakage is you have the three valve bodies in House of Cala being raised and quote connected to one another as shown in figure one in the dotted line portion that everyone agrees to showing those valve bodies connected to each other. And the paragraph is explicitly addressing how to deal with prevent control leakage in that context and says further in that paragraph. And in this way, by using these ways to address leakage, you could have them connected, you ensure that the fluid on one side of the valve will quote will never mix was fluid on the other side of the valve. So it's explicitly addressing leakage. In other words, describing a seal that can be formed that is formed by having these three valve bodies joined and connected to one another to control leakage. So it's explicit on its face. And with respect to the claim construction, the emphasis that the board itself put on and deciding this issue, it ignored all the disclosures again agreed to by the party. So it's like the four times within the three seven six specification itself, it discloses that seals do have leaks. There are leaks in it
. And that's inconsistent with the board did and applying its handbook to say that the hostical reference doesn't prevent leakage. But even that handbook, it used says a seal is something that controls our socks leakage. Well, the controls are consistent with the specification discloses as it being sufficient to stop or address or control leakage, even though there is leakage, there can be leakage. There are other measures to address it like the whole in hosticala, like the leakage space in the patent itself. Let me ask you about the spoke wheel question because if I understand correctly with respect to claim 60 and on here the basis for the failure to find the anticipation is that Huzzah Kawa didn't have a spoke wheel. And now it seems to me you're saying well, the board found claim 20 obvious on spoke wheel question. But you didn't raise the obvious this question and you're saying that we should go ahead and address the obvious this question and it requires board to address the obvious this question because that's necessary to be consistent with this action on claim 20. Right? More or less, the less parts are honored with respect is we do contest in hosticala by agreement of the parties and with the board found does the spoke wheel. There's agreement on the structure of hosticala and per the examiner's conclusion that this turned on claim construction, the proper claim constructions. Okay, well that's okay. I understand you did make that arguments a different argument
. What I'm talking about is saying that it's inconsistent with the board's ruling on the obviousness of claim 20. That's right. Right, you're on it. And so what but it doesn't seem to me that QI press stands for the proposition that the board is obligated to create for you a new ground of rejection, which you didn't raise and you didn't raise the obvious this question with respect to claim 60 and someone with respect to the spoke wheel right. Essentially, essentially that's right. But if I may, very much like in fact, probably more so than in QI press controls, we did raise that the other spoke to wheel planes, which are virtually identical to the claims in dispute here, 63, 63, 65 to 67. We did raise that those spoke to wheel planes are obvious over these same two references with respect to not just claim 20, but also claim 35, 48, 53. The board's decision at a 18 itself references that as much. And the board, as you saw, declined to apply waiver to Sudmo when it had not made an argument challenging the combination of hosticala and per semester because it had made similar arguments. We surely made at least similar arguments. We raised those two references with respect to the spoke wheel claims to the board, to the examiner and they are very different than I'm not understanding
. I want to make sure that I get this right with respect to claim 60 and someone my understanding was the two were asserting anticipation over hustle, kawa but the two didn't raise obviousness. Am I wrong about that? Obviously, with respect to those two references that fair say we noted it, but it wasn't a developed argument. It focused on anticipation. And my point on that is your honor is that there is an obligation on behalf of the PTO unlike a district court, for example, to address claims that it has knowledge of to use QI press controls language. It has knowledge of as being invalid and especially where there would be inconsistent results. And these spoke wheel claims were treated as identical for all purposes during by the examiner and by the board. The board's decision itself makes that clear. The only difference is that hosticala and per semester reviews by the board to find claim 20 invalid as obvious. But then all these other end for that matter, you could say claim 35, 48, 53 as obvious as well. It decided those on a different basis, the axial seal. But with respect to the 60, 363 and 65, 267 despite them being identical claims with those same references before the board
. And in fact, those references being used to find obvious those spoke wheel claims. It should in these limited circumstances have the obligation to enter a new rejection on that basis. That's consistent with the duty to the public that the patent office owes in this limited circumstances here where it has knowledge and has before it the same references and for all intents and purposes identical claims. That's a QI press controls I think emphasizes that point. So are you saying the PTO can address all these questions without any type of argument or evidence presented by the parties? I would say your honor in the limited circumstance where you have for all sense of purposes identical claims with the same references and in a circumstance where the same arguments are being made where the claims are identical. That it within the circumstance as an agency as opposed to a district court has that obligation to address claims that it finds otherwise invalid. It can't just sit there and know when it knows that those claims are invalid as obvious and let them stand in the face of a claim it knows to be obvious. And in this case, even hell does much, which is more than even I think the circumstance was in QI press controls. So for that reason, we do respectfully request that that rejection for obviousness at the least should be applied to the board's decision here with respect to spoke wheels. And I think I, unless the court has further questions on axial field, I'll address the last term movable briefly in our construction, our analysis on that is straightforward. That the board indicated three times that it was using or applying a construction of the movable towards limitation as meaning that it had to be engaged for applications of the prior art, something that is moving or as the board said actually moves or slides indicating that movable required actual movement
. And there is an indication in between those three times the board said as much that it said movement or capable of movement. But the context makes clear it was requiring actual movement. And that makes sense because before the patent office, Sudmo itself had argued when it was dealing with representative claims here and using representative claims 68 that it required that the claim is moved, but the flow barrier element is moved. So with that context that Sudmo itself was arguing an actual movement, that claim construction would be wrong as well because now as everybody agrees, movable means capable of movement, and this is specification discloses as well. And the Hosea Cowell reference, its core disclosure here about the flow barrier element in Hosea Cowell called the middle valve body is clear that this is something that 359 lines 29 to 35. It is a structure that freely slides freely slides along the main valve stem that goes through the center of the Hosea Cowell valve. And with that as the core disclosure and with agreement as well that the cleaning fluid, this pressurized cleaning fluid used to clean valves, flows through the bottom and would hit the bottom of the middle valve body, then it would make that a valve valve out of the middle valve. So the element that is capable of movement towards the first element, until as a matter of claim construction and based on what Hosea Cowell itself discloses, the board aired in that respect as well. Okay. Thank you. Mr
. Lavon, is that the type of asset? Yes, the Vivign article. I have 50 percent. Address the inconsistency. Would you see me in consistency between the boards treatment of claim 20 and claim 60 and so forth? You know, we don't see the actual consistency and claim 20 to the board address the combination of Hosea Cowell and Burmester 134 with respect to the the spoke valve or rather the integrated element that was disclosed in Burmester 134. I'm not sure that I understand why it's not inconsistent. I mean, it may be consistent in the sense that with respect to one of them the issue was raised and with respect to the other one, the obviousness issue wasn't raised. But if you assume that the obviousness issue was properly raised with respect to both of them, there isn't an inconsistent result here. No, you're on it because claim 60 and as well as claim 61 through 63 and 65 through 67 recite additional limitations that are not recited in claim 20, including additional limitations, including two terms that are actually at issue here, namely the actual seal limitation and limitation wearing the full bar element is at least movable cars, the first close and element when the second close and element is lifted and clean and clean and off. Clean and fluid is applied to the standards that even if they got it wrong is to the spoke wheel element or these other elements which were present in Hosea Cowell. What you're saying is that claim 60 and so on has the same limitations, the actual seal limitations and the movable limitations as appear in the other claims which were held to be not present in Hosea Cowell. That's correct, those are those are among the additional limitations that are recited in claim 60 to 63 and 65 to 67
. So to the extent that the court is inclined to to apply the combination of Hosea Cowell and Burmester 134 to claim 60 to 63 and 65 to 67, we submit that the court should address the nurse of that combination, especially with respect to the most argument that one of ordinary skill in the art would not combine them because the integrated well then part that SPX is pointed to as a full bar. So the primary element and as a spoke wheel in Burmester 134 is not actually a full barrier element. If you carefully review Burmester 134, it discloses that the spoke valve or the integrated well then part that expressed wise on is not actually located anywhere in the valve of Burmester 134 where it could act as a full barrier element. It actually is located at the bottom or remotely, it is explicitly disclosed as being located remotely from that area so as to not causing a full problems. And this is explicitly disclosed at a 827, a 851, a 853, a 847, 48, a 864, and a 874. So one of our nip-kill-me-art would not combine Hosea Cowell because that integrated well then part is not designed to be a full barrier element. And for the more if you combine it with Hosea Cowell, the result is increased flow of cleaning fluid in the between the valves of Hosea Cowell. Hosea Cowell is explicitly required that the drainage of cleaning fluid be kept to a minimum and discharge a small amount at a time. So reason number one, the spoke valve in Burmester 134 is not designed to be a full barrier element. And second, if it was integrated into Hosea Cowell, it would contradict Hosea Cowell's teachings and resolve in a device that doesn't work the way Hosea Cowell intends its valve to work. So there are two issues before the court today. One is to claim destruction. The force claim destruction of three terms. Actuals, seals, spoke wheel, and the longer term wearing the flow barrier element is at least movable towards the first, goes in the second, closed, and elements that it did. And when clean and minimized applied, second issue is the board's application of both constructions to the prior art part of which we just discussed. With this particular construction, the legal landscape has changed somewhat since the part is briefed this case. And pursuant to the Supreme Court's decision in Tabla, pharmaceutical versus sandals, and this course subsequent decision in every Quozo, the board's underlying factual determinations that bear on as things that, consider as strange evidence are reviewable for substantial evidence, where, while the ultimate clean construction is reviewed the Nobel, here the board made factual findings regarding the ordinary usage of the terms, seal and spoke wheel. And those factual findings are supported by substantial evidence and records, including the evidence that it sets forth and suitable responsive brief. But what you see to be saying is we don't need to reach the spoke wheel issue because the board's decision could be sustained on the ground of the axial seal limitation and movable limitation. Is that correct? The board's decision should be affirmed on those on the basis of those two terms. In addition to the fact that, in addition to the additional reason that one of our distinguished skill in the art would not combine Costa Cale and Vermeza, one three four to reach the spoke wheel limitation. Where do I find claim 60 in the record here? claim 60 is a pendant to to, uh, since our pendant to Zoodle's spoke of grief
. One is to claim destruction. The force claim destruction of three terms. Actuals, seals, spoke wheel, and the longer term wearing the flow barrier element is at least movable towards the first, goes in the second, closed, and elements that it did. And when clean and minimized applied, second issue is the board's application of both constructions to the prior art part of which we just discussed. With this particular construction, the legal landscape has changed somewhat since the part is briefed this case. And pursuant to the Supreme Court's decision in Tabla, pharmaceutical versus sandals, and this course subsequent decision in every Quozo, the board's underlying factual determinations that bear on as things that, consider as strange evidence are reviewable for substantial evidence, where, while the ultimate clean construction is reviewed the Nobel, here the board made factual findings regarding the ordinary usage of the terms, seal and spoke wheel. And those factual findings are supported by substantial evidence and records, including the evidence that it sets forth and suitable responsive brief. But what you see to be saying is we don't need to reach the spoke wheel issue because the board's decision could be sustained on the ground of the axial seal limitation and movable limitation. Is that correct? The board's decision should be affirmed on those on the basis of those two terms. In addition to the fact that, in addition to the additional reason that one of our distinguished skill in the art would not combine Costa Cale and Vermeza, one three four to reach the spoke wheel limitation. Where do I find claim 60 in the record here? claim 60 is a pendant to to, uh, since our pendant to Zoodle's spoke of grief. This is on page on pages a 744 through 745 744. So with respect, we're turning to the board's main construction. With respect to its reliance on the stationary definitions, I just want to turn the court to its decision in Phillips. Where it says that a judge who's in who encounters a claim term while reading the pattern might install a general purpose or specializationary to begin to understand the meaning of the term before reviewing the remainder of the pattern to determine how the pattern has used this term. Now here and to determine the term seal, the board checked its specification to see if it contained a formal definition of that term. Then consulted Mark Standard Hablick from a cataclet engineer to determine the ordinate uses usage of the time seal. Following that, the board, the board, that according to that handbook, a seal, the ordinary uses of the term seal, denotes materials, use of control or stop leakage of fluids through mechanical clearances when fluids are under pressure. The board then went back to the specification and confirmed that the ordinary usage of the term seal is consistent with the usage of that term in the three 76 pattern. As an example of that consistency, the board identified a part of this specification discussing sealant elements that are formed when the seal an element of one of the closed elements but in a seal form in fashion with their seats. We already claimed 60% of the actual seal limitations of the year. I mean, you see the worst action is that it seems to be different from the other ones
. This is on page on pages a 744 through 745 744. So with respect, we're turning to the board's main construction. With respect to its reliance on the stationary definitions, I just want to turn the court to its decision in Phillips. Where it says that a judge who's in who encounters a claim term while reading the pattern might install a general purpose or specializationary to begin to understand the meaning of the term before reviewing the remainder of the pattern to determine how the pattern has used this term. Now here and to determine the term seal, the board checked its specification to see if it contained a formal definition of that term. Then consulted Mark Standard Hablick from a cataclet engineer to determine the ordinate uses usage of the time seal. Following that, the board, the board, that according to that handbook, a seal, the ordinary uses of the term seal, denotes materials, use of control or stop leakage of fluids through mechanical clearances when fluids are under pressure. The board then went back to the specification and confirmed that the ordinary usage of the term seal is consistent with the usage of that term in the three 76 pattern. As an example of that consistency, the board identified a part of this specification discussing sealant elements that are formed when the seal an element of one of the closed elements but in a seal form in fashion with their seats. We already claimed 60% of the actual seal limitations of the year. I mean, you see the worst action is that it seems to be different from the other ones. And where does the movable limitation appear? The actual seal limitation is not appearing in the same size as the previous one. The actual seal limitation is not appearing in the same size as the previous one. I don't know what you were saying, but we didn't need to reach the spoke wheel element of the decision because the actual seal is still present. So you're saying now actual seal is not present in Clim 60? Oh, you got to just to clarify what I said before. We don't need to reach the spoke wheel. We don't need to address it because there are additional limitations and 60 through 63 and 65 to 67, including in some claims the actual seal limitation. Stick me with Clim 60. Do you say the actual seal limitation is not in Clim 60? That's the correct one. The movable limitation in Clim 60? No, you're not. Okay, so we do need to reach the spoke wheel issue. And I come back to the question of why did the board reach a different decision about spoke wheel in Clim 20 and Clim 60? Well, the board reached that decision because in the board's view, the integrated well and elements of the vermessa 134 met the spoke wheel limitation of Clim 20
. And where does the movable limitation appear? The actual seal limitation is not appearing in the same size as the previous one. The actual seal limitation is not appearing in the same size as the previous one. I don't know what you were saying, but we didn't need to reach the spoke wheel element of the decision because the actual seal is still present. So you're saying now actual seal is not present in Clim 60? Oh, you got to just to clarify what I said before. We don't need to reach the spoke wheel. We don't need to address it because there are additional limitations and 60 through 63 and 65 to 67, including in some claims the actual seal limitation. Stick me with Clim 60. Do you say the actual seal limitation is not in Clim 60? That's the correct one. The movable limitation in Clim 60? No, you're not. Okay, so we do need to reach the spoke wheel issue. And I come back to the question of why did the board reach a different decision about spoke wheel in Clim 20 and Clim 60? Well, the board reached that decision because in the board's view, the integrated well and elements of the vermessa 134 met the spoke wheel limitation of Clim 20. When it claims in Clim 60, between Clim 20 and Clim 60 includes the additional requirement that the spoke wheel has a polarity of spoke with openness there between at least partially defined as a leakage space. That is not present in Clim 20 and it was not addressed by the board. But as I mentioned a few minutes ago, one of the board members in the yard would not have combined the spoke wheel with vermessa 134 because the integrated well in part that is being relied on as a spoke wheel. Well, it's not actually function, it's not designed to be a flow barrier element. It does not function as a flow barrier element. And if it's integrated into the whole of the cava, it would result an increased workflow, which is directly contributed to what host of cava teaches. Well, suppose the limitations in 20 and 60 were exactly the same. Would the board be obligated to raise the issue of sues fonty with respect to Clim 60 or not? No, you are not. Because Clim 60 was never addressed as being obvious based on a combination of both the cava and vermessa 134. And so what was Clim 20 channel that was on that ground? Yes, Your Honor. But not Clim 60, nor the rest of the range, 63, 63 or 65, 267
. When it claims in Clim 60, between Clim 20 and Clim 60 includes the additional requirement that the spoke wheel has a polarity of spoke with openness there between at least partially defined as a leakage space. That is not present in Clim 20 and it was not addressed by the board. But as I mentioned a few minutes ago, one of the board members in the yard would not have combined the spoke wheel with vermessa 134 because the integrated well in part that is being relied on as a spoke wheel. Well, it's not actually function, it's not designed to be a flow barrier element. It does not function as a flow barrier element. And if it's integrated into the whole of the cava, it would result an increased workflow, which is directly contributed to what host of cava teaches. Well, suppose the limitations in 20 and 60 were exactly the same. Would the board be obligated to raise the issue of sues fonty with respect to Clim 60 or not? No, you are not. Because Clim 60 was never addressed as being obvious based on a combination of both the cava and vermessa 134. And so what was Clim 20 channel that was on that ground? Yes, Your Honor. But not Clim 60, nor the rest of the range, 63, 63 or 65, 267. Our argument was never addressed by SPX and in inf proceedings before the patent trial of Pield Board. And as your honor, your honors are noticed, SPX 7, they noted the 103 arguments. But the part of the brief that they relied on explicitly and only discusses anticipation and in nowhere mentions vermessa 134. So they are essentially asking the board, they are essentially asking the argument that the board should have, and in some houses of all the 50 plus claims here, first for additional grounds of rejection for Clim 60, 263 and 65, 267. Well, your opponents said that you should have done that without any argument or any challenge with respect to that. I'm sorry, I didn't hear the question. Your opponents said that you should have done that without even without the reason that we're arguing, for example, that Clim 60 was obvious. Do you have that type of authority or responsibility? Does this court have that type of authority? Does the PTO have the authority to just to respond to you, come up with a new grounds of rejection that was not raised by SPX? Is that the question? The board, my understanding of the rule is that the board may present a new ground of rejection, although it's not required to do so in every instance. And in that respect, I think the situation is much different from what the SPX describes. And I think this is PUI controls, and that there are differences between the claims here that were not addressed by the board's analysis of Clim 20. And two, Clim 20 on one hand and Clim 60, 263 and 65, 267 were not rejected as being obvious on similar or the same prior
. Our argument was never addressed by SPX and in inf proceedings before the patent trial of Pield Board. And as your honor, your honors are noticed, SPX 7, they noted the 103 arguments. But the part of the brief that they relied on explicitly and only discusses anticipation and in nowhere mentions vermessa 134. So they are essentially asking the board, they are essentially asking the argument that the board should have, and in some houses of all the 50 plus claims here, first for additional grounds of rejection for Clim 60, 263 and 65, 267. Well, your opponents said that you should have done that without any argument or any challenge with respect to that. I'm sorry, I didn't hear the question. Your opponents said that you should have done that without even without the reason that we're arguing, for example, that Clim 60 was obvious. Do you have that type of authority or responsibility? Does this court have that type of authority? Does the PTO have the authority to just to respond to you, come up with a new grounds of rejection that was not raised by SPX? Is that the question? The board, my understanding of the rule is that the board may present a new ground of rejection, although it's not required to do so in every instance. And in that respect, I think the situation is much different from what the SPX describes. And I think this is PUI controls, and that there are differences between the claims here that were not addressed by the board's analysis of Clim 20. And two, Clim 20 on one hand and Clim 60, 263 and 65, 267 were not rejected as being obvious on similar or the same prior. So if an argument that Clim 60 was obvious, it's never raised before the board, should we deem that to be waived? If it was never raised before the board, it should be waived. Let me tell you what the problem is with that. If you look at page 21 of the appendix, apparently the same thing was still with respect to Clim 20, that they didn't argue that rejection. And the board says, our review of the rejection of Clim 20 under 103a is complicated by the fact that the patent owner has not argued the rejection, while this failure may be deemed a constitute a waver, blah, blah, blah. And they still go ahead and reject it. Reject Clim 20. Yes, Your Honor, but the difference here is that the board was aware. The board was aware of the actual rejection. The rejection was on the record. There was no rejection on the record for Clim 60, 263 and 65, 267 based on that. I mean because in the case of Clim 20, the examiner had rejected it
. So if an argument that Clim 60 was obvious, it's never raised before the board, should we deem that to be waived? If it was never raised before the board, it should be waived. Let me tell you what the problem is with that. If you look at page 21 of the appendix, apparently the same thing was still with respect to Clim 20, that they didn't argue that rejection. And the board says, our review of the rejection of Clim 20 under 103a is complicated by the fact that the patent owner has not argued the rejection, while this failure may be deemed a constitute a waver, blah, blah, blah. And they still go ahead and reject it. Reject Clim 20. Yes, Your Honor, but the difference here is that the board was aware. The board was aware of the actual rejection. The rejection was on the record. There was no rejection on the record for Clim 60, 263 and 65, 267 based on that. I mean because in the case of Clim 20, the examiner had rejected it. Yes, Your Honor. But the examiner had never made the rejection for Clim 60, 263 and 65, 267. It was aware of the record. Okay. All right. If you're on, thank you, Your Honor, and just those in our board, the decision should be... Mr. Bataglia, we'll give you a minute here. Okay, thank you, Your Honor
. Yes, Your Honor. But the examiner had never made the rejection for Clim 60, 263 and 65, 267. It was aware of the record. Okay. All right. If you're on, thank you, Your Honor, and just those in our board, the decision should be... Mr. Bataglia, we'll give you a minute here. Okay, thank you, Your Honor. If I can just quickly clarify with respect to this argument now that it can be resolved without reaching all the issues, that's incorrect because the board itself, correctly determined that these three issues, for each of the three terms, were decided based on, quote, the representative claims I referred to earlier, representative claims to decide the outcome for the claims that were housed under each one. So with respect to axial seal, it identifies the 38 claims that rose or fell on a determination using Clim 21 as the representative claim. Same with the other limitations. So this court does have to reach all three to address all 52 claims because all of those claims were categorized by the three terms. There are 38 claims with respect to axial seal determined on the basis of representative claim 21. Seven claims with respect to spoke wheel, with respect to representative claim 60, and another seven claims decided on the basis of movable all health and categorized for deciding those seven claims. And this court is held in high v. dudas and other precedents that you can determine in validity based on representative claims when they are so grouped. Okay, Mr. Bataglia, I think we're out of time. Thank you
. If I can just quickly clarify with respect to this argument now that it can be resolved without reaching all the issues, that's incorrect because the board itself, correctly determined that these three issues, for each of the three terms, were decided based on, quote, the representative claims I referred to earlier, representative claims to decide the outcome for the claims that were housed under each one. So with respect to axial seal, it identifies the 38 claims that rose or fell on a determination using Clim 21 as the representative claim. Same with the other limitations. So this court does have to reach all three to address all 52 claims because all of those claims were categorized by the three terms. There are 38 claims with respect to axial seal determined on the basis of representative claim 21. Seven claims with respect to spoke wheel, with respect to representative claim 60, and another seven claims decided on the basis of movable all health and categorized for deciding those seven claims. And this court is held in high v. dudas and other precedents that you can determine in validity based on representative claims when they are so grouped. Okay, Mr. Bataglia, I think we're out of time. Thank you. Thank you, Your Honor.
Okay, our next face this morning is number 14. 1760 SPS, if the ex-corporation versus Pentea or Sudmah, Mr. Mitaewe. Thank you and may it please the court. The single most important and usually the positive source for construing the claim term scope and meaning is of course the patent specification. And as this court is repeatedly held, it is error to place undue emphasis on or otherwise elevate extrinsic dictionary sources over the specification. But despite that principle, the board here in reversing the examiner's decision as the 52 claims based on three claim terms did just that. It's to respond to a relied on extrinsic handbook or online dictionary sources to arrive at a construction that is divorced from the specification itself. And as a result, failed to apply these terms, broadest reasonable interpretation and thus erred in reversing the examiner's rejection based on those terms. With respect to the term axial feel, the board, as I indicated, started off with a handbook dictionary source that no party had ever cited or the examiner had never cited and used that as the ordinary source, or excuse me, the ordinary usage and then merely cited just one portion of the specification that doesn't speak to how a seal is formed. And it concluded that they don't have, depending on the dictionary definition, confirm what would be the ordinary meaning of the word seal. And that's got to be something more than a connection, correct? Not in this context, Your Honor, because as the specification itself makes repeatedly clear from the beginning of the patent and throughout. And as the parties essentially agree, the specification repeatedly teaches that you can form a seal in this context by having the three vows elements come into a butment or move into a butment or a but each other. In other words, they're joined to one another and shown as to be sufficient by being in such a butment. And as further shows, contrary to the board's construction, and the way it applied this term, that you do have leaps or leakage in such seals in this context. So that all speaks to the conclusion that the specification here is inconsistent with the board construction that said you can't have a seal when the three vows elements are shown to be so adjoined or butted to one other as to be connected. It seems to me that the real complaint here that the board didn't properly interpret House of Cala. That is with respect to the issues, besides the suboct wheel question. And you know, you didn't put in any action for David as to what House of Cala disclosed in your brief as asking us to sit there and look at these figures with respect to House of Cala and the in the in the pan and to compare them. And we're not in a position to do that. It's very difficult to discuss figures. And you strikes me that there's not really a claim construction issue here, but an issue of what House of Cala discloses and how we supposed to know that without help from you in the way of expert testimony. If I can give two answers to that, Your Honor. First, the board itself said that this issue, especially six times, on free pages, the 812, 813, and 817 of its opinion, that this issue turned on quote an issue of interpretation. And so when it was referencing House of Cala but said explicitly and repeatedly that the issue was one of interpretation. So it was addressing House of Cala but did so explicitly on the claim construction issue of whether there can be a seal when the valve elements are quote unquote connected. And it never said a thing about the specification or address anything a specification that repeatedly shows having a seal formed by valve elements that are abutted. And otherwise with respect to House of Cala's disclosure itself, no such evidence is necessary. House of Cal itself and it is agreed to by the parties and found by the board discloses these valve elements as being connected to each other. And if the court were to look at three or six things. So the question is whether it discloses providing a seal in this aspect. And the paragraph in House of Cal that's cited by the board, cited by both the parties on this explicitly addresses how to quote address leakage in the valve's open position, the relevant position for an axial seal. But it doesn't disclose a seal. It doesn't use the word seal but it describes in that paragraph on 361 lines 26 through 46 the ways in which to address leakage when there's leakage. It's sites leakage as the problem and then discloses that there is a hole that goes out to a brain inch pipe. In other words, a leakage space just like in the 376 patent. And then it says in addition, in other words, another reason, another way to address the problem of leakage is you have the three valve bodies in House of Cala being raised and quote connected to one another as shown in figure one in the dotted line portion that everyone agrees to showing those valve bodies connected to each other. And the paragraph is explicitly addressing how to deal with prevent control leakage in that context and says further in that paragraph. And in this way, by using these ways to address leakage, you could have them connected, you ensure that the fluid on one side of the valve will quote will never mix was fluid on the other side of the valve. So it's explicitly addressing leakage. In other words, describing a seal that can be formed that is formed by having these three valve bodies joined and connected to one another to control leakage. So it's explicit on its face. And with respect to the claim construction, the emphasis that the board itself put on and deciding this issue, it ignored all the disclosures again agreed to by the party. So it's like the four times within the three seven six specification itself, it discloses that seals do have leaks. There are leaks in it. And that's inconsistent with the board did and applying its handbook to say that the hostical reference doesn't prevent leakage. But even that handbook, it used says a seal is something that controls our socks leakage. Well, the controls are consistent with the specification discloses as it being sufficient to stop or address or control leakage, even though there is leakage, there can be leakage. There are other measures to address it like the whole in hosticala, like the leakage space in the patent itself. Let me ask you about the spoke wheel question because if I understand correctly with respect to claim 60 and on here the basis for the failure to find the anticipation is that Huzzah Kawa didn't have a spoke wheel. And now it seems to me you're saying well, the board found claim 20 obvious on spoke wheel question. But you didn't raise the obvious this question and you're saying that we should go ahead and address the obvious this question and it requires board to address the obvious this question because that's necessary to be consistent with this action on claim 20. Right? More or less, the less parts are honored with respect is we do contest in hosticala by agreement of the parties and with the board found does the spoke wheel. There's agreement on the structure of hosticala and per the examiner's conclusion that this turned on claim construction, the proper claim constructions. Okay, well that's okay. I understand you did make that arguments a different argument. What I'm talking about is saying that it's inconsistent with the board's ruling on the obviousness of claim 20. That's right. Right, you're on it. And so what but it doesn't seem to me that QI press stands for the proposition that the board is obligated to create for you a new ground of rejection, which you didn't raise and you didn't raise the obvious this question with respect to claim 60 and someone with respect to the spoke wheel right. Essentially, essentially that's right. But if I may, very much like in fact, probably more so than in QI press controls, we did raise that the other spoke to wheel planes, which are virtually identical to the claims in dispute here, 63, 63, 65 to 67. We did raise that those spoke to wheel planes are obvious over these same two references with respect to not just claim 20, but also claim 35, 48, 53. The board's decision at a 18 itself references that as much. And the board, as you saw, declined to apply waiver to Sudmo when it had not made an argument challenging the combination of hosticala and per semester because it had made similar arguments. We surely made at least similar arguments. We raised those two references with respect to the spoke wheel claims to the board, to the examiner and they are very different than I'm not understanding. I want to make sure that I get this right with respect to claim 60 and someone my understanding was the two were asserting anticipation over hustle, kawa but the two didn't raise obviousness. Am I wrong about that? Obviously, with respect to those two references that fair say we noted it, but it wasn't a developed argument. It focused on anticipation. And my point on that is your honor is that there is an obligation on behalf of the PTO unlike a district court, for example, to address claims that it has knowledge of to use QI press controls language. It has knowledge of as being invalid and especially where there would be inconsistent results. And these spoke wheel claims were treated as identical for all purposes during by the examiner and by the board. The board's decision itself makes that clear. The only difference is that hosticala and per semester reviews by the board to find claim 20 invalid as obvious. But then all these other end for that matter, you could say claim 35, 48, 53 as obvious as well. It decided those on a different basis, the axial seal. But with respect to the 60, 363 and 65, 267 despite them being identical claims with those same references before the board. And in fact, those references being used to find obvious those spoke wheel claims. It should in these limited circumstances have the obligation to enter a new rejection on that basis. That's consistent with the duty to the public that the patent office owes in this limited circumstances here where it has knowledge and has before it the same references and for all intents and purposes identical claims. That's a QI press controls I think emphasizes that point. So are you saying the PTO can address all these questions without any type of argument or evidence presented by the parties? I would say your honor in the limited circumstance where you have for all sense of purposes identical claims with the same references and in a circumstance where the same arguments are being made where the claims are identical. That it within the circumstance as an agency as opposed to a district court has that obligation to address claims that it finds otherwise invalid. It can't just sit there and know when it knows that those claims are invalid as obvious and let them stand in the face of a claim it knows to be obvious. And in this case, even hell does much, which is more than even I think the circumstance was in QI press controls. So for that reason, we do respectfully request that that rejection for obviousness at the least should be applied to the board's decision here with respect to spoke wheels. And I think I, unless the court has further questions on axial field, I'll address the last term movable briefly in our construction, our analysis on that is straightforward. That the board indicated three times that it was using or applying a construction of the movable towards limitation as meaning that it had to be engaged for applications of the prior art, something that is moving or as the board said actually moves or slides indicating that movable required actual movement. And there is an indication in between those three times the board said as much that it said movement or capable of movement. But the context makes clear it was requiring actual movement. And that makes sense because before the patent office, Sudmo itself had argued when it was dealing with representative claims here and using representative claims 68 that it required that the claim is moved, but the flow barrier element is moved. So with that context that Sudmo itself was arguing an actual movement, that claim construction would be wrong as well because now as everybody agrees, movable means capable of movement, and this is specification discloses as well. And the Hosea Cowell reference, its core disclosure here about the flow barrier element in Hosea Cowell called the middle valve body is clear that this is something that 359 lines 29 to 35. It is a structure that freely slides freely slides along the main valve stem that goes through the center of the Hosea Cowell valve. And with that as the core disclosure and with agreement as well that the cleaning fluid, this pressurized cleaning fluid used to clean valves, flows through the bottom and would hit the bottom of the middle valve body, then it would make that a valve valve out of the middle valve. So the element that is capable of movement towards the first element, until as a matter of claim construction and based on what Hosea Cowell itself discloses, the board aired in that respect as well. Okay. Thank you. Mr. Lavon, is that the type of asset? Yes, the Vivign article. I have 50 percent. Address the inconsistency. Would you see me in consistency between the boards treatment of claim 20 and claim 60 and so forth? You know, we don't see the actual consistency and claim 20 to the board address the combination of Hosea Cowell and Burmester 134 with respect to the the spoke valve or rather the integrated element that was disclosed in Burmester 134. I'm not sure that I understand why it's not inconsistent. I mean, it may be consistent in the sense that with respect to one of them the issue was raised and with respect to the other one, the obviousness issue wasn't raised. But if you assume that the obviousness issue was properly raised with respect to both of them, there isn't an inconsistent result here. No, you're on it because claim 60 and as well as claim 61 through 63 and 65 through 67 recite additional limitations that are not recited in claim 20, including additional limitations, including two terms that are actually at issue here, namely the actual seal limitation and limitation wearing the full bar element is at least movable cars, the first close and element when the second close and element is lifted and clean and clean and off. Clean and fluid is applied to the standards that even if they got it wrong is to the spoke wheel element or these other elements which were present in Hosea Cowell. What you're saying is that claim 60 and so on has the same limitations, the actual seal limitations and the movable limitations as appear in the other claims which were held to be not present in Hosea Cowell. That's correct, those are those are among the additional limitations that are recited in claim 60 to 63 and 65 to 67. So to the extent that the court is inclined to to apply the combination of Hosea Cowell and Burmester 134 to claim 60 to 63 and 65 to 67, we submit that the court should address the nurse of that combination, especially with respect to the most argument that one of ordinary skill in the art would not combine them because the integrated well then part that SPX is pointed to as a full bar. So the primary element and as a spoke wheel in Burmester 134 is not actually a full barrier element. If you carefully review Burmester 134, it discloses that the spoke valve or the integrated well then part that expressed wise on is not actually located anywhere in the valve of Burmester 134 where it could act as a full barrier element. It actually is located at the bottom or remotely, it is explicitly disclosed as being located remotely from that area so as to not causing a full problems. And this is explicitly disclosed at a 827, a 851, a 853, a 847, 48, a 864, and a 874. So one of our nip-kill-me-art would not combine Hosea Cowell because that integrated well then part is not designed to be a full barrier element. And for the more if you combine it with Hosea Cowell, the result is increased flow of cleaning fluid in the between the valves of Hosea Cowell. Hosea Cowell is explicitly required that the drainage of cleaning fluid be kept to a minimum and discharge a small amount at a time. So reason number one, the spoke valve in Burmester 134 is not designed to be a full barrier element. And second, if it was integrated into Hosea Cowell, it would contradict Hosea Cowell's teachings and resolve in a device that doesn't work the way Hosea Cowell intends its valve to work. So there are two issues before the court today. One is to claim destruction. The force claim destruction of three terms. Actuals, seals, spoke wheel, and the longer term wearing the flow barrier element is at least movable towards the first, goes in the second, closed, and elements that it did. And when clean and minimized applied, second issue is the board's application of both constructions to the prior art part of which we just discussed. With this particular construction, the legal landscape has changed somewhat since the part is briefed this case. And pursuant to the Supreme Court's decision in Tabla, pharmaceutical versus sandals, and this course subsequent decision in every Quozo, the board's underlying factual determinations that bear on as things that, consider as strange evidence are reviewable for substantial evidence, where, while the ultimate clean construction is reviewed the Nobel, here the board made factual findings regarding the ordinary usage of the terms, seal and spoke wheel. And those factual findings are supported by substantial evidence and records, including the evidence that it sets forth and suitable responsive brief. But what you see to be saying is we don't need to reach the spoke wheel issue because the board's decision could be sustained on the ground of the axial seal limitation and movable limitation. Is that correct? The board's decision should be affirmed on those on the basis of those two terms. In addition to the fact that, in addition to the additional reason that one of our distinguished skill in the art would not combine Costa Cale and Vermeza, one three four to reach the spoke wheel limitation. Where do I find claim 60 in the record here? claim 60 is a pendant to to, uh, since our pendant to Zoodle's spoke of grief. This is on page on pages a 744 through 745 744. So with respect, we're turning to the board's main construction. With respect to its reliance on the stationary definitions, I just want to turn the court to its decision in Phillips. Where it says that a judge who's in who encounters a claim term while reading the pattern might install a general purpose or specializationary to begin to understand the meaning of the term before reviewing the remainder of the pattern to determine how the pattern has used this term. Now here and to determine the term seal, the board checked its specification to see if it contained a formal definition of that term. Then consulted Mark Standard Hablick from a cataclet engineer to determine the ordinate uses usage of the time seal. Following that, the board, the board, that according to that handbook, a seal, the ordinary uses of the term seal, denotes materials, use of control or stop leakage of fluids through mechanical clearances when fluids are under pressure. The board then went back to the specification and confirmed that the ordinary usage of the term seal is consistent with the usage of that term in the three 76 pattern. As an example of that consistency, the board identified a part of this specification discussing sealant elements that are formed when the seal an element of one of the closed elements but in a seal form in fashion with their seats. We already claimed 60% of the actual seal limitations of the year. I mean, you see the worst action is that it seems to be different from the other ones. And where does the movable limitation appear? The actual seal limitation is not appearing in the same size as the previous one. The actual seal limitation is not appearing in the same size as the previous one. I don't know what you were saying, but we didn't need to reach the spoke wheel element of the decision because the actual seal is still present. So you're saying now actual seal is not present in Clim 60? Oh, you got to just to clarify what I said before. We don't need to reach the spoke wheel. We don't need to address it because there are additional limitations and 60 through 63 and 65 to 67, including in some claims the actual seal limitation. Stick me with Clim 60. Do you say the actual seal limitation is not in Clim 60? That's the correct one. The movable limitation in Clim 60? No, you're not. Okay, so we do need to reach the spoke wheel issue. And I come back to the question of why did the board reach a different decision about spoke wheel in Clim 20 and Clim 60? Well, the board reached that decision because in the board's view, the integrated well and elements of the vermessa 134 met the spoke wheel limitation of Clim 20. When it claims in Clim 60, between Clim 20 and Clim 60 includes the additional requirement that the spoke wheel has a polarity of spoke with openness there between at least partially defined as a leakage space. That is not present in Clim 20 and it was not addressed by the board. But as I mentioned a few minutes ago, one of the board members in the yard would not have combined the spoke wheel with vermessa 134 because the integrated well in part that is being relied on as a spoke wheel. Well, it's not actually function, it's not designed to be a flow barrier element. It does not function as a flow barrier element. And if it's integrated into the whole of the cava, it would result an increased workflow, which is directly contributed to what host of cava teaches. Well, suppose the limitations in 20 and 60 were exactly the same. Would the board be obligated to raise the issue of sues fonty with respect to Clim 60 or not? No, you are not. Because Clim 60 was never addressed as being obvious based on a combination of both the cava and vermessa 134. And so what was Clim 20 channel that was on that ground? Yes, Your Honor. But not Clim 60, nor the rest of the range, 63, 63 or 65, 267. Our argument was never addressed by SPX and in inf proceedings before the patent trial of Pield Board. And as your honor, your honors are noticed, SPX 7, they noted the 103 arguments. But the part of the brief that they relied on explicitly and only discusses anticipation and in nowhere mentions vermessa 134. So they are essentially asking the board, they are essentially asking the argument that the board should have, and in some houses of all the 50 plus claims here, first for additional grounds of rejection for Clim 60, 263 and 65, 267. Well, your opponents said that you should have done that without any argument or any challenge with respect to that. I'm sorry, I didn't hear the question. Your opponents said that you should have done that without even without the reason that we're arguing, for example, that Clim 60 was obvious. Do you have that type of authority or responsibility? Does this court have that type of authority? Does the PTO have the authority to just to respond to you, come up with a new grounds of rejection that was not raised by SPX? Is that the question? The board, my understanding of the rule is that the board may present a new ground of rejection, although it's not required to do so in every instance. And in that respect, I think the situation is much different from what the SPX describes. And I think this is PUI controls, and that there are differences between the claims here that were not addressed by the board's analysis of Clim 20. And two, Clim 20 on one hand and Clim 60, 263 and 65, 267 were not rejected as being obvious on similar or the same prior. So if an argument that Clim 60 was obvious, it's never raised before the board, should we deem that to be waived? If it was never raised before the board, it should be waived. Let me tell you what the problem is with that. If you look at page 21 of the appendix, apparently the same thing was still with respect to Clim 20, that they didn't argue that rejection. And the board says, our review of the rejection of Clim 20 under 103a is complicated by the fact that the patent owner has not argued the rejection, while this failure may be deemed a constitute a waver, blah, blah, blah. And they still go ahead and reject it. Reject Clim 20. Yes, Your Honor, but the difference here is that the board was aware. The board was aware of the actual rejection. The rejection was on the record. There was no rejection on the record for Clim 60, 263 and 65, 267 based on that. I mean because in the case of Clim 20, the examiner had rejected it. Yes, Your Honor. But the examiner had never made the rejection for Clim 60, 263 and 65, 267. It was aware of the record. Okay. All right. If you're on, thank you, Your Honor, and just those in our board, the decision should be... Mr. Bataglia, we'll give you a minute here. Okay, thank you, Your Honor. If I can just quickly clarify with respect to this argument now that it can be resolved without reaching all the issues, that's incorrect because the board itself, correctly determined that these three issues, for each of the three terms, were decided based on, quote, the representative claims I referred to earlier, representative claims to decide the outcome for the claims that were housed under each one. So with respect to axial seal, it identifies the 38 claims that rose or fell on a determination using Clim 21 as the representative claim. Same with the other limitations. So this court does have to reach all three to address all 52 claims because all of those claims were categorized by the three terms. There are 38 claims with respect to axial seal determined on the basis of representative claim 21. Seven claims with respect to spoke wheel, with respect to representative claim 60, and another seven claims decided on the basis of movable all health and categorized for deciding those seven claims. And this court is held in high v. dudas and other precedents that you can determine in validity based on representative claims when they are so grouped. Okay, Mr. Bataglia, I think we're out of time. Thank you. Thank you, Your Honor