court the claims of the three require switch over without any alteration and that is accomplished by switching over from control to control in other words the claims require continuous control throughout the switching process they also require that the nd be functional to avoid any erratic alteration these are critical differences between bra probably if i could just interrupt you with the question in light of the limited time we have i guess reading the brief i must tell you i was a little confused because you present this case is an application of claim construction not about plain construction and seems like it probably got to do that because you didn't request particular claim construction but it seems to me that what you're advocating here about losing centers and applicators gratian application be related reasons are playing meeting of the claims they're reading from discussion about the specification and some expert testimony so if i'm right about that shouldn't you have requested this claim construction if those how you're construing the claims here on appeal doesn't necessarily correspond to the plain meaning of the cla during the milling operation so there was a claim construction given and i think the argument that we're making as after seeing how what that claim construction was and how it was applied for the st time in the final written decision that claim construction needs a claim construction and well and that is where is my problem with that is that you know you say it's really kind of a question of grammar is the real question is what does during milling relate to mean just during milling say that that's when the sets are chosen or does it say that when the chosen signals make a difference i agree that there is a grammar question and that is why a skilled artisan would have looked to the remainder of the claim and what they would have seen is the without any erratic alteration the at least one adjustment value and they would understand that in a situation such as brain back where you are selecting based on a creative time the term and priority that occurs before screening has been on the back is going to allow for a situation where you will have an erratic alteration and another another thing that a skilled artist would have understood is looking to call into it explains in this way a machine operator can already prepare the switchover of the sensors during the milling operation and so it explains and a skilled artisan would have recognized that teaching as well as working through all of the environment patent that that's what what should we should assume is happening no your honor what what we want to be examined is that the board did not give any scope to be without any erratic alteration of the at least one adjustment value because they chose to ignore that embrace back this selection based on a pre determined priority cannot meet the without any erratic and yet you've argued that it's a matter of law erratic alteration happened during the sensor switchover in this prior art combination and i know i don't understand what that meat yes your honor so there are two portions of  sensors because it would risk averse really affecting the work product rather the operator would want to stop the milling operation because there are too many conditions where specific sensors are a lot of on the proper road on and caterpillars i've heard actually acknowledge  erratic alteration of the at least one adjustment value and and why that would make combining greyback and davis inappropriate and i don't see the erratic adjustment discussion and you conceded that you didn't use those exact words but so i don't see it in any of the pages that you're citing me to  did reject the motivation of her mind but they may never addressed the argument that these selecting a nd selected subset based on a pre determined priority would result in the potential to select a sensor that would not be functional to avoid an erotic alteration and that was in threw out the arguments that were made with respect to the switching based on b and so that goes to why we believe why we argue that this claim construction for nd selected subset is incorrect because in order to have a claim construction that would be an application of their claim construction construction they didn't give it a proper scope as it should be given under a skilled artist in this new plain language and and the council going i ask a question where in order seventy eight page opinion should leave find a discussion of this very point importance of the erotic alteration and what we see there is that they have no claim on also emphasizes that the sensor swap occurs which when you're on a i've got  at the bottom there claim one also emphasizes that the same center swap occurs not only without without interruption of the milling operation but also without any erratic alteration of the at least one adjustment value which is a concern when swapping without interrupting the machine operation or any erratic interruption or abrupt change in the adjustment value and that's the entirety of what the board in fact saying about the erratic interruption so they they understood that there was an prey back or be motivated to choose brave act because it would solve some other problem that you're recognizing but but they said that there was a motivation to choose break back because of the the  consistent with what a skilled artisan would have understood reading the claims in their entirety including me without any erotic alteration language there is a lengthy discussion council in the appendix pages twenty four dollars twenty five cents of the switchover which is really the underlying problem in this erratic operation apparently you had to stop the milling old system and you're finding that your system now works better because it's automatic that is you don't have the sensors shift themselves you don't have to stop and shift them and that is a lengthy discussion in that part of the opinion in which they find that the prior art dealt with it in a way that makes your saying what we're saying is that they're wrong as a matter of law that a skilled artisan would have looked at this claim and thought that switching over they're correct that the switch over occurs during the milling  is a different device and the screen has moved around on a boom so in bring about that solution works because the operator can look around before he starts greeting and he can say what might i run into that i need to avoid i can set this priority the question is that correct we disagree with the scope of the board's claim construction and final written decision was the st time that we received that claim construction up but i'm just very confused are you saying that the board should have considered grey backs operation in deciding what the appropriate claim construction  good morning honors and please to court i think that your honour's of certain gotten to the crux of it here that they don't make is claim construction arguments to the board board said that the that the selection has to occur during the milling operation or did they simply say the switch over occurs during the milling operation and they did not say that the selection has to occur during the milling operation anywhere in the record that i'm aware of so you just the fact that the councils claim that that somehow the the board changed its construction and that's final written yes and i think you'll find your honor that a lot of times the statements that time flows been making about what is on various pages of the record in different places don't always jive with what check what's actually on those  to switch over from then it goes on and then it says during the milling operation i read that phrase to say that during the milling operation without interruption modify switch over not the selection process and he said that that no it has to modify both because there is no other embodiment disclosed in the specification other than  selection occurring during this whichever process or during the the milling operation do you agree with that no your honor and in fact our view is that there is at line nineteen they pointed to the sentence where it says a machine operator can already prepare the switchover of the sensors during the milling operation so that the switchover of the sensors is possible at the push of a button that you have to select the sensors during operation but if we look up toward the top of column to actually starting at the very last line of column one st introduces what this preparation has that's going on it says providing a further indication and setting unit offers the advantage that the new sensor which is to be exchanged for the sensor currently in use can be prepared for the time  switchover in terms of its actual and set values while the operation continues are the only thing in the preparation that has to be occurring during the milling is just the setting of the actual  sixteen refers to pre selection of the other suns are in column five it again refers to a pre selected sensor be in line eleven in line fifteen  nineteen in column six at line forty five actually says that all embodiments indicate the values of the actual values of the pre selected sensor b they're actually quite disclosing exactly the opposite of what victims counsel argues dissenters can be pre selected there is no requirement that they ever be a selected during operation and as far as the  application related reasons that counsel for it in premises essentially everything they want to make this argument that machine operators have to be able to see what's happening down the road and look at it and make switch during knowing the board already rejected that argument and has substantial evidence supporting its position that the application related reasons can actually be exactly what's happening and grab back that you have a sensor where you lose communication to felt something like that and then you just automatically do the switch over and with respect to the erratic alterations tonsil complains the board somehow  did not address well the board did address that at appendix page twenty three and about halfway down the page they say or forty two to keep the right side in the same position and if we look to pray back and specifically at paragraph thirty six we can see exactly starting at the bottom of the left column the last signal output by the alternate sensor forty two prior to the right sensor twenty two becoming available is used as a set point for the right channel of the controller twenty it and then if you go a few more lines down in other words the alternate sensor forty two is used to keep the right side in the same position or attitude as it was in on the primaries times or twenty two became blocked so there's no uncontrolled operation here there's data between control based on the original sensors and control based on the new sensors that's the whole point of break back they want to be able to use it to keep the right side in the same position concerning for a moment  articulated exactly how their arms up being no erotic alteration anywhere construction early on with respect to what during the milling operation that phrase itself meant the st time issue construction about selected subset was in the written decision also we're not relying on reading this well i think you missed the point on this is that he's talking about switching sensors but this patent is not about switching sensors it's about switching control and again the problem here is that the switch of control is what is required from control to control and that's the only way that you can avoid an erotic alteration and so the board's construction of selected subset does not ensure that you're going to switch to control because just moving vehicle you will have a slip to a sensor that may or may not be functional when in fact you can have a catastrophic loss of control and deviation in the adjustment value if you switch to a sensor that's not going to work for that condition  and so i think that's one of the issues of control and then it's undisputed that there is a loss of control before the switch over occurs and so there is no switch over from control to select nd selected subset as it was construed by the board is improper because it allows for without any erratic alteration and skilled arson that would have understood based on not addition to that particular claim that was sent back down to the board so we can get a true construction on that occasion of the proper the nd selected subset in view of the without any erotic alteration requirement and considering that