good morning my name is jamie gallagher and i represent new mining the upon my argument this morning is relatively succinct and it is directed to the clean language itself and it didn't strike me binding that they just claim words could be interpreted in a different way than we are proposing  while we're on that and i also write in is it also right to think that while you made the assertion that this claim limitation was one that restricted movement to only movement in the horizontal plane that you didn't yourself either point to the prosecution history particularly the then we can find that that region clear that it doesn't have the ability to move vertically or in other aspects and the fact that the claim doesn't speak to whether or not it can move in a vertical way or diagonal way or whatever other direction is not all that important in the fact that the cleanly which itself is not open it's closed it's the motion is limited to a guess on the language point which you are focusing on your view seems to me to be perhaps the more natural one but it's seems to me not quite to exclude understanding of this language as meaning when you are thinking about this plane the motion is limited to a pre determined area within it so that right is that and but i'm not great distinction that says only when you're in the region where you restrict plan there's nothing there that says i do that and we could go to the prior art which is what marker seems to need to do to find that while things move vertically so maybe ours did but that was the point of this invention was to keep the laterally systemically limited to that horizontal plan and so the fact that the claim language seems to be clear on  face that we could possibly go out and broaden it to include this concept of when when the lateral x assembly is in the region it's restricted to the plan or possibly when it's in the plane is restricted to the region but the term doesn't include those but i guess one perhaps linguistic way of doing that if you look at the claim language is to rearrange the two clauses so that after assembly would put a comma and saying within a plane defined by the think the claimed her mean it is a legal determination and it's a new mines assertion that the leap that they made from siding deciding the language at the top of a it's in the region it's restricted to the plan and that is inconsistent with the claim language to components of both those inventions in the prior art that they asserted were the latter release assemblies of our claim but in both cases those those components move vertically a sign of that plan then these two references no longer invalidate claymore and it's interesting that markers mean no argument strong the process of more low or even here as to if we're correct never had an opportunity because they never raised this expressly as a claim construction argument we never really had an opportunity to address this and to make a case that perhaps it might be invalid unpatentable under that combination  i would like to make two principal points in my argument this morning the st relates to how the appellants arguments have changed over the course of this proceeding because i think that that provides important context and background for the new arguments that they're making in this appeal and then secondly obviously i'd like to address the broadest reasonable terp or titian of that where employers in light of the specification on appeal but alone they raised several issues and one of the arguments they raised related to the seventy seven dollars to ground on patentability and in particular a and expressed cling construction argument that  the lateral release assembly and the upper heel housing had to be functionally separate and that was part of a broader argument that they were making not in the eight hundred and sixty seven pattern that we've we've heard it again  friends argument the claimed device isolates for separates forces it separates the vertical force from the lateral force the lateral release assembly as its name suggests relates to lateral release and the operational housing contains the components that relate to vertical release and those include  the heel cup is expressly disclosed in the patent as a component of the upper heel housing it's also disclosed as being the only component that applies securing lateral securing pressure to the skin and they contended that in their view because these two elements were separate because in the seven hundred and seventy two patent they're not separate allowed it did that in responding to the principle prior at in do it and claim construction right they didn't inch tell the the district court either about what you had said in there about district court in your claim construction or the prosecution history but they didn't make the point so why are we restricted to i soon you think we're not supposed to consider the prosecution history or what you yourself said in the district court why not why isn't this one of those cases where the issue is preserved and hence all the arguments that are relevant to the issue can be considered well because i think and this is  example the warsaw orthopedic case that we cited in our brief explains this the issue is the boomer didn't have an opportunity to consider all of these arguments so that the record was not fully developed and the  then on appeal you can make additional arguments in support of the same position why is that not this the or did actually recognize the position was being asserted yet as it rejected twenty two and twenty three correct right so the position was there it is i think conceded that perhaps the two strongest things that could be said in support of the position were not actually said to the boy yes but why can't we consider it may be that the court in its discretion could consider them again i would submit they weren't the board didn't have an opportunity to look at those issues i would say with respect to the prosecution history i think that's a best inconclusive as we  going to let me read to you from your own i think i'm getting this this is your own district court markman brief that on six o three it becomes clear in the prosecution history that this limitation this is the one we're talking about  i think your honor that was part of the argument that they made but it wasn't the end it was your argument i'm sorry no i understand your honor i understand but i guess my my position would be that was part of part of what they argued but not the entirety of what they a perhaps on not being clear your honor i'd like my point is when you look at the prosecution history and i recognize that we made this argument in the district court but when you look at the prosecution history the prosecution his in detail the prosecution history shows that need binding made more than one argument with respect to this particular reference and then what happened was the examiner moved to a different rejection deemed the arguments moot moved to a different era it's just to make sure i understand what you're saying you're saying that me biting presented multiple reasons for why the partner ois distinguished and the examiner did not adopt the wind in in response to the legal rejection it's describing we call and says that the locking element there nine allows movement within three spatial dimensions of the lateral release assembly  a pretty darn plane plane assertion that we are distinguishing we call on the ground that we limit motion all the motion of this thing to within the plane so that the record is i would say less than one hundred percent clear on this issue and so i don't think it rises this is the argument that we made in our brief it doesn't rise to the level of a disclaimer it doesn't rise to the level of on equivocal statement would be your position maybe you wouldn't need a disclaimer if the language that claim coupled with the specification still allowed interpretive room then the prosecution history counts for deciding as a skilled artisan would be reading that how to resolve the one of the difficulty or what's left open by the other two sources of intrinsic  well i'd would like to go to that point because i do think that that is decisive the reality is that we are in clauses directed to limiting motion of the lateral release assembly the the heel cup as shown in figure two of the patent is part of the upper heel housing it applies it's disclosed in column nine of the patent as as applying lateral securing here you've got this central component of the lateral release assembly which moves in both planes it moves in the vertical plane and it moves in the lateral plane and so with that broader context assembly to the pre determined region when when this when the boot is down and when the that there is motion in the lateral plane that's really read in the full context of the plane read in light of the teaching of the specification that is the broadest reasonable construction of the plain language and just as i think maybe we discussed this but you are not dealing with d the brightest reasonable interpretation standard position there's a lot in their current brief about this notion of the linking of movement separation of vertical and lateral movement and really what i would submit they're trying to do is they're trying to recycle the argument that they made before the board about the lateral releases a one million up or your housing being separate they've gone from talking about separate mechanisms to now talking about separate it's it's the same concept that permeates their argument now but it's really again i would submit on persuasive under this under the broadest reason interpretation standard the board i think properly determined the pages twenty two and twenty three properly determine the scope of this claim claim terms in light of the prior art i do want to address one argument that my friend raised in his reply brief which is a new argument relating to the the lateral release assembly language of claiming one requires that the structure of a lot of pieces simply you limit it so that its own movement in the vertical direction is restricted that's a completely new argument that never  before the board never appeared in the opening brief we would submit under this court's case law for example the smith kline beecham case that that argument is waived but in any event it's unpersuasive that position would exclude the could have before the board so out at leave to amend its claim it never did that it could have sought reconsideration after the final decision never did that we think the figure two and if it is it really fair to say that that argument about whether the heel cup is part of both of the assemblies but most importantly one part this one about that the two things have to be separated have to be separable and you have an appeal of that and so and it was probably it and that kind of i think amounts to the same question about how to read spec and if the spec is at least under b r i i essentially decisive in the absence of some of these other arguments like prosecution's theory and what they d said in this or court probably don't matter very much why though do we have before us at ground zero for questioning or its conclusion that these two assemblies don't need to be physically separated and therefore portion of either of these two components that were being construed at the time the lincoln jalen it in the in the latter release assembly which were argued as being functionally different but they they pose different functions that they did to rotate in that in that order around the pivot mechanism but i don't believe that the board ever said that the laterally scam was part of any particular component in the claim in the claim was  the release components of all three are twenty three and four are all located down below outside of the upper she allows it's true that there is a part of the laterally scam that goes up into that are browsing but it is conceivable and it is our position that the latter release assembly does not include the or cop it includes the components articulated in the specification as the la least components that apply that force on the lateral movement of the stem seventeen b and that translates to the oak up at the heel cup doesn't have to be part of the lateral release assembly which can have the same function of applying a force to the screen but it does that because it has the spring mechanism in the lower portion that attaches to laterally skim seventeen and then attach it upward to the stem and that's how it translates that but they don't they don't have to be the same