claim in this case is not particular and distinct it is in big u s because it has two reasonable readings with very different claims scopes even after all of the interpretive tools are applied such in big u s claims defeat the public notice function which is at the heart of section one twelfth and they increase litigation they cause more claim construction disputes and they cause more reversals of district court claim construction rulings taken altogether ambiguous claims in the federal circuit's test allowing in big u s claims defeats the very purpose of section one twelve in the pa special spacing that causes the electrodes to achieve the desired result and that was the construction that the majority found at the federal circuit namely that spaced relationship is not what it sounds like namely any spacing but rather is a special spacing that is derived by trial and error testing to get the spacing just right so that the electrodes tell you don't think the maturity or or the concurrence or the other side disagreed with that the only question was whether it was part of the specifications or not i thought that was the only difference between them they both agreed ultimately that the honor we would submit that the disagreement between the judges and in fact between bios a good self went to the scope of the claim namely does the scope of the claim cover all ways of achieving the desired result no matter how the electrodes are spaced that's one possible reading the other possible reading is that the claims cover only a special spacing of the electrodes to achieve the desired  that matters is if you think of the inventor in one nine hundred ninety four who invents a new material for electrodes and this new material achieves the desired result of detecting equal muscle signals on the left and right side regardless of the spacing of the electrodes so it doesn't matter where you put the electrodes as long as you can touch them this new material achieve the desired goal that inventor would not know in one nine hundred ninety four if they infringed or not because if the claims had the interpretation that the majority of eventually gave them namely that the space relationship has this functional limitation it must be the result of this trial and error balancing there be no infringement but if spaced relationship meant any spacing then there would be infringement so that is the exact type of zone of uncertainty that united carbon warned against and which deters the innovation but it can't mean any spacing because anyone skilled in the art would know the hand has to cover it so you're basically talking about a fairly narrow range between one side of the hand and the other and not too close together that they don't don't work and that seems to me that someone skilled in the art can just try a couple of things and see where where the trial and error trial and error makes it could could mean a very difficult thing like and it's and discovering what works in the light ball but here you've got a very limited range and someone skilled in the art will just will let's try it and then you know close to the middle it's try it so far apart but it's not any spaced relationship and that's correct in order and i do when i refer to any spacing it's really a shorthand for any spacing that is narrow enough so that the hand can actually touch both electrodes but not touching so i agree that under each interpretation it makes sense that the electrodes have to be touchable by a single hand and they can't be touching each other either to simply be a single electr be the purpose of the invention if it were only covering spacing without the function of cancelling the g i can't understand if i read this what again going back to the invention of the new material if the inventor comes up with a specific way of achieving the results in here and they came up with trial and error spacing they didn't describe that in the patent that didn't that wasn't described by the invent until fifteen years later but nevertheless let's say they had this specific way of achieving it they very well could have drafted the claim intentionally the way they did to have a broader coverage so that they cover all possible ways of achieving that desired result patent attorneys are trained to try to draft a claims you know some claims as broadly as possible so that reading by the concurrence was a very plausible reading of this claim i'm reading the claim it has any space relationship as long as chief justice indicated i can touch them and they're not touching each other but that's it there's no other restriction on what space relationship means that's a very reasonable interpretation and that was the interpretation that mine when when when electricity is passed through it and you figure out by trial and error what this material might be might be tungsten who knows you know maybe it's chewing gum what would that be a valid patent it would not your honor that better i don't i don't really understand in this trial and error spacing stuff what what is the limit on trial and error can you get patent anything when you say you know this is the basic principle you figure out what you know what makes it invention your honor it's not patentable in fact would be indefinite however the person of skill in the art reading the claim is not expected to do a full blown invalidity analysis they're simply trying to figure out where can i innovate i see this patent issues in ninety four the alternatively go all the person skilled in the art will know is that he has to figure out what the spacing whereby good things happen namely that equal muscle signals are detected the claims don't tell you how they leave that up in the air maybe it has something to do with the spacing electrodes but maybe not and the further problem is that the specification here did not describe any technique for achieving the desired result if one reads the specification you read it it says various things and it says we are by the muscle signals are detected as being equal on both hands on both electrodes well in reality the electrical signals on my left and right palms are on equal somehow however the electrodes detect them as if they're being equal the patent doesn't say doesn't say why it doesn't say what cause so this is the purer we function in all type of claim that united carbon and general electric do you would you have any disagreement with the standard that's articulated by solicitor general he says that you know a patent satisfies the requirement if in light of the specification and the prosecution history a person skilled in the art would reasonably understand the scope of the query you are we may or may not depending on how solicitor general would apply that standard to a claim that has two reasonable interpretations after the person of skill in the art reached the claim in light of the specification and applies all the interpretive tools florida has to formula you're on or we we think it's it would certainly be an improvement over the federal circuits amenable to construction and in sagal be ambiguous test the solicitor general refers to reasonably understand the parties have agreed on the phrasing of reasonable certainty we think reasonable certainty comes out of this court's cases and therefore we prefer that to the extent obviously reasonable understand means the same as reasonable certainty then then we accept that well that's what i'm having trouble dealing with i would suspect your friends on the other side would say yes right that they accept that too and you say but it can't be insoluble ie ambiguous or not amenable to construction and they say well that's not really what the federal circuit said so until we get to the application i don't see much disagreement of among any of you about the standard or what's wrong with the federal circuit's articulation and is that the questions kind of implicit suggest move very quickly into the particular invention and the application i'm just not i'm curious what you want us to do if it seems like in every case we have to get right into the application rather than the legal standards but i think the key dispute here is what happens if after all the interpretive tools are apply there's a genuine ambiguity meaning there really are two reasonable interpretations of the claim genuine ambiguity person of skill in the art applying all the interpretive tools trying to understand the claiming what happens then our position is that if such a claim which essentially points in two different directions is indefinite the problem with the federal circuit's test is the federal circuit would not find that and definite instead the federal circuit would pick one because it's amen couldn't be they're both reasonable constructions but this person is reasonably certain it means a b what would happen then well it big i think the proper analysis would be to look at the alternative construction and ask was that a reasonable interpretation was the second interpretation a reasonable interpretation of the claim and courts every day make judgments like that whether interpretations for instance of statutes a second interpretation of a statute is reasonable while the only the only analog that comes to my mind immediately is our review of agency action is is that the standard that you want us to use if if you know it's within the scope of the ambiguity oh no we don't think that's the right answer but it's close enough for government work is that is is that what you want to apply to patents but no your honor because the starting point here is the text of the statute  hardly be more emphatic section one twelve requires that the invention be described in full clear concise and exact terms and then be claimed particularly and distinctly given that text of the statute  given that the statutory purpose of protecting the next innovator from uncertainty we think that that statutory language needs to be enforced forcefully can it be reasonable but wrong no your honor if a claim whatever interpretation is wrong is ipso facto a reason a if i understand correctly the a claim has only one proper construction if a claim is subject ok so when ever is wrong is is but by your definition you know we we construe statutes all the tooling and we certainly don't think that the result we come to is the only reasonable result we think it's the i proposed first but i thought you didn't like that well if i understood misunderstood the question i apologize but my understanding is in order to determine whether or not there is ambiguity in the  the court first looks at the statutory language and then applies interpretive tools the same is true here and then the court if the court finds there are more than one reasonable readings then the court will designate and then move on for the remainder of the chevron analysis under this statute however if the court determines the can speak claim is ambiguous the proper result is invalid a the electrodes within the boundaries that we've discussed or it only covers special spacings of the electrodes that are result of trial and error in order to achieve the desired result those  hugely different claims scopes and that that uncertainty between those two is what would chills you ation to to proffer any evidence below showing that a person with ordinary skill in the art did not understand what this claim that your brief seems to rely only on the dispute between the majority of the concurrence but was there to to proffer any evidence you know we did not proper our own experts the evidence below included that bio sig's own expert asserted that each of the competing constructions was reasonable in essence more specifically he said said joined appendix to seventy four that the person of skill in the art could readily discern the trial court's construction of spaced relationship the trial court's construction was any spacing then the expert went on and said the person of skill in new york could easily discern the claim scope because the e m t signals have to be substantially removed that was the competing functional construction of space relationships so their own expert supported both of these competing constructions and the reason they were comfortable doing that is because i have a really big problem which is we as justices disagree on the meaning of things all the time and one side will say this is perfectly clear from the text of the statute from it's from hits history from its cont and we do all the statutory tools and they'll be one or more of us will come out and say no we think it's a different interpretation would we have any valid patents in the world if that's the standard that we that we  that any judge on a panel thinks that there's another interpretation that that's sufficient to invalidate a patent as in definite your honor we are not taking the position that because the judges below disagreed clear from the prosecution history the specifications and the description that this was the definite i don't know on what basis i would have to overturn their review of that issue well that that bio ses has taken both saw both claim constructions i we've not seen them assert that either a claim construction was on reasonable the majority did not find the concurrence construction on reasonable nor did it find the trial court's construction on reasonable their experts took both positions so we have a claim that on its face i mean the starting point is looking at the pattern of course not what judges or experts or parties said later the patent on it's face is grammatically ambiguous there is a where by clause dangling in the middle of the claim that says whereby something good happens the i'm still having trouble understanding what your standard is you you you agree that your standard is not there is a right answer and everything that is not the right answer isn't reasonable that's not your position that's right on right right you invoke chevron do you mean that anything that would pass chevron step one is ok you know that is if it w pass chevron step one it's it's ambiguous well if the fake be clear about past if it's same big us under chevron step one then that is a close parallel to being ambiguous under under section one twelve paragraph two but again our starting point of course is not chevron it's the statutory taxed which this is the standard we submit is to assert i'm sorry to enforce the statutory continually would this would this help do you agree that the standard at the p t o and let's say that it's whether or not the claim is definite if a person skilled in the art would be defense it requires the challenger to raise the defense to preserve the defense you know plead it is affirmative defense to make the initial argument as to why the claim isn't it implies some difference on findings apply it would does not apply in this case there are no facts findings out of the patent office regarding indefiniteness but if there was the same definition you came up in the patent office found for instance that a term of art so it's a nano technology biotechnology term of art had a particular meaning then that fact finding may be entitled to deference by the trial court however indefiniteness itself is a legal determination the federal circuit said th review this they know there are no deference to the p t o as to the legal interpretation no your honor no more than there would be deference to the patent office claim construction or any other legal decision that the quotation that the chief justice read to you from th solicitor general's brief referred to the use of prosecution history do you agree with the solicitor general about that use about the permissibility of that use yes your honor so long as the prosecution history that's being used to clarify patent issued if the person of skill only or again is supposed to be in motivated to innovate around the pattern the day it issues here there was a reexamination prosecution history sometimes there's later prosecution history in a related pattern that type of prosecution history shouldn't be used to sort of ex post facto cure international indefiniteness but putting aside that rare instance yes the prosecution history and the specification are part of the interpretive tools that are available and would be used in the i think it's important to remember that there is no legitimate need or excuse for ambiguity in patent claims once the applicant is satisfied paragraph one in its strict requirements for describing the invention it is easy to claim the invention particularly in distinctly the only reason that there are so many ambiguous claims out there today is that patent attorneys are trained to deliberately more than ninety you know ninety nine percent of those cases that there be any uncertainty of what of what space relationship meant the problem here is not those words it's the grammatical ambiguity in the claim it's the fact that the specification did not even arguably the invention that wasn't described the trial and error spacing until fifteen years later and that the patent specification has no concrete examples of of embodiments inside the claim or outside the claim so so we ask that the court you know reaffirm its precedents in united carbon general electric and i bill process i bill process up held a claim that had vague sounding language language was high elevation substantial elevation but it was up held because that patent specification did concretely describe the invention its theory of operation concrete examples that came inside the claims scope concrete examples that fell outside and that's why that patent satisfied the particular interesting claiming requirement and this one does not a reserve the balance of my time thank you counsel on reasonable notice of the boundaries of the invention and secondly whatever if that's if that's what it held we would have taken this case i thought we took it because it had some really extravagant language the was clear as i suggested earlier nobody agrees with that formulation right i guess i guess so your honor but i want to make i just want to clarify what that point is what this what the federal circuit said below the full statement of its test that it was applying in this case was if reasonable efforts a claim construction result in a definition that does not provide sufficient particularity and clarity to informed skilled artisans of the bounds of the claim the there's no suggestion at the court there's a subtle no there is if you read that language carefully it seems to be saying that what has to be reasonably definite is the court construction and takes the emphasis away from whether a skilled someone skilled in the art would be definite there is a big difference between can i read this and give it a construction and whether or not a construction is definite enough so someone skilled in the art could understand it or we would completely agree that the test needs to include what the skilled would have understood that it's my problem with this the federal circuit's articulation and as you read its decisions its focus is not always on that question its focus seems to be on the reasonable of the spec but i think it's quite clear from the way the federal circuit actually applied the standard in this case that the federal court was looking to what the evidence was as to what skilled artisans would do with this claim language if anything it's n differences but well between the majority and a concurrent or below first we don't think he says there's a difference in scope so address that yes i don't you see that as being a difference of importance it would be a difference if there were a difference in scope but there isn't one i think it's very important to look at what the majority in the concurrence actually did the majority was addressing definiteness the majority did that in two steps the majority said we're going to apply the principles of claim construction the first thing it did was it looked to the claim language the written specification the diagrams all the traditional tools of patent interpretation it said there is definite is here because there are bounds to this space relationship it isn't just anything it has to be greater than zero has to be less than the width of a hand it's implicit in that actually explicit in the statement of the patent then it said that the functional limitation which is the will by clause in the patent sheds additional light that's where the before us for procedural reasons not always reads that as if the concurrence was somehow disavowing or disclaim in the majority approach it never said that it was a procedural argument that it had then fact there's no disagreement between the majority  this patent be valid if the concurrence is approach prevailed it would work would it would not work the mere fact that you use spaced it somewhere where explicitly said it described the structure this case is quite different from general electric where there was no structure being given he said that there is white there are going to be signals that are going to be detected by the electrodes right and then those signals which will be detected as equal are going to be fed into a differential amplifier and thereby subtracted or cancelled out where i would read that as saying so long as you put put the spacing at some point where the hands can touch it and configured in such a way that they detected the signals as equal it would reduce that yes i understand that but that's not what it says it doesn't say space the electrodes in such a manner that the signals coming from each side will be equal and you'll have to do this by trial and error that's not what it just says it just says you know the electrode support they have to be apart so that i am still touch and on the other hand that can't be outside the scope of what the hands grip that's all it is but that whereby if you do that the signals will be equalized that's that's how i would read it it wouldn't work that way would it it wouldn't work if it gave it gave no specifics but this is where the fact that it all depends on what the skilled artisan would do it is is critical because there was uncontested evidence that a skilled artisan in one thousand nine hundred two was able to read this patent and understand how to put together this invention in such a way that work they're in the right hand you put the blue and here in the green they're not touching but they are different distances from each other in the two hands is it work or not if this is the two sides this is i got one hand s and this is like the other hand ok so does it work it in a more roundabout way what he was asked in a pre round of what the uncontested evidence showed was that a skilled artisan at the time knew how to space a lecture i ben did he know that they had to be like if you put it to inches across here so the two inches between him and over here it's like a happened between him did he know it did work or did he know it didn't work he would know by the way if it worked but i want to know if it does work it probably would not work this way now as soon as you say that that's his only point is that when i read it i guess that's the point that's being made but when i read it it just seems to me that the green when can't touch the blue and the whole thing has to fit within your hand so each of them catches a finger using that isn't good enough that doesn't work they have to be the same distance and what that distance is this document doesn't tell us but it doesn't even tell us they have to be the same distance so therefore since it doesn't tell us that it's ambiguous is that the correct argument rethink it's a correct one so now what you're a answer this court has never found a problem with the need for some amount of experimentation in order to get the print doesn't even say that it doesn't  say go experiment whether somebody with great big fingers on one hand and tiny little fingers on the other hand and i both process this cake this court faced as mr emberg mentioned faced a case in which a man method of manufacturing a paper all it said was that the angle of the supply of the pulp had to be high didn't anything more is it and i didn't answer to the justice breyer's question that the diagram shows them equally spaced or is that not relevant i don't think the equal spacing is the only issue mr chief justice the issue is how do you find what that spacing is and the answer the uncontested answer is that skilled artisans were able to do that very quickly it's not trial and error as if it's throwing darts and just seeing what might work it's like tuning a radio just happened to move things around in order to get out why doesn't you know i could understand that if the claim said that if the claim said you know fiddle with it until it works but it doesn't say that it just says you know spacing and i would think so long as their space they don't touch and they are no more than the width of the hands it'll work it doesn't say that i don't think a wear body is is an invitation to experiment but the other case you were talking about tell us more about it it just said the high  out a signal correct yes and so what the majority said is that that function is part of the understanding of the spacing isn't that what the majority said it said that it additional constraint on the spacing is the fact that ha lf that it will work in a certain way so i don't know whether it has to be equal spacing or one could be one inch and the other half an inch apart the bottom line is that to work it has to cancel out that's part of the scope yes yes now the concurrence is no you don't have you can't i'm not looking at the specification yes i think it's definite without it yes all right i don't see how it could be that's what i think justice scalia is saying and justice prior  saying that if we don't understand what the purpose is how can that spacing be definite enough to make this thing work so tell us why you think that the third says interpretation is wrong what's he missing the what when what it says where by and where by means the elements that came before are going to produce that result and there's never been a problem with the fact that  some amount of experimentation i think even call it that because it's really just tuning dials on a radio may be needed in order to get the exact number exact reasoning that the special what the will because says it put it conveys a structure it says they have to be detected these signals in such a way that they're equal that normally wouldn't be the case in all the devices that existed up that time they wouldn't be equal signal coming from the right and left hand that during exercise would be unusual because when a person is running removing the right hand  and have different amounts of contact with the electrodes the whole novelty of this was the fact that you didn't have to cancel the signals what we call downstream meaning by just filtering them out they could be detected in such a way that they would be equal and then be canceled why didn't the patent provide more specificity as to the exact space and because like i will process and like you know separation it wasn't possible it depended on too many variables it depended the actual spacing in every single instance would depend on for variables this was made clear in the expert declarations the size of the electrode shape of the electrode the spacing between the electrodes and the materials those for things just like an eyeball process what the court said w entire argument is based on attorneys coming up with arguments later which one about the case that he postulated an abstract one where you have to perfectly reasonable constructions what happens then if they were true constructions each of which has survived the marking claim construction process and each one of them does the things that martin says the correct construction needs to do which is that it fully comports with the instrument the whole and to preserve trial here and then yes we would agree in that case it's indefinite but what they've put forward just doesn't markman exist for a different purpose i thought that markman existed in order to explain things to a lay juror or a late judge why should the mark men test be used in this context where we're trying to figure out a different question untiringly well i i'm not sure i agree with the premise your honor the mark been explained that the nature may need to be nature the process may need to be necessarily sophisticated it's a hard thing to construe to construe claims and we it depends critically on the abilities of the skilled artisan to do that  just to return to that to that to the point again that i think is such an important point all they're relying on here or training arguments in fact this morning just now mr van britt mentioned that the end ambiguity isn't even in the words space relationship is the first i've heard that it's actually somehow in the world because that argument was never made any time below or up until now and the reason that's critical i'm not arguing waver but the reason that's critical is the rule that novices suggesting here will encourage attorneys years after infringement has occurred just come up with some way to argue that there is something that's unclear in the patent and i think i just go back to my you know the two reasonable is there a range the ship the chevron analogy again comes to mind let's say one is more reasonable than the other but they're both reasonable what type of range do you have before you say that the patent is invalid i think i agree with the comments that were the questions that were asked before that it's very common in men in matters of stature interpretation to have different answers some of which are reasonable but are incorrect we hold we believe that the test requires that be there if there the has to be more than one correct construction before it's going to be indefinite if it only depends on the fact that there are reasonable interpretations that are made in good faith that lawyers are arguing or that jurists of come true that's not going to be enough anymore than it's never more than one correct construction even even with their recent i mean we always have to come up with an answer and the patent office has to come up with an answer it means this or it doesn't mean this  you ever heard of a court that says well you know it could mean either one of these now in fact i think just about it's a t'ai chi i think that's the point the point is that one of the constructions is going to be better all they've suggested here is that both constructions somebody in good faith so when you win all the time now there you go such thing is as ambiguity because there is always a right answer as this court has said in the rule very context there can be situations where statute is unclear a judge if i ever tell you something it sounds like you really are advocating the insoluble blee ambiguous standard that's what you're saying unless you have to throw up your hands at the end and you say we can't figure out which one this means there is no correct interpretation unless that's the last that's the case then the patents valid the premise of markman is that in most if not all cases are many many many cases where there's going to be real substantial disagreement between two parties good faith said the test should be insoluble blee ambiguous was that wrong or not if insoluble means applying the standard tools of claim construction then it's correct to say that that is what's required but that term i think by some just reports i'll acknowledge maybe just interpret to mean as long as we can come up with anything and it makes it sound as if it's not necessary to actually tie it back to the language of the patent if the court is doing it the correct way the this prescribes looking at all the past materials and the prosecution history if it can come to an answer then we would agree that answer to that is definite do you agree with your adversary that the prosecution history is that at the time the  did not on reexamination or anything else subsequent i think in this case if it comes out the same i have no no i didn't ask that question no i think that the prosecution history later also can introduced at a later stage during in that same reason am an asian some of that evidence may be but it may be a court may be able to consider that at a later time as being relevant if i finish the question i mean the there the answer if the court in other words if any if evidence as here was introduced it reexamination about what skill artisans knew with the time the mere fact that was introduced at a later stage is not a problem thank you counsel thank scope of the claim and i understand petitioner submission to be a dispute about what happens if there are two potentially reasonable constructions at the end of the parking claim process and we think that if there are two constructions that are of nearly equal persuasiveness then that would be ambiguous but if one construction is appreciably better that that is good enough without having to take the second step of saying that the second best construction that's not as good and appreciate we not as good is is also on reasonable we think that kinds of experts you know and quite often if the situation ever arises and i don't know if it ever really does it could reflect a difference of opinion among scientists i mean you could have those who followed the flood just in theory of fire you could have those who file a file follow the oxygen theory of fired all we have to do is update the house and you could find different experts who would have different opinions while all agreeing that it is absolutely clear i doubt that the patent office will very often find that problem arising and if it does why not just say forget about it as long as you can say reasonable experts can clearly you know what you just said that's the end of it and we'll tell you what to do later when we really find the problem or you tell us what to do i mean i'm having a problem about it and i'm explaining what my problem dispute between the two scientists who have opposite theories of well i don't know gets a dispute between two scientists with opposite theories the question of what a person of ordinary skill in the art would think that i think that person of ordinary school in the art is is a hypothetical legal construct like the reasonable person from twenty law and when do we ever decide a case in which we would not say that our result is appreciably better in the result we well i think that there are times when the court would recognize that it's an authentically closer question and still in close but put not appreciably better if it's not appreciably better we'd have to say it's a girl but i don't think that the court than the second best answer that you do not have to take the second step of having to declare consequence appreciable i don't i would no moon i think it's difficult to put a mathematical precise mathematically precise number on it will problem with with with what you're saying i have no idea what appreciable means if you say we have a one i'd say wrong something more like sixty forty than fifty to forty eight and i think that in general the court recognizes the difficulty of that type of mathematical precision in applying tests like what it means to be clear and convincing usually when we ask whether something is reasonable we have in mind this reasonable person and this set of circumstances in which the reasonable person is going to act so in torrents the reasonable person is going to engage  an activity that has some benefits but also has some risks what would that person do in that situation i hear you're saying what would the reasonable skilled artisan do in what situation what is this person doing something out to  build the device what they're trying to understand the scope of the claim and so i do think it's important here to recognize that there are two different questions that are getting conflated in some of the discussion i think that with respect to definiteness under paragraph two as the court of appeals majority recognise that this is in this case the question is whether the claim clearly states that it requires the electrodes to be arranged in such a fashion that they will have the effect of detecting substantially equal e m p signals at the electrodes it's not with downstream circuitry which is what petitioner suggested in the opening brief reply brief they've suggested that they could use some sort of protective sleeve on the electrodes but that wouldn't be consistent with the parts of the limitations that say that there needs to be physical electrical contact with the electrodes and the majority recognize that there are multiple variables that come into play here the spacing the materials the separation as as my co counsel was just explaining  and but the disagreement between the majority in the concurring opinion here is just in whether the functional limitation inheres in the phrase space relationship taken in isolation or whether it can be read from the rest of the clay when you say something like appreciably better that's a term that may require me over time people here just like reasonable ness to get a good sense of what it means is it your sense that the federal circuit has been applying its test in this case i mean not in this case but in the series of cases that is a push it is close to appreciate better or is it something quite different well we do acknowledge that the phrase that the federal circuit is used about insoluble ambiguous and amenable to construction  position on every case that the court of appeals has applied the standards and i don't think that the court of appeals was intending a market departure from this court's over ourselves what are there are cases where there are two reasonable constructions but both if the second best construction see this is to be a reasonable one i think and i think that if the court wants to think of just whether there is a good enough construction such that there is reasonable clarity as required under united carbon and did the mineral separation case where the court said that the certainty that's required is not greater than is reasonable or do you think that if this chevron analogy mr gannon because sometimes we do say something close to it's a tie we say there are a couple of reasonable constructions or a number of reasonable constructions we could pick one we think it might be better but it's all close enough that we don't think we ought to pick one so similarly it's all close enough that definiteness requirement has not been met is that a good analogy i think that that would probably we think that the sorts of constructions that would be reasonable under chevron that the agency could take as a second best construction probably aren't sufficient to be the definite construction here and so i i don't think it's a close analogy because we don't think that anyone is seeking that type of deference to another decision maker as you know it isn't actually quite got that it's just that anything that would flunk sorry if i wasn't clear about this before i was trying to say that in the sixty forty situation that i said would be adequate here such the second construction did not prevent there from being sufficient clarity i think that we would think that an agency would be entitled to choose the forty percent option but we don't think that that would be that that would prevent the sixty percent option from being good enough in the continental surveyor just seems to say that if there's two reasonable constructions and one with me the patent valid i think this goes to justice kennedy question that they're obligated to pick the one that makes the patent valid the case i think i believe the case that that's being talked about there is cited in the exxon opinion and i'm talking about when there are two equally plausible constructions i think that between the presumption of patent validity does play a role here it doesn't change the standard but it it does it does play a role in the indicating that as the p t o has recognized that courts will do more to save a patent than the p t o does when i understand the scope and i think saying it has to both levels it's not the same test at the p t o applies in examination proceedings because it uses a slightly different threshold of ambiguity it finished with you know if i could give an explanation of  why you do it in a sentence i could say that it involves the different circumstances there that include different record the different burden of proof the lack of adversarial presentation there and most critically the fact that it's easier to amend the claims before the patent has been issued thank you counsel four minutes mr van burg thank you i think the the essential points here are first the emphatic language that congress chose and then thinking about ambiguous claims there is no legitimate need for ambiguous claims there is a strong economic incentive for patent attorneys to draft ambiguous claims not to put all their eggs in that basket they want some clear claims in case some copyist comes along but they want in big claim so they can treat their client can treat it as a nose of wax later as happened here that it is well established in the economic incentive the patent attorney and the inventor in the best position to avoid the ambiguity that congress prohibits and therefore the problem is the federal circuit has blessed ambiguity with its test and in order to stop it the problems that the miki have pointed out that are caused by ambiguous claims we submit this court needs to be clear and go back to united carbon in general like tricked into the statutory text and be clear that ambiguity is simply not  permitted in terms of how the federal circuit ruled here and we point to the majority's opinion it petition appendix fifteen a the court the majority definitely applied the insoluble ambiguous test they said because  the term was amenable to construction indefiniteness here would require a showing that a person of ordinary skill would find space relationship to be insoluble ambiguous and therefore if the court rejects that task we submit the very here in some of their cases the court will the federal circuit will use language like that saying that one could have understood however it's clear they were not applying the type of task that united carbon in general electric required they did not even consider whether the person of skill in the art may have read the claim the different way and in terms of the two different claims scopes we would simply invite the court attention back to our reply brief that page twenty which  explained the different claims scopes we think the government misunderstood the point and therefore in the reply we amplify that some more but as as i said the court the very we should not affirm but we think it's important here for the court to create another concrete guide post in k s r and bilski this court provide a huge service to the patent bar in applying the correct law to actual patent claims creating concrete guideposts for section one a wand and one of three well patent bar in the trial courts need another concrete guidepost of applying the correct law of section one twelve paragraph two to this particular claim there are no further questions thank you thank you counsel case was submitted