drive unit into intermediate sections and has a pivot provided between the adjacent intermediate sections as per the borowski reference if we then look to the following page of the board's final decision at appendix twenty there i don't didn't see it question anywhere whether there was a motivation to combine it simply said that we didn't show that the intermediate course in dickson nor did we show where our with the pivot unit carries the paddle bearing now if the boards construction of kerry is correct namely the board construed kerry is meeting supporting the weight of the paddles the board's conclusion is undeniably true we look at the top of the panix twenty three along the pivot unit then we submit that pre clearly show that the diagrams pivot unit carries the paddle bearing chain we look to the top of panics twenty three dixon's intermediate length carries the paddles the paddle owner's response specifically called out the fact that that they said the prairie land failed to discuss a pivot unit that was configured as claimed to allow for curing of panels and discussed what they thought was the appropriate meaning of that term but but june even respond to that in your reply i'm sorry i don't think there was a discussion unity when we walked into disc case we were facing infringement allegations against variable which does not support the weight of the paddle ok all parties were pointing to the figure kerry ok pray lance when we filed our petition we only discussed the figure eleven preferred bottom end of the pivot unit suz preliminary response didn't propose new construction for carry it to with what what do we do with the fact that the board actually made a finding that there was waiver of this carry limitation debate and that that is a very discretionary parties there was no indication that that claim imitation was in dispute throughout the proceedings there was very little discussion of the combination unit of figure thirteen which the board relied for its construction there was no reliance on that until the final decision and in terms of addressing whether or not to carry limitation of was you know whether or not we showed where it carried we  the parties themselves i mean sue itself is arguing the district court below with the pea taps claim construction is around tony s and is arguing for essentially the claim construction that we're arguing for now it wasn't until the final  decision that the teeth had to construction came at a sideways and turned out to be supporting the weight of the paddles rather than merely having the paddles travels with unit what about the the portion of the written description that the p t have relies on when it when it describes and supports its conclusion as to what it means as to what its in its view of kerry me cents ok but if we regard if we regard kiri as requiring support the weight of this excludes the pivot unit of claim zero of figure eleven which is dispute in the underlying district court proceedings morning your honour's may please the court i want to address the waiver issue st and foremost because i believe it's dispositive and at the start of this proceeding the very st brief filed with the patent on a response and on configuration referring to the limitation the carry limitation or any meaningful analysis of the word carry so that was in the very st brief that was filed in a that's correct your honor and that's that's my point the patent owner pointed this out in the record the petitioner filed a brief didn't address this point and this was a point that was also raised before institution in the patent owner preliminary response highlighted this limitation and at no time did the petitioner argue anything special about the meaning of carry and the reason that they didn't do that gets to another independent basis for affirming the waiver and connection with the for instance a motion for reconsideration and proceeds to decide the merits that that there is no waiver then then we should be addressing the merits and try as i might in the board's opinion while they discuss waiver they never actually say so we find it waived and then say and but in the alternative we're going to consider their merits they simply say well they didn't really raise it before and then they proceeded to delve right into the merits isn't that a problem with your reliance on waiver well i i would agree that the board did not use the term waiver and in its rehearing decision it faulted the patent owner for not taking earlier opportunit that so there is no explicit mention of the term waiver but i think that's the fair import of that language but in any event it did reach the merits and it reached the merits independent of this kerry limitations dispute which we pointed out in our briefing and that independent basis is discussed at the appendix starting at the bottom of page twenty five dollars and spanning page twenty six so it begins at the bottom of  five more over or even if claim one used carry in a manner different from plain ordinary meaning petitioner has still failed to demonstrate obviousness of claim one by preponderance of the evidence and then it continues over to the appendix at twenty six crediting the patent owners response of pages sixteen through seventeen which also referenced evidence paragraphs of the expert report that can be found at appendix five hundred and twelve dollars fifty one cents and it weighs this evidence it weighs this evidence in comparison to what the petitioner said units reply in its petition or reply as based on the trial grounds and it stated that that evidence in those arguments in comparison to the bald conclusions of the petitioners trial grounds fail and that's completely independent of whether the term carry is construed or not that aspect a response what is your response to your friend on the other side saying that the positions you're taking here are directly at odds with the positions that you're taking in that district court proceeding i would say that we've not taken any positions here at all with respect to carry and the reason we haven't done that is because we don't have to it's not our burden and they didn't address that aspect of the claim so i would agree with me and that's not that wasn't really my question so are you saying that that he's correct that you argue to the district court that th in this case got the construction wrong i don't believe we've argued well let me take that back i should say i'm not litigation counsel in this case so i'm not sure exactly what was argued and when but i will say construction in the district court was different than the one that the piece have came up with and the proceedings that have happened since then i think i've explored you know which one should be adopted in the district court but for this particular proceeding the meaning of carry is irrelevant when the entire configuration has been ignored and i think just point is abundantly clear when you look at the appendix at five hundred and fifty and this is an argument that petitioner made and they drew a picture and there's a universal joint there connecting sections and the question is if the universal joint is the pivot unit and the pivot structure at the same time the claim requires two different things  how is there any configuration through that joint that carries paddles so if it whether it's a path a space holding up the weight it doesn't matter because there's certain there's just no configuration this argued in this what i my understanding of the trial grounds and what we've laid out in the brief if you look at the petition and the conclusions again that the board cited in that page twenty six dollars page twenty six dollars of the appendix is that they've identified a pivot period d to map to both a pivot truck sure and a pivot and that was the aspect of the record that the board found in favor of the patent owner in the petition of showing lacking and that's substantial evidence it's certainly reasonable to hold the petitioners to their trial grounds and when they identify one structure and one structure alone as meeting multiple different claims terms that's a failure of evidence and that's what the thing that i think the entire system is geared to avoid is having different rulings different positions different arguments and the i agree with that your honor and the interest here is not the patent owner taking inconsistent positions the difference here is deep board in just construing a term that was unnecessary given the trial grounds and now there's a dispute over was on and just so the records clear i agree with the board's basis under substantial evidence which is based upon the structure in the claim that was never identified by the petitioner i'm taking no position as to the meaning of carry in this proceeding and we have not done that in this proceeding so there is no consistency the burden is on the petitioner to match the claims of the prior art we don't construe claims against ourselves on terms because the the petitioner didn't address them in  issue because there was an independent basis in the board's decision against banning the pending situ any five through twenty six dollars for saying and this is what the board said it doesn't matter what the meaning of carry is even if th configuration which meets devitt unit and that's the p tab zone schematic at appendix twenty two maps directly to the arguments and i p r petition i mean that clearly shows a configuration we did show a petition maps directly to claim one it's simply a matter of bad clean construction