may please the court there's no computer in this case and there's no patent owner either that has lost interest apparently and says almost pro bono the package will probably expire almost no matter what happens and all we're talking about in this case is a set of added claims that were added during the eleven years that this thing's been pending they were headed there all seven years ago and they were rejected six years ago and they've always been rejected until the board so because of the way the older parties reexamined system worked those had a claim to get wiped off quickly basically this entire proceeding gets wiped out with a pat expires next year nonetheless there are some interesting aspects here we went through this process and the original claims of the patent were rejected let me out let me ask you a question because your interest seems to be that new grounder project yesterday allege how could they have relied on it oh it's fit it's very clever because what they did was they did that would be clever game was actually compete it was insidious it was the it was the most surprising thing to read the board decision because obviously it's there were six other grounds that were in there and everything else was a matter of legal interpretation but here they recast the examiners actual rejection and then overturned it so they didn't overturn the rejection of the examiner made which we could have dealt with instead they made up another ridge and used the word and they recast they recast that that's right because in ten years the word inherent had never been used by anyone remembering the that when you read the actual statement in the court's decision which says the examiner does not direct us to persuasive evidence the positive took temperature coefficient characteristics would be inherently present and fix film resistors and so on and then that they're looking for the examiners how statement to move around the rejection when they did reject it based upon that it seems to me that you've created a very technical argument to dispute the fact that a finding that p t c and the other thing aren't the same but we've never said they work that's the whole point no and that's not a technical point that anyone would have ever asserted during this proceeding that's what makes it so bizarre to read that statement never it was never an issue during mine is that some are some are right so how do you know which ones are because the person of ordinary skill the art knows about major knows about half says it reads how they work in this patent looks at muller if it quacks like a duck and swims like a duck and flies like a duck the examiner is entitle to say i know that's a duck i've seen that duck before in devices of this type in major inho i said necessary because the board of the directors brief mistakenly refers to claims thirteen fourteen and fifteen as independent they're actually dependent claims from which start to identical chains of dependent claims the only difference is the same limitation wherein or further comprising the p t c resistor that's it that's the same limitation that's in thirteen fourteen fifteen from which flows the odd numbered set of  after the examiner made this rejection we said to the examiner and now this brings in the major that we said you know major discloses the same thing as mahler but it's it's does it in more detail in more words it's  we said ok that's good enough it's cumulative it means according to the patent office cumulative means it displaces the same subject matter so we're happy with so what you're saying is that you will argue major to the examiner that the examiner didn't rely dealt with major as as it were just as a ground of rejection whether the examiner chose to do it we cited it under the control of our view to the board that it should go back to the examiner to consider this other or major and this we did let's just deal with it are you raising that on appeal we didn't it's one of the up if you shouldn't read it it's one of the options that this that this that this court can do can just remained with instructions to continue the rescue we could we could but i don't see why we should when you didn't make the argument but that is simply part of the relief that you would get granted if the board is if the board is if the board's reexamination excuse me rehearing decision is reversed if it's reversed we've got to go back anyway the question is what to do when we go back so we cited major again under section one forty eight rule nine forty eight which allows us to this is a very narrow the narrow it's a it's a remarkably narrow case it's a single point a single issue i could talk about this some more but i think you understand what we're talking about here we we we for not raising more grounds of rejection although we had six that were good at that point all right i mean how many are we supposed to raise that we are winning on and in charlie  obvious case why does the examiner have to call out the component by its name when i mean it says it is i understand this is what it is again i go back to my my analogy i somehow fall from space and i see an automobile for the very first time i look at it and i think i don't know maybe that's a house it's an interesting looking house people can live in it you can get out has he whatever it is air conditioning but i'm not i don't get dropped on the planet for the first time i see that and i see round things i see for black things on it and i know those are wheels and they spin doesn't say their wheels and they spin on it but i've seen cars before i know what it we agree there are probably fit film resistors the aren't p t c resistors but in this application in the mother's disclosure a person of ordinary skill they are recognized as such and examiners that that's all it's really quite simple we never argued that nobody ever argued that that wasn't the examiners position that think film resistors inherently had this characteristic if it did there would be clues want you sam i would have said so perhaps at some point in  ten years the word inherent might show up in the file history it doesn't the examiner would have complied with the m p e p section which tells him if you're going to rely on an inherent property of something you have to provide a factual explanation for there is no factual explanation for that why because he wasn't doing that nobody understood that to be the case until the board's decision now it's course on the rehearing decision and i think before this court the director and the board had to say no it wasn't a new ground of rejection it wasn't an apparency rejection well of course they have to say that because fifty two don't they have to reopen prosecution so i mean i understand the litigation position they have to take but here we are you know i mean miss craven thank you ana let me at least part let me give you a hypothetical suppose what happened here is that the requestor had argued for obviousness over a combination of mueller  muller discloses a p t c resistor and is there are a right to go back to the examiner again and have him consider the combination of mahler and major and if the board refuses to do that can the requester come here and say you should have done that so if portage had proposed the ground for objection based on mahler and major and the examiner had refused it x and true that as a new grad or accept that as a grant of rejection they could have appealed that denial of the new ground of rejection of consideration to the board and then yes if the board had said agreed with the examiner based on the meyer reference so the examiner found it cumulative but they were presented with a ground of rejection to provide them with muller teaches the electrical  appears to be making a dr of equivalence argument they function the same way do the same thing so they must be the same but rejects the exam or found that resistors but that's not a finding that mother in fact teaches the p t c resistor and they're stuck with the grounds of rejection that they raised in the inner parties or exam so unless there's any further questions at the time that major was raised it was cited not to raise a new rejection we already had six grounds of rejection including mahler but we do recognize at that point that perhaps that the major reference because it was device using the same component parts as in the public prior art that you already have of record so you could do that the examiner chose not to do that that's within the examiner's profit wasn't really necessary to have yet another ground of rejection at that point but it wasn't based on assurances we were arguing that point at that stage of the case the examiner never thought that argument that it was that it had to be that necessarily w