one that there's a secondary opening which distinguished over the prior art two that are formed curl slides off the elongation member free n and three that in the process there's no obstruction or force that causes the curl to unwind and what that all came to was that the point of that was to distinguish over prior art curling devices or curlers just standard curlers that have been used for decades and decades and the that the the first issue i'd like to address which which the board got wrong frankly is the whole issue of the definition i mean issue if you take a look at the element which begins the length of hair may pass out of the chamber that that phrase was specifically defined in the specification in column six and you know i do want to point out that those guiding principles that i just mentioned are in the summary of the invention and are themselves definitional in addition to that in columns six right we have another definition which is the ite the phrase not the i e phrase this courts found in various cases in edward's  at actually what is said after that i in column six it says that the length of hair slides along the long gate number twenty towards and subsequently off its free n there's really no  but that's not the case here every embodiment is consistent there's nothing inconsistent with the text that follows the the in the specification and so there really is no opposition or or or or or there's really no contention by my friend across the aisle here that if the court adopts that definition that there still is anticipation and so that would require a reversa the second argument that i'd like to address is the definition of free and what the board did it is when i read that definition it's almost as if the board was defining the term with respect to the prior art and not the pattern itself and what the board did is it included in the definition of free and the concept of a different element which is the abutment which which is a separate element  itself it also introduced the concept of the abutment being structural for the free end that was also incorrect a third are made by the board was that in looking at the definition device and not just at the free and but but but the board's definition at least the way i read it requires it to be the free and so it's wrong on that basis so there's three different errors that the bor made board made in terms of defining translational release of the hair which is consistent with the summary of the invention and if the board accept our definition that's a second ground for finding no anticipation because there's that element spatial in less there's any questions on i'll move on to my third issue i can see the third issue has to do with the element that has to do with the adjacency between the free n and the secondary opening and what the board found was that in the prior art as the curler in the prior art in the prior art is is about a actually inserted into a device as the curler is being removed that means that the length of hair is able to pass out of the chamber we argued before the board that consistent with the summary of the invention that the adjacency requirement of the claim requires that the free end and secondary opening have to be adjacent at all times as the entire length of hair is removed from the device that adjacency has to be maintained because it just doesn't make sense in the context of this invention of the aims of the invention overall thrust of your position is it not not that whatever may or may not have been a valid grounds for objection as far as anticipation was concerned the requirements are rigorous  vantage over the prior art of curlers say it's it's the fact that prior are curlers even though it's incorporated into a device was used to anticipate these claims is is really it really defeats the respond to those arguments in response to a question there's been two recent developments when like the court to take notice of leakage by judicial notice and the reason they couldn't have been in our brief because they just recently occurred by which we have three has done in important you could have presented it to us we only worried about of this past week in reviewing the file histories of related patents and we checked with the court and said this is the way to do it so narrowly construed is you can't consider incorporation by reference of a document that was incorporated by reference which the board and went since digital corporate used and corporate by reference to whether you have a version which is clearly shown in figure twelve of the incorporated document on the basis that it didn't have a primary and secondary opening the board got that wrong figure twelve is based on figure eleven fig clearly shows a primary secondary opening it is and the only difference between figure eleven figure twelve is you can detach they want to get members so that's i think important the other documents ties in with the basic right it's reasonable construction argument and certainly the board has a broad reasonable construction and the reason for that is coming out the patent office is very very rare case where this court or and one of the remedies that we have three if they thought they should have had a narrower claim rather have the public in a small company on the west coast a drag connecticut for a lawsuit is to go back to the patent office for  continuation and that brings me to the second patent second document u s patent nine six two nine four three four which issued april twenty five duty have three then if they're just part of the same family claim is substantially identical to claim one here the only difference is a added the limitation which is equivalent to what they're asking now that the along gate member can't be detached that's basically what they're saying we want you to read the c require the here to come out the hair the claim doesn't require even the kernel here there's a lot of other options that that device can be used for that's in the specifications of the tire specification all the claims everything is made can using fraud language and claims and say oh we're going to add this limitation with words that aren't even in the specification we're just translational appear it's just not fair to the public not fair our client to have three can do what it did to a continuation could move to amend why come up with a narrow definition when in we go the reasonable construction unreasonable for the board when you have four out of seven cases that we're aware of were i e they went the other way it's certainly a reasonable construction and that's the point that ward make an unreasonable construction now i want to respond to the argument that even if you accept that construction there is no anticipation we have never conceded that both experts have said even if you use that definition free and there is still meet that you can still get the hair how can you disagree with that you have a big game you have one and the other the other end has to be supported and to say it in you know and nobody has a thing to point other than you have three by having such you know difficult claim language in trying to argue that the difference between one end of a beam that us free and the other end of the beam is supported is certainly a reasonable construction application was a corporator by reference and that's true but if you take a look at column two of the patent where it describes the present bench and summary of invention actually distinguishes that in the board recognize that that while certain aspects of that application were incorporated by reference it certainly wasn't with respect to invent the aspect of these claims and you can see that in column two right at the top of the top of the page lines one through about nine or so where  this invention was distinguished from that incorporated by reference application counsel also talked about how the case is on id for the i'm sorry it was there where you just and this is the body of case law of this court if you if you read all of the cases together what you have to i think include is that i think is definitional in less there's disclosure in a pattern which is directly contrary to it here everything in the patent is consistent with the language after the ip being definitional and one thing i will point out about the edwards cases edward specifically found that even if that