this term was originally interpreted in the institution decision as including a projection but during the hearing the board raised the possibility of using a different construction in order to dish and briefing on that issue both parties additional briefing and then in the final written decision the board applied a new construction the new construction of that term was a slender part of the structure machine or instrument projecting from a main part access were for the board also mentioned a negative limitation suggesting that the arms must be something other than a give it or a faster now in analyzing claims two and four under that new construction the board said in the final decision that petitioner that's us does not address helmet creek teaches stationary arms that's in the appendix to page twenty three they went on to say petitioner instead states that term leskie include stationary arms the challenge to other relies upon mccree for that teacher so that's where we think the board got it wrong and missed the fact that brunswi did in fact address how mccree teach a stationary arms that's in the record at page forty four thirty three of the appendix of so so come with the poor actually sites on page twenty three are in fact very passages that you can write quite hopefully simplifying your argument point to and say here's where we said something that we think that the board is retarded but do also state that those cases you say neither one of them so why do we not read the for the board statement as tending to the point but finding your explanation insufficient said what it is about ten that special from basically any sure so and i didn't intend to minimize turner i don't know i understand the argument so let me address that first the first question is how can we read the board decision the way we read it i think that's the only way to read it when you consider the two senses together when you look at the sentence that says petitioner does not address how concrete teaches stationary arms or that construction and then followed up with the next sense that says petitioner instead states that your list be include stationary arms when you read those two together i don't see how you can come to any other conclusion other than that they overlooked the arguments made about how mccready actually does teach that in fact there is there's a page long explanation of how mcphee teaches it and if you look at that it leads lines up clearly with the new construction of the board offer specifically if you consider back to the suspect the new construction it was a slender part of a structure machine or instrument projecting from my main part and if you look at the pins ten are also things that project from the main part that's right in it forty four thirty three it talks about the pins ten project from the main part which is the side wall twelve and then they also by pins ten the project outwardly from adjacent faces twelve of the reservoirs so if you look in apply that to the construction it lines up almost word for word with how them or construed that requires they are checked out from the main conditioner for that they project out from something or attached to something more rigid they're sort of floating in space if you will and connect two components together so here you have to have something more than just a faster more than just another bowl this thing has to be attached to something else and project out for and then also support so that it's that combination of things not only connecting but also attaching to something rigid in supporting it that makes it different than just a run of the mill fa so when the when the board says in its claim construction you can't just have a pivot attached to what is after all stationary i guess i'm trying i'm struggling a little bit to understand what that could mean that i didn't already just exclude what you just yeah and i think that's the best example i've got for you is if you have just another novel together those two that because if ashley that could connect two things together a good bye by definition in the context here now one thing that's being connected is stationary already well here is a well you've got a stationary arm so that's the thing that we're talking about what is the stationary  it's actually connected to something else another point so we're talking about what is the component that attaches the movable arm to something else the base so i think that's where we've got the differences you could have a fastener like a just another bowl that would not satisfy that requirement because it would not connect something to a rigid structure of a base but here you've got the pin is attached to the base that makes it a nonviable arm and it also has the fastening capability as well so it's got the dual function and that's supported in the briefs that supported dr gary says declaration of the deposition those are all our experts cites those are in the brief but the cites i can give you are the appendix forty four thirty three appendix three seventy nine as we just talked about the reference  issue unless you anybody has additional questions on that the second issue that we've raised relates to the board's decision that claim five of the edits your cat is not anticipated by suter so different claim this one's got means plus function language and a different part reference  arms so similar but different plain language here because it's means to function and we are applying a different part reference suter uses a post to connect steps two fixed arms which are brackets eighteen on the boat and the board found that a post is not the same as a pair of arms so it analyze whether the suit or structure is an equivalent structure to what's required by the means plus function interpretation and in performing that analysis the board first carried by requiring in order to be in equivalent there must be that those are their words there must be in substantially different structure we believe and i think the case law makes it clear that that is only one of the three ways to prove equivalence not come back to this because there are three different ways we think we've proven it under at least one of the other ways and possibly to the second error that we see in the board's analysis is how it focused on specific component parts rather than the overall structure as described in the s so let me start with out of the manner in which the board applied the insubstantial insubstantial difference test shows that it focused in properly on individual structural components rather than the overall structure of the device as a whole and specifically the board said the petitioner has failed to establish the fission lead that a single movable arm which was the post in syria that flips down with that with the steps off of it is in substantially different from the structure described in the eight zero patent that's at the appendix page and if that's a substantial difference and the whole thing is substantial yes i think that excuse me i think the problem with that is relying upon elements are not in the claims the claims don't require a specific location for the connections or a specific manner of connection if you look at the claim language here what we're dealing with are means for coupling the board said it's move all arms and stationary arms and if we have those in an equivalent manner that meets it the fact that it may attach differently is not clear from places that you could point either to well i think the issue we have with that is we did make arguments about the function result that was the focus and the primary argument that we made and if the board disregarded that i think we're back to the same position that we started with on the first issue is if we've got evidence in there that explains exactly how the functionally result to line up and the board doesn't get that from the board in a dress your test when it expressly said that the post and the bracket wouldn't be enough because it would require additional structure to maintain the stability i mean whether they call that norway component or your result component the fact finding is still there and they've lined it up with the language of the test you then the expert says you'd have to have some sort of played on their depravity additional structural rigidity or support but the claims don't resize the specific size or shape of step and in fact they're broad in the specifications as any step of shape or size can be used and clearly the reference here discloses steps and it's more than sufficient for its size and shape step also the presumption of operability in that sense so i think that's one reason why you don't have to focus on that second well again you're looking at does because the board found its arms twenty and twenty three and those are located on opposite ends i think if the board had gone farther to say it's the arms twenty eight twenty b twenty six a twenty six b attached a certain manner absolutely but think about sort of the flip side of this for infringement purposes if you had arms the same type of arms twenty twenty six when you put him close together in the middle would that get you out of an infringement situation because they were located in a different location i don't think so because if you look at the claim and look at what's actually in the limitations they don't have any requirement for the spacing or anything like that so they try to read that in here to avoid in invalidity rulin i think is just completely improper you have to look at what's actually in the wording that they adopted and i don't see any requirement of limitation as to where the arms go how they're attached or any type of structural rigid that's required that the description in the sections are based in part by a reasonable difference and everything about this patent suggests that he wants to deliver to that standard to allow people to exit and enter the boat and so i think that your idea that you can replace two arms space in either side  are again it depends upon the size or the shape of the step you do not have to read into this that big flat wide platform that's in the patent and the steps in the par utterance are steps they do meet the requirements and again there's a you on the korea reference i want to buy a point if you look at them a korea pin cell which is on the appendix it three seventy eight that base if you determine that that pin is in fact a stationary arm then you've eliminated the requirement in the claims for a stationary arm i mean the claims require stationary arms that are couple to abase and movable arms that are then couple of to the stationary arms in this scenario the pivot pin is simply directly attaching the movable arm to the base there is no stationary arm and so the the board's opinion that that was merely a pivot or a fastener was correct but the fact that mcrae indicates that the pin supports the movable arm doesn't make it more than a fastener or hit you a pivot by definition has to support the thing that is pivoting on it a fastener by definition has to support the thing that it's fascinating so the fact that it supports it doesn't make it more than simply a pivot or a fast because it's weight bearing and that's not true of all pivots and so this one is every right and he is reading right with their i certainly didn't read that in any argument they present they didn't the only argument they presented indicate they did look at those pages of the argument they asked for argument on the issue and they cited to the pages that the argument appeared they say does not address how and i believe that's an actually is an arm and inter leskie it's not a stationary arm but it is something beyond a pivot point so i think when they're saying instead they're showing it in church less they're just indicating that they haven't shown how there's something other than a pivot in my career instead they're showing something other than a put it in turn leskie but they didn't rely on tool leskie for that point in their petition just want to make sure i've addressed everything i guess i would again emphasize that he's the petitioners indicating that there's this dual function of the fan in mukherjea and the the war did evaluate the korea they cited to the korea they evaluated evidence that the patent owner presented including an expert declaration brain which is at the appendix one nine hundred eighty six where he indicates this is nothing more than a pivot or fastening structure he indicated that in the with the patent owner response so this was something that could have been disputed through evidence on reply and was not first faulted the board for stating that the standard of first structural equivalence is in substantial differences and as i read you go dead extend the cases in substantial differences is the standard you can determine whether or not the differences are insubstantial in a number of different ways including with the modified re way result has or with interchangeability or in some other way that the differences were in if you look at the argument and the only argument that was submitted by the petitioner it was in their own reply it set appendix twenty eight seventeen they say and again this is the only evidence they presented on structural equivalence regardless suter structure is certainly equivalent structural equivalence under one twelve paragraph six is met when the differences are insubstantial so this is the argument that was presented in the reply in addition if you move on they then say both movable arms twenty eight and twenty b of the eight zero patent and post twenty four of suit or function to couple the staff and then they go on and the only analysis that they provide is a comparison between the movable arms twenty  twenty b and post twenty four so now they're asserting that the board was incorrect in referring to insubstantial differences even though that was the standard that they also focused on and they're objecting to the board's comparison of the movable arms to the post but that's the only evidence of any sort that they presented that's the only argument that they presented and as to all of the evidence here on the basis that those were relevant but they are relevant because the issue is whether or not the structure performs the function in the same way to achieve the same result in the testimony that we presented of mr green he pointed out that not only is the post attached on one side of the step as opposed to two arms on either end but that post pivotal attached which i think is important to understand it is not fixedly attached to the step the way that the movable arms are in the cobalt patent and because it's pivotal e attached t step actually can flip like when the post goes up the steps flips all the way down to where it's just laying vertically against the side of the post it's not extending out horizontally when the post and flips stand into the water the step clips as out but what stops it is not the post that it's attached to it's another post which unfortunately it's also referred to as opposed but it's post thirty which is a separate structure that extending under on the side of the step that's what stops it and then holds it out vertically it's completely separate from the vertical  post that is post twenty four of souter that they asserted was somehow equivalent so mr brain went through and said look it's it's it's not on the same exact position of the same place it's fixedly attached as opposed to pivot only attached and this results in a very different structure they didn't indicate that those differences were not substantial they didn't present  evidence contrary to that they didn't present an expert declaration in rebuttal at all they provided a tourney argument which focuses exclusively on functional equivalence not on structural equivalence so they didn't dispute any of the arguments that mr brain presented mr brain also then said and it's not interchangeable so first we address way and result is not the same way and result and then he says it's also not interchangeable because if someone was going to interchange the single post for the two then you would put it first ability under the center and you would need some kind of a plate that had nothing to do with the size of the stab it just has to do with the fact that the post would not provide stability or at least from my whether or not you you would decide to replace one and think one could replace the other is what he was saying was that you would need some kind of a support but the biggest issue i think here is that the had no presented a lot of evidence about why there was no structural equivalence the petitioner had the burden to present evidence and they presented nothing i mean these arguments are simply about functional equivalen and when you go over to the appendix twenty eighteen they simply say well the exact manner the steps are secure is immaterial because functionally the differences are insubstantial well that's not the test it's not about functionality for way in result or for structure it's about whether or not the structure is the same and they didn't address that they also said it wasn't relevant if it was  i think those were the only points that i wanted to make them listen to get some question that's directly in the create self i think the instead language from the board's decision shows they just missed some of the arguments and as we know from the security exchange commission there says cherry and five materials you have to value the decision  reference the structures do not have to be identical that's the whole point of the equivalence test if the structures had to be identical you would never get to the equivalence test we did present arguments about the function the way and the result that the two yes we provide evidence of that in the arguments we also addressed in the briefing so the if you get if you look at the board's decision it showed no analysis of that issue whatsoever so again we think it requires remained at least to distress that issue to