of the strict court proceeding involving this six seven zero patent going off to seeking hundreds of millions of dollars in damages and you've seen the design here it's a piece of insulation material swath of it it was taken photograph poured in reviewing this slide the wrong legal standard we're here to ask you to reconsider review and reverse their determination based on the claim construction they applied both the second time in the third time because they construction already have because there were seven grounds considered and based on this record rather than go back and do this again we feel that the record sufficiently ample for this court to rule on this record on the grounds that were found as we sit today you're not asking us on page twenty two the blue brief you make an argument that certain pyaar anticipates quote were no verbal claim for instruction is needed but in the very next paragraph you state that overt detail of verbal klein we are saying that that as the appropriate way to go but we're not sure where you're going in upon this we either way you know overall construction or the verbal construction it was initially found where it says such as running cream either of those constructions would be appropriate we made  arguments in the second session with respect to the two both grounds position number two grounds one and two and grounds three and four we argued in the first instance for the national construction with respect with the court verbal construction if you determine it's not necessary there are sufficient evidence on this record for mr bines testimony and the board's findings with respect to its initial decision in addition to the observation one can make as an ordinary observer or as an order is mine that the browning cream is present all the other elements are present so that on this record whether you use no can verbal construction or that first verbal construction or in the second verbal construction which is including brown limit it not just to this world but only swirls of this particular browser which is what i read the board is this concluding but it's there anything that anticipates that i didn't see anything in the record that looked like this i saw things that were amplified it actually turned it into a much more detail claim construction put it added other elements which is one of our due process elements in the final written decision they added to that swirl pattern be added additional aspects to it they said the claim design is embodied not in color alone but in the interplay and contrast in nature of the distinct colors and it is that why they find this picture to the right anticipating yes they said they said i don't i mean if that's the case let's assume we don't disagree with a claim construction it doesn't anticipate that we are some of us gets me about this i do what's being asserted in the district or what what products are being in french because if we give the board claim construction or if we ferment it's a very narrow claim construction it is this particular swell pattern with this particular constellation of brown and creams yes i mean i don't see any how i mean unless you've exactly copied does i don't see how anything else in french is because they they stop themselves with a very narrow claim construction to get this patent held valid and it's really going to matter for inference i completely agree that your honor it's extremely narrow can claim construction and that would be the outcome but when you look at  the questions how do you apply that to millions and millions of pounds of insulation and you find some subsection we think it's an impossible task but it's going to take your two from the group to go through the process which is why we file these i p r is because that construction  broadest reason construction here it's a different standard district court the broadest reason construction here is not to add these additional limitations in the fall rap and the prosecution and between the parties there was no dispute that insulation material cloud like  etc the variation of swirl pattern these general terms were appropriate descriptions and part of a of a of a claim construction and then the final written decision after we had reached everything in or get everything in both i under that happen else s i don't understand i mean price reasonable construction in these design patterns seems to be something different than utility because even if we throw out their claim construction if we have this picture which is sometimes we don't have a claim construction patent doesn't look like what you have on the right so i don't see what even without a claim construction by the stop on the right one and his unless you get a plane construction that says what matters is only the pro do not seem to see it we do not see the same distinct contrasts between the colors and use as the proper thing construction requires so now they're talking about the variation of of three patterns the same house have a distinct contrast sounds stupid but this is what design patterns are they've added more detail to decline construction and if we think that claim construction is the correct wine and we send it back because you didn't have the opportunity to do to respond to it they're just going to hold up this picture and say they don't look like each other well under the proper construct when you read the follow up with the distinction was made between distinction a variation of distinct let's assume we agree that the last line construction that not overturning the claim construction which is what i ask you if we agree that the board's more detail claim construction what you call the third one is is correct or at least not reversible in what anticipates and this record the jam references  court as far as any at actual claim they make are in french i mean are they serving it against the picture on the right of your product is it they are they certainly certainly don't and french i mean you can in fr came out with this design it was pretty widely adopted by new bike several competitors including j m that didn't do this myself me well it was if there was adopted them why didn't they give us that as i mean why isn't that in the record i mean i mean you can buy it you can find it to this picture was a pretty narrow one claim construction and the board said to be pretty close to this brown and cream doesn't it can't be brown and white yes your honor and that was a that actually did very well  terms of the validity issue here about several issues of anticipation were addressed during my opponent's argument those are factual questions that the board answered here in cannot favor and ultimately those will be factual questions that a jury and the district court will need to answer about whether or your honor can't think of a case offhand that had a color photograph but i think it's very common in the design law that the claimants is always limited to the drawing itself i mean i'm trying to say that was my question yes your honor so you don't know me i don't have a specific example with a color photograph mayor so if we had a different colored swirl picture that's a prior art that's pretty close to this but it just wasn't brown or crane why would it just be obvious to use different colors yes your honor so the board did not find that reference to be present anywhere but to answer your eye pathetic all that's something that can often address with it's evidence none of the grounds were found to meet that but we presented evidence before the board about why that would have been an obvious about why the there would have been no motivation first of all do that we presented expert testimony regarding why brown was not seen as a  desirable color at the time of the invention here it has since become much more popular with the illogical movement of brown and green are now seen as positive colors whereas at the time they weren't that so that's one reason and as well it's just that they are teaching away from that with the fact that in a prior art most companies dyed their insulation to be bright colors very common knowledge would be or owens corning that dyes their insulation pink that was kind of the standard in the art and so using this natural brown swirled pattern was contrary to that that w what we believe j m is seeking to do what they what they sought to do in the i p r and here is to ask the board now this court to go with a verbal claim construction that gets away from the they want to go with a very basic elements that's very broad and that ignores that asked the warden out of court to ignore the photographs and then just look at this sterile list of elements but that's that's inappropriate in this context particularly with the complex photograph that we have here and that's why the board's verbalization was appropriate to reference the colors in the photograph and use that as the touchstone because as this court explained in egyptian goddess alternately the photograph is always the touchstone of what the claim is even if that claim case going with j m s approach of taking the color out of the claim to getting away from the colored photograph can result in absurd thing some of the grounds that they that they put forward in terms of the pink insulation supposedly anticipating when asked about that their expert agreed that the clink instruction he advanced in jam advance would have covered a piece of insulation that was green with red poke about although he then admitted after that that was something he would have care to have any of his peers  review and a journal article well that would meet the swirly and cloud like limitations he'd well that's correct your honor because in j m s view again they want to get away from the photograph what shown and they saw when they list the claim elements of cloud like appearance and swirl pattern of knobs view as those are the swirl shown in the photograph but in j m s view they say once you enunciate those all insulation based on the prosecution history a statement that the examiner made in the prosecution is true that walk that j m did in fact possess and have knowledge of these pressures all along if it agrees that they were in the possession of its employee and that employee had those possessions particular this is mr mota acting within the scope of his employment he testified that he saved them so he can discuss them with customers and he was expected to do so by those that j m this is on his testimony and cross examination at appendix thirty nine sixty six the board however fifteen says what could j m reasonably have raised in this proceeding but the board instead myopically just focused on well what could a hypothetical third party searcher have found well that's not the case here this isn't a case where j m had to go off and find these references they were in james possession and their employee had them and knew about them but there were lots of employees lots of documents in this particular individual was working in a different division  i thank you for the clarification i would agree that that's not in a legal a proper it standard but that's not what we're asking for here we're not asking for the knowledge of every employee to be imputed just the knowledge of employees who are acting within their authority and the scope of their employment the things that they know about as because of their job responsibilities those are petered out or just normal agency law that applies across the board pattern on otherwise to corporations and that in this case those requirements are met for mr mot e the board found in a fire incision using its clean construction that the sound proofing insulation apply material appears like the claim designed to reasonably have a cloud like appearance wait where's the picture  with respect to this issue was there was no brown cream you don't you haven't shown us brown cream and so in the second i p r we put in this reference and then it being a different exhibit number one thousand eight and we said this reference in connection with the jam brochures gives you the variations will pattern and the cloud like appearance which you found in soundproofing already as a as a primary is a rose a reference you already made those findings and now you have brown cream we would submit that at least there should be room and really should be reversal based on that