well i just want to say our primary position is that the court should remain in this case in order for the board to provide a reasoned decision and i thank you not for going so far as to make the crazy argument which  decision was incorrect and in fact that the one twelve issue that the board decided and the limitation that it focused on with respect to the other claims is not present in claims twenty six to twenty nine there are four independent associated with them at all one is the forty two point one twenty one b issue where the regulation specifically says there is a production burden on the patent owner to show support in the specification for the claims that's unaffected by which is a persuasion decision here we had notice and comment rule making it puts production burden on to cater to katie didn't carry that burden here by just string citing paragraphs to the specification and this court in b that says that that's what has to be done and on the ultimate section one twelve issue that is the state of the law now under aqua on whether or not prescription has been satisfied that doesn't affect the production burden initially under board said out of regulation about what is necessary to me that they did something if not that they did nothing i don't know that what you're saying doesn't meet that burden and why in the world but i do that in the first instance on appeal under be e tec the this this court construed in the context of twenty six twenty nine and where is that claim construction offered in the context of twenty six to twenty nine it should be in the context of what the what the claim itself recites which is the method of antagonizing the receptors so the effect of amount is with regard to it was that offered and that was with respect to think twenty six to twenty nine citation in the record but it was dr bernstein's testimony were prepared to that particular issue and that's different from claim seventeen which requires or has a preamble that state clinical limitations treating certain specified conditions and in those in that instance the board ruled that the institution decision that that mattered asked what effect of a mountain that following institution did you request rehearing percent to thirty seven c f r forty two point seven one to challenge the p t s claim for construction of effect of amount we did not request rehearing your honor then why should we simply adopt  p tabs and contest claimed instruction because of the different context of claims twenty six to twenty nine versus claim seventeen means that the claim term effect of amount in twenty six to twenty nine is according to different meaning this is very similar to the was given two different constructions in those different claims that's what we have here claim seventeen effect of i'm out is what is in a claim with these recitations these clinical conditions those are not present there are twenty six to twenty n some construction as you know involves underlying questions of fact you're talking about an expert declaration that helps support the idea of how it ought to be construed all of that is to finding that expert declaration would require fact finding by us appellate courts don't do ways you think this case could have been affirmed most of them involve questions of fact that you would have had to have us decide on appeal in the first instance that can't be squared with committee the one twelve issues have fact issues associated with them but the declaration and i can't find that's frustrating where is it i don't believe it's in the in the appellate record your honor the findings of the people have are not contested on appeal here those claims the anticipation of those claims was not taken up by to create a so those are now those are not facts that are found that are undisputed in the record because there's been no appeal here that's not something whether here or on remain and could be making bad arguments it's just that we just don't do this on appeal oh i just don't want you to think that my having been firm we sue means you have a clear losing case you just can't ask us to do this kind of stuff on appeal that's pending here prosecution of that application has been suspended as a result of this appeal so there is a lot of interplay both in the commercial world and in that reissue application with the issues here our view is that these issues are clear enough