morning my name is scott rolen with me here today is my colleague amy folkman a counsel table may please the court i'm sure it's one thing is clear from the briefs of the parties here and that is that most of the issues in this case turn on what we can take to be the overbroad constructions of the planes one in ten by the board what i would like to do in in my brief time before you today is to provide to you three examples where those constructions result in impossibilities and also show why those constructions are improper while i do that the first two relate to the board's construction of the term canister as simply meaning container and a canister of certainly a type of container and the six forty device discloses a number of enclosures that could have been called containers to cover the central housing with a vacuum unit inside the housing that contains the valves or that which was a benefit in the construction of the term canis here why the other clean elements and the necessary features to the invention but not alter the starting point if you want to call it that of what that canister is just as a term has that these other features but that doesn't come from the meaning of the term but from the other claim that it has to have i think it does define the term in this way when  we look at the other intrinsic evidence that was before the board that includes hayden which was the principal prior art concert by the examiner haven describes what i think to be exactly  only to the anticipation issue not really it also applies to i've been not only anticipation basis but i've been will illustrate and i'll get to the moment why this construction is overly broad  three thirty three the conventional dust collector are operating through filtration consists of a cabinet essentially airtight and operating through its internal parts at sub atmospheric pressure created by a blower at the point where the clean air is discharged from the cabinet to free air that's how he describes the conventional dust collector thru filtration hayden and six forty are conventional dust collectors and the essence of any of these devices that would be understood by mechanical engineer practicing in this field is you have to have an airtight container when the air is a vacuum weighted that's what creates the vacuum this canister is the container is between the ambient air being brought in that spot dust and the blower which creates the vacuum by evacuating that air and hayden makes clear that's what's referred to here the specification further makes that clear because that's the function of this device however the board didn't adopt that construction instead it adopted a black and decker construction which essentially said a container that has filter and dust in it and that's what gave rise to the first of the problems that one of your definition of  asked the board through container neither side has for construction because and we didn't ask for construction because we didn't think it was necessary in this field in which every single vacuum filtration device has a canister to contain the spirit care has to exist that is what creates the vacuum we didn't feel like in this context it needed for the definition of it is but i would say if i was going to provide a construction to construction that it hayden provides is the conventional dust collector is what applies to us it applies to hainan frankly it applies to ivan as well i'm sorry i still don't understand the word canister what is your exact work on is the container the specification contains the sub atmospheric air it isn't just any container in a vacuum device it is that the container which creates the vacuum by the vacuum source evacuating the air from it it has it's the central part of any vacuum device and that's why he described it as it does which i think is as good a description as there is space so what say say it one more time what precisely do you think the construction should be i don't think i can say better than hayden does it's the  does functionally that this is a structural claim and we're trying to figure out what the use of the word can streams i i i don't understand you'd like me to fort from heat all of the functional all the functions the canister does into the definitely want of a structural element claim one defines the canister as having an inlet port in at least to  courts correct that excludes the other containers that are involved in the six forty patent it is the container that has the end look court and the outlook for well then why isn't that your argument why is your argument there's a problem with the word in the cabinet as hayden describes it or the canister as it's described in six forty is a canister and when coupled with the board's definition of van being air it leads to a result that can't be right the board described a being air outside of the canister and that's true because the canister is the enclosure in which the vacuum is created air outside is ambient air but when you look at hayden the board said that just the lower dirtier chamber was a located within the negative pressure and in fact the declaration by the black conductors expert specifically says that when hayden goes into backflush mode in the example of air it has to reach outside of its chamber it work it's an example of why that construction can't fit it's also perplexing to us because he can tell us whether the pressure is the same in the dirty room in the clean room it just describes it is also the atmosphere and it's also under the direct influence of the vacuum hayden says specifically that his entire cabinet can contain so that is very fair and black and decker concedes that the upper chamber is a negative pressure air and if you read the specification ha understanding that would be the understanding even if we can call engineer who how do we know it's an altered on we know we know it from also the context of both of these patents because these devices depend on ambient air to flush that air has to be a different pressure than the negative pressure air that's what releases the particles in both six forty and hated they both say we've got to reach outside of our devices outside of our canister to get that ambient air so the differential house that has multiple large chambers in it each chamber has filters that it has does and has a hopper on the bottom but rather than consistent with hayden saying that each of those compartments is a canister the board said that the whole amalgam the whole combination of all those compartments plus the hopper equals the canister it completely inconsistent construction in an application that's based on the fact that it was overly broad i would submit that the board got it right and i haven't because all those devices are the negative pressure chamber there i see that i'm into my rebuttal time i would like to reserve so that if you have more for the  interesting because we had originally actually proposed to the board below that ambient air was unforced or compressed air from outside the machine this definition of ambient air being anything that surrounds the canister actually was there definition in the board if you look at eleven said we were wrong and that ambient air should include air that's inside the machine in the air that can be of any particular pressure so what the board basically gave was their definition of an extremely broad that surrounds that canister and i actually think the words in a vacuum or those a little bit of a pun to it is a perfect choice for this case because that is what the container is it's the part of the vacuum that contains the things that you to taint which is the filters which is the dust if you read the claim it has three outlet ports or two or more all the cords it has an inlet port it has the filters that's why people call these things canister vacuums that's where the dust and stuff going and where the word container really came from was at the appendix a seven twenty there their counsel said what can we be certain of when we hear these names in that claim we hear canisters cabinets compartments well essentially they are all some kind of container it's exactly what he said to the board right in his opening statement before there were questions about any of the prior art i think that should end the debate there was a container is that their definition in the question of what ambient air is their definition the if you look at hayden in particular you can view the that dirty chamber alone has the right kind of container or  contain we want to contain the dark nobody if the air goes in or out the a we want to get to in the dirt and get out the clean air and that's what the filters are for so while many parts might actually be a container i guess you could point it sort of enclosure and s contains something the question is which one is the container that has the end report the filters in the outlet ports in the valves outside and that's what the claim requires and if you look at peyton it hasn't that port it has a bunch of filters number seven the plate nine on top of it and that those plates have holes in them that the filters connect to those of the outlet ports that is the container of the claim and the valve sits above not exactly the valve sit on top of the plate which is outside the container and that's all the claim that that's all the claim requires the claim does not say the valves actually have to say in the ambient air that requirement is found nowhere in the claim it's not even mentioned in the specification because the specification is silent as to well i should go back to putting in how one construes a b n air it silence about what the pressure of the air is inside the cover and some of these vacuums the exhaust can go inside the cover so that top part can be pressurized and be at high pressure sometimes they can eject the vacuum the high pressure right out of port so that the inside of the cover is not pressurized the specifications actually silent on that issue but with the board's interpretation of it being air is being any air at any  air even if the words in the ambient air appeared in the claim which they don't know i think this whole indian care issue a lot of these things matter much less to ivan because in that situation the valves are actually on the very outside of the housing in regard to hayden it's much less of an issue but no matter what haiti does draw on the ambient air from the outside the machine anyway it just happens to open the report in the wall and i think if we were to call the canister i think it's unusual to do claim construction about what a canister is while you're reading hayden because really the i think the proper exercise that should have been done is to read it in the context of the six forty patent and really the only part of the six forty patent that contains all those parts is the vacuum below but if you were to start excluding things that go above that like that then you start excluding the cover and that patent and we think that would be wrong so that would read out the disclosed embodiment the other term that was in dispute was pneumatic communication this is a little bit unusual because throughout the proceedings below the real dispute was new out of communication and i think somewhere along the line in this appeal the issues come a little bit more about the word connection and i think what they're trying to do is a part of structural requirements of the work connection there and we think that's wrong if you read the patent to look at the claim as a whole the word connection that they're using is really talking about a valid state meaning is it connected to this or is it connected to ambient air they're not talking about physical connections when they use that word in fact you can't use it is it your understanding that in order to be  guidance or collection something that defines a communication that enables transfer from point a to point b right i'm not sure i believe that the definition we offered was that communicate means you can transfer from one to the other pneumatic means it relates to the air but certainly when you deal with the other has to be some guidance for example it might not necessarily be what you classically call a connection of like a doctor or a pipe it could be something more large collection if you were to open that door there and open that door there and you know there's a breeze going through this room would in a sense and at those two doors and guide the airflow through you might not call it roma connection but some sort of collection or guides i would agree with that as was not required as opposed to not having something that could be called a connection at all sure i think that's really i think their connection their construction was right in the sense where this saying it's not limited to how you do it so for example with hayden that opera part that encircles the valves it collects all the air coming over out of those valves and directs it up into that vacuum source that is a connection it seals it from the outside world that really truly is in that sense it's a pneumatic communication because it keeps other ear from getting sucked up into the vacuum and i keep going to change the topic absolutely motivation to combine  so we did have a declaration from mr grant in terms of evidence on this issue in the reasons you combine well first of all if you look at the structures themselves they're extremely similar it's a baffle with which airflow strikes and yvonne has spent perhaps surveying somewhat different purposes extremely close purposes and what i would say is invite stachelberg they talk about that baffle it creates a circular airflow in the top part of the machine and as things come into it including liquid and particles those strike the baffle and they get directed down with the earth as a lower cyclonic velocity gone below so stachelberg was talking in a sense about a shop vac that might take up some water and particles if you're cleaning your workshop floor and had a spill you might have wood chips and water on there so it was knocking down particles and it showed you a way to keep the knot particles from going up in that high velocity area and what specifically did the board find and what evidence did it point to that say somebody would have them with i guess starting with hayden would have a motivation to say i have a problem here is a solution i can find in the sack will be or let's combine the appendix of twenty nine they talk about the trial record establishes that the dr baffle arrangement both the combination and challenge claims would allow particles to settle to the bottom of the canister in minimizing trainmen of particles and a proportion of the canister where air exits through the filters so if we step back for a often and that's part of the reason but to go on in addition hayden teaches a dust collector having an inlet on the side and filled as well in a canister therefore position is provided an adequate rationale for modify the air inlet and hayden's can't assume with the have less clogging of the filters and that's also part of the evidence that is cited in here that included the grants declaration which i believe is cited on page twenty eight and a lot of the arguments are addressed there in that section in the rationale is if you can prevent things from getting to the filter in the first place you just have to clean it less often and that's the argument that was presented below and a lot of that aside and here and that's their rush now which are findings of fa you i do want to address the court's questions about pneumatic communication because that i think is has been something of a red herring in this appeal and even below pneumatic communication is a requirement of the claims but christie has the issue here is how does that pneumatic communication exist and what the board did was it it did not look at the specification and the the prosecution history of the cave leading to the words in  claims connected to or if those were were mutually consistent and there was no independent meaning for connected to it was no reason for the six forty pattern to who after it requires pneumatic communication to require that the valves and filters are connected to said vacuum which it does require different words are used for different meanings and here the meaning is crystal clear in the specification for that one of the best examples of that is is when one looks at the operation of the valves in the six party patent where it says on page two a one when reciprocal port of each of the valves is connected to a vacuum source and the other reciprocal part of each valve is a pneumatic communication with ambient air the metaphor the council use of opening the doors i agree that that's pneumatic communication and that's what happens with the ambient air and six forty because the valves are disposed in ambient air however if i want you see say that when the board said doesn't have to be a duct that the board was simultaneously saying there doesn't have to be any kind of structure that provide sufficient enclosures like your hallway no i think it excluded that possibility i think in this case a physical connection is specifically required and that's our point the construction that says that what isn't required we think is an accurate our device was distinguished from prior art and also because we said that nelson doesn't have the claim connection of cancun it's in that the vacuum in article ice is directly connected by duct work that's what the connected to means here and most importantly if there isn't a physical connection an art of vice art of ice cannot function our device unlike hayden has the valves disposed outside of the pressure canister the only way that access can be had to a vacu ours requires that our valves not be located in negative pressure that's clear looking at these two patterns and so parsing the words canister in an overly broad way calling negative pressure air ambient air leads to an