surface this construction is supported by the weight of the intrinsic record which makes clear that active particles are surface active adsorb and with the d particles however the board's constructionis a variety of different mechanisms and are not merely particles that adsorb or trap substances on their surface the boards construction crack of particles is incorrect for a number of reasons first from the sentence chosen in the specification the board showed its definition a sentence from column for starting at line six in the pattern that's appendix page sixty five  clear reversible error even assuming again that he was trying to define the term in the specification to the extent that this body determines that and then or was actually defining that term i would submit that the definition at least has to correspond to what the inventor actually set what the inventor actually said is that active particles are surface active particles not just any particles but surface active and the board's definition is also disconnected from the weight of the evidence in this case which repeatedly makes clear that in this case and and the rest of the records act or particles are surface active particles they work by the active particle they talk about active particles and active particles would include abs or sion as well as adsorption that's a great question runner if you look starting in column for line four where the paragraph starts and i'll quote the specification says these particles may provide such properties because they are active that is the surface of these particles right i know your honor respectfully as we explain in our papers and our expert testimony cited there and a person of ordinary school in new york would understand that when it references these compounds that consistent with our expert testimony that that active in this context means activation it means processing a substance which he and other chemicals to generate the hyper hasta the need so for example carbon is the perfect sample or just plain carbon is not an active particle it has to be processed and has to be activated and so we submit your honor that and this happens because it's infused with a discussion of surface action  adsorption active particles here have to be processed have to be made active and so to answer your question your honor and respect some of these other compounds a person of ordinary skilled understands that that's referring to an activated version of you're talking about a question of fact i think the underlying issue here is that the clean construction of active particles is incorrect and so what a minimum decision should be remanded if not reversed so that the board can apply the gridley please the court peter gridley for outdoor c your honor these inventions have been known in the prior art for years at least ten years before the patent suit was applied thickness and nd thickness regarding active particles come to seek to modify the term with the word surface which appears in the specification but the specification is not so narrow it describes active particles substances at that point it's hard for me to predict what the board would have done in that case because that wasn't the issue in front of them but i would agree with you that the argument may hold more weight if the claimed term was actually surface active particles but it wasn't it was broader it was active particles and i would also note that the passage that council relies on  for it says the surface of these particles be active so it doesn't require the surface to be active it just says they may be active i have answered your question are and again the issue here is what is the broadest reasonable interpretation in light of the specification and the specification described active particles in terms of their functional properties which includes moisture management u v protection chemical protection and also described active particles as having a number of mechanisms that action including the motor abs or push and light absorption and your hon r limitation is met when there are no active particles present whatsoever so a person of ordinary skill in the i'm sorry your honor i didn't i didn't hear that part don't claim thirty eight and thirty nine suggest that the active particles have to meet him right and that for example are already met in examples twelve and three those are the test cases where the active particles are added and in this case that's the black pearls and that shows an improvement over control from right and so the argument the argument we are advancing is that if you and capsulated these particles and then removed the capsule and correct and i think that's open ended it could be it could be some time and it could be all have these claim limitations would be met when the particles are encapsulated but that's not what claims thirty eight and thirty nine are directed to they are they are directed to particles that are encapsul d and they have the capability to meet that and b t r limitation when the removable and capsule and is removed to reactivate at least a portion of the active particles so it really speaks to future actions these particles are in fact encapsulated but the measurement is not done until that in capsule into this room is so what you're measuring  encapsulated particles and that's where i think the board got it wrong is that they were suggesting that the particles actually had to be capsulated in order to achieve the seventy two hour limitation and that's just that's consistent with the specifications that the in v t r of underlying claim twenty seven was ever met and claim twenty seven dollars is the independent and would it be met if you had removed all lot and made the measurement after that removal i don't think there is evidence and a record to show that your honor because what they failed to show and what the board identified in its papers and during the hearing was that they're simply not evidence in the record showing that the combination would result in the claim branch i understand what a titian is focusing on the tables and halley but that's not the end of the  correct question is what is the in the t r when the hack was to particles are substituted into halley hacked was particles are different than hamleys particles and there's simply no evidence showing how that works there's no evidence showing that the in v t r of claim twenty seven isn't that and there's no evidence showing what happens when those particles are further in capsulated and then  anything further  i did yes run on one quick point i did want to circle back and and agree with some of the comments i believe you were making earlier the active particles including twenty seven have to contribute to the moisture vapor transmission rate it's not just the rate of a sheet or layer of plastic or other material but the act of particles and their surface activity it's responsible for the improved  portion of the capsule and excuse me where the at least a portion of the active particles would be improved it says at least a portion so that so i read that as meaning it can be at least a portion or could be the entire portion of the particles could be reactivated to improve the the composition the issue we have with the board's  ruling on these claims is that it was an improper claim construction they required that in capsule and to be present at all times including  the the measurement of the m d t r and we think that's just incorrect based on the specification this this claim and the specification speaks to encapsulated particles that would have the ability to