at least a quarter of like you dress three issues claim construction violation of the administrate procedure act and the board's wrong standard for a motion to amend there's also the issue of the lack of standing for the pharma kosmos pros described as prefer iron carbohydrate complex and we were repeatedly warned against confining claims to a preferred in the body phillips for example why isn't that an improper attempt to limit your brother's reasonable interpretation the text of fish ban as a word is set out there in lines forty seven fifty nine case of fish claim says quote the risk of immediate severe and of blackboard reactions appears to be at a minimum approximately zero point six percent with intervene is iron dexter you're not putting in your view the reference goes on to recognise even higher rates of one point eight and one point seven percent showing up in patient populations right given given to the that a minimum language in the higher incidence rates disclosed how does this mean itself support your argument that the incidence rate should be lower than point six percent when he actually had  what whatever the risk is whatever that the risk that's a number and the board declined to give us a number whatever the risk is it's a numerical value it's a number what that what you that number be ought to be zero point six percent   pain is talking about a large population this pain is got a lot of people the other features there in fish they have to look particular populations if we're talking about just here the broadest reasonable construction ought to be zero point six percent i can say one of the those have to do with other populations not not the whole population if you look at what fishman is doing broadly the screen is talking about a big population zero point six percent  e other studies also have a similar number zero point six percent or zero point seven percent  if you're trying to show that it's lower than iron dex tran you're trying to evaluate one thing compared to something else then if iron produces it in zero point six percent folks if you're if you're higher than that then you're not lower than lower deck or you're not lower than i to well you might get a little bit of that out of what is it a common one reference to  the conflicts that includes the carbohydrate as a component don't cure the board's error and relying on the new ground in the final written decision the petition the brahma cosmos petition offered to alternative constructions of iron poly ice product that is true that there is nothing that we see that specifically is directed to the component itself but the teaching of the patent it is very clear that the concern is with respect to reactions to the component based upon prior i think that the petitioner and the board thankfully recognize that that was a possibility and made care to make sure that the burden if the burden changed which it did that that was recognized and the opinion  not only recognizes it but the two foot notes that were discussed earlier but with detailed analysis as to why that burden was met so that we we feel that sufficient evidence in the opinions themselves that the burden was properly allocated  is a question of law it requires details regarding which portion of the reference is being cited for what proposition and that's not the case here it here if there's no details in the specification only the full cite that there's no discussion as far as why it's being cited for this point six as opposed to some other relevant number that your honor said at first were asked about earlier today but even if you find as a matter of law that's a corporator by reference that doesn't help the revolt doesn't help them for two reasons one as the court has recognized the fish being does this close other numbers that the argument that point six percent is associated with the population at large we think is simply incorrect that the reference says that point six is likewise listed in that same passage and that's the landry reference that the p t also recognised and that reference discloses rates of four point seven to forty three percent so the numbers are all over the place that there's no reason to pick and choose point six with respect to the issue of notice i also wanted to add that the alternative claim construction proposed by former cosmos and which was cited too by the board is also consistent with if we polled we should be if they're aware that at least my version of the joint and it  record and understood by by the bo of other patent rights which have substantially similar claim elements including this fifteen minutes or less playing a limited issue would create a reasonable apprehension on the part of far because most that it will be sued if you're obviously i think it's important to recognize that i know i'm running out of time rapidly but every d j plaintiff is in the position that they believe that their product does not infringe the patents otherwise they wouldn't be in court  the prosecution history overlooking appendix thirty one thirty three the lawrence declaration paragraph seven of which compares modifier to the compares of recites this plain language and compares with a model for the complex not the not of carbohydrates alone on on notice it's the board that's required to provide notice to luke fold as you can after the fact say oh well well you should have you were two alternatives the five presented by the petitioner there was a proper clean construction of what they called an alternative plan construction if you the board adopt a small turn of events these consequences flow the board didn't adopt that constitute a reasonable view as well that the consequence didn't toal allow the board to do what they're doing here is to say the board can not provide any notice to the patent and then down the road down the road or open things up it's all well now it's now here's an here's a new thing here's an here's a new rationale here's a new theory so we can work here said we determined that if the institution stage that note slips of construction of any other plane there is to determine whether to institute a trial in this case so your view is that the a for their for close notwithstanding any discussion and opportunity responses they just foreclose from doing any claim construction because they said that no explicit consent was necessary so argue that they cannot later on then in light of that and likely giving us the impression that that alternative argument about whether roman disclosed a different species the multiple pieces that argument was off the table that argument wasn't wasn't available that argument wasn't being preached in the and so when i was instituted that was an issue that we were we were faced with if the board and clearly the judge didn't realize that the judge who wrote the opinion he didn't realize that was what was going on until later on if he didn't know what was going on heaven help us the people or certainly did know what was going on and