argument that if you put aside the self tuning column that the other mentions of scanning our aid to see whether it's seas included or not the plain language hit perfectly normal alternative to say we search from one something that doesn't require you to continue to the end that is if you can find the thing you're looking for along  movie that i watched quite a while ago while you're watching a movie the files are being used repeatedly but once you stop watching a movie they're not used at all these piles of the potential to get stuck in the cash for very long time of the least at least recent and most frequent and least frequent reddit i certainly would agree that taking those terms as a matter of plain language there may not in fact be such a individual file that's correct here and so if that's right then that happened somehow has to provide in the spec presumably some information about how it is that you take these two properties which need not coincide and give meaning to the in such a way that it's possible to identify a file that falls within this oddly put since the computer was st came out of the box or since yesterday or in the last hour why isn't that a part of the process of defining a key term of the claim i don't think the tuning function relates at all to defining the phrase these frequently used in these and these recently so you want to say you know if if the movie has not been viewed in the last twenty four hours get rid of it because we don't really think that that's a meaningful most frequent thing anymore but why isn't that one way of defining it's odd that will characteristic claim to it i just don't see is specifically come out and state it was wrong or inappropriate to use a small cache but that's the absence of disclosure is not  the claims expressly require frequency factors indicating how often each of the corresponding files are all requested by the operating system the board is true the frequency factors limitations so broadly that these factors do not indicate how it's been requested they bear no really no discernable relationship to the frequency of file requests we show this in the example on page twenty one of our opening brief and in that example with the so called frequency factor is based  r the file size to the number of times the file has been accessed to get your resulting number that resolving number simply doesn't bear any relationship to the frequency of access it's the frequency numbers lost in overwhelming size of the file size so we don't believe that the board construction can be reconciled with the language of the claims the phishers argue that the specification mandates a broader construction than the plain meaning of the petitioner str paid for that this court distinguished levels and in both tore far versus ranbaxy and again and woods versus the engine and in these cases this court explain the levels and merely hold limitations added to overcome rejection cannot be immaterial brief a page twenty concedes that they didn't object to this testimony before the board they could have done so in their motion for observations they could have done so if you are here in this court does not reverse the board on the grounds that were not put to the board in the st place even and we agreed with lawsuits are you aware of not to my understanding judge moore i can check on that and follow up with the court but to answer the question i don't see the court needs to decide more than it should decide for purposes of this people and for this appeal the point below the only argument that the board heard was that they thought burton was insufficient because it didn't go all the way to the m r u there was no suggestion that the direction was wrong they point in their reply brief simply to a couple of demonstratives but those were not discuss ordinary and customary meaning urban itself uses that term repeatedly throughout its specification saying that its variable u l r u range indicates both the time of last access which is recent for recency and the number of accesses which is curious procedural posture of this is that the board found that burton disclosed frequency factors even under i v s construction did not make such a finding as to correct lead in the pine on that but we think the construction is correct in any event is the frequency factors get documented over time that's how you deal with aging out the files that are no longer needed and at that point obviously the frequency factor cannot be a rock count the number of times if i was accessed your ability to talk without breaths or break this is really attention i may be forced to race through as well there are several points i would like to raise st i believe it counsels principle argument on burden is that earth does not teach away from using a small number of walks in the cash files of the m r u and which is contrary to the teachings of i did also want to address the waiver argument that was what was raised with respect to the directionality of the scanning this court case law decision and then in its final written decision in addition his counsel mentioned we did present the argument in our slides at an oral argument below we did not have an opportunity to get to that so we feel we are entitled to argue in response to that new argument that burden does not in fact disclose the claim direction and we would say chamberlain versus one world very recent case from the score in support of that  that had he been asked the expert would have would have stated certain things that should have been in the petition there's no reason why that shift and delayed until