terms of the standard of review and as we mentioned in our brief it's our position that the proper standard of review in terms of reviewing the patent offices claim construction should be dane of and not a reasonable standard standard due to the claim construction offered by the patent office to me as you know i've i've apologized for kind of jumping in here on you and going to a particular area of interest that the concerns ear a waiver problem here with respect to arguments you're making room clean thirteen dead shot i don't believe so basically because there's no dispute there's no question the fact that that issue was raised in the blue briefing it was before the p in terms of what the meaning of the term senate conduct a process tool is the patent office said that wasn't part of the question and they repeat that in their reverie in terms of the particular evidence i cite all the for the most part all the that specific argument was not made to his purpose but i doubt there there's no dispute about that fact first of all and second of all it just gives an indication that there's repeated mention of hydra florida acid in the record there's the other patents and the patent application that are part of the record and that were before the examiner now this particular point that i make here is not in the record but again the point goes to the fact that the not a semiconductor process tool and we're trying to do is give the court some perspective in terms of the extreme to which the examiner and the board have construed the term tank in plain thirteen without the traditional language of semiconductor process tool when you agreed did you not use course of the proceedings before the board that the bath tub was attained right judge david i think what was conveyed was an agreement in our un though basically that even assuming that a bath tub can be a tank examiner stovall and what's important here is in terms of when you look at the examinations  it more narrowly in the light of this classification when it's written so broadly i'd judge i don't think i said an either or proposition right the point of claims instruction is to read the claims are as is understood in the context of  water and salt water within that claim limitation on the face of ott on the face of it they are to compound salt and sugar water to prise two compounds in the context of this invention which is talking with talking about processing tools but there is no specific language in play one it is in claim thirteen but again that the claim has to be construed with in the context of the corner four corners of this patent application this contest because there is nothing in the specification that gives you any sense that this invention is directed to anything other than being used in an industrial park context or setting focus on the examiners rejections based on two specific pieces of prior art the examiner had taken the interpretation that the term pain which he reads out of claim one so we have to claim turner's claim thirteen for that so if you turn t zero two in the appendix the examiner basically construed the term tank to be any container that can hold a liquid and that with respect it's not a proper perpetration of the term pain in this context basically the examiner says quote a semiconductor material could be mixed with other materials there in no person of ordinary skill in the art says there is the tank can be part of a process tool such that the blender system provides a chemical solution directly with a process that includes the law the process tool can be any conventional or other suitable judge first that semiconductor process so that was the point of citing to some of these other references that are in the record with me jumping about someone skill in the arts understanding of either of those terms hardly judge i what did you put in the record about the skilled person's understanding of either of those two  we judge that we never put anything specifically because the examiner refused to address the semiconductor process terms limitation of claims thirteen so we've never even have not opportunity to address that no put in the examiner is not going to change its position the basically the examiner right claim thirteen ad not including a semiconductor process till now based on the plain language of the terms and we respectfully disagree the semiconductor process tool is essentially a very broad term that describes how the invention is supposed to function its functional language and mr card has never put in any evidence or presented any  saying that piece i mean i'm looking at claim thirteen and a semiconductor process tool including the patent so the board's view is that the tank is a structure limitation but the words preceding it is functional is that i'm just trying to understand i'm not trying to trick you bravely i think the board probably had so little evidence or argument put before that i think the board probably tried to do it from both perspectives and the board said ok if this is a functional limitation here i'm sorry if this is a structural limitation for us was what is the structure that mr urquhart is claiming actually makes this semiconductor process too and actually distinguishes them from the prior art and there is nothing in the record that the board had to go on number two number two if you look at it from a functional perspective in the board that ok if mr card is saying that the semiconductor process does and mr card never made any arguments or put in any evidence to support that either so at the end of the day i think the board was more or less covering all that faces but the record was so thin we agree that the semiconductor process still is a part of the claim we're certainly not trying to read it out it is part of the claim all we're saying is that this is a record it's never told that it's it's a very broad way and mr carr has never told us exactly what that means and effectively there's nothing to distinguish that from any garden variety takes that was in the prior art i mean would you say is that there's no there's nothing in the record indicating what attributes a tank that is part of the semiconductor process tool would have to have as distinct from the attributes of that septic i think that that is that picked up the tape we probably had the same five but when you look at the record that mr karr created i think the the art of the examiners cited was entirely appropriate these are very basic terms they're very broad there is essentially qualified by a lot of functional language in his office actually respond to that in his appeal before the board he didn't expand on it any more and so at the end of the day what we're trying to do in the agency is to get claims is specific and clear as they are and with claims that broad inevitably you're going to ensnare a lot of hard for a lot of other fields and and i think position that this material law it might have been a good argument to make before the board was not made or is your position that even assuming it's a good argument doesn't carry the day or assuming it's a timely argument it doesn't carry the day i think that certainly would have been plausible argument a plausible argument for the board to consider certainly for the examiner to consider it as these arguments had ever been made before the agency but it does point that this is really water under under the bridge and the court's role is to review the record that the board had before it in the decisions that the the decision that the board made given what whether it would have been any different but yes it certainly would have been a plausible argument to make but it wasn't it was never made this is the first time that this is appearing is in the gray breeze the board comes through this phrase semiconductor process so i think the what the but the board said was that it is a it is any tool that in the broad sense in a broad sense is capable of performing some sort of process with argument that was never in the record a vast could be made out of all kinds of different cereals and standing here today i don't think we necessarily know whether there's a particular bathtub out there that could or could not be used all things that mr card couldn't hold the agency about the reason we have the broadest reasonable interpretation rule is that the agency has to have that back and forth with the applicant the applicant has the semiconductor process to know i don't know the ending here how many there are i think there probably are quite a few but again i think given the breadth of the claims that the type of art here was appropriate for  the mission for purposes of fun well i think the board had to goods or credit his word and he said that it is office actually response and if it's certainly if he felt that wasn't true i assume he would have said so but but he didn't so i think that was certainly fair for the board to those at him to take that into consideration given in response to i think a question just dies then asked if there's any construction of the term send the conductor process think that that's what the board's interpretation was and i think they came to that interpretation because if you did that claim language largely it's functional and since it was functional the question becomes well could the prior art is it is it capable or the tank that works with does work on a semiconductor is going to have to have certain characteristics different from that  forward with some sort of evidence or argument to show that the priority would be incapable performing the same function namely the bath tub and proving to all that's right i guess it was a work warner was the printing pipes right and the reason it was mr card's burden is that the piece to the patent and trademark office does not have the ability to perform an experiment and to figure that out and so it's up to the applicant to actually put that evidence in the record and to actually tell us whether it whether it's possible again if if mr card had done that here at the board in the examiner that had an opportunity to consider it it may have been a different story but argue that that's also true as well i don't see any any way that this case would come out differently regardless of the standard applied like there any arguments in the materials in the contentions that are dances thirty five through thirty six of the grade three had been made previously we might have a different case here what do you i think i heard him say that  semiconductor system that includes a way for a cleaning cleaning station for example or a dig ladies station now if the exam are to come back to mr carter and prosecution and said well i believe the bathtub is a this is the same as one of those tools we might have had a different argument but that's not what the exam the presented examiner told us our prosecution that that's left that claim term is non limiting and that's the key distinction here your honor and and really what the board did is when when you look at their opinion and a seven and eight is that the board concluded that because there was an admission or possibly the mission that a bath have to take that and the book does seem to be some construction says what is required as a tool to move being used to carry out a process involving a semiconductor the two most include a tank and that seems to be a construction of semiconductor process to judge charlotte to continue the board says that there is agreement that claim thirteen requires quote a tank and that's where we disagree we don't agree that claim thirteen just simply requires a with respect judge prose there was no need to because it's understood that term is understood in the art and i think stepping back to that you know when you look at the prosecution in this is in this case i will grant that it may not have been the best but the point is i think there was some frustration on both sides when you write an application such as this where you were in your minds you believe you are directing it to semiconductor processing tool high tech industry and the rejection that you're faced with is disputed what the scope of semiconductor process tool is if there was some dispute as to what that meant we would've been able to argue and explain why a batch of ceramic bath tub is not considered a semi