but we'll see limited or or must not include skin and i think we can begin by looking at what is this invention these are really you have really two different points right there was a disclaimer of skin generally yes and then there was a invention uses functional cells they're placed on a polymer and then they're grown it's implant respect also talked about skin though right yes it does you know and therefore an object of invention was actually included in the specification and i think that you might more consider a classic prosecution history disclaimer because the the african started thinking skin could be an organ of the invention what i think is important is that tried to actually express the claim none scheme they tried to actually expressly have their claims that skin wouldn't be an organ wouldn't be something that was within the scope of the claims and the examiner did not allow them to do so why doesn't that undercut your disclaimer at absolutely and i think what that is is the examiner wasn't looking at how it was characterized how skin was characterize skin is distinguished from organs and if you look at the specification where they referred to there's quotes around the organ when it refers to skin and they're different because that's because there are that there is best filler a skin correct there is vascular skin i think but the but the issue at that point in time was organs as opposed to skin they said that the prior art was good for making skin as opposed to organs and so i think the examiner didn't recognize that there is a distinction in the specification although skin is an organ and we don't dispute that but the fact is that it has differences and that was what allows the applicants to distinguish skin over other organs and so bone to your point judge there is a basis to say that skin is not an organ of invention why wouldn't it be just a helpful organizing principle of understanding everything that happened prosecution history is every time they were africans were from disk and they were really referring to the everything that happened in the prosecution history one possible way to achieve that would be that in context what the africans were talking about when they were talking about skin everything they were trying to overcome possibly there is every time they talked about skin and it was about the skin the skin acquittal it's the prior art makes skin equivalence as opposed to our invention which is organs and when you keep saying every time i mean part of part of me looks at this and i see someone who kept trying to disclaim skin and then ultimately wasn't allowed to so they went back  producing functional vascularized tissues and organs so throughout the prosecution history no matter what the claim language was these statements were been made and then even at the end when we're talking about the f response to the last section was that the prior art that was something the applicants for so long they recognized were identified a paper that said that prior art could epidermis and some part of the dermis it could only regenerate the dermis partially but they never set in anywhere here in the prosecution history in any i'm going to say there was no retraction of that statement isn't and i think that all the disclaimers that we've identified in our briefing before that we consider those disclaimers we don't we i don't think the public or a person of ordinary skill in the art can read those last statements as any kind of attract retraction unweighted says the prior art while suitable for skinner a paper for regenerating non vascular tissues cannot without serious modification applied to the purposes of the presently claimed invention for but there is no distinguishing between the skin being vascular and the different parts of the skin of the prior art in contrast to the invention there was never a statement here where ok now will they were told they couldn't do that why didn't that in itself retract the disclaimer that you are speaking because that what i think what you're talking about is when they added the knowledge in cells to the a disclaimer because i think after that there were multiple other statements that once again said our invention is our inventions is organs as opposed to skin for example in one nine hundred ninety five years after the statement or the insertion of the non skin cells was it is clear from the foregoing excerpts from the patent application that construction of matrices for implantation of sids cells forming or as opposed to skin is intended so even even if one people consider that insertion of nonskid cells into the claims in one nine hundred eighty nine as in as an attempt which i think it was disclaim scan they couldn't do with that way so that they continue to try to make these arguments and i mean this was going back and forth with examiner i think the examiner was was getting educated about the distinctions between types of skin i mean you know maybe this is where the phrase comes from but wasn't there a distinction between then skin and thick skinned well and i think there but yes you're absolutely right but again many of those many of those statements your honor were were made in the context of discussing the summary of the invention in addition to various other statements i think these statements were clear and unequivocal as you walk through the whole file history that they were facing this prior art their colleagues their argument based on just distinguishing skill i'm not sure of the examiner wasn't buying that possibly but we still have to rely the public has to rely this is known as it's clear that to be able to distinguish that part or that's that's right that's a way that they distinguish the prior art but the other distinguishing feature that they made throughout which i think that a person who are near a skill in the art in the public needs to rely on are those multiple still a disclaimer because the examiner is going to be using the broadest reasonable interpretation of the invention of the claims and so as we discussed earlier there's the specification called skin and organ even though it differentiates it from others so the examiner even though the applicants can say that skin is skin is not an organ the ems examiner can look at the claimed language and say from the brass reasonable interpretation this could cover  and i think we sighted in our on our brief on the cases for that and went to springs window and said springs window teaches us that even if you have narrowing statements the examiner it's not good enough for the examiner because the examiner takes the broadest reasonable interpretation what happens is that you're still going to be held to that later on in terms of claim construction ok you pretty much used up your rebuttal i'll give you two minutes for a report thank you your hon examiner uses during the course of the examination your honor i think that the question that's raised here is whether there is a clear upon the state of all disclaimer and when you rely on prosecution history disclaimer the questions are what are the statements that but that's not the only thing we're lying about much who cares if examiner buys your disclaimer if you disclaim it you just claim that right certainly true judge or mallory that if if whether whether it is the basis for allow or not there can be a differentiated from organs and a new one later and you actually talk about cells forming organs as opposed to skin i mean that's pretty clear right if i recall that one correctly you're out of that's a sixty and forty five that becomes clear in the one thousand nine hundred seven amendment at the very end of the prosecution right but in one thousand nine hundred five it doesn't look like that's the distinction you're making it looks like you're making the distinction between between organs and forth entirely throughout the prosecution that we knew about when we filed the application and despite knowing about that are we said that skin is an organ of the invention why because you can't make the think our skin with the in all three dimensions and so and the scaffold is just the supporting structure so you need to have it what's critical here for this invention is a got a structure that species is the cells from each other allowing vast over i got that because the applicants are aware of the on the start they know that there are some artificial skin referencing this is available in the prior art and they want to acknowledge that's there but our attention is still different from that it's different not because we're not skinned it's different because back and forth with the examiner this was a groundbreaking invention that they were having trouble explaining to the examiner what it was and getting the examiner to understand the scope of the invention i guess and there was the examiner had allowed any version of th claim throughout the prior ten years then wouldn't it be fair to say that your claims would have been limited to non skin organs there were times certainly when the nonskid limitation was added that the claims would have been limited that would not have prevented the applicants from going back with a continuation application it's not an unusual strategy for a prosecutor if you're offered half a loaf or seven eighths of the oath of bread to take that case file a continuation and fitness requirement that they were vascularized to let the organ had to be greater than three hundred microns generally speaking it was viewed that the skin was going to be narrower than that and so for many of the amendments that they're talking about when they talked about issue that was was raised in the brief was to focus on whether we disclaim the primal cells for that when they were alive and some statements in the specification some statements in the prosecution history but like the case we heard you just heard there are that ignores that especially from working like the skin the structure is part of the function there are some references in fact in the prosecution history to the fact that structure is a function there's no sort of bright line between them and the line that shire is trying to draw and they were very clear what would be otherwise clear disclaimer statements in the prosecution history that can somehow be undone or washed clean  by the hand of the prosecution that you know maybe in one thousand nine hundred ninety three one of skill the art would see a very clear statement but there is still a way to escape that very clear statement by the applicant hundred seventy one that's the passage where there is the very explicit distinction between dharmas and at the door and i think that's a good example where when the flame language changes you get the explanation and if there had been a disclaimer and i don't think there was when you walk in contact but it's the reason your case law suggests you have to read the entire prosecution history i would suggest that here it was thousands of pages over twelve years but you need to look at the entire context when you see that context it's clear that by the end we wanted the broad scope there was an interview between the apple can't stand the examiner and i believe the examiner supervisor where they sat down and said look let's try one more time to explain to you why  to it as an example that in fact what we've been telling you all along his correct that john is does not work for the vascularized portion of scan the doormats and he now himself acknowledge true the word most no longer in the claim right that's correct your honor whereas when there was all this conversation the word pragma wasn't quite right and there was an indefinite miss rejection there is that all this back and forth about trying to figure out what is the meaning what is the scope of parental right right but just taking out that language out of the claim is not of attraction and this is the statement that i'm pointing to is not the only statement that we've seen about parental the