i would like to devote principal amount of my time opening here on the fact that the claim for instruction that was proposed by the board here found by the board is unreasonable in light sometimes some people include this punchy layer is part of the n p r it's not unlike by way of a somewhat frivolous analogy some people most people would probably say there are only four members of the bea korean are clean now because the first part of the patent defines only four layers of the m p u anything that isn't one of those four layers is by definition extraneous tis that is what the inventor is making clear here and the fact that you separate and destroy the integrity of the spongy layer means that it is in fact the remnants of this destruction it is debris and what besides blood clots all that's there to be removed is the only extraneous tissue to be removed is the spongy layer on the step to the patent goes on to refer to at line fifty five a column six residual to break now what residual to bring could there be but the leftover pieces of the spongy layer caused by the separation of the four and the end when you look at the layers that all the textbooks provide that's all there is to be removed now this is done in a sterile environment we're not talking about somebody who wants crumbs left on that's what's going on let's talk about the prosecution history and the prosecution history which you have a explanation that makes clear that discovery is in fact twenty later was a result of an interview in which there were a number of participants from the inventor side as well as the exam and when you read the results of the interview it's very clear that's where the interview results that make it very clear explicitly what was necessarily implicit and the written description already that the only thing left to be removed was the spongy layer where's the language you're on one other point as well the point of that is that is not an examiner statement oh i think what you're doing is removing the spongy like the examiner is documenting the african set what we're removing is the spongy letter how he does that doesn't say that it's were at least a portion is removed i understand that the claim itself defines how much of it you also call your honor's attention to the file history and starting at page ten fifty and specifically ten fifty one the it starts at ten fifty and it refers to a during a follow up conversation with examiner ford and the applicants representatives and that's when the applicant the examiner recommended that they amend by reciting a product by process and then it reads starting at page ten fifty and then going on the ten fifty one it was discussed that the intact and beyond layer and the korean layer were isolated and substantially clean as such the tissue graft was substantially free from what clots and  intermediate layer but a small amount of blood and intermediate layer might remain in the tissue graft as one skilled in the art would understand so you have an explicit reference in the interview to the applicant saying we're talking about the spongy layer and we have an explicit statement in the remarks submitted by the applicant we're talking about substantial removal of that intermediate layer we should note that in light of those unequivocal statements in the intrinsic record that you don't need to look at the statements expert was a little bit all over the place and at one point testify that that when you separate these two layers some spongy tissue is removed and some spongy to shew it hears each one clear that you don't stop there that you not only just remove the blood clots remove the intermediate layer you remove the extremist tissue that's very clear from the teaching and that the problem was caused by the plateau where this one what is your know what you call that extraneous or not i think that that's that's kind of moot for the purposes of washing and substantially cleaning it includes a blood clot extraneous tissue and some spongy connective tissue so she specifically call that the spongy layer constitutes quote extraneous tissue close quote in such circumstances it is my opinion that both washing and substantially cleaning the and the on cause it isn't all of this when you're citing to us an explanation of why if the claim construction does include sponge it should include spongy tissue removal that klein still anticipates it's not agreeing that if it dies it just say upon that construction i understand that point but two things one in that written testimony that the actual explanation of what the first of a majority are for the understand to be extraneous tissue is so for example you can have dead bits of tissue attached in there you can also have other bits of tissue that are come out in the livery stuck to the membrane in the case you are separating you get bits of spongy layer hanging off for example and then could also represent extraneous  so in this cut in the background the invention of the inventor was just giving a background of the technology of the field of endeavor he wasn't saying in the claim and the on means this or in the present invention  me on means that because if you did the claims wouldn't make sense if you look at the claims every time the word amnion appears if he was defining it that way it would mean it didn't have the spongy so when you separated  up from the court on nothing would be there even though they can see that the spongy layer is there it doesn't make sense if there was no spongy layer to begin with you wouldn't need a washington cleaning staff now they do concede that during the separation step there is spongy layer and some of it goes on the korean some of those on the am now now the question becomes is that the type of material that should be cleaned is it debris is it contamination is a blood clot answer no to each and every one of them that extraneous means a separate layer extraneous means thing where you think that extraneous means just with the board said things that can compensate on bergen's testimony things that can compromise the safety of the graft agree contamination if you look in this it's all about what you have to clean in the summary of the invention column three this is in the cleaning step you clean blood clots and other contaminants in the chemical decontamination step and column six and seven or korean lawyer yes dr bergen it's for a variety of reasons dr bergen said it was dr jones said many people consider it and we submitted lots of articles and books citations and she said when you write this claim include in it that at least a portion of the intermediate layer is removed that's what you are and that we distinguish over natural percent the because the product within lack the natural intermediate layer they never wrote that claim all they have is washing and substantially cleaning now with the board it is complying with the v o r standard from top to bottom you look to the specification it says what to claim even at the final hearing the oral argument i'm medics councils conceded that the specification claims make no reference to removing the  and what she said was dead tissue now my medics tried to say will lead to a lot of what everybody knew what this case was about what prevented her from saying we include the spongy layer in the i p r proceeding i took her deposition i asked her about extraneous tissue first she said look by medics counsel gave me this construction that has a spongy layer removed i have no opinion on whether it's right or not and i asked her what about extraneous tissue you know what she says it's that's beyond the scope of my opinions because in the litigation she said what it was and she didn't say it included this country where so she may have been all over the place on a lot of things which she was right on when she was defining train argument those citations that they talk about they didn't present to the board in their brief and that's of the board has to go on which in your brief what they did present is the last now look at what she testified to extraneous doesn't appear anywhere in there and when i gave my rebuttal before the board i said that where is where did she say it's extremely station none of those other citations were brought to the board's attention because they knew very briefly i'd like to address very specific three points about the characterization of the experts at record first of all my colleague said that dr bergen testified in his decorate her declaration as to which side of that he was on the second point on this that we made was that dr bergen says other statements she listed various things like blood clots and that tissue and did not back to you and i think the most important place is the specification where the layers of the and the on as the inventor saw them are set out and it is somehow suggested that he's not the finding what he understands the  the purpose of his invention because it's in some background state it's in the background of the invention that's the part that this occurs in and that's the reason why the specification itself makes