are the board's construction that he said conflicting with the intrinsic evidence in placing a new weight on the extrinsic evidence the board's construction of wider area which is nonsensical and also inconsistent with the transit evidence we have many of the claims are affected by the wider area of issues i believe all of them your own even though that term doesn't appear in very many of them believe the alternative is larger area at least with respect to claim seven it wouldn't affect terms that didn't use either larger area or claims it can use a larger area or wider area the board its findings that you  it and he says so to clarify when not saying you only had he said if that could be used as glue generically we're saying that you need to be gluing the chip to the package which would exclude injection molding patentee focused on a separate two different aspects of the invention to distinguish it over the prior arc first the lack of the use of a bonding technique to attach the as opposed to any adhesive because you could have an adhesive i guess you agree that isn't a glue absolutely take double sided tape for example that you wouldn't regard that as a form of glue and no but it would be an to glue and that would be gluing well in this context of the specification doesn't disclose any other alternatives to glue it talks about using resin but only as a mold for the package itself and in this case resin could be potentially used as a glue in some context but not to glue that this component to the package in an injection molding technique guess the real problem with the boards construction is that it allows any material to be used as an he's live or as we believe it should be only those materials that would be normally used to that could be capable of gluing the package or the sides of the chip to the package and it shouldn't be material that interferes with the purpose of the patent which is to provide a precise way of attaching the chip which  so here the board started with a general dictionary definition of of and he said with and then looked to the claims only to see if the claims conflicted with that general purpose to fit definition and that's exactly the type of analysis that was rejected by philips the texas digital methodology but here the specification as i noted distinguishes the invention from using from and also distinguish the use of it he said on the size of the chip from the molded resin that's used to create the package itself and importantly the patent he distinguished the very prior art that the board found invalidated the claims during prosecution the pantie distinguished akashi on the basis that he used this bonding technique michael back to for a minute you made the point you said that the board had looked at the dictionary first and then looked at other evidence but when i looked at the board's opinion for example e g seventeen the last thing they refer to in your analysis is the dictionary it says you know this construction is also supported by the dictionary reference so how is it what am i missing was introduced by the court i believe in the initial decision is it to me i p r that as you question on a different topic i just would i guess be in the wider area topic and not a claim brief and the green ok so you have a little bit at the bottom is i think of it as an anvil shape can you tell me anything about whether the functioning of the straight up a little bit and then why it's is that do we know anything about whether that complicates the working of the c c d proves that because presumably maybe some light is coming at a greater angle or open tapered anvil shape to improve the functioning of the chip but it talked didn't not talk about the opening below that ship as being needing to be wider than that upper opening if you make an argument to the board so one of the things i guess i'm i'm focused on a little bit and maybe you can help me out i think i understand why the opening at the bottom where the chip is being inserted needs to be not sure why it needs to be wider than the top of the n f l did you make arguments to the board about how it's important to focus on the top of the end goal and not just the part of the en will that this is immediately north of the sensor i don't believe so i think we focused on the area that's mediately north of the sensor because that the reason for the wider bottom areas so that the chip locks into the package tightly without any airspace around it so it doesn't it's not a we're talking about just the area of the opening so if you're looking at we're looking at that narrowest part of the opening for the top part of the top of the chip it's top of the package and the there's no he probably bottom but just the area of the opening on the bottom it doesn't talk specifically about it being important but it says that the bottom opening should be wider so that it can tightly fit into the package and that is is there any reason though why the top opening has to be smaller than the bottom opening i mean i understand the bottom opening has to be sufficiently large to allow the chip to be inserted in it why does the top have to be smaller well if they were the same size the chip would just slide through the continue where you can i will reserve the rest of my time for  guess is the is the is the yellow and then the green opening which is and shaped and for reasons i think we just discussed the bottom portion of that and f sitting on top of the image sensor almost certainly needs to be smaller than the space oh it where you're inserting i don't understand why the top of this info needs blue part of the package and if one therefore focused on the top of the and bill it's not apparent to me that you can infer anything except from the happenstance of this below and if your argument therefore depended on that wouldn't we be making more of a drawing than in the patent world we're allowed to make i'm not sure the argument does depend on that your honor and it's because the relevant opening is at the bottom i believe at the bottom of the what what what tells us that that's the relevant open well areas of openings and it's just a question of what the opening is at that point in time but if the if the blue part of that picture across all the way up to the top of the anvil and difference in the way in which thinking about this think the opening can have a third dimension to it in other words it's a volume or a space and the relevant part and i think certainly from the specification of the seven package are not going to have any space for the pads on the chip to connect to them from underneath so the needs to be some overhang there this is also i think not an argument but it was more fun when you're when you're looking at least and this is an optical device so in optics when you're looking at the aperture of a lens or any any optical device you would look at typically the narrowest point at which there is clear passage of light but you know that would be the part that would restrict the white correct or the package body here is not transparent so on and so it is having the effect of temperature or at least in the optical art would seem to me to be not the with of the green space which i'm talking about how there was you can you could actually think of this green spaces having three different dimensions one this the dimension of the very top underneath the glass to the dimension at the very bottom just above the chip and three the area where the package comes to its smallest dimension i think that's correct gross and if you look at it in plan view turn it bottom of the blue package is the place where the aperture is the smallest yes that is correct and do i just want to mention that of course splitting time with the government the government intervene on constitutional issues of government turning  address there's i do want to talk quickly about these cured and he sort of limitation because it's not particularly clear what the relevant construction is i don't think it's an issue about it he intent in construing secured by an adhesive as gluing was to introduce a process limitation into the claims which makes less sense than the device claim and change that process limitation into a negative process limitation which would exclude injection molding and i think the board was correct to reject that sort of torturous construction for a number of reasons certainly the device claim awkward to read in a process limitation and particularly a negative one word i think was correct and let me address the question of reading in embodiments and whether this is all embodiments not i don't actually think that was intended to be originally in the deep end of claim or something like that but when you take that a step farther and say what gluing actually means what's really important in this construction is that gluing excludes the part you referring to which is something separate then the back part of the chip we need to be applied is made by injection molding that means that another part of the chip cannot be made by injection molding presumably because heav wanted to say that they would have that now but there's just no case lawson or i think for saying that because a technique is mentioned in the specification with respect to one component it is therefore excluded for all other components that don't mention that excluded from the scope of the claims here is that the force of the injection could disturb some of the electrical bonds particularly if there were wire bonds that the force of the glue or the he said coming in could move some of those wires and d were they like to kashi considered by entering that original prosecution i can see to kashi words but i don't know that your honor onerous and i don't see that the numbers are lining up but i did not sure i know how to read to declare its statute unconstitutional so what exactly is the point in making the argument to the agency judge and she has to say sorry no can do yes or no there is a series of cases from the  court's reasoning was it would have been futile to do so you know that the court has in this case is not that case because here it wouldn't have been futile to raise these arguments before the agency and moreover the supreme court has recognized in effect so if it would have been  the nothing in the statute requires the board to institute in her party's review proceedings if the board agreed with the argument that applying in her party's review to a patent that she prior to the way was unconstitutional then the board could have declined to institute and also i would just point out that th the constitutional issue later in addition to our forfeiture arguments just to turn to the merits we think that application of inner parties or view to a patent that issued before the end a was passed is plainly constitutional under this court's decision in pat lax congress had a rational basis for applying interparty survie to all patents in existence when a with path to correct agency mistakes and to protect the public interest in keeping patents within their legitimate scope and more of her think the really key point here is that when th thank you i just have a few points to make first with respect to the openings on the chip in the wider area limitation and the reason the patent says for the openings being wider at the bottom or larger is  lines thirty one through thirty three the c c d chip can be mounted from the opening having the wider opening area and thereby shutting the through hold tightly so we're talking about white here getting on the photosensitive moments of the ship and not others directing light to that area and as counsel noted the light will only shine at that narrowest or sion of the top hole so that's what i think we're really talking about here process that the process is informative but with the respect of the apparatus claims we're really looking at where's the glue on the ship or where is the adhesive placed on the chip and if it's an injection mold council noted that were that the patent applies that he said using injection well that's true but that seven one four patent injects the adhesive while it's being held in place the mold is fixed and you're going to inject the adhesive in there it's can put pressure on the ship and move things around as are expert explain and i don't think it's disputed jumping to the government statutes there's actually there's a two thousand and three case saying that agencies do not ordinarily have jurisdiction to pass on the constitutionality of federal statutes that's from the d c circuit not from the united states supreme court but it's a well established rule and it would have been futile to raise it below because the board doesn't have discretion to deny an i p r on the basis of constitutionality issue the congress said to the board that it had to  either retroactivity or unconstitutional which for activity for the internal procedures for reconsideration on the same grounds with the same  change in the burden of proof for this and no change in the one of two or three grounds that were available under three oh wow that's right there's no change in the burden of proof that the the grounds are the same but land graph did not suggest that concerns about retroactivity have no application to procedural rules and here while the you know the grounds may be similar the burden of proof may be similar it's not like the that congress just tweak the procedures for prosecution which is really what happened when they created interparty for examination they were just tweaking the process or for a brief examination expertly reexamination they're just  tweaking the procedures for examination to allow them ply the patents after they are issued here we're not in a prosecution stance or we're dealing with an examiner we don't have opportunities to appeal the board decision internally there's no five non final written decision there's no interviews there's only a single opportunity to defend your patent there's only a single opportunity to men and there's no minutes after