g right at least for that time carry it could seek to do so we under our understanding your honour's this court actually accepted commissions request to vacate its exclusion orders then that that would resolve the issue if the court  address the issues with respect to the six one six patent before we turn to the six three one patent really issue is whether we are potentially going to file in the future on a sanctions it is at least pursuing the matter as eyes open on that i mean certainly our view is that there hasn't been any violation in the commission as they suggested to you that there's a violation i think one reading of its brief is that it's trying to keep that open that never suggested to us in any concrete manner that there's been a violation and certainly we don't think the house it would put them in a different position if they were claiming that that was an actual violation existing order because the with respect to the six one six patent i think that the central error in the commission's analysis is with respect to the construction of services and i think on that i think everyone has to agree that there has to be a difference between an opening and  opening and if you take just to think about this that the example of the difference between an elevator and a service elevator just because a painter can take his equipment and take the normal elevator up to the tenth floor doesn't make that a service elevator everybody knows what  we look at it differently in terms of whether the structure is capable of allowing service even if it's not a normal use for the structure i think you would and i think that's one of the differences between the commission's construction  meaningful service and so there for example device it was clear that you could service it from a different area there was no indication that the openings that the patent office initially thought were service did the commission make some actual there that might not have been necessary and my question to you is that because a r j i was trying a spot of the dispute between the parties even after her initial thoughts about what opening and a service of anyone and what exactly is your position because it seems to me that there could be two positions different from the one that the commission adopted one is that the opening has to allow meaningful service which i one twenty seven the appendix the rich serviceable components are accessible for service in where the opening enables access to the serviceable components and the claims service must be meaningful and of course i want about the fifty six hundred or well  that was one where she found that it wasn't your honor but i think our central construction in we agree with the other opening was really yes and that would be that that's a fact specific analysis for the infringement and else but for the basic construction our position is that the commission was wrong in reading out the element of meaningful service and holding that any opening on it being what services mean what happens if you can maybe loosen one shroom and that's only i wouldn't say that that's meaningful in any the key patents meaning service now a lot of this goes to the actual infringement of now also says whether it's proxy which would look to things like the service manuals the positioning of screws and whether that but on the opening in the fifty six hundred that it's accessible from the say right right so there wouldn't be infringement on the second one i believe that's right and i think one appropriate thing for this court to do would be to set aside the you didn't ask the first question we didn't your honor ok so is there a reason to have to remain and i think it would depend on what this court said about why the commission was wrong in terms of whether or not remembered be appropriate and i think the safest thing to do wit that combining these two pieces of prior art was feasible and that something that someone would have done the problem is that once you combine the two pieces of prior art you still don't have the invention because you're not able to read numbers from checks that are put in upside down well that that's in certainly wrong is a factual matter and i think it's wrong as a matter of it that these two pieces of fargo didn't read upside down that the problem was and this was another legal or in the analysis is that they believed that it was necessary to disclose bopara and the fact that you could read through through paper as part of the combination as opposed to establishing the knowledge of a person of honor skill and what that person would understand in looking at the at that kim and the also he can references that person would understand in two thousand and seven when the sixty one patent application was filed that the mc or readers disclosing those patents could read through paper because of open disclose that there was other testimony by our expert in pages four one two seven of the appendix that it right that's right but both it wasn't actually published until later and the point is and we have testimony on this that the person of ordinary skill in the art involved it was just one references to the person  think that l j never really addressed the right factual question which is would a person of ordinary skill in the art in two thousand and seven when the sixty one patent application was filed understand in looking  opinion in the section that i mentioned that that the e mail james answering that factual issue i think what she looked at whether or not there could be a combination and look to the fact that we didn't argue a combination but we didn't have to argue it combination so i think if the court is otherwise with us on how to answer your theory though then you never really would have to have pieces of prior art that dispose the limitations you could just say we don't need to cite any prior art we can just say that there was something for different with sticks for different directions and that simply shows that person would understand that those readers could read through three paper and that would that would give the person born or skill the art the knowledge that it was necessary to modify that and in going back to why this is such a clear legal error if you look at the court's decision and allied direct in there the court said that the mere fact that you can't just physically combine these references doesn't the feat obviousness or motivation to mine and that's exactly reference or but the l j got hung up on the legal error that you couldn't physically combine kim and yasser he could because you couldn't add a second reader and that's it pages two seventy three to seventy four of the appendix and that was clear error under this court's decision and allied wrecked in erecting in there so they held a never really properly looked at this in terms of a motivation to combine these prior references into the allied direct analysis it's clear that there was a motivation to combine he there actual rules we looked and looked and looked and couldn't find anything where the commission says if you want to have a or to claim a violation of any exclusion order you have to do so within a certain period of time after which you become aware for latches issue that we really only have to it would have to be enforced equitably since there are no actual was the commission would force it fairly and in this case it's been a year and a half since custom so that these redesigned products could come in and think now it's too late for you to bring it and bring it in force me complaint and here we are almost a year later with the bold knowing about their structure function and operation of all of these products a year and a half ago were kind of incredulous that  prospect of a possibility of bringing an enforcement complaint and that that would require this court to issue what the commission believes to be an advisory opinion as to the sixty's there are a time limit on challenging that customers only even if there is no time limit on claiming a violation of of an exclusion or i mean ordinarily the way that the customs rulings would work would be that you have to have a product excluded from entry you would have a custom there is no ability to challenge and i don't know if there is an ability to do that there was there was a district court case about five or six years ago where a party in the balls position brought into action in the district of c directly under the administrative procedure act the commission than amicus brief saying that the commission had primary jurisdiction over these issues these issues should be brought to the commission and that the district court should refrain the district  area i don't know whether you're really are with those but they say that you don't have to rely on prior or in a particular combination you can rely on the prior art is indicating the knowledge of those in our in our brief there was di star there was randall versus rio there was harry osa if i recall ariosto correctly it was sales brochure that demonstrated that products are actually out there in the marketplace widely understood commercially what we have here is familiar with that one but what we've heard from from the appellant's here is that they're not resting entirely on for they did recounts a senate vote as one piece of evidence for what a person of ordinary skill in those and counsel pointed to page forty one one twenty was there a problem with the magnets and they had was there a problem with the paper transport was there a problem with processing with computer hardware or what was going on in two thousand and seven such that a person of ordinary scope would understand that vulcan is actually correct maybe discuss what reconcile the supposed inconsistency between volkov in what kim said about the ability of the tech well kim jim said that he couldn't read through the paper there's no evidence in this record anywhere not withstanding what counsel says about other other evidence about what a person ordinary school art in the art knows there is no evidence in this record about what a person of ordinary skill in the art knows except provoke and under those phil and i would just like to say that it's always vocal for example and including on page forty one one twenty seven which is what they point to but there are probably eight other references in the appendix to what a person of ordinary skill in the service serves up well i don't i don't think that's a fair characterization of the commission opinion here when you read the commission opinion and you plainly have the commission went through videotapes studied the actual service that was going through the opening and that some of the manipulation actually perform services removing speakers and so forth from underneath you know but that's not part of the construction construction is the may services i guess in any respect well in the circumstances in which the evidence demonstrated that all that was happening was was turning a screw for example with respect i think some of the keypads there the commission found that that was not infringement and where there wasn't fringe meant was when there was service analysis of infringement that sticking a finger a through the opening constituted infringement was we have the able j s review of the fact actual record here is determination a meaningful and then the the commission says no we're going to strike that order so what are the commission then say to support your position that in fact impose some meaningful requirement as they if i could just what i'd like to try to explain i think this answers your question i hope it does because otherwise i guess i'll be in trouble the l j concluded that some of the actual service through the opening didn't comport with your claim construction for service could also be done in the fact that the expert for example on page fifty one to fifty two was able to go underneath and fiddle with screws and so forth wasn't enough were infringement was actually found here was with respect to products that were actually sorry i apologize i'm not as familiar with this part of the record as i should think that it is really more like debate over commission's infringement determinations then it should be over the claim construction i think so and i think that the the the keypads the commission found that that was an infringement but where dr curtis was able to go through underneath through the opening and remove a speaker and do other things like that to accomplish the goal of that was deemed to be infringement i fact violated the exclusion order and we won't have plenty of time to find out why don't you know it the reason we don't know is because the activity in terms of removing these plastic covers would be invisible to us and so we don't know whether or not they move the plastic covers and ship and to customers whether or not she does yes but that if you ask absolutely and they said at the time the customs proceeding in course not we're not doing that but one of the other significance the last few months that we the district court discovery to find out where there was a violation of the commission's or that's correct there is no other measurement discovery mechanism available to us or so but really what what is your harm if we let this go i mean you still can in the district court right at least on later panels of arc it would be and it would be authority that the district court would would would have to follow what you and i not like it actually i understand it your honor in fact i wanted to turn to the claim construction issue because i believe that in fact  if they're right and they have repudiated the exclusive means theory they don't have a non infringement device now the judge whether i believe you would ask where in the record is an example of the commission finding infringement explaining what the rationale is and then goes on to page fifty and talks about removing the speaker that's one example of actual service done through the service opening now why did  j not find that information they'll jay not found that not infringing because of her claim construction which she made clear in her opinion and this is in the record at the appendix b one twenty four that in her view enablement not accessible through other means and when you look at the difference she said the reason i'm i'm not finding the halo series to infringe was because you could perform that service from above as well that's the exclusive theory that the l j added in her id that's what we sought review on by the commission that's what the commission rejected and that is the non infringement the facts that made the difference between this various other models infringing and not but that's the theory they've not repudiated certainly clear in their brief so it's unclear since when you look at that record and it goes from the appendix page forty eight to fifty seven where the commission went through every model and cited all the evidence all that evidence is of real service meaningful that be done when the safe doors open from below it can be done when the safe more is open or the safe nor is closed when it's removed out ok so that that construction then leads to the issue of whether the second position limitation let me don't interrupt our lease to the question of whether the second limitation second position limitation was satisfied if in fact the service that the ground constituted service through a service opening and the robot trays are in the second position the record is crystal clear it wasn't disputed below that the service openings are not accessible sure but when the safeguards open they are it's us that's correct and the  but the claim construction that they have one point argued below that that accessible means never accessible under any configuration was abandoned and in their reply brief they acknowledged the correctness of our proposition which is if there is a configuration of the device in which that element is satisfied i e the safe door closed that's enough for infringement they acknowledge that position what they seem to suggest is somehow there was a factual dispute as to whether or not i will say fine construction and the the i p c c claim construction is to second position was wrong that's their contention because the the housing is the upper or of the device and it doesn't don't read their position that way they don't argue because it was not a claim construction argument they preserve below they argue this is a matter of infringement and they said that there was not substantial evidence of infringement because you could get access to it when the safe doors open and we pointed out but you don't you don't believe that they argued below that that housing as that term is used in the claimant refers to the upper part of the machine rather than the lower part of the machine no shred of testimony that both of works and if you look at both but it purports to be a solution for when you don't get a very good reading it's got a very elaborate algorithm for trying to figure out what the my current characteris the expert witness which was the only basis they had for arguing that a this was common knowledge and b was suggests it could be combined was specifically found to be not credible by the judge would understand as to reading through paper and look at it no two of our reply brief third one piece of art can establish the knowledge of what a person or school in new york would know that's ends on that page thirteen sixty nine and fourth l j never sale well it can't be meaningful because it would be more meaningful to go from the top it's in this was i think this is part of the actual factual infringement else's not the construction of the basic concept that there has to be meaningful service i think is appropriate for the