in this field this appeal this case relates to claim construction we have one term that was disputed below and it was initially agreed upon below between the would make a explicit that the other claims are not being pursued i believe well in that in that in the litigation that was brought the other claims were to construe the claims in a manner that it seems to me could have been avoided by some men's and if the idea is we want to keep everything because we want never think because who knows what will happen in the future you are facing the consequences of that with the pattern i believe is now expired as a no but claim seven already says expressly that you  in this case on claim construction is l g s expert in meeting that our construction is correct it's the only can only charm he ever construed in his declaration he agreed with us he construction section what he said in the claim construction section is correct you agree with us he said our construction was was right on his pocket your answer is yes in the quite construction section where i don't i don't agree with everything else he t says you only frack one being and doesn't get changed or unless the specification mandates here the specification has embodiments where both beams are the  change and to or when the specifications supports our construction the same phrase that issues weren't selectively l g is arguing that selectively somehow changes and into or well if you look at other claims like claims thirty eight and forty two claims thirty eight and forty two expressionless they selectively diffract at least one of the first and second be so those two claims are saying you can the frac to either one of the beams or both names but the word selectively has to cover the fracking both beams in those claims you cannot say that for claim seven selectively means you have to pick only one of the other because that would mean that that same word selectively would make no sense in claims thirty eight forty the other claims make this very clear here  supervisor to selectively apply red and yellow paint as a function of the fruit to be painted you construct barriers which are red you paint bananas which are yellow oranges sometimes you apply just the red paint that's to the strawberries sometimes you apply just the yellow paint that's to the bananas and sometimes you use both you mix the red and the yellow to get the orange for the construction is the word selectively which modifies and what that means that in some cases it's one is one hundred percent the frak that and the other is not the fractured and some cases it's the other is not sense you have the word selectively under b r and we think it's it's fairly clear here that's assume for the sake of argument that the new rules in the office are in effect and so we're looking for the correct construction of right rather than something that might be incorrect but it's same result under phillips or are we don't think the new rules apply obviously we don't think they're going to apply retroactively nor should they but if they were we would get the same result under philips ind i think our argument is even stronger here's what philips focuses on what other things the purpose of the invention now i'm not a physicist but as i understand this invention the purpose was and you have an optical disk reader where you want to have right it would work perfectly on the d v d both in the inner region and in the outer regions where these diffract of reagents work for the cd because it's thicker and because of the different wavelength you need to focus it differently and the way you would ok it wasn't mentioned that read why it was in counts on right so i think they have to a p a arguments one is that somehow the reconstruction was ignored and they were surprised the reconstruction was was not that since they did make the specific argument you know what was it that that that they wanted the p to pull out of that seventeen line portion of the specification but more fundamentally is that people have very carefully looked at that column in i think it's perfectly appropriate as discordant said that a lawyer can sort of hide the argument and i'm not attributing any and he a will or motive here but you can't come up with an argument later that you haven't specifically fled from court i don't know if that address take discovery decoration etc i'll do the latter first the construction at the board came up with in the final written the session was never proposed by us it was never proposed by l g it was never anywhere in the record until the final in the search for our declaration when we submitted our declaration and this is a proceeding we didn't know about when we submitted our brief we didn't know about it when we took discovery we didn't know so our point is you can't come up the one of its reply brief stating that our argument they call argument the hartley arc so there's no realistic argument that we didn't argue this hardly term we cited to that portion of the specification l g called at the heart of the argument below with respect to be our i p r it was never meant to me just a few minutes ago that this is something that you need and want is that breadth of construction and we do not want that breadth of construction we want to constructions it's a mind both