has now reached this court the first issue i'd like to address today this agilent standing is third party requester this is an issue raised by waters in motion practice and this court directed us to address it in our briefs disappeared so that was it was a successor is that interest in that sense that that the statutory right of action would apply to two actually yes your honor we believe that if if agile had thought of war as a company certainly we would have standing here we believe the same principle applies in this case which was an asset purchase in which the agreement expressly assigned all of the business including the rights and reexamination including the liability for any infringement that might arise from infringement of the patents what do you think is necessary to  the literal third party requester to some other legal today's successorship or what not just kind of assignment of the right in the proceeding i said well your honor that's that's a good question i think that it requires a binding legal document assigning the rights aren't what rights i guess is a question well you know this is the rights arising from the examination without asking for a substantial period of time i believe that that was simply so that legal knowledge and strategies could be transition among counsel and then when when agile was ready to fully take over the reexamination they submitted a document which indicated that the real party in interest was actually and do you think that will have appealed as the third party requesting you know your own what because the document that they signed the asset purchase agreement signed all of the rights and reexamination together with the litigation that gave rise to the reexamination and so they were no longer an interested your honor i haven't i haven't tried to consider that particular factual question but i i think in this case everything has come to agilent and so it's clear that they're standing they still exist so what do you mean everything has come to well it was an actual purchase agreement of substantially entire business and the tank declaration establishes that there was an assignment of of all of the rights incident to that business including all liability including all rights to bring legal claims relating to the business and we think that this is one of those when could you answer me before that said there that there was a year delay in agilent even participating because there was something to do with the transition of counsel but isn't there a big difference if you said that aurora had no right to even engage in activities related to the re exam or litigation relating to the really exam then how could rower continue to do that regardless of whether you felt like using the same counsel your honor that's my understanding is that is if agilent bought the business assume direction of the case the same lawyer for me and involved i don't i don't know but it was it was the wrong guy that was participating that agilent name doesn't show up for over a year right its name was on the proceedings but my understanding is that agilent assume control over the reexamination and had the the legal interest in it reexamination from the time of the purchase so is it your view that it was improper for either continue to participate  at that point because only one person can be the third party requester you can't have two and yet you tag team to follow with the board so is it your view look either actually it's improper under your theory of transfer of control right or or is improper so is it your view that it was improper for or a to continue to participate at that stage in the proceedings well no i i thought as i said i misspoke i see it more as a as a you have to look at this realistically there was a realistic transfer of responsibility from the roar to actual and and it is today when we're looking at the right to appeal here i think it's clear that agilent is the party is we should let agilent decide well no you have to look at the statute but i what i'm saying is that in the context of the statute when you look at the party requesting reexamination  that that party today is agilent it during the period of transition from aurora to agilent it may have been both parties but both parties are the ones here today seeking appeal from the board decision that's  document was filed that made a clean break from one to the other but i think it's very clear that when you look at the legal document that is that it signed all of the business and the rights you look at the conduct of the parties before the board where they were clear the real party in interest is agilent and this was before the proceedings got to the board that it's very common in both court proceedings as well as in district court litigation for there to be a transition over time is responsibility for litigation there's a formal substitution of party that's a very different animal isn't it that in this case you could have either asked to substitute as a third party requester or filed rights it was no are going to position to file its own request to remove them but what about the first option is what is there a procedural mechanism by which in before the board or in the p t o you could have requested question is there a written down procedure by which and a formal substitution there is cabbie can occur i'm not aware of a written down procedure for substituting parties you could of course substitute counsel but my understanding is that from the moment of assignment agilent assumed legal control and responsibility and liability and became the party requesting reexamination and that gives a standing and any distinction perhaps between the third party requester was and is didn't have any legal bite till the moment it came became necessary to invoke one thirty four c yes r course continue to press our position on claims twelve and thirteen but i think those are well stated in the briefs and do not need to be reached if this quirk reverses the board's construction of control now of course we are looking at the broadest reasonable interpretation of the term control which appears in the phrase control the pressure drop across the restrictor the we have to look at the entire ordinary meaning of that word control is an ordinary word and below the water submitted a dictionary definition and now on appeal we've submitted the complete dictionary definition which we believe makes it clear that control has a broad meaning doesn't the specifications equate control with regulate rather than shutting off the specification in parts uses the word regulate when they're talking about the same structure that the claim uses the word control we think that that difference in words means control should be given a broader meaning isn't the whole point of the of the imagine as as laid out in the specification to have a constant consistent flow is that what is going on here i would say that's the primary goal ok but when you look at the the operation of the differential pressure transducer which is the part of the claim that's controlling the pressure drop that differential pressure turns to serve as a further function beyond that and that function i think is to put in part to protect the system from over pressure caused by operator malfunction or system or a system problem and that's the point the examiner recognized when it applied as a mosque as a anticipation reference in combination with some of the secondary references and so what we would urge is that this court look at control in the broadest reasonable interpretation look at the claim language which does not include any language that further defines control in the way that the that the board did we think the board effectively imported this goal from the specification in order to limit the meaning of control in a way that that was improper because under be arye you have to look at the claim language apply it as is unless the specification really requires a further limitation but that's actually what the board now right i mean i think the board at least believed it wasn't importing a limitation the board believe that that everything about the specification related solely to regulation and we think that was an error on the do you know what review if you look at the specification the specification expressly teaches this risk of overpressure caused by the system and th specification doesn't explain all of the difference anyway to control or guard against that overpressure situation and that's why we look at asimov which is analogous our according to the board's finding wealth of them deal with pumping and gases under high pressure and the logical result the logical response to an over pressure situation is to cut off the system it protects the system and it also protects the integrity of  so this specification language that i'm referring to specifically is that column seven lines twenty twenty five it's referred to in our brief and we think that that or didn't address this language and  when you look at the specification as a whole you don't see any requirement that the regulation of her only during the operation of the system and that is effectively what this claim construction requires the definition of control was not really disputed before the examiner the examiner apply this definition in a way that seems quite logical to  us given that this is a system in which a pump is being used and if a pump has a problem the logical thing to do to control the pressure drop and protect the system is to shut what's the best place and the specification for the proposition that one of the functions of this component is to protect the system either full stop or by shutting off well i would point to the language that i just did it calling seven lines twenty two to twenty five which where does it actually say anything about shutting up well there is more language that refers to servo mechanism and that's it column seven lines sixty one to sixty five ok and they are the exact operation of that circle mechanism is no work specified and that's important we believe because under the our right if if the specification doesn't explain something you have to apply the rights reasonable to protection i consideration i mean you don't i gather dispute that the right kind of successor would be the third party requester even if the even if that's a different legal entity from the one that filed the request if a roar was swallowed up lock stock and barrel by our what where does that distinction come from i mean i guess this is what i'm what i'm stuck on it seems to me there's a pretty natural concept here of successorship a slightly fuzzy concept but this one seems to be well within it and that concept doesn't require the disappearance of the first legal entity there are asset purchases and if they're sufficiently complete that the there's a successorship even though the original entity continues to exist but not only did they continue to insist you're wrong or you continue to participate but why does that matter because that means they could have appealed they because the statute didn't come into play at that moment a right had zero interest in this proceeding they might even lack constitutional standing now they're still in the litigation your honor there is pending litigation so they have they have even more even though delaware a formal matter i mean if if if aurora had filed here at agilent had not i'm a little hard pressed to see how you wouldn't have had a pretty strong argument which you probably want to would have wanted to make that aurora could not in fact bring this this challenge it had no maybe not even a constitutional standing but in any event it wasn't the real party in interest anymore yeah i disagree after the perp after the purchase agreement after we got wind of it we in the litigation we sent some in iraq authorities to a roar and we said tell us about this transaction we need to know are you the right party is actually the right party because then we need to amend our complain or substitute parties whatever a roar saying that a response that the transaction was an asset purchase following the acquisition or or remains a corporation under the laws of the state of delaware that's at page twelve twenty eight in the appendix and so we wanted it might in fact have had as you i think examination why would they the need to participate if they didn't have some sort of interest i assume that there was a substantial period of time or at least some period of time where you were alleging and infringing activities yeah that's isn't that interesting that that's only some parts of it need put in the whole agreement i'd like to see the whole thing that i don't know what's in there but what we do know what we can tell from the chiller three block what's fair is that they were probably some interest or something that is going on so i want to work easily could have filed the the appeal here and then i don't think we'd have this jurisdiction a question so can i just ask board on applications and interferences that covered read sam is that right there what the what statute twelve ninety five fully participating in this i mean it was always auroras counsel mr lieberman was signing papers they appeared peered at the at the board hearing in april of two thousand and fourteen and it was never very clear to this case because we have all we have is an asset purchase with some agreements back and forth that we don't really know what they are by that we don't have a situation in which they would be defined under delaware law or any law as obligation to establish jurisdiction well that's certainly so is it the case here that they haven't met that obligation because what is clear from the record are some things are retained we don't know what these are retained they haven't even survived the full agreement to understand whether or not we could treat them under the state law as a success or an interest is that really the right way to look at this case i would i would say it slightly different they do have the bird and yes i think that al chilling or rora should have become more forthcoming in terms of what this deal was so that we would not i needed to know is lead counsel in the litigation below what what the actual deal was just that and we needed to know and all that agilent was ever was was a pretty or real party in interest and the reason i think that's the case your honor is because if or if it truly was some sort of successor in interest would have withdrawn or and yet roar would have withdrawn people from the litigation and from from the leagues emanations and yet they continue to participate i don't buy that there needed to be a transition of coun that doesn't take eight months i've transitioned into other cases before that can take eight months or eight months from august twenty fourth twenty twelve when the transaction took place until april i think it was twenty third or twenty six this far as i know there is no discovery at this point i mean what we said in our reply when that was put in we said we don't have the entire we don't have the the records all we don't have the agreement and under the best evidence really you can't even you know we take that into consideration so at that point before a judge issued the order denying and sending it up to this panel i think that broadest reasonable interpretation one that excludes controlling the pressure drop by shutting it off when it reaches an unhappy level everything about the specification is about  regulate and control use interchangeably in that same paragraph and everywhere else in this specification it's all about how do you contain how do you maintain flow precise flow so that you're getting good results in the  i'm trying to understand the difference between i mean how precise well me detaining and even the flow has to be if it says ok fluctuates whatever a little bit we'll consider that even and if it's outside that off right manageable level so that you're not getting starts and stops that would interfere with a mass spectrometer or whatever that you hook up to the chromatography lab equipment so unlike say asimov which is concerned with do you want  in fact shutting it down would actually be contrary to the whole purpose of this invention which is to make sure that you get your results so that you can perform your drug discovery or blood analysis or whatever it is that you see quitting for ok transparency used for mass flow transducer and somehow your opponent is arguing that because it's not clear what that is that by definition it might therefore be a shut off  and it's all about maintaining this even floated to avoid all the fluctuations so i don't understand how you can read that in say well it's about stopping it so those are the servo there would have to be adjusting rather than simply sending a please stop now now oh absolutely it's adjusting so that you're you know that what's happening here in the system is that the the pressure that this is clearly possible or compressible fluids that behavior about a cleat fluids behaving badly is the way i like to say it and the whole idea here is you want to do something that is taking into account all of these that status changing you have pressure and temperature changes you want to keep adjusting it as it's going along to account you i have to remind the board this is a broadest reasonable interpretation can i ask you about the threshold question i'm sorry that the point that i guess i'm fixing on is the fact that aurora with a real interest in the dispute i mean respectfully your honor i would say no the case below stated there's been no opportunity for aurora to formally withdraw is it true that that ad that you objected to adding agile a defendant i had i wasn't following and i don't know for sure but my understanding is that the document that is quoted in detail in the tank declaration makes it perfectly clear why didn't you submit the whole document when there was an argument made that rather this wouldn't be the best evidence and that the court shouldn't consider it and and we still haven't made a determination as to whether we could consider it why didn't you submit the whole document what because it includes financial terms and we thought for purposes determining jurisdiction or just loading trust you that certain things that you're on are all we need to know we're happy to submit the whole the whole document if you have any doubt about this but i i take exception to counsel suggestion that they objected to the tanker collaboration in reply on the motion because it did the what it evidently objections only read the quoted language it's very clear that the the assigned assets include the business and the reexamination and the liability there's no definition of business well the business is tank declaration to try to to try to make it very clear that there was nothing mysterious going on here that this had been a complete asset purchase and all the rigs emanate rush from the sun when we didn't get in objection to the tank declaration on the motion we thought that it was sufficient evidence of that we underline legal fact so as a matter of state law i don't believe there's any doubt that agile industry the successor in interest and that the third the right of a third party requester to successor in interest that is a legal test under state law i certainly don't have a lot of experience and i can't be nearly as certain as you know so what is your best light for why that's true your honor if it if it's permissible i'd like to submit a letter with my best side i don't have that now but i i would refer the court to the cases we cited permitting the transfer of legal rights under other statutes in in in litigation you can transfer defenses you can it does and that's why i think our position and we try to make this clear in the papers and i urge you to read the papers because we try hard to explain how all of them why we are successor in interest the right of a third party requester can be assigned and using a legal document like this and that gives us appeal standing to appeal to your opening brief you actually describe it actually as a pretty and you actually make a party its successor in interest third party requester we used we use this language privy in order to try to convey this legal right but once we started briefing this it became clear that our standing is faced as our as i both for their argument it's been very helpful next let's move on