her today namely missed healthy versus merit system protection board that's appealing number two thousand and eight thirty forty six on the argument calendar will hear arguments first in appeal thirteen eleven from two the case is not moot i think i should start with the question that the court posed by fax yesterday and the reason is that there is a real controversy here in that not about whether there will be a g o but about the scope of the general exclusion order as of now there is in place a general exclusion order that applies to three sorts of products on three different categories of claims and the question before this court is whether that is too broad whether the cio should be narrowed to apply only as judge walker and bound to one category of claims the answer to of such products my clients would like to be able to produce products like that and import them but as of now there is in place an order directing customs officials that if they try to do that they will for an hour for all time until this court lifts the scope of the general exclusion order as to those two they will be blocked and there is nothing that there's no recourse for them without being able to appeal which is the new matter or even because as the briefs have shaped up i think it's the simpler of the two to address and let me begin by pointing the court's attention to page thirteen of our reply creek where you see a figure it's a figure that by now is probably familiar to the court it shows for spaces labeled eight through d and everyone agrees that the relevant claims call for clearances at precise spots along the tongue in groove so looking at that for example claim five requires locations it's excuse me spaces at locations b spaces are the same except for the fact that some are labeled were labeled differently and her basic point is simple that the concept of clearances appears nowhere in the original specification in order for this to be permissible this amended specification a person skilled in the art want to be able to look at the original specification and immediately and clearly see which combinations of space are claimed and which ones are not and there's no way that someone could look at those this paper and all of the others and realize oh it's gotta be a b or c or b in c but not necessarily a there's no way to do that in fact the manner in which the administrative law judge reached that conclusion is downright counter intuitive if you look only at the original specification for example the word clearance actually has two different meanings depending upon where which claim it's used in and so the notion that someone could have figured that out dividing the concept without actually ever having seen and i want to emphasize that this was a new invented concept the original specification from the original specification specification was clear that the purpose of these spaces was to allow for boards to drawing without particles or dust getting in the way the particles are dust would be moved to what are called dust chambers the new inventive concept here is that after they are joining these clearances in specific spot allow the floor boards to be joined optimally so that it's the optimum lock which concept appears nowhere in the original specification unless there are questions on that i'd like to turn to the infringement issues and on infringement all the parties agree on two basic points the first is that the relevant claim language requires bending and bending for two of to prove that there's bending rather than lip displacement with or haven't with what you have a you're right or there isn't there is evidence in the record that that one of the experts did such a test with the same instrument products but not all of one particular respondent that some of those products and that responding in the that responded did that test to prove the point book all products where they banned but we now have a new product that doesn't bend and so that was the purpose of introducing that so yes there is evidence that one can do that it seems intuitively clear in this world of miniature gadgetry that you want to be able to design a test with lasers or some such device that does measure things with great precision the gap in the evidence is all the more important because that very same expert said that and that he where you're talking about a lip displacement of only a fraction of a hair and then you see and hear among crop there that people easily have been responsible for that lip displacement it underscores all the more that you  like the board is that you can't just positive in a posit the theory to prove infringement you have to demonstrate that the the theory actually plays out in real life which is exactly what you know and fail to do in this case one of the things they referred to was this nap action test and they say that doctor looked first observed bending when the boards were jammed together and one is  displaced but if you look at the testimony there doctor the first be quite clearly never said he observed bending he always says the same thing i saw the lip go down displacement and he saw it go back conclusion through the test that you say the commission should have you right and the reason is they didn't need to because if the lip doesn't move at all obviously there's no bending and of course the burden is on you all of you know them to produce the evidence not us to produce the evidence to the contrary you want to save the rest of  those are products of people who are not appealing at this time i mean the accounts can correct me on that so the issue is the commission sees it is whether these the patents that aren't involved in the appeal but they couldn't do it if they confronted the patents that are involved yes your honor that is the way congress designed the statute would be to foreign producer to change a model number and try to import it and say well this is a new model number so it's not covered by the scope of the claims but the customs service would still have the discretion to determine whether this new model number w prove the fact that it was taken to have proven by the other side can't prove the point was offered to prove bad science man engineering material measurement so that the evidence should have never been admitted in the first place or having been admitted should be held after the verdict so to speak to be deficient as a matter of law and therefore the result has to be to i think that is one legal s he wants to gauge operated up toward the fixed and and he seems to be arguing that if the gauge only measures the displacement than a fried in the lip and that is a matter of proper engineering that doesn't tell of the expert to testify about it they are making sort of a factual argument that the fracture is peru's the analysis that there is a lift bending and there but they're also saying that there's a the so even if there's a better test to my way of thinking that doesn't resolve the question of whether the less optimal path is still good enough i think it's important concern as to to ask you the same question i asked mr moore what do you think their position is there and the queen fatal legal error in a missed finding of the facts based on proper evidence by the moment i think what they're saying forty five member correctly is that they're not saying that this isn't a good test to measure the displacement at the place where it was measured which is not quite the same thing is not crack that only goes that small portion of the distance couldn't possibly to see the normal operation can a lever  delivers so to just is just to be sure i understand you so you would agree with him that if we were able to correctly characterize it as a broken jaw rather than a bending piece with  some superficial cracks and portions of the surface that it wouldn't operate as a candle leaver but the break with have to be i assume most of the way if not almost all the way through the depth of the peat exactly  covers infringement of these patents and they're saying it prevents us from designing around in the future and if i understand correctly there's an issue about the expiration date of the times as well so i mean you know i take it you don't want us to no that's not how you have to do it you have to start somewhere else i'm guessing maybe back in front of the a j on all six type motion to amend the scope of the exclusion or right there is a procedure to do that court and after provisions for future products and they ask your opinion and you're asking our opinion about future products they're saying take the patents out of the exclusion or because we didn't infringe these fundamentally on whether we have a live controversy that's properly decidable by this panel on this record i think i would've thought you would have the same position for the same reason you seem to have opposite positions for reasons that are unclear at least to me yeah that's  appeal in that the challenges that are available to future orders or as of the future are or whatever they are but they do not include an ability to go back to the commission let me just make the three point good one thousand not enough we should and that's exactly so then so then with respect to the new product that you feel is not infringing you would not be focusing on validity you'd be focusing on not infringing but if  we tried to appeal and then couldn't because the appeal was added to the mood we can't go back and say to them we want to rephrase that issue that we've already lost that the court of appeals never ruled it's just not an option well wait a minute if you lose in round two of the commission then you're going to appeal when you come back here why he raised the validity issue that we didn't address in the first appeal because  would not be blocked from getting an appellate review on the validity determination your i understand the point which holds the only underscores how complicated these issues are and how important it is for us to have an opportunity