so your contention is that well that there has to be some process some sort of bonding process which is coating has to have some structural meaning and in this case the parties actually agree as to what both the structure was and the import of that instruction that that construction the party said that in a better protective coating is one that is integrated and firmly effects but that that integration results in a coating that is an interim interim and interpol component with the underlying engine coding and that results in structure necessarily and certainly follows from the use of that structure in order for you to identify that the disclosure of the method of manufacture spraying a coating  discloses the underlying structure of what happens after use for that code and here be only evidence that was submitted by either party related to what structure results from the application of the two problem because that seems to suggest that the spring process can be in invented we don't disagree that the method might result nobody agrees that multi piece means multi layered well you agree to that but that's just you well it's and dr herman does as well ok great you have an expert to keep going so you multi piece or multilayer whatever length label you want to put on it what is describing is a distinction between levels within your being brief that page nine  what polytech does say is it's a multilayer cover and it discloses that ad in the abstract of the invention at page three line eleven where it says is so so  right i don't quite know how to answer that question your honor i think the word embedded has to have a meaning here and so how one would embed one layer into another layer so that the two layers are form an integral component with one another and form a single piece as interpreter i don't have that information the board down below suggests that there might be a way of physically interacting two cured and then you inject the foam but the genius of this invention is you don't let it fully cure and then you inject the foam into the mole and then with the non fully cured paint somehow integrates with the foam so that it all chemically bonds together that was as i understand your expert testimony that's correct answer to what in bed it means and the problem i have with that is there is just no written description support for all of this i mean if that's truly your point of novelty of injecting the foam cheerios into the mall the forward the sprayed d on paint fully cures that seems like some after the fact invention by the experts and not actually anything that's part of the four corners of the fifty nine to th that's the concern i have right now i don't see anything in the fifty nine to that that has this elaborate explanation but thanks for came up with i direct you again to the discussion of the background that differentiates the understood what it meant in terms of the eventual function of structure of a final embedded coating and so i think that there's expert testimony here that supports the construction as one of ordinary skill in the the term and again the term imbed it needs to have a meaning here and it has to be something different then as both parties have identified having two layers that are just that you're torn another i see i'm in my rebuttal time i'm happy to answer any questions otherwise i'll let you speak ok thank you morning please the court i mean the simple issue here is whether polytech teaches the embedded protective coating limitation of five hundred and ninety two pattern in and i appreciate your honor's acknowledging that we do not have agreement on  clean structure we proposed to claim construction they opposed it and then they come back and say that they agreed to but try to do a little bit of linguistics about layer and piece the simple fact is under the court's claim construction  of that the polytechnics simple fact is that their expert everyone agrees that the polytech reference results in a one piece engine cover having a foam core as well as a design surface that can either be a spray skin or an in mold coating and that's really all that was required because that's all that the claim required and as they said here and they try to dissect the teachings of polytech about that there's not substantial evidence to support the board's decision about polytech speech and the irony is is that that as your honor noted what polytech teaches the sufficiency of the disclosure of polytech is exactly the same disclosure as in the five hundred and ninety two that the five hundred and twelve pat makes clear is the board found when you're looking at what the embedded protective coating is that the invention the same as polytech was to solve the problem that existed that required two separate engine covers one that had a foam body and then another one that was a new design surface with a separate plastic piece that had to be attached what the applicant in the patentee told the patent office in the background was that required two pieces are novelty is that we've got one piece it wasn't in some special process of in the old coding in bold coding at that time was well known it was particularly well known in the automotive industry they told the public is that we have been able to apply in most voting such that we've got it all in a single piece and that's the exact same thing at the polytech reference top it sought to solve the same problem it sought to do it in the exact same way by providing a single structure in the example coatings that it provided to apply to the design surface were exactly the same as existed in the fifty nine to batten and your honour's that really is wo different prices you're not going to have any why what is the board that well the the board looked at that testimony as they were advancing it because he was asserting the claims required some sort of chemical bond they were saying that the embedded protective coating required that there be a bond between the foam body as well as the coating such that it became a quote it that this chemical bond is achieved meaning how do we know and he says it's based on compatibility of materials if you have a polyurethane foam and you have a polyurethane paints which is what's disclosed in the five ninety two pattern you're going to have the reaction because they're compatible to yield a chemical bond but you look at polytech in this is from dr wagner's testimony as well they also disclose a polyurethane foam is exactly the same the same an cure makes no difference if it i guess you know it could make a difference as to whether or not there's different layers your honor i guess that is their argument as to whether or not the the prior art has to teach that the there is an integral engine cover it one piece engine cover that has both a phone body and the coating upload applied to that phone body surface  does use the word integral it all girls uses enterable skin it uses doesn't use one piece but it makes it clear that it's not not separate parts yes that was the language i was looking for here on the same thing yes and you can see looking figures two in three words figure three is a figure two is a cross section figure three is a perspective you were there describing the phone body having the design service and then if you look at figures fifty four dollars or five i believe it is where they can make clear that there are there for pedestrian purposes that they actually attach a plastic piece over top of the foam and so that part of the upper foam surface is serving as the design element some of it is not but the point being is that said later but as to these in body image they're making it entirely clear that the foam on the upper part of the foam surface is the design surface that it's all in one piece it doesn't matter whether or not it's a there's a so polytech when it says integral it's talking about it understand with a single yes your honor that's exactly right they're basically saying we've got a phone body and then you've basically got a layer of pain diana how that layer of paint or how that coating gets attached is just simply not a requirement of this claim as the board found nor can they point to anything in the specification by a list you're otherwise that's going to support such a construction as your honor noted it's really just an after the fact imagination of their expert to try to come up with some distinction between a claim and the and as the testimony of dr herman showed us that term skin does not refer to the relationship between the coating and the underlying foam it refers to a particular product it's a matter of fact it refers to  a term of art for a particular kind of way of making fun and as dr herman testified that way of making foam can't actually isn't relevant here because even under modern technology they can't make the foam medium density in the middle of it and so therefore even if it has a skin it's for an irrelevant product now the most i think interesting and i think misleading part of the polytech reference and where i think that the board went astray here relates to what i think this panel has has referenced is the reference in peer paragraph three to a design surface and its being for formed as part of the sound absorber now we need to be clear here the allegation based on petitioners allegation and based on the board d was that there is a coating that is applied using particular methods so that coating applied someplace well where is it applied paragraph three page three lines forty five states that there is a design surface that is a part of the product and polytech but the next line says the design surface can be optically enhanced for instance by surface treating and i skipped some words down to the end by surface treating the foam body for instance using in mold coating or p use for a skin casket so the design surface is not the coating it is the surface on which the coating is applied and there is no disclosure in polytech that says that there isn't any sort of a relationship between the coating that is applied using those methods and the underlying design surface instead what the next sentence says and this is the page three line eleven the president invention relates to a multi layer cover now i understand that there is some that design surface has a surface of placed on top of it which the polytech then refers to as a multilayer cup so what is the layer the layer is that extra coating that's applied using the method of manufacture that's disclosed now we understand the challenge on the clinton struction the parties here however have agreed that the term embedded must means integrated meaning to that term and here the only evidence that was presented as to the relationship between the coating and the underlying form comes from patent owner tax for all of the other testimony from dr wagoner and then your five hundred  but one of ordinary skill in the art of taking a look at that specification seeing that the difference between the prior art and this is the difference between having one layer and two layers and that the fact that the word embedded has to have some structural meaning that dr herman testified about what that meaning meant not to him it meant a chemical bond between the two the board disagreed and said there might be some sort of physical  integration of the two layers either way it requires a particular structural relationship and one that we do believe that is not shown here can be shown by just assuming the structure produces is produced for take your function from a particular manufacturing