the first claim instruction error is with the term selecting and this is selecting an access rule the second error is based on this selecting the rule based on the contents of the packet what is the contents of the packet and then the third is the word implementing and of the many with respect to the first of those you agree that ruben shows the really different strategies in that it also shows combining those strategies it doesn't show three different rules no no no no heist mask as a three different strategies and it shows combining different strategies it shows three different strategies it doesn't it doesn't it doesn't ever say that you can put them together and pick from select from one there's a reason but it does show putting them together and using them together no i don't believe so i believe i believe it shows three three distinct strategies i think if you look at th strategies it doesn't show selecting or an access rule i don't know the access rules are different than strategies blocking strategy are not the same as access rules well what the board seen i think that's that's exactly three strategies and and would fix the right one for walking under a particular circumstance that's not my reading of the of the opinion your honor my reading of the opinion is that the board said that my reading of the anywhere were right you it only requires citing whether or not to apply a single rule that's not the ordinary meaning of selecting and it's not consistent with the specification in this patent this patent is a selecting throughout and it never uses to go back and look at what the pattern says but that was in addition below we didn't have to define rule or blocking strategy the point is you have to you have to still select one select one from many that there's  under our construction apply the single rule that you're you're reading the words opinion differently than i am it's a process dangerous thing for me to do clear that selecting does not require selecting one from where i've selected this glass for drinking is that a problem how many are up there yes this one and you get it that is that you didn't select if you if you selected whether to drink if you have you if you want to if you have what a single card elected whether to drink and i selected the glass to drink for you had that's not an option if you wanted to drink what we were other options r i'm not making a selection the normal meaning of so we start with ordinary meaning but i understand that this is ordinary meaning but you also have to do this this construction lot of specification and there's no use of selecting or select specification that is consistent with only applying one how much flexibility should we give them since they have the broadest reasonable interpretation authority it's a no a rule issue your honor you don't give them any deference with respect to what is the fine construction of the word selecting particularly when here they adopt a definition that's inconsistent with the ordinary meaning and it's inconsistent with the specification now i don't disagree that it's the broadest possible definition it's possible the way the way you want to use the way the board want to use it the same selecting means choosing what you think it's unreasonable it's unreasonable and it's not in light of the specifications of your requirements it has to be reasonable  specification and in addition if you look at the claim itself the claims the selecting and access rule the what's the next thing you do you implement the rule well if the if the claim if the claim allow us choosing not to fight a given rule how do you  that you select a rule of words is what does mean choosing whether or not to do a fireman what do you want to say about implementing to the ordinary meaning of implementing is and the board kicked me out of the hearing room applying a rule they'd be applying the preexisting rule they would be implementing a rule that the implementing is when you implement a policy implement something imminent strategy so implementing in this context if you look at how that how the patent is just put together that out implementing a rule to exclude you they're applying a rule if they if they say we're going to create a new rule we're going to create a new rule and we're go has to address those new arguments replies either through a surreal or the argument in this chorus and fact on at least a couple occasions so that's that's permissible for the board to consider issues that honor i think there the party is fully engaged in the meaning of this term and were able to explain the board went up in many means if you look at how the pattern uses the term implementing it never uses implementing with respect to the existing rules in the firewall you have a figure one you have the old fire law which applies preloaded rules and then if a premotor rule doesn't apply doesn't match this is where the invention is the invention is the process you go down for the you go out you select select a new rule from a plurality and you implement that rule you take that rule you load it into the system so now update the fire on the board and compass are you that this in the two cases you brought to us this morning that they turned to some extent either entirely or largely problems of claim construction i put to you this question do you think in these two cases history of instances clear or claimed drafting could have prevented your having to be up here and are having to listen to you is that possible well i understand your sentiment your honor and i do believe that out of sentiment i asked you a question i would have been possible to have drafted the claims more clearly of course i think every if that's so what burden if any should we put on the patentee of the claim you're after for failing to have drafted clearly that is to say my background is more in contract law and real property law and we have doctoring those that say you lose if you haven't said clearly enough what you think you wa i don't think that's the situation or i don't think we have a situation where the the claims are a big u s i think that the here the board charged and your review is to look they know and what is the ordinary meaning of these terms was the broadest fact and here i don't think it's reasonable regardless of whether i could've said selecting one from many if you look at the specification and use every you use every kind of sin selecting use the word selective selecting it's always choosing one for many you look at the dictionary it says choose one from many i don't think it's appropriate to say the patent owner the patent drafter was required to put in a much more complicated definition for the ordinary english word of select them i understand and they had to be clear there's no one twelve two problem here selecting i don't think there's a problem with what selecting means it doesn't seem to me to be a complicated issue i think here if  dispute you go back in and we do know that pat applicants employ ambiguous language deliberately to avoid rigorous review and to be able to claim later on broader claim perhaps than as leader of the preps or out of a not in this case selecting an access rule i don't know how much more simple and clear that can be selected access will use it if you have if you have a the prior art never should have issued if you look at what the inventor saw think contributed to the state of the art looking at the contents multiple achatz i think ruben norman clearly show that that predated the patent that was in the prior and it's also telling here your honour's in this case that there are really only three terms important terms in this claim one claim content selecting and implementing an intellectual ventures are seeking to read limitations argued in the papers below that the combination of norman and reuben fails to disclose the selecting in the midterms they simply didn't argue that with respect to the no one reference they challenged the combination of mormon written on three grams contents of the packet the references are not compatible and that ruben was not prior art well they dropped the last two grounds on appeal so the only issue this panel is left with regarding combination ribbon discloses selecting contents under the petitioners claimed instruction as to i disclaim instruction header and payload substantial evidence exist showing that norman  that the broadest reasonable construction of quote contents of the packet and quote is the contents of quote the header and or payload of the packet of quote and the board adopted that  fatally defective construction of tell you why and slash or is fatally ambiguous because you can't have it both ways and slash  it's either and or it's or those are two very different meanings so a statement that the contents of the header and slash or payload is fatally ambiguous what are we to do with honor i would i respectfully disagree of see flames in other cases that have had it in your language and their claims first second i think that is the construction that encompasses three ways that packets are chosen excuse me access rules  which both so so one of the issues here is when it's contents well it can't be both what it means your honor is that is that a rule if it's if it's header in payload information can be taken from the header in the mail or dislike role contents for ruben and i think he also of very vaguely did argue selecting to be clear we're not arguing that they waived arguing selecting with respect to the ribbon reference again under the board's construction of contents they don't dispute that ribbon looks at all to package payloads even under i v s proposed construction of head or in payload substantial evidence just exists to support the board conclusion there as well and that's because in the case of ruben as well as in norman those references disclose not only looking at payloads but looking at packet headers to perform the necessary work to reassemble packets to to refer to a couple of the points that council made that like to address first regarding selecting their absolutely embodiments the specification we point out that only reference one access in the claim it's a very broad claim that's why we're here today and that's why i've inserted it has a sort of this pattern against a number of banks including the banks represented in this proceeding as to the waiver argument we do believe that they waived again an argument implementing below there's nothing in the rex port report there's nothing in their papers if you look at the patent on a pulmonary response they only discuss one term contents the ruben does absolutely talk about combining its blocking strategies that's a j eleven eighty three and also it j ninety and that's discussed were ruben suggests combining black and strategies and i know we can we can argue about is selecting the rule is indicating a rule i think if you step back and look at all the bottoms this happened uses a couple of terms but only indicating a rule out that there are other drinking glasses up here but i can't reach them and besides which it would've been nice for me to take his drink that was at still selecting yes and in fact your choice there you're absolutely making a choice you're choosing is permanent another good analogy is if you post navigation for a job if one person shows up and she's qualified for the job you hire that person that's absolutely making a selection each blocking strategy is applied based on information in the payloads and reuben those was rob selecting an abscess will be based on the payload with selecting one of the three strategy is i would agree and i would also like to point fragmented or come out of work if you look at the patent owner response intellectual ventures makes very clear that every embodiment in this patent every one of them looks at paylo construction of course we also know that in norman and reuben both of those systems clearly describe the conventional far wall that also looks at packet headers so under their conception of the patent routing norman also necessarily look at headers and payloads again without relying on talking about you know segments and fragments what ha stuff three final points i think the selecting the glasses is it is a great example and your honor if you chose not to drink that's not selecting a glass that's selecting whether to drink the claim business a select whether to apply a misstatement i said if this court finds that reuben does in fact select and accessible from a plurality under our proposed language direction we lives we lose on that point we lose on that limitation there's two other limitations that we've argued that are independent and those are those also provide a reason for this court to reverse we talked about selecting talked about implementing content of the package i think this is a very proud of the most complicated of the three i would refer to our braves i think we have a really a page thirty of our brief we have a really nice then i this is the reason this is a little more complicated is because this is a where in clause that was added by amendment over the rejection of exam or i do think and or is fatally it's fatally defective because it's it's a fairly ambiguous but it's just wrong when the claim said originally it said selecting based upon the contents of the payload of the packet and the examiner said that's too broad but what you can do is you can select based on the contents of the pack that's narrower the only way contents of the package should be narrower than contents of the pale of the packet is if it includes something else they claim to find with the something else is claimed limitation a says the packet