slows down that you can look at the claim and you can attach fancy pattern words to each of the steps but that's all that's essentially claim and so in this particular case i think that  of forest for the trees because something as simple as that is obvious in view of the prior art first we know that simply speeding up and slowing down a blender was manually done before they were microprocessors by two thousand and seven microprocessors that are even applied to letters and there is already prior art references the teach the speeding up and slowing down of blenders it's obvious t speed a blender up and slow it down because naturally the radiance move away from the blade and you saw it so that the ingredients can settle around the with her sword i mean one of the things that may have happened over blend doesn't mean that one skilled in the art doesn't know to turn it on and off in order to let the material settle back lay so that in itself merely making that particular observation is one of common sense in the fact that it came out of the mouth of an expert doesn't suddenly elevate that statement to say this patent and in fact in the wolf reference there's absolutely no need at all to even get into this whole issue of whether it's obvious to repeat the steps well let's let's stop right at that all of it let me just ask you and you can cover this maybe what you're about to say but the board it seems to me kind of dismissed wolf because wolf so slow speed at they thought that even though they refused to find what settling speed was they said it's not the same as low speed is that your understanding of what the minder and in the seventy's you would turn the switch back and forth on and off in order to make it went better koehler is something that simply is automating that process a microprocessor that's giving a very simple because we need to look at what the invention hence the invention is simply turning on and off a blender and it's nothing more than that and the fact that they make an observation that while the pinning upon the ingredients that you're putting in here you might want to have a difference the settling speed is a different speed but that's that's also a whole problem was never addressed which was at the very heart board had an obligation scenario i could depending upon what i put in lender i can the device can infringe work cannot infringe because they're saying that that speed is their settling speed is dependent upon what i put in there and it's metaphysical because there's no it's also dependent on other factors to write poetry the thickness of the ingredients the power of the motor all these all these factors and we're told that we're supposed to go and experiment i have a fundamental that's correct they did not get a patent on that and yet now in defense of the patent they're saying that the settling speed is imperiously determent and so that means that they're saying will you go in and  says have settled about the way they're talking about a settling speed who and what ten percent has been settled that towards the plate twenty percent fifty percent were not told any of that's we don't know what this calculation when we reached the answer to the empirical can feel were this is this is is is is asking that the user go and do the inventing and if there is depending upon what you put in know that and so therefore we have proposed a definition that's very simple very direct very understandable you know whether you're infringing or not the definition of settling speed is simply in relationship to the operating speed it's a lower speed your turn it on to get to the operating speed you the program turns it off to go down to a seventh speed and then turns it back on so saddling speed actually is anything below the operating speed and that make in the when it repeats the cycle it decides to describes it and figure twenty five wolf it describes the speeds this as being for different lengths of time but that doesn't matter because there is no limitation a claim about how and it has a lower settlements to suggest that someone skilled in the art would have gotten to that point looked at that looked at the device and go oh it didn't do what i want what should i do n repeat the cycle this is it's just common sense no one disputes that that kind of commonsense existed before there was ever a microprocessor to put it in a blender people just did it automatically because it was the commonsense thing to do turning off and on blenders to get the ingredients back towards the towards the play so whichever reference you use whether it's in tessa pated or obvious you when you look at the forest for this pattern rather than focusing on the individual argue so they have to demonstrate that any single embodiments under the net money here because i didn't try to address my specific question that if you've agreed that it describes doing this manually and my question also must be greater than zero also must be lower than the operating speed so it construction that only five of us have lower the operating speed as a slower speed lower than the operating speed so there's three parts of the plain language definition just just  the claim refers to greater than zero universal lower than the operating speed and then also refers to that must be pre determined settling in must be in claim one indicative of the items in the container i think settles around the  simply so it's not simply any speed lower yeah but it doesn't it doesn't tell you how to predetermine this it tells you that explicitly in the specification of the can vary by type of machine like type of food whole range of things it doesn't tell you how to make the determination of what a settling speed is in under those circumstances how can we construe it as be anything other than a lower speed because  being only a lower speed readout the entire limitation indicative of the contents of the container having settled what essentially indicative of the items in the container having settled around the collar sample i mean if you look at the on your friends that pointed out how on earth are you going to know whether you are infringing or what is between their instances with the sweetest lower and you're saying settling speed is something different and that will describe to me what the difference is that you cannot get a patent that is not unable to or doesn't describe the invention i don't think that's the case with this but in other words you cannot get a patent on an instruction to figure something out that would be correct refused to give us a definition of set with how the way that you say they figured it out and that may be right but we can't review they figured it out so it's ok we need to know how they what they figured out to be and they wouldn't so what are we supposed to evaluate other than they figured it out so so now bringing it back full circle to the evidence i would disagree that they didn't that they didn't actually figure it out because there is a mission that home and housew rejected the construction that any speed must be operating speed with the construction as between so that means what so what we take away from that we know what it isn't and we speak only suggest so what we left with when they that you figure out somewhere down the road right depending on the size and the kind of what you're using and the like we don't even know what these factors are that you're supposed to consider as they say the hardness of the tries to decide what will improve when they also decide the questions which are to which they are limited in this proceeding it's a good question just human i don't think that they're addressing the issue of infringement  also because of their mandate their addressing issues relating to one of two and one of three their addressing claim construction but they're not addressing infringement issues as part of this part of the mandate as part of the kind of city looking at the presentation through roots what is your perception as to how much reliance the board placed on the presentation that only one side or for tonight spirit as compared with attorney argument because i always thought that the original plan of this procedure is that the administrative judges were experience and that the structure was that burden didn't carry that burden it says four separate times they present positions there on support your if i may very briefly just jump to one alternative argument basis for a phone with a session it wasn't the only  for rejecting caller and was on call or there is suspicion of medication combine and there's no response to the argument with respect to color that you wouldn't want to repeat your sex because you contradict the principle of operation so in o the issue of pulsing whether in the background section references they cited whether the manual operation that you know to disclose policy and the and the board held that that did not disclose a policy that's an independent basis for affirming you both have i'm not understand what you're saying because you know five minutes ago you will read that if we adopt their claim construction i would agree that if you thought the construction that we would lose with respect it showing bigger twenty five was happening with respect to all of is homeland was attempting to combine two separate environments the figure twenty five embodiment and everything in the background section and the board correctly noted you can't mix and match body it's was a failure of proof then on  the first issue i'd like to bring up is that pre determined speed indicative of the contents settling about the cutter of embley the other thing that's completely missing when if you and interpret that as part of the limitation that it doesn't say what what point had the content settle contents of never set of militants claimed because they didn't this is there's never a point at which the speed is zero the claim specifically sets it's of the speed the settling speed is above syrup there if if they literally interpret that particular limitation the way that there are two you would have to turn the motor completely off it and then everything settles about the cutter simply so that out that language is simply describing the what the steps above her the arm arm are we did not think that something as common sense as turning on and off a blender and then turning it on and off again needed extra end's accountants to explain to the board the their expert is not bringing in extra ends or cabinets to provide some insight into the technology the the expert is trying to simply put his own spin on the intrinsic  down so it describes that describes that process and if there is never a point at which it comes to a complete stop and says how many seconds you want to be at a particular speed it doesn't say that th literally complain at a metaphysical level that it doesn't say that you must operate for those five seconds those twenty seconds therefore maybe it could have gone to zero during that time that's pure conjecture implying something into wolf that simply does not exist figure twenty five clearly discloses everything there and this whole concept of the settling speed whether whether the board provided a definition whe they excluded our definition implicitly still did not provide me with a definition that i could appeal i had a right after placing that issue before the war it front and center to have a claim construction on that term that i could then examine and determine whether it was appealable and of what basis i would appeal that claim claim construction that was their obligation the case it's clear and without