limitation in claim one the second is the last limitation a claim on which is the restraining element is disengage by pressing the second arm of the  tack before i go into those issues though i would like to discuss the figure seven of the patent which i think is a very good way to visualize what these issues are the movement of the tab and this is appears on page six of our brief figure seven shows the first pivot position which the ta the there is a line notional line that separates the first side and the second side the first side is on the right side of the drawing the second side is on the left side of the drawing you can see in figure one there's the first arm that protrudes that's one ten and there's the second arm which is within the  when the you can see that the first arm is on mostly on the first side the second arm is on the second side now in operation they are a tab pivots so that the arm one second arm comes out to the first side and the first arm goes inside and when that happens the tab is in it's a gauge position and the window is free to move so in the second position the second pivot position the first arm one ten is entirely on the second side as recited the cling the second you moveable relative to the housing between you and it's between the first pivot position in which the tap is disengaged and the window is closed it's blocked and there could be other movement of the tap but to meet this limitation you have to have movement of the tab between the first pivot position and the second pivot physician which is entirely pivotal language refers to the components in the restrictor that the second comprising language refers to the first arm of the second arm which constitute the tab but the comprising we agree that it's open ended that there could be additional components in the clinged restrictor and it had itself could have other movements but the movement between the first pivot position and the second position has to be pivotal it can't have other types of movement in it so the other side says that we are where does it say that i mean even if you're saying that it has to be because it has to be between it can't do anything else but it doesn't say entirely at all as you just i'm i'm saying that the movement between those two positions as to be entirely this argument is a joint in our briefs our position is that when you have two physicians and you talk about movement between the two positions you're talking about going from one to the other what is meant by the word between in the context of movement if you talk about the word between two positions in a static situation that is judge of mally you are between stall i agree with that but if you say you are going between judge clevenger and judge baugh you are moving between you're moving from one to the other you're moving between them i think it means the board specifically found well what they said was by by saying that our claims are obvious over adams what they were saying is you can move between the first of a position and the second to the position position to judge sauls position and the examples that we gave in our argument i think makes sense to all of us in the way we use the word between in everyday language so you talk about i'm going  i'm going between metro center and dupont circle subway stops it means you're going from one to the other it doesn't eat the other let me start  i'm moving between capitol hill and georgetown by pivotal movement by the bus that means you're doing the whole thing by the bus talking about moving from one position to another by a particular kind of movement and that is too little movement which would warrant as aforesaid reading into that the movement between two positions can be pivoting only so what happened just put it in some context about why the boardroom looked at whether they were surprising language or looked in specification is because the board reason that the claim simply required that the tab was capable or operationally capable of pivoting somewhere between the two positions and so look for some reason to narrow that claim constructions as it was being urged to by the common owner because of that it looked at the claim language to see if there was anything other than open ended language it didn't find anything i looked into specifications to see if there was anything a specification that would narrow it it didn't find any so based on that it applies the broadest reasonable target taishan which is the standard gave the claims their meaning that strikes everyone at first at first glance that between doesn't require any more limiting language and it certainly doesn't require limiting language of only from a to b and so you're really changing two things as you pointed out in our preacher changing between to from and you're also saying it has to be without any other movement so we have to really massage the claim in order to arrive at that claim construction and aboard i think reasonably so found it wasn't was not warranted but what's your response to the argument that's a comprising language the language of the claim by itself requires only a tap to believe movable are capable of rotation relative to the housing between two distinct positions now it's being asked well gee we want you to narrow that claim and we want you an ara claim so we can avoid a piece of prior art and it did what it should do it looked at the rest of the claim language and a specification to see if there were some intrinsic evidence step of weren't that and if found on and i would also point out that below you know the argument that you were hearing so there's an comprising open ended languishes no structure there that would limit it and there's nothing in the specification that would limit it and there's nothing in the language itself that would limit so we need some reason to further narrow the claim and the board couldn't find any what was relied upon below really not the arguments that are here and here mostly what was relied upon below was the submission of donors expertness the hawker who's basically reasoning was if it says critically movable if it has any other movement show that a person of ordinary skill in the art wouldn't hear that language piddly movable between two positions as excluding every other type of movement in between those positions so i was you know basically showing that  traffic evidence was not proving the point the intrinsic evidence doesn't give any reason to narrow it and the lawyer argument certainly doesn't give any reason to narrow outside point just pointing to something in the intrinsic evidence or something that the board should have credited and didn't outcome is harmless because the board actually applies what apple products requires in other words what the board did was we knew our product was pending so when the when the motion was made we presented our evidence that the place the that is that the you have to look at in the opinion about why it drew the conclusion that the pattern owner hadn't met its burden and how it concluded that was because we met our burden of proving that the claims were invalid so if you read the rest of the opinion there's a clause the comes after that and if the because is the reason that i can find that the motion should be denied under the then existing standard is because  about based on where they're putting the burden of proof the reason they didn't report the evidence of today and put in any reply after we put in our evidence on opposition to the motions so at that point if you look at the opinion as a whole distinguish i'm not reading that language but certainly certainly understand if that's what you're saying the other place that you can look to is we made other arguments we did make the argument that he didn't sustain his burden on the motion on one twelve he said there was no written description support for a closed ended limitation of consisting only we also made the argument that he didn't meet its burden because he didn't distinguish it over all the prior art of representing to distinguish it over atoms and if you look at the boards opinion on page forty four it states down below and so since the record is closed well the record is remote records and closed can be reopened for good comedy show so where we can be certain that the revenues forever what would be there so really i don't know what the reason the sure i will let me play advocate for my client that there is no reason there if at the beginning of this process the moving party was under the impression that idle systems was the control thing they said is we're denying your motion because you fail to distinguish overall the priority record it's not what happened here what happened here is the court said we're denying your motion because the petitioner proved those claims would be invalid with handling these cases but also the packet remains valid until we get a mandate so we go back down have to come back up wait for an appeal patent since out there and this is a real world situation i also want to point out that there is waiver but it's still discretionary there's nothing that says you have to remain in this fact is certainly within the court's discretion i think everyone got a fair shake in the records close to take it up or just the ninety people as failure to preserve the law so that's completely within the court's discretion and we think it ought to be exercised here ok thank you but the second point i wanted to make about why this case should be overturned it has to do the last limitation of the claim that is the limitation that says that he had is well you can't newly added limitations for not happily distinguish claims fifty one and fifty two over the firing because if you look at the pinion as a whole it's very ambiguous about whether they actually believed that that that the who has the burden of proof on any issue is the first thing that a court considers every time you've been court the judge wants to know who has the burden of proof and to me it seems so central to the question of who the burden of proof had on the outcome i think it's really impossible to know  the reason i went through the figure seven at the very beginning to show the first side the second side how the tab moved the point of those limitations in the middle of our claim about the first side the second side all had to do with the operation of our system going from an engaged position to a disengaged position and according to the board's understanding and what we heard from a belly it is through just touching the tab to create a disengaged arrangement for one position and then moving to gauge position and that is what we were trying to get at in