provided sufficient notice to the applicants for the basis of his objection of claims one through fifteen seventeen through twenty four and thirty three thirty four who didn't separately argue that the and in plans before the exam  the claims were separately argued in so far as the independent claims and then we had a rating that the dependent claims also didn't incorporate those limitations you know i'm sorry i don't understand that it by separately i would contend that you didn't before the examiner the you only argued that the limitations of the independent claims were not present in the prior or as i understand to give detail as to each claim limitation but you didn't point out to him that you were separately arguing these these and i'd say yes that's part of the context here when we with obviousness anticipation and whether or not each and every limitation of the claims met is either done explicitly or by inference with obviousness the examiner is required to explicitly contend what the differences are between the prior art i cited and what is claimed to make a determination that claims specifically the deep end claims are obvious in light of the let's suppose we reject that and say that the the applicant says no no i want them to be considered separately because i don't think some of these dependent claim limitations are present in the prior let's assume that that's the case then you get to the p and for the first time you're arguing as if all these claim limitations are missing from the prior art as i understand it you say under beaver that that sufficient to raise the issue right yes  similar arguments being made and there was an indication actually about ability or was it was a global rejection i take it wasn't that the examiner didn't at that point tease apart the ended and i have the sufficient notice to understand why after the exam or at indicated allowed them to have certain claims and then had allowed certain claims up until the point in time that the third reference the tertiary reference had been applied for the rejection the client so we were still trying to figure out why it claimed that had been in it allowable over previous prior art including ben and which were the primary and secondary references here would now be any require any different argument that the examiner though should be treated separately and i'm not understanding what the explanation is for not doing it maybe it may be that you don't have a problem it may be that you don't have to argue that before the exam but the fact is you didn't argue for the exam the question is should that make a difference in terms of what you are allowed to do or what you have to do when you get to the board well i don't think you have a dividing line just to the board i think the same arguments which were made in the opponent's bridge at the board can be considered throughout the prosecution as it's not just a picture of oh in the in the third final rejection in response to the third final rejection which the applicants did not reply when the examiner did before the board come up with specifics as to the and it plans which he did in the answer before the board yes for the first time for the first and then you didn't respond to that the question is you know having not raised this before the exam or having elected not to file a reply brief the question is have you adequately or given the issue i would say your honor that the failing to file a reply brief in reply to the examiner's first mention of india calculable differences to some of the depending claims was made because there was a feeling on applicants part that they had sufficiently or good each and every of the claims in their opening brief in the in the belts brief and patent office practice does not permit nor does a request really arguing arguments that have already been made but their think that it's a combination of the circumstances in this case your honor that is the difference first the the issues joined in front of the examiner where the hand ability of claims one thirty and the issues in that regarding front of it and the examiner responded in love and chose not for replying i think in that situation at least it's appropriate for the board to find a waiver where the only argument made was completely rebutted at the first opportunity examiner had to re was not my understanding of the the ground for the board's decision i didn't understand the board to say that the either the failure to argue this with sufficient segregated specificity before the examiner or the failure to file the reply results in either a forfeiture are a necessary judgment on the merits rather the board seem to say you didn't separately argue these points and therefore and for that reason and for that reason only you have waived the your right to do well separate treatment of them and then didn't address the merits of the the various  understand that to be part of the board's rationale my understanding was that that may be true but that the board's rationale was predicated on the failure to separately argue the but you look at this and you would conclude i think that this may be somebody but there's an argument there and i mean in the case of each of the dependent claims if if this were a brief before us i would think we would say well you know not much of an argument that isn't detailed and it certainly isn't very specific but it's it's it's there so we can't say that that wasn't part of you which seemed to me a little prior it was tantamount to merely asserting a dispute the distinction between the claims and interestingly loving in his reply brit is the difference i mean you don't seem to me that when you say that something there's nothing in the prior art that supports this additional limitation you've made a legal argument it may be that the argument is actual but does seem to be a legal argument discrete from simply describing the says this is not taught in the cited prior art and that's why i'm titled to have an m p the board held that that was insufficient and the but we've got the problem is beaver seems to go the other way and beaver is our decision and it's  binding on the board so are you suggesting that the board can change the rules that we set forth and beaver well the board has interpreted it's its own regulation but it does have to do so in light of this court's decision and beaver and i think beaver leaves the board sufficient room to make the owning that it did here because in beaver the african actually did make an argument regarding the film back up plate and said it was not adjustable and pointed to the prior art showing how where in fact it showed that it was not adjustable unlike the african here who merely asserted that it was absent and then was faced with a response by the examiner that it wasn't fact present in chose not to respond at all on the merits that aren't or by ms if you look at page that seems to be just about a summary of what we have here that's correct but above that with respect to claim twenty on this is at page three twenty nine of beaver beaver also had are you that claim twenty one is based on plane twenty and requires that it be adjustable and it previously argued that the film guide plate was secured to the bottom wall parallel to the front of their face just a description of what the claim entails it's not an arc legal unlike loving beaver actually pointed to the prior in the most relevant teaching of the prior art and said no there's a fixed back up place in the prior art and that's why the limitation of adjustable back a plate is not met in  it's apparent from the face of the prior that the limitations are for well if the board it said that then we'd be done present at least we'd be argue making a different argument here that they did that's what it is is a little hard to understand why the board my difficulty and i guess and getting myself here is my difficulty is the board's characterization of thi don't thirty seven but no substantive change we're talking about forty one point thirty seven yes that what we're talking about yeah i am but i read that regulation doesn't seem to really address the nuts and bolts of what the issue here that we're dealing with arguing is that the board has a regulation in p they interpret the regulation to require something more than what was done here in the white beaver we ought to defer to the board's interpretation of its own regulat like to stress the first one is on suspicion us it's not so much that the examiner can just put up a piece of prior art and not say anything specific not say anything specific exactly the applicant should be burdened to divine whatever the reasons and rationale particularly when the primary and secondary references had been argued quite a lot and because the exam or prior to the they were given sufficient notice the second point that does it make in your view a prima facia correct and that was that was regularly stated throughout the prosecution history from the first non final rejection through the third and final rejection and at least up to the second final rejection and during the interview when the examiner had allowed claims one through fifteen seven through twenty four and the reference ops up without any kind of description how it meets the the the admitted defeat deficiencies and an african didn't know what to do in that regard the board suggested we should petitioned and that was such a ludicrous statement because the board says that's for procedural matters it is a legal matter for the examiner to give a sufficient presentation case to provide that sufficient notice in order to  some of them frankly are pretty thin i mean deep in a claim that ends the notion that you have deceleration of the parts it seems to follow pretty reasonably that the celebration would be