at fourteen discussing the definitions of transparency you know fig from w w w dictionary dot com twenty one scratching explanatory notes from  materials well i don't think there's a question that for three seven does support the use of translucent because it incorporates by reference the p c t the german asked the question is can it claim priority to nine for five i think the whole question is does nine four five this whole debate here as i understand the allegedly infringing device that the attempted to design around your patent has something that is referred to as being snarky right so it's not really clear would function properly so even though the nine forty five patent discloses transparent you think that something less than that or different from that that still none of us allows for you to see the alignment is sufficient it's clear and will be covered so what about a series of mirrors like you're everywhere right i mean i actually so i have i've had lots of little kids in my lifetime and i don't know if you've ever seen it but i use my rearview mirror and then there's facing backwards because in a car seat you put a a series of mirrors that reflect off each other you see where i'm going obviously i'm sorry i didn't know you don't help me i don't think that just because you disclose transparency and clear viewing of something you  virtue of disclosing that get to claim every mechanism by which you can view two things in order to establish alignment i'm disclosing a complex set of mirrors in order to see whether two things could be the inspection of the broad lenses once they are secured in the ship of your so you think that by virtue of that you should be entitled to come along in a divisional or c ip or something and claim any method of inspection even by mirrors any method of inspection and claim priority to nine for five because it set out the goal of being able to inspect this specially is after is visual inspection not through mirrors it's visual spectacle rattling but what i don't understand is why did you bother with the professional i mean i understand that they tried to preside around but why didn't you just argue that the claim that the word transparent in the claim was broad enough to encompass anything that you could see inspect the violins is prior to assembly of the end but now you've got a problem in that you have differentiated between the two things we have different right and so you created that claim differentiation problem that you would have had i looked at the medical dictionary and said you know found that the printing the passive light was the was the definition of translucent but then he took the moon era definition sanctions meaning diffusing light the object beyond cannot be squarely seen however he was required only once you took that narrow definition was he able to find his teacher way argument to say that somehow transparent features away from chances are there's no evidence that there's there is a teacher way the specification never says that transparent or weighed in particular primer argument that you heard today which are going about claim construction no thank you structure an argument was raised to the board in fact there was no challenge whatsoever to the definitions that were used by the examiner and by the board in their decisions and sure those arguments have since been waived as judge while it pointed out the sources offered as also offered new evidence on appeal and in particular look i would  the explanatory notre merriam webster dot com that store for two their entire claim construction argument is a standard story acidy if i was considering a statute are you telling me as the judge i'm not permitted to look at a dictionary because the parties didn't cited to me dictionary not of the appellate level and the reason it is is because that the trial level or that in this case the board level is you don't have the view of what the board would have done with that definition if it had been presented to them this entire reason for the art for have position i framed my argument terms of statutory interpretation so you're saying an appellate court should adopt an incorrect statutory interpretation which will then dol future cases solely because somebody didn't point out the dictionary did not raise any kind of challenge to the definitions at all is it isn't that the distinction because our case was pretty clear that if you come up here on appeal you have additional grounds to support the claim construction that you argued for below that you can present those additional grounds from the stress of the creation or from wherever but what what you're saying is they didn't even raise a claim construction that's exactly what i'm saying if they had raised a challenge to the definition where they hadn't said that to the court that you need to construe destruction for traces of materials and that is an issue that this court will review for substantial evidence and so then and the evidence before the board at the time is supportive prize substantial evidence transparency so my problem is if you put aside the divisional if the board was looking at this and they're looking at the word transparent and they read this that's the case and that's all about being able to determine the ali that i wouldn't be surprised under b r a i if the board wouldn't say that includes relatively translucent materials so i mean part of the part of the discomfort here is knowing  where the board would go under its b r i application if it was presented just in a slightly different form well i think that's was part of the problem with the fact that they didn't raise it below is because then the board could have addressed it and we could have presented evidence on the i'm not sure under b are odd that the that the board would reach a different decision frankly because there's no requirement that the board only take the first half of the definition that they cite which is essentially what stores once they wants them to do and ignore the second half and i mention that  difficult to see anything through the material that we use and so whether smoking material is translucent or not it's obviously it's not for a court right now and if we got to that factual issue at a later trial of on infringement i think we would probably prevail i don't think any jury would find that you can you can just view the component of sokrates material but that's not the phrase that's correct it's probably not my point of what's before you was whether what the or did is supported by substantial evidence and the and the four reasons they gave that only transparently used in the one for fox and i point out the one portion of the specification that stewart pointed to and its argument is then follow them immediately by two sentences each of which used the word transparent virtue of the transparent material the object of the invention can be obtained they then the board's focused on the contrast in the plane meanings of the terms and we believe that the plain meaning of the terms that they that the board used are supported by substantial evidence and then that the board look to that visual inspection function was only attributed to transparent material this is a little bit to the on the clear visibility point that stores brought up that's what the examiner substantial evidence is that the exclusion of a paper is not inclusion of all ok and again that's supported by i wanted to make one other point regarding the whole issue of the definition of translucent that should raise it goes to the genus species and it goes a little bit to judge more to question about the multiple mirrors and that is that what stores have to show you today is that transparent is a janus translucent there isn't any evidence in the record of whether or not there is a genus species relationship between the two ones being a subset of the other and in fact the truth is that they are different materials with different characteristics prevail because if it's not a species of the janus transparent that i'm sorry of the janus translucent then they cannot prevail in the argument and even if it is then the problem i have the on that is that you have to show either  it's or a representative number of the species or there are structural features common to the members of the chain as are disclosed and there's no showing that transparent is representative of the janus translucent and there is no shocker features common to the members of the genus that is in the disclosure but the one argument that stewart makes about this features section of the what they would need to prove is that it's defined by the function sexually points with the background eventually were that eventually coined out the problem in the prior which was your pick material and then said you object to visually inspect that next one on to the summary of the invention but the background is where we should show what the inventors are looking to do and that's fish inspector components