you please the court today we're here on an appeal from the feet in specifically on an interference decision the focus in this case is on the  but the but the problem is one problem that i see is that the specification refers to etching and that etching quite a great deal and does not use them interchangeably how then can we give the same meaning to terms that throughout the specification seems to have been used separately with separate meaning actually it's it's really not used with separate meanings your honor but it's certainly not used interchangeably either i would argue yes that it is used interchangeably in the sense that if you look at  and specifically at lines nine through seventeen it states there that in this invention there are three ever decent areas created by control of process conditions each one of those scenarios your honor the iover d c is greater than wrong so the invention only has three scenarios and in every one of those scenarios it requires more etching than deposition and when it refers to the step the application of that step to what layer refers to that is edge which is more removal than deposition it stated this this is straight again in columns six of the impact what the focus of the board and chang is is all an individual atoms and their construction of the claim suggests that if you remove individual a from the layer at the bottom of that the that's enough for etching even if you've been crease the thickness of the layer at the bottom of the via but this is not general confused about the claim itself because the claim doesn't down at the bottom of the via and those ions can either stick or they can knock other ions away and what happens in this is you can have some atoms at the claims that's that's part of our point with this entire case is chang specification describes to deposition steps the purpose of their invention is to first deposit a protective barrier layer as your invention requires a deposition at the bottom of the b s that as part of the second step where the etching in the poly elsewhere takes what it requires at the bottom of the v a is more removal of material than deposition i don't think you answered my question does it contemplated positing at the bottom of the v a in the seconds that i think it it does contemplate than one if you're here you're talking about a lot of things that are contemplated throughout the year written descriptions but there's you've got problems with the clean language itself at its judged like point out that only deposition that's referred to have to have a thinning of the layer that is more removal then there is deposition we think that's an improper construction and that's why chang does not properly disclose the invention is properly construed when you say more removal than deposition again at the bottom of the vs there is etching and it says that they take some of the barrier material away but not all of it and that's what your claims are correct and that it says and own with this type of a process you have ions that are in pinching upon the bottom of the via some will stick others will knock other a away what we're saying is more atoms are not the way at the bottom of that the then stick and that's the way these processes work being that's part of the itching process that is part of the etching process when you use a remove more atoms then what stick was a board is saying and what chang is saying is that if you look at an individual atom zooms you not one atom off that's sufficient to have removal scenarios of the invention only three this is exclusive this is not us limiting to one preferred embodiment this is the only embodied in every one of those scenarios of the invention it describes pentagon twenty seven your honor i guess first of all with clean differentiation it's a guide and it should not take away from the clear teachings of the specification moreover with those claims that are pointed to in terms of having ear d ratios there's ratios or are describing not only at the bottom of the fia but also in other places such as the feel so there are additional limitations in those claims so i would suggest that reading the specification and in construing the claims in one of the specifications is a much stronger indication than the claim differentiation argument is because there is already claimed differentiation you keep referring to atoms and more atoms are knocking away than are sticking but how does that equate with the barrier material which is what the claims talking about a very good idea are these atoms the barrier material so that's part of the problem here your honor and in the process you have a first step is ition step and that deposition can be deposition of for example tantalum once that first step is ition occurs what respect he teaches is you want to then that layer because resistance the way to reduce resistance is to thin so in the second step what is done is you at church and you have to remove a portion of that barrier material so that it stick at the bottom you have an increase in the thick if you have more adams hitting the bottom of the strike and knock away existing tan on adams from that first deposition layer then you will have reduction in the thickness here we're saying that etching you should look at the layer not what might happen to an individual atom because if you only look at what happens to an individual adam then you can have an increase in the thickness at the bottom of the via that goes against the entire purpose is the in tipis of the respect the invention respect he clearly shows in teaches that they want to then that consideration was it said well you lose even if you're right about the clintons for auction because change is disclosing that change in example three and so what's your response to  that number one if you look at the decision they pretty much gave short review of dr ruse ics testimony because they did not agree with his claim construction they also then referred only to the language of the changs specification and what it discloses and if you turn to the chang specification you'll  it does not mention reducing resistance of the barrier or the substantial evidence situation the chain had an expert declaration and so are we in it and we have a problem relied on the text of the specification in the text of the specification does not provide substantial evidence that chang disclosed the claimed invention the reason why we say that is if you look at examples three which they relied upon there is just one statement in example three that says during the second deposition period handle him from the first step is ition period was respond or with excess panel and being removed from the upper opening in reshaped near the area of the bottom so we're talking about a deposition staff they say that there is a removal at the top of the via were split deposition occurring if there is removal at the time because we're talking about a deposition staff moreover if you compare the figures figures three and four you will see that they both have a narrowing at the opening at the top of the dia with the board is saying is example three is a combination of example two then want however in in figure five it doesn't show and there ing of the opening of the moreover if you compare the steps medically if court there is judged i noted there are two independent grounds for forming the board judgement one is that the board found written description support with respect his proposed construction and construction issue the board said it was using the broadest reasonable construction you when you're red brick don't depend on that but does it make sense to use about its regional construction this context where you're assessing the rights of respective parties and you're assessing them in the light of an issued patent or that that written description of it as an issue said yeah i did it for decades process reasonable construction has been used and interferences and in fact looking back on the history of the process reasonable construction standard i believe interference with the first place it was mentioned both parties are just the broadest reasonable construction standard for the board i agree with you in this particular case it's our position that our isn't the only reasonable construction so it is not of that much that's the issue before congress today and that p t o proceedings and get your construction where there is a right to amend and respect we have the right to amend involves currently the broadest reasonable construction i mean the difference between those from the district court  can address first substantial evidence supporting the board's finding even with respect to construction of that action council mentioned the responding with reshaping at the bottom of the vision and council repeated the argument that was made to the board by respect the fact that responding was confined to the top of the way for some street structure the issue here is whether a reasonable fact finder could reach the opposite conclusion and there's ample evidence for reasonable f application teaches that the availability of material from the first deposition step protect the bottom of the deal from breakthrough as our expert testified breakthrough is only affirming the board's judgment but yes the nine something some pattern uses the term at ching broadly and it uses the term that etching to define the situation where edging exceeds deposition and there are claim are the board found written descriptions support for all of the claims that are currently pending on appeal including those that were psychiatric to the position racial greater than one at the bottom of the view there were some coins of a limited for reasons unconnected to the interested in the original decision and also addressed in a reconsideration but that's your view as to why they had to address that one because change in forty seven is specific about mid etching and so it has to be supported by written descriptions specifications yes it's wrong so you think we could affirm the board's determination without reaching the question of the claim construction of claim one absolutely but then that would so what you're saying is that we can't dispose of this case on the plane construction because that doesn't answer the question of written description support for point forty seven of change that's correct exactly what was occurring even saying that nat action was bad you some english you would change positions in the middle of the cross examination he was not really forthright coming forward or acknowledging things and then i think you know the that was the reason for the work rejecting their expert the board rejected their expert because they said he used the wrong plane construction which seems to me based on what you've been saying is a logical flaw in the board's analysis because you're saying answering my question to the if i were correct that the board dismissed their expert on the ground the use the wrong plane construction that simply is not tenable right hand for dismissing the consideration of that affidavit with respect to  forty seven because in chiang forty seven you have teams that actually construction i agree your honor if the board had merely said to use the wrong claim construction and therefore we are going to ignore his testimony that would have be testimony that a summarized on page eleven to thirteen of the original opinion includes to use interpretation of what was happening in the six seven one application specific lay what was happening in example so and my hesitation on the construction that i do think that in making factual assertions on client instruction if those factual assertions are so incredible that that can go to the witnesses credibility on other issues but i think what we've seen here is that the board didn't just consider his testimony regarding what the term matching should me but also what the examples taught and as the board said looking at the scientifically the application does not make sense when one interprets it as limited to deposition only in the second step the exam but i mean if we go through what the board found not to be credible on the part of doctors which goes to the very heart of whether there is not a chink in the example of it where they say that aware they say we we don't find it credible for some reason other than his adopting the wrong cla moving away from the claim construction to the written description again how does trying to account for the differences between example three and the other examples the temperature the duration the narrowing at the top this was the subject of expert testimony first of all the narrowing of the top example one is not described in the tax as having any problems with the top of the v a this is an interpretation that was provided it actually is the fin is mentioned as having a good structure on the top of the b s so it's a combination of example wanted example to sample to perform for only a very short period of time an example three this was the subject of expert testimony an expert did say that the teachings of example one were combined with the teachings of example two to give example three are the key feature for whether or not etching is going to hurt the substrate are right for analyze the substrate example one an example three both under his analysis produce not a change at the bottom of the v m both are described as being sufficiently high substrate viruses you know the burden of proof  on the other side and they provided no proof that actually what occurred was only example one and not with examples three are expert product proof that  combination gives the structure that was disclosed in figure five as the board said the application doesn't make sense without a net a change in the second step if that is what it's all about the naturally distributes t material produces the shape that's desired of the way to the diffusion in the corners finally in the claim construction issue this application in the specification in the one seven seven clearly distinguish to direct the court to the figures in the chuang application one specifically page twelve ten of the appendix and figure three and figure four right on top of the figure three is right on top of figure four and that's example wanted an example two from the specification you can clearly see and both of those figures that there is a narrowing at the top of that the there is a narrowing at the top of the data if you combined those two figures you would get a further narrowing at the top of the  you would not get what is shown in figure five which has no narrowing at the top of the visa when counsel said that there was no narrowing at the top of the day and example  just look at figure three it shows it also doesn't say that at the top of that they are there's no problem at the top of that they are they just say it's not as big of a problem as it is in the example  figure three and four just looking at them shows the example three cannot be a combination of examples to followed by one and in terms of the calculation of the thickness at the bottom of the data you can do this calculation very easily it's in the breaks you can use the deposition rate from example to and review analyses and decided that he had to go at it alone in order to get the result there was no ignoring of peer review references and i'm not exactly sure what we're seeing referred here is but in addition to the basic calculations the things that you can do yourself without any problems simple math he did a trade on spidery trident sputter yield analysis which is very sophisticated software he also used semi imperial data from many different reference you did this three different ways and why did he do the last two ways because he recognized that example three was does not even provide all of the process parameters that are necessary to know what you might get at the bottom of the via for example the gas that's used in the plans and everyone talked about oregon but the specification the chuang example doesn't even say what the gas is not all the process parameters are there we told the patent office that vickie who had the equipment to be able to repeat the example it was chang they're the owners of that equipment thank you you're right thank you for like