understood this to be standard argument that even if you were correct on this claim construction which i think is the only one they maintain that you have no way that your that would only eliminate or  it is and then the entire analysis is just not right it's not because every reference whether it's machall it's all the or the other other band reference which you know we think also it's made interest to me that you raised factual issues with respect to the turks but i don't see that you argue that the claim how the claim construction impacted those sexual org well obviously it does because if you use show you in a different way obvious that now has to change and no arguing that now yes i understand that the did you argue that below and we we did for example on direct access in we did with did that for a special read instruction we we actually did that but it's not in that deep a very explicit a way i agree but by the yes we did that and also the argument and special reading instruction especially on special reading structuring man's you now the special that that term itself has no no plan meaning of other than you have to look at into context of the specification is the more responsibility you have to argue it before the board we get past some responsibility yes but i think we do think about it it's a question overall because it's not not much fac but but i think of the argument we may is that shows that the exam actually found it to do the fact i nees together with all the other insufficient fact finding examples here board and before the examiner there was never an issue about directly accessing as related to anything but terror saki let me ask you but the other point we've been discussing with your friend which is that you know we were seeing a lot of i p o s come up now and it is the case that somehow parsing between what we do in district court proceedings clearly claim construction mark minutes separate from the obviousness of an idiot it seems like in some of these i p r as we're seeing it's not really a positive as a claim construction question that claim construction disputes do arise in the context of of the obviousness analysis gender stand what i mean i don't know why isn't that kind of ok or give you a little flexibility in terms of saying waiver of a claim construction of clearly the claim construction issue was joined in connection with obvious us where you are first i'd point out this is not an inner party's review that the standards for inner party review like a prosecution make the examiner put forth their findings as to what was in the are the burden then shifted to the data known or to point out the errors in the examiner in the examiner determination rejection interesting we have no explicit we be in the petition or have no explicit part in that we're completely a third party so the answer question is other what may be more similar in  a litigation reexamined in or parties review here that's not it's surely the burden is on them to identify any errors that they perceive within the examiners rejection they failed to do it and it's really it's really a red herring here your honor in the back they're just trying to raise a legal issue for the purposes appeal for example magnetic disk operation their argument is really just restating the ordinary me say well magnetic disk up or a sion is an operation in magnetic disk format it doesn't raise a click x just the ordinary meaning they didn't raise it to the board the really we don't dispute in fact we established that the parent references teach an operation a magnetic disk warm so the the current instruction arguments they're trying to crazy are for the first time don't affect the outcome the things that they raise in there were considered by the exam were considered by the board so it's really just trying to avoid the heavy burden of proof instead of a stablish ing that there are as excuse me lack of substantial evidence to support the board's finding that the magnetic disk operation format was in the prior art they're trying to say well the examiner or the boomer or somebody should have to strewed the strom than we can now have an one other issue they bring up the publication dates they admit that they don't dispute the publication dates but then they say the examiner has a duty to independently the term of those publication da party's reexamined we had no burden to establish it and on the burner all the examiner was a required to do was set forth the basis for the rejection and then the burden switches to need tack to point out any errors in that this is an unusual case unusual case eight because the number of issues that are raised it's also an interesting case or unusual case the fact that almost all of the arguments raised at this court were not raised to  the vast majority of arguments in addition it's an unusual case in the fact that there are so many different pass to affirming the board's decision now i would like to address one of those pass and i want even attempt to speak and in fact they are but your honor we don't have to offer in this case on the procedural or the waiver issues all those arguments they don't even raise try to dispute our issues in their private they completely ignore the bomber efforts first they argue your honor that magnetic disk operation is not disclosed i we're arguing is that bound to which is a secondary reference that was incorporated by reference in the bottom doesn't disclose magnetic this or for that operation but on to clearly does you look at current line twenty nine to thirty it explicitly refers to hard disk memory which is a magnetic disk for them and like right your honor the other argument they make is that the special read instruction a plain six is not disclosed here your honor again they argue that adam doesn't disclose this but they don't take any issue they don't address the issue actually on the web no argument at all it's a single one sentence statement that examiner to make substantial substantial fact finding where you had or they just really ignore the exit first about who it wasn't raised in the board this is an issue that's particularly pertinent to the board you're arguing that the examiner did not follow p t o procedure but yet they don't raise it to the whole they don't pay of the road the opportunity to look at their own procedures and decide whether the examiner that had been raised at the board we would be reviewing this issue based on an arbitrary in their determination about what the examiner did and in raise it to the poor we don't have any board findings there's really nothing to review but even settle your are if we if you look at the at the record we point this out in our pre teen examiner did furthermore the examiner incorporated many pages of claim charts that were included in the original request incorporated and reference back to our arguments as to the motivation  that they raise for the first time in their reply brief that they did salmon or didn't make a six explicit finding of the level of the ordinary scale this wasn't raised in their in their opening brief they address motivation combined scope and content of examiner doesn't have to make an explicit fight and of course everything has to be done through the principle of a person or a skill there doesn't have to be an explicit finding and in fact we tax a case in