which standard this court uses it should construe the term human in the technical term human antibody to me fully human and not encompass antibodies that are only partially human and partially non human because the somehow that that's the broadest reasonable interpretation should apply the court should reach the same construction because the board committed at least three legal errors st miss melicent i'm sorry miss ellison let me just interrupt you for what i think is a preliminary matter which is one you reference which is the correct standard that would be applicable here given the criminal disclaimer my understanding is your position is that on appeal and this is what you say you twenty eight j letter that on appeal we should review the board's determination under the phillips standard you're not suggesting in any way shape or form that even if you're right about the disc changing standard is a determination of what the ordinary meaning would be i thought one of the things that phillips did was to set that kind of sequencing requirement aside and in particular in talking about ordinary meaning in that very sentence after the one that you quote about a kind of starting point the next paragraph begins with  indeed the next sentence saying notably a skilled artisan would make that determination in the context of their particular patent and so we are back to our normal rule that intrinsic evidence counts more than that there is some material in the specification principally column nineteen a little bit top of column twenty one that is very strongly  suggestive maybe even more than that but at least very strongly suggestive that the specification is using human to cover both partially and wholly and in the face of that that at least the broadest reasonable interpretation would be that unless there is something quite clear to the contrary and neither the prosecution history is nor the extrinsic evidence is clear the prosecution history for reasons we can discuss so with respect to the extrinsic evidence the board brushed aside the extrinsic evidence by saying it was not inconsistent with the specification but what the board should have asked was whether that extends to gavin and was inconsistent with the claim construction that the board then the extrinsic evidence as well should be understood in here with respect to the extrinsic evidence all the evidence from the relevant time period eighteen references that submitted as well as expert testimony and snow rd party witness all make it clear that the terms human would be understood to refer only to fully humana bodies in contrast the board relied upon the reichmann reference which used outdated nomenclature that had been published thirteen years t make it clear that an express disclaimer or just about is not required for the prosecution history to inform the meaning of a term in cases such as past and this cour state plainly that the general rule is that a patent application cannot later obtain scope that was requested during prosecution rejected by the examiner and then withdrawn by the african that's what happened here when they  overlap between the terms human and partially human just because there's an overlap between partially human time eric and human eyes antibodies but there's no evidence that supports the board's leap in logic a if you're reading from the from the board's decision i will accept that you're reading it correctly but the board was incorrect in its assessment of that intrinsic evidence for example the board made some argument record the board correctly concluded that the term human and a body includes partially human antibodies and is not limited to fully human antibodies and i'd like to walk through the relevant portions of the intrinsic record to show you why the board's analysis at appendix seven through fourteen was right can i and this is just to round up tonight ask you about one thing why was claim more we do believe it was redundant so as the board found the various classes of antibodies and claim eleven overlap and indeed even admit to overlap between three of the four classes so these are not mutually exclusive and it was reasonable for the board to conclude that the th class human also overlapped with all of the rest of their lives i guess i guess let me see if i can just say this a slightly different way maybe you know a certain kind of kill iesus would believe the patent applicant to say oh i look at claim eleven i don't need it anymore get rid of it but patent applicants typically i would think keep retimed it claims because why not it's harmless what is the affirmative reason in your view that not only was human added to claim one but claim eleven was actually cancelled it is the redundancy but you know i think importantly here we don't think this rises to the lever level of a clear and unambiguous disclaimer so at best we think the claim eleven cancellation is ambiguous so what we think clarifies the ambiguity is the very next office action sound at appendix two thousand two hundred and eleven dollars where the examiner stated that even after claim once amendment and claim eleven's cancellation these claims continue to include humanised antibodies and human eyes antibodies are partially human antibodies and we also think that the rationale even the specification passages are something less than clear and therefore would benefit from such illumination as the prosecution history would supply short of  you know the same person of ordinary skill in the art would be implicated and that application has the exact same claim eleven that was cancelled in the four hundred and eighty seven patent and if you look at claim one compared to claim eleven claim one refers to a fully human control antibody and then claim eleven refers to a human isolated antibody and so we think that these two claims together show consistent with the specification in the rest of the record that  human and human mean different things human is broader and this court in re morris explained that the burden of precise claim drafting is on the applicant and so here had in the next actually wanted to limit claims to fully human it knew exactly how to do so but we submit the reason it did not is because in the next admit fully human antibodies were relatively new technology as of two thousand and one and that in part is why human is a broader category it doesn't mean non human it means partially or fully human and i can show you the portions in the specification that i that i believe make this clear so the board relied on columns forty one column nineteen line forty one through forty four this is not the only area of the specification that the board relied on there were at least four other passages but we do think that these are developed for generating human antibodies in non human animals the antibodies the antibodies may be partially human or preferably completely human rights and just to be clear  well yes that is their argument but respectfully we believe that they're ignoring they read the rule they read the antibodies as modifying another sentence that i didn't read to you that comes before but we think immunex is reading ignores the nd sentence and i can point you to another area of the specification that supports the board's interpretation here that the antibodies that may be partially human modifies human and so i can direct your attention to appendix seventy seven column twenty one line six through thirteen it states examples of antibodies produced by immunize ing such transgenic mice are human monoclonal antibodies designated six to twelve b five and four others in the very next sentence it states monoclonal antibodies six dollars to twelve dollars b five and the four others are fully human antibodies so there would be no need for this clarification if as immunex argues human was interchangeable with fully human in fact you wouldn't even need the term fully human at all in the specification or in this field of art and in the next has provided no real response to this only used in the specification for linguistic emphasis in parallel with the term partially human and i mean actually the argument there was based on the district court finding that also did not cite this area of the specification and is one of the main reasons why we believe the district court's construction is wrong and i think that brings me to one of the preliminary questions keep us pro staff which is what's the standard here and we believe the standard here is b r i next wave any argument that b r i should not apply by not raising it at the board or in its opening brief in this appeal instead in the next waited until two and a half years after this case began to file this terminal disclaimer all to effect a standard change and we don't think such attempts at a do over should be countenanced especially when there is no apparent reason for  just ask you this question do you do you know the answer to that question whether if in the next during the i p r let's say even earlier in the p r had filed a terminal disclaimer whether at that point the board would have said ok now it's just like the expiration while the matter is before us under our regulation and we would then apply philips and not the are we are i think th thirty seven c f r four thousand two hundred and ten b that was applicable in this proceeding mansehra question and it provides that a party may request a district court type claim construction so in the next could have filed this terminal disclaimer earlier and requested that the board up sigh still up but it it deprives the board of that chance and it deprives the parties of well i don't have the language in front of me but let's let me stipulate that  next could have requested it do you know what we have any idea what the answer from the board would have been would have been no that is not a good enough reason your voluntary action of terminally disclaiming is not a good enough reason or yes it is a good enough reason and therefore we're going to proceed under phillips at the reason i guess i ask is that if it were clear that the board would have said no anyway and then it feels a little funny to say in the next that the terminal disclaimer is not part of the record and need not be considered by this court if it was not filed before the board's decision so i think that that is another independent grounds ok and calling that there is a board decision in which a different case where they rejected the terminal disclaimer before it saying that it was gamesmanship is that familiar to you i don't have iran i'm not familiar with i'm not familiar with this case but i think that the board probably could have rejected it but i think what's important is the parties would have had an opportunity to address it before the board and address that before this court the impact of the terminal disclaimer i did i was going to say if i may turn to the cross appeal if there are no more questions in the direct appeal sure but you're running into your rebuttal time so that's fine thank you ron so on the cross appeal to the cross appeal need only be addressed if the direct appeal is is remanded and in the process of peel we believe that the board's legal error was applying the wrong test for determining whether the thirteen dollars to publication was by another under one of the board improperly focused on bottle ok thank you mr lynch you've got two minutes may have please the court because i mean access terminal disclaimer is not part of the record on appeal this court shouldn't give it any effect and mentioned the c p a has done that two cases and thornton and hyle in both cases they said that because the terminal disclaimer was filed after the board decision they were going to decide as if it had never been filed which sites facebook and microsoft and fish that all three of those cases together you know about situations where i guess an apple actually there was no dispute  about the application of the claim construction and then the other two both opinions expressed say the philips rule makes no difference what so ever but but here we are with at least a statement in one presidential opinion apple saying that when something when the patent expires on appeal phillips governs and not be are i how does he maybe that's correct maybe that's incorrect or maybe that's not your view but how does that square with the principle that you said you just cited that the terminal disclaimer was not part of the record in the district court is the expiration date part of the record is that somehow make a difference well i guess it's different an apple versus android patent expired of its own accord right so the parties knew about it they were able to brief it both parties agreed the claim construction would be the same and none of those and discord went ahead and reviewed the board's b r i claim construction and in that case celgene did not brief it in its briefs the same way immunex did here and so we think this court as a reviewing court should be reviewing the board's  analysis as it didn't sell to ok thank you board incorrectly i guess twice said something about co inventor ship of the forty seven as to pass supposed to co inventor ship at least co inventor ship of the anybody six dash two why wasn't the recognizing the claimed properties of a new compound so this force possibly determined that mr buoyancy was a laboratory technician working for the forty seven  inventors did not make an intellectual contribution necessary for conception and support properly recognised this case is distinguishable from the engine guy case where there was a lot of unpredictability in the field in that case and so the plain ordinary meaning of the term human should be applied here in unix his use of the term fully human along with the term human are simply synonyms for the same same concept  art we think the district court was correct in noting that without further context you don't have to specify that something is fully human or lemonade as the as the district court called it and one example to expect to receive a full limited not an arnold palmer of focused on a column nineteen at appendix seventy six simply just not about as to the level of the definition and snow seeing the board essentially have to leave the word human in the last sentence of that passage doing his intellectual contribution it's undisputed that he is the only person who created the hundreds of thousands of antibodies from which he personally selected the sixty two dollars and a body as the best of the