this case may please the court your honors this case is simple the board's claim construction decision in this case is erroneous under the law and should be reversed for at least three reasons first the mechanical control somebody term that is in every claim is a nonstarter in the functions it is required to perform reciting claims one in nine are a means plus functional moment the board itself held that this claim language like model but this term says mechanical is use some sort of intro and then a silly ha ha is that i'm not sure if it is a nonstarter in that mechanical coupled with the some way really is a mechanism and i think all the experts agreed on that in this case and mechanism has many times been held by this court to be a nonst upon the expert testimony five pages of the expert testimony and used the wrong standard the p t have then went and just looked not whether the term mechanical control of somebody provide definitely as defined by this pattern owner as being as if you are control assembly which is something specific well there's a number of issues there but the main thing is is that in our view really irrelevant if you look  said is a correct way to understand the p taps decision i'm not saying that i agree with the p tap i just want to know if that is correct in my understanding what the hell did what they what the reasoning was yeah i think part of their reasoning was that we did in our brief at one point may have made a focus in our brief when we did that we made a many arguments we did not weave them contrary to what the director said in our survey reply which we were permitted we pointed out the claim referred to as a as a collection of parts so we did do that and i think that the peta found that actually persuasive when they concluded that the   right in thinking that if we agree with you about your claim construction we do not need to reach any question about whether the board denied you some procedurally necessary opportunity to put on evidence  thought about this quite a bit your honour's i think if you reach the conclusion that the claim construction should be reversed or changed or mechanical or due to a section twelve paragraph six instruction that  we're we're at a point where the corresponding structure hasn't been identified and it was definitely disputed and we were not we have the first didn't bowl me over that maybe you are entitled to out right we are still because our regulation required torro to have identified a corresponding structure in its petition even though at that stage it did not think this was a one two zero six claim at all which struck me as a far fetched reading of the regulation i think having not had any experience with that regulation and having we did a lot of research on it really this was sort of an oddball situation where i don't know if the rules really don't with the situation where there would be a dispute but for your position today it's my position that is most but after thinking not had a chance to report it i see because it's our burden of proof on where you had a chance for sure reply correct i did cheat we had a chance for sir replied but we were not permitted to put in any evidence if you follow the r one i p r s first came on is that means plus function is one exception where the b r i should not use a thing else still have five minutes well you've got a minute before you get into your structural during the final history and i would submit that that's and it was the board thought that was inconsistent with arguing that there's a means post function time here and i would submit it's not inconsistent i mean all the ins plus function claims have to be structural they have to be structural and the claim element itself even though it didn't use the word means it isn't classic means possible option it's strong there already is structural just because just be because you find the structure written in a different place not under one one of the numbered claims but in the body of this was an occasion so the claim remains structural with all the required functions which are just not intended uses which where is whether the guy asked you a question just jump right in like do you know of any evidence of prior patents or are articles technical articles that use the term mechanical controls and would have a certain structural meaning of the specified class of structures or anything like that i do i'm not aware of any of the evidence in the record on that issue your honor i think it's not the most specific term that could be used but it's not the vaguest either i'd like to start with the board's finding was that does leave us with a lot of room between those two poles that yes your honor and i'm going to try and narrow that down considerably right now i think with that the board did in its decision was walk through each of the steps that this court case law dictates to look at all of the evidence that it had in the intrinsic record and from me extrinsic sources and then look at that all together to determine whether this term should be treated as means was function and so looking at one part of it just the words mechanical control assembly in isolation is the state of you know procedure procedural impeccability of the board's process is really not the issue here when we go through each of those steps what do we find it and on the claim language itself the board more or less agreed with the other side just in an in an isolated sort of way and then found some support in the spec and quite a lot of support in the prosecution history and we have to evaluate the strength of those the century those two pieces of that that's correct your honor but i think walking through that process because it was there own done correctly by the word helps understand this court understand why the board was persuaded to come out the way it did when i'm against in a psychological enterprise and tell us why you think that is your friend on the other side's argument about the spec is i mean what what's your answer to that he says the spec actually isn't terribly strong for the board side and neither is a prosecution history what are your answers on the merits so on the specification on the first point there was discussion already about whether a c t r control assembly and mechanical control assembly should be treated viewed similarly when reading the specification and the board found that they should as your honor already pointed out pointing to patent owners response at five where at noon or made a very specific statement that the mechanical control assembly referred to r control assembly is generally shown in described as that's the case and then patent owner decided to append sixty column three lines forty to forty one which describes figures two and three of the pat hard time understanding it's hard to know when it is someone being alexa carter fearne defining something versus when are they identifying the course instruction i understand your honor i'm just trying to establish a preliminary point which is that the board was relying on what the the patent specification says about c t r control assembly in making that determination which has been challenge here today and there is no description of a mechanical control control assembly in terms of its inputs and outputs in the way that it functions in a way that's similar to other cases that where this court has relied on similar descriptions of the specification will in fact be corresponding structure or at least there should be if you even intending to draft it that way so the fact that there is structure in those back doesn't that fact alone doesn't really help you determine whether this is an ordinary non one twelve f claim or one twelve left right and your honor i think it's the question is is the term being used when you read the specification as a descriptor for a class of devices and i think referring to the apple motorola case that the director cited there are several examples that cited in there one of the cases is linear technology and this court looked at the term circuit and as a person with a background in electrical engineering circuit to me is no more specific than collection of years or mechanical control of sam and yet this court found that circuit in combination with the description inputs and outputs of the circuit and how it would operate was enough to be sufficient structure and i think that's very analogous we have the mechanical analogy to that electrical situation here similarly where  only one set of structures disclosed and claimed nine makes it reasonably clear that not all mechanical control assemblies enable zero turning right and i think that support for the board's position your honor because if we treat then that suggests that mechanical control assemblies are a class of device that is broader than the g r control that i use if there is to be everyone twelve ass claim is going to refer to a class of devices the question is how that classes whether it's defined only functionally or whether it's defined by the language all aspect to the definition and that's what's a little bit hard on its face to find what with this terminate the board found on its face it probably wasn't there look the board found that looking at the claims alone it wasn't there but in view of the specification in the prosecution history and the expert testimony that it was there taking those things together there was sufficient structure to define a mechanical control smith smith and so the court room were relied on dr smith's second declaration again that i did give the correct appendix i twenty three seventy two twenty  and the board clearly applied the correct standard to find sufficient structure the board recited that standard that appendix thirty and again at appendix thirty six in rejecting an argument by toral that it was settled threshold too low for sufficient structure and the director has maintained that argument for example at ages twenty three and twenty four at the director's brief so i don't think as he is something if i if i don't means and or math you went and looked at the specification and say oh the specification here has a very definite structure so therefore you know we're going to find that it's not means for a special format i'm very confused by the fact that when everybody agrees including the board that the broad term used in the claim is a nonstarter how can the specification just because it uses a different term how is that defining the nonce term as opposed to just school as in corresponding structure and mechanical controllers and we are the same thing there's no i don't know that they did that and then i realized that was the language where they said it's referred to in the specification as c t r but then later in their brief they talk about how you know we think this is in one top six paragraph format we think the corresponding structure is the c t r mechanical so i mean they have that in there so i'm not sure if that one sentence provides such an admission that we should say well because you said it's the same that would let you mate a set of structure to correspond to mechanical control that is different than what you would come up with if you were trying to write come up with a corresponding structure for  control assembly that there's one embodiment especially as regards the control assembly so if you do it if you put in the structures that are disclosed you wind up with a z t r control assembly it's not like you can this and it was undisputed that it would be a problem if they only had one environment disclosed no but i'm saying that there would be no difference between claim one and claim nine if they're both means both function terms you can't come up with two different sets of structure to correspond to claim one and play not there's only one set of structure in the specification and so the claims wind up being exactly the same and so this debate about whether  r control assembly is different you know winds up being irrelevant i don't know if they're ok i guess i'm just and maybe i'm not expressing myself well but i'm just having a hard time understanding why the nonce term becomes all standing by itself in the specification is enough to give it a definition and i'm not trying to argue that it's that we can look at all the ways to our control assembly that term is used in the specification and how it's described how it's treated the way it's used in the language and c is treated as a structural term as meant to stand in for something else for a class of products like a circuit it's so there wasn't a common understood point term like appearance mission in a car for this so they were using the rest of you are you would you would make the same argument i assume from mechanical control assembly and c t r control assembly is your argument is that this term mechanical control assembly is a specific track structure because this is a t r control assembly is a specific structure structure but you're making the same argument regardless of the term right yes ok i'm almost there is no right to serve a rebuttal evidence it's discretionary and patton or the out here has not made a strong showing as to why they should ever see description of a collection of parts that make up a very or are just a broad description of parts in this court of a context when you have a means plus function alleged specific than this case the nonce term there was a mechanism for moving said finger and the court repeatedly went to the specification and pointed out that the  clearly and the word mechanism for moving said finger was used in the spec and it pointed out that this is a rotating central post but then the claim just said mechanism for moving said finger and the court there found the terms to be a means plus mr smith that the board relied upon below twenty three seven twenty two do twenty seven if you look at that custom only all that mr smith board did not find that there was this understanding out in the world beyond the current confines of this patent among the relevant skilled artists and it's about a structural meaning to this three word phrase correct yeah and in fact the board actually stated that the claim language in its entirety tends to favor patent owners position and it testimony that there was no such extreme you said extra patent skilled artist in the world of usage and understanding but it didn't either specifically disagree with it or indorse that right i believe you're correct  on yeah i mean specifically of the board was that with jude near us of the term there are similarities to other words or phrases that have been held to be subject to one twelve paragraph sex because they do arm that could be used and one in one part of the mechanical control somewhere there's a number of other alternatives botting and structures that are identified as the corresponding structure and finally  control of somebody references in that specification i mean if anyone looked at that anyone that's not a patent lawyer anybody that doesn't do this and tried to say that there's some definition some specific definition in you our next case is seventeen dash twenty two ninety four