may please the court this case comes from it is an appeal from the board's incorrect and reasonable construction of term consignment which construction envelop all sales including direct sales articles defined specific server system requirements to be met by those two pieces of art in the grave read it seventeen you say that  any evidence supporting it's inherently argument you also know her that it relies on expert testimony that give quote what inherently include creation orders closed or what other type of evidence could a party site for inherence for inherent see a party trying to state that the server system in administering stock of articles is going to create orders for additional products which show that person skill in the art that there's inventions at that time that when you're administering a stock of articles you always create orders it has to be always think not a probability not a possibility and there is just a statement by an expert who says it's inherent it would necessarily do that there's no furries which means all it should mean always there's no showing here that it means always in fact if we look at this the given reference at their proc ng about it's a minibar system there's no showing that a mini bar system always creates an order somehow tells the server or the owner of the supplier of the goods hey i need more coca cola i need more wine in this mini bar there's no showing that it does that whatsoever and it was for that reason that we said that was insufficient but all of this comes back to whether given during teach consignment because they don't mention and the reason that the board was able to make things that are about direct sales turn into what it thought was consignment was because it started off with the construction of consignment that said all that matters is whether you take the thing out of the cabinet or the product packaging first of all given during the don't teach anything about removing something from product packaging so the board and f f s entire alliance i'm trying to fit given during into that definition was based upon removal from the capital now looking at the issue of removal from the cabinet that issue is true for every type of sale director consignment if you walk into a seven eleven and take something out of the freezer you took it out of the cabinet you pay upon checkout you walk into seven eleven you eat a snickers bar while you're in the store you removed from the product packaging you have now according to the board in gage's and consign sale their definition was no definition whatsoever there's a least five reasons why the definition of consignment park units was incorrect number one for the board of mit's they did not use an ordinary construction of the term that departed from using an ordinary construction because it thought somehow that it needed to be different based upon the six or seven pat but in addition it starts to use a different removing from the inventory and removing from the cabinet or the product packaging into the term consignment it ripped right out of preferred environment there's an environment where these cabinets that can be used in hospitals for surgery so would have expensive goods like a blood thinner that may cost one thousand dollars and the hospital takes out three of these blood thinners thanks to the surgery room uses to return to one if the construction of the term is removed from the cabinet or front packaging if it was removed from the cabinet all three of those would be chargers and a consignment system according to the six zero seven invention it wouldn't have charge for that third one if it was returned fine in addition there's a separate preferred environment that cisco's in the past and  that was at a five o five where you remove the product from the cabinet you keep it out for too long you don't return it within the twenty four hour time block or the seventy two hour time line the word construction doesn't encompass that preferred in bo and so it's incorrect for those reasons as well the important part of the phrase that the board relies upon in the six zero seven patent starts off with a product is not sold when shipped for placement infringement and you say in your in your blue brief that what f f f did not tell the board is that f f f move to dismiss the eastern desk texas lawsuit and took the position that the it was sued for infringement but in order to be sued for infringement of the patent it has to be sued by the patent teeth that's a requirement of thirty five u s c to any one of thirty five u s c one hundred if they're claiming that they were sued by a stranger that does not give them the right to file a c b s petition but you're saying sorry but you're saying that they're incorrect they are incorrect or are then then you're saying they have  or when they continue to do that when they make representations in article three courts and don't change those then i don't think they can meet their own burden of showing those standing with respect to the term consignment and then  products are loaded into the cab and the most important part of that is that when the park is loaded into the cabinet there's a change in control or change imagery message number one hundred that subscribe in figure three that is generated and create entirety in the order and the elements in which it's reached if in the very first place the micro warehouse in during is loaded and invoice is created and the customer has been billed already and then during held there and that upon use or sale then that occurs and because it doesn't teach that it doesn't teach consent and it's the board's construction of consignment just to mean when you routinely from the cabinet that automatically means consignment that's not true that doesn't meet the dictionary definition of consignment it doesn't meet the direction of that definition specification of consent and so the phrase just generally that invoicing can occur doesn't teach anything about the nature of the products are stored inside that cap and the same thing happens with get with give you have many books which there's no showing whatsoever you get of how those products get into that mini bar and how those products were built there's no showing that coca cola and the robert mondavi company and the large company have cokes and wine and candy bars inside that many more in there waiting for payment and the reason that the board can then take give and claim that and said well we want to teach away from that part we want to make this better you can grab it you can look at it and you can return it and that's all it's teaching is how to make a better minibar so a person can look at it that's like at the grocery store you can walk up you can look at the label you can look at the product you can put it down that's not consign you can if you we're in your blue brief i'm not talking about what you said before the board but where in your blue brief to this court do you say that what the  should have is adopt a construction of consignment that builds in this requirement of an agent for the the seller in the blue brief yes knowing your honor we're not scanning device inside the fridge looks and sees are missing a bottle of coke or it doesn't matter because the very nature of consignment is that our suppliers placing goods at a customer location allowing them to have use and access to those goods without paying for them once the hyatt hotel has bought those goods and is putting them in the hotel room for resale you're well within your time just so you know it's your those resale and sale after sale that's exactly what happens at the mall you walk into the gap store they've bought it from the wholesaler now the recent retailers reselling it and that's a sale after sale after sale that's the very problem with the definition of consignment but if i met like re the six or seven unpalatable the idea here is tracking products in a cabinet the r f id tags in triggering invoice rebelling from a server system based on products from the cabinet meeting taken except that idea doesn't really appeal for the ordinary meaning of the workings on europe and the board found that the ordinary media consignment did not work here and that's really what part of this argument that had by my count three or four different arguments about what consignment means but we know what does it mean traditional consignment idea where you take a product put it in the hands of an age we know that because the patent owner here in the six zero seven patent described a consignment in a particular way they define a consignment as something where the billing your curs not worth the products put into twenty nine to thirty two ok but that's where the board decided the rubber met the road on consignment they said look you don't really have an agent here you have a cabinet you have an inanimate object in the six or seven so it wouldn't be doesn't make much sense to describe that inanimate object as an agent so the court relied on this language from the six or seven as well as the overall context to conclude that the key for consignment definition in this case is billing when the product is removed and not billing when the product is put in the cabinet to begin with and they also up on the patent drop draws on this in the border office on this the difference between a drek sale and a consignment sale the patent talks about that over and over again it talks about direct sales talk about consignment sales and then th patent also has an in column seven lines fifty to eighty also talks about the concept of delayed billing so you might have a situation where the product is removed from the cabinet but it's not built right away distinguishing two kinds of ways to mix put stuff in cabinets one of which is consignment and one of which isn't why would you read a claim that uses the word consignment not to be consignment in the traditional sense your honor i  peculiar use of the word can sign which involves party a party the party city a give something to be to sell it to see that's the first sale but he has not between the interaction between the customer in this case the hotel guests in the can i understand that so what i'm what i'm trying to say is how do you respond to the argument that when there is a first sale to the hotel it is no longer a consignment even if there is a sales leader to be and the first sale from coca cola to the hyatt i think that probably is a direct sale but that doesn't mean that the sale to the eventual hotel  not a consignment product unit under the six or seven pat and that's what the board concluded you may have different aspects of the sale we're not saying and that's why frankly the notion of consignment sale if you just use the ordinary definition it doesn't work here and that's why the board look to the inventor and look to the pap to decide ok what did this event mean by the term product consignment use and we believe that that is  between this notion of direct sales and consignment sales that's what the board looked at the prior art here we believe is a clear match is it appears to make that for example  someone to take it and use it or not use that correct euro which which which makes it different from the example my colleague gives at a seven eleven you've got products that are put in the cabinet fourth for a potential customer a specific potential customer in that hotel room in that pharmacy whatever it may be it's not just a big fort mason for anybody can go in and pull off something off the shelf given during both anticipate the two claims of the six zero seven pattern the priority or sickly or magic yet is indeed an invention directed to a hotel many marks to depend excite ninety three it's items are stored in a cabinet for use by hotel yes the guest is built upon cabinet but when you take them out is very notes in this is that the appendix seven ninety one seven one two what's the customer removes one or more products from the cabinet the client controller scans the products in the cabinet  the board during has that element they try to point to some alleged contradiction with them during with the so called intake a reality of them that's at appendix seven ninety that does not demonstrate or change the notion that during bill's upon  removal and not upon insertion would you talk about standing argue your out of the standing argument in our judgment is what the board called specious and we think it is specious on the record before this but there's been no ruling on the merits so as things stand today in this court on this record a b s she is the owner of the six zero seven patent so as such at the time of the filing of the c b m f f f notion that your built the products are considered sold when the products are removed from the cap or the product packaging so you have this concept of late we call them they use the word misconstrued you take it out or you remove it from the packaging out true that's really just a proxy for a lot of things that can happen you can look at it you can put it back in but if you eat you can study decide you don't want to put it back in so this notion of removal from the deciding whether to use the product or not and if not putting it back in and that removing from the packaging is indicative of where using it yet that is a proxy your honor i think the if you take something out of packaging whether it's a set of cookies or whether some kind of medical product if you take it from the package you've used it you've bought you're going to be billed for your honour's i'm almost out of time if the court has any additional questions i will be pleased to take them know make three points on the bottle the first one is that we have always advocated the plain and ordinary meaning of the term good sign we've shown different pieces of evidence webster's dictionary the expection ary mr dr engels testimony as well as the specification itself there is no counter evidence from f f f to any of those pieces of evidence that would saying that you look should look at the entirety of the board's claim construction rests on its view that column six and col sale and consignment the board said has to do with when charging takes place not whether there is some intermediary party between the owner and the the take the rout cabinet for which a supplier is not received payment and that's the hospital example it's discussion here and the way that they read that term what in your view is the difference between the implementation where there is a direct sale that's fine seven and implementation where the product is in the cabinet on consignment that's line twenty three if i wasn't there if you look at column seven it says that the million which is created when the car going to your ship or when they are detected within the cabinet so it's upon the addition on the consignment model it's not upon addition it says specifically not sought when shipped for placement but instead held there and when used either from product packaging or removed from too nothing to do with whether there's a third party between the originator and the taker outer it's not the third party it's that the board construction does not include that first step they're talking about a direct sale they don't include the concept that it was not sold when placed in the cabinet it's your view that there is too direct sales wiring to wherever is the and at the facilities where the cabinet is and the second is to have or is the user of that particular item in the cabinet the way the board construing it it's no different than seven levon grocery store or any other retail environment it's considered children removed from the cabinet of the product packaging that's what happens to us in they could take your argument you're welcome just like the hospital room to take the product put it in the surgery room put it back it never gets charged that's the very concept of consignment talk of these pharmaceutical products that are