to our court they're visiting here in washington and this is an opportunity for them to see patent lawyers at work and  the great majority of the accused grills from importation but did not exclude a limited number on the basis of its interpretation of one of the patent claim limitations that of openable cover we believe that the commission  posed an unduly narrow interpretation of openable cover and have asked the court to review and reverse commissions interpretation starting with claim one of the if we uphold their interpretation and in particular does a cover of that particular charge broiled grilled include an exhaust as a claim term provides but returned a claim one openable cover is the issue and the claim limitation that cylindrical cover it covers over the cooking space and closes the grill space but there is in a prior art and intrinsic to the patent prosecution there was a considerable amount of other art shows to piece covers the commission said well ok that were openable modifies the term cover and that means that all parts of the cover if it's a two part cover both parts need to be openable and frankly as the phillips case provides a person of ordinary skill in the art would not interpret a two part covered required both pieces open there is art for example that shows a and in particular you are talking about the the question of whether there was a disclaimer well it's not just a disclaimer it's also the prosecution history can be used to interpret the claims yes certainly that's true but starting from the door to end it will get to that in one moment but the idea of openable off does not require moveable as commission initially interpret it you think of an open of all taps or an openable garage well only the tent flap moves only the garage door moves but it still can be openable in order to access the interior and it's the same with a grill cover what you really want is to be able to open the grill cover in order to be able to access the  pans on a on a wire frame that you could take to a picnic or something like that the second was cox a gigantic seven hundred pound structure the specifications also very happy with chimneys and ex ports and including then ting or exhaust the nice the cooking surface underneath the cooking surface the argument there that was made in the appeal brief that your honor is referring to is this a person skill in the art would not be motivated to combine mclean and cox and the statement was made was that you couldn't do it it's impossible to do because you can actually not addressing the language like the language is this that where it says id curse that means that the the exhaust is not going to be in the cover because cox provides that the exhaust is below the plane of the grill and the cover as interpreted in the specification and in the prosecution history means that enclosure in the area of the grill or so that we have exhaust below the cover what it's saying is a low fixed portions covers meaning you're having exhaust that are not in the cover so even if you could combine which would be impossible to do because these two besley different teachings what you would end up with is not a combination that the examiner urged would anticipate or render obvious these patent claims because the exhaust or below level of the of of the cooking surface they're not on the covers and that's what that i e not covers reference means it's a s perhaps because the interpretation that they the commission relied on is a view or one view as they say in their brief of how you might say this you might say look what they're saying here is that covers are not movable fixed portions cannot be covers but the other interpretation is the one that i just gave you that if you tried to combine these two things and the argument was there's no motivation to do that because it's impossible to do and it would be an unworkable combination but if you were able to do that and if you tried to do that you would still not have exhaust on the covers because cox teaches these exhausts of from underneath and in fact the commission's brief recognizes that so we're going back to the case law that we've cited to the court which is that linear technology versus i can see case talking about can you him port is fixed portions limitation into the claim from deep in the prosecution history and have it have it limit the scope of the claimed invention you can only do so if under linear technology there is a clear intention to limit claims gold by words or expressions of manifest clear intention we get to in a second but to limit claim still remember that the argument here that's being made in the appeal brief has nothing to do with the claimed invention it has to do with showing the examiner that even if this combination were possible it would not result in the combination that the examiner was trying to urge so it's certainly ambiguous and under the only engineering precedent of this court ambiguity cannot form the basis for this kind of importation of limitation this kind of disavowal of claims go there have to be manifest words of exclusion or restriction i want to suggest the court that means you're talking about our claim now you know we'll say we don't claim this if there was something a prosecution history that said we don't claim a cover that has fixed portions and an exhaust on the fish fortunes then that would be an manifest exclusion this  ambiguous statement relating not to claims not to the scope of our invention but through this proposed combination that the examiner may it's at best and it us there are multiple interpretations including the one that i skate you and on that basis and under initial time at least is going short even if you disagreed with us with respect to that first plan claim ten as a means plus function claim the language that you are just quoted regarding fx fortunes is an argument again in violation of this court's press that took that six portions limitation and apply it to claim tennis well this is the open the book cover means correct yes and as we've indicated in our brief under the m p e p there is a special a particular rule that the patent office supplies saying you can argue patentability separately and if you do sell the patent office will not claims for the purpose of analyzing each argument they will group claims so the language that you want to refer to the fixed fortunes limitation that the commission imported was not used in claim ten at all there was a similar argument saying it's impossible to compain mclean and cox and the examiner ultimately agreed that you should not use that but the fix portions thing that the commission relied on to limit the claims did not appear my time is up for the  thirty three to thirty four which reproduces figures one to three of cox now in the examiner in the office action right before the p t o appeal brief  includes at least one exhaust and examiner cited three exhaust and these are denoted by elements eighteen twenty two in ninety two is very clear from figures one two three a cock's that exhaust and i can see grief in pages eight to twelve if you look at figure three the exhaust element eighteen has an opening which is you know  by element fifty four and that is on the grill enclosure and not on the openable cover which the examiner cites as own thirty eight and also on the other cooking union if you look at  in all of these rejections the examiner recognized that the claims call for the exhaust to be on the openable covers but he reasoned that placement of exhaust on the covers instead of other parts of the cooking units were  rearrangements of parts that would not affect the function of the cookie and so this was the state of the rejection in order to overcome this mclean over cox rejection ange a argued in his p t o appeal brief that even if you were to three forty one even if some evidence the tracks finding angel has not shown that the commission's finding construction of openable cover and the resulting not infringement fundings and that is that we submit the proper construction of the term exhaust one of the proper construction there is no infringement for three of the charcoal grill because as to the independent claims one and seventeen the term exhaust should be limited to the smokestacks type of structure which is the only support for exhaust in the definition that inject gave it in the prosecution history which we submitted consistent with the ordinary meaning of the term exhaust the term exhaust is not a cure all in the original three twenty efficacious to overcome a rejection j n j inventor described the invention as a series of pagers this is not we don't have the number of uses but in this case as the prosecution the only support again is the smokestack shown in figure one to three min prosecution continued in the december two thousand and eleven interview agenda the applicant equated the smokestacks with exhaust in the january twenty  the commission's own brief at page thirty eight there's a discussion of how the exam or for some caution it says the examiner was unconcerned by the fact that exhausts were located on fixed portions of the grill rather than the cover because having the exhaust on another party unit other than the cover would not make would not make the exhaust non functional the point is the examiner understood that cover didn't just include fixed fortune's during all of that argument the examiner allowed these claims regardless of the  fact that the interpretation in this chan gives two cocks and in regard to what she had to say about well where are the exhausts and where are the channels for the exhaust reasonable minds can differ you know drain indicated he can see what she's trying to say and maybe others can as well but that's not the only answer for tension and the point that was raised in the appeal brief did not relate to our particular claims but to the fact that the examiner was wrong in the notion that it would be obvious to want to skill in the art to combine mclean and cox because it would be unworkable and it would not result in the combination of exam or positive  with regard to the statement by ms chan that the exhaust has to be on the openable cover first of all know that on is not used in the claim the claim says a cover includes an exhaust and what's more where as it says in each case for the first and second cooking unit that it must have an open hole cover it doesn't use that modifier openable when it talks about the placement of the exhaust it merely says if the cover includes an exhaust so that's further evidence that would lead the examiner away and would lead a person of skill in the art way from this notion that an exhaust must be on a movable part or on an open it will part in the way that the commission has interpreted this claim it's simply from the language of the claim itself teachers away or argues away from this stilted interpretation and this importation of the limitation from deep in the prosecution history of as a court pointed out for explosions appears nowhere in the specification to the patent it was simply raised in the appeal brief and for no other purpose than to point out to the examiner that the combination of mclean with cox was not workable impossible combination and would not result in the combination that he was suggesting and it was ultimately withdrawn by the p t o and the patent issued in that way with regard to the charcoal forty five twelve grill in just the last few moments that i have here that grille plainly shows a two part cover it has a panel fix to the grill body and then what the commission would call it openable cover what we would call the second part of the two part cover and between the two is this channel exhaust there is substantial testimony by charles chief engineer that that is where the exhaust testing is done in that in that space what they call the opening these skrill swe choir gas sort of cation to make sure that there's not a build up of an combustion gas inside the cover it would cause a flare up when the user opens the hood the testing that's done for the certification is done at the exhaust and alex gaffer charles she visioneer testified that's where they put their test wrote it's clear and exhaust and it is machined into the cover it was there was the commission's determination that that was not on the cover is based first of all on its wrong interpretation of openable cover a wrong interpretation of where the exhaust must be it simply says includes and the cover itself was designed to include that exhaust mr jaffer testified so finally with regard to the exhaust issue what charles doing here is not intervening in support of the commission charles intervening to try to oppose the commission's determination with respect to the interim protection of that claim exhaust and that want to suggest to the court that it would be bad precedent to allow that to take place and to go into the entirety of of an attack on the counsel the case