incorporated versus boston scient and in order to make a determination whether those two errors were harmless it would require this court to make fact findings in the st instance about the operation of malecki embodiment number two which the board did not make we believe that it should be remanded to the board in the st instance to make those malaki even though they share the same and clamp apply or work differently and that they do they work differently in this material way that's really the question they do so in if you look at pages twelve and rotated and the the board did actually though cite the correct portion of the specification when it said that there's nothing in the specification that describes just a moment movement of stabilizing rod right the portion of the specification that the  at that point right right they were analyzing relative to the clip which is not actually a limitation of like claim twenty of the o t seven patents that's the nd legal error that the work committed it was looking at the wrong at limitation that doesn't exist and claim to the the board the air and the construction which support analyze whether or not there is just a movement relative to the clip as opposed to the sleeve i think one of the most powerful pieces of evidence that shows that there was harmful error there is the fact that the board itself i coke move for reconsideration and the more granted that motion finding that yes there could be just a movement relative to the sleeve yet inexplicably in the final written decision the board proceeded the same error that had made in the where the board had stated that they were going to issue the final bridge there's no on the same day one of the decisions came out and the parties apparently alerted the board that the other decision was missing and a rushed decision was issued a few days later making the argument about stack you're right it exactly obviousness conclusion in the board so why don't you move to that yes that comes across up and three of the different appeals and this is one of them at the board legally erred in finding that cook did not mean its  we don't believe it deserves anyway that would be the same as excluding it entirely in my you're saying they just didn't consider everything you know you consider all kinds of things and you weigh them but you can but as a fact finder you can decide that they are entitled to whatever weight you think it should have been given at least some weight it could have been what's to take a hypothetical suppose in a district court case and we're dealing with i think you know one of the federal rules of evidence somebody admits that he was in boston on february rd and then later on he said well i check my calendar and the calendar entry that i was relying on the words altered by my who was playing with crayons and i actually now i believe that i wasn't part of the great earth it was three days later can't the fact finder in those circumstances say well that information is convincing argument a need to get the early stages that he has there been a debate before the board about how this happened they have not before the board their position on appeal has been that it was attorney argument and therefore it could be discounted but wasn't there actually a discussion at the hearing where the board actually said i'm not going to consider the board did say that they were not going to consider it had been a discussion for them to say they were going to consider it and it wasn't a discussion as to how the mistake was made it was just a statement that they're not going to hold them to comes in a substantive evidence as an admission and this is i p r they said they were going to hold them to it and one of the related i p r's they actually analyzed why they were rejecting the admissions in the final written decision that's the three  the admission of counsel there is no explanation as to anything changing this is not a situation where somebody made a mistake in their calendar this is the same prior art reference the same exercise same prior art reference that discretion but then if there's an underlying legal error that's a legal area review the law you know the other is the other thing about the sacchi or prior reference is that they're even setting aside the board's legal error not considering the access of the clamp bostons there is on the right and that's illustrate from scratch from their expert and as you can see it in order to boston in their eyes is that there would be machined openings in the  two modes of operation in the prior art and that they were equally likely understanding but here what they're saying is we can't figure out how it operates they're saying when the evidence is equal on both sides as to how it operates you're not saying that that there are two possible operations it's a completely different issue isn't it we actually think it's factually similar because i have my reading of security is that the the board there found that it cannot determine whether or not the transmission of the session history occurred after the session history was complete or during the time that said i did that or in circumstance the both parties agreed that it could happen either way  s very different than saying that we all know how it works but i didn't see a r f d the board just said we can't figure out which one which option it's using that's very different and this i think it's the same actually i think the board here says that we can't decide between what between cooks theory or boston's theory but we know it has to be one of the two and under those circumstances if you have for obviousness at least if there's two choices just because there's a nd choice it doesn't make the st one non obvious and we think that two different ways and the only question is is which one is being used the what the board said here was we can't tell at all how it operates i don't agree with that reading the board said the evidence was evenly divided  please the court the boston scientific patent said issue today originated from excuse me the development of boston scientific six immensely successful resolution quip the evidence in the record is that has to be considered as a mission it doesn't have to be considered it is it mission certainly one of the well for for there to be an admission it has to be an argument like that or statement has to be clear unambiguous that it's pretty clear what was said whether it's clear that it was a right or that that the lawyer had the information that he really needed before he made that argument if it's pretty clear what they said in terms of  when you're asking isn't it is it an admission is it is there some clear and unambiguous statement that supports what i think i will say you need to proceed with that with the assumption that that under the question is how much weight does it get and you're saying you know what you're really saying is it shouldn't get any weight because it doesn't say what they think it did and if anything it actually supports our view i'm not quitting that far i'm not i'm not saying that the statement wasn't it was and i think we say that in our briefs and i think we said that to the board what i'm saying is that it doesn't it's not so in our poll as to support the appellant's position because it doesn't say that the way that these two things that the clamp and the clamp apoc apply or engage is absolutely all it says is that you didn't make that argument a bridge that's that's right your honor if you have this discussion with the board i understand that the board actually addressed this to some extent in the other i p r it it did the way that these hearings work does that that they were all combined in other words we discussed each of these these i p r in the previously earlier that they considered they saw that the patent owner made a statement in the preliminary response and they weren't going to give it any weight so it's a they say why they were going to give it anyway they said that it was a preliminary attorney argument and we clarified our position after engaging in expert which which is the case so i think they did explain that they one considered it and two why it didn't affect their view of the evidence concerning secular and i believe i can give you a citation yes that  she wrote i'm looking at the bottom of the page you've considered petitioner's argument the pattern under changed its position from the preliminary response and then continuing on to appendix fifty they talked about how in the  together we have a common piece of prior art across multiple of these i p r's and very similar limitations it's fair to read what the board said in that one hundred and thirty five as in forming its analysis a process each of error that you are or aren't there i believe what we did make that argument that's right we we made the argument that it was harmless error but i'm going to make the argument that it was not here well i think what we said is in essence the stabilizing rod that there can't be any just movement of that structure relative tenure other structure your other point here on the lucky is that the board independently found that that the appellant had changed its theories between petition and reply and that alone is sufficient that decision and then went on to analyze the reply theory but the board's decision that the theory that was being advanced on apply wasn't the one in the petition is sufficient by itself to affirm on  will rotate proximal you know to rotate distilling but not but the stabilizing rod doesn't move just a little but the stabilizing and ron would move relative to the sleeve branch but you know you that's like saying you could have a a pair of scissors or something in the shark's mouth and then and if you don't apply the pressure that you need to apply to cut your then you're now holding i pinching it lets that's not the case you're just not applying enough force to break through the tissue or to break through the people but i can hold a piece of paper with the scissors i can hold it it's but not the easiest way but i'm not i'm not clipping the when i mean if you say it was error but but that or just disagreed with right i mean there was there was expert testimony from expert saying that in fact that this is how it works that they are capable of playing both compressed adventure forces and applying pension pressure which is clipping well what the you have to look at what the experts said which is if you have the a pruning shears and you don't actually close the the shears like you would when you clip tissue then you're applying a pinching pressure that's not the that's not what the patent patent all of these pens are talking what they actually differentiate between clips clamps sutures they don't even bother with biopsy forceps because that's so far up that those sharp jaws are so far afield no one no one uses a print shearers and says i'm going to clip this this testimony on the printing shares concept was just wrong well i think it's it's not it's not applicable it's we're talking about a different point in talking about using the  you know you know way that's not the way that it's that those are views you don't you don't go up to a sample with biopsy forceps and just do push down a little bit if you actually use the biopsy forceps to cut the tissue i assume you made all these tissue that's like what that's what a clip does that's what a binder clip does with people that's not what biopsy forceps do and there's no argument that biopsy forceps used as intended or pinching the tissue that's the issue that we have it's when you use it some other way not intended that that they suggest that there's that there's another give it like you did your time well like to start with malecki i think the detailed discussion that council and your honour's have been having about the operation of the lucky embodiment numbers one number two underscores the fact that there is a fact issue here that should be remanded to the board with respect to the the the rod does connect to the clip in the lucky embodiment number two as opposed to connecting in and so it's not the component that's going to be rotated that's the difference but the operation also as a result the border cited the same claim construction that it was cited in the institution decision and the boston agreed to its final written decision and applied that construction finding that there was a showing that that initio because clip arms apply pinching pressure formally did so it did a concern that if the term clip it actually did in the in an institution decision it mostly adopted bostons construction and then added the requirement that there be pinching pressure and then apply that construction final written decision have a a an optical fiber channel surrounded by a steel tube that runs through there if you would put as was suggested the controlling see if you would connect which is contrary to what  shows if you connect those controlling to that indentation feature now there's controlling circling to be in the way of the optical fiber that's passing through so there's there's no way that that that could work that way and we didn't have the opportunity to present any evidence on that because it came up on reply in the words rules are no evidence with a server apply so we had to make the argument which puts us at a disadvantage and it's just fundamentally not what the figure eight shows you can see in figure eight it's a cross section the portions that are cross section way are represented by hash marks the controlling says if they were in the in the cross sectional view would also be identified with hash marks and they're not which means they're connecting to the site surface as weeks