tly high higher prosody whether when the applicant amended the claims to include the specific structures because the examiner refused to read that definition into the claims whether the accusing with those amendments those those structure may claim amendments one part of the definition or the other but not both and i think it's very clear on the understand the claims have the specific structures in there that that's part of the claims those limitations and finds there's no dispute about that right so what's the other contention but let me tell me do you think claim eleven is the what the forward did here with said no that can be anticipated by a prior art reference that shows a construction inherently having a higher pro and we believe in the district court by the way agreed with often opinion that is a one hundred and eighty degrees from what the board did we believe that the clean language here with the after claim claim alive and clearly board to reflect the problems that seem to be bothering the board present the claims is written could be read nor broadly then what you are saying is the correct construction honor that the amendments were made in the original prosecution in response to the examiner saying i'm not going to read this disjunctive definition into the clients you have to pick the structure and so that's what we did and instead of adopting a claim construction that would reflect that choice the board effectively unwound that choice move i'm sorry i'm not following this with the structure that was the subject of the amendment w frederick example there are there are claims that specifically require that structure three d space or fabric and there's no dispute at all that rasmussen does not mention a spacer fabric much less a three d one and so the question is well how did the board for the board relied on the testimony and said that three d space or fabric is appropriate for a ventilated pillow appropriate it doesn't matter whether it's suitable appropriate or even the best one for the job and we side of the ni case your honor for the proposition that the board is not permitted to fill in missing limitation even when quote a skilled artisan would immediately envision though that's essentially what the board did here the board relied on testimony from the other side sachs for saying this is this is the example that i would invision that would be used for three d textile this three d space or fabric not mention that this is what i would envision would be the most suitable the most appropriate and the board then just use that in filled in the gap filling was so clear here your honor that opposing counsel had to resort at the hearing to suggest that the evidence i mean really if course three d textiles anticipates three d space or fabrics it anticipates a fabrics that have apertures if  board did two things your honor the board said that st that it can be anticipated by the highly porous material one inherently having a higher profit and then the nd thing the board said was well if you look microscopically at the fabric there's going to be there's going to be because it's a breathable fabric there's going to be some space between the particular fibers of the arm that make up the fabric and those spaces would be larger than any who are on the on the on the fabric on the fiber strands themselves and so the board looked at this from this completely i don't know hypothetical microscopic level that really makes no sense when you when you look at the claim which says that the aperture is must be larger than any pores inherently defined in the you get very far as a generalization you can't just come in and pluck out something from the genus and saying no this is this is mine you have to do more you have to show some unusual properties for us in something othe repeatedly admitted that there was lots and lots and lots of really babbitts matches messes one kind of them one type of possible three d fabric but just the fact that three d fabric could include three d fabrics that are matches does not mean that the disclosure of a three d fabric anticipate the specific claiming of the best configuration and so what they said was that these structures were  somebody in three d textile can include strands defining a mesh configuration and they fight a two sort of a long portion of our pattern owners response the institution the only one of which talks about mass and this is it a five hundred and forty three dollars that for three d space or fabric the two fabric layers can be the same or different that is a match or solid the fact that they can be meshes doesn't mean that they always are matches the fact that you know it's an apples a fruit doesn't mean that all fruits are apples so so what the board did was rely on the statement were found that i highly porous three d textile material as described in rasmussen to provide significant ventilation airflow textiles are made of strands there are openings that provide for that airflow therefore there are spaced apart and  limitation just trying to understand what the thing yes that is that certainly helps support of the evidence actually came from both sides experts that prosody is created from spacing and strands textiles are made of thus a highly poor three textile has faced a part strains and those strands are interlaced because we have a three dimensional material that's held together doesn't fall apart so those structures are present in a highly porous three textile material and i exit and claim construction manufactured right so either the ferocity can be inherent from how the materials originally made or the prosody can result from added prosody after manufacture so what big gear is proposing through its claim construction is constituent material that concept is injected into the claims through bad years claim construction so and they rely on the specification and you are going to explain why you disagree with their reliance on yes in the specification when it describes  if so it says with reference to figure three the gusset twenty may be defined by a plurality of interlaced or spaced apart strands arranged randomly or in various patterns so it doesn't say whether that arrangement is a result of original manufacturer somehow there's a manipulation of modification that's made after original manufacture so even the embodiments domes don't have this distinction of after manufacture versus before manufacture  know with regard to claim eleven that's a great that's a great question so with regard to claim eleven the way the specification describes those apertures is that they can either be formed during manufacture or after manufacture the same thing with the plane claim language so the plane claim language refers to apertures being larger than any poor is inherently defined and said base material that's the exact same language that the specification uses the specification states that column to the line thirty eight apertures thirty two may be defined in the base material with the apertures thirty two defining the open cells of the gusset be apertures thirty two or larger in size than any pores that may be inherently defined in the basement serial the apertures may be formed during manufacture of the base material or formed after manufacture so those same apertures thirty two dollars that are described as being larger than inherent pores can be formed either before manufacture or after manufactured now what this is getting at is that when you get down to the base fiber level there you'll have microscopic poorish right that can be inherent any text where the pattern is talking about is we have meaningful apertures that provide significant airflow and cooling this is the same thing that rasmussen teaches rasmussen doesn't rely on inherent poor is that it can exist out of the base five a level it relies on highly poorest material to provide significant airflow since that was the believe point raised by bed during its argument so importantly as we explained in the briefing the final history had nothing to do with the two parts of the definition of open cell construction it had nothing to do significant ventilation right and those are larger than the air pores that exist down at the base fiber level another thing important to note about the clean language is the claim language doesn't actually even affirmatively claim or require the inherent ports right it's so construction recall that as a discussed we're talking about added ferocity after national manufacture or inherent prosody that results from initial manufacture and there's nothing in the file history where the examiner was requiring the applicant to limit to one of the two types of ferocity or sometime narrow that definition in fact these open cell construction phrases were already present in the dependent claims and they were manufacturer that this is added to a constituent material but as the board noted nothing in the plane claim language requires the space the part strands to be added after manufacture so the dependent claims as originally written were agnostic to whether it's at initial manufacture or after manufacture and thus an amendment that cancels the independent claim and rewrites that dependent independent form does not somehow limit it to just dispositive issue from the practical viewpoint that would interest you i'm not aware offhand your honor how it relates to a potential infringement issue but here we know bed here is trying to reasonable interpretation because these predated the patent offices which in its claim construction standard then with regard to the genus species issue raised by council this is not a genus species case  newman the claim construction issue is syndrome central to the infringement case and it was one of the few issues that was actually disputed on claims instruction before the district court and if you if you read the opinion you will alternative of of opening the construction that the claims can clearly be categorized by whether they are directed to a body and matching either the st or the nd part of the definition and that that the specific open cell construction which will put into the claims were added during prosecution after the examiner rejected reading the broad disjunctive definition in and here we have the board doing the exact opposite and saying i'm going to read in this entire disjunctive definition into these claims brought in them way out and say they can be anticipated by a material simply inherently having higher prosody and we think that that is the essence of the air now does the board only terms of the genus species thing does the board explicitly use the term genus and species no but what the board says is that a three d textile can be a mash and therefore three d textile anticipates match it's the exact same problem your honor a disclosure of a genus in a prior art reference can not disclose a specific species of that genus and we cited a bunch of cases for that proposition i think you know the other point i'd like to address is the forming point which embodiment that are shown in figure three and figure four of the patent and describes in column two it's quite clear that what's happening there is that the fabric itself not how the fabric is made but the fabric itself is being in early or the fabric itself has apertures it's not the in the making of the fabric apertures are not created it it's that the apertures are the options are not co equal to the poor's that exist when you leave a fabric together and if you look at the description of the speck of interlacing it's talking about the strands maybe of various materials including for example polyester so it is not the strands that are fibers of this the strands that are the base material and it goes on and it talks about how the strands can be stitched fused together tied together fastened together these are not strands that are woven together to make the fabric and it's very clear from the specification and the embodiment that the examiner was trying to claim the specific in body m and that this incredibly broad disclosure of porous three d textiles was used anticipate all of these very specific instruction will stand your recess for about ten minutes