has a manifold flow comes into the manifold and it is distributed into connecting channels that are connected to me in the prior are they recognized and fitzgerald referenced they recognize the problem that is if you don't do anything to the connecting channels the flow is going to come down manifold and it's all going to tend to want to go through the last channel because that's where the momentum is going and fitzgerald solved this problem by putting in gates or grades at the front of each connecting channel so the channel furthest down the manifold in the direction of momentum is the smallest and then continually larger so that  dimensions of forces in the system and has said that you could make them all the same size and that's trailed you could make all your opening stick connecting channels the same stuff but that's not a reasonable interpretation because the wouldn't it wouldn't fix the problem with it which would have an equal flow in the in the connecting channels which was the very problem that fitzgerald was trying to solve so the because that's that would defeat the purpose of fitzgerald it's not a reasonable interpretation of the fitzgerald reference taken as a whole now in the in the present invention  the inventors of found that you can equalize flow in the connecting channels in a different way and that you could do that by having the disrupted fluid in the connecting channels this will tend to equalize examples in the back of the in the specification that show how this works that i think we sort of understand how it works and so let's talk about some of the specifics about your objections to that  so there are you've got a number of claims here what do you think is your strongest claim with respect to the absence of anticipation the various claims have different strengths i think claim twenty one is the strongest claim they claim forty three is also a very strong claim because a claim forty three explicitly says there are no gates great sources and fitzgerald clearly says you have to have gates agree does flow there's no there's no there's no way to read it to say that oh you wouldn't he wouldn't have gates are great because if you did that you would have an equal you all the different dimensions and forces it there's nothing in that paragraph or anywhere else in fitzgerald that would provide guidance to the practitioner to set up a situation where the there's no gates or grates at the front of the connecting but what about there fitzgerald's reference to that that it will cross sectional area that it says that the cross sectional area of a gate or any other or his design may or may not be a different cross sectional area than the channel and we can be equal again it's a design tool that they're talking about let me finish if it can be equal to the channel doesn't that imply that that there is if there is no difference then it's not important to the design it says one of the connecting channels that would be interpreted reasonably the only reasonable interpretation is that one of the connecting channels may have cross sectional area that is where the opening is equal to the cross sectional area and that would be the one for the stop the manifold because the idea of gates  have successively smaller openings as you go down the manifold in order to equalize flow we're going to wind other than by implication i guess what you're saying perhaps but i don't see in the paragraph one eighty five of fitzgerald anything that says at least around median suggests that we're talking about one of the one of the channels yes your honor paragraph that paragraph should not be read in isolation are usually read in the day in conjunction with the definition of what a gate is orifices and the specification as a whole well where else in the specification w you claim is essentially an unbounded branch on the other hand i understand that there is an overlap between the two ranges but your range has no top and right forty two so it's it's hard to see how the specification perseids your suggested is your point zero three inches is critical i believe that's clear from the examples that it shows is capable of having a fluid in disrupted flow that the patent office did not need to present any reasoning as to why there would be a fluid and disrupted flow and i believe that's  correct that the patent office has the initial burden of showing that there is the initial word showing that each claimed limitation is present explicitly or an inherent believe that it depends on how one interprets the various cases and right best and in re schreiber in actually in each of those cases the patent examiner or the patent office does create show why not provide sound reasons why the alleged features would be present so in those two cases the patent office actually does meet their initial burden of showing that it would  a feature is functional or structural and in the brief i've gone in length to explain why that's not a valid distinction and then you could ignore the functional descriptions and put the burden on the applicant that's not the peter i mean this is really what about when they said in the opinion that it's inherent because of the structural features in the pr that's not a reasonable basis it's like saying i think it's different they didn't just say there's no reason and therefore now it's your burden and they did you should i think i heard you saying they were just saying it's functional so therefore i don't have to have a reason well that's  examiners position but the they and i don't believe that they've made any kind of reasonable showing that there would be inherently be just disrupt fluid of the disrupted fluid in the connecting channel if i had a cardboard cup and it came with directions say water in the cup and the patent office would say well the cup is capable of holding boiling water therefore it's holding bo well there has to there's no guidance in the fitzgerald that would lead the per practitioner to a disrupted flow fluid in the connecting chain what about through the definition of disrupted flow in your specification where you see it occurs if you know her and smooth right her channels and also includes fighters through my can channel is having surface features and then talks about different surface features that could provide destructed phone so pop it in tribe or the court specifically said we're not going to rule in the case that says it comprises and that was probably an error on the part of the applicant not to argue that but it was they the office said in that case that it was configured such that it could discuss dispense popcorn but in our case it doesn't say configured or capable it says comprises so that is an element of the claim in this case where in  have the same cross sectional area and when they have the same cross sectional area it is as though a an orifice or a gate is not present in the connection channels continuous velocities argues that because fitzgerald defines gate in a particular manner that it must therefore include a gate when in its device and that is simply not the case and that's not the case because as your hono pointed out here i would paragraphs eighty five seats is that the opening can be a gate or this or any other type design and that these gates are not necessarily present at least briefly to the fact that it wasn't raised before but it wasn't clear to me that they were basing their judgment entirely on waiver or at least that they weren't saying that's an alternative ground for reject points and that's because those two data points were at the higher end of the claimed range or rather it was showing that what it was showing was that at point zero three inches and point zero five inches the and other types of openings that could result in turbulent or transitional flow which the three three six application defines as just as just as a start follow they just not defined to start flow as transitional or turbulent flow and the passing through the macro manifold and then passing through the manifold and plant so it's talking about plowing through different parts of the manifold of ice and i mean one of the things that this application both the fitzgerald application as well as the three three six application and the other thing i think that we could also look to is that and see if a p p x n ninety three the fitzgerald reference discusses the reynolds numbers associated with laminar transitional and turbulent and it's paragraph one twenty three on page ninety three of the appendix there's nothing in fitzgerald as i understand it that actually calls out a particular embodiment as producing a turbulent flow that's what one is trying to achieve you wouldn't find anything i take it in fitzgerald that would say here's how to get a t that says if you want to be a flow here's how to get the examples in the application tell you this is a turbulent flow with a high reynolds number and this is these these are two examples of how to get  i believe it's paragraph two sixty three it tox if you go down one two three four five six seven eight nine around ten minds it states that the value of the reynolds numbers in  monuments can vary across the manifold from turbulent put a transitional flow to laminar flow and another preferred bottom it's a can vary from transition flow to laminar flow and it basically talks about how these different manifold devices can have different flow within the different channels on the issue of disrupted flow and claim twenty one the patent office position rewards on the description of food and disrupted flow as a functional limitation and this idea has become a plague on those four applicants and it should be reconsidered by the court because number one it conflicts with our modern understanding of knowledge number two it creates a paradoxical situation where claims of identical scope of perceived unequal treatment claims using so called structural language being allowed in claims using functional language being rejected even though the two sets of claims language is actually how you tell the public how you know whether a given component is present in the system or not so your functional language provides the public with a test here's how you know does the does your alleged infringing component literally infringe or does it not literally infringe and run the test and then you know if that happens that the patent office position is promoting the idea that applicants should hide that test because if you reveal that test they're going to sell it's functional and therefore we're going to reject it and we're going to put the initial burden on you to prove that it's not which is very difficult because you have to proving a negative is there's always much harder than proving a positive in this case for example i don't think there's any evidence that could have possibly been provided that would have exhibit this examiner that disrupted flow was a distinguishing characteristic and in fact what this examiner did is pretty typical i believe where the patent examiners say well it's functional  and so this even though it's it's illogical yes but it's also contrary to public policy because it it discourages outlook hands from explaining how you know whether a component is or is not within the claim you need to have a test if you're going to be you know highly highly specific you need to have a test how do you know whether a widget is in the client well how do you know something is a widget well you do if it has if you do these three tests and it meets all the