means for controlling the matter the means for delivering do not appear and there are no particular arguments directed to that at all if you're honored to answer that the first is that there is support from the brief that examiner did anything at all wrong in rejecting it you are that's the second part of the the answer and i think if you want to focus just on the opening brief and suggest that what we said in the opening break i want you to show me where in this appeal briefs you complained that the examiner was wrong when he concluded that the handbook and lichtenstein disclosed the means for delivering because he read that he made that conclusion quite clearly identifying structural page ninety two eighty four of the appendix in his rejection and yet your going to the board does not raise the argument you now raise out of any way shape or form your honor to interest your question b i think the your first question is this do we describe the function the corresponding structure yes do we make the comparison to structure the tree do you even suggest that the examiner was wrong to conclude their presence in the prior art in that particular decision and for saying this for sure the opening brace focused on issues such as is it obvious to have a touchscreen on the haemodialysis machine those were alive issues before this court cited in two thousand  opinion both sets of issues were discussed i think way yes look the waiver issue is that if you look at the complete set of proceedings before the fat elvis you have i would start a page eight fifty eight proceeding and then specifically said claims twenty six to thirty one is disputed by the pattern over and it's an issue to be resolved by the court so when the face of that which is the end rather than beginning that was an opportunity safeways not in the opening phrase of the requirements this is a recognition that there is an intervening decision by this court that intervening decision focuses on a specific set of claims and he said this is an issue to be resolved and the answer your honor is it doesn't get resolved and there are both procedural problems with what the p t o did and there are some problems the donaldson requirements as articulated  procedural failure to follow donaldson but had really severe consequences here in the p t o debris tells us what the consequences were because the examiner never then applied the corresponding stroke because the never was a comparison what does the p t o say to you today it says here is the structure had in mind the limitation is means for delivering dialyse and their structure removal which is after the process is described in columns seven and item seventy four so the the problem with not following the disappointing is that you end up getting to a point before this co the comparison of the ultra filtration on which is one of many jobs to this specific function of delivering the dials state is an argument the whisper is making for you today there is no structural comparison by the examiner between the ultra full trace and and the slope equalizers of this invention if you are this is a situation where because of the mean function limitations the structure it can and that's the problem with not following the donaldson regime now without the petition for a man without the chief administrative pat she administrative patches opinion would we in a different position for sure but the waiver issue has to be look i think it's at the record in total and had the least educated some degree by the fact that the board never found says the correct claim interpretation of a limitation is required for comparison to a dispose stepper motor the chief administrative judge says consider that issue and then the board doesn't identify stepper motor and the follow your argument on stepper motor so let me just see if i get it are you saying that the stepper motor is not adequately disclosed by the prior art references for it's not at all the structure disclosed for performing the means and i thought may please the court i think that it's important that we actually started the oral argument with the wave upon which opposing counsel has characterized as being not significant it really does touch on all of their means plus function arguments with that which they placed in the loop i'd like to take a moment to just clarify what our position is with respect to waiver and claim thirdly there is a means for delivering an anti coagulant nowhere in their briefs to the board did they argue that and claim twenty six there is a means for delivering a dialyse again nowhere in the bridge to the board that they argue that particular limitation and with particular limitation with respect to legitimacy we acknowledge that they didn't argue that limitation with respect to the c m s c m s zero eight but they waive all of their arguments which they currently make in their blueprint with respect  that in their blue briefs repeatedly so never say a point when it comes from a court that's true and the a they just the actually considered prior friend is decision but that decision was based this isn't the case of the same person the person losing in the district court and then coming back into the patent office again the same person with the same prop i mean that exactly right and so those are two references that the examiner relied upon with respect to the same means plus functional limitations that our baxter is arguing in their blue your thinking is even if we agree with everything that mr lee and baxter argue with regard to c m s away handbook and if we agree with all of the arguments meaning it was decided by the court and therefore it's not with the matter that could be considered by the p t o because the p t o issued parallel independent grounds of production based on a new piece of prior art that argument doesn't respond to that rejection that's correct your honor and they had many opportunities in which to dispute the findings from the examiner but they chose at every turn not to that was a strategic decision on their part but regardless of the motivation the there is substantial evidence to support the ultimate board's decision was elaman a includes x and y are two different things x m r i comes up on appeal to us and we say no element a does not include x and y as a matter of law we reverse element a more narrow than that it only includes back does not include y with the p t o be free under the broadest reasonable construction standards in a real exam to disregard the expressed claim construction by court's question of how it started off but it's now that we're dealing with the i told us that and remember the beginning i said you're going to say it's not how we're dealing with here and just go with it anyway because one of the things you argue is of course there's a different standard for claim construction that yes with respect to the broadest reasonable interpretation which the agency applies which is a different type of analysis you want this repeal has to be reasonable once we say it's not right and you know you gave me great fodder for that your opinion in this case has a beautiful page in which you explain the basis for the broadest reasonable construction is entirely related to ensuring clarity for purposes of the public understanding the scope of the claim what the federal circuit has held what the scope of the claims  is how is the p t o acting reasonably when it says it's something different and how we hear office adding clarity when you do that in fact it seems to me you would be money in the water not clearing it by doing now so i'm trying to figure between the rigs and then the district court legation sure but we also pointed out that there are different references that would also allow you think it would be reasonable for the p t o to disregard the clearance claim instruction issued last the federal circuit and reason is because there's an opportunity for the patentee to amend its claims which is not an opportunity that's afforded to them in district court and that is a policy reason which this court has said repeatedly justifies the broadest re honor with respect to the c m s zero eight there was question with respect to the ultra filtration pump that was finding made by the examiner at no point did baxter submit any form of evidence that disputed that particular point they submitted a lot of evidence in this case they submitted a number of declarations to try to establish secondary considerations with respect to whether or not you can combine touch screen with their  machines and the reason why they submitted a lot of evidence in that regard is because that was the whole focus of their examination that was their strategy that was the strategy of the trial where the court even mentioned that the major claim twenty eight to claim twenty eight is not at issue here but getting back to the ultra filtration pump your honor they submitted a lot of evidence again with respect to second or considerations but they didn't stablished they didn't submit any evidence showing that an ultra filtration in their reply they pointed to a number of different documents in the record to support their particular allegation that notes a full treatment plant could not actually be used the way that the examiner alleges but when you look at the one sixty eight six four which is one of the documents which they submitted the second full sentence and the upper right which discusses all to stray ssion says that involvement of volume america flowed equalizer controls and balances dialyse to and from the dial eyes of so one of their own documents which they submitted really shows that the ultra filtration pump conservative number from says which is contrary to what the decide the function but identify no structure in the specs but rather just point a pirate think there is a structure here for performing that function is that enough because we all know one top requires you to have a entirely wrong standard altogether your honor the agency has provided a remedy in that scenario and that is that if the patty believed that there was something wrong with  equipment they have to affirmatively prove it's not you're out of the the first step is for the examiner to issue its rejection and if they have a problem with that and they need to point it out they can't wait until they're bl to say gotcha examiner you failed to do x y and z when this case was before you the rules set out a standard they failed to abide by that standard and this court has said and and which is in accord with our rules that when you them then it would be very helpful if you would respond to the merits in this argument one to six i'm sorry i didn't understand a question you can saying well they didn't raise it so they're free to board about the means for delivering anticoagulant in the donaldson context the second point on waiver is that soliciting limitation of claim twenty seven which we haven't got to is not subject to waiver no one claims that there is any patient's been treated it has nothing to do with the wording fallacy and that's the problem that isn't gendered by not following the correct procedural discipline to go to judge moore's question about the correct claim interpretation if katie is different from what the split was talking about for two reasons the patent has expired expired in april two thousand and eleven this decision has relevance for one thing it's the case construed that limitation it said the stepper motors required examiner did not disclose the stepper motor the board did not happen to disclose a stepper motor and the only argument for you is stepper motors ar inherent without a single citation to the record it's not correct last point is this c m only does disclose the stepper motor the words are used in three different places in the ham but but this is an argument made before the score before but it's not the step the supreme court's decision say that if you have this type of conflict on the same fire art there at least is an obligation to explain to the public and for the record and for the patent application why you're treating them differently that's an important aspect there ought to be an obligation to explain why you're making the decision the second is this is not just a question of are there stepper motors here or there this is a question of this court adding the side that there is a disclosure structure for this particular function and having concluded that there was none in the same reference that acted was correct and the best indication to the court is that it is a corrective they don't give single limitation i'm talking about today is specifically identified the fact that this court addressed it the fact that the function and structure was described in the fact that no comparison was made for the two limitations is set out in reason to get to the merits is that you cannot reconcile on these limitations the decision by the board with this board's decision you certainly cannot reconcile it on the record that they given to you and actually wouldn't be correct if we were sitting here on an appeal from the application and it certainly isn't practical we're sitting here after this court rendered decision in two thousand thank you