i think it's fair to say that these issues have been through early briefed and in this case and so i would like to take my time to point out certain aspects which i think will help to put perspective on the the five seven nine application was properly identified and incorporated into the application or five six six or the application through that it up occasion at issue  three ninety eight up with cation which is really a copy of the parent priority five six six application and the five seven nine application which was incorporated by reference into the five six six application and the one seven five application which was incorporated by reference both into the five seven nine and into the five six six application at the same time on the date the five sets except cations file these represent an entire system and the one seven five application which was ultimately issued as a patent that up a patient describes the basic device the basic multi level semiconduct well i don't know why they why they why they drafter chose to be a little cautious and and and say something again in the context of writing about the optimized right implementations but there's no rule  says you can't have redundancy in that in the specification of a patent application this isn't we're not talking about claims we're not talking about contract law we're not talking about statutory interpretation we're talking about the specification of a pound  welcoming it wasn't necessary and simply wasn't necessary because it was on purpose by reference and if you're assuming that a human being is drafting something like this is always going to be perfectly done that i think that's not really neural you could ask why did they put in a broad statement to begin with and it was the first one in there so the answer is they put in a broad statement is that's what the ten foot pole i said i'm going to invite all my friends to dinner and that's all i said all th worth my lot for and then i stop well sort of see the first statement was not actually meant to be rivals you know i don't think i don't think that's a proper now what you say i'm going to put all my friends over for dinner and that's what i'm going to do and then later on you think well i want to make sure i invite joan and john and jane because there's something i want to talk to them about particularly at that time so so i don't want to forget to do them and make sure because know i don't well it doesn't really matter although the board found that it did basically the the board found that something called optimized erase and optimized right limitations was incorporated by reference even if the entire optimized part of optimize write an optimizer race if you consider the relationship and i think this is very important to consider the relationship of these three patterns the pattern up patients the five six six i'm going to read it for the five six six just because it was the priority optician five six six in the five seven nine so in the in the five seven nine it talks about accurate reading and writing so and that's those are the actual eeprom read and write circuits that are going to be used in the five six six system so not necessarily include all of the aspects of the five seven nine application if you if you look at the in the record at that volume volume two horribly page six thirty is the beginning of the five seven nine application and on and on the base second page there it starts going through a list of eight aspects of the invention first it sells first it says on reference cells use of local reference cells used to mastery written to the local in each cycle the rewriting the threshold level from the master cells to the local cells in each cycle chunk programming and verify reprogramming at the end of the race offsetting in a race verify bias doesn't use those words but that's what we're saying this refers to when choosing a race program like name and then it also has an air repetitive a race and verify in repetitive write and verify so what with the profound was the only thing in this in these of these eight different aspects that allow accurate reading and writing the only thing that was incorporate by reference was repetitive or race repetitive incorporation by reference the first broad incorporation reference in the context of not only the five six except the patient but also the target five seven nine and the one seven five would think that the only thing that  hard info in fact we did we offered expert testimony through a declaration but not in this motion in fact this will issue up going from the issue was whether the five seven nine was incorporated by reference the bird itself came up t bird on its own came up with this decision in this motion that the only thing that was incorporated by reference if anything with the optimized racing off lies right that argument was not made by the other side in this motion that was this side and that's on appeal right now we had no opportunity in the context of this motion even to deal with that issue when when we were before the board and but it was brought up in another motion and in that other motion there was a declaration by our expert john reed that a person boarding school now are looking at this incorporation by reference a statement would consider all of the material that's required for support of the claim sideroad issue here to have been incorporated by yes i agreed and that's what i was about to point out because if you look at the leap patent you will find that they actually say that it actually gives and  claim doesn't have that limitation if the claim itself had something it within the claim that said it has to be in essence has to be a single digit by digit one and that would be different but the claim doesn't say that because i'm going to flip that around and i would say not asking a question but the question the question is why didn't the person drafting this claim so a single digit line if they meant a single digit line they could have said a single digit line they could have narrowly what they're trying to do now is what the lead is trying to right now is to having drafted a claim that's a little vague and a little broad so as to make sure that they would cover things that may not use a single digit line they're not trying to say that is really just a single digit line to get around the problem of having this interference and so it's it's it's not a matter of why would a set of set a number of memory cells why didn't they say  wanted to make sure that the claim was sufficiently ambiguous that they could cover something doesn't use a single bit line and they need to be held accountable for the way that they drop their claims  well but the clinton the claim language itself is clear and if it's clear enough there's a definition of what what that means within the specification it may provide guidance interpret the context of the claim but if you can't pick a limitation from worse not considered it's a maybe that's a different issue and needs to be considered but what i think is that when they say and then they have they do have a disclosure which supports a digit line without having to say a single good morning may it please the court in these two appeals there are three issues that the court needs to consider i'll briefly frame each of the issues a couple of which were just touched upon and then go into deep more detail about each of the three the first issue is common to both interferences this issue relates to the incorporation by reference of the five seventy nine application into the three ninety eight application the board appropriately found that this was a specific and i'm directing you against the three ninety eight application at this point in the paragraph begins at such sentence twenty three we are discussing the a race operation of the three ninety eight application this paragraph then says optimized to race in the that implementations have been disclosed in to cope ended applications the next sentence is this in corporation and it said these are the disclosures of the two applications are hereby incorporated by reference so this one sentence that your honor has asked me to focus on refers to  disclosures which were in the previous sentence just identified as the optimizer race implementation was that is different from alter them for a couple of reasons first again i would say that we are solely  the we are solely focused at this point on the optimized to race whereas an altered and it was the discussion of the rosenthal patton went through an entire column of the monroe patent and there were there were several different features that were identified with respect to the rosenthal patent that were important to them and wrote disclosure here were focused solely on one feature of the optimized race i would say that the wording is also different because there they said that the patent was incorporated here they've said the disclosures and again as i just went through the disclosures refers to the previous sentence where they said that if the optimized erase disclosure and then the third and i would point again to judge mor s i would suggest that the context does though because the previous sentence just went through and said these and this is this disclosure i'm talking about optimized it race is essence the word relevant to the person i am but i think that in the context that it's appropriate and i would also point out that the second incorporation would not be necessary at all if the first incorporation had been a should given that this court's precedent has said that with respect to incorporation that you need to point out with detailed particularity the specific matter that you're discussing and so i think that it that it does make sense that you interpret this first one to be there pointing you to optimize to race they're saying it's disclosed in these two applications they then incorporate that disclosure and they then if you continue reading that paragraph they actually then summarize exactly what the board found to be the incorporate whether or not specific subject matter had been continuously disclosed so it was a necessary part of the holding and that is where this court has said that the patent draftsmanship is an exacting art and that we have to provide this be looking for the specific details material that they've said that they've incorporated and going back to the context will framework of the three ninety eight application i think that the three ninety eight itself summarizes what is the specific material that's incorporated just following the the sens where it says that these dischord disclosures are incorporated it then explains in two sentences exactly what this disclosure is again to sixty nine for the optimized to race and that disclosure is exactly as the board found it is this related of a process of applying a poll of a race in voltage followed by a read to determine if the cells are does not use the term optimized to race but it does have a disclosure that that fully tracks these next three sentences that i submit to you are a summary of that optimized to race functionality more bit we submit that there were two legal errors in that in that holding the first which is what we've discussed relates to the fact that we need to be looking to leave intrinsic record rather harare's in interpreting this claim term that was part of the holding in agilent technologies the second thing that also comes from agilent technologies is that we should not be applying the broadest reasonable interpretation as judge o'malley suggested that is typically the procedure in the board but agilent said that in the context of patent interference is where you've copied claims from an existing patent that cannot be changed he would not have the out ability to change its pat that's correct this court has referred to that as a general rule of though it has found in certain circumstances that there are exceptions to the general rule and i would submit that this is precisely the type of case where that exception should apply and that the two things in particular that i'd like to point your attention to are the context of the claim the claim language itself and then second the specification sauterne yes the four fifty four patent that the claim should be properly interpret it as limited to one and only one bit on so turn into the claim language and this can be found i think if you were still there in the appendix  page eleven of our the response brief we talked about claim limitation and which clearly distinguish is a number of control gates from a bit line and a number of memory cells this is also carried through though in the next claim limitation which i think is very important where it says x and subsequent to accessing said bit line again and find the one bit line sensing the presence of at least one over a race activated cell at least one is exactly how the board interpreted a bit line so clearly this shows the distinction between plural elements at least one elements and then singular elements as your honour's went through with mr birdwell the four fifty four pattern specification is similarly consistently clear every embodiment of four fifty four patent discloses accessing a number of memory cells well activat one and only one bit line and in fact there are disclosed advantages to this and that can only be achieved by testing and healing cells along that line one at a time for these reasons and as explain more fully in our brief we if this court finds that the incorporation by reference of the five seventy nine application was in its entirety the this or this court can still affirm the decision of the board with respect to the offset or race verified bias claims court the board specifically found that even if there was an entire incorporation that this feature the offset or race verified by a still lacked written description in harare specification the that what this what this does say is and we're not disputing the fact that during this offset process it will use the same circuits that are used for the reid procedure and it will also these procedures will also use in terms of the word operation some of the clear distinction between using these using the specific offset by us or using these local reference cells directly on the one hand where he says you can use the local  reference directly to i doubt the threshold voltages and in that context he says you can do it in read or program race verify however he then refers to an alternative embodiment where he says you can use these reference cells indirectly and in that context he only says that you use them to read it is only in that alternative embodiment that the offset bias adjustment is taught to at the appropriate time which was before the board point the board's attention to any material that it thoughts you know suggested it had sufficient written description harari has never relied upon this passage to suggest that it does have does have the burden to establish and actually before you even instigate an interference you're supposed to set forth a claim chart that suggests all of your written description and this passage again never appeared in the say that although that appears to be a harsh result that that's part of what this court's waiver jurist heard jurisprudence says that you can't raise issues for the first time and apply you know part of the reason is we were never we never submitted any expert declaration as to what this does say and whether or not this does suggest to a person of ordinary skill in the art that even though i previously told you you can only use this bias with the read now maybe i'm suggesting that you could use it for the   offset bias with the race verification procedure so it was therefore harare's burden to to present the evidence so that we could you know at the appropriate time provide expert testimony as to what that means the third point i'd like to raise with respect to the offset bias features is that this this again should have an issue of claim construction and that is that in light of minea is pat t the offset or race verified bias claims should require that this is actually an alteration of the procedure that results in placing the memory cells into an over a raised condition i specification that's correct i think that many us patent makes clear that what they're doing here is something different which is intentionally placing these cells into an overt race condition harare's disclosure on the other hand teaches that over race is something that should be invoked avoided and in fact in relevant part they teach that they can use their race state to avoid the over a race condition and for this  water and using a faucet to fill these buckets what minea teaches with respect to the offset by this is that we've got a we've got you know a gallon let's say we want to get a gallon of water into our bucket there might be a lie on that you know the inside of the bucket to tell us when we've gotten there what many a says is i need to make sure i've got at least a bucket i need to go past or past a gallon i need to make sure i'm over a race so i'm going to move that line  bucket or i'm going to turn the faucet up higher than i normally would to ensure that i'm going above that line with respect to the offset bias in harare he's teaching something quite different he actually has three buckets he has the sensing bucket which is the memory cell that you want to read the state from his local reference which is the second bucket and then he has the third bucket which is the master reference the line in my example is actually a line in the master reference offset what he actually does is he's got the line in the third master bucket and he says well you know time has gone on some of my water might have evaporated the faucet may not be working as well whatever the appropriate analogy is but he says we've got to look at the second bucket which is the local reference cell he says we've got to look at the second bucket to see what level how much what volume of water is actually there and use that to adjust the master reference cell which has the line that's right that's right and the purpose is to make sure then that when they go back to that first bucket the sensing that they're actually reading it correctly so it's not really confusing but technically difficult days i would agree with that the issue in terms of with our appropriate claim construction has not been addressed by the board and part of the reason for that is that the agilent technologies case actually came out after we had there the evidence is still there and it does support that the offset of race bias issues in the race process and i want to point out there's a confusion which the which  because it's clear on the record that it's just a terminology issue and they're trying to take advantage of the difference in the terminology terminology issue but the the five seven one disclosure clearly states what's going on pushing it down into the claims which the board did not find lacked the written description support when you argued nevertheless do lachman is written just written descriptions for this appeal but they did not notice that appeal that went against them  level and they waived the opportunity to argue that those claims do lack written description support in this appeal of the remaining thing that i would like to go back have fewer than fewer than this is you can have your eight or any number of control gates so that you could actually satisfy the cla by having one control activated with one bit line and another control great then activated with another bit line there's no requirement for five four that needs to be done simultaneously in dissatisfied in order to satisfy a number a number of memory devices thank you very much