the first k two cases for argument this morning were consolidated they are fifteen one eight seven four and fifteen one seven three one no red first is medtronic mr ker now whenever you're ready consistently throughout the it's written decisions it could not have reach the results that it did further the board construed the same claim terms differently in different decisions involving the same parties in the same path you focus maybe on one of these one of a time and tell us what's wrong with the decision that they reached in the one camp what's what's the error there in the one ten in the board's decisions to institute the one break what's wrong with that construction a change too broad you know that if that's the if that is the construction then that's the construction that the board should have used throughout the proceedings what the board then did was in this final decision of the one ten matter it construed the means for mounting narrowly but will it stick just with the with the first one with the one ten yes did they make the construction error in the one hand yes that bit and what was the too narrow because it's also that construction comes directly from claim seventeen there is no limitation in claim sixteen that includes fingers or arms him shortly attached that limitation comes from taito would not anticipate the two to eight that claim sixteen if it's construed narrowly as the board did in its final decision then none of these other patents are if it was construed narrowly then the i'm sorry the split if it was construed broadly as they did in th yes right or that you're saying that under the board's construction they still should have a while the amendment is that the idea well if give it said that it has fingers or arms then all does not anticipate that plane because even tail does not have fingers and arms they found that it did well they found that it had a membrane hinge at least secured in hundred lead attached to the aperture of the ring that's what they found in the initial decision the decision to institute then when it was looking at the motion to amanda they changed that this they changed their interpretation to m case we're in the final decision do they say that it doesn't require fingers and arms that the its it ates in appendix a seven and eight in the final decision for the they say to mean fingers in arms injured late catch so i don't sleep that you have adopted a claim construction a final decision that doesn't require fingers in arms when they did that they they originally adopted a claim construction in fact the natural valve does not have fingers and that's what's shown in and figures at eighteen and nineteen ok well before you run a time i want you to tell us what's wrong in the twenty eight that was in that the decision to institute when it was looking at the proposed amendment in the one eleven case the board narrowly construed means for maintaining to meteorologist one of four that must be separate from the stand system twenty eight so before it was just rods interacting with the with the s system then in the final decision it found that the rods have to be separate must be separate from the stances where there is not a single in body and shown in the  connecting rods in that the valve is connected to the inner connecting rods remain low you limited the means for maintaining language in the amendments and put the end put in specific structure that shown in the past well but the board said that that didn't show the rods connecting to the stand in that sense you you brought in but quite right right that's what that's exactly the and that's what was wrong with the board's decision there's not a single embodying that or a the inconsistency is that they said that because we did not call out a separate rod that is then connected to the stand system in connection with the amendment in connection with them and then that th from the means for maintaining which are just ross that interact in fact in the in the interact with the standard system in fact in the in the proposed amendment there are interconnecting anticipation anticipation might the boy write well it depends it depends on which way this court construes those claims if the court construes them broadly then the amendments should have been allowed if the court construe as those in terribly those terms narrowly then the prior art doesn't show those limitations the prior art does prior art does not show the means for maintaining where there is a rod that separately maintains the ring member in place so they conclude of much more well yes they did conclude and that's the error that is well that's a what i grok that's a fact a term now it's i don't believe it's a fact a termination because it is a construction issue this is claim interpretation and how they interpret those claims is go and as a matter of law for this court to decide oh what i'm still struggling with what's the claim construction error they said the rods had that connect to the stem right  and that was part of the means for maintaining the it's so where's the claim construction they're all it's because they changed they originally they said that there is there does not have to be separate rocks it's just rods interacting the say that in that in the initial decision the initiation decisions are yes and that will work what about in the final session while in the final decision it didn't change that except for when it was looking at the amendments whether the decision to turn out always where in the final decision they've used two different claim construction they don't explicitly use the second the first claim construction from  the decision to institute they only change it with respect to discussing the amendments so what we're in and in the anticipation aspect of the final decision do you see that they've used the wrong plan construct well in the anticipation they did not go back and reapply their new claim construction the narrower pla construction that the applied to the amendments required connecting rods required to separate connecting rods they didn't then go back where's that where is the discussion and that's only in that you know in the part for the inventor if we go forward or show where they discussed the in the final decision the connecting rod through our connection with shows extending from the top it's going into the stand there's nowhere that is shown any connection a joint a hinge anything that connect judge that he wanted to eliminate having a stent system that was connected through connecting rods and instead replace it with just the stent system so that essentially you could at that point have the valves integrated into the stent system itself the work properly found that that was a broadening and indeed it's inconsistent with the way that he described his invention in paragraph eighty three of his declaration which you can find at age twenty one fifty three of the joint appendix in the first of these appeals the term the specification talks about them being tangential to the sinus of the aorta the tangential rods that then connect the separatist and system to the ring in the boards that that's all being read out and all that you're going to be left with is the rods that make up the stent system itself and that was therefore broadening because there was no argument that they made below waived the notion that just having a stent system was equivalent to having a stent system plus connecting rods and again it makes sense that those wouldn't be equivalent because you're replacing having a separate system state system from a separate remember that is connected up and saying ok now i'm going to do it in a way that would read on them in a body once that are read on items that embodiment and the claims and there is no clear link between the tissue valve body man and claims sixteen through one thousand in fact quite the opposite there's a clear link between the tissue valve body that and the tissue valve claims claims twenty three twenty four membrane with respect to the bottom and found figures temperate seventeen and with respect to the claims sixteen thousand more than that even setting aside the whole issue of fingers and arms his proposed amendment clearly eliminates a claim an element because the claim if you look at claim sixteen it requires that you have a membrane but also requires that you have a means for maintaining as you mean it means for mounting and means for moving that membrane and hit his proposed amendment that's going to be gone all you're left with is the membrane you literally will have vitiated the claim element which is the means for melting and moving the membrane so the board was absolutely its final decision and and inconsistently required that there be a fingers or arms limitation in the one ten i p r the argument that he wants to make that that's not disclosed new argument being made today it's not an argument that was in his briefs and you can find how that limitation is met a want to one of the joint appendix in the in the appeal from the one ten which is our claim chart laying out where the arms are found with respect to language tying twenty eight to placement in the ascending order in the specification and why use it that that should be part of the structure to perform question of whether something orders required it's not i'll come back to that but even if it were required you have a fact dispute about whether or not something that's placed in the root would be considered to be in the instant i want out of the story credit doesn't seem to have been resolved by the that's a problem so i would agree i don't think that the board explicitly addresses and resolve that issue i think the board recognizes that that is an issue and i think that they generally credit dr hill and you have the testimony from dr hill as well as the testimony from dr catchings that would show that the something in order could could be considered anything that includes the root and i think you also potentially  one when you deciding whether or not something is a structure that is required for a means plus function limitation the board quoted this court's decision in micro can and micro can makes clear that claim interpretation under one twelve paragraph six doesn't permit the incorporation of structure from the written description beyond what is necessary to perform the clean function the board goes on to make the point that the means for maintaining refers to the specific structures this is a thirty seventy seven refers to the specific structures of the between that it refers to twenty eight in a lot of different ways it refers to his quote stands just in twenty eight stents scaffolding twenty eight stand lattice twenty eight combine stand twenty eight and also ascending aortic stenosis twenty eight what let's take the of the function i think it's clearly the look of the latter judged like the structure where it is put it has nothing to do with the structure itself and i think this is where the board crediting dr hill is particularly important dr hill made the point that stents can be put in a lot of different places and it may be that he preferred that or contemplated that at least in some circumstances the staff would be put there but the structure is the step i mean the claim is to is to a valve the board interpreted that and the means for maintaining is including the stent system itself ira because it didn't even include the stone system it was it was it was just the connecting rods that were the means for maintaining but that doesn't go to where it's actually located in the question of where as opposed to what the board result by saying it's what and if the word resulted in a different way i think it would lead to a serious question of indefiniteness with respect to these claims i have so that issue wasn't before the board in the in the context of of  but i think it's a significant one to keep in mind and understand the construction of the word came t