there was prior mark toward the bus or the point that is different in distinguishing the point we think is very important is the fact that the bus bars are exposed on the bottom surface of the package that was a very very very different configuration in contrast that if you look at our description we described two different bodies one of the embodiment was you call a lead an embodiment where the leads where the electric connection between the the dye in the outside world was patentable one and the examiner we believe was very clear from the record that the examiner understood that in the packaging arts that distinction is very very significant if you noticed if you look at the claims as originally filed none of the claims originally filed covered they were directed at the feature of the exposed bus bar and you know we submit is that air was the prosecuting attorney did not appreciate the significance of the feature and he didn't take the claims in that direction stating a little differently and is the prosecuting attorney shouldn't have used this method true i don't necessarily that it was a mistake going in this direction because the direction he went was certainly an acceptable direction what the mistake was was failing to appreciate that there was an alternative britain was a you know a prosecution is the type of the cr you know if that language is holding we have more of a problem there's no question about it and you would lose with your own well there's we have two bases one is the material narrowing and that one of the that narrowing the aspect was not related to the shape of the haptics but rather that the positioning and therefore it's problematic seems to me very close to the facts we have in this case so if you look at the facts of the new what happened in the new was broader or as pride in an aspect germane to the rejection but narrowed in aspects unrelated to the rejection then the recapture rule applies so what has to does is it tries to give some meat to that test and look at the critical imitations might be narrowed and whether they were over a lot that's the language that you will find discussed in the and e p and the m p p walks through an example about glass lenses being created by two to reach at a different invention he's reaching at the same invention that was disclosed in the original claims he's just trying to go about doing so in a different way this court in has to do is explain that if you take two patent attorneys and you ask them to draft claims for a particular invention they're going to do so in arriving the claims with slightly different skull so masterclass it is seeking basically a do over i believe a slight judge friedman was getting out of his original prosecution he's figured out a different way to overcome the prior art in a way using different limitations but in the process of doing so monster is attempting to recapture subject matter because he wants to know it is not your own and it's directed at something different from not and perhaps it's not the best placement in the section on b c's meet on recapture to include it but nothing would be  about what those words mean how the court really invision them working when we look at cases where the court has applied the third step and judge press i think you're correct that the closest analogy here is the pain in the case and in that case the language which the jury cited when it talked about the third step is it explained that the narrow wing didn't relate to the shape of the haptics which was the critical imitation but instead related to the directions and positioning of the snag resistent means which were subject matter that didn't affect the critical limitation and therefore the court said the exception wasn't triggered it was no doubt talking about the third step and maybe even a better recitation of it is in north american at the court explain when they judge whether the additional limitations that were added into the claimed offset the recapture the court said and i'm quoting their issue claims were not narrowed with respect to the inner wall limitation allows if you narrow with respect to the bing it's an offset and in that instance you might be able to accept yourself out but this extent but this exception has never been triggered in this court's case law and it should be exceptionally rare and so because we don't offer an example in the m p p of when it would be triggered his generally like to base the examples are undecided cases so we wouldn't miss direct applicants and the m p b i would agree could probably stand to have some not you cannot get back everything you got you gave up on this court has explained that there is no one fairness and holding an application to the deliberate amendments and arguments it has made in the process of securing a pa concepts of prosecution history sample this reliance aspect and if you take that away from the public this court has explained and pestered that an unscrupulous patent attorney and those the courts words i don't need to characterize anyone is unscrupulous that th its application of the recapture statute we need to understand what's been surrendered so that facially that looking at a patent and its light prosecution history we can judge whether there has been a recapture subject matter and i impose a rejection so the public can know where the boundaries of the path reside and once open for development so if this court has no further questions i will relinquish the rest of my time the points that i would like to make is the counsel that suggested that this case is on all fours with the a number of cases the she cited and i don't believe that's the case because what is very different about this case than the other is that there was a materially narrowing of the claims were that every one of the cases cited by the counsel what really happened if you look at the underlying patterns in the underlying prosecution is they went materially narrow the scope of because that's what the board found we believe that that was a fundamentally flawed determination because the board used the wrong standard and the standard