today two zero one five dash one five four  mourn your honour's my name is steve harms representing the appellant bamberg it please the court what we have before you today is a claim construction issue that arises out of an interference perceived my primary goal in this argument is to convince you that the claim construction process of the board took was incorrect so at the outset we agree that the edge and spin a precedent is the correct precedent the fault copy claims in an interference or be interpreted in light of the specification that they were copied from and we also agree that according to speak the board interprets those claims according to the broadest reasonable interpretation standard but unfortunately that's where our agreement with look to the specification and that anything relating to a term within that specification could be imported into the into the claim and that's where we disagree a broadest reasonable interpretation rule doesn't give the p t o permission to import anything that's related to the claimed invention what it does do is it must still be reasonable under general claim construction so i'm going to go right to my question how does broadest a broad reasonable interpretation of a copy claim become narrow or to include a function with taishan of melting and mixing and the temperature limitation when there was no term or phrase in the copy claims that it clipped that required those limitations and my answer is that comparing specifications in a case like this the whole exercise kind of unravels becomes a self fulfilling prophecy that you're going to find issues or discrepancies between the two specifications that may not match up so properly under agilent with the board should have done was divided those into two discrete analysis first a legal analysis a claimed instruction and then under the right reasonable interpretation standard and then once you're construed a factual determination looking to bamburgh afterwards to see whether bamberg supported that construction the problem i see here was that the board merged those two  analysis into one analysis by first looking at both of the specifications so are you saying that we can't look at the doll the specification and determine what the scope of the claims are that you copied from claim anything else then why isn't that a proper limitation to the claim terms even under the broadest reasonable interpretation standard because i would submit to you that that nat actually narrows the claim because it inserts a functional limitation into rules we can look at that makes clear that the only thing they have left is that the thing that requires melting and mixing why isn't that brought us reasonable interpretation because the broad brush reasonable interpretation should start with the claims themselves well that's why i ask you though are real bob look at the specification or not yes you offer a lot look at the specification and we determine that the specification limits the claims under traditional construction princip and then the fact that you could read the claim for probably in a vacuum doesn't alter the fact that the limited construction is the product reasonable construction well i would say that when you're looking interference if we're just looking at clean construction and we have very very broad claims i know you think the dubby clinton very broad very broad claims but the specification makes clear that they're not that broad that they've been their own lexicographer that they ordinary meaning that's not your case so i don't so i don't know why you're fighting him on such an unassailably correct principle of claim construction of what i would i would say if we want to use the le going back to the principle sense brought us reasonable construction consistent with the specification or sometimes it's as in light of the specification is an echo act isn't that the standard is not broad is reasonable construction vacuum right it's broad is reasonable construction specification that says that the layers melt and mix it doesn't she doesn't use language in the specification that clearly disclaims that she used it in her argument here that said it has t looked at the specification would somebody recently skilled in the art interpret that that's that remains of question is your argument it doesn't rise to the level of disclaimer because that's a very high level of proof that's necessary is that your argument if you look just at the specification i don't think it rises to a disclaimer i think it describes and in a   think that's where we need to stay with the plain construction is that the white layer interpreted from across the employment just means that it's white layer it doesn't mean you don't need to interpret it and how  functions once it's applied to the teacher so i think we've gone too far looking at what the invention really was of the invention is to find first to find in the claims it's a white layer i don't think we need to go much beyond it means that the pigments are there you know again it can they really don't have a melting they do but it's a very it's a very high temperature i get you know i think we can grab some other language in there as well from that same page the elastic underside mixture now undesired doesn't mean it won't work it doesn't mean that it's being disclaimed it just means that it's an undesirable and body to be so i don't think it's a it's a disclaimer within his specification at  great so if we look at the issue of possession whether it possessed the concept of a melting layer i'd say that he did possess that and i think the border from a factual standpoint may have overlooked some of the evidence that was that was a record so if you present the possession of an environment if it was an undesired mixture he had an understanding that it that it did work i would submit that in terms of technique that it technically i mean i i don't i don't know i mean it's had somebody undesirable that all and then the preferred imbibing that was described as having a different shape and so there wasn't written description support for those other shapes that were described as being undesirable and why did why doesn't that apply here correct because i the the difference is that the emperor provided an explanation as to the whole range of temperatures and selected the higher temperatures as what he preferred in the to trying to case i believe they specifically listed some shapes or decreased with a white background layer is permitted to milton met accordingly we developed the white layer that did not melt the conventional writing temperatures that to me that says that he tested the whole spectrum of it and he understood how it functions disclosed right in there if a specification disclosed three embodiments and were trying to decide if the inventor satisfied written description and if the specification said one of those three embodiments was strongly says nothing about the level of preference for the other two embodiments you would not be here arguing to me that the inventor didn't possess the other two if they were both completely disclosed just because he preferred indicated a preference for one of the three right that is correct so in this case because he said one is undesirable he didn't just express a preference for one over the others but actually said one embodying this undesirable how does that make it different granted it's a little stronger than that so in this that's one area where they specifically talk about the white background where if you again can try them in europe that's but i'm a little confused about if they're claiming this isn't the invention it has to be the stuff but they know about another way to do it that doesn't work it doesn't work in their view is that an embodiment of the invention or is it just not the invention and not in the specification it's not the invention it's not the that's certainly not his invention if you want a couple others i don't know if you want more cites than that there to ninety but you can also look at easy place to look is fourteen hundred and then also the claims in fourteen zero four what your response about that pigments i had asked about the sentence i'm thirteen ninety one saying suitable pigments are only those which do not now at at ironing on temperatures and i was told that well that's just the so that layer will have both in it and then so that's why they say it's filled with the pigment and so if that layer that's not melting and what bamberger is making clear is neither the plastic nor the pigment melts at temperatures below two hundred twenty degrees are you also relying on the statement at the top of a certain ninety one that says the elastic plastics must not melt at ironing temperatures you're to not answer yes yes air any i mean and you can see it again in the next must not mout and even explains why but again and there it's not even that i need temperatures he's just saying it must not not mr bamberg throughout his specification very consistently makes clear that that is not he does not possess that that in now there's a fundamental emberg premise for their argument is fundamentally wrong if you look at the board's order you see that they're very faithfully followed the actual case and what they did and you can even look at the board statements the board specifically agrees with them burke in saying they do not include and should not and the cla temperature range and then they go on to tell you what the scope of the claims are very consistent with agile and they point out exactly what dol b discloses is that's what agilent asked you to do and what they say  dolly discloses embodiments where that white layer can be fusible or non fusible at temperatures up to two hundred twenty degrees and that's the exact same analysis that the macmillan case did in following a they then separately to then see it does bamberg who copied the claims did they have possession of that invention is exactly the next stat that's followed by the  clean language their claim language there is outward anger out regulation and what they did was they looked at the plain language and they said ok let's see what carol discloses about that and he had a wide range of angles for that and they look at the spec and say what did you disclose for that there and they find out that mcallen limited it to no more than fifteen degrees and it's the same here they look at the white layer and then they look at the white layer language and they say it creates any white layer because i told you shorthand for all claim limitations that in that it had that refer to a portion or layer that has a white or luminescent pigment and so all the claims every claim has some version of that claim language that we're calling it lightly so the answer is yes that every claim has white there but it's not the specific term white where it's any language that fairly read would relate relate to a mayoral portion of the aisle that goes to being white or l the last paragraph on clinker structure if you look at the board order and their final conclusion that dalby actually has an invention where you can use any suitable white layer it's contrary to bamburgh argument now that the o expert testimony as well as mr members own testimony and and there's substantial evidence to support it we went through some of the sites in the beverage specification you can also look at statements made by the us p t o independently where the us p t o mr bamberger tried to get a claim allowed when he asked for a white layer with a softening point below two hundred twenty degrees and the us p t o independently said you can't get that claim because you interpret the construction has to start with the claims it has to be something that you're looking to clarify when you look to the specification so in the claim that was copied a macmall and the wording angle was there so i thought we thought it was fair for the board to look to the carroll specification to see what that claimed range was and then if you look to the mcmillan specification they didn't claim the same range so i think that's distinguishable here because in the copy claims that we have in this application there is no there is no term for you for for the board to go look to the specification to define a function of how the the white layer melts e g if you look to what that term supposed to mean it's