challenges the finding by the board that besler teaches among other things leaving the native valve in place and here is i guess a very particular question assume i know you disagree but assume for a moment that i were to think that snyder is right about its challenge to the board on that so that besler does not catheter is also threaded over a guide wire and the signers never suggested in the preceding follow the besler somehow lacks a manipulator simply because the can use the guide wire and with good reason the implantation instruments of the seventy two pat flexible to one industry used to manipulate the other and the point that one end of the the catheter was the manipulator of the other end was made in the not supported by substantial evidence at a minimum it requires a rematch and when you look at besler on its face i think that it requires an outright reversal as as to that issue and at a minimum what the board did here is exactly what this court said you can't do let me just let me just pose the following and ask you to to it address it you propose in your claim construction circular strip or ring the board said circular is a little bit too limiting because while the thing has to go around it doesn't have to be circular it can be over eight so it said closed strip or ring why what's wrong with saying it is plain on the face of the use of words like strip or ring that there's uncertainty not lack of restriction but uncertainty about the length application of that facially uncertain term and then there was substantial evidence for the board to apply the facially uncertain terms and it wasn't changing the calling construction well board in commenting on snyder's argument at appendix thirteen that the that this was not a ban but more like leave seemingly cast doubt on petitioners construction and it may be that there are some there are some issues the board wasn't saying that that it was adopting a different construction it was saying that you were attempting to adopt a different construction and it adopted adopted the one you proposed but then it applied  construction to the reference in front of it and found as a matter of fact that it didn't satisfy the construction well as a mound well not not quite judge anally i think st what the board was commenting on was was ciders it was trying to tack in the off the direction the didn't offer a claim construction and such and the board tomnod that its argument on the fact that's what it's saying it page thirteen seen in the cast doubt on the construction that we have had offered in front of the explicit construction the choir's that is implicitly adopting a new construction and it's reviewed the novo and that's exactly here what happened here the board adopted an express construction generally referring construction well no judge of malice it's just a question of whether or not the explanation shows that it has added something beyond was the express construction required and that was the concern expressed in  undecided limitation in the process of evaluating dependability basically didn't happen but the board just said it's not a rank i mean look at it and as a matter of fact we look at it and we don't think it's a my understanding of how the technology works but i don't know that there's a specific measurement anywhere in the seventy two pen itself is that the the larger than here extends most of the length of the sin structure short as compared to it may not be as long as the entire structure but there's nothing about it that short compared to the structure and i think that there's just a difference in the way the leading art and the seventy two are structured the it please the court the board's decision that lean hearts graph does not qualify as a band that decision should be affirmed because it was based on st jude's own construction which which required a band to be clearly exclude things that are too long to qualify for those and so the idea that the only reason why st jude lost was because there was this additional implicit new construction that brought in this requirement that it can't be too long for the st time is simply false but your response to the last point which is how long is the band in the pa so i think that the bands that are disclosing the patents themselves obviously are not too long to qualify as as bands but but that issue of where the line is drawn st jude is the one who proposed the construction and said that level of detail is something that is left up to the fact finder to determine what he did do you know can you tell me i don't remember that this a nd independent reason and in some ways much simpler reason why why the the board's determination with respect to the lean hard anticipation argument should be affirmed and that is that all of these claims not only require a band but they also require the band to limit spacing yeah i noticed that in your argument but but all the board said was really doesn't discuss a band much less a band that that limits spacing and i don't really understand you know the board didn't explain itself at that point so i don't think st jude has challenged the board's determination  was that where the board was discussing that and i don't have it in front of me it was noting that there were two alleged bans in leonardo and as to one there's no reason to think it was it didn't really theories and it would be one thing if angel was coming in and saying it was no basis for that that's wall it wasn't adequately explained none of those arguments have been presented so argument changes made on this point in  this is one where the most important thing i think is to focus on what jude actually pointed to and what it actually said before the board versus what it's now arguing for this court can be and the retention of the native valve that whether this issue has to be reached remarriage should be result in an outright reversal is that this claim construction was issued from the very beginning and i this may be ill formulated in which case i'll drop it and figure it out later  twenty eight dollars like one requires raises the same issue about leaving the valve or not leaving the valve if your right about how besler does not teach  leaving the native valve then for anticipation is there any remaining issue and and therefore since this manipulator issue is being raised as i understand it if you that's just an assertion and if you look at the evidence that they cited which which the board did it doesn't disclose that it doesn't say anything about the proximate end of the character and the only thing it says about positioning th entitled to examine the reference as a whole once the parties have joined issue with respect to what that reference teaches so do you want to say well the board can do it but it doesn't have  doesn't get enough information certainly the board is not obligated to go look at other portions of bester and in fact if it went and looked at there are situations where if it did you that you might run into serious d process problems and you might wonder serious problems with with the supreme court precedent holding that is the petitioner who defines the petition and so forth but that simply didn't happen in this case the court there's no evidence that the  asserts that it talks about positioning and pulling and retreating and all kinds of stuff that's simply untrue the only thing that's in dr dossey separation and that paragraph that goes to this issue is the exact same sentence that's in the petition a common sense idea that you have you would push away from the end of the flexible thing maybe you would do that for something that was more rigid and so it's certainly possible you could do it in other ways and approximate and would not be used so i'm not sure that there's any particular teaching are ready i want to point out with respect to our nd claim construction argument the requirement that the frog small valent be attached to a particular component artificial valve and not only that but a particular portion of that particular component that we think the board's decision is wrong allowing for indirect attachment and that requires reversal but at a minimum there's a very important concession that saint jude made in its briefing and all of that is now the guide wire at because it's not until a column five line thirteen that says that the guide wire is an alternate is an optional alternative and so i think it does it exactly the same way the instruments check on something so i understand it the essence of the argument made by the other side is that you're just assuming the use of proximal and two exams the entire catheter and therefore the distal end and the words at the bottom of the words in the passages of besler that you cited don't say that just to double check are there other words investor that do say that well i think if you look for example column or line this includes the flexible catheter issue if you have more questions on that i'm happy to answer them but i also wanted to come back to the question that you had asked about if you agree with them about size and shape a point that my colleague didn't really argue i'm happy to answer questions you might have about that but i also don't want to open the door on things he didn't really make any arguments about their claim construction but but even if you assume that their argument is writing it is a claim construction argument and you would still have to rename for factual findings on whether testable or sent is in fact not size and shape to fit even if cust are removed that's an additional fact questions that the board did not reach all they they have to assume they had a statement from their experts the besler must be larger because the customer still there that it would it would somehow make a difference but there is evidence to the with their claim construction argument other then then then then arena and i think their high construction argument is is wrong for the reasons that the board for the board gave and i have to answer questions about that if that is of concern to the panel response to mr quinn's argument that that we would still have to remain and for purposes of determining what that size and shape would have to be lawyers cough actually limits spacing and that is a finding that was not supported by substantial evidence and it's it's it's pretty interesting that the sort of sequence of things that  device that saint jude makes and we contend that that means the claim limitation that it limits spacing now that's a contention that hopefully one day i will have the ability to prove at trial but that's