which distinguish both the primary one of three reference save in a way to and the secondary reference to fray the nd argument is that  indeed overcome the presumption of obviousness under the holding of peterson as the board ignored the evidence that phrase range is so broad that it does not invite routine optimization if your call that brought was seven by preamble and body in those those limitations the missing limitation in the preamble and in the bodies to effectively treat alzheimer's disease and related family plaque development and reduction about plaque protein aggregation and and had the board considered and construed the claims properly this these these two limitations would have been the preamble and in the body would have distinguished dave in a way too and pray separately and in combination they failed to do something that they were not asked to do and am i remembering right that you did not judge a claim construction position that said the various those limitations the st office action issued and the examiner proposed a professor case of obviousness where he presented those claims and didn't argue the limitations and i think it started store and why don't we why don't we just suppose we accept your argument that these are not waived why don't you tell us why you think the preamble terms are limiting you referenced in grateful i wish i remember and in difference i think between that set of facts and this set of facts so what what is your best argument for why we ought to in this preamble language not a statement of intended use but rather an actual structur trees and it's said it's particular to in the preamble before the consisting essentially so i believe it is tied to the pre that if you think the limitation is repeated in that portion of the body of the claim about effectively treat all timers disease why do you need the preamble well you know it's not quite there's no reason that the skilled or distance would have looked to for a to modify what's taught by save in a way to the primary reference we don't see and seventeen this is the response especially right before the final rejection and just over and over and over again throughout they only hawk about all farmers for example if you look at what they hope to achieve or what they'd like to achieve with the administration not changing any of the steps of the council this is just more following up on the line of questioning why is it to effectively treat all timers disease or to effectively treat development relevant to the amount that you would actually administer this is a large range point five hundred and eighteen point seven five grams so why isn't that  argument really did not adequately put the board on notice of the argument that they were supposed to withdraw so it's understandable that the board responded to all the other arguments that they made in their appeal phrasing in the course of prosecution plaque reduction as well i don't know how much how much more do you think they would have had for that not to say totally so how much more would they have had  problem was the board didn't do that so my problem is the board didn't conclude that it was wait you're absolutely right that the board had the authority to waive and may have done so and maybe we would have reviewed that finding but the be the case do you know of any that have where we have found an argument was waived because it was only raised in the reply brief even though the board failed to address it at all i'm not aware i was not able to find one there are plenty thing because that to me was just noise but we have a argument made about a particular claim limitation not being disclosed by the references and we have the failure of the board to address it at all not not only did they not address it on the merits they didn't board have the discretion i mean we certainly have the discretion right our court has the discretion to address an issue in the reply brief or st time we usually don't do so but we have the discretion does the board similarly have discretion to that there is good cause and no such position was stated here