construction it is a more narrow appeal the issue here is what is target operability line the board construed it as a set of points on a fan map at which the engine operates which is exactly what g e had well so with slight variations in wording which is what she had asked them to construe it as and which even admit it would be construing it is the same thing as an operating line i apologize for the similarity of these terms but if the court could look at page five of the blue brief i'd like to try to kind of clarify some of these and this is a demonstrative that we used at the board and what it does is it shows these concepts that are described number one is the stall or flutter boundary this is what you're seeing is that what's called a fan map and it's a map of corrected mass flow rate on the x axis against the pressure ratio across the fan on the y axis so generally as the corrected mass flow rate goes up the pressure ratio generally goes up and what you seeing as the red line is the stall boundary if the fan exceeds that line you get into an area where it may not fail immediately but you're in an unstable flow condition from the physics of it and it's extremely dangerous to operate in that area so you want to stay away from that line and what most designers do is they build an ample margin in so that you don't get too close to the line at any point in flight envelope because it's a safety issue the second concept here is operating lines those are shown in blue on the demonstrative graphic and what those are is at a constant geometry if i'm not changing the geometry at all at the back at the back at the variable area at the very real axis not what i'm going to get is the engine's going to move up and down along a single blue line if i do change the geometry then it's going to jump to a different line and move up and down along a different line and so on all the way up the graph and what you're seeing is the green line is what the specification defines and describes as the target operability line that's a set of points also on a fan map that defines where i go as i move from one operating line to another as i'm changing the geometry of what the error here that we allege is that the board erred by ignoring the definition the inventors gave target operability line in the specification the term is defined there and under quo so and in re smith the board should have looked at that location where that that's defined in the story or words that definition the definition is of that we proposed would be a set of it's a the set of points that connects the different appendix of forty three it starts with the abstract there's a definition there of moving the operating line toward the stall or flutter boundary to reduce the operating margin that's the whole point of this invention i don't want to suffer where the designer put me on the fan map i want to get closer to the stall margin without going over it because it gives me better fuel efficiency better performance by closing down that operating margin going to do that with a controller that that's that's simply what the invention is so a page forty six column one winds five to seven again b n vention relates to managing fan operability very clear statement at lines sixteen to nineteen that i'm going to fan operating line can be manipulated during engine operation to infuse sure that the operability margin is sufficient at lines twenty two to twenty four i'm going to do this to meet desired fan operability conditions at twenty four to twenty six i'm going to do it throughout the flight envelope and again at thirty seven to forty i'm moving this line throughout the flight envelope using this controller if you look down at column want to get it line fifty six to sixty two there's a very clear statement a change in the effective nozzle exit area is used to move the operating line forward a turbofan stall or flutter boundary by manipulating the turbo fran pressure ratio as a result engine operating conditions and normally have a necessarily large operating conditions with conventional fixed nozzles can be made more efficient and then if the last place the direct the court a column three at lines thirty to so thirty seven a change in the effective nozzle area which changes the turbofan pressure ratio is used to move the operating line toward the stall or flutter boundary of t fan twenty two to a target operability line and a skip over the next sentence better fuel consumption for example is achieved by decreasing the turbofan pressure ratio for the solar floater boundary which decreases the fan operability margin so what we see in these portions of the spec is really four things i'm going to change the variable area nozzle and when i do that i'm changing the bypass ratio of the engine i'm going to move it closer to the operating line closer to the using the stall line moving the operating line closer to the stall or flutter boundary or margin and when i do that it's going to reduce the operability margin and when it does that it's going to increase fuel efficiency and increase performance and i do all that through the controller surprisingly the board made a number of findings that are entirely consistent with that explanation that i just gave you they found and it says that the appendix at eight in the board's opinion the parties agree that a given fan operating line identifies how the plot of performance characteristics of the fan having a constant nozzle exit area will change with changing throttle input and then a few lines later that each fan operating line illustrated and will listen mattingly fan maps corresponds to one novel area configuration so they're agreeing that the there is no dispute in this case the parties agree that the operating line is a fixed geometry and then they continue the specification repeatedly as in that line at page twelve the specification repeatedly uses the terms operability and operating these discussions suggest a difference in meaning between the fans target operability line and the fans operating line and then again it aged twelve and thirteen the operating line is different than the operability line and the twelve the five one three pattern establishes a difference in meaning between the fans target operability line and operating line and that difference this is that and exit thirteen is optimizing the fan operability margin the board also concedes that the concept of optimization is contained in the specification so how did we go awry here the board seems to be making factual findings based on the intrinsic evidence at least that are consistent with the construction that we had proposed they then basically construe the term at thirteen and sixteen as a set of points on a fan map at which the fan is designed to operate which is the same thing g e had been urging for operating line so at some point they simply decided that they were not going to follow their own findings or follow the specification and construe these two terms as the same the reason we did we believe they did so is that g e had made arguments that u t c allegedly gave away the farm during prosecution by making certain admissions and again as we talked about in the last appeal we believe those statements are grossly over played by g e in this case the office action is a page twenty five sixty four of the appendix and what the examiner cited was it's not clear to me whether this target operability line is talking about a characteristic of the school the entire apparatus of the turban the shaft and the compressor or whether it's talking about the fan and what we did is responded that and this is appendix at twenty five seventy three the term target operability line is clearly understood in the art again it was a definite yes rejection not a claim construction issue the meaning of this term is set forth in many industry documents for example s a e document a i r fourteen one thousand and it continues and operating line or operational line may be expressed by multiple operating points absolutely correct but it is not a definition of target operability mine the operating line represents a location on a map where an engine may operate without encountering instability and then they respond to the examiners rejection which was the target operability mind relates to the turbo fan or fan and not the school this is by no means an admission or concession of the nature of the g e is arguing here the examiner was confused as it relates to the fan or the school we responded and amended the claims to make it clear that it relates to the fan we defined operating line as you can you help me out of one yes you're on one thing and i so if you go back to where you started twenty five before the paragraph for which is a yes the key somewhat garbled but i think what he's asking at least we understood him to be asking is it's not definite not clear to him whether this limitation relates to the fan or the spool and that's what we responded saying that relates to the school and since it was a definite the question specifically about whether it relates to the fan of the school by saying the target  so what this statement does not do is define a target operability line is merely a set of points on a fan map where the engine operates that's what an operating line is and to involve the two as g e has done is simply wrong and it's inconsistent with the specification there is also evidence of record from the experts that makes it clear that they agree so for example we had submitted testimony from dr been any who is our expert and he had indicated that that is also the case we had also what to do to closed dr atiya who was g e s expert and what he stated specifically was that the that this was an unusual turn it was an unconventional turn one would understood what it means but it was not something that was a term of art in the industry which again which he is trying to convince the board to do is that they could ignore the specification which as i read earlier makes very clear what this operability concept is and that it is different than an operating line based on that error we do believe the board has erred in considering the claims and specifically the target operability  is a set of points that connects where you jumped from operating line to operating line to reduce the operability margin and equating it to an operating line under in ray smith this leaves its conclusion of anticipation and obvious without substantial evidence support we are to the court to reverse rather than vacate for further findings because the issues were flushed out fully below and there's an ample record here to resolve this issue under the correct structure and there is no substantial  would tend to support your your construction but it is a required yes your honor it does require inquiry that well because the entire specification describes what that were managing operability that's the first line i read out of five to seven and the claim limitation itself is target operability line and what you're saying what it's describing what that means and then the claim itself is saying i am going to move this to a target operability line which is closer to the   that the idea of taking a variable area fan nozzle adjusting it on the on the fly while the engine is moving and being able to move from one fan operating mine which is understood term to a different fan operating line in order to improve engine performance was a patentable invention and they called that the target operability line the claim in the petition they found out that that was not the case because will us specifically disclose and you can look at that and extend the seven sixty seven and twenty seven sixty eight foot hold it right here for you this is a fan operating map there is a s l s sea level static operating line that willis was designed for you can see it's a fan operating line willis describes the use of a variable area fan line which is higher up on the fan mat has a higher pressure ratio and that is another fan operating line at which the engine is designed to operate using a variable area fan nozzle that is precisely what u t c has described in the background section and in the summary an invention section in the patterns the idea of moving from one and operating line to another in order to improve engine performance willis specifically stated on page twenty seven sixty seven that the takeoff operating line was selected to keep jet philosophy low for reduced noise that's an engine performance on equivocal you then describes how you move to a higher operating line for the cruise point and you do that by closing the variable exhaust to increase thrust at altitude that's another engine performance increasing thrust this is exactly what the board found so what does u t c do after it receives to pat the petition and we get instituted they decide well we can't call the target operability line the operating line that you want to be at we have to come up with something different and they came up with their drawing which is in their blue brief several places where they described for the first time this idea of we're not talking about being on different operating alliance no no we're talking about connecting points connecting the dots between different operating lines and that's the target o is exactly the opposite of what they told the patent office and what they told the european  operability lying in the patent there's no doubt about that but what's important is what they told the patent offices both u s and european what that meant in order to overcome rejections the examiner in the u s prosecution specifically said that twenty five sixty four that the term was indefinite because the specification does not describe what is the meaning of the term that's contrary to the position that they're taking now that the specification does describe it in in response would you say they did not say that this was a term that they had made up and were defining in the specification they that document in those three pages with extremely small use the terms of her ability later just operating it uses only the terms offered operating lines it is referring to traditional fan operating lines the person of ordinary skill would understand so and then after submitting that and in fact your honor twenty five seventy six there's actually at the top the  drawing it's says fan operating on fan on operating line that's a traditional fan operating mine that's what they said that's what they told the patent office their target operability line was a fan operating line operating lines actually circled after doing that the examiner agreed and he said the essay each document in the remarks overcomes the indefiniteness rejection so those at office ask you the same question i asked mr cohen if you go back to the initial rejection of twenty five sixty four you parse that as best it can be determined sentence for me and i may just be well into why it actually does  grammatically i don't i'm not saying i don't think it's written in the best grammar i agree i believe so what is known is that the low pressure school i here but still it's the it's the low pressure school that is connected to the family ok through the year so i believe what he may be saying here is that as best he understands that it's the operation of  the spinning of the low pressure school to spin the fan is defining the fan operating in live defining would help a little bit probably in that maybe what's right you know is places what that what that means it doesn't your honor i respectfully disagree there is no spot in this specification where does it define what about market option they cited everything that mr cited to here with respect to for example where it says a change in the effective nozzle lead to an area is used to move the operating line toward a stall or floater boundary by manipulating the term fan pressure ratio that is exactly exactly what will assist disclosing here close to close the nozzle in jump to a new operating line that is closer as a higher pressure ratio so therefore it's closer this is all there is no statement in this specification whatsoever that that contains that definition that u t c says the claim terms mean if there was then why is it that a european examiner said that the specification doesn't contain a definition the us examiner said it doesn't contain a definition three technically trained in ministry of law judges said it's flight that's where you want to be right you want to move right you want to move from the existing operating line to a different operating line depending on what the engine performances are and where you want your engine to be ok but that is not the portion of the specification that we just looked at the portion of specification we just looked at says the target operability line provides desired optimized fuel consumption engine performance and or fan operability margin what u t c wants to do is they want to strike from that fuel consumption and engine performance they want to change desired to optimize and then they want to take that reworded portion of the specification and put it into their claim his structure that's not that doesn't follow the canons of claim construction if if the definition of target operability line is that sentence then it's undisputed that willis discloses precisely that it discloses being on one fan operating line at one operating condition and then moving to a second one at another operating condition in order to improve engine performance undisputed that is what the board said again i want to go back to the european prosecution because i think it's important at appendix thirty two  the european patent office said again that this term target operability line is vague and unclear and leaves the reader in doubt as to the meaning of the technical features of which it refers therefore ending the definition of the claims unclear and what did they do in response again they find a statement where they say in appendix thirty three hundred we believe the term target operability line would be entirely clear to the skilled person as being a term in the r how could that be consistent with your statement that they made up the term for the first time in this pattern for example they submit figure one which shows a typical fan map which shows typical plots of target operability lines the claim turn when you look at that page which they submitted thirty three zero nine they specifically show two new target operability lines or operating lines they created the terms specifically in the submission it's at appendix thirty three zero nine in those two lines which they called either target operability line or operating running are exactly like the two operating line these statements in the file histories are unequivocal unequivocal persons of any skill you are entitled to rely on them on determining what the true meaning of this claim term is the last point i want to make is that as the board found the term optimizing fan performance is not in the specification it's desired fan operating margin is what the specification says and as the board we put that into the claim construction what does that mean how does a person of any skill know if they are optimizing an operating performance so that they're in the scope of the claim or not so that they're outside the scope certainly the speci ication which contains two columns doesn't provide that type of guidance if u t c truly wanted to define the term as they say they did it was incumbent upon them under this court's precedent piecing tech  couple of points very briefly where i left off with willis willis noise is not among the performance criteria how do we know that because the patent tells us that specifically at col at appendix a forty six columns three wind ten to twelve the specification expressly distinguishes performance referred to in the question you are asking your honor from other operating parameters of the fan and what it says this enables desired engine operation moving moving toward the operability stall margin this enables desired engine operation over a range of flight conditions with respect to performance and other operational parameters such as noise levels so what the inventors are doing is distinguishing fuel efficiency and performance on one hand from other types of operational parameters noise for example or or other parameters we also know that what will assist disclosing it may be an operating line maybe a series of operating lines he may be moving from one operating line to another but he's not doing it to reduce the operability margin will a specifically provides that basically in his specification he lists a number of places where he is essentially saying what he's doing is controlling noise at twenty six twenty seven sixty five twenty seven eighty four twenty nine eleven twenty nine forty five and twenty nine ninety seventy two each of these places he makes it very clear what he's doing is controlling a constant mach number he wants to limit the noise the fan is generating so what he does is he keeps the inlet speed the amount of corrected mass flow coming into the engine at a constant if you look at the graph my colleague identified for you look at where those two points line up they line up exactly where these five places i read said around point seven five to point eight zero ma number it's a straight line up and down there is no conception in willis of optimizing reducing moving toward a stall or float or boundary what he's doing is maintaining a constant noise level constant mock number so limit noise that is not the same as a target operability line which you have to move toward the stall or flutter boundary if we with respect to the question of whether this w testified that this term target operability line was unique to the five one three patent we asked dr adia the same thing that he ever heard the term before and he said he had not heard the word target operability line before the five one three that appendix at three five five zero line page thirty six lines six to nine and then what is very interesting we asked him further about that at three five five three page thirty nine lines ten to seventeen and what he said that is an unusual word in as i understand fans and compressors and that has been the majority of my experience is with fans and compressors i well target operability line is the phrase they were discussing has got to be target right that it's got to be a target and it's got to be based on that that was new that is the point with respect to the further point that these are three all trying to what are all the other lines goal line or give going through all that is absolutely true but he is not showing you where the stall line is because he has no conception in this invention of paper about operability at all what he's doing is he maintaining these points at a constant mach number point seven nine to limit no i just he doesn't even show you a stall or flutter boundary on here there's no way to determine where the stall or floater boundary is because that's not one of the concepts he was even dealing with in this reference he was trying to do something completely different and the two portions i mentioned to you previously really i'm sorry honestly that my time is over so i just finished the sentiment was ok this concept that that these are different things they're not different things the portions i read you from the spec make it clear that when i moved this so i reduced the operability margin i am increasing performance and fuel efficiency they're not independent variables of the board could pick and choose among