limitation that's correct yes your honor respect its claim twenty one dollars the ordinary and relying exclusively on a nonexistent limitation to uphold the validity of that claim in fact the parties with existence limitation the nonexistent limitation was the over the jetting passageway limitation but sealed was there that's correct or are sealed the different they are different your honor and that  that they're directed to the same aspect of the invention and that is sealing the fluid communication between the central passageway and the jetting passageway now they use different terminology to describe that feature claim twenty one express lead describes that feature and that in a closed position the shifting sleeve seals those two components whereas claims eighteen and sixteen use the phrase over the jetting passage way to connote that feature way at the border going to stray when it construed the over the jetting passage way to impose a physical requirement that is when it rewrote the phrase over the jetting passage way to mean covering the jetting passage way  it's packer's plus position that the phrase over the jetting passageway connotes a functional relationship between the central passageway and the jetting passageway when the sleeve is in the close position that is that it blocks combination that was submitted to the board and packer plus s but the petition in fact even under baker hughes's physical combination of the two references you see there that the sliding sleeve blocks fluid communication yet it's not physically covering it's not struggling the jetting passageways like the embodiments in the patent specification supposing we agree with you to that perhaps found cases so just in the other i think in this case the program remedy is in fact to vacate because the board committed other errors and specifically with respect to the over the jetting passageway limitation even if we were going to assume that it imposed a physical limitation the board's construction of covering was too narrow and certainly the board's constrained and torpor taishan of its covering construction was too narrow as we pointed out in our briefs the board construed its cover limitation as like this as requiring the sleeve to physically cover the jetting passageway that is straddle the jetting passageway what the board effectively did was in for the preferred embodiment from the specification holds twenty three i'm just novels twenty four right and that i'm bottom of yes or that into committee indicates to me that over quote that word does mean more than just positioned above the jetting passageways scrabbling or cover well the problem i have with that is that we know that the claims used different terminology than what the patentee use in the spec the patentee chose to describe that configuration and figure two that you pointed to using the language attached to the housing and straddle and when it came time to claim the patent he used a broader word the patent to use the word over not stratifying the patentee understood how to describe that configuration but didn't do so in the claim the question of whether or not we're going to give some effect to the patentee is presumably intentional choice to use broader different terminology than what was used in the ad specification and i think it's instructive to look at claim twenty to claim twenty one dollars doesn't recites any physical limitation on the position of the sliding sleeve with respect to the jetting passageways so what that tells me is that the patentee did not do you that specific physical configuration that's described in the spec to be a key aspect of the invention because it's absent from claim twenty one in fact the parties agree that that feature is not present in claim twenty one so standing back we know that claim twenty one is in fact broader than the specific embodiments described in the patent specifications talk about claimed twenty one some more because the party's head would dispute with how we and despite the way both parties tree the issues surrounding claim twenty one i'm not so sure that the peta had was acting in such a clearer and making its initial statement that i just quot e i'm saying this because turning to packer fusses titian claim for each element claimed twenty one dollars exclusively cross references arguments already these claims in terms of fluid communication the savaii the central passageway in the jetting passageway and under that aspect if the claims are properly construed to all be directed to fluid communication limitation on the positioning of the shifting sleeve versus the jetting passageway i think it's appropriate for this court to give some effect to the patent days of use of different language in the claim i think over is broader than specific arrangement and in fact there are several places in the specification where the patent team expressly said yes this disclosure and the specification should not be treated as limiting to these claims i think a person a packer that's in a deep in a climb and the open hole concept that that baker he's wants to read in the tailpipe string is also specified in the deep and while so one of the doctrine of claim differentiation tailpipes strength should not be so limited but even stepping back from that baker hughes has proposed construction of tailpipe is tubular or other components extended below a packer that's exactly what hutchinson shows it shows a cup tie packer and fig the cited portion of leaves court rejected the appellate he's proposed alternative grounds not because those arguments were inappropriate basis for the court to rule on necessarily but because they were grounds that had never been raised before the agency and  ruling on those basis would have deprived the other party of an opportunity to respond the court was declining to address them because it would have been an a p a violation not because it was violation of generally and in fact this court has said on numerous occasions one of the best example advises for that is that it would be inefficient for this court to send the case back to the board to rule on an issue that is clearly within this court's purview to address and that rings particularly true in this case where without some guidance from the court on these legal issues that the board clearly erred on with respect to claim twenty one dollars every man to the board would end up with virtually the same result from the board and look combination a person still in there would not have been motivated to combine those references for a number of reasons one is that the use of the cup type packers which appear in the combination that factors plus a certain speed titian would be inappropriate come up i personally was not involved in the i p r have reviewed all of the pleadings in that case one distinction that was made in baker hughes briefing blows that baker hughes didn't present arguments relating to the over the judging passageways limitation for claim twenty one because that specific language doesn't appear in claim twenty one so there was a lot of argument about what that limitation means in the context of one hundred and sixteen and whether that limitation was present in the combination that baker hughes didn't address that argument to claim twenty one because that specific language doesn't appear in that surjit modest jetting nozzles and jetting passageways they said nothing about whether you would replace the cup tie packer with any other type of packer so it's irrelevant that other types of packers were known in the prior art because plus didn't make an argument that it would have been obvious to replace those cup tie packers with another type of packer and the undisputed evidence here shows that a person of skill in the art would not have used those packers in an open hole wellbore one because they wouldn't have sealed properly given the end even to even this of the wellbore walls and two they would have possibly damaged the wellbore when you were putting the tool staring into the well packers plus didn't address that evidence at all neither did the board because the board improperly relied on a combination not asserted in the petition in which the cup tie packers had when it was wholly inappropriate for the board to do that because packers plus never made the argument that those were banned would have been removed or the argument that it would have been obvious to replace them with are the argument with respect to the alternative basis with respect to the tailpipe string a similarly situated in that as you pointed out there's no evidence that they can really cite to other than their unsupported expert testimony that this tailpipe string was basically the same i looked at the pages that started out and it's just it's their attorney argument and their unsupported expert testimony is the extent of that  it was improper for the board to shift the burden to baker hughes on that element and they didn't even cite packer's last unsupported expert testimony that evidence is just insufficient as a matter of law to support a finding that that element is disclosed by  hutchison insurgent mada combination and i'd i'd like to address a couple of issues with respect claims eighteen and sixteen unless you have more questions on claim twenty one  at different times during his argument one conceded that claims one hundred and sixteen dollars over the jetting passageways imposes a structural requirement but then later argue that it doesn't impose a structural work firemen they seem to be making the argument that structural when it suits them and it's not structural when it doesn't it's clear when looking at this claim language that the patentee knew how to claim a functional relationship when it wanted to and knew how to claim a structural relationship when it wanted to just comparing claim twenty one  differentiation the board was correct to construe over the jetting passageways to require something more than just sealing the jetting passageways and that's consistent with the description in the specification which consistently describes the sleeve as physically covering the jetting passageways baker hughes invitation for the court to ignore that claim limitation and the physical trucks or relationship that it imposes is improper goes cl that the very st time it raised that argument was an oral argument it didn't brief it to the board so our contention is that its failure to raise that in any of its briefing before the board constitutes a waiver aside from that the argument is orientation of components it uses up coal and down all as opposed to above and below and so over it would not have been used to describe above and below either it's clear in the context of the specification when they inventor was describing the location of the ship to pull sleeve covering the jetting passageways that that's what they were referring to in the claim for sighting over the jetting passageway hasn't identified any legal error whatsoever in the board's claim construction or its obviousness analysis with respect to claims one hundred and sixteen dollars doesn't even challenge the factual determination underlying the board's analysis with respect to those claims so pointed out yourselves today that not only permits but encourages you to reach those issues and importantly the alternative grounds presented by baker hughes do not present any factual issues that would prevent you from reaching those issues they've all present craig just very quickly daughter i do want to take issue in that we do dispute the the conclusions of the board and basically just taking a step back i think that what the board did here did wrong is contrary to this obviousness is what the reference is combined would suggest to a person of skill in the art taking that even further into chaos are the supreme court said that the combination of familiar elements using known techniques are usually obvious when they do nothing more and redo didn't produce predictable results and that's exactly the case here twenty years before the filing of the a three a patent hutchinson was filed it was known to use multis own during argument because i think it's important that as this court pointed out that baker he's the expert acknowledged that it was known to stimulate wells and open hole well wars and bigger uses expert acknowledge