that construction was pervasive throughout the final written decision and is wrong for at least three reasons st that direct odds with the specifications nd it's at direct odds with the prosecution history and rd it is contradicted by the i believe the nail bed would be considered a skin type organism but there's nothing there's nothing either in the path of the record of this case that answers that question one or the i don't believe so you infection at the side of disease which is really the conversation we had with the patent office during prosecution well i saw that portion that you're citing as the prosecution history that is important but the only thing that i lean from that is that that you explain to the examiner in the examiner that in the proposition that you have to actually go through the nail you have to actually be able to penetrate the nail but there's nothing in that of the specification if we're trying to figure out what honeycomb like cosas is we start with nine where it says it means something it means a kind of the above mentioned the superficial like osis and then if you go to columns five line twenty by cosas means a disease which is caused by the invading and proliferating in the tissue of humans or animals usually my cosas is broadly divided into superficial my closest so fungal infection only of skin no why so and i'd like you to start with the very sequence of definitions that i just asked you about which ties into my earlier question about whether doesn't look at that in think it must be all of the structures and they don't think it must be a single structure where they left so so let me let me just try to be what to my mind is a little bit more precise than the column translating here a little bit a disease which is caused by invading and proliferating in the nail of human their head that seems to me to direct us to st cause directs us to the might cosas superficial my cos exactly and so had the real issue been entered as you requested would we have this question before us i think we would i think we would because we're entitled to the broader scope of our claims and while those claims are more narrow we can we you know consider the the board's claim construction to include just infections as hopelessly broad and not grounded in the specification intrinsic evidence and the other are to record and i think with the eyes on you know filing in i p r that expert said the disclosure of superficial my cosas in the patent does not describe treating an income microsoft's an expert looked at the comparative examples in the specification that relate to don't relate to amico miko's and that's one of the risk and we are looking at the patent objectively in this proceeding and saying skin doesn't relate to me they're just not the same and that's why we proposed the construction that's consistent with both the desire to good morning in may it please the court as plainly set forth in the specification calkins claims cover treatment of the skin surrounding the nail with afrikaners all afrikaners always known to be effective against skin infections and thus the claims are obvious after which the office will decide whether to proceed with a narrow claim which there intitled to narrow as of right so your honor i think i don't think it would be an advisory opinion because as my colleague on the other statute is crystal clear that you you meet the requirements food and the director shall reissue the patent not if we feel like it but not if some other tribunals that they have the right to change so your honor they are still they still believe they're entitled to the claims that are before the court today we do not believe they are entitled to have choice you refuse to go forward real issue until according to what you wrote to us two days ago well your honor i understand that they would still want these claims even if we were to potentially grant them reissue so i don't i don't know that that's necessarily that i don't know that that's necessarily case your honor and we are proceeding with the real issue the reason the reason for the the lay was simply the offices workload and it doesn't it doesn't make sense that true doesn't say that if you're busy you can refuse to proceed with the real issue i can find that in the statute no distinct oh well your honor i don't think the office was refusing to proceed with reissue the i think it's a fairly well established principle of administrative law that agencies can sort of decide when they act on the table to actually put a stay on that's different and not getting well that they put the stay on that out of eight out of concerns for work flow and and if you know so if this court were to decide that they were entitled to the claims that issue today then that would obviously inform the course of the reissue and there are other applicants that are the examiners are working on their applications right now and it's a question of are they going to focus on this application which may become moot depending upon what this appeal is or the examination proceedings would go differently depending upon the outcome of this appeal or they're going to work on the applications of you know the other applicants before the office so i don't think it's a question of us refusing to i think it's a question of efficient allocation of these or the fuse you know is crystal clear you say we were saying we're not  their filing fee for the issue not to my knowledge your honor but of course we are proceeding with the examination as that as the federal register notice lays out it's a matter of efficiency and then we give applicants the sections including i believe the reissue proceeding during the pendency of an interparty is review if another proceeding or matter involving the patent is before the office the director may determine the manner in which the intraparty is review or other proceeding may may proceed including providing for a state transfer or consolidation so that is and i believe that authority of the director has been delegated to the board which is why they issued the stay and then when it came back to patents for their own workflow reasons because of course after a final written decision issues there could be a pop panel afterwards for the director to review the case there could also be an appeal to this court but more importantly i think that issue is moot because of course the state this is bench and that they were complaining of in their reply was issued by patents which has nothing to do with the pendency of the i p r necessarily and then of course that has been that ha patents got it they felt the same way of course under the federal register notice it does provide applicants a way to petition the office to say that look our claims are colorable a different than the ones that are proposed reissue claims or colorable a different than the ones that are at issue in the i p r proceeding and so we request that you proceed with the examination of that they do petition did they not yet and then were denied no they so they petitioned in september and the  lifting of the suspension that occurred last week was the decision on that petition so it's expeditious processing in the time limits that entire policy is that there will be some sort of expediency the office handles applicants yes your honor and this day was originally put on for six months i think precisely so that it would pop up again in the examiner would have to re section dealing with three issue can i ask you can we turn to the yes ok as i say so your brief in this case seemed to me to make d a case downplay with an accurate i'm not sure well i guess i it seems to me that the board relied on its claim construction in a pretty pervasive hasn't really made a determination of patentability independent of the claim construction and just on that assumption seems to be there for the case comes down to  so which i'm not sure d you do directly defended in your brief what what what we make of that well your honor so i would to be sure our brief did not include a separate heading for claim construction but pages thirty three dollars through thirty five dollars of our brief make the claim construction argument and i think the claim construction is actually not not terribly difficult because if you i would point the court to  trials everybody nobody wants to talk about the st class why well i think the st cause is helpful i think is the nd clause is is even stronger but if your honor would it would be helpful i'm happy to talk about the st clause because the  it's also important to look at the definition of male so when you if you look at page four i'm sorry column four of the patent appendix sixty four with some other things up in the d m and hype and icky i'm and on page nine of their brief they can see that those are skin structures and their expert made the same concession the other thing i would do here here's let me see if i can convey this if i say disease invades than  where it may be a matrix only it doesn't mean that language by itself that anything that any component that is part of the nail is one that this disease well i think your honor you need to look at the definition of nail in the specification that might be true in ordinary parlance if you said i have an infection in my nail an ordinary person on the street might think is might think of nail plate but here when the definition in the specification describes particular structures that include by patent owners admission skin structures and then you have evidence in the record that it would have been obvious to treat this to treat a skin infection with a claimed compound i think that gets you there the other thing that i think it's important to that i don't want to forget is if you look at appendix come across as a subset of superficial my set up more than once i have backwards more than once i agree with that they did get it backwards more than once but i think when you read the full context of the opinion it's that's not what the board was he's relying on extensive evidence to reach that conclusion and i think in light of the definition of male here which of course philip says you have to look at the specification definition st that that would supercede it because this is the definition of nail  course i look for a pronunciation guide online i couldn't find it but the i would say a couple of things about that i don't think were denying that it would be a good thing to be able to penetrate the nail of course and they came back and said the difference is that ours actually penetrates the nail and then the examiner came back and said oh now i want how it it reference it reference the reasons for allowance which i know of three times said the thing that's persuading me here is we are talking about a claim that about penetrating of the nail of the nail plate or i think another trouble with that your honor is that they even admit this is a type of my cosas and that shouldn't require that doesn't require penetration of the nail so even on their own income by their own inclusion of that is a type of a is a type of on a comma cosas that does not require penetration of the nail per their expert submission appendix forty is that because time has not enough time hasn't passed that it hasn't yet started digging in potentially on or i don't think there's anything in in the record about how likely superficial white is to proliferate elsewhere into the nail there may be a number of factors i don't i don't think that's a question of record but nevertheless that is squarely within so when you take the definition of the broad definition of nail that includes things that they admit are skin structures and and also apply sex they're not conceding they're not appealing the definition of nail and then important that we make sure that this system this new system and the american vents act operates as its intended not as a game between protagonist also share your concern with making sure that the statute functions as intended i think that's why it's also important to focus on the text of the specification because i think it would be quite unfortunate for patent owners if you know extr about what you know what doctors may or may not have thought controlled the definition as opposed to what is squarely in the specification because as philip says and as makes sense you want a person of skill in the art to be able to read the specification and understand the invention and the scope of the claims and if you have to go digging through when something is crystal clear is this and you have to go digging through the prosecution history or expert even worse extrinsic evidence to the officers decision said they have colorable arguments that there may be something patentable there and we're going to proceed with the reissue application expeditiously and you know we've lifted the stay and are going to proceed with it r i post grant that is one way your honor but i think that we submit that b r i still must be a reasonable and clean construction i think i just admitted it is unreasonable in light of the specification what do you do with the white superficial  even called that a leap they said requiring one of ordinary school in new york to make such a leap is unnecessary in light of the breadth of the claims there's been no factual findings under a correct claim destruction on any of those issues that was assumed based on  incorrect and broad overly broad claim construction you discussed a nd ago the prosecution history i agree it's pretty clear but i would submit that if we were arguing today the opposite what the directors argue that is invention in a very clear and intimate way in terms of definition and perhaps it's even more confusing but the broad term skin is really used to indicate anything on the outer surface of the body and it specifically says that includes pilots which is hair nails glandular species as appendages and so when you're talking about superficial my cosas you're not just talking about skin you're talking about any type of infection on the surface of the body as opposed to a deep as that would be internal you know in your organs or in your lungs or otherwise can i ask you a question about the issue absolutely when you submitted you