fourteen hundred u t c s admits that the board construed the term literally and in doing so it ignored the express disclosure and teachings of the steps of occasion that make it clear that that is not what it means and it's a boundary condition  and we would cite the court to embrace myth that the specification cannot be ignored in this manner secondly with respect to obviousness the board found this is claims ten and eleven the board g e offered a number of motivations to combine these two references they but they offered about a half a dozen of them and the board made explicit findings that they were not persuasive the board then on the last two proceeded to say that this combination would be eight design choice which is something that this court has held in numerous prior cases is not sufficient its a conclusion and it is not sufficient under k s r with respect to the claim construction issue the board construed this fan tip speed limitation to stand tip speed of the fan is less than fourteen hundred feet per second in combination with the other reciting limitations such as those regarding gear ratio and bypass ratio well those are precisely that other limitations of the claim the issue we're here today on is the fan tip speed less than fourteen hundred the board gave it a chair potations that all the engine had to do was beat table of being somewhere in that range of zero to fourteen hundred under any operating conditions now underclothes so the construction must be consistent with the specification under in ray smith it has to correspond with what and how the inventor described their invention in th operates below the fourteen hundred your honor i think it was g e had urged that construction and they relied on statements made in prosecution history of another application where did the board adopted i guess what here's my recollection and just my recollection is part of what is odd unusual about the board decision is that it never actually adopts the construction at all all it does is reject your position on which as far as i can tell you completely him and wish you were there is no anticipation case that whatever this means it must be a hard limit the engine may not go over that but i didn't see the board and actually saying here's what this means a paranormal operating condition any time whatever that will for one a page thirteen of joint appendix which is the board's decision of the paragraph above the heading capital b we do not adopt patent owners proposed interpretation for purposes of this decision we interpret the remaining challenge depend and now we just repeats that it just repeats the claim fan blade tip speed less than fourteen hundred in combination with the other elements well sure right but that hasn't said one word about what this what it means to have a fan blade tip speed less than fourteen hundred except that it doesn't mean when you say we agree that it's tautological that it isn't a proper construction of the claim but when they apply it to the reference they make it clear that they're treating it as a capability they specifically cite g e statements that it's a mere capability that could be in any operating condition and when they apply that when they left as a construction to the reference they specifically point that out that it is capable of it operates at least at some point during the nothing in this very short has reference ever says the engine doesn't go above fourteen hundred that is what the board characterize it at your honor but that is not correct we also challenge the disclosure of house specifically that has is a combination of three different embodiments with a graphic that doesn't and they specifically say the transmissions on those different embodiments are different transmissions different size transmissions and then it provides a cartoon graphic with respect to the claim construction with the board was looking for is an explicit requirement and it says this repeatedly eleven and twelve that it wasn't described expressly enough for the board but we are long past the point where claim construction is interpreted in that way we are not looking only at the literal language of the term we're not looking only for the the language of the claimant only if there's an expressed disclaimer or a redefinition the court's precedent at guide and what this specification says specifically is it discloses an apparatus and it discloses a method and it makes it very clear that the way you start the design of the sentient is by designating a boundary condition and that means something very specific to persons of ordinary skill in the art and that evidence is uncontested and what you're speaking yes i am i remembering right your expert had reference i think in a deposition to tip speed he also made a number of other statements so for example what the board ignored in grabbing onto that one qualified statement and ignored the statements and i can give your honor a list and the appendix said five three six paragraph twenty seven it imposes a maximum fan blade tip speed full stop at five three o seven paragraph twenty nine it's present at all operating conditions at five three o eight a paragraph thirty one it sets a boundary condition which is the limit at five three one one at paragraph thirty eight it and does not exceed that goes on at five three one two five three one four one seven there are a number of statements that dr mattingly gave about a dozen of them where he made it very clear that this is a speed limit it's a maximum that's what a boundary condition means and what the board did is latched onto one qualified statements while ignoring this dozen of other statements from the portions i read up through paragraph fifty three which make it clear that it is a speed limit and he's not alone so i asked dr o'barry about that as well and if you want look at the testimony of bari which shows up at the exhibit and accept five one seven three down through about five one eight seven there are some very specific questions i asked you consider fan tip speed to be part of the boundary conditions i consider this to be one of the elements that used to define the operational condition i asked him so the boundary condition is a limit he answered it's a limit and then he goes on to qualify his answer but he says point blank it is a limit is the fan asked again is the fan tips eat a limit and he said the fan tips need to condition and he didn't want to admit that it was a hard speed limit he drew the qualification between a hard and a soft speed limit which is pretty much meaningless we have both one it lines forty nine fifty fansub speed is less than fourteen hundred feet for second improving at this is a column five lines fifty to fifty three improving the performance of the gas turbine engine begins by determining and tips the boundary conditions for at least one fan blade of the fan thirty six and what is critical here is to define the speed of the tip of the fan blade so what we've included in the apparatus flame understand that that means a speed limit a maximum and that is what this invention is that's what the inventors describe the invention as in the specification and for the board to give it a tautological literal interpretation ignores how the inventors themselves described their invention what the board said specifically as we find no clear linkage while you're on of the portion i just read to define the speed of the tip of the fan blade is a clearly specification fairly reasonably and reading it as the inventors describe their own invention do i think you don't give any particular significance to the fact that i think that the principle claim we've been focusing on at one point maybe the first place that fanned and played tips be yes as the word has the indefinite article in front of it and later it has a definite article in front of it which for us thanks is at least i find a little bit funny that has two different articles would be use speed is a momentary property that changes from moment to moment so that the indefinite article would tend to suggest all by itself that it just has to have one of those at some point and later th claim says the fan tip and plate tips the suggesting it's really not a momentary property of the tip of the i guess we are not putting weight and i trust what we're putting weight construed all three and it's institution decision if you look at the appendix at sex there's a reference to the three terms i'm looking at that i just as we interpreted the following terms your ratio and bypass  was an appeal here about the board's factual findings regarding the house reference is not found anywhere in the c's brief in fact does not dispute any of the findings regarding the has reference including that has explicitly all times during an operation that's construction that u t c proposing them or reject that and then rejecting that construction of what really just gave the claim it's plain meaning i think that's the issue here they didn't propose a construction to this is the pla language of the claim it doesn't require that the family to be be less importing her feet per second at all times during operation and there are really two layers to claim destruction argument the first is that it wants to construe th vandelay tip's be a limitation to be a boundary condition but that term is found in the specification but it's used in other claims other method claims that are not at issue here and then second the second layer of the argument is that you see relies on expert testimony to argue that a boundary condition is one that applies at all times during engine operation so the board was correct it evaluated the specification it didn't ignore the best and and it said here  specification does not allow us to import the boundary condition language into the claim and then importantly the board way to the expert testimony and so we've looked at the expert testimony and the expert testimony here doesn't tell us that a boundary condition is something other than a hard limit the so the there's there's the expert testimony from dr mattingly that the board relied on on page twelve and thirteen of his decision where first that it really is their guy and their acts are and the board did not parameter that's used to set optimum conditions to improve the performance of the engine but all engines can exceed those conditions of boundary conditions because there are situations where the engine needs to something that applies during the design process or to an actual engine and he said clearly it's for the design process not an actual engine so it's not a limit that applies during all engine operating conditions and then of  he think that the board actually adopted a construction i think the board you have of the claim term it's plain meaning i don't think the boardgame express construct what is the plane meaning that the that you have i would i would find it hard for you to say that  steady state or something is a plane meaning right i don't think that we're certainly not capable of operation at any given time and that's different from steady state i think the so even though you may have a phantom speed of fifty percent going and you're sort of incrementally increasing it very fast at that point in time you don't even have a bypass ratio so you will you will not have an engine that has a bypass ratio between eleven and twenty two and  remember at the oral hearing and it cited in our in our papers the fact that this this goes to the issue of whether the limitation is rendered meaningless they would use the argue the argument and that was an appendix ten thirty two ten thirty three where  the board asked the questions of u t c at the hearing about whether spooling up would actually fall within the scope of this claim and we believe it was conceded by u t c that it would not and that was at ten ten thirty to ten thirty three is that because there's no airflow it was well enough exactly you only have a bypass ratio of eleven to twenty three means you have to a certain mass flow going through the bypass doc over the mass flow through the core and if you're screwing up you don't have sufficient mass flow through the bypass doc and therefore you not going to have a bypass ratio between eleven and twenty two that does your underlying evidence say one way or the other whether if they did lee if the engine is not running there's not much air coming in but i would think they would be much air coming in either to the mass flow through the bypass doctor by the by the mass of the right where it is a ratio change according to the will change over the operating conditions of the engine but the principle point is during spalling up which was this sort of the argument that you see made about this  limitation being meaningless there is no bypass ration because you haven't produced sufficient mass flow through the bypass duct and especially in this instance where they're climbing up a bypass ratio of eleven to twenty two so you have to have a significant amount of if you do if you don't construe this this claim time if you don't revise this claim to say that it's at all times during engine operation you're going to render this term meaningless we disagree again for the purposes of prosecution with a related application exact opposite during prosecution of a very similar application also i think this is important to the board here just gave the term its plain meaning and the cases that you think and i just want to clarify something i guess i keep thinking i'm dubious about the proposition that the board gave the term its plain meaning but i'm not sure that your argument depends on accepting that proposition as opposed to a board rejected the hard limit idea in the absence of a hard limit idea there is no contention that passes missing i agree with the latter point if in the absence of a hard limit there is no contest here because has disclosed a phantom speed of one thousand one  nonsensical or rendered it or vitiated the claim limitation here you see chose to write this claim as it is and if it wanted a different claim in the board proceedings it actually had an opportunity to do that and it was to amend th exploited well it may be a design criteria condition but you know you can exceed it on regency conditions well actually no you can't these engines are certified by the federal aviation administration and dr mattingly specifically testified that that type certification requires that the engine be operated with in its design envelope and that's in the appendix at five three two two at paragraph fifty three so even dr varis quick equivocation is unavailing with respect to the meaningless limitation point we do have a divergence of view between my colleague and me they are arguing well it doesn't render the claim meaningless as a whole with all due respect that is not the law we cited number of cases in our brief that make it very clear that vishy a sion of a claim term deals with officiation of that limitation it doesn't require that the entire claim be rendered meaningless this term construed the way the board apparently has construed it would no matter what speed you're going to operate on the engine has to go some at some point between zero and fourteen hundred every time it's turned on and every time it's turned off and there is no dispute about that fact after avari agreed with it is there is there a dispute about whether that always happens when the other claim limitation he's also met no your honor because i think well there is under their view because they're saying we have to show that the entire claim is meaningless that's not the law the case as we said in a brief makes clear that it is a limitation it's the fourteen hundred limitation that is being rendered meaningless and that is what's improper finally my colleague stated that we made admissions  related applications this is just not true the application he was referring to is not a related case that he uses the same phrase right sorry are uses the same phrase it uses the same phrase but it's in a very different context and what he ignores is the e p o application which is a related application to this in which the examiner made and a similar rejection and we responded specifically that it is a maximum so if w going to look to the other applications i would suggest looking much more specifically at the e p o application and the citation for that is in the appendix three three six four and as a statement there that we are slaves saying very specifically that it is a maximum tip speak thank you ron let's see what is any other questions no thank you