grip says quote constantine and the governing law say quote that the reference numerals in claim five of constant are not limiting but what you provide no supporting cites what support is there their western images and references to them so that's in the record a but we haven't relied on it on appeal what we rely on principally is a pen i don't what are you relying on to say the government want you in the blue brief well no don't tell me what you don't so the governing law requires the court to read constantine as a skilled artisan would and constantine contains this explicit instruction that the figures it contains are not limiting so i think when we refer to the governing law what we're referring to is the law that requires the court to heed constantine's instruction that figure three is not limiting so there is something but i don't know if this is in the record in the european patent convention there's a rule that says way of non limiting example in the accompanying drawings in which and then of refers to egypt so just a follow up on judge wallace question so when you get to claim by a constantine which is what simply here your view dollars claim five if you ignore the parents medical references to the non limiting figure three who reads the device according to any one of the preceeding claims characterized in that the means for mechanical connection of the living there could have been other ways that you would have said it that would have made it clear we're clearly not limiting could have said eight or narain you could have said right i suppose that's possible your honor but  constantine plainly says the figure three is not limiting so we think that's sufficiently clear to establish that any parents medical reference to it is similarly non limiting and your friend one of your friends responses to that argument as i recall is the claim for where it talks about shutter blades it refers to both age and not right and that's all that there are i think their argument to suggest is that that suggests that if we were talking about both  either you could have used both references right and as you point out in our reply brief claim for where it refers to both of the shutter blades is in fact referring to both of the shutter blades not one or the other shutter blade and in claim five our position disclosure that's your argument the constantine five just school actually discloses that and there is isn't there a little bit of a day like between something that's non limiting verses something with this and actual disclosure there maybe here on our end we discuss this by reference to the board's try cicle example where they say that perhaps disclosing a cycle comprising a wheel would not necessarily disclose a trice a goal or a quadricycle or every possible permutation of a cycle comprising the wheel what we're talking about in this case is a very simple mechanical mechanism for attaching to shutter blades to one another by stating a protrusion from one into some sort of orif the other that's a basic mechanical connection and any skilled artisan would have understood based not only on claims five but also on constantine's disclosure at one hundred and seventy three dollars appendix one hundred and seventy three that the purpose of its invention is simply to pair the movement of these two shutter blades that this is the simplest mechanism for doing so and by drawing and elucidating one of them and saying that the purpose is a purpose that could easily be accomplished as any skilled artisan would know immediately by the other configuration we think best disclosure was there any expert testimony here to say what you're saying here is an interesting argument which is i would have re would claim by our expert dr woolley testified and i believe said in his report as well that the two configurations would accomplish the same thing and that would have been immediately apparent to a person of skill in the art and in fact oren's own expert conceded at his deposition and that that the two that they took configurations would equally accomplish constant and subject e so we think that on that issue of whether constantine discloses the claim configuration konstantin both claim both includes an express disclosure and the board erred by requiring a verbatim express disclosure and not considering what would have been apparent to a skilled artisan but we would know that even if the court is not convinced that constantine makes the disclosure we also have two arguments that do not depend on constant in making  to have made either of the arguments because they certainly didn't say great energy has made these arguments and we declined to address them they simply so what so your view is that we have to one not my st question is what the standard of made the board would have to provide reasoning sufficient for the court to be able to discern what the court's rationale was we don't have an express finding from the board that we waived these arguments what we have is a failure by the board to address  the nd argument that's in our brief we said to the board forget about constant and disregard constant and entirely a skilled artisan would simply have flipped the configuration within an angsty sun and we said that the motivation for that change w catch is a more complicated and expensive part than the projection we presented on or about evidence on that point that's the page forty one dollars of our brief and critically the board actually acknowledged in its institution to center ok maybe i'm a little confused but just on the play with regard to those arguments i thought the board reached that but that was in the context of your saying well we reject the constantinian claim five expressed we disclose it but even if constant and dead we think it wouldn't have been an adequate motivation to combine that with the other reference because of the expects that's what i understood the board to be say you know they said that but they were looking in finding that there wasn't an adequate motivation because of the expense with the board relied on was the expense of constant and parts not the expense of and soon parts and we presented unrebutted evidence that with respect to ng soon as parts that finding was wrong the board imported its findings about constantine to an argument as to which the findings about constantine were entirely irrelevant and i wanted to get you want to go back to the nd part i think of my question which is constant ten and the forensic evidence about constant and was therefore quote irrelevant and i point out that appendix six hundred and sixty eight dollars and its institution decision the board actually said this is when they instituted team even if constant and does not teach start on fifteen stud fifteen and try to break nine edition also reasons that and then it goes from there that's at the top of the page and then at the end of that paragraph the board says  argument quote appears independent of constance teaching if the court has questions about standing i'd like to address them but otherwise i'll reserve the rest of my time for a bo were in the earlier proceeding there were claims that were dismissed and they were prior to that there were claims that were dismissed without prejudice so let's focus on the claims that were dismissed without prejudice why wouldn't that necessarily have given without prejudice they were damages that you could still linger even with the passage of time so where is the problem with stand so i think the problem is standing chief judge pro state is that there was a there's been a twenty month gap between the without prejudice not with prejudice and so the fact that you have and and reinitiated the suit with then twenty months that's sufficient to say that there's no standing here well i think two responses chief judge throws the st responses we stipulated propose it the way we what we do with that they weren't contemplating we were arguing to see any case twenty five months ago whatever it is that they did that so what that that means they dismissed it without prejudice maybe that's what they wanted to do but that doesn't resolve the issue of whether or not they currently have standing or risk for future infringement so what i think it does show that we were playing games when we dismissed without prejudice no one suggested you were playing games but that doesn't mean that you foreclosed as you responded to judge wallach you can't say with any certainty or any any basis at all for saying that you're not going to refile the case so i can tell you that we don't have any plans presently to do that and what i can also tell you is that what this court that eight doesn't appear after shuttle shatter where would that leave us if that were removed doesn't this language clearly disclose the stud in the or or orifice can each the either side either shut  i still think it would necessarily disclose that you've tried to present but i also think that that's done and i'm sorry i didn't hear you would agree that it would necessarily if you took out the eight at least in your view it would necessarily disclose well i  still don't think it would necessarily doesn't know that because it says that there is one shot of the would have a stud and the that lodges into the corresponding orifice of the other shutter but it doesn't say where the actuator fits into that what's required is an actuator having it receptacle so it would still be missing that even if you took those numbers out but here we do have the numbers there and the board found in its decision at appendix eighteen to twenty one they've given those numbers there and given what you see in  other ways of doing the arrangement just as it says there's actually specific examples on one hundred and seventy five dollars for example flipping it so that the more containers on the bottom and the other containers on the top and there's examples one hundred and seventy five of the disclosure but ultimately here we do have the numbers that are here and the board made findings at appendix eighteen dollars to twenty one dollars given what's actually disclosed in constantine that doesn't make the actual express disclosure that they argued and that's reviewed for substantial evidence and i think that it's supported by what the right now one of the l there's this other issue out there which is what the whether they preserved or wait this other question but the point that your friend raised about the motivation to combine don't we have cases suggest that the expense merely because something costs more than something else is not a sufficient basis for saying there was no motivation it seems to me what the board said here i what the board was doing was responding to the actual motivation to combine argument that they made at appendix one of four and the argument that they made was a person would be motivated to swapping soon catchin projection is more expensive to make then a pen and so you would want to put the receptacle on the support rather than on the mobile container because you have more mobile container see what the cheaper part on that is what the board it is it looked at that and it said we think that's wrong so if that's the argument they're presenting there's nothing wrong with the board then looking at that argument and saying it's wrong now and they also have the point that it's about constantine rather than nk sume but if you look at what their expert actually argued at and that's in response to their argument that would have been it would have result that the motivation would have been that it resulted in a less expensive system and the board saying i understand that your argument but the evidence that we actually see in the record from our side from or its expertise is it would be a more expensive system to do the swap that you're proposing so it's responding to their argument about to be less expensive saying no actually you're wrong or be more expensive so that can't be the motivation to combine despite the fact that that's what you're telling says give me the cite for where they said it was that their book their argument on constantine teaches and shows that they're more petition it's part of a series of arguments they make starting at appendix one of two under the heading of obvious modifications to ng soon in view of constantine so this argument was always leads to constantine and then the other argument that they've tried to number one that's an argument they were made in their reply and it's very clear in the case of the intelligible system say i would have to be made in the petition but number two that's just that was just a generic argument about whether it would have been whether it would have made sense to swapping suits components it was not made under a specific heading telling the board we're making the express argument that this has nothing to do with ngs i guess and i saw nothing bad about it in a couple side figuring out what the differences between a generic making a separate argument if you look at the board instituted on it appendix seven it instituted on the combination of ng soon and constantine it didn't institute some combination of ng soon alone and the only thing they're using constantine for is to disclose the location of the pin and the receptacle so there was nothing that the board wouldn't have any reason to think that they were making this argument that they're now trying to resurrect in front of  court and so all to me your honor i think that the board looked at this and if you look at appendix twenty eight they considered it from the understanding of a person of ordinary fill in the art and that's exactly what the board supposed to do and its decision is entitle to  is reviewed for substantial evidence and under that deferential standard of review i think the board's decision should be affirmed if there are no further questions thank so i'd like to address constantine's claim five then the cost argument and then the rd argument that you just discussed with mr wilcox and claim five i think my friends argument reveals that their approach is entirely divorced from the skilled artisan standard they now won't concede that even if the parents medicals included both the top shutter blades and the bottom shutter blades this would be a disclosure on the cost argument i point the court to appendix twenty four  the and that's where the board issued its finding that related to constantine and the relative costs of constantine's components there is no finding that ties the relevant quote in the costs of constantine's components to relevant question which is the cost of ngs components at eighty eight dollars we relied on a separate prior art reference which is mccarthy which showed a very complicated catch and demonstrated that the catch was a more complicated part than the projection there is no finding that robots that there was no evidence that rebutted that there was only the inquiry into the relative costs of constance part why was there no mention of mr smith's testimony about expenses of the various pieces steel moon and so on in the blue brief because it relates to constant in some parts not to hang since parts and i don't believe they've tied separate heading in our brief so in our opening brief at appendix one dollar o five we made this argument it's a full page three paragraphs under a separate heading then they failed to respond to it before the board and at appendix seven forty eight dollars in our reply before the board we have a point heading that says unaddressed the obviousness of replacing and catch and projection with constant ins stud and orifice and that's exactly the argument that they say we did not make so we'd submit that on the latter two issues the board simply failed to address arguments that we fairly presented to it one of which it understood we had fairly presented to it at the time it instituted and that with respect to constant and arrowhead says that where there is a the court now know that a current activity that's been expressly charged there's a per se rule that there is standing up but your friend relies on the fact that mind you as you heard you were the one sure but as george wallace has pointed out they refused to affirm that they won't sue us so they've accused us of infringement they've never retracted the accusation of infringement they've only retracted essentially their lawsuit but they believe and they've told the federal district court that we infringed their patent and now they refuse to tell this court that they won't sue on that basis so we're squarely within arrowhead and as we point out in our briefs the court has repeatedly rejected this past christmas present distinction that is what their argument now comes down to