think the first case for argument the smart this afternoon is seventeen two five zero three in r have three responses on the adoption point the first is the first two are the way in which the board must adopt if it wishes to adopt other material that come from i can't help that otherwise and then the third is about what the examiner actually did so after the first two three three application and that's the new material that was not in the grandparent in the five hundred application the year your you had tried to rely on the ground all around with nation right we mean both arguments right we've made first that we would prefer did make that now you would be entitled to rely on the granddaughter or not there intervening application in which there was no matter well aaron we made two separate arguments we said we would give priority to the grandfather because they were sufficient alternative that the two three three which is the same as the five thirty one the parent had sufficient written description and we well i so what's so that's what footnote two dealt with right so what's the problem with footnote two what because what no two looks at that and the new they figure there's no description so i can or i was having a hard time understanding what you were trying to make it on the button you know i was trying to get if in terms of a reversible error committed by the more you know what i'm trying to make of the addresses whether or not that passage is part of written description to provide a sufficient basis that we believe the passage does on its face with the with the context of the provide written description and there's nothing in the board's decision that  and one piece or two pieces of luggage that i'm not infringing but if i use for then i that's a user right yes your honor and those of those would go to infringement questions i think the way this would work is both from the manufacturing side went to sends me facture a with the same math so if you're a producer and you produce you've produced your small guy in your garage and you've made five of these you're infringing because it's a set and everything that's small and everything to the north of that is an infringing set and if i may use or like if if somebody else in my family has one piece of luggage and they've got three and i've got three  it to be a master key there must be a set that's what the top of that portion of that page tells us then we drop to this material which is the critical thing which really describes what is it about this and that's what this phrase tells us the phrase any walk of this type is intended to include all having a multiplicity of subtypes such as different sizes different manufacturer designs or styles the third part of our argument is when one understands what the the the pattern is conveying about different manufacturing designs or style the most prominent discussion of the pattern of different designs or styles are about the different user operated locking mechanisms that comes from the figures which of the figures distinguish themselves based on the user blocking face of mechanism as well as from disclosures of page twenty four and twenty six of the appendix the talk about locks based on the difference for example a different number of dials or using a spend dial so those together you are in the in the parent application is is precisely why one skilled in the art reading this would understand that this convey type can't me situated to decide that factual question in the first instance so rather than trying to tell them it's a legal question when you are just adopt the argument i made for you yesterday  there is a second separate that in the grand i'd be happy to describe the court wishes or as as just were just mentioned i think that's precisely the argument that we make as to why that the board never made this factual finding that we think is critical right first like to address the point about the board's decision that if the board did address the correct specification the board address of there's evidence of the board address the in whole or in part on the grounds and on the claim specify the examiner the affirm and of the rejection of a claim on the grounds specified constitutes a general affirm and of the decision of the examiner on eight they say our review of the present specification as well as the prior filed and again but that's exactly the sentence that the footnotes attach to is what causes a lot of confusion in this case i mean you know is that enough stupid footnote worth of there we wouldn't be here today most likely but the board chose to write a confusing opinion so who do we hold out against i agree that the board i think if we look at kind of what happened with the case maybe getting shot a little bit more light on why the board wrote that i mean the board the board that now doesn't say that we are not considering this material and i think again if we look at aig and you don't think that it would be a fair inference for me to read the opinion that that you know this that i can at all fairly or believe read footnote to as a statement by the board that we're not going to consider the any special lock of this type of language because there's no priority and it's a new matter you don't think that's even a reason possibly reasonable interpretation of the sport opinion i don't in looking at the contacts opinion because again on a t p s eight they say nowhere in the present specification is the words and the prior and then when you dropped out of the footnote the footnote says the any special lock of this type language isn't relevant because it's there's no it's a matter it's a one that it's not relevant  description of this and there drops to a footnote that says we find this description the any speck of national lock language is new better right but i think again if we look at the context of what was happening here there was a priority analysis there was the prosecution history included a lot of discussion about which facts supported this you know there wasn't one of those three but but here's the problem i mean the crap i've got the appellant's brief below in front of me right pa seventy seven through seventy nine extensively argued this language to the board and then the only time the board discusses it anywhere is in a footnote where it kind of blows it off as new matter  argument made by the appellant below in fact was first they are going to comes after it is there they actually say our second argument so the first argument is this language the board discusses it nowhere in the opinion except in a dismissive appearing fashion because it's new matter i mean my view is it's not that they deserve to win and deserve to get a patent they do deserve to have their arguments squarely and clearly addressed and you would have me looking back several pages or whole year where they have some blanket statement about adopting things by the examiner is as being a sufficient resolution of this issue that occupied most of the pages of their brief and they designated as their first and primary argument i would also have you looked at the contacts  if they did address it you know they said appellant argues that they do quote that language they knowledge of language and they say that they disagree and then in their analysis they do say that they looked at both specifications and in the they give their reason and they say you know sat wasn't use out that wasn't used and even that language that is pointed to you know doesn't use sat all it says is that a special lock may be of different people but when they say we disagree they then go on and say in that same paragraph when they say we disagree with this they say they say a review of the present specification the prior one shows no description of a set of locks and that's in that same paragraph is this footnote that says and work this stuff  new matter so why should i view the we disagree with appellant language as necessarily concluding that this language doesn't support them since that very same paragraph the explanation of why they disagree includes a statement that this stuff is all new matter so why should i tribute to them a substantive review of the language and determination that none less doesn't support that i've written descriptions of court when the only particular statement they made about the you think i should read this footnote despite the fact that it's contained within the paragraph which by your own admission is supposedly addressing whether or not the any special lock of this type of language does or does not provide written support description support you think i should nonetheless read that footnote divorced from any discussion of priority or resolution of a priority issue under one of the three to none the less somehow be a statement about the one of three issue not contained in the section of the board's opinion and relevant to the one zero three priority analysis that the board may have been undertaking elsewhere in the opinion yes that's my understanding even though it fall there are the board has labels on each of those things were under the want twelve and right followed on page nine is the one no three rejects right so are you suggesting this is just such some sort of editorial problem they put the footnote in the wrong place i think the word was undertaking priority analysis you know and you know that's what was being argued today and that's what the prosecution focused on hundred the one of three reject right issue which they cut the board explicitly takes up under a different sub right but the priority analysis for the one of three is the same i mean you're still looking into whether this language is and in this in the spectre's kind of looking at which back to you and i agree i do agree that this footnote i would rather it not be there i don't understand exactly what why the board included it but i think why do you going back to judge moore's earlier question which is is it not a plausible or reasonable interpretation to read the split note as saying that the board didn't consider it is that unreasonable i think the reason why i find that  unreasonable is because the board said multiple times that they were looking at the presence as a vacation these at our review of the present specification so so ok so do you find it reasonable to suggest we don't know what on earth the board was doing because there is inconsistency between what it said i think we have many indications the adoption of the examiner the fact that they cited that language to a palin and responded to it the fact that saying at least two places said that they were looking at the current specification i think that if you put that on one side and then you put this footnote which doesn't say that they didn't look at that material they just noted that that material was new matter i think if you when you weigh the things that are do you then consider a written description you do in this context in the one twelve context you do i don't know you just admitted that you have no idea why this witness here and i'm glad that you did because it was honest and i preach it that because i can't imagine what you could say otherwise you know so my view of this is i don't know why this footnote is here either and i understand and i think that you're making really legitimate arguments about the rest of the opinion but what bothers me is that we're all here today because the board did include a confusing and sloppily written opinion include this footnote and i kind of don't think it's fair to them because they had to shell out a bunch of money to appeal to us nor is it fair to me because i had to spend a lot of time on this case to save the board from its own sloppy opinion writing you stand here today and cannot explain to me what else could possibly and doesn't cause a lot of people all of us here in this room to spend time and money trying to figure out what you meant what you actually did decide and not decide i think you know where i am there's no question no we're sentenced telesur about what's