it please the court the board erred here by failing to adopt the broadest reasonable interpretation of the term regulating valve the term flow regulating valve is not ambiguous and its meaning is crystal clear from the intrinsic evidence flow regulating valve is a valve that regulates the flow of departure from the plain meaning of this term by using extrinsic evidence was erroneous the st place to look here is the original provide context informing a person of skill in the art understanding of flow regulating valve at the time it did not say that this was a term of art which required extrinsic evidence to understand at that time  definition that way but the term itself is a clearly understandable term it uses normal english words flow regulating and valves and if anything and i'm sorry to interrupt but is there anything in the specification that disagree or is could inconsistent or contrary to the claim construction provided by the board yes there is your honor st of all the specification excluding the claims does not use the term flow regulating valve it uses flow control valve and is very last sentence the patent says instead of opening and closing a flow control valve the proportional control can be arranged to adjust the operating position of other hydraulic and mechanical devices then in the claims the term flow regulating valve is used in terms of use of the term regulating flow that is used in the patent i'm margo is this is judge karen expert acknowledges that those two terms are synonymous in flow regulating though he did in the context and immediately could you could you i mean i am very interested in the answer to chief judge pros question what in the spec tells us that something about the forty five the directional valve is a four way directional valve that regulates flow of fluid mr margolies mr margolies completely lost me because i thought you were going to direct us to passages that were going to explain  end ventre contemplated the meaning of flow regulating valves and they just quoted are talking about the directional valves yes because those are uses of the term regulate or regulating flow in the specifications when referring to the main valve it calls it a flow control valve and the broadening paragraph at the end of the patent says that the claims can be broader than flow control valve and then uses flow regulation so the only time the patent specification uses the term regulating flow the times it uses it refer to both directional valves and to flow control valve which among the parties that when it comes to a directional about a directional valve its primary purpose is to direct flow in one direction versus another direction but then it could have a secondary purpose which is to regulate your meter out of the flow of fluid going through that and so the fact that there could be some discussion of a directional valve in this pat regulating flow that's perfectly consistent with everyone's understanding of how a skilled artisan would ordinarily understand that term in this arc but when it comes to flow regulating valve i don't see anything here in the specification either with respect to that claim term or the referred to term a flow control valve as saying yes and when we talk about flow control about flow regulating valve we're talking about a valve that can actually direct and channel the flow of fluid down one passage versus another passage is there anything like that in the specification there's nothing like what what you just said it is that flow regulating valve or the term regulating flow was always used functionally in the past  in this specification that communicates to me that this patent draft or this inventor was contemplating flow regulating valve to be something where there is also going to be some channeling of fluid flow down one passage versus another package what we contend is there's nothing contending there's nothing in the patent saying that it's not the board's decision was a flow regulating valve stops being a flow regulating valve if it has another function even if that function is a primary purpose and there's nothing in the specification changing and i ask you can i connect this just press can i  the direction of a little bit i mean under the prop the process we're dealing here there's nothing as we all acknowledged this term is not included in the reference in the spec at all there's no prosecution history that anyone talking about so why was it error for the dip for the board judge to say this is a term i think this is a term of art in the context of this hell patent which is very dense and so i'm going to look to the circumstance the error in the circumstance st of all there is something in the prosecution history in the reasons for allowance the examiner said that among other things martin did martin was one of a list of patents that contained a series of elements including a flow regulating valve the error was also that originally that flow regulating valve is an established term of art and so it was wrong for the board to find as such it's more of a credibility argument i'm not arguing waiver we did not make that argument i'm arguing why don't we just look at whether the strings that evidence supports the board finding that flow regulating valve is in fact is established term of art in the technical field means something that not only regulates flow but it does so without any directional control capabilities you would assume that  starting point is the term flow regulating which is simple english and used in claims that say flow regulating valve to regulate the flow what you have here is something that contradicts that because it adds that giant negative implication you have the well let's just start with a hypothetical if hypothetically this term low regulating valve which i was not familiar with before this appeal had a very specific widely understood long established definitional meaning in this particular art let's just assume that for a moment if that term did then wouldn't we for patent claim construction principle need to abide by that definition unless there was something in the patent it inside the intrinsic evidence that clearly intended a different meaning for the term i would agree your honor if we had a dictionary definition or even one piece of literature defining flow regulating valve in that it would fall under the proper use of its extrinsic evidence under philips ok so then fear the board did find in its view and the evidence to clearly establish in its mind that there was a definitional understanding for this claim term low regulating valve and so then understood under ordinary claim construction principles when you presume that the flow regulate the flow to apply to direction control before you go because i just heard your bell go off could you just respond to what i saw on the record your own expert say about the meaning of a flow regulating that they don't have any directional control capabilities that all quote unquote and patent owners experts here likewise in its so in your opinion then all directional valves are flow regulating valves yes then he says in answer what's the difference between directional valve and a flow regulating valve the site you quoted a flow regulating valve does not  provides monitoring the amount of fluid it doesn't have directional control capabilities but then he goes on to say a directional bow has flow regulation and continues to go on to say he views directional valves as flow regulation valves the most telling statement from the from dr creg lists experts is when when faced with what martin is which is a servo valve which has both direction and flow control that's a slow regulating valve which contradicts the view that there's that stark dichotomy that the board found and i add and then i will i know you're already using some of my rebuttal time i'll add that you would expect to find some piece of literature with a definition of flow regulating valve or even discussion a flow regarding valve and that's simply not in the record thank you i'll reserve the rest of my time for a bottle thank you very much mr peterson affirmed and partially reversed in such a way that all of the claims are rendered on bat and ball that would end that district court litigation but i'm wondering if there's some other outcome where the litigation is going to move on if it's certain of these unusual under the circumstances i guess my question is to part one for the decision of the board judge to decide to go to extra indic evidence in that this was a term of art u sually at least in my anecdotal experience you know there's loads of engineering dictionaries and texts and you'd think that if one was going to feel like this is a term of art and not sort of just looking at it absolute plain ordinary meaning looking at the words there'd be some for their support other than expert testimony i guess this is kind of an important issue in one respect because because of the different standard of review for expert testimony it seems like we don't want to open the scan farther than it should be opened to court six that try to go to the extrinsic evidence in the st instance that's part one and part two and i apologize for taking so long is when i look at when you look at the actual extensive evidence that the board do it seems to me a bit of a stretch because it's plenty of evidence to conclude that any valve with directional control could be a directional valve but the board's conclusion was based on the two being mutually exclusive and i didn't see that conclusion buttoned down simple english and i disagree with that because the fundamental principle of claim construction is that that we read the words as they're used to one of skill in the art and the supreme court and heather versus and others and a number of this court cases have told tell me anything about why i have low control about necessarily lacks any directional control capability i mean i've read all of this carefully as i'm sure you did and i that seems to be the your your side which is very motivated couldn't drum up any actual documentary evidence that would show us why it's correct to think of low control valv that they must necessarily and where you fuck where is that where is your best support for that in the record in terms of i assume it's the expert testimony  to the cross appeal before you did i just had a quick hypothetical question when it comes to martin obviously martin martin refers to i believe but a directional about sixteen particular claims is that martin at the tail end discloses a directional valve rather than a floor regulating we believe there are other differences differences as well including one that argument from the briefing it's hard for me to buy it as it's clear that different regions of one structure are being mapped to each new imitation not one structure doing double duty as you suggest i mean how is this different let's say we have a claim to a hammer having a head a clot and a handle if we found a prior out hammer that had one single piece of metal it seems controversial to say that all those limitations could be met by one piece of metal and that patent column for lines two thousand three hundred and twenty four it talks about a shank seventy a shank seventy connected to the piston had sixty two and you know when you look at the the key to the eight to one patent is maintaining its directional control while in a neutral opinion neutral position by balancing a strong force from the electric actuator on one side said i don't want to take too much time but it seems to me i mean this is a complicated difficult question that's before us but why do you ask for a claim construction about what feedback or amount of feedback me seems like it would have gone a long way to helping us resolve i think that is correct your honor it would have been helpful to have had a claim construction on that but the key from our perspective is that whatever feedback means there are not different amounts of  through an explanation of what does kramer in the patient even mean moving a double actuator through a range of positions corresponding to different amounts of feedback between the double acting actuator in the directional valve at the neutral position of the directional about i mean that's a lot to try to take in and i i confess i don't really understand what your what your conception of what this means is and then beyond just simply attacking and starts to push that directional control valve to the left biharis or double acting actuator has to push in the opposite direction to maintain that directional control out in a new physician similarly quick response sorry to take your time but your friend got out of the strongest evidence he has and the testimony on page one pending thirty three and that was your expert right mr is their strongest evidence mr lay this mediately before that colloquy and when i say immediately before the question before i said in his view all directional valves  flow regulating valves so this at worst would make this a misstatement by mr laicus because he immediately thereafter added that directional valves are flow directional control valve have a low regulation ability but that doesn't necessarily mean that the converse is true that flow regulating valve also have directional control capability that seems to be consistent distinction that both the birds are making directional valves have directional control capabilities and secondarily can have low regulation abilities when it comes to directional when it comes to flow regulating valve they regulate flow but they may not have any they do not have any directional control capabilities at all and that's why you can classify one thing a flow regulating valve and classify another thing as a directional control about rather than them both having the exam identical functions otherwise you wouldn't be able to tell one from the other however your honour's what what mr labor says on appendix five hundred and sixty two questions so in your opinion then all directional valves are flow regulating valves yes so when he makes when he is directly asked the question on power do you characterize directional valves or  directional capabilities he says they are slow regulating valves which is why his statement is a misstatement out of of the it's a misstatement by him i think that and i think  there is not a place where it got cleaned up i mean it was he he called direction valves flow regulating valves immediately thereafter but is there a question answer where is the clean up no there is not ok how about the  arm and the feedback limitation pretend hypothetically that i don't understand the board's reasoning can you explain to me can you walk me through this limitation record what eggers has is a collection of rod pistons and a feedback on arm that constantly moves the piston back to the starting position so that it is adjusted so that new pressure ratios in the working cylinder reverse the original actuating movement and  what in an uncontested way our expert stated and cited by the board on appendix sixty one eggers disclosing discloses providing feedback between test and five and control pistons nine that overcomes the force imparted to control pistons and restores the control pistons to a neutral position at which differential flows of compressed air to the st and nd surface question is about the limitation after that can you please i'm looking at a picture of the eggers figure at the eggers diagram right now and now i've got a claim limitation that i'm very concerned about regarding different amounts of feedback also right next to the diagram can you walk me through eggers the diagram and show me why the board correctly found that this particular limitation about different amounts of feedback is board found is that when feedback means the return to the input of a part to the output of the machine so that that is exactly what is happening  that when it is moving and the and the pulses are stopping it is put back into i don't want to say the start position but but the position where  it will move when when the pulses start again and i'm sorry i'm not i'm not seeing i'm not seeing how this lines up with the claim limitation at all we know from the prior limitation that when you provide feedback whatever that means feedback it overcomes the force imparted to the directional about and restores the directional to a neutral position we know that now i'm looking for something called different amounts of of feedback when the directional valve is sent back to a neutral position so can you walk us through that i'm actually not sure that that i can position that it is left in and what i can do is just say that as as was said in the record as our expert said each of these positions of the feedback on arm provides a different amount of feedback between the piston five the double acting actuator and the control pistons regardless of the force applied by the spring so that by changing its positions regardless of the force of the spring that's the differing amount of feedback let me get this straight it's relative position the relative height of feedback arm for that's what the different amounts of feedback yours what is it it's not it's not necessarily the force it is just the collection of the parts together putting it back in the same place collection of parts putting it back in the same place i don't see you got to help me i please help me i that was not precise enough  opposite of that the described above and therefore causes the working piston to drop and the valve to close there is a neutral position shown in figure one of  the compressed air and the atmosphere is blocked through line seven and eight and then what are experts as a person of ordinary skill in the art would have understood that restoring control to stems nine to a neutral position would block differential to understand right and then what he goes on to say each car responding distance unit the arm for applies feedback between working piston five and control pistons nine which a person of ordinary skill in the art would have recognized as functioning to overcome the force imparted to control systems nine to reverse the actuating movement and return to neutral and somewhat different amounts of feedback so finally he says thus as piston five is moved through a range of positions arm for applies different amounts of feedback and the expert cites eggers that for four to six and five hundred and twenty six to want a person of ordinary skill in the art thus would have understood that eggers discloses moving working through a range of positions corresponding to different amounts of the feedback between working piston and controlled distance at the neutral position  we're back where i started which is all i'm getting out of that is that the relative height and position of the feedback arm is somehow is itself the different amounts of feedback somehow correlates to different amounts of feedback but i don't just your expert asserting that it is doesn't explain me why that is so well is that there is nothing to there's nothing contradicting that in the record and what you that is a person of ordinary skill in the art would recognize that the feedback on arm is functioning to overcome the force imparted so as so the as the piston goes through different positions the arm applies different amounts of