member of the bar in good standing of the highest court in texas i have knowledge of his credentials and am satisfied that he possesses the necessary qualifications i'd just like to add my own that i'm not really convinced that he's going to meet us we're trying to hold onto him as long as we can but that day will probably come and i just want to say what a pleasure and a privilege it's been to work with nate over the past year and we have we've had the benefit of his principal view of the law and his principle to the world and eight seriousness of purpose is matched by healthy dose of cynicism and that combination his kept us all grounded over the past year the board's construction is stating that there is no requirement that the area it's being engaged is actually illuminated by the pulse light source and we believe that's an overly broad construction because the claim clearly says  concern that in your blueberry you are not addressing in particular the original basis of the examiners rejection namely levy with it cannot be an i b m and therefore you have waived the appeal of that so even if we were to agree with all the arguments in your blue brief because of the levy that you're still stuck with a rejection you did not properly appeal so make sure i understand exactly your point as to how you did that j a six if that's how and the second sentence from the top it says we agree with the examiner that in the combination of levy with it cannot go with the c c d camera it would have been readily apparent to those killed in the art blah blah blah and it says furthermore we find whole flight soar and explained that and which you know by the way is a technical matter i personally think that's kind of troubling but it's not something that you out the various references the examiner you and then say additionally we think levy also teaches it so you don't even need those extra references why does that suddenly conscripted into a single new rejection that isn't simply a perming the examiner i'd agree with you they've also rejected on the basis of levy but i'm having trouble with how they didn't you know articulate to basics of rejection  and then they said that the examiners not relied upon this record until i did this i mean what you're pointing to is a full page and a half beyond the discussion i'm talking about of levy in economic and at the point you're pointing to they're talking about something completely different on the same paragraph no notes are it page five of the opinion the top paragraph is what i'm talking about and you're talking about page six forty one q three four five paragraph later should be read and i'm disagreeing with the examiner when in both instances they say we agree with the examiner combination of that renders the claim obvious that once you take the c c d camera to capture the image and you put it into the detection system or let it would have been readily apparent to those skilled the art that discrete images of the sample would have been desirable that's the prevent interference rationale of the examiner and then they go us make the additional observation of these guys or cameras come with a pulse lights to capture still images and that's what the system seeking to do with the c c d camera was to take a still image of a moving semiconductor wafer how do we get a still image of a moving object using a camera we freeze it in time by flashing light on a so there you go board very clearly affirms not only the examiners rejection but for the reasons the examiner put forth and confirmation of this comes on j eight mean they may not have put in for the new detail argument but they certainly put this front and center in what they're arguing on appeal now to response you even if you say this raises the issue nothing in the argument supports the notion that preserve the issue for appeal you must support this even if you put in a closure a sense that says one of three combination is not correct you have to support it to suit walk and go to the right in this brief has nothing to do with the and while the board did make observations and findings and conclusions based on levy's like it very clearly also a form of the rationale and the rejection of the then there's nothing in this group blue brief that demonstrates there even if you were to agree with them on expert declaration in the record which granted they don't record from the blueberry but it's part of the record and we can review the record tally we can certainly review the record we should miss you there's no reason here to refute the record for evidence supporting the exam is rejection because it observations by the board that is the additional observation of the board that has nothing to do with the examiners rejection i submit to you your honor that under this court's case law you don't rate you waive an issue even if you blanket the say i think it was wrong if you  and so i'm having a hard time how we make the me from using pulse light one purpose to using it for other purposes as well will the border that dovetails into the plane construction which is inherent in are allegation of error about ladies laser is the last light has to be the one it's actually reflected off the area to be imaged in the captured by the c c d camera problem is the claim doesn't explicitly tie together those elements to and it doesn't have to be illuminated when you're imaging it so i'm a little concerned because what you're thinking thing is that it could be a whole different light or right theoretically it should be  basis at all for the notion that a second light to work in any of the embodiment or elsewhere could be what is used during the imaging process i wouldn't people because it does your honor for example that j a sixty five sixty four to sixty five the specification starting at a specification paragraph two zero two and running through two of six describes what it calls an improvement in phase two examination which if you read the entire the place detection system using two phases the first phase is almost a tree are tight spot potential areas of defects a minute phase two drills down and does a more specific discrete imaging of the potential defect area or the item that you want in it it does not tell you how to image it it simply refers you back to the substrate it does not say i generate the image of that substrate using reflected poles light and that is what their reading of this claim would require and specifically say that my image capture device acquires an image from reflected pulse light you would insert that imitation in there to make it explicit they say it's not necessary they haven't said that they would or could be able to do that but that is fundamentally argument filthy and somehow or since this is a claim construction and you know i think earlier in this argument you acknowledge that they are raising and have raised with claim construction issues they definitely raise the claim so waiver examiners rejection is all about if i start with levels detection system and everybody does nobody seems to have a problem with that and i put in the c c d matrix which again nobody seems to have a problem that their own specification says that these kind of detection systems are all using c well the only on the day we don't have is pulse laser so even under there construction where your pulse light is the actual life it's being reflected in an image by your image capture device that was taught by i b m the board agreed with that and give you additional reasons including the fact that sort of everybody in the or understood that the minute you moved to an image capture device that was a c c d matrix as opposed to a line scan device of letting you would have migrated from a cost of light source to a false li source because that's how they were all right