but you quoting functional limitations with intended use they're not the same thing second even with the board's incorrect construction each and every structural element is found in the prior art it's in the and this and the order to requirement that we have to show that quote unquote casket body is capable of containing the remains of that the season can be done using common sense as in the perfect web decision and i'll explain that further and that third even if those two arguments fail the evidence that we submitted with our motion for did you dish will notice satisfies any evidence deficiencies that the board found because the same examiner when he was examining a case that had substantially the same claims found that both grow and watson were both capable three structural elements that's what the board found the board agreed with us that the where in clause was not a structural element therefore the only structural elements are the bottom panel the side panels in the end panels patent owner in addition and its breach and its brief stated repeatedly that the where but it's not that the casket body is not functional if you look at it vandar is brief and page twelve in looking fandor three from page thirteen they went out of their way to say that it was not that it was structural not prior art we consider the claimed term casket body to be an intended use or a functional limitation our inquiry remains essentially the same and that's simply wrong it's not the same thing there's two different bodies of law one has to do with functional limitations one has to do with intended  to use it in another way and all of a sudden that becomes patentable if i take the claims for example that are written with regard to the fact that it says a casket body and i repeat please the word casket with toy box and say it forms a i'm sure the legal standard is if you have a structure in the prior art that is used for a different purpose that it will anticipate if it's keepable of the intended use elements are found if if if intended use and functional capability are the same and what you said is one hundred percent right then you're saying that somehow the casket body has a function the casket obviously has to do something in this case the casket bodies o you the piece have in its decision to institute made a finding that casket body is not structural in the final written decision pizza we argued that the boxes were identical but the expert testimony that was submitted was that the boxes were boxes some of the boxes in the prior art you know dr carvel was submitted an expert declaration capable of serving as a casket in the sense that those boxes given what they were designed to accomplish with like wives be able to accomplish the capability of serving as a casket for instance or were something else i didn't see that in his there's no fantasy that in his declaration because his declaration was purely predicated on believing that the word casket is not even meaningful in the claim and then when he got to the deposition i didn't see him make any connection between the boxes disclosing grower board's concern was is that your case is it was your burden to connect the dots to explain what it is about rose bach or what it is about watson's box that specifically given the disclosure of those two references teaches the size of a box that can serve as a casket for a deceased instead as i understand  that's not even referring to grose ice chest container and it's not at all disgusting as disclosure of grow and i think therefore it was the board's concern that there needed to be at least some more reasoning provided on your part to make the case for why either grow or walk and containers can serve as a casket given that the understanding of captive is not just a box any are they going to say yeah look around you're surrounded by caskets right now of a very moment i don't i don't know who i'm going to talk to they may say well we have a box over there and if you want to bury a dog you can take that box and referencing a dead person sure so and then the board ultimately said that the construction they'd like is a container capable of holding in the deceased but then they took the extra step and said the sea is something that is beyond just a dictionary definition but dead person but it's also dead animals and that is that it seems like there's a missing or there's a gap and that reasoning to do a construction of a construction i mean the meaning of the word to seized and expanded to include you know almost you know any live animal that well because it's dead i mean we had introduced evidence of that cemeteries we introduced evidence of caskets the fact is that you can go on the internet and you can buy a casket you can order a task that you can have a pet casket delivered to you i assume that if you go to any of those companies you get a pest casket for a mouse if that's the size of the casket that you're going to sort of just concerned that in the context of this patent you were on the board of construed term cascade to mean literally any box that's ever been made i mean is a garbage can cast if it's a garbage dumpster a casket is capable or didn't apply we would then be able to bring our own evidence that it was not it would not be obvious to convert those two things and caskets but rather argument is that they never race at all because of us  seems with all due respect is evolving and as we go forward it's just being tested on different levels and i understand that there may be ways they can bring other obviousness arguments but we would argue that yes they cannot and they had the chance to bring not just this argument they had they they made a decision that's all we can defend if they brought it in front of  the the board then we would have had to defend it there but they made the decision that they weren't going to bring it and so you know i would say that they're stopped from bringing down district court having a second bite at the apple they were going to try this this way whether it's for expense or some other reason that they just wanted to go with the anticipation maybe they thought it was an easier way to go they made a decision and we would expect that to stop the rules that the work out the way they were intended which is say that this my client's been involved in this business for a while and this invention you know we would and introduce evidence of course the say that that this was there was a long  knows how that would translate into something that was a casket size you know maybe it would work maybe it wouldn't but we would suspect that there was a reason why we know with you there's an acute there's an infringement case pending and which is where we're creating the casket a casket is a fancy coffin and a coffin is something that contains a dead person and we wouldn't consider cremated remains is not were merely considered to be a dead person or that you know that body it's something it's cremated remains and so that's what we found in the dictionary and we've never seen i've never seen in the market or in the prior art that's been or you again it becomes how do we define a dead person that's buried is a person a more or less intact body or is it cremated remains it's a it's almost guess the philosophical level but clearly in the context of the patent there's if you can obviously make an urn very small and claim fourteen there was a specific factual finding has nothing to do with the definition of casket or casket body and they declined to match his client to address that therefore those issues are wa you that it's not proper across the field and i didn't have an alternative ground for defending what happened correct i pod less from a state in that way we did want to raise the issue in the event that be necessary if it is still resolved correct that the board has broadly we think more broadly interpreted deceased if the claim interpretation was changed objects that's what this is a patent for this is a patent about this is an invention about trying to take big boxes that you can't store and you can't ship and it's too difficult and making them smaller was very clever very clever idea you basically take it you have the upper you have the lower parts of the sides and the end panels you fold them all in everything's compact that's cut in half you can now shift twice as many and every truck that the ship the wherever you're sending them they can store twice as many until you want to do it the people don't have to take flak cardboard dies and fold them all up the claim was allowable and there were claims that what were allowed that had nobody in it  examiner on the intrinsic record specifically stated that you're missing a body and you need to form a body and then just by appending the word casket in it shouldn't give it some kind of magical connotation a box is a box and it's still just off and that's what the inventions about and it was a very clever invention there only problem is somebody else came up with a structurally identical patent first is it possible if you go forward a firm the board's claim construction and you were formed the board's decision does that mean that we can get out of infringement from now on by just labeling every box that we send out as a box because we're not going to call that a casket anymore and that can't be the law it just can't be the law if it is the law that's great i'll take that on the record and then we don't have to go to the district court to litigate because i'm done because we will label every single thing that goes out as a matthew