necessarily subject across the graphic and the question is are these defects crystals and is the elimination of the effect crystal graphic at ching and what did you have in the record then when it turned to the invalidity section the board returned to figure two of the four seventy five tightened itself and declared that excluded from its construction and figure to show the crystal graphic  and begins at line seven let's explain that the only difference is the label in the four seven five using the term crystal a graphic there is no dispute  of this is difficult to follow i don't see that this is saying that the elimination of defects on its involves so through all the material you know they describe exactly the same thing exactly the same solutions with exactly the same results so label one step in this process with a new name cannot take away from this work that they have achieved exactly the same thing and i would direct your authors well together we argued all of them together and the reason is that figure two is an example of crystal a graphic i ching that's a term that's reciting all of the claims and so there is no reason to distinguish playing thirteen that this description of figure two in the past and the testimony and other material that you refer to is not exactly crystal clear on its face and under those circumstances and  without your expert testimony supporting your position it seems to me difficult to say the board's decision is not supported by substantial evidence so your honor on this issue which is a claim construction issue there is no deference to the construction and they said that it could and it looked to see whether in this instance that and the exercise of applying its construction which was reached without discussing the specification section and its disfavored to exclude embodiments to the extent that there is a lack of clarity year it was on dr shubert to show that figure two was something that was distinguished from being part of the invention it's described as something  the applicants have now observed that's the exact language in fifteen columns three it's a line thirty five applicants have now of applicants have now observe the formation of accidents this is something that they consider to be a part of their invention claims there's nothing in the prosecution history that indicates that figure to be covered it's not labeled prior art which it should be under the n p t if that's what it was supposed to be a description of it and it's not described minutes in the plain language there i throughout the briefing and before that detail the void chose not to rely on it the boat board i'll address the intrinsic evidence the intrinsic after x is clear and in our favor here because there is nothing to indicate that figure two was excluded indeed figure two is consistent with the extrinsic evidence that wasn't created especially for the p t there was evidence from two technical treatises that describe edging that was dictated by the crystal plains of the material and at pages seventeen to eighteen of their decision they clearly held that that wasn't found and it would be what is the issue here whether the  has continually injected into the proceeding all the way up into this appeal they deal because our does for example with the facts in the material itself there is a bulk and again material made on the high pressure where our expert testified that he didn't show crystal graphic edging at deposition even though that wasn't instituted on but there's been a lot of time spent in the proceeding on it so that petitioner can try to raise those issues later aka saki there is no defect action of the type that's talked about in those references because in arkansas it's merely a degree or if you will the crumbs on the table the damage that's indentations but the damage that's being discussed in aka saki is not indentations that it's talking about it's talking about this damage that's on the top that's why we call it material way and so what  in the paragraph where the number of budget is zero zero six that it's taking away the damage layer you know there's no discussion in office  nineteen in the record he testified i would not know whether they have removed all the damage or not and therefore i cannot state whether they have even ventured to edge behind damage or not that's at page one sixty four this as our expert doctor she because to fight an amorphous layer that's on top of the epitaphs a layer and and those that damage is being removed by whatever action took place the this entire petition is position on the appeal and in this case has continually rested on fundamental mischaracterizations of both the patent and now of the board s decision and so let's start with the invention itself they say that somehow the invention is not about crystal graphic action but a fair reading of columns three and four the patent pool will show you as characterized everybody seems to be on the same page as to what the issue is that actually are not around a bit they've taken the position that the inventors had a two step process and that the exposing step was the new thing the reason why that they've taken that that why do we care let me go to figure to which you heard to certainly today about so and this related actually to figure two with respect to figure two the patent makes clear that figure two is about impervious to to action and one of the things that could still wide to their discussion of figure two which is not in the body of the pattern which our expert testified in the board found was not an embod in column four and had lines sixty to sixty one it states that because the seaplane is impervious to all of the chemicals used in the study no edge mask is required for the crystal graphic patent makes clear is that the top surface that that seaplane top surface is impervious to all agents used in the study so it makes no sense on the one hand to say as they do that figure two represents crystal graphic action and for that inventors to make clear that crystal graphic that the seaplane was impervious to the top surface was impervious to all agents used in the study and when when counsel talks says you know what figure two is and it is the top surface it is to see plain and it's does show the fact that in the sea plane which was in the prior art they say it was previously known and so they would have this court believe on line thirty four with the wonderful sentences as described before i'll go up to that one in a minute it's been if i skip down to that line thirty four previously has been shown that these agents  stating earlier there is no evidence in the record that shows that either what we called material a that morpheus damage layer or material be the epa tracks or layer system in our case saki was crystal graphically yes where does that leave us if you lose and you know don't why do you win that the reason why that the appeal would have to be affirmed in that hypothetical situation is because figure two does show a in this instance would be non  and in the case of opera saki in in figure two there is no discussion of non si playing because it's simply the in the stop surface of the seek line i was going to mention graphic action and i said no it doesn't mean that so for example when you're edging a nonce you playing and you doing it crystal graphically these materials even when they're well made have different kinds of defects in them like dislocations from the fact i said in the board took into consideration that that doesn't mean there's no crystal graphic action going on it's just that it goes by the defect and then continues on its crystal graphic way so the board never held i would i would i would just note that looking at arco saki you just focusing on that for a minute here if there was as the board had ample reason to find there was no express disclosure of crystal graphic action or even crystal plans in office saki there was no data showing that the smoothness that it referred to or the making of square a parallel athens was clearly caused by the later system or even that it was actually at all and the board made those findings they're subject to the substantial evidence rule and that's why this particular appeal should be affirmed your honor and with respect to these other issues are our expert testif our first to address the issue of if this court finds that figure too isn't it was improperly excluded from the board's construction that and necessarily a broader construction should have been applied that at minimum entitle it's in the only on yes volume one through eleven thirty one it's right at the start of the declaration card off five through fourteen then the board went and reached a contrary conclusion in its final decision because the board improperly excluded i ching of the facts from its construction by any of the last in the invalidity section of its opinion about figure t