the first case this morning is consolidated appeal for purposes of argument fifteen one four zero eight and fifteenth one four zero nine  applied given the time i'm just going to focus on a few key points today claim twelve issues relates to a pump for aquatic applications and the typical applications  described in column three of the patent their pools their spots it can be a landscape and so the pump is here the reservoir is here and the pump when it's term on it will suck water into the priming isn't limited to just the start up operation yes and the board concluded that no it was not so live it so what's the best you can do is that figure for the set in the specification what is you can point to the board was incorrect in answer your question refers to any time the flow rate gets below a certain point i believe that testimony may have been discussing rats musin if i'm not correct roger but in the four seven i happened there's if you look at the boards construction that said three things that said that restart at start of at restart and when a loss of prime condition is determined and i'm reading from page nineteen of our  any start is going to be back to the big get it to press to start the third when a loss of crime condition is determined ok and consider that in connection with hayward arguments where a clock would start and say ok now you have a pre determined amount of time to regain the prize well this is there's some stuff in the spec even of the spec to figure for that refers to begins repetitive  red box for the start up routine and there are some additional disclosure of that lower right hand corner of the green box the red box contains a diamond for ten that's the only place where there's an actual comparison of the flow to a pre determined priming flow that the only place so the ports construction reads on subject matter that's not disclosed and in any claims construction analysis of course one of the fundamental goals is to determine what was invented here how can we align the claim with the intrinsic evidence the specification and the prosecution history of course and when everything is said and done the language by itself read in light of the specification where this is the only in body but what about red invite a claim thirteen yes claim thirteen your honor it uses slightly different language time allotment the root word pride or variance i would appear in both claims but the laws here that doesn't doesn't claim thirteen teaches that the system checking whether the system is a crime and this continues even after the the max priming time i would respectfully disagree with that your honor and if again you turn to that image of figure fo r in the start up routine representative read this page nine of a reply brief to the diamond for ten is the only place where there's an actual comparison of the flow to pre determined priming flowed out in the claim thirteen embodiment which i got marked in green here which occurs during normal normal operation as part of the the priming and that the priming the  filter algorithm what's being measured there is shaft power the controller is determining the shaft power if during normal operation it senses the shaft power is approaching zero for ten seconds a priming dry alarm can go off and then the system is interrupted according to the specification that is not a comparison with prime that perhaps there's never a determination in normal operation that prime has been lost there's a determination of some point that the bleeding can be spinning in air and have negligible torque and therefore senses that's almost zero shaft power and one of the things that the pattern seeks to avoid is running in air and therefore why else would it be running there other than when it's running at zero shaft power for ten seconds it will trigger this prime which is different than the routine at start up where the system runs it does this repetitive comparison of flow rate versus priming flow rate very quickly and if it reaches prime within the allotted time it goes down to figure four b and enters the normal operation if it doesn't the box all the way to the left down underneath the fluid level and it's got an opening in the bottom twenty so draws water in automatically when it's submerged these are called self priming pumps when rasmussen starts up the control logic thats rasmussen's invention is turned off so if the claim is limited to start up or restart there's a clear distinction over rescues and the control logic for determining  whether the flow rate is below the setpoint is in iraq isn't operable so when rescue since critically analyze the only aspect of the board's claims instruction that's relevant or even potentially relevant is the loss of prime determination and in that particular aspect of the construction rasmussen never disclosed a loss a crime determination step point when that flow drops below a pre determined value and stays there for a certain amount of time shut down so there is no damage to the pump below it tell me understand the are you saying that this resolution does not read on claim twelve because rich music does not detect prime at startup under a limited construction of this court finds the restart is the next aspect of the construction rescue some states at the bottom of column two have restarts which is again a manual restart there is no automatic restart that control logic is shut down there as well so we're into the third component when a loss of prime is determined rescue sin is not determining loss of private only a loss of flow which can be for long as it discloses the reduced or comprise levels and under the board's construction that means that reduced power or reduced speed to achieve only deuced power if you turn its program to enter the limp mode that in struthers the pump states can be an empty tank the tank levels too high there can be overheating in each of those situations struthers shuts down the pompous triggers an alarm for the only focus on struthers that was presented below really this cog removal process that's one addresses struthers address is a relationship between torque and speed right it certainly does your honor and what it teaches is that when there's a physical clogged put that motor into an aggressive state to attack it with the blade so it develops a low torque heavier force grinding through the clogged and to get that low torque excuse me the high torque and the high and the extra force you want to grind through it you have to reduce speed to allow the port to go up so that power is a function of port time speed a saw him in the in the aggressive struthers mode there's only a disclosure of excuse me  decisions or statement its restructure construction from the institution decision to both of those construction and under any construction that's true to be our standard we submit that  board was correct in finding that traverse teacher is the one why did the board change its construction in the span from the from the national to the final determination to include the phrase to achieve a reduction in power then that's a very good question and if one was to look literally at the final written decision they said that they looked at what the ex parte examiner had said during the expert a prosecution and while it was true that the ex parte examiner did say reduce speed stayed reduce our state it was the board's perception that the expert examiner had seen some type of association between nodes and power simultaneously in parallel with that we we believe that the board was trying to be responsive to a point that pence are made which is a very inviting point which is well under the original construction if user walks over to the variable speed pump and changes the speed from high speed to a low speed that can be a limb and i think that responsive to that and again following their perception of the examiner associated li with power they restated their construction now what's interesting is that the discussion of the expertise where he espouses his understanding of the meaning what mine was in his discussion of his believe that where the board discusses how the restating of the construction was inspired by the ex parte examiner the mention that's consistent with enters experts testimony about the meaning of the word let know what his  so the evolution of the fulcrum what mode it's helpful to understand at the end of the day the source text of course is the specification and with deference to the prosecution history of course and i think there are get the other reference for the talking about wind mode and actually explain what it means that's what they say it's reducing at least one or both of voltage for the frequency a third location that's extremely instructive is in the parent application which went on appeal to the board and by the way the claim construction on that appeal to the board was the initial claim construction in this case reduced our state reduced speed state but in that appeal to the board the parent case which is incorporated by reference into this case the first independent claim which appears in this record is claim eighteen because of just the documents that are in the record here hence your claimed something to the effect of reducing at least one of the voltage and frequency in order to drive the motor in a what motor clear foreign object attraction so you know we can talk about the technological concepts or you can talk about the labels the words that are on them but what we see in that claim in the parent application this is a division of the same stack is is a claim to reducing the speed to clear a clock that's power is going to shoot up it's going to shoot up left unchecked this torque is going to cause the power to go way up it's going to overload and overheat exactly like what's in the background of the invention struthers but when that torque starts going up by virtue of there being a is there a difference in your view with respect to the board selection of the broadest reasonable interpretation and what would otherwise be the most reasonable interpretation under a straightforward claim construction the doesn't implicate  say that there's no disclosure of loss of crime in the specification of four seven nine one kind thirteen this is admittedly directed towards a loss of prime scenario so with respect to the first time to answer your question well yeah but you will when we talk about claim twelve which is the claim it is short and we're the disclosure there is clear that it goes beyond started out yes well first of all again the issue i think is properly framed is whether or not clean twelve steps should breath to cover an initial acquisition of crime a generic claim covers multiple species and there's certainly no requirement for the specification to teach the species of the prior art for that prior art to surrender the generic claim unpassable i mean to require a specification to teach the prior art would be a little circular but even if we go in to the specification of the four seven item we get into detail at three columns twenty six through twenty seven they refer to figures for and what we as one example process now at three column thirty eight there's typically in a conventionally somebody might title this portion of the specification a detailed description of the invention this is claim twelve the moment in time when the clock starts ticking we know that there's a cough we know it's going to tech but there is no there is no anger there is nothing in explicitly or on beyond the initial start of absolutely or correct so what the specification does say let's add a problem for you now actually the way i understood the question was that claim twelve doesn't include any limitation on any individual species that's what i understood the question to be asked there's no limitation claim twelve that it be at startup there's no limitation claim twelve in the after startup there's no limitation it can be at any number two from the prosecution history there's a you know there's a claim of priority to the parent application specifically alleged to apply to claim twelve in the company with a geisha and the preceding below so we know priorities allege for claim twelve back to the priority document the sole and exclusive reference to prime the parent document the paragraph thirty one is lost from that the words well the prime don't find their low flow indicating more than the usual quantity of gases through the system the lights go off and after the timer start up rasmussen shuts down the controller whether you call it determine flow or priming it shut down every restart it shuts down so all left with is a loss of prime determination a determination requires a diagnosis so when on the control panel rasputin's controller has sensed a loss of flow from the physical flow meter and it sets one red light that loss of flow persists for the pre determined time when the pump gets shut down a second red light goes off no one knows why the lights went off that cannot be a determination of of pride rescues and says that the low flow can be due to contamination abrasives of stolid deposits but i think i asked you the first time around so maybe you're not understanding the question  million not understand etc which is as long as it discloses a shut off due to low flow rate yes why isn't that sufficient because that is not a determination of loss to prime the low flow rate can be due to many different that pumping rasmussen is fully prime it's like if you're driving a car your check engine light goes on you might feel something wrong with the car the motor pull over the driver doesn't know what what's causing that check engine light it's i don't know why but you stop the car but in my point we no longer are or at full price right in my example the driver could equally have been dropped continue driving the car with the check engine light my such a determination made and there's been no evidence put on that that determination was made and rasmussen so the claim language controller bitter terminating whether the current flow rate is above a priming flow in order to determine whether the pumping system is prime the pumping system can be fully primed and the flow rate can go to zero because there's a blockage or there's damage to the pump plate because of wear and prime on struthers and the other appeal now a couple of last points strether used is taking the controller takes the p somebody skilled the art which tell you practically the entire time what happens is there's transients gas pockets that can come in and what rescues and does is try to keep things running that so it allows a little grace period for the gas to come in you could see a blip at the flow meter and then once the gas passes through continue operations wants to keep running when there's gas so that's what we can and on rasmussen given the