the system does not use pressure pressure regulators mean the system potentially could use pressure regulators absolutely are that the claim language says that using this research relation the fuel return path of eliminating score minimizes the need for using the pressure regulator and in fact the eliminates language is only in plain thirty eight all the other cla from the pressure regulators in the fuel rail you can stabilize the pressure without having to rely on a pressure regulator and so to say that pressure regulators are not needed that is true that is the point of the invention but to say the pressure regulators should not or could not be used that is certainly not what is ever intended by  clear from the specification or the prosecution history or most particularly from the claims and selves both asserted on  as i mentioned the preamble notes that this last element the inventive element the fuel return path with flow constraint minimizes or eliminates the need for a hot fuel return line and a low pressure regulator the disclaimer issue that brings us here today was first raised by ford in claim construction it was a non infringement wolf dressed up as a clean contraption cheap for going to and that there was a broad disclaimer of any use of pressure regulator see anywhere in the system that argument was rejected by the district so well no you want to actually the court did say that but both sides relied on statements from the prosecution history to support their various claim constructions i guess my thought is that the district court is allowed to an interpretation of the term flow constrained and the board's decision to members of the panel decided there was a limited disclaimer in that the flow constraint in the last element of claims thirty and forty could not be a pressure regulator i'm not clear on this didn't the majority how did the majority cadman its finding a prosecution disclaimer it certainly had a trim limitation that was disputed before it and that was about to applied it to the flow construct cloak constraint court so that's what it had to decide because that was the specific limitation but the bit they didn't they they found a broad disclaimer and then they said here's how it applies to this limitation you know what more did it did you know the majority opinion found a limited disks disclaimer what the the decision because that that's what they were asked to do express disclaimer of pressure regulators and other forms of incremental regulation as a flow constraint for issue claims thirty eight forty in the concurring opinion judge mcnamara went further  tomorrow looked at he says the way i read this i would hold a broad disclaimer against the use of any pressure regulators but that wasn't the holding of the board yet but they're holding wasn't inconsistent with that they were deciding the case before i mean if we have a case and we are asked to construe one one singular thing and we do it that doesn't prejudice or necessarily inform or certainly not control the question here well seems prejudice around him because of the initiation in the institution decision this disclaimer issue had been raised by ford in this petition and it was rejected so it wasn't before the then conducted a completely new analysis and came up with the its conclusions in this final decision that was actually improper your honor because it did not allow the first of all they want us to do this because they were the real problem is is when the case will goes back to the district court the district court relies on the concurring opinion and finds that it feels that it is compelled to follow this br board that pressure regulator should not be or cannot be used in the system and then they also say that peter had found the four one four patents prosecution states and expressed disclaimer pressure regulators an incremental clear from the decision that that isn't what they did they eliminated pressure regulator so it committal regulation of any means from the of the flow return path and that was clear from ok only the words of the claims on the specification the court did not consider the prosecution history and they and then their construction based on the prosecution history yes that's right so leaving aside the board here because i'm not sure where that gets us i agree with your comment a few minutes ago that's kind of circular why why is did the court err in it's yours are you saying it misconstrued the prosecution history that's your argument i'm saying that the court was  that the prosecution history was not probative or that the court misconstrued yes our argument is that the prosecution history was best ambiguous and also that the uncertain claims that should have been reviewed started my questioning and your friend on the other side said well yes but only in the flow path your honor i think there's no basis for that and that in the decision i think as the questions to get to the boat to where we  regulation means of various types of the gene any one of the appendix and so the only way the t m c could distinguish itself was by saying we don't do that and they said that again and again looking at the prior art they did with a very broad brush not even talking about because it all has the same fatal flaw it has a pressure regulator and our system is different what's truly revolutionary t m c said about our system is that it quote does not just pressure but a precise location that's at page five reasonable competitor is that their invention does not cover something it's telling the world what their claims do not cover what their invention could not be that's what the court said the mega four was entitled to a lie on the my colleague has pointed to the appendix city team seventy five for support for the broad disclaimer that for what is claimed here and that was adopted i did just record as you say from the concurring opinion that's the broad disclaimer but that's not the holding the holding is down the last sentence of the page this disclaimer applies to the fuel return path with flow constraint disclaimer that is int in contrast to the broad disclaimer adopted in the comparing opinion where the judge said i think that the disclaimer should apply to all pressure regulator issues anywhere in the system let me because it's different let me to what i consider the chase on this yeah in your blue brief when discussing a district court statement that it didn't consider the prosecution history you know a footnote at page twenty three that says although the district court indicated that it did not consider the proposition his prosecution history when it first construed the claims for in fact cited this evidence are you saying that even though the district court  says it did not consider the prosecution history that it really did well i think that by that stage in the district court was probably indicating that it did not have a copy of the entire file history that it consulted but certainly both parties  on sections of the prosecution history to support their claim construction during the marking hearing and that's what the judge reviewed to it in an unsophisticated wages made a mistake  didn't make mistake i'm just suggesting that she did not necessarily realize that what was in front of her in terms of supporting certain claim terms what portions of the prosecution history does not mean you should be eliminating the pressure regulator forty one and forty two and forty three all say minimise forty three is particularly instructive because the last claim elements calls for closing all fuel return lines including closing all excess fuel return lines from pressure regulators if there is a day and lastly claims forty four forty five and forty all covered the kitchen to retrofit cars that are already on the road for the prosecution examiner and the inventor of both recognized most cars available in the top that timeframe for the two thousand already had one or two pressure regulators in them so the claiming a retrofit that could be used with existing cars is certainly not disclaiming pressure regulator it's providing a kit that can be used to work with pressure a village thank you