purposes of this question that we were to affirm here i would be able to file a new claim or claims containing the language you argue for as a matter of merits of the not quite the merits of the claim construction itself is your understanding that the let's call it the past upon the principle of le bron and williams says only that the court may decide an issue that was passed upon even if not quite argued it doesn't say that we are obliged to and if that's your this guy was this is judge can i was the term in the claim is content source cost and i was wondering is is that term that phrase used anywhere in the talking about are you talking about the bottleneck link discussion yes just curious i believe you have some patents that have issued already off of this written description is that right that's right do you based on traffic which is predicted to occur over a most utilized link but i would suggest that most utilize is not synonymous with bottlenecks and just curious while we're at just housekeeping point are there any claims that use the term fetch miscarried this is judge trying again i notice that in the claims when it refers to contents or scoffed it also says based on network impact quote unquote and i was trying to think about what does that mean in relation to  preferred definition your preferred definition seems to be thinking about cost in the perspective of speed of delivery of the content and based on network impact could be understood as well looking from the perspective of the network itself not the speed of the delivery of the content but the harm or burden on the network and so i was wondering how does this for instance it might make sense to travel a longer distance and longer in time as well and if you avoid getting a bottleneck that not only could delay your transfer but might impede the transfer of other content as well the same idea that if you pile more cars on to sixty six not only are you slowing down your commute but you're slowing down everyone else's and of course but how do you get that out of the middle sentences paragraphs sixty seven dollars which seems to focus just on what's  is that there may be multiple links in a path while an individual link might be slow as in the past it might be faster than the slowest link in a different path and so you choose the path that ha in your board brief that gives me a clue and a signal that the board should have recognized it was looking at a preferred construction of the term network and that this is just trying to let me just ask you eleven question on the the merits of this construction if you're a if we're doing a b r i interpretation the question perhaps is with a relevant skill artisan understand that the language of that claim which refers only to two of the three factors and the specification formula  redefinition and because there is a disparity between the claim language quite noticeable disparity of leaving out the fats cost one reasonable reading by a relevant skilled artist and would would be to view see the formula as not a redefinition but rather as describing an inviting john i understand the plain language of pointing to and we would  district court of transport decided against you it's unfair if you don't get a chance to rebut that so for example if the fact that been reversed if the board for the st time that said we're going to apply lexicography where nobody mentioned lexicography before it be fair for whether yes but new claims containing express language with the now urged construction could still be final so i think they would run it so this is the there is a judge richard opinion where he says if you change the records you can have the same claims and have new arguments but i think more we can you know i got i don't think i've asked my question let's take the proposed claim construction  formula so now we have new claims new language and claims could google file such claims either in this application or in a continuation i apologize your honor you're right i didn't understand the question yet until the not particularly tied to this context patent application context and i wonder if whether it should to be applied is might be affected by the avail ability of a curative option on the part of the litigant one that also happens to serve the important policy of having content as much as possible  easier for everyone involved and i think that's a good reason to say we're not this isn't gonna stop all this going to bar you from doing anything that you want the way we would in a district court where you have to pay money damages just drop claims but don't have this issue and then we can move on and the whole point construction issue can go away and we can talk about the matter i think that's right mr cause and just to be clear i thought i had heard you earlier saying that if the facts were in reverse then you would think it would be appropriate for us to consider the claim construction issue here that is to say if the board surprised everybody by engaging in some kind of l unexpected and therefore the appellant in that instance would say no i want the broadest reasonable interpretation and you're now surprising all of us buying corporator the specification is from the construction that you have and maybe back specific about whether the new construction requires reopening under treasury i think this court also can say look who early the construction is right or isn't right and substantial evidence that only support was inclusion so then you know i feel like it will depend on the specifics of the fat maybe i open up more of the can of worms that i intend to do with the hypothetical but i think it would depend on the specific case on how we could you explain how google could have been surprised by this conception of content sourced costs articulated by the board i mean i don't see anything here that suggests that what the board said was a harsh departure from what could have been or necessarily was understood by the examiner and google's counsel during the prosecution  it was telling that in the board's decision not only did it offer construction of cost but what it said right before it offered that it was a construction was we construe cost to mean everything costs a discloses and shoulders with a  expertly done here and i only wish your client had given your prosecution counsel as much time to write the board brief as as you clearly put into these nicely done brie