believe that thirty eight u s c the three sixteen he clearly puts the burden on the petitioner we made the point in our brief that these are separate arguments so we believe that we're entitled to every man regardless of where the burden falls i'm whether the lower tribunals was fairly on notice of the argument and so one of the limitations for instance that we included in the substitute claims to distinguish the prior are with the control directional motion limitation that limitation is in all all three of the subject  claims and it requires that the wheels or supports of the device control the direction of moving record limitation well that was another limitation and that was the one with the court focused on but i'm talking about three other limitations that we added that the court that the board did not focus on and one of those was the controlled directional motion limitation that's completely different than the vector limitation the control directional motion limitation requires that the wheels or supports of the device control the directional motion of the of the cleaner which is the opposite of random motion that argument was made in our motion to amend the limitation was underlined the we argued specifically in the motion to amend that the amendments to the claims were made to distinguish prior gordon i see the argument that you which is part of mr erlich declarations he stated in support of the motion to amend that hanging in miers and remember we're only talking about one combination here is the sole basis for the board's denial of our motion to amend was the  stated hanging in myers were directed only to using random movement to clean while we were looking for the opposite of a stable systematic controlled pattern of movement to avoid twisting of the cable as well as shorter cleaning operations so that is evidence of distinguishing random motion devices such as hank in my hand to myers from control directional devices which is what our amended claims are directed to because remember hank and hank and myers were specifically designed to be random motion devices that's how they operate and they had design elements included in them that that contributed to the randomness because pools come in all different shapes and so when you put one of these random devices in the pool the theory is by randomly moving around they will eventually hit all portions of the pool those types of devices henton and myers did not want to pass a did not want to control directional patterns because if they did they would get caught in a rut and they wouldn't clean the pool the amended claims are the opposite of that they require controlled directional movement and the patent has six columns that speak directly to this concept of control directional movement and twenty two figures in the past that to control directional control directional is speaking to the patterns if you look at the twenty two figures in the patent that that support this this discussion on the patent it shows curvilinear patterns and it shows how you can adjust the wheels  supports to achieve certain types of curvilinear patterns it also talks about a different type of pattern the scallops pattern and it talks about how you can adjust the wheels or support to achieve a scallops cap that is completely different than the random patterns that hangin myers were based upon that was the argument we were making in the motion to amend in the motion to amend we pointed out we've made these amendments to distinguish random devices like taken in meyers and then we submitted the declaration of mr erlich who pointed out and others other places as well for instance of a twenty seven eighty nine them and they say they did consider and they said this stuff is all audience you're correct they have a single sentence finding that for the rest of these limitations including the three that i've addressed here in the four wheels limitation in the end the filter water their finding that the other three limitations were obvious yes wrong precisely that would be one basis for a man of course we also have the statutory argument but i believe that under this state of the case as it is right now with the  that the secondary factors rebut a prima facia case or that there was no motivation to combine and so you're correct that the board did say we failed to meet our burden on that one limitation but that's just one limitation we had three other limitations that we were arguing are not present in the explain that the amendment language relates to the directional positioning of the wheels so that's the control directional limitation and then we go on in the next paragraph and we explain if you go to if you go to the bottom of that paragraph it shows where the support comes from these amendments and one of the supports comes from the control direction a movement of the cleaner site into with the various places and then if you go to age twenty to eighty five we sort of summarize our  the scope of the claim because if the direction of movement is forward that perforce becomes the front portion and thus the direction of movement without conceding that that interpretation is correct the substitute claims eliminates any controversy about the front portion and movement of the apparatus and so we're making the point there that we amended the claims to distinguish random movement devices we have basically lost a claim construction argument on the original claims because of this front portion argument the board disagree with us on that and we said fine now we're going to amend the claims and we're specifically going to put in a directional control invitation that distinguishes random movement we made that argument right there in a motion to amend and then further if you look on page a twenty two eighty six words in the about on the second full paragraph in one thousand nine hundred nine although some cleaners may have included a water discharge conduit they had negligible propulsive force and or created random movement if you go to page eight twenty two eighty nine we're specifically distinguishing meyer's which is one of the two references and we say it's a note that myers configuration not only intends uncontrolled in a radical movement movement it may not even move in the direction opposite of the jets drive then the next sentence down to the one eight three pattern is direct is directed to a controlled movement when the apparatus so i think we fairly put the board on notice that we are making this argument that although in the context of trying to support the one limitation that the board focused on you don't ever anywhere at least help me if i'm wrong say even in a sentence plus there are these other limitations that are and are amended claim you can see them underlined but we're not going to argue them right now but they are there you don't ever say that to me i think wide eyed respectfully disagree on i think we are saying that we are trying to distinguish random motion devices through the limitations that we've made and that's the basic argument we are making it goes on earlier declaration i cite the more between random and controlled and that's technical because it's a very technical and distinct difference between how these got these things operate we achieve something that's a random devices weren't able to achieve and we made a huge improvement in the art because we went away from random we went to a control directional patterns curvilinear scalloped which is entirely different than hank and that's a technical the station a technical feature we presented the argument on our motion we presented technical evidence in our petition high speed manager in a supporting declaration we raised it at argument we had demonstrative exhibits of talked about the difference between random and control direction the board has failed to address it likewise with a four wheeled limitation obviously rece station is not in the prior art you know that was something that he had mentioned a few times and i think as just our pointed out the control directional movement argument was made tied to the dr limitations award and idol free which microsoft the proxy contest agreed with the board's interpretation idle free says specifically that you are supposed to come for the technical features you're supposed to come forward with construction of the new claim limitations in order to persuade the board that the claims are patentable despite this specific guidance from the board apple products did not provide the new plane instruction they talk about how they're trying to distinguish the controlled movement but they didn't even give a and also the statements that were made don't specifically call out here is the limitation that we're putting forth here's a reason why it's not shown in the prior art here's what control movement means because they're distinguishing controlled and random but that you know the board is saying that the hand can have a factor when you can adjust the doctor and you can adjust the jetstream to control the motion and the board specifically pointed to parts and  your view i mean there's little confusion at least in my mind between a substantive discussion that they're playing right at last there and then these separate little underlying pieces which includes control direction rights so as i understood mr barney's i mean most of his argument that went to really the controlled limitation is if your position is that all of this discussion in the board's opinion with regards to the sector of limitation to the questions of respect to control i think they are intertwined because you are having i mean they're saying they're using their jet stream and that's another thing you know the declaration talks a lot about the jet stream but the jet the motion and you can't incorporate it can't just say oh as we say in our declaration you have to lay out what your argument is so the declaration is accepted but you can't just quit everything in the declaration and not explain the they didn't ask for more pages in this case and i do think that you know they didn't use their pages wisely they repeated a lot of basic arguments about the licensing in the background instead of coming  procedure when it was fifteen pages they could use for additional pages there's two things you can do you can move for additional pages or you can lose support your claims in an appendix and have it not count and those are two things that the board has granted in certain cases so i don't think that the fifteen pages is actually an issue here because they didn't ask for more pages in whichever way i think they have no clue what we did treat i think just are pointed out that there is a sentence in the board's opinion so it looks like they something that was before and lay and had to deal with right and i don't agree with that that reading of what the board stad if we actually look at the orders of the board their motion nowhere is filtered water and their motion and the controls discussion is only with respect to you know with intertwined with the so that was and they did not they're not fighting their original plan so clearly that's not going to be a patentable limitation and the four wheeled that seems pretty obvious and they never mention that in the be at issue in the trial phase correct and in doing that the court said that among other things that particular piece of prior art was very much a part of the entire proceedings and therefore the patentee in that instance was not taken by that was required of the board and they denied the motion therefore there's no further question because either  meant first of all i want to clear up something there effects are limitations has absolutely nothing to do with the control directional limitations the control directional limitations says that the wheels or supports must control the direction of motion and that's the court that's the so supports the broader term wheels a narrower term it has nothing whatsoever to do with the jets and has nothing to do with the vector it has to do with the wheels and so i disagree strongly that there are intertwined in any way there were separate arguments the second point i would like to m is that the board the you've got it exactly right just start the board did not find a waiver here on the board reported to make a finding that these limitations were present in the combination of hand getting myers which p t o did not dispute in their twelve month statutory deadline that the board is under factor and shouldn't shouldn't you have to be just explicitly clear about what you are doing so that they can meet their obligation i would i would say no your honor i mean we have to be clear of course you always have to be clear as but we had fifteen pages we had a fifteen page limit to not only make the amendments to the claims show where they were supporting those written in the written description for them and show that new matter was not added and then try to distinguish those claims against all known prior art in fifty pages i would argument but let me just say i am aware that other cases have been argued with respect to three sixteen easy and we would respectfully ask that if that those cases go against the p t o that we that we get a remand on that basis as well i think you