it either you know we make no contention that either is not a word commonly used in english language you make no contention that or is not commonly used but as you can see there's more if you look at the claim which is on page seven of our brief we think that language is it's not it's not defined in a dictionary it's not defined in usage language it's in you should sticks in areas it's talked about as being improper use well it's i think it's more than that i think it's only grammatically ignorant it's it's not understandable regular people can't understand why we're here that's correct and we think you have to go we think the board erred in stopping in pretty much going on the language of the claim and living with that we think there's a lot more that's very instructive about we what do you there or means that is in the intrinsic record that's very helpful to you so st of all i want to point out that there are that to get to are we are there are two interpretations in front of you ours is that either or means at least one and that is consistent with what our friends argue during prosecution or get the case  allowed yeah i know you arrest and prosecution i think i understand what you're saying but tell me why i'm wrong my reading of that is yes and we're constantly faced with prosecution which is a very confusing but originally they had claims that said so somewhere in the prosecution no matter what they said about at least one they had claims that they got rid of those claims and the added claims that said this either or life which is different than the phrase they use think the remodelled it's not they don't use i think their point of claim ten and they said claim ten said you know sports are only one position and it doesn't it doesn't say only one it says one it doesn't  and it's out of it's not in any context of what either or or means we think the most clear language on either or or is in the prosecution history where they talk about claims seventy claims seventy is what we've introduced  and you'll also see at the bottom of that page two thousand nine hundred and eighty is the either or limitation they went on to in two pages later on tonight eighty two in support in identifying support for claims seventy they identify paragraph one hundred and fifty three which is it one of the at least one paragraphs that are throughout the specification there are several paragraphs of specification that use the at least one language specification never says a thing about either or and let alone define it but there are numerous instances such as paragraph one hundred and fifty three dollars where the at least one language is being utilized to discuss the point we taishan issue claim seventy there's no other discussion about point me taishan is except in the either or or language so we think this is a very direct statement about what that means and everything else is extremely contrived anything else that they want to look at the prosecution history to say is helpful to them is contrived by comparison to that and if and to affirm to the board you will have to say though that we don't it doesn't matter what they said about claim seventy in this in our brief there's a separate heading to talk about those and i think the languages they also have the least one language so they are you know they're not grouping them all together side of where the group them together and they say oh you know well this will claim s got caught up with these others in this these are ones we really meant to say the least one language applies you can claim seventy a separately talked about with regard to the point mutations and they say that is all about at least one when they get to the other claims  separately they don't rip them all together it's separate if you go on to the rest of that amendments there's a paragraph also on page fifteen that begins the subject application and you can see that it again refine it all under the heading about claim seventy talks about at least one point mutation and that right after that there's a paragraph that starts out with therefore applicants claim seventy and then repeat the either or limitation there so they talk about the at least one in the precinct or f right at the end and then they say well claim seventy says either or we think that's a pretty clear correlation we don't understand what else they could be talking about there and they have not given any adequate explanation of what that is well the board's decision we don't think gives you a whole lot of reason to affirm they didn't apply the b r i and the b r a is is important here because there are two interpretations that are in front of you there's the one that we like which is the at least one which they use during prosecution to get this case allowed and then there is the only one interpretation that they now use to try to get out from this interference clearly at least one is broader than only one in addition if they used the either the at least one language in conjunction with claim seventy how can they not say that was a reasonable claim seventy is what issue so we think to be our eye test which the board and not properly apply clearly mandates that our interpretations approach you know that's the same argument we were hearing in an earlier cases this morning and it raises a kind of a fundamental that objective standard i think in some there's a lot less to guess here about because these are words out of their own mouths if you will written and they used both and now they're clearly moving from an error from a broad one least one so i don't i don't i can't decide help you decide well what we are i should be in general but i think our case mandates that our interpretations over that's fair enough court my name is christopher moore and i'm representing party would you do we have to find his interpretation to be unreasonable in order to uphold your on the board or is it enough for us to say is respectively i'm reasonable and so i don't know whether you have to find it on reasonable it is unreasonable why because as this court says yourself in schumer versus lab computer systems reading or as and contradicts the plain meaning of  i'll point out i wanted to rebut something that said and with respect i don't believe that it is necessarily grammatically ignorant to use either with more than tw alternatives webster's that appendix three thousand and two dollars says that either it's definition is used as a function word between two or  coordinate words phrases or clauses so it's within webster's definition itself either can be used with more than two alternatives separated by or i don't necessarily agree with your construction attempting to delete the genes all three of the s b two a genes in three genomes and they found that there was a problem with getting the wheat to grow when they did that they then did an experiment in which they had two d and they concluded that if one was sufficient more than one might be good as well and they went to the patent office with those claims that had the language at least one right and the examiner kept rejecting those claims and so after those claims have been rejected a couple of times they came back with a claim and in new independent claim that was directed to what was the working example the examiner was rejecting the claims on the grounds that they  enabled and the and they weren't described and they came back with a claim that was directed to the working examples where you have two deletions and one point mutations eventually they had to cancel there at least one claims but while the at least one claims were still pending with the claim directed to the examples they made an argument that all of those claims met a requirement that they had found was necessary for getting  to grow well and that requirement was having at least one point mutation and you could argue correctly all day long that one point mutation reached the requirement of at least one without saying that one is equal to at least one in terms of scope and so i think that is the simple and easy explanation for all of what they've pointed to in the prosecution history one is indeed at least one but one is not equal to at least one so all of those arguments are not equating they're simply pointing out to the examiner that we discovered how to make it grow and this example that we've described in our claims did grow because that requirement the rest of it one thing that you need to go to is at the end of the prosecution those narrower claims that regina in were allowed only after the broader claims were rejected and after an interview with the examiner the examiner recorded in that interview the argument that was made and he recorded in his interview summary that regina had pointed out that the claims seventy or seventy two that eventually were allowed were described in examples eleven that's the example of the specification that describes the crossing of wheat with two deletions and one point  allowed the claims that he was allowing claims directed to the working examples and that i think is what got him to eventually allow the claims  the this court has no he says it's not about either or but this court has interpreted either or at least two cases that are directly in front that aren't in his  board this court found that those are not technical terms and that if a divergent specialized usage was intended it was required to be clearly explained i don't believe no matter how many times the only clear correlation between what either or or means is in the prosecution in the prosecutor history is not anywhere else an intrinsic record claims are not clear specification has language that is consistent with at least one but the only clear correlation is in that passage of the prosecution history i talked about if our opponents had wanted to have claimed seventy read as only one they should put it in the claims they should have put it they should have argued it the way they did but they chose to now they want to have it a different way they've in their opening brief to the board they didn't bring up the prosecution they relied on an expert who never looked at the prosecution history until we put in front of the deposition and he came out with the view that the interpretation was only one i don't know how you can do that when you don't look at the most relevant parts as far as custom goes we don't st of all it doesn't use either or or which is a as we put it point out ungrammatical it talks about either in or and when they do it they talk about the court talks about that in context of everything else so we don't think it mandates as our opponents would have you agree to that either or a simple stuff and that's all you have to do to