and if you don't agree tell me why or why not with us not apply is based on the theory that the this was a consolidated proceeding and it wasn't actually consolidated right i disagree with that you honor it was consolidated where's the consolidation or the consolidation was through marriott of factors one they're all they all the same so it doesn't form there's no formal consolidation or well  just consolidation because as hell is also knowledge in their response of grief that all the issues even though they're across nine different decisions they all use basically the same identical reasoning in clay construction analysis that it was the act two the fact that there were nine decisions was this something that the peto did it's an issue how how did that come into play this is the st time that we've noticed that this is a single argument and because you have been separate petitions have been separate decisions and  device in communication with the switching facility the patentee spent no less than two full columns of the specification of the twelve comm specification explaining how connecting define the type of connection required like this that the type of connection required is actually in the preamble if we leave the preamble and open it out we would you agree with that language and patentee went explaining what does the edge of the network mean and what does it mean to connect to the edge of the network this is connecting to the entirely to the network we are it's helpful to spend twenty seconds simply explaining that as as we did on page five in our brief where we show that class five the class five switches or the edge switches on the edge of the network and the prior are all that it is connected to the switches then we and switch it could be connected directly or indirectly but it cannot go out of the network to an edge switch and come back and that is the essence of the invention the essence of the invention is not to connect through an edge which the reason why we say it could be connected directly or indirectly is because as the system evolved over the last fifteen years there are a lot of intermediary things that could go between the controller and the tandem switch that could be  filter between those two devices and then potential infringer could say well you're not directly connected the issue is not whether the connection is direct or in indirect is whether it goes through the edge switch or not defines the switching facility in terms of both and image which is so troubling seeing where this prosecution history supports your narrow construction geographic areas that are not local to and office that is the key to the fact that it interconnect what that says is that this covers tandem switches but it doesn't say it doesn't cover in switches and it's your problem by by the me or amendment of the claims and overcoming schwab by saying that you have is an edge switch and we are not and  all of the implementations that include an f switch whether it is an eight hundred dollars number or connecting the controller to the to the edge which have been fully disclaimed the connection to the internet does not change that assertion because enabling the device to have access through the internet does not make it an end and switch it simply enables access to through the network but it is still a class for it tandem switch if attendance which has access to the internet that does not mean that it becomes an abstraction there is a fundamental technical difference between switches that are inside the network they use a totally different communication than the ones on the on the edge of the network this is this is the edge of a network is similar to using your telephone your telephone your regular plane or telephone system your telephone system is connected to the edge it cannot control inside the p s u the invention is all about controlling the tandem switch and that sounds like more  very clear law stating that no statements made during prosecution can recapture this plane subject matter in the specification and we have this claim that subject matter distinguished because in that case there was no consolidation there are separate separate dates for arguments and pabst there was no facts in a campaign that there was any consolidation in there and then another distinction on consolidation orders are irrelevant well the policy considerations are to waste let it get resources to pursue every single issue in a consolidated nature we're trying to hone in on the precise issues that we'd like to cover so rather than go through every single patent in every single issue at the motions to him and you know we've always learned that if you want to try when you've got to narrow your arguments down to you know some sample of point rifle shots so for us to go through and try and argue every single issue and every single part in a consolidated nature it's going to promote judicial and efficiency it's also further not a simple answer to that which our decision asked is that you get an  on the other side that there is no hold you to an argument to an answer to given the cursory briefing of the constitutional challenge well how do we get around judge morris recent presidential opinion prating  reasons you know it's unconstitutional taking from start telling tired of the argument so i my intent would be that i would be handling the two threshold issues that we think dispose of the entire peel that is the one that has already been touched on with respect to the final resolution of identical are both here in the event that there is a issue that appeals directly to their individual i p r for their individual client if there's a specific question about those because i was representing a wide open west and knology in eleven group of the i p r's and then there was a these were each an individual i p r that were separately resolved so that's why they're here ok we may not get it we may not get to any of those questions you may not have any questions on those issues but they're here to judge like you were on that panel but these are the past three i see arts of three different but related same specification patterns same across the board materially similar claim construction invalidity issues with respect to the teaching  particular reference in all three patent i p r let's say the piece have decided similar issues in a similar way in those three separate final written decisions also the same here and the court in past found that the pat what the court found in the past was that the court held that the patent was immediately precluded from contesting the same issues in the last night i fear appealed that result is controlling on this on the facts of this case the court distinguished the cygnus in the end of that line of cases by saying these are distinct i p r which were resolved separately in separate final written decisions that result is also controlled now his council does rate so we may have in our fully used the term consolidated in our briefing that was not it we're not using that term in the context as it's used in in collateral estoppel president there were coordination for efficiency is done but they put as perhaps noted these are nine separate final written efficiency and consistency are paramount considerations and there is a number and we have cited some of these cases the nestle case the ohio wood case that talk about and perhaps talk about the importance of consistency those those presidents are controlling on this panel here by statute thirty five u s c three hundred and eighteen b and this court's precedent the moment that focal up that when the focal opportunity to file an appeal expired in february  two thousand and eighteen the challenge claims of that patent were for ever and finally invalidated based on the board's final right decision on the identical field issues so the practical matter is that neither the p tab anymore which has public notice which everyone is relying on with a string claims of related patents and they're asking you to to enter at an inconsistent decisions and that's just that is wreaks havoc on the public notice function  canceled i think a pass also noted the fact that they could have canceled the claims prior to you know at some point part of the final written decision issuing there were a number of things that they could have done but they they did not do so we think that there's a controlling precedent not only paths but also on the consistency that this board has and that consistency has immediate issue because of effect for the same when you involve the same pattern when you involve unchallenged claims in the same controlling presidency these are different what we're i don't know if that the question deals with does it alter the material question inabilities that is when you're looking at the fate depended cleaners when you're when you're looking at different patterns and in this case we we have shown they didn't do that because it's only saying that this is an admission rather than a not so i don't well b i don't we don't need to rely on any admissions we're relying on our on our briefs we've shown that is there is no material difference between are the facts of this case are controlled by precedent like past and precedent that when you don't have material differences between claims when they do not alter the material question of invalidity of claims that made a final decision on an issue that that as an immediate conclusive effect for co pending actions for actions there's a number of cases and i can more cases than we even cited in our brief and i can provide you with those cases if you'd like me and eighteen and judge you when you're on that panel with with judge dyke these are these are controlling a precedent has to be immediate reclusive effect that that is implicated when you have when you have a final decision so in our case we have a final decision there's no dispute over that the statute governs that when when the time for appeals expired that decision is rendered final so that the legal consequences of that are are that it has consequence there are broad policy considerations your honor with with having inconsistent decisions when you have an identical issue that is before that it is finally resolved that this court this court does not have jurisdiction over that issue with that p jurisdiction you can it can be considered for a purpose of a fact but but but under pabst in those controlling cases it needs to be given it needs to i mean that once the issue is decided then then the very astute questions have been asked that they correctly found that there was no clear and unmistakable disclaimer in the specification of a controller couple do a switching facility you need we were looking at a particular page of the of disclaimer the board found that those claims were invalid based on the archer reference teaching the disputed limitation there's a number of citations in our brief to this point vocals their reply brief does not even address any of those citations they're entirely silent on page ten and thirteen they go through a number of citations however they don't reference any of the board's final decisions on the amended plates and other notably that pople did not appeal evidence standard or not putting all of the evidence before the board we tried to do that in their brief we had we laid out for you really the evidence and arguments in multiple pages but if you were to know to look at their reply brief they do not  constitutional problem there are still reasons to require litigants to raise issues before the agency because they didn't see can opine on crestor threshold and related issues and lastly i just wanted to point out that now they seem to be making a takings argument and that is not an argument