united states court of appeals for the federal circuit is now open and in fashion god save the united states in this honorable court functions the st function is to selectively close sometimes it's called electively include the nd function is to selectively control or selectively regula there we talk about two different functions well as a pluto how it looks to me that you're defining one function could go ahead it looks to me that that you're arguing that the it has the function of closing off in order to control the flow of gas that's different than arguing that there are two distinct functions one is closing off a lesser outlets and separately controlling the flow well ip for you sit down i have one question with respect to your return mail issue do you agree that you would have to establish that kinetic systems lawyers were acting as agents for the government in order trip to prevail on that issue well well again we haven't done a lot of legal research on that issue to be quite frank about it right now i would say we don't have any legal this argument that opposing counsel is made st of all yes both references instruct the way a trap works a sealed trap works but neither reference says that those are part of an s p s or a necessary addition to an s p s and in fact if you look at the wikipedia article and that would be at record two t two it's difficult to see in the reproduction in the joint appendix but in the original article if you look to the figure there the soil vent stack is shown in green and the traps are white so that the little that stack is the middle the big metal and those u shaped traps are attached to plumbing fixtures like toilets and thinks and those are referred to if you look further down onto to a two and in the figure as being separate the trap is separate from the soil stack and they are described th rough traps all six years are connected to waste life which in turn take the waste to the soil stack or soil vent pipe so this reference indicates that the soil sorry would appear at the top of this soil that stack before any sort of vapors or anything are released into the environment and if you look at page two to three of the wikipedia article opposing counsel was aware i'm sorry a person of ordinary skill in the art was where they at you could have these differential problems and they knew how to solve it if you look for the bottom last sentence in the th paragraph down it says that because of this problem tall buildings of three or more stories are particularly susceptible to this problem that stacks are installed in parallel to waste stacks to allow proper vetting and tall buildings i would submit your honor that the application here is directed not to home  ap is part of the it part of the soil vent stack they simply haven't shown that so we'll vent stack must include a steel trap and the th point that i was going to there he was specifically asked why a person of ordinary thinking only hard would be able to compensate for any pressure differences if mason and pitman including answer that question so there is simply nothing in the record that supports this sort of notion that mason pitman could not be used in combination with the soil board was trying to be generous here because you know there was the issue of abandonment revival and and then all of the petitions about the late minute declarations i think the board was trying this is just trying to i just want to be clear you don't think it made any difference that that the claim what is now claim one doesn't use the  description of the structure of in combination but even so again there's no simply no evidence that you know a mason pitman combination couldn't be used with the soil in fact mason says it's used within the mission stack and you know when posing you know when let me step back for a moment that amendment was made after finals so it was coming to the board sort of a fresh which is why indicated i think the board wanted to give shops resolution of this matter and so there simply wasn't board was trying to address they had sort of argument and didn't state the law as we really all know it which is that if you want something to be part of your claim then you need to describe it in your claim and you need to describe it in terms of structure or function neither of which were done in this claim whether we use for use with or in combination with language can i turn to the vows mean your friend on the other side argues that that they all along contended that there were two separate functions that that they were pointing to do you agree with that i do not agree with that and i think i think that mr you know my friend has essentially admitted that your your honor yourself asked where in the record they made such an specification and what you are limited to are the functions any structures that can perform the functions reciting your claims and the functions here are  controlling and stopping you know closing and controlling flow so there simply is no evidence that a pneumatic self couldn't do that the declaration submitted by shop merely show that a person or at that that a person of ordinary skill art would have preferred something like about all the out of control sorry they don't mention st of all controlling flow but they they they do i think one of them states a preference for self love over another but it doesn't state that they can't be used to regulate redundant that they don't have the sort of longevity that all valves do however there is no requirement in the claim that the val have a certain lifetime and certainly the fact that can't be contamination in combination with the wear by clause in combination with the wear by clause of so that any contaminants are removed happened filter would would be contaminated or produce a gas or a liquid that was substantially freed of contaminants ok go ahead oh no that was i just was wondering what was that did that answer your question or did yes yes it did so so in the case  is in the normal circumstance where a government contractor is acting on behalf of the government the government is the only proper proper party to a patent infringement proceeding in this case we have a itself the if you if you look to the actual contract all the contract says is the sub contractor in this case kinetic who's now you know about what other actions the contractor subcontractor can or must or should take in some other sort of forum and completely separate situation and that kinetic chose to do this on its own regardless of its choice of wording when it filed its reexamination request it wasn't there's no