grouped and aligned in a generally plain are correct that is inconsistent with the plain ordinary meaning of ribbon with the clear definitional statement in the specification and with every dictionary and technical document in this case the words construction instead allows the ribbon limitation to be satisfied by any group of separate individual fibers linked lap on a table respectfully that defies common sense and effectively reads out the revenue ribbon limitation altogether once that sta corrected the board's findings of invalidity should not only do you take a good but reverse commit commit said ask you is it struck me that perhaps on that assumption of the claim construction being wrong there might be a difference between the two to seven  relies on different fibers within to you got to satisfy the ribbon limitations one set for the two to seven a different set for the six hundred with it and you can see this a footnote five of page ten of their brief specifically they did under our construction be think that it requires reversal as to both with respect to the two dollars to seven dollars i think it's very straightforward because those are single core fibers they are not in any way shape or form bound together certainly not by a common layer with respect to the six hundred dollars the argument is simply this there is no evidence that the tape of to you includes a common layer this was a question that was put specifically to panda woods expert and  and sixty nine it's not enough that an element might possibly be there it has to be there and so if you adopt our claim construction i think that requires reversal as to both patterns but even if you think that with respect to the six hundred  might require a re man because there's some ambiguity over the tape and i know i don't think that there is in terms of the record they've put on but even if you thought that would apply with respect to the two seconds we go so quick i was going to ask about your pat as as being an optical fiber written for then it doesn't appear to me that those fibers that are crisscrossing each other are somehow bound together by some common way or some common but if you look at what's going on in this figure and you look at sort of the left hand side of that box sixty what you see is effectively like a tree with branches and that is that you see that you have the ribbon that's within within box forty and the ribbon is being fanned out and the specification talks about using a fan out kit so then you have a fanning out at the ends and are presupposition and this ties back to the claim construction is simply this afraid ribbon a tattered ribbon is still ribbon what's not a ribbon is when you completely separate out individual fibers and you just have those individual fibers separately and that's all that's disclosed within box ten of that's the theory that they relied on before the board and that's the construction that the board adopted saying that they don't have to be found or combined in any way am i remembering great and this i think looms extremely large the let's call it the makes clear that you have to have that it has to be a ribbon that is connecting and i think that where the word got wrapped around the axle is the idea of an and we can see that at the ends the ribbon can be separated it's still the ribbon because it still the branches are still connected to the trunk of the tree they're still part of the tree now when you saw the branches off and they're lying on a pile you may have a pile of branches but you don't have a tree and that sort of i think is what counsel was trying to explain to the board in that column over claim three an issue that the board was raising for the st time it wasn't an argument that the the petitioners had relied on was to say yes you have what you would refer to as individual fibers of that point strip it away completely once you strip away the fiber completely so that it's no longer bound at any point to the other fibers by a commonly or then at that point it's it's just a fiber it's not a fiber that's part of a ribbon but is long as it's a fiber that's part of the ribbon i don't think there's anything that's inconsistent with claim three to say what you're attaching one end of the ribbon here and the other end of the ribbon there even though yes the ribbon is frayed at the end that which you were attaching it's the construction that would effectively read out optical ribbon i mean that point if you look at say for example claim one of the two hundred and twenty seven it talks about the plurality of optical fibers of an optical ribbon we just read out the words of the optical ribbon and of course this is a case where the early inventors were clear what they were talking about in terms of an optical ribbon they used in the words of panda what's an expert definitional language to explain what an optical ribbon was and the board seems the things identified after the word includes so i don't know that there would be much that necessarily would be included in an optical ribbon judge tronto beyond the fibers in materials that  again doesn't that make the word include a little bit odd why does it say it is well judged there's truly nothing else well judge trying to i mean i think it is some somewhat related to the how that sentence then proceeds because the sentence tells you what is necessary that is that you have the fibers and that they are coated with a ribbon commonly are and it goes on to say the common layer may be of ultraviolet light curable type and the next few sentences tell you about other optional things that you can do these of the the optical ribbon as opposed red but that the board took the word clued and translated the sentence into the category of things we call optical ribbons include the following things and that's that there's a certain oddness to that the oddness i guess i just want you to address again i see which may not be as big a not this on the other side is the use of the might also include a different a different numbering schemes or color coding or or other other type things so but but i think the use of the term including here is exactly like the use of the term comprising that appears in  claim language and it is really kind of the classic use that this court has talked about in cases like amgen like lucent versus gateway and i think the drafters of the patent would of course of known that that this is the type of language that this this court is interpreted as a defining things that are essential even though other elements may be added and if you look at how it's being used here that's exactly what's going on you have you have the indefinite article and that is introducing a concept and then it's proceeding to tell you what the concept is and it doesn't say may include could include can include it doesn't even say optical ribbons include it's not a plural and then having a listing of different things there might be and it doesn't have quotation marks around the word optical ribbon it's right for it to us saying what the object includes not what terminology covers this i think the way that it's being used here is very much the idea of introducing a concept and explaining exactly what the concept is and it's telling unlike the example that they point to in jazz pharmaceuticals where there was an illustrative list and you can clearly see from the context it was an illustrative list referring to a specific what you have in this case is in the nd sentence of the background of the invention before you get to any embodiments the inventors laning this is what the concept of an optical ribbon is and the use here i think is directly analogous to the use in aligned maybe tightly align but i don't see a separate structure that's actually binding individual fibers together they're sure i get i think that the figures here are i mean about my understanding of what i see just when i look at figure two well i think the figures of course are simply trying to aid one in under into understanding oldham at least the claim language and the background in the specification and i think that what you see here is what's  ribbon inside the module be installed into the multi fiber connectors as well as the plurality of single fiber connectors the specification teaches that those connections are made by individual fibers and this is we think of the ribbon as being some separate structure some separate physical thing apart from the individual fibers that are closed or physically attached to that ribbon even though the claim three would know you're trying to install the ends of the fibers that are contained inside a ribbon is that fair to say well i believe that those individual fibers so you have the rhythm which part of which under their instruction is coated but you also have part of that or individual fibers and they admitted that there are individual fibers that are going into those connectors so that's why the ribbon isn't just limited to their construction is looked upon as a more is a broader construction because it can be those individual fibers as well as the ribbon common layer that they're proposing but why isn't there a common sense of what this request said which is that it may be the individual fibers that are covered by this ribbon language but only if at some point along the length of this thing called a ribbon there is a essentially two dimensional joining of these individual fibers and at least if you look at the portion of rice figure one of tor you go with your relied on there is no place where they are those individual fibers are joined so trade ins are one thing or even slightly separated problem we have there though is that the specification is a very income provides an encompassing definition that's why they use the word includes and know that's a big dispute between the parties but it would include both of those situations not just simply the trade in situ there's  freight in situation which there are going there is a really common layer which there are also likely but there are also the individual fibers as well i mean that's really what the court was getting out with respect to that this claim three issue you have a situation where they're arguing that as soon as you found things out you don't have a written calmly or anymore you have no ribbon the problem their argument is that they concede however that you have to have individual fibers and that's what the specification itself teaches and certainly thought it least addressing a figure three problem let's call it by saying a ribbon in which the ends are frayed so that at one or either end there are now loose fibers is still within a ribbon but that does not mean that if all you have is a pile of separately of separate fibers at no point connected that that would be a ribbon what you did they said the opposite in oral argument to the board but just to be clear i am i have i got right what they are now saying that's my understanding you didn't i mean they know their position the best but that's my understanding of their position but i think that is the fatal problem is that they are get something differently and from the board and i think really five hundred and eighty five of the world hearing kind of summarizes all of that because it talks about this is where they talk about yes individual fibers  not a little on the other hand you have to make the product the fibers are individually connected to the connectors and the board calls them out and that says look you have a contradictory argument here and we can't reconcile that that's why we find that your construction is untenable so  they may be arguing now that you have some sort of award where you have a rhythm with frayed edges but the problem is they argue the opposite down here which is that once you separate the fibrous it's over you don't have a ribbon anymore and i think that's why the board said look i can't adopt this construction it mean to be an optical ribbon i'll be honest with you it's a bit of a confusing argument for me because on the one hand they're arguing that something that's written ised i e has a ribbon on it and it's not whether or not in visual fibers that that constitutes a ribbon but as soon as you start to separate them out then it's no longer rhythm so it's a bit hard for me to actually articulate what your position is because there are arguments directly opposite positions before the board and did the the corning say specifically in the context of claims three once you separate them out that phrase that or that idea could mean it seems to me either of two things one of them to be consistent with their current position one of which would now it might mean if you have no coding at all so there it's now just a pile of you know mutually unattached fighters you don't have a ribbon anymore or it could mean the individual ised definitions an optical ribbon is fibers coded in a ribbon commonly are carried and once you've separated and out of them from the common ribbon common layer there are individual fibers once you have a routed them from the common ribbon commonly or their individual fibers routed toward the right you're running them into the actual connectors i think that precludes their argument now that this frayed and issue saves them from the claim pre problem and that's why the galligan he was decision said look this is just untenable we can't get there you have literally argued completely inconsistent positions in that and now they're in a really tough  with respect to the specification itself the includes language that we've been talking a lot about so we have claim three which we believe is fatal to their position but we also think that includes language that we've been focusing is also difficult for them st of all  they talk about the medical signals they're no grammatical signals that are also indicating that this is a definitional term or that it's a limiting term and in fact just toronto i believe you pointed out or just and said in the word is not present that's correct and they knew exactly what they were doing it with respect to this parts rightly deserve but the wording concludes in common parlance in this world says these are required elements there may be more but these are required elements that god whether you call that definitional seems to me quotation marks around it so you're not talking about the words you're talking about the thing that the word denotes i respectfully disagree on that point just from a civil case i think it's very instructive the recent decision in which the term includes or including was used in the specification of things we're following including and this court held that no that language includes is not limited in other words we're not going to import those specific things and require the claims to contain them i don't see any daylight between that case and our case in fact many of the cases that they cite actually have the word including in the claims themselves and that's why those cases are distinguishable because there's no dispute here that in that context where you have comprising including those this c more nit picky about grammar when it comes to reviewing content and the written description pattern drafters get a little looser and maybe read we shouldn't be so exacting with respect to grammar i'm not sure i'd go that far but judge chen but if we look back at the jazz pharmaceuticals case they've that distinction is was clearly present including in the specification was held not to be limiting rather that's a those were potentially included but not mandatorily included which is what they advocate and i don't see any daylight between that case and this one but the other thing is if we focus specifically on this patent what did they do so we have three different different circumstances in which they used the word includes or including followed by specific language then they took that language and put it directly into the claims and made the claim limitation they made it limiting they specifically did not do that here with respect to written common layer and i will just add direct the court's attention to the work of the phrase module optical interconnection and multi fiber connection having a key must be discussed in our briefs those three limitations were all put inside the claims from the spec written commonly or was not that's a very important distinction i just want to talk very briefly bit hyperbolic and it's not reflective of what the board's construction actually is but those dictionary definitions also look at the concept of what a ribbon this as very broad so there are a number of examples of what are really could be tapes that he serves plastic strips on even adopting their construction we believe which believe is wrong with a recent report indicated the st is the optical tape thirty and just to be clear optical tape thirty which is depicted in figure two they characterize optical tape as a type of ribbon in this very brief because they rely upon dictionary definitions and one of those very definite dictionary definitions that supports written commonly are their construction sites tape is an example so tame checks off fourteen and on the right the multi fiber connector on the right and this is really what's what's crucial here corning's expert stated that there are two purposes of ribbon attachment and alignment and i direct you to to fourteen of the record at paragraph fifteen that's exactly what's happening here these connectors are aligning and attaching these fibers and it was for this reason that in the institution decision in this in the which we cited in our brief the board said well we're looking at figure figures one in two of toyota looking at figure two of the pounds and suv and what we're seeing is basically exactly the same thing and these are essentially identical figures i mean keep in mind this was this  anticipation ruling which is pretty remarkable so you compare these two figures if they call what they disclose a written common layer then tell you the has to disclose a written common letter and that's what the board said in this institution decision in the whether like us that look at figure two is there a break between the i guess the he inside twelve the stuff that's going on inside the the box ten and the tape that given a one single twist to the right of that is this the potentially a pass through connector or is there are there essentially plugs in here so that these are actually different fibers as you move from you know the intermediate zone with the twist on the right into the box on to the left that's my understanding your honor those with which is your understand my understanding is that though the fibers in that tape are going into the connector and then there are those are optically connected to the other fibers which are identified as sixteen in figure one you have to put those two together figure out what's  get the choice of the references eviscerating prior art to the challenge claims your honour's no matter how you look at it tell you to disclose exactly what the challenge claims a claim and what the patents disclose if you compare a figure figure two in the mountains with respect to your your last question my understanding if you look at figure five of two you go you see that there are actually two different things that are being connected together one hundred and thirty two is the multi core connector that connects to one hundred and twelve and certainly my understanding is th board treated these as being completely cut being separate he refers to this being optically connected meaning one is associated with the other but they're actually they're actually separate things turning back to the issue of claim to structure and let me just start with this whatever you think of our construction and whatever you think of the arguments that were made before the board that my colleague on the other side relies on the board's construction cannot possibly be right because the boards the construction means that you don't have a ribbon at all that you don't have you don't have to have a ribbon all you have to have is a group of optical fibers you could literally read out of the optical rim and they just say uncle things have to be aligned or whatever for sure but if you look for example  generally planar red and with the optical beth being immediately adjacent to at least one other optical path but it defies common sense to say that you can have it if you take a take a ribbon remove all the fibers lay the fibers down and that you still have that yes the ribbon would have to be separated at the ends and a person of ordinary skill in the art would understand that and what with he was talking about in context i think it's its claim is that yes you have it which you can talk about is individual fibers but those individual fibers are still connected to the trunk they're still part of the ribbon just like a branch would still be connected to a tree they're not separated completely any claim three talks about connecting the optical the optical ribbon in a particular numerical order in any event whatever you think with respect to this these are issues that arose on an issue that the border rose that the board raised at the hearing for the st time which raises issues under the face of and and  versus accenture and and magnum oil and certainly this court doesn't go about determining claim construction under the philip standard based on statement you know maybe in passing at a board of hearing and what have what the board decided this on was and ultimately two things number one in its view that the wording includes necessarily meant that there had to be more because it viewed it as being a last heard of as opposed to definitional which i think is wrong and inconsistent with th court's precedents and number two the board just couldn't get its head around what how it is that you can have a ribbon that would be attached at both ends if they're going to be sequenced in a different way and of course the answer to that and it's a ribbon that is separated out in p