at me just make sure that i can i can tell you exactly where it is in the in their briefing before the board or friends of waveform distinguished the very corrosive very intense i'm hoping ok i'm hoping that i'm going to be responsive that night so what i understand dr push on to be responding to here is the notion that these is responding to the argument made by the other side the two are not point is is that yes you look at the entirety of the art the entirety of the piece of art and then you say what does it teach and while it refers to electroplating generally it doesn't teach us of electr human body and so we've got a conflict here in testimony which is oddly reversed because of the change in the position of parties what are we supposed to do about so i think the answer judge dicus send it back and the reason that we say send it back is that if i was beginning to answer judge o'malley what we have what we have here is a case in rosenblatt that's exactly like the c c ph decision in rape which is cited in our  i think that what my opponent to say in this case about what the board actually held is a strong indicator that reasonable people can disagree as to what this this board elde in this case and in this case the board reduce tanard in this in this quarter i don't think it's a new standard of who find reasonable ness based on the differing opinions of leather goods but i think and i think it does point up in this in the context of this record just clevenger and i don't mean to be cute about it and do it now we absolutely did if you look at pages six forty seven to six forty nine of the appendix we responded directly to that invitation and argued that the claims go including whatever disclaimer there might be does not exclude tantalum platinum outway on the outside surface of or indeed does not exclude a multilayer core at all now the board actually addressed those arguments which i think is that is proof positive that we didn't wave and  what context it's make better in that it's in the context of responding to the institution decision time runs out where in the prosecution history where the board made its way were in this regard the language of the prosecution history was that the fact that it couldn't be multi layered did really even if indirectly addressed to address your disclaimer point absolutely not decks come in no way at any point below address the disclaimer arguments that the board specifically asked both parties to address but wouldn't it be enough to just say well we address the substance of the point that they're make that they're relying on disclaimer possibly if that were correct but but they didn't even do that that they didn't discuss the scope of the macor disclaimer in fact i think you know and in connection with the in contact with limitation the word macor never shows up anywhere in the record they made an independent argument comparing claim seven of the four thirty three patent to rosenblatt but but that argument did not depend upon the court is cleaner and there is no evidence anywhere in the record that that har three it talks about this being on satisfactory in this particular environment in this electrochemical process and  seems to be a dispute as to whether that environment was involved rosenblatt is similar to the environment that we're dealing with here and there seems to be somewhat conflicting testimony as to whether the two once during the i p r proceeding raised the argument that conditions in the body are milder than the rosenblatt conditions they didn't make that argument wait for made some arguments say that the environments are different they said the environment than well your honor i think you correctly summarized the sequence of events here below there were arguments about non analogous prior art that were not adopted by the board deck's com was opposing those arguments concerning non analogous prior art perhaps as a result next time never once argued that the conditions in the body are milder in fact the only evidence in the light of ken's on areas yes your honor so there is a decision here was dexcom trying to change its promise fasten case was it using these references to supply a missing element in the claims which we believe was missing in contact with element was missing from both wilson and rosenblatt so the law is clear that the ex con cannot in a reply make changes to the prior art citing in order to fill that gap  and to interpret the rosenblatt disclosure yes your honor what you can't do though is take carter or a beer or a haley and use that to interpret  rosenblatt in a way that completely says changes what rosenblatt teaches in other words rosenblatt teaches that an alloy layer is essential to holding these two elements together what they would do with this state of the are argument is use one of these references say no rosenblatt doesn't teach you have to anally they do they eliminate that requirement from rosenblatt so you can't use genzyme or the other case under a state of the art theory are these references being used to fill is it not correct that those cases involve things that were raised but first to apply the argument was that they were not properly raised that point because it was too late i think that's we're right your where you can't lose that it's not meaning offer to fill a hole in the prevention that's correct so if you look at how this are being offered its pages going eighteen through one twenty in the record which was in the petitions of review decision tree the question we have to decide because if this art was being offered by way of background there seems to be true impression that it can't be excluded just because it was only brought up on a reply and yes and if it's offered by way of background it can't be used to alter or change or rewrite rosenblatt's teaching which is that an alloy layer is necessary what what what decks com said when it offered these references in the event there's any difficulty in rosenblatt teaching of the in contact with limitation if there is any difficulty in in rosenblatt teaching platinum and direct says to the extent there were any difficulties applying platinum a panel of one thousand nine hundred fifty the petition proved all these complexities were solved over the next fifty three years and so it was there i'm sorry that is a a p and it begins to the extent you know but so there seem to be saying that these references tell you how the prior or was understood at the time the relevant time best way to read this is that in its reply x com was anticipating based on pattern or response that it had difficulty with rosenblatt beckstrom didn't mention the problem about the alloy layer and it to change the fundamental teaching in rosenblatt and and thereby offer a new prior art reference to meet its promise ask the case well i guess that's the question as to whether this is substantial evidence thank you your honor first of all just like with regard to rosenblatt it was an attempt to change rosenblatt's meaning at all teaching away which was what we were addressing here has to be evaluated as of the time of the invention not as a time of the prior art reference that was one of the fundamental errors that we assigned in this case with regard to understanding the board's decision as a future in a way decision yes perhaps in one nine hundred fifty rosenblatt might have thought that in a in an environment caustic environment this would have been inappropriate but by the time of the all of the prior were references that were sizable four of which were cited in our petition so there can't they can't claim lack of notice they were all being done for background purpose just  we we reasonably of course proceeded with that but i do think it includes other combinations and i can't subjectively go back into the minds of the lawyers at that time but i can only assume based on the clarity of rosen the fact that rosenblatt is going so far as to say platinum coated on tantalum is so old that we're going to distinguish it away and tell you why it doesn't work in the east these caustic environments but in any event we know that  earlier question i think ultimately it's a legal question judge clevenger but even if it were treated as a fair question we wouldn't have to shrink from it here because if you look at exactly the page that my friend read to you from page six thirty three i think from the appendix you don't see us trying to fill a gap and it would be silly if we were trying to fill a gap there because we were relying on most of the same references that we don't really put in our petition in the first place so we never viewed it as a gap that needed to be filled in the first place  i could conclude very quickly judge o'malley with regard to our colloquy during my opening argument about waiver i'd like to just point you to the board's decision at page thirteen of the appendix the board certainly didn't view us as having waived our opportunity to respond on this issue they actually say that we assert that the patent owners construction for in contact with does not preclude an intervening layer and that is that that is where