thank you and it may it please the court this a pill is about two issues in the lodge a claim construction and fabricated art both by the board not the examiner before i address those issues i do want to point out that i personally handled the reexamination in this case and the reason i'm bringing that up will become apparent later but i want to emphasize i drafted the claim amendments in view of cats i put together the arguments to distinguish those amended claims from cats i interface with the examiner and knew what she understood and also put together the appeal brief to the ward and knew what issues were being the board was being asked to review i want to discuss what it was that we disputed with the examiner now this case really is about a hood and i think that terms pretty simple  as the claims themselves go and a lot of new tell to make it crystal clear what the edge surface of a hood is and that was done not in the reexamination but in the original prosecution the edge surface is what you think it would be the edge where the hood transitions from the out outer surface to the inner surface it would be if you're wearing the hood the part that's front of your face the examiner understood the end service to be just board called a leading edge and the examiner then said ok i agree with that but then said you forgot about the attached edge surface and she said that this dashed line in cats is figure two was the attached edge surface now we disputed that because well quite frankly cat says absolutely nothing about the dashed line and if you look at the figures you'll see that there are many dashed lines and i assume that those dash lines represent stitching now i like to emphasize i'm assuming that i'm guessing because cats doesn't teach us same time the examiner was also assuming and guessing as to what that dash line is another word scats doesn't anticipate these claims because cats as dash line can't be at the edge surface i'm gleaning queens  read the background briefing and understand interaction with the examiner i moving forward the board then took a different approach and it's understanding the cats right and identified a different and surface and paths so isn't that the analysis that we are supposed to as an appellate court be considering and whether that's a correct analysis or not whether substantial evidence support the board's determination yes thank you for action that question that's that's i'll move right to that right now so the reason i brought up initially the background is that i want to emphasize that the board created an illogical claim construction for the st time identified it as such it would be incumbent time you to let the board know hey i think you've got a new ground projection i want to have an opportunity for the prosecution but that doesn't seem it's an it's one option that you had available to you but you don't seem to be asking for that form of relief either you didn't ask the board for that and nor do you seem to be asking us for that form of relief do i understand that correctly that is true and  i think it is an interesting question because is it a new grounds or rejection of the they apply the exact same are to confirm that they affirm the examiner and they even made the argument that their position didn't disagree with the examiner so it didn't seem to make a lot of sense to say to designate that as a new round of rejection because the board didn't say it was it was just for future reference we do have some case law that talks about when things are new grounds of rejection and when they're not i am not saying that this is a new ground of rejection because i didn't analyze that because no one asked me to but we do have some cases of mine that and we have had cases where the board did identify something as a new ground of rejection and then an appellant comes up here and asked for that form of relief and we granted  claim construction is well st of all it there's two ways to look at this and i mention both of them it's either in a logical claim construction or fabricated art or well i'm going to interrupt you again i'm sorry you keep on calling it a illogical claim destruction but do you actually dispute the board's claim construction or do you dispute how the board has said that the claim remains on the pad so it's a different question it is and i think the answer to that is that the only way to understand how the board construed the claims is by seeing how they applied the claims to cats so what i mean by a logical is they have made it basically their claim construction is at the edge surface can be any arbitrary my understanding of what the board is is that the zipper for the monkey's torso defines what you would call the back portion of the hood but what the board is saying for purposes of this rejection defines an interior that can serve as a hood the interior of the month you wear the interior of the monkey on your head and that's good even though the cat's prior art reference also has what i'll call this extra flap that could extend out from the monkey's stomach so that thank you and i think your analysis confirms why i'm saying it's a logical end and then also i am saying they fabricated art to support that but i guess you could you just your point must be that it's an unreasonable reading of cats it's a black substantial evidence to say that the interior of the monkey can be hooked up actually no i mean let's step back into the claim construction because the claims say that the edge surface defines the it it's and let me just read the claims i'm sorry let me let me turn to them real quick so the way the claim has been defined we have the hood there's an edge surface forming a continuous edge surface and defining an opening of the hood the surface comprising an attached surface coupled to the perimeter of the blanket in a detached surface the inner and surfaces of the hood further defining an interior volume of the hood so the way that i characterize that as the edge is the point where you transition from being outside the hood to inside the hood right well no matter how you look at cats if you go from one side of the zipper to the other you know both inside and outside or vice versa you're always on the outside of the hood that's not a good thing construction issues but eventually i mean can you point to any place in the board's decision where it construed the claim explicitly that you disagree with you talking define an opening of cats hood and so the only way that they could have reached the conclusion that they reached is by ignoring that limitation or the other way to look at it is ok let's say you cut cats and put it off which i think is what the board is really saying here they could take cats modify it by cutting the hood fourteen off so that all you have is a monkey and they say ok there's your hut ok but that's fabricated art that's not what cats teaches i guess as i understand board they're saying that you can wear the monkey on your head and just the monkey on your head  the front flap into the monkey's tummy and now you can wear the monkey ok even with that interpretation it doesn't change the fact that the edge surface of katz's hood is still there i mean it it's you tucked it in but it's still there now but now the zipper  but to me this seems like a substantial evidence issue if a reasonable person would conclude from looking at this at that's a conclusion you could reach even if it's not one that you creature i agree that's enough disagree with the factual reading of this capture reference i think then that goes into the question of how do you construe good because let's be clear the monkey isn't the hood the something pull up over your head even if it is a hood to claim construction issue is again what's the edge surface the ensure fence has to be and then you push the hood the fourteen part  the edge surface and cads becomes the outside part of the thing that's being used for put it it's got a zipper around it even when you push it back it still doesn't find the interior volume of the hood you just change the shape of the hood i think that's all i think going to the issue i think your friend is saying even if you push fourteen back into the body of that they think it's still part of the their forecasts can't be you know invalidating art and so far therefore there is no substantial  without looking at fourteen can still be a hood and i think turning to the specifications of five or four it's a little bit of an uncomfortable thing for us though because cats himself is describing what he regards as the 's figures so basically what the board is doing is is essentially projecting what cats and self is describing as the hood and looking at a component of of what cats describes as a hood and identifying that characterizing that component as being the hood when really cats like himself would never contemplate that little section is being well i think it again it helps looking at that the claim says it has a continuous edge service and define it that the edge surface defines an opening of the hood and what i thought they were saying is that it doesn't have to be the opening for the head it could be the opening for which you stuffed the material into the monkey if that makes sense there's nothing in the claim that says exactly what that opening defining and opening it doesn't say set opening or anything it's just an opening not talking about the opening in terms of receiving the user's head but he's talking about it more in receiving that the blanket but i mean the hood oh it still has to receive a portion of it still i mean a store we would acknowledge a requirement board identified is the hood it is sufficient to meet all the requirements of the five hundred and forty four pattern and the claim and that's sufficient to support once one of the well patent owners arguments really revolve around this claim term edge surface and all of the requirements and relationships that are in the claim as to the surface for example the edge surface has to be interposed between an outer surface and inner surface of the hood is the that edge between the outer and inner surface because what the what is this just the trunk or the money monkey up to the zipper to the zipper is the edge between you know i guess that's what i'm trying to understand does do you think the board thought that the forward flap once it's tucked into the interior of the monkey then that flap portion defines the inner surface of the hood or do you think it's just that very material of the back portion of the hood it has an outer surface and then it has an inner surface and that inner surface of that single piece of material is the so called inner surface as decided in this claim and then the flap is it's really something that's irrelevant to matching up the claim language to the ho rehearing decision it's regard most of the position of who fourteen is essentially irrelevant to the claims because the hood is element twenty which has its own interior annexure i think that's that's the the crux of the board's decision on that  there are no further questions  within say we do not interpret the claimed edge as necessarily being the leading edge is that supported by the plane in plain language where as judge chang pointed out it has to be an  monkey up to the zipper and that that and surface is interposed between the outer inner part of that goo want to take another look at the claims to emphasize again this is a claim construction issue we point out that there really six structural features of the edge surface and the one that we really haven't discussed yet is the edge surface includes both and attached surface in a detached surface if under the boards construction i mean they don't identify what they don't construe that at all they clearly have ignored the attached surface because let's say you know using their fabricated version of cats or cutting the hood off and calling the monkey the hood well where's the attached surface well it wouldn't be attached surface be the one there is no seam number two it's a continuous and surface that defines the interior volume of the hood no matter how you look at it there's there's just no edge surface if you look at just the monkey it i mean it really is just a monkey sewn to the hood there's no extension in that goes around the back that you could on the attached surface there's just again it's illogical it's hard to even put your finger on what it is they were thinking because i've hit here's where i go back to what the examiner was saying she knew what the surface was she drew a picture of it right the dispute was something entirely different and then the board came up with this new fabricated burson of cats to match their logical claim construction they could have read these claims on cats the way they happen by adopting some sort of playing construction that's inconsistent with the claim i think that's what you're saying but yes is there something expressed in the board's opinion where it says something about what the claim means if you disagree with for example engage eight where they say we interpret the claimed edge as we do not interpret the claimed edge as necessarily being the leading edge do you dispute that are there other places in the opinion where they say what the claims mean and you disagree yes i think there really is no question whatsoever that what they call the leading edge is the detached surface of of our surface that's exactly what we define in the claims it's the it's interposed between the inner in the outer surface and defines the interior volume that's what the examiner understood  so yes that that has to be a claim construction issue because even though they didn't come right out and say we're construing the surface as it's being anywhere on the outside of the the hood they don't come out and say that but that's clearly what they interpreted that language yes because the only way they apply cats in the way they have is if they interpreted that so yes they if the claim construction issue is that they ignored a number of limitations  claims and ignoring claim limitations is a unreasonable claim construction the board has to consider every limitation of the claim that's  got one more minute and the last thing i'll say is the reason i brought up that the board shifted and created this this different view of everything is that having known that they were going to see this illogical claim construction and fabricated version of cats during their examination we could have thrown in additional plain language just to prevent it we never had that opportunity this is this was a different view of things  you know whether or not we could have designated as a new ground a rejection at i mean is it a rather rejection i don't know but that doesn't change the fact that they used it in improper claim construction to get the result and on top of that they they fabricated this version of cats that doesn't include a hood anymore and so for both of those reasons the decision should be reversed thank you thank you