method of making an image so let's say by comparison we're talking about photography and the first film that's designed to make a color image and we say well here before we have a camera that usually makes black and white but sometimes we get a color image and therefore it's anticipated but what's really novel in the in the color film is a method of bringing out a color image and so here we want to know is there a after the methods which gave us diffusion tensor imaging was to see the internal structure of the brain and none of those are under attack because it's extremely novel the way that it's was handled then we have claims that have to do with for from nerve imaging and the insight they are because remember you have the problem that m r i sees water so how do you find something unique about the water and nerve to tune the m r i to that so which is fatty and if you suppress it it will be black and so this is what gives you selectively so you could for instance do what i call being like the effect like the smile of the cheshire cat which is you suppress everything but leave that secure water signal standing and even though you greatly decrease the total signal you end up with the bright nerve emerging because you're being selective and what i explain in the appeal brief i we vendor end up in the situation of that you always struggle with is how does the claim language the words that we have in english bring the lexicography of the patent into the result which we  by so let's say we have a positron and i lay she method that brings it up into forty six point eight degrees we can't just say well we already have a method that she's forty six point eight that's the measure that's the output the nurse becomes writer because we did something to did they have a method that selectively makes nerve right relative to other tissue or do you have a standard method and sometimes you injure a nerve and therefore it's bright that's the only method a person could use  well one reason why they get this wrong is they also thought that they were looking at multiple different embodiments that is they're looking at middleton he's got twelve images one of them are to me show this nerve bright and they said well look these are ten different embodiments and only in occasional occurrence and the reason it happened as i explained in the reply brief is a software error which it was for well the board was wrong that's why i'm appealing  question then of course well it's not a substantial question the reason why i point out that it's that it's a can claim construction question is that the claim construction says that you have to make do something that makes you selective for a nerve that is it's based on the method and i say what the words mean they want to use the common meaning of the words to look at the result that so there they make no argument that there's any method that achieves this and and it's a me mike that's why i have the concern that by by not having any expert testimony and by right and if you take the position of the solicitor that i waived and the specifications as i didn't claim them that just can't be right because we assume you see that's why you see that we were looking at anticipation until it got to the p g a being the reason why we're looking at not it is when we were looking at inherently because we all understood the claim construction and that no one had made a method to be selective so what happens in the p t a b is they change the client destruction that's what they say we don't need a parent's this is fully anticipated which had not come up that's before that's is why the magnetic resonance well this is my camera the camera happens to make a color picture but did we do anything that we have a method of achieving color pictures you have to have a method you have to figure out what do we do to make that happen and they don't have they don't know why it happened it happened once or twice they thought these are cool images to put in an article but they don't know how to do it we're the ones well because they then i also give the evidence no they came back with the textbook five years later and they didn't even put those images and i have an affidavit from neil and who's one of the two watters who said we don't we didn't know how it happened after they saw my patent they went back to try to happened once or twice well they say in their article that they had two patients where the nerves turned up right one patient which are great actually two images from one patient that's what the and they put it in and they say and he says an affidavit he says in the article they they're so for the you know for these reasons you know i think it's important also to take a stand on the issue of lexicography and input from the specification fish you cannot have claims that under his ordinary meaning construction argued before the board that the nerves many of the images in middleton and the other references showed a nerve that was easily distinguishable from the surrounding non rural tissue and that meant the claim limitation and that they were methods of using m r i to achieve the constitutive that was claimed as construed under the ordinary meaning by dr phil or dr phil or now is focusing just on figure thirteen so i think the board may have focused on just one of the images from middleton and then one image from each of the other for reference as  nerve the median nerve in the carpal tunnel is grey as opposed to the other surrounding tissue in the image and the board then is addressing based on the claim construction of looking to image the contents of the carpal tunnel one of the structures in the carpal tunnel is the median nerve i think the examiner found that eighty to ninety nine zach was sure the right the number you could distinguish the middle the median nerve from the non neural tissue but not one hundred percent of the images show that right not one hundred not all of the images show the median nerve or some don't particularly point them out maybe one of the art would be able to recognize the median nerve in those images but the authors didn't particularly pointed out and like i also know the claims are not limited to healthy nerves there or and not injured nerves they cover images in which the nerves would be swollen or have a demon and so i think the point of the pattern is to do diagnosis of nerves and there's no reason to think that because a nerve is injured that that image should be excluded  moreover to the extent that dr phil is arguing a nerve specific image for these claims that don't have the limitations that could get him there the claims for side a one point one that the specification of that contemplates would be an image where the nervous the brightest structure in the image the claims also oversight no specific m r i stats cites a teacher waiting in and claim three and doesn't require the ten times ten times was we had five top one top one point one five times ten times these are just progressive lean more stringent dependent claims because even at one point one we can make a journal of image if you're one point one times  everything there which is the smile on the cheshire cat that's all you need to get a pure nerve image out so that's that's sufficient by itself the issue about the various different claims is basically all work that all work to the same phenomenon which is this checkerboard pattern of the nerve the fastball being right and then the knockout fatty darks you see the fastest which is unique but we claim it basically is for independent claims one of them claim one which remember when this first came through from we say can you get there by using the parameters of nerve which we lay out in the specification without actually doing a specific facile analysis which means that when you have you could find an infringer who is not running through the detail fast one this but still using a method to make your right and in eighteen we're saying we're just use it to distinguish the facile from the non for secure tissue of mediately adjacent which is where we used the word adjacent to tie into the clay which was what i was fussing about in the the sample plane but that's still what we're up to and claim three in eighteen