we'll take a short recess after the first case rearrange the panel so the first case number seventeen thirteen sixty two p p p p to the broadband versus young who mr j good afternoon to me a please the court the board made two fundamental errors here on remember the first was not following this court's claim construction on the maintain continuity limitations there are no findings what's the basis for that i've read i've read the board's decision yes we're do they do that where they feel the pull of a claim construction well first of all the claim construction requires consistent or continuous contact the board has to say where that consistent or continuous contact is the only place where the board actually uses those words is in describing the continuity member and saying that's not required they have to make findings that actually support it and exploited it's the but that's not the question where instruction where they say they're not your honor i'm not saying the applique expressly says we're not following it but they didn't have to look at what they actually did and did they make the findings that there was continuous or consistent contact and they did not make those findings and as i said the only place they used those words were in describing the continuity member and saying that's not require something more is necessary here even if the board made those findings which there aren't those findings do not exist there's not substantial evidence to support the the expert corning's expert from his declaration his six declarations that he submitted those were all done before this current construction he doesn't say evidence to support that the board didn't make those findings because the her wasn't anything to support it only the board of the board actually said the board said this just shapes frame would make contact contact if you look at what the board actually said it said the spring would make contact that's the same construction of the continuity number and they say would maintain an electrical connection that's the same construction of the continuity member which doesn't rece consistent or continuous contact something where it's needed here if the board is going to make those findings and even if they got there is not substantial evidence of this consistent or continuous contracts or what well of course now the board's opinion says nothing about pressing it's not in there so there is no finding that touches a key spring could be some house press fit onto the post so the  board can be sustained on the ground that they didn't actually put in their opinion but let's assume that there were there was a finding on that again it's not supported by substantial evidence there's nothing in the references that talks teach how tightly his friend fits around the post patent office agrees with that in their brief it says the reference doesn't show how snugly it is around the post doesn't show that it's tight loose and you the expert says he doesn't know how know how to get an action right well to make a connection that's still not saying press fitting to make consistent or continuous contact that's reading a lot into it and if you look at what he actually said he  he said he doesn't know how thin it is and without knowing the thickness he wouldn't know whether anybody could make a press fit so that when you look at the total of his testimony simply repeating the claim limitation and saying it's reference he did say i don't know what's in else and then he said in the absence of knowing anything about the thickness of the ring i don't think anyone would know the answer to that that for an expert that's a pretty big measure that's not quizzical that's saying without knowing those details that are not in the references that someone would know if i could also dress the objective evidence which you think the board failed here as well both on the commercial success and corning's failed attempts there this is a strong commercial level commercial success case we have sales that went from nothing to dumb to share in the market or charging a premium price and the board did everything possible to try to say well you didn't explain this you didn't explain this first of all it wasn't p p c burton we submitted the evidence there was nothing that required p p c to discount every other possibility that the board could come up with this court in the first decision did instruct the board that the evidence of commercial success couldn't be ignored simply solely because there was another product p sold and if you really look at the board did here effectively rely on that earlier product for all the reasons to discount commercial success one they say the sales didn't reach quite as high well that's not actually factually true that's just c transition the sales well that's true salespeople self they sell based on the advantages the advantages where the advantages of the pounded invention it works better in charge sixty percent more because that's  sales and the reason to look successful is because it took all the sales away from its own the other alternative unclaimed connector it's a fact finding what am i going to do with that appeal well that is a fact as to what happened the effect of that on i think over the evidence points to commercial success due to the invention it was the way it was sold take a look at p p c burst your brochures this feature is touted in there there there really isn't any evidence on the other side it's only speculation as to what might so we think the board erred in that as well when you look at always evidence there is strong evidence of this compared to governance of non obviousness if you look at the fact that this imitation is still missing there is no finding of continuous consistent contact with this board should the court's decision really isn't supported and so we asked the court to reverse this now needs to go back and do it properly according to the current guidelines you know your honor i'd have to get back to you on that one i'm not sure at the agency's position as on that i'd be happy to you know if you'd like but i this is a words continuity in the original plan construction by this court if you look at the claim construction the ones that are most often repeated are maintained electrical continuity during certain specified periods of operation that's in there are five or six signs and the continuity is only in there once for example the key paragraph starting at the construction is these limitations require the continuity member maintain electrical continuity during certain specified periods of operation of the connector and it's over and over again  that is one meaning one moment well one then said it was not well during the specified period so the whole point of this is when the nut isn't tight on the post that the connection is still nameplate the border originally said it could just be do we said there still has to be some of them clearly and what i'm trying to understand is where the board actually sat where the evidence is that it was more than just a moment of connection versus would throw out all the during specified periods of operation is a temporal continuous limitation right so it's not just a moment if it's during the times when the post isn't when the night is loose or when it isn't tight that's the continuity during those times of continuous amount of continuity so where the board found that i mean i'm not sure if your honor it agrees that the word believe that that was the claim construction but it did state it was inserted several times in the construction paragraph it's making the findings here that we are satisfied that it establishes a continuity member poised to make contact when that would maintain electrical connection between the post of the night during specified periods of operation of the cable connectors such as that was the testimony first of all looking at figure three of touch suki the ring is touching the post there's nothing to suggest it's not continuous but it's going specifically to the issue that is the casket over and over said you would want to do that know you would want to touch the post continuously you would want to do that among other things so when you're assembling it it doesn't fall off for example on page this this sketch that the board has in its opinion is exhibit two thousand and seven made in his deposition it depicts his opinion and we rely his testimony i don't they didn't cite every line where he said as he did say this in the places here's part of your problem from a technical standpoint it seems to me with this argument i mean not only did the board never remember wouldn't work it's it seems to be to say we're not sure it would it would work at all it seems like it wouldn't that's what they're experts at mccaskey didn't respond to that and the poor just never mentions any if this is never addresses i'm sure that there are dimensions of the tatas duty continuity member that could be press fit onto the post because i'm sure there are dimensions you could do it he said i don't know if you like i'm sure there are any he said i have no idea what the lower limit of those dimensions would be it's sort of like saying when i know that you can use a screw to connect the table leg to the table top i don't know sitting here what's that in a screw that you could use or exactly what the dimensions of the pilot or i can't tell you that but i know you can do it which is what  provide any testimony or spend time frames and an older particular time frames on the board that were cited in its opinion the time frames over which it believed that there was a continuous connection he didn't his declaration state the time frames because he went through each limit in the limits some of the dependent claims and actually said in an independent claims those limits that it has to be including while the nut is loose what's not fully tightened on the post so he does that there he says during most times you would still maintain the electrical connection but this is the exact same marine that the board relied on when the board's at all you need is intermittent connection and then they said his make that argument and there is precedent that we cited saying that that's not permissible i can i can call the exact case name but it's cited in our brief you know like incorporate pages from the appendix which is what they did in your brief and make your argument in that way to do so would allow you to override the work right for briefs i think that's a problem i think that's part of the reason i certainly think that's part of the reason that you can't do that but even if you get an argument looking at dr opinion and it's peter says first of all they say that they're no longer arguing teaching the way they're no bond or arguing it's inconsistent with the reset purpose of the reference now they're just saying ok fundamentally change and they get in operable so they're saying forget about the other two we argue below flat ring that's up here with the springs they face in the pieces that's what the function as you can still do about whether or not the ring this around the post tightly or loosely and he's making up for that he says that he needs to float he needs to set needs to be loose on the post he doesn't ever say why he doesn't then they don't point in their brief to why that is why does it need to it shouldn't need to it's still biased unit still biased between it's sitting there and pushing against the post and the body pressed between the body and the net if it's tight around the post it's like you know might it's really not but also just pulling back the question of whether the fact that you don't know why it wouldn't work is really all well and good but that's not any of this testimony still and you can tell us what you think is just i'm sure but the board never even mentioned it and we've said repeatedly that you have to consider all of the record including that that that cuts against the board's ultimate  evidence obvious this point and he does get very strong evidence about that and they do incorporate his testimony on on that point you know he over and over again in his deposition he says it can be done if you don't you can be done you would want it to be done not just that it i'd like to address the point of this case does get remembered and the rules have changed we would be so i think to reexamine those those claims have already been disallowed changing the rules while the proceeding is going on is something that we are interested in that corning is out well that that may be that may be around what one thing counsel said is that the the ring touches the post that's really the problem here touches the post is the old construction this court said maintaining a lector called continuity requires consistent or continuous contact period that's the kind construct in the court part that we're focused in on the during the unspoken during specified time periods the temporal part of it topple doesn't mean temporary because if you look at the claim say claim one of the zero six zero pound it requires to maintain continuity when the knot is tightened and when it's partially tightened there's not really anything else it has to work when it's in use so that doesn't mean temporary it means maintaining throughout those periods as we get to the sketch