we are here today to that to discuss three different patents and three different ip r s like to start with he seven hundred ninety six which involves excited twenty patent and there we have three issues that we think we need to address we think both laird and the board fell into the hindsight trap with regard to obviousness we also think there is an issue regarding the attributes of mr bago who is laird's declarant and then we also think some miss you didn't present to the p t from from what i gather the only argument you made appears on page eleven sixty of j seventeen ninety seven and  we think we raised them in your pure question as to whether we waive them in our underlying pattern or response is that what you're referring to and we also referred to the absolute separation of dr column and paragraph one thirty seven of that ration and a real world example of this would be if you happen to get a very hot cup of coffee this morning it may have been given to you with a sleeve around it perhaps a cardboard sleeve that sleeve is the sign to protect your hand from the heat the coffee w otherwise transmit to you in that capacity the sleeve was acting as a shield if however that sleeve were made out of copper or something that was firmly conduct is it would act as a dissipate or and it would want to move and get rid of that heat in your hand would get extremely hot and it would not help at all and in that case it would be a dissipate or so if we think of the the cardboard sleeve acting as a shield it is focused on protecting something other than the heat generated from the heat source it wanted to protect your hand whereas with the car participator it would want to move and it would care for the eclipse so we think that fundamental distinction between the two when there are often mutually exclusive we think that shows y our definition which is protection of a region of a device other than the heat source itself from heat generated by heat source is appropriate the board's definition is simply a structure that protects against heat now at least as of today we appreciate that the claims must be construed in terms of their broadest reasonable construction but even this court recently on april nineteenth in the in re man machine in effe that definition is is so broad it encompasses just about everything and it would remove the distinction between the two and if you look for example it clean water clean eleven of the eight seven four patent the preamble talks about a thermal dissipation and shielding system if those things meant the same thing there would be no need for this latter part of the clause and those of ordinary skill in the art of prescience that there is a tremendous difference between shielding and this a patient and the credible evidence of record from dr cohen walks through that in detail and we think again the definition proposed by the board is simply too broad under that definition a structure that protects against hiv it covers almost anything unfortunately i had here its records on the field scrambled between the two cases argument and ok and what i'm hearing it with is pages thirty nine to forty eight of your blow brief in that portion of your appeal in which you raise a number of arguments which do not appear to have been raised to the peta a number of claimed instruction and that's why i'm asking that question haven't you waive those other the argument you made to the people i believe we have not waive those your honor and immediately before the sentence that you refer to there is a reference to exhibit two thousand and five paragraphs one thirty two and one thirty seven  the the expert testimony and the reasons why we have construed sermon shielding in this manner so you've been you've incorporated that i reference after argument and dr cullen walks through  the definition advanced by graphic functions but isn't that the same function dissipating heave and shielding against you know it depends very much on the attributes of the substance and it depends very very much on the confirmation of the system or if that's rope what you're doing is you're protecting what way isn't that the correct construction because it would literally erase the distinction between the two things and as both doctors we will and dr cullen more relevant to th inquiry has talked about you know they're basically night and day if you think of you know similar to the coffee cup if you think of the space shuttle you want to shield the heat as they reenter the  atmosphere you want to protect what's inside you don't care about the heat source you want to protect what's in there whereas if you want to dissipate heat you actually are concerned about the heat source you want to take that he didn't and move it so completely different you would need to make sure that you had not only a substance but a confirmation that would block the heat such that it's through playing conductivity was really low that it kept the heat outside of the shuttle if you had a substance in a different orientation or dissipate the the practical application of that is all of the institute of bases of obviousness rely upon a core of three publications normally saying five twenty and mercury now because they have have merged the concepts  this a patient and shielding they have considered the normally publication as one directed to shielding and that's simply not the case and you need look no further than the title which is called the development of a natural graphite heat spread broad definition interpret it to be basically a shield and we think that is technically inaccurate when you add mercury the entire device is a shielding device it happens to reference c p a but as used in that publication it too is used as a dissipate or or spread or so we think not only have they combined publications that they would not normally have they have put attributes on these publications that one of ordinary skill in the as well as some information from graph tech and we believe that we showed commercial success by two primary things mr greene concluded that products manufactured and sold by graft act that an able walked through the attributes of the claims and made sure through tear downs that particular products such as an i phone a tablet a laptop cetera literally embodied or satisfied the limitations of the claims and wh correct and also with regard to commercial success it has to be of the patented invention so by definition it must be after issuance of the five twenty patent so we had modern evidence regarding commercial success so modern achieved much higher in plain thermal conductivity so in about two thousand and four two thousand and five we got up to three hundred then we moved to four fifty then were as high as six hundred or so in the products that were referenced in the declaration of mr cramer is modern conductivity somehow someway the born didn't appreciate the distinction in time and they said oh well you're saying three hundred over here but the manual says one forty we're not going to look at any of this at least in the five twenty cases in the eight seven four and four for one case i think there's two things to consider a graph that does not sell and user products so with regard to commercial success we need to look at how much of this material they sell to the people who then sell to apple who then sell to kindle who then make it into the laptops and i think the data is quite substantial on that and this is highlighted at pages forty seven through fifty four of our opening br of the in a way reference would not have been combined with graph will because of some fictitious they made it up five hundred watts for meter kelvin threshold you may remember that so on the one hand we're talking about well you wouldn't combine because and that's wh try to persuade the board that this was you know was an issue and it and they do better job you know but going more specifically to the commercial success argument initially and there's some criticism about whether the board properly addressed the commercial success in the board's decision explicitly the board so they considered all the evidence and it found there was no nexus now you have to realize the context as you could probably get a flavor of it because all fifty pensees are there before you right now you know in one case about five thousand pages another case about six thousand pages any other way out here are i mean the stack of paper on my desk is probably shield or source reference but we have nothing to talk about well this old stuff wasn't available back then it's different in some way shape or form from the prior art that i'm not aware is available all we have all that cited to in the briefing in this in this appeal by terms of what the graph tech threshold means and they meet different statements in a different context and what the board said is were thrown our hands up here you've not met you know we're not we're not giving that persuasive weight because it's contradictory evidence that the more but the but the bottom line is it regardless of the boarded there the when you look at what the commercial success evidence is what is pared down to one appeal or three things number one is the i phone kindle sales et there's lots and lots of heat management advice out there that's that's the key you know i've got a few minutes left in this was more questions i'd like to sort of look at the the only legal issue really in the case which is the claim construction argument from the it's of four and four for one i think counsel has argument exactly backwards if we're talking about graphite works in the incredible heat of an industrial application then i that's almost a teaching towards using that in the lower heat of another trying to devise you get normally saying maybe the same specific property that only gets activated and the high heat there is not there is not it's the same stuff there's actually no property of c previous changes no point has craft had ever alleged that the claims of the five twenty patents or any of the three pence required require a particular thermal conductivity i think it was just mentioned that somehow we've made an argument conductivity i do not think that we created this confusion we made very clear that when deciding obviousness you must go back in time to before the invention so locked in time before february twenty five two thousand so any consideration of modern evidence is improper also i think the board pulled in the invention itself when the making the decision and that too was under the case law with regard to commercial success like to mention a few things  at times it's been indicated that the nexus has not been shown i think if we look at the record and we were focused perhaps for having a luminous record that we considered important to be  commercial success it by itself is not evidence and we appreciate that but it sets forth how each of the three claims that the claims of those patents are embodied in particular devices and so i think the nexus has been shown because our experts have walked through gone through the tear downs and shown that these products embody or practice the claimed invention that nexus was shown and we have shown in our brief the sell to the vendors but the products that the vendor sells anything under the case law that shifted the burden to later and the demarco piece on page thirteen ninety three says once you've set that forth the burden of coming forward with evidence and rebuttal shift such a way as to satisfy the limitations of those claims so we believe once the nexus has been established you shift the burden and it could be due to marketing it could be due to advertising it could be due due to all sorts of things but they say in that case it's the challenger's burden to show that that was what was responsible now if you look at the report of dr feinberg advanced by later he does not have an opinion on these issues he simply took issue with this with what mr green did he didn't like his methodology or exactly how he went about it but he admitted in essential when deciding these matters we have to go back to before the invention i think we have to let the specifications control and make sure that we don't get too divorced from the specification and i think we really have to make a argument and credible evidence of re