view was simply saying that one test and we don't disagree that one test to determine the the test the battery is a constant current discharged us and here had the applicant wanted to claim the constant that distinct points one is the time period or the period may not even be measured in time but rather beric that of the past fifty over which the average is measured and the other is the portion of the board's claim constructions that says it needs to i forget the exact language but stay reasonably close to twenty years so that you can get a twenty amp average over the life of the capacity without a lot of which will have a steadier use and since this is supposed to be useful for all of them that seem context brought it's reasonable reading is  specification are a driver kernel and a circular saw and those are used in a memory in the apple has made this argument that the the most demanding power tool is a circular saw but even a circular saw it's unlikely you're going to cut a forty foot forward you're cutting two by fours so maybe it's twenty seconds in the most manning application for for a cart or a piece of plywood again it's fifteen to twenty seconds and then you're picking up the tool you're moving to the next spot and please the court it issued here are three patents that have been through twenty postscript proceedings as well as the district court is a district i remember right i think we got some correspondence in november there was litigation  so we had an expert there dr george washington and in response to the enablement question it was presented in the reexamination proceedings he went through it described what a person of ordinary skill in the art would need to know about this battery pack in order to make it he said there's a couple of fundamental building blocks that you need to know you need to know the size and shape of the cells need to know the chemistry of the cells we also need to know about cap management and other things that allow that  example the seventy millimeters in length that was something that was not known in the r and that was something that was new with this invention a specific size and it's really all the pieces that go together to make that puzzle the work so having a certain and shape a chemistry and then how you arrange them actually in the pack as well to manage the heat and other things because when you're drawing these high currents and with an unknown the size can be eliminated according  i would not say that i would say it was known that you could have different sizes but one of the things that they figured out here was to have additional material added to the cells the saudis to allow it to make the twenty eight limitation that's really the  that this is not about having a battery pack that could deliver twenty amps for a second or two seconds that would be sufficient for use with a handheld power tool it just wouldn't work so they had to come up with a way to make this work where you could get twenty amps from the start to the end of that charge the whole life of the pack getting back to all the different components so you have to have the right size shape sell them the right chemistry and then you have to put it away them together in a way that actually works for this use this use for the handheld power tool so it is really a combination of all those things that went into making this w so i would agree that there was some discussion of that but it's not that alone there was actually all the things that came together the selection of the chemistry the selection of the size and the shape and then how you actually put them together in the pack was what made this thing work and that's why it's ben  is an argument that the board didn't account for the word average average just for fun so i mean i guess what i'm wondering is is it your view that the board actually believes points i think yes the construction of my question yes ok so yes i think that the board likely believes that average is already built into the construction just as the district court did and we had another construction more recently from the most recent trial in wisconsin where the judge went through it explained exactly why this construction does a cult for the average requirement and saying as you look at the construction one way to look at averages just say you know total up a bunch of numbers and then divide by something that's one way but in the context of this patent in this industry it's shown that constant current discharge just so the way that these things are done it when you run it at twenty amps constant current that is the average over the entire pa so that's why i think that and this is what was found in the district court as well as that is not the right way to test for this if you look at the claim it's directed to a battery pack we're talking about the capabilities of a battery pack it says nothing about a tool being required to be attached to it that's one of the problems with the construction offered by the appellant and i think you picked up on it is once you start introducing variables like a tool a specific type of tool you want into all kinds of problems what they put tool or using how are you using it a me like it's a different point to say that when this when the claim says capable of an average at least the broadest reasonable construction doesn't so let me in just that and i think you asked two questions one is about duration and one is about sort of up and down so let me talk about both of those i think i heard you talk about up and down i'm not that worried about the range ok so i'm up and down in this industry with this application it is absolutely the way you test as you know using a consequent discharge test this is about the capability of a battery pack if you look at all the evidence you look at the declaration from the inventor gary meyer he talks about how  that was the question one question is whether there was contrary evidence and the second is what did the board with it with let's start with the first question so in terms of can you run other types of tests with tools sure i mean you could put a battery pack on a tool and run a test of it and i think my colleagues over here will probably stand up and say if you look at the test results if you look at our brief one of the things that our inventors day when they tested a prototype packet was do cutting tests they took a circular saw they hooked a battery back up to  and they ran test to see how many boards can we cut and that's one type of testing that you can do that is not the type of test that folks used to evaluate a battery pack this is the cleanest record to a battery pack and it's about the capability of that pack that's important trying to make sure i understand the claims that correct you keep drawing me back to say well i should in my head translate to you constant continuous over the entire what what i don't know if you know if and it's in the forty six thousand range correct yes what was the number that was forty six thousand and eighty seven background here so what we're doing here is there was a prototype battery pack that malaki was testing and what they did to evaluate whether this could me what they were looking for was they ran tests on it they did see putting tests but importantly they ran constant current pack was disconnected and he says this demonstration of the pack had not been substantially discharged by a constant load of twenty amps or a period of time regardless of voltage cause so what he's saying here is by testing this at a twenty a discharge and then realizing that the voltage collapsed he couldn't continue discharging he knows that this is not working because it's not getting the entire capacity out so when you look at all the description here he talks about the key to this requirement is that you can get twenty amps a constant current over the entire capacity and if you don't get the capacity you're not passing the test so that's the best that i can point you to we don't have a statement i could go back and change the file history i would but we that's the right way to test because cutting things in a lot of variables terms of the tool how you're using it the material you're cutting the blade and everything else only goes from understand what we're talking about say average and ask your colony whether we're evaluate this if you're using different materials or different tools to cut as we have maintained all along the way that you test for meeting this claim requirement is a twenty amp constant current discharge test doesn't doesn't  back to the use of the wood dictionary by the district or why the only power measurement that something is on the phone i don't think so at all i think that shows you that we were in this industry when you talk about things the way you talk about is measuring over the departure from the way the industry talks of that and then we have to figure out whether that departure what to do with the departure to distinguish it from whatever it is the industry is talking about in different terms or t it into what the industry uses different terms to talk about i have to say i don't know if linden anywhere talks about average or doesn't talk whatever i can't answer that affirmatively one where they not have to go back and look at lead in it so average consistent with the term the way the term is used in the industry if you can't even identify a single place where industry uses the term understood and understood that that's so what does the word average  claim here i believe in and i think we also just can't focus on the one term right you've got to consider the limitation as a whole and when you look at the limitation as a whole it means that that path can deliver just like the district court said just like average twenty amps over the capacity i don't think that would change anything here based upon the references i mean if you look at the underlying board decision what they found was this none of the references teach twenty amps over the entire capacity they didn't limited to constant or up and down so if you did were to change that construction i don't think that changed the outcome they also said there is no motivation to combine the references so again regardless of what the construction is i don't think it i think there's two other issues that they raise in their briefs was one was whether the ord properly considered the scope and content of the far right from the perspective of one of ordinary skill in the art and she was whether they required explicit motivation to combine in the references themselves i think the board got it right on both of those points it absolutely considered the scope and content of the car from the perspective of one aboard skill in the art it considered all of the appellant's arguments and statements from its expert it made decisions and credibility determinations between the different experts and there is substantial evidence to support its conclusions on what the product teaches and what it doesn't teach with respect to the motivation of the beinecke of the board absolutely got it right again they didn't ignore the arguments from the appellant they didn't ignore the arguments from  they considered all the arguments and the statements from the expert and again made credibility determinations they credited our expert with his statement as to why one would not be motivated to come by so they were looking for an expressed motivation to combine in the references they specifically said we've looked at the hon but we don't have to care about those anymore i took the lords discussion about no sufficiently proven motivation to combine to fold in the notion of no reasonable expectation of success that is there was at crucial places the board said no relevance to learn this and wouldn't think to do this because they wouldn't think it would work and and i i guess i took that to be rather central to your case in part because i took your secondary consideration evidence to be something like everyone knew what the motivation to combine may be at least somewhat based upon the outcome determination but i don't think entirely i do think when you bring in the three references  goal they just couldn't well i think a couple things their motivation the things that folks were trying to do i thought was just to get more power out of battery power i don't know that everybody was motivated to various different cells and you know i wouldn't get you to twenty so it's a technical problem with the reference of being a liar for trying to make this point i think you are right again on both of those on united was a calculation that was done incorrectly you know the expert there dr abraham really just missed it and in fact when you get down to the end he admitted that he did the calculations wrong and that only combination in the institution  twenty ounce they would have to add other cells or something else i think it just doesn't get you there and you know i and i think here and i'd say tell you right first of all it's a high discharge current there's no indication that you would be able to put those cells together into a ba for would not combination would lead to overheating for example so the board relied heavily on the problem is whatever the articulation of the claims of ring at k were assembled or belts tested and confirmed to meet the twenty amp limitation tests well let me just add if we say there's finding one wouldn't mind and is that fair to say i don't think it's fair to say in the sense that the board the board finding that you wouldn't be motivated to combine your thoughts it was based on a three one two zero five and three one two one six fifty one seven and what he explains there is that when the battery is able to read in between carts it require liberates the batter and it goes into some details about the chemicals in the anode and cathode reducing polarization but what he's saying there is that reduces any of the central overheating so the basis for the board rejecting the combination of for around age thirty one