totally different reference that that seems to satisfy those two requirements don't you well we do have the coburn reference and that reference of does seem to satisfy at least the enclosed requirement but once again you have the motivation to two to six patent there's certainly no question that the boards of terminations turned on what it means for a fiberoptic model and its determination that quote a model is a structure of compassing enclosed or an enclosed fiber optic adapters  connectors and we think that that is inconsistent with the ordinary meaning of what a module is we think it's inconsistent with the consistent description in the specification every example in every embodiment across all three patents talks about a fiber optic component  installable well i still want to make sure i understand what the claim construction arguments relate to so it doesn't seem they relate to the one for a day even based on the way you do your own briefing but putting that one aside the board specifically found that it it does not apply to the nine hundred and thirty eight either that in other words nothing about what a module is or isn't actually is cla and we said that that and uses the term fiberoptic model to describe a modular cassette within a housing that components that are disposed through the walls can extend into the interior of the housing we had an entire plant construction argument on this we gave the board a definition the board decided that it wasn't a limitation of the claims which we think is a rony s but it isn't that we didn't present the issue to the board on the same is true for the other two patents you know at appendix eight hundred and thirteen dollars we offer our construction for the one two separate requirements and if i win on either one that gets me at least every man to the board on all three so for the fully enclosed requirement once again you have fifty figures in the specification across these three patents and there are different specifications that show it in every instance is fully enclosed and that's not a coincidence your honor if you look at it if you look at a pending column to line six to ten of the one for a patent and columns to line seven to ten of the two to six patent they talk about how one of the advantages of the bet of the invention is it makes it easier to route the connectors and the jumpers through the equipment well handle it itself has admitted that fully enclosed models are what make that possible in the one for a patent i p r for example it told the board that the reason a skilled artisan would have fully in case you're hostile sections was to reduce clutter and that's exactly why all of the modules here need to be fully enclosed provide that meet routing an organization that the pattern talks about is one of its advantages and you can also see that in the prosecution history in appendix one thousand two hundred and forty four there in the prosecution history the board is talking about how we talk with the examiner about how it is housing what exactly does it take to be housing them and we did say that at least in the abstract the housing could have maybe only two walls or maybe just three that it didn't necessarily have to be so on your plea r i where do we get fully enclosed i what i think that number one we were saying that statement was just in the abstract not in the context of the specification of these patents so i think that you get it from the specification of the pads but if your but if you think that that the broadest reasonable interpretation of a model that only has two wives that and i'll be frank upfront that neither of them use the exact word fully enclosed are number one to look at all the figures of the consistent usage with discordance and done in the past to look at and say well that wasn't that you know when there's all these consistent examples that's a strong indication that the claims don't cover something that does not have that property and then i think that you look at column two lines six to ten of the one for a patent and those exact same language call into seven to ten of the one for a patent where the correct that is nowhere in the patent is there a page the civic definition by the patent i completely agree judge they get there is no specific definition in the specification of the long term sure i'd think that is exactly right but as this court has said in the cases that i won't repeat to you again that doesn't have to be an explicit definition in the patent if you look at the specification and understand what is being claimed by the description that is in the specification that i feel the court doesn't have any other questions about claim construction i do want to turn just really briefly to the secondary considerations analysis and when we get to the secondary considerations analysis the board just wrote off that commercial success evidence according presented is relatively weak based on a small factor test the discords rejected in cases like continental can p p c broadband w b ip you know they didn't walk through any of the evidence it just said well you board to do this to do the proper analysis and to do so again here where the where the evidence is clear that the primary driving feature of this product the reason the customers were clamoring for it was because of the patented technology that's undisputed functionality you know he says that you know the massive spike in sales were decks all the customers demand for the increased efficiency stemming from the system of independent movable and install the doors of be removed and installed from the rear i see them into my record that it's actually had sometimes hard to understand what is being argued by corning and what isn't being argued but one thing we know from their opening brief is that they did not argue that claim construction impacts that one for a time so that pattern is off the table they mention the two  they mention the one hundred and thirty eight and with if you look at them section one b of their opening brief then they try to resuscitate that in their reply brief and that's too late so that one is off the table with respect to the issue of fully enclosed they never has as opposing counsel conceded they really never argued this fully enclosed they were argued very and excuse me various variants of enclosed or housing or other things that never fully enclosed and in fact the board really kind of called them out on that the oral hearing the two to six and  an eight to fifty three to five for that well how many walls enough and then they said well at least two walls so there are in all sorts here that relates to whether it's removable right that has do with the enclosed issue i  point for the legal strategy what i'm saying is that in the patent that i mean because i do have a hard time with your removable argument because what it says it can be removed if desired because that doesn't say making it removable is optional if it wasn't removable you couldn't remove it if your desired to remove it so does the point that there has to be some point of housing some form of housing they go hand in hand with the question of whether it's removal i don't necessarily so in a case like that the fiber optic module isn't a positive but is a positively recited the trade is and so that limitation isn't doing work and that's what the board was getting at and that's why it was citing that case law relating to positive limitations the same exact reason fiber optic module so we sort of own it it seems that you asian which is like the trade configured to receive it's not that limited it's not that term that's doing the work it's the trade that's doing the work and there's no basis for them to then construe that particular time as they've demanded it just requires a module but is there anything and is there anything it's mirror that shows that that there is anything that even that could fit into the trays that could fit into the trays i mean in other words have if what you're saying is you need a tray configured to accept a fiberoptic roger law and then you describe how that tray works is there anything in smear that that would satisfy those requirements well w can slide in and we can also remove it with very little force because the patent talks about how flexible that is with respect to the fully enclosed limitations that they want to import if you look at a fifty three thousand six hundred and thirty seven with dutch did you say that shows that he drew a red line around figure nine and showed how there is an inside which also says satisfies that fully enclosed as they redid so really under either constructions just doesn't matter so we have positive positive limitation you can check off those two pounds as not mattering and then you can also check them off because we went under under the in their construction so why if it was so fun important to the board they bother to construe the term so i think what they're trying to get across is that there just isn't a basis for them to be arguing to importance claim limitations and i'd like to get to both of your questions to my opposing counsel on that point so st of all i think we can all agree that there's no trace of this child of either fully enclosed or  other type of fiber optic modules or fiber optic operetta says including those those that support fiber optic connections so that is a very broad way of looking at what a fiber optic module is i think technically unfortunately they didn't claim it i think that unfortunately they didn't define it but nevertheless it looks to me like remove ability is in there is somewhere in that whole concept isn't it well i think it was intentional or they didn't defin because they didn't claim that because they wanted to have very broad claims and now they're backtracking and saying whoa wait a nd we've got bang on pieces of prior art we want to get around them and so i think that's really what the issue was they wanted to claim this very broadly otherwise they would have put the sentence and column five in the pa is that the broadest reason that turkey taishan which is what we apply here in this case would include the dictionary definition for a module which is defined by the merriam webster's dictionary as quote any in a series of standardized units are used together that's about this we have to remember that we are controlled by your eye here and so if there's any doubt on this point we should apply that standard and we do have a reasonable basis for doing that as did the board which is the support here in the specification the cla themselves which we also have to look at because we're not supposed to be importing limitations into the spec and then thirdly the prosecution history so we have three different types of intrinsic evidence that amply support what the board did which was not read these limitations into the cla before you're done let's talk about that objective in disha i mean there certainly was some language in the board of opinion that that you know has to give you pause like well it's ok because that obviousness was strong so therefore we can just discount this that seems like doing exactly what we've said repeatedly you're not supposed to do so maybe we could just look at the at the at the boards and you just for a nd we walked through it so in the opening pages of the of the board decision relating to secondary considerations i'm around a sixty seven st the board talks about how important secondary considerations are so it did not give the short trip to follow this court's guidance on how important they are for example the court says on the aware of the importance of this so then if we turn to what the board actually did with respect to commercial success of the st thing it did on the bottom of page sixty eight was it said that the  anyway right and so i think what the lord the board could have said with a little more clarity here was that we didn't rebut the fact that yes they did the exercise of checking off each claim limitation and finding it on the edge product that we did not robot so that's what the board is referring to here because later we certainly did present rebuttal evidence on the issue of commercial success and in fact i'll give you the  for the commercial success having police said expressed glee that it doesn't have to be this sole factor one hundred percent your honor but it doesn't have to be the sole factor but you can take into account the fact that it's only partially responsible that may diminish weight and that's what the board did here or expressly say that we've given very little away because that's not the sole fact and it was entitled to do that because mr kelly said there are at least ten reasons why this device was commercially successful that's from his deposition testimony that he said said it doesn't have to be it's in say was because it wasn't that so what connel can said was you can't disregard completely evidence of commercial success just because it's partially responsible for the commercial success of those claim features that's what the board with responsible for the success you can't just completely disregard it and that's exactly what the board did here was not completely disregarded it took into account and said it wasn't worth much and then later it said it looked at all of the secondary considerations and included look you've got a very where panda would have self acknowledge that our claim construction quote necessarily requires an enclosed housing so everyone understood below we were arguing about an enclosed turning to remove ability you know i think you're exactly right joe malley that you broadest reasonable interpretation in light of the specification now there was also some language from the column five that my colleague on the other side discussed and said that it was definitional language that undercut us but if you look at the next two sentences below that and we're looking at column five you know roughly lines fifty two to sixty one you know it says right after the language he quoted that all the fiberoptic models and the equipment is our rear install and then in the very next sentence says e turning to turning to secondary considerations what the board did here is exactly what this court has reversed in cases like w b ip and polaris and p p c broadband judge learned to your point about the language they used they used very similarly the board used very similar language in those three cases in this court still said that it needed to be remanded and they needed to do the proper analysis and show that it was actually considering a secondary considerations and not just writing  off because of a belief that it had to be the sole factor and therefore the evidence wasn't rebutted here now i think that you have to remain and anyway because the board in gauging any of the analysis that he was talking about about these factual findings that's part of the problem and sixty nine where customers were quote clamoring for the technology this is not a case where the evidence was given little weight and the board properly looked at it said old a host of factors were out there and we could tell it all these other things what really mattered not t