board having already found on the exact same record that the child reference includes all of what's required by claim one in the th six a patent meaning the just merely an undecided element and therefore should not be included in the calculation i believe that those issues are identical in the cases so the question is is there an anticipating reference that has a component that qualifies as the claim to seeing and that meets the dimensional limitations as i just indicated the answer is yes the board already found that in the companion i p r case in this case however the board failed to analyze whether this was so it failed to analyze whether the heat sink formed by the trim twelve which is the spreader and the flange twenty two meets the limitations of what's required in the claim just as a housekeeping question what is the status of that other p r in which the board read the different claim construction in fact finding i'm sorry your hon to the fact that in the other case it was obvious innes and in this case it is anticipation but that would only matter if there was an issue with enablement of our prior art reference check out here there is no enablement in the other i p r and in this case the disclosure of chalo is completely enabled there's not a question about it the cases where that issue has arisen your honor is where the of the party challenging the patent has in the court's words tried to tear the invention apart or rearrange all of the claims in order to try to squeeze it into something that makes sense that's not a big issue here and that's why the board's findings in this case should have matched identically with the board's findings in the other big case because all we're looking at with this question is what does the prior art disclose it's the same and not disappearing all of that by relying solely on outer fringe damage could you speak to that argument certainly so if we look at the language of the claims which i think is what we have to start with it does not require that there be keep sinking completely of all the heat within the device what it claims is a heat sink that has particular characteristics meaning that it is substantially ring shaped and located at the outer periphery and when you're using the height diameter ratio calculation it is that he's saying it refers to the antecedent basis of what appears clearly or in the claim for which it sink matters the fact that there are that there is more than one heat sink in chalo is irrelevant to the court's analysis because for one thing the claim begins it's an apparatus claim and it claims a luminaire comprising and as this court has held that means that there may be additional elements so the operability of the functionality is not a issue and i would further add that the claim itself says nothing about particular performance such as how much heat has to be dissipated both the board  itself found that there is more than one heat sink and we don't disagree with that and the reference itself refers to more than one heat sink it has the different elements it says that the heat sink on which were  the outer flange twenty two dollars actually dissipates the majority of the heat it continues and i can give references if the court would like to where it refers to these as separate elements it does this in numerous  instances and i would also add that the apple leaves have acknowledged that the heat sink at issue does not have to dissipate all of the heat runners may recall this phrase in their brief heat sink fourteen which is this on recited element on which they are relying entirely to defeat anticipation is a heat sink under any definition and of course the reference itself says that that element dissipates no more the outer flange and as chao describes it that is outside of the housing due terms says that that's also something that i think it says thirty some percent of the heat goes through that risk i believe it's the other way around  is the heat sink and that is the only heat saying that meets the other required limitations for this particular claim that we're focusing on because that is the only heat sink that is a ring shaped and located at the outer the limitations as we do in chalo meeting what's required by that claim that and the addition of other elements is not relevant to the court's analysis that is of course what the board itself found precisely in the companion if we were to agree with you we have some because well your honor we believe that on this particular point meaning that it ha already been established that the heat sink of claim wind is met by child's planned twenty two dollars that should result in a reversal we understand that because well with respect to all the claims your honor because the board found as a as its conclusion only this one issue that we believe has been firmly established was correct in the other  yes once the court reversed on this point we don't think that having the board already decide this factual issue correctly and the only way that supported by the record that the board needs to or should it go back and review that we think the record establishes what the correct decision is and that the board actually reached that precise decision in the other case so claimed to it would be a total reversal claim is gone ok i would like to demonstrate to you why no reversal or remained is warranted at all here particularly because the board's decision is a core absolute fact finding  question of anticipation from the perspective of whether it puts in fact the fact finding is what is the heat seemed in ship that's the fact that there is a requirement of a heat sink the question is what is that heat sink and the board seventeen of the statement is in this case the arrangement of heat sinking elm bottom of a seventeen it is about the middle your honor in this case the arrangement of heat seeking elements to slows down to include both trim twelve and he some fourteen and if you look at the pending sixteen the board one because one of the ordinary still in the art would have understood that the keep saint of shoes wouldn't compass both the truck wallop and that he had seen fourteen and this is the poor fact finding issue that was before d the board what is it you're also claim construction issue separate requirement of the costs and so i just want to touch on that for a minute let's assume for the moment that you did not have the ring at all and it only had a bigger version of heat sink fourteen ok for the moment we would all agree claim limitations because there are further requirements on that i agree with that's correct what is there because i get well that gets me very far your honor which is that the issue of what should we consider as the heat sink is not answered by whether it's and i guess that's my question why is it wrong for me to think that cho discloses to keep saying one being out of financial twenty two and the nd one being he'd single fourteen and  the remaining thirty five percent he just disappeared by heat sink fourteen so why is it wrong to for me to thing shows talking about to heat sinks instead of it has to be considered and  opinion judge chad as happy as everyone on this panel and anyone in the room and i will address it based on the reference why i think it's factually incorrect based on what she will tell futurists but we can all have differences of opinion about what the priority  substantial evidence tells us that if two inconsistent conclusions can be drawn the boards conclusion cannot be reversed on that basis now i'd like to talk about why in fact the board's decision is not only supported by substantial evidence but correct heat sink fourteen and when dirty the heat is dissipated from the trim twelve the mean all of this to me rather clearly suggests by having two different reference elements two different numbers for the us term not considering the same  map this onto the climbing stairs where the roof is that has this characteristic there's nothing in it comprise importance as you can't have something else and i agree with that except i don't think that it takes them where they need to go explore a little bit the premise of your argument that what they are them lying on needs to be enabling i mean i'm not sure what you mean and i'm not sure where your authority lives are just let me let me break it down in the because at the end of the day d the question is what is the structure in the prior art that is adequately dissipating heat to enable that prior art reference for what it is and for what it needs to be to meet the claims so that we can call that the skeletal what it was describing and there was therefore a argument over well looking at that skeletal press release would want to kill me are really know how to make this particular invention and so that was the debate here there's no debate that i'm aware of that that show if i'm reading joe one wouldn't be unable on the how to make the device being disclosed in general what i think you're trying to do is say well just those particular pieces that petitioners were lying on to match up and mapped onto the claimed invention those individual subset of pieces of the cho contraption itself has to be enabling and i don't think that's what most of stands for and i don't know any case law that stands for that when it comes to an anticipation analysis and i think your honor that the the requirement that the anticipatory reference be enabled for what it is being relied upon to meet the queen limitations is the case law that supports your position and i'd like to demonstrate it in the following way i know this is not the exact facts and i'm going to come back to the exact facts but i want to start with a hypothetical suppose that the outer flange only dissipated three percent of the heat not sixty five percent right and it's still a separate element called out of four hundred and twenty two dollars if we were evaluating what whether that's an adequate sink to be all by itself the heat sink we would have a problem there because it's only dissipating three percent that's not enough heat to be that heats and here's my here's my concern if this claim said a heat sink that sinks all of the heat that dissipates all of the heat for this room and there now what you're talking about would be highly relevant but that's not what the claims of the claim says a a device that dissipates heat yes everybody knows that everybody agrees with that the reference itself says it dissipates sixty five percent of its heat that's being produced by l e d s so this is the concern i have with argument system of shoot what we end up with is an operating temperature that goes d above the operating limit of the product leaving the product not enable and now we come to one of the three issues that we have in the other eye care proceeding where the board found that shoop is an adequate base on the plan should get to that it sounds like dr brush under his statement is premised on the view that whatever we're going to refer to range to the claimed he sink has to accomplish all of the heat sinking of the luminary and chu or at least a sufficient amount of it such that the chu luminaire works for its intended purpose and that is focus this discussion alternately what we have is an invention that is designed toward bringing down the dimensions of this type of a product and making it so that it's more compact and more low profile chew has a great big heat sink it's the old way of doing things to take chu and figure out a way to bring those dimensions down it requires technical innovation that's what this patent is about isn't the nd heat sink into element fourteen it's in the figures is low profile not only from the perspective of what comes outside but also what goes into the can because there are situations where not all of the chance to accommodate that type of depth and where it's not technically advantage is to have such a large heat sink and so d what they want to do is they want to ignore the existence of the heat sink by not reading the claim onto it with respect to chew and i understand that i'm very familiar with their instruments  i think i can be very brief on this because the court had peers already be recognizing that the claims that the issue here do not require heat dissipation are occurring solely through a show that there is more than one heat sink i would like to actually take a step back and indicate that the board's decision itself also recognizes that in this case of course we know in the other case and i only recognized this they found it for its decision that tew has more than one heap saying that even in this case the board found that trim twelve and heat sink fourteen are separate elements with separately and  sinking elements disclosed into includes both trim twelve and he saying corteen it then seem to have overlooked what that means but the point of to having more than one heat but also to goes on to say that trim twelve and flange generally dissipate more heat than from the light source then heat sink fourteen so it's actually setting up the comparison of it's two different keeps things we think there's no question but there is more than one heat sink into we think the board referred to that in its decision but then took it to the wrong decision and to answer judge stolz question about claim construction we didn't think it was a claim construction issue at the beginning because the language of the claim was so clear as to what the heat sink that gets included in the required limitation must be but we do believe that the apple leaves making this a question about whether that heat sink is a huge sink system or whether it has to heat sink all the heat coming off the structures could be considered a claim construction issue by this court