going to talk about each of those three today which are the scoring depth of the board whether averaging should be used and the conversion method of the board take this and hopefully with the time today i'll be able to show that each of these allege uncertainties is addressed with reasonable certainty in the patent and more than sufficient to show that the patent has not indefinite so i'll start with the st issue which is the district court finding the claim  scored board certainty came to the district court with an expert with miller to say death matters the problem with their argument is the claim answers this question the plain language of the claim says the score claim says to score the outer clad paper clad surface and certain teams expert at page six hundred and sixty six dollars of the appendix even acknowledges what scored meets in means cutting through the paper to put it in context the weights in your view you don't have to cut into the jimson at all that's correct and that's the way the gypsum boards work the gypsy itself is a relatively fragile structure if it is not supported by the laminated outside taking the knife and scoring to cut through the out of pads of paper clad surface once the paper clad surface has been scored the board is capable of being snapped and if you look at the the results even under miller's when they're actually average number come back to averaging in just a nd where they're actually averaged they're all in the same general range the whole purpose of the invention was to have to explain to explain how it is that the board should have enough stability to be transported which is how inherent property of your claim of having a certain strength about the strength once the uber score yes your honor the strength value was inserted into the coins during the prosecution process to overcome some objections sorry but going for infringement purposes are new ceiling people that make the boards or are you suing the people after the somebody later on down the line scores the board it's the people that make the order on their mak multiple points in your question is as i think you know the problem the fundamental problem and i am and talk about the averaging in his results in the conversion method but the fundamental proper problem is we have the classic case of a party bringing in an expert great miller agrees with that the nd issue gets to averaging and this is where your honour's question comes up which the results if you look at his data plots he plotted every data point with no averaging well that recognizes that there are uncertain es in the process in the manufacturing there could be different strengths of the board there could be differences in how someone cuts a board and that can result of the differences in how you run the test ye the scoreline is always down so you run the four results face up face down parallel park and tickler which always scored the bottom of the board with the load coming on the test tells us to run four methods the four hundred and seventy three dollars standard itself says to test multiple boards which miller did but here's what he didn't do the other part of what the four hundred and seventy three dollars standard tells us to do which is average the results so this is on page seven a one of the appendix it's on the about half way down on the left side of the four hundred and seventy three standard when you use multiple boards it tells you to average the results now as the four hundred and seventy three standard says back to the problem of four versus one which is important as well what it says is when you have the multiple specimens the multiple boards you average the results so the perpendicular face up version if you test three boards you average the results that's what and seventy three dollars tells us to do so you get from running the test a matter how many boards you run you get for result miller didn't do that he didn't average anything ok so that's the st problem with his data points everywhere he never average the results from the multiple boards or anything he did average on point five millimeter pair of things up or yes because he has data points or literally plotting each number he got as opposed to averaging the multiple boards which the specification tells us to do but also then are you saying that this page of the drawing appendix is telling you to not only after image has the values next step of the analysis which the specification tells us look to the standard for how to do the test it results in four values no matter how many words were used for values averaged a beach for method then you look at the numbers one for perpendicular face up one for perpendicular face down one parallel face up one parallel of a staff to give the right or numbers we have over number or numbers and which one of those four numbers represent the twenty four point one for each one i don't know the answer to that question your honor it's not disclosed in the specification but what is disclosed is we have four numbers from the test method for numbers reported in the specification that are then averaged it's also a figure three figure for column six uses the word average talking about flexeril strength three different times that's how the disclosure is being make it is being made that this is an average there's nothing to tested for the squared actual string this was a new the new method that had to be used for this particular product which is why it's defined as to how you doing i was asking this with anybody who were tested i think the answer would be said you put the paper that's it once the paper's been taught any difference in depth according to miller just makes it easier to break well the whole purpose of this is to make a board that easy to break once it's scored your honour's before i run out of time i do need to talk about your in you per half inch that this that word kirk is getting overlooked in the briefing per according to black's law dictionary webster's random house means for each year for every if you go fifty five miles an hour you've gone fifty five miles per hour it's fifty miles per hour each hour so the same thing perhaps that miss they're ignoring this standard the plain language tells us it's a linear conversion the other problem miller has he's trying to make this a square inch pounds per square inch conversion there's nothing in any of the documents the patent claims that talks about a square and it's an inch of thickness he's trying to change the patent language by using expert testimony and from this court's precedent that's not appropriate thank you  reviewed for clear air and each of which is supported by dr miller's extensive testimony and test results st judge poe correctly concluded as a factual matter that scored flexible strength can be measured multiple ways strength scoring generally means cutting a groove with a sharp instrument but when you put scoring and scored in the context of this new coin term scored flexeril strength then you need to know how deep you measure to show all the different factors that would impact store that and how scoring can vary from installer to install or in time of day and all the different ways you can do it and that's in the joint appendix a page a nineteen through a twenty one particular but that's not correct the plain language does not any way limit the score death in fact as a practical matter when you're scoring gypsum board it's impossible to just cut through the paper you can't just cut through the paper and not cut into the gypsum because of how they were created great ship some as you lay down a piece of paper then this goes down a conveyor belt the slurry is laid over the top and then a nd piece of paper is put on the time and that paper and that slurry it here to each other and they become part of one bore so it's impossible to just cut through that's why dr miller did his test results in terms of point fifty one fifty two point five because you can't just cut through the paper and that might very bored to board it might very part of the board from a different part of the board after the paper since work all the term after means is at the time following any time after the filing i said what am i going to do after this hearing i could refer to walking back to my office it could refer to lunch but there's no limit  how deep to score because this is a coin toss the test that didn't exist before this patent and the results of how deep the score directly impact whether somebody might satisfy this claim limitation that's why judge correctly determine is a factual matter the strength needed to snap a panel that's not was that issue here remember we're not talking about the strength needed to snap a panel we're talking about a term that was coined in this patent score flexeril strength and whether that term scored flexeril strength is about claim in fact not only is there no support for averaging the claim there's no support for averaging in pacific coast on construction of these terms or in pacific coast as experts discussion of these terms if you look at their brief page twenty four dollars they provide their construction of these terms they never mention averages and if it's not my claim and if it's not in their construction that's conclusive this matter is it in the a s t m standard where you five any number of boards then you sample to take four samples from each port to parallel to perpendicular and then at eleven seven after you've taken those measurements how you report it is you average the like with perpendicular face up and that's common sense too because if i was going to take the average height of a building in washington d c and i determine it's fourteen stories and i figure that out in feet that number makes sense that's a meaningful number of what the average height of a building  c but i wouldn't average the average height of a building in d c with the average with of a building in d c because when i average height then with now i've got a meeting this number that's like averaging parallel numbers and perpendicular numbers there's no meaningful reason to do that sixty six of the record mr miller was asked so scoring means cutting through the paper his answer yes that's it is all this court's decision is all's important is a situation where some factors good new claim that s been scored if it's cut a little bit further into the board which is likely that doesn't matter how deep doesn't matter then it changes to the strength not materially your honor if you look at the average results for miller because he refused to average it look at the average result from  graph is we kept it separate by depth so you could see the average by depth but even then in our footnote we went ahead an average the whole thing there averages are all within about two point something pounds of what state of the limit he is t m standard that