the board in this case adopted an unreasonably broad construction turning to non record evidence extrinsic evidence rather than turning to what and how the inventor described the invention of the specification as this court judge laurie noted in recent international just about a month got number two the combination of ha and karoly failed to disclose two important structural electrical limitations of the two seven one patent and such that there was an absence of substantial evidence to support a finding of august the product this issue in this case involves cables it is a  controlled right it does it said specifically states and were describing its environment that once the power is important the ac power is input each of the filaments are activated and it describes that specifically that driver whereas claims for environments with its two four six seven and eight talk about segment by segment lighting it describes the specific lighting a fact that m seven require the structural elements in terms of a rating of brass and interesting here in italy in sequence and the driver emitting light within that sequence and it's also called the currency of cable specifically as it relates to this court's decision in respect international it would be error to adopt a construction that is contrary to the the embodiments as well as the description of the invention with that whether we whether there is still sufficient evidence and the obviousness determination and i want to go back to your statement that at use that that he doesn't dispose they don't is because ha as you pointed out judge has control programmable elements that are tied to each color in her there is no real need to control where the filaments sit with in the helix because they know where it is by virtue of its color verses and this is important to ha these at any one point if you are trying to fire sequence one you know where that fellow is within the helix and that was important in order to  put controllable elements on the end and control the collar regardless of where they sit with and he looks where as mr yen specifically required order to produce is effect you have to put them in a particular order you have to raise them abreast and maintain that quarter throughout the helix and order to then emit and die light from one end to the next to produce the effect and heart is not teach that heart is also not teach emitting undying life this is the second part of the non obvious s question the board noted that in order to find the emits and dyes element they were simply going to rely upon the person of ordinary skill in the art ability to essentially tasks and come up with that particular sequence in and coming in arriving to the two seven one patent the board specifically stated that we don't find any evidence that the that ha apple made it clear that we're not going to supply missing elements in the prior our reliance upon a person of ordinary skill in new york to come to those elements and that's exactly what the board did in this instance it identified that hud does not because it doesn't specifically states that when the ac power it is applied to the elements they are charged there's no discussion in place and about turning them off and there certainly isn't  a reference in heart about turning them off in a particular sequence that would leverage both darkness and light in order to produce a fact and that's exactly what yen is attempting to do he's using as much  including rebuttal yes i understand that you're out of the the construction that the board adopted in this case was based upon non record evidence it turned to a dictionary definition for miriam webster that wasn't offered by either side wasn't proposed by the board and it didn't appear in the record until after the close of trial that is a violation of my client's to process rights the actual construction of the adopted requires continuous light admission or light admission in a connected the across appeal my fine doesn't take a particular position of the position is that ground one was deferred by the board in its final written opinion in a written opinion as to ground one of this point would be time barred you don't take any other position thank your honour's good morning of may it please the court there are two principle issues that i would like to address today the first is claim construction and the second is the cross appeal and if i may i'd like to start with the use of plain construction the board's construction is consistent with the patent specification if you look at column one of the patent go down to lines sixty three through sixty seven the patent he plainly states that emitting light of the present invention can be in a variety y disclose is turning the electronic election luminescent filaments on or off you can see that the pages fifteen and sixteen of the board's final written decision where at the bottom of page fifteen the board notes have an owner's property declarant dr robert two a very testifies that even blending to achieve a color such as purple would require turning the electra woman doesn't filaments on or off to achieve colors then at the top of page sixteen at first full paragraph the board states accordingly we find that hey teachers are at least suggests the programmable electronic elements the driver control each electro luminescent filament respectively by controlling color saturation and helix element to it it's it's not doesn't operate in the same way well your honor i think that you went to exactly to the right spot and pointing to the disclosure within the talks about hugh likely twisting the elect around a central axis within the two seven nine pattern and the order construed he looked leaner twisted in its decision an institution to just say that that means twisted together teachers or suggest a locked room in essen filaments that are twisted together that was a board finding that needs to be reviewed for substantial evidence and while an initial take on this evidence may come up to a different conclusion that's not the standard that we're on today the standard we're on is whether there are substantial evidence in the record to support that finding and there is now when one pair is that with additional disclosure that you can control the color and brightness of this election woman s and cable by emitting light in sequence that that it is it is designed to create a the light walking along the corridor so in other words you've got to have the aid on and off occurring the purpose of this patent is stated in the patent itself when it describes the purpose of the invention the purpose is to provide a current scene cable that can show the live state one way in which the patentee said that you can show the current being seen is to shell flow but current seen as not current flow there are other ways to indicate that currents of sin the cable such that it should be seen and that is what the patentee is talking about at the bottom of column one in saying that you can achieve this lighting you can achieve the purpose of our invention in a variety of forms one way that we particularly show it is with a lighting dynamic phenomenon in which a lighting session goes after another section the patentee reiterates that disclosed within the context of that for example you could have the chords lighting up one to three then turning off one two three again they're giving off or throwing off light in a continuous or connected series they would also be moving in a claimed as a plurality of electoral and s in courts in that case you could have courts one through three turning on that off course for through six turning on and off occurred seven through nine turning on and then off and in that case you would be showing current flow again but they'll actually be outside the scope of the patent owners proper construction it if all three are lighting up you can't tell which way the currents flowing thank you note the whole point you can because one through three turn effect would be yet another limitation that would need to be imported into these claims because as it stands right now the claims say in sequence they don't say that it has to be one after the other they don't have said it has to be on or off they also don't say how quickly they have to emit in sequence how quickly they have to go on and off in order to create a kind of current flow effect again that only comes from a single preferred embodiment that comes from embodiment number one where the  patentee is stating you would turn these on one on one off two on two or three on three off in the whole series would take between point to point nine seconds and then you would do it over again but that's not within the scope of the plans that's not the claim to talk about because current flow is not a limitation the patent owner repeatedly suggests that current flow is a limitation but it's not the patent owner argued at oral argument that the current flow requirement comes from current scene which is in the preamble term that was not construed at all because a construction is not requested and we can't package it in to the image in sequence limitation now because that was a request as part of the construction either so current flow may be something actually are on or when the board reached its construction for this claim term it initially went through all of the arguments that had owner has raised here combed through the intrinsic record looked at the arguments about the embodiments being the same and rejected those arguments it relied exclusively on the intrinsic record to determine that the plane an ordinary meaning should apply not the specialized meaning that patent was probably  board indicated that this is what the arguments are what was countered and said we declined to adopt a pet known as proposed claim construction if it agreed that the there was not disclaimer that those involved in this were not the same and have stated that it needed to maybe step back your honor it disagreed with the assertion that the specification supports the proposed interpretation that is a page nine then address the disclaimer argument at page ten stating that we agree with petitioner that the statements in the response to the office of action do not disclaim subject matter and then the board concluded that in light of its analysis of these arguments the claim term should be interpreted given their  and we have said repeatedly that that's not the way it's supposed to work i'm supposed to do claim construction according to all the various steps and analyses forget about i mean yes you can do the overlay of b r i but you still have to go through the  analysis that's laid out in philip's right in the court did that the court review the specification and review the arguments from the patent owner in terms of whether there was a definition of disclaimer determined that there was not clear and unequivocal definition  disclaimer that should lead the board away from the plane in order meaning of those terms having decided the plain ordinary meaning should apply the bor then consult a dictionary definition and very quickly because i see that my time is running out there is not a due process concern here the this issue was front and center during the entire proceeding it was raised in the past known as argument and in reply the board to question the parties thoroughly on this specific instruction and there was no effort to ask is doing is just disagreeing with what the construction actually yes and the fact that a dictionary was used in the course of arriving at this construction is not something for this court to be concerned about either in the sas case this court considered an issue of claim construction  one of which raised the very concerns that the path owner has here under the administrative procedures act was the patent given notice an opportunity to be heard this court determined that the pattern owner had not been given such an opportunity because the board issued one can't claim construction and institution but then changed that construction it's not right decision now in that same opinion the board can that this court considered a separate construction and affirmed it where the board had considered to dictionary definitions one of which was in the record one of which was not so in a case where the a p a issues were front and center this court decided that the fact that one construction was not of the record was not such a concern that  three a line actually states emitting light of the president mentioned can be in a variety of forms is particularly shown as a lighting dynamic phenomenon in which a lighting section goes after another lighting section next to it lighting dot of said cable goes after section if the patent owner very clearly connected the section by section transmission of light with the structural electrical sequencing that is claimed the construction entered by the board of continuous or connected series simply doesn't make sense in the context of appliance the claims claim one the actual claim term appears at the very and the limitation that we're talking about and it says every not that the entire table is always continuously emitting light from a variety of things so that the limitation specifically directed towards each filament not all the so continuously connected series makes no sense when it ties