dispute that in some embodiments at least it can occupy an area that is greater than eighty percent of the board address that in terms of claim differentiation the specification actually addresses that even more clearly by greater than eighty percent of the cross it can and i think the same i can add it in compass of something start with an eighty percent that's right ok so is there anything in the spec that helps us through definition or something else understand what does it mean to be substantially less than all of the cross sectional area what there is trying to understand how do we what would what's your proposed instruction for the word substantially well i think informed it in the first instance by the applications instant instance could you give us an articulation because you know substantially as a classic pledge word and having harland's let's let's not kid ourselves l confess and be honest here so how do we understand for purposes of this case how to construe the word substantially substantially less than all what you have to follow the rule that you do go to the special occasion find out whether it provides guidance to the person of ordinary skill in the arts as they can figure out without undue experimentation exactly where the limits of that limitation fall in this case the specification first says ok we're talking about something that might go over eight percent but some more so i think it's clear from there we're not talking about ninety ninety five ninety eight percent because further writes why not just to play devil's advocate w not i think you get that when you read the application as a whole that it is clear that those would not satisfy the criterion of eliminate clogging around the outer periphery of the damper and then you've got this statement i was just referring to that says somewhat larger than eighty percent may be acceptable in some cases i think that signals pretty clearly to the person of ordinary skill in the are they going bettering very far beyond eighty percent will get you into trouble that the board was without dispute from you and applying a brought us to reasonable interpretation of standard here the whole point of that is to reduce to the extent possible the over deterrence of how a skilled artisan of what a school artist might decide not to do because although i'm not sure of the reading it's reasonable to have to to read it in a certain way and the problem i guess i'm having is i don't see what provides a skilled artis reasonable assurance that anything less than a gap a phrase used twice in the spec once in the summary and then once i think in paragraph twenty one isn't the only reasonable broadest interpretation because anything else is as you just said something a skilled artisan would have to figure out  merely descriptions of what the inventors are touting as the expected beneficial property of the structures defined only by  area i think the problem there is a there were substantially is in the claim so we have substantially less and to deal with we have to go to the specification to find out what that means what we've ended up here  with is with the claim interpretation of says that anything less than one hundred percent is substantially less and that simply reads so naturally i think that's what the examiner said and i'm not sure that's wrong i think the board actually built seems to have built in a pair of functional qualification is that limit that i'm not sure that that's right but that i think the board did not just say any gap they also wanted the skilled artisan to go and figure out whether there was going to be i'm not sure that that clogging erosion piece of the board's paragraph on this is properly belongs to the examiner didn't have that problem this is the examiner said i don't see a stopping point overturned it's right that that the right construction is this but some skilled artisans our competitors or something might reasonably think it's this and therefore not do what's in in that gap and they shouldn't be deterred and furthermore there's no reason to believe that when you carried out such an optimisation fooled whatever this unknown purpose is they would end up anywhere close to a plate that only blocks forty to sixty percent of the conduit now in the is demonstrated in the specifications a description of what the problem is that we're trying to address here with these holes in the damper plate and with the gap around the plate we're we're we're trying to balance the damping capability which in this case is not to shut off a stove pipe or open a stove pipe it is to balance fuel flow between multiple conduit sort of they're supplying a burner that's described in a specification we're trying to balance and you also acknowledge that people of his skill in the art would understand and appreciate the degree of flow dampening effect you would have in the car and do it based on the relative size of the plate and the amount of air that you permit to actually flow through folk pass the plate so on that ground what we have here is something that's called a result like the variable and therefore under the la need to show critical and you need to show critical results when the prior conditions the partner feels general conditions that are spread that are century the same as what you're talking about in your claim and in particular with ranges where you have overlapping inviting the court's attention to page thirty three of the record on those percentages some thirty three seventy six percent that goes to claim three less than about eighty percent that goes to claim three d claimed one which is very broad with the broad term substantially i get the other side saying that those examples underscore that what substantially less than are means or should be understood to mean something far less than one hundred percent something much closer to the examples that are provided for drawing a fifty to eighty percent  respectfully no your honor because the board did a claim construction using applicant specification paragraph twenty one in a specification in particular that just said the  variety of particles have to get through a gap and these pulverized particles are really small and redfield has to gaps and miller teaches multiple holes so you have pulverized particles going at the plate and if you look at it on page seven of our regularly read field is depicted there and has to gaps board said an insubstantial amount of flow and you know it wasn't clear to me why thanks the board was justified in concluding that having a damping plate that substantially less than all of the cross sectional area translates to permitting merely an insubstantial amount of airflow around the edges of the plate i mean why why did they say it like that because there will be times where a lot of the polarized small particles will go through perforations and they're only be something left so at a bare minimum with the board the same here i guess what i'm trying to say is insubstantial and since insubstantial amount of airflow around the edge that's a edges of the plate suggests a really big plate that covers virtually everything at the cross sectional area of of the conduit and that sound not consistent with a plate that substantially less than all of cross sectional area know your honor because this part of the board's opinion is going towards the particles what is to get through and we know for a fact based on this record that the board was definitely not saying ninety three reference that had both holes and gaps and if anything substantially less than can mean and redfield would likely infringe if it issued later will be times in what the board was saying was that in addition to the gap is sufficient so this is the bare minimum part that the board said it has to per the specification braudis not limit the particle size for the size of the substantially less than gap it says that the gap is sufficient it has to be at a bare minimum allow insubstantial amount of pulverized fuel and what we're talking about and there are depictions more so in the specification at figures three and four where these particles and this is on page forty six the forty seven these particles are spread out there's no requirement in the specification of a rate of flow it is just the particles that can clog and let me let me try again i guess my concern is when the board said that the edges it seems the really biased i understanding of the claim to want to encompass something that virtually covers the entire cross sectional area and and if that's the case i wonder why is that consistent with a description of a plate that substantially less than all of the cross sectional area say that it has to be almost the size of the pipe the board said there has to be a gap and the gap functions per the specification after the board just clogging is to be of voided and then what the board went on to say was that we have redfield which has multiple gaps and perforations shown in miller where you could have multiple yet there are two steps to get that avoid clogging and on page thirty one to thirty two of the record the specification discusses that pulverized particles will go through the perforations and that specification expressly says rather than around it that's at the top of page thirty two so instead of going around he goes through  have to have a gap that some particles can get through and giving credence to the specification clogging will be avoided and that was a reasonable construction by the board this applicant knows how to articulate numbers there in a lot of the depending claims and claim one is really broad it's still very prosecution he may be able to amend that down and though try to submit evidence of unexpected results or something else to show that what he's really doing as one can see in reviewing the claims on page one hun that reasoning broad claim one which is also just about the range of the size of the play it could your honor that is consistent with what the board did that the board said we're going to consider and construe substantially in light of the specifications and what the purposes and the purpose was to avoid clogging but we have the perforations to help do that as well and these polarized particles as i mentioned have you know a frequency that permits even one at a time to get through so his own drawings show that it could he have submitted or run some experiments and submitted some evidence the size of the particles in the rate of flow and things like that then we're really experiments showing the priority against his broad claim then we might let me see if i can that this may just be confusion on my part i guess what i keep hearing is if you look at redfield there is a gap so inherently no clogging no erosion yes his other way i mean there is nothing in redfield it's one page about clogging in a row or so so what does that add why did the board think that that was and had a proper addition a meaningful addition to its claimed construction if there's  in what way does what i think the examiner said but it doesn't matter whether the examiner set this any gap will  is the edges of the damper are freed from contact with the pipe and the damper is of a smaller diameter than that of the interior of the pike and the gap i mean if you're going to drop picture you've got to have a gap that's at least what it is in figure one or you wouldn't even see that that there is a gap so i don't read anything into the size of that gap in figure one and the written description just says don't have contact so i guess i just keep wondering either clogging and it's there and erosion are meaningless or if they're meaningful i don't see it being taught in redfield x they are applicant specification shows that these particles are very small and sporadic and they can get through redfield gap at least shifting the burden to come back and either amend your claim with unexpected result construction to avoid clogging and erosion is a goal that was identified as specified in the specification of why the board use that as part of the claim construction but the specification doesn't go further as to what really is needed to avoid clogging and erosion and if we're talking about something like smoke well smoke doesn't need a very big gap range of thoughts it and they also explicitly describe situations where the goals of the optimization or the problems that are being solved or exactly the same here the problems in the stovepipe damper are quite different than the problem kids there are cases i mean that of course this case is like a graph and others that talk about when you have an overlapping range or a budding ranges that's prima fascia obvious but then there's other juices where you don't need in the budding or overlapping range you could just have an appreciation that a given attribute has a certain property connected to it and then once you once people have skill in the art understand that then it becomes obvious to play with that attribute whether it's a wait percent do or a temperature or a size to move it around back and forth to do with land at a particular number that is your particular preference well ed and i agree but the issue is that there there is no reason to believe that anybody's particular preference in a stovepipe or it's going to be something that has forty to