our next beef is number eighteen eleven thirty four goodsome holdings versus titan flex or price ration morning your honour's may please the court i think the earliest easiest way to categorize this case is to conceive as i did in the brief of a highway hearing of trucks with hazardous materials one o for dealing with danger posed by those trucks is to create additional lanes hoping to disperse the traffic and thereby lessen the the probability of a wreck causing damage to the road or other vehicles  without abilities to change lanes back into the main highway that is the approach which was taken my goods in his patents and electrical terms the highway of adding proximity the priority does show proximity that is exactly our parts in fact not just proximity but for example in the yamani pattern it expressly provides an element five in the dark rooms a connector a conduct what you're giving here is and i don't mean to be redundant but it's argumentative it you are and i say that because your argument is inconsistent with the claims the claims don't provide for what you're saying the claim seemed to me to provide that even with the invention even with the wire there that the wire is not going to carry all the charge it charged you're going to go to the conduit even though it's but but answer my question about this reference when all we are those pages address that reference and the explanation is that that is simply a recognition if you have two two elements you look at the claims them selves it says the current is carried by the conductor rather than the two being the spain was two and also the limits claim so as to prevent damage and if you do not isolate these it does not prevent greater than the conduct of any of the c s s t if you use the word shot it connotes that if you all of the words they're used and direct the only way that you get to the conclusion that the panel of the board made was to disregard those concepts and clearly goodson is breaking with the prior art by saying that there is no communication between this conductive member and the stainless steel is going to still to be also teach an environment where there is and is insulating layer between the tubing and the conductor actually when using the insulator it either says use the item five to pierce between the two so you have an electrical connection or likewise you have the series that yemeni your own or in your money and if you look at paragraphs it's the appendix thirty two thirty two twenty if you examine paragraphs twenty two and twenty four are the testing that is described in the videos which we gave links to our testing of products which do not use this shot or separate pass and every one of those you'll see i'm suggesting is that the testing that smidgen demonstrates that a configuration such as the prior art fails if you're asking me did we put a prior art piece of embodiment in a testing lab to my knowledge one doesn't exist no we haven't wired piece of tuning from tokyo gas and put the argument that we made it at below and make now is that that testing demonstrates configuration such as the it your position that ya man ok they don't work for their intent purpose yes they don't exactly because in the end we're going back to the language with their they're not a sho morning your honour's in a please the court let me let me start by talking about some of the issues that that you've raised and in particular where you monitor and disclose and embodying that where the there is no touching there's no  direct connection between the external conductor and the tube so if you look in you manet paragraphs twenty two and twenty nine both talk about what sorry  or the outer face of the insulating cover layer however of the conduct of members if you connected directly to the connecting joint that means is that the wire if it's in the middle of the  you can connect that wire directly to the connector at the end of the tube then if you go to paragraph twenty nine it's as if the conductor member is connected that way there is without the need for a safe separate disclosure here of an embodiment where the external conductor does not touch the tube and that's exactly what the pan the board alone found that's significant because the board correctly construed the below there were actually three limitations the goods and wanted to apply one was no touching a second was no close contact which i think is the no close proximity i would suggest your honor if you look at figures six yeah it shows that the mash is up against the two being the tubing is appears to be protruding through the match and certainly if that's what it showing that it's touching before didn't make that finding right  trying to describe what is the situation that's going on here this equation is in the goodson patterns it talks about a number of different ways that lightning impacts tubing and in one way you have is two being that's close to something that becomes electr d from the lightning and the current arcs through the air from that electrified pipe or appliance or whatever it is over to the side wall of the tube into the air through the air it's an arche from one thing to another as opposed to coming in at one in the tubing and running through it this is our king over to the side wall and what the this description is talking about is when that happens if you have a mesh the mesh is going to divert most of the current goodson patents a majority of the current would also some of the current is going to be dispersed out because you're using a mesh and it will be dispersed out onto the tubing and used less than a majority obviously there is no there's really very frankly there's no air between so the space between the goods and invention just putting a conductor on the outside of the tubing and what was already disclosed by the prior our money and t had accepted a no resident limitation which would be made legally from whole cloth because there's no no basis for that in the patent the prior art discloses every limitation and so under either construction before you today the result is the same the patents are obvious the claims are obvious in light of prior art let me briefly  well let me touch on the testing evidence there was no evidence that the prior art we've cited it was tested and failed under any circumstance and there's nothing in the record today about any testing of any prior the labor because we agree that neither takings nor retroactivity was discussed in the opening brief and if you got to the merits you would reject it pat lex case we sites in our opposition addressed the very same issue in connection with the patent examination statute and explained that that statute cannot violate due process because it was applied retroactively i think the same analysis would apply here if it had been raised appropriately but  constitutional challenge i would like to spend just a second to ask that of course we ask this court to reverse and dismiss the aapi who are in the alternative we would at least ask the court to remand the matter back to the or