good morning in may please the core of the board made a fundamental mistake in this appeal when i construed the term continuity member in a way that doesn't require a continuous electrical connection the birds construction allows for intermittent o  there were never any findings or any evidence presented that that configuration even if it could be made that there would be continuous all extra coal contact between the knot in the post that came up in connection with the other limitation the shape the fed into the year that limitation to show how it could be fit between two parallel surfaces so there are no findings by the board first of all that it would have been obvious to this spring from another piece of prior art in that location and second that it would make continuous electrical contact we've never really had a chance to respond to that fact because there are no findings and that was not corning's argument b their argument below was that this spring when it's placed around the post would make contact with the post on the edge and so it evolved into a different argument on there talking about the shape of that part of the element there are no findings and we don't conceive that this particular configuration even it could be made would make continuous electrical contact between the post and i'm not but now you are i'm not going to dispute that it would make contact with the not a few jammed in there but there's a lot more to it than that it would also have spring kinds would have to contact the nut there are no findings there and this court really can't do the job of the board for it by making those fin repeat that's right that's right there are a number of places in the specification where it says the continuity member maintains an electrical ground and makes consistent and physical contact with the knot and continuity i can start with a column fourteen is perhaps one of the best column fourteen line twenty three it talks about the continuity member it maintains an electrical ground power the ground path extends through and then it goes on to say this continuous grounding path those are all related to the word continuity and i'm wondering if those are what i mentioned about the structural path as opposed to the temp or well i mean there are a couple of indications that it's not a term that is not a structural power first of all it's between the the not and the post and that's just one past one hundred talks about a continuous path they're talking about from one length of the other and this particular continuity member makes a connection between the not and the post second even some of the claims give you an indication because they use the word when they say that it maintains an electrical ground path when certain conditions are met and that's also an indication that we're talking about temporal but more importantly the actual purpose of the invention is to avoid intermittent ground paths it's not to have one path that runs  like the other every connector does that the ground path has to run through the connector that's nothing that this invention was trying to accomplish it has to be present at all times so that you don't have an arm and and judge o'malley i'd also point you six says the continuity member should maintain electrical contact further down the line eleven it talks about a continuous electrical shield the bottom of the colony eighteen also talks about consistent physical and electrical they thought the broadest reasonable construction didn't require continuity and time and would conceivably allow for the intermittent that you say the purpose of the invention was against right and i think that is certainly  i'm struggling i'm struggling because i think this case might be a poster child for the difference between b r i and philips and the impact it could possibly have on that i can i can see in some of the court's decisions that they have those two things seem to be converging the often the broad us reasonable construction is the same as the philips construction i don't think this is a case where they would be different as he said your honor we think the philips construction and the b r i construction are exactly the same here i think it would come out the same place just because of the word reasonable and the board's construction and i don't think it's reasonable because it goes contrary to the very purpose of the invention the purpose of the invention is to avoid these intermittent ground as grounded it doesn't matter i think that would be fine because if you're not and if the tip of the connector is not connected then anything whether or not there is grounding that i i can't see that makes any difference but the point is when  minimum some of the dependent claims have been maintaining lead to and which is and i don't see any dispute that that requires over time i don't i don't either and i think that was a fundamental mistake of the board where the board actually that would otherwise separate from the independent claims such that i wouldn't worry about ending up with two claims of identical claims go if i read maintaining phoenicians to the broader community member i think if you look at those dependent claims they usually have additional conditions limitations of the be dependent client would distinguish those lines but we say that it has to maintain electrical contact that's that's the point the continuity of so one of the other limitations in the field and i claim that would that would get over the cunt the continuity members configured to maintain electrical contact than the node is both partially taken position and fully tightened so it's adding those additional conditions i still wanted to maintain if i could just briefly that ever suggest though that it's not maintained in other positions arguably and i claim purposes no i don't think that's right we're on target i think it's saying that in these particular conditions you have to maintain and you have just a variety of sprinkling of things in there in a written description that you think supported why would the boards construction be unreasonable well i think there are two reasons one is the word continuity does it does kind of that has to be continuous so that word by itself it's not just a label it does say a continuity number so as to be continuous and second to construe the claims to allow these intermittent i think the fits the purpose of the invention and that's why it's not reasonable if i briefly address the secondary considerations because i think they're particularly strong in this case and the board really gave them quite short shrift and i think on commercial success though the work really did not get it right these connectors have been an overwhelming commercial success any way you look at them and i think the board here discount of that commercial examiners can't do that so would we be boxing them into a situation where even reasonable doubt on their part wouldn't be enough to overcome evidence if you put something in the record well i think it would put them in a more difficult position  don't think a one size fits all rule works here we are and i p r situation then it really was corning had the opportunity to present those factors and so i think you do have to look at it differently since we are in an adversary proceeding as opposed to an x party that's that's pretty substantial and that a price to clean up the market share on the earlier connectors you know that's not in the record in there right now but any product that has an eighty one percent market share is significant especially since it's you heard was there was no evidence in the record of what the market share was before the new products were brought into the market and the evidence before the org shows that new products were just a replacement for the old products of the o product market share went down the new product market share went off and i don't think that the new products ever even achieve the same market share as or product but i'm not absolutely one hundred percent sure that you didn't put any evidence to that effect evidence actually shows because i thought that it would likely only show market share of the new product what does it show with regard to other than just in general he see poll one product off market with a new one on but you're suggesting to us that that evidence in your recollection goes further and suggests you know if they didn't even achieve the same market share of the new product they previously had so that would be quite a detail evidence yes there was quite detailed evidence on that there is a true or that was presented by mr jackson i believe it was and the chart shows that the market share was declining for the or product as the new market share was increasing and i don't recall that the new product ever exceeded  i want to go back in address a couple of the issues about the very first argument that we made and the pelleas brief and that is p p c has never and does not and they have not presented a single argument either before the patent office or before this court explaining why that in body meant doesn't meet all the claims even under their construction they didn't present it in their briefs before this court they didn't present it in the argument before this court and they certainly didn't presented it for the novice now p v c s counsel indicated that's because they didn't have an opportunity to do so but they addressed that that embodiment before the patent office in their patent owners response in each of these four i p r's you tell me where it was about find it that you live in on your p c construction this embodying that satisfies because that goes to maintaining continuity in a temple or a no no no that's what i thought and said the manner described as the sandwiching and bottom that was the finding that the patent office made they then went on and said we are satisfied that one of ordinary skill  they construe the continuity member as not requiring the maintenance of continuity over time i all we don't know from a fact finding standpoint if that limitation were part of the construction would they have reached the same conclusion so that that's where she p c has waived its argument it never argued before the patent office it never argued before you in to their construction in fact there is at missions in the record that that particular and body image which which they will agree meets the configured to fit aspect which is part of this case they say through their expert dr everingham this is at page eighteen thirty three of the appendix in paragraph seventy six of dr elder ings finding is gone right in in terms of what the words said in answer decision it had a construction i absolutely agree with you but  c has never disputed when presented with the argument that even that that that construction would meet all of the limitations of their claims i would ask them what what embodiment so you would your argument be that the only argument they raised with regard to this was that tucked and suki teachers away from the second in monument motivation and teaching away that's the only argument they made the in other words one over time and not just all the way through that that that finding would not stand right not at all i'm not sure i'm understanding your question i think that we let me see if i can help you because this is truly in that vein your response which you're not making but i think would be that is even if that error occurred it's harmless error because they haven't showed why it matters absolutely ok opposing counsel it seems to me that what you're saying is that rounding has to be there when it's needed the that which is not every second of tar a very good question and what i will try and answer the question but i want to develop through where this issue came up from and on page twenty three of that the continuity member provide consistent contact and that it occurred at times and the word rejected that of the links of the chain are as strong as maybe some other links of the chain that mess and and and so you thing that we should construe maintaining consistent maintaining electrical contact as permitting discontinuity completely contrary to the purpose of the invention as stated in the specification i'm saying that you can maintain continuity through up a period of time or under a condition think about that the life of the continuity member after it's made it's not even in the connector that continuity member isn't maintaining continuity at that point but it's stark continuity member crazy argument you're saying that if you take all the pieces of a bicycle apart the longer a bicycle well what the heck does that prove it's when it's put together and as claimed i mean we don't limit stroll elements we look at claim combination let's continue to work through the life cycle you put it into the connector but it doesn't have any connection to an interface for it certainly not providing continuity then what it says but it says so as to maintain electrical continuity between the coupler on the post and then it lists basically every three that occur so again in the life cycle of this of this connector start to put it onto the interface for when you touch the interface port you might not have continuity when you're threaded by one throat you might not have ily fully operate it but when it is connected to the components in a full integrated circuit you would expect it to work that way but the claims don't provide any limit i mean it's really not a friend's sister if it's not what they look at our source even if at a particular point in time it's not providing a continuous electrical ground but to the point in time is when it's not on what's is that what you're saying i provide resistance to provide resistance is a resistor providing resistance when it's not sitting into us in a circuit in a circuits connected nothing is a providing resistance if they think it's a it's a little tiny piece in my hand is it providing resist member regardless of whether it's in the device or the board make any specific binding that in the sandwiched configuration that new would be provided would be consistent consistent contact i think yes because they don't with the for example the dependent claims that they were assuming when they they sandwich the only point in the board's opinion that you pointed us to with respect to the sandwich configuration is where the board said it was talking about its own interpretation of what was claimed by independent claim one right which is doesn't need consistency so they never made a finding that the that the prior art when put together would have a consistent connection right so if you're equating consistent with maintained my answer is that dependent claims they addressed in fact p p c never telling us that even under the alternative claim construction the p p c is proposing that that finding with respect to the sandwich configuration could stand and my question is where did they make a finding under the alternative claim construction again we continue to fall back on you certainly can make that decision because there is no harm if you do that here were sufficient evidentiary findings to allow you to make that decision sandwich in providing that continuous electrical contact why don't you mention that you're very i believe we did that that's why we challenge the claim construction because there's nothing that shows that these these supposed configurations meet that limitation i think if you look at the board's opinion where it discusses that argument about requiring maintaining electrical contact the board said we don't really have to recognize the debate about whether or a twenty six there is a and if it comes from a twenty five there's a discussion of whether or not this particular sketch would meet the continuous electrical contact that we set and the court of th