is the same with respect to all fronts and that is whether each reference discloses the element of claim seven of the challenge patent and that element is a flexible lip seal that is deflected when the bile is in the clo if and when we look at the boards opinion on here and see with respect to heckle we see that the single critical piece of evidence that the board relies on to support its conclusion is that the upper ridge of the violent haeckel is greater than the gap in the cap that that religion has to fit into but we need to look a little bit closer at the dimensions that we're talking about because the numbers relied upon by the board come from various portions of the abrams pattern that given the numbers for various components of the vile and when you do the math you come up with an annular bridge that is almost forty percent greater than the gap in the cap that it has to fit into and that makes absolutely absolutely no common sense if i were to ask you to shove a baseball into a shot glass we know that one of two things is going to happen  it necessarily bit sure it's so one we're just talking about that piece that extends down from the cap the patent does indicate that that may be a flexible material but that upper ridge has to fit in with the gap so that's what we're talking about when we're talking about the forty percent figure makes absolutely no sense if you put your expert testified that that lip is flexible the expert testified that that lip probably is flexible but that doesn't necessarily mean because of that angle you're going to have some interference necessarily with the with the flexible lips you'll remember as you're closing but ultimately when that vial is closed there is no deflection at least in the reference there is no disclosure of a and i think that this problem is highlighted acutely at a certain portion of the abrams pattern and we can find this in column a for and that's in in the appendix at page seven zero five and this describe within the gap so that hole ridge has to fit into the gap the next portion says it's adjacent the wall section that means that the top of the ridge is up against the bottom of the cab so not only does that ridge have to fit gap it has to fit all the weight yet there's no way that can happen if it's forty percent bigger than the yam forty percent but it's thirty seven thirty seven percent your correct your at ten percent difference between what you're saying and what the actual percentage is seems statistically significant amount you're correct your honor it is thirty seven percent and i think in the briefing the parties have said almost forty percent and i think the other side has acknowledged that but i'll agree that it's thirty percent or thirty seven percent the other important feature portion of that patent if you look at that same section that we're talking about where it says the angle surface nast's against the angled surface of an annular ridge what that's talking about is there is an angled surface on the calf and there is also an angled surface on the ridge and those two portions nest together when the vi is contoured to fit perfectly around that ridge there is no way that you can reconcile that thirty seven percent difference with the disclosure in the path the only way that you c begin to try to reconcile those numbers is to start playing with those numbers and say well what if we had a different size and you were rich but once you start playing with those numbers you have entered the world of inher must be different in the closed position and the r is is not right i mean because because there's a thirty seven percent difference in the horizontal and of the valve must be broken when it's in a closed position that's the only reasonable conclusion if you look at the figure that we have on page i believe fifteen we that we demonstrate a white one isn't the only reasonable conclusion assuming the seal is flexible enough because  the part that you're sticking the lead into i mean i don't understand this is a substantial evidence review it's like smoke and mirrors here today you went from thirty seven percent to almost forty percent your briefing today it was forty percent you for the things that the board found that you just want to ignore we're not suggesting there is no difference between polyethylene polypropylene what we're talking about with that is the evidence that we put forth the finite element analysis that our expert put forth that if you had a gotten to the point where we needed to submit evidence that a vial with those proportions would work and close based on a common sense and i think the problem was is that if there was some issue with that evidence the party with the  way that you can wage into that gap all the way to the top of that five different have to be which all the way and that's not what we're looking at we're looking at whether the the ridge deflect from the close examination and and when it's in the close  there is no express disclosure and we reflect the container of figure seven was the only piece of evidence figure seven and we were was the only piece of evidence relied on by the board to show and here a disclosure of the flexion that file in figure seven does not have the container that's closed down but since that's close to cap the sitting on top of the while ok and the way that after we say there's deflection as they draw a line straight from the drawing up to the top file we demonstrated in our brief that that drawing is not to scale if you overlay one side of the wall to the other side of the wall in that drawing they're not symmetrical and they're off by a fraction of millimeter and if you look at the line that strong up to that ridge by at the least that interference is a fraction of a millimeter the margin of error in the drawing swallows up the entire rationale for the board and finding that there would be deflection that figure is not reliable to show the relative position thank you right and we pointed to column eight and it was lines thirty five through forty right and i think what's being referenced there is actually wall section eighty five wall section eighty five there is also a reference to the second section of this i there is substantial evidence supporting the board's finding what do you do with the nest and fit language those two words seem at least pretty suggestive of something like what m eighty five that's on the side of that we call it the skirt of the capitol it so that's where the nest and comes from the board again addressed that issue at length as well as the fits with an issue again the fits within issue there was thin and long has a specific structure on that little seal member and it's of there so that it does deflect and other forms a seal you need that type this if it with it was if it was too loose it would form a seal so you're right it is a tight you know that more resilient softer material to use for that cap the design of this not just about dimensions or the design of the lips will never being being long and thin and can a lever that is promoting and focusing on this deflection you want the the argument from the other side that there was some jumping back and forth here between anticipation by express disclosure and anticipation by an heresy and this is really neither one of them because there's no that wasn't our decision our vision was that this was an express teaching you always bring to support my understanding is that it's always taken and viewed as understood by one skilled in the are you when you construe claim to take it as how skill one of the other issues raised by appellate here is the shifting of the burden i just want to address that briefly i don't think there was any shifting of the bird here in this case by the board the board reminded me twice during the hearing of the statutory duty that they had and the clear it had the burden here as the petition the i p r they had the burden to prove by preponderance of the evidence that the prior disclosed each and not understand i i'm not sure i understand your question are you saying that the board should have looked at what evidence they provided and i'm asking you why and what you've done yet what i think is that the board needs to look at both sides evidence and then they need to make a if the panel doesn't want to say anything that's fine then there's nothing for the board to look at but the board then still needs the side of the evidence that the petitioner put forward satisfies the burden and i think i think they did that here but i think because the pattern or in this case did supply evidence they need to look at that that's ok yeah certainly they don't want to ignore that evidence because that evidence could take our evidence outside of the boundaries if you want to trust wheeler i and when you take into account the text here let me grab that here the text of which is that in the appendix if we go  and that's in the wheeler force of five that if we look at columns for column four lines twenty seven through thirty one there's a reference here which is describing what's been shown in figure seven and eight and that there is another reference to the cap being made of a preferred lead synthetic reza such as a poly f lee is sufficiently resilient that isn't columns three lines four through five when you take that disclosure interference fit when it comes down it seals on top of the bottle here the container one prime on its neck on the interior side of that that is going to have an interference fit well that interference fit at is that where the portion where it says those angled pieces of the ridge and the cat have to nest together there's no way those two pieces nest together if the top of the ridge is not at the bottom of the cap there's no way very briefly on the the wheel or ground i think part of the decision here turns on the law on what you can take from patrick's and we cited several cases that stand for the proposition that patent drawings unless otherwise noted are not to scale and cannot be relied on to define for precise proportions of particular sizes apple e's rely on case that say that you can look at pattern drawings when you're trying to look at relative proportions between components but those cases are easily distinguish e and that is because none of those cases do we have the margin of error swallowing swallowing up the basis for that relative proportion and none of those cases are we dealing with this minute perception that we need in these show what configures teach and we just cannot rely on figure seven to inherently disclose deflection when that while isn't even close when the margin of error shows that that intersection it is not a reasonable basis for the