the interior of the shells to one that had to be in the interior cavity of the shell that change exposed the court's unduly narrow view of these patents in particular that they only cover weights to vission that completely or fully in side the cavity of the show along the innermost surfaces of the the of the shell is what happened on summary judgment after the claim construction is that the courts narrow that construction to say it's not just any ensure your structure but rather in a church structure that's located in a particular place and in particular the innermost surface of the specification in figure four in particular figure four shows a wall that is not wall street ten outermost part of the shell in the inner most surfaces so if you look at figure one of the patent you can see what the court did and modify klink struction because a figure one of the patent shows the cover the removable cover one twenty close and there's an exploded view in the picture and in that exploded view you can see the reference numeral one eighteen and that area one eighteen and figure one is the area where the judge said that's where the weight have to be able to go after be able to be you have to take the cover off and you have to be able to go in to the area in one eighteen and figure one before there's where there's a cutaway view and the weights have to be that far all the way in fact it may rest in the context a figure for it may actually be located on the cover itself and therefore not within the cavity not its environment cover and then the cover it's close it is within the cavity it's not in the cabinet because it's on the cover but because it's in a recessed area three ten the recess prevents the cover with the weight on top of it from being in the cavity it's actually on the cover but not in the cavity regardless of what the specification says why aren't you bound by the statements you made during the prosecution the district court held there with a disclaimer here and i can see at least five places where in the hollow interior of the club as in the presentation why are these so tantamount to a clear and unmistakable disclaimer there not because before the rejection before that rejection that you're referring to the claims did not reciting a hollow head or multiple positions of the weighting material to each prior art reference however disclosed a fallen head the fall of the head with a number of field compartments for supporting the w at a corresponding number of six locations after amending the claims to recite the hollow head it's an important point and the placement of one or more awaits counsel naturally observed that the art did not provide for weight inside a cavity and was a natural thing for him to say and that's because the prior art heads were solid they weren't hollow they were solid the statement that you refer to alleged to be a disclaimer was not intended to draw some distinction between external weights or internal weights rather the distinction that was being drawn was one of a hollow shell with plenty of room for weights at varying locations versus a solid that station a hollow shell with weights inside the the distinction was between a hollow shell with plenty of room a large volume for weight and varying locations versus a solid head with field compartments for supporting the weight at six locations and that argument was carried through self understand your honor there is a subsequent set of arguments a three ninety five and three ninety six where the language i'm referring to was mentioned about the varying locations and there's a discussion at length at that time assessed at issue where there was a discussion of the difference between a solid head and a hollow head and the fact that there was insufficient space in these prior art ahead for the numerous weight locations that allowed the use to place the way to these different locations and thereby impact off light and that particular argument was at three ninety five and three ninety six in the appendix which was a subsequent office action and the same records were being referred to in the same arguments were being made so the argument i'm making this morning are supported by the overall prosecution history including the statements that were made three ninety five and three ninety six with the append and those are pages that this record did not refer to nor detail are made referred to as pages as well so as a whole we believe that the prosecution history was drawing a distinction between a hollow shell again with plenty of room for weights of varying locations versus a solid head with seal compartments for supporting the weight at fixed locations and we think that the construction and the prosecutions official in dispute that that what you're claiming regardless of how you describe the wall is our internally place weight even the one that's on or it still internal to the to the belt but it isn't turner yes  that your that what you're claiming are internally place weights and how can you get around the fact that these are extremely threaded if it is a good question the actual that consummate between external versus internal that you're raising the little bit devices are actually inside the structures are inside their weights are partially x turn alone and partially internal and if you look at the pentagon six thirty three you can see the inside of the club and i think i reproduced it  thirteen you can see the inside of the accused head with the with the face taken off and clearly the structures that are used to attach the weights in the q s heads are inside they're clearly inside where they have been telling us so that if the court below rendered a claim construction ruling in which it did putting quotes the very specific words that were the end result of its construction of walls and as it did in other terms of the that were at issue in the market hearing it rendered a very long claim construction order and you cannot read the claim construction order protected the section on walls without understanding that the court meant what it ultimately expressively clarified later in the summary judgment order and it was clear from from the moment t construction order issued that what the court met by its construction of walls was that the weights had to be entirely within the interior apparently you would agree wouldn't you that there's nothing about the word wall in and of itself that would  a plain meaning that suggests that weights have to be on one side of the wall versus the other side of the wall write the word walls to one of still in the art says nothing about inside or outside it in the abstract your honor i would agree with you just look at the term wall our position going into the claim construction hearing actually was that the current wall actually has two connotations one is a three dimensional structure and the other is a surface vice a mount the painting inside of it because the inside of the wall implies that there is an outside of the same why doesn't right he didn't adopt that argument of yours right you ultimately prevailed but he didn't conclude that well i'm sorry only  you hinge your argument on a disclaimer well what's left your honor is that both parties going into the clink construction proceeding urged the court to adopt a construction along the lines that before adopted as part of the work up to the martin proceeding the initial claim construction that was proposed by dog like rye was just f wallace a structure we made the point to dog like right in that in that process of conferring prior to the marking proceeding that that raised a written description offense because this patmos entirely about putting weights inside the cavity of the golf club had a kind of responded to your opponent's argument that that references to the cavity appear in the background section and that we're not supposed to give that substantially and it's part of the summary when you look at the summary invention it says flat out that you have all golf club head you have an opening or poured into that golf club at in the point of the opening of the court is to put the weighty material inside the golf club hat so it's the fundamental  statement of the of this invention and when we went into in the court both parties doglike right was essentially persuaded by our threatened written description defense to modify their claim construction position and we ended up both going to the court saying in order to preserve this patent over a written description defense the court needs to interpret the term waltz as providing some means of of  placing the weight inside the interior cavity and that's in fact what the court did and that's what this court is presented with a market proceeding from below where both parties in effect abandon their way the argument that the wall is simply a three into the campus right it might be internal but according to your opponent it's not actually in the cab or the way over the way it is definitely in the cavity that's when that court cover is applied to the opening of the golf club  the inside surface that for cover just becomes another inside surface of the shout yes it may be stepped down a little bit of course that recesses is optional of the the the description in the vention of the in the pattern makes clear that there doesn't have to be a recess there it's not it's not it's not require that there be any step in there but if you can imagine yourself being inside the golf club head once the port is closed and you look around the  interior surface of that door cover is just another surface of the shell and the way that's on that interservice of that court cover looks like all the other weights that are in the interior surface so there's  really no that's a false distinction there's no distinction to be drawn to say that the weight that's on the interior the work of or is somehow of a different character than all the other weights that are on the interior surfaces of the shot or what about the argument that at your product actually last screwed on or threaded from on the outside actually distributes the weight into the shell the only thing that goes into the shell is a very small amount the dogleg right itself right to interrupt your argument that it was very distracting to me when i had let me let me ask you another question and with respect to your infringement is your info is your not infringement claiming that you don't put weights inside the cavity or is a non explain first of all we say the screw hole at the bottom of our courts is not an interior surface of the cavity we say that when the court talked about interspersed with the cavity he meant the horizontal if you will or prosecution said a port forms for the helping to allow placement of material at analysis parties underlined at one or more positions on the inside surface of at least one of those walls so it used to be the case that parents claims had expressed limitation not just weight on the wall but weight on the quote inside surface of the walls and during the constitution they decided to remove that limitation during the same prosecution not a continuation of the same prosecution of the parents so why does it continue to serve as a district court tells us a disclaimer wanted to continue to limit the claim when they expressed we removed that limitation during prosecution because your honor i think i think two reasons first of all even after removing those limitations they concluded their presentation of the examiner in that amendment in july of  four by saying all the arguments we've made up to this point in time about how this invention this claim distinguishes over the prior art particularly tourch word of the son still a pot so they said all these all these arguments and the argument to the good they say that show me the page where they stick all the arguments show me the page of the prosecution history where they say all the arguments including what we said about churchward son still apply because i think that's a  disclaimer when those amendments contain two sets of arguments one was related to volume the fifty percent limitation in the other was related to inside the capital and for both of those arguments they amended  claim one point in time the examiner clearly told them that the inside the cavity isn't going to be good enough to get over these references and the fifty percent is too ambiguous to satisfy one twelve so they then abandoned entirely clearly the inside of the and they did basically get rid of both of our most of all they maintain the size of the cabinet when in different words right didn't they in response to the one twelve modify the language they used to still talk about the amount and i think the problem the problem with with what i'm suggesting and tell me if you think i'm right is that if there's no limitation as to where on the walls the weights have to be placed they're going to run into a really big problem which is why you both went to the judge and made suggestions about limiting the word walls is that right is right or wrong if there is no limitation regarding where the location of the weight has to be in these claims there's going to be a big invalidity problem misanthrope but what we what we disagree with the premise of the question ron or because we would say that when you read this client in the context of the inventions described in this patent the claim starts off saying we have shown you don't read limitations in from a specification and if there is no disclaimer in the prosecution history you're stuck with wall which is a three dimensional structure and the weight could be inside or outside so let's assume hypothetically that that's what i wanted to construe the claims that and there's a huge invalidity problem isn't there and in the very references the examiner cited churchward and others would clearly read on the claim say that there's an opening in the body or in the shell and then the claim say that the weights are secure along the wall so the shell well if you can if you go back and look at the opening introduction of the term walls the point of the of introducing the term walls in the first instance in the climb is to define a hollow body that has an empty cavity what aspect of the walls defines the fact we think it's a reasonable implication of these claims that when the when the claims talk about walls forming a hollow body and opening into that body and then the weights along the wall of the body that they're referring to the interior surfaces of those walls wouldn't have made more sense to consider the terms shall and determine what did what exactly was meant by the phrase that might be another way of getting there your honor and i think take it is thank you just more your point about the the prosecution history is well taken it's it's consistent with i think philip's in the in the ruling that the prosecutor the holding of the court that the prosecution history represents an ongoing negotiation between the p t o and the applicant rather than the the claim construction itself doesn't mention of this claim the alleged disclaimer which i think is curious because that would have been the place where you logically think you would find a prosecution disclaimer argument it came up in the summary judgment context because what happened was is that tailor made went to the judge and said look we have externally applied weights not internally applied weights so there's this is this dichotomy between x turnovers internally that they were trying to bring to the court to say that there was no reason to have a trial that the claims are clearly not broadly construed we believe we can prove infringement even under you know under that scenario without invalidating the claims so we're willing to take the chance if you broaden the definition of wall so what we think would be the natural definition given th weight attachments or you argued instead for the little court entrance the flinches or whatever you want to call those little things you never argued that a clue that that's a claim did not contain a limitation that required inside you instead argued that atta is inside so how in the world do i adopt the claim construction that i proposed during oral argument which is not when you or the other side proposed the well the one that we asked for is the stink structures that collectively form a hollow golf club head body from of which have way to touch from surfaces on the interior of the shell that's why we propose to do this record that's we propose in our briefing here we suggest that's the closest definition to the specification that we can come up with and if we don't think that definition per se raises an invalid issue for us that's a definition you said that is consistent with the specification but i don't know that that's consistent with the claim for wall s either means inside or it means either but how does it mean sometimes inside well because of the it i'm not sure i understand the question i'm sorry ok well i guess either the walls contains a limitation regarding where the weight attachments have to be secured or it doesn't and if it doesn't your definition doesn't comport with that either because yours definition is sometimes the weights have to be on the inside and sometimes they don't fit in either the claim has a limitation regarding location of the weights or it does not