uses the restrictive language selected from the group consisting of water and water alcohol mixtures to define the suspending material notably all this is not in our brief the invention  section of the specification of the patent uses the same restrictive language as well established that that restricted language consisting of the patent claim means i claim what follows nothing else of the express holdings suspending material selected from the group consisting of water and water mixtures as a matter of law that means is the suspending material must contain water and nothing else hold water and alcohol and nothing else it is undisputed that the alcohol to that was used in e i c original process contained substantive amounts of other chemicals besides water and alcohol and as a matter of law for this for that reason the suspending material used in he eyes original process did not satisfy claim one of the nine thirty seven i did when you say other other substances you're really talking about the m i became right well there's non drinker i'm sure it would affect the suspension sun does no evidence in the record does this i don't know of any that's correct or your your expert on the deposition called all those extra chemicals impurities and there's was some argument that include the possibility of impurities in the consisting of wine which have to be impurities ordinarily associated with the claimed elements are the impurities water and water alcohol mixture and was always in the nature doubt yes but i think i've used for industrial purposes and there was there was that argument but i think the focus has to be in the first is this real work the stream of playing on the claimed compounds water alcohol and what are the you purit ordinarily associated with water and alcohol mixtures i wonder if one way of looking at the this issue is to say that the term alcohol in a purely chemical sense at least with respect  a is a particular substance but when you use it in the context of a reference to the commercial use of alcohol that it naturally includes ordinarily in my b k and therefore water alcohol in this context includes a a component that denatures the the alcohol if i go to the drug store for example to buy a bottle of alcohol i'm not going to get one hundred percent or even really very close to one hundred percent alcohol it will be alcohol but it wouldn't be ninety one percent typical right and that but i would call it alcohol and if i mixed it with water i would call that an alcohol water mixture because the than the nine percent that's left overs is basically just go with the product alcohol is not a reasonable way to look at the use of the term alcohol in the context of this pat i'm sorry  know i wasn't clear perhaps well what i'm saying is can you view the term alcohol as used with first reference to an industrial substance as already incorporating the and my b k component that needs to be included in order for that alcohol to be used in an industrial setting i guess you can but i think we would still need to focus on that claim one which first of all the claim come down if we're going to include impurities they have to be also indicated that the suspending material must be made with non conforming consequential amount of water the words negative negligible and on inconsequential are nowhere to be found in the nine thirty seven pat but what the nine thirty seven patent in the spirit like teaches is that a water alcohol mixture usually has a minimum of about thirty percent water and more usually fifty to seventy percent water by way the two examples in the patent are have water content of fifty percent white if we look at the entirety of the specification we don't find anywhere where there's a description of a water alcohol mixture  between two percent water and one hundred percent water which would occur under the district court's interpretation and conoco i submit is just not in time to have a construction of the amount of water in a water alcohol both of which support the proposition that the minimum amount of water in a water alcohol mixture as that term is used in the nine thirty seven patent should be thirty percent and the alpha all too used in the original process did not have anywhere near that amount of water stable is the other term with respect to the nine thirty seven the specification defines stable as  the suspensions obtained by the described procedures homogeneous dispersion stable runnable on reading and maybe shipped over long distances wall retaining primaries there's absolutely no evidence in the record that i found  constitute an implied disclaimer of the pure hydrocarbon waxes well i think if i  skull correct we're right but starting with the bottom half of your chart right and you reduce the scope from of the bottom half by removing some elements construction before this is not a construction site district or think it's a waved argument but getting to the argument they're seeking a construction that the forces this term consisting of a water alcohol mixture from reality and this court has repeatedly stated that that there's a a bit of a dispute as to the state of the record and evidence on that issue do you can you point us to where we should look to as retain whether that point was in the record a danger of moving to the the basic legal test for consisting essentially of which would be a substance that doesn't have a material effect but nonetheless it's present and as opposed to consisting of which is necessarily in a narrower standard that was you laid out i think of the expert in this case yeah we laid out our brief i think it's very clear the difference between insisting on this is right but the problem with your argument is that it tends to press it doesn't cross the line but it's sort of nudges up against the line and so i'm i'm looking for guidance from you as to what it is that clearly justifies putting this substance on the consisting of side of the lines opposed to consisting essentially you know  recognize that the term was used in the evidence but you think of normal impurities as you know two parts per billion of yesterday's ham sandwich finds its way into a vat of some substance and that's not going to be enough to take it outside of the insisting flank which for sure but this is more than what you would normally think of as an impurity that is that something that somehow necessarily comes along with the as a chemical matter it can't be eliminated necessarily comes along with the chemistry this is something somebody intentionally put in as another ingredient for reasons that may have everything to do with the legal requirements etc et nonetheless when he was placed in and that seems to me different from the normal context of the purity i guess the answer to that would be going back to looking at this from the perspective of  if there are no numerical limitations in the claim itself they should not be imported into the plan from specification here we not only have a limitation or they're trying to import a limitation from the specification but the specification states very that this limitation of this range does not limit the claims as is arguing here with respect to the stable limitation i believe that the district court didn't really even construe the term it just kind of applied the term stable and just to the to the crux of the arguments made here today do you think that setting aside amendment based to stop it for now and just assuming that for present argument purposes that we treat that is not not having been a pertinent amendment but based entirely on argument stoppel and or any limitation in the scope of equivalence it may stem from the specification statements have any law to that effect saying so saying i think we cited a case in our brief that said these are two separate doctrine when they say they they are i just want to know that they're said fester doesn't apply in the following setting i'm substantially the same way to achieve substantially the same result and found that they did it and also apply the interchangeability test and in fact the district court went even further and we put out evidence that showed applying the same tests look at let's play the same function when result look at that what gives me pause here about that argument is that as i understand the chemistry the metal steer eight is much closer to the fatty acid then the pure hydrocar waxes on the end of the continuum and so you know chemical turbines that the two waxes are much more alike than the middle steer is i think what your honor is focused on is a statement a prosecution history by the examiner where they were wondering whether if there series were different well perhaps as to function but structure the the structure of the metal scary looks a lot more like the fatty acid waxes i view the structure as opposed to the hydrocarbon laxity which is just a chain of al it whenever they distinguish any prior approach talking about the metal spirits that will cause the glob ration products all this stuff to stick together and the testimony was again the district court and we put on evidence that compare functionally result and showed the metal law it was a very well reasoned and methodical application of all the proper legal documents here and we think the district court got it right and should be for the clusters of the questions i see my cause argument the way for issues pertaining to the consisting of language as we pointed out in our brief there are a number of instances in which that was brought up in the district co most telling is when it was brought up in my motion the state execution of the of the judgment pending appeal i argued that we should win on appeal because of the consisting language conoco didn't say in response to that motion we waive that argument they said we were just tripping out arguments that we've made before that have been considered by the court and rejected and morse if you can play the court a great with that language that those arguments had been brought up  before with respect to the consisting of language what they're trying to turn this term consisting of into is consisting essentially of or even comprising and if you don't close the set to elements other than the reciting elements that's exactly what's going to happen the abbotts labs case that are pardon me that i referred to country does not think anything other than the plain reading of the closed claim language of the class the plain reading of the close claim language in this case is water and water alcohol mixtures with respect to the amount of water in a water alcohol mixture you cannot read the specification in a vacuum there is no description of in the specification of the nine thirty seven patent of a material that has two percent water in it there's the lowest the description this this there in that patent is at least about thirty percent are about forty percent usual and usually usually about thirty percent to fifteen percent well in the architect case there were the issue was what this fiber feel bad thing that ariel me and the court decided there based on the specification and the prosecution history but also is involved that that fiber fill material should be limited to there indistinguishable from from one another per konica the doctrine of equivalence cannot be used as a matter wall to cover something that they could not have covered in the first instance when they filed the application