york i have knowledge of his credentials and i'm satisfied that the process has the necessary qualifications and the reason i know all that is because miles has been my lobster for most of two years he's been enjoying the work with he has a great knowledge of the law and science he's a hard worker he exercises good judgment and who's served me very thresholds three because it imports three additional limitations into this interview's claim two of those limitations do not find any basis in the intrinsic record those communications between the t exacting standard it requires words of restriction and exclusion and there is no such disavow here let me see if i understand what your theory of a claim construction is with respect to the threshold issue if you had a product that had float chambers and had some section of the product beyond the case in which there was an if something in the middle area so that the plastic at any point in the middle went from narrower to thicker as there were no voids than that's infringe yes it is even if the entire surface were more or less regular but if you could find any section of the surface between the gate and the lip of the cup then that went from then or two to chambers and in that structure and so you would have in effect what you're saying is as soon as i see no void in that situation i know that the pressure old has not been crossed that's right and  so that's and that's what the the invention is teaching is that you can't increase the effectiveness of your third law section but that the inventors discover just that you need to keep it below a stressful rate and if you do that then you will  flow from creating the boys in that increasingly thick section of the semi section and just following up on just prices questran your response doesn't your response read out of the claim the home limitation of a threshold pre because now the claim could just have simply been rewritten to say increasing the wall thickness such that you know but still preventing voids from forming and then there's no no i don't believe so because the claim language is the with the increase being at less than a threshold rate and then the clay lake which then defines what that means it explains that increasing  less than a thresholds rate is the way that you prevent the plastic material from flowing in such a way that it creates a boy and how do you do that to design your your wall thickness of the rate of this idea of making test strips and other other ways that were described in the other dentists were using a computer simulation of some sort or some sort of pick polarized lighting method at the other testimony that was in the record just that skilled artist since once reading the patent may also be able to know from their own experience how to create an increase in thickness that may keep it below a threshold rate  the threshold rate would be affected by take it by all sorts of other variables right in other words suppose the temperature of the mold was higher rather than lower than the threshold rate would be different would it not or suppose it to come back to change question is is to find out that you have no void and then you know you're not above the threshold right and that's exactly right yes and even if the increase if the increase is by let's say one and i know it's not true here but suppose that by one of ten microns from which is one hundredth of a example that he is the he has a factor that could affect the flow of the plash presumably you would avoid boys with a hotter mold for example and allows not i can't technically speak to that and i think i would think that it it would at a certain point but what i wanted to get back to really quickly with respect to these other planetary is that our injection parameters that affect flow in a mold mr sorenson the mr brown spent many years looking at this issue the only parameters they found that could control boys in this one discrete situation was the adjusting of the mall cavity geometry there's no evidence in the record anywhere that there are there's an ability to adjust or to control these voids by adjusting other parameters what was your affirmative evidence as of the time of the summary judgment motion as to the existence of flow chambers in the accused  although flawed showed that plastic was flowing from the flow ribs into the single section because the position that was taken by homeland at that time was that the  judgment it took the position that homeland had not even met its initial burden with respect to the flow chamber limitations the tight hats were the other piece of evidence that were offered and those digests were offered through la testimony the district court had already held them in an earlier discovery ruling that the site just need to come in through expert evidence that were technical evidence they needed the protections against seeking protection of full seven o two texas once the moving party has pointed out the absence of affirmative evidence by the nonmoving party who has the burden of proof that the nonmoving party has to come forward with evidence that would be sufficient  position having made up a point of pointing to affirmative evidence of the existence of low chambers in q s devices all i see is an argument that it's you know already known the plastic is flowing from the flow rips into the center wall section and it's also discussed and smith and allen which were both put in front of the court on summary judgment where they talk about the fact that do not believe those points were directly made the evidence was in front of the court but there was evidence from mr sorensen that he did testify that their short shots did show that the plastic was flowing from the flow rips into the thin wall section and into the mold it descends uniformly throughout the whole thing this is not show what you would see at these low chambers were in fact low chance that that's what i found puzzling about your reliance two flow chambers why is that not just exactly what it shows because when the plastic is injected into the mauled not all of the plastic uniformally shoots out in all directions and so there's a little bit maybe a little less plastic on this side but it seems to be coincidental that every single one of those has some degree of scallop in there or right is the right or near there certainly isn't any one of them that i c see and certainly from the pictures i could see in which there was less plastic follow along what we're calling the flow chambers than what we're calling the fin was that right that's correct but when you it does not suggest that the flow chambers are facilitating flow well then you look at exhibit twelve which is to die so the guy well let's stay with the others because no that's where sorenson's evidence comes in and sorenson says in this declaration that number fifty five i think it was that he focused on proves that these are closed chambers because of the examine that you would see the flow the actual rippling back of the plastic coming down if there's never a point where there is this gap where two sides of the plastic are coming line but i don't think that you can look at these shorts are in isolation with respect to exhibit twelve of them are decoration which is the  evidence need to be neat part of the evidence is should be looked at as a whole and here we clearly see when you put the put the diet the top of the slope what the bread where does it go none of none of it goes into the wall section none of it all of it flows directly down and it literally flows out at the bottom so  was in evidence at the time of the summary judgment motion and was never authenticated when mr brown testified if i recall and i think you were you took the deposition mr brown testified in the deposition but i looking at what was the seventy one zero five seventy one a six and seven the one sixty i think were the drawings right and he says dividers to all those drawings and he testified that come like that number one he made the drawings number two those drawings corresponded to the photographs that were produced of the measurements that were done on opposite sides of the of the car and that's how we came to the average witness and that's represented in the drawings as showing an increase in thickness why isn't that authentication and evidence of an increase in thickness you say that it's completely the never presented a declaration this to brown would never put his name on a declaration saying that yes in fact i these measurements are correct but the question my question to you is not about the declaration it's about the deposition why isn't that doesn't the deposition do full service for what would have been in a declaration had they prepared well mr brown was actually very cough from the deposition was quite confused about because the measurements themselves were inconsistent well he explained the inconsistency because he showed that they were averaged correct then we don't have the original data to even know what he was average and you have the photographs which show the that shows the two figures that were average and sure enough the numbers that show on the diagrams are the average between the two measurements which each instance correct but you don't know that he's even measuring the s that's what i took away from his deposition he was saying i measured this cup twice and it several different locations and these are the numbers i got and i put them down in the drawing and did that with respect to each of the golf why isn't that enough clearly fails to inform with freeze no reasonable certainty because no one can read the claims and know what to avoid without first creating a successful product and then measuring that product at that point all they're doing is measuring an inherent quality of a product that they have created themselves without any teaching patent claim doesn't doesn't press for creation tell her how to do the testing to determine the threshold rate correct in that it says it doesn't say how to determine the threshold rate itself simply tells you how to observe the threshold rate because you first mr succeed in creating a product without voids in order for for you to know what the threshold rate is so you have the pattern it's not per time anything new to anyone of how to create a more back up a second i was trying to understand your cross appeal and i was wondering if it was a conditional cross appeal in the sense that the district court  the pretty specific narrow construction of the term threshold frame and then that led in part to your summary judgment correct and i guess are you suggesting that if we were to reverse the current construction then there would be an indefinite this problem or even in light of this very specific narrow claim construction of threshold rate by the district court if we were to agree with that there would still be an indefiniteness defect i think it would still defect because the the measuring the claim construction that requires the measuring of the threshold rate it's the measuring that occurs after the product has been successfully completed but  i didn't understand that to be your position in the brief what i understood from your brief which you were saying if the threshold limitations retro rate limitation construction were changed then you would have a invalidity were reverse i mean if the claim construction were were reversed and you had this broader claim construction then then clearly you would then have an indefinite problem but you're not arguing i take it and and so when you look at that i think that the district court really struggled with insoluble e and they give us that now that it just with reasonable certainty claimed and especially with the teaching and not all of that we really need to focus on the people being able to know what the needs and bounds of the claim are so that when they're actually constructing the mold they know what not her do that always been the case that irrespective of the adjectives used that's true in the supreme court said that they should micromanage your language but they did feel that insightfully and to give us was not an appropriate term and so so under got under that standard we think that it is clearly  and smith taught the big bearing sickness she did not have risk right to say that i read it correctly correct and but it had to the increase and right and so you combine those two references it's easy to combine those two jammer's mistake was believing that an observation about a the prior art that had not previously been observed was somehow  allen that has the ranch is that right correct i got it backwards not because since snap has no reds that i assume that the shackleford would say there's no necessary infringement because of the absence of  the combination if you which it isn't as though people just like we were talking about earlier pressure and temperature and things that these factors all these factors and geometries are all all ok i think i'd like to start really quickly with this but the flow changer limitation and just point out that the only counts are not evidence that the only counter statements to mr sorenson's testimony about what was being secondly i'd like to address real quickly the claim construction issue in point out that it's not necessary for the skilled artist and here to determine the precise value of the thresholds in or method rates were above and below until they found a great that they were satisfied with that did not for the boys the skilled artisan understand the scope of these claims not by assigning a mathematical value but basically the insight that was discovered by the inventors who essentially what they discovered is that there was this flow of plastic going on right and then the crane calling for some application   design the the walls and and in order to get it below it threshold right you have to do some kind of maybe not just stress but you have to be consciously designing of determining the precise value of each and every threshold rate in a zone in a similar section that does not sit with the patent because there's no support in the patent for that aspect of the court's construction