conventional is a word that means usual or expected and i will say this if you see your point being that the the clean term fractions nation is something other than conventional accusation yes conventional is a limitation i'd like to move to the specification disclaimer arguments one argument that shall makes is that the motivation for this path to take advantage of the market shift for impure benzine results in a of processes that use other separation techniques and distillation as we've shown in our brief the patent has more than one benefit and according to federal circuit precedent clean the go like case when there's than one benefit each claim does not need to claim every benefit and here if nets or had intended to limit his claim to impure mincing the file history would look very different so shell said referenced if you did crack i've been seeing rich fraction separately you'd lose free radicals that were important that invention if nets or had intended to limit his invention to ensure been seen he would have made that expressed disclaimer in the file history to overcome the taca he's a reference you see is there anything in the record that i realized that the record is pretty thin here because of the way the proceeding unfolded in the district court not that's actually benzene is not cracking but that the putting a different input into step four does the cell phone line process get cheaper get faster or something worse or we just silent on that because the record is so skimpy the record is then so we have seen in the record indications that shell did make this change and we are there any chance you accuse it of doing so so i mean that's your infringement and yes but there is in the and let me just get back to what i guess i'll try to find what i sort of understand to be the the point in the specification you say there are new processes for making what is it ethical and scen people had been putting into a cracker before namely benzene because why would you put it in there it's not going to crack and why would you waste all the energy doing that but you now get a benefit of that and i gather your point is that doesn't mean that we are limiting the act to by the way by the process that follows that you can use this for anything so my question is why would somebody in of skill in the art have understood that concentration but also co produced everything again that was a big part of this invention by using steps a b and c not only do you get the benefit of moving benzene from a refinery source the reformation into the chemical cha but you also get these valuable by products at it that's not something that happened before and some want to skill in the art would see that that co production is a benefit the doesn't turn on the way you separate out those  term fractionation different we are looking at the entire chain between paralysis casting and scene and we believe you should look to all six process units and all the steps to determine fractionation we don't think the read and  step four claim one is limited to boiling point separation as opposed to separation for something else then the question arises was it proper to grant summary judgment of no literal infringement do i take it your argument point separation and nothing else you can have other steps in there the way your preferred body mint has a hydrogen eater step as part of step four correct and there's two points i want to make sure that any therefore answer and therefore the huge product or the you can still accuse that of coming with in fractionating is this doesn't say fractionating and no other process to forment correct and the two points the first is the one that you just made wonderfully which is fractionation does not mean only f so they cite to page eight hundred seventy two and that is a shell's engineers declaration so here's the part they left out the sulfa lane has a preferential affinity for aromatics effectively making been seen behave as if it joint appendix so you say in this patent fractionation is only a species boiling point separation as opposed to others where does that in where is that indicated by use of the term fraction of a from part b you would never say separate from the whole unique cause because what comes after it separates this part from this other part you could not english language aspect of the fact that the direct object of fraction eight is not the parts it's the whole respectfully disagree your honor that the term fraction it without an adjective is crucial to the precision of step but i want to focus on the more important aspect of this of the contrast here if we go to column two we see that nets are says he's come to solve a problem is the problem you referred to earlier rather which is the problem of trying to use crackers to produce less pure benzine for a new market here's what he says in column two he says there's a problem because of as we have troops that makes conventional fractionation impossible what's the problem the problem is as in troops be but when you want to do is keep pushing together things that are stated more precisely right if you're using conventional fractionation which is boiling point separation then there's a problem with  next paragraph the next paragraph nets or tells us that the conventional way of solving the conventional m on column two starting at line twenty one page eight twenty column two starting at line twenty one the conventional method of your honor even my adversary has said in his brief that extraction is a technique that solves separation problems by solubility differentials not by boiling point differentials so your honor just to summarize this section is contrasting fractionation whether conventional or otherwise on the one hand with extraction or extractive processes on the other hand and netzer is saying i've come along because there's a problem in the fractionation world and i could just go back to the key the key not infringement evidence is not disputed the evidence about shells processes is that in the record at eighty nine forty two nine forty one and i have no confidentiality bar whatsoever in sharing with you what judge  already described the extraction process that shell practices is the one that purifies benzene from fifty seven percent by wage to ninety nine percent by weight so the process the undisputed step distillation the key point is we perform the crucial separation step through extraction and that's undisputed it's at nine forty genine forty one it's the undisputed record of what our processes and because we rely on extraction we can't this judge laurie already described to infringe step four so your honor if i could respectfully just suggest the genus a separation there are about extrinsic evidence that or uses outside the path of that term in two different ways one is there are different uses all of which are perfectly permissible and others are evidence going back to i think the earliest one is nine hundred fifty seven patented than one thousand sixty three patent and then i mean on and on and on talking about all kinds of different non boiling point fractionation your honor then i would say that that's or should have written this patent differently if specification informs the claim but with respect i don't think we should even be talking about extrinsic evidence because inside the world of this patent the specification that column two forms the claimant column seven step four and its nets are himself who said listen to me folks there's a problem with fractionation he says there's a problem with conventional fractionation and the problem is as he approaches and here's how i'm going to solve it i'm going to come along and crack the forty fractionated now we're not on those steps we're just on step four that's the only thing that's before the court and he said why is my time technique better because that that stuff that shell does the euro p process that solves as the troops through solvent to through solubility through  extraction not boiling points but that's too expensive that's too expensive and it makes the benzene too pure more than the market needs there's a market shift that's why i gave you the invention that's the major driving force behind the invention what we learn from nets are that we're that we went to live inside the pat have to be different from fractionation because they solve the boiling point problem and they have to do it by something other than boiling point scale to the question i asked mr steve garza is there anything in the record that indicates whether if you use  crackers to allow you to fractionated after crack and another way to ensure this is there any evidence about whether for fifty years or it's only more recent that you started doing what they accuse you of which is doing to be clear we don't dispute that there is fractionation as properly construed in this patent earlier in our process it's just that it's just lauri said the fractionation through just elation doesn't get you over eighty percent here benzine it  you to fifty seven percent and that's undisputed that's record nine forty nine forty one it's the chart in the blue brief itself at page fifteen and if the things we do that are fractionation through boiling points only get you to fifty seven percent we're not getting over that doesn't mean that fractionation is broader than distillation i mean cooking is a genus so taking and baking are species if i say i'm so tang in a frying pan it doesn't mean that frying includes baking it doesn't mean that so we think that you can read the dictionary says it as well as the district court we also think the district court to the extent there's a factual question about the extensive evidence we have this debate the forum my friend said fractionation means any kind of separation we said no fraction construed as boiling point based that's or told us that in column two in the specification he could have written it differently he didn't we don't practice any fractionation by boiling point at the point when we change benzene purity think i have two very quick points first there is evidence in the record on timing a ninety nine forty nine shell has a flow diagram that shows how they used to perform the process of february two thousand and nine and they did not separate out of  refraction if it does not crack it now there wasn't depositions we don't know where and the point of the question and i assume the point of the answer is that it suggests there is actually some benefit to the last step process of doing the steps he and three you are using crack and yes and yet we don't know but i do have in my reply brief what i believe to be an explanation for this but again we don't know the timing of shells change was february two thousand and nine and as we say the reply brief in two thousand and seven e p a did lower the amount of benzene that was allowed in gasoline so this is one major benefit of the patent you take reformation that has been saying you now can't use that reformation and your gasoline pool because the referent has a lot of benzene so using that serves invention you get to take rest from eight that would normally go into the gasoline pool separate out the benzene and transfer it to your chemical processes to purify i've been seeing so that's why i believe shell made this change the timing was so that they could reduce the benzene and their gasoline but again without deposition it's not something we know for sure s because there is a problem with not being able to use boiling point separation unless you do something to do it because of the c of drugs right what is it that says nevertheless the solution you address you adopted to address an act problem is a solution that we intend to be usable even when you don't use distillation but some other separation process after you've gone through it well the best evidence after that is the file history where the file history does it met at a page eight hundred sixty one that this is a particularly good useful method for creating dialup and single but they stop short of disclaiming high pure benzine again they had the chance to do if they didn't do it and that's what happened