way haitians normally function therefore there discovery that introduced variability into the provision of the surgical fluids in order to make sure that there was an emulation of the way that the patients normally function can  this question and maybe more of a medical question than a patent question if the object of this fluid delivery system is to produce something like to emulate as you say what a patient not reading aid would be getting how is it possible for  delivery not to take into account patient efforts so that your view is that the claim is to be construed so that the delivery of the fluids is patient independent sane volume and rate of fluid delivery whether or not the patient contribute breathing so the device has to take into account whether there is a patient breathing or not and the variability is intended to provide a variability to whatever dast or fluid is provided to the patient so patient is breathing somewhat the variability will take into account that fact and will not provide the patient more oxygen or blood in the patient can possibly handle and if the patient isn't breathing at all or supplying any of the blood and that variability will be introduced to the provision of the hundred percent of whatever the oxygen or blood is being provided to the patient but i was like what's what's the purpose of the limitation that i'm confused i assumed that you would maintain the same variable flow irrespective of whether the patients was breathing or not now the variability so if we look at a sign you slid away for the period to see in volume will vary whether or not the patient is contributing in other words you do not your flows going to be the same whether the patient makes an effort not no work what we're saying your honor and then i'll get into this when i talk about the prosecution history but the purpose of the distinction over the prior art was the prior art said well if a patient is providing this much effort we're going to add an additional increment to ensure that every single time you have a target volume provided to the patient in other words the provision of the volume is monotonous the patient will get the same amount of oxygen every single think we're all talking about the same confusion or at least it's my conceit in the prosecution history you distinguished  his own and yours doesn't your isp provides that same machine supplied contribution based on a pre determined pattern from studies of animals or or whatever and that the machine does the same thing regardless of what the patient is doing is that not right that was not what the prosecution history says your honor if we actually look at it it's actually replicated page a seventeen of the opinion back and looking at it says a couple of things the first part of this the wiki reference is concerned primarily with the weaning type a ventilator wearing gas flow to the patient's control in accordance with the pressure volume control are to ensure the delivery of a target volume to the weaning patient while taking into account patient effort what this is saying is that we have a monotonous provision of this target volume albeit in conjunction with whatever the patient is contributing and then it says in the absence of patient effort so that we don't want to talk about what happens under so wait to see if there is no patient effort the system described as to which he will deliver a monotonously regular titlebar human respiratory rate according to the preset values programmed by the operator so whether the patient is breathing or not understood witchy you have this monotonous provision of surgical fluids that's what's being distinguished in the three five zero pattern not whether the patient is reading or not account when the patient is delivering some of his own fluid and so the machine contributes less than it would if the patient is not making a contribution the object being will be adjusted to take into account what the patient is doing for itself and you're saying we don't do that our machine gives the same contribution independent of anything the patient is doing up only in the event that the patient is experiencing it all in your honor i mean if we have a situation where the patient is breathing there has to be some account taken of that patient breathing effort i was that different from provide for the same amount of oxygen to the patient every single time and then how is how instance how is the three fifty different because it says at the end of the day whether the patient is breathing or godly or not we're going to get a non the inventors found out was patients don't breed with regularity both in terms of timing and volume over and over and over again so if they're undergoing a surgical procedure or what you're providing to them is surgical effort it's doesn't matter because you're you're you're adjusting to the patient effort as it as it goes along so what what was the point of the limitation that about no patient ever will why why did you agree to that we didn't your honor there is no there is no passage what it's really talking about is the distinction between a monotonous provision of surgical fluids versus something that various the provision of those fluids whether patient breathing is involved or not that's what the entire intended to distinguish because if we actually look at what was added to get around the wiki controlled life support conditions were drager would have a court believe that that was padded because no patient effort was to be taken into account but if we look at the language controlled life support conditions that doesn't do the trick if that's really the distinction that the applicant was intending to interject because one can imagine a situation where the patient is providing ten percent of the oxygen and the machine is providing the other ninety percent there can't be much argument that that would be in control behavior for tradition the patient would die if the patient didn't get this ninety percent of the oxygen from machines so i don't think anybody's arguing there nor did the district court conclude that the language in the claims was absolutely clear and dispositive here he relied on either she lied on the prosecution histories that well the question is whether or not given the no dysfunction  claims and prosecution history can we rely on that as you're saying that this was misread people are taking yes you're right one sentence may be out of context but the sentence seems quite clear so it's just really hard to millet to make of this what your honor that's why this court is unmonitored over and over again that we don't read sentences from the prosecution history in isolation we have to read the entirety of the prosecution history and we also have to read the specification references you're talking about the monotonous provision both in terms of time and volume surgical fluids to a patient and that this invention varied that up to serve the needs of a patient to said it's pretty clear that some of those patients at least are capable of reading on their own then if we actually look at another embodiment which appears that long that page eighty column three and this is it line twenty nine th cardiac output not no cardiac output but adequate heart cardiac output so these patients are actually able to pump some blood just not enough and this invention applies to providing additional blood to them and because the claims are talking about biological fluids and not just oxygen it would be illogical to say well the claims don't take into it there can't be any patients breathing when we're talking about that aspect of biological fluids but if we're talking about blood the patient can have some heart activity pumping some blood you have to construe these limitations to be the same so if you're talking about oxygen or whether you're talking about blood they're all biological fluids and the patent very specifically contemplates situations where the patient would be would be providing some of i'm not sure what the proposed definition of talent is posing now he had one at the lower court hearing he proposed one in his reply brief i'm not sure what his current proposal is  history in this case so why don't you tell us why his argument with regard to the prosecution history doesn't have some weight if you use you read the provision in its entirety sure and it is part of that can you point we go to the  patient effort or they don't in the programmer has to choose which software is going to run are we going to accommodate any patient effort we're not  defining or designed to accommodate patient effort and it says a patient accommodation to patient effort now here's a term picked up by the patentee in his arguments for prosecution accommodation the patient effort or control by the patient is defined constantly is going to synchronize the timing of the in tail and exhale and in in the first amendment the patentee relied on this control of the rate and the volume the rate of control is only part of the first amendment the first amendment had two amendments the for the in the first instance they said we're going to distinguish that we see on the basis of controlled life support conditions and then they said in contrast to stick with the we are not in control devices for conditions and then they said even with that we keep even on that distinguishing point we're going to add predetermined pattern make the pattern predetermined and so the arguments if you look at the first amendment clearly had a first set of arguments about control life support conditions where they defined it and then the second thing where they  we're going to get to a six or seven so just as the court as they've started the end is passed and started on a six o seven about the one two three fourth paragraph the present invention is concerned with controlling the flow of biological fluid to an organ during controlled by sport conditions in then it says the species is one which is wholly controls the flow of ventilation gas let's turn to page four or page six zero eight the next page and forceful paragraph the sticky devices relied on the examiner is concerned primarily with the weaning type of ventilator which provides assisted ventilation to a patient rather than the present invention which is concerned control life support condition he's drawing a distinction of the treatment conditions the circumstance of the patient here and this is to grasp this the seriousness of his amendment in the first amendment he added conditions to three out of the four paragraphs of plain one he added predetermined to describe pattern in only one of the i'm so i mean this was a very significant amendment that he made and he is arguments speak to that and let's just stick with the earlier discussion the earlier case i think talk about the disjunctive or conjunctive and let's show that he actually links his two arguments he has a first argument and a second argument that he relies on as just as he had a first amendment as a second really saying that that that this device wouldn't work if the patient was breathing that he plays and that's the claim device claim device right the claim device i don't see any way it would work so when he says when the patients with the the control over rate and time a rate and bottle ok if you if you dictate the rate you are not accommodating patients initiation of inhalation and actually can you just can't do it if you are controlling if you're holding where the ventilator is operated during controlled life support conditions not under weaning conditions so that's his first point and in which is first established a pre determined pattern plaintiff has talked about a pre determined pattern through all this critically ill patients are under life support note the claim to control life support conditions the healthy patients he doesn't say they're under control under life support they're just healthy patients who make the truth is also even if the i don't think there's any disclosure about healthy patients and whether they're grieving or not we don't know what helps the patient as we don't know what elective surgery is i have my hip replaced it was elective but i believe i was out and somebody was controlling like my breathing during  surgery or the but even if there was an explicit preferred embodiment in the specifications teaching a circumstance where there could be breezing under  has examples and i don't believe i'm going to point quickly to them where it accommodates different events that occurred with the with the patient for example if the patient costs rather than the limit let me try to make that it's maybe confused  you could have a monotonous slow produced by taking into account every single instant what the patient is doing and subtracting that from the amount you're going to contribute but that's the net contribution is constant i took the word monotonous that he was using to mean that maybe i could get it wrong that is for certain it would not  look like inhaling and exhaling there would be no down period of net intake which strikes me as odd but i'd like you to show me in in and you're only speaking about not just in in terms of volume not in terms of rate i think it is claim requires bob's monotonous as it control of  you see him dusty do you the discussions that marks like a waveform to me but maybe it's not a relevant way it doesn't look like it's monotonous if it is it's only a volume of volume over time but it shows that the different breasts had different  i'm just not sure if you're trying to find out whether the wiki actually teaches at the end point of inhalation varying the volume of the patient breath to breath the ultimate what we call tidal volume the volume this or this there see by the nation whether by his own effort or by the machine i'm not sure if that's your question or the degree of assistance change is diminished as as as elasticities changes the pressure changes it controls or by varying the pressure to reach the oxygenation i think it it talks and i don't have the exact site i think it well this patient needs x amount of volume minute volume per minute then we're going to make up more depending on what they've already done we'll make it up to ensure that the average for the minutes the minutes volume will meet the what mr jones said last my point exactly the wiki is intended to make sure that a patient gets a target or prescribe volume a box of oxygen in addition to whatever the patient's provider so if we look at my five so this is the resistance that mr jones was talking about thus for graphs with added resistance of patient efforts causing the actual flow rate d v over d t to be less than the prescribed rate flow target then the pressures to the patient are increased similarly when the patient because of the actual flow rate to exceed a flow target the applied pressures are diminished the point is which the wiki wants the patients to get the same volume of air taking into account however much the patient is breathing that is different than the three five zero pattern and that was the distinction made in the prosecution history now as far as no one body  mr jones said that taught patient assistance as i mentioned before i eighty c which does talk about blood but that is part of these claims talks about the patient providing an adequate blood flow so that is a circumstance where this invention is intended to work with a patient's efforts not independent of them not ignoring them so the patent very clearly enable someone to take this invention and apply it where the patient is able to provide some of his own surgical fluids