is an appeal number zero five to one six one two dense play international versus hue free manufacturing let me ask you something about your grief and like to direct your attention to page forty of your brief blue brief at the bottom of page forty  quotation that purports to characterize a finding a critical finding by the district judge and in the final line of bottom of forty or three dots indicating a omission of some language you see that through now as i understand it the method claims require that before drilling the solid metal tip piece had to be bent and they're for an accused product where the sequence was reversed wouldn't infringe isn't that right well well as i read the claims they require that before the drilling commences the bending must conclude therefore if the sequence of drilling  vending is reversed that claim limitation wouldn't be met and therefore there couldn't be any infringement isn't that correct that may be correct but all right now now if you here's the problem i have with your lips these pay forty of your briefs what what it leaves out is the sequence of drilling versus bending that was in the judge's fin and what he found was that there was drilling before the bending which would take it out of the scope of the claim and this truncated quote completely masks the heart the soul of the looks to me like it requires that the bending to get the location of what i'll call the port has to occur before the drilling starts and that's not true in the accused product than how the tool shaped when it's being  now as i recall the cranes also required that to be within the scope of the claimed method the the temp had to be so if you think of the tip of an answer to the end of my pen well stick with me on the simple geometry of solid versus not solid i understood the claim to require that the metal piece comprising the tip of the south if it's this comes down to whether or not the tips are separate attachment doesn't it and looking at the specification it is replete with references to of the attachment one fifty three fifty one column three forty and fifty is a particularly good one it says it is the object of the invention that the tip is attached and of course it's hatchings the tip means that it must be separates in order to go through the attaching process doesn't the specification support the lot out of the internal of that quote but it's part of that quote that it is the object of the invention do have an attachable to it meaning it's separate how do we get around  tool to point it to those seem to suggest and then you have a fluid outlet and then inlet and suggesting that there's an end to the tip on the tool side of the  of the entire configuration meaning that it is and attachable tip the language of the claim seems to support the district judge again  you are in your claims are talking about the kind to take off all the time because it has an inlet and that's the no that would be the other one would have to be the at the tip is the one that has been let in right and if there isn't a second in in this configuration there's one and that's the fluid outlet  well how can you drill this thing if it's part of the connecting body as opposed to being a separate solid metal piece that you bend and drill just as a practical matter how can you do it if it's already integrated with the upstream all right anything further i would like to read or write very well thank you very much when it has kept what figure three shows are figure three is a subset of the specie of the genus of kit that's the issue in the case of the fact the fact that this diagram dramatically shows to the connecting body it talks about raising welding presbyterian screws all of this reflects that when the applicant said what he meant was an attachment to a connection why why isn't it equally consistent with an interpretation that the two kinds of tips are attached tips and not attached tips in the case of a knot attached to you have to weld it or braids it or solder it or glue it or something and so for that category they show you how you do that that doesn't object nor do they describe it as a tip region or and region they say to that word has a meaning it reverses civic structure if you look at the specification and the description of that structure which is most clearly illustrated in figure within the crane language well i think we can get around the again these are methods claims they claim a method of performing certain manufacturing stops on a specific structure which the patentee call and then various other steps of what happens in terms of feeling inventing and so on doesn't the use of the word comprising preceding the word tip suggest that as long as it has the tip of it has something else connected to the tip that wouldn't necessarily take it outside the confines of the client no i don't think that's correct your honor i think the term comprising the first of the fact that the insert which is in the preamble and which by the way that's pleasant or argue that that's a limitation plant the preamble that the insert comprises i warning not enough public notice function of of the claims if they're going to have some undefined broader scope that's exactly right it's that some of the certainty of written description and enablement in this pattern litigated below no it was not so the claim construction was done wholly separate from any assessment of enablement that's correct around there was sounds some people may be may be wondering whether that's such a great idea i know in general we've said you first you do claim structural and let lady worry about infringement and validity and even enforceability but issue as i said before the test is a structural limitation of the africans inserted into the claim there's no dispute that it's a limitation the question is whether it can be  is a structure that's missing entirely and you freely cannot cannot we have one piece connecting body with no attachment whatsoever and there's no structure that corresponds to or functions as itself isn't that you're always missing a limitation in the doctrine of equivalence it's just that sometimes we say it matters and sometimes we say it doesn't and we have no principle for discerning between the two doing well  this court has provided it's a tally of circumstances past which is not a test it's simply it's way all the facts in this wouldn't you be better to sticking with the function way result test something that gives you a little more anchorage than dishy a sion i know the supreme court wrote it in that same time this court realized it never worked but that's another story yes your honor actually whether one applies here we argued that as a first line of argument because this we feel that under the the fishy agent factors as stated in the three minutes eight cases we've been perfectly under those factors because this is a simple mechanical device the point is simple it's not complex and it was very foreseeable what these variations were because in fact the freeze always used a single one piece connecting body the parti competitors from before the time that the patent issued and there's no question that this was out there and foreseeable so under the all its real test we think the argument is strong but you don't have to stop there because the court didn't stop there the is not this is substantially different from the so called tip region i don't want to use connecting by the court found that among other things as a judge on the shelf suggests that it is substantially more difficult to create a passageway   very fine tunnel that's being drilled through a very small piece and the way to do it with a tip and what the patent disposes describes is drilling is bending to drilling through the incorrect it's slightly correct your honor i think that the district court cited was the insert when you finish with the product at the end of the day they both have a similar to the cleaning function but if you focus on the aspect of the invention it's cla d that it's substantially different so you're focusing on the fact that it's a method claim rather than a product terms or equivalency you know focusing on the fact that the limitation that's at issue here is a structur where one might more readily so that it's equivalent to have identical or substantially don't tickle product made in two pieces rather than one whereas if you were concentrating on the method which claim one  is matter and then the others or whether it be nothing stops are met in our position is in the first instance as an initial matter you have to determine whether you're practicing the claimed stops on the claim structured in the secretary difficult with the with the one piece and another but he also identified a number of other ways in which the manufacturing stops have to be changed substantially in order to accommodate the  accused product as opposed to the point so maybe your strongest argument is not clearly erroneous maybe not right but not clearly erroneous that's certainly an argument we serve here there's also know that i would translate that argument to be since we shouldn't win on liberal or frenchmen it doesn't make any different about equivalent infringement that's correct but why didn't you appeal the grant of the summary judgment of no literal infringement when it was great there was no sum now that's quite regular to have to get a fifty four b certification to split the two types of information on a par i was just curious about why that wasn't done but in the final analysis it doesn't matter where we think both counts will take the case under