credentials he has been a wonderful law clerk and we have enjoyed having him and will be sad to see him go he went to yale law school which i forgive him for and i i tell him constantly it's because that undergraduate degree in economics and math from uva grounds him enough so that so that it brings him down to earth and down to my level  clerked for judge mays in tennessee before he on the district court before he became a clerk for me and he's about to go become supreme court fellow at some point he'll maybe get a real job that makes money but in the meantime  is progressing through the federal system quite well so i am grateful for all of his talents and for the for the fact that he's so fun to have around and with that i move his admission i do not know this man good enough for me it's fine i think it's funny i like the fun part i've gotten to know  in doing so the court committed three fundamental errors first in rejecting doctors on surface hypothetical claims second and stopping the analysis there and third and failing to recognize that this issue has not been properly preserved in any event i hear you saying that it was the court's job to come up with a hypothetical claim if yours were an adequate no as you know we think ours were adequate but if they were not if there were some difficulty the court had several options available to it it could have been after then a filing a problem a type of climate could have modified that hypothetical climb it could have come up with its own it could have requested as one does say in an argument submission of a equivalence that you're seeking under the doctrine does not it's not a firearm right ultimately yes so i mean the first step of not journey is coming up with a hypothetical claim i think that your responsibility and then as the patentee and not the district court's responsibility or where the defendant's responsibility it's up to you to imagine what your conception is of the range of equivalence that you pick up the baggage want to mean in a moment like to get to why we don't think there's a problem with the right that a claims but assuming there was which is your question mark means that i think the best analogy may be the only analogy where of it happens every day in this in this probably in this country where a court rejects the plaintiffs proposed claim instruction on a claim term the court doesn't then refused to construe the claim charmin dismissed the suit the court instead issues what it thinks is an appropriate claim construction and the supersedes under it a more draconian approach after a jury verdict makes little if any sense and again we weren't saying that the court had to just toss us out and start from scratch and said could do it say this court didn't stream feeder or extreme fear this court rejected the plan that been proposed by the plaintiff accepted by the district court if the micro elements in the express products were not connecting stress within the language of the of the claims they nonetheless are of the same collection as a connecting stride because they connect to the macro elements with a three part connector to it to impart flexibility which is that the purpose of the function of the conducting struts so the way the clam hypothetical claim three attempts to address that is by replacing a requirement of a specific geometry th grant flexibility and instead just putting in what we view as a broader functional limitation of flexibility i guess if we're moving on to whether or not your hypothetical claim is a legitimate claim in the sense that it only bro doesn't feel any form of narrowing i guess what troubles me about the calling is that it talks about having a connecting struct column that provides increased flexibility compared to the first and second expansion columns and so i understand the patent does talk about a connecting struct column providing some flexibility you know to the overall stand but now  claim limitations speaking in a comparative that i didn't see anywhere in the patent and now i'm wondering what does that mean to be increasing the flexibility compared to the first and second expansion call understood intermediate non parallel section and there is nothing in that issue crying precludes the possibility that the connection struck common to have the same amount or even less flexibility and whatever the importance of having a non parallel intermediate section is to provide increased flexibility these are v a in comparison to the first expansion column and the second expansion column it's true that's the first those are first time you see that t of the architecture in there it only takes out the non parallel intermediate section places that with type with the flexibility because that's what this does what they said was not present in other words you have three parts down right the  so if the literal it stands up because the jury concluded that the microphones are expansion not connecting struck and so your theory as i understood your brief is there's nothing wrong with accused product mapping on two different structures in the claim in the claims clearly calls for expansion columns to be coupled to connecting struck columns and i don't understand how this micra element can couple to itself in the sense that it's i don't know some kind of jekyll and hyde role where it's both jekyll and hyde at the same time it's a little schizo phrenic to understand how this one feature long is that your expert didn't explain why in the event that there is no literal infringement this expansion column in the i me the micro element is also at the same call it anything you want the point is that what's there in the middle of the micro element you know whatever else you want to call it it functions it has the same subject with a functional unresolved as a described connection connecting struck because it couples the two things that are on the side of it with with in a in a way that adds flexibility and he presented extensive then dr prevalence of testimony including fighting a benchtop testing funny element analysis but yes these are doctors showing that what's in the middle there or whatever you want to call it for  nevertheless also at the jack same time serving the connecting strike column for purposes of claim one even though you don't have to make any adjustment to it in you know order for the rejected simultaneously wants in an order that simultaneously dismissed the case there was no iterative back and forth like one would have a marksman which is really only now when she said the court did something totally unprecedented which was to overturn a jury verdict based solely on its  court doing it did what this court does from time to time in many many number of contacts which is to say party a loses and even if they were right they lose for this additional reason even if we gave them the benefit of the doubt even if we threw him a bone if they would still certainly didn't say that the that this court was obligated it just did it it didn't explain why and i think the fairest reading of why it did is to say it wouldn't matter there was no saving this claim it was just as you were comfortable in our initial really sitting here today you know we we presented what we thought was the most straightforward hypothetical claim which was to scratch out the specific geometric limitations and then said is that read participate in this process and so they fought trying to get to involve themselves but at the last minute they threw six claims our way as part of the meeting confer and we wrote back and said no those six claims don't work for one o eleven but in any event then as the the transcript reflects the judge walks into the courtroom and says how are we going to handle eleven claims and the plan of comes as well your honor we've reduced it to two and they argued hypothetical claim three and five so to say it was an iterative is not i think reflective of the record it was iterative visa v us we explained our own it's not like we surprised them at the hearing and said here's the problem with the claims we had extensive discussions with them and that's why i went back and forth and back and forth and then they decided to take two claims to this report one for the argument that you can narrow and in ways that really don't re how this process works in plaintiff's briefs an argument which is once you get to the hypothetical stage in quittance doesn't matter anymore equivalence is irrelevant the question is here we have a claim it's of this scope we know it's not infringed now we need to expand it such that it infringes we need to expand it just enough that it captures the accused product as a literal matter of equivalence is a relevant at this stage of the proceeding so now that we've expanded it to cover the device just enough now we're going to say does that also read in the prior art and if it does well then you were you're not entitled to that claim school so your point so that's that's kind of a myth even today we're hearing a little bit of a misunderstand of how the process works but then to your honor's direct question what the courts have said and stream feeder says and i believe it was all true texas well is we're not going to redo what happened in the patent office and if you're nipping and talking and expanding and trimming we're not here to do pat prosecution for you and so if you're narrowing in any way shape or form that's not allowed the only thing you're supposed to do is take that circle and expand it just enough so now it literally covers the accused device that's that's the process and that's not understood now on hypothetical client three i want to point out a couple things that may have gotten lost in the wash which is that the district court took expert testimony to live expert testimony subject to extensive cross examination and the district court found and this is i think bail levon as a result of that testimony found that the client the hypothetical crime free was broadening so we hear attorney argument as to why it wasn't broadening but this isn't that the novo question here we have underlying discussions of fact by the experts that the court accepted the second thing in your honor this goes to your point there's something there's a little bit of a shell game going on and what they did with hypothetical claim three because the original claim called for the first connecting straught and then described it shaped so it said it has to be non parallel that was to the struck but the hypothetical claim doesn't talk about the struck it talks about it's now says the first connecting struck column is configured so not only are they adding these limitations to narrow it they're even changing what the limitations talking about they're no longer talking about the geometric configuration of the struck they're not expand the claims only enough to cover the accused device and not so much more now counsel is right that if you expand too much you can actually help us at the end of the day but i take your point it is my fundamental point is the district court found not just as a matter of grammar not just as a matter of common sense but as a matter of fact in light of expert testimony that adding the limitation narrowed the claim in contravention of stream for i briefly  any kind there is extensive discussion of function in the context of an a literal infringement analysis and one of the reports but it's not particularize and more importantly there's no way there's no way discussion at all and it's not tied to any claim the record but it's not argued in the brief the reason that the microwave limits are more flexible is because they are small not because they have that architecture they are smaller and thin so it's a matter of of the composition of the metal not the geometric shape now the reason that's not in the rector at trial is because their experts couldn't say they operated in the in the right way the same way they knew that that even under their equivalent theory that the that the function of flexibility was not met in the same way if they had had to put that in a particular rise limitation by limitation approach as called for in aqua text that would have been brought out in stark relief should resolved as a practical matter you're probably right here we struggled with this issue to iran or as to whether it was an alternative route for from its or process here's why we called it across appeal and i leave it to you for your honors if you think we we fell on the wrong side of the line if tomorrow they sued us on a different product prior to the patents invalidation and said well ok so express isn't up a contingent payment product but this stent b is then in theory this in the issue of the import of the patent office activities etc would be relevant to to stampede now the odds of that happening are a strike if we a under some characterizations of the tast it's a cross appeal it's not an alternative route for a firm and as a practical matter under the facts of this case you're absolutely right with that unless the court has any further questions i will thank you give back some time you know ok will eventually look at us always focusing on them sure having that language in there compared to nothing is limiting but as a replacement it's not just the important thing and it's sort of the dance around page appendix fish one one one seventy with another if you can call that having but it's really replacing and there's nothing wrong with that because that's what you you necessarily have to do in any way the scope of the regional plan one regional plan one is like a is the same as the way that it's broadens for hypothetical claims because what you're looking to do is just to test the equivalence theory a trial against the prior art and if there's any other immaterial narrowing it doesn't go to the equivalence theory of trial the theory for infringement it's not a problem which way you know in another abstract context i can see where you could have a situation where that could be the case but remember here you know under the specification under the expert testimony of both parties x vs what the it is a micro element of the micro and as flexibility in the point of the connecting struck the whole point of the cannot destroy this at flexibility before the invention which goes back to the you know the mid ninety's it was understood that it was the problem was you had the stunts that were really there was the point that he said that structurally you can envision a connecting strut that would that would claim to connect things from that would make make the accused product literally in france that claim but it would not provide the flexibility that is necessary to to not read on the primer hopefully not sitting coming up in language but if some sometimes the most obvious things are the ones that are said and technical documents of the whole point of the expansion columns right is that they provide the strength they have to be bigger and stronger that but not all of them in the prior are did provide this is the question most want to get back to actually was your question about if you got your hypothetical claim how could possibly what instrument anyway which i think is really important because the district didn't reach it we haven't really discussed in the briefing but i understand where we were back to that point in time design in fact brown uses a connector for stability and actually teaches away from using it for flexibility which is the exact opposite of what dr john invented and the reason that and this being a groundbreaking invent is part of what helps explain what b s you paid fifty million dollars down and then you know with additional payments delayed which is what we're here to talk about today all we're asking for there was a chance to actually