to justice just in general under the douglas case which is continues to be good law as far as we can tell that when there is a report recommendation from a magistra and that report recommendation that goes to a district court judge who has to consider whether to adopt it anything you don't specifically object to and you later want to appeal forget the abuse of discretion standard or whatever other standard would apply your now limited to a plain error review eyes you can imagine when you're raising indefinitenes properly determine the meaning and scope of the claims yet instead of construing these terms the order or simply states that each of the terms presents a claim construction dispute this is a clear legal error where's your likelihood of raised with the district judge ok here i think it was released with the district judge you think i think we're talking about abuse of discretion so you think the sentence that says you should have construed the claims is preserving your challenges based on indefiniteness such that the district court should have then been on notice that you were objecting to the special the magistrate's findings on indefiniteness that you think that should have put the district court judge  to be telling the district court that the term must be construed in that by saying that your preserving a definite yes your honor i do not believe indefinite does does mean that it cannot be construed here the term can be construed i think the proper construction be on the language and the specification is that it's completely subjective subjectively fill it is whatever the user wants in  so that's fine it can be construed but once it's construed in that manner the pattern is indefinite and specifically the connecting force has to have two qualities and as describ claim one first the connecting force must be sufficiently strong that it holds the container on the hollow tube without the container falling off when the container is substantially filled with water that's the first requirement stated another way if the connecting force permits the container to fall off the tube before or while it is substantially filled there is no infringement second the connecting for i agree with your honor yes these are functional limitations in an apparatus claim and so there is therefore an incredible premium on being able to determine when a container is substantially filled and when it has not yet reached that point and also we need to understand what we need by shaking to be able to give any means of this claim and one problem here is that one of werner's going the art cannot objective we determine when a container is substantially filled with water as the patent office found as stated by the patent office in its decision the specification teaches that containers eighteen may be considered filled when an individual user subjectively determines that he desired size or volume has been reached and the citations of the patent office relied on is in our papers in the court below the patent owners expert testify that one of ordinary skill in the arts of this is their expert would rely on these subjective passages to discern the meaning of substantially filled and i cite the court to the appendix nine nine five nine thousand six hundred other he acknowledged that one of the ordinary skill one understand that each of these different containers would be filled with a different volume of fluid depending on the size shape and characteristics of a container a page nine nine five this subjectivity is fatal here substantially filled for one user or for one particular use may be completely different for a different user or a different  the same device with the exact same alaskan faster can buy be either infringing or not infringing based on the subjective desires of different users that can't be the law consider for example a system floater bodily fluids is that are that's covered by the claim yes they are yes they are your own and so consider for example a system of containers for holding what which is one of the fluids and specifically identified in the patent when is the container substantially filled well let's say if you're going to use the blood from western test containers probably felt when you have a very very tiny amount that's all you need but if what you need is split for a transfusion then a much larger amount of blood maybe a leader is needed now the unresolvable question of when a container is substantially filled is made even more complicated by the fact that the containers cleaned in claim one can be filled with any fluid now it language is that claim one covers containers that contain or any kind of fluid but you have to determine whether the connecting force fireman is matt but that with water but that's more specific not less because different fluids have different weights and of course if you're using a very dense and therefore heavy fluid you know it's going to require less bill to cause it to break its connection and that so isn't it more specific and therefore less likely definite when it actually specifies the exact type of fluid who ship that should be utilized and with which shaking should determine when it disconnects no it doesn't for this reason to the point at which it will disconnect with thinking that's how big you feel now but you're out of the question is when i get it's a substantially filled doesn't fall off the tube that's the first test the second test is are i'm sorry before doesn't fall off before i get into the point of substantially fill the second part of the test is ok after i get it one of substantially filled can i shake it off and obviously a product that is made for use with fuel and is going to pave completely differently when i stick water at and i'm not going to have any idea but wait let me back yes i did i understand what you're saying sure that the connecting force entire limitation filling bonanza products and a bunch of bland products in the bunch of ones product is the patented product i think i guess what the spoils down to and everyone is really interested in substantially still but it boils down to the fact that telegram's hasn't met the standard for plain review and they said that the patent is in your argument as i understand it is that plain error is the standard that applies to every one of their invalidity offenses race here at appeal because they did not object to them before the district court and that the sentence he read about hey you need to construe the claims isn't enough to preserve an objection on a particular invalid if that's not or that is our position we feel that that sentence was not enough for the district court judge to go back and say you know what do you want to construe why do i need to construe them there was no dispute at the lower level when you were here in my court so even though i don't for example obviousness and indefiniteness all of our argument was focused on indefiniteness today even though those are normally legal questions and we don't review them to noble on appeal be reviewed them for plain error and just a very very deferential standard correct absolutely or in this case yes yes of course i didn't mean generally because if they were raised obviously in the lower court if they had given us a chance or given the judge a chance to have a i logged about this and you would have a lot more record in front of you obviously and i think that's part of the response that is the standard you agree though that they did raise the infringement or they did raise the infringement argument which i think is pretty cool actually because in their infringement argument as a four hundred sixty two their expert actually said about their products why it doesn't infringe because the balloons naturally fall off the tubes when the balloons are substantial the associates degree in engineering which is the standard here or you're not here for my nine year old son i believe me their bio degradable but they're hard to clean up known as when these balloons are substantially filled such that you can shake them off and throw them at his friends and his parents so i don't think fill is indefinite in any sense of the word in fact this court has never that i found anywhere or that they found that i could find found the words substantially or substantial to be indefinite you have person can say well this is phil i'm going to hand it to you now but they just put a little teeny bit of air in it no it's a common term that we all understand what it means seen with what exam argument the concern is at what point you know that you're substantially you know you're substantially filled when well in this case in this patent when the balloon is released by shaking it's what we say but i think that that's a subset of when something substantially but i think substantially thought by itself is something that is capable of being understood by somebody skilled the art that's the only standard to apply to the terms of century thought here i mean they're experts at in our experts and we know when a hard container substantial everybody knows that what suddenly when it turns elastic makes an engineer say i can't figure out that substantially fell because it's elastic now it's made out of  saying we always know in our containers it's actually thought that's a functional application saying well if you're using that liquid for a certain function and i think that that's not the issue here is the issue here as well but the question would be if you needed three milliliters of blood and you got to two point nine eight you would say well it substantially fell exactly or absolutely with that but it doesn't matter whether it's into a soft sided elastic container or this you're going to know when a container substantially built if it was a hypothetical forever expanding container then perhaps you wouldn't know a struggle suggested that your experts seem to suggest that substantially field you don't need to go there because we already know it's substantially filled me substantially from the substantially felt you can look at you can screw this into a hose and you can see oh ok it's substantially filled and i can shake them and they fall off we know how this works in fact in telegraph directions which are included in the package continue if you'd like and kind of go through argument i don't know if you have anything you'd like me to focus on but i don't want to burn your time if you feel that that's the primary issue for us and that was the issue that mr underhill ok this time if you reach anything he didn't focus on you allow him certainly raised with the magistrate that's really not an issue the question was whether the connecting force limitation which is defined in part by substantially filled render the claim indefinite the magistrate found however that it was definite said is that substantially still is when it falls off the bloom well that's wrong the claim limitation sets that once you get it to substantially filled it can't fall off by itself before then and after you get it to substantially filled you have to be able to shake it off so if you can't shake it off there's no infringement so the substantially filled question is simple as a lot of cases where you look at and say yeah it's almost there the problem is the pattern specifically defined substantially filled as filled to a desired socks so we really are left with a completely subjective