press that point in your break the argument that the courts independent of all other errors should not have disposed of all of the claims as opposed to just the independent claims i believe it's an argument rich dependent claim to an issue here some one place in the records at eighty eight another place a date to another place that all the dependent claims from one through three and five which would have included like a hundred and some odd as over a defendant and the defendant can face the trust but there i'd look to the best i could tell the deep end it claims that all the claims are ultimately dependent from one to three and so on i cannot say whether there are no claims dependent on the client for twenty eight just hypothetically claim one hundred twenty eight is that i'm not following your argument if the limitations added by a dependent claim address the deficiency in the preamble terms it's in dispute here fragile gel then i could follow your you but as i recall the specific limitations added by the various claims don't address the deficiency or ambiguity of the phrase fragile gel they addressed other parameters of the claimed invention i don't believe that's correct i believe they do address the specifics of the job of the drilling flu but how does that address the ambiguity of how fragile does a fragile gel have to be to be covered by these claims they talk about characteristics of a fluid and you can define a substance by its characteristics you know well if you do it in a way that is sufficiently definite that's the issue in the case does that as a duty issue but i don't think it's fair to help or for the court to dismiss all the claims willy nilly with no support in treating them as they were an infringement question liberty questions where is the judge treating it as an infringement question can you cite some part of his ruling that shows that that's what he did or you just speculating that that must have finished thought process or what i judged is not true he just summarily dismissed them all in his order in the final paragraph in the judgement or there was no consideration given to whether those defendant climbs further features to the fr absolutely none is in his or her will of course they do because that's what makes them independent claim this if they had one or one or more additional limitations to those that are in the independent claims but that doesn't seem to address the issues that the added limitations would have to remedy the defect that he found in the phrase fragile gel appearing in all the independent claims in order for your point to be  correct of course you're right that it hasn't been treated by the court the judge didn't just dismiss it and assume this is but we can look we can look dependant claim by dependent claims to see if the limitation added such a dependent claim cures the ambiguity or not and if we decided it didn't then we would have to uphold his ruling on all the dependent claims if we agreed with his ruling on the independently parties had presented that question before judge davis actually adverted to the deep end it can't because as i say i mean maybe that one sentence on page twenty three in the summary of argument is this is enough to raise that issue here but it all right that's fine now we diverted you into point two which is sort of the fallback argument maybe we need to get the point i want well i want to is very important because it concerns more than before i'm sure but some number but which we don't know choli was a suggesting that feeling too is an important i'm just simply trying to make sure that in available time you adequately treat point one and the third point of my introduction was  arising here it's a plain construction it's it's a question of looking at language in a preamble and then looking at language elsewhere and then looking at the definition in the summary of the invasion and then looking at the preferred embod this is a very large point you're making i think because just a courts all the time have to construe claims they that they go through the market process and sometimes as a result of the claim construction then creates a situation where we're a claim that claim construction is correct is indefinite or it's subject to some other type of attack and what you're saying is that those issues cannot be resolved in summary judgment that type of issue can't be resolved in summary judgment if the opposing party can find an expert who says well that claim construction is wrong well posing that it's only when an expert is credible testimony as to an issue of fact involving claim construction not postseason understands the language of the claim in view of the specify page they would certainly be relevant if the ground of invalidation had been written description that you'd have to combine what was written with what the policy to already knows it is head but where we're talking about whether language is too ambiguous i don't see that the pose it comes into the analysis at all i thought that virtually every case decided by the court uses the touchstone of the understanding of the seats as to whether the language is understandable and what will sure but but but in markman of and in the subsequent cases we in effect require the district judge and later ourselves to construe the meaning of the claims and hence whether they have clear meaning from the perspective of the ordinary or it isn't even though we all know we aren't the ordinary or isn't so it seems that you have to try to identify where you've crossed the rub con from linguistic analysis by district or appellate judges and go on into truly factual territory on which only the fact witnesses such as experts  can be helpful and not clear to me that we've crossed that line in this case when it resolves the in as far as i can tell boiling it down to the simplest  terms that to be the fragile jail claimed in this patent it has to have a certain speed of conversion between solid and liquid and back again and it has to have a certain strength when in the solid state to hold up the drill filings all call them so it's a question of how fast how strong and the only clue we get from the patent language is that it's fragile there are many objective actors in the claim and a proposition the part two of our proposed definition does not say how strong is a strong enough to suspend those kinds there it is when you say it has to be strong enough to hold up some unknown one time and wait of drillbit yield is this almost the same as saying it has to be adequate but it but a claim that the key limitation of which is that the claimed eventual has to perform in an adequate matter is looks to me highly indefinite who knows what adequate which produce the result that i end up with something that you would call a fragile gel i haven't i haven't made it i haven't copied your particular commercial embodiment i've just used the basic prior art elements and then added my own ingredients and i've got something that works just as well as you claim that your patented invention works that is to say it just spins the  those were completely the same way it has the same result which is that it produces a fragile shell now works who knows how it works i don't know how it works i just know that my my chemist threw some things together and they're quite different from the components in your product but they produce the same fragile gel function if they don't include the same elements or size of homes whether for ono they include those other than that i added new elements and they produce the functionality that you have asserted this is not a closed and transition chanos it doesn't it doesn't preach what seems to me if that's so then you are very close to just pure functional claiming you have in effect what you've done is you've equivalent to having a patent on a hybrid car in which your you say the hybrid car consists of a chassis for tires and engine and the capacity to go more than fifty miles on a gallon and no matter what i do if i build a hybrid car that has four tires a chassis and an engine it gets more than fifty miles a gallon fine print well that goes back to the more twenty two problem that was really difficult problem but you don't get every even if you have a breakthrough as a hybrid car is you don't get to anticipate the future of everybody else's invention by claiming functionality in effect what you've done is you isn't it the case from your answer that judge grayson's jail would infringe these patents that you have claimed not just your that certainly how can anybody how can anybody be entitled to that which he didn't invent but some other guy is going to event invent five years later that's the sounds nonsensical to me but i thought we already d you invented something that achieves that functionality but i think it's fair to say you didn't invent everything that achieves that functionality unless you can demonstrate that that that everything that achieves that functionality necessarily priority suppose that i'm a competitor of halliburton and so i go out and i copy a prior art patent formulation and i get the fragile gel out of that then i go out and use it in my derrick at my site and then you sue me for infringement and i said well wait a minute you can't do that because i'm merely practicing the prior art and you say sure i can because you're jail converts quickly and holds up the files well that's an excellent bellew question but that's not why we're here to do well it may be also a claim definite in this question because one would think that claim definiteness should not only distinguish between what's been invented by the applicant versus all the prior art but also distinguish over later invention so that it carves out a floor and a ceiling so that people practicing the prior art won't be sued for infringement and people later inventing yet better gels also won't be sued for intrusion but anybody who's copying the journals that you floor and a ceiling we have this case is greatly different from dayton but this with this case only has the floor as long as it works this well or better or way way better it seems to be covered by your claims that gives me a lot of trouble claim language which is what protects what grants the right to exclude the complaint is that that language is today no one saying you didn't invent something good nobody saying you should get a patent nobody saying the spec was from the picture on page eighteen but we're not talking about advertising we're talking about the requirements of the law for claim language i don't care what they say and then we're not the policeman of what we are required to be law enforcers of that's the minimum requirements of clarity including me that has to do with language coming askew about your reference to see the evidence in the specification but i wonder if you could turn to figure made a tremendous error when he rejected the l shit characteristic which is very objectively anchored and easy for anyone to see as easy to perform as well on tests in the field this condor the judge  lose the second it's not a problem if you are really better have something other than function though in that amount i mean if you if i went to the patent office and i said i hereby claim a a wasn't it certain i guess right but then at the end perhaps the patent drafter decided to get very ambitious and decided to go for the whole tamale and just wrote something which is going to pioneering invention in the broadway well it's just sometimes when somebody over reaches it makes the case a lot harder with respect to some of the other kind this may be such a case i admit i admit that sometimes it can be but i don't think this is such a clear case where the evidence is overwhelming say the seller i think there are so many objective answers in the specification fuddled that the district judge reached this result let's take claim one and walk me through the objective answers that would allow the competitor to know whether he's infringing claim course in our gray so whatever speed is implied by the l shaped curve on the graph that's not the limit of the claim but the claim is that plus any other easily dissolving gel well consider the case that you ha the slot in this case zero that's not a very clear turn right and yes of course well the specification isn't crystal clear but we are still going to sustain that argument was saying there are objectively measures objective criteria objective means of knowing what g l would infringe and what wouldn't and so i'm just trying to understand well what are measured and you point to words like easily and it's hard for me to see how that adverb easily is objective because it has no metric to deny and the beholder it seems my competing drilling fluid would infringe and you said i could tell by seeing it if it has an l shaped curve and i think you're saying that as a not going to do it for me i said you could tell whether it's a fragile  there is a prior art fluid that exhibits fragile gel behavior but is such a lightweight fluid that is ineffective to do the job of suspending so cuttings and waiting is also not substantially free what has been calling it is the question not whether something else infringes they're very close to the related i admit but intellectually the question is what was invented was the inventor  well the point about the l shaped curve provides all by itself provides deference now that may be due to a political issue of prior art but i don't think it's right for the courts to say language is an issue i agree that it's a very detailed disclosure maybe it's a model disclosure i don't know but that doesn't seem to bear on whether the claim language is adequately clear forty three further from the distinction drawn between the prior art and president mentioned in the specification column six lines five to fifteen also with the reference to column two lines fifty six to fifty seven which not to use the metrics that those measurement techniques would support well a patent after was confronted with a completely new type of fluid and is struggling to distinguish it for two to find  it and yes this was a difficult problem to get your arms around but to me it seems to me the patent after either had to claim the formula exact ingredients in the quantities thereof or claim that in largely functional terms but with some metric with some numbers in there the metric is not a number and in writing or o c and other cases that inventions have to do tell you sorry you will know a case that is based on numbers from reading specifications and this is not one of them there is not a single thing in the specification which says the invention depends on  we think we're entitled to that everybody talks about the asserted claims and even though i made i think a reasonable effort to try to find them i couldn't find it for exactly this reason i want to see what was an issue you know when i go back and look i had a copy but i don't have it right here there were originally the is jumping a critical step in the analysis they're actually confusing the validity announces with the claim construction analysis what their claims destruction analysis is is trying to put the boundary around the  move judge davis didn't advert to the deep end friends at all as far as i could tell did he in the it certainly didn't appear in the opinion was there any other place where they let me ask the question your back was this question was this issue raised with this separately was it jealousy where is the boundary of this coin and once we set the boundary then we get to the next step where we can say ok this is a valid one a fragile jealous and now you know what's inside what's the current what's not and now we can specific as to what is claimed you don't really think that would be the in depth right i could just spread the word fragile gel there describes its function that's fine but but the the scope of the claim is going to be definiteness of the language employed must be analyzed not in a vacuum but always in light of the teachings of the prior art and of the particular application disclosure as it would be interpreted by one possessing the ordinary level of skill and then as a footnote that says is important to understand that under this analysis claims which on first reading in a vacuum if you will hear in definite may upon a reading of the specifications disclosure or prior art teachings become quite definite it may be less obvious that this rule also applies in the reverse making an otherwise definite claim takes on an unreasonable degree of uncertainty and i think that is actually what was happening in the case that you were just discussing if it said a fragment gel having a specific elements you might look at that was prior art gels might have been strong sufficient to support cutting or they might have broken easily but they couldn't develop and the invention here is doing though their expert said on page eight seventy eight which was put in a reverie unfortunately the meaning of this term fragile gels was talking about as usual over the years has not always been consistent so i have used the term to describe the build up of sufficient gel strengths while others have used this and described a quick and easy breaking of the gel or vote so they're experts in the prior art it was used to describe both features their own clothes and had both features on what they're calling a fragile gel that's what makes it impossible to put any kind of objective anchor if it shows that counsel just admitted that the prior art exhibit is fragile characteristics and then he just named it by saying well that the twelve point one is lightweight although i've found to look in the claims and find anywhere where light weight course not there are no objective hankers for this even the things that they were talking about lomotil losses and no pressure spikes the evidence before judge davis was that many things besides the drilling fluid impact whether there are little more losses or the size of the well the type of thing you're drilling for what type of rocks what type of additives to test the evidence before the court was that every one of these drilling fluids there are numerous additives that are in the field at it and that those change the characteristics none of those things are things that are in the plan so these objective anchors are not real at all because they depend from well to well and from job to job and that's why all of the figures in this patents while they're very detailed and they do you propose to show some analysis these are analysis of one to halliburton fluid this actually fluid against one other halliburton fluid the s s slips and they refer to how these things show the prior art or they don't tell the pirates they show a test in one well or one fluid for halliburton counsel also says it has to be quicker than the seven i want to point out one other thing before i get off on figure three is that there's a real problem with figure three in that figure three says the spec when it talks about a fragile gel is used here and means it says a fragile deal is used here is a gel that is easily disrupted or thin which means it breaks easily if you look at figure three and is a period of rest that's where before the seventy eight minutes you see the curve is down at the bottom so the paddle is not spinning the gels are forming and then at seventy eight minutes they start the paddle rotating and the even though the spec says the fragile gel is one that breaks more easily than the prior art figure three shows it takes more torque to break the fragile gelles than the prior art but prior art breaks more easily because the twelve twelve point to touch up goes much to a lower vertical height so it takes less force and all that really shows is the time even but it doesn't go to break easily so there's a big distinction between figure three and what they're claiming  is the definition what do you say about the reference that column two lines one through fifty seven to the  knowing initial appreciable well at the time the conversion back into liquid form no initial appreciable or noticeable pressure spike is observed with pressure while drilling equipment or interest or instruments as opposed to the prior fluids that show a pressure spike again i think it runs counter to what you see in figure three figure three shows it would take much more pressure to break out of the invention  the prior art but again you know setting aside any possible inconsistency with figure three how bout that as a metric it can't be a mess rick because again what the testimony was now of halliburton has admitted is that each well is things would you be more likely to get a spike with the if you say you know controlling for everything else i define a fragile as a twelve sixty one and this was before the district court of the deposition of ron clark who is albertans expert he was asked when you say appreciable pressure spike is there such a thing as a non appreciable pressure spike or are you saying no spike at all he answered well it's so hard to be definite when it comes to drilling because all times of things happen but a pressure spike that's large enough to cause a problem on the rig which may result in loss of fluid is certainly something you wish to avoid so that's our standard for no pressure by is it something that's large enough to cause all of the problem on the wrist and that is consistent with the deposition testimony of done since one of the named venters and i'm reading from a thirteen twenty two he was asked how much of a pressure spike is needed to be appreciable he answered anything that impedes the drilling operation i too much lost that impedes the drilling operation and then there was the start of another question do you know what and he answered or less you know at least less than the prior art fluid question and what was the level of pressure spike that was known in the prior art drilling fluids answer i have no idea since i'm not a dozen question how would a competitor fall or know what's an appreciable pressure spike and what's not in terms of this patent and this is one of the named inventors the answer he would need to well that's a good question i guess he would need to go and look at what he's had answer no question it goes back to the actual field data the pressure well there was drilling data from the field he answered yes question was doesn't the pressure was really measurement and on a lot of other things than just the composition of the fluid for example the size of the hole oh yeah question the formation being drilled through yes now what ages were you really from thirteen a thirteen twenty two to thirty five and so one of the inventors admitted that appreciable pressure spike is something that doesn't cause a problem and it depends on many other things besides the drone so i don't think that can be an object and i heard on anything further thank you sir  own brochure and that's in the record at ten x ten eighty one and what you see there like virtue of using the invention is that you see no pressure spike now i also want to clarify that a pressure spike is not what is being addressed in the figure three figures and show precious works pressure figure three shows torque readings and i believe that the interpretation given by defending this figure three is a little mixed up the defense are saying the peak is higher than your three the point though is yes the pick is higher and the time required to break those jess is zero so more shells are breaking more quickly that's the invention here they go up to a high point and then they come down upon themselves that's the feature they come down and then they go off to the right that's the fragile aspect what is it that causes the torque to be registered at a higher  torque that's the invention or it goes up and it comes down on itself and when you look at the other one the the fifteen point six clark any closing point i'm sorry any final point you cover your points yes i do have one further to further points quickly