may please the court two errors of claim construction made below require the judgment be vacated here st the district court heard in construing the disposed within claim limitation to require the test groups be disposed entirely within the flow control channel they are by excluding the preferred embodiment of the claims use nearly identical language as the specification as a specification when it referring to the preferred embodiment figure three disposed within the claims that as a test trip is disposed within the flow control channel and the specification in column five referring to figure three yes a sample fluid control in this embody of the invention is accomplished by disposing s a tester of twenty two with any flow control channel there's no reason turgid with your strongest evidence for sure but that language the strongest evidence to support your own claim construction what about the plane claim language and had the plane claim language saying for example that the fluid has to contact the loading zone at the at a particular location finally in figure six that figure three is turned over so the flow control channels are or disposed with their opening toward the base what you see in figure three is flipped over the examiner and examiners amendment limited the claims to only the embodiment of figure six so in in figure seven yes figure three would be placed within the container as here with the tester sticking either flush with a partridge from and they don't the prosecution that limitation is is removed making the claims only broader in that respect and this term contact at the liquid pervious site is attitude to make the claims re properly at the same time that amendment was made the applicants stated in the remarks that the device of the president vention is shown in figures three through s the liquid pervious side what about that language only there's one other location it's also a ph eleven thousand six hundred and fifty one you have the language only in describing it the patent office how your invention operate does how do you respond to that why doesn't that show that your invention should be limited to strips that don't  the claims are open ended comprising and that the sample will be delivered to the sample loading zone by entry through whether it contacts it before or not because that sample will still be delivered to the test rip delivered directly to the sample loading zone of the assaye test rip through a liquid purview side was mentioned also during the prosecution history when the the claims recite  repeatedly during prosecution the applicant said the device of the present invention was shown in figure three dollars to seven dollars the district court never acknowledged that statement in coming to its conclusion the district court never acknowledged that term so you look at the plain plain language you look at the spec you look at the prosecution history and your position is that when the court looks at the prosecution history it can only rely on it if there's a clear disclaimer is that your position a way get to weigh against that strong evidence in the specification that there would have to be it would have to be pretty a disclaimer and i think you do find a disclaimer given in cases that actually say that i mean i think the meaning of the plane plane language is that just entirely disposed of in the channel it's in type just those within the channel so that that there's some other language that says so that the liquid comes through and enters the channel a particular location they rely on other language to take the position that the plain norn unary meaning is not just limited to disposed within the channel correct they've they rely upon a contact at the opening which would be met whether the tester producer or not and they delivery through they also rely upon the applicant's consistently stated that delivery through occurred even when the well that's also in the context of the specification using only the word equilibrium and the so in describing this concept of pressure equilibrium within and without flow control channel so i think there's six different instances where the specification uses the term equilibrium and go ahead i'm sorry and then the and yes that the the specification does refer to equalize because he or other side seems to say it has to be exactly that's their argument right and to me equalized is a verb equalise refers more to a balance the claims use the word equivalent not equal i mean we we were we were prepared to go to trial on the plane or remain a bit of equivalent which has a common understanding that that in compas is different things that may be different but have the same effect so for example the doctrine of equivalence equivalent we were going to trial with the plain ordinary meaning of equivalent when the district court announced well i don't know why i don't just define it as equal to say you know you're in your rebuttal thank you and so we brief the issue and then the district court ultimately concluded it equivalent means equal full stop and instruct the jury that that way and told the jury twice that you must follow the instructions and we  asked as an alternative we said well if if you're going to go to these dictionaries and define equivalent as simply equal well let's look at the dictionaries which say it's it's equal to or has the same effect as which is also supported by the dictionaries that the cite and the district court rejected that alternative as well and then follow through with an instruction that changing equivalent to equal to full stop nothing more have another question for you which is cause excess sample to flow into the channel and flood the test so it doesn't meet your view is no pressure gradient doesn't mean that the difference in pressures it's that it's a it's an elimination of a pressure gradient that's going to cause flooding anyway it's a basic concept that if you have a a a cup of water that the there is a gradient of pressure as you go down the pressure gets deeper someone goes in a pool the pressure gets deeper as you go so there is a pressure gate gradient in just a think again your answer is no that doesn't mean it has to be zero difference and pressure pressure gradient has a different meaning and i ask because i didn't really see anything on record that told me what a pressure gradient is it's a pressure gradient that's going to cause flow of fluid excess sample fluid and so we submit that the district court heard but you simply changing equivalent to equal to which required some sort of mathematical precision to the prejudice of remember  asked why would i want to measure pressure why is that flippant well i think in the context of what he is saying he is being flippant he's being it he's responded to our protest more expert has measured the pressures inside and outside the flo channels explained why doesn't board and why it shows that there is not equivalent actions here but instead different pressures that do create a pressure gradient and his response is well why would i want to measure pressure lead want to measure pressure to know whether the pressures are equivalent whether the pressures are in equilibrium with each other and whether the pressures are equal to each other on page twenty three dollars of the wrestling you say due to its design the i cup w and it needs different pressures and that the reason why you don't get flooding is because there is a greater pressure inside the flow control channel then outside the flow control channel that stops the clip from flowing between the outside in the inside if they're equal ised is there a greater pressure if they are equalized there isn't a greater pressure if they're equal as there is no pressure gradient there and the pressures are the same as the dishes were recognized in its construction that that's what equalized means is the dictionaries we cite judge walking also that there's a difference between equal and equalized is there not i agree that they are different words they serve the same root and if you look at the dictionary that we cite they define equalize as on page thirty seven of the red brief are you say that contact quote contact cannot occur in the channel if the test script and its sample loading zone extend outside the channel you don't provide a previous side is so in figure six it would be the bottom it is an opening in that the flow control channel the that is where liquid can come into the flow control channel whereas the other sides are liquid impervious because they're generally saying we can material right well up but if you're broadening the claims you're not expanding prosecute even if you're just broadening a single limitation you're not x but i didn't prosecution because now you've opened up more pyrite the examiner is going to have to search for but i also think that this court is that in cases  such as norton and such as the you ship case that the fact that you think that all your statement you made about how people prosecute patents do you think you think that's how it always is that's a routine rule everyone follows don't ever can import it when they say eleven thousand six hundred and seventy two that they are trying to expedite prosecution if they didn't say that i think that would be hard to draw that generalization but where they make that specific statement we really be looking at the language where in the flow control channel you know the focusing on what language they removed which in this case because they remove quotes flash and picture things well i disagree a little bit judge still because i think that that sheds light on what that language that is now in the claims means the  just having an intermediate structure or getting rid of an intermediate structure is not enough because tidings can also deliver the fluid without using an intermediate structure that that language is telling i'm not aware of a case from the score or someone has removed language from entirely within the flow channel was a key point of novelty of the prior art rembrandt says that same is quote false and supported by no records cite where exactly in the record did approves upon part of isis by preventing the flooding of test drives by constructing a flow control channel around the strips and then goes on to say in the next sentence that in this respect the previous line of the channel will limit the rate at which sample flow into the channel to contact the sample loading zone now if there if by constructing it around the strips that limits the flow into the channel to contact the sample loading zone i think that that is what they are saying judge but but once again even if you don't think that that's directly on point i think the very fact that they removed the language from the claims is enough under dorian and you ship in this court cases i want to make one quick point on equivalent to unless you have other questions about some other questions actually y need to in this court's cases haven't required you to move for a new trial if you're only asking for a conditional new trial claim construction that you've already adopted is overturned if i can just make the one point i wanted to make about equivalent versus i'll g eleven the claims themselves use equilibrium and equalizer as interchangeable terms what they say is that the inside and outside pressure stays in substantially graham and quote in this respect the liquid previous side of the channel serves as a pressure water and that's because the definition of equilibrium is equally balanced so whether it's equilibrium whether to quit want to or whether it's equal the claims the claims require exactly what the dish reports that there are no further questions thank you you i just wanted to clarify a point because of the beginning of my friend's argument they talked about the prosecution history being relevant i wasn't suggesting in any way that the prosecution's theory was not relevant i was just saying that if we're going to find a disclaimer of the plain in ordinary meaning of the language a disclaimer of the preferred embodiment they're going to have to find a clear and unmistakable disclaimer in the prosecution history now with respect to has been disposed within the flow control tower the claims call for the samples with contact in it at the opening and that it's that contact at the opening that allows the flow control channel to function as a flow control channel the liquid closes off the opening and it prevents further entry of fluid except by capillary action up the tester so controlled entry of fluid that is going to allow the test to run now with respect to the not about protruding test rips and if i can make one point equalised ok i'll give you fifteen seconds and we say it on the yellow brief it page twenty two a dictionary of equalise which refers to equilibrium or proposed construction your honour's thank you this matter will stand submitted