tapping dental implant that is one that can be inserted all in a single step without successive rounds of drilling into the job and they accuse nobel implant practices the key claims  issue here but the district court granted summary judgment of not infringement based on a claim construction of two limitations that we contend was erroneous and that you should reverse under an overview now to focus on the key error in the claim respect that is wrong and i'd like to focus on figure two because after all the patent tells us that the chip fortune is most clearly shown in figure two now if we look at figure two it's in the appendix said fifty four a d i think it's worth spending a little time with figure two if you don't mind me walking you through it so figure two shows that the cutting edges in figure to the cutting edges are numbered forty two  hundred and fifty two figure two makes clear that they cannot meet at the midpoint or the imaginary line at the center and here's why we know that the cutting edge is forty two and fifty two must be and we know from the specification it goes into great detail and i commend your honour's to look at the patent at appendix fifty six at columns three and four in particular and i won't go through it all now but columns three and four at lines three that's right column three lines twenty one to twenty nine and column three lines forty two to forty nine make very clear that when you cut you must evacuate the bone chips and in column three tells us that lines forty two to forty nine it's very important to evacuate the bone chips through the flute as you cut because otherwise you could cause tissue damage nerve damage and bone damage and in the word partial does not appear the crucial language about adjacency and i commend this your honor is in the st paragraph of columns through the st full paragraph of column three and has an extremely crucial sentence there and this is worth reading in its entirety this says that the st cutting blade i'm in column three th line the st cutting blades forty has a cutting edge forty two while the nd cutting blade fifty has a cutting edge fifty to one end of the st flute portion twenty six is adjacent to the cutting edge forty two of the st cutting blade forty while one end of the nd flute portion twenty eight is located adjacent to the cutting edge fifty two of the setting nd cutting like now your hon let's go back to the diagram and now we see why the cutting edge is forty two and fifty two cannot possibly meet at the midpoint we go back to figure what does the q one well figure one shows the imaginary line at sixty and drawn as a dotted line so that's not part of the structure i was going to get forty two and i think it's fifty two which seems to me at the very bottom point the device well actually they don't your honor because if you look at the very bottom of figure one on page fifty three and if you look at the tiny triangle on the flute side the food is depicted in cutaway only on the left there's a tiny triangle at the very bottom of the chip and is that is a reminder that the flute does not go all the way down to the chip  two tells us that it is not the one that shows us most dearly it shows very clearly in figure two that little triangle i was pointing out your honor and the key is if you look at the sleuth's the curve of the flutes which are demarcated as twenty six and twenty eight you look at the curves the curves don't meet in the middle they don't meet and that's the key and let me say the vertical line i think has to be regarded in light of the text of the specifications it has to be regarded as a draft and there are an ink blot because the text of the specification could not be clearer that  goes all the way through to the portion in the middle that corresponds to those two rounded edges doesn't actually exist yet cutting edge goes only up to where they occur on both sides and then there i figure two that i just walked you through and my key and so if we look at figure to remember if we're looking up from the bottom remember the cutting blades forty and fifty are metal and the flutes twenty not function properly your honor quite the opposite in order to function possibly properly there's got to be some non infinitesimal with between the flutes and between the cutting edge as there must be otherwise the flutes would collapse into one another and they wouldn't evacuate any bone so in real life you can't draw a drill bit a chip with infinitesimal line or no space between the two flutes and the two cutting edges it would collapse it wouldn't do any work at all to run i think the best way to think about if you imagine the cutting edge on the bottom is sort of shaving off bone chips and they've got to go out into the flue right away they say st they pop out the top and then eventually they pack the flute so that they bone can later integrate with the draw and they wouldn't be able to go anywhere if you had a cutting edge that was not adjacent to the flute so in your honor i think there's a couple of very important absences from figure to note that figure chooses one with all the way through to the cutting edge that are adjacent to the fluid was blown up through the loot but the bone there in the middle couldn't get through a hole that's exactly right your honor one hundred percent right so the way to think about the tip remember in figure one the tip is not numbered what what judge lynn identified as a kind of depicted point the structure that's not numbered and we're not told what sort of a pickle configuration it needs to have in real life to make air our implants you would have to have a slightly nubby or flattened surface there because you the two because of the if that's the case i don't see how there would be any blade whatsoever that would cut out the middle of the tooth if you're sure you're saving around right joe i mean i sorry for being such an articulate this is very difficult for me to describe it it seems like you're saying the blades go up here and so they're going around shaving like yes what should be in the very middle of the two so they were the repeated sweep action of the cutting edge is that so the cutting edges that's right your honor and the cutting edge here is adjacent must be fully adjacent to the flute any other specifications what i'm asking you to do is not put too much emphasis on the drawing i'm invoking your classic law that says look to the text of the specification don't let the draughtsman want to know how does the green circle cut the green circle or the blue circle where does cover up of the cutting blade go does it go into the blue circle the cutting edge and at the blue circuit it begins at the blue circle and it ends at the outer edge of the cutting if there's no putting blade in the blue circle how does the bow that corresponds to the circle going down get shaved off well the same way the nobel implant works if you look at the drawing of the noble implant and so we look at novell's on drawing on page forty three appears many places but it too has cutting edges that sweep rotationally tell me how it works i don't just compared to theirs i don't understand because you say that it has to pollute is where it gets evacuated that's right but then how does it get evacuated the middle get evacuated through the flue if the flute doesn't cover that at the cutting edge so through through downward through downward pressure so that the flute the flute evacuates the bone chips that are shaped through the rotational action of cutting edges and the downward pressure effects the amount of compression that can be tolerated by the bone but you don't want to have everything compressed you want to have most of it swept away and so what this does is it  minimally at the center and shave away through the rotation of the blades and it's the same exact way the nobel active works there is wouldn't work either if you were correct your honor because the way they're configured is rotational shaving as well i have a number of other reverse on that basis alone that takes care of everything else in the case and the case after this too because it would reverse the attorney's fees if you disagree with us though on claim construction which tree hope you don't you should still reverse the rant prosecution history showed a narrowing amendment that was overcame the accused equivalent the nobel implant it's not your honor we made a two thousand and four amendment to overcome clarity we made a two thousand not self drilling they had the threads to hold the implant on to the thread of the grooves in the side but they didn't have having edges on the bottom and are distinction are or amendment to distinguish already and they made clear that we were a self tapping bottom we have radially extending outwardly from the axis cutting edges at the bottom so it was a clear violation your honor of your settled law that unerring amendment will not surrender the implants and generally longitudinal axis and it's our position that that construction and that limitation does not depend upon the axis construction that's being disputed here the nd well that's that's so that would be an alternative  we have with you from sure about the term project we wanted to send us your so we talked a lot about the figures and there was an argument that we heard today that somehow the cutting edges must begin where the flute is because of this evacuation issue but there was no testimony and there's no evidence in the record below that if the cutting edge is meet at the longitudinal axis sixteen that there wouldn't be able to be evacuation well at a sullivan directed us towards column if this is truly a self growing implant that can be placed into bone without the need for any drilling or any instrument then why would there be a shaped non functional part of the implant just sort of hanging out there and doing nothing room there was no testimony in the record below as to what that that that line is but what we do know is that the only cutting edge that's just scribed as extending through from the axis are the cutting edge is forty two and fifty two so that may very well be another cutting edge or some other structure but the cutting edge of that extends from the axis is the cutting edge for the two thousand and fifty two and that is clear from the specification meeting element sixteen the longitudinal axis as well as figure to which tenuous line and i know these figures are difficult to visualize so if you kind of think about a pen and you're looking at the pen flat on you know the tip would be if you were trying to draw that view the tips would be meeting at the center but it would be shown on a plane or view as simply a straight line and so that's how this figure is showing that it's a continuous line but we're just the other point that a council made is that somehow the the flutes would collapse if the cutting edges met the access again no evidence no testimony that in fact would would be the case we have an implant depicted here with cutting edges meeting at the axis the claim is covered as the cutting edge is commencing at the axis and the other thing i wanted to point out is that the claims only require at least one cutting edge to be commencing at the a rejections so the st amendment was when the claims merely required an implant that was self drilling and sell tapping the claims are rejected over clarity and response to that rejection appellant added the rationale for the amendment was to specify the direction and the orientation of the cutting edge and before the district court pounds did not argue that this was not a narrowing amendment they really made no showing that any sort of exception to prosecution history is stoppel would apply on this appeal they're making an argument that the very rare tangential relation exception should somehow apply here we just don't think that that's applicable because again the purpose for the amendment was to specify direction and orientation of the cutting edge that is exactly the issue that we're disputing here with regard to the nobel implant as the the direction in orientation of the cutting edge  we just don't believe that that this is tangential we think it's directly related to the amendment and we also think that under the case law including the felix vs american honda case as well as the other cases we sat in our brief that it was incumbent upon appellant at the district court level to show that the objective what the objective lea apparent reason was for the amendment and if you look at the portions of the record below but we don't have any explanation of the amendments of the statements at appendix five hundred and thirty three in five hundred and thirty four that i just went through where the where appellant clearly indicated that the purpose of the amendment was to make more clear access limitations that was added after the examiner still wasn't convinced that extending radially outwardly was enough there was a nd rejection over day and in response to that rejection appellant had to add the commencing at this moment so again we believe that that's a meringue amendment again no tangential relation but rather a direct relation to the the equipment here which which does not commence at the those were extending radially outwardly and in response to that the appellant had to specify that the cutting edges were commencing at the axes so was further narrowing the claims of not just that it the direction the extending radi that gives her no help because that just gives a direction radially outward it doesn't tell us the starting point we believe the starting point has to be adjacent to the flute nd i know that there's been some concern about what's that pointy tip doing in figure one that structure that structure is not labeled it's not numbered and it's not described in the spec as having a point if anything the curve i pointed you to suggest it doesn't fit don't take it from me take it from the district court the one part of the claim construction we won at markman where is it a ten where the district court found that the bottom could even be flashed we had not disclaimed a flat bottom surface and in finding that really suggests that as construed and there's no dispute that finding by my friend as construed that a lot of that looks pointy in figure one could be flat and that's consistent with the specification which focuses on adjacencies of the flute which is the key to this patent rd i want to narrowing because the amendment was not made to avoid prior art that contains the accused equivalent day in clardy it we amended around clardy for radio extending outward then we amended around day sayin threads in the grooves they don't self drill we were the st patent we're aware of that had self drawing and self tapping so what we what we distinguish day in clarity one if you picture a sort of hat sock cutting grooves in a longitudinal direction  cutting edge running up and down vertically that's what we were distinguishing neither day or clarity had cutting edges at the bottom and that's why in the prosecution history we didn't surrender the scope of the accused equivalent nobody's disputing nobel the ones that cut the grooves in the side or radial or out really extending that might be at different levels of taper at the bottom there's no there's no in between we were disclaiming wanted to know but we weren't that in order to claim radial extending and so your honor we think party and sorry to repeat the bad time that they were night and day different from what we were disclaiming earlier surrendering from the way that were accusing nobel of nobel has cutting edges at the bottom it