short sale and claim ten to require that the seals narrow the opening of the claim trash back the fundamental problem with the trial court's construction that the plain language meaning of shorts does not include the written description or in the prosecution histories and there's there's not one here let me start with the claims this contrasts claim ten with claims one of sixteen claims one sixteen each have expressed limitations greater than nine four but less than one hundred so it's short seals necessarily limited the opening of the back as the district courts construction would have been the less than one hundred percent limitation is not required that you just say that that claim would be that doesn't make it superfluous you still have a claim limitation there that would be between ninety four one hundred you could have a shorter seal that makes it less than ninety four but that will cover that play the ninety four percent i agree on is doing some lifting in claim thirteen it's the less than one hundred percent language that is superf at the description of the of the invention absolutely recently led with the present invention yes so let's look at let's look at exactly that language which is a con three line forty six hundred  it starts the present invention is directed toward an improved construction of an elastic drawstring trash doesn't say anything there about a narrative and then if you think in that paragraph to describe features that are common to all so it distinguishes the prior art on that basis that the prior art doesn't have those inseparable shorts it's the first time that the summer the invention talks about and there are bag openings at the top of the next call where it talks continues to say that the width is less than ninety seven percent of the width of the back that is a limitation on the bag opening that is not found in the independent claims that's only found in the  to figures one and figures to about the narrowed opening but with respect those statements are talking about they are talking about an aspect of the president mentioned is the aspect of the president mentioned that is the environments that are claiming claim one and claim sixteen doesn't say all in one there's no hwang which here such as you have in your case is where it says all parts of his are to me saying in the specification it talks about openings that are there  pictures that are not on your own opening except the prior art is there anything in the language specification even suggesting that there is something that includes not there where is your argument entirely they supplied the broad reading a flame war and standing alone i don't think that's a fair position i think the specification when you read it talks about a number of different features of the invention it talks about as i mentioned the elastic drawstring the is important to note that one of the characteristics of the present invention is the reduction in the upper with and the typical invite i mean so you're saying just because they're referring they're using embodiments it is important to note that one of the characteristics of the present invention they say call it a characteristic of the present and vention they don't say one in body mint of the present  characteristic of the president mentioned right i see your point but with respect if if this specification meant to talk about on body mints it would not be the language and looking at both figure one and figure two but it's  that but the claims cover environments that don't have a we've got a combination plain where the applicant has taken different combinations that they have the features and then point let me let me move i can to the prosecution history because i think i  are at eight to sixty seventh and eight to sixty seven the panty argues several distinctions over the prior are one of those distinctions it's true is the narrow back opening and named ten in particular who is distinguished at eight to sixty seven on the basis of the inseparably welded shorts feels that joined together the bag panels and the elastic drawstrings this is the same thing that quoting directly from the language of claim one and claim sixteen language that the relaxed upper opening with is less than the bag proper with as clinked and a language that distance between the interior edges the short feels is less than the language of claims one claim sixteenth insole really directed to those environments of the researches i think you asked was show me where in the entrance of record where in specification there are examples of bags that do not have narrowed upper openings reduced up openings as a result of extended short seals there are only two places in the intrinsic record where there are such back shown one of them as figure four of the patent which is discussed in column five figure shows one thing it shows the upper corner and it shows not being extended and what this case it says this is the prior art this is a column find starting the paragraph  at line thirty two shows here's here's the prior art upper corners that's the conventional bag the width of the short seals are minimized it's undesirable and unnecessary provide a short seal any larger than the distance from the edge of the side shield to the other side seal so they're saying when you look at figure four which is i think what you're asking about that's the prior art and then they begin the next paragraph th forty six a column five in contrast to conventional non elastic drawstring by distinguishing figure four says the short seals one twenty of the elastic drawstring back one hundred are white and so what they're saying at that be their response that's not what the spec says because the spec says repeatedly present invention but i think the next point i was a little surprised to hear them referring to the july two thousand and twelve prosecution history because that's the prosecution history where they told the patent office that all of the independent claims and the independent claims that time were one ten and sixteen just like they are now that all of the independent claims required a narrower upper opening and required the short seals to be extended inwardly and if you start at the at the beginning this has to do with the schneider prior which is the second example of a non narrow  upper opening and they put a drawing of schneider in on page eight to seventy two they put it in earlier on the first response of the first office action of eight to thirty they show the non narrow upper opening and one of they say well they started to sixty seven and at the bottom they say schneider still fails to disclose a relaxed approach with that is less than the proper with because the distance between the schneider site seals and the schneider sort of seals are identical that's in response to a rejection of all the claims and if you look at that at the pace of that on the page he specifically says claims one to sixteen a been rejected he calls out cl twice and he says that and then when you get to eight to seventy two what what the applicant says is that the schneider bag would lack an important claimed element namely that the relaxed upper opening with is less than the back proper as claimed a corollary to this claim limitation is that the distance between the interior edges of the shorts wheels is less than the distance between the interior edges of the site seals they go through and again the the talk about applicants independent claims on ambiguously defined those relevant relative distances and at the top of two seventy three applying applicants claim definitions of the terms the relaxed upper opening with the schneider is the exact same as the back proper with not less than the back part with as required by applicants independent claims it doesn't say as required by claim one as required by claim sixteen it says the independent claims which include claim time and the only reason that we're arguing about claim ten is because this is the argument that the examiner found persuasive and that's what he said at eighty two eighty two that he found this argument persuasive and later in the prosecution history again referred back to this very argument on a three forty six and he says claims one to sixteen he's permitting them on over section one hundred three because of that argument so to come in make an argument to the patent office that all of the independent claims require the narrowed upper opening all of the independent claims require the extended short seals and then to come into litigation and say there's no expressed disclaimer there's no express disavowal i don't know how you could how you could have more of an express this involved than telling the patent office the prior art but doesn't have the narrowed upper opening is different for that reason is different than all of the up we can see in depending claims and those are the only two places where the issue is addressed directly in the intrinsic record now it would require a statement that at this invention only includes narrowed openings right and that i think that even you would agree that not necessarily applied to the specifications i get  prosecution history no i think that that's true even of the specification and i think i will go through that and will be explained why i think one of the reasons is because once very clearly and in other times the spec the other things other than in pair and column five where it says here's the prior art in contrast the invention is white so i think you could read that as being an express disavowal of what's  upper opening of the trash bag the title is reduced opening when you look at the abstract it talks about the present invention is directed to improve trash bags the upper opening is reduced by decreasing the distance between the interior bags falling inside the receptacle or the trash and in the solution was about having a reduced upper opening and having narrowed marriage short sales even when they get to come seven and they talk about the materials you could use they talk about the reduced distance between short sales you can use these these materials for that so there's not a word in the patent about non extended short sales except referring to the prior art that was distinguished look at the context of both the the specification the prosecution history and here i don't think there's any any question about that less and less there are questions i don't have any thank you claim ten they claim ten requires the shortfalls or the crux of the invention which spec to claim ten is short sales and there are other bad opening that would do it but we don't have that and it's clear we don't have that because every place that they in the prosecution history end up i cited an argument today where they're talking about the narrowed bag opening it is tight expressly language that's found in claims one can claim sixteen but not in claim ten and in fact the applicant's arguments of pages six through fourteen of the july twenty twelfth amendment impeaches sixty fourteen included right on page six of the argument the distinction that was drawn for bag opening with their arm to the limitations of claims one and sixteen on the other hand which have expressed limitations narrowing the bag with if the patent he had wanted to find his invention that way he knew how to do it and could have done there's just not a